Local 492, Carpenters

National Labor Relations Board - Board Decisions

May 31, 1974

211 N.L.R.B. 62 (N.L.R.B. 1974)

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 492, United Brotherhood of Carpenters and
Joiners of America and Keystone Conservation
Services, Inc. Case 4-CB-2170
May 31, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On January 31, 1974, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings , findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Local No. 492,
United Brotherhood of Carpenters and Joiners of
America, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
BERNARD NESS , Administrative Law Judge: On Novem-
ber 16, 1973, a complaint issued against Local No. 492,
United Brotherhood of Carpenters and Joiners of America,
herein called the Respondent, alleging that it had re-
strained and coerced Keystone Conservation Services, Inc.,
herein called the Employer, in the selection of his
representatives for the purpose of collective bargaining or
the adjustment of grievances in violation of Section
8(b)(1)(B) of the National Labor Relations Act, as
i Unless otherwise indicated, all dates hereinafter refer to 1973.
2 The instant case was originally consolidated for hearing with Case
4-CB-2169. By Order dated December 14, the Regional Director severed
the cases and approved withdrawal of the charge in Case 4-CB-2169.
amended, by action taken against the Employer's supervi-
sor, Eugene Iannotti.1 The complaint was based on a
charge filed by the Employer on October 2.2 Respondent
has denied the commission of any unfair labor practices.
On December 18, a hearing was held before me in
Reading, Pennsylvania.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by
the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
I find, as the complaint alleges and the Respondent
admits, that Keystone Conservation Services, Inc., a
Pennsylvania corporation with its principal offices in
Devon, Pennsylvania, is engaged in the construction
business . It annually purchases goods from outside the
Commonwealth of Pennsylvania valued in excess of
$50,000. Based on the foregoing, I find that the Employer
is engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , Respondent admits, and I find
that Respondent is, and has been at all times relevant
hereto, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Employer was engaged as a general contractor for
the construction of an Education Center building for the
school district in Berks County, Pennsylvania.3 Eugene
Iannotti was hired on April 16 when the project started as
the Employer's job superintendent. At various times, the
Employer utilized the services of a number of subcontrac-
tors. Iannotti was the only supervisor for the Employer on
the project with anywhere from three to eight employees
on the job working directly for the Employer.4 Iannotti was
the immediate supervisor of the Employer's employees,
including carpenters, masons , laborers, and operating
engineers . He directed their work, regulated their hours of
employment and other working conditions, and was
responsible for taking care of any employee problems that
arose . However, hiring was done by top management at its
central office. When lannotti needed employees in particu-
lar classifications, he would notify the office of the
numbers and classifications needed. Applicants were
interviewed by management at the central office and then
sent to the project. Iannotti would then determine whether
3 This was within the area of Respondent 's jurisdiction.
4 lannotti was terminated by the Employer on September I I for reasons
not disclosed in the record.
211 NLRB No. 9
LOCAL 492, CARPENTERS
the applicant could do the work and had the authority to
reject the man.5
The record disclosed that the- Employer has a collective-
bargaining agreement with the Operating Engineers cover-
ing work performed by the engineers.6 However, the
Employer has at no time had any bargaining relationship
or recognized any other labor organization as the repre-
sentative of any of its other employees. More specifically,
no such relationship has ever existed between the Employ-
er and the Respondent.
At the time Iannotti was employed and since 1966, he
was a member of another local of the Carpenters-Local
626.
Iannotti credibly testified that about May 3, Respon-
dent's business agent, Joseph Coverly, visited the jobsite
and asked lannotti whether the job was a union job.
Iannotti replied that as far as he knew it was nonunion.
When Coverly inquired whether union carpenters would be
employed , lannotti told Coverly to contact the Employer's
main office to get a definite answer and gave him the
telephone number to call . About May 14, Coverly returned
to the jobsite and again inquired of lannotti whether the
Employer was going to hire union carpenters. lannotti told
him the hiring was done through the main office and he did
not know whether the Employer would hire union
carpenters. Coverly then replied he had heard the Employ-
er was not going to hire union carpenters and that he,
Coverly, would bring lannotti up on charges with Respon-
dent.7
Coverly admitted conversing with lannotti on these two
occasions but denied ever mentioning to Iannotti that he
would prefer charges. He admitted asking Iannotti on both
occasions whether the Employer intended to put on union
carpenters. According to Coverly, it was on his second
visit, rather than on the first, that Iannotti gave him the
telephone number of the Employer's main office. It
appeared to me that Iannotti had a clearer recollection of
the conversations and I credit his version of the conversa-
tions.8
On May 16, about 2 days after the second conversation
between Coverly and lannotti, Respondent began picket-
ing the jobsite, with the legend on the signs reading,
"Keystone Conservation Services, Inc. is paying substan-
dard wages and conditions on this job." Picketing
continued for about 5 months. lannotti continued to work
during the picketing. No contention has been made that
during this period he performed work other than his
normal supervisory work.
On June 4, Coverly preferred charges against Iannotti
with Respondent, alleging violations of section 55A of the
constitution and laws of the United Brotherhood of
Carpenters and Joiners of America, Respondent's parent
S lannotti related one instance of an individual sent out whom he
rejected because the individual refused to wear a hard hat.
9 The Employer's president , D'Gento, testified that from time to time
when particular equipment had to be operated, an operating engineer would
be put on who would be covered by the contract with the Operating
Engineers.
r Both lannotti and Coverly testified that Iannotti had earlier made
known he was a member of Local 626. The record is unclear as to when this
occurred.
63
organization . The specific provisions allegedly violated,
and as spelled out in the charge, read as follows:
1. Causing dissension among the members of the
United Brotherhood.
6. Defrauding the United Brotherhood or any
subordinate body.
8. Divulging to any unauthorized person, the
business of any subordinate body without its consent.
10. Working behind a picket line duly authorized
by any subordinate body of the United Brotherhood.
13. Violating the Obligation.
Coverly testified that Number 13 above was meant to
cover lannotti's obligation under the constitution and laws
to do all in his power to get employment for fellow union
members. By letter dated June 6, Respondent informed
lannotti of the charges filed by Coverly and notified him to
appear before a trial committee on June 18. Iannotti, by
letter dated June 15, notified Respondent that as of May 1
he was no longer affiliated with Local 626 or any other
local union and, for various reasons described in his letter,
protested that the charges were improper. On June 14, he
had written to Local 626 complaining of its failure to find
employment for him in previous years. He concluded his
letter by stating he was withdrawing his membership from
Local 626. By letter dated July 18, Respondent notified
Iannotti he had been found guilty by its trial committee on
July 2 on all five counts and was fined $50 on each count,
totaling $250.9 In his letter dated July 23 to Local 626,
lannotti referred to his earlier letter of June 14 and
reiterated he had resigned from Local 626. By letter dated
July 25, Respondent notified Local 626 of the $250 fine it
had imposed upon lannotti and requested that the amount
be paid to Respondent. On August 15, Local 626 notified
Iannotti that until he paid the fine it would not accept any
dues from him. Since that date lannotti has not heard from
Local 626. On September 17, Local 626 informed Respon-
dent that Iannotti had not paid the fine imposed by
Respondent and was suspended as of September 14.
Iannotti had been paid up in his dues to Local 626 until
April 30.10 He testified he was prompted to resign from his
membership in Local 626 after he was notified of the
charges preferred against him. It should be noted here that
Local 626 never responded to his letter of June 14 wherein
he tendered his resignation or his subsequent letter of July
23. Insofar as the record discloses, he has been suspended
by Local 626 as of September 14. The record does not
disclose that his resignation was ever accepted.11 Iannotti
has not paid the fine nor did he appeal the imposition of
the fine. No legal action has been instituted to collect the
fine.
8 Coverly never did call the Employer's office.
9 Iannotti did not attend the heanng. By letter dated July 23, he
informed Respondent he did not receive notification of the hearing
scheduled for July 2 until July 3.
10 On April 19, he paid dues for the 3-month period February through
April.
11 Sec. 47 of the Carpenters constitution provides for a resignation
procedure wherein it requires a majority of the members present at a regular
meeting to accept a resignation.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discussion and Analysis
The facts and applicable legal principles require little
discussion . Under Section 8(b)(1)(B) of the Act, it is
unlawful for a union to "restrain or coerce . . . an
employer in the selection of his representatives for the
purposes of collective bargaining or the adjustment of
grievances."
Initially it should be noted that lannotti, as job
superintendent , was in fact the only Employer representa-
tive on the job project . The evidence clearly supports the
finding that as job superintendent he not only was a
statutory supervisor but was the Employer representative
for the purposes of adjusting grievances within the
meaning of Section 8(b)(1)(B) of the Act.
The Employer had no bargaining relationship with the
Respondent nor was it obligated to hire union members. It
is unnecessary that a bargaining relationship exist between
an employer and the union to support a violation of
Section 8(b)(l)(B).12
The underlying dispute here was between the Respon-
dent and the Employer because of the Employer's failure
to hire union members on the project . On two occasions
Coverly visited the jobsite to inquire of Iannotti if union
members were to be hired . When he became convinced on
May 14 the Employer was running an open shop, he
threatened Iannotti with charges and on May 16 the
picketing commenced . The charges were filed by Coverly
on June 4. Unlike the General Counsel , I find the record
testimony insufficient to support a finding that the dispute
also stemmed from the fact that the Employer did not have
a collective-bargaining contract with the Respondent.
The discipline herein imposed by Respondent on
Iannotti was not based on matters of purely internal union
administration, but rather concerned itself with the
relationship between the Employer and the Union. The
preferring of charges and the subsequent levy of the $250
fine was used as a vehicle to discipline lannotti because of
the manner in which he performed his supervisory
functions . lannotti placed the interests of the Employer
above those of the Respondent . Respondent 's conduct
tended to require the Employer to retain as representatives
for collective bargaining and the adjustment of grievances
supervisors who were subservient to the Respondent.13
Iannotti continued to perform his normal supervisory
functions during the picketing of the jobsite by the
Respondent .14 Accordingly, the imposition of the fine
because he continued to perform his supervisory functions
during the strike violated Section 8(b)(1)(B ) of the Act.
lannotti also failed, as job sup^rintendent, to carry out
Respondent's desire to put union men on the project.
Although Iannotti did not do the actual hiring , he did have
the authority to pass on the qualifications of the men sent
to the project from the central office . Under these
12 New Mexico District Council of Carpenters and Joiners of America (A. S.
Horner, Inc.), 177 NLRB 500; International Brotherhood of Electrical
Workers System Council U-4, et at (Florida Power and Light Co.), 193 NLRB
30, 31.
13 Sheet Metal Workers ' International Association, Local No 71 (H.J.
Otten Company, Inc.), 193 NLRB 23.
14 As stated above , no claim is made that lannotti was performing rank-
and-file work during the strike . Thus, no issue exists as to the legality of
circumstances, it is clear the imposition of the fine
constituted a restraint upon the Employer to change its
attitude on hiring policies in violation of Section 8(bXl)(B)
of the Act.15
Despite lannotti 's attempted withdrawal from Local 626
in June , after the charges were brought against him, he
continued to be treated as a member and his attempted
withdrawal was never accepted . The only action taken
against him was his suspension on September 14. In
agreement with the General Counsel , I find it unnecessary
to find that he was a member of Local 626 in order to find
a violation.ls
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the operations of the
Employer, described in section I, above , have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Local No. 492, United Brotherhood of Carpenters
and Joiners of America , is a labor organization within the
meaning of Section 2(5) and Section 8(b) of the Act.
2. Keystone Conservation Services , Inc., has been at all
times material herein an employer engaged in commerce
within the meaning of Sections 2(2), (6), and (7) and
8(b)(1XB) of the Act.
3. Eugene lannotti has been at all times material herein
a supervisor of the Employer within the meaning of Section
2(11) of the Act and selected by the Employer for the
purposes , among others, of collective bargaining and the
adjustment of grievances within the meaning of Section
8(b)(IXB) of the Act.
4. By threatening to and preferring charges against, and
thereafter fining, lannotti , Respondent has restrained and
coerced Keystone Conservation Services , Inc., in the
selection of representatives for the purpose of collective
bargaining or the adjustment of grievances within the
meaning of Section 8(b)(IXB) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(bx 1XB) of the Act , I shall recommend that it be required
to take certain affirmative action designed to effectuate the
policies of the Act.
disciplining a supervisor-member for performing rank-and-file work during
a strike. Cf. International Brotherhood of Electrical Workers, AFL-CIO, and
Local 134, IBEW(FloridaPower A Light Company] v. N. L. R . A, 487 F.24
1143 (C.A.D.C, 1973).
is I further find that Coverly's threat to prefer charges against lannotti
because of the Employer's failure to hire union men independently violated
Sec. 8(bXIXB) of the Act, as alleged by General Counsel.
16 Local Union No. 2150, International Brotherhood of Electrical Workers,
AFL-CIO (Wisconsin Electric Power Co ), 192 NLRB 77, In. 3.
LOCAL 492, CARPENTERS 65
I do not agree with the General Counsel's request, urged
in his brief, that the remedy include notification by
Respondent to its International and to Local 626 that
Iannotti should be restored to all rights and benefits,
including membership, in Local 626. Neither the Interna-
tional nor Local 626 has been named as a Respondent
herein . Nor does the record show that the International has
been notified of any action taken against lannotti by either
Respondent or Local 626. Insofar as the record discloses,
the only action taken by Local 626 has been to suspend
him from membership because of his failure to pay the fine
imposed by Respondent. Accordingly, I am of the opinion
that any unlawful impediment to Iannotti's continued
membership in Local 626 is properly removed by providing
for notification by Respondent to Local 626 that the
unlawful fine has been rescinded.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 17
Respondent , Local No. 492, United Brotherhood of
Carpenters and Joiners of America, its officers, agents, and
representatives , shall:
1. Cease and desist from:
(a) In any manner, restraining or coercing Keystone
Conservation Services, Inc., in the selection of its repre-
sentatives for the purposes of collective bargaining or the
adjustment of grievances.
(b) Threatening to prefer or preferring charges against
supervisors or fining or otherwise disciplining them
because of their conduct and performance of work as the
selected representatives for the purposes of collective
bargaining or the adjustment of grievances.
(c) In any like or related manner, restraining or coercing
the aforesaid Employer in the selection if its representa-
tives for the purposes of collective bargaining or the
adjustment of grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind the fines imposed against Eugene Iannotti
and expunge from its records all reference and other
evidence in its files relating to the charges and proceedings
in which lannotti was fined.
(b) Notify Local No. 626, United Brotherhood of
Carpenters and Joiners of America, in writing, of the
aforesaid action , with a copy of such writing to Eugene
Iannotti.
(c) Post at its business office, copies of the attached
notice marked "Appendix." 18 Copies of said notice, on
forms provided by the Regional Director for Region 4,
after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its
members are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Furnish the Regional Director for Region 4 signed
copies of said notice for posting by Keystone Conservation
Services, Inc., if willing, in places where notices to
employees are customarily posted. Copies of said notice,
on forms provided by said Regional Director, shall, after
being duly signed by Respondent, be forthwith returned to
the Regional Director for disposition by him.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.
17 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
18 In the event the Board 's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Keystone Conserva-
tion Services, Inc., in the selection and retention of its
representatives, including Eugene Iannotti, for purpos-
es of collective bargaining or the adjustment of
grievances of employees.
WE WILL NOT threaten to or prefer charges against,
fine, or otherwise discipline Eugene lannotti or any
other representative who is a member of this labor
organization, or any other local of United Brotherhood
of Carpenters and Joiners of America, because of their
conduct and performance of work as the selected
representative of Keystone Conservation Services, Inc.,
for the purposes of collective bargaining or the
adjustment of grievances.
WE WILL NOT in any like or related manner restrain
or coerce Keystone Conservation Services, Inc., in the
selection of its representatives for the purposes of
collective bargaining or the adjustment of grievances.
WE WILL rescind the fines imposed against Eugene
Iannotti and expunge from our records all reference
and other evidence in our files relating to the charges
and proceedings in which Iannotti was fined.
WE WILL notify Eugene Iannotti and Local 626, in
writing, that we have taken the aforesaid action.
LocAL No. 492, UNITED
BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA
(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
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of posting and must not be altered , defaced, directed to the Board's Office, Suite 4400, William J.
or covered by any other material. Any questions concern- Green, Jr., Federal Building, 600 Arch Street, Philadelphia,
ing this notice or compliance with its provisions may be Pennsylvania 19106, Telephone 215-597-7608.