Loc. 11, Wood, Wire, & Metal Lathers

LOC. 11, WOOD, WIRE, & METAL LATHERS Local Union No. 11 of the Wood, Wire, and Metal Lathers International Union, AFL-CIO (Wilton and Denton, Inc.) and William Guntharp, Jr. Case 5-CB-1287 March 13, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On January 17, 1973, Administrative Law Judge John G. Gregg issued the attached Decision in this proceeding. Thereafter, the Charging Party filed limited exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three -member panel. The Board has considered the record and the attached Decision in light of the limited exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 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 Administrative Law Judge as modified herein and hereby orders that Respondent, Local Union No. 11 of the Wood, Wire, and Metal Lathers International Union, AFL-CIO, Norfolk, Virginia, its officers, agents, and representatives, shall take the action set forth in the Administrative Law Judge's recommended Order, as herein modi- fied. Add the following to paragraph 2(c) of the recommended Order : "In the event that the Respon- dent does not have its own office or meeting place, copies of said notice shall be mailed by Respondent to each of its members." i We note that through apparent inadvertence, the Administrative Law Judge erroneously refers to the Employer as Respondent throughout the section of his Decision entitled "A The Factual Background "The context in which such errors appear in his Decision make them readily recognizable to the reader who can substitute the word Employer where appropriate as he reads the portion of the Administrative Law Judge's decision referred to above 2 The Charging Party excepts to the failure of the Administrative Law Judge to provide for mailing of the notice to members on the ground that the Respondent does not allegedly have its own meeting hall or office at which the notice could be posted or which the members would be likely to go In order to insure that the notice will receive the full dissemination it deserves among members of Respondent, we shall modify our Order herein by providing for its being mailed to them in the event it is determined at the compliance stage of this proceeding that there is merit to the Charging Party's contention DECISION 391 JOHN G. GREGG, Administrative Law Judge: This case was tried before me at Norfolk, Virginia, on November 17, 1972, based on an unfair labor practice charge filed by William Guntharp, Jr., on August 7, 1972, and a complaint issued by the Regional Director for Region 5 on September 29, 1972. The complaint alleges in substance that Guntharp was charged, tried, found guilty, fined, and had his withdrawal card revoked by the Respondent Union in violation of Section 8(b)(1)(B) of the National Labor Relations Act, Series 8, as amended, because he had continued to work during a strike and had worked with unqualified men in violation of the Union's constitution. The Respondent Union in a duly filed answer denied the commission of unfair labor practices. Upon the entire record, and my observation of the demeanor of the demeanor of the witnesses as they testified, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Wilton and Denton, Inc., is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the Commonwealth of Virginia. At the times material herein Wilton and Denton, Inc., maintained its principal office and place of business at Richmond, Virginia, and is, and has been at the times material herein, engaged in the building and construction industry as a lathing and plastering contractor. During the past calendar year, a representative period, Wilton and Denton, Inc., in the course and conduct of its business operations, received gross revenues in excess of $50,000. During the same period it purchased and received at Virginia construction sites goods and materials valued in excess of $50,000 from suppliers located within the Commonwealth of Virginia, which suppliers purchased and received such goods and materials directly from outside the Commonwealth of Virginia. Wilton and Denton, Inc., is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent Union, Local Union No. 11 of the Wood, Wire and Metal Lathers International Union, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges essentially that William A. Guntharp, Jr., is an area production supervisor for Wilton and Denton, Inc., a representative of said Employer for the adjustment of grievances and a supervisor within the meaning of Section 2(11) of the Act; that Guntharp has been a member of the Respondent Union, and that on or about July 26, 1972, the Respondent Union charged Guntharp with violations of the Union's constitution; that on or about August 31, 1972, the Respondent Union notified Guntharp he had been found guilty of violations 202 NLRB No. 56 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Union's constitution concluding that he had worked during a strike and had worked with nonqualified men; that on or about September 13, 1972, the Respondent Union fined Guntharp $500 and revoked his withdrawal card; and that by the foregoing acts the Respondent Union allegedly did restrain and coerce the Employer, Wilton and Denton, Inc., in the selection of its representative for the purpose of collective bargaining or the adjustment of grievances, in violation of Sections 8(b)(1)(B) and 2(6) of the Act. A. The Factual Background There is little dispute as to the essential facts herein. In its answer the Respondent Union admits that Guntharp is production supervisor of the Tidewater area of Virginia for the Employer, Wilton and Denton, Inc., and a representa- tive of Wilton and Denton, Inc., for the adjustment of grievances and a supervisor within the meaning of Section 2(11) of the Act. It is also admitted that at the times material herein Guntharp was a member of the Respon- dent Union; that on or about July 26, 1972, the Respondent Union charged Guntharp with violations of sections 94, 95, 96, 104, and 105 of the constitution of the Wood, Wire and Metal Lathers International Union, AFL-CIO; that on or about August 31, 1972, the Respondent notified Guntharp that he had been found guilty of violations of the aforesaid sections of said constitution, concluding that he had worked during a strike and had worked with nonqualified men; and that pursuant to the aforesaid actions the Respondent Union, on or about September 13, 1972, fined Guntharp $500 and revoked his withdrawal card. William Guntharp, Jr., testified essentially that he has been employed by the Respondent for 9 years, started as a lathing mechanic, and worked up to foreman and supenn- tendent. He is now production supervisor for the Respon- dent for the Tidewater area, does the hiring and firing, adjusts grievances, controls the work, sets up jobs, and orders material. He is directly responsible to Mssrs. Wilton and Denton. He also owns a small number of shares of the corporate stock. Guntharp testified concerning his griev- ance handling authority and activity. He stated that in the first 2 weeks in July 1972 the Respondent worked at Langley Field on a 360-man dormitory job with Apex Construction Company, where lathers were on strike and the Respondent was notified by the general contractor to man the job or face a contractual penalty, so Guntharp manned the job with workmen who were not lathers. Guntharp also testified concerning a refusal by Local 11 to permit the Respondent to bring workers out of Richmond to complete an overtime job. He testified that in May or June 1972 he had called Local 11 for additional manpower which the Union could not provide. Guntharp finished the job using the manpower available. Guntharp testified that prior to that time in June 1972 he had asked Wilkins, the union business agent, for additional manpower and Wilkins did not have manpower available. Guntharp then advised the general contractor, Apex, that he could not acquire additional manpower from Local 11. Guntharp testified that during June 1972 Consolidated Stores in Newport News had some blackiron going on with sheetrock on it. Local 11 claimed jurisdiction of the installation of the hangers and the blackiron and furring channels. Guntharp assigned the work to the Carpenters. Wilkins then came to the job to see the superintendent who then asked Guntharp to stop the installation. Guntharp stated that he discussed the matter with Wilkins, and told Wilkins that the work was not his as it did not receive lath and plaster. The superintendent held up work until he discussed the matter with his supervisor. Subsequently the Respondent continued the installation with Carpenters until the job was completed. Guntharp testified that prior to July 1972 when the charges were filed herein on several occasions he adjusted minor grievances on the job concerning working hours. He described them as involving Local 11 which according to Guntharp claims that if the local starts a job within their jurisdiction with the metal studs then they are to complete the job. Guntharp in some instances awarded the metal studs and drywall partitions to the Carpenters, but at other times put a lather on it. Guntharp testified further without contradiction that the Respondent is a member of the Virginia Association of Contractors and that he, Guntharp, participated in the bargaining negotiations in 1970 and June 1972 represent- ing the Respondent. Based on my observation of the demeanor of the witness as he testified I credit Guntharp's testimony. He was straightforward, sincere, and uncontrived in his testimony and in his responses on cross-examination. There is ample evidence of record to establish and I find that William Guntharp, Jr., at the times material herein, is production supervisor for the Respondent for the Tidewa- ter area, carries out the hiring and firing for that area, adjusts grievances, sets up jobs and orders material, and is clearly a supervisor within the meaning of Section 2(11) of the Act. The record also establishes the fact and I find that Guntharp represented the Respondent Employer at the 1970 and 1972 collective-bargaining negotiations. The record also establishes the fact and I find that Guntharp became a member of the Lathers Union around 1957, and that in 1968, during the 1968 collective-bargain- ing negotiations between Local 11 and the Respondent, Bradshaw, the union business agent, advised Guntharp to take out a withdrawal card as it would save trouble between the local union and the Respondent Employer. I find that Guntharp took out his withdrawal card in 1968 and each year subsequently, paying the required $15 fee to the local union. It is also established by the record and I find that the lathing, plastering, and dry wall job at Langley Field began around April 1972 with Apex Building Contractors, the general contractors for the construction of a 360-man dormitory unit, with the Respondent herein a subcontrac- tor. Around June 27, 1972, the Respondent received a telegram from Apex notifying the Respondent to add additional manpower to complete the job or a penalty clause would be invoked. Crediting Guntharp's testimony I find that the Respondent was unable to obtain additional manpower through Local 11. On June 30, 1972, at the expiration of the then current contract Local 11 went on strike following a breakdown of negotiations on wages with LOC. 11, WOOD, WIRE, & METAL LATHERS 393 the Virginia Association of Contractors. The following day the lathers ceased work on the job and pickets were at the jobsite. The other crafts continued to work. It is clear from the record and I find that during the next several weeks Guntharp, pursuant to insistence by Apex that he man the job, proceeded to man the job with carpenters while Guntharp personally worked part time on a metal lathers installation over a period of 3 or 4 days. Guntharp testified, and I credit his testimony, that on July 17, 1972, he worked with his tools installing a metal ceiling, putting up blackiron to be lathed and plastered. Wilkins, then business agent for Local 11, came on the job and queried Guntharp as to whether he knew that was lathers work to which Guntharp replied that he did. The following day Local 11 set up a picket line outside the gate. The other crafts ceased work. This lasted about 3 or 4 days. At that time Knich, the general contractors' representative, asked Guntharp not to do the lath work. Guntharp told Knich that he would cease working at the lathing if the general contractor would rescind its notice to the Respon- dent to provide additional manpower or face a contractual penalty. The notice was in fact rescinded after several discussions during that day between the Respondent and the general contractor, and Guntharp ceased his installa- tion. The other crafts returned to work. Guntharp did no lathing after July 17, 1972. On cross-examination Guntharp admitted that when he received the withdrawal card in 1968 he read it and knew that he was prohibited from working at lathing, contract- ing, or soliciting lath jobs. B. Analysis, Discussion, and Conclusions Based on the record as a whole and my findings herein I am convinced and conclude that the imposition of union discipline on Guntharp as indicated herein by the Union constitutes restraint and coercion of the Employer, Wilton and Denton, Inc., in violation of Section 8(b)(1)(B) of the Act. Section 8(b)(1)(B) provides in pertinent part: It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (B) an employer in the selection of his representa- tives for the purposes of collective bargaining or the adjustment of grievances. It is well settled that in enacting this section of the Act, "Congress sought to prevent ... union interference with an employer's control over its own representatives." Meat Cutters, Local 81 v. N.L.R.B., 458 F.2d 794, 798 (C.A.D.C., 1972). The interference proscribed by the statute includes that applied directly to the employer. International Typogra- phers Union Local 38 v. N.L.R.B., 278 F.2d 6, 11-12 (C.A. 1, 1960). It also is uniformly recognized by the Board and the courts that this section also prohibits indirect union restraint or coercion of an employer accomplished through the imposition of discipline upon the employer's represent- ative for actions performed within the general scope of their supervisory or managerial responsibilities. Meat Cutters, Local 81 v. N.L.R.B., supra. The prohibition has been broadly applied to any union discipline of a supervisor imposed because he acted in the interest of the company and against the interest of the union . N.L.R.B. v. New Mexico District Council of Carpenters, 454 F.2d 1116, 1119. There is no question herein but that the Union imposed discipline on Guntharp because he continued to work during a strike and had worked with unqualified men in violation of the Union's constitution . In my view the actions of Guntharp were clearly in the interest of the Employer and against the interest of the Union. Guntharp was clearly aware of this . He made his choice between the conflicting loyalties. While the Act does not completely preclude the union from disciplining supervisor-union members it does pre- clude such action where the thrust of the discipline is on the supervisor over his actions in an underlying dispute between the employer and the union rather than between the union and the supervisor . Local Union No. 2150, International Brotherhood of Electrical Workers, AFL-CIO (Wisconsin Electric Power Co.), 192 NLRB No. 16. To permit such disciplining of a supervisor would be to permit indirectly the restraint or coercion of the employer which is proscribed by the Act, and accordingly to effectively negate protection of the Act in such circumstances. The only remaining question herein is raised by the Respondent's argument that in this case Guntharp, the company representative, in his testimony stated that he was not in fact restrained or coerced by the union conduct which is the basis for the violation alleged herein , and that there is no other evidence of record which would indicate that the Employer herein was restrained or coerced in violation of the Act. In essence the Respondent argues that assuming that there is a presumption that disciplinary action by a union regarding a supervisor violates the Act, this presumption has been in the instant case rebutted by the specific testimony of Guntharp. In my view this argument is not persuasive in that the thrust of the restraint or coercion interdicted by the Act is that directed toward the employer as distinguished from the employer's repre- sentative. Regardless of the supervisor's subjective reaction to the discipline, it is the effect of the union's action on the employer which is controlling. In my view, regardless of Guntharp's subjective reaction, the imposition of the discipline on Guntharp represents a clear interference with the Employer's right to be free from union pressures which would interfere with his selection of his designated bargaining and grievance handling repre- sentative. In this regard, an 8(b)( 1) violation does not depend upon whether the alleged restraint and coercion succeeded or failed, but whether the Union's conduct reasonably tends to interfere with rights protected by the Act. See Local 167, Progressive Mine Wkrs. v. N.L.R.B., 422 F.2d 538, 542 (C.A. 7, 1970), cert. denied 399 U.S. 905. Accord: Electrical Wkrs., Local 134 v. N. L. R. B., 81 LRRM 2257, 2266. Accordingly I conclude that by its actions in disciplining Guntharp under the circumstances herein the Respondent Union violated Section 8(b)(1)(B) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section II, above, 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurring in connection with the operations of the Company described in section I, above , have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Wilton and Denton, Inc., is an employer within the meaning of Section 2(2) and engaged in commerce within the meaning of Section 2(6) and business activities affecting commerce within the meamng of Section 2(7) of the Act. 3. At the times material herein William Guntharp, Jr., has been a supervisor of the Company within the meamng of Section 2(11) of the Act and is a representative of the Company for the purposes of collective bargaining and the adjustment of grievances within the meamng of Section 8(b)(1)(B) of the Act. 4. By charging, trying, and fining; and by revoking the withdrawal card of William Guntharp, Jr., because he crossed a picket line and continued to work during a strike and had worked with nonqualified men, the Respondent Union has committed and is committing unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices I shall recommend an order that it cease and desist therefrom and that it take certain affirmative action as specified below, which is necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. I shall recommend an order that the Respondent Union revoke and rescind its actions of charging, trying, and fining William Guntharp, Jr., in the amount of $500, and revoking his withdrawal card and that it restore Guntharp to his former status of membership with all rights and benefits as though his withdrawal card had not been revoked, and that it give written notice of such action to William Guntharp, Jr. I shall also recommend an order that Respondent not only post the notice to members attached as an appendix hereto but that it provide additional signed copies for posting by Wilton and Denton, Inc. (it being willing). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: i ORDER Local Union No. 11 of the Wood, Wire and Metal Lathers International Union, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from in any manner restraining and coercing Wilton and Denton, Inc., in the selection of representatives chosen by it for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action: (a) Expunge all records or other evidence in their files of the Respondent Union's proceedings in which William Guntharp, Jr., was charged, tried, and fined and his withdrawal card revoked by the Respondent Union. (b) Restore Guntharp to membership with all rights and benefits as though his withdrawal card had not been revoked, and give written notice of , such action to Guntharp. (c) Post at its office and meeting place copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Forward signed copies of said notice to the Regional Director for posting by Wilton and Denton, Inc., it being willing, at all locations where notices to employees are customarily posted. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith. I 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, 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 2 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 " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found after a trial that we violated Federal law by charging, trying, and fining William Guntharp, Jr., and revoking his withdrawal card because he worked during a strike, and worked with nonqualified men, we hereby notify the employees of Wilton and Denton, Inc., that: WE WILL NOT in any manner restrain or coerce Wilton and Denton, Inc., in the selection of representa- tives chosen by it for the purposes of collective bargaining or the adjustment of grievances. WE WILL expunge all records or other evidence in our files of the proceedings in which William Gun- tharp, Jr., was fined and his withdrawal card revoked. WE WILL restore William Guntharp, Jr., to his former membership status with all rights and benefits as though he had not been fined and his withdrawal LOC. 11, WOOD, WIRE, & METAL LATHERS 395 card had not been revoked, and give written notice of such action to Guntharp. LOCAL UNION No. II OF THE WOOD, WIRE, AND METAL LATHERS INTERNATIONAL UNION, AFL-CIO (Labor Organization) 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Tele- phone 301-962-2822. Dated By (Representative) (Title)