Operating Engineers, Local No. 501

OPERATING ENGINEERS, LOCAL NO 501 Operating Engineers, Local No. 501 (Anheuser Busch, Inc.) and Richard Osting. Case 31-CB-848 March 31, 1975 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 10, 1972, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding' in which the Board found, contrary to the Decision of the Administrative Law Judge, dated June 26, 1972, that the Respondent Union violated Section 8(b)(1)(B) of the Act by fining the Charging Party, a supervisor-member, for crossing a lawful picket line and performing rank-and-file struck work during an economic strike. The Board's decision was based on Times Publishing' which, in turn, was based on the Board cases which were rejected by the U.S. Supreme Court in Florida Power & Light' Subsequent to the Court's decision in Florida Power & Light, supra, the Board sought and obtained a re- mand of the instant case to reconsider its Decision and Order in the above-entitiled proceeding in light of the Supreme Court's opinion. The Board further invited the parties to file statements of position with respect to the effect of the Supreme Court's opinion on the instant proceeding. No party filed a response thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. In its opinion the Supreme Court considered the precise issue involved herein and held that a union does i 199 NLRB 551 Member Fanning dissented for reasons set forth in his dissenting opinion in International Brotherhood of Electrical Workers, AFL-CIO, and Local 134 (Illinois Bell Telephone Company), 192 NLRB 85 (1971), and would have dismissed the complaint in its entirety. 2 The Newspaper Guild, Erie, Newspaper Guild, Local 187, AFL-CIO (Times Publishing Company), 196 NLRB 1121 (1972), reversed and re- manded 489 F 2d 416 (C A. 3, 1973) 3 Florida Power & Light Company, International Brotherhood ofElectri- cal Workers, Local 641, et al., and NL.R B. v. International Brotherhood of Electrical Workers, AFL-CIO, et aL, 417 U S. 790 (1974). 207 not violate Section 8(b)(1)(B) of the Act by fining mem- ber-supervisors for crossing its picket line and perform- ing rank-and-file struck work during a lawful economic strike against the employer. Upon reconsideration of our prior Decision herein, we conclude that it cannot stand because it is contrary to that holding of the Su- preme Court, and we therefore find that Respondent did not violate the Act as alleged in the complaint. Accordingly, we shall dismiss the complaint in its en- tirety. 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 KENNEDY, concurring: I agree with my colleagues that the Respondent did not violate Section 8(b)(1)(B) of the Act by fining a member-supervisor for working during its strike against the Employer herein. The record in this case does not support a finding that the supervisor performed _ any supervisory func- tions during the period for which he was fined. Indeed, the only record evidence concerning his duties during that period establishes that the supervisor was, in fact, performing only rank-and-file struck work, specifically the work of a maintenance engineer. The supervisor testified that "during the strike [he] worked on equip- ment with the tools," and that he had repaired the compressor which "maintenance men" would nor- mally have taken care of. Unquestionably, the supervisor herein was fined for performing rank-and-file struck work.' In these cir- cumstances, I agree with my colleagues that the Court's decision in the Florida Power case requires dis- missal of the complaint 'herein.' 4 The Union's fine was levied pursuant to an mtraumon charge of "work- ing contrary to a strike by our Local No. 501 at Anheuser-Bush, , Inc., on March 24 and 25, 1971." Compare my dissent in Max M. Kaplan Properties, 217 NLRB No. 13 (1975), wherein the supervisor was fined for "working without a steward." 5 Chicago Typographical Union No. 16 (Hammond Publishers, Inc.), 216 NLRB No. 149 (1975). 217 NLRB No. 21