Local Union No. 453, Painters

National Labor Relations Board - Board Decisions

Jun 10, 1970

183 N.L.R.B. 187 (N.L.R.B. 1970)

LOCAL UNION NO. 453, PAINTERS
Local Union No. 453, Brotherhood of Painters,
Decorators and Paperhangers of America,
AFL-CIO and Syd Gough and Sons, Inc. Case
22-CB-1564
June 10, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND
JENKINS
On March 6, 1970, Trial Examiner Sidney Sher-
man issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint
be dismissed in its entirety, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer 's Decision and a supporting brief.
Pursuant to the provi;,ions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
The General Counsel contends that the fine im-
posed on Foreman Rinaldi by the Respondent,
ostensibly for his failure to register with Respond-
ent before returning to the job after the strike, was
in violation of Section 8(b)( I )(B) of the Act
because Respondent in assessing the fine was not
motivated by his failure to register but by its animus
against the Employer arising from a prior dispute
between the Employer and Respondent Union. This
dispute had caused the Employer to file unfair
labor practice charges against Respondent Union
and the General Counsel contends that it was
Respondent Union's hostility against the Employer
engendered by the filing of the charges that
provoked Respondent Union into retaliatory action
against Rinaldi, the Employer's supervisor. In mak-
ing his contention, the General Counsel relies upon
Board decisions, primarily the decision in New
Mexico District Council of Carpenters and Joiners of
America (A. S. Horner, Inc.), 177 NLRB No. 76.'
At the hearing the Trial Examiner refused to ac-
cept evidence regarding the prior dispute between
the Employer and Respondent Union, and the
187
General Counsel made an offer of proof. In his
decision, the Trial Examiner found that, even if the
fining of Foreman Rinaldi was motivated by
Respondent's desire to retaliate against the Em-
ployer it would not have coerced the Employer in
the selection of a bargaining or grievance represent-
ative and thus would not be violative of Section
8(b)(1)(B) of the Act.
We find it unnecessary to pass upon the Trial Ex-
aminer's analysis of the Horner case and the other
cases cited by the General Counsel. Accepting the
General Counsel's offer of proof as true, we con-
clude that it nevertheless does not suffice to show
that Respondent Union's motivation in fining Rinal-
di was to retaliate against the Employer for the fil-
ing of unfair labor practice charges.' Nor is the
evidence that was admitted into the record suffi-
cient to support such a conclusion. For this reason
we find, as did the Trial Examiner, Respondent
Union has not violated Section 8(b)(1)(B) of the
Act. Accordingly, we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complain.t
herein be, and it hereby is, dismissed in its entirety.
' The General Counsel also relied on NorthH,est Publications, Inc , 172
NLRB No 252, San Francisco-Oalland Mailers Union No 18 (The Toledo
Blade Company, Inc), 175 NLRB 1072, General Metal Products Inc,
178 NLRB 139.
The offer of proof was stated as follows
Mr Goodman On July first there was a strike by the Trenton Local
against the Trenton contractors and on the same day, the men at the
Princeton site walked off the job, having been told to walk off by the
Respondent local, the Princeton Local, and that in fact all work
stopped at that date, both in the Princeton area and-well, specifically
that at all sites at which Mr Gough was working in the Princeton area,
all of the men walked off the Job and work stopped at that time
He further would testify to the number of employees who were
working at each site, specifically the number of employees at the Edu-
cational Testing site
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: A copy of the
charge herein was served on Respondent on Sep-
tember 18, 1969,' the complaint issued on
December 16, and the case was heard on January
19, 1970 After the hearing a brief was filed by the
General Counsel The only issue litigated related tc
an alleged violation of Section 8(b)( I )(B) of the
Act in connection with the imposition of a fine on a
supervisor of the Charging Party.
Upon the entire record,' including observation of
the witnesses, the following findings and conclu-
sions are adopted:
All dates are in 1969, unless otherwise shown
For corrections of the transcript see the order of February 12, 1970
183 NLRB No. 24
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. JURISDICTION
Syd Gough and Sons, Inc., hereinafter called
Gough, is a New Jersey corporation and is engaged
in business as a painting contractor, with a principal
office in Trenton, New Jersey. Gough annually per-
forms painting services valued at more than
$50,000 for firms, each of which annually provides
goods or services to out-of-state firms in the value
of more than $50,000. Gough is engaged in opera-
tions affecting commerce within the meaning of the
Act.
II. THE UNIONS INVOLVED
Local Union No. 453, Brotherhood of Painters,
Decorators and Paperhangers , AFL-CIO,
hereinafter called Respondent , and its sister local,
Local Union No. 301 , hereinafter called Local 301,
are labor organizations under the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The only issue raised by the pleadings was
whether Respondent violated Section 8(b)(1)(B)
of the Act by warning Rinaldi, a foreman, that he
would be fined, and by fining him, for working at a
jobsite without prior notice to Respondent
A. Sequence of Events
Gough is a painting contractor operating in and
about Trenton and Princeton, New Jersey. Its
Trenton operations are covered by a contract with
Local 301, and its Princeton operations by a con-
tract with Respondent. Both contracts contain hir-
ing hall provisions, requiring the union to furnish
employees upon request. On July 1 Fiumenero
became Respondent's business agent. On the same
day, Local 301 called a strike against Gough and
other Trenton painting contractors, because of a
dispute over a new contract, and on July 2 Respond-
ent struck in sympathy with its sister local, and
two members of Respondent, who were then work-
ing at a jobsite in Princeton, referred to in the
record as the Educational Testing Center or
"ETS," were removed from the job by Fiumenero.
Thereafter, Gough filed charges with the Board al-
leging certain violations of the Act by Respondent
in connection with its sympathy strike, and on July
23 the Board's Regional Director filed in a United
States District Court a petition for an injunction
under Section 10(1) of the Act, seeking to restrain
Respondent from continuing such alleged viola-
tions. On the same day the contract dispute
between Local 301 and Respondent was settled and
it was agreed that work would be resumed the next
' The General Counsel disclaimed any like contention as to Catafe, ap-
parently because, although Catafe had acted asforeman on other jobs, he
was not so acting on the ETS Job, Rmaldi being the only one in charge
thereof on July 25
day. That evening Fiumenero was notified of the
termination of the strike. However, when Gough's
foreman, Rinaldi, visited the ETS job on the 24th,
no workmen appeared. The next day, Gough sent
Rinaldi and another foreman, Catafe, to the lobsite,
and, when Fiumenero arrived on the scene during
the day, he found them engaged in painting. He
warned them that they would be charged with
violating a union rule which required that any
member of a sister local of Respondent who was as-
signed to work within Respondent's jurisdiction re-
gister with it before reporting to the jobsite. Both
men were members of Respondent's sister local,
Local 301, and both were later formally charged by
Respondent with violating the foregoing rule, and
after a trial were fined $150 each. Gough has since
July 25 operated within Respondent's jurisdiction
without-significant incident.
B. Discussion
The General Counsel contends that, by Fiu-
menero's foregoing warning addressed to Rinaldi
and by imposing the fine on him,3 Respondent vio-
lated Section 8(b)(1)(B) of the Act, which forbids
a union to "restrain or coerce ... an employer in
the selection of his representatives for the purposes
of collective bargaining or the adjustment of
grievances."
The record shows that Rinaldi has been classified
as a foreman by Gough for about 17 years, that as
such he directs the work of others, that he has on
occasion adjusted employee grievances, and that
with respect to such grievances, as well as other
problems on the job, he engages in discussions with
the shop steward. It is therefore found that at all
times here relevant Rinaldi was a statutory super-
visor, with authority to adjust grievances and to
represent Gough in negotiations with union
representatives concerning grievances and other
on-the-job problems.
There have been several cases dealing with the
question whether the imposition by a union of a
fine on an employer representative authorized to
adjust grievances violated Section 8(b)(1)(B).4 In
all these cases the Board found a violation. How-
ever, except for the Horner case, supra, which is
discussed below, they involved fines imposed on a
supervisor because of his alleged violation of a col-
lective-bargaining contract, and the Board's ra-
tionale in those cases, as enunciated in Northwest
Publications, supra, was that the respondent union's
action was designed to compel the supervisor "to
take pro-union positions in interpreting the collec-
tive-bargaining agreement." It is apparent from this
that the Board was influenced in those cases by the
fact that the supervisor was disciplined for an al-
' Nordivest Publications, Inc , 172 NLRB No 252, The Toledo Blade
Company, Inc., 175 NLRB 1072, General Metal Products, Inc, 178
NLRB 139, A. S Horner, Inc., 177 NLRB No. 76
LOCAL UNION NO. 453 , PAINTERS 189
leged misinterpretation or misapplication of the
contract, and that the natural and foreseeable ef-
fect of such discipline was that, in resolving future
grievances over alleged contract violations, the su-
pervisor would be reluctant to take a position ad-
verse to that of the union, and that his usefulness to
the employer as his representative in the area of
grievance adjustment would therefore be destroyed
Here, however, there was no contention by
Respondent that Rlnaldi violated any contract
provision by failing to register with it before going
to work at the ETS job, but only that he failed to
comply with the union rule described above. So far
as the record shows, the only purpose of that rule
was to facilitate the administration by Respondent
of the hiring hall provisions of Respondent's con-
tract and the collection of certain union assess-
ments.' Unless the Board is prepared to say that the
fining of a supervisor by a union for whatever
reason, including, for example, late payment of
dues or disruption of a union- meeting, tends to im-
pair his effectiveness as an employer representative,
it is not clear how the fine imposed on Rinaldi for
alleged noncompliance with Respondent's registra-
tion requirement may be held to violate Section
8(b)(1)(B). The General Counsel attempts to
analogize this case to the Horner case, supra, where
the Board found a violation of 8(b)( 1)(B) in a
union's efforts to enforce against a supervisor, who
was a member of that union, a rule which, in effect,
forbade him to work for his nonunion employer
without a referral card from the union, which
would not have been forthcoming so long as the
employer remained nonunion. Thus, the union was
there seeking to discipline the supervisor Tor
remaining at work and the only way he could have
avoided the fine was to quit work. The Board there
stated: "It is clear, therefore, that compliance by
[the supervisor]with the the Respondent 's demands
would have had the effect of depriving the Com-
pany of the services of its selected representative
for the purposes of collective bargaining or the ad-
justment of grievances."
There is no comparable situation here. All that
Rinaldi had to do to satisfy Respondent was to give
it advance notice by telephone or otherwise that he
was starting a particular job or, in case of a strike,
resuming that job after the strike was over.6
The General Counsel points to certain language
of the Board in Horner stressing the fact that there
the basic dispute was between the employer and the
union over organization of the employees and that
the union's quarrel with the supervisor was merely
incidental to that dispute. The General Counsel
urges that here, too, the primary dispute was
between Respondent and Gough over the legality of
Respondent's tactics in support of its sister local's
strike, and that the disciplinary action against
Rinaldi was in retaliation for Gough's filing of
charges against Respondent because of such tactics.
Even if that were so, which I do not decide, it
would not aid the General Counsel's case.
The Board's reference in Horner to the underly-
ing dispute between the union and the employer
was addressed to the contention of the respondent
union in that case that it was distinguishable from
the San Francisco-Oakland Mailers' case' because
the supervisor in Horner was disciplined for his con-
duct as a union member and not for his conduct as
a supervisor. In reply to this, the Board pointed out,
inter alia, that in Horner the "basic dispute" that
led to the fine was "not entirely an intra-union
matter but stemmed from the fact that the Com-
pany did not have a collective-bargaining agree-
ment with the Respondent .... Thus . the under-
lying dispute was between the Respondent and the
Company and not between the Respondent and one
of. its members." It is inferred from this that the
Board thought the nature of the dispute significant,
because the Board deemed an unlawful intent or
purpose to be an essential ingredient of a violation
of Section 8(b)(1)(B), and felt that it would be
precluded from finding such unlawful purpose if the
fine was imposed only because of the supervisor's
conduct as a union member rather than because of
an overriding animus toward the employer.
Accepting this analysis, one can agree that, if the
instant fine had been levied against Rinaldi in
reprisal for Gough's resort to the Board and the
court, the fact that the fine was ostensibly imposed
because of Rinaldi's conduct as a union member
would not be an obstacle to finding a violation of
Section 8(b)(I)(B) here. However, such proof of
employer animus would go only to Respondent's
state of mind, and Section 8(b)( I )(B) does not in-
terdict a mere state of mind but requires, in addi-
tion, a showing of conduct calculated to coerce an
employer in the selection of a bargaining or
grievance representative. Such showing was sup-
plied in Horner by proving union action that tended
' Although its contract with Gough appears to make the Respondent the
exclusive, primary source of referrals, there was no contradiction of Fiu-
menero's testimony that it is his practice to permit an out-of-tows.
employer like Gough to bnng in one of his own men for every three men
supplied by the Respondent and that Fiumenero has to know in advance
how many men such employer is dispatching to the job so that Respon-
dent can refer enough men to preserve that ratio It also appears from
the testimony of Jones, business agent for Local 301, that the report-
ing requirement facilitates the collection of "administrative dues" from
members of other locals working within a local's jurisdiction
" Here, the gravamen of Rinaldi's offense in the eyes of Respondent was
that he had returned to the ETS job after a work stoppage without advance
notice to Respondent There was no impediment to his continuing to work
on that job after July 25, once Respondent had notice of his reassignment
thereto Such notice would be effective for the duration of the job , at least
barring further extended interruptions
The General Counsel attempted to show that Rinaldi had given proper
advance notice to Respondent of his assignment to the ETS Job in Februa-
ry, when the job commenced, and that Respondent's insistence that he give
it notice again after the end of the strike was not justified by its rule How-
ever, the issue here is not whether Respondent properly construed its own
rule or whether the fine was a valid one under Respondent 's constitution
and bylaws, but only the tendency of the fine to coerce Gough in the selec-
tion of a representative
' Cited above as the Northwest Publications case
190 DECISIONS OF NATIONAL
to deprive the employer entirely of the supervisor's
services, and in the other cases cited above by
proving union action that was so closely related to
the supervisor's function of administering the con-
tract as to be calculated to convey to him the
message that any further disagreement between him
and the union in that area would invite further
reprisals. Neither of these factors is present here."
" In his brief, General Counsel argues that the Board should find a viola-
tion here because Rinaldi was fined for acting in an area in which he was
authorized to act as Gough's representative vis a vis Respondent In this
connection , the General Counsel cites the fact that Rinaldi had in the past,
in his capacity as an agent of Gough, called Respondent 's office before the
start of a job to report the number of men who would be sent to that job by
Gough and that Respondent had treated such calls as satisfying its registra-
tion requirement The General Counsel argues from this that Gough had
delegated to Rinaldi the function of construing , and complying with, such
requirement and that, in deciding not to call Respondent before starting
work on July 25, Rmaldi was exercising the foregoing delegated function
There are two difficulties with this thesis Firstly, since , the registration
rule was not part of the Respondent 's contract , it is not apparent how com-
pliance or noncompliance wilt that rule could become the subject of a
grievance Secondly , there is insufficient basis for inferring that Rmaldi was
acting in a representative capacity in deciding not to report to Respondent
LABOR RELATIONS BOARD
It will accordingly be recommended that the
complaint be dismissed.
RECOMMENDED ORDER
It is hereby ordered that the instant complaint be
dismissed in its entirety.
his own presence on the job on July 25 Respondent 's rule in terms placed
the responsibility for such a report on the individual employee While
Respondent had acquiesced in Gough's occasional assumption of this
responsibility and its delegation thereof of Rinaldi, it would be straining at
a gnat to say that his decision not to report his own presence on the job was
not one he reached as a union member but one that he reached in his
capacity as a representative of Gough with regard to reporting an in-
dividual employed by Gough-namely, himself It is obviously more
realistic to treat Rmaldi as one person rather than two and to presume that
his decision not to make any report about himself was reached as a union
member in discharge of the responsibility imposed upon him as such by the
union rule
(It should, perhaps, be noted that Rmaldi and Catafe were fined in
separate proceedings for their individual violations and there is no
evidence nor contention that Rmaldi was disciplined for failing to register
Catafe )