Local No. 1, Elevator Constructors

LOCAL NO. 1, ELEVATOR CONSTRUCTORS 903 Local No. 1, International Union of Elevator Con- structors, AFL-CIO (Westinghouse Electric Cor- poration) and William J. Wahigren, Jr. Case 2-CB-5456 May 24, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 27, 1974, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER performing struck work during a strike. Wahigren chose to cross the picket line to perform rank-and- file work. Since Wahlgren did not yet possess a withdrawal card, the Union correctly considered him a member and fined him. In performing unit work, Wahigren was not in any way acting as an employer representative in the performance of a function statutorily protected from union discipline. Accordingly, for the reasons stated in my dissents and the court decisions cited above, I would not find that the Union's actions violated Section 8(b)(1)(B) of the Act, and I would dismiss the complaint. i Although the Administrative Law Judge recommended that Respon- dent be ordered to cancel the expulsion of Wahigren from its membership, we note that in the Remedy section the Administrative Law Judge inadvertently recommended that Respondent reinstate Wahlgren without requiring him to pay a reinitiation fee As we believe that Wahigren should be reinstated to his withdrawal status, but not to full membership status, we adopt the recommended Order of the Administrative Law Judge but not the aforementioned recommendation ' I note that the Court of Appeals for the District of Columbia Circuit denied enforcement in Illinois Bell for basically the same reasons as stated in my dissent in that case (487 F.2d 1143 (C A D C, 1973)) The Courts of Appeals for the Ninth and Third Circuits have also denied enforcements of Board orders which found violations of Section 8(b)(I)(B) based on the Union's disciplining member-supervisors for crossing a lawful economic picket line (NLRB v San Francisco Typographical Union No 21 [California Newspapers, Inc d/b/a San Rafael Independent Journal], 486 F 2d 1347 (C A 9, 1973), Newspaper Guilt, Erie Newspaper Guild, Local 187, AFL-CIO [Times Publishing Company] v N LR B, 489 F 2d 416 (C.A 3, 1973)) 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, Local No. 1, Interna- tional Union of Elevator Constructors, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. MEMBER FANNING, dissenting: Once again we are confronted with a situation wherein a union has fined a supervisor-member for performance of duties wholly unrelated to his supervisory function. Although a majority of my colleagues again has found that by this action a union coerces and restrains "an employer in selection of his representatives for the purposes of collective bargaining on the adjustment of grievances," I adhere to my position as stated in my dissenting opinions in IBEW, Local 134 (Illinois Bell Telephone Company), 192 NLRB 85, and Local Union No. 2150, IBEW, AFL-CIO (Wisconsin Electric Power Compa- ny), 192 NLRB 77.2 In this case, I fail to understand how the Employer is restrained or coerced in selecting its bargaining or grievance adjustment representatives when the fine was not imposed upon Wahlgren because of his performance of duties related to such functions, but was imposed because of his violation of an unrelated union rule proscribing members of the Union from 210 NLRB No. 158 DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: This is an unfair labor practice case brought under the provisions of Section 10(b) of the National Labor Rela- tions Act, herein called the Act. 29 U.S.C. 160(b). The complaint, issued on November 8, 1973, by the General Counsel of the National Labor Relations Board, herein called the Board, through the Acting Regional Director of the Second Region (New York, New York), names Local No. 1, International Union of Elevator Constructors, AFL-CIO, herein called Local No. I or the Union, as Respondent. That complaint is based on a charge filed on September 20, 1973, by William J. Wahlgren, Jr., the Charging Party.' In substance the complaint avers that Respondent transgressed Section 8(b)(1)(B), and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered admitting some of the allegations of the complaint but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried before me at New York, New York, on December 5, 1973. All parties were represented at and participated in the trial, and had full opportunity to adduce evidence, examine and cross-examine witnesses , file briefs, and argue orally. Short oral arguments were presented at i Westinghouse Electric Corporation , herein called Westinghouse, was permitted to intervene at the trial as a party in interest 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the close of the case. A brief has also been received from the Respondent. This case presents the issue of whether the Union properly expelled Wahlgren from membership and also fined him, a supervisor for Westinghouse, because he performed struck work for Westinghouse, during Respon- dent's strike there. Wahlgren had applied to withdraw his membership in the Union before said strike began but such withdrawal was not approved by the Union until a month and 7 days after it was given to the Union. Upon the entire record in this case, including the facts stipulated by the parties, I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Westinghouse, a Pennsylvania corporation, has an office in New York, New York, and a plant in Newark, New Jersey. During the year preceding the complaint Westing- house at its said plant sold products valued in excess of $50,000 directly to states outside of New Jersey. I find that Westinghouse is an employer within the meaning of Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over this proceeding. II. THE LABOR ORGANIZATION INVOLVED Local No. 1, Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts The facts recited in this section III are taken from admissions in Respondent's answer and the stipulation of the parties. Wahlgren has been employed by Westinghouse for almost 20 years. Until 1972 he had been a member of Respondent, Local No. 1. In February 1972, Westinghouse made Wahlgren a temporary field superintendent and a supervisor within the meaning of Section 2(11) of the Act. The 15 employees he supervised are covered by a collective-bargaining agreement between Westinghouse and Local No. 1. At first he served a probationary period as such supervisor. During his probationary period Wahlgren remained a member in good standing of Local No. 1 and was covered by the foregoing collective- bargaining agreement. In June 1972, Wahlgren completed his foregoing proba- tionary term and became a permanent field superintend- ent. Immediately thereafter he requested a withdrawal card from Local No. 1. It was not issueC to him by the Union until July 31, pursuant to sections 1 and 13 of article XXVII of its constitution and bylaws. (See Resp. Exh. 2. See also Resp . Exh. 3, articles 16 and 19.) About June 30, 1972, Local No. 1 commenced an economic strike against Westinghouse and other employers. Although said strike did not terminate until January 31, 1973, Wahlgren, along with all the other field superintendents, worked during the entire time it continued in effect. They performed emergency repair services on elevators, normally the work of the employees on strike. On February 21, 1973, Wahlgren was advised by Local No. 1 that charges (see G.C. Exh. 3) had been filed against him for performing said work during the aforesaid strike and was informed that on March 17 a hearing before the Union's executive board would be held. (See G.C. Exh. 2.) At said hearing, which was held on March 17, Wahlgren contended orally and in writing that any action taken against him would violate Section 8(b)(1)(B) of the Act. (See G.C. Exh. 4.) Nevertheless Wahlgren was advised on April 9 that he was expelled from the Union. In addition (see G.C. Exh. 5) a fine of $2,000 was imposed on him, and he was apprised he would have to pay a reinitiation fee of $400 to be reinstated. Said $2,000 fine has not yet been paid. Wahlgren appealed this decision to the Union's International (see G.C. Exh. 5) but said appeal has not yet been adjudicated. (See G.C. Exhs. 7 and 8.) The contract between the Union and Westinghouse does not include permanent field superintendents in its cover- age. Also, it was stipulated that (a) field superintendents are supervisors within the meaning of the Act, and (b) had the power, as part of their job functions, to adjust grievances. Section 1 of article XXVII of the Union's constitution and bylaws (see Resp. Exh. 1), expressly provides that "any member who advances his position in the trade to District Superintendent . . . or any other supervisory capacity . . . will be given a withdrawal card within 6 months by the Executive Board ...." B. Concluding Findings and Discussions Notwithstanding the argument of the Union's very able counsel that I follow certain court decisions upholding its position, I am constrained to rule that I am bound by Board decisions on the issue before me until such Board adjudications are expressly rejected by the United States Supreme Court, and that I may not disregard Board decisions inconsistent with court decisions. Accordingly, on the basis of Board adjudications expressly in point I find that the Union's expelling Wahlgren from its member- ship, levying a $2,000 fine on him, and requiring him to pay a reinitiation fee of $400 to be reinstated to such membership constitute "restraining or coercing . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." Such conduct falls within the ambit of Section 8(b)(1)(B) of the Act, and I so find. Admittedly Wahlgren was vested with authority to adjust grievances as a duly appointed representative of Westing- house, i.e., as a permanent field superintendent. And I further find that as such field superintendent, Wahlgren crossed the Union's picket line during its strike at Westinghouse and discharged the work of employees in the unit for which the Union was the duly recognized collective-bargaining representative. In a very recent judgment the Board has reaffirmed its principle "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)(l)(B)." International Union U.A. W. (Pitt Processing Co.) 208 NLRB LOCAL NO. 1, ELEVATOR CONSTRUCTORS 905 No. 107 Cf. Erie Newspaper Guild [Times Publishing Company] v. N.L.R.B., 489 F.2d 416 (C.A. 3, 1973). Such disciplining of a supervisor "would be interference with the performance of duties which an employer has the right to expect from persons while they are acting in a supervisory capacity." Prior Board cases on this branch of the law have announced the foregoing principle and have arrived at the above result. Sheet Metal Workers Local 361 (Langston & Co., Inc.), 195 NLRB 355; Local Union 2150, IBEW, AFL-CIO (Wisconsin Electric Power Company), 192 NLRB 77, 78, and cases cited at 78; IBEW, AFL-CIO, Local 134 (Illinois Bell Telephone Company), 192 NLRB 85, 86; San Francisco Typographical Union No. 21 International Typo- graphical Union, AFL-CIO (California Newspapers, Inc. d/b/a San Rafael Independent Journal), 193 NLRB 319; Newspaper Guild, Erie Newspaper Guild, Local 187, AFL-CIO (Times Publishing Company), 196 NLRB 1121; Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo-Engravers International Union, AFL-CIO (Toledo Blade Co), 175 NLRB 1072, enfd. 437 F.2d 55, 57 (C.A. 6, 1971). The Wisconsin Electric Power Company case, supra, was enforced by the Court of Appeals for the Seventh Circuit, 486 F.2d 602 (1973). On the other hand, the D.C. Circuit Court of Appeals by a divided court (487 F.2d 1143, 1973) reversed the Board in the Illinois Bell Telephone case, supra, and the Ninth Circuit Court of Appeals likewise reversed the Board, in pertinent part, in the California Newspapers case, supra, 486 F.2d 1347(1973). While I recognize that such reversals have been relied on by the Union, I must, and do, follow Board decisions not consonant therewith until such Board adjudications have been overturned by the Supreme Court. As recited above Board decisions upon this branch of the law compel the conclusion that the facts disclosed by the record herein oblige me to rule that the Union has engaged in conduct which transgresses Section 8(b)(1)(B) of the Act. See also N.L.R.B. v New Mexico District Council of Carpenters, and Joiners of America [A.S. Horner, Inc.], 454 F.2d 1116, 1118, 1120 (C.A. 10, 1972). Cf. Plumbing and Steamfitters Local 100, AFL-CIO, (The McCally Co.), 188 NLRB 951; N.L.R B v. Local 361, Sheet Metal Workers, [Langston & Co., Inc.], 477 F.2d 674, 677 (C.A. 5, 1973). Finally, I am of the opinion, and rule, that the Union may not defend levying a fine upon Wahlgren on the ground that such action concerns internal union matters. This is because Section 8(b)(1)(B) of the Act reaches internal disciplinary measures which interfere with an employer's freedom to select supervisory personnel. North- west Publications, 172 NLRB 2173, 2173-74; California Newspaper, Inc., 192 NLRB 523, enforcement denied 486 F.2d 1347 (C.A. 9, 1973). As the Sixth Circuit has said, N. L R. B v. Allis Chalmers Mfg. Co., 388 U.S. 175 (1967), does not call for a contrary result. See Toledo Blade case, 437 F.2d 55 at 57. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activity of Respondent set forth in section III, above, found to constitute an unfair labor practice, occurring in connection with the operations of Westing- house described in section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY As Respondent has been found to have engaged in an unfair labor practice I shall recommend that it be ordered to cease and desist therefrom and that it take specific affirmative action, as set forth below, designed to effectu- ate the policies of the Act. In view of the finding that the Union unlawfully fined Wahlgren, it will be ordered to cancel said fine and expulsion and expunge from its records all reference to such fine and the proceedings relating thereto. Also, the Union will be ordered to reinstate Wahlgren without requiring him to pay a reinitiation fee. Finally, it will be recommended that the Union post appropriate notices. Upon the facts unfolded by the record herein Respon- dent's conduct towards Wahlgren does not in my opinion demonstrate a general disregard of or hostility to the Act, and I so find. Accordingly, I find that a broad remedial order against the Union is not warranted. Instead, I find that it will effect the policies of the Act to enjoin the Union from repeating the type of unfair labor practice con- demned by Section 8(b)(l)(B) of the Act as to any of Westinghouse's supervisors. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Westinghouse is an employer within the meaning of Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. At all times material William J. Wahlgren, Jr., was employed by Westinghouse as a field superintendent and as such was a supervisor and a representative of Westing- house for the purposes of adjusting grievances within the meaning of Section 8(bXIXB) of the Act. 4. Wahlgren, as such supervisor and representative, is one whom Westinghouse is entitled to select, and rely upon, as its representative to adjust grievances within the purview of Section 8(b)(1)(B) of the Act. 5. At all times material Wahlgren has been a member of the Union. 6. By fining (but see Communication Workers v. Jackson, 516 P.2d 529,) Wahlgren and expelling him from its membership for obeying a lawful order of his employer in the regular performance of his duties as a field superintendent the Union restrained and coerced Westing- house, his employer, in the selection of its representative for the purposes of adjusting grievances. 7. By restraining and coercing Westinghouse in the manner set forth in paragraph 6, above, the Union has engaged in an unfair labor practice within the purview of Section 8(bx1)(B) of the Act. 8. The foregoing unfair labor practice affects com- 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 8(b)(1)(B) of the Act, I hereby issue the following recommended: I ORDER Respondent, its officers, agents, representatives, succes- sors, and assigns, shall: 1. Cease and desist from fining, expelling, or otherwise disciplining William J. Wahigren, Jr., or any other supervisor of Westinghouse, as a member of Respondent, for the conduct of any such member in performing work in the employ of Westinghouse while such member is the designated representative of Westinghouse for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Rescind the fine assessed against, and cancel the expulsion from its membership of, William J. Wahlgren, Jr., on April 9, 1973, and expunge from its records all reference to such fine and expulsion and the proceedings relating thereto. (b) Notify Wahigren and Westinghouse in writing that Respondent has taken the action required by paragraph 2(a), above. (c) Post at its business offices, meeting halls, and all other places where notices to members are customarily posted, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be provided by the Regional Director for Region 2, after being signed by a duly authorized representative of Respondent, shall be posted by it 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 ensure that said notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director for Region 2 signed copies of said notice for posting by Westinghouse, if Westinghouse is willing, in places where notices to its employees are customarily posted. Copies of said notice, to be supplied by said Regional Director, after being signed by a duly authorized representative of Respondent, shall be forthwith returned to said Regional Director for transmission by him to Westinghouse. (e) Notify the Regional Director for Region 2, in writing, within 20 days from receipt of this decision what steps have been taken to comply herewith. 1 In the event no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations, the findings, conclusions, recommenda- tions, and recommended Order herein shall, as provided in Section 102.48 ,f said 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 2 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to 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 fine, expel from membership, or otherwise discipline William J. Wahigren, Jr., or any other supervisor of Westinghouse Electric Corporation, as a member of our Union, for the conduct of said William J. Wahlgren, Jr., or any other such member in performing work in the employ of Westinghouse while such member is the designated representative of Westinghouse for the purpose of collective bargaining or the adjustment of grievances. WE WILL expunge from all our records and files all reference to the above mentioned fine and expulsion from membership of WILLIAM J. WAHLGREN, JR., and the proceedings resulting in such fine and expulsion. LOCAL No. 1, INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, 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 concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, 36th Floor, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0306.