The International Brotherhood Of Boilermakers, Afl-Cio

National Labor Relations Board - Board Decisions

May 27, 1988

288 N.L.R.B. 1156 (N.L.R.B. 1988)

1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local Lodge D-357, Cement, Lime, Gypsum &
Allied Workers, Division of the International
Brotherhood of Boilermakers, AFL-CIO
(Southwestern Portland Cement Company, East-
ern Division) and Thomas Anderson. Case 9-
CB-6647
May 27, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND STEPHENS
Upon a charge filed by Thomas Anderson on
December 29, 1986, the General Counsel of the
National Labor Relations Board issued a complaint
on January 29, 1987, against the Respondent, Local
Lodge D-357, Cement, Lime Gypsum & Allied
Workers, Division of the International Brother-
hood of Boilermakers, AFL-CIO, alleging that the
Respondent violated Section 8(b)(1)(A) of the Na-
tional Labor Relations Act.
The complaint alleges that about December 19,
1986, 1 the Respondent entertained internal union
charges against Anderson, an employee of the
Southwestern Portland Cement Company, Eastern
Division, and a member of the Respondent, and
thereafter processed the charges up to and through
an intraunion trial on January 17, 1987. The com-
plaint further alleges that the Respondent engaged
in the above-described conduct because Anderson
provided a statement to his Employer at the re-
quest of his Employer during its investigation of
employee Alfred Daniels' conduct, to which An-
derson was a witness. Alfred Daniels was subse-
quently disciplined as a result of the Employer's in-
vestigation. The complaint alleges that by enter-
taining a charge filed by Daniels and thereafter
processing it through an intraunion trial, the Re-
spondent has restrained and coerced, and is re-
straining and coercing, employees in the exercise of
the rights guaranteed in Section 7 of the Act and
thereby has violated Section 8(b)(1)(A) of the Act.
On March 23, 1987, the parties jointly moved the
Board to transfer the proceeding to the Board,
without benefit of a hearing before an administra-
tive law judge, and submitted a proposed record
consisting of the formal papers and the parties' stip-
ulation of facts with attached exhibits. On May 5,
1987, the Deputy Executive Secretary, by direction
of the Board, issued an order granting the motion,
approving the stipulation, and transferring the pro-
ceeding to the Board. Thereafter, the General
Counsel and the Respondent filed briefs.
I All dates are 1986 unless otherwise noted
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in the case, the Board
makes the 'following
FINDINGS OF FACT
I. JURISDICTION
The Employer, Southwestern Portland Cement
Company, Eastern Division, a Delaware corpora-
tion with an office and place of business in Fair-
born, Ohio, is engaged in the manufacture and sale
of cement. During the past 12 months, a represent-
ative period, the Employer, in the course and con-
duct of its business operations, purchased and re-
ceived at its Fairborn, Ohio facility products,
goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of Ohio. We
find that the Employer is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act. We further fmd that the Respond-
ent, Local Lodge D-357, Cement, Lime, Gypsum
& Allied Workers, Division of the International
Brotherhood of Boilermakers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
II ALLEGED UNFAIR LABOR PRACTICE
The issue presented is whether the Respondent
has violated Section 8(b)(0(A) by entertaining in-
ternal union charges against a member-employee
for providing a statement to the Employer, which
the Employer intended to use in a potential griev-
ance procedure to defend its discipline of another
employee-member and by thereafter processing the
internal charges through trial, pursuant to provi-
sions of its International constitution.
A. Facts
The Respondent represents a bargaining unit of
employees, which includes Charging Party Ander-
son, who is also a member of the Respondent.
About October 14, 1986, Anderson was asked by a
representative of the Employer to sign, and did
sign, a document describing an altercation between
a supervisor of the Employer, Glen Parker, and its
employee Alfred Daniels. Anderson was informed
that the Employer intended to discipline Daniels
for the incident described in the document he
signed and that the statement was being procured
from Anderson for use in defending against a4
grievance Daniels might file over his suspension or
for use with respect to any other charge he might
file with the Board or the United States Depart-
ment of Labor.
288 NLRB No. 125
CEMENT WORKERS D-357 (SOUTHERN PORTLAND CEMENT) 1157
About December 12, Daniels filed an internal
charge with the Respondent pursuant to provisions
of its constitution. The charge alleged violations of
the Union's constitution "based on Daniels' allega-
tion that "Anderson falsely 'witnessed and endorsed
a Company letter." On December 19, the Respond-
ent mailed a statement to Anderson notifying him
that a preliminary hearing would be held concern-
ing the charges. On December 29, the preliminary
hearing was held and was attended by Anderson,
Daniels, the Respondent's president, James Can-
trell, and three trustees. The purpose of the hearing
was to voluntarily resolve the matter between the
principal disputants. According to the Respond-
ent's interpretation of its constitution, the charges
could not be dismissed at this hearing unless Dan-
iels agreed to the dismissal, and if the parties were
unable to voluntarily resolve their dispute a further
hearing must be held. In response to a question
from Anderson on how the matter could be re-
solved, Cantrell stated that the only resolution he
could think of was for Anderson , to withdraw his
name from the document he had signed. Because
Anderson contended the facts therein were true, he
did not withdraw his name.
Anderson was duly notified of the trial that was
conducted by the Respondent before a panel of
trustees on January 17, 1987. Following the trial
Anderson received the panel's ruling, which found
him gpilty of violating three provisions of the
Union's constitution and innocent of one charge.
The panel further declared, however, that
"[d]espite how reprehensible we find your conduct,
we recognize that you have a statutory right to
engage in such conduct . . . . Because of the cir-
cumstances involved; No action will be taken
against Brother Tom Anderson."
B. Contentions of the Parties
The General Counsel urges the Board to find a
violation relying, inter alia, on the Board's decision
in Oil Workers Local 7-103 (DAP, Inc.), 269 NLRB
129 (1984), which held that by consenting to the
employer's request for a signed statement, with
knowledge that the employee discussed in the
statement would be discharged, the fined
members/employees were cooperating with the
grievance machinery, and thus the union's actions
in bringing charges against members, processing
the charges, and levying fines violated Section
8(b)(1)(A) of the Act. Thus, according to the Gen-
eral Counsel, Anderson's conduct of signing a
statement describing an altercation between Daniels
and Supervisor Parker was protected by the Act in
that he was informed that the Employer intended
to discipline Daniels and there existed a grievance
procedure to which Daniels could be expected to
resort.
The General Counsel further asserts that the Re-
spondent's conduct was coercive, notwithstanding
that it did not initiate the charge, that it processed
the charge as mandated by the Respondent's con-
stitution, and that it did not levy a fine against An-
derson.
The Respondent defends its action on the basis
that it was acting in accordance with its constitu-
tion in entertaining the charge, which was initiated
by one of its members who was not acting as an
agent of the Respondent, and by conducting the in-
formal hearing and trial. According to the Re-
spondent, it did nothing more than afford Ander-
son his fundamental due-process rights by under-
taking a "proper investigation" of the charge
before making any decision affecting his member-
ship or employee rights. Because no disciplinary
action was taken, the Respondent further asserts
that its action cannot be considered coercive.
C. Discussion
We agree with the General Counsel that the Re-
spondent, by subjecting Anderson to a preliminary
hearing and trial, fmding him guilty of violating its
constitution, and deeming his conduct reprehensi-
ble, coerced Anderson in his right to engage in ac-
tivity protected by Section 7 of the Act. While the
Respondent may have had the right and even the
obligation to entertain Daniels'charge against An-
derson, in the sense that it could preliminarily in-
quire into the basis of the charge, as soon as it
became clear that Daniels' charge centered on con-
duct that was protected by Section 7 of the Act,
the Respondent was obligated to drop any further
action. We find from the stipulated facts presented
in the case, that the Respondent proceeded with
the charge long after it knew or should have
known that Anderson's statement, which was the
sole basis of Daniels' charge, was protected by Sec-
tion 7.2
The Respondent did more than merely receive
and initially investigate, a charge filed by a
member. The Respondent held a hearing during
which the Respondent's president told Anderson
that the only way to resolve the charge was for
Anderson to withdraw his name from the Employ-
er's statement. Subsequent to this hearing, a trial
was held. Thus, the Respondent subjected Ander-
son to the time consuming and potentially expen-
sive ordeal of defending his right to give a state-
By the time that Daniels filed the December 12, 1986 internal charge
against Anderson, the statement given by Anderson had been used by the
Employer to defend against an October 27, 1986 grievance filed by Dan-
iels.
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment on the Employer's behalf at a time when the
Respondent knew or reasonably should have
known that that action was protected by Section 7.
The result of this process was a finding that Ander-
son was guilty of violating the constitution and he
was informed that his actions were "reprehensible."
This characterization, even though coupled with an
acknowledgement that he had a statutory right to
engage in such conduct, constituted a reprimand
and sent a coercively clear message of disapproval
on the part of the Respondent's hierarchy designed
to inhibit any similar exercise of Section 7 rights by
Anderson or other employees in the future. See
Teamsters Local 557 (Liberty Transfer), 218 NLRB
1117, 1121 (1975). Accordingly, we find that the
Respondent violated Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. Southwestern Portland Cement Company,
Eastern Division is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. The Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent, by entertaining internal
charges against Thomas Anderson, subjecting him
to a preliminary hearing and trial, finding him
guilty of violating its constitution, and deeming
reprehensible his providing a witness statement to
the Employer for use in a potential grievance pro-
ceeding restrained and coerced him in the exercise
of the rights guaranteed him by Section 7 of the
Act, and thereby engaged in an unfair labor prac-
tice within the meaning of Section 8(b)(1)(A) of the
Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in an unfair labor practice in violation of Section
8(b)(1)(A) of the Act, we shall order that it cease
and desist and take certain affirmative action de-
signed to effectuate the policies of the Act.
We shall order that the Respondent remove all
record of the proceedings against Thomas Ander-
son, and notify him in writing that this action has
been taken.3
ORDER
The National Labor Relations Board orders that
the Respondent, Local Lodge D-357, Cement,
3 The General counsel requests a visitatorial clause. Under the circum-
stances of this case, we deny the General Counsel's request. See Cherokee
Marine Terminal, 287 NLRB 1080 (1988).
Lime, Gypsum & Allied Workers, Division of the
Internal Brotherhood of Boilermakers, AFL—CIO,
Fairborn, Ohio, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Restraining and coercing employees in the
exercise of their rights guaranteed by Section 7 of
the Act, by entertaining internal union charges
against members/employees, processing the internal
charges through a preliminary hearing and trial,
finding them guilty of violating the union's consti-
tution, and characterizing their conduct as repre-
hensible, where any such conduct is engaged in by
the Respondent because members/employees pro-
vided a witness statement to the Employer for use
in a potential grievance proceeding.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Remove all record of the proceeding against
Thomas Anderson and notify him in writing that
this action has been taken.
(b) Post at its business office and other places
where notices to their members are customarily
posted copies of the attached notice marked "Ap-
pendix." 4 Copies of the- notice, on forms provided
by the Regional Director for Region 9, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "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 MEMBERS
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 ordered us to post and abide by this notice.
CEMENT WORKERS D-357 (SOUTHERN PORTLAND CEMENT)

1159
,
WE WILL NOT restrain and coerce employees in
the exercise of their rights guaranteed by Section 7
of the Act, by entertaining internal union charges
against members/employees, processing the internal
charges through a preliminary hearing and trial,
finding them guilty of violating the Union's consti-
tution, and characterizing their conduct as repre-
hensible, where any such conduct is engaged in by
us because members/employees provided a witness
statement to an employer for use in a potential
grievance proceeding.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL remove all record of the proceeding
against Thomas Anderson.
LOCAL LODGE D-357, CEMENT,
LIME, GYPSUM & ALLIED WORKERS,
DIVISION OF THE INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS,
AFL-CIO