Hoisting and Portable Engineers, Local 4, IUOE

National Labor Relations Board - Board Decisions

Apr 11, 1963

141 N.L.R.B. 1231 (N.L.R.B. 1963)

HOISTING AND PORTABLE ENGINEERS, LOCAL 4, IUOE 1231
Hoisting and Portable Engineers, Local 4, International Union
of Operating Engineers , AFL-CIO, and its Agent, Walter
Ryan [Corey Steeplejacks, Inc.] and William F. Cronin. Case
No. 1-CB-783. April 11, 1963
DECISION AND ORDER
On December 27, 1962, Trial Examiner John F. Funke issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondents filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondents' exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
additions.
The Trial Examiner found, and we agree, that Respondents unlaw-
fully caused the Employer, Corey Steeplejacks, Inc., to discharge
employee Cronin because Cronin was not a member of, and was not
acceptable for membership in, Respondent Union.
As principally set forth in the Intermediate Report and as more
fully reflected in the record, Corey was awarded the demolition sub-
contract on a project involving extension of the Massachusetts Turn-
pike. Respondent Ryan testified that the general contractor, Perini
Corporation, before awarding the Corey subcontract, because of its
practice of not allocating contract work to nonunion employers, con-
tacted Respondent Union to determine Corey's status. At that time,
Corey had no contract with Local 4 and had previously operated
on a nonunion basis. On the understanding that Corey and its em-
ployees wanted to become "union," and that it would sign a contract
with Local 4 and observe its rules, Respondent Union informed Perini
that it had no objection to subcontracting to Corey. Perini there-
upon awarded the demolition work to that firm.
Cronin, whose employment was initially solicited by Corey, re-
ported to work on July 5 as an oiler on a P. & H. 10-ton crawler
crane. Thereafter, he continued to work as an oiler, was regarded
141 NLRB No. 119.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as an oiler by Corey, and was compensated at the oiler rate. On July
26 or 27, Respondent Ryan appeared at the worksite. According
to the credited testimony of Cronin, Ryan, in a conversation with
Bob Corey, a management representative of Corey Steeplejacks,
stated, after observing Cronin, that he did not want nonunion labor
on the job. In a later conversation with President James Corey,
Ryan stated that Cronin was unacceptable for membership in Local
4, and that he could notbe used on any power equipment.' Although
Corey was satisfied with Cronin's work performance, he complied
with Ryan's demand and on August 3 removed Cronin from work
on the crane. Cronin continued to work for Corey until August
10 doing odd jobs in the expectation that Corey would give him a
job on another piece of equipment, but left when Corey finally told
him he could not do so because of Ryan's objections.
From the testimony of James Corey, which we credit,2 it appears
that at the time Ryan requested Cronin's removal from work on the
crane, he also insisted that the oiler's job be filled by an unemployed
member of Local 4. Corey, however, indicated that if he had to
put someone else in the oiler's job, he preferred filling it with his
son-in-law. The parties eventually reached a "compromise" whereby
the son-in-law was to work as an oiler and be admitted to the Union.
Thereafter on August 29, 16 of Corey's employees were cleared for
membership in Local 4 and a collective-bargaining agreement was
executed with Local 4 on October 1 or 2.
In view of the foregoing, we find that employment on the Corey
job was conditioned on union membership and that Cronin was dis-
charged on Ryan's demand because he was unacceptable for union
membership. As Perini's award of a contract to Corey was con-
tingent on the approval of Local 4, we do not regard Ryan's demand
as mere persuasion that Corey employ union labor. Accordingly,
we find that the Respondent caused Corey unlawfully to discharge
Cronin in violation of Section 8(a) (3), thereby violating Section
8(b) (2) and (1) (A) of the Act.
ORDER
The Board hereby adopts as its Order the Recommended Order
of the Trial Examiner,3 except that, in accordance with our usual
policy, we shall not hold Respondent Ryan personally liable for
backpay.
'The record contains some indication that Cronin was unacceptable for membership in
Local 4 because of his alleged reputation as a "wage cutter."
2 Although the Trial Examiner did not specifically advert to this testimony by Corey, he
discredited certain testimony of Ryan which was inconsistent therewith.
3 Member Leedom dissents from the inclusion of interest in the backpay obligation for
the reasons stated in the dissent in Isis Plumbing & Heating Co, Inc., 138 NLRB 71G.
HOISTING AND PORTABLE ENGINEERS, LOCAL 4, IUOE 1233
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed August 6, 1962, by William F. Cronin, an individual, against
Hoisting and Portable Engineers, Local No. 4, International Union of Operating
Engineers, AFL-CIO, and its agent, Walter Ryan, herein called Local 4 or the
Union and Ryan, respectively, and collectively as the Respondents, the General
Counsel issued a complaint alleging Respondents violated Section 8(b)(2) and
(1) (A) of the Act by causing Corey Steeplejacks, Inc., herein called Corey, to discrim-
inate against Cronin in hire and tenure of employment by reason of his non-member-
ship in Local 4.
The answer denied that Corey was engaged in commerce within the meaning of
the Act and denied the commission of unfair labor practices.
This proceeding, with the General Counsel and Respondents represented was
heard before Trial Examiner John F. Funke at Boston , Massachusetts, on October
29, 1962, and at the conclusion of the hearing the parties were given leave to file
briefs. A brief was received from Respondent on November 26.
Upon the entire record in this case, and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF COREY
Corey Steeplejacks, Inc., is a Massachusetts corporation having its office and prin-
cipal place of business in Lowell, Massachusetts, where it is engaged in the razing
and demolition of buildings and other structures. During 1962 Corey was engaged
as a subcontractor to Perini Corporation in the demolition of buildings at Kenmore
Square, Boston. The value of the subcontract was in excess of $200,000 and it was
stipulated that Perini Corporation, engaged in the heavy construction industry,
annually performed services outside the State of Massachusetts valued in excess
of $50,000. James E. Corey, president of Corey, testified that in 1962 his company
had, as prime contractor, engaged in an urban renewal development project at Man-
chester, New Hampshire, of a value of $60,000 or $70,000.
The work performed for Perini was part of the extension of the Massachusetts
Turnpike from Weston, Masachusetts, to downtown Boston.
I find Corey engaged in commerce within the meaning of the Act.' The motion
made by Respondent at the hearing to dismiss the complaint on jurisdictional grounds
is accordingly denied.
II. LABOR ORGANIZATION INVOLVED
Local 4 a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
1. The testimony of Cronin
Cronin testified that on July 4, 1962,2 he received a telephone call from Jack
Corey, employed by Corey, who asked him if he wanted to go to work. Conin said
he did and was told he would be broken in on a P. & H. 10-ton crawler crane and
to report the next morning to Newbury Street, Boston. Cronin was a licensed en-
gineer but not a member of Local 4, although he had worked on Local 4 jobs under
a permit.
Cronin went to work the next day as an oiler at the jobsite at Kenmore Square,
where Bob Corey was foreman. Cronin testified that on either July 26 or 27 he
had a conversation with Bob Corey in which Corey told him that Ryan, business
manager of Local 4, had told him that he (Ryan) objected to Cronin working as
either an operator or oiler 3 and that he would not take Cronin into the Union.
According to Cronin this topic was discussed between Bob Corey and himself on
the succeeding days Cronin worked as oiler.
On further direct examination Cronin testified that on July 26 or 27, Ryan came
to the jobsite and walked up to him (Cronin was beside the machine) and told him
to get the operator (Paul Corey) off the machine and bring him down. Cronin
Siemons Mailing Service, 122 NLRB 81.
z Unless otherwise noted all dates are 1962.
3,Cronin stated he received an oiler's rate but operated the crane for a total time period
of 3 or 4 days while he was employed
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repeated this request to Bob Corey, also present, who talked to Ryan. Ryan, after
talking to Bob Corey, walked over to Cronin and asked him his name, age, and
address and how long he had been working for Corey. Ryan then went back to
Bob Corey and Cronin testified that he overheard Ryan tell him that he did not
want any nonunion men on the job.
Cronin testified that on the afternoon of August 3 (a Friday) Ed Corey came to
him and told him Ryan objected to his working as either operator or oiler and that
on Monday he would try to find another job for him. Ed Corey repeated that Ryan
had said he would not take Cronin into Local 4 and then asked Cronin, as a favor,
to instruct his (Corey's) son-in-law how to oil and adjust the machine. Corey's
explanation was that he and Ryan had reached a "compromise" and that Ryan would
permit the son-in-law to join Local 4 and work as an oiler. Cronin continued to
work for Corey from August 6 to 10 doing odd jobs on the site but he did not work
with the crane.
When Cronin turned in his timecard on August 10 he asked both Bob and Ed
Corey about working as a power shovel operator and again was told that Ryan would
not take him into Local 4 as an operator for the Northwest Model 6 power shovel
they wanted him to use.
2. The testimony of James Corey
James Corey, president of Corey, was a reluctant and evasive witness and it was
apparent that his reluctance and evasiveness stemmed from an unwillingness to give
testimony which he considered damaging to the Respondents.4 Corey admitted that
Cronin was a satisfactory worker and he also admitted that Ryan told him Cronin
was not acceptable and could not be admitted into membership in Local 4. He also
admitted telling Cronin, when he and Cronin were discussing Cronin's working on
the power shovel, that Ryan had told him he could not use Cronin on any machine.
Finally, he admitted that he was telling Cronin the truth when he so adivsed him
and that Ryan had told him he could not use Cronin and that this was the reason
Cronin was removed as oiler on the crawler crane on August 3 5
3. The testimony of Walter J. Ryan
Walter J. Ryan testified that he was employed as business agent of Local 4, an
elective office, and that he had six other representatives of Local 4, responsible to
him, on the road. He is also a member of the executive board of Local 4 and stated
that "the overall policy of the union, between executive board meetings and regular
meetings, would be formulated to a good degree by my thinking " 6
Ryan first testified to discussions before Corey started on the project, initiated
by Perini, as to any objections Local 4 might have to Perini's subcontracting to
Corey, not at that time under contract with Local 4. Since Ed Corey 7 had previ-
ously told another business agent of Local 4 that his men wanted to become mem-
bers of Local 4, Ryan expected a contract with Corey and raised no objection with
Perini. Discussions between Corey and Ryan took place in the fall of 1961 and
since no contract had been signed by late July of 1962 Ryan went to the jobsite
at Kenmore Square. Ryan saw the other rig first, and then testified he saw the
second rig operated by Paul Corey. He said he saw "this fellow hosing down
debris" and then asked for the operator. Robert Corey came over and told Ryan
the operator was his brother and when asked who the oiler was he told him Cronin
("the fellow hosing down debris") was the oiler. Ryan then demanded another
oiler on the ground that Cronin was doing a laborer's work. After some discus-
sion and repeated requests by Ryan that a Local 4 man be put on the job, Ed
`J,unes Corey was called as a witness by the General Counsel and during his direct
examination the General Counsel moved to have him declared a hostile witness After
fuither interrogation, however, Corey responded more directly and it was not necessary to
rule on the motion
i This Is Corey's testimony:
Q (By the TRIAL EXAMINER ) Well, when you told him, were you telling him the
truth" By that I mein, had Air Ryan told you you couldn't use Cronin on any
job involving a machine?
A. Yes.
Q (By Mr MACa ) And, Air. Corey, is that why on August 3rd he was removed
as oiler, is that correct?
A. Yes.
On the above testimony I find that Ryan was at all times material herein an author-
ized agent of Local 4.
7 James Corey is also and more familiarly known as "Ed" Corey.
HOISTING AND PORTABLE ENGINEERS, LOCAL 4, IUOE 1235
Corey told him that if he was going to employ another oiler he would put his
son-in-law on the job.8 Ryan testified he never went back to the jobsite but that
at a later date Local 4 received 17 applications for membership from Corey em-
ployees and that on October 1 or 2 a collective-bargaining contract was signed
between Local 4 and Corey. Ryan denied asking Corey not to employ Cronin
and stated his request for a union oiler on Cronin's rig was the result of his observ-
ance of Cronin hosing down debris. This, he feared, would lead to a jurisdictional
dispute with the Building Wreckers' Union, which, according to Ryan, claimed
the right to a third man on the rig, presumably for doing this type of work.
This summarizes the material testimony.
B. Conclusions
Cronin was a credible witness and I accept his testimony that he overheard
Ryan tell Bob Corey that he did not want any nonunion men on the job .9
My finding in this Base is based chiefly on the testimony of James Corey. As
has been stated, Corey was quite apparently unwilling to testify adversely to the
interests of Respondents. After persistent interrogation, however, he directly and
unequivocally admitted that Ryan had told him that Cronin was not acceptable and
that that was the reason Cronin was removed from the crawler crane and denied
work on the power shovel. This testimony I fully credit and it determines the
sole issue of the case. More direct evidence of discrimination could not be found.
As to Ryan's testimony that he asked for the employment of a union oiler be-
cause he observed Cronin performing work which Ryan felt came within the juris-
diction of the Building Wreckers' Union, I find it suspect. If, as Ryan claimed,
three men should have been attached to the rig, one of them a member of the
Wreckers' Union, then the obvious solution to the problem, and the one which
certainly would have been employed if Cronin had been a union member, would
have been to restrict Cronin to oiling and to employ a Wrecker for hosing down.
I find that Respondents, by causing Corey to remove Cronin from his job as
oiler on the crawler crane and by causing Corey to refuse to offer Cronin em-
ployment on the power shovel because Cronin was not a member of Local 4,
violated Section 8(b)(2) and (1)(A) of the Act.
IV. THE REMEDY
Having found the Respondents have engaged in and are engaging in certain un-
fair labor practices affecting commerce, it is recommended that Respondents cease
and desist therefrom and take certain affirmative action in order to effectuate the
policies of the Act.
It has been found that Respondents, by attempting to cause and causing Corey
to discriminate against Cronin by removing from his job as oiler on a P. & H. 10-
ton crawler crane and denying him work as oiler on a power shovel, restrained
and coerced employees in violation of Section 8(b)(2) and (1) (A) of the Act. It
shall be recommended that Respondents cease and desist from such action and it
shall be further recommended that the Respondents shall make Cronin whole for
any loss of pay suffered by him as a result of such discrimination, computation to
be made in accordance with the Woolworth formula.1° Interest at the rate of 6
percent per annum shall be added to said backpay to be computed as set forth in
Isis Plumbing 11 Liability for backpay shall cease 5 days after Respondents notify
Corey they have no objection to the employment of Cronin as an oiler or for
any other position for which he may be qualified, or when the Corey subcontract
with Perini for the Turnpike project is completed, whichever is sooner. Comple-
tion of the subcontract shall not, however, relieve Respondents of the obligation
to notify Corey of their withdrawal of their objections to the employment of Cronin.
Upon the basis of the above findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Corey Steeplejacks, Inc., is engaged in commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
8Corey's son-in-law was not a member of Local 4 but was admitted to membership by
Ryan and took over Cronin's work.
8 As to other conversations between Cronin and Bob Corey in which Corey related Ryan's
objections, I do not hold these binding upon the Respondents.
10 F. W. Woolworth Company, 90 NLRB 289.
n Isis Plumbing & Heating Co., Inc., 138 NLRB 716.
708-006-64-vol. 141-79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent Local 4 is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent Walter Ryan is and at all times material herein was an agent of
Local 4 within the meaning of the Act.
4. By causing and attempting to cause Corey to discriminate against Cronin with
respect to his hire and tenure of employment, Respondents have engaged in and
are engaging in unfair labor practices in violation of Section 8(a)(2) and (1) (A)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I hereby recommend that the Respondents Hoisting
and Portable Engineers, Local 4, International Union of Operating Engineers, AFL-
CIO, its officers, agents, representatives, successors, and assigns and Walter Ryan,
its agent, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Corey Steeplejacks, Inc., to discriminate
against William F. Cronin or any employee with respect to hire and tenure of
employment by denial of work assignments.
(b) In any like or related manner restraining or coercing employees in violation
of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
(a) Make William F. Cronin whole for any loss of pay he may have suffered
by reason of the discrimination against him in the manner set forth in that section
of the Intermediate Report entitled "The Remedy."
(b) Notify Corey Steeplejacks, Inc., in writing, that they withdraw their objec-
tions to the employment of Cronin as an oiler or for any other position for which
he is qualified.
(c) Respondent Local 4 shall post at its office at Boston, Massachusetts, copies
of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished
by the Regional Director of the First Region, shall, after being duly signed by an
official representative of Respondent Local 4, be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days in conspicuous places,
including all places where notices to its members are customarily posted. Reasonable
steps shall be taken to insure that said notices are not altered, defaced, or covered
by other material.
(d) Respondent Local 4 shall mail signed copies of said notice to the Regional
Director for the First Region for posting by Corey Steeplejacks, Inc., it willing, at
all locations where notices to Corey's employees are customarily posted.
(e) Notify the Regional Director for the First Region, in writing, within 20
days from the date of this Intermediate Report what steps the Respondents have
taken to comply herewith.13
12 In the event this Recommended Order be adopted by the Board, the words "A Decision
and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
1s In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES OF COREY STEEPLEJACKS, INC., AND TO ALL
MEMBERS OF HOISTING AND PORTABLE ENGINEERS, LOCAL No. 4, INTERNATIONAL
UNION OF OPERATING ENGINEERS, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
MILK DRIVERS' UNION, LOCAL 753, IBTCWHA 1237
WE WILL NOT cause Corey Steeplejacks, Inc., to discriminate against William
F. Cronin, or any other employee, by taking him off his job as oiler on a crane
or by refusing to give him a job on a crane or give him any job for which he is
qualified because Cronin is not a member of Local 4.
WE WILL make William F. Cronin whole for any pay he may have lost because
of the discrimination against him.
WE WILL NOT in any like or related manner coerce or restrain employees in
the exercise of the rights guaranteed them by Section 7 of the National Labor
Relations Act.
HOISTING AND PORTABLE ENGINEERS, LOCAL 4, INTERNATIONAL
UNION OF OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 24 School
Street, Boston Five Cents Savings Bank Building, Boston 8, Massachusetts, Telephone
No. Lafayette 3-8100, if they have any question concerning this notice or compliance
with its provisions.
Milk Drivers ' Union, Local 753, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers of America,
and Peter Smith , its Agent and Pure Milk Association ; Sidney
Wanzer & Sons, Inc.
Milk Drivers' Union , Local 753, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
and Peter Smith , its Agent and Pure Milk Association ; Sidney
Wanzer & Sons, Inc. Cases Nos. 13-CC-297-1, 13-CC-297-,Q,
13-CE-9-1, and 13-CE-9-°. April 11, 1963
DECISION AND ORDER
On October 11, 1962, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel and the Charging Parties filed exceptions
to the Intermediate Report and supporting briefs.- The Respondents
filed a brief in support of the Intermediate Report.
The Board has reviewed the Trial Examiner's rulings made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings and conclusions of the Trial
Examiner only insofar as they are consistent with this Decision and
Order.
The Board hereby denies the Charging Parties ' request for oral argument , because the
record , the exceptions, and briefs adequately present the Issues and positions of the parties.
141 NLRB No. 103.