Bricklayers, Local 7

National Labor Relations Board - Board Decisions

Oct 5, 1971

193 N.L.R.B. 515 (N.L.R.B. 1971)

BRICKLAYERS , LOCAL 7
Bricklayers , Masons and Plasterers ' International
Union of America , AFL-CIO, Local No. 7 (United
Masonry , Inc.) and K. R. Manning. Case
23-CB-1153
October 5, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 14, 1971, Trial Examiner Harry H. Kuskin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support
thereof. The General Counsel filed limited exceptions
to the Trial Examiner's Decision and a brief in
support of that Decision. The Respondent then filed a
letter in opposition to the General Counsel's limited
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations i of the
Trial Examiner as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Bricklayers,
Masons and Plasterers' International Union of
America, AFL-CIO, Local No. 7, its officers, agents,
and representatives, shall take the action set forth in
the Trial Examiner's recommended Order.
1. Substitute the following paragraph for para-
graph 2(a) of the recommended Order.
"(a) Repay to K. R. Manning the sum of $100, with
interest at 6 percent per annum, the amount assessed
against him as a fine and heretofore paid by him."
515
2. Substitute the attached notice for the Trial
Examiner's notice.
i In accordance with our established policy, we shall order the
Respondent to repay K. R Manning the $100 fine levied against him, and
heretofore paid by him, with interest at 6 percent per annum Isis Plumbing
& Heating Co, 138 NLRB 716, Sheet Metal Workers' International
Association, Local Union 49, AFL-CIO, 178 NLRB No 24
APPENDIX
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 United Mason-
ry, Inc., in the selection of representatives chosen
by it for the purposes of collective bargaining or
the adjustment of grievances:
(a) by threatening to prefer intraunion
charges against any such representative,
and/or
(b) by preferring intraunion charges
against any such representative and trying
him on these charges, and/or
(c) by imposing a fine upon any such
representative and by thereafter collecting
same,-all because of the way in which he
performed his work as such selected repre-
sentative.
WE WILL NOT in any like or related manner
restrain or coerce United Masonry, Inc., in the
selection of representatives chosen for the purpos-
es of collective bargaining or the adjustment of
grievances.
WE WILL rescind the fine assessed against K. R.
Manning and will expunge all record thereof from
our files.
WE WILL advise Manning, in writing, of the
action taken by us as described immediately
above.
WE WILL repay to K. R. Manning the sum of
$100, with interest at 6 percent per annum, the
amount assessed against him as a fine and
heretofore paid by him.
BRICKLAYERS , MASONS
AND PLASTERERS'
INTERNATIONAL UNION
OF AMERICA , AFL-CIO,
LOCAL No. 7
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
193 NLRB No. 72
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Dallas-Brazos Building, 1125 Brazos Street,
Houston, Texas 77002, Telephone 713-226-4296.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H . KUSKIN, Trial Examiner : This proceeding was
heard at Houston , Texas, on May 11, 1971. The complaint
herein issued on March 5, 1971, based on a charge and an
amended charge , filed on February 9 and March 4, 1971,
respectively ; it alleges that Bricklayers, Masons and
Plasterers ' International Union of America , AFL-CIO,
Local No. 7, herein called Respondent or the Union, has
restrained and coerced United Masonry, Inc., herein called
the Company , in the selection of its representative for the
purposes of collective bargaining or adjustment of griev-
ances in violation of Section 8(b)(1)(B) of the Act by (1) the
conduct on or about January 20, 1971, of H. A. Brown, the
business agent of the Union , of informing K. R. Manning, a
member of the Union and a supervisory representative of
the Company , that disciplinary intraunion charges would
be filed against him if he , in accordance with his expressed
intent , discharged Herman McCoy , the Union 's steward on
the job ; (2) the conduct of H. A . Brown on the same day of
informing Donald Richardson , the Company 's field
superintendent , as to what he had told Manning with
respect to the above filing of charges ; (3) the letter dated
January 20, 1971, which was served on Manning and which
charged him with violating article XIII , section 16, of the
Union 's constitution and bylaws by terminating McCoy on
or about that date ; (4) the fine of $100 imposed on
Manning by the Union 's trial committee because , accord-
ing to its findings , Manning had terminated McCoy in
violation of the above section of its constitution and
bylaws; (5) the threat to Manning by President Scott of the
Union of a fine of $200 , in the event he again violated the
above section of the constitution and bylaws ; I and (6) the
resulting "payment under protest" of the above fine.
Respondent 's answer denies that it has violated the Act in
any respect alleged herein . And by way of affirmative
defenses , Respondent alleges ( 1) that the discharge by
Manning of McCoy was without just cause , was contrary to
the collective -bargaining agreement between Respondent
and the Company , and was arbitrary, capricious, and
vindictive ; and (2) that , just prior to, and at the time of, the
discharge of McCoy, Respondent offered to arbitrate the
matter with the Company in accordance with the contract's
grievance and arbitration provision , but the Company was
itself guilty of an unfair labor practice in refusing to
arbitrate , that the Company continues to refuse to arbitrate,
and that Respondent now renews its offer to arbitrate.
Upon the entire record, including my observation of the
witnesses , including their demeanor while on the witness
stand, and after due consideration of the briefs of the
General Counsel and Respondent filed herein, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, and Respondent admits, that
United Masonry, Inc., a Texas corporation, with its home
office and place of business in Pasadena, Texas, is engaged
in commercial and industrial masonry construction; and
that, during the preceding calendar year, it purchased and
had shipped directly to it from outside Texas goods valued
in excess of $50,000.
I find, upon the foregoing, as Respondent also admits,
that United Masonry, Inc., is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent further admits, and I find , that Bricklayers,
Masons and Plasterers ' International Union of America,
AFL-CIO, Local No. 7, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1 The collective-bargaining agreement between
Respondent and the Company
The Company has, by virtue of its membership in
Masonry Contractors Association of Houston, Texas, been
a party to a collective-bargaining agreement with Respon-
dent since September 10, 1970. The agreement, which bears
an expiration date of August 31, 1973, covers terms and
conditions of employees employed as bricklayer foremen,
journeymen, and apprentices.
2. The Company's job as subcontractor on the
Deepwater Elementary School job and its work
force, including supervision, at the jobsite.
Under a subcontracting arrangement with Marshall
Construction Company, which was the general contractor
on the Deepwater Elementary School job, the Company
undertook and performed that portion of the work thereon
relating to bricklaying. The bricklaying work began about
the middle of November 1970 and was finished sometime in
February 1971. The Company's complement consisted, in
the main, of about 12 to 15 bricklayers and 5 laborers.
Beginning on December 3, 1970, and at all times material
thereafter, Herman L. McCoy was one of those bricklayers.
McCoy was also a member of Respondent at the time of his
hire. He became the union steward a few days thereafter
and held that office at the time of his discharge on January
19, 1971, almost 7 weeks later. The sole supervisor on the
job for the Company was K. R. Manning, who is also a
member of Respondent. Manning was, in turn, responsible
I No evidence was adduced by the General Counsel in support of this
allegation
BRICKLAYERS , LOCAL 7 517
to Donald Richardson, the Company's field superintend-
ent, and was one of about 12 to 15 foremen in the
Company's employ answerable to Richardson. As foreman
on the Deepwater Elementary School job, Manning was
responsible for hiring the bricklayers and laborers and had
authority to, and did, discharge both bricklayers and
laborers. In addition, he acted as overseer of the work done
by them, making certain that the required work was done
properly; and he dealt with the union steward on matters
pertaining to the job, such as unsafe scaffolds, unsafe
scaffold boards, availability of drinking water and drinking
cups, etc Further, with specific reference to the incident
mentioned hereinafter involving the discharge of McCoy,
for which Manning was thereafter disciplined by Respon-
dent, there is credible testimony by Richardson that
Manning "was the alter ego of the Company" throughout
the handling of that matter. It is apparent from all the
foregoing, and from my findings hereinafter, that Manning
had substantial supervisory authority, as well as authority
to handle grievances relating to the work under his
supervision, including the instant grievance relating to the
discharge of McCoy. Accordingly, I conclude, and find,
that Manning was, at all material times, a supervisor within
the Act's meaning and a representative of the Company for
the purpose of the adjustment of grievances.2
B. The Circumstances of the Discharge of McCoy
by Manning3
The record shows that a little more than a week before
January 19, 1971,4 the date of McCoy's discharge, Manning
reported to Richardson that McCoy had done "some rough
work, under par work," and solicited advice from
Richardson as to what should be done about it. Richardson
said that Manning should talk to McCoy and caution him
about his work Apparently, about this time, Manning had
also had complaints from representatives of the general
contractor about some of the work of the bricklayers.
McCoy did thereupon caution the bricklayers, including
McCoy, about this. The next development relating to
McCoy's work took place on January 18. McCoy spent that
day in building a double-faced concrete-block wall. He
built the lower 4 feet of the wall himself; and thereafter, by
working from a scaffold set up against the partly finished
wall by the laborers, he and another bricklayer completed
the wall that day to a height of "8 maybe 10 feet." After the
wall was "topped out," the scaffolding was removed. At the
end of the day, in the course of walking along the corridor,
onto which one side of this already completed wall faced,
Y In this connection , the Board has held that it is not essential, under
Section 8(b)(I)(B), which is alleged to have been violated by Respondent
herein, that the supervisor has actually been designated as the employer's
grievance representative, since an employer's protected right to select
collective-bargaining and grievance representatives includes "his right, at
any time, to select his representatives from an uncoerced group of
supervisors whose loyalty to him has not been prejudiced and whose
substantial supervisory authority and day-to-day contact with and
supervision of the employees under them make them natural choices for
selection as such representatives " See International Association of Heat &
Frost Insulators & Asbestos Workers, Local 127 (Cork Insulating Company of
Wisconsin, inc), 189 NLRB No 124, and the citation therein of Toledo
Locals Nos 15-P and 272 of the Lithographers and Photoengravers
International Union, AFL-CIO (The Toledo Blade Company, Inc), 175
NLRB No 173, affd. 437 F 2d 55 (C A 6) Accordingly, I find that, even
Manning noticed that the part of the wall built by McCoy
alone had a "swag" or concavity in it.5 It is the testimony of
Manning that "right then [he] came to the decision that [he]
was going to terminate Mr. McCoy."
Later the same evening, Manning telephoned Richard-
son, told him of his desire to terminate McCoy, and gave as
the reason that McCoy "had done a bad piece" and that "it
might end up costing the Company money." Arrangements
were then made for Richardson to bring McCoy's paycheck
to the job the following day and for Manning to notify
Respondent at 8 o'clock the following morning of the
projected termination of McCoy at 4:15 p.m., the end of the
workday .6 These arrangements were carried out the
following morning, i.e., Richardson stopped by the job
early in the morning and gave Manning the paycheck for
McCoy, and Manning notified the Union by telephone
shortly after 8 o'clock of his intention to discharge McCoy.
During this telephone conversation, Manning made it
known to Malcolm Shaefer, Respondent's financial
secretary, and to H. A. Brown, Respondent's business
representative, in that order, that McCoy was to be
discharged not for any union-related reason but because of
trouble with his work. Both Shaefer and Brown insisted that
Manning could not do that. In the course of speaking with
Brown, Manning invited Brown to come to thejob and be
shown the work for which McCoy was being faulted.
Brown came to the job at or about 3 p.m. that day. He
spoke to McCoy first. Upon discovering that McCoy was
unaware that he was to be discharged, Brown apprised him
of the 4 hours' notice to discharge him received by the
Union from the Company that morning. According to the
testimony of Brown, McCoy's reaction to this news was
that he was ready to pick up his tools and quit forthwith;
however, he, Brown, opposed such action by McCoy,
telling McCoy that, "You can't make a practice of letting a
foreman run the steward off at his discretion." Thereafter,
as set forth herein seriatim, Brown had conversations with
Manning and with Richardson and a second conversation
with McCoy. During his conversation with Manning,
Brown was shown the wall in question as well as a couple of
places where McCoy had worked and where Manning
claimed the work was not quite up to par. Brown admitted
that the work on the wall in question was not what he would
call "good workmanship," but took the position that the
whole job looked rough and that, in any event, it would be a
violation of Respondent's bylaws to terminate McCoy as he
had Manning not been designated as such representative at the time of the
discharge episode herein, he was then a natural choice for such selection.
3 My findings in this regard are based on a composite of so much of the
testimony of Manning, McCoy, Brown, and Richardson as I find credible
Where there were variances in their respective testimony, I attached
considerable weight to the plausibility of a witness' testimony in assessing
its credibility
a All dates hereinafter are in 1971, unless otherwise indicated
s Manning descnbed the wall at this location as bowing inward, so that
one could run his fingers between a straight edge placed against the wall
and the wall itself
6 Richardson directed Manning to give notice at or about 8 o'clock so
as to exceed the requirements of the bargaining agreement between the
Company and Respondent , which provides that Respondent is to be given
4 hours' notice of the discharge of a union steward
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a steward and was supposed to be the last among the
rank-and-file employees on the job to be terminated.? A
second conversation between Brown and McCoy then took
place, during which the condition of the critical wall was
discussed. McCoy's explanation to Brown was that the
wall's condition was attributable to employee Clyde
Dawson, who was drunk on the job while the wall was
being built and "leaned or fell on the wall or did something
to it, put some of his weight or something on it."s Fortified
with this information and after allegedly having verified
McCoy's statement that he, McCoy, had told employee I
W. Gross, a bricklayer, about Dawson's conduct on the day
it happened, Brown approached Manning a second time
and told him of McCoy's claim that Dawson was drunk on
the job and had caused the swag by falling into the wall.
Brown also mentioned that employee Gross, another
b-icklayer, was "willing to back McCoy up on this
particular thing," and urged Manning to inquire from
Cross on his own, but Manning refused, assertedly because
he did not want to create a bunch of confusion on the job.
During this conversation, both Manning and Brown
adhered to their initial positions, with Manning claiming
that he thought that he was right in his decision to discharge
and that he had met the notice requirement to the Union as
required by the bargaining contract, and with Brown
insisting that Manning was wrong in this matter. Toward
the end of this particular conversation, Brown offered to
arbitrates the question of the Fropriety of discharging
McCoy but Manning refused, saying that he did not see the
need for it as he did not question McCoy's competency as a
bricklayer but questioned only this particular work, which
was not quite up to par either because of carelessness or a
deliberate act; and further that he was going to terminate
McCoy, as indicated. Manning also turned down Brown's
request for a delay of 1 day, predicated on Brown's belief
that McCoy would quit the next day. At this, Brown
indicated to Manning that, if McCoy was discharged, he
would bring Manning up on charges before the Union; and
further that, since Manning refused to accept his suggestion
to call Richardson, he was going to do so. Thereafter, at the
instance of Brown, Richardson came to thejobsite around
4 p.m. A conversation ensued in which Brown and
Richardson discussed the impending discharge of McCoy.
Brown told Richardson "about the same thing that [he] told
Manning, that if [Manning] laid the steward off, [he] would
have to bring Mr. Manning up on charges. And [he ] asked
[Richardson] about holding up on the man's check and if
the man wanted to quit let him quit." Richardson indicated
that the decision on McCoy was up to Manning. At or
about 4:15 p.m., Manning joined the conversation. He had
just prior thereto given McCoy his paycheck and terminat-
ed him, thereby meeting the Union's 4:15 p.m. deadline for
making the termination effective on a given day. At the
7 The constitution and bylaws are in evidence as G C Exh 2 The
section involved is sec 16 of art XIII It reads, as follows
The Steward shall be one of the last two men, including the Foreman,
left on the job The Steward shall, when appointed by the Business
Agent remain on the job until completion if possible He shall be given
time during working hours to inspect credentials and see that working
conditions are properly taken care of He shall inspect all scaffolds
and see that ladders are provided for same
McCoy testified that, at the time Dawson caused his trouble, he
straightened the wall, that he noticed, after the wall was finished, that it
time, there were some 12 or 13 bricklayers working for the
Company. Manning informed Richardson and Brown of
this action, saying it was now "too late" as he had already
given McCoy his check. Brown replied that it was not too
late and offered to get the check back from McCoy.
However, when Manning insisted that "[his] mind is made
up," Richardson told Brown that he would stand behind
Manning's decision. Thereafter, just before the conversa-
tion ended, Brown brought up the matter of arbitration,
saying that the matter of McCoy's termination could go
before an arbitration committee. Apparently, Richardson
and Manning took this as raising the matter of McCoy's
competency, and replied that there had never been any
question about McCoy's being a competent bricklayer, and
what was involved here was McCoy's work on this
particular wall.
C. The Proceedings Brought Against Manning by
Respondent in Consequence of the Discharge by him
of McCoy
Manning was notified by registered letter from Respon-
dent, dated January 20, that he was being charged with a
violation of article XIII, section 16, of Respondent's
bylaws 10 when he discharged McCoy, and that he was to
appear to answer the charges on January 27 at 7:30 p.m.
Manning appeared at the appointed time and proceedings
were had before Respondent's trial board. Although
Manning argued before the trial board that his reason for
discharging McCoy was that McCoy had done unsatisfac-
tory work on the wall, the trial board found him guilty as
charged and fined him $100. The trial board also suspended
Manning from union benefits, such as health and welfare
and hospitalization, until the fine was paid. Manning paid
the fine on February 1, "under protest."
D. The Unfair Labor Practice Charge Filed by
Respondent Alleging that the Company had Violated
the Act in Refusing to Arbitrate, and the Disposition
Thereof
The record shows, as heretofore found, that the
complaint in the instant proceeding issued on March 5,
1971; it also shows that, on March 22, Respondent filed its
answer herein. The parties stipulated that, on March 23,
Respondent filed a charge in Case 23-CA-3918, alleging
that on or about January 20, 1971, the Company, in
violation of the Act, "refused to arbitrate with the
authorized representatives and agents of [Respondent],
duly designated bargaining agent of a majority of [the
Company's] employees employed in a unit, which is
appropriate for the purpose of collective bargaining at the
[Company's job involved herein], by refusing to follow the
was sagging a little bit and straightened it again , and that the following
morning he noticed a "little belly" in the wall
9 As found hereinafter, when Brown asked for arbitration he was, in
effect, seeking to have Manning discuss the grievance with respect to
McCoy with an "arbitration committee," which would follow up on his
unsuccessful efforts to intercept McCoy's discharge, and he was not then
seeking to invoke the arbitration procedures under the collective-
bargaining agreement
10 See In 7, supra
BRICKLAYERS , LOCAL 7
Grievance Procedures set forth in the existing collective
bargaining agreements."li And it was further stipulated
that the Regional Director for Region 23 of the Board
thereafter refused to issue a complaint on the basis of the
above charge, that Respondent appealed to the General
Counsel from such refusal to issue, and that the General
Counsel denied Respondent's appeal.
Analysis and Conclusions
It is apparent from all the foregoing, and I find, that
Manning effected the discharge of McCoy, the steward on
the job, on the basis of his own determination that McCoy's
work performance was deficient enough to warrant such
action, and that he did so after complying with the only
applicable term of the existing bargaining agreement, by
giving in excess of the required 4 hours' notice to
Respondent before terminating a steward, and after
informing Respondent both on the telephone and in person
thereafter that his decision to terminate was based on his
evaluation of the deficiencies in McCoy's work. And it is
further apparent from all the foregoing that Brown, the
business agent of Respondent, threatened Manning, a
member of Respondent, that, in the event Manning
discharged McCoy, he would charge Manning before
Respondent with violating article XIII, section 16, of
Respondent's bylaws, which provides, in relevant part, that
"The Steward shall be one of the last two men, including
the Foreman, left on the job"; that Brown did file such
charges against Manning the day after McCoy's termina-
tion; that a hearing was thereafter held on January 27, on
these charges before Respondent's trial board at which
Manning appeared and gave his business reasons for
terminating McCoy, the steward; that the trial board found
Manning guilty of violating the above-mentioned section of
Respondent's bylaws and fined Manning $100; and that
Manning paid the fine, under protest, on February 1.
The General Counsel points, in its brief, to the fact that
article XIV (duties of foremen), section 2, of Respondent's
constitution, in addition to providing that a foreman, like
Manning, be a member in good standing of the Internation-
al Union, specifically recognizes a foreman as a representa-
tive of management; 12 and to the further fact that article II,
11 Article V (grievance procedure) of the current agreement between
Respondent and the Company, which is also in evidence as part of G C.
Exh 2, provides, as follows
Section I All disputes other than jurisdictional disputes that may arise
on any job covered by this Agreement shall be handled in the following
manner
Section 2 It is agreed that a joint board of arbitration composed of three
journeymen Bricklayers appointed by Local Union No 7 and three
members appointed by the representatives of contractors shall be named
within twenty-four (24) hours after either party has requested the
establishment of such a board, to whom shall be referred disputes arising
over the interpretation of this Agreement The decision of the board shall
be final The board shall make its decision or name seventh arbitrator
within twenty-four (24) hours.
Section 3 . In the event of the failure of the joint board of arbitration to
arrive at a solution, Contractors and the Union shall jointly select one (1)
additional person to cast the deciding vote Decision of this board shall be
made within seventy - two (72) hours after appointment of seventh man It
shall be expressly agreed that all questions pertaining to the mason trade
shall be settled by those connected therewith and none others it shall
further be agreed that pending all differences being submitted to the
committee for action work shall proceed without stopping.
519
section 2, of the bargaining agreement between Respondent
and the Company excludes therefrom Respondent's
constitution and bylaws, and precludes their use in the
interpretation of the agreement.13 The General Counsel
argues therefrom, and from the fact that Manning was, as
already found herein, a supervisor within the meaning of
the Act, and was, at all times material, selected, inter alia,
for the purpose of adjustment of grievances, that Respon-
dent, by its threat to prefer intraunion charges against
Manning and by the actual preferring of charges and the
imposition of a fine of $100 on Manning, contravened the
statutory policy of allowing the Company an unimpeded
choice of a representative for collective bargaining and the
settlement of grievances. In the General Counsel's view,
this is so because these acts were designed to change
Manning from a person representing the viewpoint of the
Company to one responsive and subservient to Respon-
dent's will.
Respondent, on the other hand, takes the position, in its
bnef, (1) that it offered to arbitrate the question of whether
McCoy was discharged for good cause but the Company
refused to do so, in violation of section 15, subdivision B, of
the working agreement 14 between Respondent and the
Company; (2) that such a refusal was itself a violation of
the Act; (3) that "since [the Company] refused to arbitrate
the dispute, [it] had no choice except to file charges against
Manning and discipline him under [its bylaws]," stating
further in this connection that "Manning was not fined for
the way he applied the bargaining contract while carrying
out his supervisory functions but purely and simply for a
violation of the union bylaws which he had sworn to uphold
and defend," and citing article II, section 2, of the
bargaining agreement which excludes Respondent's consti-
tution and bylaws from the bargaining agreement and
enjoins their use in interpretation of the agreement; 15 and
(4) that, Section 8(b)(1)(B) seeks to prevent union
interference with an employer's control over its own
representatives, but does not regulate internal disciplinary
measures which unions might lawfully take against union
members.
I am satisfied, on the basis of the entire record, and find,
that Respondent's defense concerning the Company's
failure to arbitrate does not withstand scrutiny, and its
12 The language of this particular section is, as follows:
Foremen shall be practical mechanics in the branch of trade over
which they exercise supervision Foreman having the authonty to hire,
discharge and exercise similar supervisory functions, are recognized as
representatives of management . And must be a member in good
standing with the International Union.
13 The language of the section referred to above is as follows.
The attached Working Conditions are an integral part of the
Agreement, and shall supersede all other existing working rules. It is
further agreed that neither the Constitution of the International Union
nor the By-laws of the Local Union shall be considered a part of this
Agreement , nor used in the interpretation thereof.
14 The reference is apparently to sec 15(b) of the part of the agreement
entitled "Working Conditions." Sec. 15 refers in (a) to the right of access of
a business agent to bncklayers during working hours , and in (b) to his
handling of a grievance referred to him by the job steward In the latter
respect , the provision reads as follows-
In the event a Business Representative is unable to resolve a dispute or
grievance referred to him by the job steward, he must refer the matter
to the Board of Arbitration.
15 See In 13, supra
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reliance thereon is, in any event , misplaced. Thus, it is
apparent from Brown's testimony (1) that when he asked
for arbitration, he was, in effect, seeking to have Manning
discuss the grievance with respect to McCoy with an
"arbitration committee," which would follow up on his thus
far unsuccessful efforts to intercept McCoy's discharge; (2)
that, whether the arbitration procedures under article V of
the bargaining agreement were to be invoked would be up
to that committee; 16 and (3) that, when Manning turned
him down and precluded a meeting with the arbitration
committee by proceeding with McCoy's discharge, he took
no steps to advise the arbitration committee thereof. And so
far as appears nothing was done by Respondent either
orally or in writing, prior to the complaint and answer
herein , to invoke article V of the current bargaining
agreement . I note, too, that article V speaks of a bipartisan
joint board of arbitration to be named within 24 hours after
either party has requested the establishment of such a
board "to whom shall be referred disputes arising over the
interpretation of this Agreement." Accordingly, even had a
proper request for a point board of arbitration been made,
contrary to my findings herein, there would have been
nothing to arbitrate as there was no pending dispute over
the interpretation of the contract herein. Moreover,
assuming that the discharge of McCoy was an arbitrable
matter under the bargaining agreement, and assuming
further, contrary to my finding above, that Respondent
made a proper request for arbitration and was refused such
arbitration by the Company, it is patent that what is
involved herein is whether Respondent contravened the
Act by its conduct of threatening to discipline Manning as
a union member if he discharged McCoy, and of
disciplining him, following McCoy's discharge, by prefer-
ring charges against him and imposing a $100 fine upon
him, which he paid under protest; and not whether the
Company improperly refused to arbitrate the dispute over
McCoy's discharge. And while Respondent contends
herein that the Company's refusal to arbitrate was itself an
unfair labor practice, it suffices to point out, as already
noted above, that Respondent sought to raise this very issue
before the Board by filing unfair labor practice charges
against the Company with the Regional Director for
Region 23 of the Board in Case 23-CA-3918, the day after
it filed its answer to the instant complaint, but the Regional
Director refused to issue a complaint thereon and his ruling
was thereafter sustained, on appeal, by the General
Counsel.
Viewed from another perspective, Respondent, by relying
in its brief on the refusal of the Company to arbitrate the
dispute concerning McCoy asjustification for its preferring
charges against Manning as a union member and for its
disciplining him thereafter under its bylaws, has acknowl-
edged, in effect, that, but for the Company's refusal to
i6 Brown's testimony , on redirect examination by Respondent's counsel
in this regard, was as follows
Q Well, did you have in mind,-did you understand at that time
just how the committee would meet and who they'd meet with and
where and after what notice and so forth"
A Well, I would say I would leave it to the arbitration board and
they would set it up themselves I mean , this would be getting out of
my duties and into theirs
i7 I am cognizant , in this connection , of Respondent's contention in its
brief that it "did not discipline Manning because of his activities as a
arbitrate the matter of McCoy's discharge, it would not
have filed intraunion charges against Manning. Stated
otherwise, Respondent has thereby impliedly admitted that
its intraunion action against Manning resulted from the
way Manning applied the bargaining contract, i.e.,
Manning's refusal, while carrying out his supervisory
duties, to arbitrate the matter of the discharge of McCoy.
In addition, I am persuaded, and I infer, and find, on the
basis of the entire record that there was another reason
underlying the intraunion action against Manning. As
already found, both before the so-called request to
arbitrate, and also thereafter, Respondent, in substance,
attempted to get Manning to treat as decisive, on the
question of whether to discharge McCoy, article XIII,
section 16, of its bylaws, which restricts the discharge of a
steward to such time as he is one of the last two men on the
job. And it did so, notwithstanding a provision in the
contract expressly excluding all of Respondent's bylaws
therefrom, as well as their use in the interpretation of the
contract. Thus, Brown admittedly told McCoy, who was
ready to quit upon being informed by him of the impending
discharge, "you can't make a practice of letting a foreman
run the steward off at his discretion." And immediately
thereafter, as I have found, when Manning showed Brown
the part of the finished wall built by McCoy alone, with the
swag in it, Brown told him, in substance, that, as McCoy
was a steward and was therefore to be the last one among
the rank-and-file bricklayers to be terminated, it would be a
violation of the Union's bylaws to discharge him. And
finally, when Manning remained firm on discharging
McCoy and turned down Brown's so-called request for
arbitration of the matter, Brown threatened to bring
Manning up on charges before Respondent.
In any event, whether Respondent's conduct of threaten-
ing to bring Manning up on intraunion charges if he
discharged McCoy, and of preferring such charges and
fining him was occasioned by Manning's claimed refusal to
arbitrate the discharge of McCoy or by his refusal to treat
as decisive, on the question of whether to discharge McCoy,
article XIII, section 16, of its bylaws, or by both, it is
nevertheless clear, and I find, that Manning's performance
of his supervisory duties in discharging McCoy and in
administering the applicable collective-bargaining contract
was an operative factor in bringing about this threat and
this disciplinary action.17
Section 8(b)(1)(B) of the Act prohibits conduct by a labor
organization which restrains or coerces "an employer in the
selection of his representatives for the purposes of collective
bargaining or the adjustment of grievances." As heretofore
found, Manning was, at all material times, a supervisor
already selected by the Company for these purposes. And it
is well established that an employer's right under this
foreman of the Company but solely because he violated his own
Constitution and By-Laws which he had sworn to defend and uphold."
However, since the underlying dispute was between Respondent and the
Company over the discharge of McCoy, with Manning, by virtue of his
authority to discharge employees and to adjust grievances involving
employees under his supervision , acting for the Company in the discharge
episode, the distinction urged by Respondent is, in my opinion , without
substance. See New Mexico District Council of Carpenters and Joiners of
America (A S Horner, Inc), 177 NLRB No 76
BRICKLAYERS , LOCAL 7 521
section of the Act extends, inter alia, to the continuing
reliance on a supervisor already so selected.18 Yet,
notwithstanding the foregoing, Respondent threatened
Manning that it would prefer intraunion charges against
him, informed Richardson of this threat, preferred such
charges against Manning, and imposed a fine against him,
all because he refused, in his capacity as foreman of the
bricklayers on the job, to accede to Respondent's demands
(a) that he, in effect, treat article XIII, section 16, of the
Union's bylaws as decisive on the question of whether to
discharge McCoy, contrary to the express exclusion of said
bylaws from the bargaining agreement, and based thereon
not discharge McCoy, the steward of the bricklayers;
and/or (b) that he meet with an arbitration committee
concerning the discharge of McCoy. It follows therefrom,
and I infer, and find, that Respondent sought thereby to
change Manning from a person representing the viewpoint
of management to one subservient to Respondent's will.
And even though Respondent sought to change Manning's
attitude rather than to effect a substitution of someone for
Manning, it is nevertheless true, and I infer, and find
further, that the pressure exerted here was for the purpose
of interfering with the Company's control over its
representative, and was calculated to convey to Manning
the message that any further disagreement between him
and Respondent would invite further reprisals, thereby
leaving the Company the alternatives of replacing Manning
or of facing de facto nonrepresentation by him.19 Accord-
ingly, I conclude, and find, that Respondent's above
actions against Manning constituted unlawful restraint and
coercion against the Company in violation of Section
8(b)(1)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Company described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. The Company is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. K. R. Manning has, at all times material herein, been
a representative of the Company, selected by it for the
purpose, among others, of the adjustment of grievances
within the meaning of Section 8(b)(1)(B) of the Act.
18 Toledo Nos 15-P and 272 of the Lithographers and Photoengravers
International Union, AFL-CIO (The Toledo Blade Company, Inc), supra
19 See San Francisco-Oakland Mailers Union No 18, International
Typographical Union (Northwest Publications, Inc), 172 NLRB No 252
20 In the event no exceptions are filed as provided by Section 102 46 of
4. By restraining and coercing the Company in the
selection of Manning as its representative for the purpose of
the adjustment of grievances, Respondent has engaged, and
is engaging, in unfair labor practices within the meaning of
Section 8(b)(I)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent has not violated Section 8(b)(1)(B) of the
Act in any respect alleged and not found herein.
THE REMEDY
Having found that Respondent violated Section
8(b)(1)(B) of the Act, I shall recommend that Respondent
cease and desist from restraining or coercing the Company
in the manner found herein. Additionally, I find that the
restraining and coercive effect of Respondent's unlawful
conduct can be removed only if Respondent is required
affirmatively to rescind the action of its trial board in fining
Manning, to expunge all records thereof from its files, and
to repay the $100 assessed against him as a fine and
heretofore paid by him under protest, and I shall so
recommend.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, I
hereby issue the following recommended: 20
ORDER
Respondent, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Restraining and coercing United Masonry, Inc., in the
selection of representatives chosen by it for the purposes of
collective bargaining or the adjustment of grievances: (1)
by threatening to prefer intraunion charges against any of
such representatives, and/or (2) by preferring intraunion
charges against any such representative and trying him on
these charges, and/or (3) by imposing a fine upon any such
representative and by thereafter collecting same,-all
because of the way in which he performed his work as such
selected representative.
(b) In any like or related manner restraining or coercing
United Masonry, Inc., in the selection of representatives
chosen by it for the purposes of collective bargaining or the
adjustment of grievances.
2. Take the following affirmative action, designed to
effectuate the policies of the Act:
(a) Repay to K. R. Manning the sum of $100, the amount
assessed against him as a fine and heretofore paid by him.
(b) Rescind said fine and completely expunge all record
thereof from its files.
(c) Advise Manning, in writing, of the action taken by it
as required in 2(b), above.
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its office and meeting halls copies of the
attached notice marked "Appendix."21 Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of the receipt of this Trial Examiner's
Decision, what steps Respondent has taken to comply
herewith.22
It is further recommended that the complaint be
dismissed insofar as it alleges violations of Section
8(b)(I)(B) of the Act not specifically found.
21 In the event that the Board's Order is enforced by a Judgment of a 22 In the event that this recommended Order is adopted by the Board
United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed, this provision shall be modified to read.
Order of the National Labor Relations Board" shall be changed to read "Notify the Regional Director for Region 23, in writing , 20 days from the
"Posted pursuant to a Judgment of the United States Court of Appeals date of this Order, what steps Respondent has taken to comply herewith."
enforcing an Order of the National Labor Relations Board "