Local 648, IBEW

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union 648, International Brotherhood of Elec- trical Workers, AFL-CIO (McGraw Construction Company, Inc.) and Michael A. Vickery. Case 9-C B-2681 February 25, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On November 11, 1974, Administrative Law Judge Paul E. Weil 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. 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 Union 648, International Brotherhood of Electrical Workers, AFL-CIO, Hamilton, Ohio, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as modified below: Add the following as paragraph 2(d) and reletter the present and succeeding paragraphs accordingly: "(d) Make whole Michael A. Vickery for any loss of earnings he may have suffered as a result of its unlawful conduct which caused his removal from the McGraw Construction Company, Armco East Works, Middletown, Ohio, project." ter called the Company, in the selection of its foreman for the purposes of collective bargaining and/or the adjust- ment of grievances . On July 30, 1974, the Regional Director for Region 9, on behalf of the Board's General Counsel, issued a complaint and notice of hearing alleging the violation by Respondent of Section 8(b)(1)(B) of the Act by threatening the Charging Party with intraunion disciplinary action and by causing him to be removed from his job for performing his duties and managerial functions as the Company's representative . By its duly filed answer, Respondent denied the commission of any unfair labor practices, alleged that, because the Charging Party was a supervisor or managerial employee, he was outside the protection of the Act, alleged that if Respondent had threatened intraunion disciplinary action, it was for infringement of the contractual guarantees and "the rank and file work protested by the provisions of these documents as a union member" rather than an interference with the supervisory duties, and finally alleged that because the Charging Party appealed the decision of the Union through the intraunion appeal procedure without success, the Board has nojunsdiction over the issue herein. On the issues thus joined, the matter came on for hearing before me on September 19, 1974. All parties were present and represented by counsel and had an opportunity to call and examine witnesses and to adduce relevant and material evidence . At the close of the hearing the parties waived oral argument . Briefs have been received from the General Counsel and Respondent. Upon the entire record in the case, including my observation of the witnesses and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER McGraw Construction Company is an Ohio corporation engaged in general construction work at various locations in the State of Ohio and other States. The Company annually purchases goods and materials valued in excess of $50,000 from firms located outside the State of Ohio which it causes to be shipped in interstate commerce directly to its Ohio location. Employer is and has been an employer as defined in Section 2(2) of the Act and engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED DECISION STATEMENT OF THE CASE PAUL E . WEIL, Administrative Law Judge : On June 10, 1974, Michael A. Vickery filed with the Regional Director for Region 9 of the National Labor Relations Board, hereinafter called the Board, a charge alleging, that Local Union 648, International Brotherhood of Electrical Work- ers, AFL-CIO, hereinafter called Respondent , violated Section 8(b)(I)(B) of the National Labor Relations Act as amended, hereinafter called the Act, by restraining and coercing McGraw Construction Company, Inc., hereinaf- The Respondent is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Employer is engaged in a project at Armco East Works, Middletown, Ohio. It employed varying numbers of electricians on the project which, pursuant to a contract with Respondent, were obtained through Respondent's referral system. On January 9, 1974, the Company had in its employ four electricians under the supervision of the 216 NLRB No. 133 LOCAL 648, IBEW 707 Charging Party, who, in his turn, reported to the job superintendent. On January 9, 1974, the Company's superintendent informed Foreman Vickery that he had to cut his maintenance electricians to two men, himself and one other. Vickery had discretion to decide who was to be laid off and who was to remain . Pursuant to this discretion, Vickery decided on the employee who would remain and called Respondent's business manager, Roy R. McClure, and informed him that he would be cutting back to two people. McClure answered that that left Vickery and Ferd Schmidt, the union steward on the job. Vickery answered that he could not keep Ferd because he felt he was not qualified and that he was going to keep one of the other men. McClure told Vickery not to lay off Schmidt and suggested that he read article 6, section 2 of the union bylaws. Vickery persisted in his position and McClure told him that he would see that Vickery's check was in with the other checks that were coming the next day for the laid-off employees. The same afternoon, Vickery spoke to Don Langhorn, who was in charge of labor relations for the Employer. Langhorn told Vickery that he had talked to McClure and had been informed that the steward was going to be laid off. Langhorn wanted to know whether Schmidt was being persecuted and why he was being laid off. Vickery explained his reasoning to Langhorn who said "all right" and asked to be connected with Superintendent Kruzic. Later the same day, Vickery turned in the names of three employees, including Schmidt, and informed them that they were to be laid off. The following morning, before the layoff was actually consummated, additional work for the electrical mainte- nance employees was found and Vickery asked to be allowed to keep an extra man because of the need for a welder. He selected one of the laid-off employees other than Ferd Schmidt and informed him that he was not to be included in the layoff. Shortly after noon, McClure came to the jobsite. Vickery met with him alone and told him that he was laying Schmidt off because he did not feel that Schmidt could do the work. McClure's only reaction was "you go on and play your ball game and I am going to teach you a lesson." That evening, after Vickery had returned to his home, he received a telephone call from McClure who informed him that he was removed from his job as foreman under article 6, section 2 of the bylaws for the good of the Union. Vickery asked for McClure's reasons in writing and McClure agreed to give them to him at an executive board meeting to be held that evening. Vickery went to the meeting. He asked McClure for the written reasons that he had been promised and McClure refused to give them to him "for the good of the Union." Vickery then asked the executive board to reverse McClure's decision and they refused to do so. The following day, Vickery went to the jobsite and informed the superintendent that he had been removed by McClure for the good of the Union. He said that he was not quitting but he could not work. The superintendent told him that his name would stay on the payroll, he would not be terminated, and that as far as the Company was concerned he was on leave of absence. B. Discussion and Conclusion Both General Counsel and Respondent recognize that the issue in the instant case is ruled by the decision of the United States Supreme Court in Florida Power and Light Co. v. IBEW, Local 641, 417 U.S. 790 (1974.) In that case the court held that a union did not violate Section 8(b)(1)(B) by disciplining supervisory employees for working on rank-and-file work behind the picket line. The Court therein held that: The conclusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can constitute a violation of Section 8(b)(IXB) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer. The Court went on to say it is certain that the supervisors involved in the Florida Power situation were not engaged in collective bargaining or grievance adjustment or any activity related thereto when they crossed union picket lines during an economic strike to engage in rank-and-file struck work. The General Counsel contends that the rule in Florida Power is inapplicable to the instant situation because here Vickery was in fact engaged in grievance adjustment and in activities related thereto. Respondent argues that this case must fall under the rule of Florida Power because on the facts it is shown that Vickery was not Respondent's designated official in the adjustment of grievances and he took no part in the collective bargaining whatsoever. Respondent's argument is predicated on testimony by McClure that the only agent of the Employer delegated the function of resolving grievances was a joint employer- union panel which sat on grievances in the last step of the grievance procedure. McClure in his testimony made it clear that he did not consider a matter as a grievance until it had been reduced to writing after all efforts at the single- employer level to resolve it had failed. I find no support in the Act or in the cases and none is cited by Respondent for this proposition. A grievance to the grievant is no different when he is voicing it at ground level to his shop steward and the steward is discussing it with the foreman than at the point where it is reduced to writing by the business manager of the Union and presented to the joint panel. The employee grievance can be resolved at many points before it is reduced to writing. The testimony of Ferd Schmidt in this regard is enlightening. Schmidt testified that in his period as shop steward, a matter of about 11 months, no grievance was ever permitted to go to the written stage. Most were resolved by consultation "among ourselves" and he admitted that he used the expression to denote consultation between the grievant, himself, and the foreman, who, during the times relevant hereto, was Vickery. The contract provides that all grievances or questions and disputes shall be adjusted by the duly authorized representatives of each of the parties without 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explicating who the duly authorized representatives are. The contract also requires that on all jobs requiring three or more workmen, one shall be designated as foreman by the employer and that at no time shall an employer or member of the firm give orders, directions, or layout of work to any of the men on the job except the supervisor designated to run the job. It is clear in the instant case that Vickery was the sole foreman on the job reporting directly to the construction superintendent . It is also clear that McClure recognized this fact. He testified that on being informed that the steward was to be laid off, which was, in his opinion, a violation of the contract, he did not go to any member of management to complain about Vickery. He admitted that he considered the layoff of these employees to be in the nature of the grievance and in his attempt to adjust this grievance, he spoke to Vickery. He denied, however, that he caused Vickery to be removed from his job because he did not adjust the grievance as McClure wanted it adjusted but testified that he removed Vickery from the job for violation of the agreement.I I find that the discipline of removing Vickery from his post as foreman , acquiesced in by the Employer, was in retaliation for Vickery's insistence upon running a job in accordance with his opinion of the best interest of the Employer and the discipline was specifically imposed because he did not respond to the alleged grievance raised by McClure by retaining Shop Steward Schmidt rather than another employee whom Vickery deemed better qualified to do the work. Respondent makes much of the fact that the collective-bargaining agreement provided a higher tribunal for the adjustment of disputes in the joint conference committee but McClure chose, rather than go through this tribunal or even to argue his position at higher levels of management of the Company, to attack Vickery's decision through Vickery's vulnerable spot, his union membership. There is no showing that Vickery in fact violated any portion of the contract or of the Union's bylaws or constitution . Respondent does not point out any provision in any of those documents that gives supersenior- ity to the shop steward. Thus McClure was forced to speak in generalities, relying on a provision of the bylaws that he could remove any member for the good of the Union, and no explanation is forthcoming how the good of the Union could be affected by Vickery's action in the instant case. Vickery's sin was apparently his recalcitrance in not promptly agreeing with McClure when McClure presented, as a grievance, his argument that the shop steward should not be laid off. This surely is directly related to the function of grievance adjustment, and the Union's action through McClure was a direct dictation to the Employer by the Union that as a grievance adjuster Vickery did not meet with the Union's approval. I find that Respondent's action herein constitutes a violation of Section 8(b)(IXB) of the Act. I There is no provision in the agreement that requires that the steward be insulated from layoff or as in some contracts that he be the last employee laid off. Y 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, IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondent set forth above , occurring in connection with the operations of the Employer as set forth in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Michael A. Vickery, the Charging Party herein, has at all material times been a representative of the Employer selected by it for the purpose, among others, of dealing with matters involving collective-bargaining interpretation and adjusting grievances within the meaning of Section 8(b)(1)(B) of the Act. 4. By disciplining Michael A. Vickery because of his insistence on laying off a union steward, Respondent coerced and restrained the Employer in the selection of his representative for the purpose of collective bargaining and the adjustment of grievances and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 5. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act including (1) notifying the Employer's representatives that it has no objection to the use by the Employer of Michael A. Vickery as a foreman on the Armco job; (2) expunging all records of the proceedings in this matter against Michael A. Vickery; and (3) making Michael A. Vickery whole for all wages lost by him as a result of Respondent's withdrawing him from the Employer's job on January 11, 1974. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 Respondent, Local Union 648, International Brother- hood of Electrical Workers, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing McGraw Construction 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. LOCAL 648, IBEW Company, Inc., or any other employer, in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances by disciplining such representatives because they have not acceded to Respon- dent's arguments in the adjustment of grievances. (b) In any like or related manner restraining or coercing McGraw Construction Company, Inc., or any other employer, in the selection of its representative for the purposes of collective bargaining or adjusting grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Expunge all record of the disciplinary proceeding taken against Michael A. Vickery in January 1974, and thereaf ter. (b) Notify, in writing, McGraw Construction Company, Inc., that it has no objection to the employment of Michael A. Vickery as a foreman. (c) Notify, in writing, Michael A. Vickery that it has no objection to his employment as foreman nor to his representation of McGraw Construction Company, Inc., in the adjustment of grievances and that all applicable records have been expunged. (d) Post at its business office and meeting halls copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the appropriate union representative, shall be posted by Respondent Union 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 . Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 9 signed copies of said notice for posting by McGraw Construction Company, Inc., if willing, in places where notices to employees are customarily posted. Copies of said notices to be provided by the Regional Director for Region 9, after being duly signed by the Respondent's official representa- tive shall be forthwith returned to the Regional Director. (f) Notify the Regional Director for Region 9, in writing, 709 within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 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 The National Labor Relations Board having found through a trial that we violated federal law by restraining and coercing McGraw Construction Company, Inc., in the Company's selection of individuals to represent it for purposes of adjusting grievances of electricians on our ARMCO East Works, Middletown, Ohio, project, we hereby notify our members and all electricians employed by McGraw Construction Company, Inc., that: WE WILL NOT restrain or coerce McGraw Construc- tion Company, Inc., in the selection of representatives chosen for the purpose of collective bargaining or the adjustment of grievances. WE WILL notify the above-named employer that we have no objections to his hiring Michael A. Vickery as the foreman on that project. WE WILL make whole Michael A. Vickery for any loss of earnings he may have suffered as a result of our unlawful conduct which caused his removal from the above-named project. WE WILL expunge all records of the discipline imposed on Michael A. Vickery. LOCAL UNION 648, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO