Ashley, Hickham--Uhr Co.

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AaLIey, Il> --Ubr Co. and Roderick Meyers MWwr Local Union No, 1102, United Brot er- hoo d of Carpontm and Joiners of Ameba, AFL-CIO and Roderick Mey Cases 7-CA-9649 and 7-CB-2647 April 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 22, 1973, Administrative Law Judge Lloyd Buchanan issued the attached Decision in the above-entitled proceeding, finding that the Respon- dents had engaged in the unfair labor practices alleged in the consolidated complaint and recom- mending that they take specific action to remedy such unfair labor practices. Thereafter, the Respon- dent Union filed exceptions and a supporting brief, contending, inter alia, that the Administrative Law Judge erred by refusing to allow the Respondent Union, as part of its defense to the unfair labor practice charges alleged, to present evidence with respect to its motive and/or purpose in demanding that Union Steward Frontera be hired by Respon- dent Company as a steward on the job here involved. On June 13, 1973, the Board issued an order remanding the proceeding for further hearing before the Administrative Law Judge for the purpose of receiving the excluded evidence and to afford the parties an opportunity to present evidence relevant thereto. Pursuant to the Board's remand order, the General Counsel and the Respondent Union waived further hearing and entered into a stipulation of facts consisting substantially of the facts advanced by the Respondent Union in its offer of proof at the original hearing. On December 28, 1973, the Administrative Law Judge issued the attached Supplemental Deci- sion in which he adhered to, affirmed, and adopted his original Decision. Thereafter, the Respondent Union filed exceptions to that decision. 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 entire record and the Administrative Law Judge's Decision and Supple- mental Decision in light of the exceptions and briefs and has decided to adopt the Administrative Law Judge's findings of fact, but not his conclusions and recommendations. Briefly, the facts are as follows. The Respondent Company is engaged in the cons sale, distribution, and repair of heavy equipment. The Respondent Company bid successfully for a job at a Columbia Township, Michigan, jobsite, and thereaft- er hired a foreman and three millwrights who began working at the jobsite on June 26, 1972.1 On June 24 and 26, Respondent Union's business manager, Spano, and its business representative, Beschoner, respectively, told representatives of Respondent Company that an experienced steward would be sent to the jobsite from the union hall. On June 26, Respondent Company's superintendent, Smith, told Beschoner that, if Respondent Union sent a steward to the jobsite, he (Smith) would have to lay off one of the millwrights previously hired. Beschoner replied that a steward would nevertheless be sent. The same day Foreman Currier asked Spano which of the three millwrights on the job he wanted laid off. Spano answered that he didn't want anyone laid off, that he was sending a steward, and that the Respondent Company should hire more millwrights. The next day, Frontera, the steward designated by Respon- dent Union, reported to work at the jobsite. Thereupon, Currier laid off Meyers, the Charging Party, "due to replacement by steward from union hall." 2 Respondent Union's asserted reason for wanting Frontera to act as steward, as stipulated by the parties, was that Frontera had served as steward on a jobsite where Respondent Union had jurisdictional disputes with other craft unions; that it expected similar problems with the same craft unions on the Columbia Township jobsite which was virtually identical to the jobsite at which Frontera had served as steward; and that Frontera, as a strong militant steward familiar with its collective-bargaining agree- ment, would enforce Respondent Union's jurisdic- tional claims without involving it in any unlawful conduct. The Administrative Law Judge found that Respon- dent Union's motive in seeking Frontera's appoint- ment as steward was irrelevant since it was aware that Frontera's appointment as steward would cause Respondent Company to lay off another employee. He therefore found that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by causing the layoff of Meyers and that Respondent Company, by acquiescing in the latter employee's layoff, violated Section 8(a)(3) and (1) of the Act. We disagree. i All dates are in 1972 . shall be chosen from among the employees on the job, "pursuant to the 2 Art IX in the collective-bargammg agreement between the Respon- working rules of the Union " The working rules, however, in providing that dents provides that Respondent Union's business agent or his representative the business agent has the right to appoint or select a steward on all jobs, do has the right to appoint a steward on all jobs, and that millwright stewards not limit the selection to those employees on the job. 210 NLRB No. 1 ASHLEY, HICKHAM-UHR CO. Contrary to the Administrative Law Judge, we believe that Respondent Union' s reasons in seeking Frontera's appointment as steward are material and relevant and, indeed, critical to the issue of whether it thereby committed an unfair labor practice. Not every encouragement of union membership is unlaw- ful, and the mere acquiescence of an employer in a demand of a union is not unlawful encouragement per se, as the Administrative Law Judge seems to have concluded. Thus, when the circumstances do not involve an objective of furthering, requiring, or conditioning employment on union membership as such, the illegality, if any, must be found in those actions by a union that impinge upon the employ- ment relationship which are arbitrary, invidious, or irrelevant to legitimate union interests .3 In the instant case, the parties have stipulated that Respondent Union's action was, in effect, in further- ance of a legitimate and valid concern for placing an experienced steward on a potentially troublesome jobsite. Whether the action was or was not consistent with the meaning and intent of the collective- bargaining agreement at the time in effect is not, as the Administrative Law Judge seems to imply, controlling, nor need that issue be decided in this forum, although the Respondent Union has at least a colorable argument that the agreement was intended to permit the precise kind of action taken here, in that it leaves the Union free to designate the steward. General Counsel joined in the stipulation above referred to, and made no attempt to show that the concerns of the Union expressed therein were pretextual or were a mask for unlawful motivation. The key issue is whether Respondent Union's action herein was arbitrary, invidious, irrelevant, and thus a mask for discriminatory motivation. We find that General Counsel has failed to establish that it was, and therefore conclude that Respondent Union's conduct in demanding Frontera's hire as its steward has not been shown to constitute an unfair labor practice, notwithstanding that it may have foreseen that his hire would result in the displacement of another of its members who had less relevant steward experience on this type of job .4 We likewise find that there is a similar failure of proof to establish any violation of the Act by Respondent Company in laying off the Charging Party after its compliance with the Union's request to hire Frontera had resulted in a surplus of millwrights on the job. Accordingly, we shall dismiss the complaint against both Respondents. ORDER It is hereby ordered that the consolidated com- 33 plaint in Case 7-CA-9649 and Case 7-CB-2647 be, and it hereby is, dismissed in its entirety. 3 See, e.g., Chicago Federation of Musicians, Local 10, American Federation of Musicians (Shield Radio & T V. Productions, Inc.), 153 NLRB 68, 83-84. Member Fanning finds it unnecessary to rely on these descriptive terms. In his opinion , the contract clearly gives the Union the right to designate a steward on the job and the Union's motivation, if unlawful is a matter of affirmative proof to be established by the General Counsel 4 See Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No 525, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Nelson Construction Co, Inc.), 193 NLRB 724 DECISION LLOYD BUCHANAN, Administrative Law Judge: The comsolidated complaint herein (issued October 3, 1972; both charges filed June 28, 1972) alleges that the Company has violated Section 8(axl) and (3) and the Union Section 8(b)(1XA) and (2) of the National Labor Relations Act, as amended, 73 Stat. 519, in that the Union demanded that the Company hire an additional employee when the Union knew that such hiring would result in the displacement of an employee, that this violated the collective-bargaining agreement between the Company and the Union, and that as a result of the Union's demand the Company laid off Meyers.' The Union's answer denies the allegations of violation.2 The case was tried before me at Detroit, Michigan, on November 2, 1972. Briefs have been filed by the General Counsel and the Union, the time to do so having been extended. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Texas 1 At the opening of the trial , the General Counsel stated that the Company had not filed an answer but that an attorney had telephoned him and informed him that he would not appear at the trial but would file an answer (although the time to do so had expired), and that the Company would rely on the Union to litigate the matter fully I pointed out at that time that under the Board's rules the allegations of the complaint were deemed admitted by the Company. In response to my question, the General Counsel declared that the proof would be addressed to the allegations against the Company as well as those against the Union After all of the testimony had been received, and during closing argument by the Union, the General Counsel received a telegraphic answer from the Company. This was dated the afternoon before and was addressed to the Board, attention the Chief Administrative Law Judge, in care of the General Counsel, who was trying the case That answer was patterned after the Union's answer, and was now submitted to me by the General Counsel. Noting on the record the presumptuousness of such procedure, I marked the document Co. Exh. 1, copies being prepared by the General Counsel. On November 6, 1 received from the General Counsel a copy of a "formal answer" apparently received by him on November 3 1 have marked this Co. Exh 2. 1 would not condone and thereby encourage such flouting of the Board's rules or such procedural discourtesy I have placed Co. Exhs. I and 2 in the rejected exhibit file. 2 As for answer by the Company, see In I. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corporation, the nature and extent of its business in design and construction, as well as the manufacture, sale, distribution, and repair of heavy equipment, and its engagement in commerce within the meaning of the Act are admitted; I find and conclude accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES Agreements now in effect and since 1970, and covering the Company and the Union, provide inter aha: ARTICLE IX-STEWARDS (A) The Business Agent or his Representative will have the right to appoint or select the Steward on all jobs or to change the Steward at any tune. (B) There shall be a Millwright Steward on each job, chosen from the employees on said job, pursuant to the Working Rules of the Union. It was stipulated that section A of article IX did not appear in agreements prior to that of 1970-72. The issue here is not the Union's right to appoint or select a steward on the job, but the Union's insistence that another man be hired when it was informed that this would result in a layoff of one of the employees. The Union sets up a straw man in its argument that it "did not `demand,' `request,' `insist,' `suggest,' or 'ask' the Employer to discharge Meyers or any other millwright." This is not alleged. The Union's working rules provide inter alias STEWARDS (A) The first man on the job, other than the foreman shall act as Steward until four or more are employed, when they must elect a Steward. All Stewards must be journeymen and have been members of this Local Union not less than four (4) years and familiar with the Working Rules and contract and a member of Local 1102 for twelve consecutive months prior to acting as Steward. The Business Agent shall have the power to remove a Steward for cause. The Secretary or Business Agent will have the right to appoint or select a Steward on all jobs. The Representative of the Union shall have the right to visit the job during working hours to interview the Employer, Steward or men at work, but in no way hinder the progress of the work. According to Spano, the Union's business manager, he had a conversation on Saturday, June 24, with Currier, the Company's foreman on this job and a longtime member of the Union, in which they discussed the question of a steward at this job, Currier declaring that he would be on the job on Monday, Spano replying that he had an experienced steward whom he wanted to send out, and Currier then promising that this would constitute no problem: he would call Spano for a steward. Currier, denied that he had promised to call the Union for a steward when he needed one. I credit Currier. On Monday, June 26, Beschoner, the Union' s business representative, had a conversation with the Company's superintendent, Smith, in the company trailer on the site. According to Currier, Beschoner told Smith that a man was coming from the hall, "and that was it" ; Beschoner did not give Smith a chance to reply. Still according to Currier (neither Smith nor Beschoner testified), Beschoner then said to Currier in Smith's presence outside the trailer that a union steward would have to come from the union hall; Currier then asked whether Beschoner could pick a steward from the men who had already been hired, all of them being qualified. as stewards; Beschoner replied in the negative and repeated that the steward would have to come from the union hall; Currier's reply was that he would then have to lay one off because he had been told that the job would call for only three millwrights and himself as foreman. Beschoner's Parthian shot, emphasized by a vulgarity, was that, regardless of what Currier might do, a steward would be there on Tuesday morning. If, with Currier himself working with tools on the job and three men already hired, as he informed Beschoner, union knowledge that one would be discharged when the Union sent another to the job to be the steward is not presumed, the fact was made clear to Beschoner when Currier told him that he would have to lay one man off. Thus, if knowledge of such a result be necessary or relevant when, as we shall see, the demand that a man be hired in fact causes the displacement, such knowledge was clearly brought home to the Union by Currier's statement to Beschoner. Currier had hired three men to work on the job in addition to himself. All three had arrived together that Monday morning, and told Currier that they had elected one of their number, Cummins, as stewards. This was in compliance with the working rules, the testimony indicat- ing without contradiction that all three were qualified to be steward under the working rules. If the Union, as it claims, wanted a "strong" steward, it could not lawfully cause the displacement of a man already employed. After Beschoner left, Currier and Smith discussed the situation. Although the latter first told Currier to do what he thought was best with respect to laying off one man, he pointed out that somebody would have to be laid off because the job did not call for five: it had been bid for three men and a foreman, not for four. Smith hardly left it up to Currier as they considered the Union's working rules which provide in section K under the heading "Foremen": No Foreman or General Foreman shall work with his tools when there are four millwrights or more on the job. Smith did not instruct Currier whom to lay off. The offense would have been as great had one of the others been laid off instead of Meyers. To all of this Spano added that Currier telephoned him sometime on June 26 and, saying that he had three men on the job, asked whom Spano wanted as steward. To this Spano's reply was that they had talked about it on Saturday and that he would send a man out. When Currier then asked whom Spano wanted laid off, the latter replied that he did not want ASHLEY, HICKHAM-UHR CO. 35 Currier to lay anybody off but that he would nevertheless send a millwright to the site. Another man, Frontera, now designated by the Union to be steward in violation of the working rules, arrived at the site in midmorning of June 27 and went to work. That afternoon Currier laid Meyers off, telling him that he was sorry to do that after only 2 days but that there was not enough work. When Meyers asked for a layoff slip, Currier gave him one, the reason first noted thereon being "Lack of work"; this was stricken and the reason noted as: "Due to replacement of [sic] steward from union hall." If, although Currier denied this, he told Spano on June 24 that he would call Spano for a steward (the fact remains that Currier did not do that), neither Smith nor Currier on June 26 earned through on any such commitment. But, whatever the respective equities between the Union and the Company, and whatever claim the former might base on such alleged commitments, the latter as far as we are here concerned had the legal right to decide how many men it would employ on June 26, and the Union had no claim against any employee or the right to effect his discharge. Of the issues posed and recognized, the Union was informed and knew that its demand that the Company hire another employee as steward would result in the discharge of one of the three already hired; the Union's right to select a steward does not include the right to cause the displacement or discharge of another employee; it is clear that Meyer and the two others hired with him were qualified to act as stewards; and the hiring of Frontera at the Union's demand resulted in Meyers' discharge. It is naive to say that the Union did not actually request that Meyers or any other employee be laid off. With knowledge that a discharge would result from hiring of another man as steward, the Union by its demand that an additional man be hired did in effect or constructively demand and cause Meyers' discharge. In the words of the complaint, the Union made its demand "knowing full well that such hiring would result in the displacement of an employee already in the Respondent-Employer employ. Were Smith's recognition of the need or advisability to discharge one of the rank-and-file millwrights not clear enough, it is clear that he authorized Currier to take such action. Beyond that, the latter was himself a company supervisor and agent, and his act in discharging Meyers was the Company's. That the action was prompted by the Union's demand that Frontera be hired is clear. Neither the Company nor Currier was willing, as the latter had informed Beschoner, to prevent Currier from continuing to work with tools as would otherwise be required under the working rules cited in the contract were a fourth rank-and- file man hired. Thus in acceding to the Union's demand to hire Frontera when it did not want an additional man, the Company discriminatorily discharged Meyers in violation of Section 8(a)(3) and (1); I so find and conclude. I further find and conclude that the Union caused the Company so to discriminate, and thereby violated Section 8(b)(2) and (1)(A). The contract and the working rules, themselves valid, do not authorize and are contrary to what was done 3 Chicago Federation of Musicians, Local 10 (Shields Radio & T.V. Productions, Inc.), 153 NLRB 68, 83-84 here. Whatever the Union's right to appoint a steward within its rules, it may not thereby cause the discharge of another employee as was here accomplished. Even if, regardless of section B of article IX of the contract and section A of the working rules provisions concerning stewards, the Union may appoint a steward from among people not working on the job, the issue here is not the Union's right to select a steward but its right to cause the discharge of an employee. Chicago Federation of Musicians,3 cited by the Union at the trial and in its brief, is not in point. Other cases noted offer no greater support. We do not here undertake to weigh the wisdom of the Union's objective. Without consideration of the propriety of that objective, the Union's action was unlawful. [Recommended Order omitted from publication.] SUPPLEMENTAL DECISION LLOYD BucHANAN, Administrative Law Judge: After my Decision of February 22, 1973, in this case, I received on July 9 a letter from the General Counsel, dated July 5, 1973, concerning an Order Reopening the Record and Remanding the Proceeding for Further Hearing. On request made to the office of the Executive Secretary, I thereafter received a copy of the Board's remand order.' So that this Supplemental Decision will be clear without reference to other papers, I shall append hereto copies of relevant documents except my original Decision, which was itself brief. With respect to that Decision, I shall refer merely to the now necessary relevant portions. The Board's remand order of June 13 is attached hereto and marked "Appendix A" [omitted from publication]. "Appendix B" is my letter of July 9 calling for the Respondent' s statement of position, and indicating that on receipt of that I would ask the General Counsel for a statement of his position [omitted from publication]. In fact, I was quite aware of the Respondent's position, it having been stated in its offer of proof at the trial. Nor did I believe that the General Counsel was in a position to controvert the proof offered. That my impression in those connections was correct is indicated by the stipulation hereinafter referred to. "Appendix C" is a self-explanatory letter dated July 25 from counsel for the Union. "Appendix D" is my letter of August 20 addressed to counsel for the Union. [Both omitted from publication.] It was my expectation that we would be able to close the trial without a second appearance by counsel and the Administrative Law Judge. Of course I would neither ignore nor violate the Board's remand order of June 13 directing further hearing anymore than I would be denying the right to a trial were I, on the basis of opening argument or statements of position at the opening or reopening of a trial, to close the trial and issue a Decision without hearing witnesses. The respective statements of position, I expect- ed, would be equivalent to statements of position at the beginning of any trial, and would themselves warrant a 1 I was apparently correct in my most recent Decision when I stated that I "could anticipate a Board remand had I . . confined the testimony to those relevant issues .. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision without further proceedings and without hearing witnesses? Going to Detroit and through the motions of reopening the trial would provide two advantages over the procedure which I here intended to follow: 1. The explanation, which I trusted would persuade the Board, would be unnecessary. 2. From a public relations or political point of view, the Union, if not now persuaded, might feel that it had had its "full day in court" even were it not satisfied with the decision. Neither reason or "advantage" appeared to me to warrant what would be, as I have indicated, extension of this case and further use of Board processes for a second trial. On August 24, I received a Stipulation of Facts and Waiver of Further Hearing, which I have marked Adminis- trative Law Judge's Exhibit 1, and which is attached hereto as "Appendix E" [omitted from publication]. The facts now stipulated were noted by the Union at the trial in connection with its offer of proof, which I rejected. (Had they not been offered at the trial, they could not be made the subject of a further hearing.) Whatever the Union's motive, I pointed out in my Decision that: The issue here is not the Union's right to appoint or select a steward on the job, but the Union's insistence that another man be hired when it was informed that this would result in a layoff of one of the employees. The Union sets up a straw man in its argument that it "did not `demand,' `request,' 'suggest' or 'ask' the Employer to discharge Meyers or any other mill- wright." The contract between the Company and the Union provides for the Union naming a steward only if four or more millwrights are employed; that one of three or fewer millwrights would "act as steward" provided he meets certain standards (there is no issue in the latter connection, as I pointed out in my Decision); and that when the Union insisted (regardless of its motive) that it would send another millwright to be steward it was in advance informed that one of the three at that time employed would thereupon be laid off since "the job would call for only three millwrights" All of this was also pointed out in my Decision. Whatever the Union's motives and however good its reasons from in organizational point of view , it thus appears from the record and without charging the Union; with unlawful or improper motive in wanting to designate another steward, and again regardless of such motive or reason, there were fewer than four millwrights at all times, both before the Union sent another man to the job and afterward. The Union acted without authority and indeed in violation of the contract executed presumably to protect its members. In my Decision after the trial, I declared: We do not here undertake to weigh the wisdom of the Union's objective. Without consideration of the pro- priety of that objective, the Union's action was unlawful. I did not find that the Union was guilty of fell intent; its intent I deemed and still deem to be irrelevant. To repeat, and as I pointed out, the finding of violation was based on the Union's acts, which I found to be violative regardless of intent. My Decision of February 22 found violative the Union's act in insisting that Frontera be hired after it had been assured that the Company would have only four men on the job and that, if compelled to employ Frontera in addition to the men already on the job, it would discharge Meyers, as it had the right to do, all of this explained in my earlier Decision. The terms of the agreement between the Company and the Union, Meyers' qualifications for the job and steward- ship, and his right to serve as steward were also fully analyzed in my original Decision. The stipulation of August 22 adds nothing to what was properly offered and as properly rejected at the trial; nor is there any different or newly discovered reason or evidence. I accept the statements in the stipulation. Fully respect- ing the Board's remand order, I now issue a supplemental decision based on the entire record, including the stipula- tion. We need not now be concerned with the issue of whether any acts themselves constitute independent interference or whether they would, standing alone, tend to interfere unlawfully or to discriminate in the absence of the agreement between the Company and the employees' representative, and in the absence of the other facts noted. The issue is the Union's action which itself caused or attempted to cause an employer to discriminate within the terms of Section 8(bX2) of the Act. I have not and do not question the Union's opinion that Frontera was better qualified to handle whatever steward- Y Cf. Darlington Manufacturing Company, 141 NLRB 241, 332, 335, 336, where, after a motion to dismiss, it appeared that a personal complaint did not state a cause of action as a matter of law; and the complaint was thereupon dismissed on the stated positions of counsel and without testimony by witnesses. Cf. also Alton Box Board Company, 173 NLRB 744, where, after the Trial Examiner dismissed the allegation of violation of Sec 8(aX5), the Board, at the Union's instigation and the General Counsel's request, in the face of the established law which, as pointed out in the Intermediate Report, had controverted the allegation of violation of Sec. 8 (a)(5), directed that the hearing be reopened on that issue; the Trial Examiner, asking the Board for guidance whether, at the now imminent remand hearing, the stated reason for disnussal theretofore cited by the Board and followed by the Trial Examiner in his dismissal was now to be reversed , or whether the mason for dismissal for the established reason was to be adhered to with the result that the Trial Examiner would have no alternative but to repeat his original Decision, after a delay of 8 months after the Intermediate Report was issued, the Union requested withdrawal of its unfair labor practice charges to avoid frustration of the desires of the employees; and the Board thereupon issued its decision without further hearing. A different situation faced the Board in Chauffeurs and Helpers Local 50, IBT, (Shaw Contractors and Builders), 199 NLRB No. 186, in which the Board found no violation of Sec 8(bX2) where the Union did not seek discharge of a driver but rather maintained that there was in fact enough work for two. ASHLEY, HICKHAM-UHR CO. 37 sly problem the Union anticipated might conceivably develop on this job. But even if that be a fact, such fact, under the agreement between the Union and the Company and under the Union's working rules would no more justify the action by the Company which the Union compelled against Meyers than would the Union's opinion. I have here added nothing to my Decision of February 22, merely repeating portions relevant to the remand. Having said and restated this, we need not tractate here. By a process of calcareous ooze, we may yet build up a weighty, if not impressive, problem. on the WpWatbM of the and on the entire record in t cm adhere to* aa<and adopt my Dec ion of February 22, 1973. in its entirety. Issuance of this Supplemental Decision has been long delayed, not only because other camas clamored for decision but, brief as it is, because I wondered whether I had overlooked some significant reason other than that, merely with a finding against it, a union had persuaded the Board that the case be reopened . I can only await with interest the showing of reason for delaying a Board decision on a case decided in February for possible further trial about September and, following a pattern previously established (in this case after a Supplemental Decision almost a year later than the ongma% pie decision by ddwp& the Hoard long