Local Union No. 80, Sheet Metal Workers' International Association, Afl-Cio (Limbach Me-Chanical Contractors)

386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local Union No. 80, Sheet Metal Workers' Interna- tional Association, AFL-CIO (Limbach Me- chanical chanical Contractors) and John Olchowik Sheet Metal Workers' International Association, AFL-CIO and John Olchowik. Cases 7-CB- 6548 and 7-CB-6621 25 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON Upon charges filed by the Charging, Party, John Olchowik, against the Respondent, Local Union No. 80, Sheet Metal Workers' International Asso- ciation, AFL-CIO (the Union), on 28 June 1985 and amended on 26 July 1985, and against the Re- spondent, Sheet Metal Workers' International As- sociation, AFL-CIO (the International), on 30 Sep- tember 1985, the General Counsel of the National Labor Relations Board, through the Regional Di- rector for Region 7, issued an order consolidating cases, and amended complaint and notice of hear- ing on 17 October 1985. The amended complaint alleges that the Union violated Section 8(b)(1)(B) of the National Labor Relations Act' by suspend- ing Olchowik from membership in the Union in order to restrain and coerce his Employer, Lim- bach Mechanical Contractors, in the selection of its representative for the purpose of collective bar- gaining or the adjustment of grievances, and that the International violated Section 8(b)(1)(B) by de- nying Olchowik's appeal of his suspension. The Union and the International filed answers to the amended complaint in which they admitted certain allegations of the complaint but denied the commis- sion of any unfair labor practices. The General Counsel, the Charging Party, and the Respondents thereafter entered into a stipula- tion of relevant facts in which they agreed that no oral testimony was necessary or desired by the par- ties, agreed to waive a hearing before an adminis- trative law judge and the issuance of a judge's de- cision, and further moved to have the proceedings transferred directly to the Board for findings of fact, conclusions of law, and the issuance of an order.2 By order dated 29 July 1986 the Board ap- 1 Sec 8(b)(1)(B) of the Act makes it unlawful for a labor organization to "restrain or coerce . . an employer in the selection of his representa- tives for the purposes of collective bargaining or the adjustment of griev- ances." 2 The parties agreed that the entire record in this case should consist of the stipulation of relevant facts, the order consolidating cases, amend- ed complaint and notice of hearing, and the answers to the amended complaint filed by the Respondents. The parties further agreed that to the extent the Respondents' answers were inconsistent with the stipula- tion of relevant facts, the latter would be deemed controlling. proved the parties' stipulation and granted their motion to have the matter transferred to the Board for decision. The General Counsel and the Union have filed briefs with-the Board in support of their respective positions. The Board has delegated its authority in this pro- ceeding to a three-member panel. On the entire record in this case, including the briefs submitted by the General Counsel and the Union, the Board makes the following FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Employer, a Michigan corporation with its principal office and place of business located in Pontiac, Michigan, is engaged in the nonretail sale and installation of heating and ventilation systems. During the time period relevant here, Limbach was engaged in the installation of ductwork at the First Center Building in Southfield, Michigan. During the calendar year ending 31 December 1984, a rep- resentative period, Limbach, in the course and con- duct of its business operation, received gross reve- nues in excess of $500,000 and purchased and caused to be shipped directly to its Southfield, Michigan jobsite, from points and places located outside the State of Michigan, goods and materials valued in excess of $50,000, We find, in agreement with the parties, that Limbach is an employer en- gaged in commerce within the ' meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union and the International are labor orga- nizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The parties stipulated that, at all relevant times, Olchowik was, employed by Limbach as a foreman and, supervisor within the meaning of Section 2(11) of the Act, possessing authority to act as Limbach's representative for purposes of collective bargaining or the adjustment of grievances. Olchowik was, at the same time, a member of the Union: The record reveals that on or about 17 Decem- ber 1984 Olchowik delivered to the Union a hand- written note signed by him informing it that Lim- bach intended to lay off the Union Steward Donald Heider on 21 December due to a lack of work. The Union's business agent, Jerry Press, de- clined at that time to accept the layoff notice on the ground that the layoff notifications had to be given on stationery containing Limbach's letter- head. The following day, Olchowik delivered a 285 NLRB No. 66 SHEET METAL WORKERS LOCAL 80 (LIMBACH CONTRACTORS) similar layoff notice to the Union, this time on sta- tionery containing the Limbach letterhead, and fur- ther informed the Union that all journeymen and apprentices presently working at the jobsite would also be laid off on 21 December 1984. In a phone conversation held on 20 December 1984, Press in- formed Olchowik that it was "union policy" to have Heider rehired. Olchowik, however, replied that he did not believe that Limbach. was required to rehire Heider under the terms of the collective- bargaining agreement. On 21 December 1984 Heider and four other em- ployees were laid off as scheduled due to lack of work. Sometime in mid-January 1985 Limbach re- hired the four laid-off employees but did not, on Olchowik's recommendation, rehire Heider.3 On 31 January 1985 Press, on behalf of the Union, noti- fied Olchowik in writing that he was being charged with having violated various provisions of the International's constitution and the Union's bylaws due to Limbach's failure to rehire Heider.4 Thereafer, a trial board meeting was convened by the Union on 29 May 1985 to hear the charges. Olchowik was informed by letter dated 31 May 1985 that he had been found guilty of violating the various constitutional and bylaw provisions and that he was expelled from the Union. Olchowik's appeal of that expulsion to the International was denied on 18 September 1985. The General Counsel alleges that Olchowik's ex- pulsion from membership in the Union, and the In- ternational's denial of Olchowik's appeal of his ex- pulsion, violated Section 8(b)(1)(B) of the Act be- cause such action resulted from Olchowik's per- formance of his collective bargaining, grievance adjustment, and supervisory duties in causing Heider to be laid off on 21 December 1984, and in recommending to, his Employer ' in mid-January 1985 that he not be rehired. The Union, however, contends that the discipli- nary proceedings instituted against Olchowik and which led to his expulsion focused not on his legiti- mate duties as Limbach's supervisor but rather on his failure to abide by the terms of the collective- bargaining agreements and his animosity towards 8 The Union subsequently filed a contractual grievance and a charge with the Board relating to Limbach 's failure to rehire Heider On I May 1985 a settlement agreement was entered into between Limbach, the Union, and Heider in which Heider was to receive a stated sum of money and a promise of possible rehire on a nondiscriminatory basis in exchange for the withdrawal of the grievance and the charge. 4 Although the Union's letter to Olchowik listed the various provisions he allegedly violated, the only conduct engaged in by Olchowik which is specifically addressed in the letter is his decision to lay off Heider on 21 December 1984 and his failure to recommend Heider's reinstatement in mid-January 1985, 5 Thus, the Union claims that Olchowik failed to abide by sec 26F of the parties' collective-bargaining agreement which states, in relevant part, that "the steward shall remain on the job until its completion providing 387 his fellow member, Heider. In support of its posi- tion, the Union argues that it had nothing to ac- complish by disciplining Olchowik on 29 May 1985 for not recalling Heider since that issue had been effectively resolved by the settlement agreement on 1 May 1985. We agree with the General Counsel. The Board has long held that a union violates Section 8(b)(1)(B) when disciplinary action against a super- visor-member is rooted in a dispute between the employer and the union over the interpretation of their collective-bargaining agreement.6 Thus, a union may not infringe on the employer's right to select its collective-bargaining representative by using disciplinary measures to impose the union's interpretation of the collective-bargaining agree- ment on the employer's representative. In NLRB v. Electrical Workers IBEW Local 340, 125 LRRM 2305 (1987), the Supreme Court held that Section 8(b)(1)(B) prohibits discipline of a su- pervisor-member only for performing 8(b)(1)(B) duties which include collective bargaining, griev- ance adjustment, and contract intepretation. The Court rejected the Board's "reservoir doctrine" under which the Board held that Section 2(11) su- pervisors constitute a reservoir of workers avail- able for selection at a future date as 8p)(1)(B) rep- resentatives with collective-bargaining or grievance adjustment authority. Here, the stipulation clearly establishes, and we find, that Olchowik was a su- pervisor who actually performed 8(b)(1)(B) duties. Further, we find that the Union's action against Olchowik was caused by his interpretation and ad- ministration of the collective-bargaining agreement with respect to the layoff and failure to recall Union Steward Heider. Thus, the stipulated record in this case belies the Union's claim that Olchowik's expulsion from membership in that or- ganization was unrelated to his interpretation of the collective-bargaining agreement as Limbach's rep- resentative in laying off and not recalling Heider. As noted, the only conduct engaged in by Olchowik that is specifically complained of in the 31 January 1985 letter notifying him of the charges is his decision concerning the layoff and refusal to recall Heider. There is nothing in that letter to sug- gest that charges were related to any animosity or conflict between Heider and Olchowik. Further, the minutes of the 29 May 1985 trial board meeting reveal that the Union began the meeting by listing the sections of the International's constitution and he is qualified to perform the available work," and that it did not intend to force a change in the Employer's interpretation of the contract 6 See, for example, Sheet Metal Workers Local 141 (Glenway Invest- ments), 270 NLRB 1350 (1984); Longshoremen ILA Local 333 (Morania Oil Tankers), 233 NLRB 387 (1977). 388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Union's bylaws Olchowik was charged with violating and then immediately proceeded to re- count Olchowik's role in the layoff and failure to recall Heider. It was only after Olchowik's conduct in this regard was detailed that other incidents in- volving Olchowik were discussed.7 From the Union's initial letter informing Olchowik of the charges against him to the con- duct of the trial board meeting, it is obvious that Olchowik's actions toward Heider provoked the Union's charges and remained the central focus of its proceeding against Olchowik. The other inci- dents were clearly afterthoughts. Thus, despite the Union's assertion that it had nothing to gain or ac- complish, in light of the 1 May 1985 settlement agreement, by disciplining Olchowik for his deci- sion to lay off and not recall Heider, the Union's course of conduct indicates that Olchowik, in fact, was expelled from the Union for his actions involv- ing Heider. In view of the above facts we find, in agreement with the General Counsel, that Olchowik was ex- pelled from membership in the Union because of his interpretation of the collective-bargaining agreement on behalf of his Employer, Limbach.8 The Union's conduct in this regard had the effect of restraining and coercing Limbach in the selec- tion of its representative for the purpose of collec- tive bargaining or the adjustment of grievances and, accordingly, violated Section 8(b)(1)(B) of the Act. Further, the International's decision to uphold the Union's expulsion of Olchowik similarly violat- ed Section 8(b)(1)(B) of the Act.9 IV. THE REMEDY Having found that the Respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act, we shall order that they cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. 'On the basis of the foregoing facts and the entire record, the Board makes the following 7 Thus, the minutes of the trial board meeting, which were appended to the stipulation and which forms part of the record herein, indicate that during the 29 May 1985 hearing, Olchowik was further accused and found guilty of other alleged infractions, i e, not being compensated for overtime work, allowing a sprinkler fitter to perform sheet metal work, etc 8 The Union's assertion that Olchowik had failed to abide by the terms of the collective-bargaining agreement clearly indicates that the action taken against Olchowik resulted from the performance of his role as con- tract interpreter. Thus, it was Olchowik's refusal to agtee with the Union's interpretation of sec 26F of the contract pertaining to the right of a union steward to remain on the job, and his subsequent decision to proceed with Heider's layoff and not have him recalled, which led to the institution of charges against him 9 See Electrical Workers IBEW (Bergelectric Corp), 271 NLRB 25 (1984) CONCLUSIONS OF LAW 1. The Respondents are labor organizations within the meaning of Section 2(5) of the Act. 2. Limbach Mechanical Contractors is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. John Olchowik was at all material times herein a supervisor within the meaning of Section 2(11) of the Act and a representative selected by Limbach Mechanical Contractors for the purpose of collective bargaining and the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. 4. By maintaining charges against John Olchowik and by expelling him, the Respondent, Local Union No. 80, Sheet Metal Workers' Inter- national Association, AFL-CIO, restrained and co- erced Limbach Mechanical Contractors in the se- lection and retention of its representatives for the purpose of collective bargaining and the adjust- ment of grievances and thereby has engaged in unfair labor practices within the meaning of Sec- tion 8(b)(1)(B) of the Act. 5. By ratifying Local Union No. 80's decision to expel John Olchowik from membership, the Re- spondent, Sheet Metal Workers' International As- sociation, AFL-CIO, has engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 6. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER 10 The National Labor Relations Board orders that A. The Respondent, Local Union No. 80, Sheet Metal Workers' International Association, AFL- CIO, Southfield, Michigan, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining and coercing Limbach Mechani- cal Contractors in the selection of its representa- tives for the purpose of collective bargaining and the adjustment of grievances by maintaining charges against, expelling from membership, or otherwise disciplining Limbach's representatives because of their performance of those duties. (b) In any like or related manner restraining or coercing Limbach Mechanical Contractors in the 10 In its brief to the Board, the General Counsel requests the Board to include in its Order a provision for a visitatorial clause authorizing the Board, for compliance purposes , to obtain discovery from the Respond- ents under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order In the circum- stances of this case, we find it unnecessary to include such a clause in our Order SHEET METAL WORKERS LOCAL 80 (LIMBACH CONTRACTORS) 389 selection of its representatives for the purpose of collective bargaining or the adjustment of griev- ances. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind and remove from its files all records of the charges brought against and the expulsion of John Olchowik. (b) Restore John Olchowik to membership in good standing with all attendant rights and privi- leges. (c) Notify John Olchowik in writing that it has taken the above action. (d) Post at its office and any place where its meetings are customarily held copies of the at- tached notice marked "Appendix."11 Copies of the notice, on forms provided by the Regional Direc- tor for Region 7, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted. Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Furnish the Regional Director for Region 7 signed copies of the notice for posting by Limbach Mechanical Contractors, if willing, at all places where notices to employees are customarily posted. (f) Notify the Regional Director in writing within 20. days from the date of this Order what steps the Respondent has taken to comply. B. The Respondent, Sheet Metal Workers' Inter- national Association, AFL-CIO, Washington, D.C., its officers, agents, and representatives, shall 1. Cease and desist from (a) Ratifying the discipline of expulsion from membership imposed by Local Union No. 80 on John Olchowik for performance of his duties as collective-bargaining or grievance adjustment rep- resentative. (b) In any like or related manner restraining or coercing Limbach Mechanical Contractors in the selection of its representatives' for the purpose of collective bargaining or the adjustment of griev- ances. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the denial of the appeal filed by John Olchowik for the discipline imposed on him by Local Union No. 80 because of his performance of In If 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 Nation- al 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 " his collective-bargaining or grievance adjustment duties on behalf of his employer, Limbach Mechan- ical Contractors. (b) Remove from its files any reference to the denial of the appeal filed by John Olchowik and any reference to the disciplinary action taken against him by Local Union No. 80, and notify him in writing that it has done so. (c) Post at its offices in Washington, D.C. copies of the attached notice marked "Appendix."12 Copies of the notice, on forms provided by the Re- gional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted. Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director for Region 7 signed copies of the notice for posting by Limbach Mechanical Contractors, if willing, at all places where notices to employees are customarily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 12 See fn. 11 above. APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT restrain or coerce Limbach Me- chanical Contractors in the selection of its repre- sentatives for the purpose of collective bargaining or the adjustment of grievances by maintaining charges against, expelling from membership, or otherwise disciplining such representatives for acts performed in execution of their representative duties on behalf of their employer. WE WILL NOT in any like or related manner re- strain or coerce Limbach Mechanical Contractors in the selection of its representatives for the pur- pose of collective bargaining or the adjustment of grievances. WE WILL rescind and remove from our files all records of the charges brought against and in the 390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD expulsion 'of John Olchowik, and WE WILL restore him to membership in good standing with all at- tendant rights and priviliges and shall notify him in writing of our actions. LOCAL UNION No. 80, SHEET METAL WORKERS' INTERNATIONAL ASSOCIA- TION, AFL-CIO APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT ratify Local Union No . 80, Sheet Metal Workers' International Association, AFL- CIO's expulsion of John Olchowik from member- ship in that organization because of his perform- ance of his duties on collective bargaining or griev- ance adjustment representative. WE WILL NOT in any like or related manner re- strain or coerce Limbach Mechanical Contractors in the selection of its representatives for the pur- pose of collective bargaining or the adjustment of grievances. WE WILL rescind our denial of John Olchowik's appeal of his expulsion and shall remove any and all reference to such expulsion from our files and WE WILL notify him in writing of our actions. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. SHEET METAL WORKERS' INTERNA- TIONAL ASSOCIATION, AFL-CIO