Laborer's, Local No. 721

National Labor Relations Board - Board Decisions

Dec 4, 1979

246 N.L.R.B. 691 (N.L.R.B. 1979)

I.\BORIR'S. OC)(AI. NO. 721 Laborer's International l nion of North America. I.o- cal No. 721 (Scaldini, Inc.) and Walter A. Willis and Bruce A. Malaguti. Cases I (B13 4217 and I CB 4218 )ecembher 4. 179 D)('ISION ANI) ORDER B5 (II IRtAN FAN\'ss(i xl) MMIB RS P \ I .N) Rt L SI)sl I Upon charges filed h Walter A. Willis on lul! 17. 1978.' in Case 1 ('B 4217 and h Bruce A. Malalguti on the same date in (ase I ('B 4218, the General Counsel of the National I.abor Relations Board. h\ the Regional D)irector fr Region I. issued all order consolidating cases. complailit, and notice of hearing on August 30, alleging that Respondent .ahborer's In- ternational Union of North America. Local No. 721, had engaged in and was engaging in unfair labor practices affecting commerce within the mea ning of' Section 8(h)(2) and (I )(A) and Section 2(6) and (7) of' the National I.abor Relations Act as amended. Re- spondent timel, filed an answer to the complaint de- nying the commission of unthir labor practices. At a hearing before Administrative l.aw Judge George F. Mclnerney on March 19. 1979, the parties agreed to a full stipulation of facts. Subsequentl . on April 16, 1979, the parties filed a joint motion to transfer this proceeding directly to the Board for deci- sion. The parties agreed that the stipulation ofo facts entered into bh them on March 19. 1979, together with the exhibits attached thereto, constitute the en- tire record in this proceeding. On May 22. 1979, the Board issued an order ap- proving the stipulation and transferring the proceed- ing to the Board. Thereafter, the General Counsel and Respondent filed briefs with 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. Having accepted transfer of the proceeding to it. the Board makes the following: FINt)INGS OF FA(CT I. THE HBUSINESS OF IHE EMPI.OYER Scaldini, Inc., herein called Scaldini a Massachu- setts corporation, is engaged in the business of con- tracting for building and construction and related ser- vices. Scaldini maintains an office and place of t All dates herein are in 1978 unless otherwise indicated business in Medford. Massachusetts. and annuallI purchases and receives directlN from suppliers located outsiIde the ('onl monv\ealth 'of \Iassac husetts goods valued in excess of $50,0()(. It is therefore found that Scaldini is. and has been at all times material herein. an employer engaged in commerce and in operations alfectilng commerce within the meaning of Section 2() and (7) of the Act. II. Illl I AB()R ()R(6N/\I()N 1\() I VI1I) Respondent l.aborer's International Union of N orth Aimerica, Local No. 721. is. ahnd has been at all times material herein, a labor organitatio n , tlhin the ilcaningg of' Section 25) of the ,Act. 111. lit \LI L(,1) tI NI-AIR I XBiR PRA( II(I S A. Bot A ground riand l acl During February and March 1978. Scaldini as engaged in the construction of a police station in Marshfield. Massachusetts. In February. Respondent employed two laborers at the jobsite. Walter A. Willis and Bruce A. Malaguti. who were represented bh! Re- spondent for collective-bargaining purposes. On or about February . Respondent's business manager. Louis Palavanchi. pursuant to the governing labor contract.2 demanded that Scaidini place on the jobsite a steward of its designationi. Scaldini replied by re- questing that Respondent select either Willis or Mala- guti to be steward. Palavanchi refused, telling Scal- dini that neither man was acceptable. and insisted that Scaldini hire someone chosen by the Union to serve as steward. Scaldini. however, declined either to lay off Willis or Malaguti and replace one of them with a steward selected by Respondent, or to hire a third laborer for the same purpose. On or about February 6, Palavanchi called a work stoppage at the Marshfield jobsite to protest Scal- dini's failure to hire a person of Respondent's choos- ing to act as steward. Willis and Malaguti partici- pated for no more than a day in the strike, which did not change Scaldini's attitude concerning Respon- dent's request for a steward. On the afternoon of Feb- ruary 6 a blizzard struck the Marshfield area, and halted work on the project until approximately Feb- ruary 20. When work resumed at the jobsite, Palavan- chi directed Willis and Malaguti to continue the pre- vious strike protesting Scaldini's position on hiring a ' Sec. 2. art. v. of the contract provided, n relesant part. that "A steward shall be appointed or furnished on each project h the union represenlative of the l.ocal UInion which hs territorial jurisdiction In the area here the job is located. 246 NLRB No. 108 691 I)t(('ISI()NS ( NAIO()NAI lB()OR RAT()NS BOARD[ union-designated steward. However. Willis and Ma- laguti refused to engage in any further such work stoppage. Shortly thereafter on February 22, Palvanchi pre- ferred intraunion charges against Willis and Malaguti for not obeying his order to strike at the Marshfield johbsite. Respondent mailed copies of the charges to each man 6 days latter, along with letter requesting his appearance at an internal union hearing on the matter on March 13. I'he day after that hearing. which apparently was not attended hb Willis or M a- laguti, they were notified h separate letter that thex hadl been fundi guilty as charged and had beeli as- sessed fines in the amnount of' $320 each. Willis and Malaguti did not pas the fines and were suspended from membership in Respondent. Respondent de- clined to accept the tender of regular dues by either man because of' their failure to pay the fines. On Jul 6 Respondent sent the fbllowing mailgrarm to Scaldlini: 4 Please be advised that two laborer employees now working for your company at the Hanover Vocational School and the Bridgewater Tleach- er's College are no longer members in good standing in Local 721, Brockton. Mass. The la- borers involved are Walter Willis and Bruce Ma- lagute [sic]. Notice is hereby given that Article 2. Sections 2 and 3 of the current collective bar- gaining agreement must be implemented at once. Finally, the labor contract between Respondent and Scaldini in force during the relevant period con- tained the fbllowing no-strike no-lockout clause: "It is agreed that there shall be no lockout by the L-m- ployer, nor any strikes or stoppage of' work by the Union except for non-payment of wages, including contributions to the Health and Welfare. Pension. Training, and Legal Services Funds." 'In spite of repeated requests by Respondent. Scaldini did not hire an employee selected by the Union to serve as steward until late March, when Willis and Malaguti were no longer employed at the jobsite. 'The contract provisions referred to in the mailgram read in full: Section 2 All present employees who are members of the Union on the effective date of this Agreement shall remain members in good standing by the payment of their regular monthly dues as a condition of continued employment. All present employees who are not members of the Union and all employees who are hired hereafter ftr work in the classifications specified herein shall become and remain members In good standing by the payment of' the required initiation fee and regular mtlnthl dues on the eighth (8th) day fiollowing the eecution of this Agreement or the date of employment. whichever is later. and shall thereafter maintain such good dues standing Ior the term of this Agree- ment. Secrion 3.; Upon receipt of written notice from the Uni on, the hm- ployer shall discharge any employee who fails to become or is not a member on the prescribed day, provided membership was available un- der the same terms and conditions as generally applic.able to olther members. The Union agrees to indemnify, defend and hold the Em- ployer harmless from any claim arising from ay such discharge B. ( 'onteleltion.s (i/ IIh Plarlies¥ T'he (;eneral ounsel contends that Respondent violated Section 8(h)( I )(A) of the Act by threatening to) fine, and hb fining. Willis :intd Malaguti or refus- ing to plarticipate in ail illegal work stoppage. 'I'he (;eneral ('ounsel further contends that Respondent violated Section 8(b)(2) and ( I )(A) bh seeking the dis- charge of' Willis and Malaguti on July' 6. lhcnl they had been suspended froml membership following their failure to pay the fines assessed. Specificall\. the (ieneral C(ounsel urges that. al- though the clause in the labor contract giving Re- spondent the right to furnish or appoint stewards at jobsites may have been lalwfTul under our recent deci- sion in Disri' C'ouncil o. 2 te Brotherhood ol IPailer id Al ie4d rade, 1I. ( 0 ('iXe Iaiti- lsmitls, In('.), Scaldini's refusal to enforce the provi- sion did not amount to an unfair labor practice, much less a serious one. Thus. according to the (ieneral C(ounsel Respondent's disciplining of' Willis and Ma- laguti for declining to take part in a breach of' the contractual no-strike clause was unlawful. In any event, whether or not the fining violated the Act, the General ('ounsel argues that Respondent was not en- titled under law to use the fines and resulting suspen- sion from membership as a basis for adversely affect- ing Willis' and Malaguti's employment status. Respondent, however, asserts that it was within its rights in fining Willis and Malaguti for failing to en- gage, as ordered, in a work stoppage at the Marsh- field jobsite. Respondent takes the position that Scal- dini's refusal to honor its requests to place a steward on the jobsite was a serious unfair labor practice, which justified a strike notwithstanding the presence of a general no-strike clause in the contract. 6 There- fore, Respondent reasons that, as the work stoppage was legitimate, so was the disciplining of Willis and Malaguti for not participating in it.7 Concerning the allegation that it violated Section 8(b)(2) and ()(A) by demanding the discharges of Willis and Malaguti on July 6, Respondent contends that the mailgram it sent to Scaldini on that date was merely "informational in nature" and too vague to form a basis for an unfair labor practice finding. C. Discussion and (onclusions It is concluded that Respondent violated Section 8(b)(I)(A) of the Act by fining Willis and Malaguti for refusing to engage in a union-authorized work '239 NlRB 1378 (1979). 6('iling Maviro Plartics Corp., e al. v. N LR B. 350 U.S. 270 (1956). ' Relsing upon v 1.R B v Allis ('halnmr Alanulrturng (o et at, 388 ' S. 175 (1967). and Soield et al. v N 1. R B, 394 Ul.S 423 (1969) 692 ILABORIR'S ILOCALI NO 721 stoppage at the Marshfield. Massachusetts. jobsite. and Section 8(b)(2) and (I)(A) by atempting to cause the discharge of those employees on July 6. In The Paintsmiiths. Inc., sl;ra. and Scott and Dun- can. Inc.. 9 and Ocean Technologv. Inc..1 issued on the same day, the Board decided that clauses in collec- tive-bargaining agreements permitting a union to fur- nish stewards to an employer from outside his current work force are valid and enforceable.'' The Board decided that such clauses serve a legitimate union oh- jective within the collective-bargaining framework. just as do clauses which allow superseniority for union. stewards.' 2 Unquestionably. Scaldini's failure to honor Respondent's request that it respect the con- tract and place on the job a laborer steward selected by the Union constituted an unfair labor practice." Nonetheless, Respondent was prohibited from call- ing a strike to protest Scaldini's action in the face of the general no-strike clause in the labor contract be- cause Scaldini had not committed a "serious" unfair labor practice under the doctrine of N. L. R. B. v. Mal.s- tro Plastics Corp., et al., supra, as refined in Arlatn's Department Store of Michigan, Inc.'4 In this connec- tion, it is noted that there is no evidence that Scaldini refused to hire a union-designated steward as part of an effort to undermine the Union as the employees' collective-bargaining representative. Furthermore, it is significant that, at the time the Employer failed to honor the Union's demand that it appoint a steward to the job from outside the work force, it did not act illegally, because such union demands were not legiti- mated until subsequently, when Paintsmiths, Scott and Duncan, and Ocean Technologvy issued. It would thus be illogical and inequitable to conclude that Scaldini did not heed the union request for the addi- tion of an outside steward to the job because of an I Although General Counsel asserts that Respondent violated Sec 8(bX XA) by threatening to discipline Willis and Malaguti. as well as bv actually disciplining them. the record contains no evidence of ans such threat, and that allegation of the complaint must be dismissed for lack of proof 9 United Brotherhood of Carpenters and Joilers of Amnerca, l.ocl 4 9(Scol and Duncan. Inc.). 239 NLRB 1370 (1979). m Teamsters Local 959. State of Ala.ka. affiliated with Internatinal Broth- erhood of Teamsters. Chauffeurs, Warehousemen and Helpers of .4meriua (Ocean Technolo*g. Inc). 239 NL.RB 1387 (1979). I The clause at issue in Scott and Duncan was substantiall) the same as that involved here. It read. "The Business Representative shall furnish or appoint a steward for a job or a shop when the Business Representative deems it necessary 12 See Dairlea Cooperative Inc., 219 NLRB 656 (1975., concluding that such clauses are valid if' limited to providing supersenioritl for purposes of layoff and recall. Howeser, for the reasons stated in his separate opinion in 4 PA. Tran.rspor Corp. 239 N.RB 1407 (1979). Member Truesdale v,ould not find presumptivel invalid prolislons giving union stea.rds supersenir- ity going beyond laorff and recall 1 In directly analogous circumstances. in U( on (lrhid, (rpriri..n Chemical and Plastics Operaunons Division, 228 NI.RB 1152 (1977), the Board found that an emploxer violated Sec. 8(a}5) and (I)of the Act h refusing to enfoirce a valid supersenioritN clause r uinion stewards m4 133 NLRB 802 (1961) unlawful intention to undermine the Union.' In short, Respondent's fining of Willis and Malaguti was illegal, as it is well established that a union violates Section 8(hb)()(A) by fining employee-members for refusing to breach a binding contractual no-strike clause. ' Respondent's mailgram of July 6 to Scaldini, de- manding the discharges of Willis and Malaguti for not paying their fines, was also unlawful.'7 Recently. in Pittshlurgh Prexs (Companly.', the Board reaffirmed longstanding Supreme Court and Board precedent that a union may not seek to enforce its internal union discipline against a member by interfering with his employment. The Board noted that the Supreme Court has historically distinguished between internal and external enforcement of union rules, and has con- cluded that, "Congress did not propose any limita- tions with respect to the internal affairs of unions, aside from barring enforcement of a union's internal regulations to affect a member's employment sta- tus." 19 It must therefore be found that Respondent violated Section 8(b)(2) and (I)(A) of the Act by at- tempting to cause Scaldini to discharge Willis and Malaguti on July 6. I\. [iE IFFF('I' F O IHI UNFAIR LABOR PRA('II(IS UPON ('OMMI R('L The activities of Respondent set forth in section III, above, occurring in connection with the opera- tions described in section 1. above, have a close, inti- mate, and substantial relationship to trade, traffic. and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. \. IH RFMFI)Y Having found that Respondent has engaged in cer- tain unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirma- tive action to effectuate the policies of the Act. We It is also worth noting that Saldini did not dispute the right of the employees to have a stew ard oin the jobsite. but merel) the method flr selecting the steward i' See. eg.. L.o, l 843.. Internaional Brotherhord of 7eamrner,. (hauffleurs. Hi lrhhousenln and ttelpers oyJ Amieria (Anheuser-Busch, Inc l 232 NlIRB 912 (1977) 1 (lContrar, to Respondent. its July 6 mailgram was nt simply "infirma- tlonal in nature." nor was t ague. When Willis and Malagutl did not pas their ines. Respondent suspended them from membership. and rejected their tenders of1 regular dues. Then. on the ground that Willis and Malaguti were no loinger members n good standing. Respondent sent the malgranm. which explicitly requested that Scaldini implement "at once" the union-security proslinss of the cntrac. providing n part that in emploser "shall dis- chalrge" an) emplosee not in compliance therewith upon notice by the i' 241 NRB 666 (1979) " .I. R B A4llt( halntr ttanu/( turing (, r al, 388 1 S. at 195 S.'sfitlds a[tl .1 I R B, 394 S ait 428 93 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall, among other things, order that Respondent re- scind the disciplinary action taken against Walter A. Willis and Bruce A. Malaguti, and that it refund to them any moneys held on account of fines assessed, with interest in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 20 Upon the basis of the foregoing findings of fact and the entire record in this case, the Board makes the following: CONCLUSIONS (OF LAW I. Scaldini, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Laborer's International Union of North America, Local No. 721, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By imposing internal union discipline upon Walter A. Willis and Bruce A. Malaguti for refusing to breach a binding contractual no-strike clause Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By attempting to cause Scaldini, Inc., to dis- charge Walter A. Willis and Bruce A. Malaguti, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and ()(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not threaten to impose internal union discipline upon Walter A. Willis and Bruce A. Malaguti, and thus did not violate Section 8(b)(l)(A) of the Act by engaging in any such conduct. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, La- borer's International Union of North America, Local No. 721, Brockton, Massachusetts, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Charging, trying, fining, or otherwise disciplin- ing Walter A. Willis, Bruce A. Malaguti, or any of its members for refusing to breach a binding contractual no-strike clause. (b) Attempting to cause Scaldini, Inc., to discharge Walter A. Willis, Bruce A. Malaguti, or any other employee in violation of Section 8(a)(3) and (1) of the Act. See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) In any like or related manner restraining or co- ercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Rescind the disciplinary action taken against Walter A. Willis and Bruce A. Malaguti for refusing to breach a binding contractual no-strike clause, and expunge from their records any reference to that dis- cipline. (b) Refund to Walter A. Willis and Bruce A. Ma- laguti any moneys held on account of fines assessed against them in connection with the aforesaid disci- plinary action, with interest as set forth in the section of the Decision herein entitled "The Remedy." (c) Notify Scaldini, Inc., in writing, with copies to the affected employees, that it withdraws its objection to Scaldini's employment of Walter A. Willis and Bruce A. Malaguti. (d) Post at its offices and meeting halls copies of the attached notice marked "Appendix."2' Copies of said notice, on forms provided by the Regional Direc- tor for Region 1, after being duly signed by Respon- dent's authorized representative, shall be posted by 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. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (e) Sign and return to said Regional Director suffi- cient copies of the attached notice marked "Appen- dix" for posting by Scaldini, Inc.. if willing, in con- spicuous places, including all places where notices to employees are customarily posted. (f) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegation of the complaint that Respondent violated Section 8(b)( )(A) of the Act by threatening to impose inter- nal union discipline upon Walter A. Willis and Bruce A. Malaguti be, and it hereby is, dismissed. MEMBER PENELLO, concurring: I agree with Member Truesdale, for the reasons he has given, that Respondent violated Section 8(b)(2) and (I )(A) of the Act by attempting to cause Scaldini. Inc., to discharge Walter A. Willis and Bruce A. Ma- laguti on July 6, 1978, and that the record contains no 11 In the event that this Order is enforced bh a Judgment of a United States Court of Appeals, the words in the notice reading "Posted b) Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals nforcing an Order of the Na- tional abor Relations Board." 694 I.ABORER'S, LOCAL NO. 721 evidence that Respondent unlawfully threatened Wil- lis and Malaguti with internal union discipline. I also concur with Member Truesdale's conclusion that Respondent violated Section 8(b)(l)(A) of the Act by fining Willis and Malaguti for refusing to take part in a strike in breach of contract at the Marsh- field, Massachusetts, jobsite on or about February 20, 1978. However, I do not subscribe to his rationale in reaching that result. For the reasons explained in full in my dissents in The Paintsmiths, Inc. 22 Sontt and Duncan, Inc.,23 and Ocean Technology, Inc.,24 I find that Respondent's demands that Scaldini hire some- one from outside its current work force to serve as steward for the Union were unfair labor practices. Therefore, Respondent's disciplining of Willis and Malaguti was not only unlawful punishment of these men for not breaching a valid no-strike promise2 5 but also for failing to support its independently illegal de- mands upon Scaldini. CHAIRMAN FANNING, dissenting in part: I join my colleagues in finding that Respondent violated Section 8(b)(2) and (I)(A) of the Act by at- tempting to cause the Employer to discharge Walter A. Willis and Bruce A. Malaguti on July 6, 1978, and in dismissing the allegation that Respondent violated Section 8(b)(l)(A) of the Act by threatening the two employees with the imposition of internal union disci- pline. Unlike them, however, I would find that the Union did not violate Section 8(b)(l)(A) by fining Willis and Malaguti for refusing to take part in a work stoppage on or about February 20, 1978, at the Marshfield, Massachusetts, jobsite. As Member Truesdale cor- rectly points out, Scaldini committed an unfair labor practice by refusing to appoint a steward designated by the Union from outside its work force. Thus. in 22 District Council No. 2 of the Brotherhood of Painters and Allied Trades. AFL CIO (The Painismiths, Inc.), 239 NLRB 1378 (1979). 2 United Brotherhood of Carpenters and Joiners of.4America. al 49 I(Scott and Duncan. Inc.), 239 NLRB 1370 (1979). 24 Teamsters Local 959, State of Alaska, affliated with International Broth erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ocean Technology, Inc.). 239 NLRB 1387 (1979) 25 Local 12419. International Union of District 50(. United Mine Woirkers of America (National Grinding Wheel Company, Inc.). 176 NLRB 628 (1969) accordance with my dissenting position in .4rlan's De- partment Store of Michigan, Inc.? I conclude that the Union was entitled to strike the Employer in protest of its illegal conduct. Respondent's fining of Willis and Malaguti did not violate the Act, as the Supreme Court has held that a union may discipline members who refuse to engage in lawful, authorized strikes without committing an unfair labor practice.27 2h 133 NLRB 802. 811 1961) 2' V . R B v 4Ihi (halmer Ianu/alcturin ( 't .al, 388 S 17519 I67 APPEN DIX NOII('E To EMPI.OYEES AND ME.MIBRS POSTED BY ORDER ()l 1fiE NAIONAL. LABOR REI.ATIONS BOARD An Agency of the United States Government WE WIl.L NOT charge, try, fine, or otherwise discipline Walter A. Willis, Bruce A. Malaguti, or any of our members for refusing to breach a binding contractual no-strike clause. WE WILL NOT attempt to cause Scaldini, Inc., to discharge Walter A. Willis, Bruce A. Mala- guti, or any other employee in violation of Sec- tion 8(a)(3) and (1) of the Act. WE WILt. NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE wii. rescind the disciplinary action taken against Walter A. Willis and Bruce A. Malaguti for refusing to breach a binding contractual no- strike clause, and WE WIl.. expunge from their records any reference to that discipline. WE WILLt refund to Walter A. Willis and Bruce A. Malaguti any moneys held on account of fines assessed against them in connection with the aforesaid disciplinary action, with interest. WE wILL notify Scaldini, Inc., in writing, with copies to the affected employees, that we with- draw our objection to Scaldini's employment of Walter A. Willis and Bruce A. Malaguti. LABORER'S INIERNA10NAI. UNION OF NORTH AMERICA,, LOCAl. No. 721 695