Local 333, I.L.A. (moranila Oil Tankers, Inc.)

LOCAL 333, I.L.A. Local 333, United Marine Division, I.L.A., AFL-CIO (Morania Oil Tankers, Inc.) and Joseph J. McConnell. Case 2-CB-6485 November 10, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On July 6, 1977, Administrative Law Judge Abraham Frank issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed with the Board its brief to the Administrative Law Judge. 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 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 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, as modified below, and hereby orders that the Respon- dent, Local 333, United Marine Division, AFL-CIO, New York, New York, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as modified herein: Substitute the following for paragraph 2(b): "(b) Make Joseph McConnell whole for any and all losses he may have suffered as a consequence of the fine and suspension from membership imposed upon him by Respondent with interest in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).)" We hereby deny Respondent's motion for oral argument as the record and briefs adequately set forth the issues and the positions of the parties. 2 While we have noted the Administrative Law Judge's extensive discussion of Union's disciplining supervisor-members for crossing picket lines, we do not rely on that discussion inasmuch as it is inapposite to the facts in this case. DECISION ABRAHAM FRANK, Administrative Law Judge: The charge in this case was filed on December 2, 1976,1 and the 233 NLRB No. 62 complaint, alleging a violation of Section 8(bX I)(1)(B), issued on January 10, 1977. The hearing was held on March 17, 1977, at New York, New York. The General Counsel and Respondent have filed briefs, which have been duly considered. 2 Morania Oil Tankers, hereinafter called the Employer, is a New York corporation, with its principal office in the city of New York and a shipyard in Staten Island, New York. The answer admits, and I find, that the Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, as alleged in the complaint. Respondent, hereinafter called the Union, is a labor organization within the meaning of the Act. The issue in this case is whether the Union unlawfully fined Joseph J. McConnell and suspended him from membership in the Union for 6 months in violation of Section 8(b)( )(B) of the Act. McConnell, a member of the Union at all times material to this proceeding, was appointed by the Employer and functioned as captain of the power tank vessel, Morania 300, from April until he was relieved from duty in October. Prior to that time he had been the alternate captain for approximately 3 years. In addition to himself, his crew consisted of two able-bodied seamen, two ordinary seamen, an engineer, and a cook. All employees are represented by the Union and the captain is included under the wage rate schedule of the Union's contract. The contract also contains a union-security provision, provid- ing for a union shop, including maintenance of member- ship in good standing as a condition of employment. With respect to the captain's authority over the crew, the record shows that he is responsible for the maintenance of the vessel and for pumping and discharging the cargo, consisting of oil, bituminous, and related products. The captain lays out the work to be done by the seamen. He assigns crewmen to their shifts and is authorized to fire a crewman found intoxicated on watch. Responding to weather conditions, the captain has the authority to decide whether to change course or to remain in dock. He may also turn the vessel around and put into port in the event of an emergency, such as the illness of a crewman. The Company relies entirely on the judgment of the captain with respect to the ability of a new employee to perform his duties. The captain keeps the log of the ship and is responsible to run the vessel and take care of its maintenance, upkeep, and cleanliness. He does not participate in the negotiations of union contracts and is not a member of any adjustment committee for the resolution of formal grievances. However, he has authority to and does adjust grievances at the informal crew level, including grievances resulting from the exercise of his supervisory All dates are in 1976 unless otherwise indicated. 2 Certain errors in the transcript are hereby noted and corrected. General Counsel's motion to enlarge the transcnpt or, in the alternative, to reopen the record to reflect a colloquy between counsel for the General Counsel and Fred Nelson, assistant to the Employer's vice president in charge of repairs and personnel, to the effect that an officer of Respondent called Nelson after Nelson had heard that McConnell had been suspended and fined and told Nelson that Morania had to let McConnell go for 6 months. is denied, as the record contains sufficient evidence, set forth below, that Respondent is responsible for McConnell's subsequent loss of employment following his fine and suspension by Respondent. 387 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duties, when brought to his attention by employees or a union delegate. On the basis of the foregoing, I find that McConnell, while functioning as captain of the Morania 300, was a supervisor within the meaning of Section 2(1 1) of the Act. I also find that in the performance of his duties as captain he was the representative of the Employer for the purpose of adjusting grievances within the meaning of Section 8(b)( )(B) of the Act. Sometime in June, Joseph Young, a union delegate, boarded the Morania 300, checked cards, and in the course of his conversation with members of the crew asked if there were any problems. Ordinary seaman Lane responded that ordinary seaman Joseph O'Brien had grievances concern- ing Captain McConnell's treatment of O'Brien. Lane told Young that the captain was "shittin all over him [O'Brien] because he [O'Brien] ain't got balls enough to stand up to him [Captain McConnell]." Lane also told Young that the captain had refused to pay O'Brien overtime for painting after hours. Young confronted McConnell with respect to O'Brien's grievances. The matter was quickly resolved. McConnell agreed to pay O'Brien the overtime due O'Brien. McCon- nell also agreed to cease requiring O'Brien to work overtime and to cease "picking" on O'Brien. Young left, after telling McConnell that McConnell could be brought up on charges. Thereafter, on June 30, O'Brien filed intraunion charges against McConnell, alleging that McConnell had harassed O'Brien and had required O'Brien to chip and paint after 5 p.m. on weekdays and Saturdays and Sundays. 3 By letter dated July 20, the Union notified McConnell that such charges had been filed and that the matter would be considered by the Union's executive board on August 3. McConnell attended that meeting. He denied the charge of harassment and stated that he had ceased requiring overtime work in contravention of the contract. The executive board referred the matter to a trial committee. On September 20, after hearing the charges against McConnell, the trial committee recommended a fine of $1,000 and suspension for 6 months from the Union. McConnell did not attend the trial. On or about October 6, the Union's membership approved the recommendation of the trial committee. Thereafter, at Waterford, New York, enroute to Syra- cuse, Pete Gale, a union delegate, boarded the Morania 300 and notified McConnell that he had been suspended for 6 months and fined $1,000. McConnell stopped working when the vessel arrived at Syracuse and another delegate came on board and told McConnell that the delegate had been sent by the Company to relieve McConnell. Early in November and again in December McConnell visited the union hall. On the first occasion McConnell spoke privately to President Joe O'Hare. O'Hare told McConnell there was nothing McConnell could do to be reinstated. McConnell testified "I asked him [O'Hare] about working for an oil company that wasn't connected with the local union and he [O'Hare] told me that I couldn't work for any companies, union or non-union, that if I did I would be put I Art. 1, sec. 36. of the contract provides that there shall be "no painting, chipping. scraping, or cleaning of paint or polishing brass except in the out of the union for good." In December McConnell appeared before Respondent's executive board and again requested reinstatement. With O'Hare present, the execu- tive board denied McConnell's request. Contrary to Respondent's contention in its brief, I find that Respondent is responsible for McConnell's loss of employment with the Employer as well as employment opportunities with other companies. Respondent must bear responsibility for the conduct of its agents and cannot claim in these circumstances that there was no nexus between McConnell's fine and suspension and the fact that he stopped working for the Employer. O'Hare's threat was clear and direct. If McConnell attempted to work during his 6-month period of suspension he would lose forever his union membership. This applied not only to the Employer, but to all other companies. McConnell was thus faced with a choice: Yield to Respondent's punishment by not working or give up all future job opportunities and benefits derived from membership in Respondent. In effect, as applied by O'Hare, Respondent's 6-month suspension of McConnell amounted to a constructive suspension from gainful employment for that period of time. There is considerable evidence in the record as to the nature of O'Brien's grievances, particularly with respect to harassment. Thus, it appears that McConnell regularly assigned to O'Brien the chipping and painting of the deck. The deck is also the top of the cargo tanks and these tanks at times contain hot asphalt heated to approximately 300 degrees. As described by able seaman Forsythe, who was also required to perform this unpleasant duty: "The steel is so hot if your skin touches it you can burn. The perspiration turns to steam when it hits the deck. When you chip a deck like that the particles of rust and steel will cling to the perspiration on your face and arms and sting like insect bites." O'Brien testified that he was required to perform this duty every day when he was on watch for 6 hours, sometimes when the weather was 104 degrees. O'Brien was also required to open and close various valves in the pumproom and change the pump strainer on the ballast pump. The pumproom is adjacent to the cargo tanks and can be as hot as 340 degrees. According to O'Brien, McConnell became hostile to O'Brien when McConnell learned that O'Brien had a small pension from the U.S. Navy. McConnell called O'Brien stupid and incompetent and threatened to run O'Brien off the boat one way or another. McConnell used abusive language toward O'Brien virtually every day and frequently told O'Brien he was "no fucking good." The record also shows that the Company regarded McConnell as a highly qualified captain. The quality of his work with respect to running the boat, steering the boat, upkeep, and maintenance was very good. McConnell had no damages in steering the boat for a great number of years. During the last year when he became captain the maintenance on the vessel improved a great deal. The crewmembers did a very good job in chipping and painting the deck. galley" between the hours of 5 p.m. and 8 a.m. on weekdays and no such work on Saturdays, Sundays, or holidays. 388 LOCAL 333, I.L.A. Conclusions As the Supreme Court pointed out in Florida Power & Light Co. v. International Brotherhood of Electrical Workers, Local 641, 417 U.S. 790 (1974), Section 8(b)(1XB) is not a blanket prohibition against any and all union discipline of its members, who are also supervisors. That section of the Act is violated only when the discipline "may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer of the employer." While assuming, without deciding, that the Board's decision in San Francisco-Oakland Mailers' Union No. 18 (Northwest Publi- cations, Inc.), 172 NLRB 2173 (1968), fell "within the outer limits of the above test," the Court ruled only that a union did not violate Section 8(b)(l)(B) when it disciplined supervisor-members who "crossed union picket lines during an economic strike to engage in rank-and-file struck work." The Court left to the Board the task of applying the Court's test to subsequent cases. With respect to those cases holding that a union violates Section 8(b)(l)(B) when it disciplines a supervisor-member because of his interpretation or misinterpretation of a collective-bargaining agreement, the Board since Florida Power adheres to its decision in Oakland Mailers.4 The Board also adheres to established Board and court decisions that a union violates Section 8(b)(1)(B) when it disciplines or threatens to discipline a supervisor-member because of the manner of his performance of his superviso- ry duties. 5 The Board, however, is divided in that narrow area of the law, which the Supreme Court ruled upon, but did not definitely decide in Florida Power. The difference relates to the question whether and to what extent, if at all, there is an adverse impact upon the supervisor's grievance adjust- ment function when he is disciplined by his union for crossing a picket line to perform rank-and-file and supervisory work or just supervisory work. The majority rule is that a union violates Section 8(b)(1)(B) when it disciplines a supervisor-member who crosses a picket line to perform his normal duties, including more than a minimal amount of time as a supervisor, during a strike.6 Applying the principles of the above cases to the facts in the instant case, it would seem fairly obvious that Respondent Union has violated Section 8(b)(l)(B). McConnell was fined and suspended because Respondent 4 Teamsters Local No. 524, International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America (Yakima Count) Beverage Company and Chaney Beverage Company). 212 NLRB 908 (1974). and cases cited therein. s Columbia Typographical Union No. 101. International Typographi, al Union of North America, AFL-CIO (The Washington Post Company), 207 NLRB 831 (1973); 220 NLRB 1173 (1975); Columbia Typographical Union No. 101. International Typographical Union of North America, AFL CIO (The Washington Post Companyu and Washington Publisher's Association), 207 NLRB 841 (1973): 220 NLRB 1177 (1975). See also Dallas Mailers Union. Local No. 143, etc., 181 NLRB 286 (1970), enfd. 445 F.2d 730 (C.A.D.C.. 1971); Sheet Metal Workers International Association. Local No. 71, AFL CIO (H. J. Otten Company). 193 NLRB 23 (1971): Sheet Metal Workers Union, Local 49, AFL CIO (General Metal Products. Inc.), 178 NLRB 139 (1969), enfd. 430 F.2d 1348 (C.A. 10. 1970). 6 Local 322, Laborers' International Union of North America. AFL CIO (Kingsley Drilling and Blasting. Inc.). 229 NLRB 949 (1977) (Members Jenkins, Murphy. and Walther), citing Wisconsin River Valley District Union found that his application or misapplication of the collective-bargaining agreement and his supervisory treat- ment of fellow-member O'Brien violated McConnell's obligations as a union member. Clearly, the discipline meted out to McConnell, unless remedied, would substan- tially impair his ability to function independently as his Employer's sole representative in the adjustment of grievances. Aware that he was subject at all times to his crewmembers' intraunion charges of mistreatment and Respondent Union's unilateral power to decide that such charges had merit, McConnell and captains similarly situated would be unlikely to adjust any grievance or to engage in any supervisory act that might evoke the disapproval of Respondent Union. This is precisely the type of conduct proscribed by Congress. In his capacity as a supervisor with the authority to adjust grievances, an employer's representative, whether a member of a union or not, acts only for his employer. It is no defense to assert, as Respondent does, that McCon- nell was not exercising his supervisory authority because he had a personal vendetta against O'Brien. In industry, as in military and semimilitary organizations, supervisors or officers may be good, bad, or indifferent. They may take a sincere and fatherly interest in their supervisees or they may be tyrants exercising the authority entrusted to them in a dictatorial manner. Whatever their personality and however crude or unreasonable their supervisory behavior, as agents of the employer, their conduct is conduct of the employer, for which the employer is responsible. If such an agent merits discipline, suspension, or discharge, it is for the employer, and the employer alone, to make that judgment. Congress made no distinction at all between desirable and undesirable behavior of a grievance adjuster. The sole concern of Congress was to eliminate completely a union's power to restrain and coerce an employer in the selection of such a representative. In effectuating that concern the Board and the courts have made it clear, as indicated above, that a union cannot directly or indirectly subject a grievance adjuster to union rules for the purpose of affecting his decisions in that capacity. Respondent and its member-grievants, O'Brien and Forsythe, who also complained of unfair treatment by McConnell, had a forum to seek redress of their grievances, if merited. Their contract contains a complete and binding grievance-arbitration procedure under which Respondent's members are fully and adequately protected from unfair Council of the United Brotherhood of Carpenters and Joiners ofA merica, A FL- ClO (Skippy Enterprises), 218 NLRB 1063 (1975). Member Penello, sometimes concumng and sometimes dissenting, holds that a union may lawfully discipline a supervisor-member who crosses a picket line to perform more than a minimal amount of rank-and-file work during a strike. The Newspaper Guild Erie Newspaper Guild Local 187, AFL- CIO (Times Publishing Company), 222 NLRB 760 (1976) (see fn. 5 and cases cited therein). Chairman Fanning has taken the dissenting view that a union may fine or otherwise discipline a supervisor-member for crossing a picket line without regard to the nature of his duties performed during the strike Ne. York Typographical Union No. 6, International Typographical Union, AFL CIO (Daily Racing Form, a subsidiary of Triangle Publications Inc.), 216 NLRB 896 (1975)., dissenting opinion at 897; see also his concurnng opinion in Times Publishing Co., supra, and cases cited therein. Chairman Fanning's view has been upheld by the Court of Appeals for the Second Circuit in American Broadcasting Companies, et al v. N. LR.B. 547 F.2d 159 (C.A. 2, 1976), denying enforcement of 217 NLRB 957 (1975). 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD harassment or contract violations by the Employer and its agents, including McConnell. Yet Forsythe testified that it did not occur to him to handle his grievance through those channels. I find, as alleged in the complaint, that Respondent Union, by fining McConnell $1,000 and suspending him from membership in Respondent Union for 6 months for reasons relating to his application or misapplication of Respondent Union's collective-bargaining agreement and his supervisory conduct toward a fellow member of Respondent Union, violated Section 8(b)(XI)(B) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The Respondent, Local 333, United Marine Division, AFL-CIO, New York, New York, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Fining, suspending, or otherwise disciplining captains or supervisors of Morania Oil Tankers, Inc., for the purpose of restraining and coercing that Company in the selection of representatives for the purpose of collective- bargaining or adjustment of grievances. (b) In any like or related manner restraining and coercing Morania Oil Tankers, Inc., for the above purpose in lieu of using the grievance-arbitration procedure for the adjustment of disputes provided in the collective-bargain- ing agreement between Respondent and Morania Oil Tankers, Inc. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Rescind and expunge from its files all records of the fine and 6 months' suspension from membership imposed upon Joseph McConnell, restore him to full membership in good standing with all the rights and privileges due him, and notify him in writing that his membership has been so restored and that all references to his fine and suspension have been expunged from Respondent's records. (b) Make Joseph McConnell whole for any and all losses he may have suffered as a consequence of the fine and suspension from membership imposed upon him by Respondent with interest at 6 percent in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) Post at its business office, union hall, and all places where it customarily posts notices to members, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 2, shall be signed by an authorized representative of the Respondent Union, and shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7 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. I 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 WE WILL NOT fine, suspend, or otherwise discipline captains or supervisors of Morania Oil Tankers, Inc., for the purpose of restraining or coercing that Compa- ny in the selection of representatives for the purpose of collective-bargaining or adjustment of grievances. WE WILL NOT in any like or related manner restrain and coerce Morania Oil Tankers, Inc., for the above purpose in lieu of using the grievance-arbitration procedure for the adjustment of disputes provided in the collective-bargaining agreement between Respon- dent and Morania Oil Tankers, Inc. WE WILL rescind and expunge from our files all records of the fine and suspension from membership imposed upon Joseph McConnell and WE WILL notify him in writing that he has been restored to full membership in good standing with us with all the rights and privileges due him, and that all references to his fine and suspension have been expunged from our records. WE WILL make Joseph McConnell whole with interest for any and all losses he may have suffered as a consequence of the fine and suspension from member- ship we unlawfully imposed upon him. LOCAL 333, UNITED MARINE DIVISION, I.L.A., AFL-CIO 390