Operating Engineers Local 841

National Labor Relations Board - Board Decisions

May 2, 1973

203 N.L.R.B. 429 (N.L.R.B. 1973)

OPERATING ENGINEERS LOCAL 841 429
Local Union No. 841 , International Union of Operat-
ing Engineers, AFL-CIO (M. L. Arnold Steel Com-
pany) and Herrick Wright. Case 25-CB- 1520
May 2, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On December 18, 1972, Administrative Law Judge
George Turitz issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief. The General Counsel
filed a brief in support of the Administrative Law
Judge's Decision and an answering brief to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order .2
ORDER
Union of Operating Engineers, AFL-CIO (Respondent),
and upon M. L. Arnold Steel Erection (Arnold), a propri-
etorship owned by Morris Arnold,' the General Counsel of
the National Labor Relations Board (the Board), through
the Regional Director for Region 25, on August 31, 1972,
issued a complaint and notice of hearing which was duly
served upon Respondent and Arnold. Respondent filed its
answer in which it denied all allegations of unfair labor
practices. A hearing on the complaint was held before me
on October 12 and 13, 1972, at Terre Haute, Indiana, at
which the General Counsel and Respondent were repre-
sented by their respective counsel. Respondent and the
General Counsel have submitted briefs.
Upon the entire record 2 and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Morris Arnold is an individual proprietor doing business
under the trade name and style of M. L. Arnold Steel Erec-
tion and having his principal office and place of business at
Winslow, Indiana. Arnold is engaged as a construction con-
tractor in steel erection and related services at various job-
sites within the States of Indiana and Kentucky. In the
course and conduct of his business operations Arnold annu-
ally performs construction services valued at in excess of
$50,000 in States of the United States other than the State
of Indiana. I find that Arnold is an employer engaged pri-
marily in the construction industry and engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
National Labor Relations Act, as amended (the Act).
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Local 841, International Union of Operat-
ing Engineers , AFL-CIO, Terre Haute , Indiana, its
officers , agents , and representatives , shall take the ac-
tion set forth in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C A. 3). We have carefully examined the record and find
no basis for reversing his findings.
2 Respondent has requested oral argument . This request is hereby denied
as the record , the exceptions , and the briefs adequately present the issues and
the positions of the parties
DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Administrative Law Judge: Upon a
charge filed by Herrick Wright on July 24, 1972, and served
on July 25, 1972, upon Local Union No. 841, International
It. THE LABOR ORGANIZATIONS INVOLVED
Local Union No. 841, International Union of Operating
Engineers , AFL-CIO, and Local Union No. 439, Interna-
tional Association of Bridge , Structural and Ornamental
Iron Workers , AFL-CIO (the Iron Workers), are each a
labor organization within the meaning of Section 2(5) of the
Act.
III THE UNFAIR LABOR PRACTICES
A. Introduction
This proceeding arises out of events which occurred in the
course of the construction of the amphitheater of the civic
center in Terre Haute. The prime contractor was Hickey
Construction Company (Hickey), whose subcontractor,
Elkhart Bridge and Iron Company, further subcontracted to
Arnold the erection of structural steel and the setting of
precast concrete. On May 30, 1972,3 at the start of opera-
On my own motion I have amended the caption to include the
Employer's name and to show Respondent's name correctly.
2 The General Counsel has moved to correct the record in certain respects.
The motion is hereby granted . The corrections have been made and the
motion, marked Exh. 5, has been placed in the exhibit file
3 Unless otherwise stated, all dates mentioned in this Decision were in
1972
203 NLRB No. 72
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions , Arnold installed Wright, the Charging Party, as fore-
man of its erecting, or raising, gang . On July 19, immedi-
ately after a meeting participated in by representatives of
Arnold, Hickey, the Iron Workers, and Respondent, Arnold
removed Wright from the project. The principal issues liti-
gated at the hearing were: (a) Whether Wright was a super-
visor; (b) whether Respondent, by strike or by threat of
strike or of other action, coerced Arnold into removing
Wright; and (c) whether , assuming the affirmative of the
first two issues , Wright's reputation and his conduct on July
18 showed him to be so hot-tempered and prone to violence
as to make it reasonably appear to Respondent that his
presence on the job was a threat to the employees' safety
thus justifying its actions.
B. Wright's Status and Capacity
The erecting or raising gang normally consisted of a crane
operator and an oiler, both members of Respondent, two
groundmen or hookers, and two top men or connectors, all
four members of the Iron Workers, and Wright, who also
was a member of the Iron Workers and was covered by its
contract. This was a minimum complement; at times men
were added to the gang. Hourly rates of pay were as follows:
operator $7.72; oiler $6.88; groundmen and connectors
$8.20; and Wright $8.95, which was 25 cents more than the
foreman's rate called for by the contract ° Wright was the
only member of the gang who was guaranteed 40 hours per
week, irrespective of weather. So far as appears from the
record the only other Arnold employees on the job were the
members of the detail gang, the foreman of which was Mc-
Candless.
At the start of the job Arnold's general superintendent 5
advised Wright on which quadrant of the building erection
was to commence. Wright directed his crew in unloading the
steel and kept track of exactly which pieces arrived. When
he was satisfied that the necessary steel members were on
hand to start erection, he so informed the job superinten-
dent and erection commenced. Thereafter the job superin-
tendent told Wright from time to time which quadrant to
proceed to next, and Wright gave the necessary instructions
to his crew. He directed the crane operator and the oiler
where to place the crane, told the groundmen, on the basis
of the blueprints, which members he wanted and in what
order, and he told the connectors where they were to work.
Usually he acted as signalman for the operator but he could
on occasion have another ironworker perform that function.
Wright was responsible also for enforcing safety regulations
on the job. The job superintendent visited the erection gang
periodically through the day, but he gave Wright few in-
structions other than what quadrant to work on next or,
occasionally, to have something set in a different area from
where Wright was working. His instructions, when given,
took not more than 5 minutes, and on many days there was
no occasion to give Wright any instructions. Apart from
4 The above rates were testified to by Arnold's job superintendent. The
Iron Workers contract in evidence shows $860 and $9.10 as the respective
journeymen and foreman rates effective May 1, 1972.
S The general superintendent was Carl Deen . The job superintendent for
the amphitheater was Tom Deen
these instructions from the job superintendent Wright made
the decisions as to how the steel was to go up in accordance
with the blueprints . Asked on cross-examination whether
the foremen were not merely "minor league bosses," the job
superintendent testified , "I don't know what you mean by
minor league . For a man to put up steel you can 't just take
anybody and put them in as a foreman in a raising gang."
At another point he said , "it takes years of experience." I
credit this testimony . I find that Wright's duties in directing
the raising gang required the exercise of independent judg-
ment.
Ironworkers were hired through the Iron Workers hiring
hall. However , when a foreman recommended that a certain
ironworker be hired , the job superintendent , without inves-
tigation , put the man to work on trial , provided that that
could be worked out with the Iron Workers business agent.
The amphitheatre job superintendent hired Bohlen, a con-
nector or top man , solely on the basis of Wright's recom-
mendation ; and he told Wright he was ready to try another
man recommended by Wright if he could be cleared with
the business agent . Two other men recommended by Wright
- Shake and Beard - were hired , but the record does not
show specifically whether it was on the basis of Wright's
recommendation . The job superintendent expected Wright
to replace a top man who was unqualified . In one instance,
noticing that a connector seemed scared , he asked Wright
what he thought . Wright recommended laying the man off,
and that was done . If the superintendent disagreed with
Wright 's recommendation that a man be laid off, he would
not terminate the man but would assign him to another
gang.
Wright maintained discipline over the raising gang. While
he was not part of the "management grievance team," he
was expected to work out disagreements among the men,
and he had authority to work out with the union steward
complaints as to working conditions such as the use of
unsafe materials or procedures , lack of a full crew as re-
quired by the contract , or improper work assignments. I
find that such complaints were grievances within the mean-
ing of Sections 2(11) and 8 (b)(1)(B) of the Act . Cf. Toledo
Locals Nos . 15-P and 272 of the Lithographers and Photoen-
gravers International Union , AFL-CIO (The Toledo Blade
Company, Inc.), 175 NLRB 1072, 1078; enfd . 437 F.2d 55
(C.A. 6, 1971).
I find that Wright responsibly directed employees, that
his recommendations as the hire and discharge of employ-
ees carried weight and were effective , and that he had au-
thority to adjust employees' grievances. I further find that
Wright was a supervisor.
C. Wright 's Reputation
On the basis of the uncontradicted testimony of numer-
ous fellow employees in both unions and of the business
agents of both unions, I find that Wright had a reputation
among construction workers for having an uncontrollable
temper and a propensity towards violence.
OPERATING ENGINEERS LOCAL 841 431
D. Wright's Encounter with
Merrill Getche
The amphitheatre jobsite was surrounded by a fence
bearing a number of "no trespassing" signs and having a
gate on the south side. Near the gate was a sign bearing the
legend, "Hard Hat Area - Do Not Enter," and persons
were not allowed to enter the site unless wearing a hard hat.
On July 18 in the middle of the morning Merrill Getche, the
son of Wright's crane operator, Joe Getche, walked through
the gate and to the crane, which was located 100 to 125 feet
from the gate. Joe Getche had just set down a piece of steel
and the crane was idling. Merrill, a youth of 20, 6 feet tall
and of husky build, was bareheaded. He had come to chat
with his father and because of the noise of the crane's en-
gine, he climbed up on a small step on the crane, holding
on to the door rail. Wright was on the other side of the
crane, some 30 to 35 feet away, working on the blueprints
he had laid atop a wooden reel turned on its side, which he
used as a desk. He came round to give orders to his ground-
men and saw Merrill, whom he did not know, hanging on
to the side of the crane . Using obscenities, he sharply or-
dered Merrill off, and when Merrill remained there, spoke
more sharply, adding that the operator could get down off
the crane and discuss any business he had with him. Merrill
got down and started walking towards the gate. Wright,
concerned about marking his blueprints accurately,6 re-
turned to his makeshift desk.
Merrill, as he walked towards the gate, felt more and
more "burned up" at the way Wright had spoken to him. He
turned round, approached Wright, who was kneeling at the
wooden reel, and said, "Old man, if you've got anything else
to say to me you had better say it nice or I'm going to knock
your god damn head off." Wright, who weighed 190
pounds, had been something of a semiprofessional wrestler
30 years before. He was now 55 years of age, and as a result
of an accident was crippled to the extent of 40 to 50 percent
disability in both arms and could not work as a journeyman.
He stood up, saying that he would talk any way he liked and
that he was enforcing safety rules. Merrill invited Wright
out into the street and started towards the gate again, with
Wright following about 15 feet behind. Wright testified, and
I credit him, that he went along to make sure that this time
Merrill left. Several times Merrill stopped and turned to
Wright, who then also stopped, and the two exchanged
epithets. At some time during the walk to the gate Wright
opened the knife he habitually used in his work and re-
placed it in his pocket. He did this surreptitiously and Mer-
rill was completely unaware of what he had done. Merrill
taunted Wright, saying, "Old man, you're getting brave
now," and again inviting Wright into the street. Wright
admitted that by now he was "peeved," explaining that
seven men were in his gang and he was trying to do the
6 The job at hand , assembling trusses and then erecting them, was more
difficult to keep track of than the simple erection of ready members
7 Merrill , corroborated by his father and a number of other employees,
testified that he apologized to Wright on this occasion. I found all this
testimony unconvincing and have given it no credit While I have not accept-
ed Wright's testimony that he used no obscene language at the crane , I found
his testimony as to Merrill's so-called "apology" convincing and have cred-
ited it.
Employer's work, but Merrill had disrupted the job..
Merrill stepped outside the gate and turned round.
Wright stopped inside and cursed Merrill some more. Mer-
rill responded, "Old man, you are too old to mess with. I'm
leaving," and started towards his motorcycle. Wright called
him an insulting name and Merrill turned back quickly, his
fists raised,8 saying, "Old man, you take one more step I'm
going to knock your god damn head off." Wright, fearing
that Merrill might come back in and attack him and that he
could not defend himself from further injury because of his
disabled condition, drew his knife and held it behind his
back. He did not brandish the knife or hold it out towards
Merrill, but the latter got a brief glimpse of it 9
Meanwhile, Joe Getche had left the crane and had come
over to where the two men were faced off. He kicked the
knife out of Wright's hand and when the latter reached for
it on the ground, kicked it again, but Wright, after a shoving
match with Getche, finally retrieved it and put it back into
his pocket.
Tom Deen, the job superintendent, came over to put a
stop to what he thought was horseplay and was met by
Merrill, who told Deen who he was and said, "Mr. Deen,
I'm sorry I caused this trouble." Deen told him that if he
had come to the office and got a hard hat, he would have
taken him to the crane to speak to his father and there would
have been no trouble.
Tom Deen asked Wright and Getche, in turn, to tell him
what had happened. Wright said that Merrill, without say-
ing anything to anyone, had got on the crane, that since he
had been instructed that no one be on the crane during
operations, he asked him to leave; that Merrill thereupon
"got smart with him" and invited him out to the gate, and
that he drew the knife because he was crippled and "wasn't
going to let the boy beat on him." 1° Getche's report placed
a different coloration on the incident but Tom Deen, while
agreeing that if he had been in Getche's place he "wouldn't
let any man cut [his] son," told Getche that he could not
have any trouble on the job and that at the time he felt that
if anybody had to leave it would have to be Getche.
Wright told Tom Deen that he wanted to quit. Deen tried
to get him to cool down and return to work. He finally
enlisted the aid of Carl, Deen, the general superintendent,
who had hired Wright. Wright asked Carl Deen to be sent
to another job. Carl Deen said, "Well, we need you here,"
and Wright consented to go back to work. Asked by Tom
Deen if he wanted to get rid of Getche, Wright said, "abso-
lutely not." He went back to his crew and the job proceeded
normally the rest of the day except that Wright delegated
to one of his connectors the task of signaling Getche. He
told the connector, "Getche probably don't want to work
with me."
S I do not credit the testimony of Merrill, Hudley, Moore, and other
employees to the effect that Merrill raised his hand with the palms towards
Wright.
9 Merrill testified that he got a brief glimpse. I do not credit Dudley and
Moore, who testified that Wright held the knife out towards Merrill.
10 In his testimony about Wright's report Tom Deen did not mention the
knife However, Wright's statement that he was crippled would seem to have
had relevance only to the knife. Nevertheless, Deen testified that as of the
meeting of the next day, described below, he still did not know that Wright
had drawn a knife . I find that he did know, although he did not know the
circumstances
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Alleged Strike or Stoppage
On July 19 and for some time prior thereto three opera-
tors, in addition to oilers, were employed on the amphithea-
tre project. They were Joe Getche and Scully, who were
employed by Arnold, and Wilkinson, who was employed by
Hickey. On July 19 the three arrived at the jobsite before the
8 o'clock starting time and met across the street from the
jobsite with Pirtle and Rambus , two business agents of Re-
spondent. They remained there after 8 o'clock.
Meanwhile Wright had been engaged since about 7:15
directing a truck with an exceptionally difficult load of steel
onto the jobsite. The truck became stuck in sand, and
Wright was trying to get it extricated. Lindley, the Iron
Workers steward , and possibly other ironworkers were as-
sisting Wright. The three operators and the two business
agents came over . Pirtle challenged Wright to get his knife
out. Wright replied that the only reason he had done that
was to try to defend himself ; and Rambus told him to go
push his head in the mud . Getche placed himself against
Wright and pushed until he forced Wright backwards.
Deen came over and ordered Scully to bring his crane up
from the basement to unload the steel from the immobilized
truck. Getche and Scully said that they would not work with
Wright. Deen asked that business agents to get the operators
to unload the steel, which was projecting into the street and
impeding traffic. Pirtle replied that the operators would not
work as long as Wright was running the gang . Deen asked
if they would unload the steel if he replaced Wright with
someone else, and the business agents said that they would.
Deen sent Wright to the office and placed McCandless, the
detail foreman , over the raising gang . Scully thereupon pro-
ceeded to operate his crane and remove the steel.
F. Wright's Removal
On the afternoon of July 18 the Iron Workers' and
Respondent's stewards informed their respective business
agents that Wright had drawn a knife." A meeting with
Arnold and Hickey was arranged for the next morning at
8 o'clock at the Hickey office near the jobsite. The record
does not show who was responsible for the calling of the
meeting. On the basis of the denials by the various manage-
ment representatives present and the fact that on the af-
ternoon of July 18, when the meeting was arranged, the job
was proceeding normally, I find that neither Hickey nor
Arnold called the meeting.
The meeting got under way shortly after 9 o'clock. The
participants, Tom Deen and Hickey's field superintendent,
Rocky Mroczkiewicz, arrived later.
Rambus opened the meeting saying:
Since I'm over here for the job for the Operating Engi-
neers, I would like to open up the meeting. We have a
good job and everything. We have a problem here. At
the end we would like to have it settled so we have a
smooth job going.
There was discussion , and Wright 's "pulling" a knife was
frequently referred to. All the union representatives said
that Wright should be taken off the job. Hickey's two repre-
sentatives , Kale and Rocky, both testified that they made
no recommendation at the meeting, and I have credited
their testimony. However, they expressed no objection to his
removal, and Kale had previously recommended to Tom
Deen that Wright be fired if the incident, as reported, was
true.
Tom Deen, who had been occupied, as already described,
with getting an operator to unload the steel from the immo-
bilized truck, arrived last. Pirtle, Respondent's other busi-
ness agent , asked him what he was going to do. When Deen
answered that he would do nothing, Pirtle said, "Then you
want the monkey on our back?" Deen replied, " If it's going
to be on anybody's back it's going to be on yours," whereup-
on Pirtle retorted, "Consider it being there."
Deen assumed that Pirtle's "monkey" remarks meant that
all work would stop if he did not remove Wright. For this
reason , without investigating the incident carefully, he
agreed that Wright would be removed and the meeting im-
mediately broke up. Deen testified that he would have re-
moved Wright on his own initiative if he knew for a fact that
he had drawn a knife; but he said that if it turned out to be
self-defense , what he would have done would have depend-
ed on the circumstances.12
Deen left the meeting and proceeded immediately to the
Arnold trailer, where he told Wright that the Employer
could not use him since the operators would not work with
him. Wright offered to stay on for a few days in order to
familiarize his successor with how he had the steel laid out,
but Deen said that that was apt to cause more trouble with
the operators and that Wright should get off the job. He said
that Wright would hear from his shortly.
In about late September Arnold employed Wright as
foreman of a yard gang in a different area , Mount Vernon.
Wright told the job superintendent there that he would take
the job only for a few days since he had a job coming up
with a company known as Ben Hur. The Mount Vernon job
was behind schedule, and Wright started his work several
times half an hour to an hour before his pay started to run,
notwithstanding requests by a union business agent that he
not do so. The day before the hearing in the present case the
Mount Vernon job "blew up"; Wright quit, telling the job
superintendent that he was taking the Ben Hurjob. Respon-
dent, who injected the subject of the circumstances of
Wright's termination from the Mount Vernon job into the
case , explained its relevance as follows:
We are showing a pattern of activity on the part of
Wright exhibiting not only an indifference to safety of
people on the job but an indifference to union rules and
inability to get along on any job. And when . . . the
court hears all of these witnesses, the court I think will
find that is a fact, that he just doesn't get along on any
job, this job, that job, any job.
At another point Respondent stated:
And I say that an individual who will use the language
that Herr ick Wright used to that boy no matter what
the boy did short of a physical assault on him in the
presence of his father and use that language is not fit
12 In fact , as found above, Deen had already heard from Wright's own lips
11 Rambus testified that he received a message from the steward to the that he had drawn the knife What he did not know was whether Wright had
effect that Wright was "running wild out there trying to cut people " had justification acceptable to him or his superiors
OPERATING ENGINEERS LOCAL 841 433
to be a foreman.
G. Concluding Findings
1. Causing Wright 's removal
Respondent contends that there was no work stoppage
and that it did not cause Wright 's removal . "Rocky"
Mroczkiewicz , Hickey's director of field operations , testi-
fied : "The subject matter of the meeting was to get the job
going again which to us had been described as at a stand-
still." Respondent attempted to demonstrate that on the
morning of July 19 the oilers , members of Respondent, were
on their cranes warming up the engines . Assuming this to
have been the case , there is no doubt that at starting time
all three crane operators were not on fheir cranes but were
on the street Moreover , at least Scully , and probably
Getche , refused to comply with Tom Deen's order to get a
crane over and to move the steel from the immobilized
truck, where it was impeding traffic . As the work to be done
on the project , the erection of steel had to be performed by
crane operators , it is plain that Mroczkiewicz ' information
that the job was at a standstill was correct . It is also plain
that the standstill resulted from the three operators ' refusal
to work.
Rambus and Pirtle expressed no disapproval of the oper-
ators' conduct . In fact, their refusal of Deen's request that
they direct the men to work , their acting as the men's
spokesmen in speaking to Deen , and Rambus ' telling
Wright to get his knife out and to push his head into the mud
all go to show that they were expressing full approval. As-
suming, therefore , that they did not initiate the men's refus-
al to work , they gave it their blessing and ratification and
made common cause with them in the effort to use the
refusal to compel Deen to get rid of Wright. I find that
Respondent, through Rambus and Pirtle , caused the three
operators , both Arnold's and Hickey's, to refuse to work so
long as Wright was on the job . Accordingly, when Tom
Deen sent Wright to the trailer and replaced him with Mc-
Candless as raising-gang foreman pending the outcome of
the meeting, Respondent was coercing Arnold, successfully,
in the selection of a supervisor . See Local 423, Laborers'
International Union of North America, AFL-CIO (Mansfield
Flooring Co., Inc.), 195 NLRB 241, 242.
By his "monkey-on -our-back" remark at the meeting Pir-
tle took full responsibility for bringing about Wright's im-
mediate permanent removal. He and Rambus had already
coerced Deen to replace Wright temporarily . The two busi-
ness agents made no attempt at the meeting to indicate any
change in their position. On the contrary , Rambus' refer-
ence to a smooth-running job meant a job where there
would be no interruptions of work , such as was then occur-
ring outside . The entire meeting took place under a plainly
implied coercive threat by Respondent of further stoppage.
Tom Deen testified that he would have removed Wright
on his own initiative if he had known for a fact that Wright
had drawn a knife . However, I have found that when he
refused Pirtle's demand at the meeting , he did know. What
he did not know was the full circumstances ; and he testified
that if Wright had drawn a knife for self-defense , what he
did would have depended on the circumstances . But Re-
spondent was not allowing Deen to ascertain the circum-
stances . Moreover, after Arnold had had ample opportunity
to investigate, if it had so wished, it employed Wright as
foreman on the Mount Vernon project. Plainly Respondent
wanted to continue to use Wright if it could. I therefore find
that when Deen consented to Wright's removal, he did so
under the coercion of Respondent's action in causing the
operators to refuse to work and under the coercion of Ram-
bus' and Pirtle's implied threat at the meeting that such
refusal would be continued if Wright was not removed per-
manently.
2. Respondent's affirmative defense
Respondent contends that in any event it would have
been within its rights in coercing Arnold to remove Wright
because his presence on the job as foreman threatened the
employees' safety. Respondent also contends that Wright
exhibited an indifference to union rules and inability to get
along on any job, and that he was not fit to be a foreman.
Section 8(b)(1)(B) does not make every attempt by a
union to coerce an employer to remove a supervisor per se
and irrebuttably a violation; the Section must be read in the
light of The entire Act and its basic policies. As stated by
Trial Examiner Welles in Carpenters District Counsel of Sa-
bine Area and Vicinity (Miner-Dederick Construction Corpo-
ration), 195 NLRB 178 at 182, "Plainly there is tension
between 8(b)(1)(B) on the one hand and the protected rights
of employees and their representatives, and perhaps even a
union's obligation to protect the employees, on the other."
It is necessary in each case to appraise the facts by weighing
the employees' interest in their conditions of employment
and in their statutory right of self-organization against the
employer's interest in his statutory right to adjust grievances
and negotiate through agents of his own choosing.
When a union has imposed a fine or other discipline on
a supervisor who was also one of its members, the Board has
found a violation only in those cases in which the reason for
the discipline was an act of the supervisor in furtherance of
his supervisory or managerial functions. Thus, the Board
has held that a union could not fine a member who was a
supervisor for performing rank-and-file work during a
strike. See International Brotherhood of Electrical Workers,
AFL-CIO, and Local 134, International Brotherhood of Elec-
trical Workers, AFL-CIO (Illinois Bell Telephone Company),
192 NLRB 85, enfd. as modified 81 LRRM 2257, 69 LC
13,017 (C.A.D.C., 1972). In contrast, see Local Union 453,
Brotherhood of Painters, Decorators and Paperhangers of
America, AFL-CIO (Syd Cough & Sons Inc.), 183 NLRB
No. 24, where the Board found no violation in a union's
fining a supervisor member for violating a union rule requir-
ing members to register with the union before going to a job.
The reason for the difference of result is that only when the
union's internal discipline is directed at acts performed by
the supervisor on behalf of the employer is the latter de-
prived of the benefit of the supervisor's loyalty and services.
On the other hand, when a union requires a supervisor's
removal, the employer's right to choose and use his own
agents is impinged upon irrespective of the union's reasons.
Congress did not intend, for example, that a union have the
right to deprive an employer of a supervisor because, as a
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union member, he opposes the current officers in a union
election. To make the point obvious, it is hardly conceiva-
ble, except possibly in very special circumstances, that a
union would be exonerated if it coerced an employer to
remove a supervisor because he was a Democrat, or an
atheist, or because he drove a foreign car. To establish that
Respondent deprived Arnold of all benefit of the services of
the raising-gang foreman it had selected there is no need for
any nice analysis as to whether the drawing of the knife
should be deemed a supervisory or managerial act.
Respondent's affirmative defense is based primarily upon
Wright's conduct towards Merrill Getche, considered
against the background of his reputation for having an un-
controllable temper and a tendency to become violent."
Notwithstanding Wright's reputation, widely known
among the employees and Respondent 's officials , no ques-
tion was raised about his being foreman during the 7 weeks
he was on the job prior to July 18; and immediately after
the knife incident all the employees went back to work with
Wright still on the job. Significantly, at the July 19 meeting
the Iron Workers business agent did not take the initiative
or exert pressure to bring about Wright's removal; and that
morning, while the three operators were off the jobsite refus-
ing to work, Lindley, the Iron Workers shop steward, and
probably other ironworkers, were working with Wright
trying to extricate the immobilized truck. It was the iron-
workers who had to work close to Wright on the job and
who did the truly dangerous work, riding 100 feet over the
ground on steel members being carried by the cranes. The
fact that they did not feel so threatened by Wright's pres-
ence on the job as to refuse to work with him throws doubt
on Respondent's claim that its action was taken out of
concern for the employees' safety. In view of these facts,
and of Wright's demonstration of self-control before all the
employees, discussed below, I do not credit Respondent's
witnesses who testified that Respondent and the employees
considered Wright's presence on the job a safety hazard.14
The significant factor in the situation was probably
Getche's apparent unwillingness to work with Wright and
Tom Deen's warning to him on July 18, immediately after
his physical encounter with Wright, that if anyone had to
go, it would be Getche. The danger to Getche's job was a
much more likely reason for Respondent's pressure on Ar-
nold than the false issue of employees' safety. I shall there-
fore examine Respondent's action in the light of its duty to
protect Getche against possible unjust treatment.
The knife incident started with Merrill Getche's entry
onto the jobsite to chat with his father. It seems fairly ob-
vious that steel erection cannot be carried on efficiently or
safely if subject to the sudden unannounced appearance of
unsupervised social visitors." When Wright, whose respon-
13 Respondent offered evidence of actual violent behavior by Wright on
other jobs which I excluded pending proof , which was never offered, that
Resrndent knew about it at the time it coerced his removal
1 Respondent attempted to show what it termed a "pattern of activity on
the part of Wright exhibiting not only an indifference to safety of people on
the job but an indifference to union rules and inability to get along on any
job " What Respondent proved was that on the Mount Vernon project, which
was behind schedule , Wright was on the job working - without pay - well
before starting time , and the union there objected I infer that Respondent
held against Wnght matters other than safety
sibilities included the enforcement of safety rules , not only
discovered that Merrill had no business on the site 16 but
also found him clinging dangerously to the side of the crane,
it is understandable that he was angry. Nevertheless, when
Merrill started to leave the site , Wright dropped the matter
and went back to his blueprints.
However, Merrill then engaged in extremely provocative
conduct . When he came back to protest Wright's tone and
language , he taunted him as an "old man," interrupting his
concentration on the difficult task of keeping an accurate
record of the truss members which were being assembled.
When Wright sent him on his way again , accompanying him
to make sure that he left this time , the youth stopped and
turned every now and then to defy Wright , repeatedly
taunting the former wrestler as an "old man," and inviting
him outside . Each time Merrill stopped , Wright stopped,
carefully keeping his distance . Wright's actions , including
the manner in which he drew and held his knife , corroborate
his testimony that he did so only to be prepared , notwith-
standing his crippled condition , to defend himself if at-
tacked . He was in complete control of himself and his
behavior in the face of Merrill 's deliberate provocations
belied his reputation for an uncontrollable temper.
It cannot be gainsaid that the incident assumed the pro-
portions and importance it did because Wright, in his assi-
duous concern to get Merrill off the jobsite so that he could
carry on Arnold 's work without interruption , took a short-
cut and attended to his removal himself . Drawing the knife
showed very poor judgment. 17 Although Wright had no in-
tention to attack Merrill , but only to defend himself , others,
especially the youth 's father , could not be expected to feel
confident on that score . The result of Wright 's drawing the
knife was thus the physical altercation with Getche , and the
episode blew up into a situation in which Getche apparently
would not work for Wright . At the same time it must be
emphasized that Merrill was at fault in brashly coming on
the restricted jobsite as he did , and that his taunting of
Wright was provocative and cruel ; and Joe Getche himself
was at fault in not having his son get a hard hat and authori-
zation.
The weighing of interests I have mentioned earlier as the
basis for deciding some cases under Section 8(b)(1)(B) does
not mean that I am to weigh the exact degree of fault as
between Wright and the Getches . The matter at issue is not
Wright's interest , but Arnold's interest derived from the
specific statutory prohibition against coercing it in the selec-
tion of personnel who would adjust grievances. This prohi-
bition is not conditioned upon perfect conduct by the
supervisor in question . See Local 423, Laborer's Internation-
al Union of North America, AFL-CIO (Mansfield Flooring
Co., Inc.), supra, where a union was found in violation of
Section 8(b)(1)(B) for threatening to shut down a job unless
15 Joe Getche had no authority to invite his son in , and I infer that he was
aware of this . I was unfavorably impressed by him as to credibility , and I do
not credit his testimony that it was "normal procedure " for a crane operator
to invite relatives in to talk , nor do I credit his and Merrill's testimony that
he signaled the latter to come in
16 When he first saw Merrill , Wright assumed that he was an employee or
an applicant
17 If not so concerned with avoiding delay, Wright would have waited a
bit to see if Merrill would leave, and then, if he did not leave , he could have
called the police
OPERATING ENGINEERS LOCAL 841
the employer removed a supervisor who had performed
manual work in violation of the applicable contract. See
also Trial Examiner Welles ' statement in Carpenters District
Council of Sabine Area and Vicinity, and Carpenters Local
Union No. 610 (Ralph M. Parsons Company), 193 NLRB 423
at 424, Trial Examiner's Decision , adopted by the Board, "it
is no defense that the conduct of the supervisor may have
violated the contract , or been discriminatorily motivated."
While the employer 's 8(b)(1)(B) right is not absolute and is
not to be applied without regard for the employees' Section
7 rights , it must be recognized that Section 8(b)(1)(B) places
some limitation on the employees ' right to strike . See the
discussion by Trial Examiner Barker in Silver Bay Local
Union No. 962, International Brotherhood of Pulp, Sulphite
and Paper Mill Workers, AFL-CIO (Alaska Lumber & Pulp
Co., Inc., 198 NLRB No. 107.
Since I have ruled out concern for the employees ' safety
as Respondent 's motivation , there was no immediacy in the
situation such as might arguably justify a work stoppage
either under Section 502 of the Act 18 or as a matter of
general equity . Getche was not being discharged ; if his job
was in jeopardy that resulted from his own reluctance to
work with Wright ; and he and his son were far from blame-
less in bringing about that circumstance . Moreover, even if
Getche had been discharged , Respondent had other reme-
dies available if such discharge would have been unjust. To
protect Getche 's rights it did not have to impinge so severely
upon Arnold's right to select its foreman free of coercion.
Respondent did not even make an effort to ascertain all the
facts ; and Business Agent Rambus apparently accepted
without question the untruthful message that Wright was
"running wild out there trying to cut people ." Respondent
did not permit Arnold and Hickey to ascertain the circum-
stances of Wright's knife-drawing, and as a result the meet-
ing was conducted under false assumption that Wright had
used the knife to threaten Merrill . Respondent assumed a
dictatorial role and forced immediate compliance with its
demand . Deen , as well as Hickey 's representatives, knew
that until Wright was removed Respondent would keep the
project at a complete halt. I find Respondent 's affirmative
defense without merit.
I find that Respondent violated Section 8(b)(1)(B) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
I find that the activities of Respondent set forth above in
section III, occurring in connection with the operations of
Morris Arnold doing business as M. L. Arnold Steel Erec-
tion described above in section I, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Is Sec. 502 provides , in part , "nor shall the quitting of labor by an employee
or employees in good faith because of abnormally dangerous conditions for
work at the place of employment of such employee or employees be deemed
a strike under this Act."
435
The Remedy
As I have found that Respondent engaged in certain un-
fair labor practices, I recommend that the Board issue the
Order set forth below requiring Respondent to cease and
desist from those unfair labor practices and to take certain
affirmative action which will effectuate the policies of the
Act.
As Arnold removed Wright from his position as foreman
of the raising gang because it was coerced into doing so by
Respondent's unfair labor practices, I recommend that Re-
spondent notify Arnold and Wright in writing that it does
not object to Wright's reemployment as raising-gang fore-
man or in any other supervisory position, and that it will not
coerce Arnold to remove him from such position. I further
recommend that Respondent make Wright whole for any
loss of earnings he may have suffered by reason of
Respondent's unlawful conduct found by me or resulting
from a failure to carry out the terms of the Order. Backpay
shall be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90
NLRB 289; and it shall include interest at the rate of 6
percent per annum, to be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Morris Arnold, doing business as M. L. Arnold Steel
Erection, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local Union No. 841, International Union of Operat-
ing Engineers, AFL-CIO, and Local Union No. 439, Inter-
national Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, are each a labor organization
within the meaning of Section 2(5) of the Act.
3. Raising-gang foremen employed by M. L. Arnold
Steel Erection are supervisors within the meaning of Section
2(11) of the Act and are representatives of said employer for
the purpose of the adjustment of grievances within the
meaning of Section 8(b)(1)(B) of the Act.
4. By restraining and coercing M. L. Arnold Steel Erec-
tion in the selection of a representative for the purpose of
the adjustment of grievances Respondent has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
5. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:19
19 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided by Sec. 102
.48 of the Rules and Regulations , automatically become the findings, conclu-
sions, decision , and Order of the Board, and all objections thereto shall be
deemed waived for all purposes.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER APPENDIX
Respondent , Local Union No. 841, International Union
of Operating Engineers , AFL-CIO, its officers , agents, and
representatives , shall:
1. Cease and desist from:
(a) Causing, or threatening to cause, employees of M. L.
Arnold Steel Erection to refuse to perform services with an
object of requiring Arnold to remove , or refuse to employ,
Herrick Wright as raising-gang foreman or in any other
supervisory position.
(b) In any other manner restraining or coercing Arnold
in the selection of raising-gang foremen or any other repre-
sentatives for the purposes of collective bargaining or the
adjustment of grievances.
2. Take the following affirmative' action necessary to ef-
fectuate the policies of the Act.
(a) Immediately notify M. L. Arnold Steel Erection, in
writing, that Respondent has no objection to the reemploy-
ment of Herrick Wright as raising -gang foreman or in any
other supervisory position , and that it will not restrain or
coerce said employer to remove him from such position.
(b) Simultaneously send to Herrick Wright a copy of the
notification referred to in subparagraph (a).
(c) Make Herrick Wright whole in the manner set forth
in section V of this Decision entitled "The Remedy."
(d) Post at its office and meeting halls copies of the at-
tached notice marked "Appendix." 20 Copies of the notice,
on forms provided by the Regional Director for Region 25,
shall, after being signed by a representative of Respondent,
be posted immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter in conspicu-
ous places , including all places where notices to members
are customarily posted . Reasonable steps shall be taken to
ensure that said notices are not altered , defaced , or covered
by any other material.
(d) Furnish to the Regional Director for Region 25
signed copies of said notice for posting by M. L. Arnold
Steel Erection , if willing, in places where notices to its em-
ployees are customarily posted . Copies of said notice, to be
furnished by the Regional Director , shall, after being signed
by an official representative of Respondent , be forthwith
returned to the Regional Director for distribution by him.
(e) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of receipt of this Decision,
what steps Respondent has taken to comply herewith.
20 In the event that the Board's 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 the Judgment of a United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
NOTICE To MEMBERS
POSTED By ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL immediately notify M. L. Arnold Steel Er-
ection and Herrick Wright that we have no objection
to the reemployment of Herrick Wright as raising-gang
foreman or in any other supervisory position.
WE WILL make Wright whole for any loss of earnings
suffered as a result of Arnold's removal of Wright as
raising-gang foreman.
WE WILL NOT cause any employees of Arnold to refuse
to perform services in order to require Arnold to re-
move or refuse to employ Herrick Wright as raising-
gang foreman or in any other position.
WE WILL NOT in any other manner restrain or coerce
Arnold in the selection of raising-gang foremen or any
other representatives for the purposes of collective bar-
gaining or the adjustment of grievances.
LOCAL UNION No 841, INTER-
NATIONAL UNION OF OPERATION
ENGINEERS , AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone 317-633-
8921.