Local 322, Laborers'

National Labor Relations Board - Board Decisions

May 24, 1977

229 N.L.R.B. 949 (N.L.R.B. 1977)

LOCAL 322, LABORERS'
Local 322, Laborers' International Union of North
America, AFL-CIO (Kingsley Drilling and Blast-
ing, Inc.) and Frederick Barton. Case 3-CB-2767
May 24, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
Upon a charge duly filed by Frederick Barton
(herein called Barton or the Charging Party) against
Local 322, Laborers' International Union of North
America, AFL-CIO (herein called Respondent), the
General Counsel of the National Labor Relations
Board, by its Regional Director for Region 3, on
August 20, 1976, issued and served on the parties a
complaint alleging that Respondent committed
violations of the National Labor Relations Act, as
amended. The complaint alleges that Barton, at all
material times, was a supervisor employed by
Kingsley Drilling and Blasting, Inc. (herein called
Kingsley), and a representative of Kingsley within
the meaning of Section 8(b)(1)(B) of the Act. The
complaint further alleges that Respondent violated
Section 8(b)(1)(B) of the Act by bringing internal
union charges against, and fining, Barton, a member
of Respondent, because he worked behind Respon-
dent's picket line and worked for Kingsley, a
nonunion employer, at Kingsley's Richfield bypass
jobsite in St. Lawrence County, New York.
Respondent's answer admits the factual allegations
of the complaint regarding its actions against Barton,
but denies that it thereby committed unfair labor
practices. By way of affirmative defense, Respon-
dent's answer asserts that:
[C ]harging party was a member of the respondent
Union and crossed that Unions' [sic] lawful
picket line to work in the capacity of a foreman,
those terms as defined by the Union, and was
employed by Delia [sic] Construction Company
and was properly tried and fined by the Union for
this conduct.
On January 6, 1977, a hearing was held before
Administrative Law Judge Josephine H. Klein. At
the conclusion of the hearing, the parties agreed on
the record to waive the issuance of a decision by the
Administrative Law Judge and to transfer this matter
directly to the Board for decision.
On February 1, 1977, the Board ordered that the
proceeding be transferred to and continued before
the Board for the purpose of making findings of fact
and conclusions of law and the issuance of a decision
229 NLRB No. 139
and order, and set a date for the filing of briefs.
Thereafter, the General Counsel filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record herein
and the brief and makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Kingsley Drilling and Blasting, Inc., is a New York
corporation engaged as a drilling and blasting
contractor in the State of New York. During the past
year, a representative period, the Employer, in the
course and conduct of its business operations,
purchased, transferred, and delivered to its New
York State facilities goods and materials valued in
excess of $50,000, which were transported to said
facilities directly from States of the United States
other than the State of New York. The parties
stipulated, and we find, that the Employer is, and has
been at all times material, an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Respon-
dent Union is, and has been at all times material
herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts are not materially in dispute and reveal
as follows: At all times material herein, Kingsley was
engaged as a subcontractor to DeLia Construction
Corporation, providing supplies, employees, and
drilling and blasting services at the Richfield bypass
jobsite. The value of the subcontract is in excess of
$250,000.
On April 12, 1976, Philip Kingsley, president of
Kingsley, hired Frederick Barton, as noted a member
of Respondent, as drill foreman for the Richfield
jobsite. Barton managed what is known as the field
end of the operation. In so doing, he performed
various duties including: laying out the patterns for
drilling and blasting, hiring, firing, and scheduling
employees, maintaining production reports and
timesheets, ordering parts for equipment, supervising
all drill work, and adjusting grievances regarding
employees' work-related problems. According to his
uncontradicted testimony, Barton exercised his
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authority to adjust grievances by, inter alia: granting
employees time off for special reasons; upon an
employee's request, getting unsafe equipment re-
paired and purchasing work gloves for employees;
and transferring an employee from one crew to
another. Barton also brought to Kingsley's attention,
at the suggestion of his supervisees, the need for
additional employees to run the drills.
No one supervised Barton. Although Kingsley was
frequently on the Richfield site during the early
stages of the job, after 4 to 6 weeks he came to the
site only several times a month, preferring to leave
Barton in charge of the operation and to discuss its
progress with Barton by telephone on a regular basis.
By July 1976, Barton was supervising approximate-
ly 20 Kingsley laborers at the Richfield site. In
addition to his supervisory duties, Barton also on
occasion assisted employees in the performance of
their work. The performance of such laborers' work,
however, accounted for only about 10 percent of
Barton's working time.
Kingsley has never signed a contract with Respon-
dent or with any other labor organization. Com-
mencing on or about April 26, 1976, Respondent
began picketing DeLia Construction Company at the
Richfield bypass jobsite with signs stating that DeLia
did not have a contract with Respondent. All
Kingsley employees and Barton crossed the picket
line and continued to work during the strike. Barton
performed the same amount of supervisory and
nonsupervisory work during the strike as he had
before it commenced.
By letter dated April 28, 1976, Respondent notified
Barton that internal union charges had been brought
against him "for working behind [Respondent's]
picket line . . . against DeLia" at the Richfield site.
Thereafter, on May 12, 1976, Respondent's trial
board conducted a trial, in which Barton participat-
ed, based upon the foregoing charges. By letter dated
May 18, 1976, Respondent informed Barton that the
trial board had found him guilty as charged, that he
had been fined $1,000, and that he would be fined an
additional $25 per day I for each day he continued to
work "for DeLia Construction Company."
B. Contentions of the Parties
The General Counsel, relying on Skippy Enterpris-
es, Inc.,2 contends that Respondent's conduct, set
forth above, violated Section 8(b)(l)(B) of the Act.
Specifically, the General Counsel, in his brief, argues
that compliance by Barton with Respondent's
I The record fails to disclose whether or not Barton paid the fine or any
portion thereof.
2 Wisconsin River Valley District Council of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 218
NLRB 1063(1975).
demand that he cease working for Kingsley would
have the effect of depriving Kingsley of the service of
its selected representative for the purposes of
collective bargaining or the adjustment of grievances.
Accordingly, the General Counsel concludes that
Respondent, by imposing a fine on Barton because
he refused to stop working for Kingsley, violated
Section 8(b)(1)(B).
Respondent's position, as stated at the hearing, is
that it "acted legally within its constitution, and did
not violate the Act." Respondent contends that
Barton was acting as a "labor foreman"3 behind the
picket line set up by Respondent and, as such, was
properly subject to the discipline meted out by
Respondent.
C. Discussion and Conclusions
Section 8(bXI)(B) of the Act provides that "[i]t
shall be an unfair labor practice for a labor
organization or its agents to restrain or coerce an
employer in the selection of his representatives for
the purposes of collective bargaining or the adjust-
ment of grievances."
In Skippy Enterprises, supra, the Board held that the
union there violated Section 8(b)(l)(B) by fining a
supervisor, who was a union member, because he
disobeyed the union's "no contract-no work" order.
The Board found that the supervisor in Skippy spent
about 30 percent of his worktime performing unit
work as a carpenter, and 70 percent of his time
performing supervisory tasks, including the adjust-
ment of grievances. His duties and work, including
unit work, during the strike were the same as before
the strike. Finding that the job superintendent spent
more than a "minimal amount" of time in perform-
ing supervisory duties, the Board concluded that his
compliance with the union's demands would have
deprived the employer "of services of its selected
representative for the purposes of collective bargain-
ing or the adjustment of grievances." 4
As set forth above, Barton had the authority to
handle complaints in matters concerning working
conditions as well as problems arising in Kingsley's
day-to-day operations at the Richfield bypass jobsite.
3 The duties of a "labor foreman" were not described with any precision
at the hearing. Respondent's president, John Agati. however, testified that
those duties were "very much the same as Fred Barton has stated in his
testimony."
4 Skippy Enterprises, supra at 1064.
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LOCAL 322, LABORERS'
Accordingly, we find that Barton was a statutory
representative of the Employer 5 within the purview
of Section 8(b)(1)(B) of the Act. 6
In view of the above, it is clear that Respondent's
disciplining and fining of Barton in the circumstanc-
es here constitutes restraint and coercion of Kings-
ley, his employer, in the selection of its representative
for the purposes of collective bargaining or the
adjustment of grievances. Such conduct by a union is
proscribed by Section 8(b)(l)(B) of the Act. Accord-
ingly, we find that Respondent, by the foregoing
conduct, violated Section 8(b)(1)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Union set forth in section III,
above, occurring in connection with the operations
of the Company described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
3. Frederick Barton is, and at all material times
has been, a representative of the Employer for the
purpose, among others, of collective bargaining or
the adjustment of grievances within the meaning of
Section 8(b)(1)(B) of the Act.
4. By bringing charges against and fining Freder-
ick Barton for working behind its picket line and for
continuing to work for a nonunion employer,
Respondent coerced and restrained the Employer in
the selection of its representative for the purpose of
collective bargaining and adjusting grievances and
thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(b)(1)(B) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
I Nothing in the record indicates that Barton was ever employed by any
firm other than Kingsley Drilling and Blasting. There is. consequently, no
merit in Respondent's contention, set out above, that Barton was employed
by DeLia Construction Company.
6See Rochester Musicians Associaion LocHal 66 affiliated with the
American Federation of Musicians (Civic Music Associationl. 223 NLRB 720
(1976).
THE REMEDY
Having found that Respondent has engaged in,
and is engaging in, unfair labor practices in violation
of Section 8(b)(l)(B) of the Act, we shall order
Respondent to cease and desist therefrom and to
take certain affirmative action which we find
necessary to effectuate the policies of the Act,
including the rescission of its action in finding
Barton, the expunging of all records thereof in its
files, and the posting of appropriate notices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Local 322, Laborers' International Union of North
America, AFL-CIO, Massena, New York, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing Kingsley Drilling and
Blasting, Inc., in the selection of its representatives
for the purposes of collective bargaining or the
adjustment of grievances by fining or disciplining
such representatives because they have worked
behind Respondent's picket lines or refused to cease
working for such employer.
(b) In any like or related manner restraining or
coercing Kingsley Drilling and Blasting, Inc., in the
selection of its representative for the purposes of
collective bargaining or adjusting grievances.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Rescind and expunge all records of the fine
imposed against Frederick Barton because he
worked for Kingsley Drilling and Blasting, Inc.,
behind Respondent's picket line.
(b) Advise Frederick Barton in writing that the said
fine has been rescinded and that the records of such
proceedings and fine have been expunged.
(c) Post at its business office and meeting hall
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 3, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
' In the event that 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."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Furnish the Regional Director for Region 3
signed copies of said notice for posting by Kingsley
Drilling and Blasting, Inc., if willing, in places where
notices to employees are customarily posted.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Kingsley
Drilling and Blasting, Inc., in the selection of
representatives for the purpose of collective
bargaining or the adjustment of grievances by
fining, otherwise disciplining, or attempting in
any manner to collect or enforce any fine or
discipline heretofore imposed against any such
representative including Frederick Barton, for
failing to honor our picket lines or for working for
Kingsley Drilling and Blasting, Inc., during a time
when we are engaged in a labor dispute with that
employer.
WE WILL NOT engage in any like or related
conduct constituting such restraint or coercion.
WE WILL rescind and expunge all records of the
fine levied by us against Frederick Barton on
May 18, 1976, and of the proceedings in which
Barton was tried and fined.
WE WILL notify Frederick Barton in writing
that the said fine has been rescinded and that the
records of such fine have been expunged.
LOCAL 322, LABORERS'
INTERNATIONAL UNION
OF NORTH AMERICA,
AFL-CIO
952