Carpenters, Local 1089

National Labor Relations Board - Board Decisions

May 16, 1975

217 N.L.R.B. 999 (N.L.R.B. 1975)

CARPENTERS, LOCAL 1089
United Brotherhood of Carpenters and Joiners of
America, Local 1089, AFL-CIO; and United Broth-
erhood of Carpenters and Joiners of America, Cen-
tral Arizona District Council of Carpenters,
AFL-CIO (M. Greenberg Construction) andGeorge
Lewitz. Case 28-CB-882
May 16, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND KENNEDY
On January 13, 1975, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the Respondents filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in 'light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act , as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondents , United Brotherhood of Carpenters and
Joiners of America , Local 1089 , AFL-CIO; and United
Brotherhood of Carpenters and Joiners of America,
Central Arizona District Council of Carpenters,
AFL-CIO, their officers , agents , and representatives,
shall take the action set forth in the said recommended
Order.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge : This case
was heard before me in Phoenix , Arizona, on November 12,
1974. The charge was filed August 8, 1974 , and amended
October 3, by George Lewitz, and individual . The complaint
issued October 11, alleging that United Brotherhood of Car-
penters and Joiners of America, Local 1089 , AFL-CIO, and
United Brotherhood of Carpenters and Joiners of America,
Central Arizona District Council of Carpenters,
AFL-CIO (herein jointly called Respondents, and severally
called Respondent Local and Respondent Council), had vi-
999
olated Section 8(b)(1)(B) of the National Labor Relations
Act, as amended.
The parties were given opportunity at the hearing to
introduce relevant evidence, examine and cross-examine
witnesses, and argue orally. Briefs were filed for the Gen-
eral Counsel and Respondents.
ISSUES
The issues are whether Respondent Local violated Section
8(b)(1)(B) of the Act by bringing intraunion disciplinary ac-
tion against George Lewitz, a statutory supervisor; and
whether Respondent Council did likewise by providing a
forum for that action and ultimately levying a fine against
Lewitz and placing him on membership probation.
I JURISDICTION
Lewitz at all relevant times was job superintendent for M.
Greenberg Construction on a gymnasium project for the
Phoenix Indian School. M. Greenberg Construction is -an
Arizona corporation, headquartered in Phoenix, engaged in
general contracting in the construction industry. It annually
purchases and causes to be shipped into Arizona directly
from outside the State goods and materials valued in excess
of $50,000. It is an employer engaged in and affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II LABOR ORGANIZATIONS
Respondents both are labor organizations within the mean-
ing of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
The gymnasium project began in November 1973, M.
Greenberg Construction was the general contractor. Lewitz,
as construction superintendent, was the ranking Greenberg
person regularly present at the site, with authority to repre-
sent the Company in union grievance matters, among other
things.' M. Greenberg, a member of Associated General
Contractors (AGC), was party to a labor agreement with
Respondents. Lewitz at all times belonged to Carpenters Lo-
cal 906, an affiliate of Respondent Council. He at no time did
significant work with the tools of his trade on this project.
Although M. Greenberg subcontracted a number of func-
tions on the project, it did its own carpentry work, as well as
various other functions. All of its carpenters were cleared
through the hiring hall of Respondent Local, the first being
hired in early December 1973. A carpenter named Fred Car-
rico was hired December 20. On about January 10, 1974, M.
Greenberg received written notification from Respondent
Local that Carrico had been named its job steward on the
project. Carrico was chosen by R. C. (Tommy) Holt, the
Local's assistant business agent. There previously had been
no officially designated steward.2
1 The parties stipulated that Lewitz was a supervisor within the meaning
of the Act
2 Holt testified that it is the practice in the trade for the first person
referred to a job to serve as steward until formal designation is made. He
concededly did not know who had so served before Carrico's appointment.
217 NLRB No. 170
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By mid-February, Lewitz had become displeased with Car-
rico's work performance and wished to fire him. Lewitz and
Assistant Business Agent Holt discussed the matter at the
time, Lewitz detailing assorted deficiencies in Carrico's skills
and dedication. Holt protested that Carrico, as steward,
could not be fired without union consent, alluding to this
provision of the labor agreement:
B100.18.3-No job steward shall be terminated without
cause, except by the consent of his Union, unless the job
is completed. If a Contractor, or his representative, feels
he has cause to terminate any steward, he shall notify the
Union business representative and a meeting shall be
held between the parties involved. If the Contractor or
his representative and the business representative of the
Union involved cannot come to an agreement on termi-
nation of the steward, within forty-eight (48) hours
(Saturdays, Sundays and holidays excluded), then the
question shall be placed before the Joint Labor-Manage-
ment Committee.
The conversation concluded with Holt saying he would
"build a fire under" Carrico, and Lewitz saying he would give
Carrico just one more chance.
Carrico's performance improved for a time, but by April
Lewitz once more was dissatisfied to the point of wanting to
get nd of him. On Thursday, April 11, Lewitz, Holt, and
Mike Greenberg, the owner of M. Greenberg Construction,
conferred about the situation. Lewitz explained that the car-
pentry portion of the project was phasing out, necessitating
the layoff of one of the five remaining carpenters anyway; and
that Carrico, as clearly the least able, was the logical choice.
Lewitz then chronicled Carrico's shortcomings. Holt again
referred to the contract provision, quoted above, that "no job
steward shall be terminated without cause, except by the
consent of his Union," precipitating an argument between
Lewitz and Greenberg- on one side , Holt on the other,
whether "cause" existed to fire Carrico. At length, Holt
asked that Carrico be retained one more week, to allow time
to place him in another job. Lewitz said no, whereupon Holt
said he wished to talk to Carrico and tend to other matters,
but would be back in a couple hours to resume the discussion.
The discussion did not resume. Holt testified that he was
gone from the site longer than anticipated; and, upon his
return in midafternoon, he could find neither Lewitz nor
Mike Greenberg.' The next day, Friday, April 12, Lewitz
fired Carrico.
The following Monday, April 15, Business Agent Ralph
Ellison of Respondent Local visited the site.' He asked Le-
witz why Carrico had been fired without union permission.
Lewitz replied that Carrico was not a capable carpenter; and
that, in any case, when Holt had failed to return to finish the
discussion of the previous Thursday, Lewitz had- inferred
consent. Ellison was unimpressed, insisting that the discharge
had violated the labor agreement and demanding that Carrico
3 Holt's testimony suggests that he did not look for Lewitz with particular
diligence He conceded that Lewitz "possibly" was at one end of the site,
he at the other
4 Holt departed on vacation April 12, occasioning Ellison's direct involve-
ment
be putback to work. Lewitz and Ellison shortly reached Mike
Greenberg by telephone. Ellison protested to Greenberg Car-
rico's being fired without consent, citing the contract provi-
sion, and asked that he be reinstated pending settlement of
the dispute. Greenberg declined, but he and Ellison did agree
to take up the matter with AGC officials at the earliest oppor-
tunity.
The telephone conversation completed, Ellison again de-
manded of Lewitz that Carrico be recalled pending settle-
ment, adding that Lewitz would be in violation of union
bylaws for working without a steward should Carrico not be
recalled. Ellison had in mind section 38, paragraph R, of the
bylaws of Respondent Council:
When a job is organized and a Steward has been ap-
pointed by the Business Representative, thereafter, no
member will work on that job, regardless of reasons,
unless the appointed Steward is working on the same job
at the same time. -
Lewitz suggested that Ellison avoid this dilemma by appoint-
ing an acting steward. Ellison refused, and presently told the
four remaining carpenters on the project that they, too, were
in violation of the bylaws for working without a steward.
They asked, as had Lewitz, that Ellison appoint an acting
steward. He again refused Lewitz told the carpenters to con-
tinue working, assuring them that the Company would take
care of any union fines they might receive.
On April 17, in accordance with their telephone agreement
of 2 days before, Ellison and Mike Greenberg met with Snead
Parker, AGC executive secretary, concerning Carrico's dis-
charge. It was decided among them that the Company would
pay Carrico for 3 days of lost wages, but need not rehire him.
Ellison testified that this procedure was "in lieu of placing
the matter before a joint labor-management committee, as
prescribed in the above-quoted provision of the labor agree-
ment when company and union cannot agree on the termina-
tion of a steward. This settled, Ellison promptly appointed a-
new steward for the project.
On April 23, Ellison and Holt jointly filed charges with
Respondent Council against Lewitz and the four carpenters
remaining after Carrico's discharge. The charge against Le-
witz alleged that he had violated bylaw 38-R, quoted above,
adding by way of explanation:
George Lewitz was working as the Carpenter Foreman
for Greenberg Construction at 3rd St. and Indian
School . He laid off the job steward without the consent
of the Local Union on Friday, April 12, 1974. A new
steward was appointed at approximately 10:00 A.M.,
April 17, 1974.
The charges against the other four also alleged violations
of bylaw 38-R, but differed from the Lewitz charge in their
explanations . Their explanations, which were identical except
for the references to the person charged, stated:
[Name] was working for Greenberg Construction at 3rd
St. and Indian School. The appointed job steward was
laid off without the consent of the Local Union on Fri-
day, April 12, 1974. [Name] was told by myself, Ralph
Ellison , on April 15, 1974, at approximately 10:00 A.M.,
CARPENTERS, LOCAL 1089
that they were without the job steward which is in viola-
tion of the District Council By-Laws. George Lewitz,
Carpenter Foreman, told [name] to continue working
and that the company, Greenberg Construction, would
back him up and pay the fine. A new steward was ap-
pointed on April 17, 1974, at approximately 10:00 A.M.
Lewitz received a trial separate from the other four before
a five-person trial board of Respondent Council on May 22.
He was adjudged "guilty as charged," as were the others.
Respondent Council notified him by letter dated June 14 that
it concurred in the findings of the trial board, and with its
recommendation that he "be fined $217.80, three day's pay
at foreman's scale, and be placed upon probation for two
years." The letter directed that Lewitz pay his fine "to the
Financial Secretary of your local union within 30 days from
date of this letter."
Ellison testified that disciplinary sanctions are not always
meted out for working in the absence of the appointed stew-
ard; rather, that it is necessary to "weigh the circumstances"
of the absence. If, for instance, a steward were absent on
account of illness, he elaborated, members who continued
working would not be cited for violation of bylaw 38-R.
Ellison admitted in his testimony that, had Carrico been
restored to his job as Ellison had demanded of Lewitz and
Mike Greenberg on April 15, the ensuing disciplinary action
would not have been taken.
Whether or not as part of a process of "weighing the cir-
cumstances," the emphasis during Lewitz' trial was more on
the contract issue of Carrico's nonconsensual discharge than
on the bylaw issue of working in the absence of a steward.
Thus, while the trial minutes' reveal Trial Board Chairman
Vernon Miller as preliminarily instructing his colleagues, out
of the presence of Lewitz, Ellison, and Holt, that "the only
charge entered is for working without a job steward," they
later quote Ellison to a different effect early in the trial
proper, in Lewitz' presence: "The only charge is laying off the
steward without permission." Ellison continued (per the
minutes):
I went on the job Monday morning. The job steward had
been laid off. I asked George [Lewitz] to put him back
to work. George said no, he wouldn't put him back to
work. We had a few words and he still wouldn't put him
back to work. This is the reason for the charges, and that
is it.
M. L. Patterson of the trial board apparently tried at this
juncture to focus on the alleged bylaw violation, stating: "Sec-
tion 38, Par. R simply states that the man was working on
the job without the work steward working on the job." The
subject quickly reverted, however, to Carrico's discharge, as
is shown by this extract from the minutes:
Chairman Miller: Tommy Holt, your signature is on the
charges also. Do you have anything to say?
Holt: No more than Ralph [Ellison] has said. He
[Carrico] had been on the job several weeks and
seemed to be a capable man. He conducted himself
well on the job with a few exceptions.
5 Consisting of over six typewritten pages and approximating a verbatim
transcript
1001
Holt then described his February and April conversations
with Lewitz about Carrico, noting- that he had reminded
Lewitz of the contract provision requiring union consent to
fire a steward and concluding: "I didn't give my permission
to let the steward go."
Then, according to the minutes, Lewitz gave his version of
Carrico's discharge, after which Chairman Miller asked him:
"Are you familiar with the procedure of firing a steward?"
Holt presently set forth his reasons for believing that Carrico
"had his problems worked out and was doing quite well"; and
Miller asked why, if Carrico was an inferior workman, Le-
witz failed to discover that and do something about it in the
several days he was on the job before being appointed stew-
ard. Lewitz answered that "there was no problem until he
[Carrico] got into more detail" as the job progressed, prompt-
ing Board Member William Preston to observe: "I believe
that if you did tell Tommy [Holt] and'Ralph [Ellison] that he
was good on forms, but couldn't do finish work it would have
made a big difference."
B. Analysis and Conclusions
In its recent Florida Power & Light Co. decision,6 the Su-
preme Court stated:
Both the language and the legislative history of §
8(b)(1)(B) reflect a clearly focused congressional con-
cern with the protection of employers in the selection of
representatives to engage in two particular and explicitly
stated activities, namely collective bargaining and the
adjustment of grievances. '
The conclusion is thus inescapable that a union's disci-
pline of one of its members who is a supervisory em-
ployee can constitute a violation of § 8(b)(1)(B) only
when that discipline may adversely affect the super-
visor's conduct in performing the duties of, and acting
in his capacity as, grievance adjuster or collective bar-
gainer on behalf of the employer.'
The Court accordingly held, contrary to the Board,' that
the union in that case had not violated Section 8(b)(1)(B)
when it fined supervisor/members for allegedly performing
rank-and-file work during a strike. Respondents argue that
parity of reasoning compels a like result concerning their
disciplining of Lewitz.
The General Counsel contends, on the other hand, that the
conduct in question falls within the prohibition of Yakima
County Beverage Company (Teamsters Local 524), 212
NLRB 908 (1974). In that decision, which issued after
Florida Power & Light Co., the union was held to have vi-
olated Section 8(b)(1)(B) by charging supervisor/members
with violations of the union's constitution and bylaws because
they had worked past the quitting time specified in the pre-
vailing labor agreement. In reaching this result, the Board
proclaims its continued adherence to San Francisco-Oakland
6 Florida Power & Light Co v International Brotherhood of Electrical
Workers, Local 641, et at, 417 U S 790 (1974)
' 417 U.S. at 803-805
B The Board 's decision is reported at 193 NLRB 30 (1971).
1002 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
Mailer's Union No. 18, 172 NLRB 2173 (1968), noting that
the Court in Florida Power & Light Co. "assumed, without
deciding, that our decision in San Francisco-Oakland Mailers
fell within the outer limits of Sec. 8(b)(1)(B)."9
Yakima County Beverage Company contains language, ex-
tracted from San Francisco-Oakland Mailers, which reveals
the fundamental distinction seen by the Board between the
Florida Power & Light Co. and Yakima County situations:
[T]he relationship primarily affected is the one between
the Union and the Employer, since the underlying ques-
tion was the interpretation of the collective-bargaining
agreement between the parties. The relationship between
the Union and its members appears to have been of only
secondary importance, used as a convenient and, it would
seem, powerful tool to affect the employer-union relation-
shipo i.e., to compel the Employer's foremen to take
prounion positions in interpreting the collective-bargain-
ing agreement. The purpose and effect of Respondent's
conduct literally and directly contravened the statutory
policy of allowing the Employer an unimpeded choice of
representative for collective bargaining and settlement of
grievances. In our view it fell outside the legitimate inter-
nal interests of the Union . . . . [Emphasis
supplied.] 10
Countersinking the distinction drawn to support a viola-
tion in Yakima County, the Board states elsewhere in that
decision:
We note that Florida Power & Light Co., supra, involved
union fines against supervisor/members for allegedly
performing rank-and-file work during a strike. Here the
fines were imposed in a nonstrike setting, arguably for
exercising supervisory or management functions, in an
effort to impose the Respondent's interpretation of the
collective-bargaining contract upon representatives of the
Employer. We do not read the Supreme Court's opinion
in Florida Power and Light, supra, to say that a union,
consonant with Section 8(b)(1)(B), is free to discipline
supervisor/members under the circumstances of the pre-
sent case. [Emphasis supplied.]"
The Board adds, yet elsewhere in Yakima County, that the
same result would have obtained even were the Union's inter-
pretation of the contract "ultimately determined in a proper
forum" to be correct. 12
In the present case, although arguably Lewitz was disci-
plined purely for the bylaw violation of working without a
steward, the weight of evidence leaves scant doubt that the
underlying dispute revolved largely if not wholly around the
steward's being discharged in alleged violation of the contract
9 212 NLRB 908 (1974), fn 3 The subject reference in Florida Power &
Light to San Francisco-Oakland Mailers appears at 417 U.S. at 805.
10 This passage is quoted in Yakima County at 212 NLRB 908 (1974) and
appears in San Francisco-Oakland Mailers at 172 NLRB 2174 (1968)
11 212 NLRB 908 (1974), fn 6.
12 Id, fn 5
requirement of union consent. In mid-February and again on
April 11, when Lewitz discussed with the Local's Holt his
wish to discharge the steward, Holt adverted to that contract
provision; and on April 11 Lewitz and Mike Greenberg ar-
gued with Holt whether "cause" existed within the meaning
of the contract, permitting discharge without union consent.
Then, on April 15, when the Local's Ellison confronted
Lewitz about the discharge, the thrust of his protest was that
Lewitz had violated the labor agreement . Only later, in sup-
port of his demands that the steward be put back to work, did
Ellison mention the bylaw implications of working without a
steward-which he testified would have been forgiven and
forgotten had the Company acceded to those demands.
Finally, despite its citation to a bylaw as having been vi-
olated, the charge against Lewitz expanded that he "laid off
the job steward without the consent of the Local Union"; and
the meticulous minutes of the ensuing trial betray a concern
by Respondents with the contractual issue of discharge that
all but eclipsed the occasional references to the bylaw issue
of working without a steward.
The above-quoted language from San Francisco-Oakland
Mailers, iterated in Yakima County Beverage Company, fits
the present situation perfectly. Lewitz' alleged bylaw viola-
tion plainly was "of only secondary importance, used as a
convenient ... tool to affect the employer-union relation-
ship; i.e., to compel the Employer's [construction
superintendent] to take prounion positions in interpreting the
collective-bargaining agreement."
In these circumstances, it must be concluded that Re-
spondents jointly and severally restrained and coerced M.
Greenberg Construction in its selection of representatives for
the purpose of collective bargaining or the adjustment of
grievances, in violation of Section 8(b)(1)(B), by bringing
disciplinary proceedings and imposing sanctions against Le-
witz, a supervisor/member, in an attempt to impose Re-
spondents' interpretation of the bargaining agreement on him
and thus impede his employer's control over him.
CONCLUSIONS OF LAW -
1. George Lewitz at all relevant times was a supervisor
within the meaning of Section 2(11) of the Act and a repre-
sentative of M. Greenberg Construction within the meaning
of Section 8(b)(1)(B) of the Act.
2. By imposing a fine against Lewitz and placing him on
membership probation as found herein, Respondents jointly
and severally restrained and coerced M. Greenberg Construc-
tion in the selection and retention of its representatives for
-collective bargaining or the adjustment of grievances, thereby
engaging in unfair labor practices within the meaning of
Section 8(b)(1)(B) of the Act.
3. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
CARPENTERS, LOCAL 1089 1003
ORDER' 3
Respondents , United Brotherhood of Carpenters and Join-
ers of America , Local 1089, AFL-CIO, and United Brother-
hood of Carpenters and Joiners of America , Central Arizona
District Council of Carpenters , AFL-CIO, their officers,
agents, and representatives , shall:
1. Cease and desist from fining , placing on membership
probation , or otherwise disciplining George Lewitz or any
other supervisor or representative of M. Greenberg Construc-
tion for allegedly violating the provisions of the prevailing
collective-bargaining agreement.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Rescind the fine levied against George Lewitz , refund
to him any payment made thereon, and excise all records of
its imposition from their files.
(b) Restore to George Lewitz membership in good standing
and all attendant rights , retroactive to the time he was placed
on probation , and excise all records of his unlawfully having
been placed on probation as found herein.
(c) Notify George Lewitz in writing that they have taken
the action set forth in paragraphs 2(a) and (b), above, and
that they will cease and desist from taking like action in the
future.
(d) Post at their offices and meeting halls, and other places
where notices to members are customarily posted , copies of
the attached notice marked "Appendix ." " Copies of said
notice, on forms provided by the Regional Director for Re-
gion 28 , after being duly signed by authorized representatives
of Respondents , shall be posted immediately upon receipt
thereof, and be maintained by them for 60 consecutive days
13 All outstanding motions inconsistent with this recommended Order
hereby are denied . In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions, and recommended Order herein shall , as provided
in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and Order , and all objections thereto shall
be deemed waived for all purposes
14 In the event the Board 's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
thereafter , in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps
shall be taken by Respondents to ensure that said notices are
not altered , defaced , or covered by any other material.
(e) Furnish the Regional Director for Region 28 signed
copies of such notice for posting by M. Greenberg Construc-
tion, if it wishes, in places where notices to employees are
customarily posted.
(f) Notify the Regional Director for Region 28, in writing,
within 20 days from the date of this Order , what steps Re-
spondents have taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fine, place on membership probation, or
otherwise discipline George Lewitz or any other supervi-
sor or representative of M. Greenberg Construction for
allegedly violating the provisions of the prevailing col-
lective-bargaining agreement.
WE WILL rescind the fine levied against George Le-
witz, refund to him any payment made thereon, and
excise all records of its imposition from our files.
WE WILL restore to George Lewitz membership in
good standing and all attendant rights, retroactive to the
time he was placed on probation , and excise all records
of his unlawfully having been placed on probation.
WE WILL notify George Lewitz in writing that we
have taken the action set forth in the preceding two
paragraphs , and that we will cease and desist from tak-
ing like action in the future.
UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF AMERICA, LOCAL
1089 , AFL-CIO
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, CENTRAL
ARIZONA DISTRICT COUNCIL OF CAR-
PENTERS, AFL-CIO