LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 (COUNCIL OF UTILITY CONTRACTORS,

National Labor Relations Board - Administrative Judge Opinions

Sep 7, 2016

03-CB-163940 (N.L.R.B. Sep. 7, 2016)

JD–87–16
Buffalo, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL UNION NO. 91
(COUNCIL OF UTILITY CONTRACTORS, INC.
AND VARIOUS OTHER EMPLOYERS)
and Case No. 03–CB–163940
FRANK S. MANTELL,
An Individual
Linda Leslie, Esq., for the General Counsel.
Robert Boreanaz, Esq.,
(Lipsitz, Green, Scime, Cambria LLP, Buffalo, New York)
for the Respondent.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Buffalo, New York
on June 29, 2016. Frank S. Mantell filed the charge in this matter on November 12, 2015. The
General Counsel issued the complaint on March 30, 2016, which was amended twice, but not in
any material respect.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent Union, Laborers Local Union 91, is a labor organization within the
meaning of Section 2(5) of the Act. It represents employees who work for construction
employers who are subject to the Act and who are members of employer associations which are
subject to the Act.
JD–87–16
2
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent, in operating its non-exclusive hiring hall,
violated Section 8(b)(1)(A) of the Act by removing the Charging Party, Frank S. Mantell, from
its out of work list between October 12 and November 19, 2015.5
In late August 2015 Mantell a member of Local 91, posted comments on a Facebook
page called Niagara Falls Uncensored, G.C. Exhs. 4, 5 and 6. The comments criticized the
Union for allowing Glen Choolokian to obtain a journeyman’s book. Choolokian was a Niagara
Falls city councilman, running for mayor of Niagara Falls in the Democratic primary against the 10
incumbent. This Facebook page was accessible to about 4,000 people, some of whom were
members of Local 91.
Mantell’s objection to the Union permitting Choolokian to acquire a journeyman’s book
was that he did not go through the Union’s 5 year apprentice program.15
One of Mantell’s comments, made in response to a post accusing unions or the Union of
corruption was, “It’s not that we are corrupt. It’s just the leader of our union and our small 3
man PAC committee will back any politician who will promise benefits to us even tho they are
not the best choice for our city or county.”20
In response to a critic of his posts, Mantell wrote, “I am not running for mayor and
receiving gifts from our union. I am just a voice in a rather dictatorship of a union. And I am
exposing him for who and what he is. Our union deserves better.”
25
The same critic wrote that the current union leadership had saved the Union and the jobs
of all its members. In response, Mantell wrote, “More of a reason not to give a journeyman
union book to a politician when we have an apprenticeship program in place. This kind of bad
decision making does not help us in the eyes of the International.”
30
Local 91’s Business Manager, Richard Palladino filed internal union charges against
Mantell in early September 2015. Palladino contended that Mantell’s comments damaged his
ability to run the local.
On September 23, 2015, the construction project on which Mantell was working came to 35
an end. On that day, he went to the union hall and signed the out-of-work list. He was 5th on
the list at that time.
The Union’s executive board conducted a trial on Palladino’s charges against Mantell on
October 5, 2015. The deliberations of the executive board focused on the aforementioned 40
Facebook posts. The 7-member executive board found Mantell guilty of the charges brought by
Palladino and made a decision to fine him $5,000 and suspend his membership for 24 months.
This decision was ratified at the Union’s monthly membership meeting on October 12. The
Union removed Mantell from the hiring hall’s out-of-work list the next day.1

1 Mantell works full-time as a firefighter for the city of Niagara Falls. However, he also regularly
acquires work through the union’s hiring hall as a laborer.
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3
Mantell appealed the decision to the International Union. On November 19, the
International apprised Local 91 of the appeal and notified it that the decision of the trial board
was stayed and ineffective until it may be upheld by the General Executive Board of the
International. Thus, Mantell was removed from the Union’s out-of-work list from October 12 to
November 19. On December 4, 2015 the International informed Local 91 that it dismissed the 5
charges against Mantell.
Analysis
Section 8(b)(1)(A) of the Act states that it shall be an unfair labor practice for a labor 10
organization, or its agents to restrain or coerce employees in the exercise of the rights guaranteed
by Section 7 of the Act. Section 8(b)(1)(A), however, also says that this provision “shall not
impair the right of a labor organization to prescribe its own rules with respect to acquisition or
retention of membership.”
15
Thus, the initial question in this case is whether the Union restrained or coerced Frank
Mantell in the exercise of a Section 7 right. This in turn raises the question of whether Mantell
engaged in any activity protected by Section 7. Mantell’s Facebook posts concerned perceived
unfairness affecting apprentices. Mantell was a journeyman, however, not an apprentice.
20
Section 7 provides that, "employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection ... (Emphasis added)"
25
One could argue that Mantell did not engage in protected activity because the issuance of
a journeyman’s book to Mr. Choolokian did not affect him, or even if it did, his Facebook posts
only complained about the effect on apprentices.
Nevertheless, I find that Mantell’s Facebook posts were protected. First of all, issuing a 30
journeyman’s book to someone allegedly ineligible to receive one, affected Mantell in that one
more journeyman would arguably impact his opportunities for employment. Moreover, as Judge
Learned Hand pointed out in NLRB v. Peter Cailler Kohler Swiss Chocolate Co., 130 F.2d 503,
505-506 (2d Cir. 1942), employees making common cause with fellow employees are engaged in
protected activity. Even though the immediate quarrel may not concern them they may be 35
assured that if their “turn ever comes,” they will have the support of those they are then helping.
I also reject Respondent Union’s assertion that Mantell forfeited the protection of the Act
by maliciously defaming the Union and Business Manager Palladino. Nothing Mantell said in
his Facebook posts was maliciously and knowingly untrue, MasTec Advance Technologies, 357 40
NLRB 103, 107 (2011). The Union takes issue with the fact that Mantell characterized the
Union’s action as giving Choolokian “a gift.” I find that has not been proven to be false despite
the fact that Choolokian may have paid for the journeyman’s book. Mantell’s use of the term
“gift” can reasonably be interpreted as arguing that Choolokian was not entitled to a
journeyman’s book—an assertion that may or may not be true.245

2 Similarly, I find that Mantell did not forfeit the protections of the Act by suggesting that the Union
JD–87–16
4
The Union also argues that this case should be dismissed pursuant to the Board’s decision
in Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417 (August 25,
2000). In that decision the Board held that it would no longer proscribe intraunion discipline
under Section 8(b)(1)(A) with does not interfere with the employer-employee relationship or
otherwise contravenes a policy of the Act.5
I conclude that removal of Mr. Mantell from the hiring hall’s out-of-work list interferes
with the employer-employee relationship and thus violates Section 8(b)(1)(A). By removing
him from its out-of-work list, the Union deprived Mantell of employment opportunities and
deprived prospective employers of his services. In Local No. 121, Plasterers, 264 NLRB 192 10
(1982), albeit a case predating Sandia, the Board found that a union violated Section 8(b)(1)(A)
by rescinding a non-exclusive hiring hall referral and refusing to refer an employee in the future.
The Union was retaliating against the employee in that case for criticizing the Business Agent’s
way of running the Union.3
15
The Board in Carpenters Local 370, 332 NLRB 174 (September 20, 2000) held that a
Union operating a non-exclusive hiring hall owed no duty of fair representation to a member.
However, despite this, a union violates Section 8(b)(1)(A) when it discriminates against a
member for protected activity, Newspaper & Mail Deliverers (City & Suburban Delivery), 332
NLRB 870, 870 n. 1 (2000); Teamsters Local 460 (Superior Asphalt), 300 NLRB 441, n. 1 20
(1990).
Conclusion of Law
Respondent, Laborers Local Union Number 91, violated Section 8(b)(1)(A) by removing 25
the Charging Party, Frank S. Mantell, from its out of work list between October 12 and
November 19, 2015.
REMEDY
30
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4

awarded Choolokian a journeyman’s book because Choolokian promised benefits to the Union if he was
elected Mayor. There is no evidence in this record as to the reason the Union allowed Choolokian to
acquire a journeyman’s book.
3 A recent similar case, involving an exclusive hiring hall is IATSE LOCAL 51(SMG and the
Freeman Cos., d/b/a Freeman Decorating Services, Inc., 364 NLRB No. 89 at. p 22 (August 26, 2016).
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
JD–87–16
5
ORDER
The Respondent, Laborers Local Union No. 91, Niagara Falls, New York, its officers,
agents, and representatives, shall
5
1. Cease and desist from
(a) Removing employees from its out of work list in retaliation for activity protected
by Section 7 of the Act.
10
(b) In any like or related manner restraining or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
15
(a) Notify Frank Mantell in writing that it will make employment referrals available to
him without regard to his exercise of Section 7 rights.
(b) Make Frank Mantell whole for any loss of earnings and or other benefits suffered a
result of the discrimination against him.20
(c) Compensate Frank Mantell for his search-for-work and interim employment expenses
regardless of whether those expenses exceed his interim earnings. Search-for-work and interim
employment expenses shall be calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in 25
Kentucky River Medical Center, 356 NLRB 6 (2010).
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide a reasonable place designated by the Board or
its agents, all payroll records, social security payment records, timecards, personnel records and 30
reports, and all other records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its hiring hall in Niagara Falls,
New York, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms 35
provided by the Regional Director for Region 3, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to members are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as my email, posting on an intranet or an internet site, and/or other electronic 40
means, if the Respondent customarily communicates with its members by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,

5 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.”
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defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current members and employees who were members at any time since October 12, 2015.
5
(f) Sign and return to the Regional Director sufficient copies of the notice for physical
and/or electronic posting by any employers to whom referrals were made between October 12,
and November 19, 2015, if willing, at all places or in the same manner as notices to employees
are customarily posted.
10
Dated, Washington, D.C., September 7, 2016
_____________________
Arthur J. Amchan15
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT remove any of you from our out-of-work list in retaliation for activity protected
by Section 7 of the National Labor Relations Act, including criticizing the Union or any of its
decisions.
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.
WE WILL make Frank Mantell whole for any of loss earnings or other benefits suffered as a
result of our removing him from our out-of-work list.
WE WILL compensate Frank Mantell for his search-for-work and interim employment expenses
regardless of whether those expenses exceed his interim earnings.
WE WILL Notify Frank Mantell in writing that we will make employment referrals available to
him without regard to his exercise of Section 7 rights.
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Niagara Center Building., 130 S. Elmwood Avenue, Suite 630, Buffalo, NY 14202-2465
(716) 551-4931, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CB-163940
or by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (716) 551-4946.