Sheet Metal Workers, Local 40

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers' International Association, Local Union No. Forty, AFL-CIO and The Capitol Ventilating Company. Case 1-CB-2033 April 6, 1973 DECISION AND ORDER complaint issued on July 21, and the case was heard on October 4. The issues litigated involved alleged violations of Section 8(b)(l)(B) of the Act. After the hearing briefs were filed by Respondent and the General Counsel. Upon the entire record,2 including observation of the demeanor of the witnessess, the following findings and recommendations are made: By MEMBERS JENKINS, KENNEDY, AND PENELLO On December 19, 1972, Administrative Law Judge Sidney Sherman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and General Counsel filed a brief 1 in support of the Administrative Law. Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. 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 Administrative Law Judge and hereby orders that Respondent, Sheet Metal Work- ers' International Association, Local Union No. Forty, AFL-CIO, Hartford , Connecticut, its officers, agents , and representatives, shall take the action set forth in the said recommended Order. I Subsequently, General Counsel filed a motion requesting that the hearing in this case be reopened to permit its consolidation with another case involving the same parties and having a common background and that this case be remanded to Administrative Law Judge Sidney Sherman for the purpose of receiving evidence on the complaint issued in the related case. The motion is denied. Although the cases may be related, the alleged violation in the subsequent case appears sufficiently different in character and removed in time from the instant violations so as not to warrant the action requested by General Counsel. The trier of subsequent case may, insofar as is appropriate, take official notice of the record and our decision herein. 2 We do not adopt the Administrative Law Judge's attempt to "formulate a rule to fit all the precedents in this [8(b)(1)(B)l area" set forth in the next to last paragraph of part B, entitled "Discussion, " of the attached Decision. DECISION SIDNEY SHERMAN, Administrative Law Judge: The initial charge was served upon Respondent on June 5, 1972,1 the Jurisdiction The Capitol Ventilating Company, hereinafter called the Company, is a corporation under Connecticut law, and is engaged at its plant in Hartford , Connecticut, in the fabrication of sheet metal ducts and related products, which it installs atjobsites in the Hartford area. It annually receives from out-of-state points materials valued at more than $50,000. Its employees are represented by Respon- dent, which is a labor organization within the meaning of the Act. It is found that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the Act's policies to assert jurisdiction herein. 1. THE MERITS The pleadings, as amended at the hearing, raise the following issue: Whether Respondent violated Section 8(b)(1)(B) of the Act by taking certain disciplinary action against three alleged supervisors? A. Sequence of Events In its plant the Company fabricates sheet metal ducts and ventilation equipment, which it installs atjobsites. The fabrication work is directed by Goldstein, who bears the designation of "shop foreman." The installation work is directed by a number of so-called "field foremen," including Marks and Carola. The Company's current contract with Respondent runs from July 1, 1971, to June 30, 1973. The only specific references therein to foremen are contained in "Addendum VIII" of the contract, which requires the employment by a local employer of at least one member of Respondent as a foreman and the payment to foremen of 50 cents an hour more than journeymen. The contract also provides for the payment of contributions by the Company to various funds, including vacation, pension, and welfare funds, the amount of such contribution for each individual being based on the number of hours worked by him. On December 9, 1971, Carola discharged an employee for cause. On February 1, he was fined $100 by Respon- All dates herein are in 1972, unless otherwise shown. 2 At p. 37, I. 7, of the transcript, ruling was reserved on an objection by counsel for the Charging Party to a certain line of testimony. At p. 39, II. 4-5 of the transcript, I stated that I would "admit" questions by Respondent's counsel pertaining to that line, which ruling was intended to dispose of the foregoing objection. In any event, to remove any doubt on the point, such objection is now expressly overruled. SHEET METAL WORKERS , LOCAL 40 959 dent for allegedly violating a provision of Respondent's constitution in connection with that discharge. On April 7, Goldstein and Marks performed some work before their regular starting time in connection with the loading of a truck. On July 28, on the basis of this incident, each of them was fined $50 for an alleged violation of article VI, section 1 of Respondent's current contract and $50 for an alleged violation of Respondent's working rule 8. Article VI, section 1, of the contract reads: Section, 1. The regular working day shall consist of seven (7) hours labor in the shop or on the job between eight (8) a.m. and 3:30 p.m. and the regular working week shall consist of five (5) consecutive seven (7) hour days labor in the shop or on the job, beginning with Monday and ending with Friday of each week. All full time or part time labor performed during such hours shall be recognized as regular working hours and paid for at the regular hourly rate. Except as otherwise provided pursuant to Section 4 of this Article, all work performed outside the regular working hours and performed during the regular work week, shall be at Double (2) times the regular rate.3 Respondent's working rule 8 provides: It shall be the responsibility of each journeyman to report his overtime to the Union Office at once. Both Marks and Goldstein are journeymen. Admittedly, neither reported to Respondent his before-hours activity on April 7. As of the time of the instant hearing, the above fines had not yet been paid. B. Discussion 1. Carola In its brief, Respondent concedes that Carola's status as a statutory supervisor was established at the hearing and that under Board precedent Respondent's action in fining him for discharging an employee violated Section 8(b) (1)(B). It is so found. 2. Goldstein and Marks With respect to Goldstein and Marks, Respondent contends that they are not supervisors and that, even if it be assumed that they are, they were fined not for exercising their authority as supervisors but for failing'to comply with legitimate union requirements unrelated to their superviso- ry status. On the issue of their status, a synthesis of the uncontra- dicted testimony of Goldstein, Marks, Carola, and General Manager Molin shows the following: ;S The basis for Respondent's claim of a breach of this provision is not clear. Such a claim seems supportable only if that provision is construed as not only requiring the Company to give premium pay for overtime work but also obligating the employees not to work overtime on a volunteer basis. Nor is it clear, in any event, what union rule would have been breached by such volunteering of overtime services. There is nothing in Respondent's "Working Rules" dealing with the matter, nor was there any other evidence of the existence of such a rule . However, since we are not concerned here with the validity of Respondent's disciplinary actions under its own rules but only with the propriety of such actions under the Act, there is no need to dwell on the foregoing matters. Goldstein directs the work of all the shop employees, about ,40 in number, reporting only to Molin. Since the latter spends most of his time away from the shop, Goldstein is generally the only one to whom the. shop employees can look for job assignments and instructions regarding the manner of performance of their work. He is, moreover, solely responsible for scheduling the fabrication and shipment of the Company's products and has authority, without consulting Molin, to discharge employ- ees, to suspend an employee for misconduct, and to grant time off. Marks, as a field foreman, has directed the work of as many as 20 employees. All the field foremen, including Marks, have authority, without consulting Molin, to discharge for cause and to transfer employees from one job to another, and, in selecting employees for layoff, Molin relies entirely on their recommendations. With respect to the adjustment of grievances, while Respondent's contract contains an elaborate grievance procedure, no reference is made therein to the role of the foremen. However, the uncontested testimony of Gold- stein, Marks, and Carola shows that it is the practice of the employees and of Respondent's stewards to take up with the various foremen complaints about uncongenial work- ing conditions (e.g., lack of heat, insufficient ventilation) or work partners, and about safety hazards; that, when a dispute arose over an alleged breach of contract by the Company in assigning the work of loading.trucks to its drivers rather than to members of Respondent, its business agent took the matter up with Goldstein; and that the foremen have taken remedial action with respect to. the foregoing complaints.4 It is concluded that the foremen, including Goldstein and Marks, have the attributes of a statutory supervisor, including, inter alia, the authority responsibly to direct the work of others, to transfer employees, determine their work assignments, discharge for cause, effectively recommend layoff, and to adjust grievances, and that they are required in the exercise • of such authority to use independent judgment. There remains to be considered Respondent's contention that, even if Marks and Goldstein be deemed to be supervisors, the fines were not imposed on them for reasons proscribed by the Act. In order to evaluate this contention, it is necessary to consider the particular, circumstances that led to the imposition of such fines. Goldstein testified that early in the morning of April 7, shortly before his regular 8 a.m. reporting time, he was at Respondent's premises supervising the work of drivers in loading a truck to be dispatched to a jobsite; that he was approached by Respondent' s business agent, Ford, who demanded that he stop the loading by the drivers; ,5 and that Goldstein complied with this request. The witness 4 As to the disposition bf the truck-loading grievance, see the discussion below of the April 7 incident. While the other "grievances" described above seem to have been "personal ," not involving any claim of contract breach, the term "grievance" as used in the statutory definition of supervisor appears to have been construed by the Board as embracing such personal matters . The Toledo Blade Company, Inc., 175 NLRB 1072, 1078, enfd. 437 F.2d 55 (C.A. 6); Wisconsin Electric Power Co., 192 NLRB No. 16. 5 The performance of such work by drivers had been the subject of a grievance, which had been taken to arbitration , resulting in an award of the work to Respondent's members. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD added that he then performed the loading work, himself, for about 10 minutes and during part of that time was assisted by Marks, who confirmed that he spent about 3 minutes in rendering such assistance. Ford professed to be unable to recall any such incident on April 7.6 The only testimony by Respondent's witnesses about the April 7 matter came from Wilkie, another business agent, who testified that on that date he received a complaint from Respondent's shop steward that Goldstein and Marks had been loading a truck before 8 a.m.; and that on the basis of the information furnished him by employees who were present he concluded that the two supervisors had worked about 45 minutes in that activity. Insofar as there. is any conflict between Wilkie and Goldstein about the events of April 7, the latter is credited, since Wilkie admittedly was not present but was relying only on hearsay. Insofar as there is any conflict between Ford and Goldstein, the latter is again credited, because Ford did not unequivocally dispute Goldstein's account, merely pleading lack of recollection. It is accordingly found that before 8 a.m., on April 7, after being admonished by Ford to terminate the loading by drivers, Goldstein did that work himself for about 10 minutes, being aided therein for a few minutes by Marks. It is found, also, as related above, that neither reported this activity to Respondent nor received any extra pay therefor; that Respondent charged them with, and fined them for, (1) violating the working rule, quoted above, by neglecting to make such report, and (2) violating the overtime provisions of the contract. Section 8(b)(1)(B) forbids a Union to restrain or coerce "an employer in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances." It is well settled that this provision is violated when a union . fines a supervisor for exercising any of the powers entrusted to him by his employer or for otherwise engaging in conduct expected or requested of him by his employer in his capacity as a supervisor .7 It matters not that such fine was imposed for reasons other than the supervisor's collective-bargaining or grievance adjustment activities . Indeed, it is not even material that he has no present authority with regard to such bargaining or adjustment.8 Under the rule laid down by the Board in the IBEW case, supra, it suffices that the fine was imposed on the supervisor for aligning himself with his employer in a dispute between him and either the union or the employ- ees, since such disciplinary action tends to inculcate in the supervisor subservience to the union's wishes rather than to those of his employer, thereby destroying his effectiveness as a representative of management. In the recent Anheuser Busch case,9 in holding that a union's fining of a supervisor for performing production work behind a picket line violated Section 8(b)(1)(B), the Board reaffirmed the following statement in the Times Publishing case. 10 6 He testified about another incident, in October 1971, when he allegedly complained to Goldstein about the assignment of loading work to the drivers and about work being done before 8 a .m., admonishing him that that rule applied to Goldstein as well. 7 See IBEW v. N.L.R.B., 81 LRRM 2257 (C.A.D.C., 1972), and cases there cited. In order to constitute coercion within the proscrip- tion of Section 8(b)(l)(B), it is not essential that the union disciplinary action be related . to the offending member's performance of supervisory functions, it being sufficient that the discipline somehow concern the relationship between the employer on the one hand and the union or the employees on the other, as distinguished from matters purely of internal union administration. With respect to the precise area here involved-the fining of a supervisor for performing overtime work without compensation-the General Counsel cites the General Metal Products and the Koch cases. In General Metal Products," the Board found that a union violated Section 8(b)(1)(B) by fining a supervisor for allegedly working before his regular reporting time with members of other crafts. In Koch, 12 on facts strikingly like those in the case at bar, the Board found a violation of Section 8(b)(l)(B) in a union's action in fining a supervisor $500 on each of the following counts: ( 1) working for less than the area wage rate, (2) working overtime without additional compensation, and (3) not having health and welfare contributions paid with respect to all hours worked by him. The Board there said: It [the fine] related directly, in fact, to the very process of supervisory selection . . . . 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 representative 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 effort-on the employer in his future selection of representatives . . . . 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... . Those [the union's] rules . . . 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 interfer- ence with the freedom of the employer to select his representatives as to constitute an open and obvious violation of Section 8(b)(1)(B). The effect of the foregoing holding appears to be that the fining of a supervisor by a union because the terms of his employment do not meet with the union's approval tends to restrict unduly an employer's freedom to select his supervisors. The same considerations which impelled the Board to find that the fines in Koch interfered with the selection of the supervisor in that case would seem to require a finding that the instant fines interfered with the 8 The Toledo Blade Company, Inc. supra; Anheuser Busch, Inc., 199 NLRB No. 91. 9 199 NLRB No. 91. 10 196 NLRB No. 159. 11 178 NLRB 139, enfd . 430 F .2d 1348. 12 George Koch Sons , Inc., 199 NLRB No. 26. SHEET METAL WORKERS, LOCAL 40 961 retention of the instant supervisors. Clearly, union pressures on a supervisor which may result in loss of his services after he has been hired are as incompatible with the policy of Section 8(b)(1)(B) as pressures which may prevent him from being hired. Indeed, apart from Koch, none of the cases where a violation of that subsection has been found involved interference with the selection. process, itself, it being thought sufficient in those cases that the union pressures unduly affected aspects of the posthire relation- ship between the supervisor and the employees. Moreover, of particular significance in this regard is the fact that in Koch the fines were levied not only because the supervisor agreed to work for a substandard rate of pay, but also because, like the instant supervisors, he worked overtime without compensation and took no action to secure the payment of contributions to union trust funds on the basis of hours .worked. The Board, at least by implication, found that such fines were illegal insofar as they were predicated on the latter,13 as well as the former, grounds. While the applicability of Koch is thus clear with respect to the fine imposed here for working overtime without compensation, it may be thought that the matter is not so clear with respect to the fine for not reporting such overtime to the union. On that point, Respondent cites the Syd Gough case,14 where the Board found no violation of Section 8(b)(1)(B) in a union's fining of a supervisor for failing to comply with a union rule requiring that he register with it before reporting to a new jobsite within its jurisdiction. It was there found that the purpose of the rule was to facilitate administration by the union of the hiring hall provisions of its contract and the collection of certain union assessments. Presumably, the Board regarded these matters as pertaining solely to the internal administration of the union. By contrast, in Columbia Typographical Union No. 101, 193 NLRB 1089, the Board found unlawful the fining of a supervisor by a union for not notifying it of a contract breach by him. Here, it was agreed that the requirement that all overtime be reported to Respondent was designed to insure the proper payment by the Company of overtime compensa- tion and fringe benefits to members of Respondent, including the instant supervisors,15 and to facilitate the policing by it of the Company's performance under the contract. The latter was also the purpose of the notice requirement in the Columbia Typographical case. It is thus clear that insofar as the failure of the supervisors to report to Respondent their overtime work of April 7 impeded such policing function, it was not solely a matter of internal union administration but impinged on the relations between the Company and Respondent as parties to the contract. Such failure also affected, albeit indirectly, the instant supervisors' compensation. Accord- 13 While the point was not separately considered in the Board's opinion, the remedial order requires reimbursement of the entire amount of the fines, which necessarily included those levied on account of unpaid overtime and unpaid contributions for health and welfare and pensions. Moreover, that order forbade the union to demand any "pension fund contributions" for the supervisor and required reimbursement of the employer, inter alia, for all payments theretofore made by him under union coercion as "health and welfare and pension fund contributions" for the supervisor. 14 183 NLRB No. 24. ingly, whether one applies the test of Koch or of the other cases cited above, it would seem that the fines for not reporting overtime violated Section 8(b)(1)(B). It may be added that, if one were to formulate a rule to fit all the precedents in this area, it would seem to be that a union violates Section 8(b)(1)(B) when it disciplines a supervisor for any manifestation of loyalty to his employer, whether such manifestation involves siding with him against either the iunion or the employees or placing the employer's interests above those of the supervisor, himself. Here, the supervisors' willingness to waive any credit for the overtime work of April 7, as reflected both in their failure to claim overtime pay and to report such work to Respondent, constituted such a manifestation of loyalty to their employer. For all the reasons discussed above, it is found that Respondent violated Section 8(b)(I)(B) by fining Marks and Goldstein for working overtime and for not reporting such work to it. II. THE REMEDY It having been found that Respondent has violated Section 8(b)(1)(B), it will be ordered that it cease and desist therefrom and take appropriate affirmative action, includ- ing the rescission of the fines imposed by it on the instant supervisors. III. CONCLUSIONS 1. Respondent is a labor organization within the meaning of Sections 2(5) and 8(b) of the Act. 2. The Capitol Ventilating Company is an employer engaged in commerce within the meaning of the Act. 3. Herbert Goldstein, Edward Marks, and Nicholas Carola were at all times here material supervisors within the meaning of ,Section 2(11) of the Act and "representa- tives" of The Capitol Ventilating Company within the meaning of Section 8(b)(1)(B) of the Act. 4. By restraining and coercing The Capitol Ventilating Company in the selection of its representatives for the purpose of collective bargaining or the adjustment of grievances, Respondent has engaged-in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 5. Such unfair labor practices affect commerce under Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, there is issued the following recommended: 15 It was agreed at the hearing that the supervisors were regarded by the parties as covered by the trust fund provisions of the contract and that the amounts payable by the Company into such funds for each of them was based on the number of hours worked by each. It was also agreed that Marks was entitled to compensation for overtime work under the contract. With regard to Goldstein, Molin testified that he had always been paid on a salary basis and never received additional compensation for overtime. Respondent professed at the hearing to have had no prior knowledge of this arrangement, but did not dispute Molin's testimony. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER to Respondent, Sheet Metal Workers' International Associ- ation , Local Union No. Forty, AFL-CIO, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Restraining or coercing, or attempting to restrain or coerce, The Capitol Ventilating Company in the selection or retention of its representatives for the purpose of collective bargaining or the adjustment of grievances, by trying and fining or otherwise disciplining Herbert Gold- stein, Edward Marks , and Nicholas Carola or any other supervisor of said employer. (b) In any other manner restraining or coercing said employer in the selection and retention of its representa- tives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Rescind the fines heretofore imposed on Herbert Goldstein , Edward Marks, and Nicholas Carola, expunge all references thereto from its 'records , and notify them in writing that such action has been taken. (b) Post at its office and meeting places in Hartford, Connecticut, copies of the attached notice marked "Ap- pendix." 17 Copies of the notice, on forms provided by the Regional Director for Region 1, after being duly signed by its representative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Forward signed copies of said notice to the Regional Director for posting by The Capitol Ventilating Company, if it being willing, at all locations where notices to employees are customarily posted. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 16 In the event no exceptions are'filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings.. conclusions, and recommended Order herein shall, as provided in Sec. 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. 17 In the event the Board 's Order is enforced by a Judgment of the 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 MEMBERS POSTED BY ORDER. OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce The Capitol Ventilating Company in the selection or retention of its representatives for purposes of collective bargaining or adjustment of grievances, including Herbert Goldstein, Edward Marks, and Nicholas, Carola. ' WE WILL rescind the fines imposed on Herbert Goldstein, Edward Marks, and Nicholas Carola, strike all reference thereto from our records, and notify them in writing of such actions. SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, LOCAL UNION No. FORTY, AFL-CIO (Labor Organization) Dated By (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon, Boston, Massachusetts 14202, Telephone 617-223-3330.