Schwenk Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schwenk Incorporated and Neal E. Wright and Sheetmetal Workers International Association, Local Union No. 2, Party in Interest. Case 17- CA-7012 May 13, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge duly filed by Neal E. Wright, an Individual, on March 8, 1976, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint on May 10, 1976, alleging that Respondent Schwenk Incorporated has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) and (2) of the National Labor Relations Act, as amended. The Respondent filed an answer on May 24, 1976, denying the commission of unfair labor practices. On July 13, 1976, the parties executed a stipulation of facts, waived a hearing before an Administrative Law Judge and the issuance of an Administrative Law Judge's Decision, and moved that the matter be transferred to the Board for findings of fact, conclusions of law, and an Order directly by the Board.' On September 16, 1976, the Board granted the parties' motion to transfer proceedings to the Board, and granted permission and time for the filing of briefs. Thereafter, the General Counsel and Respondent filed briefs. 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. Upon the basis of the stipulation of facts, the briefs, and the entire record in this proceeding, the Board makes the following: FINDINGS OF FACT 1. JURISDICTION Respondent Schwenk Incorporated is engaged in the business of sheet metal fabrication and contract- ing work in the construction industry, with its principal place of business located in Kansas City, Kansas. In the course and conduct of its business operations at the Kansas City facility, Respondent annually purchases goods and/or services valued in excess of $50,000 directly from sources located outside the State of Kansas and annually sells goods I The parties stipulated that the charge, complaint and notice of hearing, answer (denoted as Exhs. 1, 2, and 3), and the stipulation of facts and accompanying exhibit would constitute the entire record in this case. 229 NLRB No. 94 and/or services valued in excess of $50,000 directly to customers located outside the State of Kansas. Respondent admits and we find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We also find that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and we find that Sheetmetal Workers International Associa- tion, Local Union No. 2, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts At all times material herein, Respondent has been a member of Sheet Metal and Air Conditioning Contractors National Association, Inc., Kansas City Chapter (herein called the Association). The Associa- tion is a multiemployer bargaining group which, on behalf of its members, is a party to a collective- bargaining agreement with the Union. Respondent is a family-owned business and its executive officers are all members of the Schwenk family. Respondent employs approximately 60 em- ployees. Wesley Friley has been employed by Respondent as plant manager since 1968 and Jim Shy as project manager since 1967. Both are supervisors within the meaning of Section 2(11) of the Act. As plant manager, Friley is the frontline supervisor in the shop where he oversees the production of materials to be fabricated and works with the tools of the sheet metal trade. From 15 to 40 people work under Friley in the plant, the average being 17. Shy, as project manager, schedules work to be done in the plant, works out coordination problems, and works with the tools of the sheet metal trade. If a particular job requires either a foreman or a general foreman under the terms of the collective- bargaining agreement, Shy makes the assignment. The current collective-bargaining agreement which expires June 30, 1977, requires, pursuant to a demand by the Union, that persons performing the work done by Friley and Shy be members of the Union. As members of the Union, both Friley and Shy participated in the last strike against the Association which was from July until September, 1969. Neither individual has participated in any collective-bargaining negotiations either as represen- tative of the Association or as representative of the Union, neither has any financial interest (other than as employees) in Schwenk or any other member of 640 SCHWENK INCORPORATED the Association, and neither has ever held office in or been members of the Association. From about June 1970 until February 26, 1976, Friley was vice president of the Union, and from February 26 until June 26, 1976, he occupied the position of president. From about June 1970 until June 26, 1976, Shy occupied the position of recording secretary of the Union. While occupying these offices, both Friley and Shy have voted in internal union elections to determine who is to administer the affairs of the Union. B. Contentions of the Parties The General Counsel contends that both Friley and Shy are high level supervisors and that Respon- dent, by permitting them to participate in internal union affairs by holding offices within the Union and voting in internal union elections, is interfering with the administration of a labor organization in viola- tion of Section 8(a)(2) of the Act. Respondent contends that the status of Friley and Shy is identical to that of the master mechanics in Nassau and Suffolk Contractors' Association, Inc., et al., 118 NLRB 174 (1957), where the Board held the employers were not liable for the intraunion conduct of the master mechanics because they were only low level supervi- sors. Respondent advances numerous arguments in support of its position: Neither is an executive or officer and both are low level supervisors. They have never participated in collective-bargaining negotia- tions on behalf of the Union or the Association. There is no allegation that the Employer, Friley, or Shy participated in any way in the formation of the Union. The Employer has never acted in a way to lead other employees to believe that either of them acts on behalf of the Employer. They are required by the collective-bargaining agreement to be members of the Union. Both are rank-and-file union members who have worked their way up the normal career ladder in the construction industry while remaining active and concerned with their Union, and to strip them of a voice and a right of activity in their Union would in effect strip them of their job security. C. Analysis and Conclusions In Nassau and Suffolk Contractors' Association, supra, the Board found that the employers interfered with the administration of a labor organization by virtue of the fact that certain executives, three job superintendents, a shop foreman, and a corporate officeholding master mechanic attended union meet- ings and voted in secret union elections. With regard to the master mechanics, the Board found that they were low level supervisors, that their allegiance was, at least, as much with their union as with their employers, and that the employers did not interfere with the affairs of the union by virtue of the master mechanics' voting in elections. In Nassau, a master mechanic had to be employed by an employer if five or more operating engineers were at work. Thus, these employees might be master mechanics at one time and ordinary operating engineers at other times, depending on whether the number of operating engineers was above or below the specified level. In the instant case both Friley and Shy are high level supervisors and are not, as contended by Respondent, comparable to the master mechanics in Nassau and Suffolk Contractors' Association. Both Friley and Shy have been regularly employed in their current managerial positions for almost 10 years. Friley, as plant manager, oversees the inplant production of material to be fabricated for field installation, supervising from 15 to 40 employees depending on the amount of inplant work being performed. Shy, as project manager, oversees field work, works out production problems, and coordi- nates plant production schedules with Friley. Shy supervises from 20 to 40 employees depending on the amount of field installation being performed in relation to inplant production and is responsible for designating both foremen and general foremen and assigning them to field projects when called for by crew sizes under the collective-bargaining agreement. Accordingly, we find that both Friley and Shy occupy managerial and high level supervisory posi- tions with Respondent. Since Respondent has stipu- lated that both Friley and Shy have attended union meetings and voted in internal union elections and have held offices in the Union, we find that Respondent has interfered with the internal affairs of a labor organization in violation of Section 8(a)(2) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. 641 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent Schwenk Incorporated is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheetmetal Workers International Association, Local Union No. 2, is a labor organization within the meaning of Section 2(5) of the Act. 3. By permitting Wesley Friley and Jim Shy, managerial and high level supervisory employees of Respondent, to attend meetings and vote in secret elections and to hold elective office in Sheetmetal Workers International Association, Local Union No. 2, Respondent has interfered in the internal affairs of said Union and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Schwenk Incorporated, Kansas City, Kansas, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interfering with the internal affairs of Sheetme- tal Workers International Association, Local Union No. 2, by permitting Wesley Friley and Jim Shy to attend meetings and vote in secret elections and hold elective offices in said Union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights protected under Section 7 of the Act. 2. Take the following affirmative action which the Board finds is necessary to effectuate the policies of the Act: (a) Notify and require of Wesley Friley and Jim Shy that while they are employed by Respondent as plant manager and project manager, respectively, they shall not attend meetings or vote in elections or hold elective offices in Sheetmetal Workers Interna- tional Association, Local Union No. 2. (b) Post at its plant in Kansas City, Kansas, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 In the event 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 EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with the internal affairs of Sheetmetal Workers International Association, Local Union No. 2, by permitting our agents, Wesley Friley and Jim Shy, to attend meetings and vote in secret elections or hold elective offices in said Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights protected under Section 7 of the Act. WE WILL instruct and require of Wesley Friley and Jim Shy that while they are employed by us as plant manager and project manager, respec- tively, they shall not attend meetings and vote in elections or hold elective offices in Sheetmetal Workers International Association, Local Union No. 2. SCHWENK INCORPORATED 642