Carpenters, Local 1089, 999 (1975)

CARPENTERS, LOCAL 1089

United Brotherhood of Carpenters and Joiners of America, Local 1089, AFL-CIO; and United Brotherhood of Carpenters and Joiners of America, Central Arizona District Council of Carpenters,

AFL-CIO (M. Greenberg Construction) andGeorge Lewitz. Case 28-CB-882

May 16, 1975 DECISION AND ORDER

By MEMBERS FANNING, JENKINS, AND KENNEDY On January 13, 1975, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the Respondents filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision.

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 briefs 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 recommended Order of the Administrative Law Judge and hereby orders that Respondents, United Brotherhood of Carpenters and Joiners of America, Local 1089, AFL-CIO; and United Brotherhood of Carpenters and Joiners of America,

Central Arizona District Council of Carpenters,

AFL-CIO, their officers, agents, and representatives, shall take the action set forth in the said recommended Order.

DECISION

STATEMENT OF THE CASE

RICHARD J. BOYCE, Administrative Law Judge: This case was heard before me in Phoenix, Arizona, on November 12, 1974. The charge was filed August 8, 1974 , and amended October 3, by George Lewitz, and individual. The complaint issued October 11, alleging that United Brotherhood of Carpenters and Joiners of America, Local 1089 , AFL-CIO, and United Brotherhood of Carpenters and Joiners of America,

Central Arizona District Council of Carpenters,

AFL-CIO (herein jointly called Respondents, and severally called Respondent Local and Respondent Council), had vi999 olated Section 8(b)(1)(B) of the National Labor Relations Act, as amended.

The parties were given opportunity at the hearing to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Briefs were filed for the General Counsel and Respondents.

ISSUES

The issues are whether Respondent Local violated Section 8(b)(1)(B) of the Act by bringing intraunion disciplinary action against George Lewitz, a statutory supervisor; and whether Respondent Council did likewise by providing a forum for that action and ultimately levying a fine against Lewitz and placing him on membership probation.

I JURISDICTION

Lewitz at all relevant times was job superintendent for M.

Greenberg Construction on a gymnasium project for the Phoenix Indian School. M. Greenberg Construction is -an Arizona corporation, headquartered in Phoenix, engaged in general contracting in the construction industry. It annually purchases and causes to be shipped into Arizona directly from outside the State goods and materials valued in excess of $50,000. It is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.

II LABOR ORGANIZATIONS

Respondents both are labor organizations within the meaning of Section 2(5) of the Act.

III THE ALLEGED UNFAIR LABOR PRACTICES

A. The Evidence The gymnasium project began in November 1973, M.

Greenberg Construction was the general contractor. Lewitz, as construction superintendent, was the ranking Greenberg person regularly present at the site, with authority to represent the Company in union grievance matters, among other things.' M. Greenberg, a member of Associated General Contractors (AGC), was party to a labor agreement with Respondents. Lewitz at all times belonged to Carpenters Local 906, an affiliate of Respondent Council. He at no time did significant work with the tools of his trade on this project.

Although M. Greenberg subcontracted a number of functions on the project, it did its own carpentry work, as well as various other functions. All of its carpenters were cleared through the hiring hall of Respondent Local, the first being hired in early December 1973. A carpenter named Fred Carrico was hired December 20. On about January 10, 1974, M.

Greenberg received written notification from Respondent Local that Carrico had been named its job steward on the project. Carrico was chosen by R. C. (Tommy) Holt, the Local's assistant business agent. There previously had been no officially designated steward.2

1 The parties stipulated that Lewitz was a supervisor within the meaning of the Act 2 Holt testified that it is the practice in the trade for the first person referred to a job to serve as steward until formal designation is made. He concededly did not know who had so served before Carrico's appointment.

217 NLRB No. 170

By mid-February, Lewitz had become displeased with Carrico's work performance and wished to fire him. Lewitz and Assistant Business Agent Holt discussed the matter at the time, Lewitz detailing assorted deficiencies in Carrico's skills and dedication. Holt protested that Carrico, as steward, could not be fired without union consent, alluding to this provision of the labor agreement:

B100.18.3-No job steward shall be terminated without cause, except by the consent of his Union, unless the job is completed. If a Contractor, or his representative, feels he has cause to terminate any steward, he shall notify the Union business representative and a meeting shall be held between the parties involved. If the Contractor or his representative and the business representative of the Union involved cannot come to an agreement on termination of the steward, within forty-eight (48) hours (Saturdays, Sundays and holidays excluded), then the question shall be placed before the Joint Labor-Management Committee.

The conversation concluded with Holt saying he would 'build a fire under' Carrico, and Lewitz saying he would give Carrico just one more chance.

Carrico's performance improved for a time, but by April Lewitz once more was dissatisfied to the point of wanting to get nd of him. On Thursday, April 11, Lewitz, Holt, and Mike Greenberg, the owner of M. Greenberg Construction, conferred about the situation. Lewitz explained that the carpentry portion of the project was phasing out, necessitating the layoff of one of the five remaining carpenters anyway; and that Carrico, as clearly the least able, was the logical choice.

Lewitz then chronicled Carrico's shortcomings. Holt again referred to the contract provision, quoted above, that 'no job steward shall be terminated without cause, except by the consent of his Union,' precipitating an argument between Lewitz and Greenberg- on one side, Holt on the other, whether 'cause' existed to fire Carrico. At length, Holt asked that Carrico be retained one more week, to allow time to place him in another job. Lewitz said no, whereupon Holt said he wished to talk to Carrico and tend to other matters, but would be back in a couple hours to resume the discussion.

The discussion did not resume. Holt testified that he was gone from the site longer than anticipated; and, upon his return in midafternoon, he could find neither Lewitz nor Mike Greenberg.' The next day, Friday, April 12, Lewitz fired Carrico.

The following Monday, April 15, Business Agent Ralph Ellison of Respondent Local visited the site.' He asked Lewitz why Carrico had been fired without union permission.

Lewitz replied that Carrico was not a capable carpenter; and that, in any case, when Holt had failed to return to finish the discussion of the previous Thursday, Lewitz had- inferred consent. Ellison was unimpressed, insisting that the discharge had violated the labor agreement and demanding that Carrico 3 Holt's testimony suggests that he did not look for Lewitz with particular diligence He conceded that Lewitz 'possibly' was at one end of the site, he at the other 4 Holt departed on vacation April 12, occasioning Ellison's direct involvement be putback to work. Lewitz and Ellison shortly reached Mike Greenberg by telephone. Ellison protested to Greenberg Carrico's being fired without consent, citing the contract provision, and asked that he be reinstated pending settlement of the dispute. Greenberg declined, but he and Ellison did agree to take up the matter with AGC officials at the earliest opportunity.

The telephone conversation completed, Ellison again demanded of Lewitz that Carrico be recalled pending settlement, adding that Lewitz would be in violation of union bylaws for working without a steward should Carrico not be recalled. Ellison had in mind section 38, paragraph R, of the bylaws of Respondent Council:

When a job is organized and a Steward has been appointed by the Business Representative, thereafter, no member will work on that job, regardless of reasons, unless the appointed Steward is working on the same job at the same time. Lewitz suggested that Ellison avoid this dilemma by appointing an acting steward. Ellison refused, and presently told the four remaining carpenters on the project that they, too, were in violation of the bylaws for working without a steward.

They asked, as had Lewitz, that Ellison appoint an acting steward. He again refused Lewitz told the carpenters to continue working, assuring them that the Company would take care of any union fines they might receive.

On April 17, in accordance with their telephone agreement of 2 days before, Ellison and Mike Greenberg met with Snead Parker, AGC executive secretary, concerning Carrico's discharge. It was...