IBEW, Local 1547

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 716 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers, Lo-
cal 1547, AFL-CIO (Rogers Electric, a Division of
Newberry Resources, Inc.) and Doran E. Ryan and
International Brotherhood of Electrical Workers,
AFL-CIO, Party in Interest. Case 19-CB 3081
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon charges filed by Doran E. Ryan, an individ-
ual, herein also called the Charging Party, the Gen-
eral Counsel of the National Labor Relations Board,
by the Regional Director for Region 19, issued a com-
plaint on February 7, 1978, against International
Brotherhood of Electrical Workers, Local 1547,
AFL-CIO, herein called Respondent. On June 5,
1978, the Regional Director for Region 19 approved
an informal settlement agreement between the par-
ties. On January 8, 1979, on finding that Respondent
had failed to comply with one of the terms of the
agreement, the Regional Director set aside the agree-
ment and reissued the complaint. Copies of the re-
issued complaint and notice of hearing before an ad-
ministrative law judge were duly served on the
parties. In substance, the reissued complaint alleges
that Respondent violated Section 8(b)(1)(A) and (B)
of the National Labor Relations Act, as amended, by
fining Ryan $1,500 and placing him on a I-year pro-
bation, in accordance with article VII, section 2, of
Respondent's bylaws.
The answer duly filed by Respondent denies the
commission of any unfair labor practices and con-
tends that reissuance of the complaint is barred by
compliance with the informal settlement agreement
approved by the Regional Director for Region 19 on
June 5, 1978.
On May 14, 1979, the Charging Party, the General
Counsel, and Respondent entered into a stipulation in
which they agreed that certain documents shall con-
stitute the entire record herein,' and that no oral tes-
timony is necessary or desired by any of the parties.
Thus, the parties expressly waived all intermediate
proceedings before an administrative law judge and
oral argument in this matter and petitioned that this
case be transferred to the Board for the purpose of
making findings of fact and conclusions of law and
issuing an appropriate Order, reserving to themselves
t The stipulated record consists of the charge. amended charge. complaint,
answer, informal settlement agreement, art. VII of Respondent's bylaws.
minutes of Respondent's trial board meeting of November 21, 1977. reissued
complaint, answer to the reissued complaint, stipulation, and motion to
transfer proceedings to the Board.
only the right to object to the materiality, relevancy,
or competency of any of the stipulated facts.
By order dated July 10, 1979, the Board approved
the stipulation, transferred the proceeding to itself;
and set a date for the filing of briefs. Thereafter, the
General Counsel filed a brief which has been duly
considered by the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record herein
as stipulated by the parties, as well as the brief filed
by the General Counsel, and makes the following
findings and conclusions:
Facts
1. ITHE BUSINESS OF TIlE EMPLOYER
Rogers Electric, a Division of Newberry Resources,
Inc., herein called the Employer, is an Arizona corpo-
ration with an office and place of business located at
Anchorage, Alaska. It is engaged in the construction
industry as an electrical contractor. During the past
12 months, the Employer derived gross revenues in
excess of $500,000 and received in excess of $50,000
for services provided to customers who are directly
involved in interstate commerce.
The parties stipulated, and we find, that Rogers
Electric is now, and at all times material herein has
been, an employer engaged in commerce and in a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act. We further find it will
effectuate the purposes of the Act to assert jurisdic-
tion in this proceeding.
II. THE LABOR ORGANIZATION INVOVED
The parties stipulated, and we find, that Respon-
dent is now, and at all times material herein has been,
a labor organization within the meaning of Section
2(5) of the Act.
II111. THE UNFAIR LABOR PRA(CTICES
A. The Issue
The only question presented2 is whether the follow-
ing provision, article VII, section 2, of Respondent's
bylaws, in itself violates Section 8(b)(1)(A) of the Act:
He [the business manager] may remove any
member from any shop or job (when not in vio-
2 The parties have stipulated that all aspects of the original settlement with
the exception of the required change in the bylaw provision have been com-
plied with by Respondent and are no longer at issue.
245 NLRB No. 91
716
IBEW. LOCAL 1547
lation of any agreement) for not complying with
our laws and rules or when he decides the best
interest of the Local Union requires such re-
moval. Any such removed member shall be enti-
tled to a review of his removal before the Execu-
tive Board of the Local Union.
In addition, the General Counsel has informed the
Board that "[T]he only issue which the parties desire
to bring before the Board is whether or not the bylaw
in itself violates Section 8(b)(1)(A). All of the remain-
ing factual stipulations are only background to the
application of the bylaw provisions."
B. The Stipulated Facts
At all times material herein, the Employer has been
a member of the National Electrical Contractors As-
sociation (NECA) and, by virtue of its membership in
NECA, has been party to a collective-bargaining
agreement with Respondent.
Ryan has been a member of Respondent in good
standing since approximately 1958. In August 1976,
Ryan was dispatched as a lineman by Respondent to
the Employer pursuant to procedures set forth in the
then existing collective-bargaining agreement. Since
approximately January 1977 Ryan has been desig-
nated by the Employer as either a lineman foreman
or a general foreman. Throughout November 1977
Ryan was a general foreman for the Employer.
As both a lineman foreman and a general foreman.
Ryan had the authority to settle minor problems and
complaints on the job without consulting any higher
official. Ryan could and did ask for conferences with
the job steward and complaining employees, and he
settled any minor disputes. Ryan adjusted safety pro-
cedures pursuant to complaints from a shop steward,
and he adjusted minor grievances which were pre-
sented to him verbally. Any major disputes had to be
referred to higher management officials.
In November 1977, when the Employer was experi-
encing a seasonal layoff, the Employer called a meet-
ing of its employees at which Respondent's business
agent, Moore, explained the contractual layoff proce-
dure. The collective-bargaining agreement provided
that employees fell into four classes, book I through
book IV; employees in the highest book number were
laid off first. Moore explained that while linemen
were working in supervisory capacities, they were ex-
empted from the procedure. He further stated that
when the supervisors, at the end of the particular job
they were on, resumed "working with their hands,"
they would once again come within the provisions of
the reverse layoff procedure. Moore was referring to
Ryan and one other foreman during this talk regard-
ing layoffs.
After the meeting Moore asked Ryan in to sign the
layoff books, stating that there was no one on the
books and that he, Ryan. would be cleared right back
out to the Employer. Ryan asked for assurances in
writing regarding the retention of seniority. Moore
replied that since this was a construction job and
there was no provision for seniority in the contract,
he could not make that kind of assurance. Ryan re-
fused to sign the books.
A few days later. Piazza. Respondent's business
agent, asked Ryan why he did not come in and sign
the books, as he would be redispatched back to the
Employer as book I. Piazza told Ryan that if he did
not sign, Respondent would "E-Board him" (send
him before the Local Union's executive board). Ryan
told Piazza to get on with it.
On November 21, 1977, internal union charges
against Ryan were signed by Moore and Piazza and
subsequently filed pursuant to Respondent's bylaws.
article Vll, section 2. On December 14, 1977, Ryan
was found guilty of the charges, fined $1,500, and put
on probation for I year. Thereafter. Ryan appealed
the trial board's decision to the International, which
reversed the trial board's decision, and Respondent
has complied with said reversal.
C. Contentions of the Parties
Respondent has not submitted a brief for our con-
sideration. The General Counsel contends that the
bylaw provision violates Section 8(b)(1)(A) of the Act
on its face, arguing that the protections afforded in
the Act would render the provision superfluous if law-
fully applied and that it therefore serves no other pur-
pose than to give Respondent's business representa-
tive carte blanche to attempt violations of Section
8(b)(1)(A), 8(b)(1)(B). and 8(b)(2) of the Act without
any proscriptions or prohibitions. The General Coun-
sel concedes that the proviso to Section 8(b)(1)(A)
protects many forms of internal union discipline, but
maintains that such protection does not extend to the
enforcement of union regulations which directly af-
fect the members' employment status, noting that the
only circumstance under which a business representa-
tive should be able to cause or attempt to cause an
employer to change an employee's employment status
is under the proviso to Section 8(a)(3) of the Act.
Since the Act fully covers employee and union rights
in this area, the General Counsel argues that the by-
law is at best unnecessary and at worst unlawful and
seeks to have the provision stricken in its entirety
from Respondent's bylaws.
D. Discussion
Integral to the policy underlying Section 8(b)(1)(A)
and (2) of the Act is the intent to separate member-
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship obligations owed by employees to their bargain-
ing representatives from the employment rights of
those employees.3 Therefore a presumption of illegal-
ity arises when a union prevents an employee from
being hired or causes an employee's discharge. That
presumption may be rebutted, however, "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 neces-
sary to the effective performance of its function of
representing its constituency."4 Thus, a union's ability
to carry out its statutory duty of fair and effective
representation of all its members may depend on the
The Radio Officers' Union of he Commercial Telegraphers Union A F. L.
/Bull Steamship Co.] v. N.LR.B. 347 U.S. 17 (1954); Minneapolis Star and
Tribune Company, 109 NLRB 727 (1954).
4 International Union of Operating Engineers, Local 18, A FL CIO (William
F. Murphy), 204 NLRB 681 (1973).
alteration or termination of an individual member's
employment status.5 Here, there is nothing in the by-
law provision at issue to indicate or establish that it
exists for an unlawful purpose, and we will not pre-
sume such a purpose. We find, therefore, that article
VII, section 2, of Respondent's bylaws is not unlawful
on its face and, therefore, that it does not, in itself,
violate Section 8(b)(1)(A). Accordingly, we shall dis-
miss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
I Cf Pniladelphia Typographical Union No. 2 (Triangle Publicaions, Inc., J.
189 NLRB 829 (1971).
718