Hobart Crane Rental, Inc.

National Labor Relations Board - Board Decisions

May 10, 2002

337 N.L.R.B. 506 (N.L.R.B. 2002)

506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hobart Crane Rental, Inc., and Hobart Welding and
Fabrication, Inc., a Single Employer1 and Inter-
national Union of Operating Engineers, Local
150, AFL–CIO. Cases 13–CA–37664 and 13–
CA–37715
May 10, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On January 4, 2001, Administrative Law Judge Marion
C. Ladwig issued the attached decision. The Charging
Party filed exceptions with a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions to
the extent consistent with this Decision and Order and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Jessica Muth, Esq., for the General Counsel.

Steven A. Johnson, Esq., of Merrillville, Indiana, for the Re­

spondent.
Pasquale A. Fioretto and Carol L. Oshana, Esqs. (Baum, Sig­
man, Auerbach, Pierson, Neuman & Katsaros), of Chicago,
Illinois, for the Charging Party.
1 Since the judge found “that no useful purpose would be served” by
ruling on whether Hobart Crane Rental, Inc., and Hobart Weldingand
Fabrication, Inc., constituted a single employer as alleged in the con­
solidated complaint, he did not resolve this issue. As found below, we
agree that it is unnecessary to decide whether the two companies are a
single employer. We have decided not to modify the caption of the
case, as proposed by Member Cowen. The single-employer reference
in the caption is simply an allegation, reflecting the General Counsel’s
styling of the case, and does not indicate any determination by the
Board as to the single-employer issue.
Member Cowen agrees with his colleagues that it is unnecessary to
resolve whether, as alleged in the consolidated complaint, Hobart Crane
Rental, Inc., and Hobart Fabrication and Welding, Inc., constitute a
single employer. In addition, however, Member Cowen would amend
the case caption by deleting from it the phrase “a Single Employer.” It
is Member Cowen’s view that it is inappropriate to include within a
case caption a substantive allegation of the complaint. Such a practice
serves no legitimate purpose, and could tend to give the appearance that
the Board has prejudged the relationship among the parties.
2 Since we agree with the judge that the Board lacks jurisdiction over
the Respondent and dismiss the consolidated complaint on that basis,
we find it unnecessary to pass on the merits of the alleged violations.
DECISION
STATEMENT OF THE CASE
M ARION C. LADWIG, Administrative Law Judge. These con­
solidated cases were tried in Chicago, Illinois, on June 13–15,
2000. The charges were filed by Operating Engineers Local
150 (the Union or Local 150) on March 19, and April 6, 1999
(amended October 14, 1999), and the consolidated complaint
was issued October 20, 1999.
Hobart Crane Rental, Inc. (Hobart Crane), which rents large
truck cranes with crane operators to contractors in the construc­
tion industry, is a party to a Local 150 collective-bargaining
agreement that guarantees crane operators a full day’s pay of 8
hours.
Hobart Welding and Fabrication, Inc. (Hobart Welding), was
a nonunion company (located at the same address) which sold
steel support beams to residential contractors. It cut the steel
beams to the required lengths, transported them to the jobsite
(using a boom truck, a flat bed truck with a small hoist at­
tached), and installed them in the basement of new homes.
In September 1996, after repeated urgings by Hobart Crane,
Local 150 issued work permits to two of Hobart Welding’s
employees, Larry Mason and Jeffrey Bonick, to work for
Hobart Crane as crane operators. Hobart Crane paid the two
union permit operators the same union scale it paid its senior
union crane operators. (By June 1, 1998, under the union con-
tract, the union scale for crane operators was $26.95 an hour in
wages and $8.83 in benefits.) It, however, failed to honor its
agreement to pay the permit employees the crane operator’s 8-
hour minimum at union scale.
Hobart Crane assigned 8-hour crane operator jobs to its sen­
ior employees and assigned shorter jobs (of 2, 4, and 6 hours)
to Mason and Bonick. It then followed the practice (concealed
from the Union) of having Mason and Bonick, when assigned
to the shorter jobs, to work the rest of the day for Hobart Weld­
ing’s nonunion wages of little more than one-fourth the union
scale. This provided them full-time employment, but violated
Hobart Crane’s contractual obligation to pay them the 8-hour
guarantee.
After 2 years, on October 14, 1998, when both Mason and
Bonick had received their union journeyman cards and had
reported the continual contract violations to the Union, they
informed Hobart Crane that they would go “by the contract” or
“by the book” (to be paid the 8-hour minimum for crane opera-
tors, at the union scale).
Hobart Crane informed them it could not afford to pay them
the 8-hour guarantee on shorter jobs and explained that it would
have to turn down shorter jobs for them unless it could schedule
more shorter jobs in a day. It could no longer provide them
full-time employment, but it promised to do its best to keep
them busy. It also advised them that they had better go to the
Union’s training site to qualify themselves to work on more
types of equipment; otherwise they would “starve” being re­
ferred (with their limited skills) to jobs from the Union’s out-
of-work list when not working for Hobart Crane.
Mason and Bonick continued working, but 2 days later, on
Friday, October 16, 1998, Hobart Crane notified them that there
was no work for them on Monday, October 19 (their first time
337 NLRB No. 77
HOBART CRANE RENTAL 507
ever to be laid off). Thereafter, Hobart Crane recalled Mason
(the more experienced operator) to work 1 or more days on
October 20 and 23, November 2, 11, 16, and 30, December 8,
1998, and on January 27, February 3, March 15, April 29, May
21, and June 4 and 11, 1999. It recalled Bonick on October 20
to work 4 days and on November 16, 1998 to work 2 days.
The primary issue is whether Hobart Crane discriminatorily
laid off Larry Mason and Jeffrey Bonick on October 16, 1998,
because they “assisted the Union and engaged in concerted
activities,” discouraging membership in the Union in violation
of Section 8(a)(3) and (1) of the Act.
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Hobart Crane and Hobart Welding,
and the Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges that Hobart Crane and Hobart Weld­
ing as “Respondent,” had direct and indirect outflow by per-
forming services valued over $50,000 for out-of-State enter­
prises and for in-State enterprises, including two named enter­
prises, “which themselves meet the Board’s direct jurisdictional
standard.” The answer denied this allegation.
The complaint also alleges that “Respondent” had direct and
indirect inflow by receiving goods valued over $50,000 directly
from outside the State and from in-State enterprises, each of
which “received the goods directly from points outside the
State.” The answer also denies this allegation.
At the trial, the parties stipulated that Hobart Crane’s 1997
income tax return shows gross sales of $1,037,173 and pur­
chases of $126,753, and that its 1998 income tax return shows
gross sales of $798,292 and purchases of $100,363. They also
stipulated that “Respondent” purchases over $5000 in materials
and equipment “directly from points located outside the State.”
(Tr. 6–7.) Hobart Welding’s 1998 income tax return shows
gross revenues of $607,316 and purchases of $81,775.05 (GC
Exh. 18).
The evidence, however, fails to support the allegations that
Hobart Crane, Hobart Welding, or both of them together, had
$50,000 in direct and indirect outflow, or $50,000 in direct and
indirect inflow, as required for asserting Board jurisdiction over
nonretail enterprises. Siemons Mailing Service, 122 NLRB 81,
85 (1958).
The evidence does not show that Hobart Crane had any di­
rect or indirect outflow in 1997 or 1998. For Hobart Welding,
invoices in evidence show direct inflow of $487.07 in 1997 and
$241.29 in 1998 from a Wisconsin supplier (GC Exh. 22), and
invoices from an out-of-State company shows in-State pur­
chases totaling $42,399 in 1998 (GC Exh. 19; Tr. 630–631).
Other Hobart Welding invoices in evidence show neither direct
or indirect inflow (Tr. 632–635; GC Exhs. 20, 21). (There is no
contention that Hobart Crane or Hobart Welding concealed any
relevant invoices at the trial.) Thus, the evidence does not show
any direct or indirect outflow and merely shows that Hobart
Crane and Hobart Welding together had $487.07 in direct in-
flow in 1997 and $42,640.29 ($241.29 plus $42,399) in direct
and indirect inflow in 1998.
I therefore find that the General Counsel has failed to prove
that the Board has jurisdiction in this proceeding. Alterna­
tively, however, I shall rule on the merits of the allegation that
Hobart Crane discriminatorily laid off Larry Mason and Jeffrey
Bonick in October 1998.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Work Permits for Larry Mason and Jeffrey Bonick
On September 14, 1996, after repeated urgings by Hobart
Crane, Local 150 issued work permits to two of Hobart Weld­
ing’s employees, Larry Mason and Jeffrey Bonick, to work for
Hobart Crane as truck crane operators. Hobart Crane had been
a union contractor since 1991, renting large truck cranes with
union crane operators to contractors in the construction indus­
try. (Tr. 26–28, 43–44, 114, 127, 129, 161, 196, 260–261, 281–
282, 335–336, 429–430, 485–488, 492, 544–545, 564–566; GC
Exhs. 2–4, 7–8, 12; R. Exh. 2; CP Exhs. 4 p. 2, 5 p. 2.)
Hobart Welding, located at the same address, was a nonun­
ion company that sold steel support beams to residential con-
tractors. It cut the steel beams to the required lengths, trans-
ported them to the jobsite (using a boom truck, a flatbed truck
with a small hoist attached), and installed them in the basement
of new homes. (Tr. 183, 268, 345–346, 484, 487–490, 492,
529, 545.)
Hobart Welding President Robert Czarny revealed at the trial
that Hobart Welding, in business since 1978, had become a
break-even operation and that he had been planning to dissolve
it for years (Tr. 484, 746). Czarny, however, also managed
Hobart Crane, and he could take advantage of having both
companies being located in the same shop (Tr. 663).
Hobart Crane’s collective-bargaining agreement with Local
150 guarantees crane operators a full day’s pay of 8 hours (GC
Exh. 13 pp. 10–11, art. 5, secs. 3–4). By getting union permits
for Mason and Bonick, instead of hiring Local 150 journeymen,
he could assign 8-hour jobs to his senior union crane operators
and assign shorter jobs (of 2, 4, or 6 hours) to Mason and
Bonick. Then when they arrived back at the shop from a short
job, he would pay them (without notifying the Union) Hobart
Welding’s nonunion wages for the remaining hours, instead of
the 8-hour guarantee at union scale. (Tr. 169, 186–187, 225,
276–278, 407, 573–575, 680–682.)
The saving to Hobart Crane would be substantial. When this
case arose in October 1998, the wage scale for a crane operator
in the union contract (since June 1, 1998) was $26.95 an hour
in wages and $8.83 in benefits, totaling $35.78 an hour (GC
Exh. 13 p. 21, art. 8, sec. 1; CP Exh. 1 p. 6). Mason and
Bonick were being paid the full union scale for the length of
their short crane operator jobs, but Mason was being paid
$9.50, and Bonick $9, for the remainder of the 8-hour contrac­
tual guarantee (Tr. 225, 263).
Mason and Bonick—in fear of losing their jobs—did not
complain to Czarny about the continuing contract violations, or
report the violations to the Union, before both of them became
journeymen (Tr. 175, 285). Bonick, the “low guy on the totem
pole,” rarely worked on 8-hour jobs. Mason recalled that he
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
did “more of the shorter jobs” than he did the 8-hour jobs and
that more experienced crane operators got the longer jobs most
of the time. (Tr. 225, 407.)
B. Pay Complaints After Becoming Journeymen
After Larry Mason received his union journeyman card on
May 1, 1998, he discussed with Jeffrey Bonick their dissatisfac­
tion with Hobart Crane’s failure to pay the contractual 8-hour
minimum, at union scale, for crane operator work. They de­
cided that they would wait to report the violations to Local 150
until after Bonick also received his union journeyman card, to
ensure that “if we lost our jobs,” both of them could find other
work through the Union. (Tr. 25, 95, 99, 118–119, 127–129,
155–156, 172–173, 238–239, 261–262, 282–283; CP Exh. 4 p.
2.)
On September 19, when Bonick received his journeyman
card, Mason and Bonick reported to Local 150 Business Agent
John Sorensen that “we were getting paid two different rates
[with a second check through Hobart Welding] and we weren’t
getting paid the full 8 hours when we’d run equipment.” Soren­
sen advised them to talk to Czarny: “Explain to him that 8
hours constitute a minimum day” and “If they start to work,
then he has to pay them at least 8 hours.” Sorensen had never
heard of Hobart Welding before. (Tr. 98–100, 109, 173–175,
370, 284–285; CP Exh. 5 p. 2.)
Still being afraid of losing their jobs, Mason waited until Oc­
tober 8 or 9, 1998, to speak to Czarny. He then told Czarny
that the Union knew “we were getting two rates of pay.” (Tr.
175, 285–286, 375.)
About Tuesday, October 13, Czarny told Mason “if we
wanted to keep working with two rates,” Czarny could do away
with the Hobart Welding check “to avoid problems with the
Union” and pay Larry Mason as “Larry’s Crane Service or he
could pay me through my wife like she was a bookkeeper,” or
“maybe even cash.” (Tr. 286–287, 447–448, 743.)
After this conversation, Czarny spoke to Bonick and “said
there would be no more Hobart Welding checks” and “that he
could pay me a different way somehow. Either pay me under
Bonick’s Repair Service or he could pay me under my girl-
friend’s name or pay me in cash.” (Tr. 175–176, 743.)
The following day, Wednesday, October 14, Mason told
Czarny “I am going to have to go by the contract.” Bonick then
walked up and Czarny asked him, “What about you?” Bonick
responded, “by the book.” (Tr. 176–177, 287, 434, 752–753.)
In their conversations, Czarny informed Mason and Bonick
that Hobart Crane could not afford to pay them the 8-hour
guarantee on shorter jobs and explained that he would have to
turn down shorter jobs for them unless he could schedule more
shorter jobs in a day. He could no longer provide them full-
time employment, but he promised to do his best to keep them
busy. He also advised them that they had better go to the Un­
ion’s training site to qualify themselves to work on more types
of equipment; otherwise they would “starve” being referred
(with their limited skills) to jobs from the Union’s out-of-work
list when not working for Hobart Crane. (Tr. 177, 234–235,
287–288, 476, 743–745.)
C. The Layoffs
Mason and Bonick continued working after this Wednesday,
October 14 conversation, but on Friday, October 16, they were
notified that there was no work for them on Monday, October
19, 1998, their first time to be laid off (Tr. 178–179, 287–288,
337–338).
After being notified about the layoff, Business Agent Soren­
sen went to the Hobart Crane shop and met Czarny’s wife,
Linda Czarny (who held the titles of president of Hobart Crane
and secretary-treasurer of both Hobart Crane and Hobart Weld­
ing). When Sorensen asked to talk to Czarny, Linda Czarny
said that she did not know when he would be around and that
Sorensen could talk to her. (Tr. 101–103.)
Sorensen started talking to her about the union contract.
Linda Czarny responded that if he wanted to talk about any-
thing like that, he could audit the company. Sorensen said he
did not want an audit, but wanted to get to the bottom of the
problem about the 8-hour guarantee. She responded that “the
Union’s always trying to stir up shit,” called Sorensen a “fuck­
ing asshole,” and referred him to “my attorney.” (Tr. 103–104.)
After a few minutes Czarny arrived and said he was Bob
Czarny. Sorensen tried to talk to him about the problem, but
Linda Czarny said he could not talk to Czarny. Sorensen said
“I’d like to just talk to Bob for a couple of minutes. And she
still kept complaining and yelling.” Czarny told his wife “to be
quiet” and walked a short distance away with Sorensen to dis­
cuss the contract issue. (Tr. 104–105.)
Sorensen stated that the contract calls for an 8-hour mini-
mum and asked if Czarny “could bring back [the junior, least
experienced] Jeff Bonick to work and he said he couldn’t.”
Czarny promised, however, to bring Larry Mason back “if I
have work for him.” Sorensen then told Czarny, “whatever you
do you have to do it according to the contract.” (Tr. 105, 200,
225, 407, 747.)
There was no mention in any of the conversations that
Czarny held with Mason, Bonick, or Sorensen about the two
employees giving up their union employment with Hobart
Crane and Czarny offering them employment instead with the
nonunion Hobart Welding (Tr. 175–178, 286–288, 434, 447–
448, 458, 743–745, 752–753).
After the layoffs on October 16, Hobart Crane recalled Ma-
son to work 1 or more days on October 20 and 23, November 2,
11, 16, and 30, December 8, 1998 and on January 27, February
3, March 15, April 29, May 21, and June 4 and 11, 1999, before
he was referred to another employer on July 6, 1999 (Tr. 118–
124, 151–152; CP Exh. 4 pp. 2, 4). It recalled Bonick on Octo­
ber 20 to work 4 days and on November 16, 1998 to work 2
days (Tr. 130–131; CP Exh. 5 p. 2).
D. Contentions and Concluding Findings
As found, Hobart Crane obtained union permits for Larry
Mason and Jeffrey Bonick to work as crane operator on unprof­
itable shorter jobs of 2, 4, or 6 hours to evade its obligation
under the union agreement to guarantee all its crane operators a
full day’s pay of 8 hours.
Taking advantage of the permit operators’ fear of being laid
off before becoming union journeymen, without any opportu­
nity of obtaining other union employment, Hobart Welding
HOBART CRANE RENTAL 509
President Robert Czarny (as manager of Hobart Crane) con­
cealed from the Union his practice of underpaying Mason and
Bonick.
When assigning them to work as crane operators for Hobart
Crane on the shorter jobs, Czarny paid them the $35.78 union
scale ($26.95 wage and $8.83 in benefits) for only the 2, 4, or 6
hours, reporting only the benefit payments for those hours to
the union fringe benefit funds (CP Exhs. 2–3). Then for their
work at Hobart Crane’s and Hobart Welding’s shop during the
rest of the day, Czarny—without notifying the Union—placed
Mason and Bonick on the Hobart Welding payroll and paid
them nonunion wages of little more than one-fourth the union
scale, $9.50 an hour for Mason and $9 an hour for Bonick.
For example, when Czarny assigned Mason as crane operator
on Hobart Crane’s popular $189 special for renting a truck
crane with crane operator for 2 hours (Tr. 573–574, 744),
Czarny would pay Mason $9.50 an hour after the 2 hours. In-
stead of having Hobart Crane pay him the contractual 8-hour
guarantee of $286.24 (the $35.78 an hour union scale times 8)
for the day’s work, Czarny would pay him only $128.56
($71.56 on Hobart Crane’s payroll for the first 2 hours and $57
on Hobart Welding’s payroll for the remaining 6 hours)—
underpaying Mason $157.68 for the day.
Czarny had been planning for years to dissolve Hobart Weld­
ing because it was only breaking even, but he kept it in opera­
tion as a means of evading Hobart Crane’s obligation under the
union agreement to guarantee its crane operators a full day’s
pay of 8 hours.
Although Hobart Crane continually violated its collective-
bargaining agreement and concealed the violations from the
Union for 2 years, the complaint does not allege that the viola­
tions constituted an unlawful refusal to bargain, violating Sec­
tion 8(a)(5) of the Act.
Instead, the complaint alleges that in October 1998 (after
Mason and Bonick became union journeyman and refused to
continue working in violation of the union agreement), Hobart
Crane discriminatorily laid them off because they “assisted the
Union and engaged in concerted activities,” discouraging
membership in the Union in violation of Section 8(a)(3) and
(1).
The General Counsel’s theory, as expressed in his brief (at
22–23), is that their layoff was unlawfully motivated under
Wright Line, 251 NLRB 1083 (1980), and violated Section
8(a)(3) and (1) because “Mason and Bonick engaged in pro­
tected concerted activity when they asserted their contractual
right to be paid in accordance with the 8-hour guarantee provi­
sion” in the collective-bargaining agreement.
To the contrary, the layoff of Mason and Bonick was moti­
vated by the Union’s discovery that Hobart Crane had been
violating the collective-bargaining agreement. Hobart Crane
had obtained union permits for them to work for it as crane
operators to evade the contractual 8-hour guarantee and enable
it to obtain and perform the shorter crane operator jobs of 2, 4,
and 6 hours at a profit, by paying Mason and Bonick nonunion
wages for all hours worked beyond those hours during the day.
Once its contract violations were discovered, Hobart Crane
had a business reason for assigning Mason and Bonick less
work after October 16, 1998. As Czarny explained to them at
the time, Hobart Crane could not afford to pay them the 8-hour
guarantee on the shorter jobs and he would have to turn down
shorter jobs for them unless he could schedule more shorter
jobs in a day.
Therefore, even assuming that the evidence supports the
General Counsel’s theory that Hobart Crane was illegally moti­
vated under Wright Line by laying off Mason and Bonick be-
cause they asserted their contractual right to be paid in accor­
dance with the contractual 8-hour guarantee, the evidence
shows that there was no Section 8(a)(3) and (1) violation.
Without being able to continue evading Hobart Crane’s obli­
gation to pay Mason and Bonick the full day’s pay of 8 hours
for their crane operator work on the shorter jobs, it would have
to turn down shorter jobs for which they had been paid the
union scale for only a portion of the day. For example, it could
not afford to pay them the 8-hour guarantee of $268.24 to per-
form Hobart Crane’s popular $189 special for a 2-hour job.
Under these circumstances, Hobart Crane has met its burden
of proof under Wright Line that it would have taken the same
action in turning down the unprofitable shorter jobs, limiting
work for Mason and Bonick, even if they were not the ones who
revealed Hobart Crane’s contractual violations to the Union.
I therefore find that Hobart Crane did not violate Section
8(a)(3) and (1) of the Act.
E. Other Allegations
The complaint also alleges that Hobart Crane and Hobart
Welding were a “single employer” and that Hobart Crane
unlawfully refused to furnish the Union with information re­
garding that allegation. Both allegations were exhaustively
litigated at the trial.
For the following reasons I find that no useful purpose would
be served by rulings on these allegations.
(1) As found, the General Counsel has failed to prove that
the Board has jurisdiction in this proceeding even when both
companies’ inflow and outflow are included in the totals.
(2) Whether or not the two companies were a single em­
ployer is irrelevant in determining the merits of the allegation
that Hobart Crane discriminatorily laid off Larry Mason and
Jeffrey Bonick.
(3) Hobart Welding was dissolved as a corporation in De­
cember 1999 (Tr. 481, 662).
CONCLUSIONS OF LAW
1. The General Counsel has failed to prove that the Board
has jurisdiction in this proceeding.
2. Hobart Crane did not violate Section 8(a)(3) and (1) of
the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The complaint is dismissed.
1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur­
poses.