Carpenters District Council

CARPENTERS DISTRICT COUNCIL 423 Carpenters District Council of Sabine Area and Vicinity, and Carpenters Local Union No. 610 (Ralph M. Parsons Company) and Sam S. Papania. Case 23-CB-1126 September 29, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 9, 1971, Trial Examiner Melvin J. Welles issued his Decision in the above-entitled proceeding, finding that Respondent Carpenters District Council of Sabine Area and Vicinity had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Trial Examiner's Decision. He also found that Respondent Carpenters Local Union No. 610 had not engaged in the alleged unfair labor practices and recommended that the complaint be dismissed as to such allegations. Thereafter, General Counsel filed exceptions to the Trial Examiner's finding that Local 610 was not implicated in the District Council's unfair labor practices. Respondents filed no exceptions to the Trial Examiner's Decision, but did file a brief in reply to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Carpenters District Council of Sabine Area and Vicinity, its officers, agents, and representa- tives, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Trial Examiner: This proceeding was heard at Beaumont, Texas, on March 4, 1971, pursuant to a charge filed November 9, 1970, and amended charges filed December 14, 1970, and January 7 and 22, 1971, and a complaint issued January 28, 1971, alleging that the Respondents violated Section 8(b)(1)(B) of the Act by fining Sam S. Papania, a supervisor for Ralph M. Parsons Company, because he discharged David Coshman, a Parsons employee. Respondents claim that the fines did not violate Section 8(b)(1)(B), primarily because they were allegedly levied because Papania's motive in discharging Coshman was Coshman's refusal to sign a petition being circulated by Papania, and also because Papania did not have good cause to discharge Coshman and discharged him about an hour before the end of the workday, and in a manner tending to embarrass him. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondents, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATIONS INVOLVED Ralph M. Parsons Company, herein called the Company, is a Nevada corporation with headquarters in Los Angeles, California, engaged in the construction business as a general contractor. During the past year, the Company purchased goods and materials for its construction work at the Texaco Refinery, Port Arthur, Texas, the only facility involved in this proceeding, valued in excess of $50,000, from suppliers outside the State of Texas. I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondents, Carpenters District Council of Sabine Area and Vicinity, and Carpenters Local Union No. 610, are, as they admit, labor organizations within the meaning of Section 2(5) of the Act. H. THE UNFAIR LABOR PRACTICES A. The Critical Events and Discussion Sam Papania was a carpenter foreman for the Company on a construction job at Port Arthur, Texas, a member of Respondent Carpenters Union No. 610, and a supervisor within the meaning of Section 2(11) of the Act.' On March 26, 1970, Papania discharged David Coshman. Some three weeks later, he was brought up on charges by Respondent District Council, tried, found guilty, and fined $650, for discharging Coshman without good cause and for doing so in the presence of other employees and in a boisterous and abusive mannei. The fining of Papania is alleged as violative of Section 8(b)(1)(B) of the Act, as restraining or coercing the Company in the selection of its representatives I The facts demonstrating Papania's supervisory status, from the uncontradicted testimony of Boyd Cutler, the Company's resident construction manager, show that Papania directed a crew of carpenters and had authority to discharge employees under hisjunsdiction. His discharge of carpenter employee David Coshman precipitated the events herein. 193 NLRB No. 63 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purposes of collective bargaining or the adjustment of grievances. Respondents' defense is essentially that it had the right to fine Papania because the charges were true. In support of this defense, they attempted to show that Papania discharged Coshman because of the latter's refusal to sign a petition, circulated by Papania, against John D. Wallace, Jr., business representative of the local union. For reasons set forth below, I do not find that Respondents have shown that Papania's motive for the discharge was Coshman's failure to sign the petition, so that Respondents' defense would fail factually even if it had legal validity. As I read Board cases, however, it would not matter if Papania were so motivated; the Respondents would nevertheless violate 8(b)(1)(B) by fining him. Thus, the Board has consistently held that a union violates Section 8(b)(1)(B) when it disciplines a member because he performs duties as a management representative. Sheet Metal Workers' International Association, Local Union 49 AFL-CIO (General Metal Products, Inc.), 178 NLRB No. 24, affd. 430 F.2d 1348 (C.A. 10), Dallas Mailers Union Local No. 143 and International Mailers Union (Dow Jones Co.), 181 NLRB No. 49, order enfd. January 8, 1971 by the Court of Appeals for the District of Columbia, but without passing upon the 8(b)(1)(B) violation , which is now before the court on a petition for rehearing. These cases make it plain that it is no defense that the conduct of the supervisor may have violated the contract, or been discriminatorily motivated. It may seem anomalous to hold that a union violates the statute for fining a member for actions which themselves, if shown to be motivated by the exercise of an employee's protected right not to sign a petition, as alleged here, would entail a violation of the Act (Sec. 8(a)(1) by the employer). But the union and the employee are not helpless in this situation ; they can file charges with the Board,2 they can resort to economic action, striking or picketing against the employer who has (presumably) violated the statute, to seek to obtain legally or compel economically the reinstatement of the discriminated against employee. They cannot, however, seek removal of the supervisor by such charges or economic action, because of Section 8(b)(1)(B)'s strictures. The latter situation is in fact the same as the 8(b)(1)(B) violation in this case , with the coercion bearing directly upon the employer, rather than indirectly, by virtue of the Union's discipline of the supervisor-member. B. Factual Evaluation of Respondent's Defenses Against the possibility that I misread the Board cases, I turn now to a consideration of the factual merits of Respondents' defense that Papania discharged Coshman for refusing to sign the petition. The uncontradicted testimony shows that Papania discussed with the Compa- 2 Charges against the Company were in fact filed by Coshman. The Regional Director dismissed the charges, and the General Counsel denied an appeal from that dismissal . I do not rely on the General Counsel's action in that case in connection with any of my findings in this case 3 Papania testified that Coshman was not specifically asked to sign the petition. 4 In its brief to me, Respondent claims that I indicated at the hearing I would not allow it "to put into evidence the fact that Coshman was an excellent worker and that he was in fact doing his work as well as or better than other craftsmen of the fob." In fact, the only ruling I made limiting ny's general carpenter foreman, Bosarge, the question of what to do about Coshman, with Papania telling Bosarge that Coshman was not holding up his end of the work. This occurred about 2 weeks prior to Coshman's discharge, long before Papania circulated the petition which Coshman did not sign. On March 23, Chester Broussard came on the job, for the first time, as the union steward. That day, again before any petition was circulated, Papama asked Brous- sard "to keep an eye on Coshman; that everyone was griping about him." Broussard also testified credibly that other men came to him with complaints about Coshman. The only affirmative testimony offered to show that Coshman's failure to sign the petition was a motivating factor in his discharge was the fact that Papania had placed the petition on the table, Coshman had not signed it, and, according to Coshman, Papania then asked him to sign but Coshman did not.3 On this state of the record, the fact that Coshman did not sign the petition could not be found to have motivated his discharge. His own testimony does not suggest that Papania regarded his not signing as a serious matter. Coshman was not berated, cajoled, or threatened; he did not sign, and that was all. In view of the earlier complaints by Papania to Bosarge and Broussard, no inference of illegal or discriminatory motivation would be even remotely possible. As Respondent has not shown that Papania was motivated by Coshman's failure to sign the petition, I see no necessity for determining whether or not Coshman was a good employee,4 for it is self-evident that a supervisor's judgment in this respect, even if bad, is part of his managerial functions. A union could grieve, if it regarded the discharge as not for good cause; it could not seek the discharge of, or, as here, discipline, the allegedly offending supervisor. Respondent's contention that it had a right to fine Papania because he fired Coshman before the end of the shift, in front of other employees, and in a loud and boisterous manner, assuming arguendo the truth of these allegations, is no defense at all, for the same reason-Papania's conduct in these respects was part and parcel of the discharge itself, part of the exercise of his supervisory role. Finally, Respondent cites an administrative decision of the General Counsel to the effect that a union may lawfully fine a member, and sue to collect the fine, without violating Section 8(b)(1)(A). That case involved an employee, not a supervisor, was in effect the holding of the Supreme Court in N.L.R.B. v. Allis Chalmers Mfg. Co., 388 U.S. 175, but has no application to Section 8(b)(1)(B), as the Board has held. San Francisco-Oakland Mailers' Union No. 18 (Northwest Publications), 172 NLRB No. 252. Accordingly, I conclude that Respondent District Council violated Section 8(b)(1)(B) by firing Supervisor Sam Papania.5 I do not, however, find a sufficient basis in the record for holding Respondent Local Union 610 Respondent related to testimony of Coshman's work at previous jobs. Since even Coshman's work record at the Parsons job from which he was fired would only be relevant to the extent that a good record might tend to support Respondent's contention that Papania was motivated by Coshman's failure to sign the petition, and since as I read Board law even that motivation would not be a defense, I see no reason to reverse my ruling. 5 Contrast the result reached in Carpenters District Council of Sabine Area and Vicinity, Case 23-CB- l 114, issued this date CARPENTERS DISTRICT COUNCIL 425 responsible for the violation. In its answer, Respondents denied that any of the persons named in the complaint was an agent of the Local, although conceding that they were agents of the District Council. No evidence was presented actually implicating the local, or even establishing that the local is a constituent of the Council (however plain it is that this must be so). Papania was notified of the charge against him by the District Council, tried by a District Council Trial Committee, and fined by the District Council. The letter finding him guilty did direct him to pay the fine to the local's financial secretary. I do not regard that as sufficient to implicate Local 610 and shall dismiss the complaint as to it for lack of evidence. CONCLUSIONS OF LAW customarily posted, copies of the attached notice marked "Appendix." 7 Copies of said notices on forms provided by the Regional Director for Region 23, after being duly signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director signed copies of such notice for posting by Ralph M. Parsons Company, if willing, in places where notices to employees are customari- ly posted. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Decision, what steps it has taken to comply herewith.8 1. By fining Company Supervisor Sam Papania for his conduct in discharging David Coshman, Respondent Carpenters District Council of Sabine Area and Vicinity engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(b)(1)(B) and 2(6) and (7) of the Act. 2. Respondent Carpenters Local Union No. 610 has not violated Section 8(b)(1)(B) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. In recommending the repayment of the fine imposed on Papania, the payment of interest at 6 percent per annum will also be recommended. Isis Plumbing & Heating Co., 138 NLRB 716; Sheet Metal Workers Association, Local 49 (General Metal Products, Inc.), supra. Upon the foregoing findings and conclusion, and upon the entire record in the case, I recommend, pursuant to Section 10(c) of the Act, issuance of the following: ORDER6 Respondent Carpenters District Council of Sabine Area and Vicinity and its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining and coercing the Employer in the selection of its representatives for the purpose of collective bargaining or the adjustment of grievances. (b) Fining or otherwise disciplining Supervisor Sam S. Papania, or any other supervisor, because of the perform- ance of his supervisory duties. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Rescind and repay the fine levied against Supervisor Sam S. Papania with interest at 6 percent per annum and excise all records thereof from its files. (b) Notify Sam S. Papania in writing that it has taken the aforesaid action, and that it will not fine him hereafter because of the performance of his supervisory duties. (c) Post in conspicuous places at offices and meeting halls, and other places where notices to members are 6 In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 7 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 8 In the event that this recommended Order is adopted by the Board after exceptions have been filed , notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity' to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and abide by its terms. WE WILL NOT restrain or coerce Ralph M. Parsons Company in its selection of representatives for the purpose of collective bargaining or the adjustment of grievances. WE WILL NOT fine or otherwise discipline Sam S. Papania or any other supervisor of Ralph M. Parsons Company who is a member of this labor organization because of the performance of his supervisory duties. WE WILL rescind and repay the fine levied against Sam S. Papania with interest and excise all records thereof from our files. WE WILL notify Sam S. Papania that we have excised all records of the aforesaid fine from our files and that WE WILL NOT fine him hereafter because of the performance of his supervisory duties. CARPENTERS DISTRICT COUNCIL OF SABINE AREA AND VICINITY (Labor Organization) 426 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Dallas- Brazos Building, Fourth Floor, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4722.