Laborers' International Local 478

National Labor Relations Board - Board DecisionsJun 22, 1973

204 N.L.R.B. 357 (N.L.R.B. 1973)

LABORERS ' INTERNATIONAL LOCAL 478 Laborers' International Union of North America, AFL-CIO, Local 478 (International Builders of Florida , Inc.) and L . R. Wilson . Case 12-CB-1170 June 22, 1973 DECISION AND ORDER On November 4, 1971, Administrative Law Judge Paul E. Weill issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief and a motion to reopen the record, and the General Counsel filed an opposi- tion to the motion. The Board has considered the record and the Ad- ministrative Law Judge's Decision in light of the ex- ceptions and brief, the motion, and the opposition thereto and has decided to affirm the findings, rulings, and conclusions of the Administrative Law Judge, as modified below, and to adopt his recommended Or- der. We are in agreement with the Administrative Law Judge that Respondent, by insisting that Davis be hired as foreman either in Wilson's place or under Wilson, violated Section 8(b)(1)(B) of the Act. Con- trary to our dissenting colleague, we do not view our decision as barring the protest of the Employer's em- ployees with respect to Wilson's treatment of them, whether or not it was racially motivated. Clearly, Wil- son, while a general foreman, was an agent of the Employer and the conditions of employment which he imposed upon the employees were the Employer's conditions. At all times the employees were free under Sections 7 and 13 of the Act to invoke their statutory rights with respect to these alleged unreasonable or unfair conditions. To the extent the Administrative Law Judge's comments in footnote 6 of his Decision may be interpreted as indicating a contrary finding, they are not adopted. This is not to say, however, that the right to strike or engage in concerted activity be- cause of unfair conditions of employment includes the right to dictate to an employer the selection of a particular supervisor, here Davis, who would have the power to engage in collective bargaining or adjust grievances. The Administrative Law Judge found, and we agree, that both Wilson and Davis had the power, and did, adjust grievances for the employees. Under these circumstances, we hold that the Respon- dent Union, whatever its motivation, could not by restraint and coercion force the Employer to select Davis rather than Wilson for such purposes.' The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 Accordingly, Respondent 's motion to reopen the record is denied ORDER 357 Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Laborers ' International Union of North America, AFL-CIO, Local 478, its officers , agents, and representatives , shall take the ac- tion set forth in the Administrative Law Judge's rec- ommended Order. MEMBER JENKINS, dissenting: International Builders of Florida, Inc., herein re- ferred to as International Builders, is engaged in the construction of a school. It has a collective-bargaining agreement with Respondent Union, containing the following clause prohibiting racial discrimination: The Union and the employer shall fully comply with all of the requirements of Title VII of the Civil Rights Act and Presidential Executive Order No. 11246 and will comply with all rulings and regu- lations promulgated under the Order. The Union further agrees to furnish an employer, at his re- quest, any statement or data, in proper form, required by Executive Order No. 11246. [Empha- sis supplied.]' Respondent Union is herein found to have violated Section 8(b)(1)(B) of the Act by engaging in a work stoppage and threatening to engage in further work stoppage with the object of compelling International Builders to either remove Wilson as general foreman or reinstate Davis as foreman in Wilson's place or place him under Wilson as a "buffer" between Wilson and the employees. Respondent Union, in its defense, offered to prove that the employees working under Wilson's direction were "dissatisfied with the way that they had to perform under Wilson, that he pushed them, that he treated them in an arrogant and cavalier manner, that he didn't care for their difficult job that they had to perform, that he has assigned very diffi- cult tasks to them and that he discriminated against them in the assignment of work to them as to others." More explicitly, Respondent argues that its action "was in response to intolerable racial discriminatory working conditions inflicted upon the employees by Wilson and that its action shoudl [sic] not be deemed unlawful. . .." My colleagues take the position that it is "immateri- al" to the disposition of this case that the Respondent may have acted in protest of, or to remedy, or at least to isolate, the alleged racial discrimination by Interna- 3 Title Vii of the Civil Rights Act of 1964 specifically prohibits discrimina- tion in employment based on race, color, religion, sex, or national origin 42 U S C Â§ 2000e-2(a), el seq 204 NLRB No. 32 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Builders through its selected representative Wilson. Instead, they find it of no apparent concern that Wilson may have practiced racial discrimination in the exercise of his supervisory authority, as alleged, and they reject Respondent's efforts to reopen the proceeding to receive evidence in this regard. It would appear, by their findings and rulings, that the majority of the Board is herein deciding that under Section 8(b)(1)(B) an employer may with impunity select as its representative for the purpose of collective bargaining or the adjustment of grievances one who unlawfully discriminates against the employees on the basis of race, and that the employees and their collective-bar- gaining representative are barred from withholding their labor in protest, in an effort to correct or to at least isolate the unlawful actions of the discriminating supervisor. Clearly, in my view, this result distorts our constitutional requirements and our national policy concerning discrimination in employment based on race, is contrary to the explicit collective-bargaining agreement between the parties, and is not mandated by Section 8(b)(1)(B) of the Act. In examining the constitutional requirements of our national labor policy concerning discrimination in employment based on race, an appropriate starting point is the United States Supreme Court's landmark decision in Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944). There, the Court, in defining a union's obligations under the doctrine of fair repre- sentation, stated that discriminations based on race alone are obviously irrelevant and invidious and an employee's bargaining representative is not author- ized to make such discriminations. The Court held that a collective-bargaining agreement entered into between the employer and the union was unlawful to the extent it discriminated against black employees on racial grounds, reasoning that the union, like the legis- lature, "is also under an affirmative constitutional duty equally to protect those rights," namely, the rights of being free from racial discriminations which are "obviously irrelevant and invidious." These important constitutional principles are equally applicable under the National Labor Rela- tions Act. The Wallace Corporation v. N.L.R.B., 323 U.S. 248 (1944); Ford Motor Company v. Huffman, 345 U.S. 330 (1953); Humphrey v. Moore, 375 U.S. 335 (1964). Since Steele, racial discrimination in employ- ment, whether by unions or employers, has been un- lawful. Indeed Steele not only restrains the parties from engaging in, permitting, or tolerating provisions in bargaining agreements, or practices under or out- side such agreements, which constitute or permit irrel- evant and invidious discrimination, but affirmatively assigns a constitutional duty on the parties, both union and employer, to support the elimination of racial consideration. Following the Court's constitutional pronounce- ment in Steele, this Board, in Tanner Motor Livery, Ltd., 166 NLRB 551 at 552, held that a union is re- quired, by its duty of fair representation and by con- stitutional consideration , to fully support the elimination of racial discrimination, and that a protest of racial discrimination in employment by employees cannot be at cross-purposes with the union's position. Specifically, the Board held: For the Board to find, therefore, that employees' otherwise protected concerted activities herein were rendered unprotected by virtue of an ex- isting collective-bargaining agreement between the Union and the Respondent would be offen- sive to public policy. In addition, following Steele, no court has permitted the existence of a collective-bargaining agreement or practices under or outside such agreement to stay its hand in ordering an employer to eliminate racial dis- crimination. Indeed, employers have been permitted, and under Steele and subsequent pronouncements are constitutionally obligated, to change existing collec- tive-bargaining agreement provisions and practices which have discriminatory effects, and such changes may be made free from threat of strike. See U.S. v. Local 189, United Papermakers, 282 F.Supp. 39, 42-44 (E.D. La., 1968). Additionally, the Board, in Miranda Fuel Company, Inc., 140 NLRB 181, held, and the Supreme Court in Vaca v. Sipes, 386 U.S. 171, 183 (1967), later indicated the correctness of that view, that employees must be protected from actions taken against them which are irrelevant, invidious, or unfair. It should be noted that in the latter case the Supreme Court criticized the Board for its "tardy" assumption of jurisdiction in these types of cases. In United Pack- inghouse, Food and Allied Workers International Union, AFL-CIO v. N.L.R.B., 416 F.2d 1126 (C.A.D. C., 1969), cert. denied 396 U.S. 903 (1969), the court held that an employer's maintenance of racial discri- mination in his employment practices violates Section 8(a)(1) of the Act. Finally, the constitutional doctrine enunciated by the Supreme Court in Steele and reaffirmed in various judicial opinions on numerous occasions thereafter has been embraced completely by the Congress in the enactment of Title VII of the Civil Rights Act of 1964. It is now crystal clear that the national labor policy itself specifically forbids racial discrimination in the terms and conditions of employment, and its exis- tence is constitutionally forbidden and its presence is totally unlawful. It should also be noted, in passing, that here the labor agreement between the parties fully embraced these judicial and legislative precepts. Despite the constitutional requirements and the LABORERS ' INTERNATIONAL LOCAL 478 359 clear national labor policy barring racial discrimina- tion, the National Labor Relations Board has been extremely reluctant to give effect to these principles. Indeed, it would appear that this very failure to grasp those principles recently precipitated the United States Court of Appeals for the Eighth Circuit, in N. L. R. B. v. Mansion House Center Management Cor- poration, 473 F.2d 471 (C.A. 8, 1973), to severely re- buke the Board in holding that the Board's participation in the maintenance of racially discrimi- natory practices violates the Due Process Clause of the Fifth Amendment. More specifically the court stated: That racial discrimination is so invidious as to be unjustifiable cannot be denied. Accordingly, any recognition or enforcement of illegal racial poli- cies by a federal agency is proscribed by the Due Process Clause of the Fifth Amendment. See Gautreaux v. Romney, 488 F.2d 731, 740 (7 Cir. 1971); cf. Public Utilities Commission v. Pollak, 343 U.S. 451 (1952). [Footnotes omitted.] Again, in the court's words, it appears: When a union discriminates on the basis of race or color it invidiously deprives equal opportunity for employment to a large segment of working men. See Sovern, The National Labor Relations Act and Racial Discrimination, 62 Colum. L. Rev. 563 (1962). When a governmental agency recognizes such a union to be the bargaining rep- resentative it significantly becomes a willing par- ticipant in the union's discriminatory practices. Although the union itself is not a governmental instrumentality the National Labor Relations Board is. N.L.R.B. v. Nash-Finch Co., 404 U.S. 138, (1971). Moreover, here the Board seeksjudi- cial enforcement of its order requiring collective bargaining in a federal court. Obviously, judicial enforcement of private discrimination cannot be sanctioned. Cf. Barrows v. Jackson, 346 U.S. 249 (1953); Hurd v. Hodge, 334 U.S. 24 (1948); Shel- ley v. Kraemer, 334 U.S. 1 (1948). [Footnote omit- ted.] As noted heretofore, following Steele, no court has permitted the existence of a collective-bargaining agreement or practices under or outside such agree- ments to stay its hand in ordering an employer or union to eliminate racial discrimination. It is now clear from the court's teachings in Mansion House that legislative provisions of the National Labor Relations Act cannot be used to avoid our national labor policy forbidding racial discrimination. Moreover, the Board is constitutionally barred from interpreting or enforcing the Act in any manner fostering such racial discrimination. The Mansion House case, in several critical areas, is almost identical to the substance of the instant case. In Mansion House the employer urged that the union seeking to represent its employees practiced racial dis- crimination. In the instant case the Union is alleging that the Respondent, through its supervisor Wilson, is engaged in racially discriminatory practices. In Man- sion House the employer argued that such racial dis- crimination is a relevant area of inquiry for the Board when this matter is raised as a defense to its refusal to bargain. In the instant case the Union similarly argues that such racial discrimination as practiced by Respondent's supervisor is also a relevant area of in- quiry for the Board when it is this alleged racial discri- mination which is now being urged in its defense. In Mansion House, as in the instant case, evidence as to the alleged practices of racial discrimination was ex- cluded. Clearly, both cases pose the same charge of racial discrimination as an appropriate ground of Board in- quiry. In Mansion House the Board seemingly recog- nized its obligation of inquiry but rejected the charge on the ground of insufficient evidence to justify the employer's challenge. Aside from concluding that the Board erroneously viewed the rejected evidence and applied the wrong standard in testing the discrimina- tion charge, the court set forth in explicit terms the Board's constitutional obligation to consider charges of racial discrimination. Thus, the court stated: Nevertheless, aside from the public policy and national interests involved, we think constitu- tional limitations on the Board's process required recognition of a charge of racial discrimination as an appropriate ground of inquiry where a union's representative capacity is questioned. As hereinbefore noted, the constitutional limitations apply equally to a union and an employer. Despite the Court's constitutional warning, my colleagues herein conclude that evidence of alleged racial discrimina- tion is "immaterial." Although the court in Mansion House was confront- ed with a charge of racial discrimination as a defense to a refusal to bargain, I cannot conceive that its conclusion would have differed in the instant case where the charge of racial discrimination is raised as a defense to an 8(b)(1)(B) allegation. Indeed, in arriv- ing at its conclusion, the court, in substantial part, relied on and applied that same body of constitutional law and national labor policy which I have heretofore set forth. Indeed, the court clearly pointed out, as I have frequently attempted to illustrate, that the Na- tional Labor Relations Act was not meant to be read and interpreted in a vacuum. Rather, the Act we ad- minister must be read consistently in accord with constitutional requirements and other Federal stat- utes which comprise a part of our total national labor 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policy.' It is this acceptance of evidence regarding racial discrimination, whether presented as a defense to a Section 8(b)(1)(B) case or whether presented as a defense to a Section 8(a)(5) case, which is subject to the same constitutional mandate and requirement. It follows from the foregoing, as I have heretofore indicated in my dissent in The Emporium, supra, that: As to discriminatory practices which are not de- rived from or are not inherent in the collective- bargaining agreement, employers are not only free unilaterally to eliminate such discrimination, but are dutybound to do so. . . . Nor may they shift their responsibility under the national labor policy to eliminate all racial discrimination to the union by making such illegal discrimination a matter solely within the jurisdiction of a griev- ance-arbitration procedure, thereby placing the burden largely on the union and providing them- selves with a ready defense to any and all con- certed activities by their employees to directly eliminate discriminatory practices. Similarly, an employer may not shift its constitutional responsibility under our national labor policy to elim- inate all racial discrimination by hiding behind its right granted under Section 8(b)(1)(B) to select, free from coercion or restraint, representatives who may engage in racial discrimination, and therefore declare itself free from all concerted activities by its employ- ees or their collective-bargaining representative to eliminate the discriminatory practices of the selected employer representatives. Section 8(b)(1)(B) declares it to be an unfair labor practice for a union to restrain or coerce an employer in the selection of his representatives for the purpose of collective bargaining or the adjustment of griev- ances . It does not, however, declare it to be an unfair labor practice for a union to restrain or coerce an employer into correcting and eliminating racially dis- criminatory practices of a supervisor whom he has selected as his representative, short of restraining the employer in the selection of that individual. Indeed, since Steele, a union is constitutionally obligated to eliminate and assist in the elimination of all discrimi- natory racial practices, and to conclude otherwise would be to fly in the face of that extensive body of law comprising our total national labor policy re- ferred to above. Thus, in my view, my colleagues warp the entire posture of this case by holding that in a 8(b)(1)(B) proceeding it is "immaterial" whether the employees' basic dissatisfaction with a supervisor stems from his purported discrimination on a racial basis or is based on a reverse discriminatory intent by See my dissents in The Emporium, 192 NLRB 173, and Jubilee Manufac- turing Company, 202 NLRB No 2 the employees; namely, to have only black foremen on the job. Such a conclusion precludes employees or their collective-bargaining representative, under the penalty of an 8(b)(1)(B) violation, from taking any action to alleviate or correct a supervisor's racially discriminatory conduct which an employer is consti- tutionally bound to eliminate, which the Union is constitutionally obligated to eliminate or rectify, and which its contract with the Respondent Union for- bids. To read Section 8(b)(1)(B) to prohibit such ac- tion by the Union or by the employees causes the Section to become a shield for racial discrimina- tion-a reading which Steele held cannot be given to any part of the Act without causing it to violate the Constitution.' Plainly, the instant record is incomplete and inca- pable of forming the basis for proper and correct decision on the alleged 8(b)(1)(B) violation. Indeed, it leaves unanswered the basic and crucial question as to the employees' reason for withholding their services and Respondent Union's purpose in thereafter rat- ifying that work stoppage. The Respondent urges that it was not thereby seeking the oster of Wilson, which it concedes would violate Section 8(b)(1)(B), but was using the work stoppage as a means of enforcing what to it was the only alternative course available to it, namely, to isolate Wilson's alleged oppressive and dis- criminatory conduct by having the employer reinstate Davis as a buffer between Wilson and the predomi- natly black work crew. Such action clearly is not per se violative of Section 8(b)(1)(B). It follows from the foregoing, and particularly from Mansion House, that any and all available evidence as to Wilson's alleged oppressive and racially discriminatory conduct is not only material, but is necessary, in order to reach a determination as to Respondent's motive for its ac- tion and whether it in fact violated Section 8(b)(1)(B) as alleged. Moreover, I do not find persuasive the General Counsel's contention that the Respondent's posthear- ing motion to reopen the record should be denied as an afterthought merely because it for the first time alleged racially discriminatory conduct specifically. In this regard, I note that during the hearing, Respondent's efforts to establish Wilson's treatment of the work force as discriminatory were ruled as irrelevant and barred from further consideration by 5 In acknowledging that employees are free under Section 7 and 13 of the Act to invoke their "statutory" rights with respect to unreasonable or unfair conditions , my colleagues continue to pay only lip service to the mandates of our national labor policy and the constitutional requirements barring racial discrimination Thus, here again, as in Mansion House, when confront- ed by serious charges of racial discrimination practiced by one of the parties now before us, my colleagues erect another section of the Act, this time, Sec 8(b)(1)(B), as a bulwark against such charges and interposing that same section as a statutory excuse for failing to carry out the Board 's constitutional obligation to consider such charges in relation to the violation alleged LABORERS ' INTERNATIONAL LOCAL 478 the Administrative Law Judge. In my opinion, these rulings of the Administrative Law Judge during the hearing, and now my colleagues' agreement with him, that such matters are irrelevant to the disposition of this case, are not in accord with our national labor policy, are not required by Section 8(b)(1)(13) of our Act, and deny the Respondent Union a fair hearing on the violation with which it is charged. I would therefore grant the Respondent Union's motion to remand this case to adduce any and all evidence bearing on Wilson's allegedly oppressive and racially discriminatory conduct. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner : On December 21, 1970, L. R. Wilson , an individual, filed a charge with -the Region- al Director for Region 12 of the National Labor Relations Board (herein called the Board ) alleging that Laborers' In- ternational Union of North America , AFL-CIO, Local 478, hereinafter called Respondent, caused Wilson 's discharge as a supervisor in violation of Section 8(b)(1)(B) of the National Labor Relations Act, as amended , hereinafter called the Act . On June 28 , 1971, the Regional Director, on behalf of the General Counsel of the Board, issued a com- plaint and notice of hearing alleging that Respondent coerced and restrained an employer , International Builders of Florida , Inc., hereinafter called the Employer, in the selection of its representatives for the purposes of collective bargaining in violation of Section 8 (b)(1)(B) of the Act. By its duly filed answer Respondent admitted and denied vari- ous allegations in the complaint and denied the commission of any unfair labor practices . On the issues thus joined the matter came on for hearing before me at Miami, Florida, on July 20 and 21 and August 23, 1971 . All parties were present or represented by counsel and had an opportunity to ad- duce relevant and material testimony , examine and cross- examine witnesses, argue orally on the record, and file briefs. The General Counsel argued orally at the close of the hearing . A brief was received from Respondent. The Re- spondent has made a motion to reopen the record.' Upon the entire record in the case , and in consideration of the argument and brief , I make the following: FINDINGS OF FACT I BUSINESS OF EMPLOYER It is alleged and admitted that the Employer is a Virginia corporation doing business in Florida as a contractor in the building and construction industry and that in the course of its business it purchased and received in Florida in the calendar year 1970, goods and materials valued in excess of $50,000 directly from points outside the State of Florida. i The General Counsel riled an opposition to the Respondent's motion, and Respondent filed a reply to General Counsel's opposition. 361 The Employer is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICE Background The Employer is engaged in the construction of a school near Miami, Florida. On June 25, 1970, the Charging Party, Wilson, contacted the construction superintendent, Elmer Powell, for whom he had worked before, with a view to employment as a laborer foreman. Powell arranged for an interview with a representative of the owner, Sharpe, after which he hired Wilson, to report next day. Wilson was a member of the Orlando, Florida, Laborers' local at the time he was hired by the Employer. He wrote for a transfer which he received over the July 4 weekend and took with him to the jobsite on July 6. He showed the transfer letter to the acting steward on the job, Ben Adams, and said that he would take it down to the union hall. Adams suggested that he wait until the weekend or a rainy day so that he would not lose time from work to deposit it. At 10 a.m. the same day, Joseph Matthews and Leroy New- som, business agents of Respondent, came to the jobsite. They sought out Acting Steward Adams and confirmed him as the official steward giving him a button and taking him to the construction shack to inform Powell that he had been confirmed as the official steward of the Union. They then called for Wilson and walked up to him. According to Wilson's account Matthews asked him what he was doing on the job, to which Wilson answered truthfully that he had been sent out by the hall.2 Matthews also asked Wilson where his transfer was and Wilson displayed the transfer letter to him, whereupon, Matthews asked where Powell was. Powell arrived at the scene at about this time. Mat- thews turned to him and told him that Wilson could not work as a foreman because he was not cleared by Washing- ton. Powell asked how long clearance would take and Mat- thews said that it would take a few days, whereupon Powell appointed Eugene Davis as a temporary foreman. Between July 6 and August 4 the job continued with Wilson acting as a general foreman and Davis as a tempo- rary foreman under Wilson's direction .3 Between July 6 and August 4 Wilson, on two or three occasions a week, asked Acting Steward Adams whether he had yet been cleared into the Local. Adams, who occasionally went to the union 2 Wilson had secured a referral from Respondent's hiring hall on June 25 which he deposited with the Employer on June 26 after showing it to Acting Steward Adams 3 I do not credit Davis' testimony that he did not act as a foreman and that his daily activities did not change in any way after his appointment as temporary foreman I deem it irrelevant in the context of this case whether he acted as a foreman, but all the evidence, with the exception of his, indi- cates that he gave directions to the other laborers on the job, acted as a conduit for the orders of Wilson and Powell, and occasionally assisted in the work of the laborers Whether he was a supervisor during this period, within the definition of the Act, is immaterial 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hall, told him that he had not. Wilson also attempted to find out what Washington clearance was required because in his experience no clearance from Washington had ever been required in traveling from local to local. Powell continued to ask Wilson to ascertain his status. On August 4 Sharpe spoke to Powell suggesting that the Employer could no longer afford to carry two laborer fore- men on the job and suggested that Powell demote Davis until enough laborers were working on the job to warrant a second foreman .4 On the afternoon of August 4 Powell called Wilson and asked him if he could handle the laborers alone. Wilson assured Powell that he could. There is some evidence that on this occasion Wilson informed Powell that he had been cleared by the local. Wilson then notified the shop steward, Adams, that he was going to demote Davis and informed Davis that until more laborers were hired he did not need a second foreman and that he would be demoted to the capacity of laborer. Adams immediately went to the telephone and called Business Agent Newsome, in whose territory the job is lo- cated. He informed Newsome of the demotion of Davis and, according to his testimony, Newsome made no answer whatsoever. On August 5 when the laborers were supposed to start work at 8 a.m. they gathered across the street from the project and refused to start work. Wilson asked Shop Stew- ard Adams why the men were on strike. Adams said he did not know, but that the business agent would be out later. A picket sign was carried by an unidentified employee stating "International Builders refused to abide by the agreement," and the Respondent's name was printed on it. Powell attempted to find out what the trouble was. He talked to Wilson who told him he did not know what was going on and went across the street and stayed with the men. Powell next asked Shop Steward Adams what the trouble was and whether he could straighten it out. Adams an- swered only "you will have to talk to the business agent when he gets out here." Around 10 o'clock Business Agent Matthews came to the jobsite. He and Adams talked to Powell. Powell asked what he had done now and Matthews answered "what do you mean making Wilson foreman." Powell answered that Wil- son had said he was cleared into the Local to which, accord- ing to Powell's testimony, Matthews answered that Wilson had to be a member in good standing for a year before he could be a general labor foreman. Powell said he had never heard of such a thing and asked if they had any suggestions, whereupon Adams said "why don't you put Davis back on." Powell asked if he did not, what would happen, and Adams answered "Do you want the men back to work? You had better put him back on." Powell wanted to know what he was going to do with two foremen and Matthews said "that is your problem." Powell told Davis that he was foreman Under the terms of the contract when more than two employees are employed on the job a foreman must be hired who shall be a member of the unit When the number of laborers on the job reaches 15, the foreman who theretofore received 50 cents in excess of the laborer's rate , should be raised to 75 cents over the laborer's rate A second foreman , if one is hired, would be employed at 50 cents an hour and the first foreman at 75 cents an hour may bear the title , general foreman. again and Matthews told Adams to tell the men to go back to work. The above account, which was given by Powell, was sharply contradicted by both Adams and Matthews. Adams testified that he and Matthews went into the trailer with Powell and that Matthews asked Powell what had happened to the foreman. Powell explained that the Company was not going to let him have two foremen and he was going to have to put Davis back as a laborer until the group grew larger and then he would put him back to work as a foreman. Matthews said that the men refused to work under Wilson and Adams said that the men wanted a black foreman.5 Then Powell said there was not much he could do because the owner would let him have only one foreman. Matthews said that the men would not go to work unless Powell settled the matter, whereupon Powell said that he would put Davis back to work as a foreman if that was what it was going to take for them to go to work. When Powell had agreed to put Davis back, Matthews and Adams walked out of the office and Adams told the men that it had all been settled and they could go to work. Adams denied that anything was said about Wilson not being able to be a foreman unless he had been in the Union for a year. Matthews gave a third version of the conversation. He stated that he walked up to Powell in the trailer with Adams and said "What is the problem here?" Powell told him that the men refused to work, whereupon Matthews asked Ad- ams why the men had refused. Adams said the men wanted Davis as a foreman, they did not want him demoted. Mat- thews then told Powell that he had a problem on his hands, whereupon Powell answered that he had to cut back to one laborer foreman. Matthews suggested he get his boss on the telephone and Powell said that he thought he could handle it himself and suggested that he promote Davis to foreman, whereupon Powell left, telling Adams to get the men back to work, that the thing was settled. Matthews and Newsome both testified that there is no rule of Respondent that requires that a man could not be appointed general foreman until he had been in the Local for at least a year. Respondent called a number of employees to testify as to the work stoppage. Without exception they all testified that they arrived after a group of employees had formed who had refused to go to work and that their complaint was that Davis had been removed from the foreman's job. None of them knew the men who first refused to go to work and none of them knew who the man was who had a picket sign or how he happened to have the sign. He was identified only as "a guy from Homestead" and a new employee. Some of the employees testified that the picket carried the sign, others that he leaned it against a car parked across the street from the jobsite. None of them agreed with the testimony of Matthews that the picket was walking up and down the road on the project side of the road. Two of the witnesses testified that they had read the picket sign and that the legend on it was "Picket" or "Picket sign" and that the name of the Union appeared on it. Only Matthews testified as to the legend I have found above on the sign . No one knew 5 Most of the laborers on the job were Negroes , as were Matthews and Newsome . Powell and Wilson are white LABORERS' INTERNATIONAL LOCAL 478 what happened to the sign after the incident. I credit the testimony of Powell as to the meeting with Matthews and Adams, although in my view of the case, it does not make a great deal of difference. The Employer continued operating using two foremen until August 21, on which date Sharpe, representing the owner, suggested to Powell that he was no longer warranted in keeping a second foreman on the job. At this time Powell discharged Wilson telling him that he could not afford a second foreman and that he would have to discharge Wilson because of the pressure of the Union. Discussion and Conclusions It appears clear and I find that Wilson was discharged because the Employer did not feel that it could justify the presence of two foremen on this rather small job. The Em- ployer had two foremen solely because of the work stoppage and the pressure caused thereby when it attempted to re- duce Davis to a rank-and-file employee. Although Davis testified that he did not operate as a foreman at any time prior to that occasion, it is difficult to see why employees should have struck to keep him in that position, if his testi- mony were true. Respondent contends, and the evidence seems to bear out their contention, that there were com- plaints voiced to Respondent and by Respondent to the Employer that Wilson "pushed" the employees, that is to say he stood over them and required them to keep working more than the employees liked. While the testimony of the union agents and of Powell and Wilson indicates that the complaint of the employees was against Wilson, the em- ployees all testified that the strike was caused by the demo- tion of Davis .6 However, this is not an irreconcilable conflict inasmuch as the employees' protest of the demotion of Davis may have resulted from the fact that he stood as a buffer between them and Wilson. The real issue as I see it is whether the work stoppage of August 5 was directed, adopted or ratified by Respondent so that it is responsible for the results thereof. There is insufficient evidence on the record to support a finding that the Respondent caused the work stoppage al- though the facts adduced are very suspicious. It is improba- ble to me that , if indeed the employees were upset over the demotion of Davis, Newsome, on being informed of this fact by Shop Steward Adams on August 4, would have made no comment nor given any directions or instructions to the shop steward. It is a somewhat remarkable coinci- dence, in my opinion, that an employee just happened to have an official printed union picket sign in the back of his car and that somehow the Employer's name was placed on the picket sign. It is certainly a suspicious circumstance that no one knew who commenced the work stoppage and no one could identify the first five or six employees who en- gaged in it or the man who carried the picket sign. The 6 It is immaterial whether the employees ' basic dissatisfaction with Wilson stemmed from his purported discrimination on a racial basis, or a reverse discriminatory intent by the employees . Whatever the dissatisfaction may have been , the Union is barred by Section 8(b)(1XB) from coercing and restraining the Employer in its selection of Wilson as its representative Respondent 's motion to reopen the proceeding to take evidence concerning Wilson's purported racial discrimination is denied. 363 testimony of the employees who took part in the work stop- page is not wholly credible as, for instance, those who testi- fied that the legend of the picket sign was "Picket" or "Picket sign." But suspicions and coincidences are not evi- dence and a finding cannot be based on them alone. On the other hand , it is clear that the Union's agent on the scene, Adams, did nothing to stop the work stoppage. In fact, he joined it. That he had no doubt that this was a union matter appears clear. When asked by Powell why the men were not working, Adams refused to tell him stating only that the business agent was on his way. When the business agent appeared he made no effort to send the men back to work? In the conversation between Powell, Matthews, and Ad- ams, Matthews made no protestations that the Union was not involved in the matter, but instead, under any of the testimony given, attempted and succeeded in furthering the employees' demands. Finally it was Matthews, the union agent, who determined that the employees were satisfied and told Adams to get them back to work. Adams did so without explanation to the employees, a factor which mili- tates against a finding that the employees were ceasing work on an individual basis or on a basis other than through the Union's aegis. Finally, the employees returned to work im- mediately upon being told that the issue was resolved with- out seeking assurance that their grievance no longer existed. From the above, I conclude only that the Union, in the person of Matthews, unquestionably a union agent with authority to take action in this field, ratified and condoned the work stoppage of the employees and is responsible therefor. I conclude further that the work stoppage had as its olect either the removal of Wilson as general foreman or the reinstatement of Davis as foreman in Wilson's place or under Wilson. I find that Respondent was notified by man- agement in the person of Powell that the job did not warrant two foremen and that Respondent therefore was aware of the fact that a requirement that Davis be named foreman meant that Wilson could not remain as foreman. Accord- ingly, I find that Respondent by its ratification and condo- nation of the work stoppage, if not its causation of it, restrained and coerced Employer in the selection of its fore- man on the job. Section 8(b)(1)(B) of the Act forbids the restraint and coercion of an employer in the selection and retention of its representatives for the purposes of collective bargaining or the adjustment of grievances. I have found above that Re- spondent coerced and restrained the Employer herein in the selection of its foreman and general foreman. The question remains whether Wilson was a representative of the Em- ployer for the purposes of collective bargaining or the ad- justment of grievances. The record is clear that Wilson had the functions, among others, of selecting the employees who were assigned to the various jobs done on the jobsite by laborers, such as assisting in the concrete pouring, assisting carpenters, filling water containers, and otherwise doing the work on the jobsite in which craftsmen are not involved. 7 Matthews told the picket to take the sign down At first blush this could be construed as an order to cease the activity. However, as one of the striking employees, Julius Dunmeyer, testified, Matthews took the picket sign down because he himself did not want to cross the picket line in order to talk to Powell 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further, according to the testimony of Shop Steward Ad- rescind its decision to hire L. R. Wilson as laborer' s general ams, various complaints came up on the jobsite which he foreman and to install Eugene Davis as laborer's foreman took up with Wilson, including complaints that more water on the South Miami school project of International Builders containers were needed on the jobsite or that water contain- of Florida, Inc. ers had gone dry, that Wilson was pushing the men too hard, that more men were needed on the crew, a specific example being the addition of two men to the operation of concrete vibrating machines, and various other grievances under the terms of the contract or that stemmed from the working conditions on the jobsite. It does not appear that Adams would have taken these matters up with Wilson if Wilson had not, in Adams' contemplation, been a person who could remedy the situation and it appears from the testimony of various witnesses that some of these situations were rectified or changed by action of Wilson. It appears that after Wilson's departure, Davis did ap- proximately the same work that Wilson had done. There is no showing that he was any less the representative of the Employer for the purposes of handling complaints and grievances brought up by the shop steward than Wilson had been. I find that the handling of such grievances on the day-by-day activities on the jobsite constitutes the adjust- ment of grievances on behalf of the Employer. Accordingly, I find that the Union, by the acts and conduct found above, interfered with the selection by the Employer of its repre- sentative for the purposes of the adjustment of grievances or collective bargaining in violation of Section 8(b)(1)(B) of the Act.8 CONCLUSIONS OF LAW 1. Laborers' International Union of North America, AFL-CIO, Local 478, is a labor organization within the meaning of Section 2(5) of the Act. 2. International Builders of Florida, Inc., is an employer as defined in Section 2(2) of the Act engaged in commerce or in industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. The positions of labor is general foreman and in the absence of a general foremal laborer's foreman for Interna- tional Builders of Florida, Inc., are supervisory positions within the meaning of Section 2(11) of the Act and occu- pants of said positions are representatives of the Employer for the purposes of collective bargaining or the adjustment of grievances within the meaning of Section 8(b)(I)(B) of the Act. 4. By engaging in work stoppages and threatening to en- gage in further work stoppages the Respondent coerced and restrained the Employer within the meaning of Section 8(b)(1)(B) of the Act in order to compel said Employer to s Local Union No 101, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Fruehauf-Fischbach Automation), 191 NLRB 577; New Mexico District Council of Carpenters and Joiners of America (A S Horner, Inc), 177 NLRB 500. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Employer's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to affect the policies of the Act. Having found that the Respondent restrained and coerced the Employer to discharge L. R. Wilson as a laborer's general foreman, I shall recommend that the Re- spondent, through its officials, notify the Employer that it has no objection to the Employer hiring Wilson in the ca- pacity formerly held by him. I shall further recommend that the Respondent make Wilson whole for any loss of earnings he may have suffered as a result of the unlawful conduct found herein. The backpay, if any, shall be computed on a quarterly basis in the manner described in F. W. Woolworth Company, 90 NLRB 289, and with interest therein at 6 per- cent per annum computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Accordingly, upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, pursuant to Section 10(b) of the Act, I make the following recommended: ORDERS 1. Respondent , Laborers' International Union of North America , AFL-CIO, Local 478 , its officers, agents, and rep- resentatives shall cease and desist from: (a) Restraining and coercing the Employer in the selec- tion and retention of its representatives for the purpose of collective bargaining and adjustment of grievances. (b) Engaging in work stoppages or threatening to engage in work stoppages for the purpose of coercing and re- 9 In the event no exceptions are filed by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclu- sions, and recommended order herein shall, as provided in Section 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 LABORERS ' INTERNATIONAL LOCAL 478 straining the employer in the employment of representatives of its own choosing and the substitution therefor of repre- sentatives of Respondent 's choosing for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Notify International Builders of Florida, Inc., that the Respondent has no objection to the employment of L. R. Wilson as laborer foreman by International Builders of Florida, Inc. (b) Make whole in the manner set forth in the section of the Decision entitled "The Remedy," L. R. Wilson for any loss earnings he may have suffered as a result of the unlaw- ful conduct which caused the Employer to discharge him as general foreman on the South Miami school project. (c) Post at its business office and meeting halls copies of the attached notice marked "Appendix." i Copies of said notice , on forms provided by the Regional Director for Region 12 , after being duly signed by Respondent's author- ized representative , shall be posted by Respondent immedi- ately upon receipt thereof , and be maintained by Respondent for 60 consecutive days thereafter, in conspicu- ous places , including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, de- faced , or covered by any other material. (d) Deliver to the Regional Director for Region 12 signed copies of said notice for posting by International Builders of Florida Inc., provided the Employer is willing, at its construction offices. (e) Notify the Regional Director for Region 12, in writ- ing, within 20 days from the date of the receipt of this Decision , what steps the Respondent has taken to comply herewith." 10 In the event that 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " i i In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read . "Notify the Regional Director for Region 12, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " 365 APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board , having found after a trial that we violated Federal law by restraining and coerc- ing International Builders of Florida, Inc., in the Company's selection of individuals to represent it for pur- poses of adjusting grievances of laborers on our South Mi- ami school project , we hereby notify our members and all laborers employed by International Builders of Florida, Inc., that: WE WILL NOT restrain or coerce International Builders of Florida , Inc., in the selection of representatives cho- sen or likely to be chosen for the purpose of collective bargaining or the adjustment of grievances. WE WILL notify the above-named Employer that we have no objection to its hiring L. R. Wilson as a labor- er general foreman on that project. WE WILL make whole L. R. Wilson for any loss of earnings he may have suffered as a result of our unlaw- ful conduct which caused International Builders of Florida , Inc., to discharge him as general foreman on the school project in South Miami. LABORERS ' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, LOCAL 478 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office, Room 706 Federal Office Building, 500 Zack Street, Tampa, Flori- da 33602, Telephone 813-228-7711, Extension 227.