IBEW, Local 716

National Labor Relations Board - Board DecisionsApr 30, 1973

203 N.L.R.B. 333 (N.L.R.B. 1973)

IBEW , LOCAL 716 333 International Brotherhood of Electrical Workers, AFL-CIO, Local Union 716 and James O. Vestal and International Brotherhood of Electrical Work- ers, AFL-CIO, Party of Interest and Fisk Electric Company , Party of Interest . Case 23-CB-1269 April 30, 1973 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO 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. Upon the basis of the facts stipulated to the Board, the exhibits, the briefs, and the entire record in this case, the Board makes the following: FINDINGS OF FACTS I JURISDICTION Upon a charge filed on April 14, 1972, by James O. Vestal, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint and notice of hearing, dated May 19, 1972, against Respondent. The complaint alleged that Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended, by fining its member, Vestal, for acting in his capacity as general foreman for Fisk Electric Company, herein called Fisk. Respondent filed an answer to the complaint on June 2, 1972, denying the commission of any unfair labor practices. On July 31, 1972, Respondent, Charging Party, and counsel for the General Counsel filed with the Board in Washington, D.C., a petition to transfer proceed- ings to the Board on the basis of a stipulated record entered into by the parties on July 24, 1972. The peti- tion stated that the parties agreed that the charge, complaint, answer, and stipulation of facts I constitut- ed the entire record in the case; that the parties waived their right to a hearing before an Administra- tive Law Judge 2 and the issuance of an Administra- tive Law Judge's Decision; and that the case be submitted directly to the Board for findings of fact, conclusions of law, and the issuance of a Decision and Order. On August 2. 1972, the Board approved the parties' motion and ordered the case transferred to the Board, granting permission and time for filing of briefs. Thereafter, General Counsel and Respondent filed briefs with the Board. i Appended to the stipulation of facts and incorporated by reference into it are certain exhibits consisting of copies of the two charges filed with Respondent against Vestal , the two decisions of the Respondent 's executive board before which the charges were initially tried , the two decisions of the International vice president of the International Brotherhood of Electrical Workers. AFL-CIO, herein called IVP and IBEW, respectively , that issued after Vestal appealed the adverse decisions of the Respondent , and a copy of the IBEW constitution and rules for local unions and councils under its jurisdiction By virtue of their incorporation into the stipulation of facts, we find these exhibits to be part of the record before us, noting , in so finding, that Vestal admits the accuracy of the facts stated in the charges brought against him 2 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 Fisk is a Texas corporation engaged in the business of industrial, commercial, and residential electrical contracting with its principal office and place of busi- ness in Houston, Texas. During the preceding 12 months, a representative period, Fisk purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Texas. Accordingly, we find that Fisk is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. ll. THE LABOR ORGANIZATION INVOLVED Respondent, International Brotherhood of Electri- cal Workers, AFL-CIO, Local Union 716, is now, and at all times material herein has been, a labor organiza- tion within the meaning of Section 2(5) of the Act. 11 THE UNFAIR LABOR PRACTICES A. Facts Since 1969 Vestal has been employed by Fisk in the position of general foreman at its jobsite at Shell Chemical Company, Deer Park, Texas. The parties have stipulated that, as general foreman, Vestal passes upon the qualifications of employees referred to the jobsite by Respondent pursuant to the General President's Agreement for maintenance contracts, that he disciplines and discharges employees, and that he adjusts grievances arising between said employees, Fisk and Respondent. Accordingly, the parties admit, and we find, that Vestal is a supervisor within the meaning of the Act who has the authority on behalf of Fisk to adjust grievances and to act as its represent- ative in matters involving collective-bargaining inter- pretations. Throughout this same period, indeed since 1954, Vestal has also been a member of Respondent, current in all dues and assessments. 203 NLRB No. 52 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In February 1971, Vestal placed a letter on Respondent's bulletin board at the Shell jobsite con- cerning acceptable excuses for being absent from the job. Also in February 1971, he encountered and ad- vised four nonmember employees' who had quit that they did not have to be members of Respondent to keep their jobs and could work for Fisk as long as they wished. The employees, however, did not rescind their decision to quit. On February 22, 1971, in connection with these employees quitting their jobs, Vestal insti- tuted union charges against Respondent's business manager, Kempe, alleging that Kempe had created an illegal work stoppage and was operating an illegal hiring hall which preferred to refer members of Re- spondent over nonmembers (these union charges were eventually withdrawn on October 20, 1971). Also during February 1971, Vestal openly opposed Kempe and his assistant, McKnight, as the leaders of Respon- dent, claiming that because of upcoming union elec- tions they were attempting to curry favor by advocating a policy of providing as many jobs as pos- sible for members of Respondent working on con- struction. Respondent denies these claims. On March 17, Kempe filed charges with the Union against Vestal alleging violations of Respondent's constitution, article XXVII (entitled "Misconduct, Offenses and Penalties"), section I ("Any member may be penalized for..." ), subsections 3, 7, 8, 9, 10, and 11 (the specific offenses involved) 4 These charges were in part based on the actions of Vestal described above and in part on other conduct of his not men- tioned in the stipulation of facts but which is set forth in the union charges attached as exhibits to the stipu- lation. It should be noted that, in relating the details of Vestal's conduct, these charges described the cir- cumstances involved in each of the incidents referred to in the stipulation in a somewhat different light than appears therein. Thus, in connection with the incident wherein Ves- tal told the four employees who quit that their jobs were not dependent on union membership, Vestal was charged with: (a) first threatening said employees with charges for engaging in an illegal work stoppage by their quitting work, and later filing such charges against them (there is no mention of these charges in the stipulation of facts); (b) inquiring of them whether 7 These employees were members of another local union of IBEW , and are commonly knows as "travelers ." They were referred to theirjobs by Respon- dent. The constitution provides , inter alia, that all such charges are tried before the executive board of the local union . They must be in writing , must specify the section of the constitution , bylaws, rules, or working agreement allegedly violated, with a description of the offensive conduct engaged in by the member charged , and must be filed within 30 days of knowledge of such conduct . The executive board must proceed with the case within 45 days from the filing of the charge and its findings and conclusions , including its "sen- tence ," is considered the action of the local union the Respondent had anything to do with their quitting and, if so, to pay it no heed; (c) telling one of the four travelers (nonmembers) that the charges Vestal filed against them was his way of getting back at Kempe and McKnight; and (d) on March 15 at a meeting between the Union and Fisk employees, admitting to those present that the only reason he filed charges in connection with the travelers' quitting the jobsite was to keep himself and the Employer in the clear in the event charges were filed with the Board concerning the termination of the travelers, thereby (in the words of Kempe's charge) "wronging the travelers." With respect to the letter that was posted dealing with ab- senteeism , Kempe charges that Vestal, with full knowledge that Shop Steward Hopkins had to absent himself from the job on occasion to care for his crit- ically ill wife, listed in the letter as an unacceptable excuse for being absent the illness or death of a rela- tion or member of the family, which caused Hopkins to first protest the letter and then quit his job on the day it was posted (according to the Kempe charges this was February 26).5 In regard to Vestal's charging Kempe with operating an illegal hiring hall, the Kempe charges allege that on February 26 Vestal read a letter to the executive board of Respondent and McKnight that he had written to the Southeast Texas Chapter, N.E.C.A. (not further identified), complain- ing that the Respondent operated an illegal hiring hall in connection with the Shell job on which Vestal was foreman. On March 30, 1971, additional charges were filed by Respondent members Christian and Box against' Vestal, alleging violations of article XXVII, section 1, subsections 3, 9, 10, and 11 of the constitution by Respondent based on certain actions of Vestal, only one of which-his layoff of three members of Respon- dent on March 23, 1971, while retaining nonmembers referred to the job by Respondent-is referred to in the stipulated facts. The other incidents on which these charges rest concern (a) his allegedly threaten- ing members on March 24 after they voluntarily quit 5 According to Kempe 's charges, after Hopkins quit, Vestal removed the majority of the Respondent's correspondence from the job bulletin board and turned it over to McKnight with the comment that he removed it because it was outdated and he no longer wanted it cluttering his job . This is one of several grounds for Kempe's charges against Vestal that is not reported, or relied on in the stipulation of facts Other such grounds are that- (I) on February 10, 1971, over the protest and disapproval of Hopkins , Vestal posted a letter on the same bulletin board in which he placed the workmen on thejob in groups according to his interpretation of the referral procedure in the contract, (2) Vestal called a member of Respondent "and stated untruths concerning the relationship , past and presentjob practices between the Business Manager 's office and this job and workmen employed on this job", (3 ) on March 11 , 1971, Vestal fired Dodd, a member of Respondent, allegedly slandering him in the process by listing as reasons for his discharge, without substantiation , that Dodd disrupted the job and was absent and lies "a lot", and (4) on March 15, 1971, Vestal told all the employees on the job that each should work with the intention and interest of becoming a general foreman and anyone who didn ' t would be fired IBEW, LOCAL 716 335 the job, with charges (to be filed with Respondent) for creating an illegal work stoppage by quitting, and (b) his prior conduct on March 19 whereby, while eating lunch with certain members of Respondent, Vestal gave one-half of the steak he was eating to one of them, stating that was the way he took care of the witnesses and persons on his side, adding that any member who attended a special union meeting called by Kempe could never work for Fisk. Separate trials were held on April 27 and May 17, 1971, respectively, the first hearing concerning Kempe's charges, the second hearing those of Chris- tian and Box. At both trials Vestal maintained he was not guilty as charged, although in each case he admit- ted the acts upon which the charges were based while contending that such conduct was inadvertent and without malice. On' April 28, 1971, as to Kempe's charges, Vestal was informed in a letter from Respondent's recording secretary that Respondent had found him guilty of violating subsections 3, 9, and 116 of the constitution and not guilty of violating subsections 7, 8, and 10.7 He was fined $100 each for violating subsections 9 and 11, and $50 for violating subsection 3, with the option of halving the total of his fines by making a public apology. Thereafter, on May 25, 1971, Vestal was similarly informed that as to the Christian-Box charges Respondent had found him guilty of violating subsections 3 and 9 but not 10 and 11 of the constitution. He was fined $100 and $50, respectively, with the choice of reducing the total by half if he publicly apologized. On June 7, Vestal appealed the penalties meted out by Respondent in connection with Kempe's charges. 6 These subsections read as follows (3) Violation of any provision of this Constitution and the rules here- in, or the bylaws, working agreements , or rules of a L[ocall U[nion[ (9) Creating or attempting to create dissatisfaction or dissension among any of the members or among L U's of the I B.E W (11) Slandering or otherwise wronging a member of the I BE W by any willful act or acts r These subsections state that (7) Publishing or circulating among the membership , or, among L U. 's false reports or misrepresentation (8) Sending letters or statements, anonymous or otherwise , or making oral statements , to public officials or other-, which contain untruths about, or which misrepresent a L U . its officers of representatives, or officers or representatives of the I B E W (10) Working in the interest of any organization or cause which is detrimental to, or opposed to, the I.B E W On June 21, he appealed the findings based on the charges of Christian-Box. While his appeals were pending, Vestal paid the fines levied against him by Installments e On December 20, 1971, in connection with the Christian-Box charges, and on December 22, 1971, with respect to Kempe's charges the International (in the person of the IVP) reviewed the penalties exacted by Respondent and reduced the fines in each case by half, in the process directing the Respondent to re- fund to Vestal all fines paid by him in excess of a total of $200 . In essence , the decisions of the IVP restate, with one notable exception discussed infra, the facts set forth in the separate charges filed against Vesta .9 In addition to halving the amount of the fines, these decisions also rescinded the action of Respondent concerning his making public apologies to the mem- bers. After the two decisions of the IVP, Vestal did not further pursue the International's appeals procedures in either case but instead filed the instant charge on April 14, 1972. At all times material herein, Vestal continued to be employed in his capacity as general foreman at the Shell jobsite, and Fisk did not curtail his authority to act for it as described previously nor change or reduce any of his management decisions made in relation to his duties. Nor did Fisk file any unfair labor practices concerning the subject matter herein. B. Contentions of the Parties The General Counsel contends that Respondent brought charges against and fined Vestal because he was too interested in why travelers (nonmembers of Respondent) on his job quit, because he advised them as to their Section 7 rights, and because he showed concern over whether Respondent was operating an illegal referral system; that Respondent's action was aimed at forcing Vestal to submit to its will. He argues that the Respondent would not tolerate a general fore- man who retained nonmembers over members, ad- s The constitution requires such payment as a prerequisite to perfecting an appeal. The terms of the constitution provide , inter ada, that appeals are made first to the International vice president (IVP), whose decision becomes effective immediately, then to the International president (IP), then to the International executive committee (IEC), and then to the International con- vention (IC) No appeal will be recognized unless the member has first paid the assessment Monthly installment payments are allowed in the amount of $20 if the fine is in excess of $25. No appeals from the decisions of the IVP, IT. or IEC, respectively, will be recognized unless the decision from which the appeal is taken has been complied with Appeals to the IP, IEC, and IC, to be considered , must be made within 30 days from the date of the decision being appealed If no appeal is made within that time, the last decision to issue shall be considered final. 9 The vice president in his decision on Kempe 's charges further noted that Vestal once attempted to pay his working dues in pennies and that within the year 1971 Vestal filed six charges against officers or members of the local and had two charges filed against him. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vised nonmembers of their Section 7 rights, and op- posed Business Manager Kempe . Thus relying on New Mexico District Council of Carpenters and Joiners of America (A. S. Horner, Inc.), 176 NLRB 797, the General Counsel concludes that this action against Vestal interfered with Vestal' s management duty to select and retain employees , in violation of Section 8(b)(1)(B). As to any question that may arise concern- ing the tolling of the 10(b) period, the General Coun- sel contends that such period did not begin to run until the fines were final which was when the IVP rendered his decisions on December 20 and 22, 1972, and thus , the charge filed April 14, 1972, was timely. The Respondent contends, inter alia, that Vestal filed this charge seeking individual relief and not as a representative of Fisk, and-that where , as here, the evidence does not show that the Employer has been restrained or coerced by Respondent's actions against Vestal, and the Employer has made no such claim, the charge should not be sustained by resort to presump- tions or implications of coercion . Respondent also maintains that supervisors are not immune from union regulations and should be held to the same standard of conduct expected of other members of the Respondent. In this regard , Respondent argues that the Union may discipline supervisors for violating union regulations to protect its status against erosion, subject to the rule of reason. Conclusion Although the charges against Vestal, the trials on those charges , and Respondent ' s decisions to impose fines on Vestal occurred more than 6 months before the filing of the charge in this case, and are clearly beyond the 10(b) period , we find that these actions were in themselves incomplete , and that the alleged misconduct was not completed and did not become final until the appellate decisions of the IVP in late December 1971, in which he modified the Respondent 's decisions by reducing the fines and res- cinding the public apology option . Since these appel- late decisions fell within the 10(b) period of the charge , which was filed in April 1972, we find that the complaint herein is not time -barred . We find that this case comes under the principle announced in Pacific Telephone and Telegraph Company, 188 NLRB 433, that , where the union's appellate procedure of review is a "procedural step necessary to establish with finali- ty the propriety of the fines themselves," such review will form the basis for a separate cause of action if it occurs within the 10(b) period . Here , the fines levied against Vestal did not become final until the IVP acted on appeal and Vestal took no further appeals under the Respondent 's internal appeal procedures. Since the IVP's appellate actions were proceedings to test the propriety of the disciplines imposed on Vestal by Respondent and, if proper , to give such disciplines finality or , if improper , to modify or revoke them, we find that his decisions on review started 10 (b) running from December 20 and 22 , respectively , which repre- sent the dates of Respondent 's final action against Vestal, and hence , the charge was timely filed. Accordingly, we not turn to the merits of the case. The threshold question is whether the underlying dis- pute in the present case was between Fisk and the Respondent or between Vestal and the Respondent. That is, was Respondent 's fining Vestal motivated by his exercising his supervisory authority on behalf of his employer , or was it motivated by some cause unre- lated to his carrying out his supervisory functions, notwithstanding that Vestal may have abused his su- pervisory position by using it to achieve the latter purpose . Based on the state of the entire record here- in, including the stipulation of facts and its incorpo- rated exhibits , we are unable to determine on which side of this question the answer should be given, and conclude and find that the General Counsel has not sustained his burden of proof by a preponderance of the evidence. We find that resolution of this issue is complicated by the confused state of the relevant and operative facts that pervade the entire record in that the inclu- sion of facts in the exhibits , namely, the union charges and decisions of the Respondent and the IVP, that are not set forth in the body of the stipulation create some confusion as to what the actual facts were that led to the filing of charges with Respondent and which facts were relied on by the Respondent and the IVP in issuing their respective decisions concerning such charges . Standing alone, the stipulated facts appear- ing in the body of the stipulation tend to show that Vestal was acting pursuant to the interests of the Em- ployer when he posted a list of acceptable and unac- ceptable excuses for employee absences , informed four employees upon their quitting the job that they did not have to be members of the Respondent to continue working for the Employer , charged Kempe with operating an illegal hiring hall in connection with their quitting, accused Kempe and McKnight of fa- voring members over nonmembers for job to induce their support in the upcoming union election, and retained nonmembers as employees while laying off three members from the job . On the basis of these facts above , Respondent 's action against Vestal would appear to relate to his discharge of functions which would normally be considered as the exercise of managerial authority in the interest of an employer. However , it does not appear that this case can be viewed and judged on those facts alone . The exhibits IBEW , LOCAL 716 incorporated into the stipulation contain additional pertinent facts describing the conduct of Vestal on which the Respondent may have acted in imposing the fines. These additional facts give rise to difficulties in assessing whether, and to what extent, discipline was imposed because Vestal exercised managerial au- thority in a manner objectionable to the Union or, on the contrary, because of Vestal's role in a personal squabble with other union members, or for both rea- sons . Not only do these exhibits show that some of the facts on which the Respondent acted related to Vestal's personal pursuits, unrelated to the exercise of supervisory authority, but others suggest that, even where Vestal was discharging management functions, he was doing so to carry out a personal vendetta against Kempe and other union officers.1° Thus, without deciding the issue of Respondent's motivation, we note that, based on the facts set forth in Kempe's charges, Vestal may very well have con- fronted the four nonmember employees who quit, threatened them with union charges for engaging in an illegal work stoppage, and thereafter filed charges against Kempe, alleging that he caused them to leave the job and was operating an illegal hiring system, in order, as Vestal told one of them, solely to get back at Kempe and McKnight, rather than as a representa- tive of management advising the employees of their statutory rights or assuring that the most qualified employees remained in the employ of the Employer. If so, Vestal may have been fined relating to this incident because he threatened to bring and brought union charges against fellow members for spurious reasons that were personally motivated. In such cir- cumstances, there would be no firm basis for finding a violation respecting Respondent's fining Vestal for such conduct. The same conclusions may well apply with respect to Vestal's openly opposing the leadership of Kempe and McKnight by accusing them of in effect operat- ing a discriminatory referral system to enlist political support. The complaint alleges that Vestal was acting for Fisk in respect to this incident. But his actions also seem subject to being viewed as an internal union matter if considered as an extension of his aim to embarrass and undermine the two union leaders or if characterized as an effort on his part to bring about their defeat as officers of the Respondent. As for the issue created by the allegation that on March 23, 1971, Vestal laid off members of Respon- dent in favor of nonmembers, an incident which Christian-Box list as one of the basis for their charges, 10 The facts set forth in these exhibits are not contradicted or disputed Indeed, Vestal admits their accuracy Under the circumstances, they appear to represent the most complete statement of the facts germane to the fining of Vestal. 337 we take cognizance of the fact that the applicable decision of the IVP in modifying the Respondent's fines-and only his decisions are arguably within the 10(b) period-makes absolutely no mention or even indirect reference to this incident. The grounds on which the IVP appears to have relied in fining Vestal are not referred to in the stipulated facts but only in the Christian-Box charges, such as: (1) Vestal gave a piece of steak to one employee while keeping the rest for himself as an example of how he took care of persons on his side; (2) Vestal stated that any mem- ber who attended the meeting of the Respondent on March 17 would never work for the Employer again; and (3) Vestal threatened to file union charges against any employee who quit the job. Thus, if these constitute the only reasons under the Christian-Box charges for fining Vestal, they would appear to in- volve conduct or assertions by Vestal in connection with his squabble with Kempe and McKnight, and not as a supervisor speaking for the Employer." Finally, with respect to the posting of the list per- taining to excusable and inexcusable absences, this too may be traced to personal motivation rather than loyalty to an employer, since the thrust of Kempe's charges concerning this incident, and thus any fine resting thereon, is that Vestal's refusal to excuse ab- sences brought on by caring for family members who are ill was aimed in pique at Union Steward Hopkins, perhaps with the hope that Hopkins would, as he did, quit the job. Although this could be viewed as fur- thering the Employer's interest by ridding it of a mili- tant steward, there is no evidence that Hopkins was an aggressive steward, or that the Employer desired that end or was even aware of such a scheme. That Vestal's conduct in this regard may have had nothing to do with his representing his employer is also indi- cated by the fact that the list was posted on the Respondent's, not Fisk's, bulletin board, and further by the fact that, after Hopkins quit, Vestal removed all union correspondence from that board and took it to the Respondent, stating it cluttered his job. In sum, therefore, the composite facts are subject to conflicting interpretations, one being that Vestal was fined for acting for his employer, Fisk, the other being that a personal intraunion vendetta existed between Vestal and the leadership of Respondent in the form of Kempe and McKnight, and to a lesser degree, Hop- kins, and that, therefore, Vestal was fined not because of his actions as a supervisor but because of the inter- nal union conduct he engaged in as a member of ii Inasmuch as these grounds were not alleged in the stipulated facts as incidents involving the application of Sec. 8(b)(I)(B), it appears that even the General Counsel did not consider them beyond the Respondent's right to discipline Vestal , thereby lending further support to an argument that the fines were not levied pursuant to a dispute between the Employer and the Respondent 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent.12 Under these circumstances, we find that it cannot be determined on the basis of this record to what extent the Respondent's actions against Vestal were predicated upon illegitimate grounds, and, therefore, that the stipulation fails to make out a prima facie 12 In connection with all of Vestal 's conduct there is no evidence that Fisk was aware of Vestal 's doings or that there was any substance to his claims Thus, the dearth of evidence in the record showing that there was any dispute between the Employer and the Respondent tends to support this latter con- clusion. violatioh.13 Accordingly, as we find that the General Counsel has failed to sustain his burden of proof of showing that Vestal was fined for his activities as a supervisor , rather than because of his internal union conduct , we shall dismiss the complaint in its entirety. ORDER It is hereby ordered that the consolidated com- plaint herein be, and it hereby is, dismissed in its entirety. 13 See Local Union No 453, Brotherhood of Painters, Decorators and Paper- hangers ofAmerica, AFL-CIO (Syd Gough and Sons Inc ), 183 NLRB 187.