Martin-Peterson sheet Metal Co.

National Labor Relations Board - Board Decisions

Aug 28, 1979

244 N.L.R.B. 682 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers Local 35 (Martin-Peterson
Sheet Metal Company) and Lawrence J. Ruffolo.
Case 30 CB- 1319
August 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI-LLO
On April 25, 1979. Administrative Law Judge Wal-
ter H. Maloney, Jr., issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief. The Union filed an
answering brief to the exceptions filed by the General
Counsel.
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.
The Board has considered the record and the at-
tached 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
FINDINOS (OF FA(VI
SIAIEMFNr OF IIIE CASt
WAI.rER H. MALONIEY. JR., Administrative Law Judge.
This case came on for hearing before me in Racine. Wis-
consin. upon an unfair labor practice complaint.' issued by
the Regional Director for Region 30. which alleges that Re-
spondent Sheet Metal Workers Local 35 (herein sometimes
called Union) violated Section 8(b)(1)(A) of the Act. More
particularly the complaint alleges that Respondent
' The principal docket entries herein are as follows:
Charge filed herein by Lawrence J. Ruffolo. an individual, against
Respondent on June 13, 1978; complaint issued by the Regional Direc-
tor, Region 30, on August 4. 1978; Respondent's answer filed on August
16. 1978; hearing held in Racine, Wisconsin, on January 15. 1979; briefs
filed by the General Counsel and Respondent with me on February 20.
1979.
2 Respondent admits. and I find, that Martin-Peterson Sheet Metal Com-
pany is a Wisconsin corporation which maintains its principal place of busi-
breached a fiduciary duty it owed to Charging Party Law-
rence J. Ruffolo as his collective bargaining representative
by telling Ruffolo that he could not go to work for the
Martin-Peterson Company unless he paid the Union a sup-
plemental initiation fee which the union business agent
claimed was due and owing. Respondent denies that such a
statement was made and also claims that, if it was made, it
does not constitute a violation of the Act. Upon these con-
tentions the issues herein were joined.
I. IH UNFAIR L.ABOR PRA( IRI(S AI.I :G:I)
Lawrence J. Ruffolo has been a journeyman member of
Respondent Union since 1960. At the time he entered he
paid a standard initiation fee of $236.50 which was imposed
upon construction employees by the Respondent's Execu-
tive Board.' For many years, he worked as a journeyman
sheet metal worker in the Respondent's territorial jurisdic-
tion in southeast Wisconsin. During that time. Ruffolo be-
came acquainted with the major sheet metal contractors in
that area. including the Martin-Peterson Company. In Oc-
tober 1976 Martin-Peterson had a layoff which put him out
of work.
Through the auspices of Respondent. Ruffolo obtained a
job in a unionized production shop operated by the Illinois
Range Company, which assembles commercial kitchen fix-
tures for McDonald's. Respondent has a contract with Illi-
nois Range. but at a lower hourly rate than its outside con-
struction members receive. Because they are paid at a lower
scale, union members working in the so-called kitchen unit
pay monthly dues which are one-half the dues paid by con-
struction workers. When he left Illinois Range. Ruffolo was
paying $17 a month in dues. as contrasted with the $35 per
month paid by members who were earning the construction
scale.'
On February 3, 1978. Illinois Range temporarily laid off
13 of its 35 employees, including Ruffolo. In January, its
superintendent gave these employees advance notice of the
impending layoff. When the layoff notice was given, Ruf-
folo phoned Ed Nowacki. general superintendent of Mar-
tin-Peterson. and asked Nowacki for a job. Nowacki told
him he had a job available and instructed Ruffolo to report
to the Martin-Peterson jobsite at Lakeland Hospital in Elk-
horn, Wisconsin. Ruffolo told Nowacki that he would first
have to check with Schwartz to obtain clearance. Nowacki
reportedly told Ruffolo to call him as soon as he obtained
clearance.
Before the layoff took place at Illinois Range. Schwartz
visited the premises to speak with Union members who
ness in Kenosha. Wisconsin. It is engaged in the building and construction
industry. During the preceding twelve months. a representative period, Mar-
tin-Peterson purchased and received directly from points and places outside
the State of Wisconsin goods and materials valued in excess of $50.000.
Accordingly, it is an employer engaged in commerce within the meaning of
Sec 2(2). (6), and (7) of the Act. Respondent is a labor organization within
the meaning of Sec. 2(5) of the Act.
I Ruffolo thought that the original fee was $285 or $300. but he was not
sure. I credit the more certain testimony of Respondent's Business Manager
Charles Schwartz. I agree with the General Counsel that the amount (of the
original initiation fee is immaterial to the issue in this case.
' Respondent Union has about 270 members. Approximately 200 work in
the construction unit, while the balance are employed in the kitchen unit.
244 NLRB No. I I I
682
SHEET METAL WORKERS I.OCAL 35
were going to be laid off. On this occasion. Ruffolo told
Schwartz that he had found a job with Martin-Peterson.
whereupon Schwartz replied that he would have to pay the
Union a sum of money to bring his initiation fee up to
standard. I do not credit Ruffolo that the sum was $600,5
but I do credit his testimony to the effect that Schwartz told
him that he could not go to work at Martin-Peterson until
the amount he owed was paid. namely the difference be-
tween what Ruffolo paid years ago as an initiation fee and
the current initiation fee for construction workers which is
$600. Ruffolo became very angry, began to swear, and re-
minded Schwartz that he had paid a construction initiation
fee years ago. Schwartz told Ruffolo that if he did not like
what he was being told, he could appeal to the Interna-
tional in Washington. On February 16, Ruffolo took
Schwartz's advice and wrote a letter of complaint to the
Sheet Metal Workers' International in Washington. He also
phoned Nowacki and told him that he could not report to
work at the Martin-Peterson job because Schwartz would
not let him work.
Ruffolo never heard directly from the International. He
was out of work for about 3 months. Late in April. Ruffolo
received a call from Schwartz who informed him that he
could go to work for Martin-Peterson. He reportedly added
that Nowacki would get in touch with him. Rather than
wait for Nowacki to call. Ruffolo phoned Nowacki. who
told him to go to work at the Lakeland Hospital. Ruffolo
continued to work there until he was transferred by Martin-
Peterson to another job. At no time has Ruffolo paid the
Union any portion of the supplementary initiation fee re-
quested by Schwartz.
It. ANALYSIS AND (ONCLt SIONS
There is no evidence in this record that Respondent
maintains any exclusive hiring hall or clearance agreement
with any contractors who employ sheet metal workers. The
Union insists that its members and others are free to seek
work on their own and are not required to obtain clearance
from the Union before being hired. The only evidence in
the record which suggests the existence of a clearance re-
quirement was uncorroborated and conflicting testimony
by Ruffolo to the effect that it was standard procedure.
when the business agent did not place a man in a job, for
the employee to phone in to tell the business agent he was
working. Ruffolo also testified that. to his knowledge, Mar-
tin-Peterson would not hire him without Union approval,
but there is no corroboration of his contention in this re-
gard from any source, including Martin-Peterson. The testi-
mony given by Ruffolo of his conversations with Nowacki
indicates that Ruffolo did not want to go to work without
The constitution and bylaws of the International provides for two initi-
ation fees, one for production or job shop employees and a larger fee for
construction workers. The constitution and bylaws also lays down a require-
ment that production workers who transfer to construction must then pay
the Union the difference between the production initiation fee and the con-
struction initiation fee. The document is silent with respect to the obligation
of an individual such as Ruffolo, who paid a construction initiation fee,
transferred into a production shop. and then transferred back to construc-
tion. At the present time. the standard initiation fee for construction workers
in this local is $600, the amount which Ruffolo claims was demanded from
him b Schwartz.
Schwartz's approval. but it did not establish that Nowacki
would not hire him without union clearance. When asked
who imposed the requirement that sheet metal workers no-
tify' the business agent when they obtain jobs through in-
dependent sources, Ruffolo states that this was his idea. I
conclude that the General Counsel has failed to establish
the existence of an exclusive hiring hall contract or arrange-
ment or a prehire clearance requirement between Respon-
dent and unionized sheet metal contractors. Indeed. the
General Counsel concedes the absence of an exclusive hir-
ing arrangement and contends that a violation alleged in
the complaint lies irrespective of whether such an agree-
ment or arrangement ever existed.'
The General Counsel alleges that Respondent violated
Section 8(b)(1)(A) of the Act, which makes it an unfair la-
bor practice for a labor organization "to restrain or coerce
employees in the exercise of rights guaranteed in Section 7"
of the Act. In contending that Schwartz's statement to Ruf-
folo at Illinois Range constitutes such a violation, the Gen-
eral Counsel argues that the attempt by Schwartz to impose
an additional initiation fee upon Ruffolo before the latter
could go to work amounts to a breach of a fiduciary duty
owed by a union to its members, and a violation of its duty
of fair representation, a duty which has been fashioned by
the Board in a line of cases which began with Mitanda Fuel
Company. Inc., 140 NLRB 181 (1962). enforcement denied
326 F.2d. 172 (2d Cir. 1963). For the most part, those cases
deal with the refusal of a union to process a grievance for a
member, or with the perfunctory handling by a Union of a
grievance filed by an employee who is out of favor. Local
705, Teamsters (Associated Transport. Inc. . 209 NLRB 292
(1974): SEIU (Convacare of Decatur, etc.), 229 NLRB 692
(1977). In any event, a violation of the Act premised upon
the breach of a duty of fair representation involves some act
or omission on the part of a union in performing some duty
involved with representation: i.e., when acting as an inter-
mediary between the member and his employer or prospec-
tive employer. It does not cover every failing. excess, or
deficiency of a union official in performing his duties, nor
does it cover every dispute between a union and a member
over whether the member is delinquent in the payment of
his dues and fees.
Congress explicitly placed a proviso on Section
8(b)( l)(A) to the effect that "this paragraph shall not impair
the right of a labor organization to prescribe its own rules
with respect to the acquisition and retention of membership
therein." This language is broad enough to prevent miscon-
struction or a misapplication of the Union's constitution
and bylaws from rising to the level of an unfair labor prac-
tice. The present case presents a situation in which a dis-
pute arose between a member and his union concerning
whether he owed an additional initiation fee. Such a dispute
is manifestly an internal controversy and one covered by
the proviso. It is true Schwartz told Roffolo he could not go
on a job unless he paid the Union an additional initiation
fee. However, Schwartz made no effort to keep Ruffolo
, An 8(bX2) charge was filed b) the Charging Party against the Respon-
dent and was dismissed by the Regional Director. Normall) an 8(b)2) viola-
tion is alleged b) the General Counsel when an employee's employment
nghts are being enmeshed. to his detriment, with his organizational or mem-
bership rights.
683
I)l:(ISIONS OF NATIONAL LABOR RELATIONS BOARD
from working and. mIost important. had no power to pre-
vent Ruflhlo from working on a union job in the absence of
anl hiring hall or clearance arrangements between the Re-
spondent and Union contractors. By Ruffolo's own admis-
sion, it was his idea that he should not attempt to go to
work in light of Schwartz's statement. In determining the
impact of a statement, the Board normally administers the
Act in accordance with objective criteria, not the subjective
feelings or misgivings of the individual to whom a state-
ment is addressed. By every objective criteria, when
Schwartz spoke to Ruffolo, the latter's employment rights
remained insulated from his organizational rights, despite
the content of the statement. Schwartz was not in the pro-
cess of acting as an intermediary between Ruffolo and any
prospective employer. In examining the statement in the
light of the language of Section 8(b)(1)(A), it is clear that
Schwartz did not threaten Ruffolo with either physical or
economic harm when he spoke to him at the Illinois Range
plant. He made no statement which would indicate any
intention of trying to prevent Martin-Peterson or anyone
else from hiring Ruffolo. Indeed, on that occasion,
Schwartz could hardly speak to Ruffolo at all, since his
initial words resulted in a tirade on Ruffolo's part which
made meaningful discussion of the dispute impossible.
When Ruffolo elected not to work following Schwartz's
statement, he was observing a self-imposed limitation, not a
restriction which his prospective employer imposed, nor a
restriction that the Union had any power to impose, nor a
restriction which could reasonably be engendered by fear of
reprisal if he went ahead and started to work for Martin-
Peterson as he had planned to do. Whether Ruffolo actually
owed the Respondent the money in question or whether
Schwartz had misconstrued the provisions of the Union's
constitution and bylaws is an internal matter and one which
apparently was resolved internally. It was Ruffolo who per-
mitted the matter to spill over into his employment status,
and it is he who should bear the consequences of his action.
Upon the foregoing findings of fact and upon the entire
record herein considered as a whole, I make the following:
CO()N( IUSIONS O() LNs.
I. Martin-Peterson Sheet Metal C'ompany is an em-
ployer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2). (6). and (7)
of the Act.
2. Respondent Sheet Metal Workers Local 35 is a labor
organization within the meaning of the Act.
3. Respondent herein has not violated Section 8(b)( )(A)
of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record herein considered as a
whole, and pursuant to Section 10(c) of the Act, I make the
following:
ORDER7
It is hereby recommended that the complaint be, and it
hereby is, dismissed in its entirety.
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.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, he adopted hy the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
684