Electrical Workers, Local 73

ELECTRICAL WORKERS, LOCAL 73 International Brotherhood of Electrical Workers, Local Union No. 73, AFL-CIO (Chewelah Con- tractors, Inc.) and William O. Anderson. Case 19- CB-2772 August 30, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On May 6, 1977, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, International Brotherhood of Electrical Workers, Local Union No. 73, AFL-CIO, Chewelah, Washington, its officers, agents, and representatives, shall take the action set forth in said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefull1 examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case, held on March 29, 1977, is based upon a charge filed on October 7, 1976, by William O. Anderson, herein called Anderson, against International Brotherhood of Electrical Workers, Local Union No. 73, AFL-CIO, herein called the Respondent, and a complaint issued on November 29, 1976, by the General Counsel of the National Labor Relations Board, herein called the Board, alleging violations of the National Labor Relations Act, as amended. In substance, the complaint alleges that the Respondent, by disciplining Anderson, a supervisor em- ployed by Chewelah Contractors, Inc., has restrained and coerced, and is restraining and coercing, Chewelah Con- tractors, Inc., an employer, in the selection of its represen- tatives for the purposes of collective bargaining or the adjudication of grievances in violation of Section 8(b)( I)(B) of the Act. The Respondent's answer denies the commis- sion of the unfair labor practices. Upon the entire record, from my observation of the witnesses, and having considered the posthearing briefs, I make the following: Findings of Fact I. THE BUSINESS OF THE EMPLOYER INVOLVED Chewelah Contractors, Inc., herein called the Employer, a Washington corporation, at all material times has maintained its principal office and place of business in Chewelah, Washington, and has been engaged in the business of construction and maintenance in Washington. During the past 12 months the Employer purchased, transferred, and had delivered to its operations in the State of Washington goods and materials valued in excess of $50,000, which were transported and received from other enterprises located in the State of Washington, which other enterprises received these goods and materials directly from sources outside the State of Washington. The parties stipulated, and I find, that at all times material the Employer has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED It is conceded, and I find, that the Respondent is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue The broad question presented is whether the Respondent violated Section 8(bXIXB) of the Act by disciplining Anderson, a member of the Respondent, for working for an employer which did not have a collective-bargaining agreement with the Respondent. B. The Facts ' At all times material herein, Anderson occupied the position of superintendent for the Employer at its mainte- nance job for Northwest Alloys, Inc., herein called the Northwest Alloys job. The Employer was created and Unless otherwise specified the facts are undisputed. 231 NLRB No. 134 809 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incorporated in February 19762 primarily for the purpose of bidding for and performing the Northwest Alloys job. The Employer succeeded in securing this contract in March and on or about June 1 started to work under the contract, at which time Anderson was placed on the Employer's payroll as superintendent. Previously Ander- son, with a certain amount of help from his wife, assisted Robert LeCount, the Employer's president and principal owner, in securing the contract for the Northwest Alloys job. Anderson assisted LeCount in determining the job's manpower and equipment requirements, helped him formulate the Employer's successful bid for the job and played a role in formulating the Employer's employment policies. Also, in May, Anderson loaned the Employer $43,000 which was 43 percent of the working capital used by the Employer to commence its operations. 3 In consider- ation for Anderson's aid and assistance LeCount promised that if the Employer succeeded in getting the Northwest Alloys job it would employ Anderson as superintendent. During the critical period of time involved in this case, June 1, the date Anderson commenced to work as superintendent on the Northwest Alloys job, through August 16, the date the Respondent disciplined Anderson for this conduct, Anderson was the Employer's vice president,4 but owned no stock in the Company and was not a member of its board of directors.5 LeCount, the president and 98-percent owner of the Company, was the one who represented the Employer and managed its business operation. Anderson was second in command, under LeCount's supervision. In his capacity as superintendent, Anderson was a supervisor as that term is defined in Section 2(11) of the Act and was also invested with grievance adjustment powers within the meaning of Section 8(b)(I)(B) of the Act. Anderson credibly testified that when he went to work for the Employer, its president, LeCount, told him that as superintendent he would "run the [Northwest Alloys] job." LeCount credibly testified that Anderson hired and fired employees, disciplined them, and solved their grievances and, in connection with employees' grievances specifically, he testified that Anderson "resolve[d] them," explaining "that's what I hired him for. I didn't want [the employees] running to me. [Anderson] was there to take care of them." Based on the foregoing, I find that during the time material herein Anderson was a statutory supervisor and, in addition, represented the Employer for the purpose of grievance adjustment. Anderson had been employed as superintendent by another company, Electric Smith, for several years. He terminated his employment with that company April 2 and on June I started working as a superintendent for the 2 All dates herein refer to 1976. :' LeCount loaned the remaining $60,000. Anderson's loan was unse- cured. paying him 7-percent interest. The loan was repaid in three installments, commencing in September and ending in late October. 'The other officers were Robert LeCount, president, and LeCount's wife, secretary-treasurer. 5 Robert LeCount owned approximately 98 percent of the stock, his wife approximately I percent, and Robie Reed I percent. The shareholders also signed the papers incorporating the Employer and were the Company's board of directors. When Reed resigned in September, subsequent to Anderson's discipline by the Respondent. Anderson was elected to take his place. Employer on the Northwest Alloys job. The Respondent represented Electric Smith's employees and was a party to a collective-bargaining agreement with Electric Smith but did not represent the Employer's employees and did not have a collective-bargaining agreement covering the Em- ployer's employees. Anderson was a member of the Respondent. On June 18, by letter, the Respondent's business manager and financial secretary, Stuart Kirk, invited Anderson to appear before the Respondent's executive board, asking Anderson "now that you are no longer employed by Electric Smith and are working for a non- union contractor . . . to explain your position." In July, Anderson met with Kirk and certain members of the Respondent's executive board, at which time Kirk asked why Anderson was working for a "non-union" contractor and told him to cease working for the Employer. Anderson ignored Kirk's instruction. Thereafter, on July 13, Kirk preferred charges against Anderson alleging violations of the constitution of the International Brotherhood of Electrical Workers (IBEW), the Respondent's parent organization. In pertinent part, Anderson was charged with violating article 27, section 1, subsections 3, 4 and 21. In sum Kirk charged Anderson with working for an employer that was in difficulty with the Respondent. 6 Kirk's July 13 letter transmitting the charges against Anderson to the Respondent's recording secretary explained the basis for the charges in these terms: "William O. Anderson went to work for Chewelah Contractors on or about June 1, 1976. Chewelah Contrac- tors is in difficulty with the IBEW, not recognizing any bargaining agreements, and also refusing to negotiate." On August 16, the Respondent's trial board found Anderson guilty of the aforesaid charges, assessed fines against him totaling $1,250, 7 and placed him on probation for I year. C. Discussion Based on the undisputed facts set forth above, I find, in agreement with the contention of the General Counsel, that the Respondent restrained and coerced the Company in the selection and retention of its representatives for the purposes of collective bargaining and the adjustment of grievances in violation of Section 8(bXI)(B) of the Act. Anderson is a statutory supervisor who, among other things, represented the Employer for the purpose of grievance adjustment. The Respondent preferred charges, imposed fines, and suspended Anderson's membership, all because Anderson worked as a supervisor for a company which did not have a contract with the Respondent. 8 The 6 Subsec. 21 of sec. I of art. 27 provides in part that "any member may be penalized for ... working for any individual or company declared in difficulty with a [local union] or the I.B.E.W ..... " The alleged violations of subsecs. 3 and 4 were merely denvative violations stemming from the violation of subsec. 21. 7 Of this amount. $550 was suspended on condition that Anderson refrain from working for the Employer. I I considered and rejected Kirk's testimony to the effect that the Respondent's dispute with the Employer was not grounded upon its lack of a contract with the Respondent. This testimony was not given in a 810 ELECTRICAL WORKERS, LOCAL 73 situation is therefore identical to New Mexico District Council of Carpenters, et al. (A. S. Horner, Inc.), 177 NLRB 500 (1969), enfd. 454 F.2d 1116 (C.A. 10, 1972). In that case a supervisor-member of the respondent union was fined for working as a supervisor with a company which did not have a contract with the union. The Board held that this was a violation of Section 8(b)(l)(B) since compliance of the supervisor with the union's demands would have meant quitting the job with the employer, thereby having "the effect of depriving the company of the services of its selected representative for the purpose of collective bargaining or the adjustment of grievances." 177 NLRB at 502. Here, Anderson's compliance with the Respondent's demand, as in Horner, would have meant quitting his job, thus depriving the Employer of the services of its selected representative for the purpose of the adjustment of grievances. Accordingly, by preferring charges, imposing fines, and placing Anderson on proba- tion, all because he worked as a supervisor for a company which did not have a contract with the Respondent, the Respondent violated Section 8(b)( I)(B) of the Act. Contrary to the Respondent's contention, I do not believe that its conduct is insulated from the prohibitions of Section 8(b)(1)XB) by the Supreme Court's decision in Florida Power & Light Company v. I.B.E. W. Local 641, et al., 417 U.S. 790 (1974). In Florida Power the union discipline was not related to the supervisors' performance of their customary supervisory duties, but rather it was imposed upon supervisors performing rank-and-file work of striking employees. In the instant case, as in Horner, by contrast, the union discipline was directly related to the supervisor's performance of his customary supervisory duties and was not imposed upon a supervisor performing the rank-and-file work of striking employees. In this case, as in Horner, there was no struck work for the supervisor to perform, nor is there any contention or evidence that Anderson at any time performed duties other than his customary supervisory ones. Thus, a union's interest in preventing its supervisor-members from performing strike- breaking work of replacement employees-an underlying rationale for the Florida Power decision-is therefore not present in the instant case. It appears that the Supreme Court recognized and preserved this distinction in its Florida Power decision when it included Horner among those cases which it cited without disapproval in discussing the evolving Oakland Mailers doctrine.9 (417 U.S. at 805.) Moreover, the court of appeals' opinion in Florida Power, which was affirmed by the Supreme Court, approved Horner and stated it fell "close to the original rationale of Section 8(b)(l)(B) which was to permit the employer to keep the bargaining representative of his own choosing." convincing manner and is contrary to the whole record. Thus, Kirk criticized Anderson for working for the Employer because it was a "non- union" company and based his charges against Anderson upon the fact that Anderson was working for an employer which was in difficulty with the Respondent because of its refusal to recognize 'any bargaining agreements" and "to negotiate" with the Respondent. Kirk testified that in using the quoted terminology he meant to state that the Employer "would not negotiate with [the Respondent I to create a collective bargaining agree- nenl." " San Francisco-Oakland Mailers' ULnion ,No. 18, International Typographi cal Union (N'orthest Publicalions, Inc.), 172 NLRB 2173 (1968). "I Anderson. prior to his employment by the Employer, worked for International Brotherhood of Electrical Workers, AFL-CIO, Local 134 [Florida Power] v. N.LR.B., 487 F.2d 1143, 1155, fn. 19 (C.A.D.C., 1973). Also the Board, with the approval of the Court of Appeals for the Seventh Circuit, has reexamined Horner in the light of Florida Power and reaffirmed its validity. Wisconsin River Valley District Council of Carpenters (Skippy Enterprises), 218 NLRB 1063 (1975), enfd. 532 F.2d 47 (C.A. 7, 1976). See also United Brotherhood of Carpenters & Joiners of America Local Union No. 14, AFL-CIO (Max M. Kaplan Properties), 217 NLRB 202 (1975). I also reject the Respondent's further contention that it was free to discipline Anderson because Anderson was, for all intents and purposes, the "employer" within the meaning of Section 8(bX I)(B) of the Act. In this regard the Board has held that a union does not violate Section 8(b)(XIXB) by disciplining supervisor-members who have a substantial ownership interest in the employer. Bricklayers, Masons and Plasterers' Union, Local No. I (Barr Floors), 209 NLRB 820, 822 (1974); International Association of Heat and Frost Insulators and Asbestos Workers, Local 19 (Insulation Industries, Inc.), 211 NLRB 592 (1974); Glaziers and Glassworkers Local Union No. 1621, et al. (Glass Management Association), 221 NLRB 509 (1975). On the other hand, the Board has declined to find that a supervisor was the "employer" within the meaning of Section 8(b)(IXB) when said supervisor held no significant owner- ship interest in the employer even though the supervisor was a corporate officer and a member of the company's board of directors. Bricklayers, Masons and Plasterers' Union, Local No. I (Barr Floors), 209 NLRB at 821 (Daigle). In the instant case, Anderson held no ownership interest in the Employer and did not otherwise share in the Company's profits. Moreover, the record establishes that LeCount, the Company's president and principal stock- holder, was responsible for its management. Under these circumstances, I find that at all times material herein Anderson was simply a person selected by LeCount to perform supervisory, including grievance adjustment, functions and was not in any real sense an "employer" as that term is used in Section 8(bXI)(B) of the Act.'o Finally, I reject the Respondent's additional contention that the close relationship between the Employer and Anderson, in particular his position as vice president and his outstanding loan to the Employer, "precludes the possibility that the Union's disciplinary action could have undermined any loyalty [the Employer] was entitled to expect from Anderson." This is simply another way of urging that Anderson's close relationship with the Employ- er precluded him from being restrained or coerced by the Respondent's discipline within the meaning of Section another company, Electric Smith, and owned less than 10 percent of its stock. Respondent subpenaed certain records from the Employer and Electric Smith and urges that these records would help establish that the two companies constitute a single employer, so that, in view of Anderson's ownership of Electric Smith stock, he was also an owner of the Employer. I granted petitions to revoke the subpenas since the record reveals that Anderson sold his Electric Smith stock in May prior to both his employment with the Employer and his discipline by the Respondent Accordingly, assuming, arguendo, that Electric Smith and the Employer are a single employer, Anderson's ownership of Electric Smith would not establish his ownership of the single employer during the time material to this case. 811 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b)(1)(B). I disagree. It is settled that, in determining whether union discipline restrains or coerces within the meaning of Section 8(b)(1) of the Act, the answer does not turn on whether the discipline succeeds or fails to accomplish its objective, rather the test is whether the discipline reasonably tends to restrain or coerce. E.g., American Federation of Musicians, Local 76, AFL-CIO (Jimmy Wakely Show), 202 NLRB 620 (1973). Obviously, a fine of $1,250 reasonably tends to restrain or coerce. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that the Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is a labor organization within the meaning of Section 2(5) and Section 8(b) of the Act. 2. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. William O. Anderson is, and has been at all times material, a supervisor within the meaning of Section 2(11) of the Act, selected by the Employer for the purpose, among others, of the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. 4. By preferring charges against Anderson, imposing fines against him, and suspending his membership, the Respondent restrained and coerced the Employer in the selection and retention of its representatives for the purposes of collective bargaining and the adjustment of grievances, and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(l)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce 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, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent, International Brotherhood of Electrical Workers, Local Union No. 73, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing Chewelah Contractors, Inc., in the selection of representatives for the purposes of collective bargaining or the adjustment of grievances by preferring charges, fining, suspending from membership, otherwise disciplining, or attempting by any means to collect or enforce any fine or discipline imposed against any such representative, including William O. Anderson, for working for Chewelah Contractors, Inc., when the Respondent is engaged in a labor dispute with that employer. (b) Engaging in any like or related conduct constituting such restraint or coercion. 2. Take the following affirmative action designed to effectuate the purposes of the Act: (a) Rescind and expunge from its records the fines and the I-year membership probation imposed upon William O. Anderson on August 16, 1976, and any other disciplin- ary acts which may have been taken against William O. Anderson because of his employment by Chewelah Contractors, Inc. (b) Advise William O. Anderson, in writing, that it has taken the aforesaid action in compliance with paragraph 2(a), above, and that it will cease and desist from the action forbidden in paragraph I of this Order. (c) Post at its business office and meeting hall copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and maintained by lit for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are custom- !arily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director for Region 19 signed copies of said notice for posting by Chewelah Contractors, Inc., if willing, where notices to employees are customarily posted. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I 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. 12 In the event that 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 812 ELECTRICAL WORKERS, LOCAL 73 APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce Chewelah Contrac- tors, Inc., in the selection of representatives for the purposes of collective bargaining or the adjustment of grievances by preferring charges, fining, suspending from membership, otherwise disciplining, or attempting by any means to collect or enforce any fine or discipline imposed against any such representative, including William O. Anderson, for working for Chewelah Contractors, Inc., when we are engaged in a labor dispute with that employer. WE WILL NOT engage in any like or related conduct constituting such restraint and coercion. WE WILL rescind and expunge from our records the fines and the I-year membership probation imposed by us upon William O. Anderson on August 16, 1976, and any other disciplinary action which may have been taken against William O. Anderson because of his employment with Chewelah Contractors, Inc. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 73, AFL-CIO 813