IBEW, Local 1547

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Lo- cal 1547, AFL-CIO (Rogers Electric, a Division of Newberry Resources, Inc.) and Doran E. Ryan and International Brotherhood of Electrical Workers, AFL-CIO, Party in Interest. Case 19-CB 3081 September 28, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon charges filed by Doran E. Ryan, an individ- ual, herein also called the Charging Party, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a com- plaint on February 7, 1978, against International Brotherhood of Electrical Workers, Local 1547, AFL-CIO, herein called Respondent. On June 5, 1978, the Regional Director for Region 19 approved an informal settlement agreement between the par- ties. On January 8, 1979, on finding that Respondent had failed to comply with one of the terms of the agreement, the Regional Director set aside the agree- ment and reissued the complaint. Copies of the re- issued complaint and notice of hearing before an ad- ministrative law judge were duly served on the parties. In substance, the reissued complaint alleges that Respondent violated Section 8(b)(1)(A) and (B) of the National Labor Relations Act, as amended, by fining Ryan $1,500 and placing him on a I-year pro- bation, in accordance with article VII, section 2, of Respondent's bylaws. The answer duly filed by Respondent denies the commission of any unfair labor practices and con- tends that reissuance of the complaint is barred by compliance with the informal settlement agreement approved by the Regional Director for Region 19 on June 5, 1978. On May 14, 1979, the Charging Party, the General Counsel, and Respondent entered into a stipulation in which they agreed that certain documents shall con- stitute the entire record herein,' and that no oral tes- timony is necessary or desired by any of the parties. Thus, the parties expressly waived all intermediate proceedings before an administrative law judge and oral argument in this matter and petitioned that this case be transferred to the Board for the purpose of making findings of fact and conclusions of law and issuing an appropriate Order, reserving to themselves t The stipulated record consists of the charge. amended charge. complaint, answer, informal settlement agreement, art. VII of Respondent's bylaws. minutes of Respondent's trial board meeting of November 21, 1977. reissued complaint, answer to the reissued complaint, stipulation, and motion to transfer proceedings to the Board. only the right to object to the materiality, relevancy, or competency of any of the stipulated facts. By order dated July 10, 1979, the Board approved the stipulation, transferred the proceeding to itself; and set a date for the filing of briefs. Thereafter, the General Counsel filed a brief which has been duly considered by the Board. 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 entire record herein as stipulated by the parties, as well as the brief filed by the General Counsel, and makes the following findings and conclusions: Facts 1. ITHE BUSINESS OF TIlE EMPLOYER Rogers Electric, a Division of Newberry Resources, Inc., herein called the Employer, is an Arizona corpo- ration with an office and place of business located at Anchorage, Alaska. It is engaged in the construction industry as an electrical contractor. During the past 12 months, the Employer derived gross revenues in excess of $500,000 and received in excess of $50,000 for services provided to customers who are directly involved in interstate commerce. The parties stipulated, and we find, that Rogers Electric is now, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. We further find it will effectuate the purposes of the Act to assert jurisdic- tion in this proceeding. II. THE LABOR ORGANIZATION INVOVED The parties stipulated, and we find, that Respon- dent is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. II111. THE UNFAIR LABOR PRA(CTICES A. The Issue The only question presented2 is whether the follow- ing provision, article VII, section 2, of Respondent's bylaws, in itself violates Section 8(b)(1)(A) of the Act: He [the business manager] may remove any member from any shop or job (when not in vio- 2 The parties have stipulated that all aspects of the original settlement with the exception of the required change in the bylaw provision have been com- plied with by Respondent and are no longer at issue. 245 NLRB No. 91 716 IBEW. LOCAL 1547 lation of any agreement) for not complying with our laws and rules or when he decides the best interest of the Local Union requires such re- moval. Any such removed member shall be enti- tled to a review of his removal before the Execu- tive Board of the Local Union. In addition, the General Counsel has informed the Board that "[T]he only issue which the parties desire to bring before the Board is whether or not the bylaw in itself violates Section 8(b)(1)(A). All of the remain- ing factual stipulations are only background to the application of the bylaw provisions." B. The Stipulated Facts At all times material herein, the Employer has been a member of the National Electrical Contractors As- sociation (NECA) and, by virtue of its membership in NECA, has been party to a collective-bargaining agreement with Respondent. Ryan has been a member of Respondent in good standing since approximately 1958. In August 1976, Ryan was dispatched as a lineman by Respondent to the Employer pursuant to procedures set forth in the then existing collective-bargaining agreement. Since approximately January 1977 Ryan has been desig- nated by the Employer as either a lineman foreman or a general foreman. Throughout November 1977 Ryan was a general foreman for the Employer. As both a lineman foreman and a general foreman. Ryan had the authority to settle minor problems and complaints on the job without consulting any higher official. Ryan could and did ask for conferences with the job steward and complaining employees, and he settled any minor disputes. Ryan adjusted safety pro- cedures pursuant to complaints from a shop steward, and he adjusted minor grievances which were pre- sented to him verbally. Any major disputes had to be referred to higher management officials. In November 1977, when the Employer was experi- encing a seasonal layoff, the Employer called a meet- ing of its employees at which Respondent's business agent, Moore, explained the contractual layoff proce- dure. The collective-bargaining agreement provided that employees fell into four classes, book I through book IV; employees in the highest book number were laid off first. Moore explained that while linemen were working in supervisory capacities, they were ex- empted from the procedure. He further stated that when the supervisors, at the end of the particular job they were on, resumed "working with their hands," they would once again come within the provisions of the reverse layoff procedure. Moore was referring to Ryan and one other foreman during this talk regard- ing layoffs. After the meeting Moore asked Ryan in to sign the layoff books, stating that there was no one on the books and that he, Ryan. would be cleared right back out to the Employer. Ryan asked for assurances in writing regarding the retention of seniority. Moore replied that since this was a construction job and there was no provision for seniority in the contract, he could not make that kind of assurance. Ryan re- fused to sign the books. A few days later. Piazza. Respondent's business agent, asked Ryan why he did not come in and sign the books, as he would be redispatched back to the Employer as book I. Piazza told Ryan that if he did not sign, Respondent would "E-Board him" (send him before the Local Union's executive board). Ryan told Piazza to get on with it. On November 21, 1977, internal union charges against Ryan were signed by Moore and Piazza and subsequently filed pursuant to Respondent's bylaws. article Vll, section 2. On December 14, 1977, Ryan was found guilty of the charges, fined $1,500, and put on probation for I year. Thereafter. Ryan appealed the trial board's decision to the International, which reversed the trial board's decision, and Respondent has complied with said reversal. C. Contentions of the Parties Respondent has not submitted a brief for our con- sideration. The General Counsel contends that the bylaw provision violates Section 8(b)(1)(A) of the Act on its face, arguing that the protections afforded in the Act would render the provision superfluous if law- fully applied and that it therefore serves no other pur- pose than to give Respondent's business representa- tive carte blanche to attempt violations of Section 8(b)(1)(A), 8(b)(1)(B). and 8(b)(2) of the Act without any proscriptions or prohibitions. The General Coun- sel concedes that the proviso to Section 8(b)(1)(A) protects many forms of internal union discipline, but maintains that such protection does not extend to the enforcement of union regulations which directly af- fect the members' employment status, noting that the only circumstance under which a business representa- tive should be able to cause or attempt to cause an employer to change an employee's employment status is under the proviso to Section 8(a)(3) of the Act. Since the Act fully covers employee and union rights in this area, the General Counsel argues that the by- law is at best unnecessary and at worst unlawful and seeks to have the provision stricken in its entirety from Respondent's bylaws. D. Discussion Integral to the policy underlying Section 8(b)(1)(A) and (2) of the Act is the intent to separate member- 717 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship obligations owed by employees to their bargain- ing representatives from the employment rights of those employees.3 Therefore a presumption of illegal- ity arises when a union prevents an employee from being hired or causes an employee's discharge. That presumption may be rebutted, however, "not only when the interference with employment was pursuant to a valid union-security clause, but also in instances where the facts show that the union action was neces- sary to the effective performance of its function of representing its constituency."4 Thus, a union's ability to carry out its statutory duty of fair and effective representation of all its members may depend on the The Radio Officers' Union of he Commercial Telegraphers Union A F. L. /Bull Steamship Co.] v. N.LR.B. 347 U.S. 17 (1954); Minneapolis Star and Tribune Company, 109 NLRB 727 (1954). 4 International Union of Operating Engineers, Local 18, A FL CIO (William F. Murphy), 204 NLRB 681 (1973). alteration or termination of an individual member's employment status.5 Here, there is nothing in the by- law provision at issue to indicate or establish that it exists for an unlawful purpose, and we will not pre- sume such a purpose. We find, therefore, that article VII, section 2, of Respondent's bylaws is not unlawful on its face and, therefore, that it does not, in itself, violate Section 8(b)(1)(A). Accordingly, we shall dis- miss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I Cf Pniladelphia Typographical Union No. 2 (Triangle Publicaions, Inc., J. 189 NLRB 829 (1971). 718