Teamsters Local 663

TEAMSTERS LOCAL 663 Teamsters Local 663, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Independent and Continental Oil Company. Case 15-CB-980 October 7, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 27, 1970, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Charging Party filed cross-exceptions and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-excep- tions, and supporting briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner as modified below and hereby orders that the Respondent, Teamsters Local 663, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, Westlake, Louisiana, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommend- ed Order, as herein modified. 1. Delete paragraph 2(b) and substitute the follow- ing: "Completely expunge and exscind from its records all reference and other evidence in its files of the fines and the threats to fine members for accepting promotions, and notify all threatened and fined members, in writing, of such action." 581 2. Substitute the attached Appendix for the Trial Examiner's Appendix. i The General Counsel has excepted, inter alia, to the Trial Examiner's failure to recommend that Respondent expunge its records of its attempt to levy fines upon those individuals found not guilty of Respondent's charges, and to his inadvertent failure to include Paul Hart and Ralph Carter in the notice as names of the members Respondent will reimburse for any sums paid towards fines unlawfully levied We find merit in these exceptions However, we still order Respondent to expunge from its records all reference and other evidence in its files relating to those individuals found guilty as well as those individuals found not guilty As the Trial Examiner found that both Hart and Carter were unlawfully fined, and has ordered that Respondent reimburse them for any sums paid toward those fines, we will also include their names in the notice The General Counsel also excepts to the Trial Examiner's failure to find that the threatened or levied fines were excessive and arbitrary This issue was recently disposed of in Arrow Development Co, 185 NLRB No 22, where we concluded "that the local courts are the more logical tribunals for the establishment of standards of reasonableness" with respect to union fines APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fine or threaten to fine any of our members because they accept promotions or other change of status with Continental Oil Company. WE WILL NOT fine or threaten to fine any of our members because they accept and retain positions as temporary supervisors with Continental Oil Company if such supervisors are or may become the representatives of said Company in the adjustment of grievances. WE WILL rescind and revoke all fines imposed upon our members for accepting and retaining promotions or positions as temporary supervisors with Continental Oil Company. WE WILL reimburse our members for any sums paid toward fines levied upon them with interest at the rate of 6 percent per annum from the dates when said sums were paid. The members to be reimbursed are: Monte Andrews Vito A. Tramonte Elton Bert Alfred C. Deatheridge Jim R. Milam Ralph Carter Paul Hart George L. Cockerham Billy R. Franks Daniel D. Hieronymus Billy J. White WE WILL enter upon the minutes of our meetings the rescission of said fines and notify the above-named employees in writing that such action has been taken. 193 NLRB No. 84 582 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD TEAMSTERS LOCAL 663, affiliated with INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, INDEPENDENT (Labor Organization) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue. New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner- Upon a charge and an amended charge filed April 17 and July 2, 1969, respectively, by Continental Oil Company, herein the Company, against Teamsters Local 663, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Independent, herein the Teamsters , the General Counsel issued com- plaint dated December 19, 1969 , alleging the Teamsters, by threatening to fine and fining certain supervisors and employees of the Company , violated Section 8(b)(1)(A) and (B) of the Act. The answer of the Teamsters denied the commission of any unfair labor practices. This proceeding, with all parties represented was heard by me at Lake Charles, Louisiana, on February 19 and 20, 1970. At the conclusion of the hearing the parties were given leave to file briefs and briefs were received on May 14. Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS 1. THE BUSINESS OF THE COMPANY The Company is a Delaware corporation engaged in the processing and distribution of petroleum products at Los Angeles, California; Billings, Montana; Denver, Colorado; and Wrenshall , Minnesota. It also operates a refinery and petrochemical plant at Westlake, Louisiana. During the calendar year 1968 the Company received materials and products at its Westlake refinery valued in excess of $50,000 shipped to Westlake from places outside the State of Louisiana The Company is engaged in commerce within the meaning of the Act. 11. LABOR ORGANIZATION INVOLVED The Teamsters is a labor organization within the meaning of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background The Company operates a refinery on one side of Old Spanish Trail in Westlake and a petrochemical plant on the other side . Management is separate up to executive management but both plants are represented by the Teamsters. It had been the policy of the Company for some years to promote employees to positions of temporary supervisors at both plants and in the various divisions of both plants whenever needed. According to the testimony of C. W. Clower, director of personnel, such occasions occurred when a major turnaround or overhaul took place; when vacations or sickness required replacement of supervisors and when permanent supervisors were sent out on special assignments . The duration of the temporary appointment was indefinite and the men returned to employee status when the need was over. Several employees testified that they had acted as temporary supervisors on more than one assignment . Another factor influencing the Company in continuing this policy was the chance to evaluate the supervisory qualifications of its employees. On January 4, 1969,' four of the Company's plants were struck by the Oil, Chemical and Atomic Workers Union which represented the employees at those plants . The plants so struck were located at Paramount , California; Denver, Colorado; Billings, Montana; and Wrenshall , Minnesota. The strikes were concluded at Billings on February 10, at Denver on February 21, at Paramount on February 22, and at Wrenshall on April 14. All the strikes were economic in nature. Supervisors and technical personnel were sent from Westlake to the various plants to assist during the strike periods. These personnel together with their job classifica- tions (G.C. Exh. 3) were: I Unless otherwise noted , all dates refer to 1969 TEAMSTERS LOCAL 663 DENVE COLORADO 583 Name Job Title Date Leroy Scovill Division Superintendent Feb. 9--Feb. 20 Robert Cowden Assistant Chief Chemist Feb. 4--Feb. 21 Amon Gentry Fire Marshal Jan. 2--Feb. 15 Edsel Horton Assistant Shift Foreman Jan. 25--Feb. 18 Charles Knapp Chief Process Engineer Jan. 2--Feb. 4 John LeMaire Safety Supervisor Jan. 2--Feb. 21 Bill Wilson Safety Supervisor Jan. 2--Feb. 2 Basil Moncrief Assistant Shift Foreman Jan. 2--Feb. 21 Glenn Armstrong Shift Foreman Jan. 2--Feb. 21 Ted Aggelis Plant Security Supervisor Jan. 2--Feb. 21 Strike Duration Struck 12:01 a.m. , January 4, 1969 Settled 4 p.m., February 21, 1969 WRENSHALL $ MINNESOTA Robert Wakeland Supervisor of Personnel Adm. Jan. 6--Feb. 28 Lawrence Trosclair Craft Foreman Jan. 6--15; Mar. 8-30 Ken Daniel Mechanical Engineer Jan. 6 --March 6 Elwood Cady Mechanical Engineer Jan. 6 --Feb. 28 Harold Herford Assistant Shift Foreman Jan. 6--Jan. 18 Ed Maddox Dock Foreman Jan. 11--Feb. 21 R. A. Moore Planner Feb. 3--Feb. 28 Bill Hanberry Draftsman---Surveyor Feb. 10--April 6 Mike Bosworth Process Engineer Trainee Feb. 17--March 21 Clifford Kinney Shift Foreman Feb. 21--March 30 John Coontz Machinists Foreman Jan. 6--Feb. 19 Duncan Parks Mechanical Engineer March 8--April 13 Warren Cox Technician March 21--April 1 James Warn Process Engineer April 4--April 13 Strike Duration Struck 12:01 a.m. , January 4, 1969 Settled 8 a.m., April 14, 1969 BIL LINGS, MONTANA Name Job Title Date Bill Bradley Superintendent , LCPCP Jan. 4-Feb. 10 Joe Carnahan Craft Foreman Jan. 8--Jan. 18 Bill Cayan Process Engineer Jan. 4--Feb. 9 John Copeland Utilities Superintendent Jan. 4--Feb. 10 584 DECISIONS OF NATIONAL LABOR RELATIONS ROAR!) Name Job Title Date Jerry Corcoran Process Engineer Jan. 5--Feb. 10 Bill Couch Coordinator Jan. 4--Feb. 9 Wayne Fleming Mechanical Inspector Dec. 30--Feb. 10 Robert Gibson Operations Superintendent Jan. 30--Feb. 10 Frank Grantham Process Engineer Jan. 4--Feb. 9 Al Guerrini Senior Mechanical Engineer Jan. 5--Jan. 30 Pat Hanchey Operations Foreman Dec. 30--Feb. 10 Bill Hanberry Draftsman-Surveyor Feb. 2--Feb. 9 Ray Hollingsworth Area Foreman Jan. 4--Jan. 13 J. B. Johnson Division Mechanical Foreman Jan. 4--Feb. 9 Duncan Parks Mechanical Engineer Jan. 4--Jan. 12 A. G. Schwartzer Area Foreman Jan. 8--Jan. 12 Royce Stroud Chief Process Engineer Jan. 4--Feb. 9 James Warn Process Engineer Jan. 6--Feb. 10 James Weeks Fire Marshal Jan. 4--Feb. 9 R. F. Wayland Analytical Chemist Jan. 6 --Jan. 12 Mike Bosworth Process Engineer Trainee Jan. 15--Feb. 10 Job Gibson Process Engineer Jan. 6--Feb. 10 Chester Barrow Area Foreman Jan. 4--Jan. 13 Strike Duration Struck 12:01 a .m., January 4, 1969 Settled 8 a.m., February 10, 1969 PARAMOUNT , CALIFORNIA Jack Clark Planner Feb. 3 --Feb. 24 Clarence LeBert Mechanical Supervisor Jan. 6--Feb. 1 Jim Bowman Mechanical Engineer Jan. 6 --Feb. 17 Strike Duration Struck 12:01 a.m., January 4, 1969 Settled 12:01 a.m., February 22, 1969 TEAMSTERS LOCAL 663 This, in general, is the background against which the conduct of the Teamsters must be measured. B. The Fines and Threats Paragraph 7 of the complaint alleges: Monte Andrews Elton LeBert Jim R. Milam Ralph H. Carter Billy R. Franks Vito A. Tramonte Alfred C . Deatherage George L. Cockerham Paul Hart Daniel D. Hieronymus Billy J. White James A. Seger W. T. Sappington Luke J. Landry, Jr. Hershel S. Robinson 585 On or about the dates set forth opposite their names, the following-named individuals employed by the Employer at its Westlake, Louisiana facilities occupied the positions of temporary supervisors: -- January 24 to April 14, 1969 -- April 1 to April 14, 1969 -- January 6 to April 14, 1969 -- January 4 and 14, 1969 March 31 to April 14, 1969 -- March 31 to April 14, 1969 -- March 31 to April 14, 1969 -- January 6 to February 9, 1969 March 10 to March 21, 1969 March 26 to April 6, 1969 -- February 6 to March 9, 1969 March 31 to April 14, 1969 -- January 4 to February 14, 1969 April 1 to April 14, 1969 -- January 6 to April 14, 1969 -- February 10 to February 21, 1969 April 2 to April 14, 1969 -- January 4 to January 7, 1969 February 11 to February 17, 1969 April 1 to April 6, 1969 -- April 2 to April 14, 1969 -- January 4 and 5, 1969 April 6 to April 14, 1969 -- February 26 to March 9, 1969 March 31 to April 14, 1969 Paragraph 10 of the complaint alleges that each of the above-named employees and, in addition, employees Louis Glosten, Joseph LeBlanc, and Wimpy Meyers were threatened with fines by the Teamsters in the amount of $150 for "accepting, retaining or refusing to relinquish positions as temporary supervisors at Westlake" during the strike period. Paragraph 11 of the complaint alleges: Respondent, at various times during May, June, and July 1969, levied fines upon the following-named employees covered by the collective-bargaining agree- ment described in paragraph 5, above, in the sum of $150 each for accepting, retaining, or refusing to relinquish positions as temporary supervisors at the Westlake facilities during the period between January 4, 1969, and April 14, 1969: Monte Andrews Elton LeBert Jim R. Milam Ralph H. Carter Billy R. Franks Vito A. Tramonte Alfred C. Deatherage George L. Cockerham Paul Hart Daniel D. Hieronymus Billy J. White The Teamster's records (G.C. Exhs. 2-a, 2-b, 11-a through 20-b, and 23-a through 23-d) indicate that the following action was taken against the aforesaid members: 586 Member DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charges Filed 2/ Action Taken 3/ Monte Andrews 5/9/69 Elton LeBert 5/9/69 Jim R. Milam 5/9/69 Ralph H . Carter 4/23/69 Billy R. Franks 5/9/69 Vito A. Tramonte No Record A. C. Deatheradge 5/9/69 G. L. Cockerham 5/9/69 Paul Hart 5/9/69 D. D. Hieronymus 5/1/69 Billy J. White 5/19/69 The charges were similar in form and substance except as to minor variations such as dates. The charge filed against Monte Andrews (G. C. Exh. 18-a) reads: Dear Brother Andrews: This is to inform you that charges have been made against you and filed with this Local Union. The charge alleges that you have violated your oath of membership and also the Constitution of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The charges are as follows: Violation of the obligations to which you pledged your word and honor upon becoming a member of Teamsters Local Union No. 663, by refusing to obey the authority of the Union as set out in the action of the Local Union on March 11, 1969, i.e.,. "That any member who has been set up temporarily while supervisory personnel are out side strike breaking and said members refuse to set themselves down will be fined $150." And you did, knowingly, thereafter retain assign- ment with Continental Oil Company outside the bargaining unit in the Lake Charles Refinery and Petrochemical Complex while Supervisors and Engineers from the same Company were operat- ing a plant whose employees were legally on strike against Continental Oil Company, thereby aiding the Company in maintaining a struck facility. Further, be advised that a trial will be held in accordance with the Constitution of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, adopted by the Miami Beach, Florida, Convention July 4-7, 1966, and you shall be required to stand trial at the time and place designated below: Article XIX, Section 1, (b) of the Constitution states that "The accused may appear in person, and with witnesses, to answer the charges preferred against him 2 The date is that of the letter to the member notifying him that charges have been filed 3 The date is that of the letter to the employee notifying him of the action taken 4 Clower testified that "We do not set up temporary supervisors as Fined $150, 5/29/69 Fined $150, 6/23/69 Fined $150, 6/23/69 Fined $150, 5/27/69 Fined $150, 7/8/69 Fined $150, 6/9/69 Fined $150, 6/9/69 Fined $150, 6/9/69 Fined $150, 6/23/69 Fined $150, 5/27/69 No Record or her The accused may select only a member of his Local Union to represent him in the presentation of his defense; and the charging party may select only a member of his Local Union to assist him in the presentation of the evidence in support of the charges." Fraternally yours, Bobby T. Crick Secretary-Treasurer Teamster Local Union No. 663 The only reason for the fines in each case was the acceptance by a member of a temporary position as supervisor at Westlake while permanent supervisors were on assignment at the Company's struck plants. The reason this action was taken by the Teamsters is equally clear. George Baukman, president and business agent of the Teamsters, testified that the membership first discussed the strike at other plants at a meeting held January 14 The discussion at this meeting centered on the possibility that picket lines might be extended to Westlake and whether the members should cross such picket lines. Baukman warned them they were working under contract and could be fired for refusing to cross. In late January, Baukman had a conversation with Clower in which Clower told him that the strike was lasting longer than anticipated and it might be necessary to set up some of the bargaining unit employees as temporary supervisors. Baukman objected and reminded Clower that it had been past policy not to replace such supervisors with temporary supervisors.4 On February 1 I the Continental employees had a "gripe" meeting following the general membership meeting. At this meeting the membership voted to fine any member who accepted a temporary set up as supervisor the sum of $500. This motion was defeated but a motion fining the members $150 was passed. Because of some doubt as to the legality of direct replacements for anyone we send out of our plant to serve at our struck facilities " Clower also testified that on checking he found that none of the temporary supervisors had been set up to replace anyone on strike duty, that the temporary jobs had been set up before the strike began TEAMSTERS LOCAL 663 587 this meeting the motion was again passed at the next general membership meeting held March 11.5 It was pursuant to this resolution that the fines were imposed. The foregoing records establish that not only were the temporary supervisors fined but were threatened with fines in the letters sent to them notifying them of the charges filed against them. It was also stipulated that certain employees were told by Baukman and Ames, a Teamsters representative, that the Teamsters had passed a resolution that members accepting employment would be fined $150. Unlike the fined employees it is unnecessary to make specific findings as to all employees who might have been threatened although the Teamsters records and the stipulation are specific. In any event, threats sufficient to coerce an employer within the meaning of Section 8(b)(1)(B) is not dependent upon any specific number of supervisors. The facts are admitted and the fines and threats will stand or fall together C. The Status of the Temporary Supervisors 1. Deatheradge, Robinson, Hieronymous, and White A vital issue to the 8(b)(1)(B) issue raised by the complaint was whether the temporary supervisors acquired supervisory status within the meaning of Section I1 of the Act. It is not disputed that the Company had a past practice of appointing temporary supervisors as set forth, supra, and that the terms and conditions under which they operated while under such assignments did not vary. The temporar- ies were selected from the bargaining unit, received a 10 percent increase during the period of their assignment and returned to the bargaining unit when their assignment was completed. Their rights under the contract as employees were unaffected. Daryl Zimmer, senior control chemist in the petrochemi- cal plant testified that in December 1968 he received permission from management to initiate a program of temporary supervisors in the laboratory so there would be supervisors present on a 24-hour basis. (The laboratory operated on a 24-hour basis, 7 days a week.) Six employees were selected, Deatheradge, Robinson, Hieronymous, White, Chenet, and Shrewsbury.6 All operated as temporar- y supervisors during the period from January 6 to April 14. Zimmer prepared a list of their duties (G.C. Exh. 24.) This outline reads. Duties of Temporary Shift Supervisors I Supervise laboratory analysts on shift. Tempo- rary supervisor will have full responsibility and authority over the analysts. 5 Teamsters' minutes for this meeting read Motion made (Lejeune and Didion) and seconded, that any member who has been set up temporarily while supervisory personnel are outside strike breaking, and said member refused to set themselves (sic) down, will be fined $150 Motion carried 6 Four of these, Deatherage, White, Hieronymous, and Robinson later became permanent supervisors r Prior to the assignment of the temporaries the analysts were subject to supervision by the shift foreman in charge of the entire shift There was no intermediate supervision between Zimmer and the analysts 2. Coordinate laboratory testing for maximum efficiency. 3. Establish sample priorities. 4. Assist analysts with any analytical problems. 5. Act as liaison between lab and plant. 6. Determine overtime requirements and obtain appropriate personnel. 7. Advise appropriate unit personnel of abnormal or unusual conditions as evidenced by sample analysis. 8. Check shipping analysis against specifications and release shipments. 9. Order lunches as required. 10. Keep a log book of any problems, unusual circumstances, operational changes, etc. (I want some notation from every shift). Since this document was prepared prior to the strike and there is no evidence that it was prepared in contemplation of a strike situation I do not find it self-serving. In addition Zimmer testified that he told them they would have the same responsibility in this area as he had had, which included the authority to "hear and settle grievances, take disciplinary action, instruct and supervise the normal functions of a front line supervisor." On examination by company counsel Zimmer testified that the temporaries were in charge of their shifts during his absence, that they assigned the work, determined the need for overtime work and checked the contract to see which analyst was entitled to the work.? Under the contract they were not permitted to perform unit work.8 Based on the foregoing, I find that the temporary supervisors assigned to supervise the analysts from January 6 to April 14 were supervisors within the meaning of the Act. In reaching this conclusion I have considered the cases cited by the Teamsters counsel in footnote I 1 of its brief and find all cases inapposite. This case does not involve sporadic assignment as the term was used in those cases for the assignments made herein, although for indeterminate periods, arose not from immediate necessity or brief absences of regular supervision but from company policy to establish an intermediate hierarchy of supervision destined, if proved feasible, to become permanent.9 As to whether the assignments were made only to provide assistance to the Company dunng the strike period when relief of other supervisors transferred to struck plants was necessary is a different question to be discussed under "Conclusions." 2. Sappington and Seger Testimony was submitted by Arthur S. Gallagher that W. T. Sappington and James A. Seger were made temporary supervisors during the strike period in the alcohol unit of the Company. The complaint does not allege that either 8 Two grievances were filed by the Teamsters against Robinson for performing unit work while acting as a temporary supervisor (G C Exhs 26 and 27 ) 9 I find no evidence that these employees became permanent supervisors on any fixed date Certainly the allegation of paragraph 7 of the complaint does not establish that they became permanent supervisors during the strike period On the other hand, G C Exh 9 establishes that Deatheridge, Robinson, Hieronymous, and White acted as supervisors during various periods after April 14, thus negating any inference that they were solely strike replacements 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was fined by the Teamsters but it was stipulated that both received notification of charges and were subsequently found not guilty Since a finding that these employees were threatened within the meaning of Section 8(b)(1)(B) would add nothing to any remedial order which might be recommended herein I find it unnecessary to determine their supervisory status. 3. Andrews, Franks, and Tramonte These three employees served as temporary supervisors in the petrochemical plant under Harry J. Montgomery during the strike period and all continued to served until February 8, 1970. Montgomery testified, and much of his testimony was conclusory, that the temporary supervisors determined manpower requirements in their respective areas; filled out accident reports; 10 evaluated probationary employees; 11 had authority to order materials from the warehouse 12; had authority to grant time off; attended supervisory meetings every morning and had access to employees' personnel records when required. Montgomery also testified that Andrews was contacted by a Teamster representative, Larry Ames, concerning a grievance of an employee. On cross-examination Montgomery testified that only permanent supervisors were assigned weekend work and that temporary supervisors did not conduct training sessions . Nevertheless, I find that Andrews, Franks, and Tramonte possessed authority and had duties requiring the exercise of responsible judgment sufficient to qualify as supervisors within the meaning of the Act.13 4. Milam, LeBert, Hart, and Cockerham It was stipulated at the hearing that employees LeBert and Cockerham possessed the same authority while employed as temporary supervisors as did Jim Milam 14 Jim Milam testified that he had been employed in the ethylene unit of the Company's plant during the strike period and that he had been a temporary supervisor since May 1968. On February 14, 1969, he set himself down as temporary supervisor at the request of George Baukman, president of the Teamster's local. Baukman's request, according to Milam, was made on the ground that the Company was struck at other plants and company supervisors were being sent to those plants Baukman mentioned to him that if the temporary supervisors did not set themselves down they might be subject to a fine of $150. He spoke to Hart concerning Baukman's request and both he and Hart set themselves down. Milam testified that he assigned work to other employees by writing the instruction in a log book and then telling the 10 G C Exh 29k through 29n 11 See G C Exh 29 through 29j 12 Larry Ames, representative of the Teamsters, testified that when he was employed by the Company as a craftsman , employees had the authority to requisition materials from the warehouse 13 In view of this finding it is unnecessary to rule upon the request of the General Counsel that the Examiner reverse his ruling excluding certain testimony respecting the handling of grievances by Andrews after the end of the strike period it should be stated, however, that the record does not indicate that there was any change in the duties of the temporary supervisors after April 14 14 No such stipulation was agreed to by Respondent with respect to "top operator" how the work should be done. He had occasion on four instances to reprimand employees for work not properly performed. He was in charge of work scheduling for 35 employees and handled complaints and grievances from employees with respect to these schedules.15 The procedure with complaints was to check the contract and explain that it was being followed. Sometimes he dealt with the employee, sometimes with the shop steward, and sometimes with both.16 On cross-examination Milam admitted that his time spent as temporary supervisor was computed toward his seniority as an employee and that he continued to participate in the fringe benefits provided by the contract for employees. I nevertheless conclude that during the periods spent as temporary supervisor he exercised the authority responsibly to direct other employees within the meaning of the Act. In view of the stipulation of the parties I find LeBert and Cockerham exercised similar supervisory authority. 5. Carter and Landry Carter and Landry both were employed in the safety department and, according to Safety Director Thomas, were set up as fire marshals during the strike period. Both continued to act as fire marshals after the strike period. It was their duty to see that all operating equipment was in safe condition and to certify this fact, a duty which presumably involved the checking of all safety equipment. If equipment was not in a ready condition they had the authority to request employees from the mechanical department to make the necessary repairs and would supervise the making of such repairs. They also supervised laboring crews who were engaged in pouring dry chemicals into the fire trucks. Plant guards reported to the marshals if they needed extra men. I find nothing in this testimony to establish that the marshals exercised any supervisory authority over other employees in the safety department or that their authority over other employees consisted in more than the exercise of their expertise in their particular area. Guards and safety protection employees necessarily exercise some authority over plant employees in the performance of their duties. This does not constitute them supervisors within the meaning of the Act and I so find with respect to Carter and Landry. 17 D. Conclusions 1. Violations of Section 8(b)(1)(B) of the Act The few Board decisions respecting fines imposed upon Hart Hart did not testify nor did any higher supervisor testify with respect to his authority Testimony of Milam as to his duties was rejected Milam and Hart operated in different areas This leaves Hart in limbo and I can only conclude that the General Counsel did not sustain his burden of proof to establish Hart was a supervisor 15 Milam testified that when a week's schedule was set up on Thursday morning, changes in shifts and days off would often be necessary and that there would always be complaints "Half of them are happy and half of them aren't " 16 As to other grievances see G.C Exh 30 17 Landry was not fined, charges against him were dismissed TEAMSTERS LOCAL 663 589 union members who represented or might represent the employer in the adjustment of greivances indicate that such disciplinary action is a per se violation of the Act. See San Francisco-Oakland Mailer's Union No. 18, etc, 172 NLRB No. 252; Toledo Locals Nos 15-P and 272 of the Lithographers and Photoengravers International Union, AFL-CIO (The Toledo Blade Company, Inc), 175 NLRB No. 173; New Mexico District Council of Carpenters and Joiners of America, (A. S Horner, Inc), 177 NLRB No. 76. A part of the business of the decisional process , however, is the making of distinctions and it may be argued that facts of the instant case may be distinguished from those in the cited authorities. The only distinction which I find is that the Teamsters here were confronted with a strike situation , not at the plant at which it represented the employees, but at the Company's other plants. For reasons as valid as they are obvious the Teamsters was unwilling to provide any assistance , direct or indirect , to the Company in combating those strikes and in view of Clower's testimony that the supervisors sent from Westlake plant performed production and maintenance work normally performed by the striking employees the Teamsters may have felt, and justifiably so, that the temporaries were strikebreakers , once removed. I have grave doubts that if the facts sustained its position the Teamsters would lose, through a subterfuge on the part of the Company, its right to impose disciplinary measures on its members who engaged in such strikebreaking activity. I do not believe that Section 8(b)(l)(B) was intended to be used as a device to assist an employer in maintaining his work force during a strike or to thwart a union in legitimate strike activity. But such a holding would have to rest on proof that the Company set up the temporary supervisors for such a purpose and on this point I do not believe the evidence sustains the theory. I found both Zimmer and Clower to be credible witnesses and both testified that a decision had been reached to hold a turnaround in the plant during either April or May 1969.18 Their testimony that this would necessitate an increase in supervisory personnel is supported by the records indicating that most of the temporaries continued to work as supervisors after the end of the strike.19 A trial examiner can only rely on what the record discloses and this record contains nothing to contradict Clower's testimony that none of the temporaries was used to relieve a transferred supervisor More convincing proof would be welcome but decision must be reached on the evidence at hand. It is my conclusion that those employees found to be supervisors within the meaning of the Act as set forth in paragraph "C" of this decision were unlawfully fined by the Teamsters and that by such action the Teamsters restrained and coerced Continental Oil Company in the selection of its representatives for the adjustment of grievances. 2. Violations of Section 8(b)(1)(A) The findings I have made with respect to the temporary supervisors in the preceding paragraph, i.e., that the Teamsters had no legitimate interest in their promotions, apply with equal effect to the three , Hart, Carter, and Landry, who were not found to be supervisors . The finding with respect to Hart was based solely on the failure to establish his supervisory status in the record . As to Carter and Landry it was based on the finding that the position to which they were promoted , fire marshall, was not supervisory within the meaning of the statute. All three did, however, accept changes in their working conditions otherwise similar to those who were found to be supervisors and the grounds for the fines, accepting supervisory positions while other supervisors were strike-breaking, were the same. Without reaching the apparently insolvable question of the excessiveness of the fines20 I would hold that since these employees, like the temporaries , were not engaged in strike-breaking or in any other conduct detrimental to the legitimate interests of the Teamsters21 the fines restrained and coerced its members for accepting a change in employment status, a choice therefore beyond the reach of union discipline. This conclusion is dictated , I believe, by the decision of the U.S. Supreme Court in N.LR.B. v. Allis- Chalmers Manufacturing Company, 388 U.S. 175, where Justice Brennan , speaking for the majority stated: Thus this history of congressional action does not support a conclusion that the Taft -Hartley prohibitions against restraint or coercion of an employee to refrain from concerted activities included a prohibition against the imposition of fines on members who decline to honor an authorized strike and attempts to collect such fines. Rather, the contrary inference is morejustified in the light of the repeated refrain throughout the debates on Section 8(b)(1)(A) and other sections that Congress did not propose any limitations with respect to the internal affairs of unions, aside from barring enforcement of a union's internal regulations to affect a member's employment status. [Emphasis supplied]. IV. THE REMEDY Having found that the Respondent Teamsters engaged in and is engaging in certain unfair labor practices it will be recommended that it cease and desist from the same and take certain affirmative action as recommended herein. Having found that the Teamsters fined certain of its members the sum of $150 for accepting promotions in 11 The record is not too clear on this issue but it may well be that the turnaround in one plant started in April and at the other in May, which would explain this apparent inconsistency 19 As to the six employees promoted by Zimmer in January and who worked during the strike , the explanation that this was to be a permanent change in the analysts' laboratory supervisory policy and that the six were in the course of a training period to determine which found would be selected as permanent supervisors provides plausible explanation One other employee , Monte Andrews . was promoted to replace a supervisor who suffered a heart attack As to the others who were fined the record does not establish that they were employed regularly dunng the strike period 20 The Board has yet to issue any decision on this issue although trial examiners' decisions have been pending before it since 1968 21 G C Exh 3 shows that one fire marshall , Amon Gentry, was sent to Denver from January 2 to February 21 and another , James Weeks, was sent to Billings from January 4 to February 9, both serving for almost the entire strike period at those plants Carter served as fire marshall at Westlake on January 4 and 14 and from March 31 to April 14, Landry on January 4 and 5 and from April 6 to April 14 These dates do not establish that Carter and Landry served as replacements for the strike-breaking marshalls 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8(b)(I)(A) of the Act I shall recom- mend that said fines be rescinded and that Paul Hart and Ralph Carter be reimbursed for any sums paid toward said fines with interest thereon at the rate of 6 percent per annum from the time said sums were paid Having found that the Teamsters fined certain of its members the sum of $150 for accepting positions as temporary supervisors during certain periods set forth, supra, in violation of Section 8(b)(1)(B) of the Act I shall recommend that said fines be rescinded and that the following members shall be reimbursed for any sums paid toward said fines with interest thereon at the rate of 6 percent per annum from the date on which said sums were paid. Monte Andrews Alfred C. Deatheridge Elton Bert George L. Cockerham Jim R. Milam Daniel D. Hieronymus Billy R. Franks Billy J. White Vito A. Tramonte It shall also be recommended that the Teamsters shall enter on its minutes of meetings the rescission of said fines and notify the above-named employees , in writing, of such action . In view of this recommendation I find it necessary to recommend that the notice herein be read to the membership. Upon the foregoing conclusions and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. By fining and threatening to fine its members for accepting promotions with Continental Oil Company, the Teamsters restrained and coerced its members within the meaning of the Act 2. By fining and threatening to fine its members for accepting positions as temporary supervisors with Conti- nental Oil Company, the Teamsters restrained and coerced said Company in the selection of its representatives for the adjustment of grievances in violation of Section 8(b)(1)(B) of the Act. 3 The aforesaid unfair labor practices are unfair labor 22 In the event no exceptions are filed as provided by Section 10246 of the Rules and Regula tions of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER It is hereby recommended that Respondent Teamsters Local 663, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, its officers, representatives, agents, and assigns shall: 1. Cease and desist from: (a) Fining and threatening to fine any member because he accepted a promotion as an employee with Continental Oil Company. (b) Fining or threatening to fine any member because he accepts a position as temporary supervisor with Continen- tal Oil Company if said position requires that he represent the Company in the adjustment of grievances. 2. Take the following affirmative action: (a) Revoke and rescind the fines upon those members named in that section of this Decision entitled "The Remedy" and reimburse said members as set forth in said section. (b) Enter on its minutes of meetings the rescission of said fines and notify said members, in writing, of such action. (c) Post at its offices and meetings places at Westlake and Lake Charles, Louisiana, copies of the notice attached hereto marked "Appendix." 22 Copies of said notice on forms to be provided by the Regional Director for Region 15, shall, after being duly signed by Respondent Teamsters' duly authorized representative, be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reason- able steps shall be taken to see that such notice are not altered, defaced, or covered by other material. (d) Forward signed copies of said notice, in writing, to the Regional Director for Region 15 for posting by Continental Oil Company, if willing, at its plant at Westlake, Louisiana, at locations where notices to employees are customarily posted. (e) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision what steps have been taken to comply herewith 23 National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of a United States Court of Appeals enforcing an Order of the National Labor Relations Board " 23 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 15 , in writing, within 10 days from the receipt of this decision, what steps Respondent has taken to comply herewith "