LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 91 (COUNCIL OF UTILITY CONTRACTORS,, (2017)

Docket Number:03-CB-163940
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Laborers’ International Union of North America, Local Union No. 91 (Council of Utility Contractors, Inc. and Various Other Employers) and Frank S. Mantell. Case 03–CB–163940

February 7, 2017 DECISION AND ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On September 7, 2016, Administrative Law Judge Arthur J. Amchan issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a brief in reply. The General Counsel filed a cross-exception with supporting argument, the Respondent filed an answering brief,1 and the General Counsel filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified and set forth in full below.2

We agree with the judge, for the reasons he stated and for the additional reasons set forth below, that the Respondent, in operating its nonexclusive hiring hall, violated Section 8(b)(1)(A) of the Act by removing the Charging Party, Frank S. Mantell, from its out-of-work referral list between October 12 and November 19, 2015.

In Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417 (2000), the Board clarified the scope of Section 8(b)(1)(A) by finding that internal union discipline may give rise to a violation only if the union’s conduct: (1) affects the employment relationship,

(2) impairs access to the Board’s processes, (3) pertains to unacceptable methods of union coercion, such as physical violence in organizational or strike contexts, or

(4) otherwise impairs policies imbedded in the Act. Id.

1 The Respondent’s answer to the General Counsel’s crossexception was contained in the same document as its reply brief in support of its own exceptions.

2 We shall modify the judge’s recommended Order in accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), and to conform to the Board’s standard remedial language. We shall substitute a new notice to conform to the Order as modified.

The General Counsel seeks a make-whole remedy that includes consequential damages incurred as a result of the Respondent’s unfair labor practice. The relief sought would require a change in Board law. Having duly considered the matter, we are not prepared at this time to deviate from our current remedial practice. Accordingly, we decline to order this relief at this time.

at 1418, 1424. If the union’s discipline is found to be within the scope of Section 8(b)(1)(A), the Board then weighs the Section 7 rights of the union member against the legitimate interests of the union to determine whether the discipline violates the Act. See Service Employees Local 254 (Brandeis University), 332 NLRB 1118, 1122 (2000) (determining whether a violation of Section 8(b)(1)(A) occurred involves balancing the employees’ Section 7 rights against the legitimacy of the union interest at issue).

Here, as the judge found, the Respondent’s discipline had an impact on the employment relationship. Specifically, by removing Mantell from the out-of-work referral list, the Respondent deprived him of employment opportunities. See Electrical Workers Local 2321 (Verizon), 350 NLRB 258 (2007) (finding union discipline impacted the employment relationship where it resulted in less opportunity to work overtime).

Next, under Sandia, we must balance Mantell’s Section 7 rights against the legitimacy of the union interests at stake. At issue is Mantell’s posting of statements on Facebook that criticized the Respondent’s Business Manager Richard Palladino for failing to apply established union policies by giving Glen Choolokian, a Niagara Falls city councilman running in the Democratic primary for mayor, a journeyman’s book without having him go through the required apprenticeship program. Mantell’s Facebook posts raised issues concerning the efficacy and fairness of the Respondent’s operations and procedures. As the Board has recognized, it is “elementary” that “an employee’s right to engage in intraunion activities in opposition to the incumbent leadership of his union is concerted activity protected by Section 7.” Steelworkers Local 1397 (U.S. Steel Corp.), 240 NLRB 848, 849 (1979); accord Laborers Local 836 (Corbet Construction), 307 NLRB 801, 803 (1992) (members have a statutory right to object to the way officers operate the union); Plasterers Local 121, 264 NLRB 192 (1982) (individual’s criticism of union leadership is protected by the Act). Accordingly, we adopt the judge’s finding that Mantell engaged in protected, concerted activity by posting his criticisms of the Respondent and its business manager on Facebook.3

We next examine the Union’s interests at stake in this case. The Respondent contends that Mantell’s Facebook posts damaged both its reputation in general as well as the reputation of Palladino as business manager, the lat

3 Citing MasTec Advanced Technologies, 357 NLRB 103, 107 (2011), the judge rejected the Respondent’s assertion that Mantell lost the protection of the Act by maliciously defaming the Union and its Business Manager Palladino. In adopting the judge’s finding, we note that no party has excepted to the judge’s application of MasTec.

365 NLRB No. 28

ter of which adversely affected Palladino’s ability to effectively perform his leadership responsibilities. We find that Mantell’s Section 7 right to press the union to change its policies, especially those policies affecting members’ employment opportunities, outweighs the Respondent’s vague claim that its reputation was damaged. See Electrical Workers Local 2321 (Verizon), 350 NLRB at 262–263 (although the union had a legitimate interest in maintaining the loyalty and solidarity of its members, this interest did not outweigh the interest of its members to engage in their Section 7 rights to work voluntary overtime contrary to the union’s request). Therefore, we agree with the judge that the Respondent violated Section 8(b)(1)(A) of the Act by removing Mantell from its outof-work referral list between October 12 and November 19, 2015.

AMENDED REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(b)(1)(A) by removing the Charging Party, Frank S. Mantell, from its out-of-work referral list between...

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