Wenner Ford Tractor Rentals

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 964 (N.L.R.B. 1994)

964
315 NLRB No. 144
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent Union has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully reviewed the record
and find no basis for reversing the judge’s findings.
2 The Respondent Employer did not file any exceptions to the
judge’s decision.
3 We note that the Respondent Union’s and the General Counsel’s
briefs spell this witness’ name ‘‘Danese,’’ but that it is spelled
‘‘Denise’’ in the transcript and in the judge’s decision. None of the
parties mentioned this harmless discrepancy and, for consistency, we
have used the spelling found in the transcript and the judge’s deci-
sion.
4 This special position was subsequently eliminated entirely, and in
early January 1993 D’Annunzio was appointed to a steward position
in the unit, replacing an employee who had been laid off by the Re-
spondent Employer for performance-related reasons.
Wenner Ford Tractor Rentals, Inc. and Lawrence
Estenich
International Union of Operating Engineers, Local
542 and Lawrence Estenich. Cases 4–CA–21343
and 4–CB–6807
December 16, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On March 29, 1994, Administrative Law Judge Mar-
tin J. Linsky issued the attached decision. The Re-
spondent Union filed exceptions and a supporting brief
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.
We agree with the judge that the Respondent Em-
ployer violated Section 8(a)(1) and (3) of the Act and
that the Respondent Union violated Section 8(b)(1)(A)
and (2) of the Act when the Respondent Union caused
the Respondent Employer to remove Lawrence
Estenich from his position as master mechanic because
of Estenich’s opposition to union officials in an inter-
nal union election. We also agree with the judge that
the Respondent Employer violated Section 8(a)(1) and
(3) of the Act by laying off Estenich in January 1993
because of Estenich’s opposition to union officials.2
We reverse, however, the judge’s finding that the Re-
spondent Union caused the Respondent Employer to
lay off Estenich.
I. REPLACEMENT OF MASTER MECHANIC
Estenich was classified as a master mechanic some-
time after the Respondent Employer was awarded the
PECO contract. Estenich was appointed to the master
mechanic position at the request of Union Business
Agent Hearn because of Estenich’s support for Hearn
in the Union. As a master mechanic, Estenich received
a wage rate above the base rate for backhoe operators.
Even though he was designated as the master me-
chanic, Estenich continued to perform only the duties
of a backhoe operator.
Following the internal union election in August
1992, Business Agent Hearn of the United slate was
replaced by Tom Denise3 of the victorious Recovery
slate. The judge found that the head of the Recovery
slate knew that Estenich was an active supporter of the
United slate. Shortly after the election, Denise met
with the Respondent Employer’s operational manager,
Murphy, and announced his choice for union shop
steward. Denise then asked Murphy whether the Em-
ployer was having any trouble with Estenich as master
mechanic. Murphy replied that there were some prob-
lems, and Denise suggested that, if the Employer was
dissatisfied with Estenich, D’Annunzio, a supporter of
the new union slate, should be designated as master
mechanic. D’Annunzio was named as the new master
mechanic on October 13, 1992.4
The Respondent Union excepts to the judge’s find-
ing that both the Respondents violated the Act when
Estenich lost his position as a master mechanic. The
Respondent Union argues that: (a) the Respondent Em-
ployer had legitimate business reasons for removing
Estenich from his position as master mechanic; (b) the
evidence shows that the Respondent Union only in-
quired whether the Employer was happy with Estenich
as master mechanic and merely suggested a replace-
ment in case the Employer was not happy; and (c)
there is no evidence to show that the Respondent
Union caused the Respondent Employer to remove
Estenich. We find no merit in the Respondent Union’s
exception.
The General Counsel established a prima facie case
that Estenich was removed from the master mechanic
position because of his protected intraunion politics.
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981). The judge found that both
the Respondents were aware of Estenich’s support for
the United slate. Further, the judge found that the Re-
spondent Employer told Estenich that he had been re-
moved because of the Respondent Union. Finally, the
General Counsel’s prima facie case is supported by the
testimony of the Respondent Union’s own witness,
Denise, who explained that he asked whether the Em-
ployer had a problem with Estenich because ‘‘if I have
an opportunity to have a person in line that I would
be dealing with that I felt comfortable with, well, I’d
965WENNER FORD TRACTOR RENTALS, INC.
5 Chairman Gould would adopt the judge’s analysis of the layoff
issue and his finding that the Union unlawfully caused the Employer
to lay off Estenich.
6 As the judge noted, the testimony of the Employer’s agent, Mur-
phy, regarding the Respondent Union’s pressure to lay off Estenich
is not admissible against the Respondent Union. The testimony is ad-
missible, however, against the Respondent Employer; and, as noted
above, the Respondent Employer has filed no exceptions to the
judge’s finding that its layoff of Estenich was unlawfully motivated
by the Employer’s response to ‘‘internal union politics.’’
be in better shape.’’ Denise went on to testify that
after the Employer allegedly stated that it had a prob-
lem with Estenich, Denise said that they could discuss
replacing the master mechanic and that he felt com-
fortable with Joe D’Annunzio. When Denise was asked
what he meant by being ‘‘more comfortable with,’’
Denise responded that he meant ‘‘knowing what kind
of a Union guy he was.’’
In addition to contributing to the General Counsel’s
prima facie case, we find that Denise’s description of
his motivation for suggesting Estenich’s replacement
also establishes, when viewed in context with all of the
facts, that the Respondent Union caused the Respond-
ent Employer to replace Estenich as the master me-
chanic. It is clear that until the Respondent Union in-
quired about Estenich and suggested a replacement, the
Respondent Employer did not intend to remove
Estenich from the master mechanic position. It is
equally clear that Denise did not feel ‘‘comfortable’’
with Estenich because of Estenich’s support for the
United slate. A review of all the testimony relating to
this issue supports Murphy’s interpretation that the
Union clearly indicated that it wanted to remove
Estenich as master mechanic and replace him with
D’Annunzio. Thus, we agree with the judge that the
Respondent Union precipitated Estenich’s removal
from the master mechanic position by prompting the
Employer to find reasons for the removal.
The foregoing evidence establishes a prima facie
case of discrimination. The Respondents may rebut
that case by showing that Estenich would have been
removed from the master mechanic position even in
the absence of his intraunion politics. Contrary to the
Respondent Union’s assertion, the Respondent Em-
ployer did not adequately explain any legitimate busi-
ness justification it had for removing Estenich. The
Respondent Union admits that no one questioned
Estenich’s abilities as a backhoe operator, but contends
that the Employer had a problem with Estenich be-
cause, at sometime in the past, he had been rude to of-
fice staff. As the judge found, however, the Respond-
ent Employer could not provide details of the alleged
instances of rudeness or even describe when it oc-
curred. Further, if the Respondent Union had not in-
quired, the Respondent Employer would not have
thought that Estenich’s alleged rude behavior was suf-
ficient cause to remove him from the master mechanic
position. In these circumstances, we find that the Re-
spondents failed to demonstrate that Estenich would
have been replaced in the absence of his support of the
United slate.
II. THE LAYOFF
While we agree with the judge that there is suffi-
cient evidence to show that the Respondent Union un-
lawfully caused the Respondent Employer to remove
Estenich from the position of master mechanic in
1992, we do not agree that there is sufficient evidence
to show that the Respondent Union caused the Re-
spondent Employer to lay off Estenich from a regular
mechanic’s position in January 1993.5
Although there was no direct evidence that the
Union requested the Employer to lay off Estenich, the
judge relied on the following circumstantial evidence
to find that the Respondent Union caused Estenich’s
layoff: (1) the fact that Respondent Union caused
Estenich’s removal from the master mechanic position;
and (2) the strong evidence showing that the Respond-
ent Employer laid off Estenich because of his
intraunion politics; i.e., the Respondent Employer did
not offer any legitimate business reason for the layoff
and an agent of the Respondent Employer, Murphy,
testified that he told PECO that Estenich was being
laid off because of pressure from the Respondent
Union. In addition, the General Counsel submits that
the coincidental timing of Estenich’s layoff, the Re-
spondents’ agreement to completely eliminate the mas-
ter mechanic position, and D’Annunzio’s appointment
as shop steward suggests that Estenich’s layoff was
merely one of several decisions made by the Respond-
ent Union and executed by the Respondent Employer.
Although circumstantial evidence can be sufficient
to establish a violation of the Act, the Board has stated
that ‘‘[t]o establish an ‘attempt to cause’ violation,
there must be some evidence of union conduct; it is
not sufficient that an employer’s conduct might please
the union.’’ Toledo World Terminals, 289 NLRB 670,
673 (1988). Unlike the circumstances surrounding the
removal of Estenich as master mechanic, there is abso-
lutely no direct evidence that the Union requested or
even suggested that Estenich be laid off. The General
Counsel’s evidence on this issue is limited to infer-
ences drawn from the Union’s action in causing
Estenich’s removal from the master mechanic position
and from the timing of his layoff. We find that this
evidence is insufficient to establish that the General
Counsel has met its burden of proving, by a prepon-
derance of the evidence, that the Respondent Union
caused the Respondent Employer to lay off Estenich.6
Thus, in the absence of any evidence relating to the
Respondent Union’s conduct with respect to this issue,
we reverse the judge’s finding that the Respondent
Union violated Section 8(b)(1)(A) and (2) of the Act
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by causing the Respondent Employer to lay off
Estenich.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent Em-
ployer, Wenner Ford Tractor Rentals, Inc.,
Concordville, Pennsylvania, its officers, agents, succes-
sors, and assigns, and the Respondent Union, Inter-
national Union of Operating Engineers, Local 542, its
officers, agents, and representatives, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph A,2(a).
‘‘(a) Jointly and severally with the Respondent
Union make Lawrence Estenich whole for any loss of
pay and other benefits suffered by him because of his
unlawful removal as master mechanic in October 1992.
Make Lawrence Estenich whole for any loss of pay
and other benefits suffered by him because of his un-
lawful layoff in January 1993. Backpay to be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).’’
2. Substitute the following for paragraph B,1(a).
‘‘(a) Causing employers to remove members as mas-
ter mechanics because the member opposed union offi-
cials in an internal union election.’’
3. Substitute the following for paragraph B,2(a).
‘‘(a) Jointly and severally with the Respondent Em-
ployer make Lawrence Estenich whole for any loss of
pay and other benefits suffered by him because of his
unlawful removal as master mechanic in October 1992.
Backpay to be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).’’
4. Substitute the attached notices for those of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations not found.
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 remove as master mechanic or lay off
employees because of their opposition to union offi-
cials in internal union elections.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL expunge from our files any references to
the removal as master mechanic and layoff of Law-
rence Estenich and notify him in writing that this has
been done and that evidence of that unlawful action
will not be used as a basis for personnel action against
him.
WE WILL, jointly and severally with the Respondent
Union where appropriate, make Lawrence Estenich
whole for any loss of pay or benefits he suffered be-
cause of the discrimination against him, plus interest.
WENNER FORD TRACTOR RENTALS, INC.
APPENDIX
NOTICE TO MEMBERS
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 cause employers to remove members
as master mechanics because of their opposition to
union officials in an internal union election.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our members in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL jointly and severally with the Respondent
Employer make Lawrence Estenich whole for any loss
of pay or benefits he suffered because of his removal
from the master mechanic position, plus interest.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 542
Peter C. Verrochi, Esq., for the General Counsel.
John S. Wenner, Esq., of Concordville, Pennsylvania, for the
Respondent Employer.
Samuel L. Spear, Esq., of Philadelphia, Pennsylvania, for the
Respondent Union.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On January
7 and 12, 1993, a charge and an amended charge were filed
by Lawrence Estenich against Wenner Ford Tractor Rentals,
Inc. (Respondent Employer or the Employer).
On January 7 and 12, 1993, a charge and an amended
charge were also filed by Lawrence Estenich against Local
542, International Union of Operating Engineers (Respondent
Union or the Union).
967WENNER FORD TRACTOR RENTALS, INC.
On March 31, 1993, the National Labor Relations Board,
by the Regional Director for Region 4, issued a complaint
alleging that Respondent Employer and Respondent Union
violated Section 8(a)(1) and (3) and Section 8(b)(1)(A) and
(2), respectively, of the National Labor Relations Act (the
Act), when the Respondent Union caused the Respondent
Employer to remove Lawrence Estenich from his position as
a master mechanic in October 1992 and to lay off Lawrence
Estenich in January 1993 because Lawrence Estenich op-
posed Respondent Union officials in an internal union elec-
tion.
Respondent Employer and Respondent Union filed an-
swers in which they deny that they violated the Act in any
way.
A hearing was held before me in Philadelphia, Pennsyl-
vania, on December 13 and 14, 1993.
On the entire record in this case, to include posthearing
briefs submitted by the General Counsel and the Respondent
Union, and on my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Employer, a Pennsyl-
vania corporation, with its principal place of business located
at Concordville, Pennsylvania, has been engaged in the leas-
ing of backhoes and backhoe operators.
During the past year, Respondent Employer, in conducting
its business operations described above provided services
valued in excess of $50,000 to Philadelphia Electric Com-
pany (PECO), an enterprise within the Commonwealth of
Pennsylvania.
At all material times, PECO has been a public utility en-
gaged in the generation, transmission, distribution, and sale
of electricity and the transmission and distribution of gas
with its principal place of business located in Philadelphia,
Pennsylvania.
During the past year, PECO, in conducting its business op-
erations described above derived gross revenues in excess of
$250,000, and purchased and received goods valued in ex-
cess of $50,000 directly from points located outside the
Commonwealth of Pennsylvania.
At all material times, Respondent Employer and Respond-
ent Union admit, and I find, that the Respondent Employer
has been engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Employer and Respondent Union admit, and I
find, that Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Lawrence Estenich operates a backhoe. He has been a
member of the Union since 1974. Prior to 1988 Estenich was
employed by a company which contracted with Philadelphia
Electric Company (PECO) to provide backhoe operators to
PECO. Estenich was paid by his employer but worked under
the supervision and direction of PECO supervisors. He had
very little contact with his employer.
In 1988 Respondent Employer took over the PECO con-
tract. It hired a number of the operators who had worked for
the company who did the work for PECO before Respondent
Employer got the contract. One of the operators was Law-
rence Estenich.
Estenich became an employee of Respondent Employer
but worked every day under the direction and supervision of
PECO’s supervisor. His contact with the Respondent Em-
ployer was very limited.
At the time Respondent Employer took over the PECO
contract then Union Business Agent John J. Hearn met with
supervisors of Respondent Employer and asked them to des-
ignate Lawrence Estenich as a master mechanic. A master
mechanic at the time made a $1.50 an hour more than an op-
erator. In Estenich’s case he continued to perform operator’s
duties on a backhoe but received the extra compensation. In
time the extra $1.50-an-hour compensation was split with the
designated shop steward receiving an extra $.50 per hour and
the master mechanic receiving an extra $1 per hour. Hearn
told Respondent Employer to designate Estenich as the mas-
ter mechanic because of Estenich’s support of Hearn in the
Union.
In the fall of 1992 a contested union election was held.
The election was between the United slate of officers headed
by incumbent Union Business Manager John Arnone and the
Recovery slate headed by Robert Heenan. Lawrence Estenich
was an active supporter of the incumbent United slate headed
by John Arnone. Robert Hennan knew that Estenich was a
supporter of the United slate. Indeed on the election day in
August 1992 Heenan saw Estenich at the union hall wearing
a United slate shirt. The Recovery slate won a close election
and was sworn into office in early September 1992. Arnone
was out as business manager, the highest office in the Union,
and his assistant John Hearn was out as business agent.
Heenan was the new business manager and Tom Denise be-
came one of the Union’s business agents.
A short time later new Business Agent Tom Denise met
with supervisors of Respondent Employer. Denise told them
that he wanted Dave Morris as the new steward. All parties
to the litigation agree that the Union could designate who it
wanted as steward. Denise asked, however, about master me-
chanic Estenich. Specifically was the Employer having any
trouble with him. John Wenner may or may not have said
something about Estenich, along the lines of Estenich being
rude to a woman in the Employer’s office or that some fore-
men at PECO didn’t think the world of Estenich, i.e., he was
not as enthusiastic as they may have liked in doing whatever
they asked. The Union ‘‘recommended’’ that Joseph
D’Annunzio be designated the master mechanic reducing
Lawrence Estenich to operator. Estenich would no longer re-
ceive any extra compensation. I put the word ‘‘rec-
ommended’’ in quotes because it is clear to me, having ob-
served the witnesses and heard the evidence, that this so-
called ‘‘recommendation’’ was in the nature of an order. Cu-
riously Wenner, at the hearing before me, could not remem-
ber how or when Estenich had been rude to one of the
women in his office nor could he articulate specifically how
any of PECO’s foremen had found Estenich wanting or when
he had even heard that they found Estenich wanting.
The Union wanted Estenich removed as master mechanic
and D’Annunzio to replace him. Why? Since PECO Super-
visor Harry White testified that he had no problems whatso-
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever with Estenich’s performance of duty and White was the
man to be satisfied the removal of Estenich as master me-
chanic had to have something to do with Estenich’s relation-
ship to the Union. Needless to say Joseph D’Annunzio was
a supporter of the victorious Recovery slate and Lawrence
Estenich was a supporter of the losing United slate. No ra-
tional person could conclude that Estenich was removed as
master mechanic for any reason other than the fact that he
supported the losing slate in the recent union election. Indeed
when told by Supervisor Bill Murphy that he was no longer
a master mechanic Estenich asked why and Murphy told him
it was because of the Union. Respondent Employer removed
Lawrence Estenich as master mechanic because the Union
wanted them to and the Union wanted them to because of
Estenich’s opposition to officials in the recent internal union
election. The master mechanic position was not a union-ap-
pointed position. It is a violation of Section 8(b)(1)(A) and
(2) of the Act for Respondent Union to cause an employer
to discriminate against a union member because of that union
member’s opposition to union officials in an internal union
election. And, it is violation of Section 8(a)(1) and (3) of the
Act for the employer to carry out the wishes of the Union.
See Roofing Metal & Heating Associates, 304 NLRB 155,
163 (1991); Operating Engineers Local 478 (Stone & Web-
ster), 274 NLRB 567, 571 (1985).
During the fall of 1992, the Respondent Union and Re-
spondent Employer negotiated regarding the need for having
any operator designated as a master mechanic and in early
January 1993 agreed that Respondent Employer did not have
to designate and pay any operator as a master mechanic. Jo-
seph D’Annunzio was removed as master mechanic and des-
ignated as shop steward. This removal of the master me-
chanic designation is not alleged as nor is it an unfair labor
practice. However, if any union member was so designated
as a master mechanic as Estenich was it was unlawful to re-
move him for an illegal reason (his opposition to the winning
slate in an internal union election) and substitute in his place
a union member (in this case Joseph D’Annunzio) who had
supported the winning slate of officers in the internal union
election.
On January 4, 1993, Lawrence Estenich was laid off.
Why? For openers it is clear that PECO was satisfied with
the work performance of Estenich. Harry White, the PECO
supervisor of Estenich, testified before me that he had no
complaints at all about Estenich. Although John Wenner
mentioned some difficulties with Estenich he insisted before
me that they were not serious and conceded that Estenich
was a good operator. The so-called difficulties Wenner re-
ferred to were that Estenich had been rude to a woman in
Wenner’s office but Wenner did not know when he was rude
or how he was rude. Wenner also testified that some PECO
foremen, who worked under Harry White at some time in the
past (he couldn’t remember when) questioned how hard
Estenich worked. Wenner couldn’t remember what specific
complaints they had and, in any event, their boss Harry
White had no problems at all with Estenich. Estenich was
laid off on January 4, 1993. He was replaced by Ted Spicer,
another union operator. Harry White preferred Estenich to
Spicer and spoke with Respondent Employer complaining
about Spicer. Respondent Employer removed Spicer from the
job under White’s supervision and recalled Estenich.
Estenich was returned to work in February 1993 after he had
filed a charge with Region 4, and, according to John
Wenner, he was recalled because Respondent Employer
wanted to minimize its financial exposure if they lost the in-
stant unfair labor practice case.
Again, why was Estenich laid off in January 1993? Back
in late September or early October 1992 Bill Murphy, a su-
pervisor for Respondent Employer, called Harry White at
PECO and told him that Respondent Employer was going to
have to replace both Estenich and another operator, Bob
DiFranceso, who was the shop steward. White asked why
and Murphy told him it was because of the recent union
election and the fact that both men supported the losing side.
White told Murphy that PECO had no problem with either
man and asked Murphy not to let them go until he (White)
returned from vacation. White wanted to tell the men when
they were let go that PECO had nothing to do with the loss
of their jobs. Sometime later in November 1992 Murphy told
White that everything was on hold and then in January 1993
Murphy met with White and told him that Respondent Em-
ployer was laying off Estenich. DiFrancesco was never laid
off.
On October 19, 1992, Bill Murphy called John Hearn.
Hearn had been removed as business agent in September
1992. He had been part of the John Arnore United slate
which lost the internal union election. Murphy told Hearn
that he had a problem and went on to tell Hearn that Tom
Denise, the new union business agent, and Robert Heenan,
the new union business manager, wanted Lawrence Estenich
and Bob DiFrancesco removed from their jobs because they
supported the United slate in the recent union election. Mur-
phy went on to tell Hearn that Denise did not at that time
have any supporters of the Recovery slate immediately avail-
able to replace Estenich and DiFrancesco. Hearn gave Mur-
phy the names of some labor attorneys to contact and told
Murphy that, in his opinion, the Union could remove
Estenich and DeFrancesco as master mechanic and shop
steward but could not remove them from their jobs as opera-
tors.
Bill Murphy admits he told Harry White that he laid off
Estenich because of internal union politics. At the hearing
before me Murphy claimed that this was not the real reason.
Business records introduced into evidence at the hearing re-
flect that PECO, for the month that Estenich was laid off,
used more and not less operators and there was no need to
lay anyone off because of reduced demand for backhoe oper-
ators. No one needed to be laid off.
The facts in this case demonstrate that Estenich supported
the losing United slate in an internal union election and is
shortly thereafter first removed as master mechanic and then
laid off even though PECO is satisfied with his work and
there is no reduction in the demand for his services. As re-
gards the Respondent Employer the evidence is overwhelm-
ing, e.g., Operations Manager Bill Murphy tells PECO’s
Harry White and former Union Business Agent John Hearn
about the pressure from the Union to get rid of Estenich. As
regards the Union I note that Murphy’s statements about the
Union to White and Hearn are admissible against the Em-
ployer but not against the Union except in so far as Murphy
acted as an agent for the Union, which he did not. However,
circumstantially the case against the Union is strong, e.g.,
Estenich supports the losing side in an internal union elec-
tion, the Union concedes it thereafter asks the Employer if
969WENNER FORD TRACTOR RENTALS, INC.
1 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.
2 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.’’
it has any ‘‘problems’’ with Estenich under circumstances
where it would be highly inappropriate for the Union in
which Estenich is a member to ask such a question unless
they were looking to get the Employer to get rid of Estenich,
and the Union suggests as Estenich’s replacement a member
who supported the winning side in the recent internal union
election.
REMEDY
The remedy in this case is for both the Respondent Em-
ployer and Respondent Union to be ordered to cease and de-
sist from this or similar misconduct, post appropriate notices,
and jointly and severally make Lawrence Estenich whole for
the loss of any pay or benefits occasioned by his unlawful
removal as master mechanic from the time of his removal in
October 1992 until the Union and the Respondent agreed that
there was no further need for a master mechanic and to make
him whole for any loss of pay or benefits occasioned by his
unlawful lay off.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Employer violated Section 8(a)(1) and (3)
of the Act when it removed Lawrence Estenich as master
mechanic in October 1992 and when it laid off Lawrence
Estenich in January 1993 because of his opposition to union
officials in an internal union election.
4. Respondent Union violated Section 8(b)(1)(A) and (2)
of the Act when it caused Respondent Employer to remove
Lawrence Estenich as master mechanic in October 1992 and
caused Respondent Employer to lay off Lawrence Estenich
in January 1993 because of his opposition to union officials
in an internal union election.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
A. The Respondent Employer, Wenner Ford Tractor Rent-
als, Inc., Concordville, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Removing employees from their position as master me-
chanic or laying off employees because of their opposition
to union officials in an internal union election.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Jointly and severally with the Respondent Union make
Lawrence Estenich whole for any loss of pay and other bene-
fits suffered by him because of his unlawful removal as mas-
ter mechanic in October 1992 and unlawful layoff in January
1993. Backpay to be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). (See generally Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
(b) Expunge from its files any references to the removal
from the master mechanic position and layoff of Lawrence
Estenich and notify him in writing that this has been done
and that evidence of these unlawful actions will not be used
as a basis for future personnel action against him.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its facility in Concordville, Pennsylvania, cop-
ies of the attached notice to employees marked as an ‘‘Ap-
pendix.’’2 Copies of this notice on forms provided by the
Regional Director for Region 4, after being signed by the
Respondent Employer’s authorized representative, shall be
posted by it immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent Employer to en-
sure 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 Em-
ployer has taken to comply.
B. The Respondent Union, International Union of Operat-
ing Engineers, Local 542, its agents, successors, and assigns,
shall
1. Cease and desist from
(a) Causing employers to remove as master mechanics or
layoff members because the member opposed union officials
in an internal union election.
(b) In any like or related manner interfering, restraining,
or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Jointly and severally with Respondent Employer make
Lawrence Estenich whole for any loss of pay and other bene-
fits suffered by him because of his unlawful removal as mas-
ter mechanic in October 1992 and unlawful layoff in January
1993. Backpay to be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). (See generally Isis Plumbing & Heating Co., 138
NLRB 716 (1962).)
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See fn. 2 above. 4 The General Counsel’s motion to correct transcript is granted.
(b) Post at the union hall copies of the attached notice to
members marked as an ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 4,
after being signed by the Respondent Union’s authorized rep-
resentative, shall be posted by the Respondent Union imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
members, are customarily posted. Reasonable steps shall be
taken by the Respondent Union to ensure that the notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Union
has taken to comply.4