Sheet Metal Workers Local 104 (Brisco Sheet Metal)

National Labor Relations Board - Board Decisions

May 20, 1993

311 N.L.R.B. 99 (N.L.R.B. 1993)

99
311 NLRB No. 19
SHEET METAL WORKERS LOCAL 104 (BRISCO SHEET METAL)
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 We correct the following inadvertent omissions from the judge’s
quotation of item 33 of the collective-bargaining agreement at sec.
I,A,1, par. 2 of his decision: in sec. C, ‘‘before’’ should be inserted
between ‘‘Code,’’ and ‘‘being,’’ and in sec. D, ‘‘to notify the other
party of any employee with a current’’ should be inserted between
‘‘Management’’ and ‘‘contractors.’’
Sheet Metal Workers International Association
Local Union No. 104 (Brisco Sheet Metal, Inc.)
and Richard L. Anderson. Case 20–CB–8803
May 20, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 19, 1992, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
General Counsel and Charging Party filed exceptions
and supporting briefs, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
The judge found that the Respondent did not violate
Section 8(b)(1)(A) of the Act by charging and fining
member Richard Anderson for violating a rule of the
Respondent incorporated in its collective-bargaining
agreement with the Employer, which prohibits em-
ployee-members from possessing an active California
state contractors’ licenses.2
The General Counsel excepts to the judge’s deci-
sion, arguing, inter alia, that the testimony of Union
Representative David Browning establishes that the
Respondent charged and fined Anderson because of his
postresignation conduct of operating a nonunion sheet
metal business. We disagree.
Browning testified that during the last 2 weeks of
May 1991, he received complaints from three employ-
ees that Anderson was going into business for himself.
Browning investigated these complaints but found no
evidence that Anderson was in business as a sheet
metal contractor. Subsequently, however, on June 3,
Browning received Anderson’s letter of resignation
from the Union. Browning decided to resume his in-
vestigation into Anderson’s status as a contractor.
Browning testified that he became suspicious that An-
derson was violating the collective-bargaining agree-
ment and that his resignation was an attempt to escape
internal union discipline. On further investigation,
Browning found that Anderson had possessed an active
California state contractor’s license since August 1990
in violation of the collective-bargaining agreement.
Browning charged Anderson with a violation of the
collective-bargaining agreement and imposed a $2850
fine that had been suspended from a previous unrelated
contract violation.
Browning testified that he ‘‘asked for the imposition
of the fine because Mr. Anderson was in violation of
the constitution and contract prior to May 31.’’ How-
ever, when asked by counsel for the Charging Party
whether he would have done that if Anderson had
opened a union shop, Anderson replied, ‘‘I don’t
know. That never happened. It’s hypothetical.’’ When
pressed, Browning testified that he would ‘‘possibly
not’’ have sought the fine if Anderson had signed a
contract with the Union. Browning stated that he
would be a union contractor at that point and would
be in compliance with the collective-bargaining agree-
ment. When asked to clarify, Browning said that
‘‘there are too many circumstances to really respon-
sibly answer that. He may not have resigned from the
Union to open a Union shop. He may have remained
a member of the Union to open a Union shop. There
are a lot of things in there that did not happen that I
can’t tell you about. Speculation.’’ Browning also tes-
tified that it is not a violation of the collective-bargain-
ing agreement for an owner-member to maintain an ac-
tive contractor’s license and sign a contract with the
Respondent.
The judge found, and we agree, that Browning’s tes-
timony, when viewed in its entirety, does not rise to
the level of an admission against interest and is no
more than speculation. Browning was asked a hypo-
thetical question and responded by stating what he
‘‘possibly’’ might not have done. Furthermore, it is not
even clear that Browning was addressing the scenario
of an employee-member possessing an active contrac-
tor’s license, resigning, and then operating a union
shop. Thus, during further questioning, Browning stat-
ed that Anderson might have remained a union mem-
ber if he opened a union shop and also referred to
owner-members being permitted under union rules to
hold active licenses and engage in contracting if they
sign a contract with the Respondent. The import of this
line of testimony is, at best, uncertain. In contrast, the
judge credited Browning’s testimony that his decision
to investigate, charge, and fine Anderson was based
solely on Anderson’s preresignation conduct of pos-
sessing an active contractor’s license. We do not be-
lieve that the conjectural and obscure testimony relied
on by the General Counsel provides sufficient basis to
warrant reversing the judge’s finding that the Respond-
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 We do not rely on the judge’s statement in sec. I,B,I, par. 5 of
his decision, that the Respondent’s discipline of Anderson would not
violate Sec. 8(b)(1)(A) even if the Respondent had not made Ander-
son aware of his obligation to deactivate his license while employed
by the Employer. It is undisputed that Anderson possessed a copy
of the Respondent’s 1986–1989 collective-bargaining agreement with
the Employer, which contains the provision prohibiting the conduct
at issue, and a copy of the Respondent’s ‘‘Constitution and Ritual’’
which provides for internal union discipline in the event that a mem-
ber violates any of the rules established by the collective-bargaining
agreement. In addition, the record shows that the Respondent had
disciplined other members for the same violation. Accordingly, we
find that Anderson had sufficient notice that he could be subject to
internal union charges and discipline for possessing an active state
contractor’s license while employed by a signatory employer.
We agree with the judge that there is no merit in the General
Counsel’s contention that the Respondent’s rule was not reasonably
enforced against Anderson. However, we do not rely on the judge’s
alternative rationale in sec. I,B,I, par. 10 of his decision, that even
assuming the rule was not reasonably enforced and did not reflect
a legitimate union interest, its enforcement against Anderson still did
not violate Sec. 8(b)(1)(A) because it ‘‘did not affect Anderson’s
employment or employment opportunities nor did it contravene any
federal policy.’’
1 In its answer to the complaint Respondent admits it is a labor
organization within the meaning of Sec. 2(5) of the Act and in its
answer, as amended at the start of the hearing, admits that the Em-
ployer meets the Board’s applicable discretionary jurisdictional
standard and is an employer engaged in commerce within the mean-
ing of Sec. 2(6) and (7) of the Act. I therefore find it will effectuate
the polices of the Act for the Board to assert its jurisdiction in this
case.
ent’s decision to discipline Anderson was not moti-
vated by postresignation conduct.3
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Mary Vail, Esq., for the General Counsel.
Kathryn A. Sure, Esq. (Wylie, McBride, Jesinger, Sure &
Platten), for the Respondent.
Michael P. Merrill, Esq. (Merrill & Arnone), for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which a hearing was held on June 4, 1992,
is based on an unfair labor practice charge filed on October
9, 1991, by Richard L. Anderson (Anderson), and on a com-
plaint issued on November 23, 1991, on behalf of the Gen-
eral Counsel of the National Labor Relations Board (the
Board) by the Board’s Regional Director for Region 20, al-
leging that Sheet Metal Workers International Association
Local Union No. 104 (Respondent) has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) of the National Labor Relations Act (the
Act).
The complaint, in substance, alleges that on or about July
26, 1991, Respondent violated Section 8(b)(1)(A) of the Act
by charging Anderson, a member of Respondent, with having
violated a rule of Respondent contained in the collective-bar-
gaining agreement between Respondent and Anderson’s em-
ployer, Brisco Sheet Metal, Inc. (Employer), and by impos-
ing a fine on Anderson for having violated that rule. Re-
spondent filed an answer denying the commission of the al-
leged unfair labor practices.1
On the entire record, and from my observation of the de-
meanor of the witnesses and having considered the parties’
posthearing briefs, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The setting
Respondent represents employees employed by employers
in the sheet metal industry who do business in northern Cali-
fornia. One of these employers is the Employer, by whom
Anderson, the Charging Party in this case, was employed as
a journeyman sheet metal worker from April 1980 until May
31, 1991, when he voluntarily terminated his employment.
Anderson was a member of the Respondent, during this en-
tire period.
The most recent collective-bargaining agreement between
Respondent and the Employer, effective from July 1, 1989,
to June 30, 1992, contains in its addendum the following
provision relevant to this case:
ITEM 33. DEFINITION OF EMPLOYEE
. . . .
Section B. All sheet metal work shall be performed
by employees employed under terms of this Agreement
and applicable addenda. No employee shall become a
contractor or sub-contractor for the performance of any
work covered by this Agreement while employed or
registered for employment in the Hiring Hall Facilities
under this Agreement.
Section C. Employee or applicants for employment
holding a State Contractor’s License of any kind shall
inactivate their license in accordance with the Business
and Professions Code, being eligible for the use of or
continued employment under the Hiring Hall Facilities.
Section D. For the purpose of enforcing the above
provisions it shall be the mutual responsibility of Labor
and Management contractors license which includes the
scope of work covered under this agreement.
The term ‘‘Hiring Hall Facilities’’ in the aforesaid contract
provision refers to that part of the Employer’s collective-bar-
gaining agreement with Respondent, which provides that Re-
spondent shall be the sole and exclusive source of referrals
of applicants for employment with the Employer.
It is undisputed that when the Employer hired Anderson
in April 1980, the manner in which he was hired complied
with the provisions in the then governing collective-bargain-
ing agreement between Respondent and Employer, which re-
101SHEET METAL WORKERS LOCAL 104 (BRISCO SHEET METAL)
quired the Employer to hire exclusively through the Re-
spondent’s hiring hall facility; on being hired by the Em-
ployer, Anderson went to Respondent’s hiring hall facility
where he secured a timely dispatch or referral to his job with
the Employer.
Also relevant to this case is section 1(e) of article 17 of
the ‘‘Constitution and Ritual’’ of Respondent’s parent orga-
nization, Sheet Metal Workers’ International Association,
which states, in substance, that a member of Respondent is
subject to internal union discipline for ‘‘[v]iolating the estab-
lished union, collective bargaining agreements and rules and
regulations of any local union relating to rates of pay, rules
and working conditions.’’
During the period encompassed by the Employer’s 1989–
1992 collective-bargaining agreement with the Respondent,
the Respondent’s collective-bargaining agreements with other
employers in the sheet metal industry contained the above-
described provision forbidding unit employees from possess-
ing active contractors’ licenses. This provision or a similar
one has been included in Respondent’s collective-bargaining
agreements with employers in the sheet metal industry, in-
cluding the Respondent’s agreements with the Employer,
since at least the early 1980s.
Respondent and the employers who have collective-bar-
gaining agreements with it, have historically included this
provision in their agreements because of the potential serious
conflict of interest between the employers and bargaining
unit employees with active contractors’ licenses. Respondent
and the employers under contract with it have learned from
experience that bargaining unit employees with active con-
tractors’ licenses not only will compete for business, against
their employers, but also will use their positions as unit em-
ployees to discover what their employers are bidding for jobs
and then use this information to underbid their employers, re-
sulting in a loss of business for the employers and a loss of
work for the employers’ employees represented by Respond-
ent. In short, Respondent’s principal purpose for agreeing to
include this provision in its collective-bargaining agreements
was to prevent the signatory employers from losing business
and the unit employees employed by those employers and
represented by Respondent from losing work.
On November 2, 1989, Respondent’s business representa-
tive Dave Browning, the business representative assigned to
police the Employer’s contract with the Respondent, filed in-
ternal union charges with Respondent against Anderson, con-
taining allegations which are not relevant to this case. On
January 9, 1990, Anderson was tried on those charges by Re-
spondent’s trial committee. On January 19, 1990, Respond-
ent’s president notified Anderson, by letter, that the trial
committee had found him guilty as charged and had rec-
ommended
Anderson be fined the sum of $3,000. One Hundred
Fifty dollars ($150.00) which is to be paid within nine-
ty (90) days from the date of this notice and $2,850 to
be suspended for a probationary period of three years
from date of this notice and this fine shall be paid in
addition to any future violations and fines during this
period.
Respondent’s president in this letter also informed Ander-
son that the trial committee’s findings and recommendations
had been upheld at a general membership meeting and that
Anderson had the right to appeal the trial committee’s find-
ings and recommendations.
Anderson exercised his right to appeal to the executive
council of the Respondent’s parent organization. It denied his
appeal. Anderson at this point chose not to press the matter
further and apparently paid the $150 fine.
2. Respondent’s decision to revoke its suspension
of Anderson’s fine and the events leading up to
that decision
Late in January 1990, Anderson attended contractors’
school and enrolled in the course required for a sheet metal
contractor’s license. Subsequently, he took and passed the
test administered by the State of California for a sheet metal
contractor’s license. On or about August 2, 1990, he received
his license from the State of California. Anderson retained
this license for the remainder of his employment with the
Employer; he did not take the necessary steps to place his
license in an inactive status. However, there is no evidence
that while employed by the Employer, he ever worked as, or
did business as, a sheet metal contractor. Rather, the record
reveals Anderson went into business as a sheet metal con-
tractor on or about June 15, 1991, after he terminated his
employment with the Employer and resigned from Respond-
ent. Anderson does business as RLA Sheet Metal and does
not have a contract with the Respondent.
Anderson testified he did not inform Respondent or its
agents that he had enrolled in contractors’ school or pos-
sessed a contractor’s license or intended to go into business
as a contractor. Nor does the record contain other evidence
that Anderson, during his employment with the Employer, ei-
ther said or did anything which would warrant the inference
that during that period Respondent knew or reasonably
should have known he possessed an active contractor’s li-
cense.
On May 20, 1991, Anderson wrote the Employer stating,
in substance, he intended to terminate his employment effec-
tive June 1, or earlier. On Friday, May 31, 1991, Anderson
terminated his employment with the Employer. On the same
day the Employer mailed a notice to the Respondent stating
that on May 31, Anderson had terminated his employment.
David Browning, the business representative responsible for
policing Respondent’s contract with the Employer, received
this notice on Monday, June 3, 1991.
On May 31, 1991, Anderson tendered to Respondent his
resignation from membership. He did this by letter mailed to
Respondent’s headquarters located in San Francisco, Califor-
nia. Anderson’s letter of resignation was received by Re-
spondent’s San Francisco office on Monday, June 3, and for-
warded to Browning’s office in Petaluma, California. Brown-
ing did not receive Anderson’s letter of resignation until June
4 or 5.
During the last 2 weeks of May 1991, more than a week
prior to his receipt of the Employer’s notice of Anderson’s
termination, Browning was informed by three of Respond-
ent’s members, who were employed by the Employer, that
they had heard Anderson was going into business as a non-
union sheet metal contractor. On receipt of this information,
Browning immediately commenced to investigate. He visited
the Employer’s jobsites, where he observed Anderson at
work for the Employer. He also spoke to several of the Em-
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Although it is a violation of Respondent’s constitution for an
owner-member to operate a nonunion business, it is not considered
improper for an owner-member (as distinct from an employee-mem-
ber) to operate his or her business under contract with the Respond-
ent.
ployer’s employees, who confirmed that Anderson was still
employed by the Employer. He also drove by Anderson’s
home to look for evidence which indicated Anderson was in
business for himself, and found none. This ended Browning’s
investigation. He concluded that the members who had heard
Anderson was going into business for himself as a nonunion
sheet metal contractor were mistaken.
Subsequently, on June 3, as described supra, Browning re-
ceived the Employer’s notice that Anderson had terminated
his employment as of Friday, May 31, 1991. The receipt of
this information did not prompt Browning to resume his in-
vestigation of Anderson’s status as a sheet metal contractor.
But, when, on either June 4 or 5, he received Anderson’s let-
ter of resignation, Browning decided to resume his investiga-
tion into Anderson’s status as a contractor. Browning, among
other things, checked with the several municipalities in the
area to determine if Anderson was licensed to do business
and checked with the California State Contractors’ License
Board to determine whether Anderson possessed a sheet
metal contractor’s license. His investigation failed to uncover
evidence that Anderson, while employed by the Employer,
had engaged in business as a sheet metal contractor. It did
reveal, however, that Anderson since about August 2, 1990,
had possessed an active sheet metal contractor’s license.
On July 26, 1991, Browning, acting in his capacity as Re-
spondent’s business representative, wrote William James
Hill, Respondent’s financial secretary treasurer, the following
letter:
Please be advised that investigation has revealed that
Richard L. Anderson . . . was in possession of an ac-
tive California State Contractors License ( . . . C–20
classification) prior to his resignation from the Sheet
Metal Workers International Association of May 31,
1991.
This information constitutes violation of contract lan-
guage, and therefore also of the following provision of
the Constitution and Ritual of the Sheet Metal Workers’
International Association:
Article Seventeen (17) 1(e)
Therefore, the portion of the fine imposed and sus-
pended by order of the Trial Committee of January 9,
1990 is due and payable.
On August 6, 1991, Hill, on Respondent’s behalf, wrote
Anderson a letter, in which he enclosed a copy of Brown-
ing’s July 26 letter. Hill’s August 6 letter to Anderson reads:
Re: Violation of Probationary Period
Dear Sir:
Please find enclosed a copy of a letter from Local
No. 104 Business Representative, Dave Browning, in
which it is alleged that you are violating the provisions
of the Local No. 104 Trial Committee’s Findings and
Recommendation. (See attached.)
Prior to initiating litigation to collect the amount of
fine suspended, Two Thousand Eight Hundred and Fifty
Dollars ($2,850) plus all collection costs, you are ad-
vised of the opportunity to refute the allegation of vio-
lation by requesting a hearing on the matter before the
Local No. 104 Trial Committee.
Please contact this office, and the undersigned, with-
in ten (10) days from the mailing date of this letter if
you require a hearing to be scheduled or not. Lack of
response from you within the ten (10) days will cause
this office to initiate appropriate collection proceedings.
Anderson did not, as instructed, contact Respondent to re-
quest an opportunity to be heard by Respondent’s trial com-
mittee.
On August 20, 1991, by letter, Respondent’s attorneys no-
tified Anderson that Respondent was demanding immediate
payment of his $2850 fine and that Respondent’s lawyers
were authorized to collect that fine and would also seek at-
torneys’ fees and costs incurred in addition to the total
amount of the award.
Browning testified his only reason for seeking to have Re-
spondent reimpose Anderson’s $2850 suspended fine was be-
cause Anderson, prior to his May 31, 1991 resignation from
Respondent, by working for the Employer while possessing
an active contractor’s license, had violated Respondent’s col-
lective-bargaining agreement and constitution. Browning was
then asked, by counsel for the Charging Party, if he would
still have asked Respondent to reimpse Anderson’s sus-
pended fine, if, after resigning from Respondent and termi-
nating his employment with the Employer, Anderson had
opened a ‘‘Union Shop’’? Anderson answered, ‘‘I don’t
know. That never happened. It’s hypothetical.’’ However,
when counsel pressed him for an answer to that question,
Browning testified that if, after resigning from Respondent
and terminating his employment with the Employer, Ander-
son had opened a union shop and signed a contract with the
Respondent, Browning would ‘‘possibly not’’ have sought
the reimposition of Anderson’s suspended fine because, as
Browning testified, ‘‘[Anderson] would not be damaging the
Union at that point. He’d be a Union contractor. He’d be in
compliance as far as I was concerned. I could waive that.’’
Later, during his further questioning of Browning, counsel
for the Charging Party reminded Browning that he had pre-
viously testified that if, after resigning from Respondent, An-
derson had opened a union shop, Browning might have
waived and not pursued Anderson’s prior conduct of working
for the Employer with an active contractor’s license. Brown-
ing answered, as he had done initially, that that testimony
was unreliable due to the hypothetical nature of the question:
specifically, Anderson testified, ‘‘there are too many cir-
cumstances to really responsibly answer that. [Anderson]
may not have resigned from the Union to open a Union
shop. He may have remained a member of the Union to open
a Union shop.2 There are a lot of things there that did not
happen I can’t tell you about. Speculation.’’
As described above, Respondent’s collective-bargaining
agreements have historically contained a provision which re-
quires the employees represented by Respondent to deacti-
vate their state contractors’ licenses while employed by an
employer under contract with Respondent. There is no evi-
dence that if an employee-member with an active state con-
tractor’s license does not use it to do business while em-
103SHEET METAL WORKERS LOCAL 104 (BRISCO SHEET METAL)
3 R. Exhs. 6 and 7 were introduced into evidence by Respondent
for the sole purpose of establishing that Respondent’s employee-
members, including Anderson, had noticed that Respondent dis-
ciplined employee-members who worked as employees while pos-
sessing active contractors’ licenses. I admitted these exhibits into
evidence, over the objection of the Charging Party, only for this lim-
ited purpose.
ployed as an employee, that Respondent does not discipline
him or her for possessing an active contractor’s license while
employed by an employer under contract with the Respond-
ent. On the other hand, Respondent introduced no evidence
that in the past that Respondent had disciplined employee-
members for engaging in this kind of conduct.3 However,
during the cross-examination of Respondent’s witness Hill,
counsel for the General Counsel, established that during the
time material internal union charges were filed against em-
ployee-members Valladao and Barry for merely possessing
(not using) active state contractor’s licenses while employed
by employers under contract with Respondent.
On May 28, 1991, employee-member Valladao was
charged and subsequently the Respondent’s trial committee
fined him $5436 for possessing an active contractor’s license
while employed by his employer.
On August 19, 1991, employee-member Barry was
charged and subsequently Respondent’s trial committee fined
him $9500 for possessing an active contractor’s license while
employed by his employer. In Barry’s case, the trial commit-
tee imposed such a large fine because in deciding on the
amount of fine, it took into account the fact that Barry had
activated his inactive contractor’s license after having been
expressly warned by one of the Respondent’s business rep-
resentatives that he should not work for the Employer, if he
possessed an active contractor’s license. In this last regard,
the record establishes that Barry, who had an active contrac-
tor’s license, was not employed by an employer under con-
tact with the Respondent, but wanted to go back to work for
an employer that was under contract with the Respondent
and when the Respondent’s business representative was in-
formed of this, he instructed Barry to deactivate his contrac-
tor’s license before going to work for a signatory employer.
Barry followed this instruction and deactivated his contrac-
tor’s license and was then dispatched by the Respondent’s
hiring hall facility to a signatory employer, but during the
time he was employed by that employer he reactivated his
contractor’s license and when Respondent discovered this, it
filed charges against him which resulted in his being dis-
ciplined. In view of these undisputed facts, counsel for the
General Counsel’s assertion, in her posthearing brief that
‘‘[Barry] was allowed to deactivate [his] license without pen-
alty,’’ is not accurate insofar as it suggests that Respondent
initially did not charge and discipline him for working for a
signatory employer while he possessed an active contractor’s
license.
B. Discussion and Conclusions
The essential facts, which have been set forth in detail
supra, may be briefly summarized, as follows. Historically,
Respondent’s collective-bargaining agreements with employ-
ers, including the Employer, doing business as sheet metal
contractors, have included a provision which, in substance,
prohibits bargaining unit employees from possessing an ac-
tive state contractor’s license. It is also a violation of the Re-
spondent’s ‘‘Constitution and Ritual’’ for an employee-mem-
ber to violate the aforesaid contractual provision. Anderson,
an employee-member of Respondent, during his last 10
months of employment with the Employer, possessed an ac-
tive state contractor’s license, in violation of the aforesaid
contractual and constitutional provisions. Anderson termi-
nated his employment with the Employer on May 31, 1991,
and at the same time tendered his resignation to the Re-
spondent, which was received on June 3, 1991. Subse-
quently, Respondent charged Anderson with violating Re-
spondent’s constitution and ritual by working for the Em-
ployer while possessing an active state contractor’s license,
in violation of the governing collective-bargaining agreement,
and fined him $2850 for engaging in that conduct.
The ultimate question presented is whether by charging
and fining Anderson because he violated the governing col-
lective-bargaining agreement and therefore the Respondent’s
constitution and ritual, by working for the Employer while
possessing an active state contractor’s license, Respondent
violated Section 8(b)(1)(A) of the Act. In her posthearing
brief, counsel for the General Counsel advances the follow-
ing alternate theories in support of the alleged violation: (1)
Respondent’s rule, which requires that its employee-members
‘‘inactivate’’ their state contractors’ licenses while employed
by employers under contract with the Respondent, was not
reasonably enforced against Anderson; (2) Anderson was
charged and fined because he resigned from Respondent; or
(3) Anderson was charged and fined in retaliation for his
postresignation conduct of operating a nonunion business.
For the reasons below, these contentions lack merit, and I
shall recommend that the complaint be dismissed in its en-
tirety.
II.
Under Section 7 of the Act, employees are guaranteed the
‘‘right to self-organization, to form, join, or assist labor orga-
nizations . . . and to engage in other mutual aid or protec-
tion, and shall also have the right to refrain from any or all
such activities . . . .’’ Section 8(b)(1)(A) of the Act makes
it an unfair labor practice for a union to ‘‘restrain or coerce’’
employees in the exercise of the rights guaranteed them by
Section 7. A proviso to Section 8(b)(1)(A) preserves the right
of a union ‘‘to prescribe its own rules with respect to the ac-
quisition or retention of membership therein.’’
The Supreme Court in Scofield v. NLRB, 394 U.S. 423,
430 (1969), interpreted the proviso to Section 8(b)(1)(A) and
in doing so laid down the following principle, which the
General Counsel contends applies to this case: ‘‘Sec. 8(b)(1)
leaves a union free to enforce a properly adopted rule which
reflects a legitimate union interest, impairs no policy Con-
gress has imbedded in the labor laws, and is reasonably en-
forced against union members who are free to leave the
union and escape the rule. [Emphasis added.]’’
Counsel for the General Counsel argues that the record es-
tablishes that the reasonable enforcement requirement of the
Scofield test was not complied with by the Respondent be-
cause of the following factors: prior to disciplining Anderson
for merely possessing an active contractor’s license (as dis-
tinct from possessing and using the license to do business as
a contractor), Respondent had not disciplined its employee-
members for that this type of conduct; in the one case where
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent instructed an employee-member (Barry) to de-
activate his state contractor’s license, the member was al-
lowed to deactivate his contractor’s license, without being
disciplined by Respondent; and, there is a lack of evidence
Respondent informed its employee-members, including An-
derson, that they would be subject to internal union dis-
cipline for merely possessing active contractors’ licenses
while working for an employer under contract with the Re-
spondent. These contentions are either factually without sup-
port or, even if true, do not as a matter of law warrant the
conclusion that Respondent’s discipline of Anderson violated
Section 8(b)(1)(A) of the Act.
Contrary to the General Counsel’s assertion, as I have
found supra, there is no evidence of disparate treatment.
More specifically, there is no evidence that Respondent treat-
ed Anderson differently than other employee-members, simi-
larly situated, when it disciplined him for possessing an ac-
tive state contractor’s license while employed by the Em-
ployer, even though it had no evidence Anderson did busi-
ness as a contractor during that time period. Quite the oppo-
site, as I have found supra, in at least two instances, Re-
spondent disciplined employee-members, who, like Ander-
son, merely possessed active state contractors’ licenses while
employed by employers under contract with Respondent.
It is unnecessary to decide whether Respondent gave An-
derson notice that as an employee-member he was obligated
by the governing collective-bargaining agreement and Re-
spondent’s constitution and ritual to deactivate his contrac-
tor’s license while employed by the Employer, or face inter-
nal union discipline. I have not decided whether Anderson
received adequate notice of this obligation because, as de-
scribed in detail supra, it is undisputed that Respondent’s dis-
cipline of Anderson did not affect his employment or em-
ployment opportunities. Thus, Respondent’s discipline of An-
derson for violating Respondent’s rule here would not violate
Section 8(b)(1)(A) of the Act, even if Respondent had not
made Anderson aware of his obligation as an employee-
member to deactivate his state contractor’s license while em-
ployed by the Employer. See Carpenters Local 720 v. NLRB,
798 F.2d 781 (5th Cir. 1986).
I considered that the court in Carpenters Local 720 re-
fused to enforce the Board’s decision, and as an administra-
tive law judge of the Board, I am obliged to follow the deci-
sion of the Board rather than the court’s. However, the facts
in Carpenters Local 720 differ significantly from those in the
instant case. There, the Board found the union violated Sec-
tion 8(b)(1)(A) by imposing discipline on an employee-mem-
ber for refusing to obey a change made by the union in its
hiring hall policy, even though the union’s membership had
not received advance notice of the policy change. Carpenters
Local 720 (UMC of Louisiana), 276 NLRB 59 (1985). Here,
there was no change in union policy. To the contrary, as I
have found supra, historically the employee-members of the
Respondent were obligated by Respondent’s constitution and
ritual and by the governing collective-bargaining agreements
with the employers in the sheet metal industry to deactivate
their state contractors’ licenses or face internal union dis-
cipline. Indeed, it is undisputed that when Anderson received
his state contractor’s license he possessed a copy of the Re-
spondent’s constitution and ritual and a copy of the Respond-
ent’s 1986–1989 contract with the Employer, which con-
tained the provisions obligating the employee-members of
Respondent to deactivate their state contractors’ licenses.
There is no evidence, or even a contention, that Respond-
ent’s rule requiring employee-members to deactivate their
state contractors’ licenses, as it was applied to Anderson, in-
vaded or frustrated any policy Congress has imbedded in the
labor laws. I therefore find that the rule, as it was applied
by Respondent to Anderson, did not invade or frustrate any
policy Congress has imbedded in the labor laws.
Counsel for the General Counsel in her posthearing brief
does not contend that Respondent’s rule here, as enforced
against Anderson, did not reflect a legitimate union interest
as contemplated by Scofield. However, as set forth in detail
infra, the complaint alleges that Respondent’s discipline of
Anderson violated the Act because Respondent’s enforce-
ment of its rule against Anderson was not ‘‘reasonably relat-
ed to a legitimate goal and function of Respondent.’’ I dis-
agree because the record establishes Respondent had a legiti-
mate interest in requiring that Anderson deactivate his state
contractor’s license while employed by the Employer, even
though Respondent had no evidence that he used his license
to do business as a contractor while employed by the Em-
ployer. For, as I have found supra, Respondent has learned
from past experience that unit employees, who, like Ander-
son, possess active state contractors’ licenses, in fact com-
pete for business with their employers, and in doing so use
their positions as unit employees to discover their employers’
bids and then use this information to submit lower bids, re-
sulting in a loss of work for the unit employees represented
by the Respondent. In view of this, when Respondent learned
Anderson had possessed an active state contractor’s license
while employed by the Employer, Respondent was not re-
quired to wait before disciplining him until it had evidence
he had actually used his license while employed by the Em-
ployer. Rather, Respondent had a legitimate interest in en-
forcing against Anderson the contractual and constitutional
provisions which forbade employee-members of Respondent
from working for employers while possessing active state
contractors’ licenses.
It is for the foregoing reasons that I reject General Coun-
sel’s contention that Respondent’s rule here, as it was en-
forced against Anderson, did not comply with the reasonable
enforcement requirement of the Scofield test. Alternatively, I
find that even assuming the rule, as applied to Anderson, was
not reasonably enforced and/or did not reflect a legitimate
union interest, its enforcement against Anderson still did not
violate Section 8(b)(1)(A) of the Act, because the enforce-
ment of the rule against Anderson did not affect Anderson’s
employment or employment opportunities nor did it con-
travene any Federal policy.
III.
The previous discussion of the legality of Respondent’s
enforcement against Anderson of its rule forbidding em-
ployee-members with active state contractors’ licenses from
working for employers under contract with Respondent was
based on the assumption that Respondent enforced the rule
against Anderson because, while employed by the Employer,
he possessed an active state contractor’s license. Counsels for
the General Counsel and the Charging Party take the posi-
tion, however, that Respondent used its knowledge of Ander-
son’s possession of an active state contractor’s license while
105SHEET METAL WORKERS LOCAL 104 (BRISCO SHEET METAL)
4 Wright Line, 251 NLRB 1083 (1983). The Board’s use of the
Wright Line analysis with respect to alleged violations of Sec.
8(a)(3) of the Act was endorsed by the Supreme Court in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
5 I have examined the entire record to determine if a prima facie
case of improper motivation has been shown. See generally Greco
& Haines, Inc., 306 NLRB 634 (1992).
employed by the Employer, as an excuse to discipline him
for having resigned from Respondent. If they are correct and
the real reason for Respondent’s discipline of Anderson was
to punish him for resigning from Respondent, then Respond-
ent’s discipline of Anderson violated Section 8(b)(1)(A) of
the Act, because the law is settled that an employee-mem-
ber’s right to resign from a labor organization is protected
under Section 7 of the Act. Pattern Makers League v. NLRB,
473 U.S. 95 (1985); Machinists Local 1414 (Neufield
Porsche-Audi), 270 NLRB 1330, 1331 (1984).
In order for the Respondent’s discipline of Anderson to
come within the proscription of Section 8(b)(1)(A) of the
Act, under the aforesaid theory, it must be shown that a mo-
tivating factor in Respondent’s discipline of Anderson was to
retaliate against him for engaging in conduct protected by the
Act, in this case his resignation from Respondent. See To-
ledo World Terminals, 289 NLRB 670, 673–674 (1988); Oil
Workers Local 4–23 (Gulf Oil), 274 NLRB 475, 477 (1985).
Where, as here, it is asserted that there was a legitimate basis
for union discipline, the Board has concluded that a Wright
Line analysis is appropriate.4 See Auto Workers Local 2017
(Federal Mogul), 283 NLRB 799, 799 fn. 1 (1987); Toledo
World Terminals, 289 NLRB 670, 673–674 (1988); Team-
sters Local 287 (Consolidated Freightways), 300 NLRB 539
(1990), and cases cited there. Thus, once General Counsel
establishes the employee-member’s protected activity was ‘‘a
motivating factor’’ in the union’s decision to discipline, the
discipline is unlawful unless the record as a whole estab-
lishes that the disciplinary action would have been taken
even in the absence of the protected activity.
For the reason below, I am of the opinion that the record
as a whole5 fails to establish that a motivating factor in the
Respondent’s decision to discipline Anderson was his res-
ignation from Respondent.
Initially, as I have found supra, I note there is no evidence
of disparate treatment. More specifically, there is no evi-
dence that Respondent treated Anderson differently than
other employee-members, similarly situated, when it dis-
ciplined him for possessing an active state contractor’s li-
cense while employed by the Employer, even though Re-
spondent had no evidence that Anderson did business as a
contractor during that time period. It is not surprising Re-
spondent disciplined him without such evidence, because the
rule which Anderson violated makes no distinction between
employee-members who only possess and employee-mem-
bers who possess and use their contractors’ licenses. The
rule, as set forth in the governing collective-bargaining
agreement, states, in pertinent part, that ‘‘[n]o employee shall
become a contractor . . . for the performance of any work
covered by this Agreement while employed . . . under this
Agreement’’ and that ‘‘[e]mployees . . . holding a State
Contractors’ License of any kind shall inactivate their license
. . . before being eligible for . . . continued employment
under the Hiring Hall Facilities.’’ Moreover, as I have found
supra, in at least two instances, Respondent disciplined em-
ployee-members, who, like Anderson, merely possessed ac-
tive state contractors’ licenses while employed by employers
under contract with the Respondent. All these circumstances
militate against a finding of unlawful motivation.
The timing of the commencement of Respondent’s inves-
tigation which lead to Respondent’s discovery that Anderson
had possessed an active state contractor’s license while em-
ployed by the Employer, and the timing of Anderson’s dis-
cipline by Respondent, coming immediately after Anderson’s
resignation from Respondent, is the only record evidence
which suggests that Anderson’s resignation was a motivating
factor in Respondent’s decision to discipline him for possess-
ing an active state contractor’s license while employed by the
Employer. However, when all the record evidence which is
pertinent to the timing of Respondent’s decision to inves-
tigate and discipline Anderson is evaluated in its entirety, it
warrants the conclusion that the timing of Respondent’s con-
duct here is insufficient to establish that Anderson’s resigna-
tion was a motivating factor in Respondent’s decision to dis-
cipline him.
Although Respondent failed to discipline Anderson for
possessing an active state contractor’s license during the 10
months he possessed such a license while employed by the
Employer, there is no evidence whatsoever that during that
time period Respondent knew about Anderson’s license or
reasonably should have known about it. Anderson’s posses-
sion of a state contractor’s license is not the type of conduct
which, by its nature, was likely to come to Respondent’s at-
tention. Also, Anderson testified he did not inform Respond-
ent that he had enrolled in contractors’ school or possessed
a state contractor’s license or intended to go into business as
a contractor. Nor does the record contain evidence that An-
derson, during his employment with the Employer, either
said or did anything which would warrant the inference that
Respondent knew or reasonably should have known he pos-
sessed an active state contractor’s license. Moreover, during
its case-in-chief, Respondent presented evidence, not dis-
puted by the General Counsel or the Charging Party, which
establishes Respondent did not learn of Anderson’s state con-
tractor’s license until after his resignation from Respondent.
In view of these circumstances, I find that the timing of An-
derson’s discipline does not warrant the inference that An-
derson’s resignation was a motivating factor in Respondent’s
decision to discipline him.
Although it was immediately after learning Anderson had
tendered his resignation to Respondent, that Respondent’s
business representative, Browning, commenced to investigate
whether Anderson had possessed an active state contractor’s
license while employed by the Employer, the record as a
whole reveals Browning did not have an improper motive for
commencing the investigation, but was motivated by a legiti-
mate reason.
Browning, whose testimonial demeanor was good, testified
that when, on June 4 or 5, 1991, he received Anderson’s let-
ter of resignation, he commenced to investigate whether An-
derson possessed a state contractor’s license while employed
by the Employer, because he thought it was possible that An-
derson’s reason for resigning from Respondent was to insu-
late himself from being disciplined by Respondent for having
possessed an active contractor’s license while employed by
the Employer. Browning further testified he knew Anderson
earned his living employed as a sheet metal worker; there-
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The italicized portion of the alleged contractual provision, deal-
ing with the obligation of ‘‘owner/members,’’ is not contained in the
collective-bargaining agreement between Respondent and the Em-
ployer. The relevant contractual language is contained in secs. B,C,
fore, his resignation from Respondent coupled with his hav-
ing terminated his employment with the Employer on May
31, 1991, indicated to Browning that perhaps there was truth
to the rumor, which several employee-members of Respond-
ent had previously communicated to Browning, about Ander-
son starting a nonunion sheet metal contracting business.
Considering these circumstances, Browning, on receipt of
Anderson’s letter of resignation, was not unreasonable in
thinking that perhaps Anderson had resigned to insulate him-
self from being disciplined for having been employed by the
Employer while possessing an active state contractor’s li-
cense. In other words, I credit Browning’s testimony that his
decision to investigate was not motivated by a desire to re-
taliate against Anderson for having resigned from Respond-
ent, but was based on a good-faith belief that Anderson pos-
sessed an active state contractor’s license and that prior to
his resignation from Respondent had possessed this license
while employed by the Employer, and that his resignation
from Respondent was an attempt to insulate himself from
being disciplined for having violated Respondent’s rule pro-
hibiting employee-members from engaging in that type of
conduct.
I considered Browning’s testimony that if, after resigning
from Respondent and terminating his employment with the
Employer, Anderson had gone into business as a union con-
tractor and signed a contract with the Respondent, that
Browning ‘‘possibly’’ might not have sought to have Ander-
son disciplined for having worked for the Employer while
possessing an active state contractor’s license. However,
when Browning’s testimony in this regard is viewed in its
entirety, as previously set forth in detail supra, it is clear that
it does not raise to the level of an admission against interest,
but is no more than sheer speculation and, as such, is without
evidentiary value in evaluating the General Counsel’s prima
facia case, and because of this fails to establish that a moti-
vating factor in Respondent’s decision to discipline Anderson
was to retaliate against him for going into business as a non-
union employer. In any event, because doing business as a
nonunion employer is not the type of conduct encompassed
by Section 7 of the Act, even if Respondent’s discipline of
Anderson was motivated by this conduct, it would not con-
stitute a violation of Section 8(b)(1)(A) of the Act.
I have also considered the General Counsel’s contention
that Respondent’s unlawful motivation for disciplining An-
derson may be inferred by the unreasonableness of Respond-
ent’s conduct in enforcing its rule against Anderson, when its
enforcement against Anderson is considered in the context of
the rule’s purpose. I disagree. Rather, for the reasons pre-
viously set forth supra, I find that Respondent has enforced
the rule against other employee-members, in circumstances
similar to Anderson’s, and that the enforcement of the rule
against Anderson was reasonably related to the rule’s main
purpose, which, as I have found supra, is to avoid the loss
of bargaining unit work by employees represented by the Re-
spondent. The General Counsel’s contention that Respond-
ent’s illegal motive may be inferred from the fact that it dis-
ciplined Anderson even though it had no evidence that he did
business as a contractor while employed by the Employer, is
undermined by the manner in which Respondent has pre-
viously enforced the rule, by the plain language of the rule,
and by common sense which dictates that Respondent not
wait until violators of the rule’s plain language actually use
their contractors’ licenses to do business as contractors be-
fore disciplining them.
In summation, the following factors, when viewed to-
gether, have persuaded me that the record as a whole fails
to establish that Anderson’s resignation from the Respondent
was a motivating factor in Respondent’s decision to dis-
cipline him: the misconduct for which he was disciplined
was encompassed by the plain language of the rule which
Respondent applied to Anderson’s misconduct; the lack of
evidence that in applying the rule in Anderson’s case, Re-
spondent treated him differently than other employee-mem-
bers; the evidence that other employee-members have been
found guilty by Respondent of violating the rule by engaging
in conduct identical to Anderson’s; it was only after Ander-
son had resigned from the Respondent that the Respondent
learned he had engaged in conduct, while a member of Re-
spondent, which violated the rule; and, Respondent had a
proper motive for instituting the investigation which uncov-
ered the evidence of Anderson’s violation of the rule.
IV.
In its posthearing brief the Charging Party argues that Re-
spondent’s rule involved in this case is unlawful on its face.
The Charging Party acknowledges the General Counsel ‘‘has
elected not to prosecute this case under the theory of the in-
validity of the [rule].’’ In fact, counsel for the General Coun-
sel in her posthearing brief expressly concedes that the rule
‘‘is valid on its face.’’ (Br. 15.) However, the Charging Party
contends that the complaint specifically alleges that the rule
here is illegal on its face and, in any event, contends that the
issue was fully litigated without objection, thus the Board for
this additional reason is obligated to decide whether the rule
is unlawful per se. I disagree and, for the reasons below,
have not considered whether the Respondent’s rule involved
in this case is unlawful on its face.
Paragraph 6 of the complaint consists of subparagraphs (a)
through (e), as follows: 6(a) alleges that at all times Re-
spondent maintained a rule making it an offense for its mem-
bers to violate ‘‘the established union collective bargaining
agreement and rules and regulations relating to rates of pay,
rules and working conditions’’; 6(b) alleges that at all times
Respondent and the Employer had a collective-bargaining
agreement (referring to the parties’ 1989–1992 agreement)
containing the following provision:
All sheet metal work shall be performed by employees
employed under terms of this Agreement and applicable
Addenda. No employee shall become a contractor or
sub-contractor for the performance of any work covered
by this Agreement while employed or registered for
employment in the Hiring Hall Facilities under this
Agreement. Owner/Member who abandon such status
and who register for referral must suspend any license
held as an Owner-Member employee during any period
such owner is registered for referral or has been dis-
patched pursuant to the hiring and referral procedures
contained herein [emphasis added].6
107SHEET METAL WORKERS LOCAL 104 (BRISCO SHEET METAL)
and D of item 33 contained in the addendum to the parties’ 1989–
1992 agreement. It has been previously set forth in haec verba and,
instead of the underlined language above, states in pertinent part,
‘‘[e]mployees or applicants for employment holding a State Contrac-
tors’ License of any kind shall inactivate their license . . . before
being eligible for the use or continued employment under the Hiring
Hall Facilities.’’ Despite this variance between the pleadings and the
proof, Respondent has not been prejudiced because it is clear that
once the hearing commenced the Respondent was placed on notice
that it was the application of this contractual provision to Anderson,
and not the application of the one alleged in the complaint, which
was the basis of the General Counsel’s complaint.
Subparagraph 6(c) alleges, in substance, that Respondent
charged Anderson with violating the contract provision set
forth in subparagraph 6(b), even though at the time of the
alleged infraction Anderson was not registered for employ-
ment nor in several years been dispatched from Respondent’s
hiring hall; 6(d) alleges Respondent failed to notify Anderson
that the rule and contract provision described in subpara-
graphs 6(a) and 6(b) would be applicable to him; and 6(e)
alleges that ‘‘[t]he contract provision described above in sub-
paragraph 6(b) as applied to Anderson, without prior notice
by Respondent, is unlawful and not reasonably related to a
legitimate goal and function of Respondent.’’
Paragraph 7 of the complaint alleges that Respondent fined
Anderson for violating the contractual provision set forth in
subparagraph 6(b) ‘‘and/or for conduct he engaged in after
he had previously tendered to Respondent a valid member-
ship resignation and was not a member of Respondent.’’
Paragraph 8 of the complaint alleges Respondent violated
Section 8(b)(1)(A) of the Act ‘‘[b]y the conduct described
above in paragraphs 6 and 7.’’
The week before the June 4, 1992 hearing in this case, I
held a telephone conference with the parties to, among other
things, clarify the issues involved. During the conference
counsel for the General Counsel, in response to my inquiry,
indicated that the theory of the complaint was not that the
contractual provision alleged in the complaint was unlawful
on its face, but that it was the unreasonable and improperly
motivated way in which the provision was applied by Re-
spondent, in Anderson’s case, that was unlawful. I remarked
that I felt that on its face the complaint could be construed
to allege that the maintenance of the provision, by itself, was
unlawful and suggested to counsel for the General Counsel
that she consult with her superiors about the matter and at
the start of the hearing set forth the General Counsel’s theory
of the case, because, as I explained, it was extremely impor-
tant that Respondent know whether it was just defending
against an alleged unlawful application of the contract provi-
sion or whether it was defending against an allegation that
placed in question the legality of the provision by itself,
which was a provision contained in apparently all the collec-
tive-bargaining agreements between Respondent and employ-
ers in the sheet metal industry in northern California.
On June 4, 1992, when the hearing opened, but before the
introduction of evidence, a discussion took place about the
scope of the complaint. I again indicated that I thought the
unfair labor practice allegations of the complaint were broad
enough to encompass the issue of whether Respondent’s rule
involved in the case was illegal per se. Counsel for the
Charging Party stated it was the Charging Party’s position
that the rule was unlawful on its face. Counsel for the Gen-
eral Counsel stated it was the position of the General Coun-
sel that the rule was not unlawful on its face, that it was only
the manner in which the rule was applied to Anderson which
was being alleged as a violation of the Act, and further ex-
plained that the rule was a legitimate rule, but Respondent
had applied it in Anderson’s case unreasonably and with an
improper motive. I remarked that in view of the General
Counsel’s position as to the scope of the complaint, I had
serious doubts whether the Charging Party could litigate the
legality of the Respondent’s rule, but stated I would deal
with that issue when and if the other parties objected to the
Charging Party’s effort to litigate the issue. The matter was
not raised again during the presentation of evidence, because
the Charging Party made no effort as part of its case to intro-
duce evidence in support of its contention that Respondent’s
rule here was unlawful on its face.
A more careful reading of the complaint, then my initial
reading, now leads me to conclude that although the com-
plaint is not a model of clarity, it does not allege that Re-
spondent’s rule here is unlawful on its face. Rather, it al-
leges, in substance, that the rule violated the Act because of
the way in which it was applied by Respondent to discipline
employee-member Anderson. I have considered that due to
the way in which the complaint is worded, an argument can
be made that, in this respect, the complaint is ambiguous.
But, assuming this is true, none of the parties to this case
could have been misled by this ambiguity because, at the
outset of the hearing, before any evidence was introduced,
counsel for the General Counsel unequivocally asserted that
the complaint’s unfair labor practice allegations did not ques-
tion the legality of the Respondent’s rule, per se, but only
the legality of the rule as it was applied by Respondent in
disciplining Anderson. Subsequently, in her posthearing brief
counsel for the General Counsel, in effect, reiterated that
statement of position. Under these circumstances, and be-
cause ‘‘[i]t is settled that a Charging Party cannot enlarge
upon or change the General Counsel’s theory,’’ I am without
authority to expand the scope of the complaint over the ob-
jection of the General Counsel. Kimtruss Corp., 305 NLRB
710 (1991); Harowe Servo Controls, 250 NLRB 958, 963
(1980).
In any event, even if the complaint can be interpreted to
allege that the Respondent’s rule here is illegal on its face,
it would still be impermissible for me to consider that issue
because the General Counsel effectively withdrew that por-
tion of the complaint in a timely manner. Thus, as I have
found supra, the General Counsel at the start of the hearing,
before the introduction of any evidence, disputed the Charg-
ing Party’s contention that the scope of the complaint was
broad enough to encompass the Charging Party’s theory that
Respondent’s rule alleged in the complaint was illegal on its
face. The General Counsel at that time made it clear that the
complaint did not challenge the legality of the Respondent’s
rule, but only challenged Respondent’s motivation and man-
ner in applying it to employee-member Anderson. Under the
circumstances, assuming that the complaint may be inter-
preted as alleging that Respondent’s rule is illegal on its
face, the General Counsel in affect timely withdrew that por-
tion of the complaint. Cf. Sheet Metal Workers Local 28
(American Elegen), 306 NLRB 981 (1992).
Frito Co. v. NLRB, 330 F.2d 458 (9th Cir. 1964), on
which the Charging Party relies, is inapposite. In Frito, evi-
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
dence concerning unfair labor practices not alleged in the
complaint was admitted into the record without objection.
The court held that in such a situation the Board has the
power to consider the evidence because the General Counsel,
by not objecting to the evidence,
thereby consented to the introduction of the issue to
which the evidence was addressed. The Trial Examiner
and the Board were then free to consider the evidence
and to exercise judicial discretion as to whether to per-
mit amendment to conform to proof. [330 F.2d at 465.]
The court, however, emphasized that as a general rule,
[I]t is well established that the Board is not empowered
to allow amendments to the complaint which the Gen-
eral Counsel has rejected. These are amendments pro-
posed by other parties than the General Counsel and
were it possible for them to impose amendments to the
complaint, the final authority of the General Counsel to
the issue complaints would be the circumvented. The
authority to issue complaints is authority to determine
what they shall contain. [Emphasis added, 330 F.2d at
464.]
Unlike Frito, here there is no evidence that the General
Counsel consented to litigate the legality of the contractual
provision requiring employee-members of Respondent to de-
activate their state contractors’ licenses, as opposed to its le-
gality under the circumstances in which it was applied by
Respondent to discipline Anderson. I considered that, without
objection, Respondent introduced evidence to explain the rea-
son for the inclusion of this provision in Respondent’s col-
lective-bargaining agreements with the Employer and the
other employers in the sheet metal industry in northern Cali-
fornia. However, the conduct of the Respondent and the Gen-
eral Counsel with respect to the introduction of this evidence
cannot be construed as a consent to expand of the scope of
the complaint, where, as here, the complaint specifically al-
leged that Respondent’s discipline of Anderson was unlawful
because the contractual provision here, ‘‘as applied to Ander-
son . . . is . . . not reasonably related to a legitimate goal
and function of Respondent.’’ Clearly, in not objecting to
Respondent’s introduction of evidence about the purpose of
the contractual provision involved in this case, counsel for
the General Counsel realized it was being introduced and ad-
mitted solely in connection with this allegation of the com-
plaint. Thus, the General Counsel cannot be said to have
consented to expand the scope of the complaint by not ob-
jecting to the introduction of this evidence. Under the cir-
cumstances, and because of the General Counsel’s unequivo-
cal statement at the outset of the hearing that the entire case
was being tried on the premise that the contractual provision
which Anderson had been disciplined for violating was not
unlawful on its face, the court’s decision in Frito is inappro-
priate.
V.
It is for the reasons set forth above that I conclude that
the record as a whole does not establish, as alleged in the
complaint, that Respondent violated Section 8(b)(1)(A) of the
Act by charging Anderson with having violated a rule of Re-
spondent and by fining him for having violated that rule. I
therefore shall recommend that the complaint be dismissed in
its entirety.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The complaint is dismissed in its entirety.