Carpenters District Council

National Labor Relations Board - Board Decisions

Sep 29, 1971

193 N.L.R.B. 423 (N.L.R.B. 1971)

CARPENTERS DISTRICT COUNCIL 423
Carpenters District Council of Sabine Area and
Vicinity, and Carpenters Local Union No. 610
(Ralph M. Parsons Company ) and Sam S. Papania.
Case 23-CB-1126
September 29, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 9, 1971, Trial Examiner Melvin J. Welles
issued his Decision in the above-entitled proceeding,
finding that Respondent Carpenters District Council
of Sabine Area and Vicinity had engaged 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. He also found that Respondent Carpenters
Local Union No. 610 had not engaged in the alleged
unfair labor practices and recommended that the
complaint be dismissed as to such allegations.
Thereafter, General Counsel filed exceptions to the
Trial Examiner's finding that Local 610 was not
implicated in the District Council's unfair labor
practices. Respondents filed no exceptions to the
Trial Examiner's Decision, but did file a brief in reply
to General Counsel's 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 of the
Trial Examiner.
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 and hereby orders that
Respondent, Carpenters District Council of Sabine
Area and Vicinity, its officers, agents, and representa-
tives, shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Trial Examiner: This proceeding was
heard at Beaumont, Texas, on March 4, 1971, pursuant to a
charge filed November 9, 1970, and amended charges filed
December 14, 1970, and January 7 and 22, 1971, and a
complaint issued January 28, 1971, alleging that the
Respondents violated Section 8(b)(1)(B) of the Act by
fining Sam S. Papania, a supervisor for Ralph M. Parsons
Company, because he discharged David Coshman, a
Parsons employee. Respondents claim that the fines did not
violate Section 8(b)(1)(B), primarily because they were
allegedly levied because Papania's motive in discharging
Coshman was Coshman's refusal to sign a petition being
circulated by Papania, and also because Papania did not
have good cause to discharge Coshman and discharged him
about an hour before the end of the workday, and in a
manner tending to embarrass him.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the General Counsel and the Respondents, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATIONS INVOLVED
Ralph M. Parsons Company, herein called the Company,
is a Nevada corporation with headquarters in Los Angeles,
California, engaged in the construction business as a
general contractor. During the past year, the Company
purchased goods and materials for its construction work at
the Texaco Refinery, Port Arthur, Texas, the only facility
involved in this proceeding, valued in excess of $50,000,
from suppliers outside the State of Texas. I find that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Respondents, Carpenters
District Council of Sabine Area and Vicinity, and
Carpenters Local Union No. 610, are, as they admit, labor
organizations within the meaning of Section 2(5) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. The Critical Events and Discussion
Sam Papania was a carpenter foreman for the Company
on a construction job at Port Arthur, Texas, a member of
Respondent Carpenters Union No. 610, and a supervisor
within the meaning of Section 2(11) of the Act.' On March
26, 1970, Papania discharged David Coshman. Some three
weeks later, he was brought up on charges by Respondent
District Council, tried, found guilty, and fined $650, for
discharging Coshman without good cause and for doing so
in the presence of other employees and in a boisterous and
abusive mannei. The fining of Papania is alleged as
violative of Section 8(b)(1)(B) of the Act, as restraining or
coercing the Company in the selection of its representatives
I The facts demonstrating Papania's supervisory status, from the
uncontradicted testimony of Boyd Cutler, the Company's resident
construction manager, show that Papania directed a crew of carpenters and
had authority to discharge employees under hisjunsdiction. His discharge
of carpenter employee David Coshman precipitated the events herein.
193 NLRB No. 63
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining or the adjustment
of grievances.
Respondents ' defense is essentially that it had the right to
fine Papania because the charges were true. In support of
this defense, they attempted to show that Papania
discharged Coshman because of the latter's refusal to sign a
petition, circulated by Papania, against John D. Wallace,
Jr., business representative of the local union. For reasons
set forth below, I do not find that Respondents have shown
that Papania's motive for the discharge was Coshman's
failure to sign the petition, so that Respondents' defense
would fail factually even if it had legal validity.
As I read Board cases, however, it would not matter if
Papania were so motivated; the Respondents would
nevertheless violate 8(b)(1)(B) by fining him. Thus, the
Board has consistently held that a union violates Section
8(b)(1)(B) when it disciplines a member because he
performs duties as a management representative. Sheet
Metal Workers' International Association, Local Union 49
AFL-CIO (General Metal Products, Inc.), 178 NLRB No.
24, affd. 430 F.2d 1348 (C.A. 10), Dallas Mailers Union
Local No. 143 and International Mailers Union (Dow Jones
Co.), 181 NLRB No. 49, order enfd. January 8, 1971 by the
Court of Appeals for the District of Columbia, but without
passing upon the 8(b)(1)(B) violation , which is now before
the court on a petition for rehearing. These cases make it
plain that it is no defense that the conduct of the supervisor
may have violated the contract, or been discriminatorily
motivated. It may seem anomalous to hold that a union
violates the statute for fining a member for actions which
themselves , if shown to be motivated by the exercise of an
employee's protected right not to sign a petition, as alleged
here , would entail a violation of the Act (Sec. 8(a)(1) by the
employer). But the union and the employee are not helpless
in this situation ; they can file charges with the Board,2 they
can resort to economic action , striking or picketing against
the employer who has (presumably) violated the statute, to
seek to obtain legally or compel economically the
reinstatement of the discriminated against employee. They
cannot, however, seek removal of the supervisor by such
charges or economic action, because of Section 8(b)(1)(B)'s
strictures . The latter situation is in fact the same as the
8(b)(1)(B) violation in this case , with the coercion bearing
directly upon the employer, rather than indirectly, by virtue
of the Union's discipline of the supervisor-member.
B. Factual Evaluation of Respondent's Defenses
Against the possibility that I misread the Board cases, I
turn now to a consideration of the factual merits of
Respondents' defense that Papania discharged Coshman
for refusing to sign the petition. The uncontradicted
testimony shows that Papania discussed with the Compa-
2 Charges against the Company were in fact filed by Coshman. The
Regional Director dismissed the charges , and the General Counsel denied
an appeal from that dismissal . I do not rely on the General Counsel's
action in that case in connection with any of my findings in this case
3 Papania testified that Coshman was not specifically asked to sign the
petition.
4 In its brief to me , Respondent claims that I indicated at the hearing I
would not allow it "to put into evidence the fact that Coshman was an
excellent worker and that he was in fact doing his work as well as or better
than other craftsmen of the fob." In fact, the only ruling I made limiting
ny's general carpenter foreman, Bosarge, the question of
what to do about Coshman, with Papania telling Bosarge
that Coshman was not holding up his end of the work. This
occurred about 2 weeks prior to Coshman's discharge, long
before Papania circulated the petition which Coshman did
not sign. On March 23, Chester Broussard came on the job,
for the first time, as the union steward. That day, again
before any petition was circulated, Papama asked Brous-
sard "to keep an eye on Coshman; that everyone was
griping about him." Broussard also testified credibly that
other men came to him with complaints about Coshman.
The only affirmative testimony offered to show that
Coshman's failure to sign the petition was a motivating
factor in his discharge was the fact that Papania had placed
the petition on the table, Coshman had not signed it, and,
according to Coshman, Papania then asked him to sign but
Coshman did not.3 On this state of the record, the fact that
Coshman did not sign the petition could not be found to
have motivated his discharge. His own testimony does not
suggest that Papania regarded his not signing as a serious
matter. Coshman was not berated, cajoled, or threatened;
he did not sign, and that was all. In view of the earlier
complaints by Papania to Bosarge and Broussard, no
inference of illegal or discriminatory motivation would be
even remotely possible. As Respondent has not shown that
Papania was motivated by Coshman's failure to sign the
petition, I see no necessity for determining whether or not
Coshman was a good employee,4 for it is self-evident that a
supervisor's judgment in this respect, even if bad, is part of
his managerial functions. A union could grieve, if it
regarded the discharge as not for good cause; it could not
seek the discharge of, or, as here, discipline, the allegedly
offending supervisor. Respondent's contention that it had a
right to fine Papania because he fired Coshman before the
end of the shift, in front of other employees, and in a loud
and boisterous manner, assuming arguendo the truth of
these allegations, is no defense at all, for the same
reason-Papania's conduct in these respects was part and
parcel of the discharge itself, part of the exercise of his
supervisory role.
Finally, Respondent cites an administrative decision of
the General Counsel to the effect that a union may lawfully
fine a member, and sue to collect the fine, without violating
Section 8(b)(1)(A). That case involved an employee, not a
supervisor, was in effect the holding of the Supreme Court
in N.L.R.B. v. Allis Chalmers Mfg. Co., 388 U.S. 175, but
has no application to Section 8(b)(1)(B), as the Board has
held. San Francisco-Oakland Mailers' Union No. 18
(Northwest Publications), 172 NLRB No. 252.
Accordingly, I conclude that Respondent District
Council violated Section 8(b)(1)(B) by firing Supervisor
Sam Papania.5 I do not, however, find a sufficient basis in
the record for holding Respondent Local Union 610
Respondent related to testimony of Coshman's work at previous jobs.
Since even Coshman's work record at the Parsons job from which he was
fired would only be relevant to the extent that a good record might tend to
support Respondent's contention that Papania was motivated by
Coshman's failure to sign the petition, and since as I read Board law even
that motivation would not be a defense , I see no reason to reverse my
ruling.
5 Contrast the result reached in Carpenters District Council of Sabine
Area and Vicinity, Case 23-CB- l 114, issued this date
CARPENTERS DISTRICT COUNCIL 425
responsible for the violation. In its answer, Respondents
denied that any of the persons named in the complaint was
an agent of the Local, although conceding that they were
agents of the District Council. No evidence was presented
actually implicating the local, or even establishing that the
local is a constituent of the Council (however plain it is that
this must be so). Papania was notified of the charge against
him by the District Council, tried by a District Council
Trial Committee, and fined by the District Council. The
letter finding him guilty did direct him to pay the fine to the
local's financial secretary. I do not regard that as sufficient
to implicate Local 610 and shall dismiss the complaint as to
it for lack of evidence.
CONCLUSIONS OF LAW
customarily posted, copies of the attached notice marked
"Appendix." 7 Copies of said notices on forms provided by
the Regional Director for Region 23, after being duly
signed by an authorized representative of the Respondent,
shall be posted immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter. Reasonable
steps shall be taken by the Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(d) Furnish the Regional Director signed copies of such
notice for posting by Ralph M. Parsons Company, if
willing, in places where notices to employees are customari-
ly posted.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Decision, what
steps it has taken to comply herewith.8
1. By fining Company Supervisor Sam Papania for his
conduct in discharging David Coshman, Respondent
Carpenters District Council of Sabine Area and Vicinity
engaged in an unfair labor practice affecting commerce
within the meaning of Sections 8(b)(1)(B) and 2(6) and (7)
of the Act.
2. Respondent Carpenters Local Union No. 610 has not
violated Section 8(b)(1)(B) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act. In recommending the
repayment of the fine imposed on Papania, the payment of
interest at 6 percent per annum will also be recommended.
Isis Plumbing & Heating Co., 138 NLRB 716; Sheet Metal
Workers Association, Local 49 (General Metal Products,
Inc.), supra.
Upon the foregoing findings and conclusion, and upon
the entire record in the case, I recommend, pursuant to
Section 10(c) of the Act, issuance of the following:
ORDER6
Respondent Carpenters District Council of Sabine Area
and Vicinity and its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Restraining and coercing the Employer in the
selection of its representatives for the purpose of collective
bargaining or the adjustment of grievances.
(b) Fining or otherwise disciplining Supervisor Sam S.
Papania, or any other supervisor, because of the perform-
ance of his supervisory duties.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Rescind and repay the fine levied against Supervisor
Sam S. Papania with interest at 6 percent per annum and
excise all records thereof from its files.
(b) Notify Sam S. Papania in writing that it has taken the
aforesaid action, and that it will not fine him hereafter
because of the performance of his supervisory duties.
(c) Post in conspicuous places at offices and meeting
halls, and other places where notices to members are
6 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.
7 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."
8 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , notify said Regional Director, in writing,
within 20 days from the date of this Order, what steps 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
After a hearing in which both sides had the opportunity'
to present their evidence, the National Labor Relations
Board has found that we violated the law and has ordered
us to post this notice and abide by its terms.
WE WILL NOT restrain or coerce Ralph M. Parsons
Company in its selection of representatives for the
purpose of collective bargaining or the adjustment of
grievances.
WE WILL NOT fine or otherwise discipline Sam S.
Papania or any other supervisor of Ralph M. Parsons
Company who is a member of this labor organization
because of the performance of his supervisory duties.
WE WILL rescind and repay the fine levied against
Sam S. Papania with interest and excise all records
thereof from our files.
WE WILL notify Sam S. Papania that we have excised
all records of the aforesaid fine from our files and that
WE WILL NOT fine him hereafter because of the
performance of his supervisory duties.
CARPENTERS DISTRICT
COUNCIL OF SABINE AREA
AND VICINITY
(Labor Organization)
426
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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, Dallas-
Brazos Building, Fourth Floor , 1125 Brazos Street,
Houston, Texas 77002, Telephone 713-226-4722.