Bricklayers, Union No 18

National Labor Relations Board - Board Decisions

Oct 6, 1970

185 N.L.R.B. 874 (N.L.R.B. 1970)

874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bricklayers, Terrazzo , Mosaic, and Tilelayers Union
No. 18 , Ohio Bricklayers , Masons and Plasterers'
International Union of America , AFL-CIO and
Lonie and Son , Inc. Case 9-CB-1666
October 6, 1970
DECISION AND ORDER
BY MEMBERS FANNING , BROWN, AND JENKINS
On March 19, 1970, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, as modified below,
and hereby orders that the Respondent, Bricklayers,
Terrazzo, Mosaic, and Tilelayers Union No. 18, Ohio
Bricklayers, Masons and Plasterers' International
Union of America, AFL-CIO, its officers, agents,
and representatives, shall take the action set forth
in the Trial Examiner's Recommended Order, as so
modified.
1. Delete from paragraph 1(a) of the Order "or
any other employer."
2. Delete from paragraph 1(b) of the Order "or
of any other employer with whom it has a collective
agreement," and "or any other employer."
3. Delete the first indented paragraph from the
Appendix attached to the Trial Examiner's Decision,
and substitute the following:
WE WILL NOT restrain or coerce Lonie and
Son, Inc., by preferring charges against, fining,
or similarly disciplining Burgoyne H. Hughes
or any other supervisor of Lonie And Son, Inc.,
as a member of this labor organization, as to
matters relating to employment as the selected
representative of Lonie and Son, Inc., for the
purposes of collective bargaining or the adjust-
ment of grievances.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a charge
filed on July 14, 1969, by Lonie and Son, Inc., against
Bricklayers, Terrazzo, Mosaic, and Tilelayers Union No.
18, Ohio Bricklayers, Masons and Plasterers' International
Union of America, AFL-CIO, Respondent herein, the
Regional Director for the Ninth Region of the National
Labor Relations Board, herein referred to as the Board,
issued a complaint on behalf of the General Counsel of
the Board alleging violations of Section 8(b)(1)(B) of the
National Labor Relations Act, as amended (29 U.S.C.,
Sec. 151, et seq.) herein called the Act.' In its duly filed
answer, Respondent, while admitting certain allegations
of the complaint, denied the commission of any unfair
labor practice.
Pursuant to notice a trial was held before me in Cincinnati,
Ohio, where all parties were present, represented by counsel,
and afforded full opportunity to be heard, present oral
argument and file bnefs with me. Briefs were filed on
February 9, 1970.
Upon consideration of the entire record, including the
bnefs filed with me, and specifically upon my observation
of each witness appearing before me,' I make the following-
FINDINGS OF FACT AND CONCLUSIONS OF LAW
i. THE BUSINESS OF THE EMPLOYER
Lonie and Son, Inc., the employer of the employees
involved in this proceeding and the Charging Party in
these proceedings is an Ohio corporation engaged in masonry
contracting with offices in Dayton, Ohio. During the 12-
'Sec 8(a)(1)(B) of the Act reads as follows
It shall be an unfair labor practice for a labor organization or its
agents to restrain or coerce an employer in the selection
of his representatives for the purposes of collective bargaining or
the adjustment of grievances
I have considered the testimony of all witnesses, including those
whose testimony I neither accept nor refer to In evaluating the testimony
of each witness I have relied specifically upon his demeanor and have
made my findings accordingly And while, apart from considerations
of demeanor, I have taken into account inconsistencies and conflicting
evidence, my failure to detail each of these is not to be deemed a
failure on my part to have fully considered it Bishop and Malco, Inc,
159 NLRB 1159, 1161
185 NLRB No. 119
BRICKLAYERS, UNION NO 18 875
month period preceding the date of the issuance of the
complaint, Lonie performed services in Ohio valued in
excess of $50,000 for The Western and Southern Life Insur-
ance Co., which during the same period had gross sales
exceeding $500,000, of which in excess of $50,000 was
derived directly from the sale of insurance policies to custom-
ers located outside the State of Ohio.
Upon the foregoing admitted facts I conclude and find
that Lonie and Son, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
If. THE STATUS OF THE RESPONDENT
Bricklayers, Terrazzo, Mosaic, and Tilelayers Union No.
18, Ohio Bricklayers, Masons and Plasterers' International
Union of America, AFL-CIO, Respondent herein, admits
that it is a labor organization as defined by Section 2(5)
of the Act, and I so conclude and find.
III THE ISSUE
The right of a union to discipline a member for the
performance of his duties when acting as a supervisor.
IV THE UNFAIR LABOR PRACTICE
A. Sequence of Events
Lonie and Son, Inc, held the masonry and bricklaying
contracts on a number of major construction jobs in the
metropolitan Cincinnati area during the first half of 1969.
On one of these jobs, The Western and Southern Life
Insurance building in downtown Cincinnati, Burgoyne H.
Hughes was employed as Lonie's general foreman. Hughes'
authority, acting on behalf of Lonie, included the general
supervision of all brickwork being performed on the job,
and the hiring and firing of all bricklayers.
Hughes, a bricklayer for the past 15 years, was a member
of Local 17 of the Bricklayer's Union, located in Lexington,
Kentucky. Having first been employed by Lonie as alourney-
man bricklayer prior to his promotion to foreman, arrange-
ment was made with Respondent, Local 18, which has
jurisdiction in the Cincinnati area, for him to pay "travel
service dues." Hughes thereby acquired the status of a
travelling member with the privilege of working in Respond-
ent's junsdiction.
As work on the Western and Southern job progressed
Hughes was informed by Mr. James Lonie that the inventory
of bricks would soon be depleted due to a 35 day delay
they had encountered on deliveries from the supplier, this
would extend from mid-May into July. Whereupon Hughes
took his own inventory of bricks on hand, work to be
done, and bricklayers available. Based upon estimates of
the amount of bricks that the crew was laying each day
he determined that he could not possibly keep all of the
present complement busy laying available brick. According-
ly, on June 3 and 5 he laid off "at least" five bricklayers,
based upon his credited recollection These he named to
be Bobby Patton , Bennie Patton, Al Fenhoff, Earl Swearin-
gen, and James Davis.
On June 24, 1969 charges were preferred against Hughes
by Respondent's Business Representative Frank Brock,
and served upon him by Secretary-Treasurer Ralph Sandoz.
The charge alleged violations of the following provisions
of Respondent's bylaws:
Article V, Foreman, Section 4(a): "Foremen shall not
lay off members of this Union unless job conditions
warrant it. Members so laid off will be given the
first opportunity to resume work when the job is
ready to proceed."
Article V, Foremen, Section 4(b): "Foremen are expect-
ed at all times to treat their fellow members as men
Any foreman charged and convicted of practicing the
so-called "hiring & firing" policy shall be fined not
less that $50 00 for the first offense."
The five bricklayers, all members of Respondent, were
designated in the charges as having witnessed, on June
3 and 5, the violations alleged. A teal was scheduled
for July 9, 1969.
At this trial held before the Respondent's trial board
and presided over by Respondent's president, John Meyers,
testimony was taken from the five bricklayers designated
as witnesses. Hughes credibly claimed, without contra-
diction, that despite numerous earlier requests of Brock
he was refused a copy of Local 18's bylaws until five
minutes before the trial. During the course of the trial
he was afforded full opportunity to cross-examine the wit-
nesses. Each of the five witnesses appearing at Hughes'
trial testified that when they were laid off Hughes told
them that this layoff was for lack of work, and that each
was directed by Hughes to other jobs where they might
find employment.' At the hearing before me Hughes testified
that none of the five had complained to him that they
were being laid off.
Upon the conclusion of the trial and after full deliberation
the trial board found Hughes guilty of "hiring and firing"'
and imposed a fine of $500 which he paid Hughes' appeal
of this action was thereafter filed with the International's
appropriate appeal officer but no decision has yet been
received. He continued in Louie's employ as foreman until
October 1969 when he resigned to accept other employment
in Houston, Texas.
B. The Respondent 's Defenses
Woven through the cross-examination of General Coun-
sel's only witness, Burgoyne Hughes, are threads of other
incidents, statements, and contentions suggestive of motiva-
tion on both Hughes' and the Union's part which do
not comport with either Hughes' execution of his managerial
' The credited, uncontradicted testimony of Hughes whose testimony
I rely upon generally for the foregoing findings and those which follow
' Secretary-Treasurer Ralph Sandoz , called as a witness for Respondent,
describes the practice of "hiring and firing" thus
If a man indiscriminately hires and fires men as expressed in the
trade, to 'shake the bush,' they'll fire several n}en to shake up
the other men to make them work faster and then they ' ll hire
a few more and fire them
Significantly, Sandoz also testified that the trial board , contrary to its
stated decision , "did not base their opinion on this alone " This anomaly
will be considered in further detail hereafter
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
function or Respondent's proper administration of its inter-
nal affairs To the extent that evidence of such incidents
bears even remote relevance to the issue at hand it will
be considered at this point
Evidence was adduced concerning other layoffs in addition
to the five bricklayers laid off on June 3 and 5, who
were the subject of Hughes' trial. Charles Taylor had been
laid off in mid-May after 2 weeks' employment Reasons
for the layoff were not disclosed by either Hughes or
Taylor. However, Union Business Agent Frank Brock testi-
fied that he was informed by Hughes that Taylor was
laid off because of an unconfirmed unfavorable report he
had received As Brock was aware of this layoff when
he preferred charges against Hughes and did not then
see fit to include Taylor among the allegedly aggrieved
bricklayers I am not disposed to belatedly consider the
merits of the incident in the context of this proceeding.
Vern Atwood was one of the first bricklayers hired on
the job and was laid off in early April His layoff, however,
was unrelated to the subsequent brick shortage Hughes
testified without contradiction that he was terminated
because of his excessive absence from work and his propensi-
ty for trying to borrow money from both Hughes and
the company, in violation of company policy.
Clyde Childress was hired in late April or early May
and was laid off in early June, at approximately the same
time the other five were laid off. This was concededly
known to Business Agent Brock, as was Childress' 30
years' seniority, when he singled out the layoffs of the
others as the basis for the charge against Hughes Hughes
credibly explained the reasons for Childress' layoff. Childress
was an older man, being in his sixties, and believed by
Hughes to have been "on Social Security " When informed
he was being selected for layoff because of the impending
brick shortage he indicated his indifference, stating that
he planned to go to Florida anyhow
James Proctor, a bricklayer from the nearby Kentucky
Local 17, was hired in mid-May After working for a
week or ten days he was laid off because Hughes believed
that "his work was not of a quality to work on that
particular job."
Proctor was not among those mentioned in the charge
against Hughes. Indeed it appears he was the incentive
for intra-union activity that resulted in the discharge of
two bricklayers at the same time as the disputed layoffs
Thus it appears that when Proctor was hired onto the
job he did not have his union credentials on his person
and Job Steward Jake Brenaman agreed to let him work
for the day and bring the credentials to him the next
day. Brenaman became concerned over his decision and
called Business Agent Brock at the union hall Brock con-
firmed the arrangement. Meanwhile two bricklayers who
had learned of the irregularity, Ronald Wollert and Martin
Schuster, took exception to Proctor's continued employment
and after unsuccessfully injecting themselves into the
arrangements made by Business Agent Brock, engaged in
an effort to get the bricklayers to slow down in protest
of Proctor's employment For this Hughes fired the both
of them As neither Wollert nor Schuster were among
the witnesses included by Brock in the charges he preferred
against Hughes , and as both were admittedly discharged
for cause, I find their activities leading to their discharge
not relevant to any issue presently before me.
During the course of Hughes' cross-examination he was
questioned concerning an outside bricklaying job he had
done on a Saturday in September with one of the regular
employees, Gille, who was not among those laid off. This,
it was claimed by Respondent, was illustrative of activity
indulged in by Hughes which justified the charges filed
against him Thus it is claimed that Gille was for some
undisclosed reason not laid off when others were; that
Hughes has Gille working with him on a private job,
possibly without pay-the term "kick back" being thrown
about loosely; and that Hughes not only violated union
rules by working overtime-Saturdays-but did so without
permission The short answer to the latter complaint: as
there appears to be such a discrepancy in the testimony
and conduct of the two union officials involved in the
granting of the permission, Brock and Sandoz, I would
find that Hughes actually had permission from Sandoz
but that Brock withdrew it. All of which has no direct
relevance to the issue at hand Occurring as it did two
months after Hughes' trial it suggests an undisclosed motive
for filing charges against Hughes and it tends to discolor
Respondent's defenses herein.
C. Analysis and Conclusions
It is apparent from a reading of the record in this
matter that there is an undercurrent of hostility which
seems to have provoked the action against Burgoyne Hughes
Whether it was his propensity for hiring or favoring bricklay-
ers from other local jurisdictions, his alleged participation
in off-hour bricklaying jobs (2 months after the fact), a
struggle between factions within the local, or simply his
own particular manner of functioning as a supervisor, none
is of any consequence here and I specifically reject them
as proper elements of defense, being unrelated to the basic
issue at hand
What is significant here is that Hughes, conceded to
be a supervisor within the meaning of the Act and a
representative of management, was charged, tried and found
guilty by the representative of management's employees
for the manner in which he conducted himself in the
performance of his duties as management's agent
Respondent bases its right to punish Hughes as it did
because, as counsel stated at the hearing, "the action of
this foreman went far beyond anything a foreman would
do " Thus, as alleged in the Answer, he "engaged in certain
actions in his own behalf contrary to his obligations as
a member of [the Union] " On this record this conduct
can only refer to the charge that he indulged in the practice
of "hiring and firing " So, to paraphrase counsel's conten-
tion, its statement in the Answer as quoted above, and
the charge preferred, Hughes conducted himself, as the
employer's supervisor, in a manner contrary to his obliga-
tions as a union member.
Section 8(b)(1)(B) of the Act proscribes the restraint
or coercion of an employer in the selection of his representa-
tives for bargaining purposes and grievance adjustment.
The charges and fine imposed upon Foreman Hughes were
the result, concededly, of his failure to perform his duties
BRICKLAYERS, UNION NO 18
in a manner satisfactory to the Respondent's business agent,
Brock. Thus, at one point in his testimony he stated-
Well, there was men being hired and there was other
men being laid off, and there was men that had came
and went on the job, and knowing their abilities and
seeing the type of work they could do, it just didn't
measure up to the way my thinking was of a foreman's
good judgment about wanting to try to build a decent
job.
And it was Respondent's trial board determination, accord-
ing to Secretary-Treasurer Sandoz, that Hughes was guilty
of "exercising authority beyond being a foreman."
San Francisco-Oakland Mailers' Union No 18, Interna-
tional Typographical Union, 172 NLRB No 252, is disposi-
tive of the issue presented by the Union's action against
Foreman Hughes. There, as here, the Respondent's fines
and decision "were designed to change the Charging Party's
representatives from persons representing the viewpoint of
management to persons responsive or subservient to
Respondent's will " Nor is it significant here that no substi-
tute for Hughes was even suggested to Lonie and Co.,
the employer For as in the San Francisco-Oakland case,
it was the substitution of attitudes rather than persons
that was concededly sought And as the Board held there,
the exertion of pressure on the employer by indirect means
"cannot alter the ultimate fact that pressure was exerted
here for the purpose of interfering with the Charging Party's
control over its representative. Realistically, the Employer
would have to replace its foreman or face de facto nonrepre-
sentation by [him] "
Respondent contends that the case I have relied upon
does not reach its action here because its dispute with
Hughes was solely an internal one against him as a member.
By Respondent's logic no violation of Section 8(b)(1)(B)
could ever occur once it had been determined that the
foreman was a union member; for every act he performed
while such would become an internal problem by that
simple expedient of membership. Quite apart from this
flaw of logic it is well established that internal disputes
such as this is claimed to be do not merit the protection
of the proviso to Section 8(b)(1)(A) in conduct found to
violate Section 8(b)(1)(B) '
By fining Hughes Respondent did so because he acted
as a management representative in a manner not deemed
suitable to Respondent. This, upon established precedent,
I conclude and find to constitute the coercion and restraint
proscribed by Section 8(b)(1)(B)
THE REMEDY
Having found that Respondent has violated Section
8(b)(1)(B) of the Act, I shall recommend that it cease
and desist from restraining and coercing the employer herein
or any employer with whom it has a collective agreement
in the manner found herein and take certain affirmative
action designed to effectuate the policies of the Act. 6
' San Francisco-Oakland Mailers' Union No 18, International Typo-
graphical Union, supra
' New Mexico District Council of Carpenters and Joiners of America
(A. S Horner, Inc), 177 NLRB No 76
RECOMMENDED ORDER
877
Upon the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend' that Bricklayers, Terrazzo, Mosaic,
and Tilelayers Union No. 18, Ohio Bricklayers, Masons
and Plasterers' International Union of America, AFL-CIO,
Respondent herein, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from
(a) Restraining and coercing the Lonie and Son, inc , or
any other employer in the selection and retention of its
representatives for collective bargaining and adjustment of
grievances
(b) Preferring charges against, fining, or similarly
disciplining Burgoyne H. Hughes or any other supervisor of
Lonie and Son, Inc., or of any other employer with whom it
has a collective agreement, as a member of the Respondent,
as to matters concerning their employment when such
member is the selected representative of Lonie and Son,
Inc , or of any other employer, for the purposes of collective
bargaining or the adjustment of grievances
2. Take the following affirmative action which it is found
will effectuate the policies of the Act
(a) Rescind the fines imposed against Burgoyne H
Hughes, said rescision to include 6 percent interest from the
date of imposition, and expunge from its records and
remove from its files all reference and other evidence of the
proceedings in which Hughes was fined by the Respondent.
(b) Advise Hughes in writing that it has taken the
aforesaid action in compliance with paragraph 2(a), above,
and that it will cease and desist from the action forbidden in
paragraph 1, above.
(c) Advise Bricklayers, Local Union, No. 17, Lexington,
Kentucky, wherein Hughes maintains his membership, of
the aforesaid action.
(d) Post at its business office, meeting hall, and all
other places where notices to members are customarily
posted, copies of the attached notice hereto, marked
"Appendix."' Copies of said notice to be furnished by
the Regional Director for Region 9 shall, after being duly
signed by the Respondent's representative be posted by
Respondent immediately upon receipt thereof, and main-
tained by it for at least 60 consecutive days thereafter,
in conspicuous places, including all places where notices
' In the event that this Recommended Order is adopted by the Board,
the words "Recommended Order" shall be deleted from its caption
and wherever else it thereafter appears, and for the words "I recommend"
there shall be substituted, "The National Labor Relations Board hereby
orders "
' In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations , and Recommended Order
herein shall, as provided in Sec 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
In the event that the Board's Order is enforced by a judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that such notices
are not altered, defaced, or covered by any other material.
(e) Sign and mail sufficient number of copies of said
notice to the Regional Director for Region 9 for posting
by Lonie and Son, Inc., at its current jobsites, the Company
willing, where notices to employees are customarily posted.
(f) Notify the Regional Director for Region 9 in writing,
within 20 days from the receipt of this Decision, what
steps the Respondent has taken to comply herewith'
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the said Regional Director,
in writing, within 10 days from the date of this Order, what steps
the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL rescind the fines imposed against Burgoyne
H. Hughes, and reimburse him at 6 percent interest
from the date of the imposition of the fine
WE WILL expunge from our records and remove
from our files all references and other evidence of
the proceedings in which Burgoyne H Hughes was
fined by us.
WE WILL notify Bricklayers, Local No. 17, Lexing-
ton, Kentucky, of the action we have taken.
BRICKLAYERS , TERRAZZO,
MOSAIC, AND TILELAYERS
UNION No. 18, OHIO
BRICKLAYERS , MASONS AND
PLASTERERS'
INTERNATIONAL UNION OF
AMERICA, AFL-CIO
Dated By
(Labor Organization)
WE WILL NOT restrain or coerce Lonie and Son,
Inc., or any other employer by preferring charges
against, fining, or similarly disciplining Burgoyne H.
Hughes or any other supervisor of Lonie and Son,
Inc., or the supervisor of any other employer with
whom we have a collective agreement, as a member
of this labor organization, as to matters relating to
employment as the selected representative of Lonie
and Son, Inc. or any other employer for the purposes
of collective bargaining or the adjustment of grievances.
(Representative)
(Title)
This is an official notice and must not-be defaced by
anyone.
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, Room
2407, Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.