NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
International
International
March 22, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Walsh
On January 25, 2006, Administrative Law Judge Gregory Z. Meyerson issued the attached decision. The Respondents, International Union of Elevator Constructors and its Local Union, Local 18, filed exceptions and supporting briefs, 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 decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Order.2
The judge found that the Respondents violated Section 8(b)(1)(A) of the Act by disciplining employee Scott Congrove for engaging in protected activity. The judge also found that the Respondents violated Section 8(b)(1)(B) by disciplining Supervisor Scott Cutler. We agree that the Respondents violated Section 8(b)(1)(A) by their discipline of Congrove.3 However, contrary to the judge, and as explained below, we find that the Respondents did not violate Section 8(b)(1)(B) by disciplining Cutler.
Facts
The Employer constructs and installs elevators and escalators. The Respondents have represented the Employer’s employees since at least July 2002. The current collective-bargaining agreement, called the Standard Agreement, is in effect from July 9, 2002, to July 8, 2007.
On February 5, 2004, the Employer had a 5-person crew
assigned to the Morongo Casino in
As the mechanic-in-charge, Cutler’s duties consisted of assigning work to the mechanics, keeping track of payroll, authorizing overtime, and keeping track of the hours worked by the employees on the various crews. Cutler informally resolved employee payroll disputes and authorized “cartage” payments to employees who spent their own money on the Employer’s business. Cutler did not formally discipline employees, but reported instances of misconduct to Gibas. When doing so, Cutler sent the affected employees back to headquarters for Gibas to determine the appropriate discipline. Cutler had no authority to resolve formal grievances, which were handled by Gibas.
Cutler ensured that all crews had the correct ratio of mechanics and helpers required by the Standard Agreement. Cutler was also responsible for ensuring that materials arriving on site did not violate the Standard Agreement’s provisions regarding prefabricated parts. For instance, if a prefabricated elevator was delivered that violated the requirements of the Standard Agreement, Cutler directed employees to disassemble the prefabricated portion, and to remount and align the parts properly.
On February 5, 2004,4 Cutler and his crew were scheduled to raise two escalators. However, Cutler was informed by the general contractor that the typical method of raising escalators (i.e., hoisting the escalator in place by using a pulley attached to the building steel) was not possible, because the escalators were unusually large and the steel could not support their weight. Cutler telephoned Gibas and informed him of the problem. Gibas, in turn, called the Employer’s tool shop to inquire as to the availability of a gantry.5 Gibas was told that the tool shop did not possess a gantry large enough to hoist the escalators. Gibas then inquired as to the availability of outside companies with the equipment necessary to complete the job, and was referred by the tool shop to an outside contractor, Halbert Brothers. Gibas hired Halbert Brothers to provide and set up the gantry.
Halbert Brothers’ employees, who were represented by another union, the Ironworkers, arrived at the Morongo site later that day. The Employer’s employees used forklifts to remove the gantry parts from the truck, and Halbert Brothers’ employees then assembled the gantry. Construction of the gantry took 2 days. After the construction was completed, the Employer’s employees used the gantry to raise the escalators. Thereafter, Halbert Brothers’ employees disassembled the gantry, and the Employer’s employees then removed the gantry parts and placed them onto the trucks.
A few days later, Respondent Local 18’s business agent, John Holzer, came to inspect the Morongo site. Upon inspecting the escalators, Holzer noticed that the escalator contained a number of prefabricated parts, and he informed Cutler that the use of those parts violated the Standard Agreement. Cutler, in turn, informed Holzer about the Employer’s use of the Ironworkers’ members to hoist the escalators into place. Holzer told Cutler that using a composite crew of Ironworkers and the Employer’s employees to construct the gantry was an additional violation of the Standard Agreement. Holzer then called Gibas and informed him that the Employer had violated the Standard Agreement by installing escalators with prefabricated parts and by using a composite crew to hoist the escalators into place. Holzer thereafter filed a grievance against the Employer over this matter, which the parties later settled.
On March 5, Respondent Local 18 initiated intraunion disciplinary proceedings against each employee of the 5-member crew at the Morongo site, including Cutler.6 The disciplinary charge described Cutler’s offense as “work[ing] with a composite crew of Ironworkers and Elevator Const[ructors] in rigging and [i]nstall of Escalators,” whereby Cutler was alleged to have failed to abide by the Standard Agreement’s provision governing work jurisdiction and to have violated his oath as a union member.
Respondent Local 18 ultimately found Cutler “guilty” of the charges and fined him $4000. Cutler was ordered to pay $1000 immediately, with the remaining $3000 to be held in abeyance for a period of 5 years but payable in the event of a subsequent conviction. Cutler appealed his fines to the Respondent International Union. In his appeal, Cutler wrote:
What the E-Board does not understand is that my boss Jeff Gibas instructed me to work with the certified gantry that the rigging company put together to perform the work on the escalators, . . . which I did. I could not control whether Otis hired a rigging company or not. If my supervisor instructs me to do something, if its [sic] safe I do it. If I don’t do what my supervisor instructs me to do, there’s a chance I could get fired.
The appeal was heard by the Respondent International Union on November 8. By letter dated January 10, 2005, the Respondent International Union denied Cutler’s appeal and raised the portion of the fine that Cutler was required to pay to $2000. The Respondent International Union informed Cutler that he could further appeal his discipline at the next meeting of the International Union, but there is no evidence that Cutler did so.
The judge found that the Respondents
violated Section 8(b)(1)(B) by disciplining Cutler. The judge first found that Cutler, in
addition to being a statutory supervisor, was the Employer’s representative for
the purposes of collective bargaining and adjustment of grievances within the
meaning of Section 8(b)(1)(B). In so finding,
the judge relied on the evidence of Cutler’s authority to resolve wage disputes
and his involvement in the subcontracting of the gantry work. In particular, the judge observed that Union Representative
Holzer, when he learned of the potential contract violations relating to the
installation of the escalators, first approached Cutler to voice his
disapproval.
The judge rejected the Respondents’
argument that, to find an 8(b)(1)(B) violation, the Board must find that the
supervisor-member was disciplined for conduct involving collective bargaining
or grievance adjustment. In rejecting
this argument, the judge found inapplicable Sheet
Metal Workers Local 33 (Cabell Sheet Metal & Roofing), 316 NLRB 504 fn.
1 (1995). Although acknowledging that
this requirement was stated in Cabell,
the judge stated that “other, more recent Board cases . . . do not seem to have
this requirement.”7 The judge further found that, even assuming
that the requirement applied, it was satisfied by evidence showing that Cutler
was disciplined for interpreting the contract to permit the construction of the
gantry by nonmembers. The judge
concluded, therefore, that the Respondents’ actions violated Section
8(b)(1)(B), because they would have an adverse impact on Cutler’s future performance
as a management representative and grievance adjuster.
The Respondents except to the
judge’s findings regarding Cutler on the grounds that he was not the Employer’s
representative for the purposes of collective bargaining or grievance
adjustment, and that, even if he was, he was not engaged in those duties at the
time of the incident for which he was disciplined.
Contrary to the judge, and as
explained below, we find that the Respondents did not violate Section
8(b)(1)(B) of the Act by their discipline of Cutler.
Discussion
Section 8(b)(1)(B) provides that
“[i]t shall be an unfair labor practice for a labor organization or its agents
. . . to restrain or coerce . . . an employer in the selection of his
representatives for the purposes of collective bargaining or adjustment of
grievances.” That provision restricts a
union’s right to discipline members who exercise collective-bargaining or
grievance-adjustment duties on behalf of their employer. Not all such discipline is prohibited under
Section 8(b)(1)(B), however. The section
prohibits only discipline that “may
adversely affect [a] supervisor’s conduct in performing the duties of, and
acting in his capacity as, grievance adjuster or collective bargainer on behalf
of the employer.” Florida
Power & Light Co. v. Electrical Workers Local 641, 417
Accordingly, our determination
of whether the Respondents’ discipline of Cutler was unlawful requires us to
decide whether he was disciplined for engaging in either collective bargaining
or grievance adjustment. We find that
the evidence establishes that he was not.
Cutler was, it is undisputed, a
statutory supervisor, and he did, to a limited degree, engage in adjustment of
minor grievances and contract interpretation.
There is no evidence, however, that Cutler’s discipline was in any way
related to his performance of those duties.
According to the Respondent Local’s charges against him, Cutler’s
offending conduct was working with a composite crew of members and nonmembers. The
Nor, during the incident referenced
in the charges, did Cutler engage in grievance adjustment or collective bargaining. Rather, his conduct consisted of working with
his fellow employees to unload the gantry materials and put them into position
for assembly, standing aside while the contractor’s employees assembled the
gantry, hoisting the escalators using the gantry, and reloading the gantry
materials after they had been disassembled by the contractor’s employees. At most, Cutler’s conduct consisted of ordinary supervisory duties, and
discipline for those kinds of duties, as we have shown above, is insufficient
to invoke Section 8(b)(1)(B). Because
the Respondents’ discipline of Cutler was unrelated to whatever 8(b)(1)(B)
responsibilities he might have exercised at other times, there has been no
showing that his discipline would foreseeably have an adverse effect on his
future performance of 8(b)(1)(B) activities.
Contrary to the judge and our
dissenting colleague, the evidence does not establish that Cutler was
disciplined because he interpreted the contract to permit the Employer to use a
contractor employing nonmembers to construct the gantry.9 The Unions’ charges against Cutler made no
such reference. Moreover, the evidence
shows plainly that it was Gibas, and not Cutler, who decided to hire an outside
contractor to bring in and assemble the gantry.
Although the record shows that Cutler shared Gibas’ concern that Otis
employees could not assemble the gantry themselves, there is no evidence that
Cutler made any decision concerning the subcontracting of the gantry assembly
work, or even that he recommended that decision. Cutler’s role in those events—as he stated himself
in his appeal of his fine—was merely to pass along to Superintendent Gibas the
general contractor’s view that the building steel was not strong enough to
hoist the escalators, and then to follow Gibas’ instructions by directing the Employer’s
employees to assist in the erection of the gantry. That conduct does not constitute 8(b)(1)(B)
activity.10
In sum, because Cutler was not
disciplined by the Respondents for engaging in contract interpretation or
grievance adjustment, the Respondents’ discipline of him did not violate Section
8(b)(1)(B). We therefore reverse the
judge on that issue and dismiss that portion of the complaint.
ORDER
The International
1. Cease and desist from
(a) Filing internal-union charges against, fining, or otherwise disciplining union members because of actions taken by them as employees in following the direction of their employer to work with a composite crew in rigging and installing escalators.
(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Dismiss the internal-union charges filed and rescind the fines levied against Scott Congrove, refund any moneys he may have paid on account of the fines assessed against him, and reimburse him for any costs incurred by him in defending himself at the internal-union hearings, plus interest.
(b) Within 14 days from the date of the Board’s Order, remove all records of the internal-union charges, resulting proceedings, and fines from Scott Congrove’s files and, within 3 days thereafter, notify Congrove in writing that these actions have been taken and that the charges, resulting proceedings, and fines will not be used against him in any way.
(c) Within 14 days after service by the Region, post at
its headquarters, located in
(d) Within 14 days after service by the Region, the Respondents
shall duplicate and mail, at their own expense, a signed copy of the notice to
all their members who were employed by Otis Elevator Company at the Morongo
Casino jobsite, in
(e) Sign and return to the Regional Director sufficient copies for posting by Otis Elevator Company, if willing, at all places where notices to employees are customarily posted.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region at testing to the steps that each of the Respondents have taken to comply.
Dated,
Wilma B. Liebman, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
Chairman Battista, dissenting in part.
I agree with my colleagues that the judge correctly found that the Respondents violated Section 8(b)(1)(A) of the Act by disciplining Scott Congrove for engaging in protected activity.1 However, I also find, in agreement with the judge, that the Respondents violated Section 8(b)(1)(B) of the Act by their discipline of Scott Cutler. Contrary to my colleagues, I find that Cutler, the Employer’s representative for purposes of grievance adjustment and contract interpretation, was disciplined for engaging in that activity.
As mechanic-in-charge, Cutler is
often the only managerial representative on the Employer’s jobsites. Cutler adjusts hours, settles pay grievances
with employees, and handles disciplinary issues with employees.
Cutler was disciplined for his
conduct regarding the use of a composite crew in connection with the gantry.2
On February 5, 2004, Cutler was
the only management representative on the worksite. In that capacity, he initiated the chain of
events that led to the Employer’s use of Ironworkers to assemble the
gantry. Cutler made the initial
determination that the Employer’s own equipment was insufficient to hoist the
escalator. He told Jeffrey Gibas of his
determination and told Gibas to “order me a crane or order me a gantry.” Although Gibas made the choice as between a
crane and a gantry, it was Cutler who decided that the Employer’s own equipment
was insufficient. Thus, the decision to
contract out the work, or at least the effective recommendation to do so, was
made by Cutler.
Further, once the Ironworkers
arrived, Cutler ordered the employees to cease working while the Ironworkers
assembled the gantry. There is no
evidence that Gibas advised Cutler to do so.
Had Cutler disagreed with the Ironworkers’ work on the site, he could
have notified Gibas of a potential problem, just as he did when he initially
determined that a gantry was needed, and just as he normally does when
prefabricated equipment arrives on the jobsite.
However, Cutler did not do so, because, as he testified at the hearing, “To
be honest with you, I didn’t think it would be a big deal. [Halbert Brothers] is a Union company. I didn’t think that the [Respondents] would
be making a big deal about another Union company. That’s my own interpretation.” Thus, Cutler did not object to the
Ironworkers’ work on the jobsite because it was his view that this was
permissible. As it turned out, the
In short, Cutler was not simply
a conduit for the carrying out of a superior’s orders. He made his own decisions. This involved the decision to direct his crew to refrain from working
while Ironworkers assembled and disassembled the gantry.
Given these facts, I find that
Cutler was engaged in 8(b)(1)(B) activity.
Further, even if Cutler’s actions did not involve 8(b)(1)(B) activity,
it is clear that the Respondents’ discipline of Cutler would have an adverse
impact on his future performance of contract interpretation and grievance
adjustment on behalf of the Employer.3
The
This is precisely the type of
chilling effect that Section 8(b)(1)(B) seeks to proscribe. For instance, in Elevator Constructors Local 36 (Montgomery Elevator Co.), 305 NLRB
53 (1991), the Board adopted a judge’s finding of a violation for disciplining
a mechanic-in-charge who directed that employees hoist an elevator with certain
preassembled parts attached, in possible violation of the contract. The Board agreed with the judge’s finding
that the mechanic-in-charge was engaged in 8(b)(1)(B) contract interpretation
and that the union unlawfully disciplined him for performing his duties. The judge in Montgomery Elevator found that the union’s discipline would “compel
the Employer’s foremen to take pro-union positions in interpreting the
collective-bargaining agreement.” The
judge concluded that “the purpose and effect of the Respondent’s conduct
literally and directly contravened the statutory policy of allowing the Employer
an unimpeded choice of representatives for collective bargaining and settlement
of grievances.”
Here, Cutler was similarly
performing his duties as mechanic-in-charge by directing that the Employer’s
employees step aside while the Ironworkers assembled the gantry. As in
Permitting the Respondents to
discipline Cutler in these circumstances, is contrary to the intent and purpose
of
Section 8(b)(1)(B). I would therefore
find the violation.4
Dated,
Robert J. Battista, Chairman
National
Labor Relations Board
APPENDIX
Notice To Members and
Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not file internal-union charges against, fine, or otherwise discipline our union members because of actions taken by them as employees in following the direction of their employer to work with a composite crew in rigging and installing escalators.
We will not in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will dismiss the internal-union charges filed and rescind the fines levied against Scott Congrove, refund any moneys he may have paid on account of the fines assessed against him, and reimburse him for any costs incurred by him in defending himself at the internal-union hearings, plus interest.
We will, within 14 days of the date of the Board’s Order, remove all records of the internal-union charges, resulting proceedings, and fines from Scott Congrove’s files and, we will, within 3 days thereafter, notify Scott Congrove in writing that these actions have been taken and that the charges, resulting proceedings, and fines will not be used against him in any way.
International
International
Steve L. Hernandez, Esq., for the General Counsel.
Keith R. Bolek, Esq., of
J. David Sackman, Esq., of
Johan W. E. Maitland, Esq., of
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law
Judge.
Pursuant to notice, I heard this case in
All parties appeared at the hearing, and I provided them with the full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally and file briefs. Based upon the record, my consideration of the briefs filed by counsel for each party, and my observation of the demeanor of the witnesses, I now make the following1
Findings of Fact
i.
jurisdiction
The complaint alleges,
the Respondents’ answers admit, and I find that the Employer, a
Accordingly, I conclude that Otis is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
ii. organizations
The complaint alleges, the Respondents’ answers admit, and I find that at all times material, the Respondent International Union and the Respondent Local Union have each been labor organizations within the meaning of Section 2(5) of the Act.
iii. the alleged unfair labor practices
A. The Dispute
The dispute in this
matter had its genesis at the Morongo Casino in
Pursuant to the disciplinary process, the Respondent Local Union fined its members Scott Congrove and Scott Cutler. Following the appeals of Congrove and Cutler to the Respondent International Union, the International Union denied their appeals and increased the amount of their fines. Neither Congrove nor Cutler has further appealed their fines through the Respondents’ internal disciplinary appeal process. The Employer settled the grievance filed by the Respondents by the payment of an amount of money considered to be the equivalent of the amount that would have been earned by the Employer’s elevator constructors had they assembled the gantry and raised the escalators without the assistance of the subcontractor’s employees.
It is the position of the General Counsel and the Charging Party that by fining Congrove, the Respondents have attempted to prevent him from performing his employment duties as directed by the Employer. The complaint alleges this conduct as restraining and coercing employees in the exercise of their Section 7 rights in violation of Section 8(b)(1)(A) of the Act. The General Counsel and the Charging Party contend that Cutler, who held the position of mechanic in charge on the Morongo project, was a supervisor, collective-bargaining representative, and grievance adjuster of the Employer, as defined by the Act. They further contend that the Respondents fined Cutler because he interpreted the collective-bargaining agreement on behalf of the Employer in a manner inconsistent with the Respondents’ interpretation of the agreement. It is alleged in the complaint that this conduct restrained and coerced the Employer in the selection of its collective-bargaining representative or grievance adjuster in violation of Section 8(b)(1)(B) of the Act.
The Respondents deny that Cutler was the Employer’s representative for the purpose of collective bargaining or adjustment of grievances, and deny that they have unlawfully restrained or coerced either the Employer or employees in violation of the Act. It is the position of the Respondents that the Employer violated the collective-bargaining agreement when it subcontracted the work of assembling the gantry and raising the escalators. Further, the Respondents argue that Cutler and Congrove, who were members of the Local Union and the International Union, had aided the Employer in its breach of the contract by working in a composite crew to assemble the gantry and raise the escalators. Under the terms of the contract, this work was allegedly to be performed exclusively by elevator constructors represented by the Respondents. According to the Respondents, by their conduct, Cutler and Congrove were in violation of their oath to the Local and International Union taken at the time they became members, as well as having failed to abide by the terms of the collective-bargaining agreement. It is the position of the Respondents that their combined action in disciplining Cutler and Congrove was proper and lawful and specifically in conformity with the proviso found in Section 8(b)(1)(A) of the Act, which reads “[t]hat this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.”
At the commencement of the trial in this matter, each of the Respondents filed a series of written motions seeking a dismissal of the unfair labor practice charges, or, in the alternative, a deferral of those charges. The Respondent International Union filed four such motions captioned as follows: Motion (1) To Dismiss for Failure to State a Claim; (2) To Dismiss for Bar of the Statute of Limitations; (3) For Deferral to Pending Internal Union Discipline Proceedings; and (4) For Postarbitration Deferral to Grievance Resolution. (R. Exh. 1.) The Respondent Local Union also filed four similar motions essentially entitled as follows: Motion (1) To Dismiss for Failure to State a Claim of an Unfair Labor Practice Under Section of 8(b)(1)(A) of the Act; (2) To Dismiss for Failure to State a Claim of an Unfair Labor Practice Under Section 8(b)(1)(B) of the Act; (3) For Deferral to Pending Internal Union Discipline Proceedings; and (4) For Postarbitration Deferral to Grievance Resolution. (R. Exh. 2.)
Counsel for the General Counsel and counsel for the Charging Party responded orally to the Respondents’ motions, opposing each and every one. Upon reflection, I reserved ruling on the Respondents’ motions until such time as I issue my decision in this case. The General Counsel and the Charging Party were advised to address the Respondents’ motions in their respective posthearing briefs, with the Respondents’ given leave to supplement their arguments in their posthearing briefs. Accordingly, later in this decision I will rule on the Respondents’ motions.
B. The Facts
For the most part, the underlying facts in this case are not in dispute. There was little conflict in the testimony of the various witnesses. Further, at the commencement of the hearing, the parties entered into a lengthy written “Stipulation of Facts,” which stipulation2 was admitted into evidence as a joint exhibit (Jt. Exh. 32) along with a series of attachments, also admitted as joint exhibits (Jt. Exhs. 1–31).
As reflected in the stipulation, since at least July 9, 2002, the Respondent International Union, for and on behalf of its local unions, including the Respondent Local Union, has been recognized by the Employer as the exclusive collective-bargaining representative of its elevator constructors. This recognition has been embodied in a collective-bargaining agreement, which by its terms is effective from July 9, 2002, through July 8, 2007. (Jt. Exh. 1.) Throughout the hearing, the parties referred to this contract as the “standard agreement.”3
The Employer is a
nationwide company engaged in the manufacture, installation, repair,
modernization, maintenance, and servicing of elevators and escalators
throughout the
Jeffrey Gibas is
employed by Otis as a construction and modernization superintendent. At the time of the events in question, he was
the person responsible for jobsite management of all the Employer’s projects in
the
According to Gibas’
testimony, during the construction on the project, he was informed by Cutler
that the project general contractor, Perini Construction, had indicated that
the escalator hoisting could not be accomplished by using the steel from the
floor above. Frequently on a
construction project, an escalator is hoisted into place by using the building
floor steel from the floor above to hold the weight as the escalator is raised. However, in this instance, Perini informed
Cutler that the building floor steel would not hold the weight of the two
escalators that Otis needed to raise.
Gibas and Cutler discussed the problem, and Gibas contacted the Employer’s “tool shop” to determine
whether it had a “gantry” capable of “hoisting and rigging” a 10-ton
weight. Gibas estimated the two
escalators to weigh approximately 16,000 to 17,000 pounds each.
A gantry is a bridge like framework, comprised of two steel legs holding up a horizontal beam. Rigging is attached to the escalator and to the beam, and the escalator is then hoisted into position, with its weight temporarily held in place by the gantry. The actual hoisting is accomplished by means of a “chain fall,” which in this case Gibas testified was “a hand driven pull chain.”
Gibas testified that the Employer’s tool shop did not have a gantry that could support the weight of the escalators that were going into the Morongo project. Apparently smaller gantries were available, but none capable of handling the weight required. Upon further inquiry, Gibas was directed to a hoisting and rigging company, Halbert Brothers. He contacted this company, determined that they had the necessary equipment, and ultimately subcontracted with them to place a gantry on the project. He testified, “So I hired them to bring it down. They stipulated that we pull it off the truck, get it into the building, and fork it up to the second floor. Then they would build the gantry and we’d be able to use the gantry.” When asked on direct examination why the Otis employees did not build the gantry themselves, Gibas responded, “Well safety—that’s not our equipment. We didn’t want the responsibility or liability to that.”
It is undisputed that the gantry arrived on the project on February 5, 2004.4 The Halbert Brothers’ employees who accompanied the gantry were represented by the Ironworkers Union. It was the testimony of Scott Cutler that when the gantry arrived, the elevator constructors employed by Otis “took the forklift and we took the materials off the truck and brought it into the building, raised it up to the second level, which is the mezzanine level, put it down, and then they [the Halbert Brothers’ employees] took it from there and assembled the gantry.” Cutler repeatedly made it clear in his testimony, which was unchallenged by any other witness, that it was the elevator constructors employed by Otis who unloaded the gantry materials from the truck, took them up to the second floor, and placed the materials where the ironworkers could begin to assemble the gantry.
However, the Halbert Brothers’ employees had provided the wrong size horizontal beam and chain fall, used to hoist the escalator into position, and so they had to replace the materials with a larger beam and chain fall. It appears that the replacement materials were not in place until the following day, February 6. In any event, Cutler testified that the ironworkers ultimately assembled the gantry, which was Halbert Brothers’ equipment. Once the gantry was assembled, the elevator constructors rigged it to the first escalator and hoisted the escalator into position. The process was then repeated for the second escalator. After both escalators were in position in their respective “well ways,” the ironworkers disassembled the gantry. The escalator constructors then moved the gantry materials to the ground floor and into the truck. It was Cutler’s testimony that the only role the ironworkers played in the process was to assemble and disassemble the gantry. This testimony was unrebutted, and was supported by the testimony of Gibas, to the extent that he was on the project site on February 6 when the second of the two escalators was hoisted into place.
At the time of the events in question, the Employer’s elevator constructor crew on the Morongo project installing the escalators was comprised of five employees, Scott Cutler, Scott Congrove, Rob Ranier, Mark Braley, and Steve Bertsch. Scott Congrove was at the time classified as a “temporary mechanic.”5 Congrove’s testimony also supports Cutler’s assertion that only the elevator constructors employed by Otis were involved in rigging the escalators, pulling the chain, and hoisting the escalators into place. The ironworkers employed by Halbert Brothers did not participate in this effort. However, as the Otis employees were hoisting the first escalator into place, the chain pull got tangled. In order to free the chain, an ironworker employed by Halbert Brothers walked out on the top of the gantry and banged on the chain with a hammer, causing it to become untangled. While this task was performed by an ironworker, Cutler justified the effort because the chain pull was Halbert Brothers’ equipment, part of the gantry materials.
Cutler’s testimony emphasized that while the Ironworkers were assembling and disassembling the gantry, the elevator constructors watched them work and remained “on the clock.” Thus, the elevator constructors were paid for this time, and, in fact, they earned overtime on both February 5 and 6.
Cutler defends the decision not to use the elevator constructors to assemble and dissemble the gantry on the basis of safety. The gantry equipment was owned by Halbert Brothers and its employees were most familiar with the equipment. It is undisputed that elevator constructors employed by Otis do regularly hoist escalators into place on various projects under the terms of the collective-bargaining agreement between the parties. However, both Cutler and Gibas testified that typically these involve loads much lighter than those being hoisted on the Morongo project. The Employer’s witnesses testified that its elevator constructors had no experience with the assembly of a gantry large enough to lift such excessive weight. The entire operation was unusual, and necessitated because the general contractor would not permit the Employer to hoist using the building steel. The Employer argues that in such a circumstance, the only practical solution was to use a subcontractor experienced in hoisting very heavy loads utilizing a large gantry.
John Holzer is a business agent employed by the Respondent Local Union. Several days after the escalators were hoisted into place at the Morongo project, Holzer came out to the project on one of his periodic inspections. He testified that this was his third trip to the jobsite, and one of the reasons he made the trip was because he was of the impression that the escalators had been installed. Holzer testified at length about problems the Respondents have had with Otis and other contractors signatory to the standard agreement regarding the use of prefabricated sections on those escalators installed by members of the bargaining unit represented by the Respondents.
When he arrived at the
project, Holzer went to the “well ways,” saw that the two escalators had been
hoisted into position, and noticed that the installation had been completed
using certain prefabricated sections.
Holzer believed these to constitute violations of the standard agreement
and he sought out Cutler to complain. In
the course of explaining to Cutler about the prefabrication violations, Cutler
mentioned to Holzer that it had been necessary to use a subcontractor to
assemble a gantry in order to hoist the escalators. Further, Holzer testified that Cutler told
him that “everybody hoisted on it . . . everybody took a pull on the chain.” Allegedly, Holzer asked Cutler specifically
whether that included the ironworkers, and Cutler answered in the
affirmative. According to Holzer, he
informed Cutler that allowing the ironworkers
to perform elevator constructors’ work in a “composite crew” with the Otis employees
was a violation of the contract. He told
Cutler that, “When it comes down to rigging, it’s our work and we don’t give
our work away.”
Cutler testified that Holzer spoke with him about the alleged contract violations for using prefabricated sections on the escalators and how the violations could be remedied by removing the prefabricated sections, and then reassembling them. According to Cutler, nothing else was discussed with Holzer. In any event, as noted above, those employees present on the project at the time the escalators were hoisted and who testified, namely Cutler, Congrove, and Gibas, all testified that the ironworkers did not perform any rigging or hoisting of the escalators.
When he returned to his office, Holzer called Jeff Gibas. Holzer testified that he informed Gibas that the contract had been violated on the Morongo project by the Employer’s use of prefabricated sections on the escalators.6 Also, he told Gibas that Otis violated the contract by the use of “composite crews” to perform the work of rigging and hoisting the escalators, which was work performed under the standard agreement by elevator constructors. Holzer informed Gibas that he intended to pursue the matter, and requested that Gibas send him “time tickets” for the project so that he could determine how much work was lost by the Otis crew. Gibas testified that Holzer called him complaining about the use of a composite crew on the Morongo project, specifically the use of ironworkers to perform the work of elevator constructors. According to Gibas, he told Holzer that the work provided for under the terms of the contract had been performed by elevator constructors, and not by any other employees. The two men agreed to set up a meeting to discuss this matter further.
Gibas and Holzer met approximately 1 week later to discuss this matter. According to Gibas, Holzer told him that he had been to the Morongo project and had spoken with Scott Cutler. Holzer said that Cutler told him that the ironworkers had rigged and hoisted the escalators. Gibas testified that he informed Hozler that Holzer was mistaken. Gibas told Hozler that he had been on the project the day the escalators were hoisted into position, and he had not seen the ironworkers doing any such work. Gibas informed Holzer that all the ironworkers had done was to build the gantry, which was then used by the elevator constructors. However, the two men continued to disagree. Gibas provided Holzer with the time tickets that Holzer had previously requested. The meeting apparently ended with Holzer telling Gibas that the Local Union was going to file a grievance against the Employer over the incident.
A grievance was ultimately filed by Holzer. There is some confusion as to when the grievance was actually filed, with two somewhat different grievance forms being admitted into evidence. One form shows the grievance as having been filed on February 20, 2004 (Jt. Exh. 29), and the other form shows as date of filing March 22, 2004 (CP Exh. 1). Since no party has taken the position that the grievance was filed untimely, I fail to see the significance of the exact filing date.7 In any event, as the grievance form with the filing date of February 20 is the more complete, containing the signed resolution of the grievance, I will assume it to be the more accurate document and accept the filing date as reflected on that document.
The grievance alleges a violation of the collective-bargaining agreement, specifically that the Employer’s use of a “rigging outfit to setup all rigging and hoist two (2) escalators in the well ways at the Morongo Casino Hotel” deprived the elevator constructors of the work they were entitled to perform under the terms of the contract. The remedy sought by the Respondent Local Union was the payment into the Local Union’s “Relief Fund” of an amount of money equal to the amount of wages allegedly lost by the elevator constructors not performing the work of rigging and hoisting the escalators.8
Jeffrey Ricapito is the Employer’s senior labor relations manager. He testified that after the Employer received a copy of the Local Union’s written grievance, he arranged a meeting to try and resolve the matter. According to Ricapito, he met at the Local Union’s office with Holzer, Larry Sakamoto, a regional director of the International Union, and Ernie Brown, a vice president of the International Union and a member of its executive board. However, the parties continued to disagree and there was no resolution of the grievance at this meeting.
Ricapito testified that the Employer ultimately decided to “resolve” the grievance, even though it did not believe that any violation of the contract had occurred. According to Ricapito, the Employer does not perform much escalator work, and the issue in dispute was not worth the effort to arbitrate. It appears from the grievance form that the resolution of the dispute consisted of the Employer agreeing to pay the moneys the Local Union contended were lost to the elevator constructors when ironworkers allegedly performed the rigging and hoisting of the two escalators at the Morongo project. The grievance form indicates that the matter was resolved on March 29, 2005, by Elizabeth Ceriello, who is the Employer’s labor relations manager, and Lawrence Sakamoto. (Jt. Exh. 29.)
It was Ricapito’s contention that the Employer did not intend for the resolution of this dispute to have any precedential value. He testified that had the parties intention been to do so, that the resolution would not have merely been set forth on the grievance form, but, rather, on a separate settlement agreement. On the other hand, Sakamoto, who signed off on the resolution on behalf of the Respondents, testified that it was not unusual for Otis to resolve a dispute with a notation on the grievance form itself, without a separate settlement document, and the resolution to still have precedential value. According to Sakamoto, where the Employer did not intend for this to be so, the Employer normally inserted either “nonadmission language” or “nonprecedent language” into a separate settlement document or onto the grievance form itself. He noted that such was not done in this case. Sakamoto and Ceriello had apparently not met personally to resolve this matter, but had conferred and come to their resolution over the telephone.
John Holzer filed intraunion charges against each of the five elevator constructors employed by Otis at the Morongo project on February 5 and 6, who comprised the crew installing the escalators. At the time of the events in question, each man was a member of the Respondent Local Union.9 The charges against Cutler and Congrove are each dated March 5, and allege two “punishable offenses” under article 18, section 1, of the Respondent International’s constitution and bylaws. Specifically enumerated are parts (4) and (6) of the section, which relate respectively to a failure or refusal to abide by the provisions of the standard agreement, or the provisions of any local union agreement; and a failure or refusal to abide by an oath taken at the time an individual becomes a member of the International Union or a local union. The “offense” listed on the respective charges is that Cutler and Congrove worked with a “composite crew” of ironworkers and elevator constructors in rigging and installing two escalators at the Morongo jobsite. It appears that this is alleged to be a violation of the standard agreement, specifically article IV, paragraphs 1 and 2 (p. 5), which deal with work jurisdiction. (Jt. Exhs. 2, 15.)
On about April 10, the Respondent Local Union held a hearing on the intraunion charges filed against Cutler and Congrove. Jeff Gibas and Sam Goe, another Otis manager, were present at the local union hall with the intention of speaking on behalf of Cutler and Congrove at their hearings. However, John Holzer objected to the presence of Gibas and Goe, as they were not union members, and the Local Union executive board requested that they leave. Following the departure of Gibas and Goe, hearings were held for Cutler and Congrove, respectively. Holzer questioned each man about the events that occurred at the Morongo jobsite as it involved the work performed by the ironworkers on February 5 and 6. Recordings were apparently made of the hearings, which were then transcribed. The transcripts were admitted into evidence as joint exhibits, although the parties specifically declined to stipulate as to the accuracy of the transcripts. (Jt. Exhs. 4, 17.) In any event, Cutler testified at the unfair labor practice proceeding that the transcript of his union hearing appeared generally accurate.
The executive board of the Respondent Local Union found Cutler and Congrove “guilty” of the charges brought against them.10 Cutler was fined $2000 per offense for a total of $4000, with $1000 due immediately and $3000 to be held in abeyance for a period of 5 years and due and payable immediately upon conviction of any further offense against the Respondents. Congrove was fined $600 per offense for a total of $1200, with all but $200 to be held in abeyance for a period to 2 years and due and payable immediately upon conviction of any further offense against the Respondents. (Jt. Exhs. 5, 18.) Thereafter, the Respondent Local Union directed Cutler and Congrove to be present at a membership meeting of the Local Union where they, and the assembled membership, would be advised of the decision of the executive board. A meeting of the membership was subsequently held on May 12, at which time the decisions on the charges against Cutler and Congrove were read to the membership. (Jt. Exhs. 6, 19, 30.) It was the unrebutted testimony of John Holzer that it is the regular procedure of the Local Union, as provided for in its constitution and bylaws, to report the executive board’s decision regarding the disciplining of union members at the next scheduled membership meeting. (Jt. Exh. 28, pp. 15–16.) This apparently was the practice followed with the penalties issued to Cutler and Congrove.
On May 13, Cutler and
Congrove each received a letter from a representative of the Local Union executive
board informing them of the decision on the charges in their individual cases
and advising each of them of their right to appeal the action of the Local
Union to the executive board of the International Union. (Jt. Exhs. 7, 20.) By letters dated June 4, Cutler and Congrove
individually filed appeals with the International Union challenging the fines
issued to them by the Local Union executive board. (Jt. Exhs. 8, 21.) Following the International Union’s receipt
of Cutler’s and Congrove’s appeals, it directed the Local Union to furnish
certain information concerning the underlying issues in dispute, the procedural
history of the charges, the decision by the local executive board, and a justification
of that decision. The Local Union
responded to the information request by letters dated July 21, and submitted
certain documents to the International Union.
(Jt. Exhs. 10, 11, 23, 24.) By
separate letters dated August 16, the International Union informed Cutler and
Congrove that their individual appeals would be heard by the executive board of
the International Union on November 8, in
In individual letters dated January 10, 2005, the International Union informed the Local Union that the respective appeals by Cutler and Congrove had been denied by the International Union executive board.11 Further, the letter referring to Cutler indicated that the penalty against him had been modified by raising the fine to be paid immediately from $1000 to $2000, with the remaining $2000 to be held in abeyance for 5 years, provided that no additional violations occurred. The letter referring to Congrove indicated that the penalty against him had also been modified by raising the amount of the fine from $600 per offense to $2000 per offense, for a total of $4000, with $2000 to be paid immediately and $2000 to be held in abeyance for 5 years, provided that no additional violations occurred. Copies of these letters from the International Union were also sent to Cutler and Congrove, respectively. (Jt. Exhs. 13, 14, 26.)
John Holzer testified that Cutler and Congrove could have further appealed their fines to the international convention, which is held approximately every 5 years. The next convention is scheduled for September 2006. In order for such an appeal to be timely, an aggrieved member must assert his appeal right within 60 days of an adverse decision from the International Union executive board. Neither Cutler nor Congrove has filed an appeal to the international convention. Holzer testified that he knows of only two members who have ever filed an appeal to this level. Further, he indicated that Congrove has now paid his fine, but Cutler has not.
C. The Status of Scott Cutler
The parties strongly disagree as to the employment status of Scott Cutler at the time the work in question was performed at the Morongo project. It is the position of the General Counsel and the Employer that Cutler functioned, at least in part, as either a representative of the Employer for collective-bar-gaining purposes, and/or as its grievance adjuster. The Respondents dispute any such authority on the part of Cutler. This issue is critical in determining whether the Respondents’ conduct in disciplining Cutler constituted a violation of Section 8(b)(1)(B) of the Act. Only if Cutler functioned in this capacity could his fine by the Respondents be construed to unlawfully restrain or coerce the Employer.
On the Morongo project, the Employer classified Cutler as the mechanic in charge. Cutler testified that in early February 2004, at the time the escalators were installed, he was responsible for 7 to 10 crews of elevator constructors, with a total composition of 20 to 24 employees. According to Cutler, in his capacity as mechanic in charge, he assigned work to the other elevator constructors, authorized the performance of overtime work, as long as it was not “too much,” and was “in charge of the payroll” on the project. The authorization of overtime for a week or two “would be no problem.” However, if more overtime was needed, he would have to get authorization from his superior. Regarding payroll, Cutler carried a journal with him in which he recorded the hours worked by the men in the various crews. Later, if there was a problem, dispute, or grievance concerning the hours worked by a member of one of his crews, Cutler was authorized to resolve it, adjusting the payroll records if necessary. In addition to payroll for the Employer’s personnel, Cutler could authorize “cartage” reimbursement for employees who expended personal money on company-related business.12
It appears that Cutler assigned work on a regular basis to the elevator mechanics, helpers, and temporary mechanics employed by Otis on the Morongo project. While the collective-bargaining agreement provides that a helper normally work under the direction of a mechanic,13 Cutler was directly responsible for deciding what particular job tasks were performed by which specific mechanics and helpers. Further, there are apparently some jobs that helpers can perform without a mechanic in attendance, and Cutler was responsible for making such assignments as well.
According to Cutler, the standard agreement between the parties is fairly specific concerning the type of work that is within the jurisdiction of the Respondents, and must be performed by elevator constructors. However, he indicated there is some work that may not be as clearly defined in the contract. For example, he mentioned “prefabricated” sections of elevators or escalators, where a decision would need to be made whether the contract required that the section be disassembled and then reassembled by the elevator constructors. Cutler testified that as the mechanic in charge, he would make that determination himself, unless the matter involved was “something big,” in which event he would need to consult with Gibas.
Cutler did not have the authority to formally discipline an employee. However, it appears that he could informally, orally reprimand an employee for poor work performance or other inappropriate conduct.