International Association Of Bridge, Structural And Ornamental Iron Workers, Local No 15, Afl-Cio (Gateway Industries, Inc )

National Labor Relations Board - Board Decisions

Oct 17, 1988

291 N.L.R.B. 369 (N.L.R.B. 1988)

IRON WORKERS LOCAL 15 (GATEWAY INDUSTRIES)
International Association of Bridge , Structural and
Ornamental Iron Workers , Local No 15, AFL-
CIO (Gateway Industries , Inc) and David Hen
drick Case 39-CB-956
October 17 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On May 25 1988 Administrative Law Judge
David S Davidson issued the attached decision
The Respondent filed exceptions and a supporting
brief and the General Counsel filed a reply brief
The National Labor Relations Board has delegat
ed 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 1 and
conclusions and to adopt the recommended Order
as modified
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent International Association of Bridge
Structural and Ornamental Iron Workers Local
No 15 AFL-CIO Hartford Connecticut its offs
cers agents and representatives shall take the
action set forth in the Order as modified
1 Substitute the following for paragraph 1(b)
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act
2 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
369
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT cause or attempt to cause Gate
way Industries Inc to refuse to hire or transfer
David Hendrick or any other employee unless the
employee fails to tender or pay dues or initiation
fees uniformly required as a condition of acquiring
or maintaining membership in the Union or unless
the Union s action is necessary to the effective per
formance of its function in representing its constitu
ency
WE WILL NOT in any like or related manner re
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL make David Hendrick whole with in
terest for any loss of pay he may have suffered as
a result of our discrimination against him
WE WILL notify Gateway Industries Inc in
writing and furnish a copy of such notification to
David Hendrick that we have no objection to his
employment in any job assignment
INTERNATIONAL ASSOCIATION OF
BRIDGE STRUCTURAL AND ORNA
MENTAL IRON WORKERS LOCAL No
15, AFL-CIO
Thomas W Meikeljohn Esq for the General Counsel
Burton S Rosenberg Esq of New Haven Connecticut
for the Respondent
DECISION
STATEMENT OF THE CASE
1 The Respondent has excepted to some of the ,fudges credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In his decision the judge states that David Hendrick was brought back
to the Hartford jobsite around October 1 1986 as raising gang foreman
and remained in that capacity for about 6 weeks The record indicates
that Hendrick was brought back to the Hartford jobsite on October 30
1986 and remained in that capacity for about 3 weeks
DAVID S DAVIDSON Administrative Law Judge This
case was tried at Hartford Connecticut on January 11
1988 David Hendrick filed the charge on May 19 1987
and the officer in charge issued the complaint on July 31
unlawfully threatened Hendrick s employer with a work
stoppage if it transferred Hendrick to its Hartford jobsite
as an employee
On the entire record including my observation of the
demeanor of the witnesses and after consideration of the
briefs filed by the General Counsel and Respondent I
make the following
291 NLRB No 61
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I JURISDICTION
Gateway Industries Inc (Gateway) a Pennsylvania
corporation with offices at Mars Pennsylvania is en
gaged in the building and construction industry as a steel
erection contractor During times material to this com
plaint it was engaged at a jobsite in Hartford Connecti
cut where in a 12 month period it received goods and
materials valued in excess of $50 000 directly from out
side Connecticut I find that Gateway is an employer en
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
Respondent Local 15 is a labor organization within
the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
At all times material to this case Local 15 has been
the exclusive bargaining representative of all Gateway s
employees working within Local 15 s trade and junsdic
tion at Gateways Hartford jobsite known as the Charter
Oak jobsite Michael Coyne has been Local 15 s business
representative and an agent of Local 15 The terms and
conditions of Gateways employees at the jobsite were
governed by a collective bargaining agreement which
provided among other things that Gateway could uti
laze its regular employees to fill up to 40 percent of the
jobs at the Hartford jobsite and that the remainder were
to be referred by Local 15 Respondents regular em
ployees are from the Pittsburgh area where they are rep
resented by Iron Workers Local 3 Local 15 s agreement
and the Union s general work rules require that an em
ployee being brought into a job must be cleared through
Local 15
At the outset of the job in August 1986 Gateway as
signed David Hendrick an employee from the Pitts
burgh area to work as raising gang foreman supervising
the crew of ironworkers who erect structural steel
Robert Geisler Jr was assigned as job superintendent
Because of lack of steel the job was shut down and
Hendrick was transferred to another job in Albany New
York Around October 1 Hendrick was brought back to
the Hartford jobsite again as raising gang foreman Hen
drick remained there in that capacity for about 6 weeks
On November 21 he was removed from the job by Gate
way Geisler Jr told others that he was removing Hen
drick because the steel was not going up fast enough
There is disputed testimony about whether Geisler Jr
attributed the slow pace to poor performance by Hen
drick as foreman or to antipathy between Hendrick and
the others in the crew There is evidence about conflicts
between Hendrick and some of the ironworkers on the
job before Hendrick was removed from it The nature of
the conflicts the cause of antipathy between Hendrick
and the others and the quality of Hendricks work as
foreman are all in dispute
In March 1987 the job was still moving slowly and
Robert Geisler Sr Gateways general manager decided
to send a raising gang in from the Pittsburgh area to take
over the work of that crew Geisler telephoned Coyne to
inform him of his plans 1
According to Geisler he told Coyne that the job was
not getting done that he had to send some of his people
to it to get it done and that he could not go on like that
Geisler told Coyne that he wanted to assign Hendrick
and another employee Tom Shared to work as connec
tors on the raising gang and to assign Bob Anderson to
push the raising gang because Anderson Shared and
Hendrick had worked together a lot as a team He was
going to have his present raising gang foreman become
general foreman and run the job and he would not re
place anyone When Geisler mentioned Hendrick s name
Coyne said that if he brought Hendrick back to the job
Coyne would put the job into mothballs till
summer Coyne did not object to bringing the others to
the job Coyne never told him to bring Hendrick back
According to Coyne Geisler told him that he wanted
to bring more men up to get the job done Coyne told
Geisler to go ahead Geisler told him some of the names
and said that he wanted to bring Hendrick back as fore
man Coyne said that Geisler had to be crazy that he
pulled Hendrick off the job once and that with the prob
lems they had with him on the job previously the others
would all walk off the job if he came there Coyne said
that if they walked off he did not know if he would be
able to get them back with the problems they had had
with bounced paychecks workmen s compensation and
unemployment Geisler insisted that he wanted to bring
Hendrick back and said that he would not bring him
back as foreman but would bring him back as a connec
tor Coyne said that he had a raising gang there but that
if you want to bring him up and put him on the job
then that s your responsibility Then bring him up
Coyne denied telling Geisler that he would put the job
in mothballs if Hendrick was employed on the job
Geisler did not send Hendrick back to the job but a
few days later five others from the Pittsburgh area were
transferred to the job and worked there without any
problem
B Concluding Findings
The central issue is credibility Neither Geisler nor
Coyne can be viewed as impartial 2 Although on collat
eral matters Geisler s testimony was more vulnerable
than Coyne S 3 I am persuaded that with respect to the
critical conversation Geisler s version must be credited
Geisler placed this conversation on February 10 1987 while Coyne
testified that their conversation about bringing in a new raising gang did
not occur until March Although the difference is not material I am in
clined to credit Coyne who had checked referral records to the hearing
and none were placed in evidence but his testimony on cross examina
tion indicated that he had records to support his testimony that the call
and referrals were made in March Even in the absence of complete re
ferral records at the hearing Gateways records could have been pro
duced to show an earlier presence of the Pittsburgh employees on the
job
2 The General Counsel argues that Geisler had no personal stake in the
outcome of the proceeding However the General Counsel concedes that
Geisler displayed resentment toward Coyne and Local 15 because of his
belief that they were responsible for the slow progress on the job
Geisler was wary on cross examination and tended to defensive argu
mentation in his testimony On the record before me Coyne s testimony
Continued
IRON WORKERS LOCAL 15 (GATEWAY INDUSTRIES)
Hendrick was removed as raising crew foreman be
cause the steel was not going up either because of poor
performance or poor relations with others on the job In
either case it would have made little sense for Geisler to
bring Hendrick back in the same capacity to get the job
moving Indeed if Coyne were to be believed Geisler
Jr told him he removed Hendrick because he was very
displeased with Hendricks performance on the job and
he had to get him off the job to keep the job going If
that were so there is simply no explanation why Geisler
Sr would have tried to bring Hendrick back as foreman
Respondent argues that Coyne only objected to Hen
duck s return to the job as foreman and told Geisler that
if he wanted to bring Hendrick back to the job as a con
nector he could do so Yet if that were the case there
is no explanation why Hendrick was not brought back to
the job as a connector
Coyne s testimony itself is less clear than the argument
based on it Under Coyne s version when Geisler said
that he wanted to bring Hendrick back as raising gang
foreman Coyne said the men would all walk off the job
if Hendrick came there and he did not know if he could
get them back again When Geisler said he would bring
him back as a connector rather than foreman Coyne did
not unambiguously assent but said If you want to
bring him up and put him on the job then that s your re
sponsibility Then bring him up In the context of
Coyne s immediately preceding mention of a walkout
the reference to Geisler s responsibility left ambiguous
whether Geisler would be responsible for the staffing de
cision as he was for all such decisions or that he would
be responsible for the consequences if the others walked
out 4 I find as Geisler testified that when he called for
clearance to bring Hendrick back to the job as a connec
tor Coyne told him that if he did so Coyne would put
the job in mothballs until summer
Both parties agree that the principles governing the
decision in this case are those set forth in Operating Engi
neers Local 18 (Ohio Contractors) 204 NLRB 681 (1973)
revd on other grounds 496 F 2d 1308 (6th Cir 1974)
When a union prevents an employee from being
hired or causes an employees discharge it has dem
onstrated 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 pre
sumption that-the effect of its action is to encour
age union membership on the part of all employees
who have perceived that exercise of power But the
inference may be overcome or the presumption re
about the date of the critical telephone call is more persuasive than
Geisler s and Coyne s memory in this respect appeared to be more com
plete While there is one conflict between his testimony and an affidavit
he gave 'us testimony on that point was elicited on cross examination
only after it was clear that his memory regarding it was uncertain
Coyne s memory in general appeared to be better but he appeared to
change his testimony during examination concerning his knowledge of
Hendrick s role in the discharge of Carson Bennett for drinking
4 On redirect Coyne s differentiation between the consequences of
Hendricks return as foreman and his return as connector was even less
clear He testified that he believed the men would walk off the job Be
cause they had told me d fferent men on the job had told me that with
the problems that were created when he was up here before that they
wouldn t work if he wa up here
371
butted not only when the interference with em
ployment was pursuant to a valid union security
clause but also in instances where the facts show
that the union action was necessary to the effective
performance of its function of representing its con
stituency
i
As the General Counsel contends the presumption ap
plies whether the union causes a complete denial of em
ployment or merely a transfer to a less lucrative job 5
Respondent contends that the presumption is rebutted
in this case because the facts show that its action was
necessary to effective performance of its function of rep
resenting its constituency Respondent contends that the
evidence shows that Hendrick did not have the requisite
ability or the work experience to perform as raising crew
foreman or as an ironworker on the Charter Oak job
justifying its refusal to permit him to be referred to the
job
The evidence Respondent relies on would establish
that Hendrick moved structural steel from one location
to another on the jobsite several times without cause
when standard procedure is to move it only once that
he failed to observe safety standards and that he reneged
on promises to his crew to guarantee them 40 hours pay
per week and to provide employment in Albany to cer
tarn members of his crew Assuming arguendo that I
credited Respondent s witnesses testimony relating to
this defense I would find nonetheless that Respondent
has failed to rebut the presumption that Respondents re
fusal to clear Hendrick s return to the job as a connector
encouraged union membership Each of Hendricks al
leged shortcomings reflected on his competence as a
foreman but not as a connector As a connector Hen
deck would have no responsibility to direct the move
ment of steel to decide on the use of netting and plank
ing or to guarantee full employment or employment on
other jobs Although Hendrick might continue to ridi
cule the safety concerns of others on the crew there is
no evidence or even suggestion that because of the atti
tude he displayed as foreman he would pose a threat to
the safety of others when working as a connector
Assuming that Respondent might have properly pre
vented Hendricks return to the Charter Oak job as rats
ing gang foreman in order to properly represent the in
terests of its constituents relating to working conditions
on the job its right to restrict Hendricks access to the
jobsite as a connector was much more limited There is
no showing that Hendrick lacked the requisite ability and
work experience to perform the job of connector
Beyond that even if other employees had no desire to
work with Hendrick because of their experiences with
him when he was their foreman Respondents proper
function was to protect Hendricks right to employment
not to bar him from it Laborers Local 341 (Bannister
Joyce Leonard) 223 NLRB 917 90-920 (1976) enfd
564 F 2d 834 (9th Cir 1977) Accordingly I find that by
refusing to clear Hendrick for employment as a connec
tor on the Charter Oak jobsite and by threatening to put
5 Operating Engineers Local 478 (Stone & Webster) 271 NLRB 1382
(1984)
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the job in mothballs if he was employed there Respond
ent violated Section 8(b)(1)(A) and (2) of the Act
CONCLUSIONS OF LAW
1 Respondent is a labor organization within the mean
ing of Section 2(5) of the Act
2 Gateway Industries Inc is an employer engaged in
commerce within the meaning of Section 2(2) (6) and
(7) of the Act
3 By threatening Gateway with a work stoppage if
Gateway employed David Hendrick as a connector at its
Charter Oak jobsite and causing Gateway to refrain from
transferring Hendrick to that jobsite Respondent en
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(2) and (1)(A) and
Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(2) of the Act
I shall recommend that Respondent be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act
The Respondent shall notify Gateway in writing that
it has no objection to any job assignments it may make
to Hendrick and similarly notify Hendrick that it has so
notified Gateway I shall also recommend that Respond
ent make Hendrick whole for any loss of earnings suf
fered by him as a result of the discrimination against him
Loss of earnings shall be computed in the manner set
forth in F W Woolworth Co 90 NLRB 289 (1950) with
interest as computed in New Horizons for the Retarded 6
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed7
ORDER
The Respondent International Association of Bridge
Structural and Ornamental Iron Workers Local No 15
6 283 NLRB 1173 ( 1987) Interest will be computed at the short term
Federal rate for the underpayment of taxes as set out in the 1986 amend
ment to 26 U S C § 6621
9 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
AFL-CIO Hartford Connecticut its officers agents
and representatives shall
1 Cease and desist from
(a) Causing or attempting to cause Gateway Industries
Inc to refuse to employ or transfer David Hendrick or
any other employees unless the employee fails to tender
or pay periodic dues and initiation fees uniformly re
quired as a condition of acquiring or maintaining mem
bership in Respondent or unless the Union s action is
necessary to the effective performance of its function of
representing its constituency
(b) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Make David Hendrick whole for any loss of pay he
may have suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of this decision
(b) Notify Gateway in writing and furnish a copy of
such notification to David Hendrick that it has no objec
tion to his employment in any job assignment
(c) Post at its business office copies of the attached
notice marked Appendix 8 Copies of the notice on
forms provided by the officer in charge for Subregion
39 after being signed by the Respondents authorized
representative shall be posted by the Respondent imme
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places wehre no
tices to members are customarily posted Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered defaced or covered by any other
material
(d) Forward a sufficient number of signed copies of
the notice to the officer in charge for Subregion 39 for
posting by Gateway at its place of business in places
where notices to employees are cumstomanly posted if
Gateway is willing to do so
(e) Notify the officer in charge in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
8 If 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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board