International Union, United Automobile Workers

320 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 April 10, 1975 SUPPLEMENTAL DECISION AND AMENDED ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 28, 1974, the National Labor Relations Board issued its Decision and Order' in the above- entitled proceeding, finding that the Respondent, Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America (herein UAW), had violated Section 8(b)(1)(A), 8(b)(1)(B), and 8(b)(2) of the National Labor Relations Act, as amended. Subsequently, on June 24, 1974, the United States Supreme Court handed. down its decision in Florida Power and Light Co. v. International Brother- hood of Electrical Workers, Local 641, 417 U.S. 790 (1974). In the initial decision in the instant case the Board found that the Union had violated Section 8(b)(1)(A), 8(b)(1)(B), and 8(b)(2), when it penalized a former supervisor, who had returned to rank-and-file em- ployee status, by causing him to be placed at the bottom of the seniority list and laid off, through strike threats, because while a supervisor he had crossed the union picket line and worked during a strike. As it appeared that the stated rationale for the Board's finding of a violation of Section 8(b)(1)(B) in this case was rejected by the Supreme Court in Florida Power, the Board requested the United States Court of Appeals for the District of Columbia Circuit, where the case was pend- ing upon a petition for review, to remand the case to the Board for reconsideration in light of the Supreme Court's decision in Florida Power. Thereafter, the court of appeals having remanded the case to the Board for reconsideration, on November 15, 1974, the Board notified the parties of the court's re- mand and requested statements of position from them. Such statements have been filed by the Respondent and the General Counsel. 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. For reasons more fully explicated hereinbelow, we conclude that the Supreme Court's decision in Florida Power and Light Co. requires that the 8(b)(1)(B) allega- tion in this case be dismissed.' 1 208 NLRB 736 As found by the Board in the prior case, Gary Cooper was employed by the Company as a laborer since 1967. He was promoted to afternoon shift fore- man during the first week of September 1972 in charge of the zinc ammonium chloride (ZAC) and stannate departments. He was the only supervisor present dur- ing that shift and performed no regular production work. About the middle of September, while Cooper was such supervisor, the Union called the employees out on a presumably organizational or recognitional strike. During the September strike, Cooper as a super- visor was requested by the Company to remain on the job to help bed down the plant for shutdown. Cooper did so and, in order to do so, crossed the union picket line. At the end of September or beginning of October 1972, the employees returned to work, including those under Cooper's supervision. On December 18, 1972, they were permanently laid off. Cooper was not laid off, but thereafter worked on the day shift in closing down the ZAC department and assisted a maintenance man in building a new piece of equipment. Cooper retained his foreman title and salary. 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. Thus, from the date of the layoff of the ZAC employees until the date that Cooper was laid off, December 29, Cooper performed nonsupervisory unit work which could have been performed by rank-and- file unit employees. The Board therefore found that by December 29 Cooper had ceased to be a supervisor and became and employee, regardless of his title and salary, because he no longer had any subordinates and was performing nonsupervisory unit work. This change from supervisory to nonsupervisory duties was perma- nent. Since the Supreme Court in Florida Power held that a union did not violate Section 8(b)(1)(B) by disciplin- ing supervisor-member for crossing lawful picket lines to perform rank-and-file struck work, it would appear that our earlier finding in the instant case was in error. We interpret the Supreme Court's decision as bottomed on a determination that the effect of the union's disci- pline may reasonably produce an adverse impact on a 2 Member Penello, who did not participate in the initial case, 208 NLRB 736, while agreeing that Respondent did not violate Sec. 8(b)(1)(B) under the facts of this case, does not, in so doing, find it necessary or appropriate to rely on the-Supreme Court's Florida Powerdecision. In his view, Florida Power is inapposite since in this case Cooper, the affected individual, while at one time a supervisor, was a rank-and--ftleemployee during the period that the Union caused the Employer to lay him off In contrast, in Florida Power, the affected individuals were supervisors during the period that they were disciplined by the union. Therefore, in finding no 8(b)(1)(B) violation in this case, Member Penello would rely solely on the fact that Respondent's actions could never properly have constituted a violation of Sec. 8(b)(1)(B) since, during the relevant period, Cooper was a rank-and-file employee and not a supervisor or otherwise an 8(b)(1)(B) representative. 217 NLRB No. 46 INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS supervisor's performance of his 8(b)(l)(B) representa- tive duties for the employer.3 For, as the Supreme Court stated in Florida Power, The conclusion is thus inescapable that a union's discipline of one of its members who is a supervi- sory employee can constitute a violation of § 8(b)(l)(B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer. [Emphasis supplied.]' Since Cooper was an employee, and not a supervisor, when the Union penalized him by denying him seni- ority status and thereafter demanding and causing the Employer to discharge him, such union action could not have "adversely affect[ed]" his supervisor's activi- ties as an 8(b)(1)(B) representative on behalf of the Employer, for as an employer he had no such duties of representative capacity. We therefore find that the Re- spondent Union did not violate Section 8(b)(1)(B) by so penalizing Cooper. We shall dismiss this allegation of the complaint. We affirm, however, our earlier findings of violations of Section 8(b)(1)(A) and 8(b)(2). Although Cooper had been in the Company's employ longer than other employees, the Respondent insisted with the threat of strike in late December that Cooper had no seniority in the unit, and that he should be displaced by an em- ployee with greater seniority. This despite the fact that there was no contract provision governing seniority at that time. Yielding to the Respondent's threat to strike unless Cooper was replaced, the Company laid him off on December 29 and has not recalled him since that date. We affirm our earlier finding that in denying Cooper seniority status as an employee and thereby securing his displacement as an employee Respondent was motivated by the fact that Cooper had worked previously during the Union's September strike. Since we have found that Cooper was laid off as an employee because he did not participate in a strike-a discrimina- tory reason-we affirm our conclusion that Respond- ent thereby caused the Company to discriminate against employee Cooper in violation of Section 8(a)(3), thus violating Section 8(b)(2) and 8(b)(1)(A) of the Act.' 3 See Hammond Publishers, Inc., 216 NLRB No. 149 (1975). 4 Supra, 417 U S 790, 804-805 (1974) 5 Local 282, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Lizza and Sons, Inc.), 165 NLRB 997 (1967), enfd. 412 F.2d 334 (CA. 2), cert. denied 396 U .S. 1038 (1969). The Remedy 321 Having found that Respondent has engaged in cer- tain unfair labor practices, we shall order Respondent to cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent caused the Company discriminatorily to reduce the seniority of employee 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 has no objection to the rein- statement of Cooper. We shall also order Respondent to make Cooper whole for any loss of pay suffered as the result of the discrimination 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.' Backpay, if any, shall be computed on a quarterly basis in the manner de- scribed in F W. Woolworth Company, 90 NLRB 289 (1950), and with interest thereon at 6'percent per an- num computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). AMENDED CONCLUSIONS OF LAW Substitute the following Conslusions of Law for those in the Board's prior Decision and Order: 1. International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. Pitt Processing Co. is an employer within the meaning of Section 2(2) of the Act, engaged in com- merce or in industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. On December 18, 1972, the Company perma- nently laid off all the employees of the ZAC and stan- nate departments except Supervisor Gary Cooper, who thereafter and by December 29, 1972, ceased being a supervisor and became a rank-and-file employee of the Company within the meaning of Section 2(3) of the Act. 4. By threatening to engage in a work stoppage on December 29, 1972, unless the Company discharged or laid off Gary Cooper, the Respondent did not coerce and restrain the Company within the meaning of Sec- tion 8(b)(1)(B) of the Act, since Gary Cooper on that date and thereafter was not a supervisor of the Com- pany within the meaning of Section 2(11) of the Act. 6 It is uncertain how long Cooper would have continued working if Re- spondent had not insisted on his displacement. This period can be deter- mined in compliance proceedings 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By threatening to engage in a work stoppage on December 29, 1972, unless the Company discharged or laid off Gary Cooper, the Respondent caused the Com- pany to discriminate against Cooper as an employee of the Company in violation of Section 8(a)(3), thereby violating Section 8(b)(2) and' (1)(A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. AMENDED ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, International Union, United Automobile; Aerospace and Agricul- tural Implement Workers of America, Pittsburgh, Pennsylvania, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause the Company to discriminate against employee Gary Cooper in viola- tion of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or co- ercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization 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. (b) Notify Pitt Processing Co. that it has no objection to the reemployment of Gary Cooper 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 Supplemental Decision and Amended Order entitled "The Remedy." (d) Post at its business office and meeting halls copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 6, after being, duly signed by Respon- dent's authorized representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places I In the event that this Amended Order is enforced by a Judgment of a United State 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." where notices to members are customarily posted. Rea- sonable 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 Process- ing 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 Amended Order, what steps the Respondent has taken to comply herewith. IT IS FURTHUR ORDERED insofar as the complaint alleges a violation of Section 8(b)(1)(B) of the Act, it shall be, and it hereby is, dismissed. 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 Co. that: WE WILL NOT cause or attempt to cause Pitt Processing Co. to discriminate against employee Gary Cooper in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner re- strain or coerce employees of Pitt Processing Co. in the exercise of their rights to self-organization, to form, join, or assist unions, to bargain collec- tively through representatives of their own choos- ing, to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, or to refrain from such activities, except to the extent that such rights may be af- fected by an agreement requiring union member- ship 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 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 Processing Co. to discharge or lay off Gary Cooper. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA