United Steelworkers of America, AFL-CIO

National Labor Relations Board - Board Decisions

Aug 7, 1979

243 N.L.R.B. 1157 (N.L.R.B. 1979)

UNITEDI) STtLII.WORKRS () AMERI('A. A. ()1
United Steelworkers of America, AFL-CIO: United
Steelworkers of America, Local No. 196, AFI.-
CIO; United Steelworkers of America, Local No.
6850, AFL-CIO; United Steelworkers of America,
Local No. 7508, AFL-CIO; International Union of
Operating Engineers, Local No. 428, AFL-CIO;
Construction, Production and Maintenance Labor-
ers', Local No. 383, AFL-CIO; and Construction,
Production and Maintenance Laborers', Local No.
479, AFL-CIO (Duval Corporation and Duval Sier-
rita Corporation) and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local No. 310. Case 28 CB 900
August 7, 1979
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS JENKINS. MURPHY, AND TRtUiSI)ALE
On November 4, 1976, the National Labor Rela-
tions Board issued its Decision and Order in this pro-
ceeding' in which it reversed the Administrative Law
Judge's findings that various Respondent Unions had
violated Section 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended. Thereafter, the
Charging Party petitioned the United States Circuit
Court of Appeals for the District of Columbia for
review of the Board's Order. On August 1, 1978, a
panel majority of the court ruled that the Board's
Order was not supported by substantial evidence and
the court remanded the case to the Board for further
proceedings consistent with the court's opinion. 2
On November 29, 1978, the Board accepted the
court's remand and notified the parties that they
could then file statements of position with regard to
the issues raised by the remand. Subsequently, the
Charging Party and Respondent filed statements of
position.
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 reviewed the entire case in light of
the court's decision and the statements of position on
remand and we now enter the following findings.
In the Board's original Decision, we reversed the
Administrative Law Judge's conclusion that Respon-
1226 NLRB 772.
2 587 F.2d 1176. The Administrative Law Judge had also dismissed com-
plaint allegations against United Steelworkers of America. Local No. 196,
AFL-CIO., and Production and Maintenance Laborers' Local No. 383.
AFL-CIO. See 226 NLRB at 785. These dismissals were also upheld by the
Board and not disturbed by the court of appeals' decision. Accordingl.), the
designation "Respondents" in this Decision does not refer to these io
unions.
dents had violated Section 8(b)( )(A) of the Act by
accepting a collective-bargaining agreement before
the Charging Party had had an opportunity toratift
it. We also reversed her finding that Respondents had
further violated Section 8(b) I )(A) of the Act by ne-
gotiating a strike-settlement agreement which b its
terms made the Charging Party's members subject to
disciplinary action or conduct which they could not
know at the time they engaged therein was in viola-
tion of the executed collective-bargaining agreement.
Lastly, we reversed the Administrative Law Judge's
finding that Respondents had violated Section 8bh)(2)
when three of Charging Party's members were disci-
plined for violating the terms of the collective-bar-
gaining agreement. We therefore dismissed the com-
plaint in its entiret.
In its decision, the court reversed our first
8(b)( I )A) dismissal regarding the contract-ratifica-
tion procedure. The court held that Respondents "did
in fact deny the Teamsters the opportunity to ratify
the collective-hargaining contract. and that in so
doing those unions discriminated against the Team-
sters 'in matters affecting their employment' [in viola-
tion of Section 8(b)(I)(A)]."3 We have accepted that
finding as the law of the case. With respect to our
dismissal of the 8(bh(1)(A) allegation involving the
strike-settlement agreement, the court found that con-
clusion was "unsupported by substantial evidence."'
The court instructed the Board upon remand to re-
consider our conclusion on this issue. Upon reconsid-
eration in light of the court's opinion, which as noted
above we deem to be the law of the case, we now find
a violation of Section 8(b)( I)(A) in Respondent's ac-
tions involving the strike-settlement agreement.
I. As pertinent here. the record reveals that the
Charging Party and Respondents are jointly certified
and bargain jointly with the Employer. Notwith-
standing this joint certification. there had been dissen-
sion between Respondents and Charging Party for
years preceding the 1974 negotiations at issue. The
1974 negotiations began in August to replace the con-
tract which was to expire on September 30, 1974.5 It
is important that, at the outset of negotiations, the
Employer told Respondents and the Charging Party
of its understanding that negotiations would continue
on a joint basis and that, once the spokesman for the
unions informed the Employer that a contract had
been reached, then a new agreement existed. The
unions agreed to this. The spokesman for the unions
was James Smith, a Steelworkers member.
Joint negotiations continued through October 1.
but then recessed so that the Charging Party's mem-
Id at 1184.
4Id at 1185.
All dates are 1974 unless noted otherwlse.
243 NLRB No. 162
II 7
I)E('ISIONS () NATIONA. ABO()R REI.Al'IONS BOAR)
bership could vote that night on extending the old
contract. Its membership voted instead to reject the
contract's extension and to strike. Charging Party so
apprised Respondents and set up picket lines. Later
the same evening, however, negotiations with the
other Unions, including the Charging Party, recom-
menced, and the Employer increased its wage offer.
On October 2, Respondents held ratification meetings
to consider the new proposal and it was accepted.
Smith, the spokesman for the joint negotiating com-
mittee, told the Charging Party's representative there
was a contract and that, accordingly, its strike was
illegal. He also told the Employer there was a con-
tract. It is clear that under the terms of the parties'
bargaining arrangement, described above, a contract
had, in fact, come into existence.
On October 3, the Charging Party's representatives
were told repeatedly that the strike was illegal, as a
contract was then in effect. They replied that their
membership had not voted on the contract yet but
would do so that evening. That night the Charging
Party's membership ratified the contract and took
down the picket lines.
Negotiations toward a strike-settlement agreement
had begun on the afternoon of October 3. The Charg-
ing Party's representative neither participated in these
negotiations nor executed the strike-settlement agree-
ment. In fact, they were not even made aware of the
meeting at which agreement on the strike settlement
was reached. The agreement provided, inter alia. that
any employee who had continued to picket after 9:30
p.m., on October 2. in violation of the new contract's
no-strike clause, would be subject to discharge or dis-
cipline. The record reveals that, when the agreement
was reached, Smith and the other bargaining officials
of the joint representative were aware that the Charg-
ing Party's members had continued to picket after the
agreed-upon deadline. Indeed, the Administrative
Law Judge, discrediting Smith's testimony to the con-
trary, found that the provision on discipline was pro-
posed not by the Employer's representatives but by
Smith.
Based on the above, and in light of the court's
opinion, we now find that by proposing and entering
into the strike-settlement agreement which subjected
the Charging Party's members to discharge or disci-
pline for action undertaken at a time when they could
not be expected to know that a new contract contain-
ing a no-strike clause had been concluded, Respon-
dents violated Section 8(b)( )(A) of the Act. Respon-
dents, as joint representatives of the unit involved
herein, owed a duty of fair representation to all their
constituency, including those employees who were
members of the Charging Party. In accordance with
the obligation imposed by this duty Respondents
were required not to engage knowingly in any activity
that could jeopardize the employment status of any
unit member. It is apparent that by the above con-
duct Respondents breached their duty by. "deliber-
ately and unfairly subjectling] Teamsters employees
to an unreasonable risk of discharge for unknowing
conduct. "6
2. With respect to the 8(b)(2) allegation, the record
shows that on October 4 the Employer discharged
two employees represented by the Charging Party
and disciplined a third for picketing on October 2 and
3 in violation of the no-strike clause. The Administra-
tive Law Judge found that Respondents' 8(b)(1)(A)
violation with respect to the strike settlement agree-
ment had directly contributed to the workers' disci-
pline and thereby that Respondents had violated Sec-
tion 8(b)(2) of the Act. As noted, the Board in its
original Decision dismissed this complaint allegation.
Although the court expressed no view on the merits
of the 8(b)(2) allegation, it did state that if the Board
concluded that Respondents had violated Section
8(b)(I)(A) of the Act regarding the strike-settlement
agreement on remand-
the Board should consider whether that breach
per e constitutes a violation of §8(b)(2) or
whether more evidence of an attempt to cause
discharge is necessary. If the Board finds a viola-
tion of §8(b)(2), it should consider whether that
violation was causally related to the disciplining
of the three Teamsters employees, giving appro-
priate weight to the ALJ's findings of union and
employer hostility towards them. In this connec-
tion the Board should also consider the relevance
of the General Counsel's determination that Du-
val, in firing the workers, did not discriminate
against them in regard to tenure of employment
in violation of §8(a)(3).7
With the court's instruction in mind, we conclude
that Respondents violated Section 8(b)(2) of the Act
in this proceeding. The reasons for our so concluding
are largely those reasons relied on to find the
8(b)(1)(A) violation with respect to the strike-settle-
ment agreement noted above. As the Administrative
Law Judge found:
The failure to notify the Teamsters of the sched.
uled strike settlement negotiations, coupled with
the proposals made and accepted by Smith
which operated to the detriment of Teamsters
employees, particularly in the circumstances of
Respondents' animus toward Charging Party, in-
dicates something far beyond mere negligence.
Actually, Respondents' conduct had the effect of
6587 F.2d at 1185.
7
ld. at 1185.
I 1 58
UNITED STEELWORKERS OF AMERICA. AFL CIO
inviting company reprisals against the picketing
employees.8
Indeed, as the Administrative Law Judge further ob-
served:
[B]ut for this breach of the ... duty of fair repre-
sentation, Broome, Garrett, and Ortiz [the em-
ployees who were disciplined] would not have
been in the posture of engaging in activity in vio-
lation of the no-strike clause which subjected
them to the penalties of the strike settlement
agreement.9
Accordingly, we find that Respondents violated Sec-
tion 8(b)(2) of the Act in this proceeding and we also
find that the violation "was causally related to the
disciplining"10 which the employees received. While
the court also remarked that there was "considerable
evidence of employer hostility [emphasis supplied]"''
to the disciplined employees we conclude that the
8(b)(2) violation is made out because Respondent's
conduct clearly had the intended "effect of inviting
company reprisals against the picketing employees."' 2
If, as it did, the Employer took up that invitation, an
8(b)(2) violation is established.
Lastly, our conclusion that Respondents violated
Section 8(b)(2) of the Act, is in no way diminished by
the General Counsel's failure to allege an 8(a)(3) vio-
lation against the Employer in the discipline. Under
Section 3(d) of the Act, the issuance of a complaint is
exclusively the province of the General Counsel. In
this case, he decided not to issue a complaint against
the Employer. We conclude that this does not prevent
us from finding an 8(b)(2) violation in the proceeding
brought before us for consideration.
ORDER'3
Pursuant to the provisions of Section 10(c) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board adopts as its Order, the
recommended Order of the Administrative Law
Judge as modified herein and hereby orders that the
Respondent, United Steelworkers of America, AFL-
CIO; United Steelworkers of America, Local No.
6850, AFL-CIO: United Steelworkers of America
Local No. 7508, AFL-CIO; International Union of
Operating Engineers, Local No. 428, AFL-CIO; and
' 226 NLRB at 786.
9 Id at 787.
1' 587 F.2d at 1185.
Id at 1180.
2 226 NLRB at 786 (emphasis supplied).
i~ We have set out the Administrative Law Judge's recommended Order
and notice in full. In addition, we have provided in the Order and notice a
paragraph indicating that Respondents have no objection to the reinstate-
ment of James Broome and Vertis R. Garrett.
Construction, Production and Maintenance Laborers,
Local No. 479, AFL CIO; Pima and Mojave Coun-
ties, Arizona, their officers, agents, and representa-
tives, shall:
I. Cease and desist from:
(a) Attempting to cause or causing Duval Corpo-
ration and Duval Sierrita Corporation to discriminate
against employees because they are members, or sup-
porters, of Teamsters Local No. 310 in violation of
Section 8(a)(3) of the Act.
(b) Restraining or coercing unit employees in the
exercise of their rights guaranteed by Section 7 of the
Act by failing to represent them in a fair and impar-
tial manner.
(c) In any other manner restraining or coercing
employees in the exercise of their rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Jointly and severally make Ignacio Ortiz whole
for any loss of earnings he may have suffered as a
result of his suspension on October 18. 1974. in the
manner set forth in the section of the Administrative
Law Judge's Decision entitled "The Remned."
(b) Jointly and severally make James Broome and
Vertis R. Garrett whole individually for an3 loss of
earnings they may have suffered as a result of their
discharge on October 4, 1974, with interest in the
manner set forth in the section of the Administrative
Law Judge's Decision entitled "The RemedN."
(c) Notify Duval Corporation and Duval Sierrita
Corporation, in writing, with a copy to Jamles
Broome and Vertis R. Garrett, that it has no objec-
tion to the hiring or employment of James Broome
and Vertis R. Garrett. and recommend that theN be
unconditionally reinstated to their former jobs. or, it
they no longer exist, to a substantially equivalent po-
sition, without loss of benefits or seniority.
(d) Post at its business office, meeting halls, or
other places where it customarily posts notices copies
of the attached notice marked "Appendix."l4 Copies
of said notice, on forms provided by the Regional
Director for Region 28, shall, after being duly signed
by authorized representatives of Respondents, be
posted by said Respondents immediately upon receipt
thereof and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees and members are
customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
4 In the event that this Order is enforced by a Judgment of.1 a nited
States Court of Appeals. the words n the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court (of Appeals Enforcing an Order of the Na-
tional Labor Relations Board'"
1 59
DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
(e) Sign and mail to the Regional Director for Re-
gion 28 sufficient copies of said notice on forms pro-
vided by him, for posting at the premises of Duval
Corporation and Duval Sierrita Corporation, if said
employers are willing.
(f) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order.
what steps Respondents have taken to comply here-
with.
APPENDIX
NOTI(E To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF HIE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice and we
intend to carry out the Order of the Board and abide
by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WIIL NI do anything that restrains or
coerces employees with respect to these rights.
More specifically:
WE WILl. NOT fail or refuse during collective
bargaining, or otherwise, to represent unit em-
ployees in a fair and impartial manner who are
members, or supporters, of Teamsters Local 310.
Wi WILt. NOT attempt to cause, or cause, Du-
val Corporation or Duval Sierrita Corporation to
discharge or otherwise discipline or discriminate
against employees who are members, or support-
ers, of Teamsters Local 310 in violation of Sec-
tion 8(a)(3) of the Act.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WE Wi.lL jointly and severally make whole
James Broome, Vertis R. Garrett, and Ignacio
Ortiz, with interest, for any loss of pay they suf-
fered as a result of our failing to represent unit
employees in a fair and impartial manner.
WI wii notify Duval Corporation and Duval
Sierrita Corporation, in writing, with a copy to
James Broome and Vertis R. Garrett, that we
have no objection to the hiring or employment of
James Broome and Vertis R. Garrett and will
recommend their unconditional reinstatement to
their former jobs or, if they no longer exist, to
substantially equivalent positions without loss of
benefits or seniority.
UNIlil) SIEII.WORKERS OF AMIRIfCA, AFL
CIO
UNITED STEIIWO()RKIRS ()F AMERICA, Lo-
A('I No. 6850, AFL ('IO
UlNIi II) S I WfRKIRS () ARI(A. 1.0)-
(Al No. 7508, AFI. (10
INII:RNAII)NAI. UNI()N ()I OPIRAIIN; EN-
(;INI I1RS, LO( Al. No. 428, AFL CIO
((CONS I RtIC I lO)N. PROU()I)' IO)N AND MAINI-
NAN( I L.ABORERS. LOC()(AI. No. 429, AFL
CIO
160