United Association Of Journeymen And Apprentices Of The Plumbing And Pipefitting Industry Of The United States And Canada, Afl-Cio Local No. 198 (Delta Mechanical, Inc.)

806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO Local No. 198 (Delta Mechanical, Inc.) and Gerald J. Matherne and Rueben Keller, Jr. Cases 15- CB-3389 and 15-CB-3389-2 January 31, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 18, 1988, Administrative Law Judge J. Pargen Robertson issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the judge's decision. 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 record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed in its entirety. ' We agree with the judge that the complaint allegations here are gov- erned by NLRB V. Electrical Workers IBEW Local 340, 481 U.S. 573 (1987). There, the Supreme Court held that, when a union has no collec- tive-bargaining relationship with an employer, and does not seek to estab- lish one, union discipline directed at supervisor-members does not violate Sec. 8(bx 1)(B). Here, the judge found, and the record shows, that the Respondent had no collective-bargaining agreement with the Employer and that at the time of the alleged unfair labor practices was not seeking to represent the Employer's employees. In this latter regard, we note that the record shows that the Respondent abandoned its efforts to persuade the Employ- er to sign a contract and was taking no action toward organizing the em- ployees at the time the alleged unfair labor practices occurred. In these circumstances we find it unnecessary to pass on the judge's discussion of the role of Charging Parties Matherne and Keller in the adjustment of personal grievances. Lee J. Romero Jr., Esq. and Kenneth A. Williams, Esq., for the General Counsel. Louis L. Robein Jr., Esq. (Gardener Robein and Healey), of Metairie, Louisiana, for the Respondent. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This matter was heard in Baton Rouge, Louisiana, on 24 March 1988. A consolidated complaint issued on 22 Jan- uary 1988 and was amended on 9 March 1988. That complaint was based on charges filed on 18 and 21 De- cember 1987. In its answer and through stipulation, Respondent ad- mitted the commerce and labor organization allegations of the complaint. Although Respondent denied the em- ployer allegation regarding Delta Mechanical, Inc., its answer, stipulation, and the entire record show that Delta is now, and has been at all times material, an em- ployer within the meaning of Section 2(2) of the Act en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The issue framed by the complaint is: Did Respondent violate Section 8(b)(1)(B) by fining and expelling the Charging Parties, two superintendents of the Employer, because they continued to work for the Employer, a nonunion contractor. On 21 December 1987, pursuant to internal charges, Gerald Matherne and Rueben Keller Jr. were tried and found guilty of working for a nonunion contractor. On 4 January 1988, Respondent's members voted to expel and fine Matherne and Keller. The fines were $10,000. By letter dated 15 September 1987, all Respondent's members, including Matherne and Keller, were notified by the International Union that a member working for a nonunion employer violated Section 200(a) of the Union's constitution: Dear Member: The United Association recently became aware of a December 15, 1986, general notice to all mem- bers issued by Local Union 198 concerning mem- bers working non-union. A program of reporting to the Union Hall of employment with non- union con- tractors was established in that notice and made ef- fective January 2, 1987. This is to advise you that performing UA work for a contractor who is not a party to a collective bargaining agreement with a UA local union or the UA is specifically prohibited by Section 200(a) of the UA Constitution which states: SEC. 200. (A) A member shall not perform any work that comes within the work jurisdiction of the United Association for an employer who is, not a party to a collective bargaining agreement entered into either by a Local Union or the United Associations. Any member who violates Section 200(a) is subject to internal union discipline, including fines, suspen- sion and/or explusion. In view of this specific prohibition in the UA Constitution, I have advised Local Union 198, and you are hereby advised, that the program an- nounced in its notice of December 15, 1986 is termi- nated immediately. If you accepted a job with a non-union employer doing UA work jurisdiction, you have a 30 day grace period from the date of this letter to leave that employment to avoid being charged with violating Section 200(a) of the UA Constitution. If you continue such employment after 30 days, you will be charged under Section 200(a). The very existence of Local 198 as a viable and effective labor organization and bargaining agent is 292 NLRB No. 85 PLUMBERS LOCAL 198 (DELTA MECHANICAL) 807 threatened by the ever increasing growth of the non union sector However, we cannot stop this non union growth if we permit our skilled members to work for non union contractors doing UA work Fraternally, /s/ Robert D Lowe, Sr Robert D Lowe Sr International Representative United Association Since September 1987, Respondent has taken action against a number of members allegedly for violating sec tion 200(a) of the constitution Those actions included penalities similar to the penalities imposed against Math erne and Keller There is no issue about whether Math erne and Keller were discriminatonly treated nor is there an issue about the factual basis for Respondents actions against Matherne and Keller Around 1 December 1987, the Baton Rouge Building and Construction Trades Council established a picket line at the James River job of Delta Mechanical, Inc Despite the warning contained in the Union s 15 Septem ber 1987 letter and despite the 1 December 1987 picket line, Matherne, Keller and at least one other member employee continued to work for Delta Mechanical, Inc According to record testimony, some seven members of Respondent honored the 1 December 1987 picket line and refused to continue working for Delta Mechanical, Inc None of those seven was disciplined while all three members who crossed the picket line were tried and dis ciplined by Respondent The sole issue concerns whether Respondent is justi fled in disciplining Matherne and Keller in view of their superintendent positions with Delta Mechanical Inc Discussion Section 8(b)(1)(B) of the National Labor Relations Act reads It shall be an unfair labor practice for a labor orga nization or its agents to restrain or coerce (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjust ment of grievances Dexter Folse an owner of the Employer, Delta Me chanical Inc, admitted that neither Matherne nor Keller has been a representative of the Employer `for the pur pose of collective bargaining Therefore the question of the status of Matherne and Keller relates to whether either acted as a representative of the Employer for the purpose of adjustment of grievances A determination of that issue and the one other ques tion presented in this matter-whether Respondent s action against Matherne and Keller restrained or coerced Delta Mechanical Inc -was recently considered by the Supreme Court in the case NLRB v Electrical Workers IBEW Local 340, 481 U S 573 (1987) In this decision, the Court sustained the refusal of the Ninth Circuit Court of Appeals to grant enforcement of the National Labor Relations Board s decision cited at 271 NLRB 995 (1984) In refusing to grant enforcement the Ninth Circuit found There are two prongs to our analysis of a Section 8(b)(1)(B) violation in such a case of union disci pline First we must determine the employment status of the disciplined union members because there can be no Section 8(b)(1)(B) violation unless the employees are supervisors and representatives of their employers for the purposes of collective bar gaining and grievance adjustment Second , we must determine whether the union discipline restrained or coerced the employer in the selection of its repre sentatives [NLRB v Electrical Workers IBEW Local 340, 780 F 2d 1489, 1491 (9th Cir 1986) ] The circuit court then found that regarding the su pervisor status issue, the Board was correct in its hold ing The court held that supervisory status does not nec essarily mean that an employee is a representative of his employer for collective bargaining purposes (i e , Sec 8(b)(1)(B) of the Act makes it unlawful for a union to re strain or coerce an employer in the selection of his rep resentative for the purposes of collective bargaining or the adjustment of grievances ) In this case, two employees were involved, Albert Schoux a superintendent, and Ted Choate, a vice presi dent and estimator The circuit court found that the Board correctly ap plied two legal principles in determining the representa tive status of Schoux and Choate Concerning Schoux the Board broadly interpreted grievance adjustment to include adjustment of personal problems Schoux was found to be a representative because he occasionally han dled employees personal problems on the job To find Choate a representative, the Board ap plied its reservoir doctrine which states that anyone who is a supervisor within the meaning of § 2(11) is a part of the logical reservoir from which-an employer is likely to select his representa tives for collective bargaining or grievance adjust ment [780 F 2d at 1491 ] However, concerning the restraint and coercion question the circuit court disagreed with the Board Fines imposed on representatives may constitute prohibited coercion because the effect of the disci plane may be to deprive an employer of the services of his representative ABC, 437 U S at 433-437, 436 n 36 The general rule of ABC was announced in the context of an ongoing strike, and this court has held that when a union does not represent or intend to represent the complaining company s em ployees there can be no Section 8(b)(1)(B) violation when a union disciplines members even if they are designated bargaining representatives NLRB v International Brotherhood of Electrical Workers, 714 F 2d 870, 871-72 (9th Cir 1980) (Chewelah) We be lieve Chewelah controls and is diapositive of the issue in this case [NLRB v Electrical Workers 808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IBEW Local 340, 780 F.2d 1489, 1492 (9th Cir. 1986).] The circuit court found that the Board was wrong in its determination that the Union "demonstrated an intent to represent" the employees. The court concluded: We deny enforcement of the NLRB's order be- cause although we agree with the Board's determi- nation of Choate's and Schoux's status as represent- atives of their employers, we do not find sufficient evidence of the Union's intent to represent the em- ployees in this case. [780 F.2d at 1493.] On 18 May 1987, the Supreme Court affirmed (NLRB v. Electrical Workers IBEW Local 340, 481 U.S. 573 (1987)). However, the Supreme Court decision took issue with the Board on both the "supervisor status" and "re- straint or coercion" issues. As to the supervisor status, or, as characterized by the Supreme Court, the "employer-representative" issue, the Court stated, inter alia: Section 8(b)(1)(B) of the NLRA provides: It shall be- an unfair labor practice for a labor or- ganization or its agents (1) to restrain or coerce (B) an employer in the selection of his repre- sentatives for the purposes of collective bargain- ing or the adjustment of grievances. This section was enacted to prevent a union from exerting direct pressure on an employer to force it into a multiemployer bargaining unit or to dictate its choice of representatives for the settlement of employer grievances S. Rep. No. 105, 80th Cong., 1st Sess., pt. 1, p. 21 (1947). [Id. at 580.] Accordingly, we conclude that discipline of a su- pervisor-member is prohibited under § 8(b)(1)(B) only when that member is engaged in § 8(b)(1)(B) activities-that is, collective bargaining, grievance adjustment, or some other closely related activity (e.g., contract interpretation as in Oakland Mailers). [481 U.S. at 585-586.] We therefore reject the NLRB's "reservoir doc- trine," on which the Court of Appeals relied. As stated above, the rationale of the doctrine is that § 2(11) supervisors constitute: a reservoir of workers available for selection at some future date as collec- tive-bargaining agents or grievance adjusters. [Id. at 586.] The Court further stated: The NLRB held in the alternative that because Schoux did adjust personal grievances-as opposed to contract grievances-he qualified as a § 8(b)(1)(B) supervisor, even without application of the reservoir doctrine. As a consequence of our conclusion in Part III, infra, we need not decide whether the Board's broad definition of grievance- and hence of "grievance adjustment,"-is consistent with the narrow purpose and scope of § 8(b)( 1)(B). We observe, however, that in Florida Power the Court said that grievance adjustment is a "particular and explicitly stated activity." 417 U.S., at 803. See also D. Bok & J. Dunlop, Labor and the American Community 220 (1970) ("grievance is a disput[e] over the application of the contract"). Other sec- tions of the Labor Management Relations Act, 1947, similarly suggest a narrow meaning. See §§ 203 and 204, 29 U.S.C. §§ 173-174. See also Comment, 1976 Wis. L. Rev. at 879 ("In Florida Power the Supreme Court appears to have defined both [collective bargaining and grievance adjust- ment] very narrowly"). [481 U.S. at 588-589 fn. 12.] Regarding the issue of Electrical Workers Local 340 not having a collective-bargaining agreement and not seeking to represent the employees in the future, the Supreme Court held: [W]e find that the absence of a collective-bargaining relationship between the union and the employer, like the absence of § 8(b)(1)(B) responsibilities in a disciplined supervisor-member, makes the possibility that the Union's discipline of Schoux and Choate will coerce Royal and Nutter, too attenuated to form the basis of an unfair labor practice charge. [Id. at 589.] The Court continues: Second the Union's discipline of Schoux and Choate does not coerce Royal and Nutter in their selection of § 8(b)(1)(B) representatives . Section 8(b)(1)(B) was primarily intended to prevent a union engaged in a long-term relationship with an employer from dictating the latter's choice of repre- sentative or the form that representation would take (single-unit or multi-employer unit). See S. Rep. No. 105, 80th Cong. 1st Sess., p. 21 (1947). It was not intended to prevent enforcement of uniform union rules that may occasionally have the incidental effect of making a supervisory position less desira- ble. The only sense in which employers (both those with and those without a collective -bargaining rela- tionship with the union) may be coerced in their se- lection of § 8(b)(1)(B) representatives by the appli- cation of the no-contract -no-work rule to supervi- sor-members is that the employer may be left with a smaller pool of individuals from which it may choose its representatives . This is because some union members will be reluctant to serve as § 8(b)(1)(B) representatives if the price is loss of union membership or payment of disciplinary fines. For example, the no-contract-no-work rule is de- signed to prevent any union member from working for an employer that does not pay the union wage scale, but it does not have the peripheral effect of making a § 8(b)(1)(B) representative less willing to serve in that capacity than he or she otherwise would be, see ABC, 437 U.S., at 436, thereby limit- PLUMBERS LOCAL 198 (DELTA MECHANICAL) 809 mg the employers selection Any discipline imposed on a § 8(b)(1)(B) representative, however, will affect willingness to serve in this sense In addition, so long as there is any attraction to union membership, this test would preclude exist ence of union rules excluding supervisors from membership Again this is because any union member who valued membership would be less willing to serve, see ABC, supra, at 436, if the cost of service were loss of membership , and because any reluctance to give up membership would limit the size of the supervisor pool from which an em ployer could select its representatives This minimal effect on an employer's selection of § 8(b)(1)(B) representatives is insufficient to support a § 8(b)(1)(B) charge It is inconceivable that every union rule that affects a union member s willingness to serve as a supervisor could be prohibited by a provision as narrow in scope as § 8(b)(1)(B) A supervisor member cannot serve both masters without incurring some obligations to both, it is simply unfair to require unions to accept members who receive all of the benefits of the association and bear none of the obligations We therefore reject the argument that unions must both accept supervisor members and grant them immunity from enforcement of uniform rules Finally, both the structure of the NLRA and recent developments in its interpretation suggest that employers are no longer restrained or coerced in their selectior of representatives by union disci pline of supervisor members The statute itself re veals that it is the employer not the supervisor member, who is protected from coercion by the statutory scheme It is difficult to maintain that an employer is restrained or coerced because a union member must accept union explusion or other disci plane to continue a supervisory position The em ployer s problem-that the supervisory member might decline to serve as a representative or align with the union during a strike and deprive the em ployer of services-is of its own making [Fns omit ted ] [481 U S at 591-594 ] Justice Scalia in a concurring opinion, argued that there was no violation of Section 8(b)(1)(B) regardless of whether the Union intended to represent' the employ ees of the employer The Supreme Court in Electrical Workers Local 340 supra, relied on its earlier decisions in American Broad casting Cos. v Writers Guild 437 US 411 (1978), and Florida Power & Light Co v Electrical Workers, 417 U S 790 (1974) In Florida Power, the Supreme Court found that the Board, by suggesting, inter alia that contract in terpretation is so closely related to collective bargaining that it too is an 8(b)(1)(B) activity (San Francisco Oak land Mailers' Union No 18, 172 NLRB 2173 (1968)), was, at best, within the outer limits of Section 8(b)(1)(B) Counsel for the General Counsel argues that the in stant case must be distinguished from 481 U S 573 on two grounds (1) Although the Respondent did not have a collective bargaining agreement with the Employer, Respondent did seek to represent the employees in the future, and (2) that Matherne and Keller exercised 8(b)(1)(B) activities by adjusting personal grievances of employees I find in agreement with the Respondent that the in stant case falls within the rule of 481 US 573, supra Concerning the General Counsel's first point, I agree with counsel for the General Counsel that credible evi dence shows that representatives of Respondent specifi- cally asked the Employer to sign a collective bargaining agreement Nevertheless, under the circumstances here, the record shows Respondent had nothing to gain by interferance with the supervisor members loyalty during grievance adjustment (481 US at 590 ) Gerald Matherne admitted that he telephoned Re spondent's business agent Raymond Zumo during No vember 1987 regarding the Union's 15 September letter Matherne testified that his employees at James River were concerned about that letter Matherne asked Zumo to contact the Employer' about signing a collective bar gaining contract Subsequently, according to the testimo ny of Dexter Folse, an owner of the Employer, he was contacted by both Raymond Zumo and Eugene Pour ciau-Respondent s business manager and business agent According to Folse, Pourciau telephoned him on 24 and 30 November 1987 and Zumo telephoned him on 30 No vember Both Pourciau and Zumo asked Folse if he was interested in signing a collective bargaining agreement with Local 198 for the James River job Folse told both Pourciau and Zumo that he was not interested in signing a collective bargaining agreement 2 On 30 November 1987, or a day or so before the picket line was established, Respondent made its last con tact with the Employer regarding a collective bargaining contract There was no evidence that Respondent took other steps such as card signing, a demand letter, etc, to represent the Employer's James River employees In 780 F 2d 1489, supra, and 481 U S 573, supra, both the court of appeals and the Supreme Court found that the Union did not have a collective bargaining agree ment with the Employer, nor did it seek to represent the employees in the future Justice Scalia, in his concurring opinion, expressed his view that it does not matter whether the Union intended to represent" the employees of the Employer (481 U S at 596) Obviously, "seek to represent means more than a desire to represent If not, the phrase would be meaning less because unions desire to represent all employees i Zumo and Matherne agreed that Matherne asked Zumo to contact the Employer about signing a contract However the two did not agree about the specific person Zumo was asked to contact 2 I credit Folse s testimony regarding his conversations with Pourciau and Zumo Pourciau did not testify Zumo admitted telephoning Folse however Zumo contended that he asked Folse to contract for another employer-Charles Hoag Charles Hoag was during November operat ing with only one employee Even though Charles Hoag had formerly been party to collective bargaining contracts the full record including Folse s uncontested testimony regarding his conversations with Pourciau shows that Zumo was telephoning Folse about Delta Mechanical s James River Job I also credit Gerald Matherne s testimony that Raymond Zumo told him 3 days or so before the picket line was established that the Union would permit its members to work if Matherne signed a col lective bargaining agreement with the Union 810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Here, although Respondent asked the Employer to sign a contract, it is nevertheless important to consider two fac tors ( 1) Respondent did nothing in furtherance of seek ing to represent the employees after November 1987 and (2) Respondent never conducted an organizing cam paign among the employees Regarding factor I the record shows that the Union s requests for a contract were emphatically rejected Al though Respondent participated in picketing the James River job of the Employer on I and/or 2 December, the picket signs do not mention a desire to organize the em ployer In fact, the picket sign language which follows does not mention Respondent Notice to the Public DMI AND PALA INTERSTATE INC Is Unfair To Members of the Baton Rouge Building and Construction Trades Council AFL-CIO No Dispute With Any Other Employer It appears that Respondent abandoned its efforts to persuade the Employer to sign a contract in late Novem ber 1987 At the time of Respondents alleged unfair labor practices, 4 through 21 December 1987, Respond ent was taking no action in seeking to represent the em ployees The General Counsel alleged that the 1 December picketing constituted a recognitional picket line The record evidence does not support that allegation The picket line was, according to undisputed testimony as well as the signs themselves established by the Baton Rouge Building and Construction Trades Council Re spondent is not mentioned in the signs nor is there a mention of efforts to organize the Employer It is important to recall that first the administrative law judge then the Board, in Electrical Workers IBEW Local 340 (Nutter Inc) 271 NLRB 995 1002 (1984) found that the Union continued to seek to represent the employees The circuit court mentioned the Board deter initiation that the union had an intent to represent the employees NLRB v Electrical Workers IBEW Local 340, 780 F 2d 1489 (9th Cir 1986) The circuit then re versed the Board s determination finding, inter alia, that the Union had made no organizing efforts for over a year after termination of the bargaining relationship be tween the employers and the union Here there never was a bargaining relationship be tween Respondent and the Employer and the evidence shows that Respondent was not engaged in any effort to organize the Employer at the time of the alleged unfair labor practices Respondents business manager was well acquainted with both Gerald Matherne and Dexter Folse Folse rep resented both the Employer and Charles Hoag As repre sentative of Hoag, a former union contractor Folse had dealt with Respondent in the past However, as he testified Folse was strongly opposed to all efforts to un ionize Delta Mechanical Inc because of his perception that Delta Mechanical Inc would be unable to acquire contracts due to prejudice of the contracting firms Zumo and Matherne had known each other 15 or 20 years, having attended high school together Contemporaneous with Respondents actions at James River during November December 1987, Respondent was taking steps to police jobs of other employers in accord with the International Union s 15 September 1987 letter On at least some of those other jobs, Respondent charged tried and fined members without erecting picket lines The evidence failed to show that Respond ent tried to organize any of the other employers Respondents overall actions , beginning with the Inter national Union s 15 September letter show that it was motivated by a desire to police section 200(a) of its con stitution The last paragraph of that 15 September letter expresses the Union s motivation-to stop the ever in creasing growth of the nonunion sector The Employer s James River job was only a small part of the Union s attack in late 1987 However following a request from an old friend,3 Raymond Zumo made an effort to pull the James River project into compliance with section 200(a) On the basis of the record , I am convinced that Re spondent s efforts to reach agreement with Delta Me chanical Inc terminated around 30 November 1987 In view of Respondent's subsequent actions it is apparent that after November Respondent did not seek to repre sent the James River employees Moreover, Respondent has nothing to gain by inter ference with the supervisor members locality during grievance adjustment (481 US at 590 ) Respondent s actions herein were precipitated by the International Union s 15 September letter There was no indication of concern or effort to interfere with the Employers se lection of Matherne and Keller as superintendents In fact the overall record shows that such was not the case Matherne was an old friend of Raymond Zumo and Zumo did what he could to assist Matherne Rueben Keller Jr was a young man who had done nothing to attract Respondents attention until December 1987 when he crossed the James River picket line Moreover Math erne and Keller were treated in the same manner as rank and file employees that violated section 200(a) Only by a strained reading could this matter fall within the scope of activity which the Supreme Court would find justifies an 8(b)(1)(B) finding Regarding grievance adjustment the parties agreed that Matherne and Keller, as superintendents have au thority to adjust personal grievances A reading of 481 U S 573 supra illustrates that the Supreme Court did not make a determination about whether personal griev ances fall within the scope of Section 8(b)(1)(B) How ever, in footnote 12 the Court implied that the NLRA appears to exclude personal grievances from the scope of grievance adjustment authority 3 Both Matherne and Zumo testified to their long friendship PLUMBERS LOCAL 198 (DELTA MECHANICAL) 811 The record evidence illustrates that Matherne and Keller were not grievance adjusters and Respondent did not restrain or coerce the Employer On these findings of fact and conclusions of law and on the entire record , I issue the following recommend ed4 CONCLUSIONS OF LAW 1 Delta Mechanical, Inc is an employer engaged in commerce and activities affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Respondent has not engaged in any unfair labor practices alleged in the complaint ORDER It is recommended that the complaint be dismissed in its entirety * 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