Local Union No. 46 Metallic Lathers

National Labor Relations Board - Board Decisions

Oct 27, 1981

259 N.L.R.B. 70 (N.L.R.B. 1981)

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 46 Metallic Lathers and Reinforc- behalf of the employer."4 There can be no doubt
ing Iron Workers (Cement League)' and Mi- that the discipline imposed in this case had such
chael J. Cahill adverse effect, since it totally barred Cahill,
Wood, Wire and Metal Lathers' International and Murtha, and McDermott from serving as foremen
United Brotherhood of Carpenters and Joiners and performing representative functions on behalf
of America and Michael J. Cahill. Cases 2- of their employers.5 The employers were therefore
CB-7620 and 2-CB-7767 "restrained and coerced" within the literal meaning
October 28, 1981 of Section 8(b)(1)(B).
Nevertheless, Respondent Local 46 contends that
DECISION AND ORDER the discipline was lawful since it was motivated by
Cahill's, Murtha's, and McDermott's conduct as
BY MEMBERS FANNING, JENKINS, AND union members and was neither directed at, nor re-
lated to, their conduct as foremen. We disagree.
On June 13, 1980, Administrative Law Judge While Respondents had a legitimate interest in dis-
Irwin Kaplan issued the attached Decision in this ciplining Cahill, Murtha, and McDermott as union
proceeding. Thereafter, Respondent Local Union members for their disruptive behavior at a meeting,
No. 46 Metallic Lathers and Reinforcing Iron their obligation was to do so in a manner consistent
Workers, herein called Local 46, Respondent with all the provisions of the Act. And, as the Ad-
Wood, Wire and Metal Lathers' International, ministrative Law Judge noted, a fine or other pen-
herein called the International Lathers, and Re- alty which would not have adversely affected any
spondent United Brotherhood of Carpenters and employer's choice of its representatives could have
Joiners of America, herein called the Carpenters, been imposed lawfully. By their discipline, Re-
filed exceptions and supporting briefs. The General spondents dictated to the actual and potential em-
Counsel filed a brief in support of the Administra- ployers of Cahill, Murtha, and McDermott who
tive Law Judge's Decision. their foremen could not be, an unwarranted and
Pursuant to the provisions of Section 3(b) of the unlawful intrusion on an employer concern specifi-
National Labor Relations Act, as amended, the Na- cally protected by Section 8(b)(1)(B).6 In this
tional Labor Relations Board has delegated its au- regard, it is immaterial whether Local 46 exerted
thority in this proceeding to a three-member panel. pressure directly on any of the employers to
The Board has considered the record and the at- remove Cahill, Murtha, or McDermott. Restraint
tached Decision in light of the exceptions and or coercion under Section 8(b)(1)(B) does not re-
briefs 2 and has decided to affirm the rulings, find- quire economic pressure directed at an employer
ings, 3 and conclusions of the Administrative Law quire economic pressure directed at an employer
Judge, ands modified below, the AdministrativeLaw but can be accomplished by internal union disci-
We agree with the Administrative Law Judge's pline which reasonably tends to deprive an em-
ployer of the right to select its representative.?
conclusion that Respondent Local 46 and Respond- ployer of the right to select its representative
ent International Lathers violated Section We also agree with the findings that the Carpen-
lll ters, as the successor to the International Lathers,8(b)(l)(B) by barring Local 46 members Cahill,
Murtha, and McDermott from serving as foremen should be responsible for remedying the unfair
for I year. labor practices of that organization. In so finding,
Union discipline of a member who serves as an the Administrative Law Judge applied the Board'sUnion discipline of a member who serves as an
employer representative within the meaning of Sec- , Florida Power d Light Co. v. International Brotherhood of Electrical
tion 8(b)(l)(B) violates that section only when it Workers, Local 641, et al., 417 U.S. 790, 804-805 (1974); see also American
"may adversely affect the supervisor's conduct in Broadcasting Companies v. Writers Guild of America, West. Inc., et al., 437
U.S. 411 (1978).performing the duties of, and acting in the capacity I The record, particularly the collective-bargaining agreement, the
as, grievance adjuster or collective bargainer on Local 46 constitution, and the testimony of Local 46 Business Agent
Ryan, supports the Administrative Law Judge's conclusion that the posi-
'The name of Respondent was amended at the hearing. tion of foreman contained the authority to adjust grievances and there-
The Carpenters has requested oral argument. This request is hereby fore rendered Cahill, Murtha, and McDermott, as supervisors, employer
denied as the record, the exceptions, and the briefs adequately present the representatives within the meaning of Sec. 8(bXl1B).
issues and the positions of the parties. 6The Senate Report explained Sec. 8(bXI(B), in part, as follows:issues and t e positions of the parties.
' The Carpenters and Local 46 have excepted to certain credibility . . . this subsection would not permit a union to dictate who shall
findings made by the Administrative Law Judge. It is the Board's estab- represent an employer in the settlement of employee grievances, or
lished policy not to overrule an administrative law judge's resolutions to compel the removal of a personnel director or supervisor who has
with respect to credibility unless the clear preponderance of all of the been delegated the function of settling grievances. [S. Rept. 105, 80th
relevant evidence convinces us that the resolutions are incorrect. Stand- Cong., Ist sess. 21; I Leg. Hist. 427 (NLRB. 1947).]
ard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d ' See San Francisco-Oakland Mailers' Union No. 18, International Typo-
Cir. 1951). We have carefully examined the record and find no basis for graphical Union (Northwest Publications. Inc.), 172 NLRB 2173 (1968);
reversing his findings. Florida Power d Lightr. supra; and American Broadcasting, supro.
259 NLRB No. 10
LOCAL UNION NO. 46 METALLIC LATHERS 71
Perma Vinyl doctrine,8 which states that a bona fide we shall also order that the Carpenters liability be
successor employer which has knowledge of pend- secondary to, rather than joint and several with,
ing unfair labor practices at the time of its purchase that of Local 46. The Carpenters itself engaged in
of the predecessor's business should be responsible no wrongdoing and Local 46, the primary wrong-
for remedying those unfair labor practices. doer, never affiliated with the Carpenters.' 3
In a union affiliation context, the victims of
unfair labor practices are as without a meaningful ORDER
remedy as are unfair labor practice victims when Pursuant to Section 10(c) of the National Labor
title to an employing business changes hands. Here, Relations Act, as amended, the National Labor Re-
the International Lathers is no longer a viable or- lations Board hereby orders:
ganization capable of remedying its violations of A. Respondent Local Union No. 46 Metallic
the Act. And the Carpenters, which has taken the Lathers and Reinforcing Iron Workers, New York,
International Lathers place, is not just the best, but New York, its officers, agents, and representatives,
the only organization capable of doing so.9 Finally, shall:
the employing industry has not changed "insofar as 1. Cease and desist from:
the victims of past unfair labor practices are con- (a) Restraining or coercing employer members of
cerned, or the need for remedying those unfair the Cement League, The Building Contractors As-
labor practices."" ° Thus, like the Administrative sociation, Inc., and Dic Concrete Corporation,
Law Judge, we see no policy reasons not to apply John T. Brady and Co., Inc., J.P.D. Construction
the Perma Vinyl doctrine in the context of a union Co., Inc., or any other employer, in the selection of
affiliation.
affilWe disagree, howeverwiththeAdministrativ its representatives for the purpose of collective bar-
We disagree, however, with the Administrative gaining or the adjustment of grievances by threat-
Law Judge's recommended Order against the Lath- ening to suspend, susending, or trying otherwise
ing Subdivision of the Carpenters. The Administra- to cause t suspend, suspending, or trying otherwise
tive Law Judge found that, pursuant to the affili- to cause the removal of such representatives from
ation between the International Lathers and the performing supervisory, executive, or managerial
Carpenters, the International Lathers continued pri- functions for said employers
marily intact as the Lathing Subdivision of the Car- dations of union officials to members which tend
penters, without commingling of funds. He there- dations of union officials to members which tend topenters, ithout co ingling of funds. e there-
fore reasoned that, as a matter of equity, the Lath- coerce and restrain them in t of their
ing Subdivision should be primarily liable for reme- rights guaranteed in Section 7 of the Act.
dying the International Lathers unfair labor prac- (c) In any like or related manner restraining or
tices, while the Carpenters, which engaged in no coercing employees in the exercise of the rights
wrongdoing, should be secondarily liable. Contrary guaranteed them in Section 7 of the Act.
to the Administrative Law Judge, the issue of 2. Take the following affirmative action which is
whether the Lathing Subdivision, as distinct from necessary to effectuate the policies of the Act:
the Carpenters as a whole, was the successsor to (a) Make Michael Cahill, William Murtha, and
the International Lathers was neither alleged nor Lawrence McDermott whole for any loss of earn-
litigated.' Since there is no basis for distinguishing ings and benefits suffered by reason of the unfair
between the Carpenters and its Lathing Subdivision labor pratices committed against them in the
as the successor, we shall delete the Order against manner described in the section of the Administra-
the subdivision and order only that the Carpenters tive Law Judge's Decision entitled "The Remedy."
be liable for remedying the unfair labor practices of (b) Notify, in writing, Michael Cahill, William
the International Lathers.'2 As a matter of equity, Murtha, and Lawrence McDermott and their
former employers, Dic Concrete Corporation, John
s Perma Vinyl Corporation, Dade Plastics Co., 164 NLRB 968 (1967), T. Brady and Co., Inc., and J.P.D. Construction
enfd. sub nom. United States Pipe & Foundry Co. v. N.L.R.B. 398 F.2d Co., Inc., that it has no objection to these named
544 (5th Cir. 1968). See also Golden State Bottling Co. v. N.LR.B., 414
U.S. 168 (1973). individuals serving as foremen.
I In terms of its obligation to remedy unfair labor practices committed (C) Post at its offices and meeting halls copies of
herein, Local 46 exists as a joint wrongdoer with, not a replacement for, the attached notice marked "Appendix A.""
the International Lathers. the attached notice marked "Appendix A."
'° Perma Vinyl. supra at 969.
H While the General Counsel, in his brief to the Administrative Law reason to order that the Carpenters notify employers that it does not
Judge, argued that the International Lathers continued largely intact as object to the employment of Cahill, Murtha, and McDermott as foremen.
the Lathing Subdivision, he did not allege or argue that the Carpenters "' See, e.g., International Brotherhood of Electrical Workers AFL-CIO,
liability should be based on anything other than its status as a successor. and Local 134 (Illinois Bell Telephone Company), 192 NLRB 85 (1971),
12 Since the Carpenters is a bona fide successor and engaged in no and Exxon Company, US.A., 253 NLRB 213 (1980).
wrongdoing, we shall not order it to cease and desist from engaging in " In the event that this Order is enforced by a Judgment of a United
unfair labor practices. Further, since Local 46 was not part of the affili- States Court of Appeals, the words in the notice reading "Posted by
ation between the International Lathers and the Carpenters, there is no Continued
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, on forms provided by the (d) Notify the Regional Director for Region 2, in
Regional Director for Region 2, after being duly writing, within 20 days from the date of this Order,
signed by its authorized representative, shall be what steps Respondent Carpenters has taken to
posted by Respondent immediately upon receipt comply herewith.
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all APPENDIX A
places where notices to members are customarily
posted. Reasonable steps shall be taken by Re- POSTED BY ORDER OF THE
spondent to insure that said notices are not altered,
defaced, or covered by any other material. NATIONAL LABOR RELATIONS BOARD
(d) Deliver to the Regional Director for Region An Agency of the United States Government
2 signed copies of said notice in sufficient number
for posting by Dic Concrete Corporation, John T. Pursuant to a decision of the National Labor Rela-
Brady and Co., Inc., and J.P.D. Construction Co., tions Board, and in order to effectuate the policies
Inc., said employers willing, at all locations where of the National Labor Relations Act, as amended,
notices to employees are customarily posted. we hereby notify our members that:
(e) Notify the Regional Director for Region 2, in WE WILL NOT restrain or coerce employer-
writing, within 20 days from the date of this Order, members of the Cement League, The Building
what steps Respondent Local Union No. 46 has Contractors Association, Inc., and Dic Con-
taken to comply herewith. crete Corporation, John T. Brady and Co.,
B. Respondent United Brotherhood of Carpen- Inc., J.P.D. Construction Co., Inc., or any
ters and Joiners of America, Washington, D.C., its other employer, in the selection of its repre-
officers, agents, and representatives, shall take the sentatives for the purpose of collective bar-
following affirmative action which is necessary to
gaining or the adjustment of grievances byeffectuate the policies of the Act:
effectuate the policies of the Act: threatening to suspend, suspending, or trying
(a) Make Michael Cahill, William Murtha, and(a) Make Michael Cahill, William Murtha, and otherwise to cause the removal of such repre-Lawrence McDermott whole for any loss of earn-
ings and benefits suffered by reason of the unfair sentatives from performing supervisory, execu-
labor practices committed by its predecessor tive, or managerial functions for said employ-
Wood, Wire and Metal Lathers' International ers.
Union, provided that the action required in this WE WILL NOT publicize reports, findings,
subparagraph shall be required of Respondent Car- and recommendations of union officials to our
penters only to the extent that Respondent Local members which tend to coerce and restrain
46 shall fail to do so. them in the exercise of their rights guaranteed
(b) Post at its officers copies of the attached in Section 7 of the Act.
notice marked "Appendix B."'5 Copies of said WE WILL NOT in any like or related manner
notice, on forms provided by the Regional Direc- restrain or coerce employees in the exercise of
tor for Region 2, after being duly signed by its au- the rights guaranteed them by Section 7 of the
thorized representative, shall be posted by said Re- Act.
spondent immediately upon receipt thereof, and be WE WILL make Michael Cahill, William
maintained by it for 60 consecutive days thereafter, Murtha, and Lawrence McDermott whole for
in conspicuous places, including all places where any loss of earnings and benefits suffered by
notices to members are customarily posted. Rea- reason of the unfair labor practices committed
sonable steps shall be taken by Respondent to against them, with interest.
insure that said notices are not altered, defaced, or WE WILL notify, in writing, Michael Cahill,
covered by any other material. William Murtha, and Lawrence McDermott
(c) Deliver to the Regional Director for Region and their former employers, Dic Concrete
2 signed copies of said notice in sufficient number Corporation, John T. Brady and Co., Inc., and
for posting by Dic Concrete Corporation, John T. J.P.D. Construction Co., Inc., that we have no
Brady and Co., Inc., and J.P.D. Construction Co., objection to these individuals serving as fore-
Inc., said employers willing, at all locations where men.
notices to employees are customarily posted.
Order of the National Labor Relations Board" shall read "Posted Pursu- LOCAL UNION NO. 46 METALLIC
ant to a Judgment of the United States Court of Appeals Enforcing an LATHERS AND REINFORCING IRON
Order of the National Labor Relations Board WORKERS
'" See fn. 14, supra.
LOCAL UNION NO. 46 METALLIC LATHERS 73
APPENDIX B additional Respondent for the purposes of liability insofar
as the alleged unfair labor practices were committed by
NOTICE To EMPLOYEES AND MEMBERS the International. (G.C. Exh. l(p).)
POSTED BY ORDER OF THE The answers (amended at the hearing) filed by the In-
NATIONAL LABOR RELATIONS BOARD ternational and Local 46 admit, inter alia, jurisdiction
An Agency of the United States Government and the status of the labor organizations but deny the
commission of any of the alleged unfair labor practices.
Pursuant to a decision of the National Labor Rela- Also, in dispute is the status of foremen within the mean-
tions Board, and in order to effectuate the policies ing of Section 8(b)(lB) of the Act.
of the National Labor Relations Act, as amended, With respect to the Carpenters, liability is denied prin-
we hereby notify our members that: cipally on the basis that said Carpenters denies any
knowledge of alleged unfair labor practices committed
WE WILL make Michael Cahill, William by the International before the affiliation which took
Murtha, and Lawrence McDermott whole for place on or about August 7, 1979. Further, the Carpen-
any loss of earnings and benefits suffered by ters contends that it was not timely and properly named
reason of the unfair labor practices committed as a respondent. The Carpenters does not contest juris-
against them, with interest, to the extent that diction. (G.C. Exh. I(n), p. 2.)
Local Union No. 46 Metallic Lathers and Re-
inforcing Iron Workers fails to do so. Issues
The principal issues are:
UNITED BROTHERHOOD OF CARPEN- 1. Whether Michael Cahill, William Murtha, and Law-
TERS AND JOINERS OF AMERICA rence McDermott as foremen were representatives of
their respective employers for the purposes of collective
bargaining or the adjustment of grievances within the
STATEMENT OF THE CASE meaning of Section 8(b)(1)(B) of the Act.
2. Whether Local 46, by its executive board and mem-
IRwIN KAPLAN, Administrative Law Judge: This case bership, restrained and coerced employers in the selec-
was heard by me in New York, New York, on Septem- tion of their employer representatives for the purposes of
ber 13 and October 29, 30, and 31, 1979. The charge in collective bargaining or the adjustment of grievances in
Case 2-CB-7620 was filed by Michael Cahill, an individ-
ual, on January 17, 1979, alleging in essence that Local
3. Whether the International violated SectionUnion No. 46 Metallic Lathers and Reinforcing Iron
Workers (herein Local 46) deprived Michael Cahill, Wil- 8(b)(1)(B) of the Act by endorsing the suspensions im-
liam Murtha, and Lawrence McDermott of their status posed by Local 46 on Michael Cahill, William Murtha,
as foremen for Dic Concrete Corporation (herein Die), and Lawrence McDermott.
John T. Brady and Co., Inc. (herein Brady), and J.P.D. 4. Whether the acts of Local 46 and the International
Construction Co., Inc. (herein J.P.D.), respectively, for a in suspending Michael Cahill, William Murtha, and Law-
period of I year because of their conduct at a union rence McDermott as foremen, in the circumstances of
meeting in violation of Section 8(b)(1)(A) and (B) of the this case, also tend to restrain and coerce employees in
National Labor Relations Act, as amended (herein the the exercise of their rights guaranteed by Section 7 of
Act). On April 3, 1979, Michael Cahill filed a new the Act, thereby violating additionally Section
charge in Case 2-CB-7767 against Wood, Wire and 8(b)(1)(A).
Metal Lathers' International (herein the International) 5. Whether Local 46 independently violated Section
and United Brotherhood of Carpenters and Joiners of 8(b)(1)(A) of the Act on or about October 20 by its re-
America' (herein the Carpenters) alleging in essence that cording secretary's reading to the union membership the
on or about October 20, 1978, the International and the report, recommendation, and decision of International
Carpenters also violated Section 8(b)(1)(A) and (B) of representatives with regard to the suspensions of Michael
the Act by ratifying in part the penalties imposed by Cahill, William Murtha, and Lawrence McDermott.
Local 46 which resulted in the removal of Cahill, 6. Whether the Carpenters are liable as a successor to
Murtha, and McDermott as foremen for their respective the International for the alleged unfair labor practices
employers. committed by said International prior to affiliation. 2
The charges in Cases 2-CB-7620 and 2-CB-7767 gave Upon the entire record, including my observation of
rise to the issuance of complaints and notices of hearing the demeanor of the witnesses, and after careful consid-
.. March 30 tamended May 30) and .ay .0, 1979, Ae- the demeanor of the witnesses, and after careful consid-on March 30 (amended May 30) and May 30, 1979, re-
spectively. The aforenoted cases were then consolidated eration of the post-trial briefs, I find as follows:
by Order on May 30, 1979, and amended at the hearing
to include, inter alia, the Carpenters as a successor and
'The consolidated complaint was amended at the hearing to join 2 Other issues as well as the Carpenters contention that it was not
United Brotherhood of Carpenters and Joiners of America as an addition- timely or properly named as a respondent and was otherwise denied due
al Respondent. process will also be treated infra.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT labor organization within the meaning of Section 2(5) of
the Act.'
I. JURISDICTION The Carpenters admits, the record reveals, and I find
The Cement League (herein the League) is an associ- that the Carpenters is, and has been at all times material
ation of employers who are engaged in general contract- herein, a labor organization within the meaning of Sec-
ing and concrete contracting in the building and con-
struction industry. The Building Contractors Association, II. THE ALLEGED UNFAIR LABOR PRACTICES
Inc. (herein the Association), is an association of employ-
ers who are engaged in general contracting in the build- A. Background and Sequence of Events
ing and construction industry. The League and the Asso-
ciation exist, inter alia , for the purpose of representing At all times material herein Local 46 has maintained a
their employer-members in collective bargaining and of collective-bargaining relationship with Brady and Dic,
administering collective-bargaining agreements on behalf members of multiemployer associations (the Association
of their employer-members with various labor organiza- and the League) and with J.P.D. covering all employees
tiof their employer-members with various lalorganza- 4employed as lathers. Local 46's most recent contracts
tions, inc reteluding Local 46. tionaNewYorkcorporwith these companies by their terms were effective from
Dic Concrete Corporation, a New York corporation, July 1, 1978, to June 30, 1981 (G.C. Exhs. 4 and 5). At a
is a concrete subcontractor involved in constructing rest union meeting on June 30, 1978,5 I month before the
dential, commercial, industrial, and office facilities and most recent contracts became effective, a fight broke out
maintains its principal office in Hicksville, New York. over contract ratification involving from 50 to 100 mem-
Annually, Dic derives gross revenue in excess of bers, including Michael Cahill, William Murtha, and
$500,000 in connection with its operations described Lawrence McDermott.
above. Further, it annually purchases goods and supplies Business Manager James Maher and four business
in excess of $50,000 to be used for its New York oper- agents of Local 46, including John Ryan, submitted a
ations directly from points outside the State of New statement regarding the June 30 incident to Fred Le-
York. At all times material herein Dic has been a con- Moine, recording secretary, to read at the July 11 local
stituent member of the League. union meeting. The statement put the membership on
John T. Brady and Co., Inc., a New York corporation, notice that the union officials intended to file internal
has maintained its principal office in New Rochell, New union charges against Cahill, Murtha, and McDermott
York, and various other places of business in the State of for assertedly engaging in, inter alia, physical and verbal
New York. Brady is, and has been at all times material abuse of the local union officers at the earlier meeting of
herein, engaged as a general contractor in the building June 30 in violation of sections 96 and 102 of the Inter-
and construction industry, constructing commercial, in- national Union's constitution and section 6 of Local 46's
dustrial, and office facilities. At all times material herein, constitution. (See G.C. Exh. 6.) Shortly thereafter,
Brady has been a constituent member of the Association. Cahill, Murtha, and McDermott received formal notice
J.P.D. Construction Co., Inc., has maintained its prin- of the aforenoted charges and notice that a hearing
cipal office in New York, New York, and various other would be conducted before the executive board on
places of business in the State of New York. J.P.D. is, August 18 on these charges. (G.C. Exhs. 7(a), (b), and
and has been at all times material herein, engaged as a (c).)
renovation contractor in ceiling and drywall construction On August 18, Cahill, Murtha, and McDermott ap-
in the building and construction industry, renovating peared before the Local 46 executive board and gave
commercial, industrial, and office facilities, their account of the June 30 meeting. Later that day they
Local 46 and the International admit, the Carpenters learned that they were found guilty of the charges and as
does not dispute, the record reveals, and I find that the a penalty they could not serve as a foreman or shop ste-
League, the Association, Dic, Brady, and J.P.D. are ward for 2 years.6 Formal notice of the executive board'sLeague, the Association, Dic, Brady, and J.P.D. are
action was received a short time later. The formal no-now, and have been at all times material herein, employ- ti informaton relatve to appea
tices contained, inter alia, information relative to appealers engaged in commerce within the meaning of Section procedures and notification that the executive board's
recommended action in terms of penalties "will be pre-
ll. THE LABOR ORGANIZATIONS INVOLVED THE LABOR GANIZATIONS INV LVED The International and the Carpenters admit and I find that on or
Local 46 admits, the record reveals, and I find that it about August 7, 1979, the International affiliated with the Carpenters.
Further, the record reveals and I find that the International became theis, and has been at all times material herein, a labor orga- Lathing Subdivision of the Carpenters.
nization within the meaning of Section 2(5) of the Act.3 ' All dates hereinafter refer to 1978 unless otherwise noted.
The International admits, the record reveals, and I find 6 At the time of the executive board hearing, Cahill, Murtha, and
that it is, and has been at all times material herein, a McDermott were foremen for Dic, Brady, and J.P.D., respectively. Therelevant collective-bargaining agreements expressly include "foremen" in
the unit description. (See G.C. Exh. 4, p. 1, art. II, par. I.) As previously
3 By the time of the hearing, Local 46 had severed its relationship with noted, however, the General Counsel contends that foremen are agents,
Wood, Wire and Metal Lathers' International and had affiliated with the supervisors, and representatives of employers for the purpose of adjust-
International Association of Bridge, Structural and Ornamental Iron ment of grievances within the meaning of Sec. 8(bX)(lB). The status of
Workers (herein the Iron Workers). The Iron Workers were not named these disputed individuals as foremen vis-a-vis Sec. 8(bXI)B) will be
as a party and did not appear. treated more fully in a separate section below.
LOCAL UNION NO. 46 METALLIC LATHERS 75
sented to the General Membership for acceptance, modi- fled, however, that he also knew that the constitution
fication or rejection at the next regular meeting," which provided a further appeal to the International and he
was scheduled for September 12 at the Local 46 union called the local union hall for clarification in terms of
hall. (G.C. Exhs. 9(a), (b), and (c).) whether Murtha had to be relieved as foreman immedi-
Cahill, Murtha, and McDermott retained an attorney ately or whether he could continue to serve in that ca-
and contemplated seeking recourse in the Federal courts pacity pending an appeal. According to Leahy, Business
in the event the membership accepted the executive Manager Maher told him that consistent with union
board's recommendations. According to Murtha, on Sep- practice once the membership upholds the executive
tember 8, while he was still a foreman for Brady at the board a person is no longer a foreman and he, Leahy,
Ossining Sewage Disposal jobsite, he had a long conver- had to relieve Murtha from that position as of that day.
sation with Business Agent Ryan wherein the latter told Maher's version of the conversation was somewhat dif-
him, inter alia, that he would have "big problems" and ferent. According to Maher, Leahy asked him whether
faced ostracism by the union membership for retaining there would be any further communications from the ex-
an attorney and going outside the Union for help.7 Ryan ecutive board regarding Murtha's status and in response
testified that he told Murtha that he did not want to dis- thereto he stated, "Buddy [Leahy is also known as
cuss the matter and denied telling Murtha that if he pur- Buddy], you were at the meeting last night and you
sued his case in court he would be ostracized by the heard the body uphold the determination of the Execu-
union membership. On September 11, Cahill visited with tive Board." Maher testified that Leahy in turn asked,
Business Manager Maher to dissuade him from encourag- "That's it," and he responded, "That's it," and that was
ing the union membership to accept the recommenda- the end of the conversation.
tions of the executive board but was unable to do so. Leahy asserted that he immediately transmitted the
McDermott testified that he told (J.P.D.) Superintendent substance of what Maher told him to Murtha and that
Jimmy Lynch on September 12 that commencing the he, Leahy, therefore had to appoint a new foreman.
next day there was a possibility that he would be pre- However, Leahy asked Murtha, his longtime friend,
cluded from serving as foreman because the union mem- whether he would be willing to stay on the job as a jour-
bership was going to vote that night on the executive neyman and Murtha accepted the offer.'°
board's recommendations. According to McDermott, McDermott testified that he called Lynch on Septem-
Lynch told him that, if he could no longer serve as fore- ber 13 and advised Lynch that the membership had
man, his services were not needed.man, his services were not needed. ofSeptember12, found him (McDermott) "guilty" and he therefore could
At the union membership meeting of September 12, not serve as foreman that morning, to which Lynch re-
Business Manager Maher and other local union officials sponded that "[McDermotts] services were no longer
spoke in favor of the executive board's recommendations needed."
and asked that they be adopted. Cahill, Murtha, and
McDermott were all in attendance at this meeting and On September 13, the same day that Cahill, McDer-
asked the membership to amend the findings of the ex- mott, and Murtha were removed as foremen, they filed a
ecutive board, but this was not done and the union mem- suit in the Southern District of New York to enjoin
bership voted to accept the recommendations. The next Local 46 from "directly or indirectly, threatening or at-
day, September 13, Cahill, Murtha, and McDermott tempting to suspend or to prevent the employment of the
were no longer foremen for their respective employers. [Charging Parties] as foremen." (G.C. Exh. 12, p. 4.)
On the morning of September 13, Cahill appeared for They also requested, inter alia, punitive damages in the
work at Dic's Manhattan jobsite and met with Superin- sum of S500,000. (Id.) Further, that same day, Cahill,
tendent Thomas Lynom. According to Cahill, while he Murtha, and McDermott, pursuant to section 47 of the
and Lynom were discussing the membership vote of the Local's constitution (G.C. Exh. 2, pp. 36-38), by tele-
previous evening, Shop Steward Ray Hill came over and gram appealed the action taken by Local 46 to General
advised that he had just come from the union hall and President Charles Brodeur of the International.
Business Agent Ryan had told him that Cahill could not By letter dated September 22, General President Bro-
be the foreman. Cahill testified that Lynom told Hill that deur responded to the aforenoted appeal and notified
he knew of "the findings" and he was going to relieve Cahill, McDermott, and Murtha that he had designated
him (Cahill) as foreman as of then. Ryan denied that he International Representative John L. Diver to conduct a
ever had a conversation with Ray Hill with regard to hearing on said appeal on September 27. (G.C. Exh. 13.)
Cahill's serving as foreman." He also acknowledged therein that he had been informed
According to Murtha and (Brady) Superintendent of the pending injunction and damage suit that they had
Leahy, the latter told Murtha on September 13 that he brought against Local 46. (Id.)
could no longer be foreman because the membership The hearing on the appeal was conducted as scheduled
upheld the action of the executive board.9 Leahy testi- on September 27 and in attendance were the Local 46
union officials who brought the initial charges, members
'The General Counsel contends that Ryan's statements to Murtha on of Local 46's executive board, and Cahill, McDermott,
September 8 constituted a separate violation of Sec. 8(bXIXB). and Murtha. By letter dated October 16, International
I Neither Superintendent Lynom nor Shop Steward Hill testified. The Representative Diver submitted his report and recom-
General Counsel represented that Lynom was subpenaed but failed to
appear. In any event no request was made for time to enforce the sub-
pena. None of the parties explained the failure to call Hill as a witness. ' The record discloses that foremen receive, inter alia. SS a day more
'The record reveals that Leahy has long been a member of Local 46 than journeymen and $100 a week in expenses whether expenses are actu-
and attended the union meeting on September 12. ally incurred or not.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations to General President Brodeur upholding the five grievances which for the most part related to safety
action and penalties imposed by Local 46 but recom- matters on the job. According to Cahill, if he and the
mending that the 2-year suspension of Cahill, McDer- shop steward were unable to resolve a grievance, the
mott, and Murtha as foremen be reduced to a 1-year sus- business agent would then be contacted to intervene.
pension. (G.C. Exh. 14, pp. 7 and 8.) Business Agent Ryan confirmed that this was the accept-
By letter dated October 20, General President Brodeur able procedure. 15
notified Cahill, McDermott, and Murtha that he had The record also discloses that foremen receive, inter
adopted International Representative Diver's report and alia, $5 a day more than journeymen, $100 a week in ex-
recommendations in their entirety and advised them that penses, and pay for holidays and days lost due to inclem-
his decision was subject to a further appeal to the execu- ent weather which are not provided journeymen under
tive council of the International within 30 days. (G.C. the contract. (G.C. Exh. 4, p. 3.)
Exh. 15.) An appeal was taken to the executive council On the other hand, the record reveals some factors
but was rejected. (Resp. Carpenters Exh. 6, p. 38.) which tend to militate against a finding that the disputed
At a local union meeting in October, Local 46 Record- individuals were statutory supervisors. Thus, it is noted
ing Secretary LeMoine read to the membership both the that under the collective-bargaining agreement foremen
report and recommendations of International Representa- are expressly included in the unit description. 16 (Id. at 1.)
tive Diver and General President Brodeur's letter dated Further, much of the testimony adduced from the disput-
October 20 adopting the report and recommendations." ed individuals (particularly McDermott) was conclusion-
ary. However, on the basis of the entire record, I am
B. Discussion and Conclusions persuaded and I find that the disputed individuals pos-
sessed the degree of independent power necessary to sat-
1. Whether Cahill, Murtha, and McDermott, as isfy the requirements of supervisory status within the
foremen, were employer representatives within the meaning of Section 2(11) of the Act."
meaning of Section 8(b)(1)(B) 2
I am also convinced on the state of this record that the
Cahill, Murtha, and McDermott testified that as fore- disputed individuals, as foremen, were employer repre-
men they had, inter alia, the authority to assign work, to sentatives for the purpose of adjusting grievances. While
resolve grievances, and to hire, layoff, and discharge em- Business Agent Ryan characterized the grievances that
ployees. Murtha's immediate superior (Brady) Superin- these foremen handled as "minor ones," he conceded
tendent Leahy, the only one of the superintendents to that they included job assignments. In any event it is not
testify, substantially corroborated Murtha's testimony the gravity of grievances that is significant but rather the
and confirmed that Murtha's responsibilities at the Ossi- fact that foremen are involved in their adjustment which
ning Sewage Disposal jobsite included the hiring and serves as the basis for their qualification as employer rep-
firing of employees. 3 Further, for almost one half of the resentatives within the meaning of Section 8(b)(1)(B). As
approximately 5- to 6-week period in which Murtha was observed by Administrative Law Judge Leff:
employed as foreman on the Ossining job, he alone di-
rected the work of lathers; Leahy was on vacation for The employer's bargaining obligation under the
approximately 2-1/2 weeks. Act is as much applicable to minor employee griev-
With regard to processing grievances, only Cahill tes- ances as to major ones. So, too, is management's
tified that he had been involved in their adjustment, al- need for representation in their consideration and
though Murtha and McDermott asserted that they had adjustment. I
the authority to do so. Murtha's testimony was corrobo- Ryan also explained that a foreman unlike other unit
rated by Superintendent Leahy. Cahill credibly testified employees is hired by the contractor. Thus, on the job-
and without contradiction that he and Shop Steward
Raymond Hill"4 had been involved in adjusting at least ' " This procedure is also spelled out in the constitution and bylaws of
Local 46, which in pertinent part reads as follows:
" The General Counsel contends that the reading of this material to
the membership by itself constitutes a separate violation of Sec. RULES GOVERNING SHOP STEWARDS
8(bXIXA).
" Sec. 8(bXIXB) makes it an unfair labor practice for a union "to re- Section 59
strain or coerce . . . an employer in the selection of his representatives
for the purpose of collective bargaining or the adjustment of grievance." Rule 4. Where the Steward and Foreman cannot agree, the Steward
"I While the record discloses that Local 46 maintains an exclusive is not to stop the work but shall immediately get in touch with the
hiring hall, it is also noted that by contract the employer retains the "ab- Business Agent." (See G.C. Exh. 2, p. 44.)
solute and unconditional right to reject any workman referred by the 'I This factor standing alone does not negate a finding of supervisory
Union . .. [and] shall have the absolute right to lay off any employee status within the meaning of Sec. 2(11) of the Act. See, e.g., Florida
. . either because of lack of work or the Employer's determination that Power d Light Co. v. International Brotherhood of Electrical Workers,
the employee does not have the ability to perform the required tasks." Local 641, el al., 417 U.S. 790 (1974); San Francisco-Oakland Mailers'
(See G.C. Exh. 5, p. 5, art. VIII.) Union No. 18. International Typographical Union (Northwest Publications.
" As noted previously, no explanation was advanced for the failure to Inc.). 172 NLRB 2173, fn. 2 (1968).
call Hill as a witness. The complaint alleges, the record reveals, and I " The constitution and bylaws of Local 46 tend to confirm this conclu-
find that at all times material herein Hill, as shop steward, was an agent sion by stating in relevant part that "the hire and discharge of all lathers
of Local 46, acting on its behalf. See Miscellaneous Drivers and Helpers shall be the responsibility of the foremen." (G.C. Exh. 2, p. 24, sec. 20.)
Local 610. affiliated with International Brotherhood of Teamsters. Chauf- " Columbia Typographical Union No. 101, International Typographical
feurs. Warehousemen and Helpers of America (Bianco Manufacturing Co., a Union of North America, AFL-CIO (The Washington Post Company), 207
Division of Falcon Products, Inc.), 236 NLRB 1048, 1049, fn. 5. (1978). NLRB 841, 847 (1973), affd. 220 NLRB 1177 (1975).
LOCAL UNION NO. 46 METALLIC LATHERS 77
site, Ryan considered the foreman as a representative of predicated solely on union pressure, both direct and indi-
the contractor. In these circumstances and on the basis of rect. 21
the entire record, I find that Cahill, Murtha, and McDer-
mott, as foremen, were employer "representatives for the 3. The International's role
purpose of adjusting grievances" within the scope of The record discloses that on September 13 the sus-
Section 8(b)(1)(B) of the Act. pended foremen appealed the action taken by Local 46
2. The role of Local 46 in causing the removal of to General President Brodeur of the International. It is
Cahill, Murtha, and McDermott as foremen undisputed that the International was not involved in any
disciplinary measures against these suspended foremen
The record clearly establishes that Cahill, Murtha, and prior thereto.
McDermott last worked as foremen on September 12 be- Brodeur designated International Representative Diver
cause of the acts and conduct engaged in by Local 46. to conduct a hearing on the appeal on September 27.
This was manifest in the first instance by internal union The hearing was conducted before Hearing Officer
measures in the form of charges against the above-named Diver as scheduled with Local 46 officials and the sus-
foremen, a hearing on said charges before Local 46's ex- pended foremen presenting their respective arguments.
ecutive board, and finally, on September 12, membership By letter dated October 16, Diver submitted his reportBy letter dated October 16, Diver submitted his report
ratification of the executive board's recommendations and recommendations to Brodeur. Diver recommended
which included suspending these foremen for a 2-year "that the finding of guilt by the Executive Board and the
period. ~~~~period.. .~membership of Local 46 . . . be upheld" (G.C. Exh. 14,On September 13, Local 46 officials engaged in a more m o LOn September 13, Local 46 officials engaged a more p. 4) but modified the term of suspension from 2 years to
direct approach to ensure that the suspensions of Cahill,
Murtha, and McDermott were implemented. Thus, 1 year (Id. at p. 8). By letter dated October 20, Brodeur
Cahill credibly testified that, on the morning of Septem- notified the suspended foremen that he had adopted
ber 13 while he was in the presence of (Dic) Superin- Hearing Officer Diver's report and recommendations in
tendent Lynom, Shop Steward Hill encountered them their entirety. Cahill, Murtha, and McDermott's final
with instructions from Business Agent Ryan that Cahill appeal to the executive council of the International was
could not be the foreman. Lynom, a longtime union also rejected.
member, acknowledged to Hill that he knew of the As noted above, the International ratified the disciplin-
Union's action and then relieved Cahill as foreman."9 ary measures of Local 46 which included suspending the
The credited testimony also discloses that on the same foremen. I find that, by the International's giving its im-
morning Business Manager Maher told (Brady) Superin- primatur to the appropriateness of "suspensions" as a dis-
tendent Leahy that he had to relieve Murtha as fore- ciplinary measure (albeit a reduced term), the acts and
man.?2 As noted previously, Leahy asked Murtha, his conduct of Local 46 vis-a-vis the suspensions are also
longtime friend, whether he would be willing to stay on chargeable to said International. 2 2
the job as a journeyman and Murtha accepted the offer.
4. Whether Local 46 and the International
With regard to McDermott, there is no evidence tend- restrained and coerced employers within the intent
ing to show that any union official spoke to his immedi- of Section 8(b)(l)(B)
ate superior (J.P.D.) Superintendent Lynch. McDermott
notified Lynch on September 13 that the union member- Having determined that the suspended foremen are
ship upheld the guilty finding against him and he there- employer representatives within the meaning of Section
fore could not serve as foreman. McDermott was then 8(b)(l)(B) and having further determined that Local 46
terminated. and the International are responsible for eliminating them
On the basis of the foregoing and on the entire record, as foremen for their respective employers, it must now
noting particularly the vulnerability of the foremen and be determined in the circumstances of this case whether
superintendents as union members in terms of penalties, Local 46 and the International thereby violated Section
benefits, and adverse publicity, the conclusion is inescap- 8(b)(l)(B).
able, and I find, that the removal of Cahill, Murtha, and It is well settled that a union may not with impunity
McDermott as foremen on or about September 13 was under Section 8(b)(l)(B) discipline its supervisor-mem-
bers who are employer representatives for the purpose of
' As noted previously, neither Lynom nor Hill testified. However, as I collective bargaining or the adjustment of grievances for
have heretofore found that at all times material herein Hill. as shop stew- reasons related to, or growing out of, their supervisory
ard, was an agent of Local 46 acting on its behalf, I further find it appro-
priate to draw an adverse inference against Local 46 by its failure to call responsibilities.
2a The matter at bar, however, is not a
him as a witness. Further, I was unimpressed with Ryan's overall demea-
nor and reject his denial that he had a conversation with Hill concerning 1' See American Broadcasting Companies v. Writers Guild of America,
the removal of Cahill as foreman. West, Inc., et al., 437 U.S. 411 (1978); San Francisco-Oakland Mailers'
20 Union Business Agent Ryan testified that superintendents are union Union No. 18 International Typographical Union (Northwest Pblications
members and as such receive certain unspecified fringe benefits. Superin- Inc.). supra.
tendent Leahy, a longtime union member, testified as follows: 2 See, e.g., International Union of Bricklayers and Allied Craftsmen
The union had suspended him [Murtha] from being a foreman. I was (Sam W Cleskey Construction Company. Inc.), 241 NLRB 898 (1979).
the superintendent of the job and a union member. I took an oath by " See American Broadcasting Companies v. Writers Guild of America.
my Constitution and By-Laws to be a union member and to protect West. Inc.. supra; ITO Corporation of Rhode Island. Inc., 246 NLRB 810
the union. The union said Mr. Murtha was no longer to be able to be (1979); Local Union No. 841. International Union of Operating Engineers.
a foreman, so I relieved Mr. Murtha from being a foreman. AFL-CIO (M. L. Arnold Steel Company), 203 NLRB 429 (1973).
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
garden variety 8(b)(l)(B) case. It is not contended nor gaged in at a union meeting not as employer representa-
does the record reveal that the disciplinary measures tives but as union members. If the disciplinary measures
taken against the suspended foremen were related to in the circumstances of this case were confined to a fine
their activities as employer representatives. Rather, the or some other similar penalty then clearly such conduct
record discloses that Local 46 invoked discipline solely would not be proscribed by Section 8(b)(1)(B).
because the foremen were aggressive combatants in a In the case at hand, however, no fine was imposed but
physical fight in an attack on union officials over con- rather the action taken was directed at employment
tract ratification. Cahill apologized to the membership status; to wit, suspending Cahill, Murtha, and McDer-
for this conduct at a subsequent union meeting. The fore- mott as foremen. As a result of the membership vote up-
men attended the union contract ratification meeting as holding the executive board's "guilty" findings and rec-
union members, not employer representatives, and they ommended penalties which included "suspensions,"
were perceived only as union members by Local 46.24 McDermott obediently removed himself as foreman. He
It is now well settled that Section 8(b)(l)(B) does not then advised his superior, Superintendent Lynch, of
per se proscribe union discipline on supervisor-mem- Local 46's action and was terminated. With regard to
bers.2 5 In Florida Light, the Supreme Court upheld the Cahill and Murtha, the membership's action on Septem-
union's right to fine its supervisor-members for perform- ber 12 was followed by more direct pressure on employ-
ing unit work during a lawful strike. The Court observed ers to remove these individuals as foremen.2 8 Thus, union
as follows: officials told Superintendents Lynom and Leahy (also
Nowhere in the legislative history is there to be union members) on September 13 to relieve Cahill and
found any implication that Congress sought to Murtha, respectively.
extend protection to the employer from union re- The Board found in Northwest Publications9 that union
straint or coercion when engaged in any activity pressure on supervisory personnel violated Section
other than the selection of its representatives for the 8(b)(1)(B), notwithstanding the fact that the union was
purpose of collective bargaining and grievance ad- not directly urging the replacement of the foremen. The
justment. The conclusion is thus inescapable that a Board reasoned:
union's discipline of one of its members who is a super- That Respondent may have sought the substitution
visory employee can constitute a violation of §
8(b)(I)(B) only when that discipline may adversely of attitudes rather than persons, and may have ex-
affect the supervisors conduct in performing the duties erted its pressures upon the Charging Party by indi-
rect rather than direct means, cannot alter the ulti-of and acting in his capacity as, grievance adjuster or mate fact that p ur e was exerted here for the
collective bargainer on behalf of the employer. 26 [Em- mate fac t that pressure w as exe rted her for the
phasis supplied.] purpose of interfering with the Charging Party's
control over its representatives. Realistically, the
In a post-Florida Light case, where it was alleged that employer would have to replace its foremen or face
the union fined a supervisor-member in violation of Sec- defacto nonrepresentation by them.30
tion 8(b)(l)(B), the Board stated:
This case does not turn on the legitimacy of the rea-
We recognize that a union's discipline of a supervi- sons for the invocation of discipline on the foremen-
sor-member falls outside the proscription of Section members as contended by counsel for Local 46 and the
8(bXl)(B) where the offense occasioning the disci- International but rather whether such discipline may ad-
pline involves a matter purely of internal union ad- versely affect their performance as employer representa-
ministration, unrelated either directly or indirectly tives within the meaning of Section 8(b)(l)(B).31 The
to any dispute between the union and the employer.
. . This rule results in the finding of no violation 2 As noted previously, the General Counsel contends that Local 46
where, for instance, a supervisor-member is disciplined independently violated Sec. 8(bXI)(B) by Business Agent Ryan's threat-
ening Murtha on or about September 8 with "big problems" and that he
for failing to pay his union dues or for disturbing a would be "ostracized by the membership" if he went outside the Union
union meeting.27 [Emphasis supplied.] to fight the impending suspension. Ryan admitted that Murtha told him
that he was contemplating recourse in court in the event the membership
As noted previously, the suspended foremen were dis- upheld the suspension but denied threatening Murtha. According to
ciplined solely because of the disruptive tactics they en- Ryan, he told Murtha that he did not want to discuss the matter. I find it
highly unlikely that Ryan would have passed up this opportunity to make
4 Cf. ITO Corporation of Rhode Island. Inc., supra; Miscellaneous Driv- some comment in response to Murtha's contemplated legal action or at
ers and Helpers Local 610, et al. (Bianco Manufacturing Co.. a Division of least to offer a plausible reason as to why he retrained from doing so. In
ra and Helpers Local n) et aupr. (Ban anufacturing o., Division of these circumstances and as I have previously noted that I was unim-
pressed with Ryan's demeanor, I credit Murtha's account and find that
as Florida Power & Light Co. v. International Brotherhood of Electrical Ryan threatened him as alleged.
Workers Local 641. et al.. supra. See also Columbia Typographical Union nternationa ypo
No 101. International Typographical Union of North America. AFL-CIO graphical Union (North est Puicatonst Incn . supra.
(The Washington Post Company). 242 NLRB 1079 (1979). grphicl nion (North Publicions In sup
" Id. at 804-805. Cf. American Broadcasting Companies v. Writers Guild '° Id. at 2173. Under the Board's reading of the Supreme Court's deci-
of American. West, Inc.. supra, where the Court held that the union violat- sions in Florida Ligh and American Broadcasting Compony, the Norrilesn
ed Sec. 8(bX1XB) for fining its supervisor-members who performed su- No 101. Interions doctrine remains viable. See Columbi Typogrphica Union
pervisory work during a lawful strikec. No. I01. International Typographical Union of North America, AFL-CIOpervisory ork during a la ful strike. (The Washington Post Company). supra.
(The Washington Post Company). supra.
" United Brotherhood of Carpenters A Joiners of America, Local Union 3' See American Broadcasting Companies v. Writers Guild of America.
No. 141, AFL-CIO (Max M. Kaplan Properties), 217 NLRB 202 (1975). West. Inc.. supra.
LOCAL UNION NO. 46 METALLIC LATHERS 79
consummate act in depriving an employer of a selected Still further, the General Counsel contends that Local
representative is to effectively remove that representative 46 independently violated Section 8(b)(1)(A) by its re-
from the employer's control. Given the internal or insti- cording secretary's reading of the hearing officer's report
tutional union pressures noted previously, the disciplin- to the membership at a union meeting on October 19,
ary action taken herein was tantamount to eliminating which, inter alia, upheld the "guilty" findings against
the suspended foremen as employer representatives. Cahill, Murtha, and McDermott and recommended that
In sum, I find that, by suspending Cahill, Murtha, and they be "suspended" as foremen for I year. In IATSE,
McDermott and by taking steps to ensure compliance Local 659,3' cited by the General Counsel, the Board
therewith, Local 46 and the International effectively de- found the disputed individuals to be employees and not
prived employers of their selected representatives within supervisors within the meaning of the Act but observed,
the meaning of Section 8(b)(1)(B). Accordingly, I find in pertinent part, as follows:
that Local 46 and the International violated Section Moreover, even if Coleman and Lapenicks were su-
8(b)(1)(B) as alleged. pervisors, we would still find the action directed
5. Whether Local 46 and the International violated against them by Respondent to be unlawful because
Section 8(b)(1)(A) as alleged of its impact on employees. The record shows that
"Daily Variety," a publication distributed principal-
As previously noted, the discipline administered to ly to employees in the motion picture industry in
Cahill, Murtha, and McDermott by Local 46 and the In- Los Angeles County, contained articles relating to
ternational was based on their involvement in a physical Respondent's refusal to permit the hiring of Colman
fight with union officials at a union ratification meeting and Lapenicks ... . In addition, the charges in this
and not because of their opposition to the union leader- case were read to members at regular meetings. It can
ship and/or contract ratification. It is not contended nor reaeonably be concluded that the discrimination thus
does the record reveal that these individuals were en- directed by Respondent Union created an impact on
gaged in protected concerted activities. other employees, the natural consequence of which was
The problem, however, is that this case involves much to restrain and coerce them with respect to their Sec-
more than mere internal union discipline; it involves the tion 7 rights, in violation of Section 8(b)(1)(A) of the
employment status of the three individuals and other po- Act. 35 [Emphasis supplied.]
tential supervisor-members. Thus, the record disclosesE Local 659 the respondent
that journeymen lathers consistent with the operation of union's discrimination was not predicated on oppositionunion's discrimination was not predicated on oppositionLocal 46's exclusive hiring hall may be employed as
Local 46'sn exclusivee hiring hal may be employed as to union leadership or other forms of protected concert-
rank-and-file employees on one job and as foremen on ed activities but rather was based on the manner in
another. This fluctuation from supervisory to nonsu-another. This fluctuation from supervisory to nonsu- which the respondent union maintained and applied its
pervisory position has also been experienced by Cahill,
Murtha, and McDermott. Cahill and Murtha both revert- seniority roster. In this regard, the respondent union re-
Murtha. and' Mcerot.ailad urfused to give the disputed individuals experience creditsed to journeymen status for the same employers the day f it
they were removed as foremen. Further, the record dis- for jobs worked for companies not under contract with
closes that foremen are expressly included in the bargain- r ent union and thereby restricted their employ-
ing unit description and receive certain benefits under ment opportunities based strickly on union consder-
the collective-bargaining agreement. While the Board in ations.
such circumstances has declined to find 8(b)(2) violations Similarly, in the case at bar, Local 46 and the nterna-tional restricted the employment opportunities of Cahill,because the individuals involved were statutory supervi-
sors, on the other hand, where, as in the instant case, Murtha, and McDermott by denying them the opportuni-
sors, on the other hand, where, as ties of working as foremen for 1 year. Thus, here, too, as
such conduct coercively impacts on all unit employees in IATSE, Local 659, employment opportunities were
by causing them to fear similar union control over em-
ploy . s . a. r d predicated on union considerations. Further, Local 46,ployment status and related benefits, such conduct re-
strains and coerces athem within the meaning of Section by publicizing this action to the membership at the meet-strains and coerces them within the meaning of Section
8(b)X IXA). 32 ing of October 19, perpetuated the impact it had previ-
As noted above, Cahill, Murtha, and McDermott fluc- ously created on employees when Cahill, Murtha, and
tuated from supervisory to nonsupervisory jobs. I find in McDermott were first suspended and removed as fore-
agreement with the General Counsel that the same men. In these circumstances, the natural consequence of
8(b)(1)(B) conduct described previously also constitutes Local 46's action was to restrain and coerce its members
violations of Section 8(be1)(A) p --vouis Cahill, Murthac s with respect to their Section 7 rights in violation of Sec-violations of Section 8(bXl)(A) vis-a-vis Cahill, Murtha,
and McDermott insofar as such conduct tends to restrain tion 8(b)(1)(A) as alleged. Accordingly, I find that Local
and coerce them under the exclusive hiring hall proce- 46 independently violated Section 8(b)X1)(A) by readingand coerce them under the exclusive hiring hall proce-
dures in their nonsupervisory capacities.33
of the United Association of Journeymen and Apprentices of the Plumbing
' See, e.g., ITO Corporation of Rhode Island. Inc.. supmr Local Union and Pipefitting Industry of the United States and Canada. AFL-CIO
No. 725 of the United Association of Journeymen and Apprentices of the (Powers Regulaor Company), supra.
Plumbing and Pipefitting Industry of the United States and Canada. AFL- " International Photographers of the Motion Picture Industries Local 659
CIO (Powers Regulator Company), 225 NLRB 138, 145 (1976). of the International Alliance of Theatrical Stage Employees and Moving Pic-
' See, e.g., United Association of Journeymen and Apprentices of the ure Mochine Operators of the United States and Canada (MPO-TV of Cali-
Plumbing and Pipefitting Industry Local Union No. 137 (Hames Construc- fornia Inc.. Y-A Productions Inc.), 197 NLRB 1187 (1972).
tion and Equipment Co.. Inc.), 207 NLRB 359 (1973); Local Union No. 725 " Id. at 1191.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing officer's report to the membership on or noted that counsel for the Carpenters did not request ad-
about October 24. ditional time to meet the issues of the consolidated com-
plaint and all amendments thereto, although he was told
6. The Carpenters liability that a reasonable request might be entertained. In these
circumstances, and on the basis of the entire record, I
a. Due process reject the Carpenters contention that it was denied due
Counsel for the Carpenters contends that it was denied process or that it was otherwise prejudiced with respect
due process by a failure of the General Counsel to pro- to litigating the allegations in the complaint.3' Accord-
vide adequate notice of the allegations and an opportuni- ingly, its motion to dismiss the complaint insofar as it re-
ty to defend against them. In this regard, he asserts that lates to the Carpenters is hereby denied.
the Carpenters was not served with a copy of the charge b. Liability
or a complaint naming said Carpenters as a respondent.
Counsel for the General Counsel represented that less The record discloses, as described more fully below,
than 2 weeks before the hearing opened he learned for that contemporaneous with affiliation, the International
the first time from counsel for the International that the became a subdivision of the Carpenters and the latter or-
International had merged with the Carpenters or was in ganization became the "successor" entity. The General
the process of doing so. By letter dated September 7, Counsel asserted that the Carpenters had knowledge of
1979 (6 days before the hearing), counsel for the General the alleged unfair labor practices committed by the Inter-
national at the time of affiliation. He contends thereforeCounsel served all parties, including the Carpenters, with national at the time of affiliation. He ends thereforethat under the principles and rationale enunciated by thea notice of intention to amend the complaint in Case 2- and e
Board in Perma Vinyl3 8 and the Supreme Court's decisionCB-7767 to name the Carpenters as a "successor" to the
in Golden State"9 (citing with approval the Board's Perma
International and as an additional respondent for pur- Vinyl doctrine) the Carpenters is jointly and severally
poses of liability only. A copy of the complaint was en- liable with the International for the latter's unfair labor
closed for the Carpenters. The Carpenters appeared
"specially" at the hearing by counsel for the Internation- Under the Board's Perm Vinyl doctrine a "successor"
al who objected to the amendments citing Section 102.20 Under the Board's Perma Vinyl doctrine a "successor"al who objected to the amendments citing Section 102.20 employer who was a bona fide purchaser but with
of the Board's Rules and Regulations and Statements of knowledge of the predecessor offending employer's
Procedure, Series 8, as amended, which provides for the unfair labor practices at the time of the transaction is
filing of an answer within 10 days. He represented that held responsible for remedying its predecessor's unlawful
the Carpenters had only received the complaint 2 days conduct. 40
before the scheduled hearing date and moved for a con- Counsel for the Carpenters contends principally that it
tinuance to October 30. The amendments were received is unprecedented and unwarranted to extend the Perma
over objection with leave, however, for the Carpenters Vinyl doctrine to an International Union (the Carpen-
to file an answer within 10 days. Further and in order to ters), where, as here, it assertedly did not have actual
provide the Carpenters with a reasonable opportunity to knowledge of the unfair labor practices prior to affili-
prepare for hearing, I granted the continuance of ap- ation and, in any event, Local 46 still exists as a viable
proximately 7 weeks. The Carpenters filed a timely entity capable of providing a full remedy.
answer (G.C. Exh. l(n)) and appeared with counsel Insofar as the threshold question of whether the Car-
when the hearing reconvened on October 29, fully par- penters had "knowledge," I find on the basis of the total-
ticipating therein. ity of the record that it is fair and reasonable to infer
With regard to the failure to provide service of the such knowledge, noting particularly that Brodeur, who
charge and complaint naming the Carpenters as a re- became assistant to the general president of the Carpen-
spondent, it is undisputed that a copy of the complaint ters and an agent thereof at the time of affiliation, was
naming the International as Respondent and also naming also largely responsible for committing the unfair labor
Charles Brodeur as general president and an agent there- practices as general president and agent of the Interna-
of was served on the Carpenters before the hearing tional. This is better understood by noting the events and
opened. This complaint was amended early in the hear- circumstances which gave rise to the affiliation and Bro-
ing and before any testimony was adduced to name Bro- deur's agency status on behalf of the Carpenters.
deur also as agent of the Carpenters in his capacity as as- For a number of years the International explored the
sistant to the general president of the Carpenters. The possibility of affiliating with the Iron Workers and the
charge giving rise to this complaint named Brodeur as Carpenters and engaged in separate negotiations with
the union representative to contact (G.C. Exh. l(c)) and both organizations toward that end. The record discloses
service thereof was admitted in the International's that there was substantial movement toward affiliation
answer (G.C. Exh. 1(m)). In view of the foregoing and
noting that the Carpenters fully participated at the hear- 3 See, e.g., Starkville, Inc.; Hillsdale Manufacturing Corporation: et al.,
ing, I find that it had timely actual notice. 3 6 It is also 219 NLRB 595, 596 (1975).31 Perrma Vinyl Corporation, Dade Plastic Co., 164 NLRB 968 (1967),
enfd. sub nom United States Pipe and Foundry Co. v. N.L.R.B., 398 F.2d
" For reasons discussed more fully below, I find that, at all times ma- 544 (5th Cir. 1968).
terial herein, Brodeur was an agent of the Carpenters. Cf. American 1s Golden State Bottling Company, Inc., d/b/a Pepsi-Cola Bottling Com-
Steamship Company, a Subsidiary of General American Transportation Cor- poany of Sacramento v. N.LR.B., 414 U.S. 168 (1973).
poration, 222 NLRB 1226, 1230-31 (1976). ' See Perma Vinyl Corporation, supra at 969.
LOCAL UNION NO. 46 METALLIC LATHERS 81
between the International and the Carpenters in Septem- Carpenter official testified. Campbell also testified that
ber and October 1978 with an agreement in principle General Counsel McGowen of the Carpenters and
having been reached at a third session in January 1979. Markowitz worked together on finalizing the "legal lan-
The International was represented at these sessions by guage" in the affiliation agreement on April 12 or 13.
General President Brodeur, Secretary-Treasurer Michael Thus, counsel for the respective Unions were in contact
Brennen, and Vice President Harry Sullivan, whereas the approximately 10 days after the charges against the In-
Carpenters were represented by General President Wil- ternational were filed, which further tends to support an
liam Sidell, First General Vice President William inference that the Carpenters learned of the charges
Konyha, and Second General Vice President Campbell. before affiliation was achieved, particularly in the ab-
Campbell testified that, in addition to the agreement in sence of record testimony by these individuals denying
principle on affiliation and in connection therewith, a such knowledge. Brodeur, for example, testified that he
proposal was made for Brodeur to head up the lathers' spoke with General President Sidell on a number of oc-
division for the Carpenters. casions after the last formal negotiating session on affili-
On April 3, 1979, Cahill filed the charges in Case 2- ation in January 1979, but before affiliation was finally
CB-7767"4 against the International (service admitted) achieved on August 7, 1979, and maintained that the
naming Brodeur as the union representative to contact. charges against the International were never discussed.45
Brodeur testified that he "turn[ed] this situation over to As noted above, Sidell did not testify.
his attorney for consideration" and conceded that he It is well settled that the burden is on the "successor"
"thought" that the International was named in the to establish that when it took over the operations of its
charge. Further, he testified that his attorney, Markowitz predecessor it was without knowledge of the offending
(who also represents Local 46) was involved in the final predecessor's unfair labor practices. 4
drafting of the affiliation agreement. On April 13, 1979, As General President Sidell and other key Carpenter
representatives of the International and the Carpenters officials failed to testify and as I have previously rejected
signed this affiliation agreement, which, inter alia, pro- Brodeur's denial that he had informed the Carpenters, I
vided: am unpersuaded that the Carpenters established that it
lacked knowledge of the charges at the time of affili-
4. A Lathing Subdivision will be created within ation. Moreover, the record discloses, as noted above,
the Carpenters which will consist of all former that Brodeur knew in April after the charges were filed
Lathers Local Unions. The General President of the against the International that he would be supervising
Lathers [Brodeur] will assume the title of Assistant the lathers as a subdivision of the Carpenters pending
to the General President of Carpenters, and shall ratification by the International membership. He also
supervise the activities of the Lathing Subdivision. knew before August 7, when affiliation was finally
The three International Representatives of Lath- achieved and he assumed the title of assistant to the gen-
ers shall be integrated into the International staff of eral president of the Carpenters, that the International
Carpenters, and their primary duties and assign- was a "party" to the complaint and that he, too, was per-
ments shall be in the service of the Lathing Subdivi- sonally named therein. In these circumstances, I find it
sion of Carpenters.42 [G.C. Exh. 17., p. 1.] fair and reasonable at all times material herein to impute
Campbell, second general vice president for the Car- the knowledge of Brodeur of the charges against the In-
penters, testified that Brodeur acknowledged in April, at ternational to the Carpenters. In any event, for the rea-
the time the above-noted affiliation agreement was final- sons noted previously and on the basis of the entire
ized, that he would be working for the Carpenters. Ac- record, I find in agreement with the General Counsel
cording to Brodeur, however, he never advised the Car- that the weight of the credible evidence supports the in-
penters about the charges against the International be- ference that Brodeur informed the Carpenters of the
cause he was preoccupied with matters relating to affili- charges before August 7 when affiliation was complet-
ation and because he believed that the charges were ed.47
really the responsibility of Local 46. As Brodeur also tes- Having determined that the Carpenters became a "suc-
tified that he was under the impression the International cessor" with knowledge of pending litigation against the
was named as "a party" in the complaint,'4 I find his ex- International when the latter affiliated and became a sub-
planation incredible and not worthy of belief.44 In this division, I further find that it is responsible for remedy-
regard it is also noted that Brodeur conceded that he ing the unfair labor practices of the International." How-
"probably" discussed the charges with his attorney after
they had been forwarded. While Campbell denied any I place no significance on Brodeur's testimony that Sidell on one
of the charges against the International, i is such occasion requested a copy of the International's financial statement
knowledge of the charges against the International, it is (without giving a reason for the request) because Brodeur also asserted
noted that neither General President Sidell nor any other that the International did not maintain formal records reflecting pending
litigation. Moreover, Brodeur admitted that no one from the Carpenters
4" The earlier charges against Local 46 were filed in Case 2-CB-7620 ever asked him whether the International was involved in the pending
on February 17, 1979. See m-DelCo. Inc. and Compton Service Company, Jointly, and'^ See Arm-Del-Co, Inc. and Compron Service Company, Jointly, end
4: International Representative Diver, the hearing officer who recom- Merchants Home Delivery Service, Inc., 234 NLRB 1040, 1041 (1978).
mended that Brodeur suspend the foremen, was one of the three Interna- '7 See Golden State Bottling Company, Inc. d/i/a Pepsi-Cola Bottling
tional representatives employed by the Carpenters. Company of Sacramento v. N.L R.B.. supra.
" The complaint in Case 2-CB-7767 was issued on May 30, 1979. ' I can discern no legally sufficient basis for declining to apply the
44 I was also unimpressed with Brodeur's demeanor and his overall Perma Vinyl doctrine against "successor" unions, particularly where, as in
credibility. Continued
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, as the Perma Vinyl doctrine is predicated on princi- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
pies in equity, 49 as the Carpenters has not engaged in any UPON COMMERCE
wrongdoing, and as it appears that the International has
largely remained intact as a subdivision of the Carpenters The activities of Respondents set forth i section III,
without the commingling of funds, I shall recommend above, occurring in connection with the operations of
that the Lathers' subdivision of the Carpenters and Local the Employers named and described in section 1, above,
46 be jointly and severally liable and the Carpenters sec- have a close, intimate, and substantial relationship to
ondarily liable to remedy the unfair labor practices found trade, traffic, and commerce among the several States
herein. and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. The League, the Association, Dic, Brady, and V. THE REMEDY
J.P.D. are now, and have been at all times material Having found that Respondents Local 46 and the In-
herein, employers engaged in commerce within the ternational have engaged in certain unfair labor practices
meaning of Section 2(2), (6), and (7) of the Act. within the meaning of Section 8(b)(l)(A) and (B) of the
2. Respondents are labor organizations within the Act, I shall recommend that they be ordered to cease
meaning of Section 2(5) of the Act. and desist therefrom and to take certain affirmative
3. On or about August 7, 1979, the International affili- action designed to effectuate the policies of the Act.
ated with the Carpenters and became a subdivision there- Having found that Local 46 and the International were
of,50 with the Carpenters emerging as the "successor" responsible for unlawfully seeking and obtaining the re-
entity. moval of Cahill, Murtha, and McDermott as foremen for
4. Michael Cahill, William Murtha, and Lawrence their respective employers by, inter alia, suspending them
McDermott, at all times material herein, have been em- as foremen in violation of Section 8(b)(l)(A) and (B) of
)(B) ofployer representatives within the meaning of Section the Act, I shall recommend that they cease and desist8(b)(IXB) of the Act.
5. Local 465' has violated Section 8(b)(1)(B) of the Act therefrom and that they be ordered to notify the sus-
by invoking its constitution to cause the suspension of pended foremen and their former employers, Dic, Brady,
Cahill, Murtha, and McDermott as foremen for their re- and J.P.D., in writing, that they have no objection to
spective employers, by independently coercing McDer- their serving as foremen. As the I-year suspension for
mott to accept the impending suspension, and by de- Cahill, Murtha, and McDermott has long past, and
manding that employers remove these individuals as noting that they were employed at jobsites in the con-
foremen during the period of their suspension. By such struction industry with the strong likelihood that the
conduct and by additionally publicizing to its member- work that they were assigned to supervise has long been
ship the report and recommendations of the Internation- completed, I shall not recommend that they be ordered
al's hearing officer, which included suspending Cahill, reinstated to their former positions. However, I shall rec-
Murtha, and McDermott as foremen for 1 year, Local 46 ommend that Local 46 and the International be jointly
has also restrained and coerced employees and potential and severally liable to make Cahill, Murtha, and McDer-
supervisors with respect to their Section 7 rights under mott whole for any loss of earnings and benefits they
the Act in violation of Section 8(b)(1)(A) of the Act. may have suffered by reason of their suspensions and re-
6. The International has violated Section 8(b)(1)(B) of moval as foremen.5 2 With regard to the Carpenters, I
the Act by adopting the hearing officer's recommenda- have found for reasons previously stated that it is liable
tion that Cahill, Murtha, and McDermott be suspended as a "successor" to the International; but, noting, inter
as foremen for 1 year, thereby further enforcing the un- alia, that the International has largely remained intact as
lawful action taken by Local 46. By such conduct, the a subdivision of the Carpenters with its own funds, I
International has also restrained and coerced employees shall recommend that the Carpenters only be held sec-
in the exercise of their rights guaranteed in Section 7 of ondarily liable for the unfair labor practices committed
the Act in violation of Section 8(b)(l)(A) of the Act. by the International for the purpose of making Cahill,
7. The Carpenters is secondarily responsible for reme- Murtha, and McDermott whole for the backpay due in
dying the unfair labor practices committed by the Inter- the manner set forth hereinabove.
national. I shall also recommend for reasons stated in Hickmott
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act. Foods, Inc, 242 NLRB 1357 (1979), that Local 46 and the
International be ordered to cease and desist in any like or
related manner from restraining or coercing employees
the instant case, the Carpenters admittedly never asked International offi- in the excercise of the rights guarenteed them in Section
cials whether it was involved in pending litigation. in the excrcise of the rights guarnteed them in Section
4t See Perma Vinyl Corporation, supra at 969. 7 of the Act.
M The record discloses that the International became known as the [Recommended Order omitted from publication.]
Lathing Subdivision of the United Brotherhood of Carpenters and Joiners
of America (G.C. Exh. 19).
"s As noted previously, Local 46 (fn. 3) severed its relationship with "1 Backpay shall be computed in the manner set forth in F W Wool-
the International and affiliated with the International Association of worth Company, 90 NLRB 289 (1950), and interest thereon as set forth in
Bridge, Structual and Ornamental Iron Workers. It is now Local Union Florida Steel Corporation, 231 NLRB 651 (1977). See, generally. Isis
No. 46 Metallic Lathers and Reinforcing Iron Workers (Resp. Exh. 12). Plumbing 4 Heating Co., 138 NLRB 716 (1962).