International Union Of Operating Engineers (Stone & Webster Engineering Corp.)

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 223 (N.L.R.B. 1989)

OPERATING ENGINEERS (STONE & WEBSTER) 223
International Union of Operating Engineers (Stone
& Webster Engineering Corporation) and Carl
Mattocks
International Union of Operating Engineers, Local
478 and Carl Mattocks . Cases 39-CB-597-1
and 39-CB-597(2-3)
June 15, 1989
DECISION AND ORDER DENYING
MOTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN , CRACRAFT, AND HIGGINS
On April 24, 1987, the National Labor Relations
Board issued a Decision and Order 1 in this case
finding , in agreement with an administrative law
judge, that the Charging Party, Carl Mattocks, was
a supervisor within the meaning of Section
8(b)(1)(B) of the Act,2 that the Respondent, Local
478, violated Section 8 (b)(1)(B) by fining and sus-
pending Mattocks from membership for the per-
formance of his supervisory duties, and that Re-
spondent International violated Section 8(b)(1)(B)
by denying Mattocks ' appeal of the fine and sus-
pension imposed by Local 478.
On May 28, 1987, the Respondents filed with the
Board a "Joint Motion to Vacate Judgment," and a
supporting brief, in which they argue that the
Board 's Decision and Order in this case should be
vacated in view of the Supreme Court 's subsequent
decision in NLRB v. Electrical Workers IBEW
Local 340, 481 U.S. 573 (1987), which rejected the
Board 's "reservoir doctrine," and held that a union
does not violate Section 8(b)(1)(B) when it disci-
plines a supervisor union member who does not
participate as the employer's representative in col-
lective-bargaining or grievance adjustment, and
who works for an employer "with whom the union
neither has nor seeks a collective-bargaining rela-
tionship." 481 U.S. at 595. They assert that the
judge in this case found , and the Board agreed,
that Mattocks was disciplined by Respondent
Local 478 for the manner in which he exercised his
supervisory authority to hire and fire, conduct that
they contend is unrelated to any 8 (b)(1)(B) collec-
tive-bargaining or grievance-adjustment authority
Mattocks may have possessed . Thus, they argue
that under NLRB v. Electrical Workers IBEW Local
1 283 NLRB 734.
2 The judge relied in part on the Board 's "reservoir doctrine" to find
that Mattocks was an 8(b)(1)(B) supervisor However , she also found that
Mattocks in fact possessed and exercised grievance -adjustment authority
within the meaning of Sec. 8 (b)(IXB). In adopting the judge 's finding, the
Board noted that Mattocks ' authority to adjust grievances rendered him
an 8(b)( 1)(B) supervisor even without regard to the "reservoir doctrine"
A majority of the Board members participating in that decision relied ex-
clusively on Mattocks' grievance-adjusting authority in finding the
8(b)(1)(B) violation
340, the discipline imposed on Mattocks was not
unlawful as it was unrelated to any of his 8(b)(1)(B)
duties.
The General Counsel has filed a brief in opposi-
tion to the Respondents ' motion , asserting that the
Board 's underlying decision is not inconsistent with
the Supreme Court's decision . Specifically, the
General Counsel points to the Court's approval of
the Board 's decision in Typographical Union (North-
west Publications), 172 NLRB 2173 (1968), holding
that a union violated Section 8(b)(1)(B) by attempt-
ing to compel the employer's supervisor to take
prounion positions when interpreting the collec-
tive-bargaining agreement .3 The General Counsel
argues that the instant case involves, as the judge
expressly found, the same unlawful conduct as that
at issue in Northwest Publications , and that the
Board 's finding of a violation here is, therefore,
consistent with the Supreme Court's decision in
NLRB v. Electrical Workers IBEW Local 340.
Having duly considered the matter, we find the
Respondents ' motion to be without merit. The
Board's finding in the underlying decision' that
Mattocks was an 8(b)(1)(B) supervisor was based
on evidence showing , inter alia, that Mattocks was
authorized to, and did resolve , contractually relat-
ed grievances such as craft jurisdictional disputes.4
Further, the evidence showed, and the judge ex-
pressly found, that Mattocks was disciplined be-
cause the Respondents disapproved' of the manner
in which- Mattocks exercised his supervisory au-
thority to hire and fire as it related to such con-
tractual matters as safety , layoff, and manning re-
quirements .5 Thus, in finding that the discipline im-
posed on Mattocks by the Respondents violated
Section 8(b)(1)(B), the Board agreed with the
judge 's application of Northwest Publications, supra,
and found , essentially , that the Respondents were
attempting , through their conduct, to control the
0 NLRB v. Electrical Workers IBEW Local 340, supra.
4 The Board also adopted the judge 's finding that Mattocks adjusted
personal grievances . The Respondents argue that under NLRB P. Electri-
cal Workers IBEW Local 340, Mattocks' autl onty to resolve personal
grievances does not render him a supervisor within the meaning of Sec.
8(b)(1)(B). In view of our adoption of the judge's finding that Mattocks
resolved contractually related grievances , we find it unnecessary to reach
this issue in denying the Respondents' joint motion to vacate judgment.
5 Thus, Mattocks' suspension by Local 478 resulted from a charge filed
by employee Civitello alleging that Mattocks had improperly discharged
Civitello because the former believed that Civitello had committed a
safety violation, i e, failing to check the oil in a truck that caused
damage to the truck's engine. Local 478 also fined Mattocks $1000 based
on a charge that Mattocks had improperly discharged employees Fior-
ello, Capello, and Miranda The only evidence in the record as to the
reasons for the discharge of these three individuals is a written statement
submitted by Mattocks to Local 478's executive board and his testimony
in the present case that Fiorello was laid off because the machine he was
operating was defective , Capello was laid off when the rental on a ma-
chine he was operating expired , and Miranda was laid off because of a
safety hazard on the machine he operated
295 NLRB No. 29
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
manner in which Mattocks exercised his superviso-
ry authority with respect to the administration of
the contract . For these reasons, we agree with the
General Counsel 's argument , as summarized above,
that the Board 's underlying decision is not incon-
sistent with the Supreme Court's ruling in NLRB v.
Electrical Workers IBEW Local 340. Accordingly,
we reaffirm our decision in 283 NLRB 734,6 and
shall deny the Respondents ' joint motion to vacate
judgment.
ORDER
The National Labor Relations Board reaffirms its
Orders published at 283 NLRB 734 (1987), as
modified and set forth in full below, and orders
that
A. Respondent International Union of Operating
Engineers , Local 478 , Hamden , Connecticut , its of-
ficers, agents, and representatives, shall
1. Cease and desist from
(a) Restraining and coercing Stone & Webster
Engineering Corporation in the selection of its rep-
resentatives for the purposes of collective bargain-
ing or the adjustment of grievances by trying, sus-
pending from membership , fining or otherwise dis-
ciplining Carl Mattocks, or any other supervisor-
member, for the performance of his collective-bar-
gaining or grievance-adjustment duties.
(b) In any other manner engaging in conduct
that is violative of the Act or that restrains or co-
erces Stone & Webster, or any other employer in
the selection of its representatives for the purposes
of collective bargaining or grievance adjustment.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind and remove from its records the fine
and membership suspension imposed on Carl Mat-
tocks because of his performance of grievance-ad-
justment duties for Stone &. Webster.
(b) Restore Carl Mattocks to his status as a
member in good standing in Respondent Local 478
with attendant rights.
(c) Notify Carl Mattocks, in writing, that the fine
has been rescinded , that records of the charges and
fine against him have been removed , and that he
will be restored to his status as a member in good
standing with all attendant rights.
(d) Preserve and, on request, make available to
the Board or its agents for examination all records
necessary to disclose whether the disciplinary ac-
6 A review of the Board 's underlying decision reveals that the judge's
recommended Orders need to be further clarified to reflect that the reme-
dial provisions are directed at the discipline imposed by the Respondents
on Mattocks for the manner in which he performed his collective-bar-
gaining and gnevance-adjustment duties . The judge's recommended
Orders, as modified ; are fully set forth here.
tions taken against Carl Mattocks were removed
from his record.
(e) Post at the meeting halls , offices, and hiring
halls of Respondent Local 478, copies of the at-
tached notice marked "Appendix A."7 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 34 , after being signed on behalf
of Respondent Local 478 by Elwood Metz Jr., its
business manager, shall be posted by Respondent
Local 478 immediately -upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to mem-
bers are customarily posted . Reasonable steps shall
be taken by Respondent Local 478 to ensure that
the notices are not altered, defaced, or covered bi
any other material.
(f) Reproduce and mail to the home of each of
its members a facsimile of the notice signed by
Elwood Metz Jr.
(g) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by Stone &
Webster, if willing , at all places where notices to
employees are customarily posted.
(h) Notify the Regional Director in writing
within 20 days of the date of this Order what steps
Local 478 has taken to comply.
B. Respondent International Union of Operating
Engineers, Washington, D.C., its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Ratifying the discipline imposed by Respond-
ent Local 478 on Carl Mattocks for performing his
collective -bargaining or grievance-adjustment
duties.
(b) In any like or related manner restraining or
coercing Stone & Webster in the selection of its
representatives for the purposes of collective bar-
gaining or the adjustment of grievances.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the denial of the appeal filed by Carl
Mattocks for the discipline imposed on him by
Local 478 because of his performance of his collec-
tive-bargaining or grievance -adjustment duties at
Stone & Webster.
(b) Remove from its files any reference to the
denial of the appeal filed by Carl Mattocks and any
reference to the disciplinary action imposed by
Local 478 on Carl Mattocks, and notify Mattocks
in writing that it has done so.
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
OPERATING ENGINEERS (STONE & WEBSTER) 225
(c) Preserve and, on request, make available to
the Board or its agents for examination all records
necessary to disclose whether the denial of the
appeal and the disciplinary. action taken against
Carl Mattocks were removed from his record.
(d) Post at its offices and hiring halls copies of
the attached notice marked "Appendix B."8 Copies
of the notice, on forms provided by the Regional
Director for Region 34, after being signed by Re-
spondent International 's authorized representative,
shall be posted by Respondent International imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to members are customarily
posted . Reasonable steps shall be taken by Re-
spondent International to ensure that the notices
are not altered , defaced , or covered by any other
material.
(e) Notify the Regional ' Director in writing
within 20 days of this Order what steps Respond-
ent International has taken to comply.
It is Further Ordered that the Respondents' joint
motion to vacate judgment is denied.
purpose of collective . bargaining or grievance-ad-
justment.
WE WILL rescind the fine levied against Carl
Mattocks and remove from our records all refer-
ence to the charges against him and the imposition
of the fine.
WE WILL restore Carl Mattocks to his status as a
member in good standing with all attendant rights
and WE WILL remove from his record all refer-
ences to his suspension.
WE WILL notify Carl Mattocks, in writing, that
the fine and suspension have been rescinded, that
all records of the charge, fine , and suspension have
been removed , and that he will be restored to full
membership.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS , LOCAL 478
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
8 See fn . 7, above.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT restrain or coerce Stone & Web-
ster Engineering Corporation in the selection of
representatives for the purpose of collective bar-
gaining or the adjustment of grievances by requir-
ing a response to charges, fining and suspending
from membership , or otherwise disciplining Carl
Mattocks , or any other supervisor-member , for per-
forming collective-bargaining or grievance adjust-
ment duties for Stone & Webster, or any other em-
ployer.
WE WILL NOT in any other manner engage in
conduct that is violative of the Act or that restrains
or coerces Stone & Webster, or any other employ-
er, in the selection of its representatives for the
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT restrain or coerce Stone & Web-
ster Engineering Corporation in the selection of its
representatives for the purpose of collective bar-
gaining or the adjustment of grievances by ratify-
ing the discipline imposed on Carl Mattocks by
International Union of Operating Engineers, Local
478, because he performed collective -bargaining or
grievance-adjustment duties.
WE WILL NOT in any like or related manner re-
strain or coerce Stone & Webster in the selection
of its representatives for the purpose of collective
bargaining or adjustment of grievances.
WE WILL remove from our records the denial of
the appeal filed by Carl Mattocks about the disci-
plinary action imposed by Local 478 against him
for the performance of his supervisory duties and
remove all references to the charge , fine , and sus-
pension imposed on Carl Mattocks by Local 478,
and WE WILL advise him , in writing, that we have
done so.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS