J. A. Jones Construction Co.

National Labor Relations Board - Board Decisions

Jul 24, 1987

284 N.L.R.B. 1335 (N.L.R.B. 1987)

J. A. JONES CONSTRUCTION CO. 1335
J. A. Jones Construction Company and D. D.
Wagers and Paul Ray McLean. Cases 10-CA-
21441 and 10-CA-2167
24 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 15 January 1987 Administrative Law Judge
J. Pargen Robertson issued the attached decision.
No party filed exceptions, but Robert Tidwell,' an
individual claiming to be "aggrieved" by the
judge's decision, filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record, has decided to reject Tidwell's exceptions
for the reasons set forth below, and, in the absence
of any valid exceptions to the judge's decision, has
affirmed the judge's rulings, findings, and conclu-
sions and has adopted the recommended Order.
The judge found that Tidwell, who is one of the
Respondent's general foremen, is a supervisor
within the meaning of the Act. Tidwell's concur-
rent union duties are the focal point of the 8(a)(2)
and (1) complaint allegations here. The complaint
does not name Tidwell as a party to this proceed-
ing. Although he appeared as a witness in the hear-
ing before the judge, Tidwell did not seek to inter-
vene at any time as a party. The judge found that
the Respondent violated Section 8(a)(2) and (1) by
permitting Tidwell to serve on the joint apprentice-
ship committee of Plumbers Local 72, as a trustee
on that union's health, welfare, and retirement
committee and as Local 72's delegate to its national
convention. As part of the recommended remedy,
the Respondent would be required to direct Tid-
well to resign from his union positions.
Only Tidwell has filed exceptions to the judge's
decision. His exceptions raise a threshold question
whether an individual who did not seek to inter-
vene at any stage of the proceeding and who did
not participate in any manner as a party to this
proceeding may nevertheless file exceptions to a
judge's decision in the absence of exceptions from
any party. We hold that he may not.
In Lincoln Technical Institute, 256 NLRB 176
(1980, 2 the Board construed the provisions of See-
'The judge in his decision inadvertently referred to Robert Tidwell as
"John" Tidwell.
2 Enfd. sub nom. Giacalone v. NLRB, 682 F.2d 427 (3d Cir. 1982).
tion 10(c) of the Act3 concerning the filing of ex-
ceptions to the judge's decision and held that "a
nonparty discriminatee has no right to file excep-
tions to a decision of an administrative law judge
that is not excepted to by any party."4
For essentially the same reasons as those ex-
pressed in Lincoln Technical Institute, we conclude
that Tidwell had no right to file exceptions in this
proceeding. Tidwell, unlike an alleged discrimina-
tee, had no basis for becoming a party by filing a
charge in this proceeding. He did, however, have
the opportunity to move to intervene in order to
become a party. Had he intervened, he would have
become entitled to notice of the hearing on the
complaint, to an opportunity to be heard, to notice
of the decision, and to the opportunity to file ex-
ceptions.
We therefore hold that a nonparty such as Tid-
well has no right to file exceptions to a decision of
an administrative law judge that is not excepted to
by any party. 3 In the absence of valid exceptions
having been filed to the judge's decision in this
case, we shall order his decision and the recom-
mended Order adopted.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, J. A. Jones
Construction Company, Atlanta, Georgia, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
a See also Board's Rules and Regulations Secs. 102.46(a) and 102.8.
4 256 NLRB at 177.
5 Even assuming arguendo that Tidwell could be a "person aggrieved"
by a final Board order within the meaning of Sec. 10(1) and therefore en-
titled to seek review in a United States court of appeals, this status does
not establish his antecedent right to file exceptions. Giacalone v. NLRB,
supra.
In Member Johansen's view a nonparty has no right to file exceptions
to a decision of an administrative law judge at all. It matters not whether
a party has, or has not, also filed exceptions. A nonparty simply has no
right to file exceptions. Member Johansen would overrule Lincoln Techni-
cal Institute, 256 NLRB 176 (1981), to the extent that it seems to hold
otherwise. We find it unnecessary to decide whether there could be any
circumstances, not present here, that would warrant Board acceptance of
a nonparty's exceptions.
Sharon E. Howard, Esq., for the General Counsel.
Dwane Vickstrom, Esq., of Charlotte, North Carolina, for
the Respondent.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard in Atlanta, Georgia, on 13 August
1986. The complaint that issued on 20 June 1986 was
based on charges filed 9 January and 22 May 1986. Re-
spondent admitted the commerce and jurisdictional alle-.
284 NLRB No. 141
1336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gations of the complaint. Respondent answered that it
had insufficient knowledge to determine whether the
United Association of Journeymen and Apprentices of
the Plumbing and Steamfitting Industry of the United
States and Canada, Local No. 72 is a labor organization.
The record, which includes copies of collective-bargain-
ing agreements 1 executed by the Union and testimony,
especially that of John Tidwell who served as president
of Local No. 72 for 9 years, revealed that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
The General Counsel alleged that Respondent violated
Section 8(a)(1) and (2) of the Act by interfering with the
administration of the Union by permitting its supervisor,
General Foreman John Tidwell, to serve as a union rep-
resentative on the joint apprenticeship committee, as
trustee on a board that oversees health, welfare, and re-
tirement funds, and as a delegate to the Union's national
convention.
John Tidwell is one of Respondent's general foremen
on its job at an AT&T facility near Atlanta. Before Re-
spondent entered into a contract with AT&T to perform
work at the AT&T site in 1982, Tidwell worked for an-
other company, Riggs Distler, at the same site. Tidwell
started work at that site as a journeyman in 1971. Ap-
proximately 2 months after he began work, Tidwell was
promoted to foreman. Two years after he began work,
Tidwell became a general foreman. He has served in that
capacity continuously since that time.
Until December 1984 when Tidwell decided not to
seek reelection, he served as president of the Union's
local for 9 years. Tidwell admitted, and the parties stipu-
lated, that Tidwell has served, and is currently serving,
as a representative of the Local Union on the joint ap-
prenticeship committee, as a trustee on a board that
oversees the health, welfare, and retirement funds, and as
a delegate to the Union's national convention. Tidwell's
testimony indicated that he has voting authority in all
three capacities mentioned above. The Union holds a
convention every 5 years at which time it rewrites its
constitution. At the last convention Tidwell was one of
3534 delegates with voting authority. In his other two
roles Tidwell participates on the committees that oversee
the Local's health, welfare, and retirement fund and the
Local's apprenticeship program.
The evidence illustrates, and I fmd, that at times mate-
rial, John Tidwell has been a supervisor of Respondent
at times when he held three responsible positions with
the Local Union. Respondent contends, however, that
Tidwell is a low-level supervisor and, "even if it were to
be held that Tidwell is a high level supervisor under the
Act, there is no evidence that a violation of the Act oc-
curred."
Conclusions
The National Labor Relations Act protects employees'
rights to be represented, at their choosing, by a labor or-
ganization in dealing with their employer regarding
working conditions. Jurisprudence has established that
The collective-bargaining agreements contained in the record appear
to be less than complete copies.
that right is compromised when the employer and the
union are represented by the same individual. However,
Respondent argues that a violation does not occur in in-
stances when the individual at issue is no more than a
low-level supervisor with the employer (Beach Electric
Co., 174 NLRB 210 (1969)).
Overall supervision of Respondent's contract work for
AT&T is the responsibility of Project Manager Charles
Shubert. Directly under Shubert are two superintendents.
Tidwell is 1 of 10 general foremen that report to the 2
superintendents. Tidwell is the general foreman over the
plumbers and steamfitters. In that regard, Tidwell has su-
pervisory authority over 8 to 10 foremen.
Out of a current total employee complement of 320
employees, Respondent employs about 70 plumbers and
steamfitters under the supervision of Tidwell and his
foremen.
According to Tidwell's testimony, although he has au-
thority to hire and discharge employees, he has little op-
portunity to do either. Both the journeymen employees
and the foremen have more occasion to be involved in
those decisions. Tidwell testified that the journeymen in-
dicate whether employees are demonstrating sufficient
proficiency for retention. The foremen are more directly
involved with the employees than the general foreman
and have more opportunities to be involved in discharge
decisions.
Nevertheless, it is clear from the evidence that John
Tidwell's position with Respondent places him well
beyond the status of a low-level supervisor. Tidwell is
the highest ranking plumbing and pipefitting supervisor
at the AT&T jobsite with direct authority over 8 or 9
foremen and 70 rank-and-file employees.
In consideration of the ramifications of supervisory
participation, the courts and the Board have expressed
strong concern when supervisors are placed in a position
to influence action by the union (See, e.g., NLRB v.
North Shore University Hospital, 724 F.2d 269 (2d Cir.
1983)).
Here, General Foreman Tidwell was a delegate to the
Union's national convention in which he was authorized
to vote on all issues, including those regarding the
Union's constitution. He is a voting member of the
Union's apprenticeship committee, which determines
whether employees should qualify through the appren-
ticeship program and he is a voting member of the com-
mittee that considers questions of qualification for em-
ployees' health, welfare, and pension benefits. The evi-
dence did not reveal that Tidwell has been discriminator-
ily influenced in his actions in any of the above roles.
However, in their dealings with employers of employees
represented by the Union, the employees are entitled to
representation that gives neither the appearance nor the
actual practice of being influenced by management. The
employees are entitled to "single-minded loyalty to their
interest." Ditzler Mechanical Contractors, 259 NLRB 610,
612 (1981); see also St. Joseph's Hospital, 254 NLRB 634
(1981).
The record here shows that General Foreman Tidwell
is not a low-level supervisor. His role with Respondent is
that of a visible agent, one clearly aligned with manage-
J. A. JONES CONSTRUCTION CO. 1337
ment as set out in Respondent's organizational chart.
Tidwell is the highest ranking plumber and pipefitter su-
pervisor. Cf. Russ Togs, 253 NLRB 767 (1980), in which
a violation was found even though the supervisor was
found to be low level.
Regarding Respondent's argument that Tidwell has
not engaged in actual violative activity, the cases show
that a violation is established if the evidence proves that
a supervisor occupied positions of responsibility with the
Union. See Ditzler Mechanical Contractors, supra at 212;
St. Joseph's Hospital, supra.
The record established that Respondent violated Sec-
tion 8(a)(1) and (2) by permitting its general foreman to
serve as the Union's delegate to its national convention
and as a member of both the apprenticeship and health,
welfare, and pension committees.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
1 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (2) of
the Act by permitting its general foreman to serve on the
Union's apprenticeship committee, which is trustee of the
Union's health, welfare, and retirement committee, and
as a delegate to the Union's national convention.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(2) of the Act, I shall order it to cease and desist there-
from and take certain affirmative action designed to ef-
fectuate the policies of the Act.
The sole question before me regards the role of Gener-
al Foreman Tidwell with the Union. Therefore, the
remedy shall include, but be limited to, a requirement
that Respondent prohibit Tidwell from continuing in the
above-mentioned positions with the Union.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, J. A. Jones Construction Company,
Atlanta, Georgia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Permitting its general foreman, John Tidwell, to
serve as a member on the Union's joint apprenticeship
committee, as a trustee on the board that oversees the
health, welfare, and retirement fund of employees, and as
a delegate to the Union's national convention.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Direct its general foreman, John Tidwell, to resign
his positions with the Union as a member of the joint ap-
prenticeship committee, as a trustee on the board that
oversees health, welfare, and retirement funds of employ-
ees, and as a delegate to the Union's national convention.
(b) Post at its offices at the AT&T facility copies of
the attached notice marked "Appendix." Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice readmg "Posted by Order of the Nation-
al 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."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT permit our supervisory employees to
participate in union activities by being members of the
Union's joint apprenticeship committee, trustees of the
board that oversees the Union's health, welfare, and re-
tirement fund, or as delegates to the national convention
of the United Association of Journeymen and Appren-
tices of the Plumbing and Steamfitting Industry of the
United States and Canada, Local No. 72.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL direct General Foreman John Tidwell to
resign his positions with the Union as a member of the
1338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
joint apprenticeship committee, as a trustee on the board funds, and as a delegate to the Union's national conven-
that oversees employees' health, welfare, and retirement tion.
J. A. JONES CONSTRUCTION COMPANY