United Brotherhood of Carpenters

National Labor Relations Board - Board Decisions

Jan 17, 1979

239 N.L.R.B. 1370 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, Local 49 and Scott and Duncan, Inc. Case
I -CB-3291
January 17, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MlMBERS JtNKINS.
PENELLO AND TRUESDA[.IE
On July 5, 1977, Administrative Law Judge Claude
R. Wolfe issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed an answering brief.
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, as
modified herein, and to adopt his recommended Or-
der.
We agree with the Administrative Law Judge that
Respondent Union did not violate Section 8(b)(1)(A)
and (2) of the Act by seeking to exercise its right
under the collective-bargaining agreement to place a
steward on a jobsite. However, we base our dismissal
of the complaint upon application of the rationale
expressed in District Council No. 2 of the Brotherhood
of Painters and Allied Trades, AFL-CIO (The Paint-
smiths, Inc.), 239 NLRB 1378, issued this day, rather
than upon the reasons given by the Administrative
Law Judge.
The essential facts are not in dispute.
Scott and Duncan, Inc., herein also called the Em-
ployer, is engaged in the business of performing fin-
ished carpentry work as a contractor. Between May
and December 1975.2 Scott and Duncan was a car-
pentry subcontractor at the St. John's Hospital job-
site in Lowell, Massachusetts. The general contractor
on the job was the Thomas T. O'Connor Company.
Both Scott and Duncan and O'Connor were subject
to the same collective-bargaining agreement with Re-
spondent, which covered carpenters employed by
each firm on the job.
Bernard Nealon, a carpenter employed by O'Con-
nor, served as the steward for all the carpenters
The General Counsel and the Charging Party have excepted to certa.in
credibility findings made hb the Administratise I aw Judge It I the Board',l
established police not to overrule an Adminlstraltise I.law Judge', re-,lu
tions with respect Ito credibiliy unless the clear preponderalnce of .11al .1 the
relevant evidence consinces us that the resolutlil s art incorrect S.taiodll
Dry Wall Products, Inc., 91 NLRB 544 (1950). end rl 18 21Ad 362 3d ( ir
1951). We have carefull? examined the record and fiid n.) baios for rcscr,-
ing his findings.
All dates below are in 1975. unless otherwlse indlcalted
working on the job from January 1974 until he was
laid off on November 7, 1975, because O'Connor's
carpentry work on the jobsite was substantially com-
plete. Sometime before Nealon's layoff, Richard Mc-
Innis. Respondent's business agent, asked the
Employer's carpentry foreman, Joseph Fallo, to hire
Nealon, because Mclnnis wanted Nealon to continue
to act as job steward after being laid off by O'Con-
nor. Fallo told Mclnnis that he could not employ
Nealon, because he had no work for him, and that in
fact he would be laying off one of the three carpen-
ters then working on the job for Scott and Duncan in
a week. However, Fallo informed Mclnnis that he
would advise him if he needed any men.
On December 8. O'Connor recalled Nealon to
work, but Nealon was given notice the following day
that he would again be terminated for lack of work
on December 10. On December 9, Fallo called back
to work carpenter Ed Bretton, whom he had laid off
in November, to perform about 5 days' worth of car-
pentry work, beginning December 10. At the time he
rehired Bretton. Fallo was aware that Nealon had
again been hired by O'Connor but did not know for
how long. Fallo hired Bretton because Bretton hap-
pened to be on the jobsite looking for employment
when an authorization for additional work came
through and because he knew that Bretton was a
good worker.3 Bretton reported to thejobsite on De-
cember 10 and worked for about 6 or 7 days.
Later in the day on December 9, after Nealon had
been told by O'Connor that he would be laid off on
December 10 and after Fallo had rehired Bretton,
Mclnnis paid a visit to Fallo's office. Mclnnis told
Fallo that he wanted him to hire Nealon, as he need-
ed a steward on the job. Fallo informed Mclnnis that
he could not hire Nealon, because he only had
enough work for one more man for 5 days and Fallo
had hired Bretton earlier in the day for the task. Mc-
Innis replied that if Fallo did not hire Nealon no one
else would go to work. Fallo told Mclnnis to do what
he had to do. During this conversation, Mclnnis re-
minded Fallo of their talk in November regarding
employment for Nealon. Later during the afternoon,
O'Connor learned that Nealon was seeking work
with Scott and Duncan at a time when Nealon was
still employed by O'Connor. It was therefore agreed
among O'Connor, Mclnnis, and Nealon that Nealon
would leave the O'Connor payroll at 4 p.m. that day.
The next morning, McInnis and Nealon met Bret-
ton at the jobsite as he reported to work and con-
versed with him for almost an hour before Bretton
went to work. Fallo then again told McInnis that he
I rirdct the Ierils of the lahor cintract the Ilmplh>ver retained conlrrol
scer hlirlln 1 thai it aI ,;is iOtI relquired tii put back to work those laid 'off in
order of ren irl, l noir to accepi jbh referrals fronm Respondent
1370
UNITED BROTHERHOOD OF CARPENTERS. LOCAl 49
had no work for Nealon. and Mclnnis and Nealon
thereupon left the jobsite.
Also on December 10, Mclnnis sent the Employer
a telegram which requested a meeting the next day to
discuss Scott and Duncan's alleged violation of the
stewards clause of the collective-bargaining contract,
which provided, "The Business Representatives shall
furnish or appoint a steward for ajob or a shop when
the Business Representative deems it necessary." At
the meeting, which was held as requested on Decem-
ber 11, McInnis insisted that he was merely exercis-
ing his right under the contract to furnish the Com-
pany with a steward for the job. Ronald Scott.
president of the Employer, told Mclnnis that he
would have to dismiss Bretton in order to hire Neal-
on. McInnis continued to insist that, pursuant to the
appointment-of-steward provision in the contract,
Nealon be hired by Scott and Duncan.
Thereafter, at the Union's request, an arbitration
hearing was held on May 26, 1976, to resolve the
issue. On July 9, 1976, the arbitrator issued his deci-
sion, in which he found that the grievance was arbitr-
able and that the Employer had violated the appoint-
ment-of-steward clause in declining to hire Nealon at
Mclnnis' request. Pursuant to the award of the arbi-
trator, Scott and Duncan, under protest, paid Nealon
backpay in the amount of $960 and also paid $62.40
into the health and welfare fund, $57.50 into the pen-
sion fund, and $16.32 into the apprenticeship fund of
the Union. In making his award, the arbitrator con-
fined himself solely to interpreting the contract, and
expressly refused to pass upon any unfair labor prac-
tice issue.
On May 6, 1976, the Employer filed the unfair la-
bor practice charges which are the subject of this
proceeding, and on November 15, 1976, the G(eneral
Counsel issued a complaint in the instant case.
The terms of the contract plainly grant the Union's
business agent the authority to "furnish or appoint"
stewards for jobs when he considers it necessary. in
this case, Nealon had functioned as the carpenter
steward on the jobsite for nearly 2 years when he was
laid off in November 1975, as O'Connor's carpentry
work came to an end. Because there were carpenters
still employed at the jobsite, Mclnnis sought to retain
Nealon as steward by invoking the appointment-of-
steward clause in the contract with Scott and Dun-
can. In so doing, Mclnnis was exercising the legiti-
mate right of the Union under the appointment-of-
steward clause in the collective-bargaining agree-
ment.
Our dissenting colleague, however, continues to fo-
cus on the incidental effect of the Union's actions in
exercising this right, and interest, in enforcing its col-
lective-bargaining agreement by pointing to the lay-
off of one union member to secure a steward. The
point that we make in these cases is a rather simple
one. It is essentially the same as in the superseniority
cases which hold that provisions in collective-bar-
gaining agreements which provide top seniority to
union stewards limited to layoff and recall rights4
- serve a legitimate statutory purpose.5 In reaching
this conclusion, the Board has acknowledged that
any discrimination as (such superseniority provi-
sion) may create is simply an incidental side effect of
a more general benefit accorded all employees." Dai-
rvcat, 219 NLRB at 658. That rationale is equally
applicable here and compels a conclusion contrary to
that of the dissent.
Given the esta'lished legitimacy of the Union's
objective. i.e., to enforce its appointment-of-steward
clause, it becomes irrelevant whether there might
have been some other action it could have taken. It is
not up to this Board to determine how best a union
should protect its legitimate interests, and we would
be intruding too far into its internal workings were
we to do so.
Thus, contrary to the implication made in the dis-
sent, it is not necessary to presume that Mclnnis
wanted an experienced steward on the job but merely
to recognize that his objective was a legitimate one
sanctioned bh the contract. The fact that another of-
ficial was available on the jobsite to police the agree-
ment is irrelevant, since under that agreement it is
the Union's right to designate whom it will choose to
be its steward, and it is not the function of the Board
to evaluate the severity of the Union's problems.
These are matters for the Union's own determina-
tion, and there is no basis for us to attempt to substi-
tute our judgment in this matter for that of the
Union. Acceptance of the legitimacy of this belies
ans contention that the Union attempted to secure
employment for Nealon for discriminatory purposes.
AccordinglI. we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be. and it hereby is, dis-
missed in its entirety.
4 [or Ihe reIin, g 'rel in hi. tdlssenilne opinion In larileal ( l;prarllnl
i . 219 \L RB h6h ( Iq7i ( hairnimn Ianning would not find clauses pro
sidln- iuperenloril for in,,n steards which go hesond laofl and recall
ti he presu ptiln isl ins.lld
Meilheur I rilexd.i also would not find clauses pro.siding supersentiril
[or [unin teiw rd, I, be pre illplisels Insahd. for the reasons stated in his
searilrtc prti al i 4 Ir / 1 . o. l- ( ,,, 219 NI RB 14(07 ( 1979)
sec )a... e if ( .,,[y r/-J~ m ./,/p-
1371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMB-R Pt.N-LI.O. dissenting:
The facts in this case are not complicated and dis-
close a clear violation of Section 8(b)( )(A) and (2) of
the Act by Respondent.
Briefly, Respondent Union's representative, Rich-
ard Mclnnis, attempted to cause the Employer, Scott
and Duncan, Inc., a carpentry contractor, to hire
Bernard Nealon as steward on a jobsite in Lowell.
Massachusetts. Invoking a clause in the collective-
bargaining contract with the Employer giving the
union business representative the right to "furnish or
appoint" a steward for jobs, Mclnnis insisted, to the
point of threatening a strike, that Scott and Duncan
hire Nealon. McInnis demanded that Nealon be em-
ployed, even though hiring him would have required
Scott and Duncan to lay off carpenter Ed Bretton,
who was already working on the site, and although
another carpenter on the jobsite, an officer of Re-
spondent, was available to act as steward.
The majority finds, however, that Mclnnis' effort
to obtain employment for Nealon served a "legiti-
mate" union objective and represented a valid appli-
cation of the appointment-of-steward clause in the
contract. In so deciding, the majority relies upon Dis-
trict Council No. 2 of the Brotherhood of Painters and
Allied Trades, AFL-CIO (The Paintsmiths, Inc.),6 is-
sued this day which repudiates settled precedent in
this area of law. My dissent in that case will not be
repeated here, but some observations need to be
made in connection with the instant proceeding.
The Board has held consistently that a union vio-
lates Section 8(b)(1)(A) and (2) of the statute when it
causes, or attempts to cause, the discharge of an em-
ployee, even if the labor organization is merely seek-
ing to replace one union employee with another, ex-
cept in special circumstances. The Board recently
explained the rationale underlying this principle in
Bricklayers Local No. 7, Bricklayers, Masons and
Plasterers' International Union of America, AFL-CIO
(Masonry Builders, Inc.),' and noted only two excep-
tions to the general rule:
The presumptive effect of a union's causing
an employee to be discharged is the encour-
agement of union membership. This is so be-
cause such action dramatically demonstrates the
union's power over the employee and its ability
to affect his livelihood. Given the presumptive
result, the union violates Section 8(b)(2) and
(I)(A) unless the disruption of employment was
pursuant to the enforcement of a valid union-
security contract provision or was necessary to
the performance of the union's representative
functions. [Footnote omitted.]
b 239 NLRB 1378.
7224 NLRB 206 (1976).
212 NI.RB6i (1974)
Thus, Respondent's attempt to cause the layoff of
Bretton by threatening to strike the Employer unless
it hired Nealon in his place can be regarded as lawful
only if it was necessary for the performance of the
Union's "representative functions." In Local Union
798 of Nassau Country, New York; Brotherhood of
Painters and Allied Trades, AFL-CIO (Nassau Divi-
sion of the Master Painters Association),8 which was
overruled today by The Paintsmiths, supra, the Board
found that a union violated Section 8(b)(1)(A) and
(2) when it struck to obtain, and did obtain, a con-
tract clause allowing it to furnish a steward from
among its unemployed members to serve on all but
one-man jobs. We decided that this provision "gives
the Respondent significant control over the hiring of
at least one employee on each job, excluding one-
man jobs, and thereby inherently encourages union
membership." ' The Board also found "no compel-
ling reason why Respondent required control over
the hiring process in order to maintain proper em-
ployee representation" t0 and noted that internal
union discipline and improved training were ade-
quate to correct any deficiencies in the performance
of their union functions by stewards already em-
ployed.
In this case, Respondent not only sought to com-
pel the Employer to hire an individual, Nealon, from
outside his current work force so that he might act as
steward but also attempted to have employee Bretton
dismissed to create a vacancy for Nealon. Thus, Re-
spondent's actions inherently encouraged union
membership in two distinct ways. Furthermore, Re-
spondent had no legitimate interest in securing
Nealon's hiring so he could become steward, for the
reasons stated in Painters, supra, and particularly in
view of the fact that one of Respondent's officers was
already employed on the jobsite and was thus capa-
ble of performing stewardship duties.
The majority, however, assumes its conclusion by
labeling as "legitimate" Respondent's effort to re-
quire the Employer to hire Nealon. My colleagues
thus save themselves the trouble of inquiring whether
Respondent had adequate justification for attempt-
ing to place Nealon on the job or whether it was
merely seeking to acquire partial control over the hir-
ing and firing of employees. Conscious of the inher-
ent encouragement of union activities which flows
naturally from discriminatory union involvement in
the employment relationship, the Board has hereto-
fore limited union intrusion in such matters to un-
usual circumstances."
Ild at 16 617.
Id .a 617
See, in regard to appointment of stewards. 4shler. Hc(ha [hnt (i,
210 NLRB 32. 33 (1974)., where we found lawful a union's requiring an
employer to hire a steward and lay off an employee because the union had
a "legitimate and salid concern for placing an experienced stewarid on a
potentially troublesome jobsile "
1372
UNITED BROTHERHO()t) OF CARPENTERS. LOCAI. 49
Seeking some precedent for their unprecedented
result, the members of the ma.lorit incorrectl' rels
upon l)airvlcl (toopcrauiic Inc.,12. where w'te held tha;t
contractual clauses granting union stewards super-
seniority rights going beyond la'off and rectall are
presumptively unlawful. The Board in Darc/tca rea·f-
firmed that an essential policy of the Act is to insu-
late emplosees' job rights from their union acti il-
ties.' We did find legitimate clauses in
collective-bargaining agreements allowing supersen-
iority to union stewards restricted to layoff and re-
call, because such a clause "furthers the effective ad-
ministration of bargaining agreements on the plant
level by encouraging the continued /press mc of the
steward on the job." 14 [Emphasis supplied.j I he
Board stressed. however. that the burden of estab-
lishing the legitimacy of a clause giving stewards su-
perseniority in regard to matters others than laoff
and recall would be upon the party asserting the le-
gality of the provision.
In this case, the issue is not one of retraining an
already employed steward on the job to prevent dis-
ruption of the administration of the contract but
rather is whether a union may compel an employer to
hire a steward from outside the work force even at
the cost of an employee's job--in the absence of any
showing that it is necessary for the performance of
the union's representative functions. Analogous to
the Dairylea ruling that the party asserting the legali-
ty of a contract clause giving stewards superseniority
rights not limited to layoff and recall bears the bur-
den of demonstrating its legitimacy. Respondent
must establish the propriety of its exercise of its con-
tractually based right to appoint stewards from out-
side the Employer's work force. Mclnnis did not dis-
close his reasons for demanding that Nealon be hired
to act as steward, either at the time of the occurrence
or thereafter, and thus there is no conceivable basis
upon which to find Respondent's conduct legal.
Contrary to the majority, what is at stake in the
instant case is not Board intrusion into an area gen-
erally considered to be the domain of unions. but
instead union intrusion into the hiring and firing pro-
cess, which the statute seeks generally to keep from
union interference.
12 219 NLRB 656 (1975).
3 Id at 658. citing Radio Offi cers tinon of the ( ,nlnerc, il c h'Fr hcr
AFL [A.H. Bull Steamship (Co/ ;. L R B 347 t S 17 1(1954)
14 219 NLRB at 658.
D1)1 C'ISION
S I \11 ' NI OF IUii CASE
('I AXt I) R %1l i11 Administrative Law Judge: This pro-
ceeding was heard before me at Boston, Massachusetts. on
March 17. 1977. pursuant to a complaint issued on Novem-
her 15. 1976h. and amended oft November 23. 1976. based
on charges filed bh Scott and Duncan. Inc.. on Ma, 6.
1976. 'he complaint alleges that United Brotherhood of
Carpenters and Joiners of America. Local 49. herein called
the Respondent. violated Section 8(bH I )A) and (2) of the
National l.abor Relations Act. as amended, herein called
the Act. in that the Respondent attempted to cause Scott
and D)uncan. Inc.. sometimes hereinafter referred to as the
Employer. to terminate Ed Bretton and hire Bernard Neal-
on because the Resrondent wished to designate Nealon as
its steward and therebh unlawfully attempted to cause
Scott and Duncan to change its hiring policy because of
union considerations. The Respondent filed an answer de-
nsing the commission of unfair labor practices.
Utpon careful consideration of the entire record.' m, ob-
servaftion of the witnesses as they testified, and the post-
trial briefs of the parties. I make the following:
FiNtI)N;s N (AND ( ON( LSIONS
BI SINESS OF THE CHAR(GING E PI OYFR
The complaint alleges, the answer admits, and I find that
Scott and Duncan, Inc.. is, and has been at all times mate-
nal herein, a Massachusetts corporation, with its principal
At he.ring [counsel for the ('harlging Parts proffered sec 45 dealing with
Ihe elecicL n and duties of job stleards, of the trade rules and bhla.,, if
( .rpenter, [)istrict ('ouncil. I o, ell and \'icinil. dated October 25, 19S6,
and ma.de the represent.tiun that this document wa.s procured from Re-
,spondent ' , file im the offiies of the L abor-Management Sersices Adminis-
iration. I S Departnlen t of I.abor I rejtoed the proffer for want if proper
ertifilcation hs Ih.at agens and bhcause of lacik of relevance to the issues ait
hbar I then cilu.ed the dcument to he pla.ied In the rejected exhibils file and
ta',e lea.e to the (Charging Parls to furnish the appropnate certification to
the court reporter and all other parties as an addendum to the rejected
exhlibi no lalter than Ma;rch 23. 1977 I further adslsed counsel for the
(harging PaNrts. on the recird. that the cerilflcallon would then become part
of Ihe rejected exhibhit discussed ahoe hecause I would have rejected the
exhibil exen If it had been properlis ertified ('ounsel for the Charging Pans
did. on larch 23. mi said i ertificaton to the reporter and the other par-
tie, direcll , hut m.liled the certiflcallon to me in care of the replrter. with
the result hath I did nol reccie it until the official record and the exhbilts
.ere ichivered to nl office on March 29 In addilmon to the certification of
the documenl in question. corunsel for the C(harging Parts. iilhoul prior
mollon or notificatlon, at.tached thereto and suhmitted to the reporter and
the parties numerous labor orgrlnliatlon information reports and annual
financial reports filed hi the Respondent. all for the purported purpose of
,honing the ahboe-ne ntioned trade rule, and bsla's to he binding upin
Respondeni This imprudent unilateral inserlion into the exhibit file of the
documents attached to the certification, as well as the mention of them in
the certification, after the record was closed but for the receipt of the certifl-
cation is a totally improper and unauthorized procedures. not to be tolerat-
ed Both the documents and references to them in the certification are re-
jected from the record Furthermore. I adhere to my ruling at hearing that
the trade rules and bylaws described above are not relevant to the issues
before me. with or without appropnate certificatlon of origin. and the) are
hereby again rejected, Additionally, even if the improperl) provided docu-
ments were to be considered on their merits as evidence. I would fiud them
to be likewise irrelevant and inadmissible I shall make no further reference
in my decision to the matters discussed in this footnote
1373
DE('ISIONS OF NATIONAL LABOR RELATIONS BOARD
office located in Roxbury., Massachusetts, engaged in busi-
ness as a carpentry contractor and that Scott and l)uncan
in the course and conduct of its business operations annu-
ally purchases, transfers, and delivers to its Massachusetts
place of business goods and materials valued in excess of
$50,000 which are transported directly to said places of
business from States of the United States other than the
Commonwealth of Massachusetts: and that Scott and
Duncan is, and has been at all times material herein, an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11 tHE ItABOR OR(;ANIZAtION
The complaint alleges, the answer admits, and I find that
the Respondent is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
I1I THE ALLEEFI) I UNAIR IABOR PRACI1(FS
A. The Facts 2
At all times material herein, the Respondent and the
Company were parties to a collective-bargaining agree-
ment containing the following clauses:
ARTICLE IX
Stewards Clause
Section 1. The Business Representative shall furnish
or appoint a steward for a job or a shop when the
Business Representative deems it necessary.
In 1975, when the events giving rise to this case oc-
curred, the Employer was a subcontractor at the St. John's
Hospital site in Lowell, Massachusetts. Thomas T. O'Con-
nor Company, who also has a collective-bargaining agree-
ment with the Respondent, was the prime contractor. Both
firms employed carpenters on the job, and there was one
job steward, Bernard Nealon, covering the entire job for
the Respondent. Nealon was employed as a carpenter by
O'Connor continuously from January 1974 until Novem-
ber 7, 1975, when he was laid off. From November 7 until
December 8, O'Connor had no carpenters of its own work-
ing on the job, and it appears that Nealon was not working
on the job during this period. Other contractors, including
the Employer, were also laying off during this period. The
record does not specifically reveal whether or not there was
any job steward from the Respondent on the job between
November 7 and December 8, but I conclude there was not
because Respondent's later efforts on behalf of Nealon
give rise to a reasonable inference that there was no job
steward at the site until Nealon returned on December 8.
2 The facts set forth herein are based on I s'ynthesis of the crediled aspects
of the testimony of all witnesses. the exhibits. and careful considerat(ion of
the logical consistency and inherent probabilil: of the facts found Al-
though I may not, in the course of this decision. advert to all of the record
testimony or documentary evidence. it has been carefully weighed and con-
sidered. and to the extent that testimony or other evidence not mentioned
herein might appear to contradict the findings of fact. thai evidence his not
been disregarded but has been rejected as incredible. lacking In probalse
worth, surplusage. or irrelevant.
Sometime prior to November 7.' Respondent's business
representative. Richard Mclnnis, visited Scott and
Duncan's carpenter foreman, Joseph Fallo, told him that
Nealon was going to he laid off by O'Connor, and asked
Fallo to advise him arhen Scott and Duncan began hiring,
because Mclnnis wanted to furnish Fallo with Nealon as
the job steward. Fallo told Mclnnis that he would advise
him if he needed any mer.
Nealon was subsequently rehired by O'Connor on De-
cember 8. On December 9, Scott and Duncan received per-
mission from U.S. Plywood Corporation, a manufacturer,
to repair a number of plastic doors that were delaminating.
As a result of this advice from U.S. Plywood, Fallo needed
another man on the job. Carpenter Ed Bretton, who had
been the last man laid off by Fallo, was at the jobsite look-
ing for work at about I a.m., and Fallo told him to report
to work on December 10.4 because the Company had
about 5 davs work for him. Bretton accepted, reported to
work on December 10. and worked for 6 or 7 days thereaf-
ter until his work was completed. There is no contractual
obligation to rehire laid-off employees, except that in the
event of a total temporary layoff the steward is to be re-
called first.
Around noon on December 9, Mclnnis and Nealon
(who was still working for O'Connor but had been told by
O'Connor's carpentry foreman, Cardinal, between 1 I a.m.
and noon that day that he would be laid off on December
10) came to Fallo's office. McInnis asked Fallo to hire
Nealon because he needed a steward on the job. Fallo re-
fused on the ground that he did not need him. Mclnnis
then told Fallo that if he didn't hire Nealon no one else
would go to work. Fallo told Mclnnis to do what he had to
do. Somewhere in the course of this conversation, Mclnnis
reminded Fallo of their November conversation.
I conclude Ihis cons,-rsation occurred prior to November 7 because that
"as the date of Nealonh' lavoffl
4 According to Fallo. he never needed any men after his Novemher con-
,ersatiot with Mclnnis until he rehired Breiton.
I a.nl persuaded that Mclnnls had reminded Fallo of their November
conversatioln because F allo impressed me as being quite evasive on this
oplc., in that he first staled on cross-examination that if Mclnnis reminded
him he doiesll t remember "because there was so many things said." then
doesn't reember if there was ann testimons at the arbitration hearing later
held on the matter to this effect because "ihere were so many things said
aid discussed sou can't remember everything," and then. on redirect. testi-
fied that he doesn't recall Mclnnis' reminding him on December 9 or so
testifying at Iht hearing. and that he "didn't think" that he IFallot testified
at the arbitration that he had promised to hire Nealon Next. in response to
ns) questions thereon his testimony was as follows:
Ji _,i WoL
t
F I have a few questions . . in reference to the last
question that vas ptosed. do you recall there being a conversation with
this gentleman. at31 the jobite. Mr Mclnnis'
Im Wsitxss LIike I suid .there was so man,: controversies going
on It is eris dificutllt i), remember everything.
JI [X , tV I hc answer is that u don' is that right"'
1ii W IMs.s NO,
Ji Ixc W-i tF I am ltust trsing to, make it clear because it is confusing.
Is II true that sou don't recall?
ti Vs 'lls I don't recall. really.
In aIddiiton to Fallio' patent e.asisieness on the subject. I do, not belteve
that I allto w-tuld be likels tt forget whether or not Mclnnis reminded him
int DIecember 9 of their Novelmber counversatloin and I do believe it likels
that Mclntls woulld haec reminded him of the earlier conversation in No-
sember, which Fallo, i, his testimony on direct examination conceded oc-
c. red I urthermore. I note that the arbitrator in his statement of the facts.
recites that Mclnnis. on I)Deember 9 did remind Fallo of their previous
1374
UNITED BROTHERHOOD OF CARPENI E.RS. LOCAL 49
According to O'Connor's Foreman Cardinal, about
2 p.m. on December 9 he saw Mclnnis on the job and
asked Fallo what was going on. Fallo told him that Mc-
Innis was trying to put Nealon on his job and he (Fallo)
couldn't use him without letting Bretton go and didn't feel
it would be right for him to do that. Cardinal immediately
searched out McInnis, who was with Nealon, and asked
him what was going on. Mclnnis replied, "seeing you are
getting rid of Nealon tomorrow. I am trying to get Nealon
on with Scott and Duncan." Cardinal expressed his view
that he didn't think it right that Nealon be working for
O'Connor if he was going to try to get on with Scott and
Duncan. Mclnnis replied "then you'll have to terminate
him as of tonight." Nealon agreed and was removed from
O'Connor's payroll at 4 p.m. on December 9.
The following morning McInnis and Nealon were at the
Scott and Duncan site when Bretton reported to work.
They conversed for almost an hour, and Bretton then went
to work. There is no evidence as to the content of this
conversation, because none of the three testified before me.
After Bretton went to work, Fallo again told Mclnnis that
he couldn't use another man, and Mcinnis and Nealon left
the job. Fallo concedes that McInnis never asked him to
terminate Bretton. I do not credit Fallo's statement, in re-
sponse to a leading question on redirect examination, that
when Mclnnis asked him to put Nealon on the job, appar-
ently on December 9. he told Mclnnis that in order to do
so he would have to lay Bretton off. This does not appear
in his original testimony, wherein he makes no claim of
specific mention of Bretton by name to Mcinnis.
At 9:48 a.m. on December 10, Mclnnis sent a telegram
to Scott and Duncan requesting a meeting at II a.m. on
December II "in reference to Article IX Section I failure
of your company to abide to our work agreement[.] Re-
quest to proceed in arbitration clause of work agreement."
Ronald Scott (the Company's president and treasurer),
Fallo, George Noring (engineer for the Company), and
O'Connor employees Cardinal and Duggan met with Mc-
Innis and Nealon on December II. Mclnnis said he was
exercising his contractual right to furnish the Company
with a steward. Scott replied that in order to hire Nealon
he would have to lay Bretton off. Scott mentioned that he
couldn't see why his employee Gauthier, an officer of the
Respondent, who was on the job, could not be made stew-
ard for the few days it would take to repair the doors.
Mclnnis' response to these comments of Scott is not in the
record. Scott was the sole witness testifying before me
about this meeting.
After this meeting with Mclnnis, Scott telegraphed the
International Union headquarters. pursuant to an estab-
lished procedure, that he was having trouble with the local
agent, McInnis. The international union president then ap-
pointed International Representative Richard Griffin to
conduct a hearing on the matter. 6 On December 19, Griffin
conversation in November. Therefore. there had to have been ,ome te tl-
mony to that effect before him. That Mclnnis did not testifs hefore rne does
not alter my conclusion.
61 agree with the Respondent that Griffin was acting as ;in agent if the
international union. not the Respondent. and I do slew I-, remark .. the
end of the hearing as an admission bh the Respondent or esidenre Ihit the
Respondent was tr ing to make the ( omp;lns la off Brettin.
took testimons from those present, including Scott, Fallo.
( ardinal, Duggan, and Mclnnis. and at the conclusion of
the meeting pointed at Scott, Fallo. Mclnnis. and Respon-
dent's president and stated, "Under no circumstances are
xou to lay off one b other for another." and "No one is to
change the status quo of this job." The meeting closed.
Griffin left and never recontacted the company, according
to Scott. whose testimony is credited in this regard.
The Respondent requested arbitration. and arbitral pro-
ceedings were held before an impartial arbitrator on May
26. 1976.
In his decision, issued July 9. 1976. the arbitrator made It
clear that he was not resolving the unfair labor practice
issue herein, which was then pending before the Board. but
was limiting himself to a resolution of the contractual dis-
pute before him which consisted only of the following is-
sues: "Is the grievat ce arbitrable? Did the Employer vio-
late its agreement by refusing to employ Bernard Nealon
on December 19. 1975? If so, what shall the remeds be'"
The arbitrator then found that the grievance was arbitrable
and that the C ompan) violated the stewards clause, article
IX, section 1, set forth above. by refusing to hire Bernard
Nealon. Nealon was awarded backpa L, and the parties
stipulated at hearing before me that the Company paid
$960 in wages to Nealon. $62.40 to the health and welfare
fund. $57.50 to the pension fund, and $16.32 to the appren-
ticeship fund. Scott contends he paid under protest.
B. Analysis and Conclusions
The basic issue in this case is whether or not the Respon-
dent violated the Act by insisting on implementation of its
contractual right to "furnish or appoint" a job steward,
Bernard Nealon, to Scott and Duncan at a time when
Nealon was already employed on the jobsite by another
employer and was already serving as job steward, and at
which time Scott and Duncan had no job vacancy avail-
able for him and would have had to dismiss another em-
ployee to hire Nealon. The second issue of importance is
whether or not the arbitrator's decision should be deferred
to under the Spielberg 7 rule.
From a careful reading of the arbitrator's decision, I
conclude that he specifically restricted himself to a consid-
eration of the contractual violation alleged by the Respon-
dent and did not consider the statutory issues of whether or
not the steward selection clause and its enforcement were
contrary to the Act. It appears from his discussion that he
proceeded from a basic presumption that the clause was
valid and only examined its content for ambiguity., which
he did not find. I can not infer from his conclusion that
there was no "contractually cognizable reason" warranting
the Company's refusal to hire Nealon that the arbitrator
examined sub silentio the possibility of statutory reasons for
this refusal. Indeed, the arbitrator expressly pointed out
that his role in the case only involved the resolution of a
contractual dispute and that this was a different role than
that played h': the Board. For the foregoing reasons. I find
and conclude that the arbitrator did not consider the statu-
Sp,/ ,,r tl,wi;, furotg (,,.7,iwt 112 NlIRB 1(g0 t0 i'1
1375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tory issues before me and that deference to his decision is
improper under Spielberi.
I find no ambiguity in the stewards clause. It plainly
vests in the Respondent's business representative the dis-
cretion to appoint or furnish a job steward whenever the
business representative deems it necessary.
The Respondent clearly has a legitimate interest in hav-
ing a job steward on the job to police the contract. The
question, however, is whether there is justification for Mc-
Innis' insistence that Fallo hire Nealon when Mclnnis
knew that Fallo had already made a commitment to hire
Bretton for the only existing vacancy. I am convinced that
Mclnnis' adamant insistence was precipitated by Fallo's
failure to inform him of the job opening as he had told
Mclnnis he would during their early November conversa-
tion. Mclnnis had not insisted in November, when Fallo
had no job openings, that the Company hire Nealon, and
there is no evidence that Mclnnis sought to replace anyone
on the jobsite with Nealon during Nealon's layoff from
O'Connor. The fact that Nealon was recalled by O'Connor
on December 8 for a few days' work does not, in my opin-
ion, negate Fallo's earlier promise to McInnis. There is no
showing whatsoever that Mcinnis' purpose was to cause
Bretton to be replaced by Nealon because of any hostility
toward Bretton. Although it would appear obvious that the
foreseeable consequence of hiring Nealon might well be
the layoff, or refusal to hire, of Bretton, Mclnnis did not
ask that Bretton be dismissed, and Bretton worked without
incident until the job for which he was hired was complet-
ed. Bretton is a member of the Respondent Union.
The General Counsel and the Charging Party argue that
the controlling authority in this case is Local Union 798 of
Nassau County, New York; Brotherhood of Painters and ,41/-
lied Trades, AFL-CIO, 212 NLRB 615 (1974), which, they
urge, compels a conclusion that the stewards clause herein
and the insistence by Respondent that it be implemented
are violative of Section 8(bX)()(A) and (2) of the Act.8 The
Respondent contends that Local 798, Painters is distin-
guishable on its facts and that the clause is lawful and was
not applied in an unlawful manner.
I am persuaded that Local 798, Painters is distinguisha-
ble from the case at bar. That case involved, inter alia,
negotiations for, a strike to obtain, and subsequent agree-
ment on clauses which were intended, and so understood
by the parties thereto, to permit the Union to require the
employers involved, who had regular complements of em-
ployees, to hire additional new employees from outside
their existing work crews to serve as stewards on every job,
with the object of the union being to secure employment
for unemployed members through a "blanket hiring prefer-
ence on every job for an entire class-i.e., all persons desig-
nated solely by the Union to serve as stewards." 9
In the instant case, it does not appear that the employees
involved have a fixed complement of regular employees.
The evidence militates against a finding of fixed intent by
the Respondent, or any understanding of such intent by
r The Charging Party's additional reliance on Dairlea (Cooperative Ira,
219 NLRB 656 (1975). is misplaced because Dairile deals with the pri,prle-
ty of superseniority clauses for stewards, nol with the issues raised herein
Quotation at in. 3. Painters. supra
the Company, to force the employers party to its contract
to provide jobs as stewards for unemployed members. No
testimony was proffered that there was any such intent or
any understanding of such intent by the parties. The stew-
ards clause makes it discretionary, not mandatory, that the
business representative appoint a steward. There was no
attempt to force the company to take Nealon in November
and December, when he was unemployed, after Fallo re-
ported to Mcinnis that he had no work for him, nor is
there any evidence that the Respondent at any time prior
to the December 9 incident demanded or even requested
that any employer party to its contract hire an unemployed
steward where there was no job vacancy for him. I cannot
conclude from the evidence before me that there was any
express intent, understood intent, or prior practice to sup-
port the contention that the stewards clause agreed upon
by the parties and made a part of their collective-bargain-
ing agreement was designed to require, or did in fact re-
quire. the Employer to change its hiring policy. Further-
more, the conduct of Mclnnis in insisting that Fallo hire
Nealon was the direct and foreseeable result of Fallo's fail-
ure to keep his promise to advise Mclnnis when a job va-
cancy arose. That this may have made Mclnnis angry is
understandable. Fallo did not need an additional employee
until December 10, and he therefore had ample time to
inform Mcinnis, on December 9, of the impending need
for an additional employee before making a commitment
to Bretton. I cannot and do not infer from this single inci-
dent giving rise to the Respondent's resort to the contractu-
al stewards clause that the clause or its enforcement by the
Respondent arbitrarily encouraged union membership by
discriminating in favor of employment of union members.
As noted above, Bretton was also a union member.
For the foregoing reasons, I am persuaded that the con-
trolling precedent in this case is Ashley, Hickham--Uhr
Co.,m0 not Local Union 798, Painters, supra. Although this
case does not involve a "potentially troublesome jobsite"
as did Ashley, Hickham, I find and conclude that McInnis
did have a legitimate concern for keeping a steward on the
jobsite so long as the workload permitted it and that it was
properly his decision to make as to who should be that
steward. That the Company suggested to him that he select
Gauthier as steward is of no moment, for the identity of
the steward is not subject to the wishes of the Employer
but rests in the discretion of the Union. I further find that
the General Counsel has not proved that Respondent's ac-
tions were a "mask for discriminatory motivation," 1 even
though Mclnnis might have foreseen that, in order to hire
Nealon, Fallo might have had to cancel the employment
offer to Bretton. I am convinced that there was no discrim-
inatory motivation by the Respondent and that there was
nothing arbitrary or unlawful in Mclnnis insisting that Fal-
lo live up to his word and give Mclnnis the opportunity to
place Nealon in the job vacancy occurring on December 9
before hiring someone else to fill the job.
I am also persuaded that the stewards clause is similar to
the working rules in Ashley, Hickham, which did not limit
the selection of stewards to employees already on the job,
it210 NLRB 32 1974).
i Av hle. Hickham,. supra at 33
'376
UNITED BROTHERHOOD OF CARPENTERS, LOCAL 49
and that, absent a showing of unlawful motivation, the in-
clusion of the clause in the collective-bargaining agreement
does not warrant a finding that Respondent has violated
the Act.
Accordingly, I conclude that the Respondent did not vi-
olate Section 8(b)(1)(A) or (2) of the Act as alleged in the
amended complaint and make the following:
CONCLULSIONS OF LAW
1. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. Scott and Duncan, Inc.. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
3. General Counsel has not established by a preponder-
ance of the credible evidence that the Respondent has vio-
lated the Act as alleged in the complaint or in any other
manner.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I make the
following recommended:
ORDER 12
The complaint is dismissed in its entirety.
: In the esent no exeptions are filed as provided h, Sec 102 46 of the
Rules and Regulations of Ihe National .habor Relations Board. the findings.
conclusiotln. and rectommended Order herein shall. as provided In Sec
102.48 of the Rules and Regulat ins. he adopted hb the Board and become
its findings. conclusion, . and Order. and all ohbjections thereto shall he
deenmed al'ed for all purpmoses
1377