Int'l Union of Elevator Constructors

National Labor Relations Board - Board DecisionsDec 16, 1974

215 N.L.R.B. 744 (N.L.R.B. 1974)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Elevator Constructors, AFL-CIO (Reston Elevator Company ) and Wilmer K. Shuster International Union of Elevator Constructors, AFL-CIO, Local No . 17 and Wilmer K. Shuster International Union of Elevator Constructors, AFL-CIO, Local No. 45 and Wilmer K. Shuster. Cases 8-CB-2335, 8-CB-2336, and 8-CB-2337 December 16, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 21, 1974, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and the Respondents filed an answering brief to the exceptions of the General Counsel. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held on July 2 and 3, 1974, at Cleveland, Ohio, on complaint of the General Counsel against the Inter- national Union of Elevator Constructors, AFL-CIO, and its Local 17 and Local 45, as three separate Respondents, herein called the Unions. The charges were filed by Wilmer K. Shuster, an individual, on April 1, 1974, and the complaint issued on May 15, 1974. The sole issue of the case is whether the combined activities of the three named Respondents in imposing a fine upon the Charging Party, a member of one of the local unions, violated Section 8(b)(1)(A) of the Act. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESTON ELEVATOR COMPANY This proceeding arose as a collateral aspect of the collec- tive-bargaining relationship between all three of the Respond- ent Unions and the Reston Elevator Company. At the time of the events, early in 1973 and into 1974, the Reston Com- pany was engaged in the maintenance and servicing of eleva- tors for office buildings, hotels, and other commercial estab- lishments, with its principle place of business in Cleveland, Ohio. In the normal course of its business the Reston Com- pany annually provided in excess of $50,000 worth of services to the Akron Redevelopment Corporation, The Leader Building, Inc., and The Brotherhood of Locomotive Engi- neers Building Association, all employers engaged in the op- eration of office buildings each of which annually receives office rental revenues in excess of $100,000, of which $25,000 was in each instance derived from tenants meeting the Board's current jurisdictional standards. I find that the Res- ton Company was, at the time of the events, engaged in commerce within the meaning of the Act, and that therefore it will effectuate the policies of the Act to exercise jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED I find that International Union of Elevator Constructors, AFL-CIO, and each of its Locals No. 17 and No . 45, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The Case in Brief This is a union fine case, in which three labor organizations-an international and two of its locals-are charged with having unlawfully imposed a $25 penalty upon one of the members. There are fines and there are fines, some perfectly legal and some unlawfully coercive upon a mem- ber's statutory freedom to engage in collective bargaining to suit his will; these latter violate Section 8(b)(1)(A) of the Act. The propriety or impropriety of a union's action in fining a member turns upon the nature of his conduct which the organization seeks to curb. In plain language this means: What did he do that offended ,he union, that formed the basis of charges brought against him, and fir which he was pun- ished? Wilmer Shuster, who filed the dâ€¢arges here, is a member of Respondent Local 17, which functions in Cleveland. In an incident occurring on February ', 1973, he got into quite a hassle with James Myers, a member of aister Local 45, who is also business agent of his local, which functions in Akron. Myers was at the moment pressing a grievance upon the owners of the Reston Company, trying to convince them to honor a claim for higher wages in favor of a fellow member of Local 45, one Joseph Henry. Myers' pinpointed target that day was Dale Shuster, one of the Company's owners, who is 215 NLRB No. 132 INTL. UNION OF ELEVATOR CONSTRUCTORS also Wilmer Shuster's son. In the ensuing disagreement be- tween the two-both Myers and Dale were rather adament-the father understandably took the side of the son. After all, before too many words were exchanged, Myers called the son a son-of-a-bitch. In the words of one of the General Counsel's own witnesses, Patrick Kennedy, another employee-member of Local 17 who happened to be present. "I think the father was protecting his son." There was some seeming meat in both sides of the eco- nomic dispute being aired. The wages that Reston Company paid in Akron, in the jurisdiction of Local 45, were lower than those it paid in Cleveland, where Local 17 governed. The elevator construction mechanic Henry had been working several years in Akron, but he came from Cleveland, and therefore for 2 years had received a supplemental check from the Company for the differential in wages. Dale Shuster, relying on certain federal regulations and the fact his contri- bution to fringe benefit union funds designated Local 45 as Henry's union , stopped the extra payment in January 1974. It was this extra money that Business Agent Myers wanted Reston to make good, and to resume paying. He brought Henry to the office with him, and present at the discussion were several other Cleveland mechanics, like Wilmer Shuster, and both the owners-Dale Shuster and his partner Thomas Ross. It got "hot" in that room, according to two of the neutral employee observers who testified at the hearing, one of them even looking for a corner to duck into. Myers and Papa Shuster raised their voices in obscene language to one another, and both turned to Ross-Myers to remind him of his earlier promise to continue the payments and Shuster to cuss him out for not siding with his son Dale. Myers got nowhere, and before leaving, announced Henry would not work anymore until he received the extra money, indeed that no one at all would work at Akron, not even any Cleveland man who might try to come there. Two days later both Myers and Henry filed internal union charges-within Local 17-against Wilmer Shuster, the first because Shuster had "cursed and threatened" him during the meeting at Reston's and the second because Shuster had "cursed and threatened" Myers and Ross. Shuster was given a trial hearing on the charges before Local 17's executive board on April 2. He admitted having misbehaved towards Ross, the owner-himself also a card carrying member of Local 17-and on his denials was found guilty of other charges. In July he appealed the fine by letter to the Interna- tional union for reversal, and on January 21, 1974, the parent organization affirmed the fine imposed, even raised it. On February 5, 1974, Shuster filed an unfair labor practice charge against Local 17. He withdrew this charge on March 27, and on April 1, filed three separate charges against the present Respondents.' I Because I find the evidence insufficient to prove the sole unfair labor practice alleged , and will therefore dismiss the entire case on the merits, a technical and procedural motion for dismissal becomes mooted Shuster's original charge did nothing more than accuse his local of "harassment," and, as the last act in the drama by that Respondent came in May 1973, when it imposed the fine, the 6-month statute of limitation (see Section 10(b) of the Act) effectively demanded dismissal of the February 5, 1974, charge But investigation revealed that the fine procedure tied the three labor organ- izations together into a continuing course of action, the penalty of May 1973 being only tentative pending final decision by the International in January 1974 As is always the practice, the Labor Board investigator advised the The Sole Question Presented 745 The complaint painstakingly spells out a very limited and precise unfair labor practice chargeable to the three Respond- ents, exact both as to essential factual assertion and as to theory of law. At the time of the events a single multiem- ployer contract governed the collective-bargaining relations between the Reston Company and all three unions . It con- tained a standard and concededly valid arbitration- no-strike provision foreclosing the parties from either concerted work stoppage or lockout during the life of the agreement. When Shuster started to quarrel with Business Agent Myers in the Reston office in February, his object, according to the complaint, was to protest Myers' action in calling a strike-in violation of that agreement-in both Ak- ron and Cleveland; when Myers, as well as Henry, filed charges with Local 17 against Shuster, still according to the complaint, it was to put him in his place for having attempted to prevent Myers from calling a contract-violating strike; and when Local 17, and the parent international later, imposed the fine, it was to punish Shuster for having interfered with the desire of the union agent to violate the contract via the strike route. The sequence of inquiry is logical : First-has it been proved Shuster interfered with Myers' strike-calling ac- tivity and was he in fact fined for such interfrence? Second: In that event, may a union fine a member to restrain him from such conduct vis-a-vis a union agent? As all too often, the record is full of distracting coloration. Shuster said that at his trial before the Local's executive board an official said he did not like him-"I have been waiting to tell you off for a long time, and now is my chance." Shuster also detailed how at that time, as also at regular union meetings, he was given little respect, people told him to shut up, although only 4 years before he had been president of the Union. The General Counsel was asked what all this had to do with the issue of the case. The question was also raised whether there was any alternative contention by the prosecu- tion that an unfair labor practice could be seen in possible union resentment against Shuster for being no less dirty- mouthed than Myers, or conceivably in the executive board not giving Shuster a fair and objective hearing before convict- ing him , regardless of what they convicted him for. The General Counsel neither fished nor cut bait beyond the initial Charging Party of the law and of its apparent applicability to his case Individual employees seldom are conversant with the intricacies of Board law, and that is why it has long been an accepted procedure in the fair administration of the statute that Labor Board personnel inform them of their statutory rights With this , Shuster was told he could file charges against all three present Respondents He did so, and , of course , again as usual-the only way possible-the investigating experts drafted the appro- priate charges which Shuster then signed Relying on this chronology of events, plus the fact all investigation affidavits had been obtained before the filing of the present charges, counsel for the locals moved for dismissal upon the assertion that the whole proceeding now is but the brainchild of a Board agent He says the General Counsel is the charging party here, not Shuster in comparable circumstances , a Board agent will do no less for any other member of these unions , perhaps a man whose personality generates more personal affection from the executive board, and who seeks redress against fancied ill treatment at the hands of an employer I denied the motion to dismiss at the hearing , and were it necessary to rule again on it now, would do so again Cf NLR B v Fant Milling, 360 U S 301 (1959) 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD line cast by the complaint. In the circumstances, no other questions need be considered here at all. The defense threw its own fog over the facts. The charges filed against Shuster by Myers and Henry both referred to certain clauses in the Union's constitution and bylaws. These speak of "conduct unbecoming" a member, "libel of any officers," and "conduct which unduly impedes the work of any officer." But when union officers were asked, while they testified, exactly what was it Shuster had done to merit cen- sure and fine in this fashion, all they did was paraphase the high-sounding words of the constitution with equally lofty moral pronouncements. One or two executive board members even reminisced about how, in their kindness, as a group they had rejected the proposal of one of their number that Shuster be fined $1,000! Be that as it may, the record as a whole makes clear enough what happened on February 7, and there- fore of necessity what formed the basis of the fine imposed. The Evidence; Conclusion I find that Shuster's purpose in starting a fight with Myers that day was to frustrate the business agent's perfectly proper attempt to prevail upon Dale Shuster to pay Henry, the me- chanic, more money than he was receiving . It was to persuade the Company to revert to the pay arrangement previously accepted by the partner Ross that Myers had come to Cleve- land at all. I credit his testimony that the threat he eventually voiced-no one would work in Akron until Henry got what was coming to him-came at the end of the talking. As will appear, there are many reasons for this credibility finding, although Shuster's demeanor on the witness stand-evasive, argumentative, at variance with his own do- cuments, and intentionally inconsistent-would be reason enough. He tried to create the impression that almost the first thought articulated by Myers was an out-and-out declaration of strike throughout the Reston Company-both in Cleve- land and in Akron , and that all the yelling and name calling followed upon, and was provoked by, that sole statement of the business agent. The General Counsel makes the same out-of-context contention, as though nothing of any signifi- cance was said but that one phrase-strike call violative of the current union contract. To begin with, no one who travels a number of miles with the hope of getting more money out of the boss starts by calling a strike as his first demarche-and this is true whether he be just the mechanic in person or the chief of the labor organization. It just is not likely Myers did not first expend all his debating ammunition. There is an inherent honesty in his version of the incident; he admitted saying he would see to it no one worked in Akron unless his demand was conceded, this despite his knowledge he had no such au- thority within the union and that he was ignoring contract restraints. And it is absolutely true he spoke only of a work stoppage in Akron. Shuster insisted at the hearing it was a strike call for Cleveland also, where he worked. Are we now supposed to ignore the testimony of the two other employee witnesses called by the General Counsel in support of the complaint-Carl Mueller, who quoted Myers as saying "there will be no work at Akron," and Kennedy, who re- called Myers saying "none of us Reston Elevator guys could work in Akron"? More than once in his testimony Shuster, who was called before Mueller and Kennedy, said the exact opposite of this language . And in the teeth of the basic theory of complaint that Shuster tried to stop Myers from calling a strike, there is also this from the witness Kennedy: "Q: And after this man said something about a strike, did Bill Shuster say anything to him, to this man, Myers? A: He told him to go pull a strike. . . . 'Go pull a strike.' It seems he didn't care An even more revealing weakness in Shuster's total story is his repeated attempt to keep Ross out of the picture, as though he had not been present at all. He said "Tom Ross has nothing to do with this case." "Q: And did he [Ross] say anything about the merits of the grievance? . . . A: No, not concerning that." After several times repeating he did not quarrel with Ross all that day, he finally admitted he pleaded guilty at the executive board hearing to charges that he "cursed" the man. I certainly believe Ross, who testified Shuster used much profanity towards him, and accused him of "setting up the situation." At one point Shuster explained he exchanged hot words with Ross only after the two Akron men had left. But, again from the General Counsel's witness Kennedy: "There were words between Bill Shuster and him [Myers] and Tom Ross." "Q: (By Mr. Adamson) Was there any arguing between Bill Shuster and Myers after Myers talked about pulling a strike? . .. . The witness: Shuster, as far as I recall, didn't say anything. He was talking and argu- ing with Ross." But regardless of precisely at what moment during the general confrontation it was that Shuster turned offensively toward Ross, the question must be answered: What was he quarreling with him about? Surely it was not any threat of strike made by the employer. It could only be Shuster's con- tinuing resentment of Myers' claim for more money to be paid Henry. The attempt now, long after the events, to select out one phrase from Myers' mouth and lift it into exclusive prominence in every respect, is a distortion of the total pic- ture of what really happened there that day. What Shuster did later only confirms this reading of the testimony respecting the February 1973 incident. There came a day when he filed the Labor Board charge against his local union, on February 5, 1974. Not a word there about his having protested against an attempt by union officials to call a strike in violation of any contract. His only specification was that the Union "is engaged in harassment" against him. He signed an extended affidavit for a Board investigator 20 days later. Here he said he filed the charge with the Labor Board "because I did not have an impartial hearing by the Union concerning internal union charges." This language is consistent with a general feeling of neglect and lack of respect at the hands of his fellow union members. It is also in keeping with the suggestion Shuster kept making at the hearing in this proceeding, to the effect that others in the local were "out to get him." While the affidavit recites the facts in detail, even to Myers' threat of strike-albeit erroneously as it now appears-it in no sense speaks of that language of Myers, or Shuster's reaction to it, whatever it may have been, as either the basis of the internal charge against him or the basis for his own charge filed with the Board. Likewise, in other documents received in evidence there is also passing reference to that one statement of Myers in February 1973 about no work in Akron until his demand was INTL. UNION OF ELEVATOR CONSTRUCTORS 747 met. In every one of them, however, just as in Shuster's first affidavit, it is no more than a minute detail of a whole story. Nowhere is that phrase spoken of as the provocative cause of the union charges filed against him or of the fine later im- posed. This is true of Shuster's letter of appeal to the Interna- tional, dated July 14, 1973, where he specified: "I was charged with threatening and cursing at a meeting they were having." It is certainly true of a second letter of appeal to that same body, also written that day, which belabors antiunion behavior of the businessman -union-member Ross, in justifica- tion of Shuster's conduct, but is absolutely silent about any statutory right Shuster might have to interfere with his union's attempt to call a contract-breaking strike. And, fi- nally, there are the findings of the Local 17 executive board, the letter to Shuster advising him of its decision, and the decision on appeal issued by the International Union, detail- ing and explaining the rationale for its actions. In none of these is there the least indication that Shuster was punished by his union for doing anything other than interfere with the business agent's proper discharge of his collective-bargaining duties. RECOMMENDED ORDER Unfair labor practice charges must be proved by a pre- ponderance of the substantial evidence on the record as a whole. IBEW, Local 716 (Fisk Electric), 203 NLRB 333 (1973). I find the complaint allegation of wrogndoing in this case has not been so proved , and shall therefore recommend dismissal . Scofield v. NL.R.B., 394 U.S. 423 ( 1969).