The International Brotherhood Of Boilermakers, Afl-Cio

1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local Lodge D-357, Cement, Lime, Gypsum & Allied Workers, Division of the International Brotherhood of Boilermakers, AFL-CIO (Southwestern Portland Cement Company, East- ern Division) and Thomas Anderson. Case 9- CB-6647 May 27, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND STEPHENS Upon a charge filed by Thomas Anderson on December 29, 1986, the General Counsel of the National Labor Relations Board issued a complaint on January 29, 1987, against the Respondent, Local Lodge D-357, Cement, Lime Gypsum & Allied Workers, Division of the International Brother- hood of Boilermakers, AFL-CIO, alleging that the Respondent violated Section 8(b)(1)(A) of the Na- tional Labor Relations Act. The complaint alleges that about December 19, 1986, 1 the Respondent entertained internal union charges against Anderson, an employee of the Southwestern Portland Cement Company, Eastern Division, and a member of the Respondent, and thereafter processed the charges up to and through an intraunion trial on January 17, 1987. The com- plaint further alleges that the Respondent engaged in the above-described conduct because Anderson provided a statement to his Employer at the re- quest of his Employer during its investigation of employee Alfred Daniels' conduct, to which An- derson was a witness. Alfred Daniels was subse- quently disciplined as a result of the Employer's in- vestigation. The complaint alleges that by enter- taining a charge filed by Daniels and thereafter processing it through an intraunion trial, the Re- spondent has restrained and coerced, and is re- straining and coercing, employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has violated Section 8(b)(1)(A) of the Act. On March 23, 1987, the parties jointly moved the Board to transfer the proceeding to the Board, without benefit of a hearing before an administra- tive law judge, and submitted a proposed record consisting of the formal papers and the parties' stip- ulation of facts with attached exhibits. On May 5, 1987, the Deputy Executive Secretary, by direction of the Board, issued an order granting the motion, approving the stipulation, and transferring the pro- ceeding to the Board. Thereafter, the General Counsel and the Respondent filed briefs. I All dates are 1986 unless otherwise noted The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in the case, the Board makes the 'following FINDINGS OF FACT I. JURISDICTION The Employer, Southwestern Portland Cement Company, Eastern Division, a Delaware corpora- tion with an office and place of business in Fair- born, Ohio, is engaged in the manufacture and sale of cement. During the past 12 months, a represent- ative period, the Employer, in the course and con- duct of its business operations, purchased and re- ceived at its Fairborn, Ohio facility products, goods, and materials valued in excess of $50,000 di- rectly from points outside the State of Ohio. We find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We further fmd that the Respond- ent, Local Lodge D-357, Cement, Lime, Gypsum & Allied Workers, Division of the International Brotherhood of Boilermakers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II ALLEGED UNFAIR LABOR PRACTICE The issue presented is whether the Respondent has violated Section 8(b)(0(A) by entertaining in- ternal union charges against a member-employee for providing a statement to the Employer, which the Employer intended to use in a potential griev- ance procedure to defend its discipline of another employee-member and by thereafter processing the internal charges through trial, pursuant to provi- sions of its International constitution. A. Facts The Respondent represents a bargaining unit of employees, which includes Charging Party Ander- son, who is also a member of the Respondent. About October 14, 1986, Anderson was asked by a representative of the Employer to sign, and did sign, a document describing an altercation between a supervisor of the Employer, Glen Parker, and its employee Alfred Daniels. Anderson was informed that the Employer intended to discipline Daniels for the incident described in the document he signed and that the statement was being procured from Anderson for use in defending against a4 grievance Daniels might file over his suspension or for use with respect to any other charge he might file with the Board or the United States Depart- ment of Labor. 288 NLRB No. 125 CEMENT WORKERS D-357 (SOUTHERN PORTLAND CEMENT) 1157 About December 12, Daniels filed an internal charge with the Respondent pursuant to provisions of its constitution. The charge alleged violations of the Union's constitution "based on Daniels' allega- tion that "Anderson falsely 'witnessed and endorsed a Company letter." On December 19, the Respond- ent mailed a statement to Anderson notifying him that a preliminary hearing would be held concern- ing the charges. On December 29, the preliminary hearing was held and was attended by Anderson, Daniels, the Respondent's president, James Can- trell, and three trustees. The purpose of the hearing was to voluntarily resolve the matter between the principal disputants. According to the Respond- ent's interpretation of its constitution, the charges could not be dismissed at this hearing unless Dan- iels agreed to the dismissal, and if the parties were unable to voluntarily resolve their dispute a further hearing must be held. In response to a question from Anderson on how the matter could be re- solved, Cantrell stated that the only resolution he could think of was for Anderson , to withdraw his name from the document he had signed. Because Anderson contended the facts therein were true, he did not withdraw his name. Anderson was duly notified of the trial that was conducted by the Respondent before a panel of trustees on January 17, 1987. Following the trial Anderson received the panel's ruling, which found him gpilty of violating three provisions of the Union's constitution and innocent of one charge. The panel further declared, however, that "[d]espite how reprehensible we find your conduct, we recognize that you have a statutory right to engage in such conduct . . . . Because of the cir- cumstances involved; No action will be taken against Brother Tom Anderson." B. Contentions of the Parties The General Counsel urges the Board to find a violation relying, inter alia, on the Board's decision in Oil Workers Local 7-103 (DAP, Inc.), 269 NLRB 129 (1984), which held that by consenting to the employer's request for a signed statement, with knowledge that the employee discussed in the statement would be discharged, the fined members/employees were cooperating with the grievance machinery, and thus the union's actions in bringing charges against members, processing the charges, and levying fines violated Section 8(b)(1)(A) of the Act. Thus, according to the Gen- eral Counsel, Anderson's conduct of signing a statement describing an altercation between Daniels and Supervisor Parker was protected by the Act in that he was informed that the Employer intended to discipline Daniels and there existed a grievance procedure to which Daniels could be expected to resort. The General Counsel further asserts that the Re- spondent's conduct was coercive, notwithstanding that it did not initiate the charge, that it processed the charge as mandated by the Respondent's con- stitution, and that it did not levy a fine against An- derson. The Respondent defends its action on the basis that it was acting in accordance with its constitu- tion in entertaining the charge, which was initiated by one of its members who was not acting as an agent of the Respondent, and by conducting the in- formal hearing and trial. According to the Re- spondent, it did nothing more than afford Ander- son his fundamental due-process rights by under- taking a "proper investigation" of the charge before making any decision affecting his member- ship or employee rights. Because no disciplinary action was taken, the Respondent further asserts that its action cannot be considered coercive. C. Discussion We agree with the General Counsel that the Re- spondent, by subjecting Anderson to a preliminary hearing and trial, fmding him guilty of violating its constitution, and deeming his conduct reprehensi- ble, coerced Anderson in his right to engage in ac- tivity protected by Section 7 of the Act. While the Respondent may have had the right and even the obligation to entertain Daniels'charge against An- derson, in the sense that it could preliminarily in- quire into the basis of the charge, as soon as it became clear that Daniels' charge centered on con- duct that was protected by Section 7 of the Act, the Respondent was obligated to drop any further action. We find from the stipulated facts presented in the case, that the Respondent proceeded with the charge long after it knew or should have known that Anderson's statement, which was the sole basis of Daniels' charge, was protected by Sec- tion 7.2 The Respondent did more than merely receive and initially investigate, a charge filed by a member. The Respondent held a hearing during which the Respondent's president told Anderson that the only way to resolve the charge was for Anderson to withdraw his name from the Employ- er's statement. Subsequent to this hearing, a trial was held. Thus, the Respondent subjected Ander- son to the time consuming and potentially expen- sive ordeal of defending his right to give a state- By the time that Daniels filed the December 12, 1986 internal charge against Anderson, the statement given by Anderson had been used by the Employer to defend against an October 27, 1986 grievance filed by Dan- iels. 1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment on the Employer's behalf at a time when the Respondent knew or reasonably should have known that that action was protected by Section 7. The result of this process was a finding that Ander- son was guilty of violating the constitution and he was informed that his actions were "reprehensible." This characterization, even though coupled with an acknowledgement that he had a statutory right to engage in such conduct, constituted a reprimand and sent a coercively clear message of disapproval on the part of the Respondent's hierarchy designed to inhibit any similar exercise of Section 7 rights by Anderson or other employees in the future. See Teamsters Local 557 (Liberty Transfer), 218 NLRB 1117, 1121 (1975). Accordingly, we find that the Respondent violated Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. Southwestern Portland Cement Company, Eastern Division is an employer engaged in com- merce 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. The Respondent, by entertaining internal charges against Thomas Anderson, subjecting him to a preliminary hearing and trial, finding him guilty of violating its constitution, and deeming reprehensible his providing a witness statement to the Employer for use in a potential grievance pro- ceeding restrained and coerced him in the exercise of the rights guaranteed him by Section 7 of the Act, and thereby engaged in an unfair labor prac- tice within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in an unfair labor practice in violation of Section 8(b)(1)(A) of the Act, we shall order that it cease and desist and take certain affirmative action de- signed to effectuate the policies of the Act. We shall order that the Respondent remove all record of the proceedings against Thomas Ander- son, and notify him in writing that this action has been taken.3 ORDER The National Labor Relations Board orders that the Respondent, Local Lodge D-357, Cement, 3 The General counsel requests a visitatorial clause. Under the circum- stances of this case, we deny the General Counsel's request. See Cherokee Marine Terminal, 287 NLRB 1080 (1988). Lime, Gypsum & Allied Workers, Division of the Internal Brotherhood of Boilermakers, AFL—CIO, Fairborn, Ohio, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Restraining and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act, by entertaining internal union charges against members/employees, processing the internal charges through a preliminary hearing and trial, finding them guilty of violating the union's consti- tution, and characterizing their conduct as repre- hensible, where any such conduct is engaged in by the Respondent because members/employees pro- vided a witness statement to the Employer for use in a potential grievance proceeding. (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 all record of the proceeding against Thomas Anderson and notify him in writing that this action has been taken. (b) Post at its business office and other places where notices to their members are customarily posted copies of the attached notice marked "Ap- pendix."4 Copies of the- notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly 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 covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 4 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." 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. CEMENT WORKERS D-357 (SOUTHERN PORTLAND CEMENT) 1159 , WE WILL NOT restrain and coerce employees in the exercise of their rights guaranteed by Section 7 of the Act, by entertaining internal union charges against members/employees, processing the internal charges through a preliminary hearing and trial, finding them guilty of violating the Union's consti- tution, and characterizing their conduct as repre- hensible, where any such conduct is engaged in by us because members/employees provided a witness statement to an employer for use in a potential grievance proceeding. 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. WE WILL remove all record of the proceeding against Thomas Anderson. LOCAL LODGE D-357, CEMENT, LIME, GYPSUM & ALLIED WORKERS, DIVISION OF THE INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, AFL-CIO