Operating Engineers, Local 106

National Labor Relations Board - Board Decisions

Jul 18, 1979

243 N.L.R.B. 551 (N.L.R.B. 1979)

OPERATING ENGINEERS. LOCAL. 106
International Union of Operating Engineers, Local
106, AFL-CIO (Green Island Contracting Corpora-
tion) and Theodore John Tutera. Case 3 CB 3219
July 18. 1979
DECISION AND ORDER
BY MFMBERS JENKINS. MtURPHY, ANt) TRItiSI)At.E
On April 10. 1979, Administrative Law Judge Ber-
nard Ries issued the attached Decision in this pro-
ceeding. 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. as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National l.abor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent.
International Union of Operating Engineers, l.ocal
106, AFL-CIO. Albany, New York, its officers.
agents, and representatives shall take the action set
forth in the said recommended Order, as so modified:
I. Substitute the following for paragraph (b):
"(b) In any like or related manner restraining or
coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credihihl) findings made bh the Ad-
ministrative t.aw Judge. It is the Board's estabhshed polhic notl to olerrule
an administrative law judge's resolutions with respect to credihilily unless
the clear preponderance of all of the reles.ani evidence convinces us that the
resolutions are incorrect. Standard Drn Wall Product, Inc. 91 NLRB 544
I1950)1 enfd. 188 F.2d 362 (3d ('ir. 1951). We have carefull examined the
record and find no basis for reversing his findings
2 Respondent has excepted to the Administrative Law Judge's recommen-
dation thai the Board issue a broad cease-and-desist order requiring Respon-
dent to cease and desist from violating the Act "in any other manner"
Inasmuch as we do nolt ind Respoindent's ciinduct egregious or persasive
enough to warrant the issuance of such n order, we shall substitute the
Board's narrow language requiring Respondent to cease and desist fronm
violating the Act "in a n hke or related mnlnner" for the provision reco m-
mended bhy the Admiilstratlve L.as Judge See H, Anlot f;.s, In., 242
NLRB 1357 (1979).
APPENDIX
NOFI(cE To EMPLOYEES ANt) Ml MBFRS
PO)STII) BY ORDER (): IIIF.
NAII()NAI. LABOR RI!I AIIONS BOARI)
An Agency of the United States Government
The National Labor Relations Board having found
after a hearing that we violated the National Labor
Relations Act, we hereby notify you that:
WI lI, N) cause or attempt to cause Gireen
Island Contracting Corporation or ans other em-
ployer to discriminate against employees in vio-
lation of Section 8(a)(3) of the Act.
Wl WEII.l. NOI in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them in Section 7 of the
Act.
WL vt1.1 request that, if appropriate, Theo-
dore J. Tutera be returned to the employment
from which he was discharged, upon our instiga-
tion, on June 26, 1978, by Green Island ('on-
tracting Corporation.
Wti wltI. niake Theodore J. Tutera whole fr
any loss of pay and other benefits he maN hav'e
suffered as a result of the discrimination agailnst
him since June 26. 1978.
IN IIRNAIIt)N.\I. NI)ON ()i OPIR. \IIN(i N-
(,INI RS. I.()(AI 106. AFI. C0
l)i I('lSl(ON
BIRA I) AR II s. ,Administrative I.aw Judge: This case was
heard in Alhan 5. New York. on Januarv 16. 1979.' T'he
complaint alleges that Respondent. concededly a statutor
labor organizalion, attempted to cause and did cause Green
Island (ontracting ('orporation to discharge Theodore 'Iu-
tera because l utera was not a member of Respondent and
or because 'Iutera had not been cleared hN Respondent tor
employment hy Cireen Island. thus violating Seetion 8(h2)
and (I )(A) of the Act.-
Green Island Contracting Corporation is engaged in the
heavy and highway construction business in New York
State. In 1977. it wsas awarded some contracts bh the State
Department of Transportation (DOT) to perform construc-
tion work on Interstate Highway 88.
The testimon) discloses that such contracts are partiall?
funded bh the Federal Government, and, apparentl in
consequence thereof, contain requirements that a specilied
number of minority and disadvantaged citizens be hired bh
the contractor as trainees on each project.' John Budd.
l'he motion h) counsel tor the General Counsel I, colrrct the Iranscrlpt
is granted. ith the excepllon of the propos..ed correction at p 2h. I 6
': he complainl and anser adequalels estlabhsh the .approprllleness o
the assertion ofIjurlsdicllon bh the Board here
' ntortun.ilelv. the record colntlins none of' the relesa.nl conlracls or
speclficallions
243 NLRB No. 99
551
I)EC'ISIONS OF NATIONAL, LABOR RELATIONS BOARD
Green Island's Equal Employment Opportunity officer at
the pertinent times, testified that under a contract for work
at the Mineral Springs site,4 Green Island was required to
hire nine trainees in four construction trade classifications,
of which the three operating engineer trainee jobs are here
of interest.
In fulfilling these affirmative action training require-
ments. Green Island (and presumably other such contrac-
tors) makes reference to a list of referral sources published
by DOT.' These authorized agencies include colleges.
unions, community agencies, etc. Once a qualified trainee
has been hired, the contractor places him in a D)OT-ap-
proved on-the-job training program at the work site. The
"programs" are, from all that appears, essentially alike in
character and content, though they may bear different la-
bels and be under different sponsorship.
Thus, of' particular application to this case. Green Island
has its own program for operating engineer trainees. recog-
nized as such by DOT, under which it gives prescribed
training to the recruits, monitors their progress, and makes
periodic reports to the state agency. The Engineers Joint
Training Fund (the fund), headquartered in Syracuse and
evidently a collective instrumentality of locals of the Oper-
ating Engineers, maintains a similar program for trainees
(and, as well, serves as a referral agency). It appears that it
it is decided that a trainee on a given project is to be trained
"under" the fund program rather than the contractor's own
program (if any), the actual training will generally be the
same and will be overseen by the same journeymen, but the
fund will be acknowledged as the official sponsor and will
be responsible for performing the reporting and other pa-
perwork. Budd testified that the fund program and the
Green Island operating engineer program each consist, in
total, of' 6.(XX) hours of training, divided into eight segments
of concentration on various phases of the operating engi-
neer craft. The record indicates that a trainee, once hired.
may not necessarily receive all of the training needed to
complete the program; there will be projects, obviously, too
limited in scope or of too brief a duration to permit moving
a trainee through all eight phases.
Through its membership in the New York State Chapter
of Associated General Contractors of America, Green Is-
land recognizes and is in a collective-bargaining relation-
ship with four Operating Engineers locals, including Re-
spondent. While nothing in the bargaining agreement, or in
the contracts awarded by DOT to Green Island, mandates
that Green Island obtain operating engineer trainees from
the fund or, once obtained, train them under the fund pro-
gram. Green Island had in the past secured such trainees
from, and trained them under the auspices of, the fund (al-
though not exclusively). In April 1978, before the Mineral
Springs job got underway. Harold Jones. the "outreach
counselor" for the fund, whose job is to screen, place, and
oversee the training of trainees, spoke to EEO officer Budd
about the selection of the three operating engineer trainees
required for the project. Budd said, when asked, that he
intended to use the Engineers Joint Training Fund Program
4 Also referred to as "Cobhleskill" and "Shad Point." Work n this job
began around April 1978.
s Whether the DOT contract requires this is not clear from the record.
as his source. Budd was, however, noncommittal when
Jones asked if Green Island would take on one Irving Un-
derwood, who had undergone another phase of craft train-
ing for Green Island on a previous project.
Budd thereafter obtained from the Fund two trainees for
Mineral Springs. and theN went to work around Ma or
June. For the third slot, however, that of grease truck train-
ee. Budd decided to approach Operation Hitchhike, at
source agency located in Cobleskill, New York. at the loca-
tion of the Mineral Springs project. Before he did so. Budd
inquired of Ralph Odorisio, Green Island's master me-
chanic on the site, a statutory supervisor, and a member of
Respondent. and of Frank House. Respondent's steward on
the job. if there would be any objections to his going out-
side the fund to recruit the third trainee. lTheN both told
him, in separate conversations. that they would "check" to
see ift' there would be any problems. Odorisio and House
later reported to him that they had talked to George Mor-
an. business manager of Respondent and member of the
board of trustees of the fund. who said that he perceived no
problems, but that the question should be presented to Ilar-
old Jones.
Around June 1,. Budd told Martin Parker. the assistant
administrator of the fund, about his plan to recruit from
outside the fund. Parker asked that. if Budd did so. he write
Parker a letter to that effect. On June 7. Budd hired |utera.
the Charging Party here, who had been referred b Opera-
tion Hitchhike, and had him report to work as a heav\-dut\
greaser trainee at Mineral Springs on June 8. Budd told
Tutera that the job would guarantee about 720 hours of
employment and, according to Tutera. "that there would be
a possiblility that I could stay beyond 72() hours i the
Union would allow me to stay."6 Tutera was assigned to
work on the grease truck with Respondent's Steward
House, the only heavy-duty greaser on the job.
Tutera testified that about a week or so after he was
employed. and more than once, louse "mentioned the fact
that the job wasn't supposed to go anywhere after 720
hours and then I told him. well. I'd join the Union after.
And he told me that the nion wouldn't take me." Tutera
further testified that. perhaps 10 days into the job. House
said that Tutera "had gotten the job easily and that it took
him about six years working as a permit man before he was
taken in the Union." Finally., Tutera testified that on June
24, 2 days before his employment ended, tHouse told Tutera
that "he resented me, that the men resented me, that I had
gotten the job easily and that the mere fact that I was on
the job meant that meant that a Union member couldn't
get a job because I was there." House denied the first and
final conversations, and was not asked about the second.
Budd responded to Parker's early June request for notifi-
cation of any hiring from outside the fund by sending
Parker a letter on June 15, advising that Tutera had been
employed "as a Heavy Equipment Operator Trainee but
will be trained under Green Island Contracting Corpora-
tion approved training program as a Maintenance Grease-
man Trainee." The letter noted that Tutera had been re-
cruited from Operation Hitchhike, and enclosed a copy of a
letter from that organization certifying that Tutera was con-
Budd's teslimnon did not confirm) this latter remnark
552
OPERATING ENGINEERS IOCAL 106
sidered "economically disadvantaged" by the New York
State Department of Labor "in that he meets Federal re-
quirements for CETA Title VI program and is presently
unemployed."
On June 20. Parker replied in writing, and stated, in per-
tinent part:
As the Engineers Joint Training Fund did not screen
or place this individual with your firm, we have no was
of determining whether he meets the criteria (State of
[sic] Federal) for selection as a trainee. Thus, I do not
feel Engineers Joint Training Fund should assume re-
sponsibility or liability for this individual's placement
or progress with regards to training on a federally as-
sisted New York State Department of Transportation
project.
There is some uncertainty in the record about the events
of the last days of Tutera's employment. Harold Jones. Re-
spondent's outreach counselor, testified that in the course of
a routine visit to the project around June 14 or 15, he be-
came aware that Tutera had been hired and placed under
the Green Island program, and he then, as he testified. ad-
vised the fund that "a third trainee was placed under the
Green Island project . . . [a]nd not bh the Engineers Joint
Training Fund." While at the job. he asked master me-
chanic Odorisio about this development, and the latter said
that "he was under the impression that I had sent the train-
ee up." According to Jones. everything that happened after
June 14 or 15 "is hearsay as far as [I am] concerned."
Odorisio, however, also testifying for Respondent. said
that Jones brought a copy of Parker's June 20 letter to the
jobsite on June 26 "and spoke to me." What Jones said to
Odorisio is unreported, but Odorisio testified that, soon
thereafter, he talked to Bruce Distephano. Green Island's
project superintendent, and told him that the fund had
stated in the letter that "being that Mr. Tutera was not sent
out through the training program that they were not re-
sponsible for the training of this man . . . and I asked him
what he wanted to do." According to Odorisio, Distephano
told him to "send the man home," which he then proceeded
to do.
Although the testimony is confusing as to the events of
June 26, it appears that prior to the foregoing conversation,
but after Odorisio had been advised of the Parker letter, the
Green Island project office, having received a copy of the
letter, called Distephano in to the office from the field over
a two-way radio. Evidently while Distephano was on his
way, Odorisio spoke to Steward House. who had pulled
into the yard in the truck which House and Tutera used.
and "explained the situation to him." House told Tutera to
wait in the truck, and House and Odorisio disappeared.
When Distephano arrived, and was about to go into the
office, he saw House. According to Distephano, whom I
found to be an impressive and creditworthy witness.
"Frank said that he had received a call from the hall and
that [Tutera] couldn't perform any duties, couldn't work,
but he could ride on the truck."7
House, not an outstanding witness, was most equivocal in replying to this
testimony, which was the main feature of Distephano's appearance. tHe
could not "recall." hut didn't "really think.," that he had such a conversation.
House conceded having told Tutera to "stay in the truck and I wasn't going
After this conversation. Distephano prohablx spoke to
Odorisio, as set out above. Somewhere along the line. Ilu-
tera was told to go home. Tutera testified that both Hlouse
and Odorisio told him ",ou can't stay here. go home."
House testified that he himself made no such statement to
Titera. but that lie heard Distephano order Odorisio over
the radio to tell utera to leave, which Odorisio then did.
Odorisio's testimonS makes it appear. however. that his in-
struction fromn Distephano to tell Tutera to depart was
given in person ("1 waited for Bruce to come up into the
vard").
Based on probability and likelihood. I conclude that u-
tera's departure came about as t;llows. Odorisio. having
seen a copy of the Parker letter and having talked to Jones
about it, acquainted House with the situation. A deteminna-
tion was made to call Distephano in to discuss the problem,
at which time House told him "he had received a call from
the hall and that ed couldn't perform an, duties, couldn't
work, but he could ride on the truck." Shortls thereafter.
Distephano spoke to Odorisio about the issue. While Di-
stephano was not examined to any' extent about subsequent
events, it seems likely that he ultimately told ()dorisio over
the radio that, if Tutera could not work. he should he in-
structed to go home. That Distephano had been told that
House would not continue to train Tutera is made clear bh
House's testimony that Odorisio reported )istephano as
having said "it' [Tutera] is not going to do any work. send
him home."
Budd testified that when he learned from lutera (at
which time Budd was in Sy:racuse) that Tutera had been
relieved of duty. he investigated the circumstances, found
out from Odorisio about the Parker letter. which he had not
then seen,, and, on June 27, called Respondent's Business
Manager Moran. he latter assertedls said that "because of
the letter from Mr. Parker. he didn't feel that he could train
people in two different programs .. [and that lie agreed
with Mr. Parker's letter that they would ha'.e no responsi-
bility for Mr. Tutera." Budd then called Parker. When lie
told Parker that Moran had "interpreted the letter in a uax
that he didn't want people on trainees on the job from ...
two different programs." Parker replied that "that really
wasn't the intent of' the letter." Parker, who did not know
until then that Tutera was no longer working said he would
look into the situation.
On June 28. Budd and Parker spoke again. This time,
Parker said that "he had checked all the different possibili-
ties and he couldn't get Mr. Tutera into the Fund and that
Mr. Moran was very adamant. the fact that he didn't want
trainees on the job in two different programs. There ,was
nothing he [Parker] could do." Thereafter. Budd called Tu-
tera. told him there was nothing more to be done and his
layoff would he necessar,. and asked him to pick up his
check. '
to train him until I found out what was going on:" "You can st;il as long as
you want. It's up to Green Island to ake care of u" I credit )istephano
iOdorislo telling him that Tulera "couldn't receive training on the pro-
gram because he was not in a L .nion sponsored program "
' Parker testified hat he recalled one telephone cersatlo in which
Budd told him that a man had been ternminated and "uld the following
day coniact the National La hbor Relat ns Board " lie il ,ld not reall /in-
553
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 5. having received a copy of Tutera's charge filed
with the Board. Budd called Moran to discuss this develop-
ment. Moran said that Green Island "shouldn't have laid
him off. He just said they wouldn't train him. So he said,
really, that Mr. Tutera should be filing the suit against
Green Island and not Local 106."
Analysis and Conclusions
The evidence and findings recited above require a con-
clusion that the agents of Respondent brought about the
discharge of lutera in a manner and for reasons proscribed
by the statute.
The effective end of Tutera's employment began with
Parker's June 20 letter, asserting that the fund would not
assume responsibility for Tutera's "progress with regards to
training" on the Mineral Springs job. It is reasonable to
assume that when Jones, the outreach counselor for the
Fund and a member of Respondent, spoke to Odorisio on
June 26 and showed him a copy of Parker's letter, his inten-
tion was to cause members of Respondent to refuse to lend
their skill and energy to the training of Tutera; no other
reason suggests itself for Jones' appearance, ctun letter, at
the project."
That this message was conveyed to Steward House and
acted upon by him is indicated by Distephano's credited
testimony that House told him "he had received a call from
the hall and that [Tutera] couldn't perform any duties,
couldn't work, but he could ride on the truck." Since, as the
record shows, louse was the only employee whose duties
involved greasing equipment, it was, as Distephano eal-
ized, pointless to keep Tutera around, and he was told to
leave.
Thus, House, Respondent's agent, was the efficient cause
of Tutera's departure. Thereafter, Tutera was, as Budd tes-
tified, "in limbo" for a few days. while Budd attempted to
secure agreement to Tutera's reinstatement. The fund's
assistant administrator, Parker, felt, or so he said, that his
letter had been misinterpreted: however, when he inquired
thing else about the conversation. Moran testified that Budd on one occasion
called him and asked what Moran thought about the Parker letter. Moran
replied that he concurred with its contents. Neither Parker nor Moran was
asked about Budd's testimony that Parker had reported Moran as being
"very adamant [about) the fact that he didn't want trainees on the job in two
different programs." Being a description of Moran's "then existing state of
mind," it is questionable whether this remark constitutes hearsay. See Rule
803(3), Federal Rules of Evidence. However, if it is hearsay, it was not
objected to and therefore "has probative value." O'Malley Lumber Compans.
234 NLRB 1171 (1978). As noted, Moran was present at the hearing, but
offered no contradiction.
Parker and Moran made a good impression. However. in view of Parker's
failure to "recall" matters about which he likely would have had a recollec-
tion, and should have been able to deny or affirm, Moran's failure to address
himself to the question of whether he had taken a "very adamant" position
in speaking to Parker, and my belief that Budd was an honest man with no
ax to grind or ox being gored. I credit Budd's account of the events subse-
quent to June 26.
10 Although Odorisio is named in the complaint as an agent of Green
Island. not Respondent, I note, while I make no finding that Odorisio was
acting on Respondent's behalf, that he obviously allied himself with the
Union rather than management. In his testimony, Odorisio uniformly classi-
fies himself on the union side ("we") as opposed to the employer's side
("they"): e.g.. "Yes, as far as we were concerned, he could have stayed on the
job, but we would not assume the responsibility of training him, seeing that
they brought a man on their training program."
into the matter, he was thwarted by Moran, Respondent's
business manager, who was "very adamant . . . that he
didn't want trainees on the job in two different programs."
leaving "nothing [that Parker] could do." It followed that
Green Island felt compelled to discharge Tutera.
It would be a fair inference, on this record, that the desire
to have Tutera off the job stemmed from the fact that
Green Island had chosen to hire Tutera through Operation
Hitchhike rather than obtaining a recruit (and more partic-
ularly the partially trained Underwood) from the fund. It is
true that on a previous occasion in 1977, Budd had secured
an operating engineer trainee from an agency other than
the Fund without protest from Respondent or the fund, but
there the circumstances were different, in that the fund had
been unable to fulfill Budd's request for an applicant. Here,
on the other hand, Underwood was offered and rejected.
At the hearing, Respondent presented testimony by
Howard L. Sheffey, an employee of the affirmative action
office of the state DOT. Sheffev testified that his office has a
policy of encouraging the use of only one training program
on a project, instead of, lor example. training being given
under both a Green Island and a Fund program. He cited.
as the reason for this, the desire to provide "continuity" by
"rolling over" a recruit from one phase of a program to
another until the entire 8.000 hours were completed. The
fact is, however, that the contracts awarded by the State
contain no such limitation. and the Mineral Springs con-
tract specifically approved the use of the Green Island pro-
gram. While Sheffey testified that it is his "office practice"
that this restriction is "generally made known" at precon-
struction meetings, there is no evidence that any such an-
nouncement was made at the conference preceding the
Mineral Springs job, and Budd, on rebuttal, said there was
not.
The primary purpose of the policy referred to by Sheffley
seems to be to assure that trainees qualif'y lor union mem-
bership: "[A]gain, in recognition by our office that New
York State is a 'Union State,' we, using reality, try to insure
that each of our trainees are minimumly qualified, meet the
minimum requirement for qualifications for Unions,
whether they are accepted in the Union or not"; "[TIhe
minimum qualification I spoke of earlier on, that would
qualify them for entrance of application of consideration as
a Union member." The logic of Sheffey's testimony would
seem to dictate that the State should contractually approve
no training programs on a given project other than those
sponsored by unions; that is not, however, the practice, as
stated above.
The record does show. however, that the DOT contract
contains the following provision, which was read into the
record:
The contractor will use his or her best efforts to de-
velop in cooperation with the Union's Joint Training
Program and [sic] towards qualifying more minority
group members and women for membership in the
Union and then increasing the skills of minority group
employees and women so that they may qualify for
higher paying employment.
The foregoing evidence by Sheffey appeared to fore-
shadow a defense that, in objecting to Tutera's employ-
ment, Respondent was only acting in furtherance of legiti-
554
OPIRAFING tEN(GINI.ERS. LOC()('Al 106
mate state policy. In its post-hearing brief. however.
Respondent's ermiphisis is less on the niotise of its agents
than on the asserted wrongs committed h (ireen Island.
Thus, "I[tihe Employer not only failed to cooperate with the
Engineers Joint Training Fund. but willfully violated its
commitment to hire all three of the required Engineer train-
ees through the Engineers Training Fund, and also violated
the established practice of having only one training pro-
gram in operation on the project at the same time, so that
the purposes of the Affirmative Action Training program
could he properly served."
In fact, the contract "cooperation" clause does not re-
quire a contractor to hire only through a union source:
Green Island made no binding commitment to hire from
the fund: and the "established practice" referred to was not
established nor was it required by the contract with DOT.
Furthermore, the record is bare of any evidence that such a
policy or the contract clause inspired the fund or Respon-
dent to seek the removal of Tutera. The June 2) letter from
Parker, who, as the Fund's assistant administrator, was pre-
sumably knowledgeable about state policy in this area, did
not charge that Tutera's appointment violated any tenet of
that policy. Business Manager Moran. reported b Parker
as "very adamant [aboutl the fact that he didn't want train-
ees on the job in two different programs," did not testif on
this subject, and we therefore have no idea why Moran took
this position.'' But the fact that, as the context shows.
Parker obviously made some attempt to dispel Moran's
adamance is strong evidence that the policy referred to by
Sheffey was not thought b Parker to be an inviolable one.
Also convincing in this regard is the instance previously
mentioned in which Jones was unable to supply a trainee to
Budd by a certain date, and Budd thereupon recruited one
from another source. A firm policy against the use of multi-
ple programs would setmingly have dictated that Budd
wait until Jones found an applicant or that the Fund should
undertake the sponsorship of whomever Budd eventually
recruited. In point of fact, however, neither the fund nor
Respondent took any steps of this sort to ensure that there
would he no duplication of training programs.
It would therefore appear that Respondent, through its
agents House and Moran. was the operative cause of the
termination of Tutera. and that the underlying motivation
for the discharge was the fact that T'utera had been re-
cruited from a source other than the fund. The Board has
erected a presumption regarding such displays of power by
unions, set out in International ntion o ' Operating Engi-
neers, Local 18, 4 FL CIO (Ohio Contracrors ssn.), 204
NLRB 681 (1973):
When a union prevents an employee from being
hired or causes an employee's discharge, it has demon-
strated its influence over the employee and its power to
affect his livelihood in so dramatic a way that we will
infer or, if you please, adopt a presumption that the
effect of its action is to encourage union membership
u It may be contended that Moran would hardly have been disposed to
openly oppose Tutera's employment on the ground that he had not been
referred by the fund: the next, more neutral. argument which would sensibly
present itself would be a general distaste for having trainees in different
programs.
on the part of all employees who hase prceivedl that
exercise f power. But the inlference nmla\ he ,iercomne,
or the presumption rebutted, niot onyI1 Al henI the inlcr-
ference with employment was pursuanl to a alid
uniorl-securit clause. but also in instances , here the
facts show that the union action was necessarN to the
effectlve performance of its function ot representilni its
constituency.
The present case seems to be an unusual one in that the
affected employee was not a mnlenlber of the bargailinlg Ulit
and the nion conduct was not designed directlt, to
strengthen the Inion's own position. but rather that of a
related agency, the fund. The quoted principle. hoes.er.
raises a presumption of encouragemenlt of' union mellber-
ship from the "dramatic" act of causing discharge. regard-
less of' the status of the employee insoled r the signif-
icance of the advantage occurring to the union: as the
Board indicates, the nature of the act is such that It palp;a-
hbly inspires respect for union power and a consequent ill-
ingness on the part of observant employees to adhere to
union desires.
The question whether Respondent has rebulltted the pre-
sumption hby showing that "the union action t as necessars
to the effective performance of' its function 0|' representing
its constituenc" is rather difficult to address here hbecause.
in a sense. "the union action" in this case na be said to
have consisted of two stages. It can be argued that "the
union action" was complete and efflectie after Steward
tlouse announced to [)istephiano that he sould not traiii
I'utera thus setting in motion the termination of the latter.
The record does not show that House was Iacting for any
reason other than his understanlding that Respondent and`
or the futind did not \eant him to train I utera he conceded
that he was ignorant of the rules pertaining to traininlg pro-
gramls. and thus could not haxe acted in the belief th at he
was helping to enforce a state policy. he second stage.
arguably. as the period during which Budd attempted to
secure clearance for futera. while utera was ''i tiniho."
At that point. Budd's efforts were frustrated by Moran. who
insisted. despite Parker's eident (and accurate) belief' that
there was no legal harrier to reinstating Tutera. and Ldespite
the ftact that Green Island had on a presious occasioll
trained employees under different programs simuitia-
neously, that "he didn't swant trainees on the job in two
different programs."
Even assuming that Moran's motivation .sas the signifi-
cant one here, it is inferable that Moran's determination
was grounded in Respondent's pique at Green Island's re-
fusal to accept trainee UInder ood and its desire to secure a
monopoly for the fund as a trainee source. Since Uinder-
wood was not entitled to the job, since Respondent was not
the bargaining representative of trainees, and since the fund
was not entitled to monopoly status, it can scarcely be said
that "the union action was necessary to the effective per-
formance of its function of representing its constituenc."
Indeed. that standard for rebutting the presumption would
not be met even if it were assumed, rgucndo. that House
and Moran were moved bh a desire to enforce what they
sincerel3 believed to be a state polico prohibiting dual
training programs. since, as I find, there was no such strict
policy, and. even if there were its enforcement swas plainly
DIl)(ISIONS O: NATIO()NAL LABOR RELAI IONS BOARI)
not "necessary to the effective performance of [Respon-
dent'sl function of representing its constiuency."
Moreover. even if the quoted standard were diluted to
require only that Respondent was attempting to "[promote]
legitimate union objectives," District C(ouncil No. 2 of /the
Brotherhood of Painters and llied 7'radcs,4 AFL ('10 (Th11e
Plintsmilhs, Inc.), 239 NLRB 1378 (1979). and again mak-
ing an argelndo I assumption that Respondent's motive was
simply to ensure compliance with State policy, I do not see
how causing the termination of an employee in pursuance
of a nonexistent state regulation can be considered the pro-
motion of "legitimate union objectives."
In a section of Respondent's brief entitled "Respondent's
Position." two other separate contentions are set out. Quot-
ing the brief' "Respondent contends that under the facts
there was no obligation or duty on the part of its members
to train Tutera." This general assertion is, of'course, subject
to the law's strictures: Respondent's members could not, at
the behest of Respondent, refuse to train Tutera, if such
refusal would result in discrimination against Tutera. for
the purpose of accomplishing an unlawful objective. Re-
spondent further "contends that the Employer never specif-
ically directed any employee member of the Respondent to
train Tutera after receipt of said letter, nor did the Respon-
dent directly or indirectly ever request that the Employer
lay off Tutera." Respondent argues that Green Island
should, and could, have "instructled] House to continue to
train Tutera and if he refused then discipline him by send-
ing him home." House was the only grease truck driver on
the job, as well as the steward. To have sparked a confron-
tation with him, possibly leading to his suspension or termi-
nation, would at the least have resulted in the loss of an
employee and at worst a serious labor dispute. By present-
ing Green Island with such a Hobson's choice, Respondent
effectively paved the way for the termination of Tutera. Cf.
Journeymen Plasterers' Protective and Benevolent Society oj
Chicago, Local No. 5 (John P. Phillips Plastering Co., Inc.),
145 NLRB 1608, 1609 (1964).
Although Tutera testified, as indicated above, to hostile
remarks made to him by House during his brief period of
employment, I do not think, assuming the remarks were
uttered. that they were relevant to the discharge."
For the reasons set out above, I conclude that by causing
the discharge of Tutera on or about June 26. 1978, Respon-
dent violated Section 8(b)(1 )(A) and (2) of the Act.
C(ON(CI.USIONS OF LAW
1. Respondent International Union of Operating Engi-
neers, Local 106. AFI. CIO, is a labor organization within
the meaning of the Act.
2. Green Island Contracting Corporation is an employer
engaged in commerce within the meaning of the Act.
3. By causing the discharge of Theodore J. Tutera on or
about June 26. 1978. Respondent violated Section 8(b)( )(a)
and (2) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
12 utera was not a particularly impressive witness for reasons apparent
upon the record Still. I was even less taken by House's testimony, and, if I
were required to choose between them I would credit rutera.
T111 RFMEI)Y
Having found that Respondent has engaged in unfair la-
bor practices within the meaning of the Act, I shall recom-
mend that it be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
purposes of the Act.
I recommend that Respondent be required to make
Theodore J. Tutera whole fr any loss of pay and other
benefits sustained by reason of the discrimination against
him from June 26, 1978, to the day that Respondent re-
quests Green Island to reemploy Tutera or the day upon
which Tutera's employment with Green Island could rea-
sonably have been expected to terminate, whichever is ear-
liest. Backpay shall be computed in accordance with F. W
W4oolworth Company, 90 NLRB 289 (1950), Isis Plumbing &
Ileating Co.. 138 NLRB 716 (1962). and Florida Steel Cor-
poration, 231 NLRB 651 (1977).
I further recommend the posting of traditional notices.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act. I hereby issue the following recommended:
ORDER'
The Respondent, International Union of Operating Engi-
neers, Local 106, AFL-CIO, its officers, agents, and repre-
sentatives, shall:
I. Cease and desist from:
(a) Causing Green Island Contracting Corporation or
any employer to discriminate against employees in viola-
tion of Section 8(a)(3) ol the Act.
(b) In any other manner interfering with. restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following action which will effectuate the
policies of the Act:
(a) Make whole Theodore J. Tutera for any loss of' pay
and other benefits he may have suffered by reason of the
discrimination against him caused by Respondent in the
manner set forth in the section of this Decision called "The
Remedy."
(b) Notify Green Island Contracting Corporation in
writing that it has no objection to the employment of Theo-
dore J. Tutera and that it requests Green Island Contract-
ing Corporation to return Tutera to the employment from
which he was discharged, if appropriate in the present cir-
cumstances.
(c) Post at its offices and hiring halls copies of the at-
tached notice marked "Appendix."" Copies of said notice,
i~ In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
S5h
OPERA IlI(i N(INF ERS. IOC('AI (106
on frms provided by the Regional I)irector fr Region 3.
after being duly signed bh Respondent's representative.
shall be posted b it immediately upon receipt thereof: and
he maintained by it ftr 60 consecutive dass thereafter, in
conspicuous places. including all places ihcere notices to
members are customarily posted. Reasonable steps shall he
taken by Respondent to insure that said notices are not
altered, defaced, or covered by ans other material.
(d) Mail to the Regional Director fir Region 3 signed
copies of the notice attached hereto marked "Appendix"
for posting by Green Island Contracting ('orporation. i it
be willing, at its premises. in places where notices to em-
plosees are customarily posted. Copies oft the notice, to be
furnished bh the Regional l)irector for Region 3 after
being duly signed hb an authorized representative ofl Re-
spondent shall be forthwith returned to the Regional D)i-
rector tr such posting.
(e) Noti( the Regional I)irector for Region 3. in uriting.
ithin 2() dass from the date of' this Order, uhat steps Re-
spondent has taken to compl, herewith.
557