Paintsmiths, Inc. v. N.L.R.B.
| Decision Date | 30 April 1980 |
| Docket Number | I,No. 79-1177,No. 2,2,79-1177 |
| Parties | 104 L.R.R.M. (BNA) 2368, 88 Lab.Cas. P 12,037 The PAINTSMITHS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Painters District Councilntervenor-Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lawrence P. Kaplan, Suelthaus, Krueger, Cunningham, Yates & Kaplan, St. Louis, Mo., for petitioner.
Candace M. Carroll, Atty., N. L. R. B., Washington, D. C., argued, for respondent, John D. Burgoyne, Asst. Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., on brief, for respondent.
William H. Bartley, Bartley, Goffstein, Bollato & Lange, Clayton, Mo., for intervenor-respondent, Dist. Council, etc.
Before STEPHENSON and McMILLIAN, Circuit Judges, and HANSON, * Senior District Judge.
The PaintSmiths, Inc. (hereinafter the Company) petitions this court pursuant to section 10(f) of the National Labor Relations Act as amended, 29 U.S.C. § 160(f), for review of a decision and order of the National Labor Relations Board (the Board). 1 Proceedings in this case began when the General Counsel, upon the Company's filing of a charge, issued a complaint against District Council No. 2 of the Brotherhood of Painters and Allied Trades, AFL-CIO (hereinafter the Union). The complaint alleged that the Union had committed an unfair labor practice when it invoked its contractual power to appoint stewards when it knew the result would be the layoff of a regular Company employee. The administrative law judge (ALJ) upheld the complaint, but the Board, on review, dismissed it. We disagree with the Board. We hold that a union cannot exercise its appointment of steward power to cause the layoff of a regular employee absent legitimate and substantial reasons for doing so, and conclude the Union has not made the required showing here. We therefore grant the Company's petition for review and direct the Board to enter the order recommended by the ALJ, as herein amended.
The facts underlying this case arose in early 1977 and are substantially undisputed. The Company, a painting subcontractor in the construction industry, did business at various jobsites in the St. Louis metropolitan area. The Company regularly employed a work force of approximately thirty painters, all of whom were members of the Union. 2 The collective bargaining agreement then in force provided in part:
Section 20 Stewards
It is agreed that the Union shall have the power to appoint job or shop stewards and the Employer agrees to employ such persons appointed as stewards for the enforcement of this Agreement and the decisions of the District Council whenever it deems such action to be necessary. Job stewards shall be appointed on all new work. On all overtime work where no job or shop steward has been appointed, overtime stewards shall be appointed to protect the Union's interest.
The ALJ found that the Union usually exercised its section 20 appointment power on large construction jobs involving new work. The ALJ further related that
(u)ntil the incident that developed on February 7, (1977,) the experience of the Company ha(d) been that the Union appointed a job steward at its jobs about two times per year. In each instance according to Company President William Smith, the Company was able to use the extra man and did so as a favor to the (Union) business agent who made the request.
On January 4, 1977, the Union's business agent, Gregory Raftery, learned that the Company had won the painting contract on a new project, the North Gate Nursing Home. The ALJ found that as of January 4, Raftery knew of no trade rules violation on the part of the Company and had no reason to anticipate jurisdictional or other problems on the job. Nevertheless, Raftery informally asked the Company president, William Smith, to notify him before the job started so he could appoint a steward. 3 Raftery was not informed when the work began at the North Gate project on January 11 and no steward was designated.
On February 4, Raftery discovered three Company painters working at the North Gate project. Raftery observed that one of the painters was wearing a blue shirt, in violation of a Union trade rule that requires working painters to wear white uniforms. 4 Later that day, Raftery left a message at the Company that he would send a steward to the North Gate project on February 7, the next Monday.
On February 7, Raftery sent his brother, Richard Raftery, to the North Gate project as the designated steward. Richard Raftery was a member of the Union but was not a member of the Company's regular work force. The Company's foreman told Richard Raftery that the job was nearing completion and that there was no work for an additional painter. Gregory Raftery told the foreman that either Richard Raftery worked or no one worked. After discussing this development with the president of the Company, the foreman hired Richard Raftery and laid off painter Steven Scheble. As a result of this incident, Scheble lost approximately sixteen hours of work. The Company discharged Richard Raftery at the end of the work day.
The next day, Gregory Raftery visited the North Gate project and informed the crew that, in view of the absence of a job steward, they were to stop working. Through the foreman, the Company suggested that Raftery appoint one of the crew as steward. Raftery rejected this suggestion, claiming that none of the crew was qualified to serve as a steward because none was willing to enforce the union trade rules. Raftery then shut down the job because no steward was on the job. That afternoon, the Company agreed to employ a steward appointed by the Union. Stewards appointed by Raftery from outside the Company's regular work force then served on the job until its completion.
Raftery's first steward appointee was scheduled to appear February 9 but did not show up because he was injured. The next appointee, Robert Harvarton, was married to Raftery's niece. Harvarton appeared for work on February 10 and served as steward on the North Gate project for several days before transferring to another job. Raftery next appointed Robert Lemp, who, Raftery testified, was one of Raftery's college buddies. Lemp served as steward until the completion of the project.
On February 14, 1977, the Company filed an unfair labor practice charge with the Board, alleging that the Union had caused the Company to discriminate against its employees in regard to terms and conditions of employment in order to encourage union membership in violation of section 8(b)(2) of the National Labor Relations Act. 5 After a hearing, the ALJ found that the appointment-of-steward clause (section 20) was a valid contractual provision but, because the Union's appointment of a steward had resulted in the layoff of another employee, the clause had been unlawfully applied. The ALJ concluded that the Union had committed an unfair labor practice under section 8(b)(2) and recommended that the Union be ordered to pay Scheble for his lost work time and to desist from appointing any "shop steward not from the employer's regular work force or from among the employees already hired by such employer without legal and sufficient justification for such appointment." District Council No. 2 of the Brotherhood of Painters & Allied Trades, No. 14-CB-3469, slip op. at 12 (N.L.R.B. June 7, 1977).
The Board affirmed the ALJ's rulings and findings of fact but not his conclusions of law and recommendations. 6 The Board agreed that the appointment-of-steward clause was valid, but reversed the ALJ's conclusion that the clause had been unlawfully applied. The Board found that the Union's appointment of a steward from outside the Company's regular work force was in furtherance of legitimate union objectives under the collective bargaining relationship. The Board reasoned that because the Union "acted here for a legitimate aim, its actions, with their attendant results, did not violate the Act * * *." District Council No. 2 of the Brotherhood of Painters & Allied Trades, (1978-79) NLRB Dec. (CCH) P 15,457 at 28,888 (239 NLRB No. 192) (1979) (hereinafter Brotherhood of Painters ). The Board therefore dismissed the complaint. 7
In reviewing a Board decision we must determine whether the decision rests upon substantial evidence on the record as a whole and a correct application of the law. E. g., Inter-Collegiate Press, Graphic Arts Div. v. NLRB, 486 F.2d 837, 840 (8th Cir. 1973), cert. denied, 416 U.S. 938, 94 S.Ct. 1939, 40 L.Ed.2d 288 (1974). The substantial evidence standard of review applies even where the Board's decision has reversed that of the ALJ. Nonetheless, "the ALJ's opinion is * * * a part of the record against which the substantiality of the evidence supporting the Board's decision is measured." Teamsters Local 20 v. NLRB, 610 F.2d 991, 995 n. 5 (D.C.Cir.1979). This is particularly true where, as here, the Board has adopted the ALJ's credibility determinations and findings of fact but has drawn different conclusions of law.
Certain principles concerning a union's ability to secure employment preferences for union stewards are well established.
Section 8(a)(3) of the National Labor Relations Act prohibits employers from discriminating among employees with respect to "any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3) (1976). Section 8(b)(2) prohibits unions from causing or attempting to cause an employer to violate section 8(a)(3). 29 U.S.C. § 158(b) (2) (1976). It is well settled that "membership" as used in section 8(a)(3) refers not only to the employee's basic decisions as to whether to join or remain in a union, but also to his decisions as to the...
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