Sheet Metal Workers, Local 17

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers' International Association, Local Union No. 17, AFL-CIO and George Koch Sons, Inc. Case l-CB-1719 September 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On February 8, 1972, Trial Examiner John F. Funke issued the attached Decision in this proceed- ing, recommending that the complaint be dismissed. Thereafter, the General Counsel and the Charging Party, George Koch Sons, Inc., filed exceptions and supporting briefs, and the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm only the Trial Examiner's rulings, findings, and conclusions as are consistent herewith. The complaint alleged that the Respondent Un- ion violated Section 8(b)(1)(B) of the Act by charging and fining David Ziltener, a former "erection supervi- sor" of the Employer, Koch, for certain alleged viola- tions of the Union's rules' and alleged violations of the collective-bargaining contract applicable to Koch. The complaint also alleged that by striking to compel Koch to pay Ziltener for back wages and overtime and to make payments to the health and welfare and pension fund, the Respondent Union restrained and coerced Koch in the selection of its representatives for purposes of collective bargaining or the adjustment of grievances in violation of the Act. The Trial Examiner, in dismissing the complaint in its entirety, found it unnecessary to determine whether Ziltener was a supervisor within the meaning of the Act, since no disciplinary action was taken against him until after he was discharged. Distin- guishing this case from others where the Board has found violations, the Trial Examiner stated that: (1) Ziltener was not a supervisor nor even an employee at the time he was fined and (2) Ziltener was not charged with any violation which related to his supervisory duties or responsibilities, but was fined for violation of Local 17 rules. In finding that the work stoppages 'Specifically, the union rules violated were (a) working for less than Boston' wages in the Boston area, (b) being paid for only 40 hours when working over 40 hours, and (c) having no health and welfare or pension contributions paid on hours worked. did not coerce Koch, the Trial Examiner concluded the stoppages occurred to protest Koch's failure to abide by the terms of the contract and to redress Ziltener for the losses sustained because of that breach. For the reasons stated below, we disagree with these conclusions of the Trial Examiner. Koch, an Indiana employer, was working under contract with General Motors at the GM plant in Framingham, Massachusetts. Koch operated at the Framingham location under the Local 17 area agree- ment. Throughout the job, Koch had under its super- vision up to 150 employees, 87-90 of whom were sheetmetal workers. In November 1969, Koch wrote David Ziltener, a member of Sheet Metal Workers Local 416 at Janes- ville, Wisconsin, who had previously worked as a fore- man for Koch, employing Ziltener as an "erection supervisor" for the GM job. Ziltener had negotiated his own salary and had already agreed to terms of employment which were set out in the letter as a week- ly salary of $285, living expenses of $20 per day, and other terms. Ziltener reported to the Framingham job- site November 17, without any tools of the trade, talked to George Thompson, the general superintend- ent at the site, who told him he was an "erection superintendent" and to "walk the job" as a "coordina- tor." Thompson considered Ziltener "second in com- mand," and introduced him around as such. Ziltener attended private management meetings to discuss work and manning of personnel, was left in charge during Thompson's absences, handled grievances and work problems, made job assignments, recommended the discharge of at least one employee, disciplined employees, granted time off, and acted as Koch's rep- resentative. In Thompson's absence, Ziltener was giv- en full responsibility for the operation of the job. While Respondent introduced testimony at the hearing for the purpose of demonstrating a lack of supervisory authority in Ziltener, we are left unper- suaded by this testimony. Two union witnesses (Spra- gue and McLaughlin) admitted that Ziltener attended supervisory meetings; union witness Dowd indicated in his testimony that Ziltener "may have" discussed Robinson's discharge; union witness Sprague admit- ted that he had observed Ziltener giving orders. Most of the union testimony was limited to establishing that the witnesses had not themselves observed Ziltener performing supervisory functions but,•since their ob- servations of Ziltener were limited to only a short time on any given day, their testimony has limited proba- tive value. Thus even without resolving credibility ques- tions, which is normally a function of the Trial Exam- iner, we are satisfied that the evidence, considered as a whole, establishes the supervisory's status of Zilten- 199 NLRB No. 26 SHEET METAL WORKERS , LOCAL 17 167 er, and we so find .2 We also find that this record supports a finding that he was the Employer's repre- sentative "for the purposes of collective bargaining or the adjustment of grievances" within the meaning of Section 8(b)(1)(B). Ziltener was discharged by Koch on July 6, 1970. He then went to Local 17 officials and complained that Koch had not made health and welfare payments and pension contributions to Ziltener's home local as Ziltener claimed Koch had orally promised to do, and it was at that same time Local 17 became aware that Ziltener was working for less than the contract wage scale for foremen.' Local 17 agents conferred with Thompson regarding Ziltener's wage rates, health and welfare payments, and pension contributions, but Thompson told them it was out of his hands since Ziltener was paid out of the Evansville office. For the 3 weeks following his discharge, Ziltener remained on Koch's payroll as a journeyman because of Local 17's intervention, but was not permitted to work over 40 hours per week. On July 30, 1970, Koch's vice president, Dish- man, out of Evansville, was in Framingham and was told by Local 17 that, if the matter of payments due Ziltener was not straightened out, Local 17 would "pull the men." The sheetmetal workers did not work on July 31 or August 1, 1970. Koch's representatives then went to the union hall and made payment by check, in amounts computed by Local 17, for health and welfare and for the pension fund, as well as back wages (including overtime) to Ziltener. In addition, Koch issued payment to the other sheetmetal workers for the time they lost while on strike. Later, when Local 17 refused to issue general releases (that Koch had made the payments under duress), Koch stopped payment of the checks to Ziltener. Thereafter, on No- vember 2 to 9 and on December 4, Local 17 again "pulled" the men after threatening to do so if the payments to Ziltener were not made good. In the meantime, on August 17, Local 17 advised Ziltener that charges had been preferred against him for: (1) working for less than the Boston area wage; (2) being paid for 40 hours while working over 40 hours; (3) having no health and welfare or pension paid on hours worked; and (4) contracting to do busi- ness on a basis other than that provided in the con- tract. Ziltener was notified of his trial, did not appear, and was subsequently notified that he had been fined $500 on each of the first three charges. Ziltener paid the $1,500 fine. When the sheetmetal workers did not appear for 2 The Trial Examiner made no findings on this matter. 3 Under the contract, journeymen started at $7 33 an hour. Foremen re- ceived about $8 50 an hour. The work week consisted of 40 hours, with overtime at double hourly wages Usually overtime amounted to about 13 hours per week. work on December 4, 1970, Koch filed the instant charge and also submitted to the Local Joint Adjust- ment Board its grievance against Local 17 for striking in violation of the no-strike clause. Koch claimed in its grievance that Local 17 struck to force the health and welfare and pension payments of Ziltener who was a supervisor of Koch and not covered by the contract. In response to Koch's grievance, Local 17 filed a grievance charging Koch with violation of the contract. On January 1, 1971, the Local Board ruled unanimously that Ziltener came into Local 17's area under the "2-man rule" as a sheetmetal worker and that he was entitled to sheetmetal workers' wages in their entirety for all hours worked. Koch appealed the Local Board determination. A panel was appointed and a hearing set for May 20, 1971, but there has been no decision on the appeal. First, as noted above, we have found that Zilten- er was a supervisor. The fact that Ziltener had been terminated as a supervisor at the time he was fined by the Union is not, contrary to the Trial Examiner's Decision, dispositive of the issue before us. There is no question but that the fine was imposed because of events occurring during the time of his supervisory employment. It related directly, in fact, to the very process of supervisory selection by Respondent. If an employer is to be free from union coercion in the selection of persons who are to serve the employer as its representatives, then surely the employer must be free from union coercion in the matter of setting the terms of such representatives' employment. Thus to fine one who agrees to serve as an employer's repre- sentative solely because he and the employer agreed on terms and conditions of employment which the union may find objectionable must necessarily have an inhibiting effect-and indeed a coercive effect- on the employer in his future selection of representa- tives. And this is true no matter at what point in time the fine itself may have been imposed. The message to the employer will be clear for the future-don't select a supervisor unless the union approves of the terms and conditions of his employment. As the above comments suggest, we are also un- willing to accept the Trial Examiner's conclusion that Ziltener was not charged with any violation relating to his supervisory status but was fined solely for viola- tion of Local 17 rules. Those rules, as applied by the Union here, would permit the union to dictate the terms and conditions under which an employer could select and engage its management representatives. That seems to us such a clear interference with the freedom of the employer to select his representatives as to constitute an open and obvious violation of Sec- tion 8(b)(1)(B). We think it equally clear that the work stoppages which were initiated by Respondent were for the purpose of requiring Koch to accede to the 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union-dictated terms and conditions of Ziltener's em- ployment and thus coerced the Employer in the same manner as the fines levied on Ziltener himself, and we find such conduct on the part of the Union also to be violative of Section 8(b)(1)(B). We turn next to Respondent's contention that, pursuant to the doctrine established by the Board in the case of Collyer Insulated Wire, 192 NLRB No. 150, we should defer decision in this matter until the pend- ing arbitration proceedings are completed (referring to the processing of the grievance initiated by the Employer alleging that the work stoppage was in vio- lation of article X of the governing col- lective-bargaining agreement). In this connection we note first that the contention has little merit insofar as it is directed to the issue of the fining of Ziltener, since the propriety of the union fine would of course not be determined in that proceeding . As to the work stop- page, however, the contention requires more thorough exploration . For if it were true that the determination of whether the strike violated the agreement turned on essentially the same criteria as we would apply in determining whether our Act had been violated by the self-same strike, then, as in Collyer, there would be good reason for us to step aside and let the parties' own procedures resolve their dispute. In many cases of the type here involved such deferral might well be appropriate , for many collec- tive agreements define the bargaining unit essentially in the wording of a Board certification and thus often excludes from coverage by the agreement "supervi- sors as defined by the National Labor Relations Act, as amended." Under such an agreement the issue un- der the grievance and arbitration provisions would be whether the strike was to compel the payment of ben- efits required by the agreement to an employee cov- ered by the agreement or, on the other hand, to an excluded "supervisor." If the former, the strike would not violate the agreement if, as here, there is a specific provision in the agreement permitting a strike under such circumstances . But if the latter, the no-strike provisions of the agreement would apply, since the strike would not be to compel payments on behalf of an "employee." Thus, an arbitrator-or the parties themselves in the grievance discussions-would of ne- cessity be considering the same legal issue-i.e., whether Ziltener was an "employee" or a "supervi- sor." We might well under such circumstances be will- ing to defer, retaining jurisdiction only against the contingency that the arbitrator's determination of this issue should be repugnant to the policies of our stat- ute. We have, however, examined the instant agree- ment and find that it contains no such exclusion from coverage of statutory "supervisors." In fact , the agree- ment contains no description of the unit of employees covered. We further note that , unlike many industrial agreements, this contract specifically covers foremen. Indeed, the Union here claims that Ziltener should have received payments of wages and benefits appli- cable to foremen generally . It would therefore not appear that an arbitrator , in determining whether or not Ziltener was working at a position intended to be covered by the agreement, would be considering the issue which we are called on to decide-i.e., Ziltener's status as an "employee" or "supervisor" as defined in the Act which we administer. Furthermore, since we are in any event required to take jurisdiction in order to determine the issue of whether the fine was violative of our Act, there seems less reason to defer the other issue raised by the com- plaint; namely, the Union's conduct with respect to the strike. When an entire dispute can adequately be disposed of under the grievance and arbitration ma- chinery, we are favorably inclined toward permitting the parties an opportunity to do so . One of our rea- sons for so doing is to avoid litigating the same issues in a multiplicity of forums . But here, since we must perforce determine a part of the dispute , there is far less compelling reason for not permitting the entire dispute to be resolved in a single proceeding. For these reasons we decline in this instance to defer to the grievance and arbitration provisions of the agreement and instead, having found both the fine and the work stoppage to have violated Section 8(b)(1)(B) of our Act, shall enter an appropriate order to remedy the said violation. CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Sections 2(5) and 8(b) of the Act. 2. George Koch Sons, Inc., is an employer en- gaged in commerce within the meaning of the Act. 3. David Ziltener, when employed by George Koch Sons, Inc., the Charging Party, was at all mate- rial times a supervisor and "representative " of George Koch Sons, Inc., within the meaning of Section 8(b)(1)(B) of the Act. 4. By restraining and coercing the Charging Party in the selection of its representative for the purposes of collective bargaining or the adjustment of griev- ances, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor SHEET METAL WORKERS, LOCAL 17 Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Sheet Metal Workers' International Association, Local Un- ion No. 17, AFL-CIO, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Restraining or coercing, or attempting to re- strain or coerce, George Koch Sons, Inc., in the selec- tion or retention of its representatives for the purposes of collective bargaining or the adjustment of griev- ances by trying and fining or otherwise disciplining Erection Supervisor David Ziltener or any other su- pervisor of the Employer. (b) In any other manner restraining or coercing George Koch Sons, Inc., in the selection and retention of its representatives for the purposes of collective bargaining and the adjustment of grievances. (c) Making further demands on George Koch Sons, Inc., for payments of the sums for back wages and pension fund contributions for David Ziltener. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Repay to David Ziltener the sum of $1,500, the amount assessed against him as a fine , together with 6-percent interest from the date of his payment of the fine. (b) Rescind said fine and completely exscind all record thereof, and notify David Ziltener in writing that such action has been taken. (c) Reimburse George Koch Sons, Inc., for all moneys paid by it for back wages and health and welfare and pension fund contributions for David Zil- tener and for all moneys extracted from George Koch Sons, Inc., as payment of wages to sheetmetal workers on strike on July 31 and August 1, 1970, for services not performed together with 6-percent interest from the date of payment by Koch. (d) Notify, in writing, any banks or banking insti- tutions holding any of the checks issued to David Ziltener or to the health and welfare and pension funds that it will not insist on or demand payment. (e) Post at its office and meeting places in Boston copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Re- gional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (f) Forward signed copies of said notice to the Regional Director for posting by George Koch Sons, Inc., it being willing, at all locations where notices to 169 employees are customarily posted. (g) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO ALL MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain and coerce George Koch Sons, Inc., in the selection and retention of its representatives, including David Ziltener, for purposes of collective bargaining and adjustment of grievances. WE WILL NOT prefer charges against, try, fine, or similarly discipline David Ziltener, or any oth- er supervisor of George Koch Sons, Inc., as a member of this labor organization, in regard to matters concerning their employment while such member is the selected representative of George Koch Sons, Inc., for the purposes of collective bargaining or the adjustment of grievances. WE WILL NOT make further demands on George Koch Sons, Inc., for payments of the sums for back wages and health and welfare and pension fund contributions for David Ziltener. WE WILL rescind the $1,500 fine imposed on David Ziltener, together with 6-percent interest per annum, and WE WILL exscind all reference thereof from our records, and will advise David Ziltener that we have taken the aforesaid action. WE WILL reimburse George Koch Sons, Inc., for all sums of money paid by it for back wages and health and welfare and pension fund contri- butions for David Ziltener and for all sums of money extracted from George Koch Sons, Inc., as payment of wages to sheetmetal workers who were on strike on July 31 and August 1, 1970, for services not performed, together with interest thereon at the rate of 6-percent interest per an- num. WE WILL notify, in writing, any bank or banking institutions currently holding any checks issued to David Ziltener for back wages or to the health and welfare and pension funds that we will not insist on or demand payment. 170 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD SHEET METAL WORKERS' INTER- NATIONAL ASSOCIATION, LOCAL UNION No 17, AFL-CIO (Labor Organization) (Representative) (Title) At all times material herein Koch has been employed as a contractor by General Motors Corporation at its Fram- ingham, Massachusetts, plant and receives goods and mate- rials valued in excess of $50,000 annually at said plant from places outside the Commonwealth of Massachusetts. Koch is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon" Street, Boston, Massachusetts 02114, Telephone 617-223-3300. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: This case was brought before the Board upon: 1. A charge by George Koch Sons, Inc., herein Koch, against Sheet Metal Workers' International Association, Local Union No. 17, AFL-CIO, herein Local 17, alleging Local 17 violated Section 8(b)(1)(B), filed December 4, 1970. 2. A complaint, an amended complaint, and an amendment to the complaint issued by the General Counsel against Local 17 alleging violation of Section 8(b)(1)(B), said complaints being dated February 24, June 24, and July 17, 1971. 3. A hearing held before me at Boston, Massachusetts, on September 9 and November 30, 1971. 4. Briefs submitted by the parties I on January 3, 1971. Upon the entire record in this case and from my obser- vation of the witnesses while testifying, I make the follow- ing: FINDINGS AND CONCLUSIONS I THE BUSINESS OF KOCH Koch is an Indiana corporation having its principal place of business at Evansville, Indiana, where it is engaged in the manufacture and installation of organic paint pro- cessing equipment and related products. In the course of its business Koch purchases large quantities of equipment which are transported in interstate commerce through vari- ous States of the United States and sells and transports substantial quantities of its manufactured equipment in in- terstate commerce to States of the United States other than Indiana. 1 Robert M Segal was substituted for Arthur J Flamm as attorney for Respondent during the hearing Local 17 is a labor organization within the meaning of the Act. III THE UNFAIR LABOR PRACTICES A. The Chronology of Events In November 1969, Koch was working on the installa- tion of a new plant facility for General Motors at its Fram- ingham, Massachusetts, plant. The job was a large one and at one time Koch employed about 90 sheetmetal workers on the job. George Thompson was the general superintendent for Koch at the jobsite. Terry Dishman was manager of the service and installation department of Koch, working out of its Evansville, Indiana, office. The sheetmetal work at this job was performed pur- suant to a local area contract between Local 17 and the Roofing and Sheet Metal Contractors Association of the Building Trades Employers Association? Koch was allowed two employees who were not members of Local 17,3 but all other sheetmetal workers were employed through Local 17 and worked under the terms and conditions of the contract. On November 11, 1969, and after prior discussion with him, Koch wrote Dave Ziltener, a sheetmetal worker previ- ously employed by Koch and who resided at Janesville, Wisconsin, the following letter: November 11, 1969 (Our 96th Year) Mr. Dave Zlitener 1845 Garden Drive Janesville, Wisconsin 53545 Dear Dave: The following is a confirmation of our conversa- tion and agreement on employing you as an erection supervisor for our oven job at GMAD-Framingham, Massachusetts, Job #909-4: Weekly salary would be $285.00 per week including any and all overtime. Airplane travel to job at start and return to Janesville at end of job. No transportation or travel expense atjob-site is to be furnished. Living expenses of $20.00 per day for duration of job is included. Your immediate superior during the job will be Mr. George Thompson, General Job Superintendent. 2 Resp Exh 1 3Id art VIII, sec. 6 SHEET METAL WORKERS , LOCAL 17 The above is only for this particular job at Fram- ingham, Massachusetts. If after completion of this job, it is mutually agreed to retain you in our employment, all the above conditions will then be reviewed. We would like for you to report to Framingham the morning of November 17, 1969. Any further arrangements can be made with Mr. Thompson, c/o Winthrop Apts., Apt. #6, 135 Win- throp Street, Framingham, Massachusetts. Home phone-area 617-875-6884 or office phone-area 617- 879-5028. Very truly yours, GEORGE KOCH SONS, INC. Ziltener testified that he reported to the jobsite on No- vember 17 and worked pursuant to the terms of the letter as erection superintendent until July 6, 1970. He told the representatives of Local 17 that he was receiving "about $600 a week," which satisfied them that he was receiving at least the union scale for the area. (Journeymen were averag- ing, according to union representatives, from $450 to $500 per week.)4 Ziltener testified that on July 6 he was notified by Thompson that his services were no longer needed by Koch. On either the next or the second day after this notice Ziltener went to John Dowd, the union steward, and told him Koch had not been making the required health and welfare payments to his local (in Wisconsin) as required by Local 17. At the intervention of Local 17 Ziltener was re- tained on Koch's payroll until July 30. During this period Ziltener had discussions with Laurence McLaughlin, presi- dent of Local 17 and employed at the jobsite, and with George Riley, one of Local 17's business agents, concerning his wage rates, health and welfare payments, and pension payments during his employment at Framingham .6 Riley approached Thompson about this problem and he told Ri- ley it was out of his hands since Ziltener's payroll audit was controlled by the Evansville office. On July 30 Terry Dishman was at the jobsite and was told by Riley that if the matter of the payments due Ziltener was not straightened out he (Riley) was pulling the men. Art. VIII, sec 5, of the contract provided- Except as provided in Section 2 and 5 of this Article, the Employer agrees that journeymen sheet metal workers hired outside of the territo- rial jurisdiction of this Agreement shall receive the wage scale and working conditions of the local agreement covering the territory in which such work is performed or supervised. Addendum 16 of the contract reads Foremen Shall receive amounts above the going rates as set forth be- low - Crew of four (4) to (7) inclusive , twenty-five cents per hour Crew of eight (8) to twelve ( 12) inclusive, forty cents per hour. Crew of thirteen (13) to twenty (20) inclusive , fifty cents per hour Neither Ziltener nor Thompson testified as to the reasons for his dis- charge There is testimony that Ziltener told a union representative it was for absenteeism over the preceding weekend Ziltener was not only an evasive but an unwilling witness He did not appear at the first hearing on September 9 and the hearing was recessed until November 30 to permit the General Counsel to compel his appearance by subpena 6 Ziltener admitted to them that he had been receiving only $285 per week and told them no payments had been made for health and welfare or pension to his Wisconsin local 171 The sheetmetal workers did not work on either Friday, July 31, or Saturday, August 1. On Friday morning Dishman called Riley and he and Thompson went to the union hall where they met with Riley, Dowd, and another business agent named Keough. The question of the amount owed Ziltener was discussed and, after Dishman and Thompson left the room, the union representatives computed the mon- eys due Ziltener as $9,442.42 for backpay, $601.61 for health and welfare, and $505 for pension. Koch agreed to make the payments in exchange for general releases from Local 17. Local 17 demanded, in addition, that the sheetmetal work- ers who were on strike that day and would be on strike Saturday be paid for the time lost if they were to work on Monday. Koch agreed to this and checks to the individual sheetmetal workers in the total amount of $13,119.92 were issued. These checks were cashed but Dishman testified that when Local 17 refused to issue general releases payment was stopped on the checks to Ziltener and to the health and welfare and pension funds and they had not been paid at the time of the hearing. The impasse was apparently maintained until Novem- ber 2, 1970, when according to Dishman, he received a telephone call from Riley in which Riley told him the men would not return to work (the men had been out again because General Motors had been struck by the U.A.W.) unless the checks were paid. Dishman stated the men re- turned to work on November 9 after a series of telegrams from Dishman to the Sheet Metal Workers' International. (These were not offered in evidence.) Meanwhile, on August 17, Local 17 wrote Ziltener noti- fying him that charges had been preferred against him and enclosing a copy of the charges (Resp. Exh. 10). Specifically he was charged with: 1. Working for less than the Boston wages in the Boston area. 2. Being paid for forty hours and working various hours over forty. 3. Having no Health & Welfare or Pension paid on hours worked. 4. Contracting to do work on a basis other than that provided in contract. On September 8 Ziltener was notified that his trial would be held on September 24 at Local 17 offices in Bos- ton, Massachusetts. (Resp. Exh. 11.) On November 16 Zil- tener was sent a copy of the minutes of the hearing and notified that he had been fined $500 on each of the first three specifications. (Resp. Exh. 12.) Dishman testified that on November 25 Riley again called him and told him that unless new checks were written for Ziltener and the health and welfare payments the job would be "pulled." The sheetmetal workers did not work December 4 but returned after Dishman sent telegrams to the International and Local 17. On December 4 Local 17 forwarded to Local 416, in Janesville, Wisconsin, the checks made by Koch to the health and welfare fund and to the pension fund, for collection by that local and also notified Local 416 that Ziltener had paid the fine of $1,500. This concludes the facts with respect to the fine levied against Ziltener. On December 4 Koch submitted to the Local Joint Adjustment Board of Local 17 and the Roofing and Sheet Metal Contractors Association of the Building Trades Em- 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployers Association its dispute with Local 17 respecting the payments allegedly due Ziltener and the health and welfare and pension funds. (Resp. Exh. 2) This letter is attached hereto as Appendix A. On December 7 Local 17 filed a complaint with the Joint Board alleging Koch with violations of the contract between Local 17 and the Association and asking for a hearing. (Resp. Exh. 3.) On January 4, 1971, the Joint Board held a hearing and Koch submitted a three-page statement of its position with respect to the dispute. (Resp. Exh. 4.) The minutes of this meeting were received in evidence (Resp. Exh. 5). The meet- ing was continued by the Board on January 12 and the minutes (Resp. Exh. 6) contain the decision, which was as follows: ... the Board ruled unanimously that one David Zilten- er came into Sheet Metal Workers' Local Union # 17 area under the provisions of the 2 man rule as a sheet metal worker and that David Ziltener is entitled to the sheet metal workers' wages in their entirety for all hours worked under the existing Sheet Metal Workers' Local U ion Agreement. On February 1, 1971, Koch took an appeal from the Joint Board by making "Application for Services of a Panel and Hearing under Article X, Section 3, of the Standard Form of Union agreement." (Resp. Exh. 8.) In its appeal Koch took the same position as that set forth in its "State- ment of Position" before the Joint Board. On April 26 a panel was appointed and a hearing noticed for May 20. (Resp. Exh. 9.) At the time of the conclusion of the hearing in this case, November 30, 1971, no decision had issued. B. The Issues On the basis of the foregoing facts the General Coun- sel issued the complaint, as amended, alleging Local 17 violated Section 8(b)(1)(B) of the Act by: 1. Filing charges against and fining David Ziltener for working for less than Boston wages in the Boston area and having no health and welfare or pension paid on hours worked. 2. By telling Koch it should make health and welfare and pension payments to Local 17 on behalf of Ziltener; by telling Koch it should pay Ziltener the difference between the wages paid Koch and the wages due Koch under the union contract. 3. By causing work stoppages at the Framingham job- site on July 31 and August 1, 1970, from November 2 through 7,7 and again on December 4 to compel Koch to make the aforesaid payments. C. Conclusions As the Trial Examiner remarked at the hearing, there must be more to this case than meets the eye, but the deci- sion must rest on what does meet the eye and not on the suspected motives of the parties. I do not find it necessary to determine whether Ziltener 7 These dates accord with the evidence taken at the hearing. was a supervisor within the meaning of the Act between November 17, 1969, and July 6, 1970, for no disciplinary action was taken against him during that periods Local 17 did not take disciplinary action against Ziltener until after his discharge by Koch on July 6. In fact it was Local 17 which kept him on Respondent's payroll for a period of approximately 3 weeks while it investigated his complaints against Koch. Having discovered from Ziltener that he had lied to its representatives concerning his wages and that he was in fact scabbing during the entire course of his employ- ment with Koch, Local 17 then preferred the charges, giving Ziltener due notice and opportunity to appear, and found him guilty. This case is distinguishable from all the cases cited by the General Counsel and Respondent in two vital factors. First, Ziltener was not a supervisor at the time he was fined nor was he even an employee. Second Ziltener was not, charged with any violation which related to his supervisory duties or responsibilities. He was fined for three specific violations of Local 17 rules relating to the terms of the contract Koch had agreed to abide by. The General Counsel is apparently contending that Ziltener had the right to scab and that Koch had the right to breach the contract it had agreed to observe simply by classifying Ziltener as an "erec- tion supervisor." No easier way to evade the contract wage scale could be found. (Foremen, as well as journeymen, were covered by the contract wages.) Under these circum- stances I do not find that Local 17's actions taken against Ziltener constituted restraint or coercion of the Respondent in the selection of its bargaining representatives. Ziltener was no longer such a representative and had no foreseeable prospect, in view of his discharge, from becoming such a representative in the future. More important, however, is the fact that the action taken by Local 17 was not directed against Ziltener for any conduct in his capacity as supervi- sor or representative of Respondent. It was directed solely to his acceptance of working conditions lower than those provided in the area bargaining agreement. I hardly think that Section 8(b)(1)(B) was intending to protect scabbing or to protect any employer who violates his own agreement. I find even less merit, if possible, in the argument of the General Counsel and Koch that the work stoppages viola- 81 agree with the General Counsel that if it is shown that an employee possesses any of the indicta of supervisory authority set forth in Sec. II of the Act he becomes, per se, a representative "for the purposes of collective bargaining or the adjustment of grievances," within the meaning of Sec. 8(b)(1)(B) of the Act See Toledo Locals Nos 15-P and 272, etc (Toledo Blade Company), 175 NLRB 1072, enfd. 437 F 2d 55 (C A 6). Under Toledo the Employer was protected not only as to representatives who adjusted contrac- tual grievances but as to those who handled or adjusted personal gripes or grievances regardless of their triviality (In a prior hearing before the court in the same case, 76 LRRM 2796), the court lamented that its calendar was bogged down with "infinitesimally small abstract grievances.") Not only did the Board in Toledo give full scope of the term "grievance" but also included within the term "representative " not only supervisors who had handled griev- ances but supervisors who might be "natural and potential representatives of the Blade for the handling and settlement of grievances ." Statutory construc- tion could be stretched no further to protect the employer's rights. In view of the fact that all journeymen craft workers sent to a construction site are eligible for selection as foreman and many shift from journeymen to foremen and back again it would appear that every craftmen was a member of a pool of potential representatives for the handling of grievances . The General Counsel has not, however, advanced the argument that any fine of any union member would constitute a violation of Sec 8(b)(1)(B) so I find it unneces- sary to reach that issue. SHEET METAL WORKERS, LOCAL 17 ted Section 8(b)(1)(B). These stoppages occurred not to coerce Koch in the selection of his representative nor to protest the action of any supervisor acting in that capacity but to protest Koch's failure to abide by the terms of its agreement with Local 17 and to redress Ziltener for the losses sustained by reason of such breach. I am somewhat at a loss to understand the purpose of the General Counsel, advanced with unusual zeal,9 designed, it seems, to protect Koch from the consequences of its own bad faith.' ORDER It is recommended that the complaint be dismissed in its entirety. 9 Among the remedies urged by the General Counsel is that reimbursement of Koch by Local 17 of the $13,119 92 paid to the sinking sheetmetal work- ers Local 17 was not enriched by this sum and, if compelled to reimburse, would undoubtedly impose assessments on the strikers I doubt that the policies of the Act require the General Counsel to act as a collection agency on behalf of an employer against employees 10 The Joint Board, which might be presumed to have more expertise in this specific area than the Labor Board and to which Koch submitted the dispute, found against Koch on the contract issue as set forth above. APPENDIX A December 4, 1970 Local Joint Adjustment Board C/O Sheet Metal Workers' Local Union No. 17 216 Tremont Street Room 302 Boston, Massachusetts 02116 and C/O Roofing and Sheet Metal Contractor Associations of the Building Trades Employers Association 141 Milk Street Boston, Massachusetts 02109 Gentlemen: George Koch Sons, Inc., P. O. Box 358, Evansville, Indiana, 47704, (herein called the "Employer"), is pre- sently and has been engaged in the performance of certain sheet metal work at the General Motors Assem- bly Division, Framingham, Massachusetts. In the course of the performance of this work, it has employed members of Sheet Metal Workers' Un- 173 ion No. 17, and has at all times material adhered to the terms and conditions of the current collective bargain- ing agreement between that union and the Sheet Metal Contractor Associations of the BTEA. Notwithstanding compliance by the Employer with the terms of said agreement as above set forth, the Union engaged in a strike on July 31 and August 1, 1970 and also engaged in a strike commencing 8:00 A.M. this date, in violation of the no-strike clause con- tained in Article X of the agreement. A grievance con- cerning this matter was the subject of my telegram to the General President, dated December 3, 1970. The strikes above described were instituted for the purpose of coercing the Employer to make payments to the Health and Welfare Fund and also to the Pension Fund for David Ziltener who was a supervisor of the Employer. Mr. Ziltener was at all times material and still is a member of Local No. 416 of the Sheet Metal Workers' Union of Janesville, Wisconsin. This dispute constitutes the subject matter of the Employer's griev- ance. Pursuant to the provisions of Article X, Section 2, of the current collective bargaining agreement, the Em- ployer herewith appeals the dispute concerning the in- terpretation of the agreement, it not having been settled in accordance, with the provisions contained in Section 1 of Article X. It is the Employer's position that David Ziltener was its supervisor and therefore not subject to the terms and conditions of the collective bargaining agreement; and furthermore, that even assuming he was subject to the terms and conditions of the agreement, that pay- ments in the manner demanded by the union should not have been made because he was a member of an- other sheet metal local. Such payments, if due and owing, should be made in accordance with the provi- sions contained in the "interpretations and Clarifica- tions of the Standard Form of Union Agreement (SFUA) For the Sheet Metal Contractor Working Out- Of-Town." The provisions of this document require that such payments be made directly to the individual involved and not to Local Union No. 17 funds. TD: mmm Very truly yours, GEORGE KOCH SONS, INC. By Terry Dishman, Manager Service and Installation Department