Laborers' Local No. 496,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1105 (N.L.R.B. 1981)

LABORERS' LOCAL NO. 496
Laborers' International Union of North America,
Local No. 496 (Newport News of Ohio, Inc.)
and Michael R. Wayman. Case 8-CB-4245
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 25, 1981, Administrative Law Judge
William A. Gershuny issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
'The General Counsel 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 re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
2 In reaching our conclusion involving the alleged threats here, we do
not rely on the Administrative Law Judge's application of a "subjective"
test in deciding whether Conrad's remarks were coercive or threatening.
The test is whether the remark tended to restrain or coerce employees in
the exercise of the rights guaranteed them in Sec. 7 of the Act. See
United Steelworkers of America Local 1397. AFL-CIO (United States Steel
Corporation. Homestead Worksl) 240 NLRB 848. 849 (1979); United Steel-
workers of America. AFL-CIO. Local Union 5550 (Redfield Company. a
Division of Outdoor Sports Industries). 223 NLRB 854. 855 (1976). Howev-
er. we agree that, in the circumstances of this case. neither Conrad's nor
Bracale's statements violated the Act.
DECISION
STATEMENT OF THE CASE
WILLIAM A. GERSHUNY, Administrative Law Judge:
A hearing was held on May 11, 1981, in Cleveland,
Ohio, pursuant to a complaint issued on September 19,
1980, alleging violations of Section 8(b)(1) and (2) of the
National Labor Realtions Act, as amended. Respondent's
answer denies any violation of the Act.
At issue is whether local union officials threatened to
assault a member and caused his discharge from employ-
ment because of his intraunion activities.
Upon the entire record, including my observation of
the witnesses and their demeanor, I hereby make the fol-
lowing:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The complaint alleges, Respondent admits, and I find
that the Employer, Newport News of Ohio, Inc., en-
gaged in the construction business with annual interstate
shipments in excess of $50,000, is an employer engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Threatened Assaults
Undisputed are all the facts relevant to the threats al-
leged in the complaint.
Michael Wayman, an active member of Local 496 (the
Union) since becoming a member in 1971, worked for
the election of Floyd Conrad as business agent in 1974
when the two became dissatisfied with the work of his
predecessor. At the time the Union was small, expenses
were nominal, and members approved all expenditures.
In 1977, Wayman was elected recording secretary.
Among the officers were Harrington, as president;
Conrad, as secretary-treasurer; and Bracale, as vice presi-
dent. By 1976, membership increased fivefold and a spe-
cial assessment was imposed for construction of an en-
larged union hall. By this time, Wayman's friendship
with Conrad was waning. He opposed Conrad's support
of Bracale as field representative, the omission of the
reading of the financial report at membership meetings,
the purchase of two automobiles, salary raises for secre-
tarial personnel, and payment of union expenses without
approval of the membership. In an effort to have control
of union expenditures returned to the membership,
Wayman, in June 1979, called a secret meeting of the ex-
ecutive board at his home, but only one board member
appeared. The following week, at a meeting with other
union officials in attendance, Conrad, upset by what he
perceived to be an accusation by Wayman that he was a
thief, called him a "mealy-mouthed creep" and verbally
threatened to "knock [Wayman's] head through the
wall." There is no evidence of an intent to carry out
such a threat and the remark was nothing more than a
verbal expression of Conrad's anger. No Board charge
was filed by Wayman and the incident is beyond the
scope of the complaint in this case. Thereafter, Way-
man's relationship with the other union officers deterio-
rated. He was nomimated to run for vice president
against Bracale and, at a special meeting of the executive
board in early May 1980, Wayman was accused of
making charges against union officers to nonmembers. A
258 NLRB No. 144
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonmember was called to the meeting to give "testimo-
ny" that Wayman told him of financial irregularities
within the Union. No charges had been filed by Wayman
against other union officers under the union constitution.
Tempers flared at the meeting and Conrad threatened to
"punch [Wayman's] mealy mouth" for calling him a thief
and also threatened to bring suit for defamation. Again
there is no evidence of an intent to carry out any threat
and the words were nothing more than an expression of
anger. Bracale joined in, telling Wayman that, if he were
in another union, he "would have had [his] throat cut"
for doing what he did. Wayman's dislike of Bracale was
a matter of record with the former referring to the latter
as a "wop" and a member of the "Mafia." The following
day, May 3, 1980, Wayman resigned from his union
office and no longer took an active interest in union af-
fairs. The threats were not assigned by Wayman as a
reason for his resignation; rather, the only reason appears
to be that Wayman was not able to "get my point
across" with respect to financial wrongdoing.
In many respects Wayman's accusations were unfound-
ed and his communication of those accusations to a non-
member of the Union without having brought charges
under the union constitution reasonably could have been
expected to generate great anger on the part of Conrad
and Bracale, the only union officers whose conduct was
impugned. Admittedly, Conrad had been given authority
by the membership to proceed with construction without
further membership approval, expenditures for attend-
ance at International Union conventions had been ap-
proved, and accounts were regularly audited. Except for
purposes of measuring the appropriateness of the re-
sponding "threats," the merits of Wayman's activity
under Section 7 are of no concern here. It is relevant
only that he was politically active as a concerned union
member and officer.
Bracale's remarks are not violative of the Act as they
are neither threatening nor intimidating in fact.
Conrad's statements likewise are not unlawful. Tested
objectively, they are not inappropriate responses to pro-
vocative action and words on the part of a union brother
and fellow officer. Like the plant floor and the picket
line, the union meeting hall is likely to produce dialogue
which, under other circumstances, would be deemed of-
fensive and uncivilized.
Fortunately, in determining intent, language and loca-
tion are inseparable. In any event, tested subjectively, the
words were not coercive or threatening and did not in-
terfere with Wayman's exercise of his Section 7 rights.
B. The May 16, 1980, Layoff
Except as indicated below, the facts are undisputed.
Wayman, a member of the Union since 1971, was em-
ployed at the Perry, Ohio, power plant project from De-
cember 1977 until May 16, 1980, when he was laid off.
Local 496 members were assigned to four separate oper-
ations on the project. The jobs at unit 2, to which
Wayman was assigned, consisted almost exclusively of
light, nonphysical work. Two other laborers also were
assigned to that unit: his father, who had suffered a heart
attack earlier, and one Chandler, age 54, who had a wife
and five dependent children.
Harrington, union president and a general foreman of
all laborers employed on the project, had full and virtu-
ally final authority to employ, discharge, layoff, and pro-
mote laborers on behalf of the contractor. When reduc-
tions in force were directed by the contractor, Harring-
ton determined which laborers were to be terminated,
advising only the union steward on the project. Seniority
does not control layoff or recall in the construction in-
dustry generally and the existing labor contract at the
project contained no provision relating to seniority. The
criteria used by Harrington when a reduction was neces-
sary was (1) working ability and (2) the financial need of
the laborers in the particular work unit affected by the
reduction. Harrington also had authority to mark a la-
borer's workcard with the notation, "not to be rehired,"
if he did not wish the employee to be recalled.
In April 1980, the contractor notified Harrington that
one laborer was to be laid off at unit 2 in mid-May. Har-
rington advised Union Steward Kish that Wayman was
to be laid off and Kish, in turn, advised Wayman. When
he was so advised, Wayman replied, "I sort of expected
it."
Harrington testified that he retained Wayman's father
on the job because the work was easy and within his re-
stricted physical capabilities. Chandler was retained be-
cause of his age and financial obligations stemming from
the large size of his family. Wayman, he testified, was
young, was physically able to handle the usually more
rigorous work of a laborer, possessed a wider range of
related skills, had only a working wife to support, and
previously had indicated an intention to work with an
acquaintance who had started his own construction busi-
ness. The selection, he testified, was not influenced by
Wayman's intraunion activities or disagreements with
Bracale or Conrad and was not suggested or directed by
any other union official.
Harrington did not mark Wayman's workcard "not to
be rehired" and, about a week later and again I to 2
months later, he called the union hiring hall to specifical-
ly request, as he had a right to do, the referral of
Wayman for temporary work at the project. On each oc-
casion, Harrington was advised by the union secretary
that telephone calls to Wayman's home were not an-
swered. Union referral records indicate that on 10 sepa-
rate occasions in May, June, July, and August 1980, tele-
phone calls for job referrals were placed to Wayman's
home by a union secretary at the direction of Bracale or
Conrad. Only on two occasions was someone at home:
On the first, his wife took the message, but Wayman did
not return the call; on the second, Wayman accepted the
referral, only to reject it 20 minutes later. On July 3,
1980, just 4 days before executing the typewritten Board
charge, Wayman sent a mailgram to the Union request-
ing work. At no time did Wayman sign the union out-of-
work list at the hall located 3 miles from his home or
call to inquire as to available work. Wayman was re-
called to work at the project on April 8, 1981, following
the settlement of Case 8-CA-13996, in which the Em-
ployer was named as Respondent.
I am unable to conclude that Wayman's layoff was re-
lated in any way to his intraunion activities. Only the
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LABORERS' LOCAL NO. 496
timing of the layoff could be said to constitute circum-
stantial evidence of unlawful conduct on Harrington's
part. Even that solitary fact, however, is counterba-
lanced by the fact that no "discriminatory" action was
taken by the Union for a lengthy period while the dis-
pute raged on. But most important are the undisputed
facts that the Union played no role in the decision to
reduce the work force; that the selection of Wayman did
not violate existing criteria; and that the Union, contin-
ually and almost from the outset, sought to refer
Wayman to available work, but was rebuffed by him. In
sum, the internal union disputes were separate and
wholly unrelated to Wayman's layoff.
The complaint is dismissed.
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:
ORDER'
It is ordered that the complaint be, and the same
hereby is, dismissed.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
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