Operating Engineers Local 18

National Labor Relations Board - Board Decisions

Aug 27, 1973

205 N.L.R.B. 901 (N.L.R.B. 1973)

OPERATING ENGINEERS LOCAL 18
International Union of Operating Engineers , Local 18,
AFL-CIO (C. F. Braun Company) and Walter
Shimman and Glenn W. Oberle. Cases 8-CB-1816
and 8-CB-1868
August 27, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On March 30, 1973, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its 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.
ORDER
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 Respondent , International Union of Oper-
ating Engineers , Local 18 , AFL-CIO, Cleveland,
Ohio , its officers , agents , and representatives, shall
take the action set forth in the said recommended
Order.
' 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 are 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.
901
The complaint in Case 8-CB-1816 alleges that Respon-
dent Local 18 violated Section 8(b)(1)(A) and 8(b)(2) of the
National Labor Relations Act by discriminatorily removing
Walter Shimman's name from his proper position on Re-
spondent Local 18's referral roster and placing Shimman's
name at the bottom of the list about July 22, 1971, because
of Shimman's activities on behalf of certain opposition can-
didates in an internal union election; by thereafter threaten-
ing members of Respondent Local 18 during August 1971
with loss of employment and other reprisals for supporting
opposition candidates during an internal union election; by
threatening members of Respondent Local 18 during Au-
gust 1971 with expulsion, loss of membership, and financial
losses because they opposed incumbent officers during an
internal union election; and by threatening members of
Respondent Local 18 during August 1971 with loss of em-
ployment and starvation because they opposed incumbent
officers during an internal union election. The complaint in
Case 8-CB-1868, as amended, alleges that Respondent Lo-
cal 18 further violated Section 8(b)(1)(A) and 8(b)(2) of the
Act by discriminatorily failing and refusing to refer Glenn
W. Oberle for hire by the C. F. Braun Company as a master
mechanic about October 8, 1971, and by discriminatorily
failing and refusing to refer Oberle for hire by the C. F.
Braun Company as a machine operator about November
23, 1971, because Oberle supported opposition candidates
during an internal union election; by threatening members
of Respondent Local 18 during October 1971 with loss of
employment and other reprisals for supporting opposition
candidates during an internal union election; by threaten-
ing Oberle and other members of Respondent Local 18
about October 11, 1971, with expulsion, loss of membership,
and other financial losses because they assisted opposition
candidates during an internal union election; by threaten-
ing Oberle and other members of Respondent Local 18
during October 1971 with loss of employment and starva-
tion because they opposed incumbent officers during an
internal union election ; and by threatening Oberle about
December 13, 1971, with loss of employment and starvation
because of Oberle's efforts against incumbent officers in an
internal union election.'
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
counsel for General Counsel and counsel for Respondent
Local 18, I make the following:
FINDINGS OF FACT
1. JURISDICTION
DECISION
FRANK H. ITKIN, Administrative Law Judge: These cases
were tried before me at Toledo, Ohio, on July 10, 11, 12 and
13, 1972. The unfair labor practice charge in Case 8-
CB-1816 was filed on January 13 and the complaint issued
on March 16, 1972. The unfair labor practice charge in Case
8-CB-1868 was filed on April 4 and the complaint issued
on May 10, as amended on May 16, 1972. The two cases
were ordered consolidated for the purpose of hearing on
May 10, 1972.
The complaints in both cases allege, the answers admit,
and I find and conclude that at all times material Respon-
dent Local 18 was a local union affiliated with the Interna-
' Counsel for General Counsel was permitted at the hearing to amend the
complaint in Case 8-CB-1868 to allege, in sum, that Respondent further
violated Sec . 8(b)(1)(A) of the Act on July 10, 1972, while this hearing was
in progress , in that it "did threaten , restrain , and coerce its members by
holding them out for public scorn and loss of respect among brother mem-
bers for utilizing the processes of the National Labor Relations Board and
further inferring that [Oberle] engaged in a course of conduct disloyal and
detrimental to the Union and its members ...:.
205 NLRB No. 146
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Union of Operating Engineers, AFL-CIO, with its
principal office in Cleveland, Ohio, where it has been en-
gaged in the representation of its members for the purpose
of collective bargaining with various employers in the States
of Ohio and Kentucky who are members of Associated
Contractors of Ohio, Inc., and The Associated General
Contractors of America, Inc., with respect to wages, hours,
and other terms and conditions of employment for the em-
ployees who are employed by employer members of the two
associations; that the above two associations represent em-
ployers who annually receive materials at their respective
plants in the State of Ohio in excess of $50,000, which
materials are shipped directly from suppliers located out-
side of the State of Ohio; that Respondent Local 18 annual-
ly collects dues in the State of Ohio in excess of $200,000,
a portion of which is remitted to its International organiza-
tion headquarters located in Washington, D.C.; and that
the two employer associations are organizations which exist,
inter alia, for the purpose of negotiating and administering
collective-bargaining agreements executed on behalf of
their member employers with Respondent Local 18 and
other labor organizations, by reason of which the members
of the two associations constitute a single employer for the
purpose of collective bargaining and jurisdictional purposes
within the meaning of the Act. The complaints in both cases
allege, the answers admit, and I find and conclude that at
all times material the members of both employer associa-
tions are employers engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and/or, individually
and collectively, engaged in an industry affecting commerce
within the meaning of the Act.
The complaints in both cases allege, the answers admit,
and I find and conclude that at all times material Respon-
dent Local 18 is and has been a labor organization within
the meaning of Section 2(5) of the Act.
II THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent Local 18 and the two employer associations
are parties to a collective-bargaining agreement in effect
from June 1, 1970, through April 30, 1972, under which
agreement Respondent Local 18 represents the employee
engineers of all employers who are members of the two
associations . The agreement provides (see G.C. Exh. 2, pp.
9-16) that the employer members of the associations will
obtain all employees employed as engineers, except in emer-
gency situations, from Respondent Local 18's hiring hall,
individual referrals being subject to nonarbitrary rejection
by the employers. The complaints allege, the answers admit,
and I find and conclude that pursuant to the collective-
bargaining agreement, arrangement, and practice with the
two associations, Respondent Local 18 maintains in effect
an exclusive referral system, referring individuals to pro-
spective employers by means of a referral register or roster.
In brief, Respondent Local 18 maintains a register or roster
of available applicants and referrals are to be made to em-
ployers in accordance with a system of priority depending
on length of employment and experience in the States of
Ohio and Kentucky. The agreement also provides, inter alia:
An applicant for employment may not refuse referral
to employment except for good cause, but, in any
event, such refusals shall be limited to two (2) consecu-
tive refusals. If the applicant refuses a job referral for
the second consecutive time, he shall lose his position
on the register and he shall go to the bottom of the list
for his group.
Further, the agreement provides:
Employers may hire through this referral policy, by
name , former employees who have resided for at least
one (1) year in the State of Ohio or within the counties
of Boone, Campbell, Kenton and Pendleton in Ken-
tucky and who have lived in the State of Ohio or in any
counties contiguous thereto or in the aforesaid Ken-
tucky counties or in any counties contiguous thereto,
and have been employed by the Employer making the
request during the past twelve (12) months within the
jurisdiction of this Agreement. The Employer must
make the request to the appropriate Union District
office and the employee requested must be registered
on the District referral list and be available for employ-
ment. It is agreed an Employer may hire through the
referral policy any registrant by name, notwithstanding
his position on the referral register, provided the registrant
falls within the Group A classification, is available for
work and has been registered with the Union District
office for at least ten (10) days prior to the request by name
by the Employer. The request by name must be con-
firmed later in writing on the letterhead of the Employ-
er and signed by either the Employer or the
superintendent of the project. [Emphasis supplied.]
The jurisdiction of Respondent Local 18 covers most of
the State of Ohio and the northern portion of the State of
Kentucky. Administration of Local 18 is divided into six
districts, with district offices in Cleveland, Toledo, Colum-
bus, Dayton, Cincinnati, and Akron. Each district office is
staffed by, inter alia, business agents and clericals and main-
tains a separate hiring hall from which construction equip-
ment operators are referred to employers. John Possehl is
business manager for Respondent Local 18 and vice presi-
dent of the International organization. He is , as he testified,
the chief executive officer for Local 18. John Frank is the
district representative for the Toledo area, district 2, and
vice president of Local 18.1
The events recited herein principally concern Walter
Shimman and Glenn W. Oberle, longstanding members of
Local 18 in the Toledo district, and their opposition to
Respondent's incumbent leadership. As counsel for Re-
spondent stated in his postheanng brief (p. 3):
2 The complaints allege, the answers admit, and I find and conclude that
John Frank at all times material is and has been an agent of Respondent
within the meaning of Sec 2(13) of the Act As for John Possehl, I find and
conclude , as he credibly testified, that he is "primarily the executive officer
of the Local", that his "responsibilities cover the entire ... operation"
including "the right to hire land] fire"; and that the "agents are directly under
[his] control and report .. " I find and conclude that John Possehl at all
times material is and has been an agent of the Respondent Local within the
meaning of Sec 2 (13) of the Act.
OPERATING ENGINEERS LOCAL 18
All political organizations contain an opposition fac-
tion and Respondent is no exception. For many years
the leadership of the "anti-incumbents" in Local 18 has
been in the hands of the Shimman brothers, their
friends and associates, most of whom reside in the
Toledo area. One or more of the Shimman brothers has
run for a major union office in all intra-union elections
dating back before 1960. . . . Walter Shimman, Jr.,
one of the alleged discriminatees, was the only brother
who had never run for office. . . . Glenn Oberle, their
cohort-and the other alleged discriminatee-has like-
wise run repeatedly. All of the events involved herein
took place at Respondent's Toledo district office, and
related primarily to the intra-union election of August
1971....3
Of course, as discussed infra, the principal issue before me
is whether Respondent Local 18-in resisting the efforts of
various members of the Shimman family and Oberle to oust
the incumbent leadership-resorted to conduct proscribed
by Section 8(b)(1)(A) and 8(b)(2) of the Act .4
B. The Evidence Pertaining to Respondent's
Treatment of Walter Shimman
Ervin Shimman, brother of Charging Party Walter Shim-
man,' testified that he has been a member of Local 18 for
some 26 years and that he is presently serving on
Respondent's advisory board for district 2 and executive
board for Local 1:8. Ervin Shimman recalled that during
June 1971 District Representative Frank asked Ervin "if he
would consider running for [Respondent's] advisory board
with the present people . . . in office" and Ervin refused.
According to Ervin, Frank then warned Ervin: "The job
you are working on now for the McDowell Company, I
received no letter from them [requesting Ervin], and if I
don't get a letter from them, I will pull you off that job."
Ervin Shimman, as he testified, had been working on that
job for 1 or more weeks.6
Ervin Shimman testified that he attended the August
1971 union meeting. At the meeting, according to Ervin,
Frank announced that three members, including his brother
Walter Shimman, "were put to the bottom of the [referral]
deck" because they allegedly "had refused two jobs." There-
after, during October 1971, Frank telephoned Ervin to ap-
3 In his opening statement , counsel for Respondent stated
The Charging Parties and their friends and relatives have been what
I hate to call losers They have been fighting incumbents of Local
18 for years and years, and each time they have run, they have lost. This
is really a never ending process for these people. They try every three
years, and the pattern has been they have lost every three years. That
is what happened last year
° The findings recited in this section are based upon the admissions of the
parties as contained in the pleadings and the credited testimony of Jeffrey
Belkin and John Possehl summarized above.
5 There are four Shimman brothers Walter, Ervin, John, and William.
6 Earlier, at the March 1971 union meeting , Ervin recalled that his brother
Walter questioned Frank about a particular job and Frank responded. "Your
whole God damn family ain't no good."
903
prise Ervin that he too had been "thrown to the bottom of
the deck" because he had assertedly refused two jobs. Ervin,
according to his testimony, explained to Frank that he was
on picket duty for Local 18 during his last refusal and had
so informed the union's dispatcher when he refused the
referral. Frank insisted that Ervin's refusal was not excused
for this reason and then told Ervin:
I [Frank] will hold you 10 days in the deck. You
don't work for nobody. I don't care who asks for you-
whether it is Braun Company or any other company.
You will not work for 10 days. You are frozen in the
deck.
According to Ervin, Frank added, inter alia:
I [Frank] am the hatchet man from Cleveland. I
come in here to chop heads, and you are one of the
heads I am going to chop . . . . [Ervin] wasn't going to
go to the Braun Company, that financially [Frank] was
going to starve [Ervin] out.
The next day, October 15, as Ervin Shimman testified, he
met with Respondent Business Manager John Possehl. Er-
vin testified that he related his complaint to Possehl; 7 that
Possehl agreed that Frank's conduct was not fair; and that
Possehl stated that "there is no such thing as a 10-day freeze
...." Possehl also apprised Ervin that "there is no reason
why [Ervin] shouldn't go out [on the Braun Company job]
if they requested [Ervin] by letter." The following day, as
Ervin testified, Frank spoke with Ervin at the Union's Tole-
do hall. According to Ervin, Frank apprised Ervin that Pos-
sehl "told [Frank] that if [Ervin] was requested for the C. F.
Braun Company, [he] could go to work for them and there
wouldn't be no such thing as a 10-day freeze, holding a
member in the deck and not letting him go to work for
nobody." Ervin testified that Frank then faulted Ervin for
having "finked on" Frank by going to Possehl; Frank
warned Ervin: " . . . I will get you, and when you get off
that Braun job, I will really get you if you go to work
there." 8
Walter Shimman, the Charging Party, testified that he
had been a member of Local 18 for some 26 years; that
commencing June 1971 he campaigned on behalf of his
brother William Shimman and Oberle who were running
against Respondent's incumbent officers; 9 and that the in-
traunion election was held in August 1971. Walter recalled
3 Ervin testified. ". I told him [Possehl] why John Frank told me I was
throwed [to the bottom of the deck or roster] and that I would remain there
10 days on a freeze and work for nobody. . .
s Ervin Shimman testified that he attended a union advisory board meeting
in November 1971, that Frank said at the meeting "that the Braun lob is now
known as the Shimman job", that Frank accused Ervin of being a "scab";
and that Frank stated that Ervin "went out there illegal to the Braun Compa-
ny and that he [Frank] will get me [Ervin] . . . before this is over." Ervin
also testified that later , at a union meeting in February 1972, Frank said:
. Shimman had never run this umon.. I pledge myself to this, they
will be destroyed Because Walter Shimman filed a Labor Board case,
I [Frank] lost an agent in the field I [Frank] had to go to Cleveland all
day over this case being filed.
9 Oberle was running against Frank and William Shimman was running
against Possehl.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that at a union meeting during July 1971, Frank stated:
... that the fellows that were running against them
[the incumbents] would be starved out of the Union
and there are ways to get them out, and they have no
right in this . . . they are no good . . . they are all liars
and they are all trying to take over this Local.
Walter Shimman recalled that Frank made like and related
statements "at several meetings" before and after the elec-
tion . Walter further testified that at a union meeting during
February or March 1971 he questioned Frank about a par-
ticular job in the area. According to Walter, Frank then
accused Walter of being a "liar" ; Frank warned: " . . . your
family are liars. I will throw you out of this meeting."
Walter Shimman testified that the Toledo district had
adopted a 50-mile rule during 1970. Under this rule, accord-
ing to Walter, if a referral was to a site " . . . over 50 miles
away it would not be held against [the registrant or member]
for turning the job down." Walter explained that during
July 1971, he had refused a referral by Local 18 to a job in
Lima, Ohio, which is some 70-75 miles distant from Tole-
do. 10 Thereafter, at the August 1971 union meeting, accord-
ing to Walter, District Representative Frank announced to
the membership present that three members (including
Walter Shimman) had been dropped to the bottom of the
deck or roster because they had two consecutive refusals.
Walter testified that at this same meeting members asked
about the 50-mile rule and he, Walter, also spoke up and
said to Frank: " . . . Lima is more than 50 miles away and
you counted it against me." Frank responded: "You are one
of the wise ones . . . you are at the bottom." Walter Shim-
man explained that prior to this meeting he had never heard
Frank read names of members dropped to the bottom of the
roster for two refusals. Further, Walter Shimman testified
that the membership in fact voted at the August 1971 meet-
ing to retain the 50-mile rule.
Walter Shimman testified that during October 1971 he
spoke with Business Manager Possehl about being dropped
to the bottom of the roster. According to Walter, Possehl
stated: "Under the 50-mile [rule] you have in this district I
don't know how John Frank had put you down." Possehl
also told Walter that he should file a grievance. Walter
advised Possehl that he had filed a grievance, but Possehl
assertedly had not seen the grievance."
10 On cross -examination, Walter Shimman acknowledged that he did not
refuse the Lima job referral because of distance . Walter explained that, as
he informed the dispatcher, the fumes and pollutants at that particular job
would irritate an existing eye and skin condition.
11 Walter Shimman 's written grievance , addressed to Respondent 's board
of review and dated August 13, 1971, states in part:
At the District 2 meeting of August 9, 1971, 1 was notified by the
chairman , Brother John Frank, that my slip in the A group of the referral
system was removed from its proper position and placed at the bottom
of the group. This was the first time that I was notified about this. The
first job , 7/12/71, was in Napoleon , Ohio. I had personal reasons for
turning it down. My second job, 7/22/7 1, was at Lima, Ohio, working
for a roofing company on a hoist . I told the dispatcher that tar and
creosote fumes would bother me.
Working around tar and creosote, my skin breaks out and my eyes get
fire red and bum . I have had both eyes operated on in hospitals. This
is why I turned the second job down. In the last two and a half years,
I have worked only 2 weeks in the Toledo area , the other jobs were more
Walter Shimman further testified that during September
1971, following the intraunion election, Frank stated to the
membership: "Losers are losers and my people will run the
union and will work and the rest of you can get out of here."
Walter recalled that later, at the February 1972 meeting,
Frank said to Walter: "You might get a couple of thousand
dollars out of this case, but what about the unemployment
that you drew? You may have to pay all that money back."
Matilda Kirchner testified that she was employed by Re-
spondent Local 18 during 1971 as dispatcher in the Toledo
district office. Kirchner explained that as part of her duties
she "followed the referral system" in dispatching the em-
ployees to work.12 Kirchner testified that during "the earlier
years" of her employment, there was nothing done about a
refusal to accept a referral to a job over 50 miles away from
Toledo; that she "just marked a refusal on the back of the
[employee's] card"; and that "the card was placed back in
the deck." However, according to Kirchner, during the last
6 months of 1971, there were assertedly "complaints" by
employees that various individuals were refusing referrals in
order to avoid undesirable jobs.
Kirchner testified that Walter Shimman, Al Beach, and
James McMahon were dropped to the bottom of the referral
register about July 1971 because of two refusals. However,
as Kirchner explained, Al Beach later explained to the dis-
trict representatives that he had refused his second referral
because he "had an asthmatic condition . . . and he could
not work in dirt ... " and Beach's refusal was excused for
this reason.13 Kirchner, who was employed by Respondent
Local 18 for some 6 years up to October or November 1971,
could recall no other employees who were dropped to the
bottom of the deck or roster. She claimed that the cards of
Walter Shimman, Al Beach, and James McMahon were
dropped about June when the Respondent's modified "re-
fusal policy" took effect.
On cross-examination, Kirchner acknowledged that prior
to May or June 1971 "when an operator refused a job for
any reason the refusal was never counted against [him]";
that this policy existed prior to May or June 1971 "[n]ot-
withstanding what may have been in the contract ... "
about consecutive refusals; and that Respondent's failure to
count the refusals "was sort of an understanding among the
operators in the district." Kirchner claimed that about June
1971 many "Group A" engineers were out of work and there
were "complaints as to how the referral system was being
run." Consequently, as Kirchner explained, following the
than 70 miles from Toledo. I will go any place in the district for work.
My union work records show this.
Please advise me of the time and place The Board of Review and
Arbitration will hear this grievance , so that I may be present to present
additional information.
In response, Frank, by letter dated August 19, 1971, cited to Walter Shimman
Respondent's rule concerning two consecutive refusals (supra, sec. A) and
informed the member , inter alia: " ... we find your grievance without merit
and that your position in the referral is proper as it stands."
12 Kirchner testified : " ... I followed the referral system , which was
registration cards that were filled out by the men. They were grouped accord-
ing to their years of experience, which was Group A, Group B, Group C and
Group D." Kirchner recalled that both Walter Shimman and Oberle , Charg-
ing Parties here, were classified in the top group, group A, at all times
material.
13 Kirchner testified that if an employee "reported that he was ill, we
marked a hold on the card . . . we would not count it as a refusal."
OPERATING ENGINEERS LOCAL 18
union 's June 1971 meeting, Frank instructed her "to put the
men down on the bottom of the deck" after their second
refusal.
Kirchner claimed that Frank told her that "everything
should be counted as a refusal regardless of whether it was
distan[t], unless they [the operators] would have a good
reason such as illness." However, as Kirchner also testified,
Walter Shimman's last refusal to accept a referral to Lima
was counted against him even though Walter told Kirchner
that "he had an eye problem and that with the dust and the
dirt he just wouldn't take a job of that type." Kirchner
asserted that she "told [Walter] all the jobs have dust and
dirt-all the road jobs-and [she] would have to refer him
over to Mr. Frank." Elsewhere in her testimony, Kirchner
acknowledged that "the only people [excluded] under this
50-mile rule were those who had good reasons for not going
more than 50 miles; . . . other than those people, if some-
one received a job outside the 50 miles, he was subject to
a refusal ...." 14 Further, Kirchner acknowledged that
prior to the incident involving Walter Shimman during July
1971, "no man had ever been dropped to the bottom of the
list for refusing a job 50 miles away from Toledo" and that
except for the Shimman incident she knows of no person
"put to the bottom of the list ... who refused jobs further
than 50 miles from Toledo ...." 15
David Zoll, a member of Local 18, testified that he at-
tended the union meeting in June 1971 and that at the
meeting Frank said: "he could starve out any of the dissi-
dents-those that opposed the incumbents . . . he could
starve them out." On cross-examination, Zoll acknowledged
that he is running and has run against the incumbents in
district 2.
Marcus Nasset, a member of Local 18, testified that he
attended the union meeting during August 1971; that he
heard Frank state to the membership at the meeting: " .. .
Walt Shimman and his entire family were no good, they are
a bunch of losers"; and that Frank also said: "Walt Shim-
man, you get the bottom of the deck for refusing two
jobs." 16 Prior to that occasion, Nasset had never heard
Frank tell members that they were "being put to the bottom
of the deck." Nasset explained that it has been the practice
in the Toledo district that an employee was not required to
take a referral to a job beyond a 50-mile radius if the em-
ployee did not want to take the job." Further, Nasset ex-
plained that at the August meeting, "It was decided to still
honor the 50-mile radius" rule and Frank agreed to do so.18
John Zemenski, a member of Local 18 for some 25 years,
testified that prior to the union meeting during August 1971,
he was passing out literature on behalf of William Shimman
14
Kirchner recalled that during her telephone conversation with Walter
Shimman concerning his second refusal, she transferred Walter Shimman's
call to Frank and Frank thereafter instructed her to put Walter on the bottom
of the deck
15
Kirchner claimed that "such refusals have been counted," although not
resulting in the loss of position on the register
16 Nasset testified that he heard Frank say at this meeting "I am in charge
of the district I am running it as I see fit If anyone doesn't like
the way I run it, let him get the hell out"
17 Nasset added that prior to 1971 the second refusal rule was not enforced
in the district.
is On cross-examination , Nasset acknowledged that he "openly supported
the candidacy of anti-incumbent members of district 2 "
905
in front of the Toledo hall. Zemenski testified: `just before
the meeting started Mr. Frank came out . . . and said, `How
is it going?' and I said, `Well, workwise it's not too good for
me' . . . His [Frank's] remarks were: `I will try to keep it
that way.' " Zemenski explained that shortly prior Walter
Shimman had gone into the hall and was "passing out litera-
ture in there." 19
Glenn W. Oberle testified that he has been a member of
Local 18 for over 26 years. He recalled that at the June 1971
meeting, following his nomination to run against Frank,
Frank said to the membership:
... we [the opposition candidates] were the enemies of
the Union and communists . . . trying to get our hands
into the money and the power of the Union. [Frank]
said we were going to be forced out of the Union .. .
he [Frank] was going to use the referral system to starve
us out of the organization and he was going to have
unity if he had to force it.20
At the July 1971 meeting, according to Oberle, Frank said
that "anybody who ran for office or supported them [the
opposition] would be starved out of the organization." Ob-
erle testified that at that or the next meeting,21 "it was decid-
ed that they would keep" the 50-mile radius rule; that
Walter Shimman said, " ... Lima is more than 50 miles
away"; and that Frank responded to Walter: "You are a
wise c- s- and you are going to the bottom." 22
Oberle testified that the union election was held in August
1971; that he came within 23 votes in Toledo distnct 2 of
incumbent John Frank although he lost the election by a
substantial margin; and that, while the votes were being
counted in Cleveland, Frank said to him: "he [Frank] was
going to pound salt up [Oberle's] ass . . . . if those guys
think they had it tough, wait until I [Frank] get back to
Toledo." Oberle also testified that following the election
Frank said to the membership: "we are going to have forced
unity and [the] people who didn't agree were going to be
forced out of the organization and that we would have unity
one way or another." Oberle recalled that Frank also re-
ferred to the opposition as the "enemies of the Union..."
and on occasion warned that "anybody who ran or support-
ed them would be starved out of the Local... .
William Shimman testified that he has been a union
member for 30 years; that at the September 1971 meeting
Frank said: "We are going to starve out the so-called reb-
els." William recalled that Frank called the opposition
19 Zemenski also testified that at the July or August meeting Frank an-
nounced that Walter Shimman "was being placed to the bottom of the deck";
that Frank "said [that] nojob would be counted as a refusal if it was 50 miles
or more [away]", and that Walter Shimman spoke up and said that his
refused job was "over 50 miles "
Zemenski also attended the September 1971 meeting where Frank assert-
edly said "If you are not for us, you are against us and if you don't like the
Union, get the hell out"
20 Oberle recalled that he had attended a meeting earlier during April or
May 1971 where Frank said "that Walter [ Shimman] was a troublemaker. .
the whole family were troublemakers and he [Frank] wasn't going to be in
when Walter called. He wasn't going to service [Walter Shimman] ... .
21 Oberle placed the meeting about July 1971
22 Oberle recalled that at a later meeting, which he placed in September
1971, a vote was taken by the membership to retain the 50-mile rule
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"communists"; Frank said: " ... he wanted no opposition
on the ballot and they would starve out insurgents." William
attended a meeting when Walter, his brother, was put to the
bottom of the deck 23
James McMahon, a business agent for Local 18, testified
as a witness for Respondent that he attended a union meet-
ing about June 1971 and that "Mr. Frank said at that time
that, because of the people unemployed, the second consec-
utive refusal men would be put to the bottom of the deck."
McMahon recalled that at the August 1971 meeting Walter
Shimman, Al Beach, and he were dropped to the bottom of
the register because of two refusals. According to McMa-
hon, Walter Shimman "said [that his refused referral] was
over the 50 mile radius, and Mr. Frank said this was not the
reason he refused the job"; "District Representative John
Frank said he looked at [Walter's] card. It wasn't because
of the 50-mile radius but because of an allergy ...." Mc-
Mahon testified that Frank asked for unity at this meeting.
McMahon denied, inter alia, hearing Frank say that the
opposition would be starved out or expelled from the union,
physical harm would come to the opposition, or there would
be like or related reprisals against the opposition. McMa-
hon recalled that at the September 1971 meeting, Frank said
"that anyone who didn't want to join the organization, that
wouldn't accept the results [of the election], could get the
hell out or he would help them...." McMahon generally
denied hearing Frank threaten reprisals against the opposi-
tion , or state that anyone would be expelled or starved out
or would suffer a financial loss because of opposition to the
incumbents.24
On cross-examination , McMahon ackowledged that dur-
ing 1971 there was a discussion at the union hall and the
members agreed to retain the 50-mile rule; 25 that Frank
told Walter Shimman "in a meeting that [his] refusal wasn't
for 50 miles but for an allergy or something"; and that when
he, McMahon, was "put to the bottom of the list. . . " both
of his refused referrals were within 50 miles of Toledo.
Local 18 's Business Manager Possehl testified as a witness
for Respondent. Possehl recalled that during October 1971
he attended an executive board meeting in Toledo. At that
meeting , according to Possehl, Ervin Shimman complained
to Possehl that he "had been mistreated by being placed to
the bottom of the list ... because of two refusals . . . he
[Ervin] was being told he would have to wait 10 days before
he could return to work and he already had waited some
period of time...." Possehl assertedly "felt that this time
should apply to the waiting time," and Possehl told Ervin
that he would "check" on his complaint and "refer back to
him." 26
Possehl testified that he spoke to Charging Party Walter
23 William acknowledged that he lost in the last election by some 3,000
votes, that he has opposed the incumbents for years ; and that he is presently
running against the incumbents
24 McMahon testified that Frank "mentioned Yablonski of the Mine
Workers-how some things happened in some other Locals that would not
happen here and that he would never affect the livelihood of any other
man-but he never mentioned starving out anyone "
25 McMahon could not "pin that date down "
26 Possehl explained " I told him there was a difference of opinion
as to whether there would be another 10 days but that I didn't feel that way
and I felt that after I talked to John [Frank], I could get it corrected "
Shimman that same day. According to Possehl , " . . . He
[Walter] too was complaining about being dropped in the
register . . . one refusal that he felt was not proper was .. .
to a job that entailed fumes . . . he was allergic to fumes."
Possehl claimed that nothing else was said to Walter Shim-
man.
On cross-examination, Possehl acknowledged that, in Er-
vin Shimman's case , District Representative Frank took the
"wrong position" and "he was corrected." In addition, Pos-
sehl claimed that he knows nothing about district 2's 50-
mile rule. Possehl acknowledged that an employee' s illness
"at times" has been considered good cause under the second
refusal provision in the contract. Possehl claimed that he
first heard of Walter Shimman's illness at the October 1971
advisory board meeting, that he never saw Walter' s griev-
ance (see supra, fn. 11) and that "to the best of [his] recollec-
tion [he did] not know anything about a grievance."
District Representative John Frank testified that prior to
May or June 1971, "we had not been enforcing the two
refusals regulation"; that the "50-mile radius rule is not part
of the referral system"; that he assertedly had received com-
plaints that members were refusing jobs in the hope of get-
ting better referrals; and that, as a result, about May or June
1971: " ... We announced that two refusals would be
strictly enforced as it was written and that we were going on
record with the membership as of that date so they would
know ...." 27 Frank testified that about July 1971 dis-
patcher Kirchner informed him that Walter Shimman "had
made his second refusal and was objecting to it being con-
sidered a refusal"; that Frank spoke with Walter and ap-
prised Walter that it "was a refusal and would be considered
a refusal ... "; and that Walter did claim that "he was
allergic to [tar] fumes . . .."
Frank testified that at the August 1971 meeting he an-
nounced that Beach, Walter Shimman, James McMahon,
and another person were dropped to the bottom of the
referral register. According to Frank, Walter Shimman
claimed that his refused job was beyond 50 miles and Frank
responded, "that this was not involved in this case and he
was dropped to the bottom of the deck anyway." 28
Frank testified that the intraunion election was held in
August 1971; that at the September 1971 meeting he asked
the members to "unite, coming together as members, work-
ing against our common enemies . . . " and that: " . . . I
added further that anyone who didn't believe that they
could do this was welcome to get out and that I would help
them to get out." Thereafter during October 1971, Frank
testified that he telephoned Ervin Shimman "to ask him
[Ervin] if he had just cause why he should not be placed to
the bottom of the deck.,, 29 Frank claimed that Ervin Shim-
man "offered no valid reason why he should not ... " be
dropped to the bottom of the register.30 Frank acknowl-
27 When asked when this occurred, Frank testified. "This was in June-
21 or June-somewhere in that time of 1971 "Ma
2 Frank recalled that earlier that day he saw Zemenski passing out election
literature According to Frank, he only said to Zemenskr "John are things
that bad that you have to be peddling papers?" Frank denied other state-
ments attributed to him by Zemenski.
29 Frank noted that the "referral system does not require that I notify
someone when he is placed at the bottom of the deck but I felt I should notify
him . "
30 Frank asserted that even though Ervin was picketing for the union
OPERATING ENGINEERS LOCAL 18 907
edged that Possehl "felt that [his interpretation of the 10-
day requirement in the case of Ervin Shimman] was not a
reasonable position . . . and [Frank] honored it." 31
On cross-examination, Frank acknowledged that Walter
Shimman had explained to Frank that "he had surgery a
couple of times" on his eyes; and that ordinarily a refusal
to accept a referral because an employee "has the flu .. .
is not counted against him," but in Walter Shimman's case
a refusal based on "surgery . . . bothered by working condi-
tions . . . would be counted ...." Frank acknowledged
that when he put Walter Shimman to the bottom of the
register he knew that his second refusal was to a job about
65-75 miles distant from Toledo. However, Frank had
claimed in his affidavit given to a Board agent: " ... Both
jobs involved in the case of Walter Shimman were in the
50-mile radius...." Frank testified that he had since "re-
searched the matter and found out otherwise." Frank ac-
knowledged that district 2 still has the 50-mile rule.32
On this record (and see sec. C, infra), I credit the testimo-
ny summarized above of Walter Shimman, William Shim-
man, Ervin Shimman, David Zoll, Marcus Nasset, John
Zemenski, and Glenn Oberle. Their testimony as stated
above is in large part mutually corroborative. Moreover, I
note that the testimony of Matilda Kirchner, John Frank,
John Possehl, and James McMahon substantiates in large
part the testimony of the foregoing witnesses. And, relying
upon demeanor, I find and conclude that the foregoing
testimony of Walter Shimman, Ervin Shimman, William
Shimman, David Zoll, Marcus Nasset, John Zemenski, and
Glenn Oberle is a reasonable, complete and truthful ac-
count of the particular events stated above. Further, insofar
as the testimony of Matilda Kirchner, John Frank, John
Possehl, and James McMahon conflicts with the above, I
am persuaded that their testimony is untrustworthy and
unreliable.
Frank asked: "Was I [Berryessa] aware we have been hav-
ing a problem at the job site?" Berryessa replied: "I [Ber-
ryessa] told him [Frank] I was aware of it but not the
specifics of it, and I repeated my request for Mr. Oberle."
Berryessa testified that Frank then said: " . . . we couldn't
have Mr. Oberle, but any other operator off the referral list
33
On cross-examination, Berryessa claimed that he never
followed up his telephonic request for Oberle by sending a
letter to the Union because, "when [Frank] refused, I [Ber-
ryessa] said don't send anybody else until I get back with
you . . . . When I relayed the information to my superin-
tendent, they [Braun Company] decided not to man the
piece of equipment but to go ahead and use the subcontrac-
tor......
The circumstances attending Oberle's candidacy against
Frank for union office during 1971 are discussed in sec. B,
supra. Oberle further testified that about October 5, 1971, he
was interviewed by George Sageman, general superinten-
dent for Braun Company, for the job of master mechanic
at the Braun site in the area. According to Oberle , Sageman
said: "he [Sageman] would need a master mechanic as the
first man on the job. He said if he could get someone, he
could go ahead and have a machine shop built to [the master
mechanic's] specifications and get the thing set up the way
he wanted it...." Oberle further testified that a few days
following the above interview with Sageman,
... Sageman called me [Oberle] and he said that John
Frank had called him to see if he had made up his
mind, whom he wanted for master mechanic... .
When [Sageman] said [to Frank] he had picked Oberle,
John Frank became outraged and said some very terri-
ble things to [Sageman]. . . . He [Sageman] said [to
Oberle] he had never been talked to that way in his life,
and he was going to get hold of his labor people ... .
C. The Evidence Pertaining to Respondent's
Treatment of Glenn W. Oberle
Patrick Berryessa testified that he is employed by C. F.
Braun Company as office manager; that about November
23 or 25, 1971, he telephoned the dispatcher of Respondent
Local 18 and "told her that he would like to have Mr. Oberle
as an operator for a Galion crane" or cherrypicker at their
site in the Toledo area; and that the dispatcher asked Ber-
ryessa "to wait a minute" and then transferred the call to
District Representative Frank. According to Berryessa,
dunng his second refusal, he could have left the picket line for the referral
31 Frank generally denied the threats and related statements attributed to
him by the witnesses for General Counsel as stated above and the pertinent
allegations of the complaints , however, Frank acknowledged saying in the
presence of Marcus Nasset "that whichever side won the election would
throw the other side out and get down to running the Union " When asked.
"Throw them out of what"" Frank claimed "Out of power," although he did
not use that "terminology "
32 Frank claimed that a refusal is not counted when the employee states
that he does not want to go beyond 50 miles In Frank's affidavit to a Board
agent, he stated "My understanding with the membership in District 2, job
offers around a 50-mile radius may be refused without constituting a refusal "
Frank also claimed that several employees were put to the bottom of the
register for refusing jobs beyond 50 miles, no union records were adduced
to substantiate this assertion
According to Oberle, he asked Sageman to call Possehl to
"clear this up"; Sageman declined. Oberle then asked Sage-
man to make a written request for Oberle; Sageman replied:
"I cannot do that either."
Oberle testified that about one month later, during No-
vember 1971, Oberle told Frank at a union executive board
meeting that he wanted the Braun master mechanic's job
and that Frank refused. Frank warned that "Erv Shimman
and [Oberle] were going to oblivion." Oberle testified that
he spoke to Possehl that same day. According to Oberle, he
related his complaint to Possehl and Possehl agreed that
Oberle "should have been sent on that job." 34
33 Berryessa explained that under the operative collective-bargaining
agreement (supra, sec. A), the employer could request Oberle who was a class
"A" operator; that prior to this occasion Berryessa was never told that he
could not request an operator by name, and that ordinarily when Berryessa
called Local 18 to request an operator, he spoke only with the dispatcher,
however, on and after the above incident in November Berryessa was "direct-
ed to Mr. Frank" by the operator or dispatcher who received his call.
34 Oberle testified that after October 1971, Local 18 called Oberle for work
quite often and "each time [Oberle] told the dispatcher that [he] would
appreciate if she didn't call [him] because [he] was waiting to see about the
Braun job " On one such occasion, Frank warned Oberle , " ... you are
going to the bottom of the list" Oberle was placed to the bottom of the
register And, during January 1972, Frank warned Oberle " ... if this [the
Continued
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oberle testified that during November 1971, Sageman
called Oberle at his home and apprised Oberle that the
employer had an available cherrypicker's job at the site;
Sageman said: ". . . he would call the Union and he would
request [Oberle] for that position." According to Oberle,
Sageman called Oberle shortly thereafter and said: "I'm
terribly sorry but the Union will not honor a request for
you." Oberle recalled that, subsequently, at the union meet-
ing during December 1971, Frank said in the presence of the
membership: "he [Frank] would not send [Oberle] on the
cherry picker for the simple reason they [Braun Company]
would make [him] the master mechanic and [he] would re-
quest all of [his] friends ...."
Oberle testified that he later spoke with Frank about his
pending grievance filed with Respondent Local 18. Frank
informed Oberle, as Oberle testified: " ... [Oberle] would
not go to the Braun Company as a master mechanic ... .
[Oberle's] grievance was no good because they had 40 or 60
cases before the Labor Board and have never lost one be-
cause they could not get a superintendent to testify . . . and
he [Frank] said he had sent [Oberle] a letter which had
dissolved [his] grievance anyway...." 35 Frank added:
. . by running against him, [Oberle] had upset or un-
sprung his apple cart." Frank criticized Oberle for being
"tangled up" with the Shimman brothers. In addition,
Frank told Oberle that "George Sageman has been told to
keep his God damn nose out of Union business... .
[Frank] had taken it to high authority ..." in Braun Com-
pany.
Oberle testified that during the past few weeks (preceding
this hearing on the pending complaints) Braun Company
sent Oberle a letter requesting him as master mechanic for
job at Braun] doesn't come through, you will go down at the bottom of the
list again and you won't help anybody " Oberle replied that he was
"still waiting to see what Cleveland would do about that Braun Job."
35 By letter dated November 26, 1971, Oberle notified Frank, in part, as
follows
Attached please find Grievance, in letter form , which I am submitting
under Article III "Referral System " of the Ohio State Building Con-
struction Agreement with effective date of June 1, 1970 through April
30, 1972. I did not complete Form # 10 as it is an obsolete form
Please forward the proper copy to each of the following Board of
Review and Arbitration , Union Headquarters, the employer and retain
the District Office copy I have, of course , kept the original for my
records Kindly notify me of the time and place of the hearing by the
Board of Review and Arbitration covering this Grievance so that I may
be in attendance with counsel and witnesses to present additional infor-
mation
The enclosed grievance, dated November 26, 1971 , and addressed to the
board of review , recited inter alia
I On or about August 27, 1971, 1 registered in the District #2 Local
# 18 Office in the group A category
2 I assert that the provisions of the referral agreement , as applied to
my case, were not followed because After I had been registered, the
required ten (10) days, on two different occasions telephone requests
have been made by the C F Braun and Company (Job Site-Sun Oil
Co, Toledo, Ohio) for my services with the understanding the required
letter of request would be mailed to the District #2 Office On both
occasions the Union Officials refused to honor the request even though
provisions for "requests" are provided for in Subdivision 29, paragraph
I of the aforementioned Referral System
3 1 continue to be so registered and available for employment
By letter dated December 8, 1971, Frank notified Oberle that he failed to
"complete form 10" and enclosed the "appropriate forms on which [Oberlel
may file [his] charges properly "
the Toledo job. Oberle, as he testified, telephoned Frank
about this. Frank assertedly told Oberle:
... He [Frank] said that he had been notified by the
attorneys that he could not stop me in any way from
going into that job as a master mechanic. . . . He said
the master mechanic was not covered by the referral
.... He said I could withdraw my case. . . . He said
if I went through with this hearing, it would open [up]
all this stuff and they would find out that . . . any
[person] could go out and be a master mechanic... .
On cross-examination, Oberle as noted above acknowl-
edged his strong hostility and opposition toward Frank and
the incumbent leadership of Local 18. Oberle, at the time he
testified, was working as master mechanic for Braun Com-
pany. Oberle explained that a master mechanic is the "chief
operating engineer on a job" similar to a "carpenter's fore-
man" or "electrician's foreman"; that he has "authority
over the other operating engineers on the job"; that he
directs the work of the operating engineers and can send
them home if they do not satisfy his standards; that he can
lay off and discipline operating engineers; and that "the
master mechanic is responsible to management." 36
The evidence pertaining to Respondent's treatment of
Walter Shimman is summarized supra, sec. B . Walter Shim-
man also testified that he attended a union meeting during
the fall of 1971 and heard Frank tell the members: "The
Braun Company called me [Frank] and asked for Glenn
Oberle as master mechanic, and as long as I [Frank] am
here, he [Oberle] will never get sent over to that Company."
Walter Shimman also attended the union meeting of July
10, 1972, and heard Frank fault Oberle for assertedly having
been hired "off the bank" by Braun Company.
John Zemenski, whose testimony is summarized above,
also related that at the November 1971 meeting, Frank
called Braun Company "a Union busting" employer and
said: " ... Bud Oberle, so long as I am head of this district,
you will never be sent out to the Braun Co. as a master
mechanic...." Zemenski also heard Frank inform the
membership on July 10, 1972, that "Bud Oberle was not
dispatched out of this hall to Braun Company. He hired off
the bank." 37
Ervin Shimman testified (and see supra, sec. B) that at the
October 1971 meeting Frank stated that Braun Company
36 Oberle also testified that at the union meeting of July 10, 1972, while this
hearing was in recess for the evening, Frank asked Oberle to explain why he
had "hired off the bank" and thus "made a fool out of [him]" because he
could not answer, under instructions from counsel According to Oberle,
Frank told the membership that Oberle had "hired off the bank" and thus
evaded the union's referral system. Frank, at the same time , accused Braun
Company of being "Union busters "
Further, Oberle explained that had waited over 5 months to file the pend-
ing unfair labor practice charge because he assertedly was required to wait
under the union's constitution and bylaws
37 Marcus Nasset, whose testimony is discussed above, recalled that he
heard Frank say at the November 1971 meeting that Frank would not send
Oberle to the Braun Company Job Raymond Rojek testified that he heard
Frank say at or about the December 1971 meeting that he "was not going
to refer Glenn Oberle to this Company . " And, according to Rojek, at
the July 10, 1972, meeting, Frank said Oberle "was not put on the Braun
Job by the Union he hired off the bank. . "
OPERATING ENGINEERS LOCAL 18 909
had "requested Bud Oberle for a master mechanic ... "
and " ... I [Frank] told [the representative of Braun Com-
pany] f- y-. You will never get Oberle and you will get
nothing but s-." 38
George Sageman, superintendent for Braun Company,
testified as a witness for Respondent. Sageman testified that
interviews were conducted by him for a master mechanic at
Braun's Toledo site about the first week of October 1971.
Sageman claimed, however, that his employer did not need
a master mechanic on that job at the time.39 Sageman ex-
plained his purpose in conducting interviews for a master
mechanic during October 1971, as follows:
... Well, I knew eventually I would have to have a
master mechanic; so, I was interested in finding people
with the qualifications.
If they had them and were able to operate the equip-
ment, I would hire them with the Union's agreement
and put them on the job as operators, and when the
time came for a master mechanic, I would elevate
them 40
Sageman testified that during October 1971 his employer
"could have used a cherry picker operator [like Oberle], but
[he] chose to hire a crane operator and an oiler ... "
instead41
On cross-examination, Sageman explained that Respon-
dent Local 18 sent three employees to him for interviews as
master mechanic; that Sageman apprised business agent
Bowes that he wanted to interview more men; that Bowes
asked Sageman if he was "hunting for someone" in particu-
lar; and that Sageman then named three persons including
Oberle. Thereafter, according to Sageman, Al Beach, Bud
Oberle, and Frank Frantz were interviewed by Sageman.
Following the interviews, Sageman informed Frank that
Oberle "was the most qualified one of the applicants for the
position of master mechanic." Sageman testified that Frank
then became "very angry." Frank assertedly "said he didn't
think he would give me Mr. Oberle" and that if Sageman
"continued to ask for Mr. Oberle . .. [he] would get .. .
the dirty end of the stick." According to Sageman, "I con-
cluded that I would never get Oberle."
Sageman testified on cross-examination that subsequent-
ly, about November 1971, "we felt we could use a cherry
picker operator" and therefore he instructed Berryessa to
request Oberle from Local 18. Berryessa later reported back
to Sageman that "he couldn't get" Oberle for cherrypicker
operator. Sageman further testified that "shortly after we
38 Ervin Shimman also recalled that at the December 1971 meeting Frank
stated that the "grievances [involved herein] were filed" and that Oberle "was
a no good son of a bitch "
39 Sageman testified that Respondent's business agent Robert Bowes
"called [Sageman] earlier to ask when [Braun Co was] going to hire people
and [Sageman] told him that we would like to interview someone of a master
mechanic quality we would probably hire an operator or two shortly"
40 Sageman testified that the first time he used a master mechanic on the
particular job was within the last 3 weeks prior to this hearing
41 Sageman explained that he "could have done part of the work with a
cherry picker operator " like Oberle, but not all of it and assertedly he
"chose cranes because they are more reasonable." Sageman claimed that he
later needed a cherrypicker operator during early February 1972.
were down here in the courtroom several weeks ago ... " 42
he first "found out" that he did not have to hire a master
mechanic from the union hall and on the next day wrote
Oberle a letter requesting Oberle for the master mechanic's
position 43
Jack Frantz, a member of Local 18, testified as a witness
for Respondent that he was interviewed by Sageman during
early October 1971 for a master mechanic's job; that Sage-
man said "that the job wasn't available right at the present
time, but as soon as there were enough operators to call a
master mechanic, he would let us know"; and that no specif-
ic date for hiring a master mechanic was discussed at the
interview.44
James McMahon, whose testimony is summarized in part
above, testified for Respondent that at the October 1971
union meeting Frank said "that he would not recommend
Bud Oberle or any man to that job [as master mechanic]
under the Iron Worker referral." 45 McMahon, as noted
above, denied hearing Frank threaten members at meetings.
McMahon noted that paragraph 83, p. 32, of the collective-
bargaining agreement provides, inter alia: " . . . if a con-
tractor has eight or more operating engineers ... employed
by him on any one job, he shall employ a master mechanic
on that job ... " who "shall be answerable to the employer
and must be a member of" the Respondent.
John Possehl, whose testimony is discussed above, stated
that during the October 1971 meeting Oberle related his
grievance to Possehl. Possehl assertedly told Oberle that he
"would check into his." Possehl denied telling Oberle that
Frank was wrong or that "he could go to that job without
a referral from Mr. Frank." However, Possehl acknowl-
42 This case was set for hearing some 3 weeks earlier, about June 13, and
continued to a new date
43 Sageman added, in part "Well the thing is you try to get along with
people . you normally go to the Union hall anyway " Sageman acknowl-
edged that he "would have tried" to promote Oberle to master mechanic from
cherrypicker operator.
Sageman recalled that about October 1971, he "was instructed [by his
home office] not to write a letter [to the Union] asking for people by name "
Sageman claimed that his employer did not need a master mechanic until
recently, he also acknowledged in his affidavit to a Board agent on June 9,
1972
At the present time, I have a position of master mechanic available
I would like to have Glenn Oberle for the job. However, I do not have
the authority to request him at the present time My California office
called me some time ago and instructed me to cease requesting operators
by name because it irritated the Union
Sageman also claimed that his employer cannot pay for a master mechanic
under the collective-bargaining agreement until there are eight operators on
the job and this event did not occur prior to his hiring of Oberle as master
mechanic in June 1972. Sageman also testified that he hired Oberle "some
time in June [he] might have hired [Oberle] a week earlier but [the
employer] held off and slowed the job down slightly until this thing was more
or less settled " Sageman acknowledged, however, that he "had one of [his]
own people substituting for a while" as master mechanic about October 1971.
44 Daniel Shoemaker, a member of Local 18, testified for Respondent that
at the July 10, 1972, meeting, ". . it came up in the progress report on the
jobs in the area . that there was a master mechanic now at the Braun job
hired by the Braun Co ", Frank noted that Oberle was present and invited
him to "comment", Oberle declined because of this hearing, and Frank
warned the members "to watch Braun " During the meeting, Oberle was
accused of having "hired off the bank" by Ken Delaney, a member of the
executive board for Local 18
45 McMahon explained that "the man wouldn't come off the top of the
deck" under the "Iron Worker referral" system
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edged that the position of "master mechanic is without the
referral" system, although the union "tr[ies] to get the em-
ployer to call the hall for the men." Possehl acknowledged
that usually Respondent recommends a master mechanic to
an employer at the prejob conference and the employer
ordinarily accepts the recommendation. Possehl testified:
. . We like a fellow to be placed [on the job] not as a
master mechanic because we have an 8-man requirement,
but we like to suggest that he be hired in some capacity
.... He is then on the payroll and can be switched."
Possehl acknowledged that Frank told him that "Oberle had
been requested or would be requested as a master mechanic
when [Braun Co.] needed one." Further, Possehl explained
the seriousness of accusing a member of "hiring off the
bank" (or evading the referral system) by acknowledging
that if a member of Local 18 under the referral system hires
off the bank, "the Union will probably take some action
against him." 46
John Frank's testimony is summarized above. Frank also
testified that there had been a prejob conference at the
Braun Company Toledo site during September 1971; that
interviews for a master mechanic were conducted during
October 1971; that Frank thereafter told the membership
that it appeared that Oberle would be Braun's "choice" for
master mechanic; and that Frank also told the membership
that he "would not send Mr. Oberle or any of those that
were interviewed . . . under the terms of the Iron Worker
referral system." Frank acknowledged that during October
1971 he telephoned the labor relations representative of
Braun Company and asked him "not to use his option of
request in employing people because it was causing jealousy
and dissension and unfairness...." Frank acknowledged
that earlier that month he spoke on the telephone with
Sageman. Sageman assertedly indicated to Frank that Ob-
erle was the employer's preference for master mechanic and
Frank strongly objected, using profanity. Frank generally
denied the threats and related statements attributed to him
by the witnesses as stated above and alleged in the com-
plaints. Frank also recalled that Berryessa had asked him in
November 1971, "would it be possible to have Bud Oberle"
as a cherrypicker operator. According to Frank, he "sug-
gest[ed] that [Berryessa] check back with [his] higher author-
ities before placing an order for this man." Frank, however,
denied saying that he would not send Oberle. Further,
Frank acknowledged that he placed Oberle's name to the
bottom of the referral roster for two refusals during 1972.
Frank also acknowledged that he invited Oberle to com-
ment at the meeting of July 10, 1972, to having been "hired
directly" by the Braun Company 47
Frank claimed that Berryessa's statement to him during
November 1971 that "he [Berryessa] had a need for a cherry
picker for two days and could he have Bud Oberle" is not
46 Ray Frankhouse ; business agent for Local 18, testified that he spoke to
Oberle during April 1972 about "a terrible mistake" Oberle was making or
might make . Frankhouse tried to get Oberle "to reconsider something. . ."
but Oberle refused in order "to teach John Frank a lesson." Frankhouse
claimed that he was unaware that Oberle had filed an unfair labor practice
charge against the Union prior to his conversation with Oberle.
47 Frank testified that there are now about 17 operating engineers at the
Braun job and that the employer did not employ 8 operators prior to June
1972.
a sufficient "request" for an employee under the referral
system. Frank claimed that if Oberle "had been properly
requested, he would have been sent" to Braun Company in
October or November 1971. Frank acknowledged that a
"request" may be oral; no letter is necessary. Frank ac-
knowledged that Sageman expressed his preference for Ob-
erle as master mechanic following the interviews; that
Frank had recommended another Local 18 member; and
that, as Frank testified, " . . . I objected to Mr. Sageman's
preference for selecting people by name ...." Frank ad-
mittedly said to Sageman, after Sageman named Oberle as
his preference, "f- y-." Frank agreed that "most people
who are upgraded [by employers] to master mechanic are
people who are initially referred" by him.
I credit the testimony summarized above of Patrick Ber-
ryessa, Glenn Oberle, Walter and Ervin Shimman, Marcus
Nasset, and Raymond Rojek. Their testimony is in part
mutually corroborative and substantiated by the testimony
of George Sageman , Jack Frantz, Daniel Shoemaker, John
Possehl, Frankhouse and John Frank. In addition, relying
upon demeanor, I find and conclude that the testimony of
Berryessa, Oberle, Walter and Ervin Shimman, Nasset, and
Rojek is a reliable and trustworthy account of the events
related by them and stated above. Insofar as the testimony
of Sageman , Frantz, Frankhouse, Shoemaker, Possehl, and
Frank conflicts with the testimony of Berryessa, Oberle,
Walter and Ervin Shimman, Marcus Nasset, and Raymond
Rojek, I find that the testimony of the former witnesses is
unreliable and untrustworthy.
III. DISCUSSION
"It is settled law that a labor organization which under-
takes to operate a hiring hall pursuant to contract or other
arrangement with employers as the exclusive source of re-
cruitment of employees is obligated to refer job applicants
without regard to their union . . . loyalty or lack of it...."
International Union of Operating Engineers, Local 406, 189
NLRB 225 (and cases cited). It is also settled that "the
activities of employees . . . to oust the incumbent union
leadership and elect new union officers in a forthcoming
union election are concerted activities protected by Section
7 of the Act. . . ." Local Union No. 18, International Union
of Operating Engineers, 141 NLRB 512, 518-521 (and cases
cited), enfd. C.A. 6, 1965 (not published). And see Rust
Engineering Co. v. N.L.R.B., 445 F.2d 172 (C.A. 6, 1971).
Accordingly, a union violates Section 8(b)(2) and 8(b)(1)(A)
by refusing to refer or otherwise causing an employer to
discriminate against an employee because he has engaged
in the foregoing protected activities.48 And, Section
8(b)(1)(A) makes it an unfair labor practice for a union to
restrain or coerce an employee in the exercise of his Section
7 rights (Ibid.)
48 Of course, an express demand by a union that an employer discriminate
against an employee is not required in order to find a violation of Sec. 8(b)(2).
Conduct of union representatives which is "tantamount to a request to dis-
criminate with respect to the terms of" an individual's employment and
"reasonably calculated to bring about that result" violates the Act. N.L.R.B.
v. Miami Valley Carpenters District Council, 297 F.2d 920,921 (C.A. 6, 1962).
OPERATING ENGINEERS LOCAL 18 911
A. Respondent's Discriminatory Treatment
of Walter Shimman
As Respondent acknowledges, "For many years the lead-
ership of the `anti-incumbents' in Local 18 has been in the
hands of the Shimman brothers. . . ;' And, as found supra,
sec. II,B, District Representative John Frank urged Ervin
Shimman during June 1971 to run for the Union's advisory
board with the "present people . . . in office." However,
Ervin Shimman refused and Frank threatened to pull Ervin
Shimman off of his present job. Ervin Shimman credibly
testified that Frank subsequently dropped him to the bot-
tom of the referral register because he had assertedly re-
fused two referrals and, at the same time, threatened "to
starve [Ervin Shimman] out" by "holding [him] in the deck
and not letting him go to work for nobody." However, Ervin
Shimman complained about Frank's conduct to Business
Manager John Possehl and Frank's action "was corrected."
Thereafter, Frank faulted Ervin Shimman for having com-
plained to Possehl and again threatened Ervin Shimman:
. . I will get you . . . I will really get you if you go to work
there," referring to the Braun Company construction site 49
Walter Shimman, the Charging Party herein, encountered
similar resistance from Frank. Thus, as the credited testimo-
ny shows (supra, sec. II ,B), Frank repeatedly warned the
union membership during and after July 1971 "that the
fellows that were running against [the incumbents] would be
starved out of the Union ...." 50 Union member David
Zoll credibly testified that Frank threatened at the June
1971 union meeting that "he could starve out any of the
dissidents-those that opposed the incumbents ... .
Union member Marcus Nasset also heard Frank openly
fault Walter Shimman's "entire family [as] no good..."
And union member Glenn Oberle credibly testified that
after he had been nominated to run against incumbent Pos-
sehl, Frank told the membership that the opposition candi-
dates were "the enemies of the Union" and "communists"
and he, Frank, "was going to use the referral system to
starve [them] out of the organization . . . ." And, during
August 1971, while the votes in the union election were
being counted, Frank warned Oberle that the "people who
didn't agree" with him were going to be "forced out of the
organization"-"anybody who ran or supported them
would be starved out of the Local ...."
As found supra, Walter Shimman refused a referral to a
job in Lima, Ohio, during July 1971 because the particular
job required working around tar fumes. He explained to
Respondent's representatives that he had an allergy to these
pollutants which seriously irritated his eyes and skin and,
previously, he had had eye surgery. Frank, although in-
formed of the reasons for Walter Shimman's refusal, direct-
ed dispatcher Kirchner to count the refusal as a second
49 Ervin Shimman credibly testified that he subsequently attended an advi-
sory board meeting where Frank said "that the Braun job is now known as
the Shimman job"; that Ervin Shimman went to that job illegally; and that
Frank "will get [Ervin] ... before this is over." Ervin Shimman credibly
testified that as late as February 1972, Frank. stated at a union meeting;
. I pledge myself to this, they [the Shimmans ] will be destroyed," re-
ferring also to Walter Shimman 's unfair labor practice charge filed with
the Board.
50 Walter's brother, William , was then running against incumbent Possehl.
Walter actively campaigned on behalf of William.
refusal and drop Walter Shimman to the bottom of the
register. In the past, district 2 had been lax in enforcing the
"second consecutive refusal" provision contained in its col-
lective-bargaining agreement. And, medical excuses for re-
fusing referrals had been and were accepted by district
representatives." Moreover, district 2 also had a 50-mile
radius rule which permitted a member to refuse a referral
more than 50 miles away from Toledo. The particular job
to which Walter Shimman had been referred in Lima was
some 65-75 miles away from Toledo.
Nevertheless, at the August 1971 meeting, Frank read off,
inter alia, the name of Walter Shimman as being dropped
to the bottom of the register because of a second refusal.
The membership agreed to retain the 50-mile radius rule
and Walter cited this rule to Frank at the meeting as an
additional reason for excusing his second refusal. Frank
ignored this rule, cursing at Walter Shimman. As Frank
testified: " . . . he [Walter Shimman] was dropped to the
bottom of the deck anyway." Union dispatcher Kirchner
could recall no other union member dropped to the bottom
of the register for refusing a job more than 50 miles away.
And, although counsel for Respondent argues in his brief
that "others had refusals counted against them on jobs lo-
cated more than 50 miles away from their homes," the credi-
ble testimony or evidence of record does not support this
assertion.
On this record, I find and conclude that Respondent
Local 18 dropped Walter Shimman from his proper place
in the referral register on July 22, 1971, to the bottom of the
register in retaliation against Walter Shimman, and his fam-
ily, for opposing the incumbent union leadership during the
1971 intraunion election. Respondent argues that Walter
Shimman was dropped in the register because he refused "to
accept a valid job referral" and his "refusal was for other
reasons than distance." However, I find and conclude that
Respondent's asserted reasons for its unusual treatment of
Walter Shimman are pretextual and that, instead,
Respondent's real reason for dropping Walter Shimman in
the register was, as stated above, his opposition to the in-
cumbent union leadership. I find and conclude that Re-
spondent thereby violated Section 8(b)(2) and 8(b)(1)(A) of
the Act.
B. Respondent's Discriminatory Treatment
of Glenn Oberle
As found supra, sec. II ,B and C, Glenn Oberle ran against
John Frank during the August 1971 intraunion election.
Frank warned the membership, inter alia, that "the fellows
that were running against them . . . would be starved out
of the Union"; "there are ways to get them out ... "; "he
could starve out any of the dissidents-those that opposed
the incumbents ... "; the opposition candidates "were the
enemies of the union and communists. . . "; "he was going
to use the referral system to starve [the opposition] out of
the organization . . . "; and "anybody who ran for office
or supported them [the opposition] would be starved out of
the organization." During August, while the votes were
51 Thus, for example , Al Beach's asthmatic condition was accepted as a
sufficient excuse for his second refusal. "Flu" was also regarded as an accept-
able excuse.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being tallied in Cleveland, Frank admonished Oberle: "he
[Frank] was going to pound salt up [Oberle' s] ass, . . . if
those guys think they had it tough, wait until I [Frank] get
back to Toledo." Frank also threatened: " .. . the people
who didn't agree were going to be forced out of the organi-
zation . . . .
Frank's treatment of Walter Shimman during July and
August and his treatment of Ervin Shimman during October
1971 is discussed above. Frank similarly retaliated against
Glenn Oberle. Thus, as found supra, sec. II,C, Patrick Ber-
ryessa, office manager for Braun Company, called
Respondent's dispatcher about November 23, 1971, and
requested the referral of Oberle as a cherrypicker operator
on the employer's Toledo job. Berryessa credibly testified
that Frank got on the telephone and told Berryessa that he
"couldn't have Mr. Oberle... " however, Local 18 would
send "any other operator off the referral list ...." As a
result, Braun Company "decided not to man the piece of
equipment but [instead] to go ahead and use the subcontrac-
tor ...." And, as Oberle credibly testified, Frank in-
formed the Union membership: "he [Frank] would not send
[Oberle] on the cherry picker for the simple reason they
[Braun Company] would make [Oberle] the master mechan-
ic and [Oberle] would request all of [his] friends 52
Frank thereafter repeatedly told the membership that he
was not going to refer Oberle to the Braun job.
Under these circumstances, I find and conclude that
Frank refused to refer Oberle to the Braun Company job on
November 23, 1971, in retaliation against Oberle for having
run against Frank in the recent intraunion election. I do not
credit and reject as pretextual Frank's assertion that he
would have referred Oberle as a cherrypicker operator dur-
ing November 1971 if a sufficient "request" for Oberle had
been made. I find and conclude that Respondent's refusal
to refer Oberle on November 23, 1971, was discriminatonly
motivated in violation of Section 8(b)(2) and 8(b)(1)(A) of
the Act.
The complaint further alleges that Respondent also vio-
lated Section 8(b)(2) and 8(b)(1)(A) of the Act by refusing
to refer Oberle to Braun Company as a master mechanic
about October 8, 1971. The credited evidence of record
shows that Frank-in refusing to refer Oberle to the Braun
Company site as a machine operator-was concerned that
Oberle would be promoted by the employer from machine
operator to the position of master mechanic. Thus, as found
supra, during early October 1971 Braun Company Superin-
tendent George Sageman interviewed a number of appli-
cants for the position of master mechanic. The applicants
had been sent to Sageman by Respondent. Sageman ex-
plained: " . . . I knew eventually I would have to have a
master mechanic; so, I was interested in finding people with
the qualifications. If they had them and were able to operate
the equipment, I would hire them with the Union's agree-
52 About this same time, Frank communicated directly with the labor
relations representative of Braun, urging him "not to use his option of request
in employing people " as provided in the collective- bargaining agree-
ment Braun Company thereafter instructed its superintendent , Sageman, "to
cease requesting operators by name " Sageman testified that about
November 1971 "we felt we could use a cherry picker operator" and request-
ed Oberle, however, Berryessa reported to Sageman that he "couldn't get"
Oberle for cherrypicker operator
ment and put them on the job as operators, and when the
time came for a master mechanic I would elevate them." 53
Following these interviews during early October, Sageman
informed Frank that Oberle "was the most qualified one of
the applicants for the position of master mechanic." In re-
sponse, Frank became angry, cursed at Sageman and threat-
ened Sageman with the "dirty end of the stick" if Sageman
"continued to ask" for Oberle. As a consequence, Sageman
notified Oberle that Frank had "become outraged and said
some very terrible things" to Sageman after he, Sageman,
told Frank that "he had picked Oberle ... .
And, Walter Shimman credibly testified that Frank, dur-
ing the fall of 1971, told the union membership: "The Braun
Company called me [Frank] and asked for Oberle as master
mechanic, and as long as I [Frank] am here, he [Oberle] will
never get sent over to that Company." Members Zemenski,
Nasset, and Rojek heard similar and related statements
from Frank during November and December 1971. Ervin
Shimman credibly testified that he heard Frank state to the
membership: " ... I [Frank] told [the representative of
Braun] f- y-. You will never get Oberle and you will get
nothing but s-."
Business Manager Possehl acknowledged in his testimony
that he had been told by Frank that "Oberle had been
requested or would be requested as a master mechanic ..."
by Braun; that, although the position of "master mechanic
is without the referral" system in his view, the union never-
theless tries "to get the employer to call the hall for the
men"; and that "we like a fellow to be placed [on the job],
not as a master mechanic because [of an] eight-man require-
ment, but we like to suggest that he be hired in some capaci-
ty. . . . He is then on the payroll and can be switched."
Possehl also acknowledged that usually Respondent recom-
mends to an employer an operator as master mechanic at
the prejob conference and the employer generally accepts
the recommendation. District Representative Frank testi-
fied that the prejob conference at the Braun job was in
September 1971; the interviews for master mechanic were
in October 1971; it appeared to Frank that Oberle was
Braun's "choice"; and he, Frank, informed the membership
that he would not send Oberle.
On this record, I find and conclude that Respondent
refused to refer Oberle to Braun Company on October 8,
1971, because Oberle had opposed the incumbent union
leadership. Counsel for Respondent, in his posthearing
brief, argues, inter aka, that "the position of master mechan-
ic is not encompassed by the referral system"; that Sageman
in fact "was not interested in hiring a master mechanic in
October 1971" and the collective-bargaining agreement
does not require a master mechanic until eight engineers are
on the job which assertedly was not the case during October
1971; and that the position of master mechanic is superviso-
ry within the meaning of Section 2(11) of the Act and there-
fore beyond the protection of Section 8(b)(2) and 8(b)(1)(A)
of the Act.
I reject these contentions. I find and conclude that on
October 8, 1971, Sageman wanted to hire Oberle on the
53 Under the existing contract, Braun would be required to hire a master
mechanic when it employed eight operators on the job Sageman testified that
he could not pay for a master mechanic until he had eight operators on the
job
OPERATING ENGINEERS LOCAL 18
Toledo job. Oberle would be employed as a machine opera-
tor and, as soon as possible, promoted to master mechanic.
Indeed, Sageman acknowledged in effect that he could have
used a cherrypicker operator during October 1971 and Ob-
erle was his choice for master mechanic. Consequently-
wholly apart from the questions of whether a master me-
chanic is a supervisory position and excluded from the
referral system-Frank persistently refused to refer Oberle
to the Braun job commencing October 8, 1971, as an em-
ployee operator in order to block Oberle's promotion to
master mechanic because Oberle had engaged in protected
activities. Accordingly, Respondent discriminated against
Oberle in violation of Section 8(b)(2) and 8(b)(1)(A) of the
Act.
In any event, it is clear that Respondent, by practice,
referred operators as master mechanics to employers and
encouraged employers to comply with the referral system
for master mechanics as well as employee operating engi-
neers. Sageman regarded the referral system as controlling
master mechanics until about June 1972, when this case was
earlier scheduled for hearing. Other operators were referred
to employers as master mechanics by Local 18. And, as
noted, Respondent and employers generally regarded the
referral system as including the position of master mechan-
ic. Thus, although I find and conclude that the master
mechanic's job at the Braun job is in fact a supervisory
position within the meaning of Section 2(11) of the Act, 4
nevertheless, I also find and conclude that Respondent's
refusal to refer Oberle violates Section 8(b)(1)(A). As the
Board recently stated in International Photographers of the
Motion Picture Industries, etc., 197 NLRB 1187:
Moreover, even if Colman and Lapenieks were supervi-
sors, we would still find the action directed against
them by Respondent to be unlawful because of its im-
pact on employees. The record shows that "Daily Var-
iety," a publication distributed principally to
employees in the motion picture industry in Los Ange-
les County, contained articles relating to Respondent's
refusal to permit the hiring of Colman and Lapenieks.
Furthermore, the action taken against Colman and La-
penieks was brought to the attention of union members
who were admittedly employees and who were on the
Union's executive board when the action was dis-
cussed. In addition, the charges in this case were read
to members at regular meetings. It can reasonably be
concluded that the discrimination thus directed by Re-
spondent Union created an impact on other employees,
the natural consequence of which was to restrain and
coerce them with respect to their Section 7 rights, in
violation of Section 8(b)(1)(A) of the Act.
And see Krebs and King Toyota, Inc, 197 NLRB 462. Here,
too, District Representative Frank repeatedly made clear to
the membership that he would not refer Oberle to Braun
Company as an operator or a master mechanic because of
54 Oberle credibly testified and I find and conclude that the master me-
chanic at the Braun job had authority over the work of the other operating
engineers , directed their work, could send them home, could lay them off
and discipline them; and was and is generally "responsible to management "
913
Oberle's opposition to the union membership. I therefore
find and conclude that "the discrimination thus directed by
Respondent Union created an impact on other employees,
the natural consequence of which was to restrain and coerce
them with respect to their Section 7 rights, in violation of
Section 8(b)(1)(A) of the Act." ss
In sum, I find and conclude that Respondent's refusal to
refer Oberle on October 8 and November 23, 1971, is viola-
tive of Section 8(b)(2) and 8(b)(1)(A) of the Act.
C. Respondent's Other Coercive Conduct
The credited evidence of record also makes clear and I
find and conclude that Respondent engaged in independent
acts of restraint and coercion in violation of Section
8(b)(1)(A) of the Act. Thus, as found supra, sec. II,B and C,
District Representative Frank-in resisting the opposition
of the Shimmans and Oberle-threatened Ervin Simman:
"I [Frank] am the hatchet man from Cleveland . . ." and
will "starve out" Ervin Shimman. Frank also threatened
Ervin Shimman: ". .. I will get you, and when you get off
the Braun job, I will really get you if you go to work there
...." Frank similarly warned that the Shimmans "will be
destroyed," while referring at the same time to the unfair
labor practice charge filed by Walter Shimman in this case.
Frank threatened that "the fellows that were running
against [the incumbents] would be starved out of the Union
and there are ways to get them out...." Frank warned
members of the opposition at a union meeting: "Losers are
losers and my people will run the union and will work and
the rest of you can get out of here." Frank warned members
that "he could starve out any of the dissidents...." Frank
told the membership: " ... I am running [the union] as I
see fit . . . if anyone doesn't like the way I run it, let him
get the hell out." Frank in effect apprised John Zemenski
while Zemenski was passing out antiincumbent literature
that Frank "will try to keep" him unemployed. Frank told
the membership: "If you are not for us, you are against us
and if you don't like the Union get the hell out." Frank told
members that the opposition candidates "were the enemies
of the union and communists . . . he was going to use the
referral system to starve [them] out of the organization
.... Frank warned the members that the "people who
didn't agree were going to be forced out of the organization
I find and conclude that the foregoing and related state-
ments made by Frank to the employees and members of
Local 18, accompanied by Frank's discriminatory treat-
ment of Walter Shimman and Oberle, tended to coerce and
restrain employees in the exercise of their Section 7 rights.
Further, in this context, I find and conclude that Frank
55 Although Sageman claimed that he did not actually need a master
mechanic on the Toledo job until about June 1972 when he in fact hired
Oberle, I do not credit this assertion I am not persuaded that Sageman
conducted interviews for a master mechanic in October 1971 without some
reasonable expectation that he would need a master mechanic long before
June 1972 In fact, Sageman acknowledged in part that there was a need for
a master mechanic on thejob long before June 1972 1 find that Braun in fact
delayed hiring the master mechanic because of Respondent' s unlawful con-
duct and strong opposition The record is unclear as to an exact date when
Braun would have hired a master mechanic Since this is pertinent to backpay
issues , such a determination can be made in compliance proceedings
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerced and restrained Oberle at the July 10, 1972, meeting,
while this hearing was in recess , by openly accusing Oberle
of evading the Union's referral system and humiliating him,
because Oberle was utilizing the processes of the National
Labor Relations Act.56
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following conclu-
sions of law:
1. The employer associations involved in this case-As-
sociated Contractors of Ohio, Inc., and The Associated
General Contractors of America, Inc.,-and C. F. Braun
Company are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(b)(2) and 8(b)(I)(A) of
the Act by discriminatorily removing Walter Shimman's
name from its proper position on Respondent's referral reg-
ister and placing his name at the bottom of the register on
July 22, 1971, because Walter Shimman supported antiin-
cumbent candidates during an intraunion election.
4. Respondent violated Section 8(b)(2) and 8(b)(1)(A) of
the Act by discriminatorily refusing to refer Glenn Oberle
for hire by the C. F. Braun Company on and after October
8 and November 23, 1971, as a master mechanic and cher-
rypicker operator because Oberle opposed the incumbent
union leadership during an intraunion election.
5. Respondent violated Section 8(b)(1)(A) of the Act by
threatening members and employees with loss of employ-
ment opportunities and related reprisals because they op-
posed the incumbent union leadership. Respondent further
violated Section 8(b)(1)(A) by humiliating, ridiculing, and
embarrassing Oberle at the July 10, 1972, meeting because
he had invoked the processes of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, it is found
necessary that Respondent cease and desist from the unfair
labor practices found and from-in view of the nature and
extent of these unfair labor practices-any other invasions
of the employees' Section 7 rights; take certain affirmative
56 Counsel for General Counsel cites in his brief other assertedly coercive
conduct by Respondent However, this conduct was not alleged as violative
of the Act, these matters were not fully litigated before me, and, in view of
the extensive violations found herein, the additional conduct cited to me
would not materially affect my conclusions or order
Further, at the hearings counsel for Respondent moved to prohibit some
eight of General Counsel 's witnesses from testifying because they assertedly
had been given "a verbatim account of these proceedings" by Mrs William
Shimman , in violation of the sequestration arrangement 1 took the motion
under advisement Walter Shimman credibly denied this assertion and Mrs
William Shimman credibly denied this assertion Respondent 's witnesses did
not substantiate counsel's contention and, insofar as the testimony of Bowes
conflicts with the testimony of Mrs William Shimman, I am persuaded that
she is a more truthful and honest witness of the events involved Accordingly,
I reject this motion
action, including making whole Walter Shimman and
Glenn W. Oberle with backpay computed on a quarterly
basis, plus interest at 6 percent per annum, as precribed in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co, 138 NLRB 716; to mail to all members
of Respondent Local 18 in the Toledo district and post at
the Toledo district hiring hall appropriate notices; and to
mail a copy of said notice to C. F. Braun Company.
To facilitate the computation of backpay and to assure
Walter Shimman and Glenn Oberle equal referral treat-
ment, the Respondent shall maintain and make available to
the Board or its agents, upon request, job registration rec-
ords, and any other documents or records showing job re-
ferrals and the basis for such work assignments of employ-
ees, members, applicants, and registrants. Respondent shall
further notify Walter Shimman and Glenn W. Oberle that
use of the hiring hall facilities will be available to them on
an equal basis with other registratns with respect to job
referrals.57
ORDER58
Respondent International Union of Operating Engineers,
Local 18, AFL-CIO, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Refusing to grant referrals from its exclusive hiring
hall facilities, which are operated pursuant to contract or
other arrangements with employers, to Walter Shinunan
and Glenn W. Oberle or any other member, employee, job
applicant, or registrant, on an equal and nondiscriminatory
basis, in reprisal for their having opposed the incumbent
union leadership and having otherwise engaged in protected
internal union activities and from otherwise causing or at-
tempting to cause employers to discriminate against mem-
bers, employees, job applicants, or registrants, in violation
of Section 8(a)(3) of the National Labor Relations Act.
(b) Threatening members, employees, job applicants, or
registrants with loss of employment opportunities, loss of
membership and expulsion from the union, financial losses
and starvation, or any other reprisals if they engage in activ-
ities which are critical of the conduct of or in opposition to
the incumbent union officers and officials.
(c) Humiliating, ridiculing, or embarrassing union mem-
bers at union meetings or accusing them of disloyal conduct
because they have invoked the processes of the National
Labor Relations Act.
(d) In any other manner restraining or coercing employ-
ees in the exercise of the rights guaranteed them in Section
7 of the Act.
57 Counsel for General Counsel, in his posthearing brief, requests that the
order recommended herein provide, inter a/a, that the notice be printed in
the union 's newsletter Since the notice is to be mailed to all members in the
hiring hall district involved, under all the circumstances involved printing
same in the union's newsletter to be circulated beyond the district is unneces-
sar and inappropriate
In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and recommended Order herein shall, as
provided in Section 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and order and all objections
thereto shall be deemed waived for all purposes
OPERATING ENGINEERS LOCAL 18
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make whole Walter Shimman and Glenn W. Oberle
for any loss of earnings they may have suffered by reason
of the discrimination against them, in the manner set forth
in this Decision.
(b) Notify in writing Walter Shimman and Glenn W.
Oberle that the Union's exclusive hiring hall facilities and
job opportunities will be available to them on an equal and
nondiscriminatory basis with other members, employees,
job applicants and registrants.
(c) Maintain and, upon request, make available to the
Board or its agents, for examination and copying, job reg-
istration and referral records and any other documents or
records showing job referrals and work assignments, and
the basis for making such referrals and assignments, of
members, employees, job applicants, and registrants, which
are necessary to compute and analyze the amount of back-
pay due to Walter Shimman and Glenn W. Oberle and their
right to referral to jobs under the terms of this Order.
(d) Post at its business offices, hiring hall, and meeting
places in Toledo, Ohio, and mail to all members in the
Toledo, Ohio, district, copies of the attached notice marked
"Appendix." 59 Copies of said notice, on forms provided by
the Regional Director for Region 8, after being duly signed
by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt there-
of, and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material. A
copy of said notice shall also be mailed to C. F. Braun
Company.
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.
59 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To Members, Employees, Registrants And All Other Job
915
Applicants, Union or Nonunion, Using Our Exclusive Hir-
ing Hall Facilities:
WE WILL NOT refuse to grant job referrals from our
exclusive hiring hall facilities to Walter Shimman or
Glenn W. Oberle or any other member, employee, job
applicant, or registrant on an equal and nondiscrimina-
tory basis, in reprisal for their having opposed the in-
cumbent union leadership and having otherwise
engaged in protected internal union activities.
WE WILL NOT otherwise cause or attempt to cause em-
ployers to discriminate against members, employees,
job applicants, or registrants in violation of Section
8(a)(3) of the Act.
WE WILL NOT threaten members, employees, job appli-
cants, or registrants with loss of employment opportu-
nities, loss of membership and expulsion from the
Union, financial losses and starvation, or any other
reprisals if they engage in activities which are critical
of the conduct of or in opposition to the incumbent
union officers and officials.
WE WILL NOT humiliate, ridicule, or embarrass mem-
bers at union meetings or accuse them of disloyalty
because they have invoked the processes of the Nation-
al Labor Relations Act.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of the rights guaranteed them
in Section 7 of the Act.
WE WILL make whole Walter Shimman and Glenn W.
Oberle for any loss of earnings they may have suffered
by reason of the discrimination practiced against them.
WE WILL notify, in writing, Walter Shimman and
Glenn W. Oberle that the Union's exclusive hiring hall
facilities and job opportunities will be available to them
on an equal and nondiscriminatory basis with other
members, employees, job applicants and registrants.
Dated By
INTERNATIONAL UNION OF OP-
ERATING ENGINEERS , LOCAL 18,
AFL-CIO
(Labor Organization)
(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, 1695 Federal Office Building, 1240
E. 9th Street, Cleveland, Ohio 44199, Telephone 216-522-
3715.