Hod Carriers Local 872 (Andrew T. Curd Builders)

National Labor Relations Board - Board Decisions

Feb 17, 1993

310 N.L.R.B. 488 (N.L.R.B. 1993)

488
310 NLRB No. 66
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We affirm the judge’s conclusion that the Respondent has not
violated Sec. 8(b)(1)(B) of the Act. In doing so, Chairman Stephens
and Member Devaney rely only on the judge’s conclusion that the
General Counsel failed to establish that Charging Party Enriquez’
termination resulted from union coercion, i.e., the Respondent’s in-
sistence that he transfer his union membership to the Respondent. In
light of their reliance on that conclusion, Chairman Stephens and
Member Devaney find it unnecessary to pass on the judge’s conclu-
sion that Enriquez did not possess collective-bargaining or griev-
ance-adjustment responsibilities necessary to establish his alleged
status as an 8(b)(1)(B) representative of the Employer.
Chairman Stephens and Member Devaney disavow the judge’s re-
marks in the final paragraph of sec. I,B of his decision.
Contrary to his colleagues, Member Oviatt concludes that the
lynchpin of this case is whether Enriquez, who is an acknowledged
supervisor within the meaning of the Act, is an 8(b)(1)(B) represent-
ative. Clearly, if he is not, no protection flows to him either under
the collective-bargaining agreement or under the Act. For the reasons
stated by the judge, Member Oviatt agrees with the judge that
Enriquez did not possess collective-bargaining or grievance-adjust-
ment responsibilities necessary to establish his 8(b)(1)(B) status and
joins the judge in his conclusion that this case presents a most unfor-
tunate situation for which there is no remedy.
1 All dates refer to the 1992 calendar year unless otherwise shown.
2 Sec. 8(b)(1)(B) provides that it shall be an unfair labor practice
for a labor organization or its agents to restrain or coerce ‘‘an em-
ployer in the selection of his representatives for the purposes of col-
lective bargaining or the adjustment of grievances.’’
3 Curd’s direct inflow to Nevada in the year prior to the filing of
this charge exceeded the dollar volume established by the Board for
exercising its statutory jurisdiction over nonretail enterprises. Re-
spondent admits that Curd is engaged in commerce and in a business
affecting commerce within the meaning of Sec. 2(2), (6), and (7) of
the Act. Accordingly, I find that the Board has jurisdiction to resolve
this labor dispute.
International Hod Carriers, Building & Common
Laborers, Local 872, AFL–CIO (Andrew T.
Curd Builders, Inc.) and Jesus Enriquez. Case
28–CB–3638
February 17, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 30, 1992, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Charging Party filed exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to af-
firm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Paul R. Irving and Peter N. Maydanis, Esqs., for the General
Counsel.
Sandra Rae Benson, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Jesus
Enriquez, an individual, filed an unfair labor practice charge
against International Hod Carriers, Building & Common La-
borers, Local 872, AFL–CIO (Respondent or Union) on Feb-
ruary 7, 1992.1
On March 13, 1992, the Regional Director for Region 28
of the National Labor Relations Board (NLRB or Board)
issued a complaint alleging Respondent had engaged in an
unfair labor practice within the meaning of Section
8(b)(1)(B) of the National Labor Relations Act (Act).2
The complaint alleges Respondent unlawfully caused An-
drew T. Curd Builders, Inc. (Company or Curd) to discharge
Enriquez, a general laborer foreman who represented Curd
for purposes of collective bargaining or the adjustment of
grievances, because Enriquez refused to transfer his union
membership from a related local union to Respondent.
Respondent timely answered the complaint on March 26,
denying that it engaged in the unfair labor practice alleged.
A hearing on the case thus joined was scheduled before an
administrative law judge.
I heard this matter on July 22, at Las Vegas, Nevada.
After carefully considering the record, the demeanor of the
witnesses, and the posthearing briefs of both parties, I find
Respondent did not engage in the unfair labor practice al-
leged based on the following
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
Curd, a California corporation headquartered in southern
California, is engaged in the building and construction indus-
try as a contractor. At times material here, Curd maintained
an office, place of business, and jobsite in Las Vegas, Ne-
vada.3
In 1991, Curd entered into a construction contract to build
four separate structures at the MGM Grand Hotel in Las
Vegas. The value of Curd’s work under this contract ap-
proximated $70 million. By the time of the hearing, Curd
employed some 250 employees at the MGM jobsite and an-
other 150 employees at an offsite plant producing precast
concrete products used at the MGM job.
David Anderson, Curd’s vice president for operations,
manages Curd’s Las Vegas operations. Several project man-
agers and job superintendents are employed at the MGM site.
Cliff Denmark and Ron Jenkins serve as the project manager
and job superintendent, respectively, for the storm drainage
box culvert and parking garage projects pertinent here.
Curd normally utilizes union-referred labor. At MGM,
Curd employs tradesmen secured from five area craft unions
489HOD CARRIERS LOCAL 872 (ANDREW T. CURD BUILDERS)
4 That provision provides that union members employed for more
than 30 days within the area jurisdiction of a local union other than
that in which they hold membership may be required to transfer their
membership to the local union in the area where they are employed.
5 The transfer form contains a certification that the member was
initiated more than 90 days prior to the transfer and is in good stand-
ing at the home local. It also provides for a certification of the date
deposited at the new local and a concluding instruction that the
‘‘ORIGINAL’’ should be mailed to the LIU at once. Standard proce-
dures contemplate that the member will have the transfer form, prop-
erly executed by a home local official, on arrival at the new local.
6 Jenkins on the other hand claims that he advised Enriquez that
everyone working in Las Vegas would have to transfer their book.
Curd brought four other California laborer foremen to the MGM
project. All received work referrals from Respondent and transferred
their membership apparently without incident. Two of those individ-
uals transferred from Local 300. However, all transferred after
Enriquez’ employment ended.
representing carpenters, cement finishers, structural iron-
workers, reinforcing steel ironworkers, and laborers.
Curd is bound by the terms of a so-called Work Continu-
ation Agreement (WCA), essentially a project agreement be-
tween MGM and several area labor organizations, including
Respondent. The WCA contains detailed understandings, in-
cluding a specialized grievance procedure, designed to pre-
vent work stoppages during the construction of the MGM fa-
cilities. It contemplates that other terms and conditions of
employment not specifically covered in the WCA will be as
specified in the collective-bargaining agreements between the
signatory craft unions and other area employers.
For terms not covered by the WCA, Curd executed a
memorandum agreement adopting certain terms of the labor
agreement between the Associated General Contractors of
America, Las Vegas Chapter, and Respondent. This agree-
ment requires the use of Respondent’s exclusive hiring hall
but contains no union-security provision.
The WCA grievance procedure provides for grievances to
be presented in writing within 5 working days of the occur-
rence of a dispute to ‘‘a duly designated representative of the
Employer and the Business Agent of [the] Union involved.’’
If those individuals are unable to resolved the dispute within
3 working days, the dispute is then presented to the joint ar-
bitration board (JAB) for a final and binding decision. The
JAB is a five-member panel established under the WCA con-
sisting of two employer representatives, two union represent-
atives, and a neutral.
Prior to commencing the MGM projects, Anderson held a
prejob conference with representatives of various craft
unions, including Respondent’s business manager, Kenneth
Smith, to discuss, inter alia, the details of manpower require-
ments. Anderson and Smith agree that a verbal understanding
was reached at this time that Curd could transfer a specific
number of key tradesmen previously employed by Curd in
California so long as those individuals transferred their union
membership to the Respondent in accord with a provision in
the constitution of the Laborers’ International Union of North
America (LIU), Respondent’s parent.4
This case arose as the box culvert project neared comple-
tion and the parking garage project was beginning. Jenkins
hired Enriquez, essentially for an indefinite term, as the gen-
eral laborer foreman on January 15 as work on the MGM
parking structure commenced. Previously, the two had been
associated in similar capacities at Curd’s IKEA parking ga-
rage construction project in Burbank, California.
Overall, Enriquez had been employed by Curd for about
3-1/2 years in the Los Angeles metropolitan area. Prior to the
MGM job, Enriquez had been Curd’s general laborer fore-
man at the IKEA job noted above. He was laid off at the
Burbank job on August 2, 1991, when it neared completion
and, save for sporadic trips to Las Vegas in the late fall of
1991 during the setup phase there, he was not employed
again by Curd until January 15. Except for a brief period
when he transferred to an Orange County, California local,
Enriquez belonged to Laborers Local 300 in Los Angeles for
27 years.
2. Enriquez’ employment in Las Vegas
When Enriquez reported for duty on January 15, Jenkins
instructed him to immediately report to Respondent’s office
to be dispatched to the MGM job in accord with prior ar-
rangements between Jenkins and a union official.
Enriquez was accorded priority processing when he went
to Respondent’s office that morning. However, Enriquez ini-
tially balked at transferring his membership from Local 300
to Respondent asserting that he feared a membership transfer
would adversely affect his Local 300 pension. Nonetheless,
Respondent’s business agent, Robert Trenkle, remained ada-
mant about his doing so and, ultimately, Enriquez executed
a transfer form. To avoid any necessity for Enriquez to re-
turn to Los Angeles, the two agreed that the transfer form
would be transmitted by facsimile to Local 300 for the re-
quired signature of an official there before final processing
by Respondent with the LIU.
After Smith learned from Trenkle later in the day about
the facsimile procedure employed to initiate Enriquez’ trans-
fer, he told Trenkle of his concern that the LIU would honor
only an original transfer document.5 Sometime later, Trenkle
asked Jenkins to inform Enriquez that a ‘‘hard copy’’ of his
transfer request would be required.
Enriquez claims that when he returned to the jobsite on
January 15, he told Jenkins of the membership transfer re-
quirement. Purportedly, Jenkins advised Enriquez that such
action was unnecessary, thereby, reviving Enriquez’ original
reluctance to transfer his membership.6
Subsequently, Enriquez telephoned the Local 300 Business
Manager Mike Quevedo who also felt the transfer was un-
necessary. After Quevedo promised to contact Smith about
the matter, Enriquez asked Quevedo to hold his facsimiled
transfer. Quevedo agreed to do so and also told Enriquez
that, in any event, the LIU would not accept facsimiled trans-
fers.
Seemingly assured that no membership transfer would
occur without some further action on his part and that
Quevedo planned to intervene with Smith to avoid the neces-
sity for his membership transfer, Enriquez went on about his
business for the next 9 days until he was terminated. During
Enriquez’ tenure on the MGM parking garage project, only
two carpenters and one laborer worked at that location.
Enriquez, however, spent some of his time on the box culvert
project but another foreman supervised laborers there.
3. Pertinent Enriquez’ duties with Curd
Both sides acknowledge that Enriquez possessed super-
visory authority while employed by Curd. And everyone
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agrees that Enriquez did not represent Curd for collective-
bargaining purposes.
Accordingly, to establish the applicability of Section
8(b)(1)(B), the General Counsel sought to show that
Enriquez was vested with authority to adjust grievances. Re-
spondent carefully examined each witness called for that pur-
pose in an effort to show the opposite. Because Enriquez’
worked at the MGM job for only 9 calendar days, and as he
was given no indication that his duties would differ from
those while employed by Curd in California, the General
Counsel was permitted, over vigorous objection by Respond-
ent, to inquire about the authority vested in, and exercised
by, Enriquez before he worked at the MGM site. The fol-
lowing summarizes that evidence, first as relates to the
MGM job and then elsewhere.
Anderson, Curd’s highest ranking official in Las Vegas,
construes the term ‘‘grievance’’ to mean ‘‘a claim brought
by a workman . . . to the union that we have violated the
terms of the contract.’’ Based on this definition, Anderson
said that grievances at MGM are initially presented to the job
superintendent by a union business agent and if they are un-
able to resolve it promptly, he becomes involved almost im-
mediately. Failing a resolution at his level, Anderson said
that grievances go to arbitration under the WCA. Anderson
was aware of no grievance Enriquez handled at the MGM
job. From his perspective, foremen have no authority to han-
dle grievances; rather, Anderson said, foremen can only han-
dle ‘‘issues that come up.’’
Anderson explained that Curd’s foremen do play a role in
dealing with everyday working conditions and in that sense
they ‘‘head . . . off’’ grievances. By way of example, he ex-
plained that if a workman wanted a glass of water, foremen
generally see that it is provided. If the matter grows into a
dispute about the Company’s failure to provide water, then
such a dispute would be resolved by the job superintendent
or himself. By way of further examples, Anderson said that
Curd’s foremen have no authority to resolve disputes about
what is or is not a workman’s proper rate of pay or hours
of work.
Based on the relationship with Enriquez at the IKEA
project in Burbank, California, Jenkins explained that a union
steward might approach Enriquez about certain problems but
such problems did not include the manner in which Curd ap-
plied the terms of a collective-bargaining agreement. Going
further, Jenkins asserted that even he did not ‘‘interpret the
contract.’’
Typically, Jenkins said, if an employee needed some par-
ticular type of equipment, such as a mask or a safety belt,
they went to Enriquez for it. Beyond such routine matters,
Jenkins, too, said Enriquez lacked authority. In fact, Jenkins
said that there had been occasions when he warned Enriquez
not to get into arguments with the union business agents.
Suggesting implicitly that Enriquez’ Los Angeles experiences
were extraordinary, Jenkins explained that Enriquez knew all
of the Local 300 business agents because he had belonged
to that union ‘‘forever.’’
Citing examples of problems he solved while employed at
the MGM project, Enriquez said that he overheard some car-
penter employees discussing among themselves the lack of
drinking water because the water supply had been shut off
due to some work on the site. Enriquez went to the office
and arranged with the secretary for the carpenters to use the
office water cooler until the outside water supply was turned
on again. Enriquez told the carpenters to let him know if
they had other problems and he would take care of them.
On another occasion at the same project, one of the labor-
ers complained to him about a broken spray can. Enriquez
said that he retrieved some parts from his auto and helped
the man fix the spray can.
On the IKEA project, Enriquez said that he resolved nu-
merous employee complaints about the lack of necessary or
required equipment such as gloves, boots, safety glasses, and
hard hats. When he learned of such complaints, Enriquez
said that he would either argue with the employee over it,
get the equipment if it was available, or ask Jenkins to place
an order for whatever was needed. Enriquez, however, did
not order equipment on his own.
Enriquez also said that ‘‘quite a few times’’ he resolved
employee questions about pay errors and the timekeeping
system reflected on paystubs at the Burbank job. Usually,
pay error problems were disposed of by reviewing the time
records to determine if an error had been made in recording
time. If so, Enriquez would instruct Paula, the jobsite sec-
retary, to add time to the next pay period to make up for an
error, or he would permit an employee to leave early if the
situation warranted.
Enriquez conceded that, at first, Paula would clear any
payroll changes with Jenkins but as Paula came to trust him,
clearance with Jenkins ceased. Jenkins claimed that Paula al-
ways apprised him of such situations and ‘‘would never do
anything [of this nature] without consulting [him] person-
ally.’’
Other paycheck problems involved explaining the pay- and
time-recording scheme to some of the Hispanic laborers who
lacked an understanding of the timekeeping system or who
could not read the English language.
On the projects where he was employed, Enriquez fre-
quently selected those laborers which Curd hired and laid
off. In one instance, Enriquez selected two employees for
layoff when a Los Angeles project was moving from one
phase to another based on his judgment that the two employ-
ees were not qualified for the upcoming work and hired two
other employees in their place. The two terminated employ-
ees filed an NLRB unfair labor practice charge. During the
investigation of the charge, Enriquez provided an affidavit to
the NLRB (in Anderson’s presence) concerning his reasons
for selecting the employees to be laid off. Enriquez played
no other role in the matter.
On one occasion, Enriquez employed a laborer from out-
side the Los Angeles area at a time when the local union
business agent was on vacation. When this came to Jenkins’
attention, he ordered Enriquez to lay the man off to avoid
any disputes with the Union about an improper referral.
When the business agent next visited the jobsite, Enriquez
told the business agent, apparently in Jenkins’ presence, that
he wanted to rehire the man and the business agent agreed
to the arrangement.
On another occasion at the IKEA project, a Local 300
business agent came to the project and wanted Enriquez to
terminate a number of laborers employed without union work
referrals. Enriquez had chosen to follow that course because
he felt the Union had been referring unqualified applicants.
A shouting and shoving scrimmage ensued between Enriquez
and the business agent. Jenkins overheard the argument and
491HOD CARRIERS LOCAL 872 (ANDREW T. CURD BUILDERS)
7 During Smith’s testimony, no inquiry was made about this com-
ment.
8 As revised, Enriquez’ termination notice states: ‘‘Laborers Local
# 872 insisted that Jesse transfer his book from L.A. Local # 300.
Jesse didn’t want to transfer due to pension & various other items.
Jesse & I thought it might be best to return to Los Angeles.’’
ordered Enriquez to the job office to cool down. At the of-
fice, Enriquez telephoned Quevedo to report that the business
agent wanted him to fire the nonreferred laborers. Quevedo
purportedly told Enriquez, ‘‘No, that’s not going to happen’’
and promised to speak with the business agent upon his re-
turn to the Union’s office.
When Jenkins came to the jobsite office, he told Enriquez
not to argue with the business agents and that he (Jenkins)
would handle such matters. Enriquez protested that he was
only trying to protect his people and told Jenkins about his
call to Quevedo. Nothing further came of the matter at that
time.
Later, Jenkins came to Enriquez and told him to send the
men to the union office for work referrals. Enriquez assumed
that Quevedo had called Jenkins to advise that the Union
would clear the disputed employees. Thereafter, Enriquez ar-
ranged for the employees to go to the union office in small
groups so the job would not be disrupted.
On another occasion, Enriquez came upon a business agent
by chance at the IKEA project and informed him that he in-
tended to hire another man and asked that the new laborer
be given a work referral. At first the business agent told him
that he could not do it but after a brief argument over the
matter, the business agent finally agreed to dispatch the man
Enriquez wanted to hire. No evidence shows that Jenkins
was aware of this incident and the record does not show the
chronology of these three referral examples.
4. Enriquez’ termination
Between January 15 and 22, numerous discussions took
place involving Smith, Quevedo, one or more regional or
international union officials and Enriquez. Smith character-
ized these conversations essentially as pressure by the
Quevedo and the other officials to forego enforcing the con-
stitutional membership transfer provision for up to 4 months
so Enriquez could assist Quevedo’s union reelection effort.
Smith claimed that he adamantly resisted the pressure but
some evidence noted below indicates Smith succumbed.
On January 22, Smith, Trenkle, and Business Agent Glenn
O’Cull visited the MGM jobsite where, among others, they
spoke with Jenkins. Enriquez saw the three agents talking
with Jenkins but did not overhear what was said. Jenkins
said the ‘‘gist’’ of the conversation with the union officials
was that Enriquez would have to be ‘‘dispatched out of [the]
local, and if he wasn’t dispatched, then he would have to
leave.’’ Smith and Trenkle deny that Enriquez’ situation was
discussed at this time. O’Cull did not testify.
Shortly, if not immediately, after this conversation, Jenkins
approached Enriquez and told him that he ‘‘had to be dis-
patched or he couldn’t work in Las Vegas.’’ Jenkins said that
Enriquez responded by saying that he would talk with
Quevedo again.
By Enriquez’ account, Jenkins spoke to him twice about
the matter; once immediately following the union officials’
visit and again the following day. In the first conversation,
Jenkins told Enriquez, after some initial confusion, that his
transfer had to be at the union office Friday, January 31, and
that a facsimile transfer was unacceptable. The following day
Jenkins reported to Enriquez that he had been mistaken and
that the transfer was due by Friday, January 24. Upon learn-
ing this, Enriquez promised to go to Los Angeles that week-
end and obtain the transfer document on the following Mon-
day.
When Enriquez reported to work on Friday, January 24, he
again complained to Jenkins about the need to transfer his
membership because of its potential effect on his pension.
This discourse was interrupted by a call for Jenkins and
Enriquez used the time to telephone Smith.
By Enriquez’ account, Smith told him at this time that
there was no way to resolve the membership matter without
Enriquez going to Los Angeles to obtain a transfer request.
Enriquez then asked if Respondent permitted a certain ratio
of local members to travelers on local jobs and received a
negative response. Enriquez next asked Smith to explain the
problem posed by his employment in Las Vegas and Smith
replied, ‘‘I’m not going to have anybody who does not be-
long to my union . . . telling my men what to do.’’7
Enriquez countered this argument by pointing out that Jen-
kins belonged to no union at all but Smith was unmoved.
Smith told Enriquez that was the way it was and he could
‘‘[t]ake it or leave it.’’ Their conversation finally ended after
Enriquez told Smith that he would contact an attorney and
that Smith would hear from him later.
Smith recalled the Friday telephone call from Enriquez; it
was the only occasion Smith spoke to Enriquez directly. He
said that Enriquez asked if he had received a call from a par-
ticular union official about his transfer and Smith reported
that he had not. Smith said that Enriquez felt that it was un-
necessary for him to transfer him membership to Las Vegas
but Smith explained that this was one of the rules established
at the prejob conference. Smith had no recollection of a dis-
cussion about a ratio system.
After speaking with Smith, Enriquez resumed his con-
versation with Jenkins. At this time Enriquez said that he
asked if Jenkins wanted him to ‘‘step out of the picture until
the people in Los Angeles try [to] resolve [the matter] with
the people here?’’ Jenkins replied, ‘‘Yeah, why don’t you do
that.’’ Enriquez then went to the secretary and asked for his
check.
Afterward, Enriquez returned to Jenkins’ office and, by his
account, questioned the reciprocal loyalty Jenkins and the
Company were showing him. Enriquez acknowledged that by
this point he was quite upset. When his check and termi-
nation notice were prepared, he objected to the wording be-
cause it made it appear that he had quit so Jenkins revised
it.8
Thereafter, Enriquez said that he returned to the company-
provided apartment where he made phone calls to Local 300
and to an attorney. A Local 300 official told him that at-
tempts were ongoing to reach a LIU official in an effort to
resolve the matter and that he should stay in Las Vegas.
Enriquez agreed to wait for a few hours.
After hearing nothing further by shortly before noon,
Enriquez went to the MGM jobsite to return the apartment
key and bid Jenkins goodbye. While there, a call came for
him from a Local 300 official who reported that the LIU of-
ficial had spoken with Smith. As reported to Enriquez, Smith
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 NLRB v. Electrical Workers IBEW Local 340 (Royal Electric),
481 U.S. 573 (1987).
10 Operating Engineers Local 101 (St. Louis Bridge), 297 NLRB
485, 487 (1989), finding Tessmer to be an 8(b)(1)(B) grievance ad-
juster based in part on his resolution of pay disputes which would
have been grievances if a collective-bargaining agreement had ex-
isted and in circumstances showing that he was the only company
official on the project with authority to resolve such disputes.
had agreed to foregoing the transfer requirement ‘‘at least
through June, so you [Enriquez] can go to the [Local 300]
election or run for us . . . [w]e told them that we need you
up here, and he [Smith] agreed.’’
Enriquez then reported the substance of the conversation
to Jenkins and asked if he still had a job. Jenkins told him
that ‘‘a job was never the issue’’ and asked Enriquez for a
couple of days ‘‘to find out what’s going on.’’ Jenkins prom-
ised to call Enriquez on Wednesday. Jenkins called Enriquez
the following Wednesday and briefly informed him that the
Company would not be returning him to the Las Vegas job.
Jenkins has not worked for Curd since.
Jenkins explained that on the morning of January 24,
Enriquez came to the office in a distraught state, reported
that he was ‘‘stressed out,’’ and made threats to sue the
Company, Jenkins and ‘‘everybody for all this whatever.’’
During this outburst, Jenkins, said Enriquez alluded to hav-
ing been off work for 5 months without getting paid and his
belief that during this time he had done several gratuitous
tasks for Curd. Following their conversation, Jenkins said he
overheard Enriquez voicing essentially the same complaints
to Denmark.
After Enriquez received his check and termination notice,
and left for the apartment to pack, Jenkins said that he dis-
cussed the situation with Denmark and they reached the con-
clusion that Enriquez would not be rehired.
As a footnote, Enriquez’ facsimiled membership transfer
request was eventually executed by a Local 300 official, ap-
parently inadvertently, and returned to Respondent which
processed it through the LIU. As a consequence, Enriquez is
carried on the LIU membership rolls as a member of Re-
spondent, but he has continued to pay dues to Local 300.
Enriquez believes Respondent is holding his ‘‘book hos-
tage.’’ In any event, at the time of the hearing, Enriquez had
been suspended from membership by the LIU for non-
payment of dues to Respondent.
B. Further Findings and Conclusions
Following the Supreme Court’s decision in Royal Elec-
tric,9 the Board clearly recognizes that union discipline of
supervisor-members does not violate Section 8(b)(1)(B) un-
less: (1) the union has or seeks a continuing collective-bar-
gaining relationship with the supervisor’s employer; and (2)
the disciplined supervisor actually possesses grievance ad-
justment or collective-bargaining responsibilities. Carpenters
District Council (Concourse Construction Co.), 296 NLRB
492 (1989).
In 8(b)(1)(B) cases, the evidence must establish that the
collective bargainer or grievance adjuster regularly engages
in such activities. Operating Engineers Local 3 (Kasler
Corp.), 298 NLRB 214 (1990). Although participation in a
formalized grievance system is not required, neither the exer-
cise of supervisory authority by itself nor the resolution of
routine personal problems rise to the level of grievance ad-
justment necessary to confer 8(b)(1)(B) status. Masters,
Mates & Pilots (Marine Transport), 301 NLRB 526 (1991);
Sheet Metal Workers Local 68 (DeMoss), 298 NLRB 1000
(1990).
Briefly summarized, the General Counsel contends that
Enriquez ‘‘possessed and exercised the authority to resolve
grievances regarding safety matters, equipment problems,
payroll disputes, and other disputes regarding working condi-
tions’’ at both the IKEA and MGM jobs. Respondent argues
that the General Counsel failed to demonstrate Enriquez pos-
sessed or exercised authority to adjust grievances within the
meaning of the law and that it merely sought here to enforce
a lawful internal union rule applicable to Enriquez.
Guided by the principles from the cited cases, I find that
Curd has a continuing collective-bargaining relationship with
Respondent sufficient to bring Section 8(b)(1)(B) into play,
but that Enriquez did not actually possess collective bar-
gaining or grievance adjustment responsibilities necessary to
establish his 8(b)(1)(B) status. And even if he did, the Gen-
eral Counsel failed to prove that Respondent caused
Enriquez’ discharge, as alleged.
The WCA contemplates that grievances will be quickly re-
solved as a part of an overall scheme designed to prevent
work stoppages and disruptions. The concern about work
stoppages and disruptions evident in the WCA explains why
grievances at the MGM job promptly involve high level de-
cisionmakers. Under this scheme the laborer foremen have
no specified role in grievance processing. Moreover, the evi-
dence shows that Anderson carefully monitors all grievance
activity involving Curd’s employees in Las Vegas and noth-
ing in Anderson’s testimony remotely suggests that Curd per-
ceives individuals at Enriquez’ level as vested with grievance
adjustment authority. From Anderson’s perspective, the role
of Curd’s general foremen is more aptly described as griev-
ance preventers.
Plainly, Enriquez’ examples about providing needed equip-
ment and supplies to workmen, as well as his involvement
in Curd’s payroll operations is little other than an exercise
of routine supervisory functions designed to produce smooth,
trouble-free operations. If these commonplace supervisory ac-
tivities fall within the 8(b)(1)(B) ‘‘adjustment of grievances’’
penumbra, then I am at a complete loss to understand why
the ‘‘reservoir doctrine’’ rationale, rejected by the Supreme
Court in Royal Electric, was necessary in the first place as
such a sweeping grievance definition would encompass near-
ly all supervisors. In my judgment, Royal Electric unques-
tionably precludes this kind of expansive extension of Sec-
tion 8(b)(1)(B).
Moreover, contrary to the General Counsel’s assertion,
Enriquez’ involvement with employee pay problems at the
IKEA project are distinguishable from the activities of Super-
visor Tessmer in the St. Louis Bridge case.10 Unlike the facts
there, Enriquez merely arranged for the correction of obvious
errors caught by employees themselves in a setting where a
collective-bargaining agreement actually existed and Jenkins’
approval of Enriquez’ proposed payroll changes was re-
quired, at the very least, in any doubtful situation.
Likewise a close examination of Enriquez’ three examples
pertaining to work referral problems in Los Angeles are in-
sufficient to confer 8(b)(1)(B) status. To the extent that
493HOD CARRIERS LOCAL 872 (ANDREW T. CURD BUILDERS)
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Enriquez became embroiled in disputes, his involvement was
primarily for the purpose of preserving his own supervisory
flexibility and stature.
Far from demonstrating that dispute resolution authority
resided in Enriquez, two of the work referral examples show
that such authority resided in Jenkins. That point is unmis-
takable from Jenkins’ insistence that one worker not properly
cleared through the hiring hall be laid off. The fact that
Enriquez subsequently secured a proper referral for this indi-
vidual is not an example of grievance adjustment as Jenkins
saw to it that no grievance arose in the first place.
With respect to the example which involved Jenkins’ re-
moval of Enriquez from the scene of an altercation with a
business agent over Enriquez’ obvious failure to properly fol-
low referral procedures, Jenkins’ subsequent admonition that
he would take care of such matters again demonstrates that
Enriquez lacked grievance adjustment authority.
Furthermore, the evidence suggests that Jenkins, at best,
tolerated Enriquez’ hiring practices and quickly intervened
when he sensed potential difficulties. And some evidence
suggests that Enriquez’ ability to avoid grievances over these
matters related primarily to his long relationship with
Quevedo.
The fact that Curd called upon Enriquez to supply factual
detail in its defense of an unfair labor practice case does not
support the General Counsel’s claim here. Even Enriquez ac-
knowledged that he was called upon only to truthfully ex-
plain what occurred.
In agreement with Respondent, I conclude that Enriquez
did not possess nor exercise authority as Curd’s representa-
tive ‘‘for the purposes of collective bargaining or the adjust-
ment of grievances’’ and, hence, Section 8(b)(1)(B) is not
applicable to his termination at Las Vegas.
But even assuming Section 8(b)(1)(B) does apply, I have
concluded that the General Counsel failed to establish that
Enriquez’ termination resulted from union pressure to trans-
fer his membership. On the contrary, the evidence strongly
suggests that Enriquez’ outbursts on January 24 directed at
both Jenkins and Denmark caused his termination.
The evidence shows that as late as January 22, Jenkins ex-
pressed some willingness to accommodate Enriquez in con-
nection with straightening out his membership problems.
That abruptly changed following the January 24 outburst
which Jenkins, at least, interpreted as a threat to sue both
Curd and himself. These facts show, in my judgment, that
Enriquez’ termination is causally connected to the outburst
and not to the Union’s membership transfer demands.
Although the ineffable quality of Enriquez’ solidarity with
the labor movement is obviously lost on the petty and con-
temptible little minds who have conspired to cause his mem-
bership suspension after 27 years, that fact is not sufficient
to transform this case into a vehicle to correct this indefen-
sible injustice. Therefore, I am compelled to conclude that
the Union has not violated Section 8(b)(1)(B), as alleged.
CONCLUSIONS OF LAW
1. Curd is an employer engaged in commerce or a busi-
ness affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. Enriquez was not Curd’s representative for purposes of
collective bargaining or the adjustment of grievances within
the meaning of Section 8(b)(1)(B) of the Act while employed
by that firm.
4. Respondent has not restrained nor coerced Curd in the
selection of its representatives for the purposes of collective
bargaining or the adjustment of grievances within the mean-
ing of Section 8(b)(1)(B) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The complaint is dismissed.