United Brotherhood of Carpenters Local Union No. 14

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters & Joiners of America, Local Union No. 14, AFL-CIO (Max M. Kaplan Properties) and Arthur J. Bradshaw. Case 23-CB-1495 March 31, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, KENNEDY, AND PENELLO On June 14, 1974, Administrative Law Judge Samuel M. Singer issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, only to the extent consistent here- with. The Administrative Law Judge found, and we agree, that the Charging Party, Bradshaw, was a supervisor within the meaning of the Act during the relevant period. The record shows that Bradshaw was hired as foreman of the Employer's "tenant finishing" carpen- ter crew; he oversees the work of contractors perform- ing various tasks for the Employer by scheduling and coordinating their operations; he is on a guaranteed monthly salary and earns 15 percent more pay than the hourly paid carpenters; he assigns work; he is not paid for overtime work; he has hired employees for his crew; he selects men for layoff; he has reprimanded and fired crewmembers; and he selects men to perform overtime. While the record also indicates that Bradshaw per- forms some routine tasks, as well as spending about 50 percent of his working hours performing rank-an -file work, we find that Bradshaw possesses sufficient in- dicia of supervisory authority to qualify him as a super- visor within the meaning of the'Act. We also agree with the Administrative Law Judge's conclusion that Bradshaw was an employer representa- tive within the intent of Section 8(b)(1)(B), notwith- standing the fact that the record failed to establish that Bradshaw was actually vested with authority to act for his employer in collective bargaining or the adjustment of grievances. This conclusion follows by virtue of our rule that persons who are supervisors within the mean- ing of the Act are employer representatives within the meaning of Section 8(b)(1)(B).1 The Administrative Law Judge also rejected the Re- spondent's contention that no violation of Section 8(b)(1)(B) resulted from its imposition of the fine in the i Operating Engineers, Local No. 501 (AnheuserBusch, Inc.), 199 NLRB 551 (1972), Rochester Musicians Association Local 66 affiliated with the American Federation of Musicians (Civic Music Association), 207 NLRB 647 (1973), instant case because the fine had nothing to do with Bradshaw's supervisory functions. We agree with this conclusion. We recognize that a union's discipline of a supervisor-member falls outside the proscription of Section 8(b)(1)(B) where the offense occasioning the discipline involves a matter purely of internal union administration, unrelated, either directly or indirectly, to any dispute between the union and the employer.' This rule results in the finding of no viola- tion where, for instance, a supervisor-member is disci- plined for failing to pay his union dues or for disturbing a union meeting. The facts of the instant case, however, do not fall within this category. As found by the Ad- ministrative Law Judge herein, "[t]he fine imposed upon Bradshaw [working without a steward] stems from the fact that he continued to work on a 'nonunion' job, i.e., for an employer (Kaplan) who refused to sign a collective agreement with the Respondent-an of- fense involving more than a `matter of purely internal union administration."' On the basis of the previous findings the Administra- tive Law Judge concluded that Respondent's fining of Bradshaw for working without a steward violated Sec- tion 8(b)(1)(B). We do not agree that Respondent has violated Section 8(b)(1)(B) notwithstanding our previ- ous discussion. This follows from our Bakery and Con- fectionery Workers International Union ofAmerica, Lo- cal Unions 24 and 119 (Food Employers Council, Inc.), decision, 216 NLRB No. 150 (1975), wherein we held that no violation would result, regardless of the union's motivation, where a supervisor-member is disciplined after he has engaged in more than a minimal3 amount of rank-and-file work during a strike.4 While the re- cord in the instant case is unclear on the exact propor- tion of unit work performed by Bradshaw during the relevant period, it does reveal that he customarily spent half of his time performing bargaining unit work. This latter fact, when coupled with the evidence that two carpenters from his crew did not show up at work after Bradshaw had been informed by the Respondent that he would have to leave the job or face charges, con- vinces us that Bradshaw continued to spend at least 50 2 This conclusion does not conflict with the spirit of our Chicago Typo- graphical Union No 16 (Hammond Publishers, Inc) decision, 216 NLRB No. 149 (1957). This follows, regardless of the fact that no emphasis is placed on the nature of the work performed by the supervisor-member, because it is not reasonably likely, in conformity with Hammond, that an adverse effect will carry over to the supervisor's performance of-, his 8(b)(1)(B) duties where he is disciplined for violating an internal union rule in a context unrelated to a dispute between the union and the employer 3 In Food Employers Council the disciplined supervisor-members spent at least 50 percent of their time during the strike performing bargaining unit work 4 That the instant case concerns what amounted to a recognitional strike without a picket line, instead of an economic strike with a picket line is of no consequence since, in either case, there exists an overriding employer- union dispute. 217 NLRB No. 13 UNITED BROTHERHOOD OF CARPENTERS LOCAL UNION NO. 14 percent of his working time performing bargaining unit work during the relevant period,' Therefore, since Bradshaw spent at least half his working time performing bargaining unit work during the period for which he was disciplined, we find that Respondent has not violated Section 8(b)(1)(B) by dis- ciplining Bradshaw. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER FANNING, concurring in part: I agree with my colleagues of the majority only inso- far as they dismiss the complaint. Although the Administrative Law Judge agreed with the Respondent's position that there is no evidence in the record that Bradshaw was vested with authority to act for his employer in collective-bargaining or adjust- ing of grievances, he found that Bradshaw was an em- ployer representative within the intent of Section 8(b)(1)(B). However, I find merit in the Respondent's exceptions. The record shows that Bradshaw did not engage in contract negotiations for the Employer, the Employer did not have a contract with the Respondent, and Bradshaw did not handle grievances, not was it shown that he had the authority to handle grievances for the Employer. Thus, _the record indicates that the issue herein is squarely within the decisions issued by the Supreme Court on June 24, 1974, in Florida Power & Light Co. v. International Brotherhood of Electrical Workers, Lo- cals 641, 622, 759, 820, and 1263 and N.L.R.B. v. International Brotherhood of Electrical Workers, AFL-CIO, et al., 417 U.S. 790 (1974). In these cases, the Court held that the unions did not violate Section 8(b)(1)(B) of the Act when they disciplined supervisor- members for crossing picket lines and performing rank- and-file work during lawful economic strikes against the employers. In the Court's view, the disciplining of supervisor-members can violate Section 8(b)(1)(B) only when such disciplining may have an adverse effect on the supervisor-members' conduct in performing the du- ties of, and acting in the capacity of, grievance adjuster or collective bargainers on behalf of the employer. As to the problem of a supervisor's loyalty, the Court in- dicated that Congress intended to reach such problem 5 Under our analysis of whether Sec. 8(b)(1)(B) has been violated it is irrelevant whether the disciplined supervisor-member had performed rank- and-file work, in either the same or a different proportion, before the em- ployer-union dispute. This follows since the only relevant inquiry is what the supervisor-member did during the employer-union dispute. Hammond Pub- lishers, Inc., supra. Member Jenkins does not find it necessary to reach the issues set out in this footnote 203 through Sections 2(3), 2(11), and 14(a) of the Act, which permit the employer to refuse to hire union members as supervisors, to discharge supervisors be- cause of union activities or membership, and to refuse to engage in collective bargaining with them. The Court noted that Congress did not intend to make Sec- tion 8(b)(1)(B) part of the solution to the problems of supervisor-union member conflicts of loyalties. In the case herein, the, record shows that Bradshaw has not adjusted grievances or represented the Employer in col- lective bargaining, and, therefore, the Supreme Court decisions are controlling.6' In view of the above, I find that the Respondent Union did not violate Section 8(b)(l)(B) of the Act when it fined Bradshaw for working without a steward in violation of the Respondent Union's bylaws. ' Ac- cordingly, as the Administrative Law Judge's ground for finding the 8(b)(1)(B) violation has become untena- ble, I join my colleagues in dismissing the complaint in its entirety. MEMBER KENNEDY, dissenting: I disagree with my colleagues' dismissal of the com- plaint. In my view, Respondent's imposition of a $1,500 fine on Supervisor Bradshaw for "working without a steward" violated Section 8(b)(1)(B). Employer Kaplan has no collective-bargaining agreement with any labor organization. Beginning in July 1973, Respondent Carpenters sought to acquire a contract from Kaplan. Although Kaplan agreed to pay union wages and to acquire its carpenters from union sources, Respondent was unable to secure an executed contract. On August 6, Respondent's business agent notified Supervisor Bradshaw that because Kaplan "wouldn't sign the contract" Bradshaw would have to leave the job or face union charges. When Bradshaw thereafter continued to perform his regular duties, he was fined for violating section 13 of Respondent's bylaws which provide in pertinent part that "A foreman who is found running a job without a Steward shall be fined $5.00. Each day so worked shall constitute a separate of- fense." Although two union carpenters refused to work after August 6,' there is no evidence to indicate that the content of Bradshaw's job functions-including the amount of time devoted to supervisory respon- sibilities-was in any manner altered thereby. In my judgment, this case is not controlled by the Supreme Court's recent decision in Florida Power & Light Co. v. I.B.E. W, Local 641, 417 U.S. 790 (1974). In Florida Power, the Court 'determined that union discipline of supervisor-members for crossing picket 6 International Union of Operating Engineers, Local No. 9, AFL-CIO (Shelton Pipeline & Construction, Inc.), 213 NLRB No 92 (1974). 7 There is no evidence that a picket line was established 204 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD lines and performing rank-and-file struck work did not violate Section 8(b)(1)(B). The Court reasoned that supervisors are not engaged in collective bargaining or the adjustment of grievances "when they [cross] union picket lines during an economic strike to engage in rank-and-file struck work.i8 In contrast, Bradshaw was fined for "working with- out a steward." Thus the conduct which prompted Bradshaw's discipline amounted to nothing more than the mere continuation' of his normal responsibilities, including his 8(b)(1)(B) duties, albeit in the absence of a union steward.' In my judgment, when a union fine is levied against a supervisor who is doing nothing more than performing his normal responsibilities, it is rea- sonable to conclude that the fine will have an "adverse carryover effect" on the future performance of his 8(b)(1)(B) duties. Such an effect, we determined in Hammond Publishers, Inc., 216 NLRB No. 149 (1975), makes the fine violative of Section 8(b)(1)(B). Accord- ingly, I dissent from my colleagues' dismissal of the complaint. 8 417 U S 790, 805. 9 Although it is true that Bradshaw's normal job functions include work which might arguably be categorized as "rank-and-file" work, I think this case is distinguishable from Food Employers Council, Inc., 216 NLRB No 150 (1975) Unlike the supervisors there, Bradshaw's job content did not change during the period for which he was fined. In Food Employers Coun- cil, Inc., the proportion of rank-and-file work performed by at least some of the bakery managers increased during the strike DECISION SAMUEL M. SINGER, Administrative Law Judge: This pro- ceeding was heard before me in San Antonio, Texas, on April 25, pursuant to a charge filed on March 21 and complaint issued on March 27, 1974. Essentially, the complaint alleges that Respondent Union restrained and coerced Max M. Kap- lan Properties (Kaplan), in violation of Section 8(b)(1)(B) of the National Labor Relations Act, as amended, by fining Charging Party (a supervisor and union member) for working for an employer with whom the Union has no collective- bargaining agreement. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Briefs were filed by General Counsel and Respondent. Upon the entire record, and my observation of the testimonial demeanor of the witnesses, I make the follow- ing: FINDINGS AND CONCLUSIONS 1. JURISDICTION Kaplan, the employer here involved, is a sole proprietor- ship managing and operating office buildings in several cities in Texas, including the One Park Ten office building in San Antonio here involved. During the past representative year, it derived gross revenues exceeding $100,000 of which more than $25,000 was in the form of rental from enterprises, including Xerox Corporation, whose purchases in interstate commerce exceed $50,000. I find, as Respondent admitted at the hearing, that at all material times Kaplan has been and is an employer engaged in commerce and in operations affect- ing commerce within the meaning of the Act. II LABOR ORGANIZATION INVOLVED Respondent Union (Local 14) is a labor organization / within the meaning of Section 2(5) of the Act. III ALLEGED UNFAIR LABOR PRACTICES A. Issues 1. Whether or not Charging Party Bradshaw is a supervisor within the meaning of Section 2(11) of the Act. 2. Whether an internal Union fine levied against Bradshaw is in violation of Section 8(b)(1)(B) of the Act. B. Bradshaw's Union Status Arthur J. Bradshaw has worked out of jurisdictional areas of several Carpenters locals since joining Carpenters in 1969. He would "clear" his card out of one local into another as he moved from job to job. In July 1972, he "cleared into" Local 14 (Respondent) and has since worked in its jurisdictional area as foreman and construction worker. C. Bradshaw's Status as Supervisor Bradshaw was hired by Kaplan in July 1973 as foreman or supervisor of its "tenant finishing" carpenter crew at the One Ten office complex in San Antonio. The crew-all Kaplan employees-readies offices for tenant occupancy, mostly by erecting partitions and walls. Its size varies con- siderably-from 1 to 10 carpenters, depending on the workload.' Bradshaw also "oversees" the work of contrac- tors, such as electricians, painters, and carpet layers, used by Kaplan for major jobs-scheduling and coordinating their operations. In addition, he does some "paper work," includ- ing keeping employee timesheets. Building Manager Hudec, Bradshaw's superior, testified that 50 percent of Bradshaw's time is spent working "with his own hands" along with the "tenant finishing" crew. Unlike the crew, he is on a "guaranteed" monthly salary. His earn- ings average 15 percent more than those of Kaplan's hourly paid carpenters and he is not paid for overtime work. Brad- shaw's fringe benefits (e.g., hospitalization insurance and va- cations) are the same as the employees'. The record establishes that Bradshaw has hired employees for the finishing crew. When additional men are needed, he obtains Hudec's "permission" to hire and then proceeds to take applications which he refers to Hudec for routine ap- proval. As the workload diminishes, Bradshaw selects the men to be laid off. He has reprimanded and fired crewmem- bers for poor performance-in "most cases" without consult- ing Hudec. He sets the crew's work hours and makes job assignments, although, according to Bradshaw, the men usu- i When Bradshaw was hired in July 1973, the crew consisted of four and at the time of the hearing of only one carpenter. UNITED BROTHERHOOD OF CARPENTERS LOCAL UNION NO. 14 ally "know what has to be done and they just go ahead with their own initiative and do it." When Hudec determines that overtime work is needed, Bradshaw selects the men to per- form . As to wages, Hudec testified -that Kaplan pays its car- penters and helpers (apprentices) the prevailing area or union scale as "a very -routine matter," adding, however, that it is he (Hudec) who "either approve [s] or disapprove[s]" requests for wage raises. There is no evidence that Bradshaw possesses authority to handle employee grievances; Hudec testified that he was not aware of any complaints lodged by employees during Bradshaw's 9-month tenure, except for "the ever pre- sent request for a raise." D. Alleged Restraint and Coercion 1. The Union's unsuccessful attempt to secure a collective agreement covering the Kaplan employees Kaplan has no collective agreement with any union. In mid-July,' shortly after Kaplan hired Bradshaw, the latter (who was then working on clearance from Respondent, su- pra, sec. B), discussed with Union Business Agent Gooden the possibility of unionizing the job. Agreeing that this would be a "good idea," Gooden approached Building Manager Hudec. In the four meetings then held by them , Gooden attempted to get Hudec to sign a collective agreement cover- ing the Kaplan crew. Hudec refused, offering, however, to continue paying his crew the union wage scale as well as to secure his carpenters through the union hall. In two of the four sessions (including the last in August or early Septem- ber), Gooden threatened "to pull ]the Union] carpenters" off the job unless Kaplan signed a collective agreement. 2. Bradshaw's decision to continue on the nonunion Kaplan job On August 6, Business Agent Gooden went to the jobsite and told Bradshaw that because Kaplan "wouldn 't sign the contract," he (Bradshaw) would have to leave the job or face union charges. Bradshaw said he would later indicate his "choice." The next morning (August 7), Bradshaw "cleared out" of Local 14 by retrieving his book from the union office. Although Bradshaw testified that he regarded this action as a "resignation," General Counsel concedes , and I find, that it did not constitute such under the Union 's prescribed proce- dure for withdrawing or resigning membership (Resp. Exh. 2, p. 27).3 Bradshaw remained on the job on August 7 and still works for Kaplan . Two union carpenters working in his 2 All dates are 1973, unless otherwise indicated 3 Bradshaw explained his reasons for "resigning" as follows- well, at this particular time I was working at One Park Ten for Max M Kaplan Properties, and there was not a contract signed between the Union and Max Kaplan Properties , so I had a choice to either stay with the union or stay with Max Kaplan, and after long and hard thought, I could see my future better with Max Kaplan than I could with the union, and this is why I made this decision. Bradshaw went on to say that he knew it was "standard procedure" to fine a member working on a nonunion job 205 crew on August 6 did not return to work on and after August 7. 3. The fine levied against Bradshaw On August 7, Business Agent Gooden filed charges against Bradshaw, but Bradshaw did not appear at the "trial " before a three-man union committee .4 The committee found him "guilty" of working without a union steward on the job.5 On November 7, the Union notified Bradshaw that he was fined $ 1,500. Bradshaw subsequently appealed to Union Fi- nancial Secretary Adamson to withdraw the fine, but the latter stated that there was "no way" of doing this. E. Conclusions As noted (supra, sec. A), the issues here are whether: (1) Bradshaw qualifies as a supervisor under the Act; and (2) the fine levied against him is violative of Section 8(b)(1)(B) of the Act. 1. The supervisory issue As found (supra, sec. C), Bradshaw, as foreman of Ka- plan's "tenant finishing" crew, possesses and exercises the right to hire, lay off, reprimand, and fire crewmembers. He also sets the crew's working hours, makes job assignments, and selects employees for overtime work. It is clear that Bradshaw is a supervisor possessing the indicia of such status as enumerated in Section 2(11) of the Act. I so find. To be sure, as Respondent points out (br. pp. 2-3), Bradshaw per- forms a good deal of "production" or rank-and-file work and some of his duties are essentially routine. However, the fact that he is not a high managerial employee is immaterial. All that is necessary is that he meet "at least one of the supervi- sory characteristics set out in Section 2(11)." N.L.R.B. v. Alamo Express, Inc., 430 F.2d 1032, 1035 (C.A. 5). 2. The alleged 8(b)(1)(B) violation Section 8(b)(1)(B) of the Act forbids a union to "restrain or coerce . . . an employer in the selection of his representa- tives for the purposes of collective bargaining or the adjust- ment of grievances." Respondent's basic contentions are: (a) there is no evidence that Bradshaw had the authority to handle grievances or bargain collectively on behalf of Kaplan-the contrary being indicated by the fact that it was his superior (Building Manager Hudec) who conducted the abortive bargaining negotiations for the Union; and (b) the fine against Bradshaw concerned only a matter of internal union discipline, not "in any way related to Kaplan's selec- tion of his bargaining representative or to the adjustment of any employee grievances." 4 Bradshaw did not receive the letter requesting him to appear ; he admit- ted moving from his home (to which the letter was mailed) without notifying the Union of his new address. 5 Local 14's bylaws and trade rules , sec. 13, provides in pertinent part: "A Foreman who is found running a job without a Steward shall be fined $5 00. Each day so worked shall constitute a separate offense " A second charge preferred against Bradshaw-that he had been working "with his own tools"-was dropped and dismissed. 206 Although I agree with Respondent's position that the re- cord does not establish that Bradshaw was vested with au- thority to act for his employer in collective bargaining or adjusting grievances, I am nonetheless constrained to con- clude that he was an employer representative within the in- tent of Section 8(b)(1)(B) under the Board's current broad interpretation and application of that section . The Board still is of the view that- All persons who are "supervisors" within the meaning of Section' 2(11) of the Act are employers' "representa- tives for the purposes of collective bargaining or the adjustment of grievances" within the purview of Section 8(b)(1)(B) of the Act.' Underlying this Board view is the so-called reservoir doctrine that even if supervisors are not actual grievance representa- tives, "their status and roles [made them] such natural and potential representatives of the [employer] for the handling and settlement of grievances because of their day -to-day supervision and contacts with the employees in matters that spawn grievances, that the [employer] should be entitled to rely on them, and therefore to select them , as its representa- tives in handling and settling grievances whenever the occa- sion might arise. " (Emphasis supplied.) Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo-Engravers Inter- national Union (The Toledo Blade Co., Inc.), 175 NLRB 1072, 1079 (1969), enfd. 437 F.2d 55 (C.A. 6, 1971). See also Detroit Newspaper Printing Pressmen's Union No. 13 (The Detroit Free Press), 192 NLRB 196, 110 (1971); Cf. Interna- tional Association of Heat & Frost Insulators & Asbestos Workers, Local 127 (Cork Insulating Company of Wisconsin, Inc.), 189 NLRB 854 (1971). Accordingly, I am constrained to conclude that Bradshaw, a statutory supervisor , is also an employer representative within Section 9(b)(1)(B) as construed by the Board. I must also reject Respondent's contention that no 8(b)(1)(B) violation can be found because the fine imposed on Bradshaw had nothing to do with his supervisory functions. As the Board stated in Times Publishing Company, supra, 1122, and reiterated in Anheuser Busch, supra, 199 NLRB 551: In order to constitute coercion within the proscription of Section 8(b)(1)(B), it is not essential that the union disci- 6 Operating Engineers, Local No. 501 (Anheuser Busch, Inc.), 199 NLRB 551 (1972) See also cases cited infra. But see Erie Newspaper Guild, Local 187f Times Publishing Company] v. N.L.R.B., 489 F.2d 416 (C.A 3, 1973), reversing 196 NLRB 1121 (1972), International Brotherhood of Electrical Workers, AFL-CIO, and Local 134 [Illinois Bell Telephone Co.], 487 F.2d 1143 (C.A.D C, 1973), reversing 192 NLRB 85 (1971) and 193 NLRB 30 (1971),.cert granted 417 U.S 790 (1974) For the most recent Board case on the subject, see Wisconsin River Valley District Council (Skippy Enter- prises, Inc), 211 NLRB 222 (1974). DECISIONS OF NATIONAL LABOR RELATIONS BOARD plinary action be related to the offending member's per- formance of supervisory functions, it being sufficient that the discipline somehow concern the relationship between the employer on the one hand and the union or the employees on the other, as distinguished from mat- ters of purely internal union administration. The fine imposed on Bradshaw stems from the fact that he continued to work on a "nonunion" job; i.e., for an employer (Kaplan) who refused to sign a collective agreement with Respondent-an offense involving more than a "matter of purely internal union administration ." To be sure, the-spe- cific charge of which Bradshaw was found guilty was "work- ing on ajob without a union steward." But this is the equiva- lent of saying that he was fined because he worked on a nonunion job. See International Union of Operating Engi- neers, Local Union No. 450, AFL-CIO (Schneider Construc- tion Co.), 209 NLRB 463 (1975). Accordingly, I find and conclude that Respondent's impo- sition of a fine against Bradshaw constituted restraint and coercion of an employer representative within the meaning of Section 8(b)(1)(B) of the Act. CONCLUSIONS OF LAW 1. At all material times, Arthur J. Bradshaw has been a supervisor within the meaning of Section 2(11) and employer representative within the meaning of Section 8(b) (1)(B) of the Act. 2. By firing Bradshaw for not working on a nonunion job or a job without a union steward Respondent restrained and coerced Bradshaw's employer (Kaplan) in the selection of his representative for the purpose of collective bargaining and the adjustment of grievances, in violation of Section 8(b)(1)(B) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Respondent having been found to have engaged in unfair labor practices in violation of Section 8(b)(1)(B) of the Act, should be required to cease and desist therefrom and to take, certain affirmative action designed to effectuate the policies of the Act, including the rescission of its action in fining Bradshaw, expunging all records thereof in its files, and post- ing appropriate notices. Since it appears that Bradshaw did not pay the fine, reimbursement order is unnecessary. [Recommended Order omitted from publication.] I