Operating Engineers Local 137 (Various Employers)

National Labor Relations Board - Board Decisions

Jun 23, 1995

317 N.L.R.B. 909 (N.L.R.B. 1995)

909
317 NLRB No. 124
OPERATING ENGINEERS LOCAL 137 (VARIOUS EMPLOYERS)
1 The judge inadvertently characterized a statement by the Union’s
president, Louis Varricchio, to Christopher Villa, one of the alleged
discriminatees, that he was going to make Villa nervous, as having
been made in January 1993. In fact, as the General Counsel notes,
the statement was made on August 17, 1992. We correct the incon-
sequential error. We also correct the judge’s citation to Carpenters
Local 626 (Strawbridge & Clothier), 310 NLRB 500 (1993).
2 The judge granted the General Counsel’s motion to dismiss the
allegation concerning Robert Smith.
3 In exceptions, the General Counsel contends that the judge failed
to account for the system as it existed before the 1993 modification,
and argues that there actually was no material change in the system.
We need not resolve this issue because, as we explain below, there
is no evidence that the 1993 change had any impact on referrals ei-
ther of the alleged discriminatees or of the individuals with whom
they are compared.
4 Actually, Orsetti was marked ‘‘in book’’ on December 20, 1991,
and was referred on June 8, 1992, to a job that lasted 15 weeks.
It was 10 months from the time Orsetti was laid off on September
21, 1992, until he was next offered a referral, in July 1993. The
judge presumably used the latter period because, although Orsetti’s
‘‘in book’’ date was December 20, 1991, the discrimination is not
alleged to have started until July 20, 1992. Consequently, Orsetti
could not have been discriminated against in referrals, as alleged in
the complaint, until he was laid off in September of that year and
was seeking further employment.
Local 137, International Union of Operating Engi-
neers (Various Employers) and Ronald Jackson
and Frank Collins. Cases 2–CB–14511 and 2–
CB–14532
June 23, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On December 5, 1994, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel and the Respondent filed exceptions
and supporting briefs, and the Respondent filed an an-
swering 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order and to adopt the recommended Order
as modified.
The complaint alleges that the Respondent Union
violated Section 8(b)(1)(A) of the Act by discriminat-
ing in hiring hall referrals against 11 named members
who ran against the incumbents in a recent election for
union office and/or did not support the winning can-
didates. The judge found that the Union unlawfully
discriminated in referrals against two individuals, An-
gelo Orsetti and Casmir Duchnowski, but not against
the others.2 The Union has excepted to the judge’s
finding that it discriminated unlawfully against Orsetti
and Duchnowski. The General Counsel has excepted to
the judge’s failure to find unlawful discrimination
against the remaining individuals. As we explain
below, we agree with the judge’s findings for the most
part. Unlike the judge, however, we find that the
Union discriminated in referrals against Frank Collins
and Anthony Rubeo.
The Union operates its nonexclusive hiring hall on
a modified first-in, first-out basis. That is, when there
is a job to be filled, the individual who has been on
the out-of-work list the longest time and who is capa-
ble of operating the equipment on the job will be the
first to be offered a referral. There are exceptions to
the rule, however. For example, when a contractor asks
for an individual by name, the Union normally will
comply with the request, even if he is not at the top
of the referral list. Similarly, when a job is resumed
after a layoff, the members of the crew who were
working when the job was discontinued will be called
back, without regard to their positions on the referral
list.
Also, in an effort to mitigate the problem of inter-
mittent employment in the construction industry, the
Union operates its hiring hall with the aim of ensuring
that as many members as possible obtain the 20
weeks’ work they need to qualify for unemployment
compensation and for contractual health benefits. Thus,
when a member is referred to a job, he does not imme-
diately return to the bottom of the list; instead, he re-
mains high on the list for referrals until he has ob-
tained a total of 20 weeks’ employment. At that point,
he is recorded as ‘‘in book,’’ and his name goes to the
bottom of the list. Because of the reduction in job op-
portunities during the recent recession, the Union
modified the system in early 1993 to give preference
in referrals to members who needed 5 or fewer weeks
of employment to reach the 20-week eligibility stand-
ard.3
As we have said, the judge found that the Union
discriminated against Orsetti and Duchnowski but not
against any of the other individuals. He arrived at that
conclusion by comparing the length of time each of the
alleged discriminatees had to wait for a referral after
being recorded as ‘‘in book’’ with the waiting periods
of a sample of 115 other hiring hall users with skills
similar to those of the alleged discriminatees. Most of
the individuals in the judge’s sample waited less than
4 months between their ‘‘in book’’ dates and their next
referrals; Duchnowski and Orsetti, by contrast, waited
13 and 10 months, respectively for referrals.4 No one
in the sample waited as long as Duchnowski, and only
one waited as long as Orsetti. The judge found that the
delays in referring those two employees were outside
the range of experience of other hiring hall users with
comparable skills, and that the General Counsel thus
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The judge also took note of the clear animus demonstrated by
the Union against the supporters of the Collins’ slate, and found that
the General Counsel had established a prima facie case of discrimi-
nation under Wright Line, 251 NLRB 1083 (1980), which the Union
had failed to rebut.
6 The judge gave little, if any, weight to the information in G.C.
Exh. 11 because, as Villa (who prepared it) admitted, it does not re-
flect the work experience of all members of the Union and probably
does not include some comparable members who received fewer re-
ferrals than did the alleged discriminatees.
7 As the General Counsel states on brief, ‘‘The relevant pool of
employees to examine . . . is not all members with comparable
skills, but members with comparable skills, junior on the referral list,
who were referred out ahead of the [alleged] discriminatees.’’ (Em-
phasis added.)
8 The General Counsel does not contest the proffered explanations.
No attempt was made to explain any of the purported out-of-order
referrals on the basis that the favored individual needed to be sent
to work in order to avoid losing unemployment compensation or
union benefits. Thus, we need not decide whether, as the General
Counsel argues, there was no real change in the system in early
1993, because the Union did not try to justify any of the specific
allegedly out-of-order referrals as prompted by the goal of insuring
that members did not lose benefits.
9 For comparison purposes, we exclude referrals made during the
8-month period in 1993 when Atkinson was working on an extended
job.
had shown that Orsetti and Duchnowski had been ad-
versely treated by the Union in job referrals.5
Concerning the other eight alleged discriminatees,
the judge found that their experiences in referrals were
no different from those of individuals with comparable
job skills. In the cases of Frank, William, and John
Collins and Christopher Villa, the judge also noted that
they had been offered jobs that they turned down. He
therefore found that the General Counsel had not
shown that any of those individuals had been discrimi-
nated against.
The General Counsel has excepted to the judge’s
dismissal of the allegations of discrimination against
the latter eight employees. The General Counsel con-
tends that the judge erred in failing to evaluate specific
instances, summarized in General Counsel’s Exhibit 11
(GC 11), in which the alleged discriminatees were
passed over for referral in favor of individuals who
were lower on the out-of-work list.6
We find merit to the General Counsel’s exception.
To the extent General Counsel’s Exhibit 11 indicates
that other individuals were given referrals at times
when the alleged discriminatees were unemployed and
higher on the list for referrals, we find that the Re-
spondent had the burden of explaining why the indi-
viduals who were lower on the list were given pref-
erence. In this regard, given that the Union does not
operate its hiring hall on a strict ‘‘first-in, first-out’’
basis, we would not be inclined to find unlawful dis-
crimination merely on the basis of isolated out-of-order
referrals, even if the reasons for those referrals were
not explained. If a pattern of unexplained out-of-order
referrals appeared, however, it would be reasonable to
infer that the disfavored individuals were the victims
of adverse treatment.
We have examined General Counsel’s Exhibit 11
and have determined that much of the information it
contains does not indicate a pattern of adverse treat-
ment of the alleged discriminatees. In the first place,
many of the referrals listed in that exhibit were made
before July 20, 1992, when the discrimination is al-
leged to have begun. Also, in many instances, when
individuals with later ‘‘in book’’ dates were referred
instead of the alleged discriminatees, the alleged
discriminatees had received one or more referrals be-
fore the ‘‘out-of-order’’ referral took place.7 In numer-
ous instances, although some other individual appar-
ently was given an out-of-order referral in preference
to one of the alleged discrim- inatees, the two men ac-
tually received about the same number of referrals over
a given period of time. Finally, a union witness testi-
fied at length concerning many of the referrals listed
in General Counsel’s Exhibit 11 and explained that the
individual referred either had been called back to a job
by a contractor or possessed skills needed on the job
that the alleged discriminate lacked.8
On the basis of our review of General Counsel’s Ex-
hibit 11, we find that the General Counsel has failed
to demonstrate that the Union gave adverse treatment
in referrals to William Collins, John Collins, Chris-
topher Villa, Angelo Matero, Ronald Jackson, or
George Atkinson. Atkinson and Jackson, in particular,
seem to have been treated quite well. Atkinson re-
ceived 12 referrals after being marked ‘‘in book’’ on
September 11, 1991. Six of those referrals came after
the discrimination is alleged to have begun in July
1992. During that period, only one of the seven indi-
viduals compared with Atkinson in General Counsel’s
Exhibit 11 (Hunt) received appreciably more referrals
than Atkinson.9 Of the 17 referrals of those individuals
that are listed in General Counsel’s Exhibit 11, only 2
appear to have been out of order. The others were ei-
ther preceded by referrals of Atkinson or were ex-
plained; a few also occurred before July 20, 1992.
Similarly, Jackson received 19 referrals between Sep-
tember 11, 1991, when he was placed ‘‘in book,’’ and
November 1993, when he died. Seventeen of those re-
ferrals came after July 20, 1992; of the eight individ-
uals compared with Jackson in General Counsel’s Ex-
hibit 11, only one received as many referrals during
that period. Concerning Jackson, there are 31 pur-
ported out-of-order referrals listed in General Coun-
sel’s Exhibit 11. Of those, several came before July
20, 1992, and nearly all the rest were either explained
or preceded by referrals of Jackson.
William and John Collins received few referrals. As
the judge found, however, both men were called on
several occasions but either were unavailable for work
911OPERATING ENGINEERS LOCAL 137 (VARIOUS EMPLOYERS)
10 In William Collins’ case, we do not rely on evidence of at-
tempted referrals on July 31 and August 1, 1992, which Collins de-
nied having taken place.
11 The two exceptions were jobs that involved handling hazardous
materials, which Villa was not trained to do.
12 Hiring hall records indicate that Collins was called without suc-
cess on several other occasions; however, Collins denied having re-
ceived those calls. Collins also turned down two referrals because
he was not qualified to do the work. We do not rely on those two
refusals, or on the disputed calls, because we find that, in any event,
no pattern of adverse treatment of Collins has been demonstrated for
1992.
13 With one possible exception: hiring hall records indicate that
Collins was called about a job on February 4, 1993. Collins denied
receiving such a message.
14 In determining the dates of discrimination against Rubeo and
Collins, the same approach should be used as the judge rec-
ommended for Orsetti and Duchnowski. In Rubeo’s case, the meas-
uring period should be computed as the judge specified for
Duchnowski, but beginning with Rubeo’s ‘‘in book’’ date of Feb-
ruary 14, 1992, instead of Duchnowski’s. For Collins, it should be
computed as the judge recommended for Orsetti, except that January
1, 1993, should be substituted for September 21, 1992.
or turned jobs down.10 The vast majority of the out-
of-order referrals listed in General Counsel’s Exhibit
11 with respect to both men either took place before
July 20, 1992, or were explained. In addition, John
Collins received referrals that predated several of the
referrals alleged to be out of order.
With regard to Matero and Villa, most of the alleged
out-of-order referrals were not explained.11 In Matero’s
case, however, nearly half of those referrals took place
before July 20, 1992, and a majority of the others were
preceded by referrals of Matero. Only two of the nine
individuals with whom Matero is compared in General
Counsel’s Exhibit 11 had more referrals than he did
after July 20, 1992, and they were more broadly
skilled than Matero, who was basically a crane opera-
tor. Villa received eight referrals between July 6, 1993,
and March 1, 1994. He also turned down two job of-
fers and was unavailable for work for a week in June
and during the early part of September 1993. Counting
the jobs he declined, Villa fared at least as well in re-
ferrals as 10 of the 12 comparators in General Coun-
sel’s Exhibit 11. Thus, even though there were numer-
ous out-of-order referrals vis-a-vis Villa, the relatively
large number of referrals he received, together with the
jobs he turned down and the periods for which he was
unavailable persuade us that no pattern of adverse
treatment of Villa has been shown.
By contrast, we find that the General Counsel has
shown adverse treatment of Rubeo and Frank Collins.
Rubeo was a broadly skilled operator, yet he received
only two referrals between July 20 and November 1,
1992, when he retired. During that same period, Jeff
Loughlin received 10 referrals and Bob Poccia re-
ceived 7; nearly all of those referrals apparently were
out of order. No attempt was made to explain why
those individuals were treated favorably in comparison
to Rubeo, or why so many of those referrals were
made out of order. In Frank Collins’ case, we agree
with the judge that it is difficult to infer adverse treat-
ment in referrals during 1992 because nearly all the
apparent out-of-order referrals made during that year
either predate July 20, 1992, or were explained, and
because Collins turned down at least one job and was
not at home when he was called about another.12 The
period of 1993–1994, however, is a different story.
During that period, there were well over two dozen
out-of-order referrals vis-a-vis Frank Collins that were
unexplained, and there is no evidence that he was un-
available for work during that period.13
Because we find that Rubeo and Frank Collins (dur-
ing 1993–1994) were treated adversely in referrals, and
because we agree with the judge that the Union dem-
onstrated animus against the Collins’ slate and its sup-
porters, we find that the General Counsel has estab-
lished a prima facie case of discrimination against
those two individuals which the Union has not rebut-
ted. Accordingly, we find that the Union violated Sec-
tion 8(b)(1)(A) by discriminating against Rubeo and
Frank Collins in the operation of its hiring hall. We
shall modify the judge’s recommended Order to re-
quire the Union to make Rubeo and Collins whole for
any losses they may have suffered as a result of the
unlawful discrimination.14
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Local
137, International Union of Operating Engineers, its
officers, agents, and representatives, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Discriminatorily refusing to refer to employ-
ment Casmir Duchnowski, Angelo Orsetti, Anthony
Rubeo, Frank Collins, or any other employees in a
timely manner because they run for union office or
support certain candidates for union office.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Make whole Casmir Duchnowski, Angelo
Orsetti, Anthony Rubeo, and Frank Collins for any
loss of earnings they may have suffered as a result of
the discrimination against them in the manner set forth
in the remedy section of the judge’s decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In her brief, counsel for the General Counsel moved to dismiss
the allegation referring to Robert Smith as no evidence of discrimi-
nation was adduced regarding this gentleman. The motion is granted.
2 The associations are: (1) the Associated Contractors of West-
chester Inc. (ACW), (2) the Building Contractors Association of
Westchester Inc. (BCAW), and (3) the Contractors Association of
Westchester, Putnam, and Dutchess Counties, New York (CAWPD).
3 The Board held in Development Consultants, supra, that where
there are discriminatory job referrals motivated by intraunion politi-
cal considerations, the absence of an exclusive hiring hall will cause
the violation to be Sec. 8(b)(1)(A) and not Sec. 8(b)(2) of the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discriminatorily refuse to refer to em-
ployment Casmir Duchnowski, Angelo Orsetti, An-
thony Rubeo, Frank Collins, or any other employees in
a timely manner because they run for union office or
support certain candidates for union office.
WE WILL NOT impliedly threaten to withhold job re-
ferrals from employees and union members because
they support certain candidates for union office.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make whole Casmir Duchnowski, Angelo
Orsetti, Anthony Rubeo, and Frank Collins for any
loss of earnings they may have suffered as a result of
the discrimination against them, with interest.
WE WILL keep and retain for 2 years, adequate
records of our referral operation that will disclose fully
the basis on which referrals are made and make those
records available to the Regional Director for Region
2 on request.
LOCAL 137, INTERNATIONAL UNION OF
OPERATING ENGINEERS
Margueritte Greenfield, Esq., for the General Counsel.
Robert D. Brady, Esq. (Corcoran & Brady), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on March 14, 15, and
18 and April 15, 1994. The charge in Case 2–CA–14511 was
filed by Ronald Jackson on January 6, 1993. The charge in
Case 2–CA–14532 was filed by Frank Collins on January 24,
1993. A consolidated complaint was issued on August 31,
1993, and as amended alleged, in substance, that:
1. In September 1992, Respondent’s agents told mem-
ber/employees that they would have been referred to jobs had
they not supported a particular slate for union office.
2. Since July 20, 1992, the Respondent has refused to refer
certain employee/members to jobs because they did not sup-
port the winning candidates in an intraunion election. The
people allegedly discriminated against were:
Frank Collins William Collins
George Atkinson Angelo Orsetti
Angelo Matero John Collins
Robert Smith1 Anthony Rubeo
Casmir Duchnowski Christopher Villa
Ronald Jackson
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a labor organization within the meaning
of Section 2(5) of the Act. As a union, it maintains a collec-
tive-bargaining relationship on behalf of its members, with a
number of Employer Associations located in Westchester,
Putnam, and Dutchess Counties in the State of New York.2
It is conceded that annually the constituent members of these
associations are engaged in interstate commerce within the
meaning of Section 2(2), (6), and (7) of the Act, inasmuch
as they purchase goods valued in excess of $50,000 that are
shipped directly to them from States other than the State of
New York.
The complaint alleges and the Respondent admits that it
is subject to the jurisdiction of the National Labor Relations
Board.
II. ALLEGED UNFAIR LABOR PRACTICES
As noted above, the Union has entered into and main-
tained a series of collective-bargaining agreements with each
of the aforementioned multiemployer associations whose
members, from time to time, employ members of the Union.
The companies that are members of these associations are
primarily engaged in the building and construction or high-
way construction industries. In each of the contracts, there is
a provision whereby the employers agree to give the Union
48 hours’ notice of their intention to hire employees so that
the Union can have an equal opportunity to recommend
qualified applicants. Thus, pursuant to this provision, it can-
not be said that the Union operates an exclusive hiring hall,
albeit there was testimony from some of the witnesses that
it would be impolitic for members to bypass the hiring hall
and obtain jobs on their own. Notwithstanding the lack of an
exclusive hiring hall, if the Union is found to have discrimi-
nated in referrals against certain of its members because of
their political opposition to the incumbent officers, such con-
duct would constitute a violation of Section 8(b)(1)(A) of the
Act. Teamsters Local 923 (Yellow Cab), 172 NLRB 2137,
2138 (1968); Development Consultants, 300 NLRB 479
(1990).3
The members of this Union are employees who range from
being very skilled to people having minimal skills. They op-
913OPERATING ENGINEERS LOCAL 137 (VARIOUS EMPLOYERS)
4 As the job of master mechanic is equivalent to that of a shop
steward and as it is appointed by the business manager of the Union,
it seems to me that the business manager could legitimately consider
loyalty to him as a factor in referring people to these positions. See
Longshoremen ILA Local 1294 (International Terminal), 298 NLRB
479 (1990).
erate and maintain equipment such as cranes (which require
a state license), bulldozers, cherry pickers, backhoes, graders,
etc. Some members have, by dint of training and experience,
the ability to operate many of these machines and are more
employable than others. Other members have been content to
acquire a minimum amount of skills and therefore are not
qualified for many of the jobs that need to be filled. Of
course, many members occupy the middle ground. The low-
est skill job, essentially, is someone who is called an
‘‘oiler.’’ A person in this category basically oils the ma-
chines but may have little or no competence to operate them.
The General Counsel alleges that the present leadership of
the Union discriminated against people who sought to chal-
lenge them in a election held in August 1992. The Respond-
ent denies this allegation and asserts that the alleged
discriminatees, like most of the Union’s members, have had
great difficulty in obtaining employment because of a drastic
reduction in the amount of work being done by contractors
in the area serviced by the Union.
The management of the Union is divided into what might
be called professional or full-time union agents and mem-
ber/officers. In the former category is the business manager
and the business agents, all of whom are paid union employ-
ees and who run the day-to-day operations of the Union. In
the latter category are members who are elected to various
offices of the Union such as president, vice president, record-
ing secretary, financial secretary, treasurer, executive board
members, and auditors. Except for the business agents, the
above-noted positions are filled by election. It is agreed that
the person with the most authority would be the person occu-
pying the position of business manager. Business agents are
hired and fired by the business manager.
In addition to the above, it should be pointed out that
when operating engineers are employed on a jobsite, the
business manager will designate one and sometimes two
members to be ‘‘master mechanics.’’ These are people who
function as shop stewards and are responsible for seeing that
the contract is complied with. At the same time they are gen-
erally members who have a good deal of experience and skill
on various equipment and according to at least one master
mechanic, Nicholas Funicello, would have foreman types of
functions in relation to the other operating engineers on the
site.
Before 1991, Charles Matero was the Union’s business
manager and was the person who effectively ran the Union.
In August 1991, Charles Matero decided to retire and tried
to have Salvatore Santamorena elected as the new business
manager by the other officers. At that time Santamorena was
employed as the Union’s funds manager having received that
job from Charles Matero. At two meetings of the Union’s of-
ficers, however, Nicholas Signorelli was voted in as the new
business manager against the wishes of Matero. Signorelli
was, at that time, the Union’s president but had previously
been fired by Charles Matero as a business agent. In turn,
Louis Varricchio became the new president. When Charles
Matero sought to overturn the results of this vote, the
Union’s attorney (Robert Brady) told him that the vote was
proper and could not be challenged. Salvatore Santamorena
retained his position as funds administrator and continues to
do that job to the present.
When Signorelli took over as business manager, he began
to make changes, some of which affected William and Frank
Collins. First, Signorelli fired William Collins as a business
agent and tried to get him to resign his position as recording
secretary. Second, despite some assurances to Frank Collins,
Signorelli replaced him in November 1991 with Antoinette
(Toni-Anne) Occhiogrossi as office manager and dispatcher.
In this regard, both Frank and William Collins testified that
Signorelli told them that he attributed part of his success in
winning the business manager’s spot to the members who
wanted the Collins’ brothers out of their union jobs.
As William and Frank Collins lost their paid union jobs,
they registered, in the autumn of 1991, at the hiring hall for
referrals to employment.
William Collins had been a member of the Union since
1968 and had operated a number of machines until he be-
came a full-time employee of the Union in or about 1985.
Although claiming that he could do crane work, he conceded
that he was never paid to operate a crane. In this respect, I
do not believe that William Collins was qualified to operate
a crane that requires a state license and that can be very dan-
gerous to people in the vicinity if not operated correctly.
Also, his testimony revealed that he never attended the
Union’s apprentice school and never learned to operate some
of the more difficult pieces of equipment that are run by op-
erating engineers. After registering in the hiring hall on or
about November 1, 1991, William Collins did not go out to
work until 5 months later, on March 30, 1992. As discussed
below, there was evidence that he was offered several jobs
during the interim.
The evidence shows that after he asked William Collins to
resign as recording secretary, Signorelli (perhaps in consider-
ation of receiving the resignation) referred William Collins to
a job as a master mechanic to a job that was almost finished.
The evidence also shows that some time after that job ended
on November 1, 1991, Signorelli told Collins that he would
no longer send him out as a master mechanic. In this regard,
Signorelli testified that as the master mechanic’s job is akin
to that of an appointed shop steward, he considered it a polit-
ical plum to be given or withheld by the business manager.
He stated: ‘‘It would be just like Guilliani putting Dinkens
in a good spot or President Clinton putting President Bush
in a good spot. So it wasn’t likely for me to do that with
anyone who ran or was in a position to run.’’4
Frank Collins began working in the trade in 1971 as an
oiler that is the least skilled of all of the operating engineer
jobs. (Indeed, it is so unskilled that in some of the more re-
cent project agreements in Westchester, the Union has had
to eliminate this category of work.) In 1984, Frank Collins
was hired by Charles Matero to be the Union’s office man-
ager and dispatcher. He remained in that position until re-
placed by Signorelli in November 1991, and he registered in
the hiring hall as an oiler on November 27, 1991. The
Union’s records show that Frank Collins did not obtain em-
ployment until January 27, 1993, about 13 months after reg-
istering. Thereafter he received four more referrals in the
months of April, May, and July 1993 and February 1994.
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 To be eligible for unemployment benefits an employee has to
have worked 20 weeks at an average of $80 per week within the
52-week period prior to filing. Alternatively, a person may be eligi-
ble if he or she worked 15 weeks during the 52-week period if he
worked a total of 40 weeks during the preceding 104 weeks. Addi-
tionally, there may be special circumstances that apply to people
who during the 104 weeks preceding filing were on Worker’s Com-
pensation.
(Collins was still employed at the last job as of the time of
the hearing.)
As noted above, the Union operates a nonexclusive referral
system. The operation of the hiring hall was explained by
witnesses from both sides, and there was not much disagree-
ment about how it was run in the context of this particular
industry.
Although highly paid, operating engineers, being in the
building and construction industry do not always have steady
work. Employment being seasonal, many of the Union’s
members obtain nonpermanent jobs and use the hiring hall
to get new work. By the same token, employers utilize the
hiring hall as an efficient place to obtain qualified workers
as needed.
Notwithstanding the above, the evidence shows that not all
of the Union’s members use the hiring hall. For one thing
there are a group of members who work for employers who
are not directly engaged in construction work and who have
full-time plant jobs. These people work in quarries, asphalt
plants, etc. There is also another group who are ‘‘company
men,’’ these being people, who although employed in con-
struction, have permanent full-time jobs with a particular
company. These people would have no need to use the hiring
hall, except if laid off or discharged by their particular em-
ployer. Additionally, there are people who having been re-
ferred to a particular job, will be re-referred to the same job
if the job was not completed by the beginning of winter and
if the employer resumes the work when the weather becomes
less inclement. (In those situations, the employer will likely
ask for that particular man.)
The basic procedure is that when a member is laid off, he
will register at the hiring hall for job referrals and his name
will be placed on a list. If, at the time he registers, he had
worked at least 20 weeks during the year, he will be listed
as ‘‘in book,’’ which means that as of that date he would
be entitled to collect unemployment insurance benefits pursu-
ant to the laws of New York.5 Thus, if ‘‘Doe’’ had worked
for 1 year, been laid off, and then registered at the hiring hall
on October 1, 1991, a notation would be made that he was
in book as of that date. As we shall see this would probably
affect Doe’s job referrals during 1992 and 1993 when em-
ployment was particularly scarce. Assuming that Doe is sent
out on jobs after registering for work, those job referrals
would be noted on his workcard. (The front of the workcard
is filled out by the individual member and lists the equip-
ment that he feels he is capable of operating. In 1992,
Signorelli asked the members to update their workcards by
filling out new ones and listing those jobs that they were ca-
pable of performing.) Until obtaining 20 weeks of employ-
ment, Doe’s name would stay in the same place on the list,
but once having obtained his 20 weeks, his name would be
moved to the bottom of the list.
On a day-to-day basis, the system works as follows: An
employer needing a man or a group of men will call the hall
and speak to Occhiogrossi (previously Frank Collins), and
tell her the number and types of jobs that are needed. She
will then go to the out-of-work list and obtain the names of
those people who are relatively high on the list and who, by
reference to their workcards, are qualified for the jobs re-
quested. In all cases, except for crane operators, she will give
the names to the business agent assigned to the area where
the job is located and he will contact the member with a job
offer. In the case of the crane operators (who are relatively
few in number), the business manager is the person who
calls the members with the job offers.
Although it might be useful to assume that the person who
is out of work the longest, and therefore highest on the list,
would be the person who would get first crack at job refer-
rals, this is qualified by other factors. First of all, there must
be a match between the job requested and the employee’s
skills. Very few members are licensed to operate cranes,
whereas virtually anyone can be an oiler. There is, in this
trade, a wide variety of machines and a variety of skills at-
tendant to their use. Some of the members can operate a few
machines whereas others have made it their business to learn
to operate all or most of them. (The Union operates a school
in which members can learn new skills.)
Then there is the situation where an employer will ask for
a particular member by name. While the Union has no obli-
gation to refer that person to the job, it seems that such a
request will frequently be honored.
The hiring hall procedure was also affected by conditions
in the industry during the slowdown in 1992 and 1993. In
this regard, Santamorena testified that the total number of
hours worked by members of the Union was as follows:
1988 1,472,000 hours
1989 1,573,000 hours
1990 1,163,000 hours
1991 1,218,000 hours
1992 1,052,000 hours
1993 988,000 hours
In 1992 and 1993 New York State unemployment benefits
were extended to the extent that if a person attended a school
such as the Union’s apprentice school, that person could re-
ceive these benefits for up to 52 weeks. It is also noted that
if a member was entitled to receive state unemployment ben-
efits, the Union supplemented those benefits from a fund,
with an additional amount of money per month, until the
state benefits ran out. Thus, if a union member was laid off
after having accumulated 20 weeks of employment at an av-
erage weekly earning of $80 per week, that member would
be entitled to state unemployment benefits plus the Union’s
supplemental benefit (a total of $450 per week), for 52
weeks if he attended, during the final 13-week period, the
Union’s apprentice school.
At the same time, the eligibility of members for health in-
surance under the Union’s welfare fund also depended on
their having worked a certain amount of time before collect-
ing benefits. Although the Union, in 1991 to 1993, extended
health insurance to employees who were out of work, there
could be occasions where a member was out of work for so
long that he not longer would be covered by this insurance.
In view of the State’s extensions of the unemployment
benefits, it became less imperative to refer a man to work
during the initial period of his unemployment. At the same
915OPERATING ENGINEERS LOCAL 137 (VARIOUS EMPLOYERS)
time, because members needed their 20 weeks to be eligible
for unemployment benefits and some also risked losing their
health insurance, there was a decision made in the spring of
1993 to give priority to members who needed 5 or fewer
weeks to reach the 20 weeks of work needed to renew their
unemployment eligibility. In some cases this might have fa-
vored some people who had already obtained more referrals
than others. (For example, a person who had managed to get
15 weeks of work could go out ahead of someone who had
obtained only 10 weeks of work.) But it also meant that if
the referral would likely result in a person renewing his eligi-
bility for unemployment benefits, that person no longer, at
least for some period of time, would be in the pool of people
that the Union would be sending out on job referrals. (That
is, once a person reaches 20 weeks of employment, he is list-
ed as in book and goes to the bottom of the referral list.)
Because of the risk that some of the Union’s members
were about to, or already had run out of, unemployment
and/or health insurance benefits, the Union also embarked on
a program of asking its members to give up jobs so that
other members could be referred to them. (This is reflected
in the Union’s minutes of August 17, 1992.)
In March 1992, Frank Collins decided to run for the office
of business manager in the election that were coming up in
August 1992. He was supported by his brother William and
a group of other members including those who are alleged
to be the discriminatees in this case. Indeed, eventually a
slate was formed that was led by Frank Collins and that was
designed to oppose the incumbent elected officers, trustees,
etc.
Frank Collins says that there was lots of talk about the
election campaign among the members who were at the ap-
prentice school. According to Frank Collins, his campaign
involved writing letters and making phone calls and visits to
members’ homes. He states that his group did not go to
jobsites to campaign. The minutes of the union meetings in-
dicate a lively exchange of issues between the supporters of
Frank Collins and the supporters of Nicholas Signorelli.
The minutes of the union meeting held on April 20, 1992,
state, in pertinent part:
In answer to false rumors about retirement of past
business manager, Charles Matero, Nick [Signorelli]
read to the membership the line officers meeting when
business manager, Charles Matero resigned. Nick said
he didn’t want to read them but because of lies the
members should hear the truth. Brother Signorelli ad-
monished brother Charles Matero for citing others to
run for office and to disrupt and cause unrest among
our membership during times of high unemployment.
Our business manager received another standing ova-
tion.
. . . .
Brother Frank Collins addressed the membership to
reaffirm his candidacy for the office of business man-
ager. Frank stated he had the administrative experience
to lead this local out of economic doldrums, also he
had the experience to provide this local with leadership
which has been lacking for the past year or so. . . .
Brother Collins stated our apprentice training program
was good, but needed improvements. Frank explained
he would implement a four year program which all new
applicants must go through. During this period they
would learn to operate several pieces of equipment.
Frank stated that sons and daughters of members should
have first preference to this program. He would have
experienced members re-trained to learn to read blue-
prints and shoot grades. Frank went on to say other
trades are taking our jobs, labor foreman [sic] are run-
ning the jobs and if you’re lucky he speaks broken
English. Why can’t our men be foremen? Frank stated
with 16 million in the unemployment fund why didn’t
our business manager reduce this fund and increase the
unemployment payment. Frank would ask us to author-
ize a salary for the office of president . . . to assure
the integrity of that office. He would set up elections
for the positions of business agents making the agents
accountable to the membership. He would establish
qualifications for master mechanic rather than being se-
lected by favoritism. He would establish a stamp pro-
gram for our benefit funds. He would establish a schol-
arship fund by collecting $.05 per hour in our next con-
tracts paid by the contractor. Brother Collins assured
the membership Charles Matero would have no place in
his office or his administration if elected. Frank ended
by stating he had other thoughts he would share with
us in the coming months.
. . . .
Brother Robert Dignelli rose and agreed with Frank
Collins about our apprentice training school. He be-
lieved that Frank and his brother should go to the
school and learn to operate so he would be in touch and
know what this work is all about. It doesn’t take place
with your feet on the desk, it’s outside in the field in
the rain, heat, dust and in the freezing cold. . . . At
this point the members gave Robert a standing ovation.
Brother Vincent Rotello responded to Frank about the
Apprentice Training Program by stating that since he
became the director, the training school has become an
approved apprentice training program registered by the
state of New York and the Federal Government. Vinnie
went on to thank Nick Signorelli for his help in imple-
menting this new program and for his support of him-
self as the director since Nick became business man-
ager. . . .
The minutes of the meeting of May 18, 1992, have the fol-
lowing remarks:
Brother Cas Duchnowski went to question the line
officer’s meeting when Charles Matero turned in his
resignation. He believed Charlie made a good choice in
nominating Sal [Santamorena] for that office but the
vote of the line officers went to brother Nicholas
Signorelli. He went on to say Nick was fired because
of threats on Charlie Matero. Cas remarked Nick and
other leaders did not come forward because of threats
against him. At this point John Chiumento asked for a
point of order . . . and remarked to Brother
Duchnowski, ‘‘you have no proof any threats were
made against Charlie Matero . . . .
. . . .
Brother Robert Smith . . . complained he did not get
the proper representation from the business manager
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Signorelli asserted that there were false rumors that he was the
target of an FBI investigation. In this regard, he told the members
that although the FBI did request the Local’s books and records the
grand jury was investigating the years when Charles Matero was the
business manager.
7 I note that although alleged as a discriminatee George Atkinson
did not run for any office and was therefore not a part of the Col-
lins’ slate.
and agent Michael Brown. Bob also wanted to know
how the ‘‘out of work’’ list was being handled. Nick
explained how the work list is being handled now.
Toni-Ann[e] takes calls for work and the agents place
the members who are most needed of employment. But,
also he must be qualified for that job. Only the agents
place men to work. Robert raised the question about a
man employed on his job, laid off and re-employed
within a week. Mike explained the contractor asked for
that person and that it was only a three to four day job.
Lou [Varricchio] explained to Bob, we are not a hiring
hall, we are a referral hall.
. . . .
Brother Bill Collins stated he had a copy of the line
officers meeting that Brother Signorelli stated was lost,
August 29, 1991 meeting. Bill read the minutes he had,
but the accuracy of his minutes were firmly refuted by
four of the line officers present at that meeting.
Nominations for the various union officers and other elect-
ed positions were held at the union meeting of July 20, 1992,
after Nicholas Signorelli made a speech about alleged false
rumors being spread by the opposition6 and stating the rea-
sons that he felt he was entitled to be reelected to the office
of business manager. The incumbent slate, which was nomi-
nated, consisted of:
Nicholas Signorelli Business Manager
Louis Varricchio President
Nicholas Basso Vice President
Daniel Falcone Recording—Corresponding
Secretary
Michael Browne Financial Secretary
Vincent Rotello Treasurer
Victor Bernarbo Trustee
Rosita Mazzola Trustee
Larry Lefler Trustee
Joseph Miccio Auditor
Salvatore Matero Auditor
Matthew Fortino Auditor
Jeffrey Loughlin Conductor
Albert Girardi Jr. Guard
Stanley Colburn Exec Bd
William McGill Exec Bd
James Griffen Exec Bd
Joseph Polese Exec Bd
Sal Santamorena Exec Bd
The opposition slate that was nominated consisted of:7
Frank Collins Business Manager
Chris Villa President
Casmir Duchnowski Vice President
Daniel Falcone Recording Secretary
(unopposed)
Robert F. Smith Financial Secretary
Anthony Rubeo Treasurer
Ronald Jackson Exec Bd
Louis Lagana Exec Bd
Angelo Matero Exec Bd
Angelo Orsetti Exec Bd
At this meeting, all of the people who were unopposed
were elected by acclamation after checking to see that they
were eligible for office. (To be elected, a member must be
fully paid up in his or her dues.)
At some point following the July 20 meeting, most of the
people on the Collins’ slate were disqualified as their dues
were not fully paid up. In August 1992, when the Collins’
slate attempted to have a local court overturn the disquali-
fications, the court refused to intervene after reviewing the
Union’s constitution and bylaws.
At the union meeting on August 17, 1992, the election re-
sults were announced. In the two contested races, Nicholas
Basso beat Casmir Duchnowski for the office of vice presi-
dent by 554 to 83 and Vincent Rotello beat Anthony Rubeo
for the office of treasurer by 552 to 82. At this meeting,
Frank Collins came up and congratulated the officers who
had been elected and said that he wanted to thank the mem-
bership for their views and opinions. He said that they
should put their differences aside and join together.
To establish animus, counsel for the General Counsel, in
her brief refers to evidence of nine alleged coercive state-
ments directed to the Collins’ slate, five of which occurred
outside the 10(b) period and four of which occurred within
the 10(b) period. These are described below.
Christopher Villa claims that in May 1991, Oscar Rau,
who was the previous business agent, told him that William
Collins was no good for Local 137 and that Villa should stay
away from Collins because he was not a good business
agent. Villa claims that Rau told him that he should not get
involved with Collins. These alleged statements were made
almost a year before Frank Collins decided to run for office
and were made by someone who was no longer an agent of
the Union.
According to Villa, in February 1992, he was involved in
a grievance with his employer over his hours and he had a
meeting with Union President Louis Varricchio regarding the
matter. He states that Varricchio told him that Villa should
let it (the grievance) go as the Union was trying to give the
small contractors a break. Villa also testified that Varricchio
stated that he should not get involved with people in the
election or he would be getting into trouble.
Villa also testified that in January 1993 (5 months after the
election), Varricchio told him at the union hall that he was
insulted that Villa ran against him in the election and that
he intended to make him nervous.
Villa testified, along with another member, Patrick Vateri,
that at a union meeting held in December 1993, Signorelli
said that he could bring ‘‘us’’ up on charges for going to the
NLRB. (No intraunion charges were ever filed against the al-
leged discriminatees and this alleged statement is not con-
tended to be an unfair labor practice.)
Union member Donald Rufell Sr. testified that he was
working for Yonkers Construction Company in the summer
of 1992 along with James Cassucci and Angelo Orsetti. He
states that Master Mechanic Nick Funicello was always talk-
ing about the upcoming election and that he said, among
other things, that he was going to get Orsetti off the job and
917OPERATING ENGINEERS LOCAL 137 (VARIOUS EMPLOYERS)
8 The parties did not put into evidence what the hourly rates were
for operating engineers during this time period. From my experience,
however, operating engineers are one of the higher paid crafts in the
building and construction industry. I think it is more than likely that
if an operating engineer worked for 1 day during a given week, he
would have earned at least $80, which would therefore have credited
him with 1 week worked for unemployment insurance purposes.
9 Neither party disputed the accuracy of the other’s summaries.
What they disputed was the selection process by which the other
made comparisons.
that Orsetti was never going to work again. James Cassucci
testified in a similar vein and stated that Funicello mentioned
that Orsetti was running on the Collins’ slate, that the people
not voting for Signorelli would never work after the election,
and that Cassucci should give the cold shoulder to Orsetti.
Although these statements were denied by Funicello, I am in-
clined to credit the testimony of Rufell and Cassucci, neither
of whom had any particular interest in the election or in any
of the parties involved in this case.
Anthony Rubeo testified that he announced his candidacy
on the Collins’ slate toward the end of April 1992. He testi-
fied that on April 22, 1992, he went to the hall and asked
Signorelli when he could expect to go back to work. Accord-
ing to Rubeo, Signorelli showed him a little yellow pad and
said something to the effect that there were two lists, one for
the men who were going back to work and the other for
those who were not. Rubeo did not see the paper and did not
question Signorelli about what the statement meant.
Angelo Matero, who is a crane operator, testified that dur-
ing the spring of 1992 he worked at the Union’s apprentice
school as an instructor until he started to campaign for the
Collins’ slate. In this respect, he testified that Vincent
Rotella, the school’s director, laid him off as an instructor
and told him, ‘‘I told you not to campaign up here.’’
Angelo Matero and Anthony Rubeo testified to a con-
versation they had with Signorelli in September 1992. They
state that they went to the office to congratulate Signorelli
on his election but that Signorelli said that he couldn’t be-
lieve that they had joined the opposition and couldn’t under-
stand how people on the Collins’ slate got 80 votes. In sub-
stance, they state that Signorelli said that if they hadn’t gone
with ‘‘those guys,’’ Rubeo would have been at a garage job
as a master mechanic, that William Collins would probably
be on a welding machine at that job, and that Frank Collins
would probably be back at his old job in the Union’s office.
Angelo Matero (the brother of Charles Matero) testified that
he when he asked Signorelli where he fit in, Signorelli
picked up a yellow pad and said, ‘‘[W]hen your name comes
up, you go out.’’ According to Matero, Signorelli said that
he probably would be going out pretty soon as his name was
near the top. He states that when he asked Signorelli what
he meant by pretty soon, Signorelli said, ‘‘[W]ell if a crane
comes in and you don’t go out on it, then you’re screwed.’’
(In fact, Angelo Matero was referred to jobs on September
22 and October 2, 1992.8 He thereafter officially retired on
December 1, 1992, and began to receive pension benefits.
This is not the type of case when the evidence unambig-
uously demonstrates that the alleged discriminatees were de-
nied referrals from the Union’s hall. (They were not.) What
is alleged is that they received fewer than their fair share of
referrals because of their intraunion activities. Although one
could surmise that a union’s leadership might seek to retali-
ate against those people who opposed them, suspicion is not
the same as proof, the burden of which lies with the General
Counsel. Laborers Local 423 (G.F.C.), 313 NLRB 807, 812
(1994). Moreover, the political challenge of the Collins’ slate
turned out to be ephemeral at best.
To a large extent, the evidence consisted of voluminous
records from which each side made summaries to dem-
onstrate their respective points. Part of the difficulty is that
the members of this Union are not interchangeable in terms
of the jobs that they do. There is a great deal of potential
variation inherent in matching jobs that are called into the
hall and the skills of the out-of-work members who are se-
lected by the business agents or the business manager. More-
over, the number of weeks worked by members may vary
widely depending on the relationship that a particular mem-
ber has with a particular contractor who may either retain
him as a ‘‘company man’’ or ask for him by name when
calling in new jobs to the hall. Finally the normal course of
job referrals was affected by the substantial reduction in the
number of available jobs during the period from 1992
through 1993. The result of all this is that it seems to me
that there is an inherent difficulty in establishing whether any
particular group of individuals (such as the members of the
Collins’ slate) were either discriminated against or were
treated no differently than the other members of the Union.
General Counsel’s Exhibit 11 consists of a looseleaf note-
book prepared by Christopher Villa, containing, inter alia, the
workcards of the alleged discriminatees, showing their quali-
fications as described by themselves and the dates that they
obtained work at various contractors. These cards generally
indicate the date that the particular person was designated as
‘‘in book’’ meaning that as of that date, the individual had
obtained his 20 weeks of work in order to be eligible for un-
employment benefits. This book also contains the workcards
of other members, whom the General Counsel, via Chris-
topher Villa, claims are similar in qualifications to each of
the alleged discriminatees. Additionally the book contains a
group of summaries comparing each alleged discriminatee
with these other members; such summaries purporting to
show that these comparable members obtained work at times
when the discriminatees were waiting for referrals while on
the out-of-work list. It, however, was conceded by Villa that
the book does not reflect the amount of work done by all
of the Union’s members and he agrees that he probably did
not include some comparable members who obtained fewer
work opportunities than the alleged discriminatees during the
relevant time period.
Respondent, for its part, offered a group of its own sum-
maries into evidence.9 Respondent’s Exhibit 5 is a list of the
Union’s members who worked as long boom crane operators
and it sets forth the amount of weeks that each worked in
that category from July to November 1992. (Although listed,
the Respondent asserts with justification, that William Col-
lins should not be placed in this category.) This summary
shows:
Angelo Matero 3 days
Anthony Rubeo 3 weeks
Bob Brown 2 weeks
John Calantuno 5 weeks
Roy Holland 4 weeks
Jeff Loughlin 8 weeks
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Although Villa’s testimony intimated that the Union had some-
thing to do with GALS’ refusal to recall him to work (not alleged
as a violation of the Act), the evidence tends to establish that GALS’
refusal was more likely based on the fact that Villa was (as was his
right) particularly inflexible in making compromises about his wages
and hours.
11 G.C. Exh. 6(c) contains a series of notes made by Toni-Anne
Occhiogrossi that were attached to Villa’s workcard at the union of-
fice and purport to show various occasions when union agents either
attempted to reach Villa when he was not at home or other occasions
when they offered him jobs that he turned down. She testified
credibly that she made these notes based on reports given to her by
Dick Rau 5 weeks
Tom Ryan 2 weeks
Boris Utko 10 weeks
Chris Villa 18 weeks
Respondent’s Exhibit 6 is a summary comparing the num-
ber of weeks worked by those alleged discriminatees who
were operators (excluding oilers and crane operators) during
the period from July 1992 to April 1994 with all of the
Union’s operators (278 in number) who worked during this
period on building construction or highway construction
sites. (As opposed to quarries, plants, etc.) (According to the
testimony of Funds Manager Santamorena, when asterisks
are next to a name, this means that the person is a
companyman or someone who is repeatedly called back by
the same company.) Also on the summary is a list of com-
parable operators who retired during the period, setting forth
the date of retirement and the number of weeks worked from
July 1992 to retirement. This is meant to compare these other
members to those alleged discriminatees who either retired or
died after July 1992 when the alleged discrimination began.
In part, this summary shows:
George Atkinson worked 47 weeks. During the same
period, 137 members worked the same or fewer weeks.
Chris Villa worked 37 weeks. During the same pe-
riod 87 members worked the same or fewer weeks.
Robert Smith worked 32 weeks. During the same pe-
riod 67 members worked the same or fewer weeks. (As
noted above, the General Counsel withdrew the allega-
tion relating to Mr. Smith.)
Casmir Duchnowski worked 22 weeks and retired on
March 1, 1994. During the period from July 1992 to
April 1, 1994, 31 members worked the same or fewer
weeks.
Ronald Jackson worked 16 weeks until his death on
November 11, 1993. The list contains 67 members who
worked the same or fewer weeks as Jackson.
Angelo Orsetti worked 12 weeks. He refused em-
ployment referral on July 6, 1993 because he purchased
a second farm. During the period from July 1992 to
April 1, 1994, 11 members had the same or fewer num-
ber of weeks worked.
Anthony Rubeo worked 3 weeks until he retired on
November 1, 1992. Only 3 members had the same or
fewer weeks worked than Rubeo. (He, however, was
not available for work during 1993 and 1994.)
Respondent’s Exhibit 7 is based on the assumption that
William, Frank, and John Collins worked as oilers, which is
the least skilled category within the Union. William Collins
from July 1992 had 0 weeks work and obtained other em-
ployment on April 29, 1993. John Collins worked 1 week
and told the Union that he obtained other employment in
March 1993. Frank Collins obtained 20 weeks of work. The
list goes on to summarize the number of weeks worked by
other oilers during the period from July 1992 to April 1,
1994, and it shows 40 people whose number of weeks
worked ranged from 1 week to 58 weeks. The median num-
ber of weeks worked for this group was 24 and 13 members
worked the same or fewer weeks as Frank Collins.
Frankly I am not satisfied with either set of summaries. In
the case of the summaries generated by the General Counsel,
they utilize very small groups of employees to compare with
the alleged discriminatees and they admittedly omit ref-
erences to people who received fewer referrals and worked
less time than the alleged discriminatees. On the other hand,
the summaries offered by the Respondent are in some re-
spects too general.
What follows is an attempt to analyze the situations of
those people who were on or who openly supported the Col-
lins’ slate.
A. Christopher Villa
Christopher Villa was part of the Collins’ slate and was
nominated for the office of president. He, however, was dis-
qualified and Louis Varricchio, who was unopposed, won the
election held in August 1992. Everyone agrees that Villa was
one of the members who could operate virtually all of the
machines including cranes.
At the time of the election, Villa had a steady job at a
company called GALS where he had been hired in Novem-
ber 1990 and was a ‘‘company man.’’ In 1992 Villa was in-
volved in a grievance with the company over his hours and
Varricchio advised him to drop the matter because the Union
was trying to give small companies a break. In December
1992, Villa was laid off after he refused to accept a position
in the company’s plant on a part-time basis. (He felt that this
was contrary to the terms of the collective-bargaining agree-
ment.) When spring came, GALS did not recall him and did
not call the hall to request that Villa be rehired.10
Villa registered at the hall for employment and his
workcard indicates that he is listed as being in book as of
December 29, 1992. As he had previously worked more than
20 weeks prior to his layoff, Villa would have been eligible
for unemployment benefits for 52 weeks assuming that he
hung out at the apprentice school for the final 13 weeks.
Thus, he would have run out of his benefits by the end of
December 1993.
The Respondent’s summary that shows that Villa worked
37 weeks during the period from July 1992 to April 1994 is
misleading as most of those weeks came during the time that
he had steady employment at GALS. The alleged discrimina-
tion could only have occurred after December 29, 1992.
Villa’s workcard indicates that after his layoff from GALS
he was not referred for 6 months. (He next worked at a com-
pany called Besmingham from July 6 to 20, 1993.) There-
after, from September 14, 1993, to April 1994, he was re-
ferred to seven different jobs and worked during about 10
weeks.
The Respondent asserts that in addition to the above, there
were other occasions when the Union either offered jobs to
Villa or attempted to reach him without success.11 In this re-
919OPERATING ENGINEERS LOCAL 137 (VARIOUS EMPLOYERS)
the business agents and maintained them as part of the hiring hall
records. Among the notes are references to the conversations de-
scribed above as well as to others. For example, there is a note indi-
cating that it was in July 1993 and not September 1993 that Villa
said he had to stay unemployed in order to get his annuity money
for his daughter’s school. Another example is a note indicating that
Mike Brown called Villa on June 6, 1993, offering him a job at
Standard Bridge which was turned down because Villa’s daughter
was getting married.
spect, Villa conceded that in March 1993, he received a call
from Business Agent Mike Brown to work at a job at Indian
point that he refused because he had some problem with lost
unemployment records. Villa also concedes that in early June
1993, he turned down a job offer made to him from Dan
Falcone. (He states that he turned this job down because he
was at his son’s house at the time.) Later in June 1993, Villa
concedes that he told Occhiogrossi that he would not be
available for work from June 21 to 26 because of his daugh-
ter’s wedding. He also testified that he spoke to Occhiogrossi
around September 3, 1993, to tell her that he would not be
available for work as he intended to borrow money against
his annuity for the purpose of his other daughter’s college
tuition. (As his daughter got a grant from the college, Villa
advised the Union that he would be available for work, and
he was in fact referred from the hall on September 14, 1993.)
As it is impossible to tell from the records before me how
long any of the turned down jobs would have lasted, it is dif-
ficult to say how his work record would compare to other
people having similar qualifications to him. At the very least,
Villa would have been referred from the hall 12 times and
worked in at least 14 weeks.
B. The Collins Family
Since Frank Collins opposed Signorelli for the position of
business manager, which is the most powerful position in the
Union, and as his brother William, who had previously been
a business agent, who now supported Frank in his campaign,
it would seem most likely that if any unlawful discrimination
occurred, it would have been directed against the Collins
family.
Frank Collins ran for the business manager’s position in
the August 1992 election but was disqualified before the
election was held. He had held the position of office
manager/dispatcher under the Charles Matero regime and
was ousted from that position on November 27, 1991, when
Signorelli took over as the Union’s business manager follow-
ing Matero’s resignation and Signorelli’s defeat of Matero’s
candidate, Sal Santamorena, in the interim election held in
August 1991.
For much of his life as a union member, Frank Collins
worked as an employee of the Union and never obtained any
of the skills that a regular member would obtain either
through training or through work. He came into the Union
as an oiler and did not advance from that point.
William Collins did not run for office but campaigned on
behalf of his brother Frank. Previously he had been a busi-
ness agent during the Charles Matero regime and also the fi-
nancial secretary. During his time as a business agent (for 6-
1/2 years), he did not work as an operating engineer. Al-
though he indicated on his workcard that he was licensed to
operate cranes, he concedes that he never had a paid job
doing this work. (Operating a crane requires a state license
because of its potential danger to other people.) His
workcard also indicates that he did not operate any of the
other equipment listed.
When Signorelli became the new business manager, he
fired William Collins from his job as a business agent. He
also induced Collins to resign his position as an officer of
the Union, by offering him a position as a ‘‘master me-
chanic’’ on a job that was finishing up. That job lasted for
6 weeks until November 1, 1991. Therefore, at the time that
William Collins reentered the work force as an operating en-
gineer on November 1, 1991, he was only qualified to be an
oiler. As his in book date was November 1, 1991, he would
have been eligible for unemployment benefits until Novem-
ber 1, 1992.
William Collins has two sons who are members of the
Union. Neither ran for office and neither campaigned for the
Collins’ slate. One, John Collins, is alleged to be a
discriminatee, while the other William Collins Jr. is not. The
theory is that the Union, under Signorelli’s leadership, dis-
criminated against John Collins because his uncle Frank ran
for office and because his father William campaigned on
Frank’s behalf. Like his relatives, John Collins essentially
worked as an oiler albeit he did indicate on his workcard that
he could operate two of the machines. (One of the two being
a rubber tire loader.) There is no workcard for William Col-
lins Jr. in evidence and, according to Signorelli, he is a com-
pany man for Yonkers Contracting and therefore does not
use the hall for referrals.
C. Frank Collins
The records show that Frank Collins, after being fired as
the Union’s dispatcher, had an in book date of November 27,
1991. The records also show that he did not obtain work as
an operating engineer until January 27, 1993, which is about
14 months later. Thereafter, he got three jobs through refer-
rals in 1993 (working in about 13 weeks), and received one
referral to a company called Interstate in February 1994. In
the latter case, Collins was still employed by Interstate as of
the time of this hearing.
In the summer of 1992, Business Agent Mike Brown
called Frank Collins and told him to go to work at a com-
pany called Nelsted. Collins asserts, however, that when he
called someone from that company to find out when to re-
port, he was told that they did not call in for a man.
Frank Collins agrees that on another occasion in the sum-
mer of 1992, Dan Falcone offered him a job as a loader.
Collins states that he refused this job because he had never
operated this type of equipment.
Frank Collins concedes that on October 7, 1992, he re-
ceived a job referral to go to work for Millwood. He states
that he turned this job down because his car was being re-
paired.
He also testified that he was offered another job at Cold
Springs Harbor, but he turned it down because it was a haz-
ardous materials job for which he was unlicensed.
Occhiogrossi in my opinion was a credible witness.
Among other things, she testified that she made notes of
those occasions when members refused job offers made to
them by the business agents. These notes were offered into
evidence as General Counsel’s Exhibit 6 and appear to have
been made in the ordinary course of her duties in dealing
with referrals and in maintaining the Union’s referral records.
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Rule 803 sets forth a group of exceptions to the hearsay rule
even though the declarant is available as a witness. Rule 803(6), the
business record exception to the hearsay rule, states as follows:
(6) Records of regularly conducted activity. A memorandum,
report, record, or date compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by,
or from information transmitted by, a person with knowledge, if
kept in the course of a regularly conducted business activity, and
if it was the regular practice of that business activity to make
the memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified wit-
ness, unless the source of information or the method or cir-
cumstances of preparation indicate lack of trustworthiness. The
term ‘‘business’’ as used in this paragraph includes business, in-
stitution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit.
While Occhiogrossi’s notes were made based on reports from
the business agents, they, as part of their responsibilities,
would have a duty to report to her the outcome of any job
referrals so that she could in turn keep accurate records of
which members got jobs, the dates that they obtained work,
and the companies to which they were referred. These notes
were made contemporaneous with the transactions described
and could therefore be described as business records defined
by Rule 803(6) of the Federal Rules of Evidence as an ex-
ception to rule prohibiting receipt of hearsay evidence.12
In the case of Frank Collins, there are two notes dated
July 30, 1992. One indicates that Dan Falcone called and
spoke to Collins about a job which was refused. The other
indicates that Collins was called at 7:20 a.m. to go to work,
that his wife said he wasn’t at home, and that the job was
therefore offered to another man. A note dated August 26,
1992, indicates that Collins was called and was not at home
and that a message was left on his machine. There is a note
dated October 7, 1992, indicating that an offer of work at
Millwood was refused because Collins had no car. A note
dated November 2, 1992, indicates that Collins turned down
a HazMat job because he was not qualified. A note dated
November 5, 1992, indicates that Collins was offered a job
on a loader and excavator for Hudson Canyon Construction
and that Collins refused the job saying that he could not run
the machines. Another note dated November 22, 1992, re-
ports that on the previous Friday, Occhiogrossi attempted to
reach Frank Collins at home about a loader job at Pecham
Patterson, but that no one was at home. Finally there is a
note dated February 4, 1993, indicating that Falcone left a
message on Collins’ answering machine to go to work for Al
Stauder.
D. William Collins
William Collins, as noted above, was discharged from his
union job as business agent, when Signorelli took over the
position of business manager in August 1991. The evidence
also indicates that Signorelli induced William Collins to re-
sign as recording secretary in consideration of which, he sent
Collins to work at a jobsite as a master mechanic. When that
job concluded on November 1, 1991, William Collins reg-
istered at the hall for job referrals. Although his workcard in-
dicates that he felt he could operate a crane, he hadn’t
worked as an operating engineer for 6-1/2 years and he ad-
mittedly had never operated a crane in a real job setting. The
Union’s position is that as of this time, William Collins was
not a skilled operator and that he could only be sent out on
oiler jobs.
The records show that after the Halmar job, which ended
on November 1, 1991, William Collins next worked at a job
at Worth Construction from March 30 to April 10, 1992.
This was the last job that William Collins worked in the in-
dustry and obtained a permanent Government job in March
1993.
The Union contends that William Collins was offered nu-
merous jobs that he turned down for one reason or another.
For one thing, the Union points out that for a substantial pe-
riod of time from January to March 1992, Collins admitted
that he was unavailable for work on account of an ear infec-
tion. The Union also points out that Collins admitted that
during May 1992, he was unavailable because of a heel spur.
Collins conceded that he had a tax problem and he admits
that in March 1993, he told Union President Louis Varric-
chio that he did not want to accept work because he intended
to borrow money from his annuity and would be eligible to
do so in another week. Because a member cannot borrow
money from his annuity unless unemployed for about a year,
the Union could argue that this statement to Varricchio is
consistent with other evidence showing that William Collins
turned down numerous jobs during 1992 and 1993.
William Collins testified that he received a job referral
from Mike Brown in late July 1992 but turned it down while
stating to Brown that he felt that his son, John, should go
out ahead of him because John was higher on the out-of-
work list.
There are two notes written by Occhiogrossi dated July 31
and August 1, 1992, indicating that Mike Brown and Daniel
Falcone called Collins to go to work for a company called
Fletcher Creamer but that he refused on account of a foot in-
jury. William Collins denied receiving either of these calls.
(This would be for one job.)
A note dated August 26, 1992, indicates that William Col-
lins was offered work at Tremson-George Trembly but that
he refused that job on the ground that he had car trouble.
Collins concedes that he had car trouble in August 1992, that
his wife told him that the Union called him about a job, and
that he told Occhiogrossi that he could not get to the job on
account of his car.
By the end of December 1992, William Collins was ac-
tively looking for work outside of the industry. In December
1992, he interviewed for the Government job that was even-
tually offered to him and which he accepted in March 1993.
Additionally, he made an arrangement with a company that
sold fishing tackle to do work on a trial basis at a series of
trade shows held during February and early March 1993. Ac-
cording to William Collins, at some point during late Decem-
ber 1992 or early January 1993, he told Falcone about the
four trade shows and told him the dates that he would be un-
available for work as an operating engineer. (Based on the
dates of the trade shows, William Collins would not have
been available for almost the entire month of February
1993.)
Needless to say, William Collins was offered a number of
jobs during February and March 1993. Whereas the Union
contends that these jobs were legitimate offers, Collins sug-
gests that the only reason these jobs were offered was be-
cause the Union’s officials knew that he was going to be out
of town and was not available to accept them. In my opinion,
921OPERATING ENGINEERS LOCAL 137 (VARIOUS EMPLOYERS)
13 For example, another oiler, Dom Montesano, had an in book
date of November 22, 1991. He was not referred to another job until
about 4 months later but on his second referral managed to get a
long-term job at Halcyon that allowed him to make his 20 weeks.
Similarly, Timothy Gallagher, who had an in book date of January
30, 1992, was first referred on July 6, 1992, to a long-term job that
allowed him to get, in one shot, his 20 weeks of employment.
14 For example, Greg Cacace’s in book date was August 2, 1991,
and although he was referred to a 1-week job in mid-August 1992
his next referral was 10 months later on June 16, 1992. Timothy
Gallagher was listed as in book on January 30, 1992, and did not
get referred until July 6, 1992. John DiRienzo was listed as in book
on November 22, 1991, and was not referred until September 23,
1992. Dom Montesano was listed as in book on November 22, 1991,
and was not referred until almost 4 months later on March 17, 1992.
Michael Carpanzano was listed as in book on December 20, 1991,
and was not referred until August 3, 1992. (Carpanzano’s card indi-
cates that he could operate an asphalt roller and a cherry picker.)
Vincent Ferraro was listed as in book on November 22, 1991, and
was not referred until July 13, 1992. He was listed again as in book
on October 2, 1992, and waited almost 6 months until March 30,
1993, before being referred again to work. Gary Cushing, who also
indicates that he is an equipment mechanic and welder, is listed as
in book on August 30, 1991, and was not referred again until March
7, 1992. Basil Ciampi is listed as in book on December 5, 1991, and
was not referred again until April 25, 1992. Richard Masterbuono is
listed as in book on October 4, 1991, and was not referred thereafter
until July 2, 1992. Michael Mascolo Jr. is listed as in book on No-
vember 29, 1991, and was not referred to a job until July 20, 1992.
On the other hand there are examples of people who had minimal
hiatuses from the times that they were laid off and listed as in book
and the next time that they received referrals from the Union. Such
an example would be Arthur Farrey who is listed as in book on De-
cember 20, 1991, and was referred back to the same company on
January 6, 1992, where he continued to work until December 1992.
Other examples would include Wayne Heller, Gary Cacace, Paul
Claraco, Louis Catano Jr., James O’Neill, and William Doyle. In the
case of one Edward Vetrano, his card indicates that although he re-
ceived a job referral soon after being listed as in book (December
21, 1991), there was a 4-month hiatus before his next referral.
however, I do not believe that there was a conspiracy as the
other evidence indicates that Collins had refused earlier job
offers and was unavailable for work for a significant part of
1992 and 1993 because of either his medical condition
and/or his desire to borrow from his annuity to satisfy a pre-
viously incurred tax liability. In any event, William Collins
left the industry in March 1993 when he accepted a Govern-
ment job.
E. John Collins
As noted above, John Collins did not run for office and
did not campaign on behalf of Frank Collins or the Collins’
slate. He also did not testify in this proceeding.
The workcard of John Collins shows that when he was
laid off on September 10, 1991, he had obtained his 20
weeks necessary to collect unemployment benefits and that
he was listed as in book as of September 6, 1991. The card
shows that the next job that he got from the hall was a refer-
ral to Thalle on March 16, 1992, which was 6 months after
the in book date. The card also shows that he obtained two
other jobs from the hall and worked during 2 other weeks
in 1992.
General Counsel’s Exhibit 6 contains a series of notes in-
dicating referral offers or attempts to make such offers to
John Collins. There is a note dated August 26, 1992, indicat-
ing that an attempt was made to contact him about a job at
Tremson. There is a note indicating that Daniel Falcone
called his home on September 21, 1992, about a job. A note
dated November 11, 1992, indicates that Mike Brown called
and that John Collins refused a job because he was working
on a boat. There are two notes dated March 4, 1993, indicat-
ing that Louis Varricchio tried without success to contact
Collins about a job. Several notes dated March 9, 1993, indi-
cate that John Collins, in response to a phone call from the
Union, said that he was working elsewhere and suggested
that the job be given to Frank Collins. Finally, there is a note
dated April 30, 1993, indicating that John Collins refused an-
other job offered by Mike Brown, saying that he had another
job and that when he wanted to go back to the union hall
for job referrals, he would call.
What is striking about the work records of these three men
is that many of the job offers that were made to them oc-
curred at or around the time of the 1992 election. As many
of these and later job offers were turned down, it is impos-
sible to say how many weeks they each would have worked
during the relevant period of time.13 Indeed, the records tend
to indicate that if there was any discrimination against them
it would have occurred during the 6-month period after Sep-
tember 1991 which is before the 10(b) limitations date. In
this regard, the records indicate that after Signorelli first be-
came business manager in August 1991, Frank, William, and
John Collins each had to wait about 6 months before being
referred to a first job after registering for job referrals and
after being listed as in book. Such a hiatus was not however,
that unusual for other union members in comparable situa-
tions. Thus, the records show that many other members who
worked primarily as oilers and who were listed as in book
during the second half of 1991 had similar long waits before
receiving referrals.14
F. Operators
Although ‘‘oilers’’ may be capable of operating some of
the more simple machines such as loaders, asphalt rollers,
and dynahoes, operators would constitute the largest group of
union members working on building or highway construction
jobs. These are the people who operate the different types of
machines used such as bulldozers and backhoes. (Crane oper-
ators are considered a separate class, albeit some people such
as Villas and Anthony Rubeo are qualified to operate both
cranes and the other types of machines.)
The operators who were candidates on the Collins’ slate
were Chris Villa (discussed above), Casmir Duchnowski,
Daniel Falcone (who ran on both slates), Robert F. Smith,
Anthony Rubeo, Ronald Jackson, Louis Lagana (who won
because one of the Signorelli’s slate was disqualified), An-
gelo Matero, and Angelo Orsetti. Of this group, counsel for
the General Counsel withdrew her original contention that
Robert Smith was discriminated against and never contended
that Louis Lagana was the object of unlawful discrimination.
In addition, the General Counsel alleges that George Atkin-
son was discriminated against on the theory that he actively
campaigned for the Collins’ slate (in particular at the appren-
tice school), albeit he did not himself run for office.
Casmir Duchnowski, who was a member of the Union for
40 years, ran for the office of vice president against Nicholas
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Louis Lagana also ran on the Collins’ slate and won by default.
His workcard shows that he could be considered an operator and that
he worked steadily from August 5, 1991, through December 1993.
He was never alleged to be a discriminatee and his work record
shows a lack of adverse action against him.
16 I should note that I do not have statistical skills. Nor did either
party present any expert who could look at the records and render
an opinion as to whether they revealed a pattern of discrimination
or whether any pattern would possibly be the result of nondiscrim-
inatory factors.
Basso. He worked from September 30, 1991, to January 14,
1992, for Chrysler at which time he left the job because of
an injury. His in book date is January 14, 1992, which means
that he could have received unemployment benefits until at
least January 13, 1993. (In some cases, unemployment bene-
fits can be extended further when a person is on disability.)
According to Duchnowski he went off disability in March
or April 1992 and therefore was available for work. His testi-
mony, corroborated by his workcard was that he was next re-
ferred to a job on February 8, 1993, which is about 13
months after his in book date. Thereafter Duchnowski re-
ceived five job referrals (three to the same company), and he
achieved his 20 weeks by late November 1993. His last re-
ferral was to a company called Vozzola Concrete where he
worked for 2 days. He testified that as he did not receive any
further referrals in 1993, and because he was soon to run out
of unemployment benefits, he decided to retire and did so on
March 1, 1994, when he was 61 years old. (The hiatus in
job referrals between his last job at the end of November
1993 until his retirement on March 1, 1994, could, however,
be explained by the fact that this was during the winter
months when many construction jobs are not available.)
George Atkinson worked at a company from June 3, 1991,
until he was laid off on September 17, 1991. On his card,
his in book date is listed as September 11, 1991. Thereafter,
his card shows that he was continuously referred to jobs
from October 2, 1991, through April 1993. (The last job list-
ed was at Ninne, and ran from April 21 to December 23,
1993, thus fulfilling his 20-week requirement for unemploy-
ment benefits. At the time of the election campaign, his card
indicates that after being laid off from Pecham on May 18,
1992, he was referred to a 2-week job on July 23, 1992, at
J. C. Rossi and to three other jobs in August 1992, the last
of which lasted for 2 months. He next received a 2-day job
on April 19, 1993, and was finally referred to an 8-month
job on April 21, 1993. In comparison to other operators,
Atkinson’s work experience does not show that it deviated
from the normal experience of many other union members.
Anthony Rubeo, who joined the Union in 1952, was both
a crane operator and an operator. His card shows that his in
book date was February 14, 1992, after being laid off from
Pecham. He thereafter was referred back to Pecham on April
30 and May 12, 1992. During the period of the election cam-
paign, Rubeo was referred to Thalle on July 22, 1992, where
he worked for 2 days. After the election, he received his next
and last referral on October 13, 1992, to a job which lasted
for 2 weeks. Rubeo retired on November 1, 1992 (about 3-
1/2 months before his unemployment benefits would have
run out), and he claims that he did so because he assumed,
‘‘based on 40 years experience, that I couldn’t buck the in-
cumbent officers.’’ That is, Rubeo testified that he decided
to retire and go into another business because he supposed
that he would be discriminated against.
Ronald Jackson’s last in book date was September 11,
1991. Thereafter, his next job referrals were respectively on
April 28 and May 13, 1992. (This was before Jackson an-
nounced his candidacy for union office but at or about the
time that Frank Collins decided to challenge Signorelli for
the Union’s leadership.) After being laid off on June 2, 1992,
Jackson was thereafter referred to a series of 6 jobs from
September 15 through December 17, 1992, and to another se-
ries of 11 jobs from April 23 through October 11, 1993. His
workcard shows that after the election in August 1992, Jack-
son received a continuous stream of job referrals with no hia-
tus except for the winter months of 1993. Jackson passed
away on November 6, 1993, after a period of illness that
seems to have affected his job performance and led to his
being laid off on several occasions in 1993.
Angelo Orsetti, in addition to being an operator, is also a
farmer. His workcard indicates that his in book date was De-
cember 20, 1991. He was referred to a company called
Petrillo on June 8, 1992 (after the election campaign started),
and worked at that job for about 15 weeks until laid off on
September 21, 1992. The Petrillo job is the last one listed
on his workcard. Orsetti testified that he bought a second
farm in March 1993 and that when he was offered a job re-
ferral in July 1993 (10 months after his last layoff and 13
months after his ‘‘in book date’’), he turned it down because
he was already committed to his farm operations. Although
the Union claimed that Orsetti neglected to notify the hall
when he was last laid off, Orsetti testified that he did notify
the union hall in September 1992. In support of his testi-
mony the General Counsel put into evidence a telephone
record showing that Orsetti made a phone call to the Union
on September 21, 1992.
As noted above, Steve Smith, who ran on the Collins’
slate, was originally alleged as a discriminatee.15 His work-
card shows that his in book date was January 15, 1992, and
that he did not get another referral until August 24, 1992.
(Right around the date of the election.) Thereafter, he re-
ceived job referrals on September 21 and November 16,
1992, and February 22, 1993. From his card, it would appear
that he has worked continuously at the last job and had not
been laid off as of April 1994.
The factual issue here is whether the group of people run-
ning or supporting the Collins’ slate were treated differently
in terms of job referrals than other union members and
whether any disparity was, to a signigicant probability, the
consequence of illegal motivation. In trying to determine if
there was an nonrandom difference between the alleged
discriminatees and the other members, I tried to compare
them to other operators whose workcards indicated similar
skills and who were laid off and received job referrals during
1991, 1992, and/or 1993.16 In certain circumstances, I elimi-
nated from consideration workcards that did not have ade-
quate information such as where relevant dates of employ-
ment or termination were unknown.
From the workcards that are in evidence as General Coun-
sel’s Exhibits 2 and 3, I copied and reviewed a total of 115
workcards, which in my opinion represented a group of em-
ployees who had similar skills to the alleged discriminatees
and who worked during the relevant period of time. Of this
group there were 72 people who, from their in book dates,
had a hiatus of less than 4 months before being referred to
923OPERATING ENGINEERS LOCAL 137 (VARIOUS EMPLOYERS)
17 These were Bondatti, Cardinale, Giordano, Giradi, Hansen,
Nichols, Pelose, Tierney, Venice, Vitolo, and Will.
18 These were Brown, Burns Jr., Ciliberto, Forshaw Jr., Fraioli,
Kossow, Lamanne, Ottaviano, Petti, Pisano, and Sullivan.
19 These were Arndt, Di Pilato, Jackson, Leanord Jr., LoCurto,
Lombardo Jr., MacDowall, Oliva Jr., Palmietto, and Vona.
20 These were Atkinson, Ciampi, Fagnani, Giordano, Nueman, and
Stagno.
21 This was Griffen.
22 This was Danin.
23 This was Pope.
24 These were Cuervo, Casa, and Casarella Jr. with 4-month
breaks; Chutka with a 5-month break; Mastrobuno with a 6-month
break; and Edge, Burns, and McPhilomy each with a 7-month break.
another job. There were, in this category, 43 instances where
a man after being laid off and placed in book was referred
back to the same company and, in many of these instances,
this occurred after a short hiatus. There also were 35 in-
stances where employees were referred, with less than a 4-
month hiatus, to companies other than the one from which
the employee was last laid off and placed in book.
The workcards showed that there were 42 individuals who
had occasions when they had a hiatus of 4 or more months
before obtaining work after being placed in book after a lay-
off. In this category, there were 12 individuals who, during
the period from 1991 through 1993, had a hiatus of 4 +
months,17 11 who had a hiatus of 5 plus months,18 10 who
had a hiatus of 6 plus months,19 6 who had a hiatus of 7
plus months,20 1 who had a hiatus of 8 + months,21 1 who
had a hiatus of 9 plus months,22 and 1 who had a hiatus of
11 plus months.23
In addition, the workcards showed that there were eight
people, who although being referred in less than 4 months
after being placed in book, had breaks in employment any-
where from 4 to 7 months.24 No one, however, had a 13-
month break as in the case of Duchnowski and only one
other person had a break as long as Orsetti’s.
G. Angelo Matero
Angelo Matero is the brother of Charles Matero and he ran
for a seat on the Union’s executive board on the Collins’
slate. According to his workcard, he is essentially a crane op-
erator and, unlike Villa, Rubeo, and other crane operators, he
does not operate other machinery. His workcard indicates
that his last in book date was August 9, 1991. His card also
indicates that he was referred to 10 short-term jobs from
September 1991 to March 11, 1992, after which he worked
at the apprentice school from March 30 to April 17, 1992.
From April 17 to August 20, 1992 (a 4-month hiatus),
Matero received no referrals. His card shows that, thereafter,
he received three 1-day jobs at Primrose on August 20, Sep-
tember 22, and October 2, 1992. The testimony of Matero
and Rubeo was that in October 1992, they together pur-
chased a business which they jointly run. According to An-
gelo, Matero put in his retirement papers in mid-October
1992 and his retirement was effective on December 1, 1992.
III. ANALYSIS
In cases involving hiring halls, the Board has held that a
Wright Line analysis is appropriate where there is an alleged
discrimination in hiring or referral procedures. Pacific Mari-
time Assn., 308 NLRB 39, 46 (1992); Teamsters Local 287
(Consolidated Freightways), 300 NLRB 539, 548 (1990);
Polis Wallcovering Co., 262 NLRB 1336, 1340 (1982). Nev-
ertheless, those cases along with Wright Line, 251 NLRB
1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), deal with the allocation of burdens of
proof when the issue is whether the motivation of an estab-
lished adverse action was illegal or not. Thus, under Wright
Line, once the General Counsel has established a prima facie
showing of unlawful motivation, the burden is shifted to the
respondent to establish that it would have laid off, dis-
charged, or otherwise taken the adverse action against em-
ployees for good cause despite their union or protected ac-
tivities. To my mind, the Wright Line test, while dealing with
the burden of proof insofar as the issue of motivation, does
not remove from the General Counsel the initial burden of
establishing that an adverse action has in fact occurred. Ac-
cordingly, in this case the General Counsel must first show
that the Union has, in fact, acted to the alleged discrim-
inatees in terms of job referrals. As noted above, the fact that
the General Counsel establishes suspicion is not the same as
meeting her burden of proof on this issue. Laborers Local
423 (G.F.C.), 313 NLRB 807, 812 (1994).
There is no doubt but that Nicholas Signorelli when he
took over in August 1991 he ‘‘discriminated against’’ Frank
and William Collins. He fired both of them from their em-
ployment by the Union and induced William Collins to re-
sign as a union officer.
Notwithstanding the above, that particular discrimination
against Frank and William Collins was not unlawful for two
reasons. First, it was outside the 10(b) statute of limitations
period. And second, as the Collins brothers were employees
of the Union, who occupied the positions of dispatcher and
business agent, both of which were intimately involved with
job referrals, it is my opinion that the Union’s highest officer
(Signorelli) was entitled to have people loyal to him in those
positions and not people who owed their jobs and loyalty to
the previous administration. Longshoremen ILA Local 1294
(International Terminal), 298 NLRB 479 (1990). That does
not mean, of course, that Signorelli would be free to retaliate
against the Collins brothers by refusing to refer them, even
in the absence of an exclusive hiring hall, to construction in-
dustry jobs that are called into the union hall by outside em-
ployers. Carpenters Local 626 (Strawbridge & Clothier), 310
NLRB 500 (1993), and Teamsters Local 923 (Yellow Cab),
172 NLRB 2137, 2138 (1968).
I do not think that the evidence is sufficient to establish
that Frank, William, or John Collins were treated any dif-
ferently than other union members with comparable skills.
Although they worked less than most of the other oilers, the
evidence established to my satisfaction that each of the Col-
lins was offered jobs which he turned down for a variety of
reasons, including in the case of William Collins, his need
to borrow money from an annuity account that required him
to be unemployed for about a year.
I also do not think that the evidence is sufficient to sup-
port any contention that the Union refused to refer or offered
diminished referrals to Christopher Villa, Angelo Matero,
George Atkinson, Anthony Rubeo, or Ronald Jackson. In
Villa’s case there is ample evidence showing that the Union
offered him jobs that he turned down. And in the case of the
others, the evidence does not, in my opinion, establish that
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
they were treated any differently from many other union
members.
I do think, however, that the situations involving Casmir
Duchnowski (who ran for vice president) and Angelo Orsetti
(who ran for executive board) are different. In both cases, the
delays in referring them to jobs after their in book dates was
unique and outside the range of any other person having
comparable skills. As such, it is my opinion that the General
Counsel has established that these two individuals were treat-
ed adversely by the Union in terms of job referrals.
Having concluded that Duchnowski and Orsetti were treat-
ed in an adverse manner, the evidence showing animus by
Signorelli and others associated with his administration (such
as Funicello) to people who were their political rivals is
enough to make out a prima facie showing that the delays
in making job referrals to these two individuals was moti-
vated by their intraunion political activity. Under Wright
Line, supra, the burden therefore shifted to the Respondent
to show that it was not motivated by unlawful discriminatory
reasons. As it is my opinion that the Respondent has not ade-
quately shown that these job referral delays were motivated
by some other nondiscriminatory reason, I shall conclude that
the Union violated Section 8(b)(1)(A) of the Act in this re-
spect.
The complaint as amended also alleges that in September
1992, the Respondent’s agents told member/employees that
they would have been referred to jobs had they not supported
a particular slate for union office. This can only refer to the
conversation between Nicholas Signorelli, Angelo Matero,
and Anthony Rubeo when they offered their congratulations
to Signorelli in September 1992, after he had won the elec-
tion. In this respect, their testimony (which was not con-
troverted) was that Signorelli said that if they hadn’t gone
with ‘‘those guys,’’ Rubeo would have been at a job as a
master mechanic, that Frank Collins would probably be back
at his old job in the Union’s office, and that William Collins
would probably be on a welding machine at a garage job. In
this regard, I conclude that the statement insofar as it could
reasonably be construed as an assertion by Signorelli that he
had gotten even with William Collins by not referring him
to a welding machine job constituted an implied threat of
further retaliation and therefore was violative of Section
8(b)(1)(A) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist and take certain affirmative action designed to effec-
tuate the policies of the Act.
With respect to my conclusion that the Respondent unlaw-
fully delayed making referrals to Casmir Duchnowski and
Angelo Orsetti, I recommend that the Union make them
whole for any loss of earnings and other benefits they may
have suffered as a result of the discrimination against them
from the time of the discrimination until such time as they
were properly referred for employment or until they retired
from the industry, less interim earnings.
In order to determine the dates that each was discriminated
against, it is recommended that the Region ascertain this by
comparing the workcards or other referral records to deter-
mine the median time that employees having substantially
similar skills as Duchnowski and Orsetti were referred to em-
ployment after being laid off and placed in book. For exam-
ple, if is shown that employees with similar skills had a me-
dian time of a 90-day hiatus between the time that they were
put in book to the time of their next job referral, then it
would be concluded that Duchnowski and Orsetti would like-
wise have obtained employment after a 90-day hiatus. In
Orsetti’s case, however, the time would be measured not
from the time that he was put in book (December 20, 1991)
but rather from his last layoff on September 21, 1992. As to
Duchnowski, the time of the discrimination against him
should be measured from his last in book date of January 14,
1992, and the result should be the calculated median time
added to that date or July 20, 1992, whichever comes first.
(Because the complaint, taking into account the 10(b) statute
of limitations, sets July 20, 1992, as the date of the alleged
discriminations.)
All backpay under the terms of the recommended Order
shall be computed in the manner described in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). It further is recommended
that the Union maintain and operate its referral system in a
nondiscriminatory manner and keep and retain adequate
records of its referral operations for a limited period to dis-
close fully the bases on which referrals are made.
CONCLUSIONS OF LAW
1. By discriminatorily refusing to refer Casmir Duch-
nowski and Angelo Orsetti to employment in a timely man-
ner because they ran for union office or supported certain
candidates for union office, the Respondent has violated Sec-
tion 8(b)(1)(A) of the Act.
2. By impliedly threatening to withhold job referrals to
employee and union members because they supported certain
candidates for union office, the Respondent has violated Sec-
tion 8(b)(1)(A) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Except as found above, the Respondent has not violated
the Act in any other manner as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
ORDER
The Respondent, Local 137, International Union of Oper-
ating Engineers, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Discriminatorily refusing to refer to employment
Casmir Duchnowski, Angelo Orsetti, or any other employees
in a timely manner because they run for union office or sup-
port certain candidates for union office.
(b) Impliedly threatening to withhold job referrals to em-
ployee and union members because they support certain can-
didates for union office.
925OPERATING ENGINEERS LOCAL 137 (VARIOUS EMPLOYERS)
26 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
National 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.’’
(c) 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. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Casmir Duchnowski and Angelo Orsetti
for any loss of earnings they may have suffered as a result
of the discrimination against them in the manner set forth in
the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all hiring hall
records, workcards, dispatch lists, and other documents nec-
essary to analyze the amount of backpay due under the terms
of this Order.
(c) Keep and retain for 2 years from the date of the at-
tached notice adequate records of its referral operation that
will disclose fully the basis on which referrals are made and
made those records available to the Regional Director for Re-
gion 2 on request.
(d) Post at its union office and hiring hall copies of the
attached notice marked ‘‘Appendix.’’26 Copies of the notice,
on forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees and
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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.