Intl. Union Of Operating Engineers, Local 428

National Labor Relations Board - Board Decisions

Feb 13, 1975

216 N.L.R.B. 580 (N.L.R.B. 1975)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
Union No. 428, AFL-CIO (Mercury Constructors,
Inc.) and A sociated General Contractors of
Arizona and Michael Mack . Cases 28-CB-843 and
28-CB-861
February 13, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 18, 1974, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel and the Charging Parties filed briefs in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge for
the reasons set forth herein and to adopt his
recommend Order.
1. We agree with the Administrative Law Judge
that deferral of this dispute to arbitration procedures
under the rule of Collyer Insulated Wire, 192 NLRB
837 (1971), is not warranted. However, we do not
rely for this conclusion on the Administrative Law
Judge's statement "And the Board has recognized
and approved the refusal of an employee to defer to
arbitration procedures established in a contract. See,
e.g., Jacobs Transfer Inc., 201 NLRB 210 (1973)."
Rather, we rely on the fact that Mack was a
superintendent and superintendents, as distinguished
from foremen, are expressly excluded from the
bargaining unit in the collective-bargaining contract.
Hence the arbitration procedures of that contract are
not applicable to the dispute involving Mack.'
2. Michael Mack, vice president of Mercury
Constructors, Inc., and a supervisor within the
meaning of Section 8(b)(1)(B) of the Act, was in
charge of Mercury's Pinetop Lakes project. He was
also a member of Respondent. In October 1973,
several other members of Respondent filed intraun-
ion charges against Mack alleging that he had
violated the Respondent's constitution, bylaws, and
working rules by: (1) causing a member of the
i Member Jenkins, for reasons expressed in his dissents in Collyer
Insulated Wire, 192 NLRB 837 ( 1971), and Houston Mailers Union No 36
(Houston Chronicle Publishing Co), 199 NLRB 804 (1972), finds that
deferral of this dispute to arbitration is not warranted.
216 NLRB No. 104
Respondent to operate a backhoe without an oiler;
(2) employing two men not referred by Respondent
to the project; (3) employing an oiler not referred by
Respondent; (4) assigning a nonreferred man to a
service truck; and (5) laying off an operating
engineer and assigning a laborer to the identical
equipment. Mack pleaded guilty to certain of these
alleged violations and was fined. Subsequently,
Respondent refused to accept dues from him until he
first paid the fine.
Respondent contends that it did not violate Section
8(b)(1)(B) by fining Mack for violating its rules
because the conduct for which he was fined did not
relate directly to the negotiation of collective-bar-
gaining agreements or to the adjustment of griev-
ances . The Respondent argues that the Supreme
Court in Florida Power & Light Co. v. LB. E. W., Local
41, 417 U.S. 790 (1974), demonstrated a clear intent
to halt the Board's interference with the right of
unions to discipline their supervisor-members for
conduct, such as that allegedly involved in the
instant case, which is not related to the negotiation of
agreements or the adjustment of grievances. The
Administrative Law Judge rejected this interpreta-
tion of Florida Power & Light and concluded that
Respondent had violated Section 8(b)(1)(B) of the
Act by fining Mack and thereafter refusing to accept
his tender of union dues unless he first paid the fine.
We agree with the Administrative Law Judge that
these actions of the Respondent violated Section
8(b)(1)(B) of the Act. In so finding, we need not go
beyond our decision in San Francisco-Oakland
Mailers' Union No. 18, ITU (Northwest Publications,
Inc.), 172 NLRB 2173 (1968),2 and Teamsters Local
No. 524, International Brotherhood of Teamsters
(Yakima County Beverage Co.), 212 NLRB 908
(1974). For, as was the case in Oakland Mailers' and
Yakima Beverage, the supervisor-member in the
instant case, Mack, was disciplined after he engaged
in what amounted to his interpretation of the
collective-bargaining agreement. The imposition of
discipline under these circumstances violates Section
8(b)(1)(B) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent Union, International
Union of Operating Engineers, Local Union No. 428,
AFL-CIO, Phoenix, Arizona, its officers, agents, and
2 We note that in Florida Power & Light Co v. I B E W, Local /41, supra,
the Supreme Court assumed without deciding that the Board 's Oakland
Mailers' decision fell within the purview of its test for determining an
8(b)(I)(B) violation.
INTL. UNION OF OPERATING ENGINEERS, LOCAL 428 581
representatives, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
MARTIN S . BENNETT , Administrative Law Judge: This
matter was heard at Phoenix , Arizona , on July 9, 1974. The
amended consolidated complaint , issued June 11 and
based on a charge filed April 3, in Case 28-CB-843, by
Associated General Contractors of Arizona , herein AGC,
and upon another charge filed May 31 , 1974, in Case 28-
CB-861 , by Michael Mack , an individual , alleges that
Respondent Union, International Union of Operating
Engineers , Local Union No. 428 , AFL-CIO, has engaged
in unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act. Briefs have been submitted by the
parties.
Upon the entire record in the case, and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The instant case involves alleged unfair labor practices
affecting the operations of Mercury Constructors, Inc.,
herein Mercury, an Arizona corporation maintaining its
principal office and place of business as a general
contractor in the building and construction industry at
Phoenix, Arizona. Mercury annually purchases building
and construction materials and supplies valued in excess of
$50,000 which are shipped to it directly from points outside
the State of Arizona. I find that Mercury is an employer
within the meaning of Section 2(2) and that its operations
affect commerce within the meaning of Section 2(6) and (7)
of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Respondent Union, International Union of Operating
Engineers, Local Union No. 428, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
President Charles Featherston, Business Manager Larry
Dugan, Jr., and Business Agents Carl Lind and Charles
Slack, are agents of Respondent Union.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; The Issue
There is but one issue herein. At the time material herein,
Michael Mack, and I so find on ample evidence, was a vice
president of Mercury in charge of its pipeline utilities
division assigned to a so-called Pinetop project some 200
miles east of Phoenix where Mercury was installing sewer
lines and a treatment plant. According to Respondent
Union, Mack was merely a foreman on the job.
On October 15, 1973, four members of Respondent
Union preferred five charges against Mack, a member of
Respondent Union, alleging five violations of Respond-
ent's bylaws, working rules, and constitution, viz, (1) he
caused a member to operate a backhoe without an oiler;
(2) he employed two men not referred by Respondent
Union to the project; (3) he employed an oiler not referred
by Respondent Union; (4) he assigned a nonreferred man
to a service truck; and (5) he laid off an operating engineer
on Wednesday, October 3, and on Friday, October 5,
assigned a laborer to the identical piece of equipment.
On or about February 25, 1974, Mack was found guilty
of violating certain of the foregoing, having pleaded guilty
thereto, and a fine was assessed against him . Respondent
Union has since refused to accept dues from Mack until he
pays the aforesaid fine. Respondent Union, in essence,
concedes the facts, but relies on its claim that he was a
foreman and subject to restrictive language in the contract.
As set forth below, certain mitigating testimony was
presented herein by Mack as to the merits of the violations.
As found, he was more than a foreman. The General
Counsel and the Charging Party further argue that even if
he was a foreman the contract language is not specific
enough to constitute a clear and unmistakable waiver by
the Employer of its right to keep its supervisory personnel
free from union pressure. The record amply demonstrates,
and I so find, that Mack represents Respondent in the
adjustment of grievances. Indeed, there is testimony from
Business Representative Carl Lind that he specifically
contacted and met with Mack in this precise area.
Respondent Union also urges as a defense the arbitration
clause of the contract, although Charging Party Mack
expressly claimed herein that he wished to have his case
resolved by the Board and was unwilling to submit it to
private arbitration. A representative of Respondent Union
testified herein that it was willing to waive any time
schedule in the contract as to the filing of grievances
thereunder, it appearing that the time schedule provided in
the contract had not been met.
B. Sequence of Events
Mack was first employed by Mercury in 1969 as an
estimator and job supervisor. He left the employ of
Mercury in 1972 to take a position with another firm as job
superintendent, at which time he joined Respondent
Union. Late in 1972, he negotiated with President Fred
Moore of Mercury concerning his reemployment by
Mercury. They agreed as to his return; that he would be
salaried rather than hourly paid; and that he would receive
paid side privileges including leave, bonuses, profit sharing,
paid vacations, and the use of a company vehicle, as
contrasted with others on the job.
During their negotiations Mack also informed Moore
that he opted for the benefits under Respondent Union's
health and welfare plan, rather than that of Mercury,
because he deemed the plan to be superior to that of
Mercury; Moore agreed to make such payments to
Respondent Union in behalf of Mack and duly did so.
The foremen of Mercury are hourly paid; they do not
receive paid vacations, sick leave, paid holidays, or
bonuses. They do not participate in profit sharing or paid
health and welfare fund contributions. Nor, unlike Mack,
do they receive expenses for family visits to the jobsite.
The record discloses that after Mack was made executive
vice president of the Employer, a letter to this effect was
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sent on February 13, 1973, to the Arizona Registrar of
Contracts.
Construction started at Pinetop prior to the amval of
Mack at the -project and it was supervised by one,
Argibright, a project manager trainee. Upon his amval late
in June, as Mack testified, he assumed control of the
project and reported directly to President Moore. He was
there until November when there was a temporary
shutdown because of weather, but Argibright left the
project in September prior to the departure of Mack.
During the time while both were there, Argibright reported
directly to Mack as did a laborer foreman and a carpenter
foreman. The total complement varied from 20 to 30 in
number including one or more teamsters.
The record discloses that pnor to Mack's trial by the
Union, the latter was on notice that he was job supenn-
tendent, Business Representative Lind admitting that
President Moore so advised him. Lind's alleged prior belief
that Argibright was the top management representative on
the project is controverted by the fact that it was not so.
Stated otherwise, the Union acted at its own peril in this
area.
Respondent Union relies on the following language in
the contract in effect at the time material herein.
2625.1-Each individual Contractor (including prime
or subcontractor) performing work on a job or project
will be required to employ an Operating Engineer Craft
Foreman where the individual Contractor is using five
(5), but no more than twenty (20), pieces of equipment
(excluding Pumps and Compressors) under the jurisdic-
tion of the Operating Engineers, on the job or project.
A second non-operating Foreman is required where the
Contractor is using twenty (20), but no more than forty
(40), pieces of equipment (excluding Pumps and
Compressors) under the jurisdiction of the Operating
Engineers, on the job or project. Such Craft Foreman
will not be permitted to operate equipment, except in
emergency or the temporary absence of the regular
operator. Any employee designated to supervise other
Operating Engineers under this paragraph, shall be
classified as an Operating Engineer Craft Foreman,
and shall receive Foreman's rate of pay.
2625.3-A Contractor shall have the right to select his
own Foreman, subject to the dispatching rules of
Article 10 hereof, and the Union shall in no way
interfere with the Foreman in the performance of his
duties, as instructed by his employer, except as the
same may be in direct violation of this Agreement.
duties. See Teamsters Local 524 (Yakima County Beverage
Company), 212 NLRB 908 (1974).
A more direct approach to the foregoing claim is that
Mack was much more than a foreman. Assuming that the
contract language constituted a clear and unmistakable
waiver by the Employer of the right to keep its foremen
free from union discipline, and I have reservations on this,
it contains no waiver with respect to anyone at the
executive vice president level who had authority to and did
adjust grievances.
Moreover, as noted, pnor to Mack's trial, Respondent
Union was put on specific notice as to his exact status. And
superintendents, as distinguished from foremen, are ex-
pressly excluded from the bargaining unit in Section 1001.1
of the contract. The fact that Mack opted for fringe
coverage under the Union's plan rather than the Employ-
er's does not alter this. Indeed, it would logically follow
that the Union, in effect, waived the contract language in
this limited area.' And the Board has recognized and
approved the refusal of an employee to defer to arbitration
procedures established in a contract. See, e.g., Jacobs
Transfer Inc., 201 NLRB 210 (1973). Deferral under the
rule of Collyer Insulated Wire, 192 NLRB 837 (1971), is
therefore not warranted. Cf. N. L. R. B. v. Railway Clerks
[Yellow Cab Co.], 498 F.2d 1105 (C.A. 5, 1974).
Respondent Union has relied on the decision in Florida
Power and Light Company v. N. L. R. B., 487 F.2d 1143
(C.A.D.C., 1973). As I read that decision, it turns upon the
right of a labor organization to discipline foremen for
performing struck work behind a picket line. That is not
the case here. Indeed, the dissent expressly so noted. I find
that by fining Michael Mack and thereafter refusing to
accept his union dues Respondent Union has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
IV. THE REMEDY
Having found that Respondent Union has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having found
that Respondent Union has unlawfully fined Michael
Mack and thereafter refused to accept his dues, it will be
recommended that it be ordered to rescind such action and
accept his dues retroactively and prospectively. It will also
be recommended that Respondent Union expunge from its
records all references to its unlawful actions.
C. Concluding Findings
The General Counsel and the Charging Party claim that
the contract does not contain a clear and unmistakable
waiver by the employer of its right to keep foremen free
from union restraint and coercion. They urge a finding of a
violation on the basis that Respondent Union's conduct
constituted restraint and coercion rather than mere
interference with the performance by the foreman of his
CONCLUSIONS OF LAW
1. Mercury Constructors, Inc., is an employer within
the meaning of Section 2(2) of the Act.
2. International Union of Operating Engineers, Local
Union No. 428, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent Union has engaged in unfair labor
practices within the meaning of Section 8 (b)(1)(B) of the
The fact that dispatch slips from the Union described Mack as a he did not request Mack as a foreman and the slips are therefore hearsay as
foreman makes no difference President Moore claimed , and I so find , that to Mack 's true status and his actual functions in behalf of Mercury
INTL. UNION OF OPERATING ENGINEERS, LOCAL 428
Act by fining Michael Mack and thereafter refusing to
accept his dues.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to section 10 (c) of the
Act, I hereby issue the following recommended:
ORDER2
Respondent Union, International Union of Operating
Engineers , Local Union No. 428, AFL-CIO, Phoenix,
Arizona , its officers, agents, and representatives , shall:
1. Cease and desist from restraining or coercing
Mercury Constructors, Inc., in the selection of representa-
tives for the purposes of collective bargaining or the
adjustment of grievances.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Rescind the action which it took against Michael
Mack which resulted in fines against him , expunge from its
records all references thereto, and accept his dues as timely
tendered , including those previously refused.
(b)' Post at its offices and union hall and the Pinetop
Project , Mercury willing, copies of the attached notice
marked "Appendix." 3 Copies of said notice , on forms
provided by the Regional Director for Region 28, after
being duly signed by Respondent Local 428 , shall be
posted by said Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by said Respondent to insure that
583
said notices are not altered , defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
3 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Mercury Construc-
tors, Inc., in the selection of its representatives for the
purposes of collective bargaining or the adjustment of
grievances.
WE WILL rescind the fines we have levied against
Michael Mack, expunge from our records all references
thereto, and accept his dues as timely tendered,
including those previously tendered and refused.
INTERNATIONAL UNION OF
OPERATING ENGINEERS,
LOCAL UNION No. 428,
AFL-CIO