Bricklayers Local 6 (McCleskey Construction Co.)

National Labor Relations Board - Board Decisions

Apr 17, 1979

241 N.L.R.B. 898 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Bricklayers and Allied Crafts-
men and International Union of Bricklayers and Al-
lied Craftsmen, Local No. 6, Ohio and Sam W.
McCleskey Construction Company, Inc. Cases 8
CB-3254 and 8-CB 3290
April 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On July 10, 1978, Administrative Law Judge Irving
M. Herman issued the attached Decision in this pro-
ceeding. Thereafter the General Counsel and the
Charging Party filed exceptions and supporting briefs
and Respondent International filed a brief in support
of the Administrative Law Judge's decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board had delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The record indicates, and the Administrative Law
Judge found, that John Nelson, a member of Respon-
dent International, was employed by the Charging
Party as a job superintendent at its Northlawn, Ohio,
jobsite, and that Nelson was given the authority to
process grievances and the responsibility for hiring
and firing. The Administrative Law Judge also found
that the business agent of Respondent Local No. 6
told Nelson that he could not receive the work permit
needed to comply with the Local's membership rules
until the Charging Party signed the Local's contract
which was negotiated with a multiemployer associ-
ation. On October 25, 1976, Respondent Local fined
Nelson $250, judging him guilty of working for an
employer who did not have a contract with the Local,
and on November 161 Respondent Local notified Re-
spondent International of Nelson's violation and fine
and requested that Nelson be placed on the delin-
quent list, which, according to the rules of the Inter-
national, expelled him from membership. The record
indicates that Nelson did not appeal his fine to the
Respondent International.
I The local received notice of the charge in the instant case on November
15, 1976. but did not inform the Respondent International of the charge until
December 20 when it requested that Nelson's name be deleted from the
delinquent list and that he be reinstated pending the outcome of the charge.
Respondent Local's business agent made his request that Nelson be placed
on the delinquent list and expelled, "If I am in order with the International
Constitution."
The Administrative Law Judge concluded that Re-
spondent Local's discipline of Nelson violated Section
8(b)(1)(B) of the Act because the likely effect of its
conduct was to force the Charging Party into mul-
tiemployer bargaining and to limit its choice of job
supervisor.' However, the Administrative Law Judge
also concluded that Respondent International did not
violate Section 8(b)(1)(B) because its awareness of the
circumstances surrounding the Local's disciplinary
proceedings was limited to a request to place Nelson
on the delinquent list for failure to pay a fine, and
because Nelson did not bring the matter before the
International through the appeals process. Conclud-
ing that Respondent International's liability did not
turn solely upon effect, and that imposition of liabil-
ity would force the International to review de novo
vitually every disciplinary case against a member, the
Administrative Law Judge dismissed the complaint
against Respondent International.
The General Counsel and the Charging Party con-
tend that the Supreme Court's recent ruling in Ameri-
can Broadcasting Companies, Inc. v. Writers Guild of
America West, Inc.,3 precludes the consideration of
motive for the fine in the instant case. These parties
also contend that because Respondent International
is not required to expunge its records of the disciplin-
ary action and place Nelson in good standing, the
Administrative Law Judge's Decision provides an
empty remedy. For the reasons set forth below, we
agree that Respondent International violated Section
8(b)(1)(B).
In the instant case, Respondent International's ac-
tions in placing Nelson on the delinquent list and in
expelling him had the effect of enforcing Respondent
Local's fine against Nelson, and this ratification had
the coercive effect of forcing the Charging Party into
multiemployer bargaining. Respondent Local's busi-
ness agent sought enforcement or ratification of Nel-
son's fine with Respondent International "if [the Lo-
cal was] in order with the International constitution."
The record also indicates that the secretary of Re-
spondent International stated that his assistants re-
view all requests for expulsion prior to taking action.
We construe the Local's request to place a duty upon
Respondent International to investigate the action
taken by Respondent Local. The slightest review
would have uncovered the nature of Nelson's employ-
ment and the fine against him. We disagree with the
Administrative Law Judge's conclusion that imposi-
tion of liability on Respondent International would
require that it conduct a full de novo review of all
fines. Rather, Respondent International's liability
2 No exceptions were filed to the Administrative Law Judge's conclusion
that the Local's fine violated Sec. 8(hX1)B) of the Act, and the Internation-
al's brief appears to concede that the Local's fine was unlawful.
98 S.Ct. 2423 (1978).
241 NLRB No. 139
898
INTERNAT'IONA.I . NION OF BRICKI.AYERS AND All.lIED CRAFI'SMEN
stems from its enforcing the fine while disregarding
the Local's request for a review and the known ir-
regularities about Nelson's fine. We therefore find
that Respondent International's enforcement of this
fine, in effect. impermissibly coerces the Charging
Party into multiemployer bargaining in violation of
Section 8(b)(l)(B) of the Act.4
We also find that the remedy afforded by the Ad-
ministrative Law Judge's recommended Order, that
Respondent Local rescind its fine and expunge all
record of disciplinary action taken in the instant mat-
ter, is a partial and ineffective remedy. Even though
Respondent Local is ordered to ask the International
to expunge its records, the Administrative Law
Judge's Order places Respondent International under
no obligation to clear Nelson's record. For the above
reasons, we shall order that Respondent International
expunge from its records all evidence of the fines and
disciplinary action taken against Nelson for work per-
formed at the Charging Party's Northlawn, Ohio, job-
site.
Accordingly, we find that Respondent Internation-
al's actions in placing Nelson on the delinquent list
and expelling him for his refusal to pay an unlawful
fine levied by Respondent Local, unlawfully coerced
the Charging Party into multiemployer bargaining in
violation of Section 8(b)(1)(B) of the Act.
Amended Conclusion of Law
Add the following as paragraph 5 and renumber
the subsequent paragraph accordingly:
"5. The Respondent International has violated
Section 8(b)(1)(B) of the Act by enforcing Respon-
dent Local's unlawful fine against Nelson and by ex-
pelling him or otherwise affecting Nelson's member-
ship rights in connection therewith for working for
the Company at the Northlawn jobsite."
Amended Remedy
Having found that Respondent International un-
lawfully threatened and coerced the Charging Party
in its choice of representatives, we shall order Re-
spondent International to expunge from its records all
evidence of fines and disciplinary action against John
Nelson for work performed at the Charging Party's
Northlawn, Ohio, jobsite and to permanently rein-
state Nelson as a member of the International in good
standing, and to notify Nelson that it has taken these
actions.
Because we find that Respondent International violated the Act by rali-
fying the l.ocal's unlawful fine without following its usual course of investi-
gation or the requests to Investigate made by the local. we need not address
the General (Counsel's and ('harging Part's contention that the Supreme
Court's ruling in 1 rililng (;uil controls this case
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that:
A. The Respondent, International Union of Brick-
layers and Allied Craftsmen, Local No. 6. Ohio. its
officers, agents, and representatives. shall:
1. Cease and desist from:
(a) Restraining or coercing Sam W. McCleskey
Construction Company. Inc.. or in the selection of its
representatives for the purpose of collective bargain-
ing or the adjustment of grievances by threatening to
try, trying, or disciplining any such representative for
performing supervisory, executive, or managerial
functions for said employer.
(b) In any like or related manner restraining or co-
ercing Sam W. McCleskey Construction Company,
Inc., or in the selection of representatives for the pur-
pose of collective bargaining or the adjustment of
grievances.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Rescind the fine levied on John Nelson on Oc-
tober 25, 1976.
(b) Expunge all record of the fine and disciplinary
action taken against John Nelson because of his
working for Sam W. McCleskey Construction Com-
pany, Inc., at Northlawn Cemetery in Canton, Ohio.
(c) Notify. in writing, International Union of
Bricklayers and Allied Craftsmen and its Local 2 in
Jacksonville, Florida, of said rescission and expunge-
ment.
(d) Notify John Nelson. in writing, that the fine
levied against him has been rescinded and all local
records of disciplinary action against him expunged,
and that Respondent local has so advised Respondent
International and its Local 2 in Jacksonville. Florida,
in writing.
(e) Post at its offices and meeting halls copies of
the attached notice marked "Appendix A."5 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 8, after being duly signed by its autho-
rized representative. shall be posted by said Respon-
dent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced. or covered by any other
material.
5 In the event that this Order is enforced by a judgment of a Inited States
Court of Appeals, the words in the notice reading "Posted h Order of the
National Labor Relations Board" shall read "Postrcd Pursuant to a Judgment
of the United States (Court of Appeal, inllorcing an Order of the National
I abor Relations Board.
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Deliver to the Regional Director for Region 8,
signed copies of said notices in sufficient number for
posting by Sam W. McCleskey Construction Com-
pany, Inc., said employer willing, at all locations
where notices to employees are customarily posted.
(g) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent local has taken to comply
herewith.
B. Respondent International Union of Bricklayers
and Allied Craftsmen, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from:
(a) Restraining or coercing Sam W. McCleskey
Construction Company, Inc., or in the selection of its
representatives for the purpose of collective bargain-
ing or the adjustment of grievances by threatening to
try, trying, or disciplining any such representative for
performing supervisory, executive, or managerial
functions for said employer.
(b) In any like or related manner restraining or co-
ercing Sam W. McCleskey Construction Company,
Inc., or in the selection of representatives for the pur-
pose of collective bargaining or the adjustment of
grievances.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Permanently reinstate John Nelson to member-
ship.
(b) Expunge all record of the fine and disciplinary
action taken against John Nelson because of his
working for Sam W. McCleskey Construction Com-
pany, Inc., at Northlawn Cemetery in Canton, Ohio.
(c) Revoke its letter of January 4, 1977, to John
Nelson insofar as said letter refers to the pendency of
any fine against him.
(d) Notify, in writing, International Union of
Bricklayers and Allied Craftsmen Local No. 6, Ohio,
and Local 2 in Jacksonville, Florida, of said reinstate-
ment expungement and revocation.
(e) Notify John Nelson in writing that he has been
permanently reinstated and that all International rec-
ords of disciplinary action against him in this matter
expunged, and that all reference to a pending fine in
its January 4, 1977, letter to John Nelson has been
revoked.
(f) Post at its offices and meeting halls copies of
the attached notice marked "Appendix B."6 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 8, after being duly signed by its autho-
rized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to mem-
6 See fn. 5. supra.
bers are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other ma-
terial.
(g) Deliver to the Regional Director for Region 8,
signed copies of said notices in sufficient number for
posting by Sam W. McCleskey Construction Com-
pany, Inc., said employer willing, at all locations
where notices to employees are customarily posted.
(h) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent International has taken to
comply herewith.
CHAIRMAN FANNING, dissenting:
In the absence of exceptions, I would adopt, pro
forma, the conclusion of the Administrative Law
Judge that Respondent local violated Section
8(b)(1)(B) of the Act. However, I disagree with my
colleagues' finding that Respondent International
violated the Act. The International had very limited
knowledge of the facts and circumstances of this fine;
in fact, the record does not contain any evidence that
the International was aware that Nelson was a super-
visor. Additionally, Nelson never sought review of the
fine that was available through the International's
processes. Therefore, the legal validity of the fine nev-
er was called into question, nor did the fine appear to
be invalid upon its face. Based on the above facts as
set out in the record, I would find, in agreement with
the Administrative Law Judge, that Respondent In-
ternational did not violate Section 8(b)(l)(B) by act-
ing ministerially to ratify the local's imposition of the
fine at the Local's request without first conducting a
de novo review of the circumstances.7
See Unired Mine Workers ofAmerca (Blue Diamond Coal Comapany), 143
NLRB 795 (1963).
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Sam W.
McCleskey Construction Company, Inc. in the
selection of representatives for the purpose of
collective bargaining or the adjustment of griev-
ances by threatening to try, trying, or disciplin-
ing any such representative for performing su-
pervisory, executive or managerial functions for
said employer.
WE WILL NOT restrain or coerce Sam W.
McCleskey Construction Company, Inc. in any
like or related manner.
900
INTFERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN
WEL wiVI. rescind the fine levied on John Nel-
son on October 25. 1976. and expunge all record
of the fine and disciplinary action taken against
him because of his working for Sam W. McCles-
key Construction Company, Inc.. at Northlawn
Cemetery in Canton, Ohio.
WE WILL notify in writing our International
Union and John Nelson's home local in Jackson-
ville, Florida, that we have revoked our action in
so disciplining Nelson, WE WlL request the In-
ternational to expunge any disciplinary action
against Nelson from its records and to advise
Nelson's home local that he is in good standing,
and WE WI.I notify Nelson accordingly.
INTERNATIONAL UNION OF BRICKLAYERS
AND AI.IED CRAFTSMEN. LOCAL NO. 6.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Sam W.
McCleskey Construction Company, Inc. in the
selection of representatives for the purpose of
collective bargaining or the adjustment of griev-
ances by threatening to try, trying, or disciplin-
ing any such representative for performing su-
pervisory, executive or managerial functions for
said employer.
WE WILL NOT restrain or coerce Sam W.
McCleskey Construction Company, Inc. in any
like or related manner.
WE WILL reinstate John Nelson to member-
ship in good standing and revoke all reference to
a pending fine made in our January 4, 1977, let-
ter to John Nelson and expunge all record of the
fine and disciplinary action taken against him
because of his working for Sam W. McCleskey
Construction Company, Inc., at Northlawn
Cemetery in Canton, Ohio.
WE WILL notify in writing John Nelson's home
local in Jacksonville, Florida, that we have re-
voked our action in so disciplining Nelson, and
WE WILL notify Nelson accordingly.
INTERNATIONAL UNION OF BRICKILAYERS
AND ALLIED CRAFTSMEN
DECISION
STATEMENT OF HE CASE
IRVING M. HERMAN, Administrative Law Judge: This
case was heard before me in Cleveland. Ohio. on April 26,
1977. on a consolidated complaint issued February 3, 1977.
based on an amended charge against Respondent Interna-
tional Union of Bricklayers and Allied Craftsmen Local
No. 6. Ohio' (Case 8-CB 3254) and a charge against Re-
spondent International Union of Bricklayers and Allied
Craftsmen (Case 8-CB 3290), filed respectively on Decem-
ber 21 and 23. 1976,2 by Sam W. McCleskey Construction
Company, Inc., and duly and timely served on Respon-
dents. The primary issue is whether Respondents violated
Section 8(b)( 1)(B) of the National Labor Relations Act, as
amended,' by coercing McCleskey in the selection of its
representatives for collective bargaining or adjustment of
grievances through certain action against John Nelson.
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the briefs filed by
all parties. I make the following:
FINDIN(iS ANI) CON('IC. SIONS
1. (AR(IN(; PARTY S BUSINESS
The Charging Party (herein called McCleskey or the
Company) is a Georgia corporation, with its principal place
of business in Norcross, Georgia. During the events in ques-
tion it was engaged in the construction of a mausoleum in
Canton, Ohio, at which site it received goods and services
valued at an annual rate exceeding $50,000 directly from
points outside Ohio, and, as Respondents admit, was an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
1. THE LABOR ORGANIZATIONS
Respondents are labor organizations within the meaning
of Section 2(5) of the Act.
11. THE UNFAIR L.ABOR PRACTI('ES
A. Thefacts
McCleskey was engaged in work at the instant construc-
tion site at Northlawn Cemetery in Canton, Ohio, from late
August to mid-December 1976. Throughout this period.
John Nelson, a 14-year employee of the Company, was job
superintendent. In this capacity, he was entirely in charge
of the work as the only company representative at the site
except for two or three brief visits (on no occasion lasting
more than a day) by the job co-ordinator to see how the job
was progressing and whether Nelson needed anything. He
had seven employees on the job, five of whom he hired at
wage rates fixed by himself, the other two having been
transferred from other company jobs at his request. An ad-
dition to his authority to hire and fire, Nelson's duties em-
braced local purchasing of materials, layout work, adjusting
or disposing of employee grievances, generally supervising
the work, including co-ordinating that of the various sub-
'The name of Respondent Local was amended at he hearing.
2 All dates are in 1976. unless otherwise stated.
29 U.S.C.. 151 et seq., herein called the Act.
'Certain errors in the transcript are hereby noted and corrected.
901
DF.CISIONS OF NATIONAL LABOR RELATIONS BOARD
contractors,' to ensure conformity to drawings and specifi-
cations, and reporting to company headquarters. He per-
sonally operated a forklift for a very short period before he
was able to obtain any employees. but thereafter spent vir-
tually all of his time performing his superintendent duties.
Hie regarded this as including the approximately 30 minutes
a day spent laying out the work for the men which also
involved dropping the plumb bobs and stretching the lines
as well as lending the men a hand by occasionally plugging
in a light or a tube for them.
Ile denied ever doing any stone-setting there, or using the
tools of a stonemason, but Respondent Local's assistant
business agent, Stuber. testified that on one of his visits to
"the job site" he observed Nelson, for the 30 minutes Stuber
remained at the site, laying stone with two laborers mixing
the materials for him, and that Nelson used the tools of the
trade in performing the work; and that fbr 15 minutes on
his third or fourth visit he saw Nelson "directing the work"
of seven or eight employees, using a transit or level nor-
mally used by members of the trade in "marking the wall
where they were supposed to start laying the stone.",
Nelson was on a guaranteed 40-hour salary and received
a year-end bonus. He was also covered by hospitalization
insurance at company expense. The employees under him
were paid by the hour and received no other benefits.
Shortly after work started, Stuber came to the site and
asked if any union members were on the job. Nelson replied
that he was the only one' and requested a work permit
which he thought the union rules required. Stuber testified
as follows concerning that event:
A. My response was that we do not issue permits to
superintendents, but we do that as a courtesy for su-
perintendents who carry cards. We give them that
courtesy and we don't charge them for a working per-
mit.
Q. You mean you allow them to work without hav-
ing to pay the permit fee?
A. Yes. That is only for supervision, though. To
foremen and like that.
Q. Well, you are testifying that your Local then
gave Mr. Nelson permission to work because he is a
superintendent?
A. No.
Q. Did you give him permission?
A. No.
Q. He wanted to pay services dues or travel dues, is
that what it was?
A. Yes.
Q. And you said it wasn't necessary?
A. We don't charge them that.
Q. You don't charge them that as a courtesy?
A. That's right.
I These included stone setters, electricians, plumbers. roofers, carpenters,
and heating and air conditioning people.
6 On cross-examination, after specifying each visit as of no more than 10
15 minutes' duration, Stuber explained the apparent inconsistency with his
alleged observation of Nelson Ibr 30 minutes by confinng "visit" to time
spent with Nelson. tie also admitted to not having had Nelson under obser-
vation the entire time he was present because he walked around observing
the entire site motivated by his concern for safety.
' Nelson had then been a member of Florida ocal 2 (Jacksonville) of, the
International for some 21 years.
Q. In other words, Mr. Nelson didn't have to pay
dues?
A. Right.
Q. To work as a superintendent in the geographic
district, jurisdiction of your Local?
A. Right.
Q. hen, as far as you are concerned. as the repre-
sentative of the Local, Mr. Nelson had a right to work
in your jurisdiction as a superintendent? That's true?
A. If the company had a signed contract.
Q. Oh, did you ever tell Mr. Nelson that you had to
have a signed contract before you would give permis-
sion to work as a superintendent'?
A. I never told him that.
Q. You never told him that?
A. No.
Q. Did you ever tell him that he didn't have permis-
sion to work as a superintendent? That his company
did not have a contract?
A. No.
Q. Did you ever tell him that he was doing some-
thing in violation of the International constitution?
A. No.
Q. Did you ever tell him that he was there in viola-
tion of anything?
A. Not that I can recall.
Earlier, Stuber testified that although he gave Nelson a
copy of the contract and asked him to forward it to the
Company's home office it was not his purpose to get a
signed contract, and he could not "recall" mentioning the
contract to Nelson thereafter. Indeed, he was unable to re-
member the subject of his conversations with Nelson on his
second and third visits.
According to Nelson, whose testimony, unlike Stuber's.
was consistent with the record as a whole, Stuber told him
on the first visit that he could not get a work permit until
the Company signed a union contract' and Stuber gave him
a contract to sign but Nelson said he lacked the authority
but offered to send it to the Company in Atlanta, which he
did. Nelson further testified credibly that Stuber returned to
the site about a week later just to ask if Nelson had heard
from the Company and Nelson said he had not, but that
when he came back again a week after that and Nelson
reported that the Company had refused to sign the contract
Stuber said the Local would have to bring charges against
him for working with nonunion people on the job.
Nelson testified that he thereafter received the same mes-
sage from Respondent Local's business agent Miller, Stu-
her's supervisor, who telephoned him after getting Stuber's
report of his visits to the site. When Stuber made that re-
port, Miller commented that the Company was not signa-
tory to the union contract, and in Miller's telephone con-
versation with Nelson. according to the latter, Miller also
rejected Nelson's request for a work permit on the ground
that the Company did not have a contract with the local.
Miller testified on direct-examination to two conversa-
tions with Nelson. both initiated by Nelson. in the first of'
8 I.e.. according to Business Agent Miller, an "Assent" to be bound by the
Local's contract with the Labor Relations Division of the Ohio Contractors
Association.
902
INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN
which Nelson asked him if he wanted Nelson to pack up
and leave and he responded, "Absolutely not. I cannot tell
you to leave or do things like that. John, there is no way
that I would tell you anything like that"; and in the second
conversation Nelson said he had gotten some advice over
the weekend and would remain on the job regardless of
what Miller had "planned," to which Miller replied he had
not planned anything. He also testified on direct-examina-
tion in answer to the question of what he did after the
second conversation, "I placed charges against John Nel-
son." After making clear on cross-examination that he
could not be expected to recall exactly what he had said in
response to Nelson's query about packing up and leaving,
and after adding that in his first conversation with Nelson
he had said "that my obligation as a Business Agent was to
enforce the constitution and by-laws, and that his Compan
did not and was not registered with us at that point in
time," Miller's testimony continued:
Q. Under this page 4, section 9, this registration as
an employer, what would the Charging Party have to
had done in this case to register with the Union?
A. What would they have had to done? The com-
pany that he was working for, regardless of who it was,
would have had to sign the agreement.
Q. Would have had to sign the agreement?
A. Yes.
Q. So it is more than registration, then? You have to
become a signatory to the collective bargaining agree-
ment?
A. Registration and signatory are the same thing.
Q. Oh, they are the same thing?
A. Yes.'
* * * * *
Q. So you are telling me that if an employer sent
you Ohio Workmens' Compensation, Ohio Unemploy-
ment Compensation, an employer's registration or
identification number for those things, and a surety
bond, but refused to sign this agreement and become a
party to it, you are telling me that your members still
couldn't work for that employer?
A. If he does all of those things, he certainly can.
That is what I am saying to you.
Q. I asked you a question: If an employer says I will
give you the Workmens' Compensation, I will give you
the Ohio Unemployment Compensation, number
three, the registration or identification number, plus
P. 4. sec. 9 reads as follows:
All employers or masonry contractors who employ members of the
B.M. & P.IU. shall be required to register with the Local Union and
will present to the Union the following information in good order and
up-to-date prior to entering this junsdiction:
I. Ohio Workmen's Compensation
2. Ohio Unemployment Compensation
3. Employer's Registration or Identification Number
4. A Surety Bond in the amount of $5,000 to insure the Member's
Payroll
If the four items above mentioned are not in good order and do not
satisfy the Union as to their validity. the Contractor shall not be regis-
tered, in which case the members are forbidden to work for such Con-
tractor or Employer.
the surety bond, but I absolutely refuse to sign this
agreement and become a party to it-
A. He is okay. He is in order.
Q. He is okay, so he doesn't have to sign it?
A. That's right.
Q. The collective bargaining agreement?
A. That's right, if he does these things.
Q. Then he wouldn't have to do anything else with
this contract at all? They don't have to agree to any-
thing else in this contract?
A. If they do these four things that you just read
Q. They don't have to sign the collective bargaining
agreement?
A. That is all he has to do.
Q. So any member could work for him without
being fined, even if he doesn't have a collective bar-
gaining agreement?
A. That's right. Absolutely.
Q. So, it is registration, not the agreement?
A. I said registration in my testimony, yes.
Q. Registration is what is important, not the agree-
ment?
A. That's right.
Q. So, at least at the time you filed charges against
Nelson, it was also required that they sign an agree-
ment, wasn't it?
A. Okay, if you want to say signed or registered--
Q. To become a member of the collective bargain-
ing agreement?
A. Yes.
Q. Okay, it is required?
A. Yes.
Q. So finally, through John Nelson, you wanted to
get Sam McCleskey Construction Company to sign an
agreement?
A. I could care less whether they signed one or not,
I was concerned with John Nelson, my member.
Q. What were you concerned about?
A. That he was working for a contractor who had
not met this obligation in my jurisdiction. That was my
point to John Nelson. He was working for an employer
that had none of these things with me. McCleskey had
nothing to do with his case, as far as I am concerned.
John Nelson, who took an oath several years ago that
he will honor every jurisdiction that he worked in, he
took the oath, and then threw it out the window. That
is my point. That is my argument. My argument is not
with McCleskey.
* * * * *
Q. (By Mr. Belkin) Mr. Miller, isn't it true that John
Nelson had two choices. He could quit his job with
McCleskey, or he could face a fine from your Local?
A. No, that isn't it true. Mr. McCleskey could have
moved him if he would have so desired, to another job.
JUDGE HERMAN: Or he could have signed the agree-
ment?
TIlE WiTINSS: Yes.
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 23, Miller mailed Nelson the following
letter which also requested Nelson's appearance before the
local's trial board on October 20:
The Asst' B.A. of Local 6, Ohio, has met with you on
several occasions in the last three weeks, in regards to
your working for a Company that does not have a
signed agreement with Local 6, Ohio. The location of
the job site your working on is located at North Lawn
cemetery, Canton Ohio. I my-self have told you over
the phone that you are working for a Company, that
does not have an agreement with us, & there-fore you
are in violation of our Local Agreement.
Knowing this you have continued to work on the job,
& I am now charging you with the following violation.
Page 4, Section 9, of our Local Agreement with the
Ohio Contractors' Association, states that Members
are for-biden to work for such Contractor or Em-
ployer, who is not registered with the Local Union.
Nelson did not appear, and on October 25 the chairman of
the trial board notified him by mail that "[b]ecause of [his]
failure to appear" he was found "guilty as charged" and
fined $250 "for not complying with the agreement between
the Ohio Contractors' Association" (sic).'
On November 16," Miller notified John Joyce, secretary
of the International, of the proceeding against Nelson, and
requested that Nelson "be put on the delinquent list, if I am
in order with the International constitution." Joyce replied
on December 10, with copies to Nelson and to his local in
Jacksonville, advising of its compliance with such request
"on this date," and adding, "We are also expelling John R.
Nelson from membership. "I,2
On December 20, Miller wrote to Joyce that because of
the filing of the instant charge, the trial board had extended
the time to pay the fine, and "I am now requesting that
[Nelson] be not put on the IU Delinquent list, & also re-
questing that Brother Nelson not be expelled from member-
ship," and that the International notify Nelson to disregard
its letter of December 10. Nelson was thereupon reinstated
to membership on December 22, but was not notified
thereof until Joyce wrote him on January 4, 1977,'3 as fol-
lows:
On 20 December 1976, Brother Maris L. Miller, Busi-
ness Agent and Financial Secretary of Local 6, Ohio,
mailed you a carbon copy of a letter that was ad-
dressed to my attention, advising the International
Union that the trial board of Local 6, Ohio, issued an
order in compliance with Code 6(2)(j) of the IU Con-
stitution allowing you additional time to pay the
$250.00 fine assessed against you.
'° Miller testified that he appeared before the trial board and reported that
Nelson had worked with nonunion people and used tools of the trade.
" The day before the Local received a copy of the initial charge in Case
3254, alleging a violation of Sec. 8(bXIXA) as well as 8(bXIXB). The
amended charge in that case, filed December 21, dropped the 8(bXl)A)
allegation.
12 Under Code 6(2)(j) of the constitution, a member failing to pay a fine
within 30 days, absent an enlargement of time. "shall be expelled from mem-
bership."
"I Nelson had, however, received a copy of Miller's December 20 letter to
Joyce.
This is to advise you that your name has, therefore,
been removed from the IU Delinquent List and that it
was removed from the December Delinquent Circular
before it was printed. In addition, we corrected, on 22
December 1976, our action of 10 December 1976, ex-
pelling you from membership, since that action was
premised only upon an overdue fine; you have, conse-
quently, been reinstated as a member on the Interna-
tional's records.
Copies of this correspondence are being sent to Local
2, Florida, and Local 6, Ohio, for their information.
If you have any further questions concerning the fine
pending against you, please contact this office at your
convenience. 14
Joyce testified on direct examination that the Interna-
tional had no authority to reverse the Local's action absent
an appeal or a request for an executive board ruling. On
cross-examination, he admitted that as the International of-
ficial involved, he had the authority to notify the Local that
it had acted prematurely despite the absence of an appeal.
He also testified on direct that it is the Union's policy,
based on its understanding of the law, that it may not "dis-
cipline any member for any actions taken while in a super-
visory position or managerial capacity, and we are talking
about actions relating to the collective bargaining process,
or any adjustment of grievances. Naturally, we would
maintain that we have a right to discipline a member
whether a supervisory employee or not, for any actions
which he may take in violation of the rules of the organiza-
tion in a non-managerial capacity. For example, creating a
disruption at a Local Union meeting, working for a non-
Union contractor."
B Analysis
1. The Local
The denial of Nelson's supervisory status in Respon-
dents' answers has apparently been abandoned in their
briefs, but in any event the evidence clearly establishes Nel-
son as a statutory supervisor at the Northlawn site, the only
evidence conceivably to the contrary consisting of Stuber's
testimony which, even if credited, shows Nelson at most
spending less than an hour at rank-and-file work over a
period of some 3-1/2 months. Respondents nevertheless
contend that no violation of Section 8(b)(l)(B) occurred be-
cause the fine was for Nelson's doing this nonsupervisory
work and there was neither an intent to interfere with col-
lective bargaining or grievance-adjustment activities nor an
effect thereon, that indeed he performed no such functions
at all or at least was not engaged in any activites related
thereto when engaging in the conduct for which he was
disciplined. I disagree.
To begin with, Nelson's duties as superintendent specifi-
cally included the adjustment of employee grievances. Nel-
son so testified, and there is not evidence to the contrary.
The International's contention "that grievance adjustment
under Section 8(b)(l)(B) only occurs in settlement of con-
14 Further internal union proceedings are apparently being held in abey-
ance pending the outcome of the instant case.
904
INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN
tract disputes. Where there is no contract, there are no
grievances" (Br. at 25)' 5 has been rejected by the Board
International Brotherhood of Electrical Workers System
Council U-4, et al. (Florida Power & Light Company), 193
NLRB 30, 31 (1971); Local 322, Laborers' International
Union of North America, AFL-CIO (Kingsley Drilling and
Blasting, Inc.), 229 NLRB 949, 950 (1977), and indeed bor-
ders on the frivolous for it erroneously suggests that absent
a contract, either employees have no complaints or that
they fail to register them or that the employer does not
deign to deal with them. The argument, moreover, would
exclude from the reach of the Section "situations clearly
falling within the metes and bounds of the statutory lan-
guage," like direct attempts to impose contracts "compell-
ling] employers to select foremen from the ranks of union
members." Florida Power & Light Co. v. International
Brotherhood of Electrical Workers, Local 641, et al., 417
U.S. 790, 798-799 (1974). Nor, contrary to Respondents,
was fulfillment of the duty entitled to lesser protection be-
cause Nelson had only had occasion to exercise it once dur-
ing the period in question. Even if he had never exercised it
at all, he was the only one at the site able to exercise it, and
the negation of the Company's right to have him there for
that purpose if and when the occasion arose would effec-
tively expunge the statutory guarantee of its right to select
its representatives therefor.
Moreover, I do not credit Stuber as to his observation of
Nelson performing rank-and-file work. Not only was Stu-
ber's demeanor on the stand unimpressive, particularly his
frequent glances toward union counsel table while under
examination by opposing counsel, but I have already indi-
cated the untrustworthiness of his testimony in respect to
his efforts to obtain a signed contract; and his testimony
concerning the length of his visits to the job site was inter-
nally contradictory." In any event, Stuber admitted, at least
as to the second time he allegedly saw Nelson using a jour-
neyman took, that he "was using the instrument in directing
the work of the other employees." Thus, at most, he saw
Nelson doing rank-and-file work possibly unrelated to his
supervisory duties for perhaps 10 minutes on a single occa-
sion, to wit, his first visit to the site.
It is clear from the record as a whole, including the testi-
mony of Miller and Stuber quoted supra, that the only al-
ternatives open to the Company in order to avoid imposi-
tion of a fine on Nelson were Nelson's removal from the
site 7 or the Company's signing the multi-employer con-
'" Although the Local's bnef does not advert to this, the local counsel
stated on the record, "There can be no violation in this case for the simple
reason that Respondent Local Union has no collective bargaining relation-
ship with the Employer...."
1' His explanation for the apparent 30-minute discrepancy (fn. 6. supra)
only added to the confusion, because his testimony on cross that he used the
term "visit" to refer only to the time spent with Nelson marked a departure
from his initial testimony referring to his visits "to the job site."
1 Miller's testimony on direct-examination that he responded to Nelson's
query whether he should pack up and leave by saying "Absolutely not. I
cannot tell you to leave or do things like that. John, there is no way that I
would tell you anything like that," reflects a ready capacity for spontaneous
fabrication. This stilted language, reminiscent of knightFood in flower--- or
right out of Damon Runyan-was of course never uttered, Miller himself
protesting on cross-examination that he could not he expected to recall his
exact words In any event, the last portion of Miller's testimony quoted supra
concedes that Nelson's departure from the Northlawn site was the only alter-
native to signing the contract as the price of escaping the fine.
tract. It is a fair inference, moreover, that Nelson's contin-
ued presence on the job would result in additional fines and
conceivably in greater amounts." And implicit in the Lo-
cal's conduct was the threat of similar coercion against any
replacement of Nelson who might also happen to be a
member of the International.
The likely effect of Respondent's behavior, therefore, if
not its specific intent, was to force the Company into mul-
tiemployer bargaining or to limit its choice of job superin-
tendent whose duties were virtually entirely supervisory
and embraced the adjustment of grievances, the precise
evils that Section 8(b)(l)(B) was designed to prevent. The
case is thus controlled by American Broadcasting Compa-
nies. Inc. v. Writers Guild of America, West, Inc., just de-
cided by the Supreme Court (46 U.S.L.W. 4744, especially
4750, fn. 36); and those Board decisions, like Chicago Typo-
graphical Union No. 16 (Hammond Publishers, Inc.), 216
NLRB 903 (1975), enfd., 539 F.2d 242 (D. C. Cir. 1976),
and Wisconsin River Valley District Council of the United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO (Skippy Enterprises, Inc.), 218 NLRB 1063 (1975),
enfd., 532 F.2d 47 (7th Cir. 1976), involving the perform-
ance of amounts of rank-and-file work ranging from mini-
mal to as much as 30 percent of the supervisor's time.'
Here, moreover, since the contract sought would have
forced the Company into a multi-employer bargaining unit,
the case goes beyond Writers Guild, and the violation of
Section 8(b)(1)(B) is double edged.0
2. The International
It is the International's position that even assuming a
violation by the Local, the International did not share that
liability. I agree. It is settled that "a local union is a legal
entity apart from its parent organization, and that an inter-
national is not responsible for unlawful conduct of the local
which it has not specifically authorized or sanctioned."
United Mine Workers of America and District 30, United
Mine Workers of America, and Local No. 9606, United Mine
Workers of America (Blue Diamond Coal Comrpany), 143
NLRB 795, 797 (1963). The General Counsel and the Com-
pany contend, however, that not only did the International
endorse the Local's action, but it acted independently and
not just ministerially in expelling Nelson and notifying Nel-
son's home local of its actions, and hence violated Section
8(b)(1)(B) by its conduct alleged in the complaint.
It may well be that the International breached some duty
in respect to its treatment of Nelson. I am unable, however,
to find that its conduct attacked in the complaint violated
Section 8(b)(l)(B). While, as urged by the General Counsel,
it may be stated as a general proposition that a violation of
Section 8(b)( )(B) does not turn on motive, it is equally true
that it cannot totally depend on effect. For example. it can-
" The local's observation that Nelson "did not resign as a result of the
Union discipline" (Br. 3) proves only that the Local overestimated the deter-
rent impact of a $250 fine in the particular circumstances.
Cf. Baker- and Confectioners Workers International Union of America
Locals 24 and 119 (Food Employers Council. Inc.). 216 NLRB 917 (1975):
United Brotherhood of Carpenters & Joiners of America, Local Union No. 14
AFL CIO Max M. Kaplan Properties), 217 NLRB 202 (1975).
2o Graphic Arrs International nion .A FL CIO (The Tribune Compans ). 226
NLRB 379 (1976), cited b the I.ocal is quite inapposite.
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not be a violation of Section 8(b)(l)(B) if a supervisor with
authority to adjust grievances so disrupts his local meeting
over a matter unrelated to his work that the sergeant-at-
arms, through the accidental use of excessive force in quell-
ing the disturbance, injures the supervisor severely enough
to cause his absence from work for an extended period.
Obviously, as the Board observed in New Mexico District
Council of Carpenters and Joiners of America (A. S. Horner,
Inc.), 177 NLRB 500, 502 (1969), and as the General Coun-
sel recognizes (Br., 8), the basic dispute underlying the dis-
ciplinary action or other coercion must be with the em-
ployer. Respondent local, of course, had such a dispute
here, but the International did not. Nor did the Interna-
tional have anything to do with the imposition of' the fine
on Nelson. Its entire concern, as far as this record shows.
was to deal with the consequences of the fine under its con-
stitution. And in such dealings, its awareness of the circum-
stances surrounding the Local's disciplinary proceeding was
quite limited. There is no evidence that the International
knew that Nelson was a supervisor or the extent of his su-
pervisory duties. As far as it knew, therefore, the fine
against Nelson could have been entirely lawful?' The mat-
ter was never brought before it for review pursuant to the
available internal processes. Perhaps, if it had been, the In-
ternational would have overturned the local's decision.
22
But if the General Counsel prevailed on this record, the
International would be required in virtually every disciplin-
ary case to accord de novo review, even in the absence of
any request therefore by the member, on the off chance that
the situation might involve unlawful conduct under Section
8(b)()(B). In my opinion, this would create an intolerable
burden." I think the law goes far enough to preserve the
right here sought to be safeguarded when it condemns the
action of a labor organization "sustainsling] a fine imposed
2I Cf. United Brotherhood of Carpenters and Joiners of America, AFL CIO
et al. (Endicott Church Furniture. Inc. v. N.L.R.B., 286 F.2d 533, 538 539
(D.C. Cir. 1960).
12 The International's current position, with knowledge of all the facts,
suggests otherwise, but how it would have ruled in its quasijudicial capacit
is speculative. Whether assertion of its present position in its brief may con-
stitute ratification is not here in issue. No attempt has been made to amend
the complaint in this respect, and the General Counsel's brief urges only that
the International "persisted in its endorsement of the fine, both in its com-
munications to Nelson and at the hearing ... after the legality of the fine had
been placed in issue before it by the instant charges...." (Br., 10). All this
amounts to. however, is the International's defense of a legal position in
litigation prior to completion of the record. See Local No. P 575. Amalga-
mated Meat Cutters & Butchers Workmen of North America (A FL. C IO)
and
Amalgamated Meat Cutters & Butcher Workmen of North America (AFL
CIO (Iowa Beef Packers, Inc.). 188 NLRB 5, 6 (19711. While its brief filed
after conclusion of the hearing may stand differently for the purpose of
establishing ratification, the bnef is not part of the official record and this
issue is not presented here.
21 That the International makes some attempt at review, as the Company
observes (Br. 7-8), quoting Joyce, in order to ensure compliance with its
constitution prior to expulsion, does not mean it is required to do so. Local
No. P 575, Meatcurers (owa Beef Packers, Inc.). supra
in violation of a Federal law after the validity of that fine
under that law is placed in issue before it." International
Brotherhood of Electrical Workers, AFL-CIO, and Local
134, International Brotherhood of Electrical Workers, AFL-
CIO (Illinois Bell Telephone Company), 192 NLRB 85, 94,
fn. 7 (1971).24
As indicated above, while the procedural irregularities
relied by the General Counsel and the Company, including
the alleged premature request of the local for a delinquency
listing 2- and the alleged absence of findings, may have
abridged some right of Nelson's for which the International
may have incurred a liability, such conduct cannot serve to
bring within the scope of Section 8(b)(l)(B) a matter other-
wise outside its narrow bounds.
CONCLUSIONS OF LAW
I. The Company is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
2. Respondents are labor organizations within the mean-
ing of Section 2(5) of the Act.
3. John Nelson has at all material times been a repre-
sentative of the Company selected by it, inter alia, for the
purpose of adjusting grievances within the meaning of Sec-
tion 8(b)()(B) of the Act.
4. Respondent Local has violated Section 8(b)(l)(B) of
the Act by threatening and fining Nelson, and invoking the
Intenational constitution to cause Nelson's expulsion or
otherwise affect Nelson's membership rights in connection
therewith, for working for the Company at the Northlawn
job site.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent International did not violate Section
8(b)(1)(B) of the Act.
THE REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist therefrom and from any like or related
activity, and to take certain affirmative action necessary to
effectuate the policies of the Act, including rescission of the
fine levied on Nelson; expunging all record of the disciplin-
ary action against him; notification thereof to Nelson, to
the International, and to Local 2 in Jacksonville, Florida;
and to post the usual notices.
[Recommended Order omitted from publication.]
24 Contrary to the General Counsel, the legality of the fine here was never
placed in issue before the International
2 It is not entirely clear that Nelson suffered an infringement of any right
under the International constitution in this respect in view of the passage of
more than 30 days since the levying of the fine before the International acted
on the local's request. The International was never charged with a violation
of Sec. 8(b)( I A).
906