Electrical Workers Ibew Local 113 (Pride Electric)

ELECTRICAL WORKERS IBEW LOCAL 113 (PRIDE ELECTRIC) International Brotherhood of Electrical '' Worker's, Local 113 (Pride Electric, Inc.) and Daniel S. Robertson. Case 27-CB-2284 26 February 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 11 July 1986 Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief, The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Brotherhood of Electrical Workers, Local 113, Colorado Springs, Colorado, its officers, agents, i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cu 1951) We have carefully examined the'record and find no basis for reversing the findings In adopting the judge's finding that Robertson was a management rep- resentative within the meaning of Sec. 8(b)(1)(B) of the Act, we particu- larly rely on the judge's finding that Robertson in fact was authorized to adjust grievances on the job. In this regard, we further note that it is not necessary for a supervisor to handle "contractual" grievances to be con- sidered an 8(b)(IXB) representative. Elevator Constructors Local I (Otis Elevator), 281 NLRB 907 fn. I (Sept. 30, 1986), Typographical Union 529 (flour Publishing), 241 NLRB 310, 315 (1979). 2 The ' Respondent contends, relying ' on NLRB Y. Electrical Workers IBEW Local 340, 780 F.2d 1489 (9th Cir 1986), denying enf. 271 NLRB 995 (1984), that it did not violate Sec 8(b)(1)(B) by disciplining Robert- son for working for Pride Electric, a nonsignatory employer, because the Respondent neither represents nor has demonstrated an intent to repre- sent the employees of Pride Electric. We adhere to the Board's decision reported at 271 NLRB 995, and further note that the Supreme Court granted the Board's petition for certiorari in that case on 6 October 1986. Finally, in adopting the judge's conclusion that the Respondent's filing of a lawsuit against Robertson to collect the $4000 fine violated Sec 8(b)(1)(B), we reject the Respondent's contention that the filing of the lawsuit cannot be an unfair labor practice in light of Bill Johnson's Res- taurants v, NLRB, 461,U.S.,731 (1983). In Bill Johnson's, the Court ob- served that its holding did not apply to a spit that "has an objective that is illegal under federal law," and gave as an example "Board orders en- joining unions from prosecuting court suits for enforcement of fines that could not lawfully be imposed under the Act " Id at fn 5 We therefore conclude that Bill Johnson's does not preclude a finding that the Re- spondent's court action is unlawful Laundry Workers Local 3 (Virginia Cleaners), 275 NLRB 697 (1985). 39 and `representatives,, shall take the action set forth in the Order. A. E. Roybal and Albert A. Metz, Esqs., -of Denver, Colo- rado, for the General Counsel. Dennis E. Valentine, Esq. (Brauer & Buescher), of Denver, Colorado, for the Respondent. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was tried in Colorado Springs, Colorado, on 18 March 1986,1 based on a complaint2 alleging that Inter- national Brotherhood of Electrical Workers, Local 113 (Respondent) violated Section 8(b)(1)(B) of the National Labor Relations Act (Act) about 12 June, 1985 by assess- ing a disciplinary fine of $4000 against Daniel S. Robert- son, a supervisor for Pride Electric, Inc. (Pride), and, about 25 September 1985, by bringing civil suit against Robertson to collect the fine.3 As is later concluded, after an examination of the rele- vant evidence and applicable legal principles, Respond- ent violated the Act both as alleged and by coincidental- ly expelling Robertson from membership in the Interna- tional Brotherhood of Electrical Workers. 1. JURISDICTION The parties stipulate that Pride meets specified juris- dictional standards of the National ]Labor Relations Board, and thus is an employer engaged in,and affecting commerce within Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION' Respondent concededly is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED MISCONDUCT A. Facts From mid-February to about 20 April 1985, Pride was the electrical subcontractor in the construction of seven Royal Fork restaurants-five in the Denver area, two in Colorado Springs. Its complement-about 16 people split between two shifts-spent a week or so at each site, fin- ishing its work there before moving, to the next site. The complement was not represented by any labor organiza- tion. Robertson, hired by Pride in February to serve as its foreman in this undertaking, was the ranking' person in the complement at all but one of the sites. He credibly testified that -his role was "to run the job, to supervise i This manner of setting forth dates comports with the wishes of the Board 2 The underlying charge was filed on I1 December 1985, and amended on 21 January 1986, followed by an amended complaint on 26 February and an amendment to the latter at the start of the trial 2 Sec 8(b)(1)(B) makes it "an unfair labor practice for a labor organi- zation . to restrain or coerce an employer in the selection of his representatives for the purposes of collective bargaining or the adjust- ment of grievances." 283 NLRB No., 8 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the men," and that he did not work with the tools of the electrical trade while so doing.4 Similarly, Pride's presi- dent, Margaret Harrison, credibly testified that Robert- son was hired to "run a crew," not to do electricians' work. Both elaborated, convincingly and without refuta- tion, that he possessed sundry specific indicia of supervi- sory authority. Thus, Robertson averred, "it was [his] responsibility to take care of the time . . . to discipline the men and to settle any grievances that the men had on the job . . . to authorize overtime as [he] saw fit . . . to give [the jour- neymen] their particular job assignment, and to make sure that their apprentices had enough work to keep them busy." Robertson added that he transferred em- ployees "from job to job within the project . . . all the time," that he transferred employees "off the project .. . several times," and that he received a higher wage be- cause of his position. To like effect, Harrison particularized that Robertson "kept track of all of the working hours on the job"; that he "was in charge of running overtime if it was neces- sary to get the job completed on time"; that, while he did not-actually hire, he "picked the crew" from among Pride's existing employees; that, although he never dis- charged anyone, outright, he "laid [employees] off from the project and sent them into the shop"; that he "had the authority" to "fire" anyone showing a "blatant disre- gard for safety"; and that, "if somebody came to him sick or injured or just . . . plain didn't want to work, he had the authority to allow them to leave the job or to dismiss them at that point." Robertson did not belong to Respondent at any rele- vant time. He was a member, however, of a sister local, Electrical Workers Local No. 68, through March 1985, after which he apparently resigned. He obtained the job with Pride by pursuing a newspaper advertisement, and without being cleared through the hiring halls of these or any other labor organizations. He left Pride on its completion of the Royal Fork projects in April. On 29 March 1985, three officials of Respondent vis- ited the Colorado Springs site where Pride was then en- gaged. One of the three, Lyndon Zak, a member of its executive board and an acting hiring hall dispatcher, had a brief exchange with Robertson, asking him if it was "a union job" and if he was "a union member." Robertson answered no to the first question; and, in response to the second, presented his Local No. 68 membership card showing his dues to be paid through March. Zak and his companions then confronted other of Pride's employees. "They sail;" according to Zak, "that they were all ap- prentices . .. or helpers." Zak added, "There was only one there that had any kind of registration with the state electrical board." Later on 29 March, Zak brought internal union charges against Robertson by means of a letter to Re- spondent stating: I,' L. J. Zak, Card No. D-315891, a member of Local Union # 113, IBEW, hereby prefer charges 4 The record indicates that Robertson sometimes wore a tool belt He testified that this was "so that someone else could use [his] tools " against Brother Daniel S. Robertson, Card no. D- 105787, member of Local Union No. 68, I.B.E.W., whose last known mailing address is 1530 Sheridan Avenue, Denver, CO for violation of the following: AGREEMENT-Article All-Section-All-Sub- section-All BY-LAWS-Article XIV-Section-I1 CONSTITUTION Article XXVII-Section-l- Subsection 5, 6 & 17 The violation occurred on March 29, 1985, at ap- proximately 9:55 A.M., at King's Table/Royal Fork, 3020 E. Platte Avenue, Colorado Springs, Colorado 80909. The violation occurred as follows: I went in and found Daniel S. Robertson working without a clearance from Local Union # 113, I.B.E.W. and working three (3) apprentices. Ap- prentices were not members of any Locals. Respondent informed Robertson of the charges against him by letter dated 9 May, enclosing- a copy of Zak's letter and advising him to appear before its trial board on 12 June at 5:30 p.m. to answer them. The trial board convened on 12 June as scheduled, and informed Robertson of its decision by this letter, dated 24 June: Please be advised the Executive Board, sitting as the Trial Board of Local Union # 113, IBEW on June 12, 1985, after due consideration of the evi- dence presented has acted upon the charges filed against you by Brother Lyndon J. Zak. Violation of the I.B.E.W. Local Union #113, Agreement: 1. All Articles All Sections; Decision of guilty and assessed $1,000.00 for this violation Violation of the I.B.E.W. Constitution: 1. Article XXVII, Section 1, Subsection 5; Decision of guilty and assessed $500.00 for this violation. 2. Article XXVII, Section 1, Subsection 6; Decision of guilty and assessed $1,000.00 for this violation and expulsion from the I.B.E.W. 3. Article XXVII, Section 1, Subsection 17; Deci- sion of guilty and assessed $500.00 for this violation Violation of the IBEW Local Union #113, By- Laws: 1. Article XVI, Section 11; Decision of guilty and assessed $1,000.00 for this violation The total assessments levied [on] you for the above violations amount to $4,000.00 plus expulsion from the International Brotherhood of Electrical Work- ers. You are hereby notified of your right of appeal of the above findings as described in Article 27, Sec- tion 12-15 of the IBEW Constitution. ELECTRICAL WORKERS IBEW LOCAL 113 (PRIDE ELECTRIC) On 25 September 1985, Respondent brought suit against Robertson in Denver County to collect the $4000, plus interest and costs. The complaint alleges that the claim arose from "the following event or transac- tion": The Defendant worked for and was employed by a contractor in violation of the collective bargaining agreement; Article XIV, Section 11 of the By-Laws of the International Brotherhood of Electrical Workers, Local 113 ("IBEW, Local 113") and Arti- cle XXVII, Section 1, Subsections 5, 6 and 17 of the Constitution of the International Brotherhood of Electrical Workers ("IBEW" ): Defendant was obli- gated and bound by the collective bargaining agree- ment, IBEW, Local 113 By-Laws and IBEW Con- stitution at the time of these events as a result of his membership in IBEW and his work and employ- ment within the area of jurisdiction of IBEW, Local 113 in accordance with the By-Laws and Constitu- tion which placing [sic] him under the jurisdiction of IBEW, Local 113. The trial was to be held on 8 April 1986. The "agree- ment" the trial board found Robertson to have violated in totality ("All Articles All Sections") is the collective- bargaining contract between Respondent and the South- ern Colorado Chapter of the National Electrical Con- tractors Association. It provides, among other things, that "the Union shall be the sole and exclusive source of referral of applicants for employment," and that an em- ployer is to have no more than one apprentice for from one to three journeymen, and no more than two, appren- tices, for from four to six journeymen. Those subsections of article 27, section 1, of the consti- tution Robertson was found to have violated provide that a member "may be penalized" for: (5) Engaging in any act or acts which are contrary to the member's responsibility toward the I.B.E.W., or any of its [Local Unions], as an institution, or which interfere with the performance by the I.B.E.W. or a L.U. with its legal or contractual ob- ligations. (6) Working for, or on behalf of, any employer, em- ployer-supported organization, or other union, or the representatives of any of the foregoing, whose position is adverse or detrimental to the I.B.E.W. (17) Working for any individual or company de- clared in difficulty with a 'L.U. or the I.B.E.W., in accordance with this Constitution. That section of article 14 of the bylaws found to have been violated -states: Sec. 11. The handling of jobs for unemployed mem- bers shall be under the full supervision and direction of the Business Manager. He shall devise such means as are considered practical and fair in distrib- uting available jobs to qualified members. Members 41 'violating any rule or plan established shall be penal- ized as decided by the Executive Board. B. Conclusions , The testimony of Robertson and Margaret Harrison, previously detailed and credited, establishes that Robert- son's duties required that he exercise substantial amounts of independent judgment in handling Pride's employees. The conclusion necessarily follows that he was a super- visor as defined by Section 2(11) of the Act.5 The Board takes the view that "persons who are su- pervisors within the meaning of the Act are employer representatives within the meaning of Section 8(b)(1)(B)" even if not "actually vested with authority to act for .[their] employer in collective bargaining or the adjust- ment of grievances."6 It reasons that "such individuals form the logical `reservoir' from which the employer is likely to select his representatives for collective, bargain- ing or grievance adjustment,"7 A union consequently violates Section 8(b)(1)(B), under Board law, when it visits disciplinary sanctions on a supervisor-member "unless the offense occasioning the discipline involves a matter purely of internal union ad- ministration, unrelated, either directly or indirectly, to any dispute between the union and the employer," or unless the "supervisor-member is disciplined after he has engaged in more than a minimal amount of rank-and-file work during a strike."8 By matters of internal,union ad- ministration, the Board contemplates such things as "fail- ing to pay . . . union dues or ... disturbing a union meeting."9 Further, the Board reads the word "grievances" in Section 8(b)(1)(B)-and in the Section 2(11) definition of supervisors-to embrace employee grievances unrelated to collective bargaining.'10 This means, the so-called res- ervoir doctrine aside, that a supervisor who deals with employee complaints or problems relating to job assign- ments, time off, etc., is an 8(b)(1)(B) grievance adjust- er.11 The foregoing principles apply regardless of the exist- ence of a collective-bargaining relationship. 12 Applying the reservoir' doctrine to the situation at hand, Robertson, as a supervisor, was a management rep- resentative under Section 8(b)(1)(B). Respondent's acts of fining him and expelling him from membership in the 5 E.g , Electrical Workers IBEW Local 340 (Hulse Electric), 273 NLRB 428, 438 (1984), Electrical Worker. IBEW Local 340 (Royal Electric), 271 NLRB 995, 997 (1984), enf. denied 780 F 2d,,1489 (9th Cir. 1986). 6 Carpenters Local 14 (Max M, Kaplan Properties), 217 NLRB 202 (1975). See also Musicians (Royal Palm Theatre), 275 'NLRB 677, 682 fn 8 (1985), Teamsters Local 296 (Northwest Publications), 263 NLRB 778, 779 fn 6 (1982) 7 Hulse Electric, supra at 430 fn 5; Royal Electric, supra at 997 fn. 5 The evolution of the "reservoir doctrine" is traced in Florida Power & Light v Electrical Workers, 417 U S 790, 798-802 (19'74) 8 Max M. Kaplan Properties, supra at 202 fn 6. 8 ,bid 10 Royal Palm Theatre, supra at 677 fn 2, 679 fn. 6 and accompanying text; Hulse Electric, supra at 430, 434-435, Royal Electric, supra at 997 fn 5. 11 Ibid 12 Royal Palm Theatre, supra 680-681, Hulse Electric, supra at 440-441, Royal Electric, supra at 1001-1002. 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD parent international did not involve 'a matter of internal union administration, moreover; nor were they prompted by his doing rank-and-file work during a strike. The fine, the expulsion, and the court action to collect the fine therefore violated, Section 8(b)(1)(B) as alleged. 13 Alternatively, given the credited testimony of Robert- son and Harrison, respectively, that he was responsible for "settl[ing] any grievances that the men had on the job," and that, "if somebody came to him sick or injured or just ... plain didn't want to work he had the author- ity to allow them to leave the job," Robertson in fact was authorized to adjust grievances within Section 8(b)(1)(B). The fine, the expulsion, and the lawsuit conse- quently violated that section by this approach, as well.14 CONCLUSIONS OF LAW By fining Robertson $4000 and expelling him from membership in the International Brotherhood of Electri- cal Workers following a trial board hearing on ,12 June 1985, and by suing him on 25 September 1985 to collect the fine, Respondent in, each instance violated- Section 8(b)(1)(B) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed15 ORDER The Respondent, International Brotherhood of Electri- cal Workers, Local 113, its officers,, agents, and repre- sentatives, shall 1. Cease and desist from (a) Restraining or coercing Pride Electric, Inc., in the selection of its representatives for the purposes of collec- tive bargaining or the adjustment of grievances by press- ing charges, holding,trial board hearings, fining, suing to collect such fines, expelling from, membership in the '3 Although the complaint says nothing about Robertson's expulsion, the underlying disciplinary proceeding was fully litigated. The legality of the expulsion therefore is properly on the table. Expulsion in the circum- stances is no less unlawful than is the fine Electrical Workers IBEW Local 323 (Drexel Properties), 255 NLRB 1395 (1981), enfd. 703 F.2d-01 (11th Cir 1983). 14 Respondent's argument is rejected that its ignorance of Robertson's supervisory status is exonerative. Hulse Electric, supra at 438 fn 24 Also rejected is Respondent's contention that, since Robertson-and presum- ably Pride--did not learn about the internal union charges herein, let alone the conduct in issue, until after he had left Pride, that conduct "logically . . cannot coerce Pride" within the purport of Sec. 8(b)(1)(B). This ignores the inherently coercive effect of the conduct, prospectively, on Pride's selection of 8(b)(1)(B) representatives, not to mention the untoward diminution of Sec 8(b)(1)(B), particularly in sea- sonal industries, were unions so easily to evade its prohibition Rejected, finally is the defense raised in Respondent's answer (but not mentioned in its brief) that the conduct in issue is outside the 6-month limitation period prescribed by Sec 10(b) of the Act Although Robert- son was informed of the charges against him over 6 months before he filed the present unfair labor practice charge, Respondent did not take the "unconditional and unequivocal" actions in question until well within the 10(b) period Stage Employees L4TSE Local 659 (Paramount Pictures), 276 NLRB 881 (1985), Wisconsin River Valley District Council (Skip)9y En- terprises), 211 NLRB 222, 226 (1974) is If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses International Brotherhood of Electrical Workers, or oth- erwise disciplining Daniel S.- Robertson, or any other su- pervisor or representative of 'Pride Electric acting in that capacity, for allegedly violating the provisions of a col- lective-bargaining agreement, Respondent's bylaws, or the constitution of Respondent's parent international. (b) In any like or related manner restraining or coerc- ing Pride Electric in its selection of representatives for the purposes of collective, bargaining, or the adjustment of grievances. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Rescind the disciplinary action taken against Rob- ertson for working as a supervisor and employer, repre- sentative for Pride Electric, Inc., including the $4000 fine assessed against him and his expulsion from membership in the .parent international; remove from its records all references to and evidence of those actions; notify him in writing that these steps have been taken; and make him whole for any loss of earnings and-benefits he may have suffered, and for any travel and other expenses he may have incurred, to attend the trial board proceeding against him on 12 June 1985.16 (b) Withdraw with prejudice the lawsuit filed against Robertson to collect the fine; or-if judgment adverse to him has-been entered, cause it to be vacated with, preju- dice; make him whole for all expenses incurred in the de- fense of this suit; and also make him' whole for any losses suffered and expenses incurred, in the manner set forth in the preceding paragraph, to attend the trial and any pro- ceeding relating thereto. (c) Return to Robertson, with interest, any moneys collected from him in satisfaction of the fine.' (d) Reinstate Robertson, -if he wishes, as a member in good standing of International Brotherhood of Electrical Workers. (e) Notify Pride Electric, in writing, that Respondent has no objection to Robertson's working for it as a su- pervisor and representing it for the purposes of collec- tive bargaining or the adjustment of grievances. (f) Post at its business office and meeting halls copies of the attached notice marked "Appendix."1S Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. 16 That Robertson is entitled to be made whole in this manner is estab- lished by Laborers Northern California Council (Baker Co.), 275 NLRB 278 (1985). 14 Interest shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 18 If this Order is -enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted ,by Order of the Nation- al 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 " ELECTRICAL WORKERS IBEW LOCAL 113 (PRIDE ELECTRIC) (g) Sign and return to the Regional Director sufficient copies of the notice for posting by Pride electric , Inc., if willing, at all places where notices to employees are cus- tomarily posted. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To -EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT restrain or coerce Pride Electric, Inc., in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances by pressing charges, holding trial board hearings, fining, suing to collect such fines, expelling from membership in the International Brotherhood of Electrical Workers, or otherwise disciplining Daniel S. Robertson , or any other supervisor or representative of Pride Electric acting in that capacity, for allegedly violating the provisions of a collective-bargaining agreement, our bylaws, or the con- stitution of our parent international. WE WILL NOT in any like or related manner restrain or coerce Pride Electric in its selection of representatives for the purposes of collective bargaining or the adjust- ment of grievances. 43 'WE WILL rescind the disciplinary action taken against Robertson for working as a supervisor and employer rep- resentative for Pride Electric, Inc.,, including the $4000 fine assessed against him and his expulsion from member- ship in the parent international ; WE WILL remove from its records all references to and evidence of those ac- tions; WE WILL notify him in writing that these steps have been taken; and WE WILL make him whole for any loss of earnings and benefits he may have suffered, and for any travel and other expenses he may have incurred, to attend the trial-board proceeding against him on 12 June 1985. WE WILL withdraw with prejudice the lawsuit filed against Robertson to collect the fine; or if judgment ad- verse to him has been entered, WE WILL cause it to be vacated with prejudice; WE WILL make him whole for all expenses , incurred in the defense of this suit; and WE WILL also make him whole for any losses suffered and expenses incurred, in the manner set forth in the preced- ing paragraph, to attend the trial and any proceeding re- lating thereto. WE WILL return to Robertson, with interest, any moneys collected from him in satisfaction of the fine. WE WILL reinstate Robertson, if he wishes, as a member in good standing of International Brotherhood of Electrical Workers. WE WILL notify Pride Electric, in writing, that we have no objection,to Robertson's working for it as a su- pervisor and representing it for the purposes of collec- tive bargaining or the adjustment of grievances. INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS, LOCAL 113