Bricklayers Local 24 (Remco Maintenance)

National Labor Relations Board - Board Decisions

Dec 23, 1991

305 N.L.R.B. 943 (N.L.R.B. 1991)

943
305 NLRB No. 143
BRICKLAYERS LOCAL 24 (REMCO MAINTENANCE)
1 All dates refer to 1989 unless otherwise specified. 2 Only one witness, John Slezicki, testified.
The Marble Polishers, Finishers, Rubbers, Sawyers
of Greater New York and Vicinity, Local 24,
affiliated with AFL–CIO, and Bricklayers and
Craftsmen (Remco Maintenance Corp.) and
Louis Velasquez. Case 2–CB–12981
December 23, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On June 24, 1991, Administrative Law Judge D.
Barry Morris issued the attached decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record and the 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
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Marble Polishers, Fin-
ishers, Rubbers, Sawyers of Greater New York and Vi-
cinity, Local 24, affiliated with AFL–CIO, and Brick-
layers and Craftsmen, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order.
Mindy E. Landow, Esq. and David Leach, Esq., for the Gen-
eral Counsel.
John F. Mills, Esq. (Colleran, O’Hara & Mills), of Garden
City, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me on in New York City on August 20,
1990. On a charge filed on October 6, 1989,1 and amended
on December 5, a complaint was issued on February 8, 1990,
alleging that the Marble Polishers, Finishers, Rubbers, Saw-
yers of Greater New York and Vicinity, Local 24, affiliated
with AFL–CIO, and Bricklayers and Allied Craftsmen (Re-
spondent or the Union) violated Section 8(b)(1)(A) of the
National Labor Relations Act (the Act). Respondent filed an
answer denying the commission of the alleged unfair labor
practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by the Respondent.
On the entire record of the case, including my observation
of the demeanor of the witness,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
Remco Maintenance Corporation (the Employer), a domes-
tic corporation with a facility in New York City, has been
engaged in the restoration and maintenance of masonry sur-
faces for commercial customers. Annually the Employer pur-
chases and receives at its facility goods and materials valued
in excess of $50,000 directly from firms located outside the
State of New York. It has been admitted, and I so find, that
the Employer is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. In addition, it has been
admitted, and I so find, that Respondent is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
During the time relevant to the instant proceeding the Em-
ployer and Respondent had a collective-bargaining relation-
ship. The Union was recognized by the Employer as the col-
lective-bargaining representative of certain of Remco’s em-
ployees, including the Charging Party, Louis Velasquez. Arti-
cle XVI of the current collective-bargaining agreement pro-
hibits strikes and lockouts. The pertinent portions of article
XVI are:
The Unions shall not authorize any strikes nor the
Association or the Employers any lockouts upon the
work of the members of the Association . . . . There
shall be a grievance procedure with respect to all dis-
putes, complaints, grievances, interpretations of the
Agreement or violation of any rule or trade practice. A
Trade Board shall be organized and have power to take
up for settlement all questions, disputes or complaints,
viz., all alleged violations or interpretations of [the]
agreement; all alleged violations of any rules or deci-
sions made by the Trade Board.
The facts are essentially not in dispute. The only witness
to testify was the Union’s president and business manager,
John Slezicki. Sometime during the spring of 1989, Slezicki
was approached by a laid-off Remco journeyman who com-
plained that cleaners were being assigned certain work nor-
mally assigned to journeymen. Slezicki undertook an inves-
tigation of this complaint and approached Velasquez, who at
that time was employed by Remco as a journeyman. Slezicki
told Velasquez that he should be working with another jour-
neyman, and not with the individual with whom he was
working. Velasquez informed Slezicki that he would continue
to follow the Employer’s instructions. Slezicki warned
Velasquez that he would be brought up on charges before the
Union if he continued to work contrary to Slezicki’s instruc-
tions.
Slezicki filed charges against Velasquez with the Union
over this incident. Pursuant to these charges, a letter dated
April 12 signed by Slezicki, as business manager, was sent
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Velasquez’ disclosure to the Employer of his reason for refusing
to work with someone who was not a journeyman was a direct result
of Slezicki’s unlawful instructions and threat. I am not deciding
whether a fine for the disclosure alone would have been valid. Even
if it would be valid, however, Respondent has not sustained its bur-
den of showing that the fine would have been levied in the absence
of Velasquez’ failure to obey Slezicki’s instructions not to work. See
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 660 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
to Velasquez. The letter informed Velasquez that he was re-
quired to appear at a hearing of the Union’s executive board
scheduled for April 21. The letter also stated, ‘‘Your failure
to appear will result in immediate dismissal from current em-
ployment.’’
The hearing convened on April 21. However, since
Velasquez had not been presented with the charges against
him in writing, his request for a postponement was granted.
The meeting was then briefly reopened to allow the reading
of the ‘‘Jurisdictional Agreement between Local 66 and
Local 24,’’ which Velasquez was also accused of violating.
The executive board decided that Velasquez would be ‘‘pe-
nalized $500 per day for any further infringements, plus ter-
mination of Union membership.’’
The hearing was reconvened on May 19, at which time ad-
ditional charges were presented against Velasquez. The exec-
utive board found Velasquez guilty of ‘‘revealing Union pro-
ceedings to management and of disregarding instructions
from the Union’s Business Agent.’’ Velasquez was fined
$250 and was placed on probation. The executive board also
decided that if the fine was not paid or if there were any fur-
ther violations, Velasquez would be dropped from member-
ship. Velasquez was subsequently expelled from the Union
for nonpayment of the fine.
B. Discussion and Conclusions
1. Threat of discharge
The complaint alleges that the Union violated the Act by
threatening Velasquez with discharge if he failed to attend
the Union’s executive board meeting. In the letter of April
12 Slezicki stated, ‘‘Your failure to appear will result in im-
mediate dismissal from current employment.’’ In Plumbers
Local 314 (American Fire Sprinkler), 295 NLRB 428 (1989),
the Board held that the Union violated Section 8(b)(1)(A) of
the Act by implicitly threatening ‘‘employees who are fined
that they may suffer loss of employment [for] reasons other
than failure to pay dues or initiation fees’’ (Id.). See also La-
borers Local 1445 (Badger Plants), 266 NLRB 386 (1983);
Molders Local 164 (Pacific Steel), 270 NLRB 1105, 1109
(1984), enfd. 765 F.2d 858 (9th Cir. 1985). Accordingly, I
find that by threatening Velasquez with ‘‘immediate dis-
missal from current employment’’ for failure to attend a
union meeting, Respondent violated Section 8(b)(1)(A) of the
Act.
2. Order to strike
The complaint alleges that Slezicki ordered Velasquez to
strike, in violation of the collective-bargaining agreement’s
no-strike clause, by ceasing to work for the Employer be-
cause Velasquez was working with an employee who was
not a journeyman. The complaint further alleges that Re-
spondent fined Velasquez $250 for violating Slezicki’s order
to strike and expelled Velasquez from union membership be-
cause he failed to pay the fine. It is clear from the record
that Slezicki told Velasquez not to work with a person who
was not a journeyman and that Velasquez would be brought
up on charges if he continued to work with that individual.
Slezicki filed charges against Velasquez for disobeying his
instructions. The Union subsequently fined Velasquez $250
and expelled him from membership for failure to pay the
fine.
Board law is clear that a union violates Section 8(b)(1)(A)
of the Act when it levies a fine against a member for his
refusal to strike in the face of a valid no-strike clause. Mis-
sissippi Gulf Coast Building Trades Council (Roy C. Ander-
son Jr., Inc.), 222 NLRB 649, 650 (1976), enfd. 542 F.2d
573 (5th Cir. 1976); Laborers Local 135 (Bechtel Corp.),
271 NLRB 777, 779, 789 (1984). Respondent argues, how-
ever, that Velasquez was fined not only for disobeying
Slezicki’s instructions but also for ‘‘revealing Union pro-
ceedings’’ to the Employer. The minutes of the executive
board meeting held on May 19 indicate that Velasquez was
told by the Employer to work with a cleaner, who was not
a journeyman, and he refused. By way of explanation it was
necessary for him to tell the Employer the details of the ex-
ecutive board hearing. In Plumbers Local 460 (McAuliffe
Mechanical), 287 NLRB 788, 793 (1987), a union was held
to violate the Act when it disciplined a member for several
reasons, one of which was invalid. The minutes of the May
19 meeting and Slezicki’s testimony indicate that Velasquez
was fined for failing to obey Slezicki’s instructions and for
revealing union proceedings to the employer. Respondent
thus concedes that one of the reasons it fined Velasquez was
his failure to obey Slezicki’s instructions not to work.3 Ac-
cordingly, I conclude that Respondent fined Velasquez be-
cause he failed to obey Slezicki’s instructions not to work in
the face of a valid no-strike clause. Because Velasquez did
not pay the fine the Union expelled him from membership.
These acts constitute violations of Section 8(b)(1)(A) of the
Act.
CONCLUSIONS OF LAW
1. Remco Maintenance Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening Velasquez with loss of employment for
reasons other than failure to pay dues or initiation fees, by
fining Velasquez because he refused to obey instructions to
cease working in the face of a valid no-strike clause and for
expelling Velasquez from membership for failure to pay the
fine, Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I find it necessary to order Respondent to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the policies of the Act.
945BRICKLAYERS LOCAL 24 (REMCO MAINTENANCE)
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Respondent having fined Velasquez in violation of Section
8(b)(1)(A) of the Act, shall be ordered to rescind the fine.
If all or part of the fine has been paid, Respondent shall re-
fund that money to Velasquez with interest to be computed
in the manner set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987).4 I shall recommend that Respondent
be ordered to remove from its files any references to the un-
lawful fine and expulsion from membership and to notify
Velasquez in writing that this has been done and that the fine
and expulsion will not be used against him in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, the Marble Polishers, Finishers, Rubbers,
Sawyers of Greater New York and Vicinity, Local 24, affili-
ated with AFL–CIO, and Bricklayers and Craftsmen, New
York, New York, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Threatening members with loss of employment for rea-
sons other than failure to pay dues or initiation fees.
(b) Fining members because they refuse to obey instruc-
tions to cease working where there is a valid no-strike clause
and expelling members from membership for failure to pay
such fine.
(c) In any like or related manner restraining or coercing
members in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the fine and suspension of Louis Velasquez,
reinstate him as a member in good standing, and advise him
in writing of said rescission and reinstatement.
(b) Refund to Velasquez any portion of the aforesaid fine
which he may have paid, with interest, as set forth in the
remedy section of this decision.
(c) Post at its offices and meeting halls copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region 2, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Sign and return to the Regional Director for Region 2,
sufficient copies of the attached notice marked ‘‘Appendix’’
for posting by Remco Maintenance Corporation, if willing, in
conspicuous places, including all places where notices to em-
ployees are customarily posted.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten members with loss of employment
for reasons other than failure to pay dues or initiation fees.
WE WILL NOT fine members because they refuse to obey
instructions to cease working where there is a valid no-strike
clause and expel members from membership for failure to
pay such fine.
WE WILL NOT in any like or related manner restrain or co-
erce members in the exercise of their rights under Section 7
of the Act.
WE WILL rescind the fine and suspension of Louis
Velasquez, reinstate him as a member in good standing, and
advise him in writing of the recission and reinstatement.
WE WILL refund to Velasquez any portion of the aforesaid
fine which he may have paid, with interest.
THE MARBLE POLISHERS, FINISHERS, RUB-
BERS, SAWYERS OF GREATER NEW YORK AND
VICINITY, LOCAL 24, AFFILIATED WITH AFL–
CIO, AND BRICKLAYERS AND CRAFTSMEN