Local Union No. 453, Painters

LOCAL UNION NO. 453, PAINTERS Local Union No. 453, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO and Syd Gough and Sons, Inc. Case 22-CB-1564 June 10, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On March 6, 1970, Trial Examiner Sidney Sher- man issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer 's Decision and a supporting brief. Pursuant to the provi;,ions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified herein. The General Counsel contends that the fine im- posed on Foreman Rinaldi by the Respondent, ostensibly for his failure to register with Respond- ent before returning to the job after the strike, was in violation of Section 8(b)( I )(B) of the Act because Respondent in assessing the fine was not motivated by his failure to register but by its animus against the Employer arising from a prior dispute between the Employer and Respondent Union. This dispute had caused the Employer to file unfair labor practice charges against Respondent Union and the General Counsel contends that it was Respondent Union's hostility against the Employer engendered by the filing of the charges that provoked Respondent Union into retaliatory action against Rinaldi, the Employer's supervisor. In mak- ing his contention, the General Counsel relies upon Board decisions, primarily the decision in New Mexico District Council of Carpenters and Joiners of America (A. S. Horner, Inc.), 177 NLRB No. 76.' At the hearing the Trial Examiner refused to ac- cept evidence regarding the prior dispute between the Employer and Respondent Union, and the 187 General Counsel made an offer of proof. In his decision, the Trial Examiner found that, even if the fining of Foreman Rinaldi was motivated by Respondent's desire to retaliate against the Em- ployer it would not have coerced the Employer in the selection of a bargaining or grievance represent- ative and thus would not be violative of Section 8(b)(1)(B) of the Act. We find it unnecessary to pass upon the Trial Ex- aminer's analysis of the Horner case and the other cases cited by the General Counsel. Accepting the General Counsel's offer of proof as true, we con- clude that it nevertheless does not suffice to show that Respondent Union's motivation in fining Rinal- di was to retaliate against the Employer for the fil- ing of unfair labor practice charges.' Nor is the evidence that was admitted into the record suffi- cient to support such a conclusion. For this reason we find, as did the Trial Examiner, Respondent Union has not violated Section 8(b)(1)(B) of the Act. Accordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complain.t herein be, and it hereby is, dismissed in its entirety. ' The General Counsel also relied on NorthH,est Publications, Inc , 172 NLRB No 252, San Francisco-Oalland Mailers Union No 18 (The Toledo Blade Company, Inc), 175 NLRB 1072, General Metal Products Inc, 178 NLRB 139. The offer of proof was stated as follows Mr Goodman On July first there was a strike by the Trenton Local against the Trenton contractors and on the same day, the men at the Princeton site walked off the job, having been told to walk off by the Respondent local, the Princeton Local, and that in fact all work stopped at that date, both in the Princeton area and-well, specifically that at all sites at which Mr Gough was working in the Princeton area, all of the men walked off the Job and work stopped at that time He further would testify to the number of employees who were working at each site, specifically the number of employees at the Edu- cational Testing site TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: A copy of the charge herein was served on Respondent on Sep- tember 18, 1969,' the complaint issued on December 16, and the case was heard on January 19, 1970 After the hearing a brief was filed by the General Counsel The only issue litigated related tc an alleged violation of Section 8(b)( I )(B) of the Act in connection with the imposition of a fine on a supervisor of the Charging Party. Upon the entire record,' including observation of the witnesses, the following findings and conclu- sions are adopted: All dates are in 1969, unless otherwise shown For corrections of the transcript see the order of February 12, 1970 183 NLRB No. 24 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. JURISDICTION Syd Gough and Sons, Inc., hereinafter called Gough, is a New Jersey corporation and is engaged in business as a painting contractor, with a principal office in Trenton, New Jersey. Gough annually per- forms painting services valued at more than $50,000 for firms, each of which annually provides goods or services to out-of-state firms in the value of more than $50,000. Gough is engaged in opera- tions affecting commerce within the meaning of the Act. II. THE UNIONS INVOLVED Local Union No. 453, Brotherhood of Painters, Decorators and Paperhangers , AFL-CIO, hereinafter called Respondent , and its sister local, Local Union No. 301 , hereinafter called Local 301, are labor organizations under the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The only issue raised by the pleadings was whether Respondent violated Section 8(b)(1)(B) of the Act by warning Rinaldi, a foreman, that he would be fined, and by fining him, for working at a jobsite without prior notice to Respondent A. Sequence of Events Gough is a painting contractor operating in and about Trenton and Princeton, New Jersey. Its Trenton operations are covered by a contract with Local 301, and its Princeton operations by a con- tract with Respondent. Both contracts contain hir- ing hall provisions, requiring the union to furnish employees upon request. On July 1 Fiumenero became Respondent's business agent. On the same day, Local 301 called a strike against Gough and other Trenton painting contractors, because of a dispute over a new contract, and on July 2 Respond- ent struck in sympathy with its sister local, and two members of Respondent, who were then work- ing at a jobsite in Princeton, referred to in the record as the Educational Testing Center or "ETS," were removed from the job by Fiumenero. Thereafter, Gough filed charges with the Board al- leging certain violations of the Act by Respondent in connection with its sympathy strike, and on July 23 the Board's Regional Director filed in a United States District Court a petition for an injunction under Section 10(1) of the Act, seeking to restrain Respondent from continuing such alleged viola- tions. On the same day the contract dispute between Local 301 and Respondent was settled and it was agreed that work would be resumed the next ' The General Counsel disclaimed any like contention as to Catafe, ap- parently because, although Catafe had acted asforeman on other jobs, he was not so acting on the ETS Job, Rmaldi being the only one in charge thereof on July 25 day. That evening Fiumenero was notified of the termination of the strike. However, when Gough's foreman, Rinaldi, visited the ETS job on the 24th, no workmen appeared. The next day, Gough sent Rinaldi and another foreman, Catafe, to the lobsite, and, when Fiumenero arrived on the scene during the day, he found them engaged in painting. He warned them that they would be charged with violating a union rule which required that any member of a sister local of Respondent who was as- signed to work within Respondent's jurisdiction re- gister with it before reporting to the jobsite. Both men were members of Respondent's sister local, Local 301, and both were later formally charged by Respondent with violating the foregoing rule, and after a trial were fined $150 each. Gough has since July 25 operated within Respondent's jurisdiction without-significant incident. B. Discussion The General Counsel contends that, by Fiu- menero's foregoing warning addressed to Rinaldi and by imposing the fine on him,3 Respondent vio- lated Section 8(b)(1)(B) of the Act, which forbids a union to "restrain or coerce ... an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." The record shows that Rinaldi has been classified as a foreman by Gough for about 17 years, that as such he directs the work of others, that he has on occasion adjusted employee grievances, and that with respect to such grievances, as well as other problems on the job, he engages in discussions with the shop steward. It is therefore found that at all times here relevant Rinaldi was a statutory super- visor, with authority to adjust grievances and to represent Gough in negotiations with union representatives concerning grievances and other on-the-job problems. There have been several cases dealing with the question whether the imposition by a union of a fine on an employer representative authorized to adjust grievances violated Section 8(b)(1)(B).4 In all these cases the Board found a violation. How- ever, except for the Horner case, supra, which is discussed below, they involved fines imposed on a supervisor because of his alleged violation of a col- lective-bargaining contract, and the Board's ra- tionale in those cases, as enunciated in Northwest Publications, supra, was that the respondent union's action was designed to compel the supervisor "to take pro-union positions in interpreting the collec- tive-bargaining agreement." It is apparent from this that the Board was influenced in those cases by the fact that the supervisor was disciplined for an al- ' Nordivest Publications, Inc , 172 NLRB No 252, The Toledo Blade Company, Inc., 175 NLRB 1072, General Metal Products, Inc, 178 NLRB 139, A. S Horner, Inc., 177 NLRB No. 76 LOCAL UNION NO. 453 , PAINTERS 189 leged misinterpretation or misapplication of the contract, and that the natural and foreseeable ef- fect of such discipline was that, in resolving future grievances over alleged contract violations, the su- pervisor would be reluctant to take a position ad- verse to that of the union, and that his usefulness to the employer as his representative in the area of grievance adjustment would therefore be destroyed Here, however, there was no contention by Respondent that Rlnaldi violated any contract provision by failing to register with it before going to work at the ETS job, but only that he failed to comply with the union rule described above. So far as the record shows, the only purpose of that rule was to facilitate the administration by Respondent of the hiring hall provisions of Respondent's con- tract and the collection of certain union assess- ments.' Unless the Board is prepared to say that the fining of a supervisor by a union for whatever reason, including, for example, late payment of dues or disruption of a union- meeting, tends to im- pair his effectiveness as an employer representative, it is not clear how the fine imposed on Rinaldi for alleged noncompliance with Respondent's registra- tion requirement may be held to violate Section 8(b)(1)(B). The General Counsel attempts to analogize this case to the Horner case, supra, where the Board found a violation of 8(b)( 1)(B) in a union's efforts to enforce against a supervisor, who was a member of that union, a rule which, in effect, forbade him to work for his nonunion employer without a referral card from the union, which would not have been forthcoming so long as the employer remained nonunion. Thus, the union was there seeking to discipline the supervisor Tor remaining at work and the only way he could have avoided the fine was to quit work. The Board there stated: "It is clear, therefore, that compliance by [the supervisor]with the the Respondent's demands would have had the effect of depriving the Com- pany of the services of its selected representative for the purposes of collective bargaining or the ad- justment of grievances." There is no comparable situation here. All that Rinaldi had to do to satisfy Respondent was to give it advance notice by telephone or otherwise that he was starting a particular job or, in case of a strike, resuming that job after the strike was over.6 The General Counsel points to certain language of the Board in Horner stressing the fact that there the basic dispute was between the employer and the union over organization of the employees and that the union's quarrel with the supervisor was merely incidental to that dispute. The General Counsel urges that here, too, the primary dispute was between Respondent and Gough over the legality of Respondent's tactics in support of its sister local's strike, and that the disciplinary action against Rinaldi was in retaliation for Gough's filing of charges against Respondent because of such tactics. Even if that were so, which I do not decide, it would not aid the General Counsel's case. The Board's reference in Horner to the underly- ing dispute between the union and the employer was addressed to the contention of the respondent union in that case that it was distinguishable from the San Francisco-Oakland Mailers' case' because the supervisor in Horner was disciplined for his con- duct as a union member and not for his conduct as a supervisor. In reply to this, the Board pointed out, inter alia, that in Horner the "basic dispute" that led to the fine was "not entirely an intra-union matter but stemmed from the fact that the Com- pany did not have a collective-bargaining agree- ment with the Respondent .... Thus . the under- lying dispute was between the Respondent and the Company and not between the Respondent and one of. its members." It is inferred from this that the Board thought the nature of the dispute significant, because the Board deemed an unlawful intent or purpose to be an essential ingredient of a violation of Section 8(b)(1)(B), and felt that it would be precluded from finding such unlawful purpose if the fine was imposed only because of the supervisor's conduct as a union member rather than because of an overriding animus toward the employer. Accepting this analysis, one can agree that, if the instant fine had been levied against Rinaldi in reprisal for Gough's resort to the Board and the court, the fact that the fine was ostensibly imposed because of Rinaldi's conduct as a union member would not be an obstacle to finding a violation of Section 8(b)(I)(B) here. However, such proof of employer animus would go only to Respondent's state of mind, and Section 8(b)( I )(B) does not in- terdict a mere state of mind but requires, in addi- tion, a showing of conduct calculated to coerce an employer in the selection of a bargaining or grievance representative. Such showing was sup- plied in Horner by proving union action that tended ' Although its contract with Gough appears to make the Respondent the exclusive, primary source of referrals, there was no contradiction of Fiu- menero's testimony that it is his practice to permit an out-of-tows. employer like Gough to bnng in one of his own men for every three men supplied by the Respondent and that Fiumenero has to know in advance how many men such employer is dispatching to the job so that Respon- dent can refer enough men to preserve that ratio It also appears from the testimony of Jones, business agent for Local 301, that the report- ing requirement facilitates the collection of "administrative dues" from members of other locals working within a local's jurisdiction " Here, the gravamen of Rinaldi's offense in the eyes of Respondent was that he had returned to the ETS job after a work stoppage without advance notice to Respondent There was no impediment to his continuing to work on that job after July 25, once Respondent had notice of his reassignment thereto Such notice would be effective for the duration of the job , at least barring further extended interruptions The General Counsel attempted to show that Rinaldi had given proper advance notice to Respondent of his assignment to the ETS Job in Februa- ry, when the job commenced, and that Respondent's insistence that he give it notice again after the end of the strike was not justified by its rule How- ever, the issue here is not whether Respondent properly construed its own rule or whether the fine was a valid one under Respondent 's constitution and bylaws, but only the tendency of the fine to coerce Gough in the selec- tion of a representative ' Cited above as the Northwest Publications case 190 DECISIONS OF NATIONAL to deprive the employer entirely of the supervisor's services, and in the other cases cited above by proving union action that was so closely related to the supervisor's function of administering the con- tract as to be calculated to convey to him the message that any further disagreement between him and the union in that area would invite further reprisals. Neither of these factors is present here." " In his brief, General Counsel argues that the Board should find a viola- tion here because Rinaldi was fined for acting in an area in which he was authorized to act as Gough's representative vis a vis Respondent In this connection , the General Counsel cites the fact that Rinaldi had in the past, in his capacity as an agent of Gough, called Respondent 's office before the start of a job to report the number of men who would be sent to that job by Gough and that Respondent had treated such calls as satisfying its registra- tion requirement The General Counsel argues from this that Gough had delegated to Rinaldi the function of construing , and complying with, such requirement and that, in deciding not to call Respondent before starting work on July 25, Rmaldi was exercising the foregoing delegated function There are two difficulties with this thesis Firstly, since , the registration rule was not part of the Respondent 's contract , it is not apparent how com- pliance or noncompliance wilt that rule could become the subject of a grievance Secondly , there is insufficient basis for inferring that Rmaldi was acting in a representative capacity in deciding not to report to Respondent LABOR RELATIONS BOARD It will accordingly be recommended that the complaint be dismissed. RECOMMENDED ORDER It is hereby ordered that the instant complaint be dismissed in its entirety. his own presence on the job on July 25 Respondent 's rule in terms placed the responsibility for such a report on the individual employee While Respondent had acquiesced in Gough's occasional assumption of this responsibility and its delegation thereof of Rinaldi, it would be straining at a gnat to say that his decision not to report his own presence on the job was not one he reached as a union member but one that he reached in his capacity as a representative of Gough with regard to reporting an in- dividual employed by Gough-namely, himself It is obviously more realistic to treat Rmaldi as one person rather than two and to presume that his decision not to make any report about himself was reached as a union member in discharge of the responsibility imposed upon him as such by the union rule (It should, perhaps, be noted that Rmaldi and Catafe were fined in separate proceedings for their individual violations and there is no evidence nor contention that Rmaldi was disciplined for failing to register Catafe )