FRANKLIN CLARENCE EDMONDS, Complainant
OPERATING ENGINEERS LOCAL 139, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:
1. In the seventh line of paragraph number 11 of the FINDINGS OF FACT, the word "president" is deleted and the word "superintendent" is substituted therefor. Also in this paragraph, where the names "Ken Servi" and the name "Servi" appear, those names are deleted and the names "Phil Verville" and "Verville" are substituted therefor.
2. In the second line of paragraph number 13 of the FINDINGS OF FACT, the following is inserted before the name "Servi": "Rawson's president, Ken"
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed August 27, 2010
edmonfr . rmd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Franklin Edmonds appeals from the ALJ's decision which dismissed his 2006 complaint claims that the respondent, Operating Engineers Local 139, discriminated against him with respect to his terms, conditions or privileges of labor organization membership because of his race and because he made a complaint against Operating Engineers Local 139 under the Wisconsin Fair Employment Act.
Local 139 is a state-wide labor organization that represents heavy equipment operators in the construction and other industries. Local 139 has a computerized referral system that enables its members to find work with any of Local 139's signatory employers. The referral system is non-exclusive, however, in that Local 139 members have the right to find work on their own with any signatory employer, and, signatory employers have the right, within certain guidelines, to request members by name.
Edmonds is a black male. As of October 2007 Edmonds had worked in the construction industry for nearly 29 years. Edmonds has been a member of Local 139 since 1993. Prior to that, he was member of Local 825 in New Jersey.
Some years ago, a class-action lawsuit, brought in part by Edmonds, was filed against Local 139 alleging race and sex discrimination with respect to the operation of its referral system. As part of a 2002 settlement reached in this lawsuit, University of Wisconsin Law School Professor Carin Clauss was appointed to monitor Local 139's operation of its referral hall through July 2006 to ensure that it was administered in a non-discriminatory manner.
Also, in 2005 Edmonds filed a complaint with the Equal Rights Division alleging that Local 139 had discriminated against him in violation of the Wisconsin Fair Employment Act.
Local 139 members fill out a "Basic Data Card" listing information such as which geographic area of the state they are willing to work in, the type of industry in which they wish to work, the types of equipment they are able to operate and their skill level. The members' information is entered into Local 139's computer system. When a contractor calls, a dispatcher records information about the type of job, the type of equipment the member will be operating, the hours of the work, the location of the job, the duration of the job, whether the contractor is seeking a journeyman or apprentice, whether the contractor is requesting an affirmative action referral and whether a drug test is required. The dispatcher then enters this information into the computer and a list of the members who most meet the qualifications of the contractor and their out-of-work date is generated. The dispatcher then begins calling the members whose skills meet the requirements of the job in order of their out-of-work date and the first member who agrees to accept the job is dispatched to the job.
In April of 2006, Guy Yuker was Local 139's business agent for the southern half of Milwaukee County and two other large projects. Cheryl Primeau was the central dispatcher.
Edmonds' complaint claims in the instant case relate to his dispatch to a job with Rawson Contractors, Inc. in Milwaukee in April 2006 and his layoff from a job he had with Wisconsin Power Constructors (WPC) in Port Washington in May 2006.
Edmonds claims that because of his race and because he had made a prior complaint under the WFEA against Local 139, Local 139 violated the "non-discriminatory referral procedure" in that Primeau dispatched him to Rawson Contractors on April 11, 2006, with instructions that he call Rawson's superintendent, Phil Verville, as opposed to dispatching him directly to the job site. Further, Edmonds believes that Rawson Contractors discriminated against him because of his race when Rawson Contractors failed to put him to work and that Local 139 did not properly pursue a grievance that it had filed on his behalf against Rawson Contractors. Regarding the grievance filed against Rawson Contractors, Edmonds has argued that Local 139 decided the basis for the grievance and to settle the grievance without consulting him, and that in settling the grievance Local 139 did so without obtaining necessary information (Rawson's payroll records) and that Local 139 settled the grievance for an amount less than what had been stated as the desired settlement when the grievance was filed.
Edmonds further claims that Local 139 retaliated against him by causing his layoff from his job at WPC in Port Washington because of his refusal to agree to the settlement agreement that Local 139 had reached with Rawson Contractors.
The evidence fails to establish that Local 139 discriminated against Edmonds with respect to his terms, conditions or privileges of labor organization membership because of his race or because he made a complaint against Operating Engineers Local 139 under the Act.
With respect to Edmonds' claim that Local 139 violated the "non-discriminatory referral procedure" by Primeau dispatching him to Rawson Contractors with instructions that he call Rawson's superintendent, Phil Verville, as opposed to dispatching him directly to the job site, the evidence shows that while Local 139 prefers that members be dispatched directly to the job site, it was not unusual for the dispatcher to instruct the member to contact the contractor directly. Furthermore, there is nothing in Local 139's non-discriminatory referral procedures which indicates that it is a violation of those procedures for the dispatcher to instruct the member to contact the contractor directly.
With respect to Edmonds' belief that Rawson Contractors discriminated against him because of his race when Rawson Contractors failed to put him to work, Local 139 had no reason to believe that Edmonds' race was the reason that Rawson Contractors did not put Edmonds to work on April 11, 2006. Yuker testified that first of all, the collective bargaining agreement which governed the relationship between Local 139 and Rawson Contractors (the Sewer, Water & Tunnel Master Agreement-Area I) provided that the employer had the right to refuse any applicant sent by Local 139. (Section 12.5 of the collective bargaining agreement states: "The Employer shall have the right to accept or reject, to employ or not to employ, any applicant referred by the Union.") Second, Yuker testified that on April 12, 2006, he went to Rawson Contractors' office to investigate what was going on with Edmonds' referral. Yuker testified that he spoke with Verville and learned that the job had been put on hold. Third, Yuker testified that by the time the job did start on April 24, 2006, Rawson Contractors had moved their manpower around, which was within their management rights, by working with employees who were either currently on their payroll or with employees who had worked with them in the past that were recalled to work. Furthermore, in addition to all of the above, Yuker testified that he had no reason to believe that Rawson was discriminating against Edmonds based on his race because Yuker knew that Lance Kelly, who is white, and was also dispatched to Rawson Contractors the same day as Edmonds, had been rejected for employment by Rawson Contractors.
With respect to settlement of the grievance for less than the amount stated as the desired settlement when the grievance was filed, Yuker testified that the settlement amount of $449.221(1) was the amount that Local 139 felt, if the grievance went to arbitration, based on its experience that an arbitrator would allow if the arbitrator agreed with the grievance 100%. Yuker admitted that he did not obtain payroll records from Rawson Contractors before Local 139 reached the settlement. Yuker explained, however, that he had learned that the number of hours being worked each day on the Rawson job was eight hours and that the job started on April 24, 2006, by speaking with operators working there. Yuker testified that the back pay was calculated based on the piece of equipment Edmonds was dispatched to operate (rubber tire loader) and its corresponding pay rate as provided in the Sewer, Water and Tunnel Master Agreement. Further, Yuker explained that the number of days of the back pay went from the time the Rawson job started on April 24, 2006, until Edmonds began employment at a higher rate of pay with WPC on April 27, 2006. Yuker testified that the settlement agreement Local 139 presented to Edmonds was made on Edmonds' behalf with the belief that this was the very best the Union could do even if Local 139 pushed the grievance all the way to arbitration.
Furthermore, after discussing the settlement agreement with Edmonds on May 12, 2006 and again on May 15, 2006, Yuker fully set forth Local 139's basis for agreeing to a settlement of the grievance with Rawson Contractors in a letter to Edmonds dated May 16, 2006. This letter reads, in pertinent part, as follows:
...as I explained to you, the violation of the contract is not so clear cut that we do not run the risk of losing your grievance before an arbitrator. The contract clearly provides Rawson in Article XII, Section 12.5 with the right not to hire anyone referred by the hiring hall:
The contractor shall have the right to accept or reject, to employ or not to employ, any applicant referred by the Union.
Here, when Rawson decided to not use you as a referral, but instead used for the project individuals either currently working for Rawson or who had worked for them in the past, Rawson could have utilized Section 12.5 to reject you as a referral. However, the Union believes the violation may have occurred in that Rawson never properly notified the Union that it was rejecting you as an applicant. While the contract is silent on Rawson's obligation to notify the Union that it has rejected an applicant, Rawson's doing so in the past at least gave us the argument that it should have done so in your case as well.
As you are aware, the Rawson job began on Monday, April 24, 2006. You were dispatched and began working at the "Port Washington Power Plant project" on Thursday, April 27, 2006 at a higher wage rate that (sic) you would have earned at the Rawson job. Accordingly, the difference in pay amounts to three (3) days of potential lost wages and benefits from the time you would have began the Rawson job to the time you started at the Port Washington job. This is the same remedy as would be awarded by the arbitrator if the grievance is sustained.
Based on this information, and the risk of losing the grievance before the arbitrator, the Union believes that the settlement of this matter with Rawson for three (3) days wages and benefits is more than fair. Further, as I explained to you, your signing of the settlement agreement will not release any claim against the Union which you currently have pending before the State of Wisconsin Department of Work Force Development. ... (Bold text and underlining in original.)
Also, with respect to the risk of losing a grievance in arbitration, Dennis Luciani, the president of Local 139 and a district manager, testified that an unfavorable arbitrator's ruling, even though it involved only one member's grievance, could have extreme consequences beyond that individual member's grievance. Luciani also testified that state-wide, Local 139 had filed over 100 grievances per year during the period from 2005 to January 2007, but only about three grievances were taken to arbitration each year.
On appeal from the ALJ's decision, Edmonds complains that the ALJ granted the respondent's motion to dismiss his complaint at the close of his case without the respondent ever calling one of its witnesses, several of whom the respondent had subpoenaed to testify and one of which (Professor Clauss) never showed up on the September 14, 2007 hearing date. (2) The ALJ did not err in granting the respondent's motion to dismiss at the close of Edmonds' case. First of all, with respect to Professor Clauss there was no subpoena violation. The record shows that because Professor Clauss had law classes to teach on September 14, rather than have her sitting and waiting to testify the respondent had her on call so she would not miss teaching her classes. Further, the record shows that as the hearing continued into the afternoon on September 14 and it became clear there would not be time to take her testimony that the respondent contacted Professor Clauss and advised her of this fact. Moreover, it was not Edmonds who had subpoenaed Professor Clauss but the respondent. Second, as the ALJ states in her Memorandum Opinion at page 11 of the decision, "...by the time Attorney Hlavin made the oral Motion to Dismiss the [c]omplaint at the close of Edmonds' case-in-chief, Attorney Hlavin had questioned [Terrance] McGowan [Local 139's business manager], Yuker, Luciani and Edmonds extensively and had essentially, presented the Respondent's defense on cross-examination." Third, as the commission has previously stated in Mazzara v. Endata, Inc. (LIRC, 01/09/87):
...If testimony from a respondent's witness or witnesses comprises an integral part of complainant's case, then it is the complainant's responsibility to call those witnesses adversely to ensure that this testimony will be part of the record. A complainant need not rely on cross-examination of respondent's witnesses to introduce the witnesses' testimony. But where a complainant neglects to call the witness adversely ... that complainant has no statutory or constitutional right to insist that, at a point where the examiner at his discretion to dismiss the complaint, the examiner continued the hearing, seemingly for the sole purpose of affording the complainant an opportunity to present the testimony from respondent's witnesses through cross-examination.
Furthermore, Edmonds has failed to identify what, if any, evidence he believes he could have elicited from the respondent's witnesses which would have supported his case.
Edmonds further asserts on appeal that Primeau had him call Rawson's superintendent, Phil Verville (not Rawson's president, Ken Servi) and that this is a violation of Operating Engineers Local 139's non-discriminatory referral procedure. However, the evidence shows, as previously noted above, that while Local 139 does prefer that members be dispatched directly to the work site, it was not unusual for the dispatcher to instruct the member to contact the contractor directly, and that there is nothing in Local 139's non-discriminatory referral procedures which indicates that it is a violation of those procedures for the dispatcher to instruct the member to contact the contractor directly.
Edmonds also argues that while the ALJ finds in paragraph number 13 that Primeau requested that Rawson submit its rejection of a white male referral (Lance Kelly) in writing, and that Rawson did so, the respondent did not request Rawson to submit anything in writing stating that it was rejecting him. Local 139's failure to request Rawson to submit a written statement that it was rejecting Edmonds for hire, however, provides no reason to conclude that Local 139's failure to make this request was due to Edmonds' race or because he had made a complaint against Local 139. There is no specific requirement in the collective bargaining agreement governing the referral system between Local 139 and Rawson Contractors which requires Rawson to submit a written statement that it was rejecting a dispatched member. Indeed, Yuker informed Edmonds of this very fact in the letter to Edmonds dated May 16, 2006, wherein Yuker stated that "the contract is silent on Rawson's obligation to notify the Union that it has rejected an applicant" and urged Edmonds to accept the settlement agreement in part due to the risk of losing the settlement before the arbitrator.
Edmonds argues that while in paragraph number 16 the ALJ finds that Verville mentioned to Yuker that he (Verville) was concerned that Edmonds was from Madison, when Yuker was asked to testify about his conversation with Verville, Yuker never stated that Verville was concerned about Edmonds being from Madison. However, the record is contrary to Edmonds' argument. In fact, the record shows that it was in response to questioning by Edmonds that Yuker testified that when he spoke to Verville at Rawson Contractors on April 12, 2006, Verville also mentioned being concerned that Edmonds was from Madison and that Verville prefers to hire people who lived closer (to Rawson's) because of the two-hour show-up provision. Many of Local 139's major contracts have a provision stating that when a member shows up to report for work but does not work (usually due to weather conditions) the member gets a minimum of two hours' pay for show-up time.
Edmonds disagrees with the ALJ's finding in paragraph number 17 that Yuker (after speaking to Verville) called him and told him the status of the Rawson project. It was Yuker's recollection that he did call Edmonds and tell him that the Rawson project was put on hold. Whether or not Yuker actually did provides no reason to conclude that Local 139 was discriminating or retaliating against Edmonds. Edmonds claims, however, that after the Rawson referral on April 11, 2006, he was denied job referrals by Local 139 up through April 25, 2006. Edmonds has failed to establish this claim. Edmonds admits that Local 139 did not remove him from the out-of-work list and that he remained eligible to receive job referrals after April 11. Further, the evidence shows that only members who have the skills that a contractor is looking for will show up on the list of members that will be referred to a job, and that a member could be first on the out-of-work list but not get called for a referral because the member does not have the skills sought by the contractor. Edmonds presented no evidence to show that he had been wrongfully denied any job referral.
Edmonds argues that in paragraph number 15 the ALJ omits a finding that when Clauss spoke to Yuker on April 14, 2006, Clauss advised Yuker that no dispatches were to be made to Rawson until the matter of his grievance was resolved. There is evidence in the record that Clauss gave this advice to Yuker. Citing the ALJ's paragraph number 28 finding that on or about April 24, 2006, business agent Goetz informed Yuker that the Rawson job for which Local 139 had originally dispatched him had started, Edmonds apparently argues that Local 139 dispatched workers to this job after Clauss had advised Local 139 that no dispatch was to be made to the Rawson project. However, no evidence exists to establish that Local 139 made any referrals to Rawson Contractors after Clauss had advised the Union not to. Edmonds admitted that he did not know of any referrals that were given to Rawson. The only testimony presented about whom and why they were working at Rawson Contractors after April 14, 2006, was presented by Yuker. Yuker testified that by the time the Rawson job did start Rawson had moved their manpower around, which was within their management rights, by working with employees who were either currently on their payroll or with employees that had worked with them in the past that were recalled to work.
Citing paragraph number 20's findings that Yuker and business agent Tim Goetz called him on the speaker phone on April 20, 2006, that Yuker asked "What the hell is going on with the Rawson job?", and that Yuker informed him that he could not find the job site, Edmonds complains that the ALJ denied his request to recall Yuker to testify. Edmonds apparently contends that his inability to recall Yuker prevented him from establishing that the findings made by the ALJ in paragraphs number 16 and 17 are inaccurate as they are based on testimony given by Yuker, which was not truthful. In paragraph number 16 the ALJ finds that Yuker and Goetz went to Rawson's office and spoke to Phil Verville, who stated that the job had been put on hold because of permit issues, that Verville mentioned being concerned that Edmonds was from Madison and preferring to hire operators who were closer to Rawson's location due to the 2-hour show-up provision. In paragraph number 17, the ALJ finds that after speaking to Verville, Yuker telephoned Edmonds and told him the status of the Rawson project, that Edmonds thought he should get 2 hours of show-up time for the Rawson job and Yuker agreed, and that Edmonds expressed a belief that Rawson was not hiring him because of his race, however, given the fact that Rawson had rejected Kelly, a Caucasian, immediately and that the Rawson job had not yet started, Yuker had no reason to believe that Edmonds' race was a factor.
The record shows that Edmonds had called Yuker to testify adversely on the first day of the hearing, at which time Edmonds questioned Yuker extensively, that the respondent then questioned Yuker, then Edmonds questioned Yuker again, after which the respondent and then Edmonds again questioned Yuker until Yuker was finally excused. It was at the continued hearing on October 8, 2007 when Edmonds requested to recall Yuker, asserting that Yuker had not testified truthfully at the hearing on September 14, 2007. The respondent objected to Edmonds recalling Yuker to raise a credibility issue at that time as inappropriate because Edmonds had had more than enough opportunity to question Yuker on the first day of the hearing if he believed Yuker did not testify truthfully. The ALJ noted that Edmonds had had a lengthy opportunity to question Yuker on the first day of the hearing, that the way for Edmonds to deal with his contention that Yuker did not testify truthfully was to either call another witness, which could be himself, to rebut what Yuker testified to, or, if Yuker was later called by the respondent to show through cross-examination that there was a credibility issue. The ALJ further explained that Edmonds did not get multiple opportunities to call a witness. Edmonds then stated that he would call himself to testify.
Considering the opportunity that Edmonds had to question Yuker on the first day of the hearing, it was not an abuse of discretion for the ALJ to deny Edmonds' request to recall Yuker again on October 8, 2007 to raise a credibility issue. Furthermore, there was nothing in Edmonds' testimony or in the evidence otherwise presented in this case which suggests that the findings in paragraphs numbered 16 and 17 made by the ALJ should not be affirmed or that the commission should reach a different result than that reached by the ALJ on Edmonds' complaint claims.
Edmonds also argues that Jeff Lemon, a representative in the class-action law suit, stated in a letter sent to Clauss that Rawson and Local 139 have "used certain actions" to discriminate against him. This argument fails for a number of reasons including the fact that not only does this document fail to appear in the record in this matter, but also the fact that this individual's mere assertion of having been discriminated against by Rawson and Local 139, without evidence that this has been proven in a court of law or administrative proceeding, provides no support for Edmonds' claims against Local 139.
Citing the ALJ's finding in paragraph number 28 that Yuker decided he did not need to obtain Rawson's payroll records (before agreeing to a settlement of the grievance with Rawson Contractors), Edmonds argues that Yuker decided this based on the word of two operating engineers working on the Rawson project that they were working 8 hours per day. Edmonds argues that Yuker's testimony about what the two workers told him is hearsay. Edmonds also argues that it was an "act of discrimination" for Local 139 to file a grievance on his behalf which requested Rawson's payroll records but then fail to obtain those records. Edmonds' arguments fail. While Yuker's testimony that the two operating engineers told him they were working 8 hours would be considered hearsay to the extent such testimony was offered to prove the truth of the matter asserted, this testimony was admissible to show Yuker's state of mind with respect to his belief regarding a need to obtain Rawson's payroll records. The workers that Yuker spoke to on April 24, 2006 were members of Local 139. Edmonds has presented no evidence which suggests that Yuker's reliance on the members' statements was unreasonable. Furthermore, Edmonds presented no evidence which contradicts the information that Yuker obtained from the Local 139 members regarding the number of hours that were being worked each day on the Rawson project.
Edmonds also argues that no evidence was presented at the hearing to show how many days a week were being worked on the Rawson job. However, regardless of how many days a week were being worked on the Rawson job, given that the job started on April 24, 2006 and that as of April 27, 2006, Edmonds was working at WPC at a higher rate of pay than what he would have been paid at Rawson Contractors, it was only three days' pay that Edmonds could have obtained if the grievance went all the way to arbitration and was successful.
Edmonds further questions how it could be known that the wage rate for the crawler hoe position at WPC was at a higher rate of pay than what he would have received for the Rawson job when the respondent never obtained the payroll records and time cards from Rawson. The simple answer is by comparing the pay rate for the crawler hoe position as provided under the collective bargaining between Local 139 and WPC (i.e., the Master Building Agreement Area I) with the pay rate for the rubber tire loader position as provided under the collective bargaining agreement between Local 139 and Rawson Contractors (i.e., the Sewer, Water & Tunnel Master Agreement Area I). According to these collective bargaining agreements, Edmonds was being paid $30.09 per hour for operating the crawler hoe at WPC, and that he would have been paid $26.10 per hour for work at Rawson Contractors.
Citing the testimony by Local 139 president, Dennis Luciani, that all grievances the respondent submitted as exhibits (Exhibits 43 and 44) were treated the same, Edmonds asserts that all the grievances submitted by the respondent involved payroll violations while his grievance was for violating the referral article and/or other provisions under the Sewer, Water and Tunnel Master Agreement-Area I. Some, but not all, of the grievances submitted by the respondent did involve alleged pay violations. However, even had all of the grievances involved payroll violations, this would have provided no reason to conclude that Edmonds' grievance was not treated in the same manner that Local 139 treated other grievances.
Apparently referencing the paragraph number 33 finding that Yuker negotiated a settlement of his grievance on the advice of legal counsel, Edmonds argues that what Yuker negotiated was nowhere near what the grievance had asked for. Edmonds argues that the settlement check amount was less than the amount requested by the respondent in the grievance, which shows that the respondent "violated the grievance" filed on his behalf. The grievance Local 139 filed against Rawson Contractors stated as the Settlement Desired, "All applicable back wages and fringe benefits with interest paid to Franklin D. (sic) Edmonds for all hours worked by rubber-tired loader operators on this project." The evidence fails to support Edmonds' arguments. The evidence shows that the settlement amount negotiated by Local 139 represented three days' pay beginning April 24, 2006, when the Rawson job started, up until April 27, 2006 when Edmonds began employment at a higher rate of pay with WPC, and that the pay for those days was calculated based on the piece of equipment Edmonds would have operated and its corresponding pay rate, as provided under the Sewer, Water and Tunnel Master Agreement collective bargaining agreement. Furthermore, the evidence shows that the settlement amount achieved was very fair, given that under the collective bargaining agreement Rawson had the right not to hire anyone referred by Local 139 and that it was silent as to Rawson Contractors' obligation to notify Local 139 that Rawson had rejected Edmonds for employment.
Also, specifically citing the paragraph number 33 finding that on April 27, 2006, the respondent had dispatched him to a crawler hoe position with WPC in Port Washington which had a wage rate higher than what he would have earned had he worked for Rawson, Edmonds argues that this dispatch occurred after he had informed Local 139's business manager, Terrance McGowan, that he was being denied referrals. Edmonds' suggestion that because he had claimed to McGowan that he was being denied referrals and that he then received a referral to WPC fails to prove that he was being denied referrals. Edmonds has failed to establish that he was being denying referrals after his referral to Rawson Contractors for the reasons previously noted above.
Edmonds further asserts that the dispatch he accepted to WPC in Port Washington was for the rest of the construction season and that "through a chain of events" he has collected a document which shows Local 139 "did not speak (sic) truth about the Port Washington job referral." However, Edmonds has not identified this document or how it shows that Local 139 was not truthful regarding his referral to the Port Washington job. No document admitted into evidence establishes that Local 139 was not truthful regarding his referral to this job. Furthermore, the evidence of record shows that even if a member had been informed as to the expected duration of a job, this was simply a matter of the contractor's best guess as to how long the job would last. Moreover, there is nothing in the collective bargaining agreement between Local 139 and the signatory employers that would obligate an employer to hold tight to whatever amount of time the employer told dispatch about the expected length of the job.
Edmonds disagrees with the ALJ's finding in paragraph number 34 that business agent Rick Parrent was present when Yuker visited him at the Port Washington job site on May 12, 2006. Edmonds also asserts that the settlement agreement Yuker presented to him on May 12 was not signed by either Local 139 or Rawson. It was Yuker's recollection that Parrent was with him when he visited Edmonds on May 12. Yuker also testified that the copy of the settlement agreement he presented to Edmonds on May 12 was signed by himself and Rawson. In any case, whether or not Parrent was with Yuker when Yuker visited Edmonds on May 12 and whether or not the settlement agreement was or was not signed by Local 139 and Rawson is of little significance. Yuker testified that on May 12 he had a discussion with Edmonds which centered on the settlement of the grievance. Yuker testified that he explained to Edmonds the procedure Local 139 had gone through, why it had come to the settlement it had, and that Edmonds' signature accepting the settlement was needed before Edmonds could receive the settlement check, which Yuker had in his possession on May 12. Furthermore, it was Local 139's belief, for the reasons outlined in Yuker's letter to Edmonds dated May 16, 2006, that the settlement Local 139 had obtained with Rawson Contractors on Edmonds' behalf was the very best the Union could do even if it pushed the matter all the way to arbitration.
Edmonds argues that as soon as he and Yuker finished their conversation on May 12, 2006, he was laid off from the job at Port Washington. Edmonds claims that he was laid off due to his failure to sign the Rawson settlement agreement on May 12, 2006. Further, in an apparent attempt to render insignificant the ALJ's finding in paragraph number 39 that Daniel Revolinski, who is white, was also laid off from the Port Washington job on May 12, 2006, Edmonds argues that Revolinski was his oiler and that when an operator who has an oiler is laid off, the oiler is laid off with the operator. Edmonds' arguments fail. Edmonds presented absolutely no evidence to establish that Local 139 had anything to do with his layoff at WPC. In addition, both Yuker and Luciani testified that at no time had they directed, ordered, requested or suggested to anyone at WPC to lay off Edmonds, nor were they aware of anyone else at Local 139 having done so. Moreover, the evidence provides no reason to believe that any connection exists between Edmonds' failure to sign the settlement agreement on May 12 and his layoff from WPC that day. In fact, the evidence shows that Local 139 extended the time for Edmonds to consider whether or not to sign the settlement agreement more than once during the period from May 12, 2004 all the way up to June 22, 2006, when Local 139 finally withdrew the grievance against Rawson Contractors. Furthermore, when Local 139 withdrew the grievance on June 22 it did so without prejudice so as to allow Edmonds to change his mind at any time and accept the settlement.
Edmonds asserts that the ALJ's finding in paragraph number 40 that neither Yuker nor Luciani ever suggested to anyone at WPC that it should lay him off is hearsay. Edmonds is incorrect. What the ALJ's finding reflects is the own statements of Yuker and Luciani while testifying at the hearing. This is not hearsay.
Finally, Edmonds disagrees with the ALJ's finding in paragraph number 41 that on Monday, May 15, 2006, he called Yuker and told him that he was unwilling to sign the written settlement agreement, restating his original concern that it would affect other litigation he had pending against Local 139. The evidence of record supports the ALJ's finding in paragraph number 41.
Edmonds ends his petition for review with a request that his case be heard again before an ALJ that is not "prejudiced and biased". However, a review of the record fails to provide any reason to believe that the ALJ who held the hearing in this matter was prejudiced or biased against Edmonds. Accordingly, Edmonds' request that his case be heard again before another ALJ is denied.
cc:
Attorney Brian C. Hlavin
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