United Brotherhood of Carpenters, 1370 (1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

United Brotherhood of Carpenters and Joiners of America, Local 49 and Scott and Duncan, Inc. Case I-CB-3291

January 17, 1979 DECISION AND ORDER

BY CHAIRMAN FANNING AND MlMBERS JtNKINS.

PENELLO AND TRUESDA[.IE On July 5, 1977, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief.

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, as modified herein, and to adopt his recommended Order.

We agree with the Administrative Law Judge that Respondent Union did not violate Section 8(b)(1)(A) and (2) of the Act by seeking to exercise its right under the collective-bargaining agreement to place a steward on a jobsite. However, we base our dismissal of the complaint upon application of the rationale expressed in District Council No. 2 of the Brotherhood of Paintersand Allied Trades, AFL-CIO (The Paintsmiths, Inc.), 239 NLRB 1378, issued this day, rather than upon the reasons given by the Administrative Law Judge.

The essential facts are not in dispute.

Scott and Duncan, Inc., herein also called the Employer, is engaged in the business of performing finished carpentry work as a contractor. Between May and December 1975.2 Scott and Duncan was a carpentry subcontractor at the St. John's Hospital jobsite in Lowell, Massachusetts. The general contractor on the job was the Thomas T. O'Connor Company.

Both Scott and Duncan and O'Connor were subject to the same collective-bargaining agreement with Respondent, which covered carpenters employed by each firm on the job.

Bernard Nealon, a carpenter employed by O'Connor, served as the steward for all the carpenters The General Counsel and the Charging Party have excepted to certa.in credibility findings made hb the Administratise I aw Judge It I the Board',l established police not to overrule an Adminlstraltise I.law Judge', re-,lu tions with respectIto credibiliy unless the clear preponderalnce of.11al.1 the relevant evidence consinces us that the resolutlil s art incorrect S.taiodll Dry Wall Products, Inc., 91 NLRB 544 (1950).endrl 1821Ad362 3d ( ir 1951). We have carefull? examined the record and fiid n.) baios for rcscr,ing his findings.

All dates below are in 1975. unless otherwlse indlcalted working on the job from January 1974 until he was laid off on November 7, 1975, because O'Connor's carpentry work on the jobsite was substantially complete. Sometime before Nealon's layoff, Richard McInnis. Respondent's business agent, asked the Employer's carpentry foreman, Joseph Fallo, to hire Nealon, because Mclnnis wanted Nealon to continue to act as job steward after being laid off by O'Connor. Fallo told Mclnnis that he could not employ Nealon, because he had no work for him, and that in fact he would be laying off one of the three carpenters then working on the job for Scott and Duncan in a week. However, Fallo informed Mclnnis that he would advise him if he needed any men.

On December 8. O'Connor recalled Nealon to work, but Nealon was given notice the following day that he would again be terminated for lack of work on December 10. On December 9, Fallo called back to work carpenter Ed Bretton, whom he had laid off in November, to perform about 5 days' worth of carpentry work, beginning December 10. At the time he rehired Bretton. Fallo was aware that Nealon had again been hired by O'Connor but did not know for how long. Fallo hired Bretton because Bretton happened to be on the jobsite looking for employment when an authorization for additional work came through and because he knew that Bretton was a good worker.3

Bretton reported to thejobsite on December 10 and worked for about 6 or 7 days.

Later in the day on December 9, after Nealon had been told by O'Connor that he would be laid off on December 10 and after Fallo had rehired Bretton,

Mclnnis paid a visit to Fallo's office. Mclnnis told Fallo that he wanted him to hire Nealon, as he needed a steward on the job. Fallo informed Mclnnis that he could not hire Nealon, because he only had enough work for one more man for 5 days and Fallo had hired Bretton earlier in the day for the task. McInnis replied that if Fallo did not hire Nealon no one else would go to work. Fallo told Mclnnis to do what he had to do. During this conversation, Mclnnis reminded Fallo of their talk in November regarding employment for Nealon. Later during the afternoon,

O'Connor learned that Nealon was seeking work with Scott and Duncan at a time when Nealon was still employed by O'Connor. It was therefore agreed among O'Connor, Mclnnis, and Nealon that Nealon would leave the O'Connor payroll at 4 p.m. that day.

The next morning, McInnis and Nealon met Bretton at the jobsite as he reported to work and conversed with him for almost an hour before Bretton went to work. Fallo then again told McInnis that he I rirdct the Ierils of the lahor cintract the Ilmplh>ver retained conlrrol scer hlirlln 1 thai it aI,;is iOtI relquired tii put back to work those laid'off in order of renirl, l noir to accepi jbh referrals fronm Respondent 1370

UNITED BROTHERHOOD OF CARPENTERS. LOCAl 49 had no work for Nealon. and Mclnnis and Nealon thereupon left the jobsite.

Also on December 10, Mclnnis sent the Employer a telegram which requested a meeting the next day to discuss Scott and Duncan's alleged violation of the stewards clause of the collective-bargaining contract, which provided, 'The Business Representatives shall furnish or appoint a steward for ajob or a shop when the Business Representative deems it necessary.' At the meeting, which was held as requested on December 11, McInnis insisted that he was merely exercising his right under the contract to furnish the Company with a steward for the job. Ronald Scott.

president of the Employer, told Mclnnis that he would have to dismiss Bretton in order to hire Nealon. McInnis continued to insist that, pursuant to the appointment-of-steward provision in the contract,

Nealon be hired by Scott and Duncan.

Thereafter, at the Union's request, an arbitration hearing was held on May 26, 1976, to resolve the issue. On July 9, 1976, the arbitrator issued his decision, in which he found that the grievance was arbitrable and that the Employer had violated the appointment-of-steward clause in declining to hire Nealon at Mclnnis' request. Pursuant to the award of the arbitrator, Scott and Duncan, under protest, paid Nealon backpay in the amount of $960 and also paid $62.40 into the health and welfare fund, $57.50 into the pension fund, and $16.32 into the apprenticeship fund of the Union. In making his award, the arbitrator confined himself solely to interpreting the contract, and expressly refused to pass upon any unfair labor practice issue.

On May 6, 1976, the Employer filed the unfair labor practice charges which are the subject of this proceeding, and on November 15, 1976, the G(eneral Counsel issued a complaint in the instant case.

The terms of the contract plainly grant the Union's business agent the authority to 'furnish or appoint' stewards for jobs when he considers it necessary. in this case, Nealon had functioned as the carpenter steward on the jobsite for nearly 2 years when he was laid off in November 1975, as O'Connor's carpentry work came to an end. Because there were carpenters still employed at the jobsite, Mclnnis sought to retain Nealon as steward by invoking the appointment-ofsteward clause in the contract with Scott and Duncan. In so doing, Mclnnis was exercising the legitimate right of the Union under the appointment-ofsteward clause in the collective-bargaining agreement.

Our dissenting colleague, however, continues to focus on the incidental effect of the Union's actions in exercising this right, and interest, in enforcing its collective-bargaining agreement by pointing to the layoff of one union member to secure a steward. The point that we make in these cases is a rather simple one. It is essentially the same as in the superseniority cases which hold that provisions in collective-bargaining agreements which provide top seniority to union stewards limited to layoff and recall rights4 - serve a legitimate statutory purpose.5

In reaching this conclusion, the Board has acknowledged that any discrimination as (such superseniority provision) may create is simply an incidental side effect of a more general benefit accorded all employees.' Dairvcat, 219 NLRB at 658. That rationale is equally applicable here and compels a conclusion contrary to that of the dissent.

Given the esta'lished legitimacy of the Union's objective. i.e., to enforce its appointment-of-steward clause, it becomes irrelevant whether there might have been some other action it could have taken. It is not up to this Board to determine how best a union should protect its legitimate interests, and we would be intruding too far into its internal workings were we to do so.

Thus, contrary to the implication made in the dissent, it is not necessary to presume that Mclnnis wanted an experienced steward on the job but merely to recognize that his objective was a legitimate one sanctioned bh the contract. The fact that another official was available on the jobsite to police the agreement is irrelevant, since under that agreement it is the Union's right to designate whom it will choose to be its steward, and it is not the function of the Board to evaluate the severity of the Union's problems.

These are matters for the Union's own determination, and there is no basis for us to attempt to substitute our judgment in this matter for that of the Union. Acceptance of the legitimacy of this belies ans contention that the Union attempted to secure employment for Nealon for discriminatory purposes.

Acco...