Intl. Union Of Operating Engineers, Local 428

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local Union No. 428, AFL-CIO (Mercury Constructors, Inc.) and A sociated General Contractors of Arizona and Michael Mack. Cases 28-CB-843 and 28-CB-861 February 13, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 18, 1974, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel and the Charging Parties filed briefs in support of the Administrative Law Judge's 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 record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge for the reasons set forth herein and to adopt his recommend Order. 1. We agree with the Administrative Law Judge that deferral of this dispute to arbitration procedures under the rule of Collyer Insulated Wire, 192 NLRB 837 (1971), is not warranted. However, we do not rely for this conclusion on the Administrative Law Judge's statement "And the Board has recognized and approved the refusal of an employee to defer to arbitration procedures established in a contract. See, e.g., Jacobs Transfer Inc., 201 NLRB 210 (1973)." Rather, we rely on the fact that Mack was a superintendent and superintendents, as distinguished from foremen, are expressly excluded from the bargaining unit in the collective-bargaining contract. Hence the arbitration procedures of that contract are not applicable to the dispute involving Mack.' 2. Michael Mack, vice president of Mercury Constructors, Inc., and a supervisor within the meaning of Section 8(b)(1)(B) of the Act, was in charge of Mercury's Pinetop Lakes project. He was also a member of Respondent. In October 1973, several other members of Respondent filed intraun- ion charges against Mack alleging that he had violated the Respondent's constitution, bylaws, and working rules by: (1) causing a member of the i Member Jenkins, for reasons expressed in his dissents in Collyer Insulated Wire, 192 NLRB 837 ( 1971), and Houston Mailers Union No 36 (Houston Chronicle Publishing Co), 199 NLRB 804 (1972), finds that deferral of this dispute to arbitration is not warranted. 216 NLRB No. 104 Respondent to operate a backhoe without an oiler; (2) employing two men not referred by Respondent to the project; (3) employing an oiler not referred by Respondent; (4) assigning a nonreferred man to a service truck; and (5) laying off an operating engineer and assigning a laborer to the identical equipment. Mack pleaded guilty to certain of these alleged violations and was fined. Subsequently, Respondent refused to accept dues from him until he first paid the fine. Respondent contends that it did not violate Section 8(b)(1)(B) by fining Mack for violating its rules because the conduct for which he was fined did not relate directly to the negotiation of collective-bar- gaining agreements or to the adjustment of griev- ances. The Respondent argues that the Supreme Court in Florida Power & Light Co. v. LB. E. W., Local 41, 417 U.S. 790 (1974), demonstrated a clear intent to halt the Board's interference with the right of unions to discipline their supervisor-members for conduct, such as that allegedly involved in the instant case, which is not related to the negotiation of agreements or the adjustment of grievances. The Administrative Law Judge rejected this interpreta- tion of Florida Power & Light and concluded that Respondent had violated Section 8(b)(1)(B) of the Act by fining Mack and thereafter refusing to accept his tender of union dues unless he first paid the fine. We agree with the Administrative Law Judge that these actions of the Respondent violated Section 8(b)(1)(B) of the Act. In so finding, we need not go beyond our decision in San Francisco-Oakland Mailers' Union No. 18, ITU (Northwest Publications, Inc.), 172 NLRB 2173 (1968),2 and Teamsters Local No. 524, International Brotherhood of Teamsters (Yakima County Beverage Co.), 212 NLRB 908 (1974). For, as was the case in Oakland Mailers' and Yakima Beverage, the supervisor-member in the instant case, Mack, was disciplined after he engaged in what amounted to his interpretation of the collective-bargaining agreement. The imposition of discipline under these circumstances violates Section 8(b)(1)(B) of the Act. 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 Union, International Union of Operating Engineers, Local Union No. 428, AFL-CIO, Phoenix, Arizona, its officers, agents, and 2 We note that in Florida Power & Light Co v. I B E W, Local /41, supra, the Supreme Court assumed without deciding that the Board's Oakland Mailers' decision fell within the purview of its test for determining an 8(b)(I)(B) violation. INTL. UNION OF OPERATING ENGINEERS, LOCAL 428 581 representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE MARTIN S . BENNETT, Administrative Law Judge: This matter was heard at Phoenix, Arizona, on July 9, 1974. The amended consolidated complaint, issued June 11 and based on a charge filed April 3, in Case 28-CB-843, by Associated General Contractors of Arizona , herein AGC, and upon another charge filed May 31 , 1974, in Case 28- CB-861 , by Michael Mack, an individual , alleges that Respondent Union, International Union of Operating Engineers, Local Union No. 428, AFL-CIO, has engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. Briefs have been submitted by the parties. Upon the entire record in the case, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The instant case involves alleged unfair labor practices affecting the operations of Mercury Constructors, Inc., herein Mercury, an Arizona corporation maintaining its principal office and place of business as a general contractor in the building and construction industry at Phoenix, Arizona. Mercury annually purchases building and construction materials and supplies valued in excess of $50,000 which are shipped to it directly from points outside the State of Arizona. I find that Mercury is an employer within the meaning of Section 2(2) and that its operations affect commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED Respondent Union, International Union of Operating Engineers, Local Union No. 428, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. President Charles Featherston, Business Manager Larry Dugan, Jr., and Business Agents Carl Lind and Charles Slack, are agents of Respondent Union. III. THE UNFAIR LABOR PRACTICES A. Introduction; The Issue There is but one issue herein. At the time material herein, Michael Mack, and I so find on ample evidence, was a vice president of Mercury in charge of its pipeline utilities division assigned to a so-called Pinetop project some 200 miles east of Phoenix where Mercury was installing sewer lines and a treatment plant. According to Respondent Union, Mack was merely a foreman on the job. On October 15, 1973, four members of Respondent Union preferred five charges against Mack, a member of Respondent Union, alleging five violations of Respond- ent's bylaws, working rules, and constitution, viz, (1) he caused a member to operate a backhoe without an oiler; (2) he employed two men not referred by Respondent Union to the project; (3) he employed an oiler not referred by Respondent Union; (4) he assigned a nonreferred man to a service truck; and (5) he laid off an operating engineer on Wednesday, October 3, and on Friday, October 5, assigned a laborer to the identical piece of equipment. On or about February 25, 1974, Mack was found guilty of violating certain of the foregoing, having pleaded guilty thereto, and a fine was assessed against him . Respondent Union has since refused to accept dues from Mack until he pays the aforesaid fine. Respondent Union, in essence, concedes the facts, but relies on its claim that he was a foreman and subject to restrictive language in the contract. As set forth below, certain mitigating testimony was presented herein by Mack as to the merits of the violations. As found, he was more than a foreman. The General Counsel and the Charging Party further argue that even if he was a foreman the contract language is not specific enough to constitute a clear and unmistakable waiver by the Employer of its right to keep its supervisory personnel free from union pressure. The record amply demonstrates, and I so find, that Mack represents Respondent in the adjustment of grievances. Indeed, there is testimony from Business Representative Carl Lind that he specifically contacted and met with Mack in this precise area. Respondent Union also urges as a defense the arbitration clause of the contract, although Charging Party Mack expressly claimed herein that he wished to have his case resolved by the Board and was unwilling to submit it to private arbitration. A representative of Respondent Union testified herein that it was willing to waive any time schedule in the contract as to the filing of grievances thereunder, it appearing that the time schedule provided in the contract had not been met. B. Sequence of Events Mack was first employed by Mercury in 1969 as an estimator and job supervisor. He left the employ of Mercury in 1972 to take a position with another firm as job superintendent, at which time he joined Respondent Union. Late in 1972, he negotiated with President Fred Moore of Mercury concerning his reemployment by Mercury. They agreed as to his return; that he would be salaried rather than hourly paid; and that he would receive paid side privileges including leave, bonuses, profit sharing, paid vacations, and the use of a company vehicle, as contrasted with others on the job. During their negotiations Mack also informed Moore that he opted for the benefits under Respondent Union's health and welfare plan, rather than that of Mercury, because he deemed the plan to be superior to that of Mercury; Moore agreed to make such payments to Respondent Union in behalf of Mack and duly did so. The foremen of Mercury are hourly paid; they do not receive paid vacations, sick leave, paid holidays, or bonuses. They do not participate in profit sharing or paid health and welfare fund contributions. Nor, unlike Mack, do they receive expenses for family visits to the jobsite. The record discloses that after Mack was made executive vice president of the Employer, a letter to this effect was 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sent on February 13, 1973, to the Arizona Registrar of Contracts. Construction started at Pinetop prior to the amval of Mack at the -project and it was supervised by one, Argibright, a project manager trainee. Upon his amval late in June, as Mack testified, he assumed control of the project and reported directly to President Moore. He was there until November when there was a temporary shutdown because of weather, but Argibright left the project in September prior to the departure of Mack. During the time while both were there, Argibright reported directly to Mack as did a laborer foreman and a carpenter foreman. The total complement varied from 20 to 30 in number including one or more teamsters. The record discloses that pnor to Mack's trial by the Union, the latter was on notice that he was job supenn- tendent, Business Representative Lind admitting that President Moore so advised him. Lind's alleged prior belief that Argibright was the top management representative on the project is controverted by the fact that it was not so. Stated otherwise, the Union acted at its own peril in this area. Respondent Union relies on the following language in the contract in effect at the time material herein. 2625.1-Each individual Contractor (including prime or subcontractor) performing work on a job or project will be required to employ an Operating Engineer Craft Foreman where the individual Contractor is using five (5), but no more than twenty (20), pieces of equipment (excluding Pumps and Compressors) under the jurisdic- tion of the Operating Engineers, on the job or project. A second non-operating Foreman is required where the Contractor is using twenty (20), but no more than forty (40), pieces of equipment (excluding Pumps and Compressors) under the jurisdiction of the Operating Engineers, on the job or project. Such Craft Foreman will not be permitted to operate equipment, except in emergency or the temporary absence of the regular operator. Any employee designated to supervise other Operating Engineers under this paragraph, shall be classified as an Operating Engineer Craft Foreman, and shall receive Foreman's rate of pay. 2625.3-A Contractor shall have the right to select his own Foreman, subject to the dispatching rules of Article 10 hereof, and the Union shall in no way interfere with the Foreman in the performance of his duties, as instructed by his employer, except as the same may be in direct violation of this Agreement. duties. See Teamsters Local 524 (Yakima County Beverage Company), 212 NLRB 908 (1974). A more direct approach to the foregoing claim is that Mack was much more than a foreman. Assuming that the contract language constituted a clear and unmistakable waiver by the Employer of the right to keep its foremen free from union discipline, and I have reservations on this, it contains no waiver with respect to anyone at the executive vice president level who had authority to and did adjust grievances. Moreover, as noted, pnor to Mack's trial, Respondent Union was put on specific notice as to his exact status. And superintendents, as distinguished from foremen, are ex- pressly excluded from the bargaining unit in Section 1001.1 of the contract. The fact that Mack opted for fringe coverage under the Union's plan rather than the Employ- er's does not alter this. Indeed, it would logically follow that the Union, in effect, waived the contract language in this limited area.' And the Board has recognized and approved the refusal of an employee to defer to arbitration procedures established in a contract. See, e.g., Jacobs Transfer Inc., 201 NLRB 210 (1973). Deferral under the rule of Collyer Insulated Wire, 192 NLRB 837 (1971), is therefore not warranted. Cf. N. L. R. B. v. Railway Clerks [Yellow Cab Co.], 498 F.2d 1105 (C.A. 5, 1974). Respondent Union has relied on the decision in Florida Power and Light Company v. N. L. R. B., 487 F.2d 1143 (C.A.D.C., 1973). As I read that decision, it turns upon the right of a labor organization to discipline foremen for performing struck work behind a picket line. That is not the case here. Indeed, the dissent expressly so noted. I find that by fining Michael Mack and thereafter refusing to accept his union dues Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. IV. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Union has unlawfully fined Michael Mack and thereafter refused to accept his dues, it will be recommended that it be ordered to rescind such action and accept his dues retroactively and prospectively. It will also be recommended that Respondent Union expunge from its records all references to its unlawful actions. C. Concluding Findings The General Counsel and the Charging Party claim that the contract does not contain a clear and unmistakable waiver by the employer of its right to keep foremen free from union restraint and coercion. They urge a finding of a violation on the basis that Respondent Union's conduct constituted restraint and coercion rather than mere interference with the performance by the foreman of his CONCLUSIONS OF LAW 1. Mercury Constructors, Inc., is an employer within the meaning of Section 2(2) of the Act. 2. International Union of Operating Engineers, Local Union No. 428, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b)(1)(B) of the The fact that dispatch slips from the Union described Mack as a he did not request Mack as a foreman and the slips are therefore hearsay as foreman makes no difference President Moore claimed , and I so find, that to Mack's true status and his actual functions in behalf of Mercury INTL. UNION OF OPERATING ENGINEERS, LOCAL 428 Act by fining Michael Mack and thereafter refusing to accept his dues. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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: ORDER2 Respondent Union, International Union of Operating Engineers, Local Union No. 428, AFL-CIO, Phoenix, Arizona, its officers, agents, and representatives, shall: 1. Cease and desist from restraining or coercing Mercury Constructors, Inc., in the selection of representa- tives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Rescind the action which it took against Michael Mack which resulted in fines against him, expunge from its records all references thereto, and accept his dues as timely tendered, including those previously refused. (b)' Post at its offices and union hall and the Pinetop Project, Mercury willing, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent Local 428 , shall be posted by said Respondent 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 said Respondent to insure that 583 said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. 2 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. 3 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 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 Mercury Construc- tors, Inc., in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances. WE WILL rescind the fines we have levied against Michael Mack, expunge from our records all references thereto, and accept his dues as timely tendered, including those previously tendered and refused. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION No. 428, AFL-CIO