International Union Of Operating Engineers (Stone & Webster Engineering Corp.)

OPERATING ENGINEERS (STONE & WEBSTER) 223 International Union of Operating Engineers (Stone & Webster Engineering Corporation) and Carl Mattocks International Union of Operating Engineers, Local 478 and Carl Mattocks. Cases 39-CB-597-1 and 39-CB-597(2-3) June 15, 1989 DECISION AND ORDER DENYING MOTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On April 24, 1987, the National Labor Relations Board issued a Decision and Order 1 in this case finding, in agreement with an administrative law judge, that the Charging Party, Carl Mattocks, was a supervisor within the meaning of Section 8(b)(1)(B) of the Act,2 that the Respondent, Local 478, violated Section 8(b)(1)(B) by fining and sus- pending Mattocks from membership for the per- formance of his supervisory duties, and that Re- spondent International violated Section 8(b)(1)(B) by denying Mattocks' appeal of the fine and sus- pension imposed by Local 478. On May 28, 1987, the Respondents filed with the Board a "Joint Motion to Vacate Judgment," and a supporting brief, in which they argue that the Board's Decision and Order in this case should be vacated in view of the Supreme Court's subsequent decision in NLRB v. Electrical Workers IBEW Local 340, 481 U.S. 573 (1987), which rejected the Board's "reservoir doctrine," and held that a union does not violate Section 8(b)(1)(B) when it disci- plines a supervisor union member who does not participate as the employer's representative in col- lective-bargaining or grievance adjustment, and who works for an employer "with whom the union neither has nor seeks a collective-bargaining rela- tionship." 481 U.S. at 595. They assert that the judge in this case found, and the Board agreed, that Mattocks was disciplined by Respondent Local 478 for the manner in which he exercised his supervisory authority to hire and fire, conduct that they contend is unrelated to any 8 (b)(1)(B) collec- tive-bargaining or grievance-adjustment authority Mattocks may have possessed. Thus, they argue that under NLRB v. Electrical Workers IBEW Local 1 283 NLRB 734. 2 The judge relied in part on the Board 's "reservoir doctrine" to find that Mattocks was an 8(b)(1)(B) supervisor However, she also found that Mattocks in fact possessed and exercised grievance-adjustment authority within the meaning of Sec. 8(b)(IXB). In adopting the judge's finding, the Board noted that Mattocks' authority to adjust grievances rendered him an 8(b)(1)(B) supervisor even without regard to the "reservoir doctrine" A majority of the Board members participating in that decision relied ex- clusively on Mattocks' grievance-adjusting authority in finding the 8(b)(1)(B) violation 340, the discipline imposed on Mattocks was not unlawful as it was unrelated to any of his 8(b)(1)(B) duties. The General Counsel has filed a brief in opposi- tion to the Respondents' motion, asserting that the Board's underlying decision is not inconsistent with the Supreme Court's decision. Specifically, the General Counsel points to the Court's approval of the Board's decision in Typographical Union (North- west Publications), 172 NLRB 2173 (1968), holding that a union violated Section 8(b)(1)(B) by attempt- ing to compel the employer's supervisor to take prounion positions when interpreting the collec- tive-bargaining agreement.3 The General Counsel argues that the instant case involves, as the judge expressly found, the same unlawful conduct as that at issue in Northwest Publications, and that the Board's finding of a violation here is, therefore, consistent with the Supreme Court's decision in NLRB v. Electrical Workers IBEW Local 340. Having duly considered the matter, we find the Respondents' motion to be without merit. The Board's finding in the underlying decision' that Mattocks was an 8(b)(1)(B) supervisor was based on evidence showing, inter alia, that Mattocks was authorized to, and did resolve , contractually relat- ed grievances such as craft jurisdictional disputes.4 Further, the evidence showed, and the judge ex- pressly found, that Mattocks was disciplined be- cause the Respondents disapproved' of the manner in which- Mattocks exercised his supervisory au- thority to hire and fire as it related to such con- tractual matters as safety, layoff, and manning re- quirements.5 Thus, in finding that the discipline im- posed on Mattocks by the Respondents violated Section 8(b)(1)(B), the Board agreed with the judge's application of Northwest Publications, supra, and found, essentially, that the Respondents were attempting, through their conduct, to control the 0 NLRB v. Electrical Workers IBEW Local 340, supra. 4 The Board also adopted the judge's finding that Mattocks adjusted personal grievances. The Respondents argue that under NLRB P. Electri- cal Workers IBEW Local 340, Mattocks' autl onty to resolve personal grievances does not render him a supervisor within the meaning of Sec. 8(b)(1)(B). In view of our adoption of the judge's finding that Mattocks resolved contractually related grievances , we find it unnecessary to reach this issue in denying the Respondents' joint motion to vacate judgment. 5 Thus, Mattocks' suspension by Local 478 resulted from a charge filed by employee Civitello alleging that Mattocks had improperly discharged Civitello because the former believed that Civitello had committed a safety violation, i e, failing to check the oil in a truck that caused damage to the truck's engine. Local 478 also fined Mattocks $1000 based on a charge that Mattocks had improperly discharged employees Fior- ello, Capello, and Miranda The only evidence in the record as to the reasons for the discharge of these three individuals is a written statement submitted by Mattocks to Local 478's executive board and his testimony in the present case that Fiorello was laid off because the machine he was operating was defective, Capello was laid off when the rental on a ma- chine he was operating expired , and Miranda was laid off because of a safety hazard on the machine he operated 295 NLRB No. 29 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD manner in which Mattocks exercised his superviso- ry authority with respect to the administration of the contract. For these reasons, we agree with the General Counsel's argument, as summarized above, that the Board's underlying decision is not incon- sistent with the Supreme Court's ruling in NLRB v. Electrical Workers IBEW Local 340. Accordingly, we reaffirm our decision in 283 NLRB 734,6 and shall deny the Respondents' joint motion to vacate judgment. ORDER The National Labor Relations Board reaffirms its Orders published at 283 NLRB 734 (1987), as modified and set forth in full below, and orders that A. Respondent International Union of Operating Engineers, Local 478, Hamden, Connecticut, its of- ficers, agents, and representatives, shall 1. Cease and desist from (a) Restraining and coercing Stone & Webster Engineering Corporation in the selection of its rep- resentatives for the purposes of collective bargain- ing or the adjustment of grievances by trying, sus- pending from membership , fining or otherwise dis- ciplining Carl Mattocks, or any other supervisor- member, for the performance of his collective-bar- gaining or grievance-adjustment duties. (b) In any other manner engaging in conduct that is violative of the Act or that restrains or co- erces Stone & Webster, or any other employer in the selection of its representatives for the purposes of collective bargaining or grievance adjustment. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind and remove from its records the fine and membership suspension imposed on Carl Mat- tocks because of his performance of grievance-ad- justment duties for Stone &. Webster. (b) Restore Carl Mattocks to his status as a member in good standing in Respondent Local 478 with attendant rights. (c) Notify Carl Mattocks, in writing, that the fine has been rescinded, that records of the charges and fine against him have been removed, and that he will be restored to his status as a member in good standing with all attendant rights. (d) Preserve and, on request, make available to the Board or its agents for examination all records necessary to disclose whether the disciplinary ac- 6 A review of the Board 's underlying decision reveals that the judge's recommended Orders need to be further clarified to reflect that the reme- dial provisions are directed at the discipline imposed by the Respondents on Mattocks for the manner in which he performed his collective-bar- gaining and gnevance-adjustment duties . The judge's recommended Orders, as modified; are fully set forth here. tions taken against Carl Mattocks were removed from his record. (e) Post at the meeting halls, offices, and hiring halls of Respondent Local 478, copies of the at- tached notice marked "Appendix A."7 Copies of the notice, on forms provided by the Regional Di- rector for Region 34, after being signed on behalf of Respondent Local 478 by Elwood Metz Jr., its business manager, shall be posted by Respondent Local 478 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 Respondent Local 478 to ensure that the notices are not altered, defaced, or covered bi any other material. (f) Reproduce and mail to the home of each of its members a facsimile of the notice signed by Elwood Metz Jr. (g) Sign and return to the Regional Director suf- ficient copies of the notice for posting by Stone & Webster, if willing, at all places where notices to employees are customarily posted. (h) Notify the Regional Director in writing within 20 days of the date of this Order what steps Local 478 has taken to comply. B. Respondent International Union of Operating Engineers, Washington, D.C., its officers, agents, and representatives, shall 1. Cease and desist from (a) Ratifying the discipline imposed by Respond- ent Local 478 on Carl Mattocks for performing his collective-bargaining or grievance-adjustment duties. (b) In any like or related manner restraining or coercing Stone & Webster in the selection of its representatives for the purposes of collective bar- gaining or the adjustment of grievances. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the denial of the appeal filed by Carl Mattocks for the discipline imposed on him by Local 478 because of his performance of his collec- tive-bargaining or grievance-adjustment duties at Stone & Webster. (b) Remove from its files any reference to the denial of the appeal filed by Carl Mattocks and any reference to the disciplinary action imposed by Local 478 on Carl Mattocks, and notify Mattocks in writing that it has done so. 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." OPERATING ENGINEERS (STONE & WEBSTER) 225 (c) Preserve and, on request, make available to the Board or its agents for examination all records necessary to disclose whether the denial of the appeal and the disciplinary. action taken against Carl Mattocks were removed from his record. (d) Post at its offices and hiring halls copies of the attached notice marked "Appendix B."8 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by Re- spondent International 's authorized representative, shall be posted by Respondent International imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondent International to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional ' Director in writing within 20 days of this Order what steps Respond- ent International has taken to comply. It is Further Ordered that the Respondents' joint motion to vacate judgment is denied. purpose of collective. bargaining or grievance-ad- justment. WE WILL rescind the fine levied against Carl Mattocks and remove from our records all refer- ence to the charges against him and the imposition of the fine. WE WILL restore Carl Mattocks to his status as a member in good standing with all attendant rights and WE WILL remove from his record all refer- ences to his suspension. WE WILL notify Carl Mattocks, in writing, that the fine and suspension have been rescinded, that all records of the charge, fine, and suspension have been removed, and that he will be restored to full membership. INTERNATIONAL UNION OF OPERAT- ING ENGINEERS, LOCAL 478 APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 8 See fn. 7, above. APPENDIX A 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 restrain or coerce Stone & Web- ster Engineering Corporation in the selection of representatives for the purpose of collective bar- gaining or the adjustment of grievances by requir- ing a response to charges, fining and suspending from membership, or otherwise disciplining Carl Mattocks, or any other supervisor-member, for per- forming collective-bargaining or grievance adjust- ment duties for Stone & Webster, or any other em- ployer. WE WILL NOT in any other manner engage in conduct that is violative of the Act or that restrains or coerces Stone & Webster, or any other employ- er, in the selection of its representatives for the 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 restrain or coerce Stone & Web- ster Engineering Corporation in the selection of its representatives for the purpose of collective bar- gaining or the adjustment of grievances by ratify- ing the discipline imposed on Carl Mattocks by International Union of Operating Engineers, Local 478, because he performed collective-bargaining or grievance-adjustment duties. WE WILL NOT in any like or related manner re- strain or coerce Stone & Webster in the selection of its representatives for the purpose of collective bargaining or adjustment of grievances. WE WILL remove from our records the denial of the appeal filed by Carl Mattocks about the disci- plinary action imposed by Local 478 against him for the performance of his supervisory duties and remove all references to the charge, fine, and sus- pension imposed on Carl Mattocks by Local 478, and WE WILL advise him, in writing, that we have done so. INTERNATIONAL UNION OF OPERAT- ING ENGINEERS