District Council No. 2

National Labor Relations Board - Board Decisions

Jan 17, 1979

239 N.L.R.B. 1378 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District Council No. 2 of the Brotherhood of Painters
and Allied Trades, AFLCIO and The Paintsmiths,
Inc. and The Contracting Painters and Decorators
Association, Chapter No. 2, Party to the Contract.
Case 14-CB-3469
January 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND ME[MBERS JENKINS.
PENELLO. AND TRUESDALE
On June 7, 1977, Administrative Law Judge Her-
bert Silberman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
cross-exceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
Administrative Law Judge's rulings and findings of
fact but not his conclusions and recommendations.
The facts, which are not in dispute, show that the
Charging Party-The Paintsmiths, Inc. -is a paint-
ing subcontractor whose employees are members of
Respondent. In 1977, The Paintsmiths and Respon-
dent had an agreement which provided at section 20
that Respondent "shall have the power to appoint
job or shop stewards and the Employer agrees to em-
ploy such persons appointed as stewards" for the en-
forcement of the contract. The contract also provid-
ed that job stewards "shall be appointed on all new
work." ' The contract specified that whenever em-
ployees were to be hired The Paintsmiths would in-
clude Respondent among those notified. The con-
tract had a union-security clause which provided that
employees would become members of Respondent
on the eighth day of their employment or the execu-
tion of the agreement, whichever was later.
On January 4, 1977,2 Respondent's business agent,
Gregory Raftery, learned that The Paintsmiths had
secured the painting contract on a new jobsite. No
steward, however, was immediately designated.' On
February 4, Raftery visited the jobsite and observed
that one painter was in violation of a union trade rule
and that the job foreman, a union member, had not
enforced the rule. Later that day, Rafterv notified
The Paintsmiths that he would send a steward to the
job.
I There are no eligibihti, requirements for appointment a' stcard
2 All dates are 1977 unless noted otherwise
Rafter, had asked to be informed before the job started s,, thIt he ,.ould
name a steward, but The Paintsmiths never informed Respondent be[l.re It
started work at the site
On February 7, Gregory's brother, Richard Raft-
ery, appeared at the jobsite as the designated stew-
ard. The Paintsmiths' foreman, Leonard Hart, in-
formed Gregory that there was no work for an
additional painter, but Gregory insisted that the
steward be hired. Hart then informed The Paints-
miths' president, William Smith, of the situation, and
Smith told Hart to put Richard Raftery to work and
send home employee Steven Scheble. At the end of
that day, Richard Raftery was discharged.
On February 8, Gregory Raftery went to the site.
Foreman Hart suggested that an employee already
on the site be named steward, but Raftery replied
that the employee was not qualified and that Raftery,
not Hart, would choose a steward. Since no steward
was on the job, Raftery shut down the job. Later that
day, Smith acceded to Raftery's demand that all
stewards should come from the union hall. Thereaf-
ter, The Paintsmiths employed whatever steward was
designated by Respondent, and the job was complet-
ed.
Respondent asserts that it wanted a steward on the
job who would be willing to enforce its trade rules.
Respondent also contends that the appointment of a
steward not from the contractor's regular work force
was essential because of the possible reluctance of a
regular employee to independently seek enforcement
of the contract for fear of possible reprisal.
The Administrative Law Judge found that there
was no evidence that the purpose of the section 20
appointment-of-steward clause was to enable Re-
spondent to control the hiring of the employees des-
ignated as stewards. He found the clause was a valid
contractual provision. Nevertheless, he found that
Respondent's conduct in causing the layoff of em-
ployee Steven Scheble was an unlawful application
of this valid contract provision, apparently on the
theory that Respondent failed to show proper justifi-
cation for its conduct.
We agree with the Administrative Law Judge that
the appointment-of-steward clause is valid. However,
unlike the Administrative Law Judge, we can find no
unlawful application of this clause in this case. As
the Administrative Law Judge noted, consideration
of Respondent's reasons for enforcing the clause as it
did are "critical to the issue of whether it thereby
committed an unfair labor practice."4 Contrary to
the Administrative Law Judge, however, we find no
proscribed purpose in Respondent's enforcement of
the provision. Respondent indicated that its sole rea-
son for exercising its contractual power to designate
its own steward was to ensure it would have present a
steward who would be more disposed to enforce
trade rules and police the contract without fear of
4 s4h/c lH li. IAhml I hr ( ,, 210 Nl RB 32. 33 (1974).
1378
DISTRICT COUNCIL NO. 2. PAINTERS
losing a regular job. This is a legitimate purpose on
Respondent's part and was recognized as such in
Ashley. Hickhamn-Uhr (Co., supra. Accordingly. as
Respondent acted here for a legitimate aim, its ac-
tion, with their attendant results, did not violate the
Act, and therefore we shall dismiss the complaint
against Respondent in its entirety.
We note that after the decision in A.4hle'l. tich-
ham--'hr. supra. a majority of the Board in a later
case reached a different result on facts which were
characterized by the majority as critically unlike
those of Ashley. Hickhaml-- 'r. 5 We reject the areu-
ment posed by the majority in that case that the
holding in Ashlet, Hickham-- Uhr should be limited
to a union's concern for placing a particularly know l-
edgeable steward on a potentially troublesome joh-
site.6 As the dissent indicated in that later case. "the
degree or extent of the union's problem" should have
no bearing on the lawfulness or unlawfulness of its
conduct.' For, as the dissent there further indicated.
"[clonduct which is engaged in solely for the purpose
of promoting legitimate union objectises under the
collective-bargaining relationship cannot be classi-
fied as an arbitrary encouragement of union mem-
bership." s Here, as the Union was attempting to in-
sure its contract would be policed by members more
independent of the Employer that the usual work
force, its actions promoted legitimate union obJec-
tives, and we therefore dismiss the complaint which
alleges otherwise.9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint be.
and it hereby is, dismissed in its entirety.
MEMBER PENELLO. dissenting:
I disagree with the majority's conclusion that
Respondent's application of the appointment-of-
steward clause in the governing collective-bargaining
agreement did not violate the Act. On the contrary, I
find that (1) Respondent's application of that clause
was not necessary to the performance of the union's
representative functions, and that, therefore the re-
sultant layoff of an employee caused by Respon-
See Local Lnion 798 of %asau (ountv. Ne. )Iot,rk Brotherhl,,twd m I'llti-
ers and Allied Trades, Af L ('10 (Nacsii.1au Dcsion ,,of Mh. tlrcer Pninlt,l
Association of Nassau-Suffolk Counties In aind 'uCiiau Dtoin,,n l al tih (,j -,
sum Drywall Contractors Inc ., 212 NLRB 61h 11974) Ithen Member i-.n-
ning and Member Jenkins dissenting).
6 See 212 NLRB at 617. tn 3
Id at 618.
8Id
To the exlent that the Board majoril holdin 1il I i i i,*n 'NQ, Pa, l
err supra. Is inconsIstent w.ith our finding herein. It i, hererh c, errnlcd
dent's action unlawfully encouraged union activity.
and (2) moreover, and far more meaningful. the ma-
jority opinion disregards and perhaps repudiates the
well-established Board rule. based upon a landmark
decision of the Supreme C(ourt, regarding union cau-
sation of an emplo!ee's lasoff or discharge. Accord-
ingle. I dissent.
'Ihe facts in this case arc not in dispute. I he
Charging Parts. l he Paintsmiths. Inc.. is a painting
subcontractor whose employees are members of Re-
spondent UInion. -The governing collective-b rgalin-
inm agreemetnt provided. in pertinent part. that Re-
spondent "shall hav e the power to appoint job or
shop stewards and the Employer agrees to emplor
such persons appointed as stewards for the enforce-
ment of this Agreement." "'
On Fridas. February 4. 1977.'' Respondent's busi-
ness agent. Gregorv Raftery. visited one of T he
Paintsimiths' jobsites and observed that one of the
three painters emplosed by the Company at that site
was not wearing a white shirt as required by union
trade rules. Consequently. Rafters left a message
with the CompanN's office that a steward would be
sent to the job on the following Monday., Februar, 7.
Rafter,, appointed his brother. Richard. as job steu;-
ard. and the latter reported for work at thejobsite on
F ebruary 7. The Company's foreman, Leonard Hart.
informed CGregory Raftery by telephone that there
was no work for an additional painter, but Rafters
insisted that his brother be hired or otherwise no
painter would work. Hart telephoned William Smith,
comnpany president. who instructed Hart to put Rich-
ard Rafters to work and release employee Steven
Scheble. Hart complied with Smith's directive. How-
ever, at the end of that da). Raftery was discharged.
On February 8. Gregory Raftery visited the jobsite
and advised the painters that no one was to work
until a steward was on the job. Hart told Rafter 5 that
there was a reduced anmount of work and suggested
that Robert Wallace, a painter then on the job. be
appointed steward. Rafters stated that Wallace was
not qualified and, soon thereafter. Rafters "shut the
job down." Later that day Smith met with Rafters.
At that meeting Smith renewed the Company's sug-
gestion that the Union appoint a steward from the
Company's existing work force. Smith also stated to
Rafters that since there was a reduced workload he
would have to lay off or find other work for employ-
ee Scheble if forced to employ a steward from the
union hall.'2 Rafterv again insisted that a steward
designated by him be employed on the jobsite. Smith
Ihe agreen:ncnt doe not proiide for an exclusie hiring hall arr.ngc-
icnI hoe' er
i \1 daies c re In 19i 7 unle. ctlherr c ls ncted
111e Ad ninistratlrie I ia. Jnudge did n,I speclfl callkl make thi> finding of
( 'frllnle¢l d
1379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finally acceded to Raftery's demand. and thereafter
the Company employed at the jobsite several stew-
ards selected by Raftery from the union hall. As the
Administrative Law Judge found. Schehle lost a total
of 16 to 17 hours of work which he would have had if
he not been laid off from work on February 7.
The Board has established that a union violates
Section 8(b)(1)(A) and (2) of the Act when it causes
the discharge of an employee, except in certain spe-
cial circumstances. As the Board stated in Interna-
tional Union of Operating Engineers, Local 18, AFL-
CIO (Ohio Contractors Association).:
When a union prevents an employee from
being hired or causes an employee's discharge
[or layoff], it has demonstrated its influence over
the employee and its power to affect his liveli-
hood in so dramatic a way that we will infer
or, if you please, adopt a presumption that the
effect of its action is to encourage union mem-
bership '4 on the part of all employees who have
perceived that exercise of power [citing Radio
Officers' Union, supra]. But the inference may be
overcome, or the presumption rebutted, not only
when the interference with employment was
pursuant to a valid union-security clause, but
also in instances where the facts show that the
union action was necessary to the effective per-
formance of its function of representing its
constituency.
Thus, in the circumstances of this case, Respondent's
causing the layoff of Scheble by demanding that the
employer hire a steward from the union hall can be
regarded as lawful only if Respondent can rebut the
adverse presumption created thereby by affirma-
tively showing that its action was necessary to the
effective performance of its representative functions.
In this case, Respondent's asserted reason for de-
manding that the employer hire a steward from the
union hall is that such a steward "would be more
disposed to enforce rules and police the contract
without fear of losing a regular job." This rationale is
apparently premised on the belief that if a steward is
appointed from the employer's regular work crew he
would be afraid to enforce the rules because, as
Gregory Raftery testified. "the company would prob-
ably lay him off and he would no longer have a job
with that company." I do not accept this reasoning
fact. Nonetheless. the record shows that Smith made this staeimenri which is
undisputed upon the record
204 NLRB 681 (1973).
14 The Supreme ( ourt has stated that Sec. 8Ra)(3) and. hb logkal , tau-
tory reasoning. Sec 81b(2)h proscribes discrimination which not onls en-
courages or discourages union memrhership but also encoUraoges or da-li.ur-
ages union activities Radio OffirerC ln.on Oa the ( orlmnler(ia, l 'h'rraihe,,
AFI /A H. Bull Steantrhip (o./ v N 1. R . 347 : S 17. 39 411 1
9
4)
by Respondent as valid in this case. As Raftery
also testified. The Paintsmiths has never subjected an
employee to reprisals or otherwise harassed an em-
ployee for performing the duties of a steward.
Moreover, other evidence tends to reveal a differ-
ent reasoning behind Raftery's demand that the
('ompany hire his brother. First, Raftery admitted
that the only violation of union rules or the contract
on the jobsite was simply the wearing of a blue rather
than a white shirt. However. Raftery also admitted
that he has witnessed the violation of this shop rule
by other union members in the past and has merely
instructed them to wear white shirts on the next
working day or have union charges preferred against
them. Yet, in this Instance, Raftery demanded, to the
point of "shutting the job down," that The Paints-
miths hire a steward from the union hall. Second,
Rafter) subsequently appointed Scheble as a union
steward on another Paintsmiths job, despite the fact
that Scheble remained in the Company's employ.
Lastly. as in another Board case involving an ap-
pointment-of-steward clause,.5 the person appointed
as steward from the union hall was a close relative of
Respondent's business agent. In light of these facts, I
tend to view Respondent's asserted rationale justify-
ing Scheble's layoff with serious reservations.
Nevertheless, even assuming that a steward ap-
pointed from the union hall, as opposed to one from
the Company's regular work crew, may in certain cir-
cums.tances be more disposed to enforce trade rules
and police the contract, I conclude that in the circum-
stances of this case Respondent did not show that its
action was necessary to the performance of its repre-
sentative functions and that the resultant layoff
thereby unlawfully encouraged union activity.
In Painters Local 798,i1 the Board was confronted
with a similar appointment-of-steward clause. We
held that there was "no compelling reason [advanced
by the union] why [it] required control over the hiring
picocess in order to maintain proper employee repre-
sentation. 17 We also noted that the union could
have appointed a steward from among the
employer's regular work crew, as The Paintsmiths re-
quested Respondent do in this case, and that "[a]ny
failure of stewards who were already employed to
enforce the trade agreements [or union work rules]
could surely be controlled by appropriate union
training or, if necessary. by internal union discipline
of stewards who failed to perform responsibly." 8
See Rhll gin ,Ifatcrial,. Irat, A D)rer. ('hauffeurv, anti Helperrs I.trul ,'Sn
'i., Internaltin, l Brt therhoo /, leoal.tier,. (Chauffeurs. Wareholltenien and
Itle~(rs. 0 4'"rwa" tit.p/il InJ 229 NNLRB 347 (1977).
nI , pin(u, , 8,,f, %a S, ia , slu (' ,uni, Ne' I iorA. Brotherhood Jf Patiniers
,nld 41Iredl Irndet, 4 1/ ( I() 'Nantal [)B,,lon ,i ,th, isater Palintersi A4o,,,a
i,,n. 212 Nl RB 615 1974)
id at 617
it d
!1380
DISTRICT COUNCIL NO. 2. PAINTERS
The Board's rationale in Painters Local 798 seems
particularly pertinent in this case, where ( 1I) the only
violation was a minor one, consisting merely of wear-
ing a blue rather than a white shirt: (2) Raftery had
only found it necessary in the past to simply instruct
other employees who violated this rule that they
should conform thereto or face union charges: (3)
Scheble, who was laid off as a result of Respondent's
action, was later appointed from the Company's reg-
ular work crew as a steward on another Paintsmiths
job; and (4) the Company had never visited reprisals
upon its employees for enforcing trade rules or polic-
ing the collective-bargaining agreement. nor did Re-
spondent introduce any evidence that any of the
Company's regular work crew was apprehensive
about reporting violations thereof. Thus. I am con-
vinced that the hiring of a steward from the union
hall rather than from the Employer's regular crew
was not necessary to his performance of Respon-
dent's representative duties in this case. Accordingly,
Respondent has not rebutted the presumption of un-
lawfully encouraging union activity which arose
when it caused the layoff of Scheble and has thereby
violated Section 8(b)(1)(A) and (2) of the Act.l
In reaching this conclusion, I note that an appoint-
ment-of-steward clause may in fact be validly ap-
plied in a situation which causes an employee to he
laid off or discharged; however, the union must rebut
the adverse presumption created thereby by affirma-
tive showing that the clause was invoked as a neces-
sity for the performance of its representative func-
tions. The Board found that a union demonstrated
such necessity in Ashley, Hickharnm lUhr Co.,20 where
the parties stipulated to the fact that the union's ac-
tion was in furtherance of a legitimate and valid con-
cern for placing an experienced steward on a poten-
tially troublesome jobsite.2 '
In the instant case, however. Respondent made oh-
solutely no showing that a steward appointed from its
union hall is more disposed to enforce trade rules
In oserruhng Palnrers Local '98 (see fn 9. uprsi). Ihe ma .ollTiis soffer. InI
rationale wh) that decision. which was enforced hb the scourtr I i / R B X
Local U1'nion 7908 538 F2d 2d (2 r 1976) i. s noiw deemed tI h.\e beetn
incorrectly decided by the Board In accord with Ihi disent. I hereb! reaf-
firm my position set forth in the majori,) opinion of Ihat ctae
210 NLRB 32 (1974).
2' The majorit' opinion unjustifiahl states that the Board in P',ii,,,t,
local 798 incorrectly limited the salid appllcatitn if an a.Iprrintmensti(f-
steward clause only to siluatlons where a union was concelnetd with plul,.ie
a particularly knowledgeable steward on a potentiall Iroubleshcllite lohslie
As in 3 of the Pairners decision states: "in the Inrat nt case, Ihc Repron1 idcnt
has not sought to place a particularly knoledge.leidge le .rd n, a IluhLble
some jobhsle ,or iith a parrculiarl difitculIr enip/sir " (i ntph.lis supphlic
212 NLRB at 617. in 3. In fact. the Board has tecenls( re.titted Ihat ptv,-
tion. holding that the application of an appoiinlmenli of-,ilc.taid ,.inlue . )i)l
justified where "there was no need sho>wn for an expeileltcld hop
steward, since the labor relalions hlstoirs at ithe rnmpalln.ii ,l i. p.c . fiil
one without the complicalions of jurisdlii,nal strike art i/hii sslleillti/ss,.sf
lems " Emphasis supplied ) E iplo. In, , t}pral it 35)
and to police contracts than a steward appointed
from The Paintsmiths' regular work crew because of
the latter's fear of reprisals by the Company, as Re-
spondent asserted as justification for its actions. Had
such a showing been made by Respondent. I would
likely join my colleagues in finding no violation
herein. Nevertheless, despite the total absence of evi-
dence rebutting the adverse presumption created by
Respondent's action. the majority of my colleagues
dismisses the complaint.
Although unstated by the majority. implicit in its
decision is the abrogation of the aforementioned rule
that an adverse presumption is created when a
union's action causes the layoff or discharge of an
employee. 2" In this regard. a Board majority in an-
other case has today explicitly stated that no pre-
sumption of unlawful encouragement of union activi-
ty is created when a union prevents an employee
from being hired because of the application of a con-
tract clause granting preference in hiring to stewards
designed by a union. I cannot accept this position.
since the rule creating an adverse presumption in the
context of these cases is well established 24 and de-
rives directl' from the Supreme Court's decision in
Radio O()fbIcers' Unionl .uprra. 25
In casting aside the rule creating an adverse pre-
Ilsus,., sllce the nt.itorits decision is silent on the matter of the
.Iderse presulillphril I ii ps,ishlbe that their anablsis has been faithful to
that Uell-eltabllthcId ide If thit is the c mlse the ntaiornt must hase hasbed
Its oiIclusist)[l o1 the 111i' ih ' t is i imalter of Board law. appoinimenl of
a .ie.ard friom the unitin h.ah ]. /,I sI, neccsirs r)i the performance of
Responldent's rcprecntailtaltle tJisllofI. rt leirsi/cl 'i, uhethehr the union has
pleeltlsl\ rencouineredi prohlcils crforcilg .Ind pollcinE tride rules and
contracts bhc..iuse of recul.r cniiploescc fea.r 5of lobh los I refuse to suibscrrhe
t, hiits theor ilnie It .lssurtles thal stce, .lrl Uhs ire pl .ppoiltied fronl the
reculalr uork tiec ire a .ia cIlass. inhereltl\ intapible of perforlliitne thelr
duties hbe.AuLse 4o possible repris.Bu hs Itneir cmploser
si esicutr ~ Is s d Y, I . tlc it 4/ts 1aila it/slhalsd/ ills I/nleln.aloslna/ Betrh-
rl;,/,t s ..t Itit~l*rsls ( thitu l rL ai r ehtesussc ,in ansd ]tirlftr Isf 4nlira <
r(etta i I../,,li /t t, 2 19 NI RB 1187 (11979)
- See H; Ahlt ¢ri / / I '. - rt Bf la, er/si faornr ansd Platcrisrs' Interna-
rIld i It, t mI t nr.. 4 i1 (1 t tflassnri But/deer. Ins /. 224 Nl RB 2(16
1976 I ,, l u/I I tiscd frlethrhodof ( lds'arir psn i dJ.snerrsf 4cnsI,
411 ( /( 4 ,s t ld (Isaeil/ I, trilracr oi ( arif I ,rnl. Inc I. 210 NI RB
359 H36) 119 4): Inclist,' nal Brolh cris d i/t Painters and .1ired Trades, lo-
i(I/ I ri-rs /lhrt, 4 < l( I) Il J .si¢thist'r. Jr d I a h J Sichenollhr,
Jr. Potm ( nip/,,m 1! N I RB "l. 6h2 653l fi 4 (19'73I1 tconcurrin p-sl
ion h\ liellt Micliher I .Ilnriicl I Itl'rtlll/ l Is itpt' tlmsg i at i. ll.'.lrx .
/Is,, / /I sit/rit lt/, ri tit l.,itl I ltotli i/lr l nit'lssl Briherhs.od sss ( /r
/,tlt',s slta/ Jilnrs of America. AFL ('10 (Planet ( osrprorulln). 144 NI RB
798 SIX) 19t3) See alsos Rider IrluA lines. In . 234 NLRB 218. 221
197s)I 5.t! l tl t( w' 5, -'s 4 tll/ti I llItsld 4slaiis n , Jsourneinen tand
4[fre s"t , ,, ti/i lsl r t llt ' andil P/ Ill ndu tre I the ni ted S1i'te asind
( snilss I I ( I() l I/' i, Rc, ItstIlti ( I ipnistlt, 22$ N lRB 138. 142
197i): ( l (t tsr t tslstill !s.its tr's l[ .ia ltl i ;si \fss . o/the ah . lhotrs
srs ntl ul t Itlt sr. , n serlt 4IIrsati I (Pascalt P Paddtlstl I /i . 223
xi RB 939 942 1 19t) lTrucA Drivers. Filling Statiuson aid Plaitsrai if srAcrs
I l st 1 I s o il, .5 rtS/isil'dt ltib /Iniltrnliioti/l Brlt/is rIshosdd ,i l]carricsrs
I llt st It i s I l 1t.l Utl t I/, r 4tm'r tll t I R /indolph t
tapir ( ohpft
,;. N'I I R B 199 2'(X) I 1975) L (t/,r~li Itil. s /)rtcrs c ( haulWiCr s/Ind
1th./stss ([tustt I sl1 al ' '/, . I B I J sr aIi isisrel 1 IrlltoiLi SfirctItI , 201)9
NI RB 446 449 9 'q41 ilhetl Me ilher I a Ilttrinn stctrll/iliii .i'siu'ir rs , iler
tlt/ll i// , Ii ssl , ,,,t A ; ,5 It , Alts / ,/ 4 rIt/r ti tslt I sA, s I /t& illld }1f tire l,
t t / i / l ( /il /tsilm/li lIr /1 i ;. 2)2' N I RB It". (S r 1973)
14' t S at 44 4h
1381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumption, the majority substitutes a new standard of
proof in these cases: whether the reason asserted by
the union in support of its action which causes an
employee's layoff nevertheless promotes a legitimate
union objective. 2 6 Thus, the majority concludes that
the Union's asserted reason for its action-effective
policing of its collective-bargaining agreements and
enforcement of its trade rules-serves a legitimate
union objective and, therefore, the Union's action in
causing an employee's layoff was not unlawful. This
new standard however, is patently infirm, since it ob-
viates the need for a careful consideration of the per-
tinent facts in relation to the asserted reason for the
Union's action. In other words, under the majority
decision, a union is not required to show that a nexus
exists between its asserted justification and the factu-
al situation confronting it when it caused an
employee's layoff by application of a stewards
clause. Thus, this standard of proof renders a union's
exercise of an appointment-of-steward clause highly
susceptible to abuse, as vividly' illustrated in the in-
stant case. Here, there was no nexus shown between
Business Agent Raftery's asserted reason for de-
manding the hiring of his brother, whom he designat-
ed as a steward, and the existing situation on The
Paintsmiths' jobsites regarding enforcement of trade
rules and contracts. Therefore, in cases such as this,
the Union's application of a stewards clause may
have the effect of a hiring preference for those em-
ployees whom a business agent may appoint as stew-
ards. Such conduct by a union dramatically. arbi-
trarily, and unlawfully encourages union activity.
In sum, the majority decision has very regrettable
practical effects upon employees' Section 7 rights to
refrain from union activity. Where, as here, a union
is alleged to have violated Section 8(b)(l)(A) and (2)
by causing an employee to be laid off, a union appar-
ently need merely assert that it has acted pursuant to
some legitimate union objective in order to prevail
on the merits. In addition, the majority opinion
seemingly forecloses the General Counsel from dis-
puting or rebutting the union's asserted reason, since.
'2 It is interesting to note that one of m) colleagues In the In;lJ orlit has
recently defined a term similar Io that used hs the rnmaloril herein. i e.
"legitimate union objective" In K' J Slehenollr. J, Painml ( 'qp/l.o, u-
pra, then Member Fanning stated: "(N Jot all suth enciuragerment of union
riembership larising from a union causineg r attempting' t .a.ule iln Crl-
ployer to discharge or refuse to hire an emploveel is proicrlhed hs Sec
8(h)(2) of the Act and Ihat such encouragement flo",ln from i ,l,iwlaR
union actiOn, ie that netes.arv to the 'untion' rrdc zs, 'l(l h , '>l . urnllle
representative is lawful encouragement f" Emphasis supplied ) 20 Ni RH .
652 6 652 653. fn 4.
1 Even if the majority inadvertently failed it cnlsider this record esl-
dence relating to the situation on Ihe Paintsmiths' hobsitc wAith regard tol
enforcement of trade rules and policing contracts. the ma;lorilt opil ion hal,
at a minimum. shifted the evidentiar' burden of corning forur.ard frin lihe
union to the General Counsel. thereb? repudiaing the rule creating an ad-
verse presumption against the union
in this case, the majority dismisses the complaint de-
spite clear evidence adduced by counsel for the Gen-
eral Counsel that The Paintsmiths has never taken
any reprisals or engaged in other forms of harass-
ment against its regular employees for enforcing
trade rules or policing the collective-bargaining
agreement.2 7 Thus, the majority decision has the un-
fortunate practical effect of insulating a union from
culpability under the Act and exposing employees to
possible abuse in virtually every instance in which a
union causes the layoff of an employee by applying
an appointment-of-steward clause.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN. Administrative Law Judge: Upon a
charge filed by The Paintsmiths, Inc., herein cailed the
Company, on February 14, 1977, a complaint, dated
March 9, 1977, was issued alleging that the Respondent,
District Council No. 2 of the Brotherhood of Painters and
Allied Trades, AFL-CIO, herein called the Union, has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(2) of the National Labor Rela-
tions Act, as amended. In substance, the complaint alleges
that on February 7, 1977, Respondent caused the Compa-
ny to lay off its employee Steven Scheble in order to em-
ploy a job steward appointed by the Union. Respondent
duly filed an answer denying that it has engaged in the
alleged unfair labor practices. A hearing in this proceeding
was held on April 11, 1977, in St. Louis, Missoun. Briefs
have been filed with the Administrative Law Judge on be-
half of General Counsel. Respondent, and Charging Party.
Upon the entire record in this case, I make the follow-
ing:
FINDIN(;s )F FAC(
I lRISDIC TIONAL FINDINGS
During all times material hereto. Respondent and the
Company have been parties to a collective-bargaining
agreement covering the Company's painters. The Compa-
ny, a Missouri corporation, is a painting subcontractor per-
forming services in the building and construction industry.
During the calendar year 1976, which period is representa-
tive of the Company's operations, the Company received
payments in excess of $50,000 for services performed by it
in States other than the State of Missouri. The complaint
alleges. Respondent admits, and I find that the Company is
an employer within the meaning of Section 2(2) and en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
11 tiL IUNFAIR LABOR PRAC(tCES
During all relevant times. the Company and the Union
1382
DISTRICT COUNCIL NO 2. PAINTERS
have been parties to a collective-bargaining agreement
which, among other terms, includes the following:
Section 5. Union Recognition
The Union is recognized as the exclusive collective
bargaining agent for all journeyman painters, appren-
tices, and working foremen employed by the Em-
ployer....
Section 6. Union Security
This section sets forth a union securilt clause of a
type conventionally used in the Building and C'on-
struction Industry.
Section 7. Employment
a. The parties recognize the fact to be that the
Union's knowledge and experience with the industr,
involved herein, together with the sources of compe-
tent manpower available to it, can be of assistance to
the employer in recruiting needed employees. It is
therefore, agreed that whenever employees are to be
hired, the Employer shall include the Union among
other persons, firms or corporations to be notified and
shall afford the Union an opportunity to recommend
job applicants. The Employer further agrees to give
such member due consideration, consistent with the
provisions of the National Labor Relations Act. as
amended.
b. The aforesaid notification of needed employees
shall specify the name and location of the job in ques-
tion, the probable duration of the job. the class or
classes of employees to be hired, the number of em-
ployees required in each class, the probable length of
employment of those in each class and the experience
and qualifications desired by employees.
c. The Employer shall notify the Union whenever
employees are hired, giving their names and addresses,
dates of employment and the job classifications to
which they are assigned.
d. When qualified members are not available. the
Employer agrees to notify the Union at least 48 hours
in advance of the desire to employ additional help.
The Union shall refer applicants to the Emploser from
the Union's list of applicants available for that pur-
pose.
Section 9. Management Rights
Members shall be free to select the Employer for
whom they desire to work. The Employer shall be free
to accept or reject any job applicant referred from any
source. It is distinctly understood and agreed that the
Employer reserves the right of management at all
times and may select, in case of reduction or replace-
ment of forces, those workmen who are, in the
Employer's judgment, the best qualified.
Section 20. Stewards
It is agreed that the Union shall have the power to
appoint job or shop stewards and the Employer agrees
to employ such persons appointed as stewards for the
enforcement of this Agreement and the decisions of
the District Council whenever it deems such action to
be necessary. Job stewards shall be appointed on all
new work. On all overtime work where no job or shop
steward has been appointed. overtime stewards shall
be appointed to protect the Union's interest.
All overtime work shall be reported by the Em-
ployer to the Union in advance.
Any Employer aggrieved by the Action of the Dis-
trict Council in placing a steward on his job or in shop
may appeal to the Joint 'Irade Board for final deci-
sion.
The controversy herein arises from the Union's effort to
apply section 20 at a new construction jobsite referred to as
the North Gate Nursing Home.
The ('ompany, which had the painting contract for the
North Gate project. maintains what it terms a regular work
force of 30 to 32 painters, which means that, although it
does not guarantee any specific amount of work to these
employees, it gives priority to this group whenever it staffs
a job. Until the incident that developed on February 7.' the
experience of the ('ompany has been that the Union ap-
pointed a job steward at its jobs about two times per year.
In each instance, according to Company President William
Smith, the Company was able to use the extra man and did
so as a favor to the business agent who made the request.
The Company began work at the North Gate project on
January 11. Prior to February 7, no job steward had been
designated. Union Business Representative Gregory Raft-
er, testified that on January 4 in a conversation with Smith
the latter informed him that the North Gate job would not
begin for a long while. Raftery asked to be notified before
the job started because he wanted to appoint a steward for
the job. 2 Smith said he would, but did not. 3
On Friday. February 4, Gregory Raftery 4 visited the
North Gate jobsite. He observed that one of the painters
on the job. Robert Wallace, was not wearing a white shirt,
which is a violation of a union trade rule. That evening he
telephoned the Company's offices and left a message that a
steward sw ould be sent to the job on Monday. s
Business Representatie (iregory Rafters appointed
I inc,, ol1hcrin.'.sc id lClldet. il date. refer to the sear 1977
. f .Inuar ,, 4 (4 ictior? Rilters,, krlne' of no trade rules .i .,ioahit on
th. pittl .f the ( [nip11 1 ; d i n .,,l d io i e.t' n to alrlnticiptlle j.uridicltinal or
iothi I'l'ohl']ni , it/ the i, h
St, ltlh 1t c f ll e Ih, hbeft ltc \orl i (itte l h hegan he had a c oner,a
It .i ih R.ilter,, .lll I [di-..,leJ d Ihat I .i supposed to haxe the painters
'it I tie xcr\ ttt'. 'eek 'tid thai hbai.alls. i all I recall of the conecrsa
thql I kin, ti t tI e has .l d tri nllI,. [htit during thai comn eraiin he haid
idlItIcdI hi ic .Ietl kt pltce a stwc'l. d or l thar ob I do nli recall that " I
ftlect R.itler'. rtit. [ctlt ii, ,f ihe tonecrsato, n s tm,.ore itturltc tI lh t
51mith 1 1if ,iuh i-; ldIll l i' tcdl t R ti,'cr, ill repeil thereto
RI.flie. he.i llC htl-tie'. rcrtcctiiTer a .hbout June 1l796
e11 l it l ' ' f If t iidn d cI .rtiehC the duties If ntce Irdi .11 fiq ll .
\R II I I 24 D)uties f SleSlards
Sitc. .lrd ( ,rdt , l I hc iiLeJ h'. the Ih)Irltt ( ounci to all t aIcard, for
ldIHzIId C Al ll t. / [ F ith 1 iihC r1' In' the hob Steard, hall theck all
illi o il t ' lh foit upi-l) .ile a ,rkliLI tcard or permil and reportl ian
,t '.'.r itr llt ll .i [t 1[' :It [['Sln CnL''.ii of s.tnlte Reporl a.dl i1IlatII n i. f
th. I1)tlollc (I 11l[ Irltid RLIeC .ind the Agreen cnl tuilh the cr-
1n i.. i k. 1 Stct.u , l Rcprln r tling names, lo.ll number and
tI1i it i tl l nlc ,l l e 1 il SiUe..iid '1hall 1t adjust atir grereance or
ni[CirCle-i . 11, th pr r ,' f ihe l oh hult hl ii rep.irt l inlfraction, ind
tl.H L , t . thie .1ppoi[ ti H-n liu e' Rcprcsentatine or the [)]irim
( Oiuit.A
' Ilret . stici.lrrdi I, pilled ,lt Ihec Ih he shal he qualified Ind
( ,.ntlrnue
1383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richard Raftery as the Union's job steward at the North
Gate project. Richard Raftery reported for work on Febru-
ary 7. As there was no need for the services of another
painter, the Company's foreman, Leonard Hart, spoke by
telephone with Gregory Raftery about the matter. Hart in-
formed Gregory Raftery that there was no work for an
additional painter, but Gregory Raftery responded that
either Richard Raftery worked or no one worked. Hart
thereupon telephoned William Smith to inquire what he
should do and was instructed to put Richard Raftery to
work and to send employee Steven Scheble home at 10
a.m. 6 Although the Company thereafter employed Scheble
at other projects, Scheble lost a total of 16 to 17 hours of
work which he would have had had he not been removed
from the North Gate job on February 7.
Richard Raftery was discharged by the Company at the
end of the workday on February 7. William Smith ex-
plained that this was done after he discussed the situation
with his attorney.
The next morning Union Business Representative Raft-
ery went to the North Gate site and advised the painters
that no one was to work until a steward was on the job.
Foreman Hart remonstrated that the job was coming to an
end and that there was a reduced amount of work and
suggested that Robert Wallace, a painter then working on
the job, be appointed steward. Raftery replied that Wallace
was not qualified and that he (Raftery), not Hart, was
going to select the steward. Within a half hour. the painters
left the job.
In the afternoon of February 8, William Smith met
Gregory Raftery. Smith suggested that Raftery appoint a
steward for the North Gate job from among the
Company's regular work force, because several of its regu-
lar employees were not working. Raftery replied that all
job stewards would come from the union hall. 7 Smith ac-
ceded and "told [Raftery] that I didn't want to penalize my
customer by having the job shut down, and, if the only way
I was going to get it started back up was to have a union
steward on the job, for him to send one out." Thereafter,
the Company employed at the North Gate site a union
member assigned to the job by Gregory Raftery as job
thoroughly experienced in the particular type of work beinrg done
The Steward shall be required to examine and check all men o)n the joh
for their up-to-date working card ior permit and shall enforce the w ork-
ing rules and the decision of the D)istrict (Council
6 Smith explained that Scheble was entitledl 1t be paid h ,,iw up illi) tle"
unless he was given work until 10 a.m
Smith testified that he asked whether Rafters felt the steuidv , i.pp,nnit
ed from the hall were better qualified than stewards .Ippointed friomt the
work force and that Rafter, indicated thai that wait so. Rafters testfied Ilih
he did not believe that ans ofi the men wlrking tin the lo' iSis qualificd tio
act as a steward because -there was trade rules being ioolated and thes "Uic
not living up to them." Ihe only union trade rule viiolatiln tm the 'ti111
Gate project of which Raftery had knovwledge was that on I ethlua.r 4 RoIh
ert Wallace did not wear a white shirt and the hiremanll did nlt eplll II th
violation. Art. 25 of the tInion's trade rules. in part, pio.ides "A I [tcntlin
shall be held responsible to the [)istrict ('ouncil for failure 1oi elinfrc the
Trade Rules."
a On one or more days thereafter the job sleward failed It .appelr htil
that did not prevent the (ompany front contmluing As rk ait the p, lctl.
although on the day or days that the steward lfailed io appear iI ,uilked ilth
one man short
steward.8 The Company did not have any further problems
at the project.
Regarding the appointment of job stewards, Gregory
Raftery explained that he has a large territory to police and
uses the stewards on the different jobs as an extension of
himself to let him know what was going on. He further
explained that it is his custom to appoint a steward on
large construction jobs involving new work and that the
function of the steward is "to protect the bargaining agree-
ment and also the trade rules and to let me know if any
jurisdictional dispute is coming up ... " According to
Raftery, he finds it "essential" to appoint job stewards who
are not part of the contractor's regular work force because
"[t]he people who work on the job are caught between the
union and the employer. They're afraid to stand up for the
union rules because if they do, they will no longer have a
job with the emplo/er.9 They have a split loyalty, so as a
result, by appointing a steward from outside of their shop,
then I get a man who is going to enforce the rules. And
when a job is over, then the company lays him off. So, the
steward I appoint has no fear of standing up for the rules
and regulations because he knows when a job comes to an
end, that he will not, you know, work for that company
any longer." ,0
Discussion
"The language of §8(a)(3) is not ambiguous. The unfair
labor practice is for an employer to encourage or discour-
age membership by means of discnmination. Thus this sec-
tion does not outlaw all encouragement or discouragement
of membership in labor organizations only such as is ac-
complished by discrimination is prohibited. Nor does this
section outlaw discrimination in employment as such; only
such discrimination as encourages or discourages member-
ship in a labor organization is proscribed." '' It is the "true
purpose" or "real motive" in hiring or firing that consti-
tutes the test.'2 But "the Act was not intended to interfere
significantly with those activities of employer and union
which are justified by nondiscriminatory business pur-
poses, or by nondiscriminatory attempts to benefit all the
represented employees.... We must determine whether
the Icomplained of] action is consistent with the balance
struck bv the Wagner and ITaft-Hartley Acts between pro-
tection of employee freedom with respect to union activity
and the privilege of employer and union to make such non-
discriminatory decisions as seem to them to satisfy best the
needs of the business and the employees." 13 Thus, union
involvement in the selection of employees for hire is not
necessarily unlawful.
The extent to which employment preference may be giv-
I c lt.limciuc l hcl;'cclt thet ( 'itplii Lin e Ihe t nio,n. hlch is an issil-
it III Il I/ld t iCII Clllt ie. II1I the ( oripllpli alnlmost c nllplele discTretll n in
sele litll cllll o ,! c ,is t,t hire 1,id I , lI,, ff
\ccoitdrag to R,ifJl' the onlh qit aplfialiltn Or oL stewa.rd i ,to know the
[ sfilI
'
, traide rules tnd he ; lliti n stilo and up and enforce them
ith, Rilo/i (ta ttt , ' , l )I .t ll ( (ii, r t r llt l / teirphmeri fn.n. .An i lI
I/Bu11 St. hiil. t i. .l. / I *I RB 347 t S 17. 42 43 i19541
Ra' , .. Ol. i it X 10. R B Lti it 41
tI a t lt .] ilt ti ili tl, /w ti i t le lttre, rJi 1 I liti / l rSt (< hltufftt . .F iri re
h/l Bc nilts t [<'/, Es I.z Itt' rl /Im 4ntwhls . S'Cah t. f otr pnpris]n
%I R B . 1!6 t ,S 667, t682 ( 1961) l lconurring opiniiln)
1384
DISTRICT COUNCIL NO. 2. PAINTERS
en a union job steward was recently considered in DI)rn-
lea."4 Under a contract clause which provided that "[Ithe
steward shall he considered the Senior employee in the
craft in which he is employed." stewards were given top
seniority not only with respect to layoff and recall hut also
with respect to all contractual benefits where seniority was
a consideration. Pursuant to this clause. a steward humped
another employee with longer service from a more profit-
able delivery route. The Board found violations of Section
8(b)( I)(A) and (2) and Section 8(a)( 1) and (3) of the Act. In
its Decision, the Board majority pointed out that under the
clause subject to attack "an employee can he denied bh his
employer a job benefit he is otherwise fully entitled to sole-
ly on the ground he is not the union steward: while another
employee receives that benefit he otherwise would not ohb-
tain solely because he is the union steward.... Conse-
quently. there can be no question but that the super senior-
ity clause ties job rights and benefits to union activities. a
dependent relationship essentially at odds with the policy
of the Act, which is to insulate the one from the other."
(219 NLRB at 658.) The Board characterized as impermis-
sible "giving union stewards special economic or other on-
the-job benefits solely because of their position in the
Union." "5 However, the Board noted:
[lit is well established that steward super seniority lim-
ited to layoff and recall is proper even though it. too.
can be described as tying to some extent an on-the-job
benefit to union status. The lawfulness of such re-
stricted super seniority is, however, based on the
ground that it furthers the effective administration of
bargaining agreements on the plant level by encourag-
ing the continued presence of the steward on the job.
It thereby not only serves a legitimate statutory pur-
pose but also redounds in its effects to the benefit of
all unit employees., Thus, super seniority for layoff
and recall has a proper aim and such discrimination as
it may create is simply an incidental side effect of a
more general benefit accorded all employees. 6
See Aeronauttial Industrial Dirrir i.d,,lde -'' s ( wiilhHl It .1
337 U.S. 521 (1949). Though that case did nol Inol'e the Nanmon.ll
Labor Relations Act, the relevance of the ( ourt' reaisning Iherein it
proceedings under the Act has been recognized hs thi Board See.
eg.. Bethlehem Steel Co (Shiphulding Dirion). 136 NI RB 15() I1503
( 1962).
Finally, the Board asserted: "But there is no necessity or
justification . . . for a labor-management agreement re-
quiring that rank-and-file employees, whether or not they
support the union, subsidize its stewards by surrendering to
them certain job benefits or privileges in return for the
steward's union activity." 17
Dairrlea (Cooperatrrl. Inc, 219 NlRB 656 (1975). enfd i.ih n,
N1 L B s; AMii, Dr,'err & Dairi Erlie, o,, Ill t ,) . ]ir ,l u,ma.al ierth
erhood of Teamrlers. Chauffeure. ioerh,,uscimen and H cli~re at 4wir .i. sl
F 2d 1162 (2d('lr 1976).
|, Id The Board quallfied this assertion sith the statement that pr
1
..fI
proper justification might sanction special on-the-loh hen efits fir ulilt
stewards
' 6The Board pointed out that the Campbell case "sanctioned a certain
privilege granted stewards because it was necessar, for the proper carrying
out of their responsibilities as stewards, which in turn were necessars In the
application of the agreements arrived at hb collective bargaining- (Id ;it
659 )
Consonant with the theory that where justification exists
an on-the-job preference accorded a union steward is not
unlawful is 4.s:hir, Hickham iUhr Co.. 210 NLRB 32
(1974). In that case. the applicable collective-bargaining
agreement included the following clause:
Article IX Stewards
(A) T he Business Agent or his Representative will
have the right it. appoint or select the Steward on all
jobs or to change the Steward at any time.
Because it anticipated jurisdictional problems, the union
appointed an experienced steward, who was dispatched
from the union hall to a job. This resulted in the displace-
ment of an employee already working at the site. The
Board held that the "lUnion's reasons in seeking Frontera's
appointment as steward are material and relevant and, in-
deed, critical to the issue of whether it therebs committed
an unfair labor practice. Not every encouragement of
union membership is unlawful, and the mere acquiescence
of an employer in a demand of a union is not unlawful
encouragement per .Sc.... Thus, when the circumstances
do not involve an obhjective of furthenng, requiring, or con-
ditioning emploqment on union membership as such, the
illegality, if any. must he found in those actions by a union
that impinge upon the employment relationship which are
arbitrary. invidious. or irrelevant to legitimate union inter-
ests."
By a divided Board, an opposite result was reached in
Local I ~nion 798 of NVas sau County, New York; Brotherhood
of Painters and A lied Trades, 4A F1 CI ) (Nassau Division of
the 4Master Painters .. Association of Nassau-Suffolk Counties
Inc. and Navs.au Division of the Gi'psunm Drywall Contractors
Inc.). 212 NLRB 615 (1974). In that case the relevant
clause reads:
The Union, through the business representative,
shall designate a qualified journeyman as a steward oil
each and every job . is
The issue before the Board was "whether the stewards
clauses arbitrarily encourage union membership by dis-
criminating in favor of employment of union members."
The Board held that "the intent of the proposed clause . . .
as understood by the parties, was to permit the Respondent
to require the hiring of persons designated by the Union to
serve as stewards. it being understood that there would be
new hires selected from outside the employers' regular
work crews. Thus, the stewards provision plainly gives the
Respondent significant control over the hiring of at least
one employee on each job, excluding one-man jobs, and
thereby inherently encourages union membership." (212
NLRB at 616.) Unlike Ashlev, Hickham Uhr Co., the
l Id Dairleu wias distinguished in IItif.. l c;uru S Plan ' s,. Jilt -
and M4edictl-Surgltal[ Plan qrl %e. JLrtL, 227 NIlRB 5S (17i1i .rl an i
Ihq, ,n t Pm , I i-- r u ^ er, * ,. tini, aita o,,al S), nl mi tt nat, , l I Minal ia
tIhc ttil istit i Fi nlphl ''i .ind t'ffi l Pt , ir,
'
( ...ru .Ifr Mc the f ,iit'd Sltatw',
nid ( nw l, i/ 1. 4 l (Il t 1t, ir, or-It el'rner, /n . 22" NI RB ssS sac}
197t) In the l.iel te .c. tIhe Bi tardl ohserxsed thai 'anolther ses rip m r.rlnt
d.i.tllcliin to he lmade hetueen DI)lrillea and the present case Jlsi the
nledllod of selection of urEit)11 ~tculrds f Fr, in Datrilla. the selectitn of
stewards ui it. I. i uithllw the dilscretion and contrin l f the union"
IKThe re.pn.idenit 'ih ii a.X.crtcd that Ihe plrp-se .f the dtiti.tc -. as to
hell) itire heittcr cir[Fc.Ill/el cTI Ihe ii lcictlc¢ h.tlirltting a3reement tIn-
like it11' It, It, I hilIm l h, .1.ise there does not a.ppei.r tlo ha.ie been ains
pribhlrem hlh resuicred thc prersenc f ,in experienced 'tcu.,ird
1385
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Board found that the respondent in Loc.al Union 798 at 617
"has impinged on the employment relationship in a man-
ner irrelevant to legitimate union interests." The Board ob-
served that "lwlhile Respondent has legitimate interests in
appointing stewards and policing contracts. we do not here
find legitimate justification for the insisted-upon union
control over the hiring process." Thus, as the stewards
clause created a hiring arrangement under which the re-
spondent gave its members preference in referrals, the re-
spondent thereby attempted to cause the employers to dis-
criminate against employees and applicants for
employment in violation of Section 8(a)(3) and thereby
violated Section 8(b)(1)(A) and (2) of the Act.
The facts in the instant case differ from those in I.oral
Union 798 in that the complained-of stewards clause in the
instant case appears to have been included in the parties'
agreements for a substantial period of time and there is no
evidence that the purpose of the clause was to enable the
Union to control the hiring of the employees designated as
stewards.i9 Respondent argues that "conduct in compli-
ance with a contractual provision which is valid on its face
cannot be held a violation of Section 8(b)(2) absent evi-
dence that the provision was in fact applied unlawfully." I
am in agreement with this assertion,20 but, contrary to Re-
spondent, I find that Respondent's conduct in causing the
layoff of Steven Scheble was an unlawful application of a
valid contractual provision. Accordingly, the Union's ac-
tion in causing the layoff of Steven Scheble, under the
theory of the Dairylea and the Local Union 79i cases, con-
stituted a violation of Section 8(b)(2) of the Act.
General Counsel argues that an appropriate remedy in
this case should direct Respondent to cease and desist from
in any manner enforcing the stewards clause. However.
there is evidence of only one illegal application of the
clause. "'In the absence of provisions calling explicitly, for
illegal conduct, the contract cannot be held illegal because
it failed affirmatively to disclaim all illegal objectives.' "21
As the stewards clause in the instant case is not substantial-
ly different from the stewards clause in the A shley, Hick-
'
9
In Local Union 798. the respondent's hslavs prosided that stewards
must be members in continuous good standing for 3 sears. Ahereas in lhe
instant case there are no eligibility requirements for Ippoirmlenti .o Sitcu
ard. Although, as Respondent points out. Ihe ratiionale ad.iltnced ii1 the
Local Union 798 decision is cryptic. the Board did not rel, upon the 3-ea;lr
membership provision in reaching its conclusion. ond I am of the opinion.
contrary to Respondent, that the difference in eligibilits requlelllens hbe-
tween this case and l.ool .'nion 798 is not of dispositive imporltlnce
20 In this case, unlike Local U:ninon '798 there is no eidence demnstr.arl!ng
that sec. 20, the stewards clause. of the collecitve-bargaining agreemenl Was
intended by the parties to permit unlawful apt hcatiOn thereof
21 NL.R.B. v. Neis Slndcatle (. a In. et tii, 365 t S 695 1699 7(')
(19611 citing . L RB s Nesi Syndicate (Creiprni. Inr ain/ i,\. }IrA
Mailer' Union v,. 6, Iniernational Tiprgrarphlal itlnron .41/ ( 10(). 279
F.2d 323 (2d Cir. 1960).
hoa71 Lhr case, which the Board did not find unlawful, I
shall not because of the single illegal application of the
clause recommend that it be expunged from the Union's
collective-bargaining agreement.
III Hti Et- It ( t Of Itlt I NFAIR IABiOR PRA(- Tl( S : PON
( OMMI-R( I
The activities of the Respondent set forth above, occur-
ring in connection with the Company's operations, de-
scribed above, have a close, intimate, and substantial rela-
tionship 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.
1i, litf REMEDY
Hlaving found that Respondent has engaged in certain
unfair labor practices. I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent Union unlawfully caused
the Company to lay off Steven Scheble, I shall recommend
that Respondent Union make him whole for any loss of
earnings he maN have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money
equal to that which he normally would have earned from
February 7. 1977, until the date the North Gate Nursing
Home project was completed, less his net earnings during
such period. The backpay provided for herein shall be
computed on the basis of calendar quarters, in accordance
with the method prescribed in F W. Woolworth Company.
90 NLRB 289 (1950). Interest at the rate of 6 percent per
annum shall be added to such backpay and shall be com-
puted in the manner set forth in Isis Plumbing & Heating
(o., 138 NL.RB 716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case. I make the following:
CON( LL SIONS O- LAW
1. By unlawfully causing the Company to lay off Steven
Scheble on February 7, 1977, in violation of Section 8(a)(3)
of the Act, Respondent Union has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(b)(2) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
!386