Comfort Conditioning Co.

National Labor Relations Board - Administrative Judge Opinions

May 27, 2003

21-CB-013128 (N.L.R.B. May. 27, 2003)

JD(SF)-37-03
Los Angeles, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, LOCAL UNIONS 102 AND 105
(COMFORT CONDITIONING CO., INC.)

and Case No. 21-CB-13138

JACK DRESSER, an Individual

Lisa E. McNeill, Atty., (Region 21) of Los Angeles,
California, Counsel for the General Counsel
Christina C. Bleuler, Atty., Wylie, McBride, Jesinger,
Platten & Renner, San Jose, California,
Counsel for Respondent.

DECISION

Statement of the Case

LANA H. PARKE, Administrative Law Judge. This case was tried in Los Angeles,
California on April 2, 2003. Pursuant to charges filed by Jack Dresser, an individual,
(Mr. Dresser), the Regional Director of Region 21 of the National Labor Relations Board (the
Board) issued a Complaint and Notice of Hearing (the complaint) on December 17, 2002.1 The
complaint alleges that Sheet Metal Workers’ International Association, Local Unions 102 and
105 (Respondent)2 violated Section 8(b)(1)(B) of the National Labor Relations Act (the Act) by
restraining and coercing Comfort Conditioning Co., Inc. (the Employer) in the selection of its
representatives for the purpose of collective bargaining or adjustment of grievances.

ISSUES

1. Are the charges herein barred by Section 10(b) of the Act?
2. Was Mr. Dresser a representative of the Employer for the purpose of collective
bargaining or the adjustment of grievances within the meaning of Section
8(b)(1)(B) of the Act at the time Respondent preferred and processed internal
union disciplinary charges and imposed a fine against him?
3. Did Respondent either have or seek to have a collective-bargaining relationship
with the Employer.
4. Did Respondent violate Section 8(b)(1)(B) of the Act by preferring and processing
internal union disciplinary charges and imposing a fine against Mr. Dresser?

1 All dates are in 2001 unless otherwise indicated.
2 Effective December 2001, Sheet Metal Workers’ International Association, Local Unions
102 and 108 merged to form Local 105, (respectively, Local 102, 108, and 105.)

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On the entire record3 and after considering the briefs filed by the General Counsel and
Respondent, I make the following

FINDINGS OF FACT

I. Jurisdiction

The Employer, a California corporation, with its principal office located in Corona,
California, is engaged in business as an air conditioning contractor for commercial construction
projects. During the representative twelve-month period prior to March 20, Respondent
provided services valued in excess of $50,000 to enterprises within the State of California,
including the Los Angeles Unified School District (LAUSD), each of which enterprises, within the
same period of time, purchased and received goods valued in excess of $50,000 directly from
points outside the State of California.4 I find the Employer is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and Respondent is a labor
organization within the meaning of Section 2(5) of the Act.5

II. Alleged Unfair Labor Practices

A. Gardena High School construction project

Since its inception in July 2000, the Employer has had no direct collective-bargaining
relationship with Respondent or any other union. In August 1999, various construction
contractors and building trades unions in the Los Angeles area entered into a Project
Stabilization Agreement (PSA). The parties to the PSA, including Local 108, agreed that
contractors performing work on projects for LAUSD would provide their employees with the
wages and fringe benefits set by the applicable construction trade master agreement and make
required contributions to the union trust funds. The PSA did not require any contractor to be
union signatory, but it bound contractors to the “terms, conditions and provisions of the
Standard Form of Union Agreement and Addenda Thereto between [Local 108] and Sheet
Metal and Air Conditioning Contractors’ National Association, Los Angeles Chapter…(the
‘Master Agreement’)” for the period of the individual contractor’s LAUSD project.

In late 2000, the Employer contracted to provide mechanical heating, ventilation and air
conditioning (HVAC) construction services to Reza, Inc., the general contractor for construction
work at Gardena High School, a school within the LAUSD (the Gardena High project.) On
January 19, Luther Medina (Mr. Medina), Local 108’s field investigator met with Mary Ann
3 Counsel for the General Counsel’s unopposed post-hearing motion to correct the transcript
is granted except as to the requested correction of page 108, line 8, which counsel inadvertently
miscited. The motion and corrections are received as Administrative Law Judge exhibit 1.
4 Although Respondent denied in its answer, for lack of knowledge, that the Employer met
the Board’s jurisdictional standards, an “Interstate Commerce Stipulation” signed by the
Employer’s president was received in evidence without objection.
5 Where not otherwise noted, the findings herein are based on the pleadings, the
stipulations of counsel, and/or unchallenged credible evidence.

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Evans (Ms. Evans) and Gary Evans (Mr. Evans), explained the Employer’s obligations under
the PSA, and obtained Ms. Evans’ signature on the requisite subscription agreement binding the
Employer to the PSA and, by extension, to the Master Agreement.6 The Gardena High project
continued until August 2002.

B. Internal union disciplinary action against Mr. Dresser

Respondent’s Constitution at Article 17, Section 1(g) prohibits members from
“…performing any work covered by the claimed jurisdiction of the [union] for any employer…that
is not signatory to or bound by a collective bargaining agreement with an affiliated local union of
this International Association, unless authorized by the local union.” In late 2000, Mr. Dresser,
who had been a member of Local 102 since 1989, applied for a withdrawal card, which he
received some time later.7

Since the PSA required employees to become “temporary” Local 108 members,
Mr. Medina met with Mr. Evans, Mr. Dresser and Dave Evans at the Gardena High jobsite on
February 6 and gave the two employees journeyman applications and benefit cards to fill out.
Mr. Dresser did not tell Mr. Medina he was, or had been, a Local 102 member and left blank the
application questions, “Are you a former member of the Sheet Metal Workers’ International
Association?” and “If so, what was the last Local Union?”8 Following this meeting, on
February 7, Mr. Medina suggested to Richard Marquez (Mr. Marquez), Local 102 organizer, that
he explore organizational possibilities with the Employer as its offices were located in Local
102’s jurisdiction. Mr. Marquez did not follow up on the suggestion at that time.

A short time later, pursuant to Respondent’s trust fund performing a social security
number cross-reference of Mr. Dresser’s application, Local 102 business manager, Lance Clark
(Mr. Clark) and business agent, Phil Cohan (Mr. Cohan) found out that Mr. Dresser, a union
member, was working for the Employer. Learning that Mr. Clark and Mr. Cohan planned to file
internal union charges against Mr. Dresser for working for a nonunion contractor, Mr. Marquez
asked them first to permit him to talk to Mr. Dresser, whom he had known from the union
apprenticeship program. He saw in the situation “a viable option not only to…help out
[Mr.] Dresser as an individual, but to help out the local Union as an organizer.”

6 The Employer’s Corona office was located in Local 102’s jurisdiction, but the Gardena
High project was located in Local 108’s jurisdiction. Therefore, Mr. Medina was responsible for
servicing the project. Under the terms of the PSA, however, Local 108 was prohibited from
organizing the Employer.
7 No party suggests that a withdrawal card would, under Respondent’s constitution, permit
its possessor to work for a nonunion employer or that Mr. Dresser’s withdrawal constituted an
effective resignation of union membership.
8 There was conflicting testimony about whether that portion of Mr. Dresser’s application had
a slash mark through it when presented to him, indicating that it need not be filled out. I find it
unnecessary to resolve the conflict.

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Later at the Gardena High project, Mr. Marquez told Mr. Dresser of the imminent union
charges. Mr. Dresser contended that he was no longer a member of Local 102 because he had
applied for and received a withdrawal card. Mr. Marquez advised Mr. Dresser to reinstate his
membership card and raised the possibility of a salting agreement as a solution to the dilemma.9
Thereafter, Mr. Dresser applied for reinstatement of his union membership card.

In late February, in a telephone conversation with Ms. Evans about Mr. Dresser,
Mr. Medina told her that Mr. Dresser was in trouble because he was a union member working
for a non-signatory contractor. He told her that Mr. Dresser would be in more trouble if he
continued working there. He assured Ms. Evans the Employer had not violated any union rule
and asked if Ms. Evans would meet with Mr. Marquez to find out what the union had to offer the
Employer.

In April, Mr. Marquez met with Mr. and Ms. Evans at Local 102’s Corona office and
pointed out advantages in the Employer’s becoming a union signatory contractor. The meeting
was amicable, but the Evans declined to sign a union contract at that time. Following this
meeting, Mr. Marquez reported to Mr. Clark that the Employer had refused to sign a contract.
Mr. Marquez asked for additional time to talk to Mr. Dresser before charges were preferred to
persuade him to leave the Employer. Mr. Marquez hoped to accomplish two goals: to avoid
union discipline of Mr. Dresser and to encourage the Employer to talk about a contract under
threat of losing a skilled employee. Mr. Marquez thereafter contacted Mr. Dresser, told him that
the Employer had refused to sign a contract and that he needed to leave the Employer to avoid
a union fine. Mr. Dresser did not terminate his employment with the Employer.

Later in April, Mr. Dresser met with Mr. Marquez, Mr. Clark, and Mr. Cohen. Mr. Dresser
said he wanted to continue working for the Employer and asked how he could resolve his
problem with Local 102. He pointed out that the Employer was signatory for the Gardena High
project where he worked and that he was paying for membership in both Locals 102 and 108.
Although no evidence was presented as to Local 102’s response, clearly Respondent did not
approve Mr. Dresser’s continued employment with the non-signatory Employer.

On May 22, Mr. Cohan filed internal Local 102 charges against Mr. Dresser alleging a
violation of Local 102’s Constitution and Ritual by working for the Employer, a non-signatory
contractor. Oh July 16, Local 102 conducted an internal union trial of the charges. In a letter
submitted as evidence in the trial, Mr. Medina stated that he had told Mr. Dresser he “personally
did not have a problem with [Mr. Dresser] working [for the Employer] as long as he had the ok
from Local 102 and was open and honest with his intentions about working for [the Employer]
and possibly helping [Mr. Marquez] in an attempt to organize [the Employer].” Mr. Dresser
stated on the trial summary sheet, “Misled into believing Local 102 would stand behind me.
Economic demands precede union laws & constitution.” Following the trial, on July 30, Local
102 notified Mr. Dresser he had been found guilty of the charges and fined $35,000. On
August 27, Mr. Dresser appealed the trial committee’s findings to the international union. On
January 15, February 22, and March 19, 2002, respectively, Mr. Dressed filed with the Board an
initial and two amended charges against Respondent.

9 Under a salting agreement, a union considers a member to be an organizer of the
nonunion employer and thereby protected against the union constitutional consequences of
working for a nonsignatory company.

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By letter dated March 13, 2002, Michael Sullivan, general president of the international
union, notified Mr. Dresser that the fine against him was reduced to $10,000 and instructed him
to pay that amount to Respondent.

C. Mr. Dresser’s position with the Employer

Ms. Evans and Mr. Evans, respectively, are the Employer’s president and vice-president.
Ms. Evans, who described the business as “very small,” handles the financial, administrative,
and personnel aspects of the business while Mr. Evans does job bidding and estimating. Both
are “very active” in overseeing the Employer’s projects. Mr. Evans hired Mr. Dresser because
he was a skilled HVAC journeyman. Mr. and Ms. Evans assigned Mr. Dresser as jobsite
foreman on the Gardena High project. They also employed Mr. Evans brother, Dave Evans,
whom Mr. Dresser was expected to teach “the ropes.” At the Gardena High project, Mr. Dresser
was responsible for HVAC construction layout and installation, for construction coordination with
the general and other contractors, and for cost oversight. The Employer paid Mr. Dresser
nearly double the contract journeyman rate and provided him with a cell phone and a Home
Depot credit card.

Mr. Dresser signed employee time cards for the Gardena High project and faxed copies
to Ms. Evans who handled payroll. When Mr. Dresser informed Ms. Evans that HVAC work
lagged at the project, Ms. Evans telephoned Respondent’s hiring hall dispatcher and requested
additional workers, specifying the length of time they were expected to work. Workers
dispatched to the jobsite reported to Mr. Dresser who gave them an employment package and
copied necessary identification documents such as driver’s licenses and social security cards.10
For the most part, when dispatched employees concluded the work for which they were hired,
Mr. Dresser notified Ms. Evans who prepared the final paycheck. As to one of the dispatched
workers, Mr. Dresser reported to Ms. Evans that he did not have the experience needed to
install ductwork. Ms. Evans contacted Respondent’s hiring hall, told the dispatcher that the
employee had not worked out, and requested someone else.11 Mr. Dresser reported tool needs
to Ms. Evans; she oversaw tool safety issues. Mr. Dresser notified Ms. Evans when the work
was at a stage where a subcontractor could be scheduled; either Ms. Evans or Mr. Dresser then
scheduled the subcontractor. Employee requests for time off were informally submitted to
Mr. or Ms. Evans.

Mr. Dresser assigned job tasks and work areas to employees based on construction
layouts he designed. He determined work shift start and end times, depending largely on what
areas were ready and/or available for HVAC construction. If necessary, he also showed
employees how to operate tools properly, scheduled equipment delivery, purchased tools and
supplies as needed, and conducted weekly safety meetings

10 Counsel for the General Counsel refers to this process as Mr. Dresser having “hired”
employees. However, Mr. Dresser neither interviewed nor made a selection decision as to any
dispatched employee. I cannot find that Mr. Dresser hired any employee or was responsible for
or even involved in any employment process.
11 Counsel for the General Counsel refers to this process as Mr. Dresser having
“terminated” employees. However, except for one employee, all employment terminations were
pro forma, requiring no particular decision making aside from assessing whether their work was
completed. As to the one replaced employee, credible evidence shows that Mr. Dresser only
reported his lack of qualification to Ms. Evans who otherwise handled the replacement. I cannot
find that Mr. Dresser fired any employee or was responsible for doing so.

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Sometime in December 2001, an employee complained that he had been shorted in
overtime pay. Mr. Dresser notified Ms. Evans who corrected the employee’s pay. According to
Ms. Evans, had a dispute arisen as to the correct pay, she would have talked directly to the
complaining employee. Mr. Dresser fielded other complaints from employees at the Gardena
High project, including those relating to malfunctioning equipment, theft, and vandalism.
Mr. Dresser handled such complaints, as appropriate, by replacing equipment, requesting that
the general contractor fence off the Employer’s work area, and identifying a high school “tagger”
to the general contractor. Although no grievance ever arose between the Employer and any
employee regarding contractual terms under the PSA, should such occur, Ms. Evans anticipated
she would be the person to handle any charge, grievance or dispute, probably with the
assistance of outside legal counsel. With regard to discussions between Mr. and Ms. Evans
and union representatives concerning collective-bargaining matters, Mr. Dresser was neither
involved nor consulted as to the Employer’s position.

D. The Section 10(b) Issue

Respondent argues that Mr. Dresser did not timely file the charges herein, noting the
union internal charges were filed on May 22, while the initial unfair labor practice charge was not
filed until January 15, 2002. The General Counsel points out that Local 102 did not notify
Mr. Dresser of the fine until July 30 and that further actions related to the internal union
discipline occurred thereafter, all within the 10(b) period. Since, as Counsel for the General
Counsel accurately contends, Section 10(b) does not begin to run until the conclusion of the
internal union appeal process,12 the instant charges are timely.

E. Discussion of alleged unfair labor practices

The General Counsel does not contest the legality of Respondent’s constitution or its
right, generally, to fine union members who work for non-union signatory employers. The
parties agree that in order for an 8(b)(1)(B) violation to exist herein, it must be shown that
Mr. Dresser was, at relevant times, an 8(b)(1)(B) representative of the Employer and that Local
102 either had or was seeking a collective bargaining relationship with the Employer.

Section 8(b)(1)(B) of the Act provides:

(b) It shall be an unfair labor practice for a labor organization or its agents—
(a) to restrain or coerce…(B) an employer in the selection of his
representatives for the purposes of collective bargaining or the
adjustment of grievances.

In NLRB v. International Brotherhood of Electrical Workers Local 340 (Royal Electric),
481 U.S. 573, 586 (1987), the Supreme Court concluded that “discipline of a supervisor
member is prohibited under Section 8(b)(1)(B) only when that member is engaged in Section
8(b)(1)(B) activities – that is, collective bargaining, grievance adjustment, or some other
closely related activity (e.g. contract interpretation, as in Oakland Mailers [citation omitted]).
The Board, citing Florida Power & Light Co. v. Electrical Workers IBEW Local 641,13 further
explained that “Section 8(b)(1)(B) prohibits union discipline of supervisor-members only when:
(1) the supervisor-member being disciplined is a ‘representative[s] for the purposes of
collective bargaining or the adjustment of grievances’ and (2) the union’s sanction may have a
12 Sheet Metal Workers (Cabell), 316 NLRB 504, FN 1 (1995).
13 417 U.S., 790, 804-805 (1974)

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foreseeable adverse effect on the future performance of 8(b)(1)(B) activities by the supervisor-
member.” Local No. 10, International Union of Elevator Constructors, AFL-CIO (Thyssen
General Elevator Company), 338 NLRB No. 83, at slip op. 2 (2002). Further, as the Board
explained in International Brotherhood of Electrical Workers, Local 494, et al. (Gerald Nell,
Inc.):14
[T]o violate Section 8(b)(1)(B) a union must, at a minimum, either have a collective-
bargaining relationship with an employer, or at least be seeking to have such a
relationship. As the Court explained in Royal Electric, a union has no incentive to affect a
supervisor-member's performance of collective-bargaining or grievance adjustment
duties, or to influence an employer's choice of representative, in the absence of either a
collective-bargaining relationship or a desire to establish such a relationship. The Board
has recognized that the requirement that a union must be "seeking" a collective-
bargaining relationship (when no on-going collective-bargaining relationship exists) is to
be interpreted narrowly. See Carpenters District Council of Dayton (Concourse
Construction Co.), 296 NLRB 492, 493 (1989). Further, "[t]here must be evidence not
only of an actual intent to seek recognition, but the union must currently be seeking
recognition." Id. at 493.

Addressing the issue of whether Respondent either had or sought to have a collective-
bargaining relationship with the Employer, I find the General Counsel has established that
element. Prior to the union disciplinary proceedings against Mr. Dresser, Respondent made
overtures to Mr. Dresser to serve as a “salt” and met with Mr. and Ms. Evans to discuss the
Employer becoming union-signatory. While Respondent styles its conduct as attempts to avoid
union discipline of Mr. Dresser and while that altruistic purpose may also have existed,
Respondent evinced a clear organizational intent. Further, Respondent’s organizational intent
continued at least until Respondent filed internal union charges against Mr. Dresser. As
Mr. Marquez disclosed, Respondent hoped to encourage the Employer to negotiate under threat
of losing a key employee, and Mr. Medina stated his unconcern with Mr. Dresser’s working for
the Employer if he helped in Local 102’s attempt to organize the Employer. There is no
evidence that Respondent abandoned its hope of persuading the Employer to negotiate even
though it ceased direct overtures. It is reasonable to assume that Respondent’s organizational
purpose continued unabated and that the Respondent continued to hope that Mr. Dresser’s
dilemma might yet prompt the Employer to become union signatory. Moreover, Respondent
had at least a quasi-bargaining relationship with the Employer in that the Employer was
signatory through the PSA to the terms and conditions of the Master Agreement for the Gardena
High project. Accordingly, I conclude that at relevant times, Respondent either had a collective-
bargaining relationship with or sought recognition from the Employer.

It remains to determine if Mr. Dresser was the Employer’s representative for the
purposes of collective bargaining or the adjustment of grievances. Section 2(11) of the Act
defines a "supervisor" as any individual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if the exercise of such authority is not of a merely routine or clerical
14 332 NLRB No. 112, at slip op. 2 (2000), review granted Podewils v. N.L.R.B., 274 F. 3d
536 (2001).

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nature, but requires the use of independent judgment. "The possession of even one of those
attributes is enough to convey supervisory status, provided the authority is exercised with
independent judgment, not in a merely routine or clerical manner." Arlington Electric, Inc., 332
NLRB 74 (2000), quoting Union Square Theatre Management, 326 NLRB 70, 71 (1998).

Mr. Dresser’s job title at the Gardena High jobsite was foreman, but the Board cautions
that an individual's title alone cannot establish whether that individual is a supervisor. Pan-
Osten Co., 336 NLRB No. 23 (2001). Mr. Dresser had no responsibility for the hire, transfer,
suspension, lay off, recall, promotion, discharge, reward, or discipline of employees at the
Gardena High project. The only indicium of supervisory status rests on his authority to assign
and direct employees. There is no question that Mr. Dresser made work assignments to
employees performing the HVAC work at the jobsite. It does not matter, contrary to
Respondent’s argument, that the only employees under Mr. Dresser’s oversite were one
permanent employee and occasional temporary employees. What does matter is whether
Mr. Dresser’s work assignments involved independent judgment and not merely routine or
clerical decisions. That is the crucial question in determining his supervisory status. As the
United States Supreme Court noted, "The statutory term 'independent judgment' is ambiguous
with respect to the degree of discretion required for supervisory status...It falls clearly within the
Board's discretion to determine, within reason, what scope of discretion qualifies."15 The Board
is careful not to give too broad an interpretation to the statutory term "independent judgment"
because supervisory status results in the exclusion of the individual from the protections of the
Act. Tree-Free Fiber Co., 328 NLRB 389 (1999).
Mr. Dresser had sole responsibility for assigning the work required to implement his
HVAC layouts. He determined when additional employees were needed and what work they
were to perform. As scheduling or construction needs dictated, he reassigned employees. I
recognize that the question of Mr. Dresser’s supervisory status is close. The Board has found
that employees who direct, assign, and make up work schedules of other workers do not
necessarily possess “supervisory independent judgment.”16 However, Respondent’s argument
that Mr. Dresser was “simply a skilled journeyman, working with an unskilled individual” ignores
the fact that Mr. Dresser developed the Gardena High project’s plans and layouts and exercised
full and independent judgment as to how, when, and by whom his plans and layouts were
effected. "The possession of even one of [the section 2(11)] attributes is enough to convey
supervisory status, provided the authority is exercised with independent judgment, not in a
merely routine or clerical manner." Union Square Theatre Management, 326 NLRB 70, 71
(1998); Pepsi-Cola Co., 327 NLRB 1062 (1999). Since Mr. Dresser used independent
judgment in responsibly directing employees at the Gardena High project, I find he was the
Employer’s supervisor there.

However, supervisory status alone does not make Mr. Dresser an 8(b)(1)(B)
representative of the Employer, which is the determinative question herein. Although
Mr. Dresser served as the Employer’s Gardena High jobsite supervisor, Mr. and Ms. Evans
otherwise closely managed and controlled the Employer. Counsel for the General Counsel
argues that Mr. Dresser resolved jobsite complaints and was, thus, a grievance adjuster within
the meaning of 8(b)(1)(B). There is no justification for such an inference. Mr. Dresser resolved
only minor work-related complaints on the jobsite, including notifying Ms. Evans of a paycheck
15 NLRB v. Kentucky River Community Care, 121 S. Ct. 1861, 1867-1868 (2001).
16 Dean & Deluca New York, Inc., 338 NLRB No. 159, at slip Op. 2-3 and FN 15 (2003). See
also Arlington Electric, Inc., 332 NLRB 74 (2000) where work assignment pursuant to plans and
schedules developed by another, fails to establish statutory supervisor status.

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discrepancy, replacing defective equipment, addressing safety problems, and reporting and
finding solutions for theft and vandalism problems. Resolution of minor employee complaints or
disputes, in the absence of participation in any formal grievance procedure, confers neither
supervisory status17 nor 8(b)(1)(B) representative status.18 There is no evidence that
Mr. Dresser would have handled any significant grievance or one involving the PSA terms.
Rather, the evidence is that Mr. or Ms. Evans would address any such problem. Mr. Dresser
had no role in the Employer’s signing the PSA, and there is no evidence that he was familiar
with its terms. Mr. Dresser was neither involved with any of the Employer’s interactions with
Local Unions 102 and 108, nor was he consulted. The evidence does not support a conclusion
that Mr. Dresser was the Employer’s 8(b)(1)(B) representative when Respondent processed
intraunion disciplinary charges against him.19

The General Counsel also argues that Respondent’s true motive in instituting intraunion
discipline against Mr. Dresser was to pressure him to organize for Respondent, which is
coercive of the Employer. While, as noted above, Respondent hoped the discipline would
move the Employer to sign an agreement and while that shows Respondent sought a collective-
bargaining relationship with the Employer, it does not establish a violation of Section 8(b)(1)(B)
of the Act. While Respondent would not have preferred charges against Mr. Dresser if it had
been successful with its organizational designs on the Employer, that shows only a lawful
reality. See Podewils, supra at FN 6. There is no evidence that Respondent retaliated against
Mr. Dresser for failing and refusing to help organize the Employer, and there is no basis for
supposing that such evidence would overcome the fact that Mr. Dresser was not an 8(b)(1)(B)
representative of the Employer. Veco, Inc., supra, relied on by Counsel for the General Counsel
in making this argument, is inapposite as the disciplined supervisor in that case was an
8(b)(1)(B) representative, which Mr. Dresser is not. In both Veco and the instant case, the
8(b)(1)(B) representative status of the disciplined employee is pivotal.

Mr. Dresser retained his union membership while serving as the Employer’s supervisor
but not as its 8(b)(1)(B) representative. As such, he incurred obligations to both the Union and
the Employer.20 As the Court explained in Royal Electric, an employer is not coerced in the
selection of its representatives merely because a supervisor-member having dual loyalties may
find the supervisory position less desirable when faced with the application of legitimate union
rules.21 Accordingly, I find that the General Counsel has not established the elements of an
8(b)(1)(B) violation and that Respondent did not violate the Act by its discipline of Mr. Dresser.
It follows that the complaint must be dismissed in its entirety.

17 See Greenhorne & O'Mara, Inc., 326 NLRB 514, 517 (1998).
18 See Masters, Mates and Pilots, Marine Division, ILA (Marine Transport Lines), 301 NLRB
526, 527 and FN16 (1991).
19 Electrical Workers Local 1547 (Veco, Inc.) 300 NLRB 1065, 1065 (1990) is
distinguishable from the instant matter. The grievance adjustment authority possessed by the
supervisor in that case was evidenced by “specific instances of his resolution of employee
grievances concerning wages in relation to the nature of work performed and grievances
concerning unsafe equipment and work in certain weather conditions--types of disputes that
would likely be contractual grievances if a collective-bargaining agreement was in effect.”
20 See Podewils, supra.
21 481 U.S. at 591-595.

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On these findings of fact and conclusions of law and on the entire record, I issue the following
recommended22

ORDER
The complaint is dismissed.

Dated, at San Francisco, CA: May 27, 2003

Lana H. Parke
Administrative Law Judge

22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.