Iron Workers, Local Union No. 272

IRON WORKERS, LOCAL UNION NO. 272 89 International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 272, AFL-CIO (B & B Steel Contractors, Inc.) and Joseph H. Wallace, Sr. Cases 12-CB-1629 and 12-CB-1654 February 9, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On July 13, 1976, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel 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 1 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 the complaint be, and it hereby is, dismissed in its entirety. Inasmuch as Members Penello and Walther agree with the Administra- tnve Law Judge's conclusion that Wallace would have been an employee, and not a supervisor, they do not pass on or necessarily agree with the Administrative Law Judge's disposition of other 8(bx IXB) questions. Under his view of Florida Power & Light Co. v International Brotherhood of Electrical Workers, Local 641, el at., 417 U.S. 790 (1974), Member Fanning would dismiss the complaint even if Wallace were a supervisor Regional Director for Region 12, which alleges that Respondent International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 272, AFL-CIO (herein sometimes called the Union), violated Section 8(b)(1)(A) and (B) of the Act. More specifically, the consolidated complaint alleges that Respondent restrained and coerced B & B Steel Contractors, Inc.2 (herein sometimes called B & B), in the selection of Joseph H. Wallace, Sr., as its representative for the purposes of collective bargaining and the adjustment of grievances in violation of Section 8(b)(1)(B), and that it violated Section 8(b)(1)(A) of the Act in the process by refusing to refer Wallace for employment. Respondent contends that Wal- lace is not a representative for collective bargaining or adjustments of grievances within the meaning of Section 8(b)(1)(B) of the Act; that the employer had no obligation to seek clearance by Respondent of any supervisor before employing him; and that Wallace, as a journeyman, was denied clearance for employment on or about July 21, 1975, for nondiscriminatory reasons, namely, there were others ahead of him on the job referral list. Upon these conten- tions, the issues herein were joined 3 B. The Unfair Labor Practices Alleged B & B Steel Contractors, Inc., is a small steel erection company owned and operated by William H. Starr. For many years, Starr was a managerial employee of another unionized steel erection company. He launched his own business in the spring of 1975. By the summer of 1975, he had two principal jobs, one undertaken for a contractor constructing a building for the Department of Housing and Urban Development and the other the so-called Quayside job which is involved in these proceedings. The Quayside job involved the construction of a series of 4-story town- houses and a sewage disposal facility located at 106th Street and Biscayne Boulevard in Miami. On the Quayside job, B & B was engaged in tying rods and doing other work preparatory to pouring concrete. In addition, B & B had a few small contracts such as swimming pool construction jobs. In July 1975, B & B's total complement of employees on all of its jobs amounted to 11 persons, including foremen. In mid-July, B & B had about four or five employees on the Quayside job. This number included Foreman Thomas DECISION Winn, who, in addition to acting as an on-the-job supervi- sor, also worked with tools. The job was spread out and it FINDINGS OF FACT was difficult for Winn to work at the trade and also to be aware of what was going on everywhere that rods were A. Statement of the Case being tied, so Starr determined to hire Charging Party WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at Coral Gables, Florida, upon a consolidated complaint,' issued by the The principal docket entries in this case are as follows: Charge filed herein by Joseph H. Wallace, Sr, an Individual, on October 9, 1975, in Case 12-CB-1629, and on December 4, 1975, in Case 12-CB- 1654, consolidated complaint issued on February 20, 1976; Respondent's original answer filed on March 8, 1976, and amended answer filed on April 12, 1976; hearing held in Coral Gables, Florida, on May 6, 1976. 2 Respondent admitted on the record, and I find, that the Steel and Ornamental Erectors Association of South Florida, Inc., is an association of employers engaged in the steel installation business and that, since May 1975, B & B Contractors, Inc., has been a member of said Association Joseph H. Wallace, Sr., to act as a "secondary foreman." Wallace's brother is a roving job superintendent for B & B and frequently visits the Quayside job. Wallace has been an ironworker for many years and is a member of Iron Annually the members of the Association, which was established in whole or in part to negotiate collective-bargaining agreements between its members and Respondent, purchase in Florida materials valued in excess of $50,000 from other States. Accordingly, all members of the Association are employers engaged in commerce within the meaning of Sec. 2(2),(6), and (7) of the Act. Respondent is a labor organization within the meaning of Sec. 2(5) of the Act. 3 In a postheanng motion , dated May 28, 1976, the General Counsel moved to correct the transcript herein in three particulars. The motion is granted 228 NLRB No. 14 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers Local 709 in Savannah , Georgia. Pratt had known him for a number of years and had confidence in Wallace's ability to read blueprints and assist in getting the job completed properly and quickly . He phoned Wallace and Wallace agreed to come to work for him. Wallace had been laid off another job on or about July 13. After a brief trip out of town, he went to Respondent's hiring hall and signed in on July 18 or 19 . On July 21, Starr phoned William Hadden, Respondent's business agent, and explained to him that the Quayside job was so spread out that he needed a secondary foreman who could read prints and who knew what he was doing. He then asked Hadden to send out Wallace to fill this position. Hadden refused. When Wallace approached Hadden and inquired about Starr's request, Hadden admitted that Starr had called him but declined to refer him as a foreman. He said that he would try to find him something else. He also told him that he did not want Wallace, who was working in the Miami area on permit, to transfer to Local 272 at that time since there were a lot of Miami area men out of work and they would raise hell if he transferred. Wallace maintained his registration on Respondent's out-of-work list and ultimate- ly was referred by Respondent and hired by B & B as a foreman in October 1975, when B & B undertook a job on the Saks Fifth Avenue construction project . While working on the Saks project, Wallace was assigned , from time to time, to perform work on the Quayside job when work was slack on the other job. Hadden testified credibly that at the time Wallace signed in there were about 75 men ahead of him on the Respondent's out-of-work list. He also testified that, when Starr made his request for Wallace, that he told Starr that he felt that Starr had too many foremen on the Quayside job, which he regarded as a very small project. Starr and Respondent are parties to the areawide Iron Workers agreement which provides, in pertinent part: Art. 21. Referral Clause In order to maintain an efficient system of production in the industry, and to provide for an orderly procedure of referral of applicants for employment and to preserve the legitimate interest of Employers and Employees in said employment, the Employer and Union agree to the following plan of referral of applicants to employment. (1) The Employers shall have the right to employ directly a number of key Employees who may consist of a Superintendent, General Foreman, and Foreman. In addition, the Employer shall have the right to employ directly on any job in the locality in which the Employer maintains his principal place of business all Employees required on such job or jobs , provided that such Employees are regular Employees of the Employer who have been employed by the Employer fifty percent (50%) of the time during the previous twelve (12) months ... . (2) All other Employees required by the Employer shall be furnished and referred to the Employer by the Union. (3) The Employer shall have the right to reject any applicant referred by the Local Union. (4) The Union shall select and refer applicants for employment without discrimination against such appli- cants by reason of membership or nonmembership in the Union and such selections and referrals shall not be affected by any rules, regulations, by-laws, constitution- al provisions or any other aspect or obligation of the Union membership policies or requirements . The selec- tion and referral of applications shall be operated in accordance with the following plan. The contract then goes on to establish four categories of applicants for referral. No contention has been raised that the contract or the categories of job applicants violate the Act in any way. Starr was asked why, in light of the exemption of foreman from the referral procedure, he had called Respondent for the referral of Wallace . He said that it had simply been his custom when working for another employer to obtain both journeymen and foreman from Respondent's hall. C. Analysis and Conclusions The General Counsel proceeds on the theory that Respondent's refusal to clear a foreman for immediate referral constitutes a violation of Section 8(b)(1)(B) of the Act despite the fact that foremen are not covered by the exclusive referral agreement between Respondent and the employer. General Counsel also contends that such a refusal on Respondent's part constitutes an interference and restraint of the Section 7 rights of the individual involved, even though he is a supervisor within the meaning of the Act and is possessed of no Section 7 rights , and even though there is no substantial evidence of discrimination based upon union membership considerations in Respon- dent's decision not to refer Wallace . In approaching these conceptually inconsistent positions , it is first necessary to determine whether Wallace was a supervisor within the meaning of the Act when he was denied clearance on July 21. The Board has not experienced great success in convinc- ing courts of appeals that all supervisors within the meaning of Section 2(11) of the Act are per se employer representa- tives for the purpose of collective bargaining or adjustments of grievances within the meaning of Section 8(b)(1XB) of the Act. Newspaper Guild, Erie Newspaper Guil4 Local187 AFL-CIO [Times Publishing Company] v. N.L.R.B., 489 F.2d. 416 (C.A. 3, 1973); Rochester Musicians' Association Local 66, [Rochester Civic Music Assn., Inc.] v. N. L. R. B., 514 F.2d. 988 (C.A. 2, 1975). Nevertheless, it has adhered to the view that the two positions are equivalent . United Brotherhoodof Carpenters & Joiners ofAmerica, Local Union No. 14, AFL-CIO (Max M. Kaplan Properties), 217 NLRB 202 (1975). In analyzing Wallace's status on July 21 when he was denied approval by Respondent to work as a "secondary foreman," the facts herein pose an additional difficulty ; namely, Wallace had never before worked for the newly founded B & B Construction Company so there is a complete absence of any actual job performance to assist in determining whether the position which he was slated to hold was actually a supervisory position or whether he was intended only to be an employee within the meaning of Section 2(3) of the Act. The Board long ago held, and with court approval, that applicants for employment are em- ployees within the meaning of Section 2(3) of the Act and IRON WORKERS , LOCAL UNION NO. 272 enjoy the same protections provided by the Act for actual employees. N.L.R.B. v. Phelps Dodge Corporation, 313 U.S. 177 (1941). The General Counsel has not pointed out to me any cases which hold that prospective supervisors are to be accorded the same considerations. The cases in which a supervisor's standing as a management representative has been vindicated by the Board normally involve an incum- bent supervisor who has been fined or otherwise disciplined for crossing a picket line or for failing to observe union work rules. In such circumstances his supervisory status can be determined by reference to what he was actually employed to do or in fact was empowered to do over a period of time. Assuming without deciding that Section 8(b)(1)(B) applies to prospective supervisors, we must look to the somewhat speculative or conjectural considerations of what Pratt had in mind for Wallace in order to determine whether he was in fact a supervisor and management representative when he was denied clearance to work on July 21. He was neither an actual supervisor nor an actual employee when the event here in question took place. Starr defined the position to be held by Wallace as that of "secondary foreman." In Starr's mind, any ironworker who uses blueprints and is going to install steel is a foreman. This definition might justify in his estimation the payment of the 50-cent-an-hour differential which the contract provides for foremen over journeymen, but it does not square with the definition of supervisor established by Congress. Starr stated repeatedly that his prime consider- ation in seeking to hire Wallace and in requesting clearance from Respondent was that he wanted someone who could read prints and in whom he had confidence. In short, he wanted an able and experienced workman and was willing to pay a premium to get him. The fact that an employee exercises superior skills and has long experience either in a trade or in a given job does not warrant the conclusion that he is a supervisor within the meaning of Section 2(11) of the Act. The other evidence concerning what Starr had in mind for Wallace is, at best, conjectural and Starr admitted as much. Speculative answers to hypothetical questions were pried from Starr by the General Counsel, but they shed little light on the issue at hand. Starr thought that Wallace, if he were hired, might have the authority to recommend the discharge of another employee who was not performing properly, but then he qualified the statement by saying that any employee could do so and that it was Starr who would make the final decision in such matters when he came to the job to pay off the erring workman. In fact, Wallace never made such a recommendation because he was never placed in a position to do so. Accordingly, it cannot be argued that Wallace could effectively recommend a discharge. Starr also speculated that Wallace would not have been placed in a position to grant any employee time off, as such 4 If Starr believed Wallace was truly a supervisor, it is hard to find what Respondent did on July 21 that would constitute "restraint and coercion" within the meaning of Sec. 8(b)(l)(B) Foremen are not covered by the contractual referral system. Starr would not have been under any obligation to seek union approval before hiring Wallace, and, conversely, the Union would not be under any obligation to approve Starr's managerial selection. The fact that Respondent withheld its approval when none was contractually required from it hardly amounts to the level of either restraint or coercion. The contract herein is materially different than the one involved in Local 91 judgments were reserved to Tom Winn, the principal foreman on the job, but here again the situation never arose. If the entire crew at the Quayside job, numbering at most five individuals including foreman, were working in a single location, Winn would be in charge of all of them. Only when they were working far apart, so that Winn could not be on the spot, would Wallace have any authority over any other persons and then only to instruct him where and how to tie rods and do other work called for by the blueprints. These factors argue strongly against any find- ings of supervisory authority, actual or prospective. The fact that Wallace, or a steward and Wallace, might see the general contractor for a water barrel or would, if called upon, voice objection if members of other trades performed ironworkers' work also does not make Wallace a prospec- tive foreman. If Wallace were deemed to be a supervisor within the meaning of the Act, this conclusion would mean that at the Quayside job there would be two supervisors and three journeymen or a 1-to-1-1/2 ratio. This statistic alone argues strongly that Starr never contemplated that Wallace would occupy the position of supervisor as the Act envisions that capacity. In light of these factors, I conclude that, even if prospective supervisors are accorded status under Section 8(b)(1)(B) for purposes of determining a violation, Wallace did not fill this definition. His role was never envisioned to be anything more than a work leader. On July 21, 1975, he was nothing more than a prospective employee within the meaning of Section 2(3) of the Act. Accordingly, so much of the consolidated complaint which alleges a violation of Section 8(b)(1)(B) of the Act must be dismissed.4 While the General Counsel did not clearly articulate the rationale behind his assertion that Respondent also violat- ed Section 8(b)(1)(A) of the Act, he suggested a theory that since Wallace might on other occasions work in nonsuper- visory positions the action of Respondent in denying him clearance as a foreman on July 21 also violates Section 8(b)(1)(A) 5 In light of the finding herein that Wallace was an employee on July 21 who enjoyed the protection of Section 7 of the Act, any finding of an 8(b)(1)(A) violation must be based upon the conclusion that he or others were restrained and coerced in the exercise of such rights by virtue of events which transpired on that date. Although it is not alleged in this consolidated complaint, most hiring hall violations are also prosecuted as attempts to cause illegal discrimination in hire or tenure of employment, in violation of Section 8(b)(2). In this instance, there is no contention that the exclusive referral provisions of the contract were illegal on their face or that the categories of referrals established therein are illegal. It is upon Hadden's refusal on July 21 to refer Wallace that a violation of Section 8(b)(1)(A) must stand or fall. I do not regard Hadden's request to Wallace that he defer transferring his Union No. 725 of the UnitedAssociation ofJourneymen and Apprentices of the Plumbing and Prpefitting Industry of the United States and Canada, AFL-CIO (Powers Regulator Company), 225 NLRB 138 (1976), upon which the General Counsel relies. In that case , clearance to hire foremen was contractually required. Moreover, that case did not involve any allegations of an 8(b)(1)(B) violation. 5 The theory adopted by the Board in Plumbers Local 725, supra, is that an 8(b)(1)(A) violation can be found for failing to refer a foreman because of the indirect effect such action might have upon nonsupervisory employees 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership from Local 709 to Local 214 because the members might "raise hell" as an indicia of discriminatory intent. Wallace's decision to transfer in or to remain a member of the Savannah local was an internal union matter which had no bearing on his opportunity for referral. On July 21, Wallace stood on the job referral list behind about 75 other ironworkers who were also seeking work. Hadden saw in Pratt's attempt to designate Wallace as a foreman a ploy to exempt Wallace from the perfectly legitimate requirement that Wallace wait his turn before being put to work. Since the refusal by the Respondent to refer Wallace was based on this consideration and the fact that the designation of Wallace as a "secondary foreman" was unsubstantial, no violation of the law occurred, and so much of the consolidated complaint which alleges a violation of Section 8(b)(1)(A) must also be dismissed. Upon the foregoing findings of fact and upon the entire record herein considered as a whole, I make the following: 6 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 CONCLUSIONS OF LAW 1. B & B Steel Contractors, Inc., is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 272, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish that Respondent herein has violated Section 8(b)(1)(B) or 8(b)(1)(A) of the Act. Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER6 The consolidated complaint herein is dismissed in its entirety. 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.