Local 648, IBEW

National Labor Relations Board - Board Decisions

Feb 25, 1975

216 N.L.R.B. 706 (N.L.R.B. 1975)

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union 648, International Brotherhood of Elec-
trical Workers, AFL-CIO (McGraw Construction
Company, Inc.) and Michael A. Vickery. Case
9-C B-2681
February 25, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 11, 1974, Administrative Law Judge
Paul E. Weil issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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
and to adopt his recommended Order as modified
herein.
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, Local Union 648,
International Brotherhood of Electrical Workers,
AFL-CIO, Hamilton, Ohio, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, as modified below:
Add the following as paragraph 2(d) and reletter
the present and succeeding paragraphs accordingly:
"(d) Make whole Michael A. Vickery for any loss
of earnings he may have suffered as a result of its
unlawful conduct which caused his removal from the
McGraw Construction Company, Armco East
Works, Middletown, Ohio, project."
ter called the Company, in the selection of its foreman for
the purposes of collective bargaining and/or the adjust-
ment of grievances . On July 30, 1974, the Regional
Director for Region 9, on behalf of the Board 's General
Counsel , issued a complaint and notice of hearing alleging
the violation by Respondent of Section 8(b)(1)(B) of the
Act by threatening the Charging Party with intraunion
disciplinary action and by causing him to be removed from
his job for performing his duties and managerial functions
as the Company 's representative . By its duly filed answer,
Respondent denied the commission of any unfair labor
practices , alleged that, because the Charging Party was a
supervisor or managerial employee , he was outside the
protection of the Act, alleged that if Respondent had
threatened intraunion disciplinary action , it was for
infringement of the contractual guarantees and "the rank
and file work protested by the provisions of these
documents as a union member" rather than an interference
with the supervisory duties, and finally alleged that
because the Charging Party appealed the decision of the
Union through the intraunion appeal procedure without
success, the Board has nojunsdiction over the issue herein.
On the issues thus joined , the matter came on for hearing
before me on September 19, 1974. All parties were present
and represented by counsel and had an opportunity to call
and examine witnesses and to adduce relevant and
material evidence . At the close of the hearing the parties
waived oral argument . Briefs have been received from the
General Counsel and Respondent.
Upon the entire record in the case , including my
observation of the witnesses and in consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
McGraw Construction Company is an Ohio corporation
engaged in general construction work at various locations
in the State of Ohio and other States. The Company
annually purchases goods and materials valued in excess of
$50,000 from firms located outside the State of Ohio which
it causes to be shipped in interstate commerce directly to
its Ohio location. Employer is and has been an employer as
defined in Section 2(2) of the Act and engaged in
commerce and in operations affecting commerce as
defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
DECISION
STATEMENT OF THE CASE
PAUL E . WEIL , Administrative Law Judge : On June 10,
1974, Michael A. Vickery filed with the Regional Director
for Region 9 of the National Labor Relations Board,
hereinafter called the Board , a charge alleging, that Local
Union 648 , International Brotherhood of Electrical Work-
ers, AFL-CIO, hereinafter called Respondent , violated
Section 8(b)(I)(B) of the National Labor Relations Act as
amended , hereinafter called the Act , by restraining and
coercing McGraw Construction Company , Inc., hereinaf-
The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer is engaged in a project at Armco East
Works, Middletown, Ohio. It employed varying numbers
of electricians on the project which, pursuant to a contract
with Respondent, were obtained through Respondent's
referral system. On January 9, 1974, the Company had in
its employ four electricians under the supervision of the
216 NLRB No. 133
LOCAL 648, IBEW 707
Charging Party, who, in his turn, reported to the job
superintendent.
On January 9, 1974, the Company's superintendent
informed Foreman Vickery that he had to cut his
maintenance electricians to two men, himself and one
other. Vickery had discretion to decide who was to be laid
off and who was to remain . Pursuant to this discretion,
Vickery decided on the employee who would remain and
called Respondent 's business manager, Roy R. McClure,
and informed him that he would be cutting back to two
people . McClure answered that that left Vickery and Ferd
Schmidt, the union steward on the job. Vickery answered
that he could not keep Ferd because he felt he was not
qualified and that he was going to keep one of the other
men. McClure told Vickery not to lay off Schmidt and
suggested that he read article 6, section 2 of the union
bylaws. Vickery persisted in his position and McClure told
him that he would see that Vickery's check was in with the
other checks that were coming the next day for the laid-off
employees.
The same afternoon, Vickery spoke to Don Langhorn,
who was in charge of labor relations for the Employer.
Langhorn told Vickery that he had talked to McClure and
had been informed that the steward was going to be laid
off. Langhorn wanted to know whether Schmidt was being
persecuted and why he was being laid off. Vickery
explained his reasoning to Langhorn who said "all right"
and asked to be connected with Superintendent Kruzic.
Later the same day , Vickery turned in the names of three
employees , including Schmidt, and informed them that
they were to be laid off.
The following morning , before the layoff was actually
consummated , additional work for the electrical mainte-
nance employees was found and Vickery asked to be
allowed to keep an extra man because of the need for a
welder . He selected one of the laid-off employees other
than Ferd Schmidt and informed him that he was not to be
included in the layoff.
Shortly after noon , McClure came to the jobsite. Vickery
met with him alone and told him that he was laying
Schmidt off because he did not feel that Schmidt could do
the work. McClure's only reaction was "you go on and
play your ball game and I am going to teach you a lesson."
That evening, after Vickery had returned to his home, he
received a telephone call from McClure who informed him
that he was removed from his job as foreman under article
6, section 2 of the bylaws for the good of the Union.
Vickery asked for McClure's reasons in writing and
McClure agreed to give them to him at an executive board
meeting to be held that evening . Vickery went to the
meeting . He asked McClure for the written reasons that he
had been promised and McClure refused to give them to
him "for the good of the Union." Vickery then asked the
executive board to reverse McClure's decision and they
refused to do so.
The following day, Vickery went to the jobsite and
informed the superintendent that he had been removed by
McClure for the good of the Union. He said that he was
not quitting but he could not work. The superintendent
told him that his name would stay on the payroll , he would
not be terminated , and that as far as the Company was
concerned he was on leave of absence.
B. Discussion and Conclusion
Both General Counsel and Respondent recognize that
the issue in the instant case is ruled by the decision of the
United States Supreme Court in Florida Power and Light
Co. v. IBEW, Local 641, 417 U.S. 790 (1974.) In that case
the court held that a union did not violate Section
8(b)(1)(B) by disciplining supervisory employees for
working on rank-and-file work behind the picket line. The
Court therein held that:
The conclusion is thus inescapable that a union's
discipline of one of its members who is a supervisory
employee can constitute a violation of Section
8(b)(IXB) only when that discipline may adversely
affect the supervisor's conduct in performing the duties
of, and acting in his capacity as, grievance adjuster or
collective bargainer on behalf of the employer.
The Court went on to say it is certain that the supervisors
involved in the Florida Power situation were not engaged in
collective bargaining or grievance adjustment or any
activity related thereto when they crossed union picket
lines during an economic strike to engage in rank-and-file
struck work.
The General Counsel contends that the rule in Florida
Power is inapplicable to the instant situation because here
Vickery was in fact engaged in grievance adjustment and
in activities related thereto. Respondent argues that this
case must fall under the rule of Florida Power because on
the facts it is shown that Vickery was not Respondent's
designated official in the adjustment of grievances and he
took no part in the collective bargaining whatsoever.
Respondent's argument is predicated on testimony by
McClure that the only agent of the Employer delegated the
function of resolving grievances was a joint employer-
union panel which sat on grievances in the last step of the
grievance procedure. McClure in his testimony made it
clear that he did not consider a matter as a grievance until
it had been reduced to writing after all efforts at the single-
employer level to resolve it had failed. I find no support in
the Act or in the cases and none is cited by Respondent for
this proposition. A grievance to the grievant is no different
when he is voicing it at ground level to his shop steward
and the steward is discussing it with the foreman than at
the point where it is reduced to writing by the business
manager of the Union and presented to the joint panel.
The employee grievance can be resolved at many points
before it is reduced to writing. The testimony of Ferd
Schmidt in this regard is enlightening. Schmidt testified
that in his period as shop steward, a matter of about 11
months, no grievance was ever permitted to go to the
written stage. Most were resolved by consultation "among
ourselves" and he admitted that he used the expression to
denote consultation between the grievant, himself, and the
foreman, who, during the times relevant hereto, was
Vickery. The contract provides that all grievances or
questions and disputes shall be adjusted by the duly
authorized representatives of each of the parties without
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explicating who the duly authorized representatives are.
The contract also requires that on all jobs requiring three
or more workmen , one shall be designated as foreman by
the employer and that at no time shall an employer or
member of the firm give orders , directions, or layout of
work to any of the men on the job except the supervisor
designated to run the job. It is clear in the instant case that
Vickery was the sole foreman on the job reporting directly
to the construction superintendent . It is also clear that
McClure recognized this fact. He testified that on being
informed that the steward was to be laid off, which was, in
his opinion , a violation of the contract , he did not go to
any member of management to complain about Vickery.
He admitted that he considered the layoff of these
employees to be in the nature of the grievance and in his
attempt to adjust this grievance , he spoke to Vickery. He
denied , however, that he caused Vickery to be removed
from his job because he did not adjust the grievance as
McClure wanted it adjusted but testified that he removed
Vickery from the job for violation of the agreement.I
I find that the discipline of removing Vickery from his
post as foreman , acquiesced in by the Employer, was in
retaliation for Vickery's insistence upon running a job in
accordance with his opinion of the best interest of the
Employer and the discipline was specifically imposed
because he did not respond to the alleged grievance raised
by McClure by retaining Shop Steward Schmidt rather
than another employee whom Vickery deemed better
qualified to do the work. Respondent makes much of the
fact that the collective-bargaining agreement provided a
higher tribunal for the adjustment of disputes in the joint
conference committee but McClure chose, rather than go
through this tribunal or even to argue his position at higher
levels of management of the Company, to attack Vickery's
decision through Vickery's vulnerable spot, his union
membership . There is no showing that Vickery in fact
violated any portion of the contract or of the Union's
bylaws or constitution . Respondent does not point out any
provision in any of those documents that gives supersenior-
ity to the shop steward . Thus McClure was forced to speak
in generalities , relying on a provision of the bylaws that he
could remove any member for the good of the Union, and
no explanation is forthcoming how the good of the Union
could be affected by Vickery's action in the instant case.
Vickery's sin was apparently his recalcitrance in not
promptly agreeing with McClure when McClure presented,
as a grievance, his argument that the shop steward should
not be laid off. This surely is directly related to the
function of grievance adjustment , and the Union's action
through McClure was a direct dictation to the Employer by
the Union that as a grievance adjuster Vickery did not
meet with the Union's approval. I find that Respondent's
action herein constitutes a violation of Section 8(b)(IXB)
of the Act.
I There is no provision in the agreement that requires that the steward be
insulated from layoff or as in some contracts that he be the last employee
laid off.
Y 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,
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The conduct of Respondent set forth above , occurring in
connection with the operations of the Employer as set forth
in section I, have a close , intimate , and substantial
relationship to trade , traffic, and commerce among the
several States and tends to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Michael A. Vickery, the Charging Party herein, has
at all material times been a representative of the Employer
selected by it for the purpose, among others , of dealing
with matters involving collective -bargaining interpretation
and adjusting grievances within the meaning of Section
8(b)(1)(B) of the Act.
4. By disciplining Michael A. Vickery because of his
insistence on laying off a union steward , Respondent
coerced and restrained the Employer in the selection of his
representative for the purpose of collective bargaining and
the adjustment of grievances and thereby has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(b)(1)(B) of the Act.
5. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act including (1)
notifying the Employer's representatives that it has no
objection to the use by the Employer of Michael A.
Vickery as a foreman on the Armco job; (2) expunging all
records of the proceedings in this matter against Michael
A. Vickery; and (3) making Michael A. Vickery whole for
all wages lost by him as a result of Respondent's
withdrawing him from the Employer's job on January 11,
1974.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER2
Respondent , Local Union 648, International Brother-
hood of Electrical Workers, AFL-CIO, its officers, agents,
and representatives , shall:
1. Cease and desist from:
(a) Restraining or coercing McGraw Construction
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.
LOCAL 648, IBEW
Company, Inc., or any other employer, in the selection of
its representatives for the purposes of collective bargaining
or the adjustment of grievances by disciplining such
representatives because they have not acceded to Respon-
dent's arguments in the adjustment of grievances.
(b) In any like or related manner restraining or coercing
McGraw Construction Company, Inc., or any other
employer, in the selection of its representative for the
purposes of collective bargaining or adjusting grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Expunge all record of the disciplinary proceeding
taken against Michael A. Vickery in January 1974, and
thereaf ter.
(b) Notify, in writing , McGraw Construction Company,
Inc., that it has no objection to the employment of Michael
A. Vickery as a foreman.
(c) Notify, in writing, Michael A. Vickery that it has no
objection to his employment as foreman nor to his
representation of McGraw Construction Company, Inc., in
the adjustment of grievances and that all applicable
records have been expunged.
(d) Post at its business office and meeting halls copies of
the attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director for
Region 9 , after being duly signed by the appropriate union
representative, shall be posted by Respondent Union
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 ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Mail to the Regional Director for Region 9 signed
copies of said notice for posting by McGraw Construction
Company, Inc., if willing, in places where notices to
employees are customarily posted. Copies of said notices to
be provided by the Regional Director for Region 9, after
being duly signed by the Respondent's official representa-
tive shall be forthwith returned to the Regional Director.
(f) Notify the Regional Director for Region 9, in writing,
709
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
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
The National Labor Relations Board having found
through a trial that we violated federal law by restraining
and coercing McGraw Construction Company, Inc., in the
Company's selection of individuals to represent it for
purposes of adjusting grievances of electricians on our
ARMCO East Works, Middletown, Ohio, project, we
hereby notify our members and all electricians employed
by McGraw Construction Company, Inc., that:
WE WILL NOT restrain or coerce McGraw Construc-
tion Company, Inc., in the selection of representatives
chosen for the purpose of collective bargaining or the
adjustment of grievances.
WE WILL notify the above-named employer that we
have no objections to his hiring Michael A. Vickery as
the foreman on that project.
WE WILL make whole Michael A. Vickery for any
loss of earnings he may have suffered as a result of our
unlawful conduct which caused his removal from the
above-named project.
WE WILL expunge all records of the discipline
imposed on Michael A. Vickery.
LOCAL UNION 648,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO