Intl. Union; Automobile Wkrs.

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Pitt Processing Co.) and Gary Cooper; Case 6-CB-2583 January 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 11, 1973, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed exceptions, a supporting brief, and an answering brief to the General Counsel's excep- tions. 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 conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. The complaint alleged that Gary Cooper, a former supervisor, on the insistence of Respondent was placed at the bottom of the seniority list, when he returned to rank-and-file status, because he had failed to join a strike while serving as a supervisor, and as a result was laid off on December 29. 1972. The complaint further alleges that by such conduct Respondent violated Section 8(b)(l)(A), (1)(B), and (2) of the Act. The Administrative Law Judge found that the Company had discharged Cooper on the Respon- dent's demand because he had crossed the picket line during a strike. However, he concluded that Respon- dent had thereby violated Section 8(b)(1)(B). but not 8(b)(1)(A) or (2), because at the time of his discharge Cooper was a supervisor. We agree with the Administrative Law Judge's finding as to the motivation of Respondent in demanding that Cooper go to the bottom of the seniority list. We do not agree that at the time of his discharge Cooper was a supervisor. Consequently, we base our finding of violations of the Act on the following rationale. Cooper was hired as a laborer in 1967, was promoted to crew leader in the summer of 1972, and then to afternoon shift foreman during the first week of September 1972, in charge of the zinc ammonium i Coast Delivery Service, Inc, 172 NLRB 2268. 2273. Sealte, i Southern Dairies Division, National Dairy Product., Corporation, 121 NLRB 1277, chloride (ZAC) and stannate departments. Cooper was the only supervisor present on that shift. While he was supervisor, he performed no regular pro- duction work. On December 18, 1972, the Company laid off all the employees in the two departments except Cooper. About December 21, the plant superintendent told Cooper that he would be laid off within 2 weeks because there was no need for a supervisor. Although he retained his foreman title and salary, Cooper's duties thereafter consisted of closing down the ZAC department and assisting a maintenance man in building a chlorinator, a new piece of equipment. It is thus clear that by December 29 Cooper had ceased to be a supervisor, regardless of his title and salary.' By December 29, Cooper no longer had any subordinates and was performing nonsupervisory unit work. It was precisely because of the fact that Cooper was performing unit work that Respondent demanded, that he be displaced by another employee. This change from supervisory to nonsupervisory duties was not temporary. The employees in the ZAC and stannate departments had been permanently laid off. As the plant superintendent had told Cooper, there was no longer going to be any need for a supervisor in the two departments. Previously, when Cooper was a supervisor, he had crossed the Union's picket line and worked during the strike in September 1972. After the strike, Respondent was certified as bargaining representa- tive and commenced negotiations with the Company for a collective-bargaining agreement. However, it was not until April 1, 1973, months after Cooper's discharge, that a collective-bargaining contract be- tween the parties was signed. During the interim period, there was no contract provision in effect governing seniority. Although Cooper had been in the Company's employ longer than other employees, Respondent insisted, in late December, as found by the Administrative Law Judge, that Cooper had no seniority in the unit and that, because he was performing unit work, he should be displaced by an employee with greater senionty. Bowing to the Respondent's threat to strike unless Cooper was replaced, the Company laid him off on December 29 and has not recalled him. As found by the Adminis- trative Law Judge, Respondent was motivated in denying Cooper seniority status and in securing Cooper's displacement by the fact that he had worked during the Union's September strike. This was an impermissible discriminatory reason. As we have found that at the time of his layoff Cooper was not a supervisor, and as he was laid off as a result of the Respondent's demand that he be 1279, Gellman Manufacturing Company. 87 NLRB 292.294 208 NLRB No. 107 INTL. UNION; AUTOMOBILE WKRS. 737 placed at the bottom of the seniority list because of his nonparticipation in a strike--a discriminatory reason, we conclude that Respondent thereby caused, the Company to discriminate against Cooper in violation of Section 8(a)(3), thus violating Section 8(b)(2) and (1)(A) of the Act.2 Section 8(b)(1)(B) provides that it is an unfair labor practice for a labor organization or its agents to restrain or coerce "an employer in the selection of his representatives for the purposes of collective bargain- ing or the adjustment of grievances." The Board has held that penalizing supervisors for crossing a picket line during a strike and performing the work of rank- and-file employees is a violation of Section 8(b)(1)(B) 3 In the Illinois Bell and Wisconsin Electric cases, the penalty consisted of fining the supervisors. Here, it consisted of reducing Cooper's seniority when he returned to rank-and-file status and there- after demanding his discharge. It is not material that at the time the penalty was imposed the supervisor no longer occupied that status. In either case, if the penalty were allowed to stand, there would be interference with the performance of the duties which an employer has the right to expect from persons while they are acting in a supervisory capacity. Knowledge that a supervisor could be penalized in this fashion would clearly interfere with the employer's control over his representative. Accordingly, we find that, by reducing Cooper's seniority standing and thereafter demanding ' his discharge because he had crossed a picket line and worked during a strike while a supervisor, Respon- dent violated Section 8(b)(1)(B) of the Act. TI->;E REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order Respon- dent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent caused the Compa- ny discriminatorily to reduce the seniority of Gary Cooper thus. causing his discharge on December 29, 1972, we shall order Respondent to notify Pitt Processing Co. that it withdraws. its request that Cooper be placed at the bottom of the seniority list for unit employees and that it tag noobjection to the reinstatement of Cooper. We shalt also order Respondent to make Cooper whole for any loss of pay suffered as the result of the discrimination 2 Local 282, International Brotherhood of Tearnttters Chanffenrs, Ware- housemen and .Helpers of America (Lizza and Sons, Inc.A 165 NLRB 997, enfd. 412 F.2d 334 (C.A. 2, 1969), cert. denied 396 U.S. 10388(1910). 3 International Brotherhood of Electrical Workers, AFLrCIO, and Local 134 (Illinois Bell relephone Company), 192 NLRB 85, reversed and remanded 93 LRRM 2582, 71 ; LC 1 13,782 (C.A.D.C, 1973); Local 2150 against him by payment to him of a sum of money equal to the amount he normally would have earned as wages if he had not been'discriminatorily laid off.4 Backpay, if any, shall be computed on a quarterly basis in the manner described in F. W. Woolworth Company, 90 NLRB 289. and with interest thereon at 6 percent per annum computed in the manner set forth in Isis PlumbiAg & Heating Co., 138 NLRB 716. AMENDED CONCLUSION OF LAW Insert the following conclusion of law as paragraph 5, and renumber the present paragraph 5 of the Administrative Law Judge's Conclusions of Law as paragraph 6. "5. By threatening to engage in a work stoppage unless the Company discharged or laid off Gary Cooper, the Respondent, caused the Company to discriminate against Cooper in violation of Section 8(a)(3), thereby violating Section 8(b)(2) and (1)(A) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Pittsburgh, Pennsylvania, its officers, agents; and representatives, shall: 1. Cease and desist from: (a) Restraining and coercing Pitt Processing Co. in the selection and retention of its representatives for the purposes of collective bargaining or the adjust- ment of grievances. (b) Causing or attempting to cause the Company to discriminate against Gary Cooper in violation of Section 8(a)(3) of the Act. (c) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw its request that Gary Cooper be placed at the bottom of the seniority list for rank- and-file unit employees. . International` Brotherhood of Electrical Workers, AFL-CIO (Wisconsin Electric Power Conpany), 192 NLRB 77, enfd. 486 F.2d 602 (C.A. 7, 1973). 4 It is uncertain how long Cooper would have continued waking if Respondent had not insisted on his displacement . This period can be determined in compliance proceedings. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify Pitt Processing Co. that it has no objection to the reemployment of Gary Cooper either as a supervisor or as an employee performing bargaining unit work. (c) Make whole Gary Cooper for any loss of pay suffered as a result of the discrimination against him in the manner set forth in the section of this Decision and Order entitled "The Remedy" (d) Post at its business office and meeting halls copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent 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 notices are not altered, defaced, or covered by any other material. (e) Deliver to the Regional Director for Region 6 signed copies of said notice for posting by Pitt Processing Co., provided the said Company is willing, at its plant involved herein. (f) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. S 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found after a trial that we violated Federal law, we hereby notify our members and all employees employed by Pitt Processing Company that: WE WILL NOT cause or attempt to cause Pitt Processing Co. to discriminate against Gary Cooper in violation of Section 8(aX3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of Pitt Processing Co. in the exercise of their rights to self-organiza- tion, to form, join, or assist unions, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from such activities, except to the extent that such rights may be affected by an agreement requiring union membership as a condition of employment, as authorized by Section 8(a)(3) of the Act. WE WILL notify the above-named Company that we have no objection to the reemployment of Gary Cooper either as a supervisor or as an employee doing bargaining unit work. WE WILL make whole Gary Cooper for any loss of.earnings he may have suffered as a result of our unlawful conduct which caused Pitt Process- ing Co. to discharge or lay off Gary Cooper. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. DECISION STATEMENT OF THE CASE MORTON D.. FRIEDMAN , Administrative Law Judge: Upon a charge filed on January 10, 1973, and an amended charge filed March 14, 1973, by Gary Cooper, an individual, herein called Cooper, the Regional Director for Region 6 of the National Labor Relations Board, herein called the Board, issued a complaint on June 29, 1973, on behalf of the General, Counsel of the Board against International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, herein called the Union or the Respondent, alleging violations of Section 8(b)(lXA), (1)(B), and (2) of the National Labor Relations Act,. as amended (29 U.S.C. Sec. 151, et seq. ), herein called the Act. In its duly filed answer, the Union, while admitting certain allegations of. the complaint , denied the commission of any unfair labor practices. Pursuant to notice, a hearing in this case was held before me at Pittsburgh, Pennsylvania, on July 25, 1973. All parties were represented and were afforded full opportuni- ty to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Oral argument was INTL. UNION ; AUTOMOBILE WKRS. 739 waived. Briefs were filed by counsel for the General Counsel and the Union. Upon consideration of the entire record herein,' and upon my observation of each witness appearing before the, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Pitt Processing Co., herein called the Employer or the Company, a Pennsylvania corporation with its principal offices located in Pittsburgh, Pennsylvania, where it is engaged in the manufacture and nonretail sale of chemical products, during the 12-month period immediately preced- ing the issuance of the complaint herein, a representative period, purchased directly from outside the Common- wealth of Pennsylvania, goods and materials of a value in excess of $50,000 for use at its plant located in McDonald, Pennsylvania, the facility of the Company which is the subject of this proceeding. During this same period, the Company shipped goods of a value in excess of $50,000 from its McDonald, Pennsylvania plant to points directly outside the Commonwealth of Pennsylvania. It is conceded, and I find, that the -Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and Issues The complaint alleges, in substance, that the Union caused the Company to discriminatorily lay off Gary Cooper, a former supervisor and representative of the Employer, for the purpose of the adjustment of grievances, by placing Cooper at the bottom of the seniority list when Cooper returned to the bargaining unit as a rank-and-file employee and that the Union caused this layoff by reason of the fact that Cooper, while a supervisor, failed to join a strike of the employees called by the Union. The Respondent's answer denies the allegations of the complaint pertaining to the unfair labor practices and Respondent asserts as its defense that Cooper was laid off as a supervisor and not as a rank-and-file employee and that the reason for the Union's demand for his layoff was that Cooper at the time of his layoff was performing work belonging to members of the unit who at that time were in layoff status. It further contends that the Employer had agreed not to permit supervisory personnel to perform the work of the unit which the Union represented. Thus the issues are: 1 After the close of the hearing counsel for the General Counsel filed a written motion to make certain corrections in the transcript of the record herein. There being no opposition to said motion , and [ having concluded that the motion has merit, it is hereby ordered that the record herein be corrected as to the matters set forth in the said motion. s From credited, uneontroverted testimony of Cooper and A . B. Horn, also known as "Bud," plant manager of the facility involved. The record 1. Was Cooper a supervisor or a rank-and-file employ- ee at the time of his layoff? 2. Did the Union cause Cooper's layoff because the latter crossed the picket line and failed to join the strike called by the Union? 3. Did the Union by demanding Cooper's layoff for the aforesaid reason thereby restrain and coerce the Company in the selection of iLs representative for the purpose of collective bargaining and the adjustment of grievances in violation of Section 8(b)(IXB) of the Act? 4. Did the Union cause the layoff of Cooper by forcing him to the bottom of the seniority list because while the latter was a supervisor he crossed the picket line and did this constitute a discriminatory discharge - within the meaning of Section 8(aX3) of the Act and did the Respondent thereby violate Sections 8(bXI)(A) and (2) of the Act? B. The Events Cooper was hired as a laborer by the Respondent, a manufacturer of chemicals used in the steel processing industry, on March 7, 1967. Cooper progressed to more responsible jobs and ultimately, at the beginning of September 1972, he was made foreman of the zinc ammonium chloride department, herein referred to as the ZAC department, and the stannate department on the afternoon shift. On that shift, he was the only supervisor present. While he was such supervisor, Cooper performed no regular production work. His duties were to oversee the production in the departments and also to supervise employees who were performing equipment repairs. How- ever, there were times when he had to lend a hand on a physical basis when necessary to perform emergency repairs.2 In August 1972, the Union began an organizational drive among the Respondent's production and maintenance employees. At approximately the middle of September, after Cooper had been appointed a foreman, the Union called the employees out on what was, presumably, an organizational or recognitional strike. Thereafter, the Union filed a petition for representation and the Board conducted an election which the Union won. Thereafter the Union was certified as bargaining representative of a unit of Respondent's production and maintenance employ- ees. Shortly thereafter, probably some time in late September or October 1972, the Union and the Company began negotiations toward a collective -bargaining agree- ment. However, during the strike,3 Cooper remained on the job at the request of the Company. to help bed down the plant for shutdown. In order to do this, he.had to cross the picket line established by the Union. It should be noted that in the election which took place shortly thereafter, Cooper was told not to vote in the election because he was does not reveal Cooper's authority as a representative of the Employer for the purpose of adjustment of grievances . However, as heretofore stated, Cooper was the only management representative in the named departments at the times that he acted as foreman of the afternoon shift. 3 The record does not reveal exactly what date the strike began or what day it ended except that it began sometime about the middle of September. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ineligible. He was told this by George Smith, evidently a union representative among the employees. During negotiations the union representatives demanded that supervisors not be permitted to perform production and maintenance work of the unit. This was contained in the original proposal some time in late September or early October. The final terms of this portion of the bargaining agreement was reached in November 1972. In fact, all of the noneconomic provisions of the agreement were reached before the end of December 1972. The agreement itself, however, was not entered into until April 1, 1973.4 In any event, while • negotiations were going on, the employees of the ZAC and stannate department which Cooper supervised on the afternoon shift, returned to work, evidently at the end of September or beginning of October, and worked until December 18, 1972, when they were laid off. Cooper remained on the job even though the employees whom he supervised were laid off. However, although he retained his title of and salary as foreman, his principal duties after the layoff of the employees whom he supervised, were working closing down the ZAC depart- ment on days, not on the afternoon shift, and assisting, a maintenance. man, Frank Amber, in building a chlorinator, a new piece of equipment. Although Cooper testified that the assisting which he did was actually instructing Amber in the use of fiberglass in construction work and the fitting of plastic pipe, Plant Manager Horn testified that after the layoff of the employees in the ZAC department there was no one remaining to be supervised and, as a result, the work performed by Cooper from the date of the layoff of the ZAC employees until the date that Cooper was laid off, December 29, Cooper performed work which could have been performed by rank-and-file unit employees. Horn, however, further conceded that although Cooper's work was nonsupervisory during the period in question, Cooper retained his title and his salary was not reduced. This, according to'Hom, whom I credit, was due to the fact that the Company had had little experience with unions and'did not realize the import of the assignment of the work that Cooper was doing. Moreover, the Company at that time knew that it only had a few more weeks of work for Cooper, at the most, after the first of the year 1973, and, therefore, did not wish to reduce his salary. Neverthe- less, Horn admitted that he never conveyed to anyone representing the Union or, for that matter, to any employees of the plant including Cooper that Cooper had been returned to rank-and-file status . Thus, I find and conclude that so far as the Union and Cooper himself were concerned, they had no knowledge that Cooper was no longer a supervisor, if, indeed, Cooper was no longer a supervisor. Indeed, Cooper testified, without contradiction, that throughout the period of his employment after the ZAC department layoff he was logging and taking in information as foreman. About December 21, Plant Superintendent Colosi told Cooper that the latter was going to be laid off because there was going to be a change in the stannate department 4 From the uncontroverted testimony of Union Representative Don F. Dornetto. Although A. B. Horn testified that he did attend some of the negotiating sessions, he admitted that his participation was marginal and that most of the negotiating was done by his brother, Richard Horn, the and there would no longer be a need for a supervisor. He further told Cooper that the layoff would be within 2 weeks As a result, on the sameday, Cooper called Richard Horn, brother of A. B. Horn and head of the firm, who promised to keep Cooper on until the chlorinator was finished and on other work until Cooper could get another job. Cooper, in turn, promised to stay until the chlorinator was finished and not accept another job. However, even with this information about Cooper's being laid off, no one in the Company told Cooper that he was no longer a supervisor. Thus matters stood until December 28, 1972. On that day, Cooper was engaged in a conversation in the locker room of the plant with union committeemen John Casey and Roy Downey. Downey and Casey told Cooper in that conversation that he no longer had any seniority and was to be laid off. Downey then left and Casey told Cooper that the latter gambled when he took the foreman's job and would have to pay for it. Cooper then asked Casey if that was in the Union's contract and Casey answered "No, but it's going to be." Casey also said something to the effect "... you didn't go out and stand on the street with the boys, so you're going to be laid off." Later on that day, December 28, Cooper spoke to company head Richard Horn who told Cooper that the Company had more work for him, building a dusting tower to be constructed on the Respondent's plant's premises. Cooper then asked of Richard Horn if the contract, which was not yet completely negotiated, contained a provision that foremen lost their seniority. Horn answered, "No, but you are going to have trouble with the Union." This was in the context of Cooper's telling Horn that Amber was due to be laid off within the week and Cooper offered to stay on as a maintenance man. It was then that Horn told Cooper that the latter would have trouble with the Union. With regard to Cooper's conversation with Casey and Downey on December 28, the two union representatives told Cooper that he was last on the seniority list behind John Hunter, the newest employee. The following morning, December 29, Cooper asked Casey if the latter had spoken to Don F. Dornetto, the union representative, about the contract and seniority. Casey answered in the negative but stated that he had asked an employee of another mill (not the Company's) and the man told him that Cooper would lose his seniority. Cooper said that might have been true in the other man's company's contract but not in Pitt's. Thereafter, in the same conversation, Casey repeated "Well, you didn't stand out in the street with the boys so you're going to be laid off." Later that day, A. B. Horn, also known as Bud Horn, told Cooper that Downey and Casey were going to decide what to do about Cooper. At 3 p.m. Cooper went to Horn's office. Horn told Cooper that the Union, through Casey and Downey, demanded that Cooper be laid off and that the Union would have another man out there the next working day, Tuesday, January 2, 1973, or the Union head of the firm. Thus. A. B. Horn was unable to testify as to any of the details of the negotiations or the date upon which any particular provision was agreed to by the negotiating parties. INTL. UNION; AUTOMOBILE V1tKRS. 741 would call a strike. Cooper was thereupon laid off and has not been recalled.5 During the rather troublesome days between the layoff of the ZAC line and. the ultimate layoff of Cooper on December 29, Smith and Downey had several conversa- tions with A. B. (Bud) Horn. Thus, on December 28, Casey told Horn that Horn would have to lay off Cooper and put the next most senior man to work to take Cooper's place. Casey said thin was so "because he [Cooper] was not on the picket line with the rest of the boys and did not fight for the Union.... " Casey further stated that by reason thereof Cooper would "have ,to go to the end of the line." Horn testified that he presumed this meant that Cooper had lost his seniority. Horn also had a conversation with Downey the same day in the same vein. The name of Carl Manni was brought up as the most senior man to replace Cooper. Horn answered Downey that he would take it under advisement. On the same day "they" also told Horn that Cooper had lost his seniority because he was a foreman. Then, on the following day, Friday, December 29, Casey, in a conversation with Horn, reiterated what he had told Horn the day before. Horn also had a conversation with Downey on December 29, telling the latter that Cooper intended to be in the plant the following Tuesday, January 2, 1973. Downey then told Horn that if Cooper showed up "We will shut down all operations and this time nothing will come down the road." Horn replied "That if Cooper does come he will not be paid." To which Downey answered "That's okay." In the light of these threats, Horn later in the day informed Cooper that December 29 would be his last day' or the Union would go on strike. This is what Horn believed, based on what Downey had told him. On January 2, Carl Manni was called in to take Cooper's place. Manni worked for only I week and left for another job. However, Horn testified that inasmuch as the Company had only about 2 week's work for Manni, he would not have worked much longer in any event. So the Company, in effect, would have terminated his employ- ment. Amber, however, the individual whom Cooper was instructing after layoff of the ZAC department, continued to work through March 1973, building the chlorinator and performing maintenance work which Cooper could have done. The Company laid Amber off at the request of the Union because the Union maintained that Amber was a junior man and they wanted the next most senior qualified man, who had been laid off, to take Amber's place. However, since the operation was financially marginal, the Company did not put on another man until some time later.6 It should be noted, that the agreement which was ultimately reached and signed on April 1, 1973, did contain a clause, article IV, section 3, which, in substance, provides that supervisory personnel shall not perform unit work except in certain specified instances such as emergencies and so forth. However, the seniority provisions of the contract do not provide in any way, nor do they mention, S All of the foregoing from credited testimony of Cooper. Casey testified that he merely told Cooper that the latter could not do unit work as a supervisor, and that was the reason they desired to see him cease such work. From my observation of Cooper and Casey and by reason of the fact that Casey admitted that he "might" have told Horn that one of the reasons the that supervisors returning to rank-and-file employee positions within the bargaining unit are without seniority and are to be placed at the bottom of the seniority list. Thus, it is clear, that no agreement was ever reached on this latter seniority matter, or, if it was indeed ever discussed at the negotiation meetings, it was not adopted by the parties. As noted above, according to the,uncontro- verted testimony of IDornetto, the Union' s business representative, all of the noneconomic terms of the agreement had been reached by December 29, the day that Cooper was laid off. It should also be noted, in connection with the seniority question, Casey and Downey both admitted, in testifying, that it was the position of the.. Union that if Cooper returned to the production and maintenance unit he would have to go to the bottom of the seniority list. This, according to Casey,, is still the Union's position. Addition- ally, in connection with the seniority question, Downey admitted that on the seniority list introduced into evidence by the Union, his name lead the list, and; that his seniority dated from his original hiring date although, for a period of time, some years prior to the events herein, he served as a foreman. However, no one ever discussed the matter of Downey's losing his seniority. Furthermore, Downey admitted that as a committeeman he had attended all of the bargaining sessions or most of them, and that no discussions were ever had with the Company during the contract negotiations regarding' a supervisor's seniority status upon return to the bargaining unit. Downey also testified that although he retained his seniority when he returned to the bargaining unit, this occurred in 1965 or 1966, long before the advent of the Union. Downey further testified, without contradiction, that the way that the seniority question came up was that he and Casey told Cooper that the Union's position was that a salaried foreman could not do unit work and then Cooper wanted to know how to go about getting a union card. Downey then told Cooper if the latter, as a salaried man, returned to the unit, he would have to go to the bottom of the list. Thus, it is established, that Casey and Downey, both committeemen and spokesmen for the Union, told both Horn and Cooper that if Cooper returned to rank-and-file status he would have to go to the bottom of the seniority list. However, as heretofore set forth, no one, including Cooper, ever said that Cooper was returning to rank-and- file unit status. C. Discussion and Concluding Findings Counsel for the General Counsel contends that the Union violated Section 8(bXIXA) and (2) of the Act because the Respondent had caused the Company to place Cooper at the bottom of the seniority list and as a result Cooper had been laid off and that the Respondent's reasons for forcing' the Company to do this were for considerations which were arbitrary, irrelevant, and invidi- ous. According to counsel for the General Counsel, the Union wanted Cooper laid off was that he did not join the picket line, I credit Coopers version. 6 All of the foregoing from uncontroverted testimony of Horn, whom I credit. 742 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD invidious and arbitrary reason was that Cooper had crossed the picket line and that reducing him to a rank- and-file employee and putting him at the bottom of the list would , insure the satisfaction of the Union's desire to see that Cooper did not work regardless of his status , either as a supervisor or a rank-and-file employee. Counsel for the General Counsel further contends that the Respondent violated Section 8(b)(1)(B) of the Act in that it forced the Company to discharge Cooper, in his supervisory capacity, for the reason that Cooper crossed the picket line and that the Respondent thereby placed the Company on notice that a supervisor would have to obey union demands in the future or be faced with some adverse effect on their employment status. Thus, the Union's threatened strike if Cooper was not laid off restrained the Employer in connection with the selection of its supervi- sors, from whom it has the right to expect undivided loyalty. While the theories of the General Counsel, as heretofore outlined, may have validity, if, indeed, Cooper were both a supervisor and a rank-and-file employee, nevertheless, Cooper could not have been employed in both capacities on the date of his discharge and, therefore, he was laid off either from his capacity as a supervisor or as a rank-and- file employee. Thus, counsel for the General Counsel cannot have it both ways. While it is true that Cooper was performing work which would ordinarily have been assigned to members of the Union as unit work, as noted above, there is nothing in the record to show that either Cooper or any representative of the Union was ever told by management that Cooper was no longer a supervisor. In fact, just the opposite is true and Cooper was paid and treated as a supervisor by manage- ment up to and including the day he was laid off. Thus, the record establishes, that the Union, through Casey and Downey, could not have caused discrimination against Cooper within the meaning of Section 8(bX1XA) and (2) of the Act because, in fact, they did not regard Cooper as a rank-and-file employee. While I credit Cooper insofar as his testimony reveals that Casey and Downey undoubtedly told him that if he returned to the rank-and-file employee status he would lose his seniority and be placed on the bottom of the seniority list, and while I also credit A. B. Horn to the same effect, I cannot regard this information imparted by Casey and Downey to Horn and Cooper as anything more than what would happen to Cooper if, as, and when he returned to the bargaining unit as a rank-and- file employee. However, so far as any of these individuals ever knew, with the possible exception of Plant Manager Horn, Cooper never became a rank-and-file employee. The mere threat that if he did become a rank-and-file employee he would be placed on the bottom of the seniority list had no bearing on the alleged violation because,.in fact, Section 8(bx1XA) and (2) apply only to unlawful discharges or coercion with regard to employees and not supervisors. Accordingly, I shall order dismissed those portions of the complaint which allege that the Respondent violated Section 8(bx1)(A) and (2) of the Act. What is left of the complaint allegations is the charge that the Respondent violated Section 8(bXIXB) of the Act by causing the Company to discharge Cooper, a supervisor; because the latter failed to join the strike that was called by the Union in September 1972. The Respondent argues that Cooper, being a supervisor and performing work belonging to members of the unit, was violating the terms of the legitimate bargaining agreement between the Company and the Respondent and that all Casey and Downey and the Union were attempting to have the Company do was to live up to the terms of4hat agreement. Respondent further argues that it did not request Cooper's layoff or discharge but merely that Cooper cease doing unit work . Presuma- bly, therefore, the Union would further argue that if there was no other work but unit work for Cooper to do , and the Company therefore laid hire off upon the request of the Union not to have Cooper perform unit work , the resulting layoff was merely incidental and not the result of a demand by the Union to interfere with the choice of the Company's representative within the meaning of Section 8(b)(IXB) of the Act. I do not find merit in this defense of the Respondent. It is true that the ultimate contract entered into between the Company and the Union on April 1 does contain a clause which prohibits the Company from assigning unit work to supervisors except in emergency situations. Additionally, it is equally true, if the testimony of Union Representative Dornetto is accepted , that at the time that Cooper was laid off all of the noneconomic provisions of the contract, including the one concerning supervisory employees doing unit work, were agreed upon by the parties.- Also, Dornetto testified, without contradiction, that as of December 29 and before that date , the Company and Union were operating under whatever had been agreed to up to that point. Moreover, it cannot be denied that the Union had a legitimate interest in prohibiting supervisors. from doing unit work. both as a general proposition and by reason of the agreed-upon clause which was later included in the April 1 collective -bargaining agreement. Thus, at first blush, it would seem that the proffered defense of the Union that it only desired and requested that Cooper, a supervisor, not do unit work, has acceptability and that this was the sole basis and constituted the only reason for the Union's request, through committeemen Casey and Downey, to have Cooper immediately stop performing the work he was assigned to after the layoff of the ZAC line. However, to accept the foregoing as a complete defense would necessi- tate brushing aside other very significant evidence. As set forth heretofore, on December 28, Casey told Bud Horn that Horn would have to lay off Cooper and put the next most senior man to work to take Cooper's place. Casey said this was "because he [Cooper] was not on the picket line with the rest of the boys and did not fight for the Union...: . I have heretofore credited this testimony of Horn over the denial of Casey because I concluded that Casey equivocated to a certain extent when asked if he made this statement. Casey finally admitted that he "might have" mentioned to Horn the fact that Cooper did not participate in the September 1972 strike . Additionally, Cooper credibly testified that both on December 28 and 29 in conversations with Casey and Downey, Casey also stated to Cooper that he was`to be laid off and said something to the effect ". . . you didn 't go out and stand INTL. UNION; AUTOMOBILE WKRS. on the street with the boys, so you're going to be laid off." Thus, Casey, on at least three different occasions on December 28 and 29, mentioned the fact that Cooper had to be laid off because he did not support the Union 's strike. Additionally, on December 29, according to Horn's credited testimony, Downey told him that if Cooper showed up for work on the following Tuesday morning, January 2, 1973, "we will shut down all operations and this time nothing will come down the road ." It should be noted, that Downey, who testified after Horn testified, did not deny this statement. Downey did not modify this statement when he made it to Horn and did not add that if Cooper came to work on the following Tuesday and performed unit work there would be a strike. He stopped short of this, and merely indicated very strongly to Horn that if Cooper showed up at all there would be a strike . Moreover, Casey admitted on cross-examination that he told Bud Horn that if Cooper came to work on Tuesday, January 2, "it was going to be a long, cold winter." Again, Casey did not state that if Cooper came to work and performed unit work it was,going to be a long, cold winter, but merely that if Cooper showed up at all the threat of a strike would become reality. Finally, I cannot ignore the animosity displayed by Casey and Downey in informing Cooper that the latter could not become a rank-and-file employee without dropping to the bottom of the seniority list. I have heretofore refused to find that this was a violation because Cooper, in fact, never changed his status and remained a supervisor until his layoff . Nevertheless, these statements do reveal the true purpose of Casey and Downey in forcing the Company's hand which resulted in Cooper's layoff. This is so because there never was any agreement between the Union and the Company to disregard the accumulated seniority of supervisors and to place supervisors returning to the bargaining unit at the bottom of the seniority list. Significantly, although not recited above, when Casey first told Cooper that if he returned to the bargaining unit he would go to the bottom of the list, Cooper asked Casey if this was in the agreement . Casey admitted that it was not, but "the boys decided on it." I consider this tactic on the part of the Union to be a demonstration of the Union's true purpose in urging Cooper's layoff. It had the purpose of disciplinary action against Cooper for not having joined the September union picket line. By reason of all of the foregoing, I find and conclude that the Union, through its representatives, committeemen Casey and Downey, forced the Company upon threat of strike to lay off or discharge Cooper, not because Cooper was performing unit work, but because Cooper, although a supervisor, failed to support the Union in its September 1972 strike and crossed the picket line during that period. The Board has long held that internal union discipline imposed on a supervisor member for doing unit work during a strike restrained an employer in the selection of its collective-bargaining representative.? As the General Counsel contends, the instant case presents an even stronger situation for a finding of violation. The Union here did not merely fine a member, it 7 International Brotherhood of Electrical Workers, AFL-CIO, and Local 134 (Illinois Bell Telephone Company), 192 NLRB 85. 743 caused the termination of employment of a nonmember because he refused to join the strike and it did so for the nonmember's action taken while he was a supervisor. Such pressure cannot help but influence the supervisor's per- formance of his duty to his Employer. Nor is this merely an internal union matter since the pressure as demonstrated by the activity of Casey and Downey was directed at the Company as well as a& Cooper. Thus, the Union's action did, in fact, have the effect of restraining and coercing Pitt Processing Company, an employer, in the selection, of its representative for the purpose of collective bargaining or the adjustment of grievances, and such action is violative of Section 8(b)(IXB) of the Act. The record sheds little light on Cooper's duties and authority as a foreman and there is no direct testimony that Cooper had any responsibility for representing the Company in collective bargaining or the adjustment of grievances. However, the record does show, through the uncontested testimony of Cooper and Horn, that as the foreman of the ZAC department and the stannate department on the afternoon shift, Cooper was the only supervisor or representative of management present in those departments during that time . Nor does the Respon- dent deny that Cooper was a supervisor. In fact, the Respondent urges that at all times Cooper was such supervisor. Because Cooper was the only supervisor present in the two departments on the afternoon shift, there was no one else to whom the employees could bring their grievances. Thus, inherent in the range of supervisory responsibilities such as Cooper would have had to have was the authority to adjust complaints and grievances that employees in those departments on that shift might have had regarding matters pertaining to the work and job conditions.8 Accordingly, I find and conclude that Cooper was the Company's representative for the purposes of adjustment of grievances on the afternoon shift in those departments. His layoff at the behest of the Union, therefore, interfered, as noted above, with the Company's choice of representative, clearly a violation of Section 8(b)(IXB) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Company's operations described in section 1, above , have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it is recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent restrained and coerced the Company to discharge Gary- Cooper as a " See Local Union No. 101, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Fruehauf-Fischbach Automation), 191 NLRB 577. 744 DECISIONS OF NATIONAL foreman, I shall recommend that the Respondent , through its officials, notify the Company that it has no objection to the Company hiring Cooper in the capacity formerly held by him. I shall further recommend that the Respondent make Cooper whole for any loss of earnings he may have suffered as a result of the unlawful conduct found herein. The backpay, if any, shall be computed on a quarterly basis in the manner described in F. W. Woolworth Company, 90 NLRB 289, and with interest thereon at 6 percent per -annum computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.9 CONCLUSIONS OF LAW 1. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. Pitt Processing Company is an employer within the meaning of Section 2(2) of the Act, engaged in commerce 9 Although the record herein contains some indication as to the length of time that the individual who replaced Cooper remained in the employ of the Respondent. and the record also indicates that the period Cooper would have worked had the Respondent not taken the unlawful action against him would have been of short duration, I nevertheless make no finding with LABOR RELATIONS BOARD or in industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. The position of foreman of the ZAC department and stannate department of the Company is and was a supervisory position within the meaning of Section 2(11) of the Act and Gary Cooper, the occupant of said position, was a representative of the Company for the. purposes of collective bargaining or the adjustment of grievances within the meaning of Section 8(b)(IXB) of the Act. 4. By threatening to engage in a work stoppage unless the Company discharged or laid off Supervisor Gary Cooper, the Respondent coerced and restrained the Company within the meaning of Section 8(bXIXB) 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 Acct. [Recommended Order omitted from publication.] regard thereto. The determination of the exact time that Cooper would have worked and the amount he would have earned is left to the compliance stage of the proceeding and is not cognizable at this stage of the proceedings.