International Association Of Bridge, Structural And Ornamental Iron Workers (Walker Construction Co.)

770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Association of Bridge , Structural and Ornamental Iron Workers (Walker Construction Company) and James W. Stevens. Case 16-CB- 2255 11 September 1987 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 13 December 1985 the National Labor Rela- tions Board issued its original Decision and Order' in the above-entitled proceeding, finding that the Respondent International Union violated Section 8(b)(1)(A) of the Act by removing from office and otherwise disciplining Stevens, president of the Re- spondent's Local 263, for filing charges with the Board. The Respondent was ordered to reinstate Stevens as president of Local 263, remove all sanc- tions against him, and, in the event Stevens paid the fine unlawfully imposed on, him, make him whole for the amount exacted from him. Thereaf- ter the Respondent contended in a motion for re- consideration filed on 6 January 1986 that, inter alia, Stevens' term had expired and the Local, in the interim, had elected a new president. In this regard, the Respondent stated that neither it nor the Board have "jurisdiction" to set aside the 24 June 1985 election. The Respondent's factual con- tentions in its motion were not contested. On 13 May 1986 the Board issued a Supplemental Deci- sion and Order denying the Respondent's motion for reconsideration and granting the General Coun- sel's motion to modify the Board's Order.2 Thus, the Order was modified to vacate the 24 June 1985 internal union election or any other election held before Stevens is reinstated to the presidency and has served as president for a period equal to the amount of time remaining in his term of office when he was unlawfully removed, and until the un- lawful sanctions imposed against him are removed and he has sufficient time to conduct a campaign to be nominated for and to run for the presidency of Local 263, if he so desires. Subsequently, the Respondent filed its petition for review and the Board filed its cross-application for enforcement of its decision with the Fifth Cir- cuit Court of Appeals. Thereafter, the Board decid- ed, sua sponte, to reconsider its decision, and its motion seeking remand of the proceeding to the Board was granted by the court on 25 September 1986. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board on 13 January 1987 notified the par- ties to this proceeding of their opportunity to submit statements of position "with respect to the issues raised by the reconsideration." More specifi- cally, on 6 February 1987 the Board advised the parties that it would address the following issues pertaining to the reinstatement remedy: (1) whether the Board's action in ordering reinstatement con- flicts with or is precluded by other Federal stat- utes; (2) whether the Respondent lacks the author- ity under the Union's constitution and bylaws to vacate internal union elections of its locals, and whether the Board has the authority to direct such action by Local 263, which is not a party in this proceeding; and (3) whether, with particular atten- tion to NLRB v. Financial Institution Employees of America Local 1182 (Seattle-First National Bank), 475 U.S. 192 (1986), the Board's remedial order im- permissibly interferes with internal union affairs. The Board also requested a statement of position from the Department of Labor whether any of the Federal statutes that the Department of Labor, ad- ministers precludes the Board from setting aside an internal union election in connection with an order to reinstate a union official. Statements of position were submitted by the General Counsel, the Re- spondent, 3 and the Department of Labor. In response to the Board's request for statements of position, the Solicitor of the Department of Labor states, in substance, that the Secretary of Labor has the exclusive authority, pursuant to spe- cific remedial provisions, including the requirement of the exhaustion of internal union remedies, set forth in the Labor-Management Reporting and Dis- closure Act (LMRDA), 29 U.S.C. § 481 et seq., to challenge internal union elections. He further states that a Board order requiring Stevens' reinstatement as union president could prevent the Local from holding the next regularly scheduled election, which is required by statute to be held in 1988. See 29 U.S.C. § 481(b). The Solicitor adds, "It is not inconceivable that an actual conflict might arise be- tween the Board's Order and the Secretary's au- thority to act under Title IV." The Respondent, in effect, concurs with the So- licitor's statements. Additionally, the Respondent maintains generally, inter alia, that the constitution and bylaws of the Union do not give the Interna- tional the authority to vacate local union elections 1 277 NLRB 1071 (1985) 2 279 NLRB 918 (1986) 8 The Respondent has requested oral argument . This request is denied as the record, exceptions, briefs, and statements of position adequately present the issues and the positions of the parties. 285 NLRB No. 86 IRON WORKERS (WALKER CONSTRUCTION) 771 or to reinstate local union officers, and that the Board cannot order Local 263 to do so directly be- cause the Local is not a named party to this pro- ceeding. Therefore, the Respondent contends that, at most, the Board can order the International to notify Local 263 of the terms of the Board's Order and request its adherence to those terms. The General Counsel's present position is that an order vacating the 1985 June election and reinstat- ing Stevens as president of Local 263 would in "the particular circumstances of this case unduly interfere with a proper balance between the com- peting policies of the National Labor Relations Act and the LMRDA." In this regard, the General Counsel maintains that Stevens will be able to par- ticipate in the Local's June, 1988 internal election because the sanctions imposed by the Union expire by their own terms in January 1988, and that, ac- cordingly, a remedial order insuring such participa- tion would best accommodate the purposes of the NLRA and the LMRDA. The General Counsel also requests that the Board's Order be modified to include a provision requiring the Respondent to waive all time limitations contained in the Re- spondent's constitution and bylaws in order to permit Stevens to exhaust his internal union reme- dies with respect to his exclusion from participation in Local 263's 24 June 1985 election. The General Counsel contends that such a remedial provision would enable Stevens to challenge that election before the ]Department of Labor. Finally, the Gen- eral Counsel contends that the International consti- tution4 grants the Respondent broad authority to direct the affairs of its locals, and therefore the International has the authority to effectuate the re- medial action ordered by the Board. In support of this assertion, the General Counsel cites, inter alia, article IX, section 11 of the Respondent's constitu- tion which grants the general president the author- ity to order a local to cease certain practices or order a local to disband whenever, in the general president's judgment, members of the local "are working against the best interests of the Interna- tional", and article XII, section 7 which grants the general executive board the authority to place any local under its direct supervision when necessary to carry out the legitimate interests of the Internation- al. The Board has reconsidered its initial and supple- mental Decisions and Orders in light of the entire record and the statements of position submitted by the parties. Having duly considered the matter, we grant counsel for the General Counsel's withdraw- al of his previous request that the Board vacate the 4 Respondent International's constitution and Local 263's bylaws are part of the record in this case intervening internal union election and reinstate Stevens to the local presidency.5 In so doing, we note that it appears that the remedial action we shall provide here may be largely effectuated by the Respondent without the participation of Local 263. To the extent that the participation of Local 263 may be necessary, however, we note that the General Counsel's assertion that particular provi- sions of the International constitution grant the Re- spondent broad authority to direct the affairs of its locals is supported by the record and not refuted with specificity by the Respondent. Accordingly, we have decided, to this extent, to adopt the Gen- eral Counsel's proposed remedy. Thus, we shall order the Respondent Internation- al to cease and desist from engaging in certain unfair labor practices and to take certain affirma- tive action designed to effectuate the policies of the Act or, if appropriate, to direct Local 263 to do so to the fullest extent permitted under the Respond- ent's' constitution and bylaws. In this regard, we shall order the Respondent to remove or direct Local, 263 to remove all sanctions against Stevens. In the event Stevens paid the fine unlawfully im- posed on him, we shall also order the Respondent to reimburse and make him whole for the amount unlawfully exacted from him, with interest, as pro- vided in New Horizons for the Retarded.s Further, we shall order the Respondent to waive, or direct Local 263 to waive, to the extent permitted by the Respondent's constitution and bylaws, time limita- tions, if any, regarding Stevens' right to exhaust in- ternal union remedies with respect to his exclusion from participation in the 24 June 1985 election for the presidency of Local 263. With respect to our -decision on the merits of the violation, we adhere to our finding in the original decision that the Respondent violated Section 8(b)(1)(A), but we clarify our analysis in that deci- sion. The Respondent contends that Stevens was disciplined for filing unauthorized charges with the Board on behalf of Local 263. It further contends that Stevens, who, was never employed by Camp- bell Construction Company, was disciplined for fraudulently identifying himself as superintendent of that company and for sending letters bearing that company's letterhead to business managers of 5 By agreeing to modify our Order in this case, we are not taking a position on the proper balance between the LMRDA and the NLRA in any other case. ,, In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C. § 6621. Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD various Texas locals of the Respondent. In a case in which a respondent union asserts a motive other than or in addition to the filing of Board charges for disciplining a member, it is appropriate to apply the Board's analysis in Wright Line, 241 NLRB 1083 (1980). If the respondent meets its burden under Wright Line, and the General Counsel cannot refute the Respondent's evidence, it is not neces- sary to undertake further analysis and the imposi- tion of discipline by the union will be found lawful. If, however, the Respondent does not meet its burden under Wright Line, and the Union asserts further that it is privileged by internal union con- siderations in disciplining a member, it becomes necessary to analyze such an additional defense ac- cording to the balancing test set forth in such cases as NLRB v. Marine Shipbuilding Workers, 391 U.S. 418 (1968), and Operating Engineers Local 138 (Charles S. Skura), 148 NLRB 679 (1969). Under this test, the policy of preserving an employee's statutory right of access to the Board is rarely out- weighed by a union's institutional interests. Cf. Tawas Tube Products, 151 NLRB 46, 48 (1965); Tel- evision Artists AFTRA (WMAR, Inc.), 269 NLRB 787, 789 (1984) (proviso in Sec. 8(b)(1)(A) allows a union to expel a member who files or circulates de- certification petitions). With respect to the instant case, applying Wright Line, we note that although the minutes of the Re- spondent's general executive board meeting held on 23 January 1984 regarding the internal union charges preferred against Stevens are in evidence and state that "[e]ach of these actions would inde- pendently and alone support the discipline imposed herein," the Respondent presented no witnesses and introduced no evidence in -support of this self- serving assertion. We therefore find that the Re- spondent has not met its burden under Wright Line of establishing that it would have disciplined Ste- vens absent his filing of charges with the Board. The Respondent has, however, further asserted that its action against Stevens was privileged be- cause of internal union considerations concerning the "unauthorized" filing of Board charges. Apply- ing the balancing test of Marine Shipbuilding Work- ers, we conclude that the asserted internal union considerations cannot prevail when balanced against "the overriding public interest" in "unim- peded access to the Board." Marine Shipbuilding Workers, above at 424. Accordingly, we adhere to our finding that the Respondent unlawfully disciplined Stevens in viola- tion of Section 8(b)(1)(A). ORDER The National Labor Relations Board orders that the Respondent, International Association of Bridge, Structural and Ornamental Iron Workers, Washington, D.C., its officers, agents, and repre- sentatives, shall 1. Cease and desist from (a) Disciplining employees for filing unfair labor practice charges with the Board or otherwise par- ticipating in or cooperating in Board proceedings. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Remove or, to the fullest extent permitted by its constitution and bylaws, direct Local 263 to remove all sanctions levied against Stevens. (b) In the event Stevens paid the fine unlawfully imposed on him, make him whole for the amount exacted from him, with interest thereon as set forth in this decision. (c) Waive, or direct Local 263 to waive, to the extent permitted by the Respondent's constitution and bylaws, time limitations, if any, regarding Ste- vens' exhaustion of his internal union remedies re- specting his exclusion from participation in the 24 June 1985 election for presidency of Local 263. (d) Post at its offices and request that Local 263 post at its offices copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. (e) Notify the Employer, Walker Construction Company, by mailing to the employer a copy of the attached notice marked "Appendix," that its policy found here to be violative of the Act will be given no further force or effect. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 7 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 " IRON WORKERS (WALKER CONSTRUCTION) 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 has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discipline employees for filing unfair labor practice charges with the National Labor Relations Board or otherwise participating in or cooperating in National Labor Relations Board proceedings. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. 773 WE WILL remove all sanctions levied against James W. Stevens. In the event Stevens paid the fine unlawfully imposed on him, WE WILL make him whole for the amount exacted from him, with interest. WE WILL waive or direct Local 263 to waive, to the extent permitted by our constitution and bylaws, time limitations, if any, regarding Stevens' exhaustion of his internal union remedies respecting his exclusion from participation in the 24 June 1985 election for the presidency of Local 263. INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL AND ORNA- MENTAL IRON WORKERS