United Exposition Service Co.

National Labor Relations Board - Board Decisions

Sep 26, 1980

252 N.L.R.B. 394 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machinery Movers, Riggers And Machinery Erec-
tors Local 136 of the International Association
of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO (United Exposition Service
Co., Inc.) and James Graves. Case 13-CB-
8720
September 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 11, 1980, Administrative Law Judge
David L. Evans issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions 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, find-
ings,2 and conclusions of the Administrative Law
Judge nd to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Machinery
Movers, Riggers and Machinery Erectors Local
136 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO, its officers, agents, and representatives, shall
take the action set forth in the said recommended
Order.
I We find no merit in Respondent's exception which contends that its
rights under the Administrative Procedures Act, 5 U.S.C §554(d), have
been violated because counsel for the General Counsel investigated as
well as prosecuted this case. The cited provision of the Administrative
Procedures Act requires the separation of investigator aid prosecutorial
functions not from each other but from the decisionmaking function
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administratise law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
· inces us that the resolutions are incorrect Sauldard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
We note that the Administrative Law Judge specifically discussed the
impact of union applicant Graves' prior felony cons iction on his credibil-
ity. The Administrative Lasw Judge found, in part based on his observa-
tion of the witness, that Graves' initial denial of the fact that he had pled
guilty to a 1975 robbery charge was not a deliberate lie It was instead,
according to the Administrative Law Judge, an effort to deny that any
current weight should be given to the conviction because Graves had
successfully completed a 2-year conditional discharge from the convic-
tion.
252 NLRB No. 58
DECISION
STATEMENT OF THE CASE
DAVII) L. EVANS, Administrative Law Judge: This
matter was heard at Chicago, Illinois, on May 5, 1980.
The charge against Machinery Movers, Riggers and Ma-
chinery Erectors Local 136 of the International Associ-
ation of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO (herein called Respondent), was filed by
James Graves, an individual (herein called the Charging
Party or Graves), on October 3, 1979.' A complaint
issued on November 19 alleging that since on or about
September 20, "Respondent, throuqh Ernest J. Gibas re-
fused to consider James Graves for union membership,"
in violation of Section 8(b)(1)(A) of the Act. Respondent
filed an answer admitting that, as alleged, Gibas, business
representative, and Thomas Campagna, president of Re-
spondent, are agents of Respondent, but denying the
commission of any unfair labor practices.
Upon the record as a whole, including my observation
of the witnesses, and upon consideration of the briefs
submitted by counsel, I make the following:
FINDINGS OF FACT
I. JURISt)ICTION
Respondent is a labor organization which represents
employees employed by various employers including
United Exposition Service Company, Inc., a Texas cor-
poration; which maintains an office and place of business
in Chicago; and which, during the calendar year preced-
ing issuance of the complaint, performed services valued
in excess of $50,000 for enterprises, which were them-
selves, engaged in interstate commerce. Respondent
admits that United Exposition Service Company, Inc., is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. Accordingly, it is ap-
propriate to assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
It is undisputed that, at all times material herein, Re-
spondent has been a labor organization within the mean-
ing of Section 2(5) of the Act.
111. THE AI.T.GEI) UNFAIR ABOR PRACTICE
Graves has worked in the Chicago area as a machin-
ery mover off and on since 1969. He is not a member of
any labor organization. He got his jobs by reporting to
hiring halls operated by Respondent or by Local No. I
of the same International.
It is undisputed that2 around September 6 or 7, Graves
approached Gibas at Respondent's hall and asked if there
All dates referred to herein are in 1979, unless oherwise specified
2 Respondent generally attacks Graves' credibility on the grounds that
in 1975, Graves was convicted of a felony, robbery, and he denied the
conviction hen first questioned on cross-examination Graves had re-
ceised a cnditional discharge and. after 2 years' good beha ior the con-
viction ',as vacated; therefore, evidence of the conviction should prob-
ably have been excluded under Rule 609(c)(1) of the Federal Rules of
Evidence Moreover, it was clear that in his denial of the fact of convic-
Continued
394
MACHINERY MOVERS, LOCAI 136
was any chance of his getting a membership card. Gibas
replied that the Local's executive board would meet in 2
weeks, and that Graves should not worry about it be-
cause he (Gibas) would "pull a few strings."
On September 9, Graves filed an unfair labor practice
charge against Local No. . The substance of the charge
is not directly related to the events herein, and it was
subsequently withdrawn.
According to Graves, on September 19, in a tavern
across the street from Respondent's hall, he asked Gibas
about the progress on his union card. According to
Graves, Gibas "stopped the conversation and he called
John Ryan over, that's the vice president of Local 136.
He told John Ryan that he wanted him to hear the con-
versation." Gibas asked Graves if he had filed a National
Labor Relations Board charge against Local 1. Graves
replied affirmatively. Gibas called Graves a "stool
pigeon" and, further according to Graves, "as long as he
was the business manager of Local 136, 1 would never
get a union card." Graves further testified that "Ernie
Gibas also told me that if I wanted a union card I would
have to [go] to the office of [the] National Labor Rela-
tions Board and let them get it for me."
When asked on direct examination if he recalled
having a conversation with Graves in September, Gibas
testified that he did, that it was on September 19, after a
regular union meeting, and that Graves "came in and
asked about a union card and I said to him: 'I can't do
that. I'll -efer you to work when there's work,' and I
said, 'Come on across the street and we'll have a beer.'
That was the end of it."
To the extent Gibas was attempting to advance a
denial by this testimony, I discredit it. First, it simply is
not a denial of the specific testimony of Graves that
Gibas called him a "stool pigeon," and that as long as
Gibas was business manager of Respondent that Graves
would not get a union card, and that Gibas told Graves
to go to the National Labor Relations Board to get his
card. Finally, Respondent offered no reason for not call-
ing Ryan, nor did it dispute Graves' identification of
Ryan as vice president of Respondent. Presumably, had
Ryan's testimony been favorable to Respondent, it would
have called him to testify or explained its failure to do
so, and I draw an adverse inference from its failure in
this regard. In short, I credit Graves' testimony about
what was said at the tavern on September 19.
On September 21, Graves approached Union President
Campagna at Chicago's McCormick Place convention
hall where Campagna was working that date. Graves
complained to Campagna that Gibas would not let him
take an examination required for membership because he
had filed charges against Local I. Campagna said he
would look into the matter. On Sunday, September 30,
Graves called Campagna at home. Campagna confirmed
that Gibas was "upset" by Graves' filing of the Board
charge against Local 1, and that Gibas was not going to
let Graves take the examination. Graves said he would
then complain to the International's vice president, and,
according to Graves Campagna replied that "Ernie
tion, (iraes as actually attempting to deny that any effect should be
given to it That is, he as not attempting to delude the trier of facl
Gibas said that if I made any, trouble for him or the
Local, that he was going to put me in the trunk."
Althouqh Campagna was present at the hearing herein,
he was not called to deny these statements. This failure
raises the presumption that the testimony of Campagna
would have been adverse to Respondent, and I find that
this testimony by Graves to be true.
Graves also testified that on September 20 and Octo-
ber 1, he called the union hall in an attempt to plead
with Gibas over the matter. Graves testified that both
times, Gibas tersely rebuffed him saying only, "f-k
you." This one vulgarism is the only specific testimony
by Graves which Gibas denied: however, I found
Graves' credible on the point and find his testimony to
be true.
Respondent offered no testimony that its agents re-
fused to consider Graves for membership because of any
legitimate reason, and I find on the credited testimony of
Graves about the statements of Gibas and Campagna,
that the sole reason for Respondent's admitted refusal to
consider him was that he had filed charges under the
Act, against Local 1.
While Section 8(b)(l)(A) provides that a labor organi-
zation shall have the right "to prescribe its own rules
with respect to the acquisition or retention of member-
ship," this proviso does not give a labor organization li-
cense to enforce union rules or policies which serve no
legitimate union interest and run counter to other Public
policies of an overriding nature that Congress has imped-
ed in the labor laws. L.R.B. v. Industrial Union of
Marine & Shipbuilding Workers of America, AFL-CIO, et
al., 391 U.S. 418 (1968). Specifically, it does not license a
union to deny membership because an individual has
filed charges or given testimony under the Act. Plumbers
Local Union No. 17. of the United Association of Journey-
men, Plumbers and Pipefitters of the United States and
Canada,. AFL-CIO (FSM Mechanical Contractor, Inc.),
224 NLRB 1262 (1976).
Accordingly, I find and conclude that by refusing to
give good-faith consideration to Graves' application for
membership because he had filed charges under the Act,
Respondent has violated Section 8(b)(l)(A) of the Act.3
CONC.USIONS OF LAW
1. By refusing to give good-faith consideration to the
membership application of James Graves because he had
filed charges under the Act, Respondent has engaged in
an unfair labor practice within the meaning of Section
8(b)(1)(A) of the Act.
2. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
' ithout benefit of citation or argument eyond the conclusionar
statemcnts. Repondent conlends that because counsel for the General
Counsel inrseligalted the charge herein. its rights under the Adminlsira-
tlie 'rocedures Act and the Fifth Amendment to the Constilutlon of the
United Stale, have been siolaled. and moves to dismiss the complaint
T'here is rno hasis in fact or las fior this motlon and it is accordingl)
denied
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Respondent, by counsel, contended at the hearing that
there were legitimate reasons for rejecting the applica-
tion of Graves if it had been considered. This contention,
however, begs the question. As the General Counsel
contends, James Graves was and is entitled to good-faith
consideration of his application, that is, without regard to
his invocation of statutory processes against Local No. 1,
Respondent, or any other labor organization, and with-
out regard to any other consideration contrary to law.
Therefore, it is appropriate that as well as being or-
dered to cease and desist from its action found to be vio-
lative of the Act herein, Respondent shall be ordered to
give good-faith consideration to any application for
membership submitted by Graves and to post an appro-
priate notice to its members.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER4
The Respondent, Machinery Movers, Riggers and Ma-
chinery Erectors Local 136 of the International Associ-
ation of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO, its officers, agents, and representatives,
shall:
I. Cease and desist from:
(a) Restraining and coercing employees in the exercise
of their rights guaranteed by Section 7 of the Act by re-
fusing to give good-faith consideration to membership
applications because said employees have filed charges
under the Act.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of their rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
4 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 find-
ings, 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.
(a) Upon request, give good-faith consideration to any
membership application James Graves files, or attempts
to file, with it.
(b) Post at its Chicago, Illinois, union hall copies of
the attached notice marked "Appendix." 5 Copies of said
notices on forms provided by the Regional Director for
Region 13, shall, after being duly signed by Respondent's
authorized representative, be posted immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
I In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board," shall read "Posted Pursu-
ant 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
WE WILL. NOT refuse to give good-faith consider-
ation to the application for membership filed by any
employee because said employee has filed charges
under the National Labor Relations Act, as amend-
ed.
WE WILL NOT in any other manner restrain or
coerce employees or applicants for membership in
the exercise of their rights protected by Section 7 of
the National Labor Relations Act.
WE WIl.L give good-faith consideration to any
applicant for membership filed by James Graves.
MACHINERY MOVERS, RIGGERS AND MA-
CHINERY ERECTORS LOCAl. 136 OF THE IN-
TERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAl AND ORNAMENTAL IRON
WORKERS, AFL-CIO
396