Local 262, International Brotherhood of Electrical Workers, AFL-CIO (Arthur Paul, Jr., Electrical Contractor, Inc.)

LOCAL 262, IBEW Local 262, International Brotherhood of Electrical Workers, AFL-CIO (Arthur Paul, Jr., Electri- cal Contractor, Inc.) and James R. Miller and Plainfield Division of the Northern New Jersey Chapter, Inc., National Electrical Contractors Association, Inc., Party in Interest. Case 22- CB-4500 September 28, 1982 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER On February 11, 1982, Administrative Law Judge Edwin H. Bennett issued the attached Deci- sion 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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, as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Local 262, International Brotherhood of Electrical Workers, AFL-CIO, Clinton, New Jersey, its offi- cers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge.2 We have modified the injunctive portion of the recommended Order and of the notice to employees to prohibit only the restraining or coerc- ing of employees in the exercise of their rights under Sec. 7 of the Act. which is the standard language utilized in enjoining future violations of Sec. 8(h)(l)(A) of the Act 2 In the event that Ihis Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted b) Order of the National abhor Relations Hoard" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals LEnforcing ain Order of the National I habor Relations HBoard 264 NLRB No. 38 APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties participated and were afforded the opportunity to present evi- dence in support of their respective positions, it has been found that we have violated the National Labor Relations Act, as amended, in certain re- spects, and we have been ordered to post this notice and to carry out its terms. WE WILL NOT fail in our duty to fairly rep- resent employees by arbitrarily, and without lawful and legitimate reason, causing or at- tempting to cause employers to discharge, layoff, transfer, or otherwise discriminate against employees. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL make James R. Miller whole for any loss of earnings he may have suffered as a result of our having caused Arthur Paul, Jr., Electrical Contractor, Inc., to remove him from the job of standby electrician at the Exxon site in Clinton, New Jersey, on Febru- ary 9, 1981, with interest. LOCAL 262, INTERNATIONAL BROTH- ERHOOD OF ELECTRICAL WORKERS, AFL-CIO DECISION STATEMENT OF THE CASE EDWIN H. BENNETT, Administrative Law Judge: This matter was heard on November 19, 1981.' The com- plaint issued on March 31, alleging, in substance, that Local 262, International Brotherhood of Electrical Workers, hereinafter called the Union or Respondent, violated Section 8(b)(1)(A) of the Act by effecting a layoff or job transfer of James R. Miller on February 9. The underlying charge was filed by Miller on February 13. Respondent denies that it has violated the Act as al- leged and contends that whatever role it played in Mill- er's removal from the job was not in contravention of the statute. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of oral arguments and briefs filed by the parties, I make the following: ' Unless otherwise indicated all dates hereinafter are in 1981 251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FAC I I. J URISDICT 1ION Jurisdiction in this proceeding is predicated on the business operations of Arthur Paul, Jr., Electrical Con- tractor, Inc., herein called Paul or the Employer, a New Jersey corporation. The Employer is engaged as an elec- trical contractor in the building and construction indus- try providing such services to various enterprises in the State of New Jersey. On an annual basis, the Employer furnishes services valued in excess of $50,000 to enter- prises located in the State of New Jersey, including, inter alia, the Exxon Corporation, whose business operations satisfy one of the Board's direct standards for asserting jurisdiction. Respondent admits, the complaint (as amended on this issue) alleges, and I find that the Em- ployer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Further, the com- plaint alleges, Respondent admits, and I find that it is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES Miller has been a member of Respondent since 1959 and is classified as a journeyman wireman. For about the past 2-1/2 years he has worked for Paul at various job- sites including the construction of a research and devel- opment center for the Exxon Corporation at Clinton, New Jersey, where Paul was a subcontractor to a firm identified as Mercantine which in turn had its contract from Gilbane Construction, the construction managers. Another electrical contractor on the job at or about the same time working pursuant to a subcontract with Mer- cantine was Joyce Electrical. Both Paul and Joyce had identical collective-bargaining contracts with the Union. 2 In early February, Mercantine, it appears, was in the process of considering bids for certain standby electrical work from both Paul and Joyce that Gilbane had award- ed to Mercantine. On Friday, February 6, Paul was noti- fied by a Larry Rebel of Mercantine that Paul had been the successful bidder, and consequently it was to have a standby electrician assigned to the site on Monday, Feb- ruary 9, in addition to its other electricians already working there. The work of the standby electrician, also referred to as a temporary electrician, essentially was to handle all electrical needs for various contractors work- ing on the job, and to be prepared to handle any electri- cal emergency that might arise. Arthur Paul, owner of the Employer, credibly testified that because of this short notice he was required to make a hasty decision as to who would be assigned the job. At or about this time. Miller was working intermittently for the Employer at two Exxon jobsites, the one at Clinton and another one in Franklin Township. In addition, Miller did not live far from the Clinton site. For these reasons, Miller, whom Paul considered fully qualified to perform the job, was assigned by Paul, and he reported for work, as the stand- 2 These contracts were identical to an agreementl between the Urnilon and the Plainfield Disision of the Northern New Jersey Chapter, Inc. Natilonal Electrical Contractors Associationll Inc, named in the caption as a Parts in Interest I'aul was riot a member of this Ass( ciai.alo by electrician on February 9, at the Exxon site in Clin- ton. During the previous week the Union's business agent, Robert Cartwright, had been at the Exxon jobsite and had met with Pezzullo, construction manager for Gil- bane, who inquired of Cartwright as to which electrician would be the standby electrician on the job. Cartwright replied that this depended upon which contractor, i.e., Paul or Joyce, was awarded the work. Pezzullo told Cartwright that there was an electrician by the name of Jack Lacamera who had worked many months for Joyce at the Exxon site installing the electrical lines and there- fore was the most qualified person to be the standby electrician. Pezzullo impressed upon Cartwright that La- camera was preferred by him because of his familiarity with the electrical work at the site. On February 9, Cartwright visited the jobsite where he met with Paul and conveyed to him Pezzullo's re- quest that Lacamera be employed as the standby electri- cian. According to both Paul and Cartwright the conver- sation was polite and businesslike, devoid of any threats or coercive remarks. Cartwright informed Paul that it was Pezzullo's desire that Lacamera serve as the standby electrician. However, there is no doubt, and Cartwright candidly conceded. that he clearly requested that Laca- mera be hired in place of Miller in order to satisfy the desires of Pezzullo. Further, Cartwright did not seek to determine Paul's desires in the matter; i.e., whether or not Paul wanted to retain Miller or hire Lacamera. Arthur Paul testified that he acquiesced to Cartwright's suggestion and immediately removed Miller from the standby position and hired in his place Lacamera, an electrician whom Paul did not even know.3 Lacamera began work for Paul as the standby electrician February 10, and the job lasted until April. It appears from the record that this job carried with it higher rates of pay than the job to which Miller was then assigned. Arthur Paul further testified without contradiction that at no time did Mercantine or Gilbane request that Laca- mera be hired, or that Miller be removed, and that his sole reason for removing Miller from the job was that on February 9 Cartwright requested it be done. Arthur Paul credibly denied that Cartwright had mentioned prior to February 9 that Pezzullo had a preference for Lacamera. For that matter, the record leaves no doubt that, but for Cartwright's request to Paul on February 9, Miller would have remained as the standby electrician for the duration of that job. Cartwright testified that he did not act out of malice towards Miller, and indeed there is no suggestion in the record that he did, but that in asking Paul to hire Laca- mera he merely was seeking to have an individual who, in his opinion, possessed greater qualifications for that job than anyone else. Further, Cartwright believed that article VI of the Union's bylaws privileged his action. That article authorizes the business manager to "remove any member from any shop or job . . . when he decides the best interest of the Local Union requires such remov- l Miller stayed at the Clinton site for about 2-1 2 days performing other electrical work and then was sent by Paul to all cntirels different tobsite 252 LOCAL 262. IBEW al." Therefore, he had no hesitancy in accepting Pezzul- lo's request that Lacamera be hired as the standby elec- trician and in conveying that request to Paul Cartwright further testified that in recommending Lacamera's hire to Paul his only concern was to satisfy Pezzullo's request, and the fact that Lacamera at that time was unemployed was not, in any sense, a factor motivating his actions. 4 Indeed, Cartwright testified he "made a commitment to [Pezzullo to] .... do what I could do to have Mr. La- camera" hired as the standby electrician. That Cart- wright expected to fulfill this commitment is borne out graphically by Lacamera who testified that it was Cartwright, and not Paul, who told him on February 9 to report for work to Paul. III. ANALYSIS AND DISCUSSION There are two distinct issues presented for resolution. Did the Union (Cartwright) cause, or attempt to cause, Miller's layoff from the Clinton job? If so, did such con- duct restrain or coerce Miller in violation of Section 8(b)(l)(A) of the Act? Respondent argues for a no answer to the first question and contends that, as a matter of law, its conduct, no matter how it is character- ized, did not contravene the Act. The record evidence, in my judgment, indisputably es- tablishes that Cartwright caused Paul to remove Miller from the Clinton job on February 9. We need not look beyond Cartwright's testimony for this conclusion. He committed himself to Pezzullo to achieve that result, he urged Paul to follow his recommendation that Lacamera be hired, and it was he not Paul who notified Lacamera that he was hired. When coupled with Paul's ready ac- quiescence, the fact that Paul was satisfied with Miller's job performance, and that Lacamera was a total stranger to him, to deny that the Union "caused" Miller's remov- al from the job is to deny the plain meaning of that word. These circumstances, together with the fact that Paul was tied to the Union by a collective-bargaining agreement, and enjoyed cordial relations with the Union which he no doubt desired to maintain, compel a finding that Cartwright's recommendation amounted to more than a bare, naked, inconsequential request. It was, rather, a direct instruction to Paul amounting to an effi- cacious request, satisfying the term "cause or attempt to cause" as used in the Act. San Jose Stereotypers' and Elec- trotypers' Union No. 120, etc. (Dow Jones & Company, Inc.), 175 NLRB 1066, fn. 3 (1969); American Bakery and Confectionery Workers International Union, AFL-CIO, Local 173 (Continental Baking Company, Inc.), 128 NLRB 937 (1960). Furthermore, when union conduct adversely affects employment opportunities in this manner, it visits eco- nomic sanction upon an employee within the definition ' There was a contention made at the hearing, renewed again in Re- spondent's brief. that Lacamera's unemployment status in part justified the Union's actions Lacamera had worked for Joyce at Clinton until about February 4. Cartwright was asked if this fact motivated his recom- mendation to Paul His reply was. "To answer your question directly, no sir. If I had not had the very specific request from Pezzullo. I would not have recommended Jack Lacamera." In light of this testimony, the oper- ation of the hiring hall run by the Union. as it might have applied in La- camera's case. was not litigated further, and Respondent's argument in this respect is rejected as contrary to the esidence of the words "restraint and coercion" as used in Section 8(b)(1)(A). An economic pressure of this kind interdicts the intendment of Section 8(b)(I)(A) both directly and derivatively when Section 8(b)(2) is involved.5 We turn then to whether the Union's conduct meets the test of lawfulness, or runs afoul of Section 8(b)(1)(A), because it constituted an exercise of union power for an illegitimate purpose. It is now well recognized that a union properly may affect an employee's status and that "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 infringe upon the employment relationship which are arbitrary, invidious, or irrelevant to legitimate union interests." Ashley. Hick- ham-Uhr Co., 210 NLRB 32 (1974). It is this last criteria that is involved here. The touch- stone for resolving this question under Section 8(b)(1)(A) of the Act is whether or not the Union has dealt fairly with the employee, 6 for there are countless situations when union action will leave an employee dissatisfied but without recourse to statutory relief. Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). Respondent's reason for having Miller replaced by Lacamera was that it was sat- isfying not some union concern, but rather the legitimate concerns of the construction manager.7 Therefore, argues Respondent, inasmuch as Gilbane had a legitimate purpose, i.e., to have the best man on the job, the Union is cloaked with that same purpose. I do not agree with Respondent's argument. While Gilbane may have been able to request Paul to hire La- camera, or even conditioned the award of the job to Paul on Lacamera's hire, without Gilbane having violat- ed the Act, Gilbane did not do so.8 But the Union has a statutory duty to employees it represents which has no counterpart in employer-employee relations, and thus a union is subject to statutory obligations that simply are irrelevant to an employer. When a union deprives an employee it represents from employment opportunities, as Respondent did here, it must justify that act by demonstrating that it was for the benefit of the bargaining unit as a whole. Cf. Ohio Valley Carpenters District Council, etc. (Cincinnati Fixtures. Inc.), 226 NLRB 1032 (1976). Here, Respondent's justification was that it acted for the benefit of an employer, and one which was a total stranger to the bargaining unit at that. s The issue is discussed at length by the Trial Examiner in United Me- chanics' Union Local 150-F etc. (.4American Photocopy Equipment Compa- ny), 151 NLRB 386. 393-395 (1965) Miranda Fuel Company. Inc. 140 NLRB 181 (11962). The Union also asserts that because it acted merely as a conduit for Gilbhane it bears no legal responsibility for Miller's removal Respondent cannot hide behind Gilbane's skirts in this matter It is precisely because of its role in causing Miller's replacement that it must bear whatever legal consequences flow therefrom I Why Gilbane did not directly inform Mercantine or Paul that it wanted Lacamera on the job is unanswered in the record, and need not be answered to resolve the case. However, two possibilities seem appar- ent. Either Gilbane did not feel as strongly about having Lacamera on the job as the evidence suggests, and it was Cartwright who was sponsor- ing his employment, or Gilbane believed that the ULnion had greater powers of persuasion than it had 253 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gilbane hired no electricians and in fact had no contract with the Union.9 Moreover, Cartwright accepted without question Pez- zullo's assertion that Lacamera was the best man for the job. He made no effort at all to determine if Miller's qualifications were as good, and this despite Paul's com- plete satisfaction with Miller. Such total reliance on an employer's assertion to the detriment of a unit employee is an abdication of the union's responsibility owed to the employees. Newport News Shipbuilding & Dry Dock Com- pany, 236 NLRB 1470 (1978). When reduced to its essentials, Cartwright's actions were the exercise by him of union power to satisfy the desires of a contractor for whatever reason. That exer- cise of power had no basis in established union policy, in the contract, or in any statutory provision. Nor has it been shown that such actions served any legitimate union purpose or that it advanced the interests of the unit or membership as a whole. Accord: United States Postal Service, 240 NLRB 1198 (1979). Accordingly, I conclude that the Union violated Section 8(b)(l)(A) when it caused Paul, on February 9, to remove Miller as the standby electrician. ' CONCL USIONS OF LAW 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Arthur Paul, Jr., Electrical Contractor, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By causing the Employer to terminate James R. Miller's employment as the standby electrician at the Exxon jobsite at Clinton, New Jersey, on February 9, 1981, the Union breached its duty of fair representation in violation of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. TlEm REMI DY Having found that Respondent has breached its duty of fair representation in violation of Section 8(b)(l)(A) of the Act I shall recommend that it cease and desist there- from and take certain affirmative action designed to ef- fectuate the policies of the Act. Because the record re- veals that Miller was transferred to a job that paid less than the standby position, the recommended Order shall provide for reimbursement of hackpay to him. As it ap- pears that the standby position was temporary in nature the backpay period shall run from the date on which Miller was removed from that position until the date that job ended. Miller shall be made whole by payment to 9 Ihis fact alone renders null Respondenlt's argument that its collec- tive-bargaining agremelnt sith Paul permitted its actions. The hiring hall provisions of that agreement, ll icl I hare founld inapplicable in any event, provide for referral to the contract employer of an electrician with special skills. even if that electrician 'ould not lnormalfly be Ihe next one referred, Xwhere a special request has been made t'aul of course made no such request, and Giilhanle. as noted. had no standing to invoke the con- tract. This "justification" strikes me as an afterthought. 0 Because the General Counsel expressly declined to allege an 8(b)(2) \xiolation as \%ell. I make II,) inllding .is Io this provision of the Act him of the loss of pay he suffered during that period with interest thereon. The amount due shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977)." It also appears that, although the Union's conduct at issue in this case involved only one employee at one em- ployer, this was a fortuitous happenstance. The conduct, as conceded by the Union, was not directed solely at Miller, but grew out of the Union's misunderstanding of the nature of the duty of fair representation it owes to employees generally. In light of this, and the fact that the Union, in failing to represent Miller, relied at least in part upon its bylaws and upon the same collective-bar- gaining agreement it has with Paul as well as with a mul- tiemployer association, I shall not limit the recommended Order to employees of the Employer involved but shall require the Union to acknowledge its duty of fair repre- sentation to all the employees it represents. 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: ORDER' 2 The Respondent, Local 262, International Brotherhood of Electrical Workers, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Failing in its duty to fairly represent employees by arbitrarily, and without lawful and legitimate reason, causing or attempting to cause employers to discharge, layoff, transfer, or otherwise discriminate against em- ployees. (b) Interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act in any like or related manner. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Make James R. Miller whole for any loss of earn- ings he may have suffered as a result of having caused his removal from the standby electrician position, in the manner set forth in the section entitled "The Remedy." (b) Post in conspicuous places at its business offices, meeting halls, and all places where notices to members customarily are posted copies of the attached notice marked "Appendix." Copies of said notice, on forms pro- vided by the Regional Director for Region 22, after being duly signed by an authorized representative of Re- spondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. II See, generally, IPis Plumbing & Hearing Co.. 138 NLRB 716 (1962). t2 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National L abor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted b) the Board and become its findings. cochlusions. and Order, and all objections thereto shall be deemed waived for all purposes 254 LOCAL 262, IBEW (c) Sign and mail sufficient copies of said notice to the Regional Director for Region 22 for posting by the Em- ployer, if willing, at all locations where notices to its em- ployees customarily are posted. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 255