Iron Workers Local 45

National Labor Relations Board - Board Decisions

Mar 28, 1996

320 N.L.R.B. 1079 (N.L.R.B. 1996)

1079
320 NLRB No. 136
IRON WORKERS LOCAL 45
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(b)(1)(A) by threatening employees with the prospect of litigation,
with loss of membership, and loss of job referrals to discourage
them from filing unfair labor practices with the Board, we find it
unnecessary to rely on the judge’s finding that the Respondent’s
business agent, James Kearney, told Charging Party Sam Britton that
there was no work for him.
2 The judge inadvertently used the broad cease-and-desist language
‘‘in any other manner’’ in his recommended notice. We shall con-
form the notice to the narrow ‘‘in any like or related manner’’ lan-
guage in the judge’s recommended Order.
Local 45, International Association of Bridge,
Structural & Ornamental Iron Workers, AFL–
CIO and Sam Britton. Case 22–CB–7666
March 28, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On October 31, 1995, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a brief, and the General
Counsel filed an answering brief.
The National Labor Relations has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local 45, International As-
sociation of Bridge, Structural & Ornamental Iron
Workers, AFL–CIO, its officers, agents, and represent-
atives, shall take the action set forth in the Order, ex-
cept that the attached notice is substituted for that of
the administrative law judge.
APPENDIX
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten you with litigation, with loss
of your union book, or with loss of job referrals to dis-
courage you from filing an unfair labor practice charge
against us.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
LOCAL 45, INTERNATIONAL ASSOCIA-
TION OF BRIDGE, STRUCTURAL & OR-
NAMENTAL IRON WORKERS, AFL–CIO
Amanda Alvarez Ford, Esq., for the General Counsel.
Raymond Heineman, Esq. (Kroll & Gaechter), of Verona,
New Jersey, for the Respondent.
DECISION
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that Local 45, International Association of
Bridge, Structural & Ornamental Iron Workers, AFL–CIO
(the Respondent) has engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the National Labor Re-
lations Act (the Act) by having threatened employees with
loss of their union books and with lawsuits because they
filed unfair labor practice charges against the Respondent
with the Board. The Respondent’s answer denies these alle-
gations and avers, as an affirmative defense, that the Re-
spondent would have been privileged to take the actions al-
leged in the complaint inasmuch as the unfair labor charges
referred to therein were premised on assertions that were
knowingly false, malicious, and defamatory and which sub-
jected the Respondent to legal expense.
I heard this case in Newark, New Jersey, on September
20, 1995. On the entire record, including my observation of
the demeanor of the witnesses, and after due consideration
of the briefs filed by counsel for the General Counsel and
for the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION—LABOR ORGANIZATION
The Respondent has its office in Jersey City, New Jersey,
and is a labor organization as defined in the Act. It rep-
resents, for purposes of collective bargaining, employees em-
ployed at jobsites in its geographical area by employer-mem-
bers of the Building Contractor Association of New Jersey
(BCA) with which it has a collective-bargaining agreement.
BCA’s employer-members are in the construction industry.
In their operations annually, they meet the Board’s nonretail
standard for asserting jurisdiction.
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On October 13, 1994, an informal settlement agreement in
this case was approved. The Respondent, however, refused to
comply with the requirement in that agreement that it post
a notice to its members. As a consequence, the agreement
was revoked and the complaint then issued. The events that
led up to the specific allegations of the complaint are set out
next.
On December 23, 1993, one of the Respondent’s members,
Gerard Jefferson, filed an unfair labor practice charge against
the Respondent in Case 22–CB–7625 which asserted that the
Respondent coerced him and other members by violating hir-
ing hall procedures regarding referrals. That case is still
open; no complaint has issued in it nor has the charge been
withdrawn or dismissed.
On January 5, 1994, Sam Britton, the Charging Party in
the instant case, filed an unfair labor charge in Case 22–CB–
7632, which antedated the charge in the instant case and
which asserted that the Respondent has failed to refer him
for employment from its hiring hall in a nonarbitrary or non-
discriminatory manner in the 6-month period preceding Janu-
ary 5, 1994. Britton in fact had been working steadily during
that 6-month interval but from a referral hall operated not by
the Respondent but by an Iron Workers local located in Eliz-
abeth, New Jersey. Britton requested withdrawal of the
charge in Case 22–CA–7632; his request was approved on
February 25, 1994, the day after he filed the unfair labor
charge in the instant case.
Also on January 5, 1994, Britton, Hilal Yasin, and five or
six other members of the Respondent filed charges with the
Equal Employment Opportunity Commission (EEOC) which
asserted that the Respondent has a pattern and practice of
giving them and other minorities short work assignments
while giving Caucasians longer job assignments by making
referrals out of order. EEOC dismissed those charges in No-
vember 1994.
B. The Union Meeting
On January 25, 1994, the Respondent held a meeting at-
tended by approximately 100 of its members. Soon after it
began, the matters pertaining to the unfair labor practice
charges which had been filed by Jefferson and Britton on
January 5, 1994, as noted above, were referred to, along with
the EEOC charges also referred to above. Many of the mem-
bers present vigorously expressed annoyance with the asser-
tions in those charges that minorities were being discrimi-
nated against in job referrals.
Britton and Yasin testified for the General Counsel as to
statements made at the meeting by James Kearney, the Re-
spondent’s business agent. Kearney and Frank Cullen, the
Respondent’s recording secretary, testified for the Respond-
ent.
Britton’s account was not a model of clarity. The Re-
spondent would have me discredit it based on its asserted in-
consistencies, embellishments, imprecisions, and contradic-
tions. The Respondent notes too that Yasin’s account was
not, in some respects, in accord with Britton’s. Britton, more
so than Yasin, had some problems verbalizing. Their difficul-
ties, however, appeared to be attributable to the somewhat
chaotic atmosphere prevalent at the meeting and attributable
also to subjective considerations, neither of which impacted
adversely on the veracity of their respective accounts. It was
clear to me that the message they got from Kearney’s re-
marks was that Kearney would file countercharges under the
Respondent’s constitution against those who had filed unfair
labor practice and EEOC charges, that those individuals
would lose their union books and that they would never work
out of the Respondent’s referral hall again.
Kearney testified that, after he had stated in essence that
Britton had worked regularly while most members had not,
someone present yelled that Britton ought to be brought up
on charges and that Kearney responded that the Union’s con-
stitution provides that a member can file a charge of slander
with the executive board. Cullen testified that Kearney, when
members raised questions about internal union charges, indi-
cated to them that the Respondent’s constitution allowed for
such charges. Cullen’s account also was not too precise. It
appears that there was a great deal of yelling by members
throughout the course of the meeting.
Cullen took longhand minutes of the meeting. Those min-
utes are kept in a bound book containing the minutes of the
Respondent’s regular meetings. Those minutes were not pro-
duced at the hearing before me.
I credit the testimony of Britton and Yasin.
C. Regarding the Respondent’s Contention
The Respondent contends that the unfair labor practice
charge Britton had filed against it in Case 22–CB–7632, as
stated above, contained a patently false assertion that he had
been discriminated as to job referrals by the Respondent in
the 6 months preceding the date he filed that charge, January
5, 1994. As noted above, Britton throughout virtually all of
1993 had worked steadily on jobs to which he was referred
by an Iron Workers local located in Elizabeth, New Jersey.
Britton, however, testified without contradiction that part
of Kearney’s job is to call sister locals to see if any of the
Respondent’s members had work to which they could be re-
ferred and that, in January 1994, Kearney told him that there
was no work for him. Yet, according to Britton, he applied
the very next day to the Elizabeth local for a job and was
referred out to work immediately. It is apparent that Britton,
Yasin, and other members of the Respondent who are mi-
norities had little faith that Kearney would treat them in a
racially nondiscriminatory manner and that it was in this con-
text that Britton and Jefferson went to the Board’s Regional
Office for assistance, where they, on January 5, 1994, filed
the charges referred to above.
D. Analysis
The credited evidence establishes that the Respondent, by
its business agent, Kearney, threatened to retaliate against
members in warning them that they would face litigation
based on charges brought against them by the Respondent,
in warning them that they would lose their membership in
the Respondent, and in telling them that they would no
longer work out of the Respondent’s referral hall—all be-
cause of unfair labor practice charges filed with the Board.
As noted earlier, the Respondent contends that the charges
filed with the Board were premised on assertions which were
totally false and defamatory and that the Respondent has the
1081IRON WORKERS LOCAL 45
1 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.
2 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
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.’’
right to avail itself of its internal union rules to stop such
abuse.
There are two aspects to the complaint against the Re-
spondent. It is alleged that employees were threatened by the
Respondent with the filing of retaliatory lawsuits because
they filed unfair labor practice charges with the Board. In
support of that allegation, the General Counsel’s witnesses
testified that Kearney said ‘‘countercharges’’ would be filed
against those who filed unfair labor practice charges with the
Board. It is unclear what ‘‘countercharges’’ were con-
templated. It may well be that Kearney himself had not con-
templated a specific course of action. Thus, his comment
could be construed as an intent to file some type of
countercharge with the Board, or to file an internal union
charge, or to file a lawsuit. The ambiguous and vague nature
of Kearney’s stated intent to file ‘‘countercharges’’ does not
establish that the Respondent threatened employees with a
civil lawsuit as retaliation against their filing unfair labor
practice charges with the Board. Nonetheless, it did inform
them, in substance, that they could well incur litigation ex-
penses and perhaps other liabilities because they filed
charges with the Board. As Kearney failed to clarify his
statement, the ambiguity therein must be resolved against the
Respondent.
The second aspect of the complaint is the allegation that
the Respondent, in violation of Section 8(b)(1)(A) of the Act,
unlawfully threatened employees with the loss of their union
books because they filed charges with the Board. That sec-
tion provides that a labor organization cannot restrain or co-
erce employees in the exercise of their Section 7 rights. It
also provides that Section 8(b)(1)(A) shall not impair the
right of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership there.
The question posed in this case is whether the Respondent
can tell its members that they can lose their membership by
filing, in its view, baseless charges with the Board. Two
competing considerations are involved. One, that an em-
ployee should be free to use the Board’s processes. The
other, the statutory proviso in the Act itself allowing a labor
organization to determine whom it will accept or reject as a
member. In NLRB v. Shipbuilders Local 22, AFL–CIO, 391
U.S. 416 (1968), the Court held that the right to Board ac-
cess is the paramount consideration. See also Painters Local
1115 (C&O Painting), 312 NLRB 1036, 1042 (1993). More
precisely, the Respondent is not entitled to protect its as-
serted institutional interests if, in doing so, it restrains an em-
ployee’s access to the Board. See Iron Workers (Walker
Construction), 277 NLRB 1071, 1072 (1985). See also Paint-
ers Local 1115, supra at 1041–1042. I therefore find that
Kearney’s statement, that those who filed charges against the
Respondent could face retaliation, infringed on employee
rights under Section 7 of the Act.
Based on the foregoing and the record as a whole, I find
that the Respondent has restrained and coerced employees in
the exercise of their rights under Section 7 of the Act by
having threatened them with, in effect, the prospect of their
being involved in litigation, with the loss of membership,
and with loss of job referrals because they filed, with the
Board, unfair labor charges against the Respondent.
CONCLUSIONS OF LAW
1. BCA is an employer engaged in commerce within the
meaning of the Act.
2. The Respondent is a labor organization as defined in
Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act by hav-
ing threatened employees with the prospect of litigation, with
loss of membership, and loss of job referrals to discourage
them from filing unfair labor practices with the Board.
4. The unfair labor practices described in the above para-
graph affect commerce within the meaning of Section 2(6)
and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Local 45, International Association of
Bridge, Structural & Ornamental Iron Workers, AFL–CIO,
its officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening employees with litigation, with loss of
union membership, and with loss of job referrals to discour-
age them from filing unfair labor practices against it with the
Board.
(b) In any like or related manner restraining or coercing
them in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its hiring hall in Jersey City, New Jersey, cop-
ies of the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director for
Region 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.