Local 492, Carpenters

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 492, United Brotherhood of Carpenters and Joiners of America and Keystone Conservation Services, Inc. Case 4-CB-2170 May 31, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 31, 1974, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, Respondent filed 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 exceptions and brief and has decided to affirm the rulings , findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that Respondent, Local No. 492, United Brotherhood of Carpenters and Joiners of America, its officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: On Novem- ber 16, 1973, a complaint issued against Local No. 492, United Brotherhood of Carpenters and Joiners of America, herein called the Respondent, alleging that it had re- strained and coerced Keystone Conservation Services, Inc., herein called the Employer, in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances in violation of Section 8(b)(1)(B) of the National Labor Relations Act, as i Unless otherwise indicated, all dates hereinafter refer to 1973. 2 The instant case was originally consolidated for hearing with Case 4-CB-2169. By Order dated December 14, the Regional Director severed the cases and approved withdrawal of the charge in Case 4-CB-2169. amended, by action taken against the Employer's supervi- sor, Eugene Iannotti.1 The complaint was based on a charge filed by the Employer on October 2.2 Respondent has denied the commission of any unfair labor practices. On December 18, a hearing was held before me in Reading, Pennsylvania. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER I find, as the complaint alleges and the Respondent admits, that Keystone Conservation Services, Inc., a Pennsylvania corporation with its principal offices in Devon, Pennsylvania, is engaged in the construction business. It annually purchases goods from outside the Commonwealth of Pennsylvania valued in excess of $50,000. Based on the foregoing, I find that the Employer is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that Respondent is, and has been at all times relevant hereto, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Employer was engaged as a general contractor for the construction of an Education Center building for the school district in Berks County, Pennsylvania.3 Eugene Iannotti was hired on April 16 when the project started as the Employer's job superintendent. At various times, the Employer utilized the services of a number of subcontrac- tors. Iannotti was the only supervisor for the Employer on the project with anywhere from three to eight employees on the job working directly for the Employer.4 Iannotti was the immediate supervisor of the Employer's employees, including carpenters, masons, laborers, and operating engineers . He directed their work, regulated their hours of employment and other working conditions, and was responsible for taking care of any employee problems that arose. However, hiring was done by top management at its central office. When lannotti needed employees in particu- lar classifications, he would notify the office of the numbers and classifications needed. Applicants were interviewed by management at the central office and then sent to the project. Iannotti would then determine whether 3 This was within the area of Respondent's jurisdiction. 4 lannotti was terminated by the Employer on September I I for reasons not disclosed in the record. 211 NLRB No. 9 LOCAL 492, CARPENTERS the applicant could do the work and had the authority to reject the man.5 The record disclosed that the- Employer has a collective- bargaining agreement with the Operating Engineers cover- ing work performed by the engineers.6 However, the Employer has at no time had any bargaining relationship or recognized any other labor organization as the repre- sentative of any of its other employees. More specifically, no such relationship has ever existed between the Employ- er and the Respondent. At the time Iannotti was employed and since 1966, he was a member of another local of the Carpenters-Local 626. Iannotti credibly testified that about May 3, Respon- dent's business agent, Joseph Coverly, visited the jobsite and asked lannotti whether the job was a union job. Iannotti replied that as far as he knew it was nonunion. When Coverly inquired whether union carpenters would be employed, lannotti told Coverly to contact the Employer's main office to get a definite answer and gave him the telephone number to call . About May 14, Coverly returned to the jobsite and again inquired of lannotti whether the Employer was going to hire union carpenters. lannotti told him the hiring was done through the main office and he did not know whether the Employer would hire union carpenters. Coverly then replied he had heard the Employ- er was not going to hire union carpenters and that he, Coverly, would bring lannotti up on charges with Respon- dent.7 Coverly admitted conversing with lannotti on these two occasions but denied ever mentioning to Iannotti that he would prefer charges. He admitted asking Iannotti on both occasions whether the Employer intended to put on union carpenters. According to Coverly, it was on his second visit, rather than on the first, that Iannotti gave him the telephone number of the Employer's main office. It appeared to me that Iannotti had a clearer recollection of the conversations and I credit his version of the conversa- tions.8 On May 16, about 2 days after the second conversation between Coverly and lannotti, Respondent began picket- ing the jobsite, with the legend on the signs reading, "Keystone Conservation Services, Inc. is paying substan- dard wages and conditions on this job." Picketing continued for about 5 months. lannotti continued to work during the picketing. No contention has been made that during this period he performed work other than his normal supervisory work. On June 4, Coverly preferred charges against Iannotti with Respondent, alleging violations of section 55A of the constitution and laws of the United Brotherhood of Carpenters and Joiners of America, Respondent's parent S lannotti related one instance of an individual sent out whom he rejected because the individual refused to wear a hard hat. 9 The Employer's president, D'Gento, testified that from time to time when particular equipment had to be operated, an operating engineer would be put on who would be covered by the contract with the Operating Engineers. r Both lannotti and Coverly testified that Iannotti had earlier made known he was a member of Local 626. The record is unclear as to when this occurred. 63 organization. The specific provisions allegedly violated, and as spelled out in the charge, read as follows: 1. Causing dissension among the members of the United Brotherhood. 6. Defrauding the United Brotherhood or any subordinate body. 8. Divulging to any unauthorized person, the business of any subordinate body without its consent. 10. Working behind a picket line duly authorized by any subordinate body of the United Brotherhood. 13. Violating the Obligation. Coverly testified that Number 13 above was meant to cover lannotti's obligation under the constitution and laws to do all in his power to get employment for fellow union members. By letter dated June 6, Respondent informed lannotti of the charges filed by Coverly and notified him to appear before a trial committee on June 18. Iannotti, by letter dated June 15, notified Respondent that as of May 1 he was no longer affiliated with Local 626 or any other local union and, for various reasons described in his letter, protested that the charges were improper. On June 14, he had written to Local 626 complaining of its failure to find employment for him in previous years. He concluded his letter by stating he was withdrawing his membership from Local 626. By letter dated July 18, Respondent notified Iannotti he had been found guilty by its trial committee on July 2 on all five counts and was fined $50 on each count, totaling $250.9 In his letter dated July 23 to Local 626, lannotti referred to his earlier letter of June 14 and reiterated he had resigned from Local 626. By letter dated July 25, Respondent notified Local 626 of the $250 fine it had imposed upon lannotti and requested that the amount be paid to Respondent. On August 15, Local 626 notified Iannotti that until he paid the fine it would not accept any dues from him. Since that date lannotti has not heard from Local 626. On September 17, Local 626 informed Respon- dent that Iannotti had not paid the fine imposed by Respondent and was suspended as of September 14. Iannotti had been paid up in his dues to Local 626 until April 30.10 He testified he was prompted to resign from his membership in Local 626 after he was notified of the charges preferred against him. It should be noted here that Local 626 never responded to his letter of June 14 wherein he tendered his resignation or his subsequent letter of July 23. Insofar as the record discloses, he has been suspended by Local 626 as of September 14. The record does not disclose that his resignation was ever accepted.11 Iannotti has not paid the fine nor did he appeal the imposition of the fine. No legal action has been instituted to collect the fine. 8 Coverly never did call the Employer's office. 9 Iannotti did not attend the heanng. By letter dated July 23, he informed Respondent he did not receive notification of the hearing scheduled for July 2 until July 3. 10 On April 19, he paid dues for the 3-month period February through April. 11 Sec. 47 of the Carpenters constitution provides for a resignation procedure wherein it requires a majority of the members present at a regular meeting to accept a resignation. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Discussion and Analysis The facts and applicable legal principles require little discussion. Under Section 8(b)(1)(B) of the Act, it is unlawful for 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." Initially it should be noted that lannotti, as job superintendent, was in fact the only Employer representa- tive on the job project. The evidence clearly supports the finding that as job superintendent he not only was a statutory supervisor but was the Employer representative for the purposes of adjusting grievances within the meaning of Section 8(b)(1)(B) of the Act. The Employer had no bargaining relationship with the Respondent nor was it obligated to hire union members. It is unnecessary that a bargaining relationship exist between an employer and the union to support a violation of Section 8(b)(l)(B).12 The underlying dispute here was between the Respon- dent and the Employer because of the Employer's failure to hire union members on the project. On two occasions Coverly visited the jobsite to inquire of Iannotti if union members were to be hired. When he became convinced on May 14 the Employer was running an open shop, he threatened Iannotti with charges and on May 16 the picketing commenced. The charges were filed by Coverly on June 4. Unlike the General Counsel , I find the record testimony insufficient to support a finding that the dispute also stemmed from the fact that the Employer did not have a collective-bargaining contract with the Respondent. The discipline herein imposed by Respondent on Iannotti was not based on matters of purely internal union administration, but rather concerned itself with the relationship between the Employer and the Union. The preferring of charges and the subsequent levy of the $250 fine was used as a vehicle to discipline lannotti because of the manner in which he performed his supervisory functions. lannotti placed the interests of the Employer above those of the Respondent. Respondent's conduct tended to require the Employer to retain as representatives for collective bargaining and the adjustment of grievances supervisors who were subservient to the Respondent.13 Iannotti continued to perform his normal supervisory functions during the picketing of the jobsite by the Respondent.14 Accordingly, the imposition of the fine because he continued to perform his supervisory functions during the strike violated Section 8(b)(1)(B) of the Act. lannotti also failed, as job sup^rintendent, to carry out Respondent's desire to put union men on the project. Although Iannotti did not do the actual hiring , he did have the authority to pass on the qualifications of the men sent to the project from the central office. Under these 12 New Mexico District Council of Carpenters and Joiners of America (A. S. Horner, Inc.), 177 NLRB 500; International Brotherhood of Electrical Workers System Council U-4, et at (Florida Power and Light Co.), 193 NLRB 30, 31. 13 Sheet Metal Workers' International Association, Local No 71 (H.J. Otten Company, Inc.), 193 NLRB 23. 14 As stated above, no claim is made that lannotti was performing rank- and-file work during the strike . Thus, no issue exists as to the legality of circumstances, it is clear the imposition of the fine constituted a restraint upon the Employer to change its attitude on hiring policies in violation of Section 8(bXl)(B) of the Act.15 Despite lannotti's attempted withdrawal from Local 626 in June, after the charges were brought against him, he continued to be treated as a member and his attempted withdrawal was never accepted. The only action taken against him was his suspension on September 14. In agreement with the General Counsel , I find it unnecessary to find that he was a member of Local 626 in order to find a violation.ls IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Employer, described in section I, above , have a close, intimate, and substantial relation 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. Local No. 492, United Brotherhood of Carpenters and Joiners of America, is a labor organization within the meaning of Section 2(5) and Section 8(b) of the Act. 2. Keystone Conservation Services, Inc., has been at all times material herein an employer engaged in commerce within the meaning of Sections 2(2), (6), and (7) and 8(b)(1XB) of the Act. 3. Eugene lannotti has been at all times material herein a supervisor of the Employer within the meaning of Section 2(11) of the Act and selected by the Employer for the purposes, among others, of collective bargaining and the adjustment of grievances within the meaning of Section 8(b)(IXB) of the Act. 4. By threatening to and preferring charges against, and thereafter fining, lannotti, Respondent has restrained and coerced Keystone Conservation Services, Inc., in the selection of representatives for the purpose of collective bargaining or the adjustment of grievances within the meaning of Section 8(b)(IXB) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent violated Section 8(bx 1XB) of the Act, I shall recommend that it be required to take certain affirmative action designed to effectuate the policies of the Act. disciplining a supervisor-member for performing rank-and-file work during a strike. Cf. International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, IBEW(FloridaPower A Light Company] v. N. L. R.A, 487 F.24 1143 (C.A.D.C, 1973). is I further find that Coverly's threat to prefer charges against lannotti because of the Employer's failure to hire union men independently violated Sec. 8(bXIXB) of the Act, as alleged by General Counsel. 16 Local Union No. 2150, International Brotherhood of Electrical Workers, AFL-CIO (Wisconsin Electric Power Co ), 192 NLRB 77, In. 3. LOCAL 492, CARPENTERS 65 I do not agree with the General Counsel's request, urged in his brief, that the remedy include notification by Respondent to its International and to Local 626 that Iannotti should be restored to all rights and benefits, including membership, in Local 626. Neither the Interna- tional nor Local 626 has been named as a Respondent herein. Nor does the record show that the International has been notified of any action taken against lannotti by either Respondent or Local 626. Insofar as the record discloses, the only action taken by Local 626 has been to suspend him from membership because of his failure to pay the fine imposed by Respondent. Accordingly, I am of the opinion that any unlawful impediment to Iannotti's continued membership in Local 626 is properly removed by providing for notification by Respondent to Local 626 that the unlawful fine has been rescinded. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 Respondent, Local No. 492, United Brotherhood of Carpenters and Joiners of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) In any manner, restraining or coercing Keystone Conservation Services, Inc., in the selection of its repre- sentatives for the purposes of collective bargaining or the adjustment of grievances. (b) Threatening to prefer or preferring charges against supervisors or fining or otherwise disciplining them because of their conduct and performance of work as the selected representatives for the purposes of collective bargaining or the adjustment of grievances. (c) In any like or related manner, restraining or coercing the aforesaid Employer in the selection if its representa- tives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Rescind the fines imposed against Eugene Iannotti and expunge from its records all reference and other evidence in its files relating to the charges and proceedings in which lannotti was fined. (b) Notify Local No. 626, United Brotherhood of Carpenters and Joiners of America, in writing, of the aforesaid action, with a copy of such writing to Eugene Iannotti. (c) Post at its business office, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 4, 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 its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director for Region 4 signed copies of said notice for posting by Keystone Conservation Services, Inc., if willing, in places where notices to employees are customarily posted. Copies of said notice, on forms provided by said Regional Director, shall, after being duly signed by Respondent, be forthwith returned to the Regional Director for disposition by him. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 17 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. 18 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall 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 WE WILL NOT restrain or coerce Keystone Conserva- tion Services, Inc., in the selection and retention of its representatives, including Eugene Iannotti, for purpos- es of collective bargaining or the adjustment of grievances of employees. WE WILL NOT threaten to or prefer charges against, fine, or otherwise discipline Eugene lannotti or any other representative who is a member of this labor organization, or any other local of United Brotherhood of Carpenters and Joiners of America, because of their conduct and performance of work as the selected representative of Keystone Conservation Services, Inc., for the purposes of collective bargaining or the adjustment of grievances. WE WILL NOT in any like or related manner restrain or coerce Keystone Conservation Services, Inc., in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances. WE WILL rescind the fines imposed against Eugene Iannotti and expunge from our records all reference and other evidence in our files relating to the charges and proceedings in which Iannotti was fined. WE WILL notify Eugene Iannotti and Local 626, in writing, that we have taken the aforesaid action. LocAL No. 492, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the date of posting and must not be altered, defaced, directed to the Board's Office, Suite 4400, William J. or covered by any other material. Any questions concern- Green, Jr., Federal Building, 600 Arch Street, Philadelphia, ing this notice or compliance with its provisions may be Pennsylvania 19106, Telephone 215-597-7608.