Miami Valley Carpenters District Council Of Ohio, United Brotherhood Of Carpenters & Joiners Of America, Afl--Cio

492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Miami Valley Carpenters District Council of Dayton, Ohio, United Brotherhood of Carpen- ters & Joiners of America, AFL-CIO and Con- course Construction Company. Case 9-CB-6484 September 12, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On October 24, 1986, Administrative Law Judge Robert T. Wallace issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed cross-exceptions and a supporting brief and an answering brief to Respondent's exceptions. The Charging Party filed an answering brief to Respondent's exceptions. The Respondent and the General Counsel filed State- ments of Position in response to the issuance on August 30, 1988, of the Board's Notice to Parties of Opportunity to Submit Statements of Position with respect to the issues raised by the Supreme Court's decision in Royal Electric.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions only to the extent consistent with this Decision and Order. This case involves the issue whether the Re- spondent violated Section 8(b)(1)(B) of the Act by filing charges and assessing fines against two of its members, employed as supervisors, for crossing and working behind a picket line. The Company is a nonunion general contractor engaged in several major construction and renovation projects at the Mead Data Central Complex in Dayton , Ohio. The two supervisors, Thomas Drummer and Robert Predmore, are both members of the Respondent and both employed as job superintendents at the Mead Data Complex. The Respondent picketed the Mead Data Complex in February 1986 carrying signs stating "[p]ublic information . . . [the Compa- ny] does not have a contract with . . . [the Union]." The Respondent filed charges against ' NLRB v. Electrical Workers IBEW Local 340 (Royal Electric), 481 U.S. 573 (1987). 2 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings Drummer and Predmore for crossing , and working behind, the picket line. The judge found that both Drummer and Pred- more were supervisors within Section 2(11) of the Act, and, applying the Board's "reservoir doc- trine," found that they were employer representa- tives within the meaning of Section 8 (b)(1)(B). However, even apart from the reservoir doctrine, the judge concluded that the evidence established that Drummer and Predmore are "representative(s) for the purpose of collective bargaining or the ad- justment of grievances" within the meaning of Sec- tion 8(b)(1)(B). In response to the Respondent's contention that no violation occurred because there was no show- ing that it had a recognitional object with respect to the Company's employees, the judge stated that he was obliged to follow the Board 's policy that a recognitional objective was not needed in order to find an 8(b)(1)(B) violation . The judge went on to find, however, that the Respondent in fact had a recognitional objective. The judge found that the Respondent's picket sign message that the Mead Data Complex was being built by a nonunion con- tractor and its fining and otherwise disciplining members who crossed or worked behind the line evidenced a purpose of forcing the Company to recognize and bargain with the Respondent. For the reasons set forth below, we find that the Re- spondent's conduct did not violate Section 8(b)(1)(B). Section 8(b)(1)(B) provides that it shall be an unfair labor practice for a labor organization to re- strain or coerce an employer in the selection of its representatives for the purposes of collective bar- gaining or the adjustment of grievances . Section 8(b)(1)(B) was intended primarily to prevent a union engaged in a long-term relationship with an employer from dictating the latter's choice of col- lective-bargaining or grievance representatives or the form that such representation would take. S. Rep. No. 105, 80th Cong., 1st Sess. 21 (1947); Royal Electric, 481 U.S. 573 at 591. Further, it is clear that the Congressional purpose in enacting Section 8(b)(1)(B) was to protect a supervisor's performance of grievance adjustment and collec- tive-bargaining duties from being adversely affect- ed by a union's discipline of its members. Royal Electric at 588-589. In Royal Electric, decided subsequent to the issu- ance of the judge's decision in this case, the Su- preme Court carefully defined the prerequisites necessary for a finding that a union violated Sec- tion 8(b)(1)(B). The Court held that "union disci- pline directed at supervisor-members without Sec- tion 8(b)(1)(B) duties, working for employers with 296 NLRB No. 67 CARPENTERS DISTRICT COUNCIL OF DAYTON (CONCOURSE CONSTRUCTION CO.) whom the union neither has nor seeks a collective- bargaining relationship, cannot and does not ad- versely affect the performance of Section 8(b)(1)(B) duties." Id. at 595 . Rejecting the Board's "reservoir doctrine" in part II of its decision, the Court first concluded that in order to find an 8(b)(1)(B) viola- tion, a supervisor must actually possess grievance adjustment or collective-bargaining responsibilities: One simply cannot discern whether discipline will have an adverse impact on a supervisor- member's future performance of § 8(b)(1)(B) duties when their existence is purely hypothetical. The possibility that a § 2(11) supervisor might someday perform § 8(b)(1)(B) functions and that past discipline might then have an adverse effect on the performance of such duties is simply too speculative to support a finding that an employer has been "restrain [ed] or coerce[d]" "in the selection of his representatives for the purposes of collective bargaining or the adjust- ment of grievances." [Emphasis added.] Id. at 588-589. Thus, in order for an 8(b)(1)(B) vio- lation to occur, the Supreme Court's decision re- quires evidence of a supervisor's actual possession of grievance adjustment or collective-bargaining responsibilities, and not simply the possibility that a supervisor may someday perform 8 (b)(1)(B) func- tions. In addition to requiring that a supervisor actually possess grievance adjustment or collective-bargain- ing responsibilities, the Court went on in part III of its decision to find that a union must either have or be seeking a collective-bargaining relationship with the employer in order for a violation of Section 8(b)(1)(B) to occur: On reasoning analogous to that in Part II, we find that the absence of a collective -bargaining relationship between the union and the em- ployer, like the absence of § 8(b)(1)(B) respon- sibilities in a disciplined supervisor-member, makes the possibility that the Union 's discipline of Schoux and Choate will coerce Royal and Nutter too attenuated to form the basis of an unfair labor practice charge. [Emphasis added.] Royal Electric at 589. The Court reasoned that when a union has a col- lective-bargaining relationship with an employer, it may have an incentive to affect its supervisor-mem- ber's handling of grievance adjustment and collec- tive-bargaining duties, and union discipline occur- ring during the performance of 8(b)(1)(B) duties may adversely affect the future performance of those duties . The Court explained, however, that if a union has no relationship and does not seek to es- 493 tablish one with the employer, a union has no moti- vation or incentive to influence a company's choice of representative: [W]hen a union has no collective-bargaining rela- tionship with an employer, and does not seek to establish one [emphasis added] , both the incen- tive to affect a supervisor's performance and the possibility that an adverse effect will occur vanish. . . . In other words, the assumption underpinning Florida Power and ABC-that an adverse effect can occur simply by virtue of the fact that an employer-representative is dis- ciplined for behavior that occurs during per- formance of § 8(b)(1)(B) tasks-is not applica- ble when the employer has no continuing rela- tionship with the union. Id. at 590. Thus, for an 8(b)(1)(B) violation to occur, Royal Electric requires the existence of a collective-bar- gaining relationship between the union and the em- ployer, or evidence that a union has an actual, and not simply a hypothetical or speculative, intent to establish such a relationship with the employer. A union cannot restrain or coerce an employer in the selection of a collective-bargaining representative if the union does not even seek to establish a collec- tive-bargaining relationship with the employer. Under the facts of Royal Electric, the Court had no difficulty in concluding that the Union was not seeking to represent the employees of Royal and Nutter, since the Union had terminated its bargain- ing relationship a year prior to its discipline of union members, had filed a disclaimer of interest, and made no subsequent organizing efforts . Thus, it was not necessary for the Court to set forth in detail precisely when it would find that, for the purposes of Section 8(b)(1)(B), the union was seek- ing a collective-bargaining relationship. It is evident, however, from the entire thrust of the Court's opinion in Royal Electric, that that phrase is to be interpreted restrictively. There must be evidence not only of an actual intent to seek recognition, but the union must currently be seek- ing recognition. It is not sufficient that the union might seek to establish a collective-bargaining rela- tionship sometime in the unspecified future. 3 Thus, as discussed above, the Court noted that the as- sumption that an adverse effect on a supervisor's performance can occur simply because an employ- er-representative is disciplined for behavior during the performance of 8(b)(1)(B) tasks is not applica- ble "when the employer has no continuing relation- 8 As the Ninth Circuit recognized in Royal Electric, a "generalized desire to bargain is an essential characteristic of all unions " 780 F.2d 1489, 1493 (1986) 494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ship with the union."4 As the Court further noted, if a union does not currently have a recognitional objective, it has no incentive or motivation to affect a supervisor's performance of grievance-ad- justment or collective-bargaining responsibilities, and there is little possibility that its actions will have an effect on a supervisor's performance.5 The conclusion that the union must currently be seeking recognition is buttressed by the Court's analogy to its finding in part II of its opinion that a supervisor must actually possess grievance adjust- ment or collective-bargaining responsibilities in order for an 8(b)(1)(B) violation to occur,6 and its conclusion in part III of its opinion that "the ab- sence of a collective-bargaining relationship . . . makes the possibility that the Union's discipline . . . will coerce Royal and Nutter too attenuated to form the basis of an unfair labor practice charge."7 (Emphasis added.) Just as it found that a supervisor must currently possess grievance adjustment or col- lective-bargaining responsibilities, the Court also found that the absence of an actual and current intent to represent an employer 's employees makes a union's discipline of supervisor-members "too at- tenuated" and "speculative" to support a finding that an employer has been coerced in the selection of an 8(b)(1)(B) representative. Indeed, the Court quoted with approval the Ninth Circuit's finding that the Union had not demonstrated an intent to represent the Companies' employees: We require some evidence of specific overt acts such as picketing, handbilling , making statements of interest to the employers, or passing out opposition cards to find a desire to represent these particular employees. Here there was no evidence of such an intent. Royal Electric at 579 fn. 3, quoting 780 F.2d 1489, 1492-1493 (9th Cir. 1986). The requirement that there be evidence of specific overt acts indicates that more than a generalized long-term recogni- tional objective is required for a finding of an 8(b)(1)(B) violation. We must now determine whether the Union's ac- tions here establish a sufficiently current recogni- tional objective such that the Company might be coerced by the Respondent's action in fining Drummer and Predmore. The Respondent picketed the Employer's Mead Data Complex by carrying 4 Royal Electric at 590. 5 Obviously, the further removed a union is from the possibility of the establishment of a collective-bargaining relationship , the less likely it be- comes that a union's imposition of discipline on a supervisor -member will adversely affect the supervisor's performance of 8(b)(1)(B) duties. 6 Royal Electric at 589. 7 Id signs stating "[p]ublic information . . . [the Compa- ny] does not have a contract with . . . [the Union]." The signs themselves, while reflecting a general recognitional objective,8 do not demand recognition. On their face at least, they are com- munications to the public at large . The picketing was not accompanied by any other conduct which would reflect a recognitional objective, i.e., the Re- spondent made no statement of interest to or demand for recognition on the Employer, nor did it engage in any of the types of activity which would establish that it was currently seeking recog- nition from the Company. Thus, while the picket signs indicate a general recognitional objective, there is nothing to indicate that the Respondent's recognitional objective was other than long term. The specific 8(b)(1)(B) conduct alleged here is Respondent's imposition of fines on two supervisor- members, Drummer and Predmore, for crossing and working behind a picket line for a nonunion general contractor. In Royal Electric, the Court found that the union's act of fining supervisor- members for working for employers that did not have a collective-bargaining relationship with the union did not evidence an intent to represent on the part of the union. Thus, the primary difference between the instant case and Royal Electric is the fact that here the Respondent also picketed the Employer. Absent the picket line, in both cases the supervisors were fined for working for a nonunion employer. In view of our findings with respect to the picket line and particularly the absence of any conduct indicating a current recognitional objec- tive, we see no basis for imputing such an objective simply because the Respondent fined its members for crossing that picket line. Thus, we find that while the Respondent, through its use of informational picketing and fining any members who crossed the picket line, may have held a long-range recognitional objec- tive, there is insufficient evidence here, under the standards of Royal Electric, to establish that it had a current recognitional objective. Therefore, we con- clude that the Union did not violate the Act by fining Supervisor-Members Drummer and Pred- more for crossing and working behind the picket line at the Mead Data Complex9 and we shall dis- miss the complaint. 8 Crown Cafeteria, 135 NLRB 1183 (1962), affd sub nom Smitley V. NLRB, 327 F.2d 351 (9th Cir . 1964). Our analysis here of evidence as it pertains to a recognitional objective reflects the purposes of only Sec. 8(b)(l)(B), which we are called on to apply in this case . Nothing we say here would necessarily apply in construing other sections of the Act, such as Sec . 8(b)(7), which serve different purposes. 9 In light of this finding , we find it unnecessary to pass on the remain- ing issues in this case, including whether Drummer and Predmore are employer representatives within the meaning of Sec 8 (b)(1)(B). CARPENTERS DISTRICT COUNCIL OF DAYTON (CONCOURSE CONSTRUCTION CO.) 495 ORDER The complaint is dismissed. Deborah Jacobson, Esq., for the General Counsel. John R. Doll, Esq. (Logothetis & Pence), of Dayton, Ohio, for Respondent Union. Peter K. Newman, Esq. (Smith & Schnacke), of Dayton, Ohio, for the Charging Company. DECISION STATEMENT OF THE CASE ROBERT T. WALLACE, Administrative Law Judge. On a charge filed by Concourse Construction Company on 2 May 1986, a complaint was issued on 13 June. Hearing was held on 22 July at Dayton, Ohio. The complaint, as amended prior to the hearing, al- leges that the Union violated Section 8(b)(1)(B) of the National Labor Relations Act by filing charges and as- sessing fines against two union members who were em- ployed by the Company as supervisors, thereby restrain- ing or coercing the Company in its selection of repre- sentatives for the purpose of collective bargaining and adjustment of grievances. Based on the entire record , including my observation of the witnesses and after due consideration of briefs filed by the General Counsel, the Company, and the Union, I make the following FINDINGS OF FACT I. BACKGROUND and Predmore and Drummer are shown to have exer- cised such authority using their own independent judg- ment and without need for approval by any higher offi- cial of the Company. The fact that they supervised a smaller number of employees than a superintendent at a typical union jobsite is without significance as it is well established that possession of any one of the supervisory indicia with respect to any number of employees is suffi- cient to confer supervisory status under the Act. NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (6th Cir. 1948). The evidence also shows that Predmore and Drummer are employer representatives within the meaning of Sec- tion 8(b)(1)(B) of the Act. The Board has long held that the term "representative for the purposes of collective bargaining or the adjustment of grievances " as used in that section should be interpreted broadly so as to in- clude all supervisors within the meaning of Section 2(11). Known as the "reservoir doctrine," this interpretation is based on the fact that an employer 's supervisors form the logical "reservoir" from which it is likely to select its representatives for purposes of collective bargaining or grievance adjustment. As the Supreme Court stated in American Broadcasting Cos v. Writers Guild, 437 U.S. 411, 436 (1978), Union pressure on supervisors can affect either their willingness to serve as grievance adjustors or col- lective bargainers, or the manner in which they ful- fill these functions; and either effect impermissibly coerces the employer in his choice of representa- tive. The basic facts are not in dispute. The Company is an nonunion general contractor engaged , as pertinent, in several major construction and renovation projects at the Mead Data Central Complex in Dayton, Ohio. The two alleged supervisors are Robert Predmore and Thomas Drummer. Both are members of the Union and at perti- nent times were employed by the Company as "job su- perintendents," each being responsible for proper com- pletion of different projects within the Mead Complex. On 3 February Respondent began picketing at the en- trance to the Mead jobsite . The pickets carried signs stat- ing "Public information . . . [the Company] does not have a contract with . . . [the Union]." On that date and on numerous occasions up to and through the time of hearing, Predmore and Drummer crossed the picket line and worked behind it. Intraunion charges were filed against them for doing so in violation of a union bylaw, and on 4 June, they were fined $1200 each. Neither the charges nor the fines had any effect upon their job per- formance. II. STATUS OF PREDMORE AND DRUMMER It is clear from the evidence that both individuals pos- sessed and often exercised authority sufficient to qualify them as supervisors within the meaning of Section 2(11) of the Act. The overall site manager to whom they re- ported (Bill Smith) testified without contradiction that they had authority to hire, discipline, fire, and direct the work of employees assigned to their respective projects; Accordingly, and under the reservoir doctrine, I find Predmore and Drummer to be representatives of the Company by virtue of their status as statutory supervi- sors. Electrical Workers IBEW Local 340 (Nutter, Inc.), 271 NLRB 995 (1984), enf. denied on other grounds 780 F.2d 1489 (9th Cir. 1986), Teamsters Local 296 (Northwest Publications), 263 NLRB 778 (1982); Carpenters Local 14 (Kaplan Properties), 217 NLRB 202 (1975); Toledo Lithog- raphers, 175 NLRB 1072 (1969), enfd. 437 F.2d 55 (6th Cir. 1971). But even apart from the reservoir doctrine, the evi- dence establishes that Predmore and Drummer had au- thority to and did adjust "grievances" as the Board de- fines the term. Thus, both investigated and caused to be corrected employee complaints about shortages in their paychecks, both exercised discretion in granting or deny- ing requests for time off, and both handled complaints from employees who could not get along together by as- signing them to different jobs. Also, Predmore is shown to have obtained raises for employees who complained about low wages. The Board has repeatedly held that the term "griev- ance adjustment" as used in Section 2(11) and Section 8(b)(1)(B) is not limited to the resolution of formal con- tractual grievances. Rather, it has construed the term broadly as including "personal" as well as "contractual" grievances. Toledo Lithographers, supra. And in Sheet Metal Workers Local 85 (Suburban Sheet Metal), 273 NLRB 523 (1984), it found the employer's "field fore- 496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD man" to be an 8(b)(1)(B) representative based on evi- dence that he was a statutory supervisor, that he had ef- fectively recommended wage increases for employees, and had granted time off. See also Nutter, supra, where at 997 the Board held that the employer's superintendent was an 8(b)(1)(B) grievance adjuster based on evidence that he "granted employees time off and resolved person- al complaints or problems regarding job assignments." As Administrative Law Judge Arthur Leff observed in Columbia Typographical Union 101, 207 NLRB 841, 847 (1973): The fact that the grievances with which [the super- visor] dealt were relatively minor can be of no con- trolling significance . The employer's bargaining ob- ligation under the Act is as much applicable to minor employee grievance as to major ones. So, too, is management's need for representation in their consideration and adjustment. III. LAWFULNESS OF FINES As noted the Union fined Predmore and Drummer for crossing and working behind a picket line at the Mead Complex. As they performed only supervisory duties at that site, the obvious and admitted purpose of the fines was to coerce Predmore and Drummer to cease working for the Company in that capacity at least while the picket line was in place. Under Board law fines imposed in such circumstances are coercive and unlawful . The applicable legal princi- ples are concisely stated by Administrative Law Judge Jerrold H. Shapiro in Plumbers Local 364 (West Coast Contractors), 254 NLRB 1123, 1125 (1981): It is . . . well settled that union discipline of su- pervisor-members who cross a picket line or other- wise violate a union's no-work rule in order to per- form their normal supervisory functions constitutes indirect union pressure within the prohibition of Section 8(b)(1)(B). In reaching this conclusion, the Board and courts have recognized that the reason- ably foreseeable and intended effect of such disci- pline is that the supervisor-member will cease work- ing for the duration of the dispute, thereby depriv- ing the employer of the grievance adjustment serv- ices of his chosen representative. [Citations omit- ted.] Such discipline is unlawful even where, as here, the supervisor defies the Union and continues to work for the employer during the dispute; the discipline is unlawful because the supervisor , having been disciplined for working during a labor dispute, may reasonably fear further discipline and, hence, will be deterred from working during any future disputes. The employer, in such circumstances, must either replace the disciplined supervisor or risk loss of his services during a future dispute; in either event, the employer is coerced in the selection and retention of his chosen grievance adjustment repre- sentative. American Broadcasting Companies, supra, 433-437. But the Union contends that no violation can be found because here there is no showing that it had a represen- tational object with respect to the Company's employees. In support it cites two decisions' wherein the 9th Circuit Court of Appeals refused to enforce Board orders based upon finding of 8(b)(1)(B) violations absent a showing that the disciplined union members worked for compa- nies whose employees were represented, or were sought to be represented, by the union. In its decision in Plumb- ers Local, supra, however, the Board declined to accept that defense, and it went on to find a violation where the union neither represented nor desired to represent em- ployees. See also Musicians (Royal Palm Theatre), 275 NLRB 667 (1985). In these circumstances, I am obliged to follow the Board policy. See Consolidated Casinos Corp., 266 NLRB 988 (1983); Lenz Co., 153 NLRB 1399 (1965). This is es- pecially so where, as here, that policy is one of long- standing and appears to accord with the rationale of the Supreme Court in American Broadcasting Cos, supra, and to have been explicitly adopted in NLRB v. Electrical Workers IBEW Local 323, 703 F.2d 501 (11th Cir. 1983). In any event, the factual premise of the Union's argu- ment is false. More is involved here than advice to the public that the Mead Complex was being built by a non- union contractor. The Union chose to enhance that mes- sage by use of a picket line and by fining or otherwise disciplining members who crossed or worked behind the line. The obvious purpose was to pressure the Company into recognizing and bargaining with the Union. Accord- ingly, I find that the Union in fact had a recognitional objective. CONCLUSIONS OF LAW 1. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 2. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Robert Predmore and Thomas Drummer, at all times material, were supervisors for the Company within the meaning of Section 2(11) of the Act, and had and ex- ercised authority to adjust grievances within the meaning of Section 8(b)(1)(B) of the Act. 4. By fining Predmore and Drummer for crossing and working behind its picket line, the Union restrained and coerced the Company in the selection and retention of representatives for the purpose of adjusting grievances, and thereby acted unlawfully in violation of Section 8(b)(1)(B) of the Act. 5. The aforementioned unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Union has engaged in unfair labor practices, the Union will be ordered to cease and ' NLRB v. Electrical Workers IBEW Local 73, 621 F 2d 1035 (9th Cit. 1980) (the "Chewelah" case) and NLRB v. Electrical Workers IBEW Local 340, 780 F.2d 1489 (9th Cit. 1986) The latter partially reversed the Board's decision in the Nutter, supra. CARPENTERS DISTRICT COUNCIL OF DAYTON (CONCOURSE CONSTRUCTION CO.) 497 desist therefrom, to reimburse Robert Predmore and visitatorial clause for discovery purposes as requested in Thomas Drummer for fines unlawful imposed , and to the complaint and in the General Counsel's brief. post the appended notice . There is no need for a special [Recommended Order omitted from publication.]