Local I, Elevator Constructors

National Labor Relations Board - Board Decisions

Dec 1, 1978

239 N.L.R.B. 551 (N.L.R.B. 1978)

LOCAL 1, ELEVATOR CONSTRUCTORS
Local 1, International Union of Elevator Constructors,
AFL-CIO (Staley Elevator Company, Inc.) mnd
Francis Lawrence and Martin Donohue. Cases 29-
CB-2969 and 29-CB-3004
December 1, 1978
DECISION AND 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, dis-
missed in its entirety.
BY MEMBERS JENKINS. MURPHY, AND TRUESDALE
On May 4, 1978, Administrative Law Judge Phil
W. Saunders issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief and Respondent filed a
memorandum in opposition to General Counsel's ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs '
and has decided to affirm the rulings, findings,2 and
conclusions 3 of the Administrative Law Judge and
to adopt his recommended Order.
Respondent contends, inter alia, that the exceptions filed by the General
Counsel did not comply with Sec. 102.46(b) of the Board's Rules and Regu-
lations, Series 8, as amended. However. while the General Counsel's excep-
tions may not have been in technical compliance with all the requirements
of that section, we are mindful of the fact that the Rules and Regulations.
Sec. 102.121., specify that they "shall be liberally construed to effectuate the
purposes and provisions of the Act." We therefore conclude that the pur-
poses of the Act are best effectuated by accepting the General Counsel's
exceptions and find no ment to Respondent's contention that the exceptions
are improperly before the Board. Holly Manor Nursing Home, 235 NLRB
426 (1978).
2 General Counsel has excepted to the Administrative Law Judge's failure
to credit Charging Party Lawrence's testimony that Caraccioli, an employee
of the Union. told him that Watson. president of the Union, had said that
Lawrence could not be referred because, inter alia, too many cardholders
were unemployed. The Administrative Law Judge discredited this testimony
because he credited Watson's denial that he made such a remark. The Gen-
eral Counsel alleges that. inasmuch as Caraccioli failed to testify,
Lawrence's testimony, rather than that of Watson, should be credited. We
find no ment to this argument. The issue is whether the Union's failure to
refer Lawrence and Donohue was discriminatorily motivated, and Watson's
alleged statement to Caraccioli is evidence of such motivation. However.
inasmuch as the Administrative Law Judge found. on the basis of de-
meanor. that Watson did not make the remark attributed to him, what
Caraccioli may have said to Lawrence is irrelevant. It is the Board's estab-
lished 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 are incorrect. Standard Dry Wall
Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d. Cir. 19511. We
have carefully examined the record and find no basis for reversing his find-
Intj.
In the first sentence of the second paragraph before his Conclusions of
Law, the Administrative Law Judge inadvertently omitted the word "not"
which should have been inserted between the words "therefore" and "enti-
tled." The sentence should read. in relevant part, "and Donohue. who had
not even registered for the open employment list, and was therefore not
entitled to any preference."
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Judge: Based on
charges filed in July and August 1977, by Francis Law-
rence and Martin Donohue, a consolidated complaint was
issued on September 30, 1977, against Local i, Internation-
al Union of Elevator Constructors, AFL-CIO, herein
called Respondent or Union, alleging violations of Section
8(bX)( I )(A) and (b)(2) of the National Labor Relations Act,
as amended. Respondent filed an answer to the complaint,
denying it had engaged in the alleged matter. The Respon-
dent filed a brief.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor,' I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Staley Elevator Company, Inc., herein called the Em-
ployer or Staley, is a corporation organized under the laws
of the State of New York, and at all times material herein
has maintained its principal office and place of business in
Long Island City, in the borough of Queens, city and State
of New York, where it is engaged in the installation, main-
tenance, and repair of elevators and related services.
During the past year the Employer purchased and
caused to be transported and delivered to its plant eleva-
tors, parts, and other goods and materials valued in excess
of $50,000, and of which goods and materials valued in
excess of $50,000 were transported and delivered to its
plant in interstate commerce directly from States other
than the State in which it is located.
Staley is an employer in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
IThe facts found herein are based on the record as a whole and upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N.L.R B v. Walton Manufacturing Company. 369 U.S. 404
(1962). As to those witnesses testifying in contradiction of the findings
herein, their testimony has been discredited, either as having been in con-
flict with the testimony of credible witnesses or because it was in and of
itself incredible and unworthy of belief. All testimony has been reviewed
and weighed in the light of the entire record.
551
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
It is alleged in the complaint, as consolidated, that since
on or about July 7 and 20, 1977, the Respondent has failed
and refused to refer Francis Lawrence to available work
because he was not a member of the Union. It is further
alleged that since August 2, 1977, the Respondent has also
failed and refused to refer Martin Donohue to available
work with the Employer because he was not a member of
the Union.
Francis Lawrence was employed by Staley in October,
1969, as an elevator helper, later became a temporary me-
chanic, and then returned to the position of helper. Law-
rence continued to work for Staley until on or about Janu-
ary 29, 1976, when he was laid off due to lack of work.
It appears that during Lawrence's tenure with Staley, he
was employed pursuant to the terms and conditions of the
collective-bargaining agreement between Staley and the
Union. Lawrence testified that he was employed by Staley
after he went down to the union hall, filled out a form, paid
union dues, and then received a letter and a permit from
the Union to go to work for Staley. Lawrence stated that
he worked on the permit and was not a member of the
Union. However, it does appear that Lawrence received all
of the benefits set forth in the collective-bargaining agree-
ment between the parties and thus participated in the Re-
spondent's annuity and pension funds, to which contribu-
tions were made by Staley on his behalf.
At the time of Lawrence's layoff in January, 1976, as
aforestated, he notified the Union in accordance with the
applicable procedure. Employees are requested to notify
the Union at the time of their layoffs, and such employees
are then immediately put on the open employment list
which the Union maintains for job referral purposes.
In April and May 1976, Lawrence submitted applica-
tions to the annuity fund and the pension fund for the
return of contributions made to these funds. Lawrence's
applications for the return of contributions made were ap-
proved by both funds.
Approximately 9 or 10 months after he last worked for
the Employer, Lawrence began to telephone Staley to ask
whether or not it had any available work, and in early July
1977, Lawrence was advised by Staley that if he could ob-
tain a work permit from the Union, he could return to
work. Lawrence then visited the offices of the Union and
spoke with clerical employee Al Caraccioli. Lawrence ad-
vised Caraccioli about Staley's offer of reemployment and
requested that his permit be returned. However, after wait-
ing until someone else came in, Caraccioli then advised
Lawrence that he could not give him a permit inasmuch as
he had withdrawn his money from the pension and annuity
funds, but nothing was said concerning Lawrence's mem-
bership or lack of membership in the Union.
Lawrence then telephoned Staley and advised the Em-
ployer as to what had taken place and requested that it
hold his job open until he could resolve the difficulties.
Lawrence wanted to discuss this matter with a friend of his,
Walter Burke, a member of the Union's board of trustees
and executive board. Lawrence then contacted Burke and
informed him of what had taken place, and Burke advised
him to wait until he could bring this matter up before the
Union's executive board. It appears that Burke later called
Lawrence and then advised him to obtain a letter from
Staley setting forth that it wanted him to return to work
and that it had been less than 2 years since he had last
worked for the Employer. 2
In accordance with advice from Burke, Lawrence then
obtained a letter from Staley which stated that it would like
to exercise its option and rehire Lawrence effective from
July 20, 1977. Lawrence took the letter with him to the
Union's office on this date and presented it to Caracciolo,
but was advised that Caraccioli would have to present the
letter to someone else, as he did not have any authority to
act in this matter. However, while Lawrence waited in the
office, Caraccioli was able to present the letter to Vincent
Watson, president and business manager of the Union.
Watson then advised Caraccioli that Lawrence was not eli-
gible to exercise his card option under the 2-year provision
of the collective-bargaining agreement, inasmuch as he had
withdrawn his pension and annuity funds and was thus
considered as having left the elevator industry. Caraccioli
then so advised Lawrence that he could not be referred to
Staley because he had withdrawn his pension and annuity
funds.3
The General Counsel argues that, because of the great
power a union exercises over the livelihood of employees
subject to an exclusive hiring hall, the law requires that the
hiring hall be operated in a nondiscriminatory manner, and
especially with regard to employees' or prospective em-
ployees' memberships, and that Lawrence requested the re-
turn of his permit pursuant to a clause in the contract
which required the Union to refer an employee for a 2-year
period when that particular employee is specifically re-
quested.
In the instant case, the Union had a legitimate and prop-
er basis in refusing to refer Lawrence. As pointed out, at
the time Lawrence requested the Union to refer him for
2 The collective-bargaining agreement between the Union and Staley pro-
vides for an exclusive hiring hall, and one of the rules which applies to the
operation of the hiring hall states that employees who are specifically re-
quested bh an employer are to be referred if they had worked for that
employer within the preceding 2 years. Sec. II, A,4(a), of the collective-
bargaining agreement provides as follows:
(a) If the Employer requests by name from the open employment list
a workman, other than a probationary man, who had previous em-
ployment with the Employer within the past two (2) years, that work-
man shall be referred by the Union to the Employer unless the work-
man is then working for another company or is unwilling to accept
employment with the Employer.
3In effort to establish a discriminatory motivation, the General Counsel
has attempted to rely upon the fact that during the conversation that Law-
rence had in the union office, reference was made to the fact that "card-
holders" were out of work. Al Caraccioli, a clerical employee of the Union,
supposedly told l.awrence that Vincent Watson. president and business
manager of the Union, had responded to his request for referral by stating
that Lawrence could not be referred because he had withdrawn his pension
and annuity funds monies and that there were too many cardholders unem-
ployed. This testimony cannot be relied upon in view of Watson's undisput-
ed and credited denial of this remark attributed to him.
552
LOCAL I. ELEVATOR CONSTRUCTORS
reemployment at Staley, in July 1977, he had already with-
drawn his contributions from the pension and annuity
funds and in so doing indicated that he intended to with-
draw from the elevator industry. As such, Lawrence was no
longer eligible for referral to Staley pursuant to the 2-year
provision of the collective-bargaining agreement. As con-
tended by counsel for the Union, an employee cannot
withdraw from the industry, secure the return of all his
contributions, and then still remain eligible for referral.
Moreover, as also pointed out, Lawrence's intention to
withdraw from the elevator industry is revealed on his ap-
plication for the return of his contributions from the annui-
ty fund. Indeed, the application, at question 5, specified
that an employee would be ineligible for a return of the
money if the employee was remaining in the elevator in-
dustry or had not reached retirement age.4 It is true that
Lawrence failed to specify on his application withdrawal
form whether he was leaving the elevator industry, but the
intention of his application and his acceptance of the lump
sum payment from the funds amply demonstrate his ac-
knowledgment that he was leaving the elevator industry
and indicate that he was no longer employed in the indus-
try.
It is further noted by the Union that section II A(4) of
the collective-bargaining agreement, the 2-year provision
for referrals, as aforestated, has been interpreted by the
Union and various employers, who are all parties to collec-
tive-bargaining agreement, as not providing any preference
for employees who had withdrawn from the industry and
had secured the return of their pension and annuity funds.
From the credited evidence in this record, the decision to
exclude employees who had withdrawn their pension and
annuity funds from the 2-year-recall provision of the col-
lective-bargaining contracts was agreed to at the request of
the employers who were party to the agreements with the
Union at a meeting of the New York Arbitration Commit-
tee several years ago. There is further evidence in this rec-
ord that this action was taken because employers feared
that the tax exemption from the Internal Revenue Service
for the pension and the annuity funds would be endan-
gered if there were promiscuous withdrawals of monies
from those funds by employees, and there was also a con-
cern to protect the integrity of the pension fund concept
and to prevent the funds from becoming open bank ac-
counts.
Moreover, there is no evidence that the above interpreta-
tion of the collective-bargaining agreements has not been
uniformly applied to all similarly situated individuals, nor
is there any evidence that this mutually agreed upon inter-
pretation is anything but a valid and proper policy estab-
lished to protect the integrity of the pension and annuity
funds. When viewed in this context, the Union's refusal to
refer Lawrence to the Staley job was pursuant to a valid
interpretation of the collective-bargaining agreement and
was, therefore, lawful.
Martin Donohue was employed by the New York City
Housing Authority in January 1964, and, as such, he was
paid by the City of New York as one of its employees.
4See Resp. Exh. 3
Donohue was first employed by the New York Housing
Authority as an elevator helper and then as a mechanic
and became a civil service employee member of the Union
in 1968 or 1969.5
In August 1976, Donohue, along with many others, was
suspended from his employment and charged with theft of
overtime, and in October 1977, Donohue pleaded guilty to
certain criminal charges relating to the above, and as a
result of the sentence imposed, he was forced to resign
from his job, pay a $4,000 fine, and was also placed on 3
years' probation.
Donohue testified that in August 1977, he heard that
Staley was in need of elevator mechanics, and that he then
went to the Employer and inquired whether it had any job
openings. Donohue had never previously worked for Staley
but informed the Employer that he was an elevator me-
chanic under suspension by the Housing Authority. Dono-
hue was then told that he would be hired but would first
have to "clear it with the Union." Donohue stated that at
this time he only had a municipal card in the civil service
branch of the Union, as aforestated.
Donohue then went over to the Union to find out wheth-
er he could be referred to work with Staley and spoke to
John Gree, vice president of the Union. Donohue advised
Green that he had a job opportunity with Staley and that
he was attempting to clear it with the Union. Donohue and
Green discussed Donohue's suspension from the New
York Housing Authority and that he had a municipal
membership card in the civil service branch. Green then
advised Donohue that there was an existing list of unem-
ployed men (open employment list), including a list of men
who had previously worked for Staley, and, under their
bargaining agreement, they had first preference on recalls.
Dunng this conversation, Donohue inquired whether he
could convert his civil service membership and also men-
tioned to Green that he had recently received a letter which
stated that civil service employee members were now being
taken into the Union upon the payment of an initiation fee.
Green then advised Donohue that he could not answer
these questions but would bring the matter up with the
Union's executive board.
In May 1977, at a membership meeting, the Union
amended its constitution that, effective July 1, 1977, all
members who had civil service employee memberships and
were working as of that date, or on any subsequent date,
could transfer to general membership status upon the pay-
ment of the current initiation fee.6
Green testified that in his August 1977, conversation
with Donohue, as aforestated, he also told him that the
unemployment situation in the Union "was bad"; and that
under the bargaining contract with the Union, Staley could
call back employees by name under the 2-year option pro-
vision. It appears that on this occasion Green also attempt-
ed to explain to Donohue that because he was still on sus-
pension from the Housing Authority as of July 1, 1977, the
effective date specified in the constitutional amendment,
' It appears that the Union maintained a separate membership for the
employees of the Housing Authority. who were considered civil service em-
ployee members Moreover. the) were nor, required to pay initiation fees.
but the) did pay dues.
6See Resp : xh 9.
553
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was not working within the meaning of the amendment
and, thus, probably did not qualify for admission. Green
further advised Donohue that the status of all of the men
that had been suspended was in a state of confusion at that
time and that the executive board was attempting to have
the matter clarified.
This matter was then brought before the Union's execu-
tive board, and it was determined that unless an employee
was actually working for the Housing Authority on July 1,
1977, he would not be eligible to receive general member-
ship status pursuant to the constitutional amendment.
The General Counsel argues that at the time Donohue
requested referral by the Union to Staley, he had not yet
resigned from the Housing Authority and was refused re-
ferral on the grounds that he was not a member of the
Union.
As pointed out, Donohue was a civil service employee
member of the Union, and in May 1977, the Union
amended its constitution to permit civil service employee
members, upon payment of an initiation fee, to obtain reg-
ular membership in the Union. The amendment provided
that civil service employee members would be eligible for
regular membership provided that they were working on or
after July 1, 1977, and were employed as of the date they
desired to exercise this option. When Donohue inquired
about the matter in August, 1977, the question was submit-
ted to the Union's executive board, and it determined that
inasmuch as Donohue and the other 75 employees who
were also on suspension as of July 1, 1977, and had been
on suspension since August 1976, they were not to be con-
sidered as working on the critical date, they were ineligible
for regular membership. As also indicated, the General
Counsel has offered no evidence to undermine or attach
this decision of the Union's executive board.
Counsel for the Union further points out and argues
that, even assuming that Donohue had obtained regular
membership in the Union, he still would not have been
entitled to a referral to Staley, as the bargaining agreement
provided an open employment list which consisted of
many employees, and who were entitled to preference to
any job that Staley or any other employer might have had,
and Donohue, who had not even registered for the open
employment list, was therefore entitled to any preference.
Moreover, there is no evidence that Staley ever requested
the Union to refer Donohue or ever even called the Union
for an elevator mechanic.
I am in agreement that the record in this case is totally
devoid of any evidence of animosity or hostility by the
Union toward Lawrence or Donohue. In the final analysis,
it appears that the Union was interested only in enforcing
its bargaining agreement as the contract had been inter-
preted and applied by the parties.
CONCLUSIONS OF LAW
1. The Respondent Union has not violated the Act as
alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issued the following recommended:
ORDER 7
The complaint is dismissed in its entirety.
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 findings,
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.
554