Electrical Workers IBEW Local 340 (Nutter, Inc.)

National Labor Relations Board - Board Decisions

Aug 14, 1984

271 N.L.R.B. 995 (N.L.R.B. 1984)

ELECTRICAL WORKERS IBEW LOCAL 340 (ROYAL ELECTRIC)
International Brotherhood of Electrical Workers,
Local 340 and Harold E. Nutter, Inc. and
Royal Electric Company. Cases 20-CB-5717,
20-CB-5781, and 20-CB-5825
14 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 27 September 1983 Administrative Law
Judge Jay R. Pollack issued the attached decision.
The General Counsel, the Respondent, and the
Charging Parties filed exceptions and supporting
briefs.
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 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, International
Brotherhood of Electrical Workers, Local 340,
Sacramento, California, its officers, agents, and rep-
resentatives, shall take the action set forth in the
Order.
I The complaints allege and the parties stipulate that Harold E. Nutter,
Inc. and Royal Electric Company are California companies engaged in
electrical contracting and that in the normal course and conduct of their
business each annually purchases, either directly or indirectly. materials
and supplies valued in excess of $50,000 from suppliers located outside
the State of California. Accordingly, Harold E. Nutter. Inc. and Royal
Electric Company are employers engaged in commerce within the mean-
ing of Sec. 2(2), (6), and (7) of the Act.
a 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.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard
these consolidated cases in trial on July 28, 1983, at Sac-
ramento, California. The cases arose as follows: Harold
E. Nutter, Inc. (Nutter Electric) filed a charge in Case
20-CB-5717 on November 22, 1982, against International
Brotherhood of Electrical Workers, Local 340 (Respond-
ent or the Union). On December 22, 1982, the Regional
Director for Region 20 of the National Labor Relations
271 NLRB No. 157
Board (the Board) issued a complaint and notice of hear-
ing against Respondent. The charge in Case 20-CB-5781
was filed against Respondent by Royal Electric Compa-
ny (Royal Electric) on February 8, 1983. On March 11,
the Regional Director issued a complaint and notice of
hearing against Respondent in Case 20-CB-5781 and an
order consolidating that case with Case 20-CB-5717 for
purpose of hearing. Thereafter, Nutter Electric filed the
charge in Case 20-CB-5825. On May 11, the Regional
Director issued a complaint in Case 20-CB-5825 and an
order consolidating that case for trial with the two prior
cases.
The issues
The principal questions presented for decision were:
1. Whether Albert L. Schoux (Royal Electric) and
Melvin K. Miller (Nutter Electric) were supervisors
within the meaning of Section 2(11) of the Act and
whether Schoux, Miller, and James K. "Ted" Choate
(Nutter Electric)' were representatives of their employ-
ers for the purposes of collective bargaining or the ad-
justment of grievances within the meaning of Section
8(b)(1)(B) of the Act.
2. Whether Respondent violated Section 8(b)(1)(B) of
the Act by fining Choate, Schoux, and Miller for work-
ing for their respective employers.
All parties were given full opportunity to appear, to
introduce relevant evidence, to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs. Based on
the entire record, and from my observation of the de-
meanor of the witnesses and after due consideration of
the briefs filed on behalf of the parties, I make the fol-
lowing
FINDINGs oi FACT AND CONCLUSIONS
I. JURISDICTION
Royal Electric and Nutter Electric are electrical con-
tractors doing business in the Sacramento, California
area. The parties stipulated that Royal Electric meets the
Board's standard for asserting jurisdiction based on the
direct and indirect inflow standards. 2 The parties further
stipulated that Nutter Electric meets the Board's indirect
inflow standard for asserting jurisdiction. Accordingly, I
find Royal Electric and Nutter Electric to be employers
engaged in commerce and in businesses affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THFI IABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Respondent has been, at all times material, a labor
organization within the meaning of Section 2(5) of the
Act.
The parties stipulated that Choate was a supervisor within the mean-
ing of Sec. 2t I) of the Act for Nutter Electric.
2 See generally S;lemon, .t ailing Senrsicc. 122 NLRB 81 (1958).
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
National Electrical Contractors Association, Inc., Sac-
ramento Valley Chapter (NECA) is an association of em-
ployers engaged in electrical contracting which has as
one of its purposes the representation of its employer-
members in negotiating and administering collective-bar-
gaining agreements with various labor organizations. Re-
spondent and NECA had a collective-bargaining rela-
tionship for approximately 40 years. The last collective-
bargaining agreement between Respondent and NECA
expired May 31, 1981. On June 11, 1981, Respondent
commenced a strike against the employers in the NECA
multi-employer bargaining group, including Nutter Elec-
tric and Royal Electric. 3 On September 15 the Union
sent NECA a disclaimer of interest which provided:
On behalf of Local Union 340, IBEW, this letter
shall serve as, and constitute a disclaimer of interest
by IBEW Local Union 340 in representing, for pur-
poses of collective bargaining or any other purpose,
the employees of the multi-bargaining unit previous-
ly established and consisting of the employees of the
employer-members of the Sacramento Valley Chap-
ter, of the National Electrical Contractors Associa-
tion, Inc., and other employers who have, from
time to time, agreed to become part of the multi-
employer bargaining unit. This disclaimer covers
the employees covered by the Inside Wireman's
Agreement, the Line Agreement, and the Material
Handler's Agreement, and is intended to disclaim
interest as to the multi-employer bargaining units or
unit previously created by these three separate labor
contracts.
On September 25, the Union filed 17 representation pe-
titions in individual employer units for 17 employers, for-
merly in the NECA bargaining unit. No petition was
filed for representation of the employees of either Nutter
Electric or Royal Electric. The Regional Director ad-
ministratively dismissed the 17 petitions on the basis that
the appropriate bargaining unit was the multi-employer
unit. On October I NECA signed a collective-bargaining
agreement with the National Association of Independent
Unions (NAIU), which agreement purported to cover
the electrician employees of the employers previously in-
volved in the negotiations between NECA and Respond-
ent. Both Nutter Electric and Royal Electric adopted the
NECA-NAIU agreement. On August 12, 1982, the
Board directed a hearing on the issue of the continued
existence or viability of the multiemployer unit. The
Board order is reported as Arden Electric, 263 NLRB 318
(1982). The hearing in the representation cases closed on
3 At the time the strike commenced, there were approximately 55 em-
ployers in the NECA bargaining unit. Although Respondent argues that
Royal Electric was not part of the multiemployer bargaining group, the
uncontradicted evidence shows that all parties, NECA, Respondent, and
Royal Electric, treated Royal Electric as part of the group from March
1981 until at least September 1981 when Respondent disclaimed interest
in the NECA bargaining group.
February 28, 1983, and the decision in that case is now
pending before the Board.
On March 28, 1983, 1 issued a decision in Electrical
Workers IBEW Local 340 (Hulse Electric), JD-(SF)-55-
83, in which I found, inter alia, that Respondent violated
Section 8(b)(1)(B) of the Act by preferring charges
against representatives of May Han Electric, d/b/a M &
M Electric; Clint McCubbin, Inc.; Rex Moore Electric
Company: and Amos J. Walker, Inc., and by imposing
fines against such representatives. That case is now pend-
ing before the Board on exceptions to my decision. On
August 31, 1983, I issued my decision in Grason Electric,
JD-(SF)-190-83, in which I found, inter alia, that Nutter
Electric unlawfully assisted the NAIU by unlawfully so-
liciting its employees to sign dues-checkoff authorizations
and by unlawfully deducting dues from the wages of em-
ployees prior to proper written authorization. In that
case I dismissed, inter alia, an allegation that Nutter
Electric had unlawfully recognized the NAIU as the ex-
clusive bargaining representative of its employees. The
Union was the charging party in the Grason Electric case.
That case is pending before the Board as the time for
filing exceptions to the decision has not yet expired.
The instant cases arise out of intraunion fines by Re-
spondent against Melvin Miller and Ted Choate for
working for Nutter Electric and Albert Schoux for
working for Royal Electric. The General Counsel alleges
that the fines of Miller, Choate, and Schoux violated
Section 8(b)(1)(B) on the theory that all were natural and
potential representatives of their employers for the pur-
pose of collective bargaining and the adjustment of
grievances. Respondent contends that the alleged super-
visors did not possess the authority to bargain collective-
ly or to adjust grievances and further that no violation
could be found because the Union had previously dis-
claimed interest in representing the employees in the
NECA multiemployer bargaining unit.
B. Albert Schoux. Superintendentfor Royal Electric
1. Supervisory status
Albert Schoux has been employed as a superintendent
by Royal Electric for approximately 2 years. In July or
August 1982, Schoux was made superintendent on a job
for Royal Electric known as the Aerojet job. Schoux
was completely in charge of the job. Thus, Schoux did
all the hiring, firing, planning, and ordering for the job.
Leo Velluntini, one of the owners of Royal Electric,
placed Schoux in charge of the project and thereafter
visited the project only for a final inspection. Schoux as-
signed employees to their job assignments and trans-
ferred employees to different projects on the jobsite.
Schoux has recommended that employees be promoted
to formen and his recommendations have been followed.
Foremen report to Schoux and have their manpower
needs filled by Schoux. If Schoux needs more workers,
he calls Royal Electric's office to see if workmen are
available from other jobsites. If workmen are not avail-
able from other sites, Schoux is authorized to call
NECA's hiring hall for additional employees. If the
workload decreases, Schoux calls the office to see if em-
996
ELECTRICAL WORKERS IBEW LOCAL 340 (ROYAL ELECTRIC)
ployees can be sent to other jobsites of the Company. If
there is no work at other sites, Schoux lays off the un-
needed employees. It is Schoux who decides how many
employees are needed, which employees to keep, and
which employees to lay off.
Schoux works with the tools of the trade only 4 or 5
hours a week. Schoux uses the tools in order to inspect
work done by the employees under his supervision. He is
paid 50 percent more than the rate paid Royal Electric's
journeymen electricians. Although there is no evidence
that Schoux adjusts grievances under the collective-bar-
gaining agreement, he does handle employees' personal
problems on the job. Schoux has granted employees time
off for personal reasons and on two occasions changed
job assignments pursuant to requests from employees.
One employee, not wanting to work at elevated heights,
asked to be reassigned to a job station on a lower level
of the building. Schoux had the employee switch assign-
ments with another employee. On another occasion, an
employee told Schoux that he was unable to perform an
assigned task and Schoux reassigned the employee to an-
other job more in line with the employee's experience
level.
Based on the foregoing facts, I find that Albert Schoux
has been at all times material herein a supervisor of
Royal Electric within the meaning of Section 2(11) of
the Act. Respondent contends that Schoux has not en-
gaged in collective bargaining or the adjustment of
grievances and, therefore, is not protected by Section
8(b)(l)(B) of the Act. However, under the Board's "res-
ervoir doctrine," the Board interprets the term "repre-
sentative for the purposes of collective bargaining or the
adjustment of grievances" broadly so as to include all in-
dividuals who are supervisors within the meaning of Sec-
tion 2(11) on the ground that such individuals form the
logical "reservoir" from which the employer is likely to
select his representatives for collective bargaining or
grievance adjustment. See, e.g., Toledo Lithographers
Locals 15-P and 272 (The Toledo Blade Co.), 175 NLRB
1072 (1969), enfd. 437 F.2d 55 (6th Cir. 1971). Recently,
in Teamsters Local 296 (Northwest Publications, 263
NLRB 778, 779 fn. 6 (1982), the Board reaffirmed its ad-
herence to the "reservoir doctrine" and its position that
all supervisors within the meaning of Section 2(11) are
representatives within the intent of Section 8(b)(l)(B).
Even without resort to the "reservoir doctrine," the
evidence establishes that Schoux adjusted grievances as
the Board defines that term. The evidence establishes
that Schoux granted employees time off and resolved
personal complaints or problems regarding job assign-
ments. The Board has broadly interpreted the term
grievances as used in both Section 2(11) and Section
8(b)(1)(B) so as to include not only contractual griev-
ances but also personal grievances. Typographical Union
No. 529 (Hour Publishing Co.), 241 NLRB 310, 315
(1979); Toledo Blade Co., supra.
2. The union discipline
Schoux is a member of IBEW Local 595, a sister local
of Respondent, in Oakland, California. On December 20,
1982, Charles Lux, a member of Respondent, filed in-
traunion charges against Schoux for working on Royal
Electric's Aerojet jobsite on December 14. Lux testified
in this proceeding that he saw Schoux working with the
tools for 2 or 3 days on the Aerojet jobsite.4 However,
Lux further testified that he saw Schoux working for 15-
20 minutes mounting a disc connection on a concrete
pillar and based on that he inferred that Schoux was
working for 2 or 3 days. Further, Lux testified that
Schoux was wearing a tool pouch when, in fact, Schoux
never wears a tool pouch because of a back injury.
Schoux testified that he did not install any disc connec-
tions or perform any electrical work on the Aerojet job.
According to Schoux, he was inspecting the switch gear
on a high voltage transformer pad when he was ap-
proached by Lux on the jobsite. In my opinion, Lux tes-
tified as to his subjective impressions and did not testify
in an objective manner. I find Schoux's testimony to be
more reliable and, accordingly, I credit Schoux's testimo-
ny over that of Lux.5
On February 7, 1983, the Union's trial board found
Schoux guilty of the charges brought against him by
Lux. The trial board fined Schoux a total of $8200. On
February 22, the IBEW, International (Respondent's
parent organization) notified Schoux's home local, Local
595, of the discipline taken against Schoux by Respond-
ent. Schoux did not appear at the trial board meeting and
has not paid the fine levied against him. Although
Schoux did not appear at the trial board meeting, he
wrote the Union a letter prior to the trial board in which
he notified the Union that he was a supervisor and that
Royal Electric had filed the instant charge with the
Board alleging that Respondent's conduct violated Sec-
tion 8(b)(1)(B) of the Act. Apparently, the Union gave
no consideration to Schoux's letter.
C. Melvin Miller, Foreman for Nutter Electric
3. Supervisory status
Melvin Miller has been employed by Nutter Electric
for approximately 9 years. When Respondent went on
strike in June 1981, Miller was working as a foreman on
a job for Nutter Electric in Redding, California. The job
in Redding was under the jurisdiction of IBEW Local
442, a sister local of Respondent. As the Redding job
was unaffected by Respondent's strike, Miller worked for
Nutter Electric until the completion of the job in the fall
of 1981. Miller came back to work for Nutter Electric in
late January 1982, after the Union had issued its disclaim-
4 Lux was employed by another electrical subcontractor when he ob-
served Schoux on the job.
5 The fact that Schoux worked 4 or 5 hours a week with the tools of
the trade does not detract from his supervisory status. See, e.g., E.EE.
Co.. 171 NLRB 982 (1968); Penco Enterprises, 201 NLRB 29, 31 (1973).
In cases involving discipline of supervisors for crossing a picket line,
the Board inquires into whether the supervisors performed more than
minimal amounts of rank-and-file work. See, e.g., Typographical Union
101 (Washington Post), 242 NLRB 1079 (1979). However, in cases involv-
ing discipline for working for a nonunion employer, in a nonpicket line
situation, the Board apparently does not inquire into the amount of rank-
and-file work performed. See, e.g., Painters District Council No. 36 Brown
& Co., 259 NLRB 808 (1981). In any event, the record does not show
that Schoux performed more than a minimal amount of rank-and-file
work Further, it does not appear that Respondent was concerned with
Schoux's actual duties for Royal Electric.
997
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er and after Nutter Electric had adopted the NECA-
NAIU bargaining agreement.
Miller commenced work in January 1982 as the fore-
man for Nutter Electric at its electrical subcontract for
the new construction of a Mervyn's department store.
The Mervyn's jobsite had no proof and was shut down
many days in early 1982 due to weather conditions.
When weather did not permit work at the Mervyn's job-
site, Miller filled in at another project for Nutter Electric
known as the United Grocers' jobsite. At the United
Grocers' jobsite, Miller continued to recieve foreman's
pay. However, on the United Grocers' jobsite, Miller
worked as a journeyman electrician. According to
Norman Nutter, Nutter Electric's president, Miller set
the standard for the NAIU personnel and reported di-
rectly to Nutter Electric's management on the abilities of
the foremen on the United Grocers' job. However,
Miller had no supervisory authority while working on
the United Grocers' job. Norman Nutter testified that be-
cause he wanted to avoid "jurisdictional" conflicts with
the NAIU formen, Miller was not given supervisory au-
thority on the United Grocers' job. The main purpose of
assigning Miller to the United Grocers' job was to "keep
a paycheck coming in" when work was not possible on
the Mervyn's job. Miller was assigned to the United
Grocers' job by Ted Choate, vice president and estima-
tor, when there was not enough work or because weath-
er conditions did not permit work on the Mervyn's job.
At the Mervyn's jobsite, Miller had total responsibility
for the job: ordering material, hiring and laying off em-
ployees, teaching employees, disciplining employees, and
laying out or assigning work. Miller reported to Ted
Choate, the estimator for the Mervyn's job. When Miller
needed more employees he would call Choate, who
would send employees from other Nutter Electric job-
sites. If Miller did not have enough work for his crew,
he would call Choate who would find work for the em-
ployees at other Nutter Electric jobsites or direct that
the employees be laid off. Miller would decide which
employees were to be retained and which employees
were to be transferred or laid off. Choate visited the
Mervyn's jobsite only three or four times within the 4-5
month constuction period. Miller had the authority to
grant employees time off and to recommend employees
for raises. Miller's recommedations for raises were fol-
lowed. Further, Miller appointed foremen to work under
him. Miller had the authority to disipline employees and
on one occasion discharged an employee. The dis-
charged employee sought to appeal his discharge to
Norman Nutter but Nutter referred the employee back
to Miller. The employee then brought his NAIU business
representative to speak with Miller in an attempt to
obtain a reversal of the discharge decision. However,
Miller decided not to take the employee back.
Based on the foregoing factors, I find that Miller was
a supervisor for Nutter Electric within the meaning of
Section 2(11) of the Act. I further find that Miller was a
representative of Nutter Electric for the purpose of col-
lective bargaining or for the adjustment of grievances
within the meaning of Section 8(b)(1)(B) of the Act.
Painters District Council No. 36 (Brown & Co.), 259
NLRB 808, 810 (1981); Hour Publishing Co., supra. How-
ever, in the construction industry, individuals may be
employed as supervisors on one job and as rank-and-file
workers on the next. 6 Although Miller was paid as a
foreman on the United Grocers' job, the evidence estab-
lishes that on that job he worked as a rank-and-file elec-
trician and not as a foreman. Thus, my conclusions that
Miller was a supervisor and an employer representative
for Nutter Electric do not extend to Miller's status on
the United Grocers' job.
2. The union discipline
Miller has been a member of Respondent for approxi-
mately 32 years. On March 2, 1982, J. Cox, a member of
Respondent, filed charges against Miller for working for
Nutter Electric at the United Grocers' job. Carl Monroy,
a member of Respondent and a witness at the trial board
hearing on the charges against Miller, testified that he
observed Miller working as an electrician on the United
Grocers' job. Monroy testified that Miller was not a
foreman on that job but rather took his orders from the
foremen. Robert Ennis, a member of Respondent, simi-
larly testified that he observed Miller working on the
United Grocers' jobsite as an electrician and not as a
foreman. Ennis also testified against Miller at the Union's
trial board hearing. Nutter Electric's records confirm
that Miller was working on the United Grocers' jobsite
on the date alleged in the charge against Miller. On May
4, 1982, Miller was notified that he was found guilty of
"performing bargaining unit work while employed by
Nutter Electric" and fined a total of $7,683.20. Miller did
not pay the fine and on March 9, 1983, the Union
brought suit in the Municipal Court of the State of Cali-
fornia to collect the fine. The record does not reveal the
present status of the lawsuit.
D. Ted Choate, Vice President and Estimatorfor
Nutter Electric
Ted Choate did not testify at the instant hearing. The
parties stipulated that Ted Choate is a supervisor of
Nutter Electric within the meaning of Section 2(11) of
the Act. Further the record shows that Miller, a supervi-
sor and representative of Nutter Electric for purposes of
collective bargaining or the adjustment of grievances, re-
ported to Choate. Accordingly, as Choate is higher in
the managerial hierarchy of Nutter Electric than Miller,
it follows that Choate is also a natural and potential rep-
resentative of Nutter Electric for the purposes of collec-
tive bargaining or the adjustment of grievance within the
meaning of Section 8(b)(l)(B) of the Act.
On November 1, 1982, Lee Frith, Respondent's busi-
ness manager, filed charges against Choate for "working
for an employer who is no longer signatory to an IBEW
agreement with Local Union 340." On November 16,
1982, Choate was notified that the Union's trial board
had found him guilty of the charges and fined him a total
of $6000.
6 See, e.g., Plumbers Local 137 (Hames Constr.), 207 NLRB 359 (1973);
Plumbers Local 725 (Powers Regulator Co.), 225 NLRB 138, 145 (1976);
Nassau & Suffolk Contractors'Assn,, 118 NLRB 174, 180-181 (1975).
998
ELECTRICAL WORKERS IBEW LOCAL 340 (ROYAL ELECTRIC)
E. The Bargaining Relationship7
As mentioned earlier, the Union had a longstanding
collective-bargaining relationship with NECA. Both
Royal Electric and Nutter Electric were party to the
NECA-Union negotations of 1981. The 1978-1981 agree-
ment expired on May 31, 1981. On June 10, the Union
commenced a strike against NECA and its employer-
members, including Nutter Electric and Royal Electric.
The strike was still in progress on September 15 when
the Union sent its disclaimer letter. On September 16,
NECA sent a telegram accepting the disclaimer. On Sep-
tember 25, the Union filed 17 representation petitions
seeking to represent the employees of 17 NECA employ-
er-members, not including Royal Electric and Nutter
Electric. On October 1, NECA signed a collective-bar-
gaining agreement with the NAIU. Seven of the employ-
ers involved in the representation cases, reached agree-
ment with the Union permitting their emmployees to
return to work about October 1. Thereafter, these seven
employers signed separate collective-bargaining agree-
ments with the Union in February 1982. Neither employ-
er involved herein reached agreement with the Union.
Rather, Nutter Electric and Royal Electric have both
adopted the NECA-NAIU collective-bargaining agree-
ment.
Between the Union's disclaimer of September 15 and
NECA's execution of a collective-bargaining agreement
with the NAIU on October 1, the IBEW, the Union's
parent organization, attempted to bring NECA and the
Union back together again. On September 24, the
Union's attorney wrote the IBEW's vice president, for
the geographic area which includes Sacramento, con-
cerning the disclaimer. The attorney's letter contains, 8
inter alia, the following passage which sheds light on the
Union's disclaimer:
In late August and early September, Business Man-
ager Frith asked me for advice concerning the le-
gality of and procedures for disclaiming interest in
the multi-employer bargaining unit represented by
NECA. He asked me what impact a disclaimer
would have on the NECA members and whether a
disclaimer would free those NECA members who
Frith felt wanted to bargain in good faith with
Local 340. 1 understood then and now understand
that the NECA negotiation committee and Board of
Directors was and is dominated by employers who
want to go non-union. Those NECA members who
really wanted a fair contract and wanted to bargain
in good faith had been kept out of the Negotiations
and ignorant of the progress of negotiations. How-
ever, these same employers had signed a Power of
Attorney with NECA to represent them and up to
this point had not chosen to attempt to break away
from the multi-employer unit and request individual
bargaining.
7 In this section of the decision, I have taken judicial notice of the
prior cases before me involving Respondent and NECA. See, e.g., Meaz
Packers .ational, 230 NLRB 222, 227 (1977); Airlines Parking, 197 NLRB
762 (1972).
8 The attorney's letter was received as an admission by a party oppo-
nent in both the Hulse and Grason cases.
Brother Frith also inquired whether NECA
could foster an RD election petition or file an RM
election petition in an attempt to oust Local 340
from its position as bargaining representative. As
you know, those NECA contractors who had
shown their true colors at the bargaining table hired
scab replacements during the strike. In fact, NECA
had already placed the newspaper ad for strike re-
placements before the strike was called and before
impasse had been reached in negotiations.
I advised Brother Frith that a disclaimer of inter-
est was legally possible, but would have to extend
to the whole multi-employer bargaining unit. I ad-
vised him that a disclaimer would cause a halt to his
strike and prohibit him from demanding further bar-
gaining with NECA on a multi-employer basis.
Therefore, with this history of bad faith bargain-
ing, lawsuits and NLRB charges, Brother Frith pre-
sented the matter of a disclaimer to the membership
for its consideration. Although I was not asked to
express an opinion as to the wisdom of disclaiming
interest, it is my opinion that it was a realistic move
to make considering the tactics employed by NECA
and the possibility that the disclaimer would prompt
the good contractors into action.
I further advised Brother Frith that the disclaim-
er would permit the individual employers to grant
recognition to Local 340 on an individual basis and
to bargain on a single employer basis.
However, I explained that the disclaimer would
not have the effect of voiding the Power of Attor-
ney. Should any employer wish to bargain individ-
ually with Local 340, it would still have to use
NECA as its bargaining agent. Whether NECA
would refuse to act on behalf of any employer on
this basis (and whether the employer itself would
seize this refusal as an opportunity to break the
Power of Attorney) were matters for speculation.
In the instant hearing Frith, called as an adverse wit-
ness by counsel for Nutter Electric and Royal Electric,
testified that after the disclaimer it was his intention to
organize every electrical contractor that was willing to
sign an agreement with the Union. Frith further testified
that it was the Union's first concern to organize the 17
employers for which petitions were filed and get an
agreement and an association established before any
plans were made to organize the other employers. Ac-
cording to Frith, after a new association was formed
with the 17 employers, any other employer that was
willing to become a part of the new organization would
be welcome. Frith testified "ultimately down the road it
was our hope that everybody would be back under an
agreement." By means of leading questions, Respondent's
counsel was able to secure an explanation from Frith that
all Frith meant was that the Union could not turn down
Royal Electric, Nutter Electric, or any other employer
that requested to sign an agreement. According to Frith,
aside from the general premise that the Union would
sign a contract with any employer that requested an
agreement, the Union had no desire to have a contract
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Nutter Electric. Frith gave no reason or explana-
tion why the Union sent its disclaimer letter.
On December 29, the Regional Director administra-
tively dismissed the Union's 17 representation petitions.
On September 12, 1982, in Arden, supra, the Board re-
versed the Regional Director and ordered that a hearing
be held limited to the issue of the continuing existence of
viability of the NECA multiemployer bargaining unit
which the Regional Director had administratively found
to be a bar to the 17 petitions. The consolidated repre-
sentation hearing was consolidated with the unfair labor
practice case, Grason Electric, supra. That consolidated
hearing closed on February 28, 1983, and the representa-
tion cases were transferred to the Board in Washington,
D.C., on that same date and are now pending before the
Board for decision. In the unfair labor practice case, the
Union charged, inter alia, that the collective-bargaining
agreement between NECA and NAIU violated Section
8(a)(2) of the Act. The Union charged that Nutter and
seven other NECA employers violated Section 8(a)(2) by
recognizing and bargaining with the NAIU. In my deci-
sion, which issued August 31, 1983, I noted that Re-
spondent argued that NECA and Nutter had violated
Section 8(a)(2) and (1) of the Act by recognizing the
NAIU, a minority union, when the Union itself was the
majority representative of the employees in the recog-
nized bargaining unit."
In my decision in the Hulse case, supra, which issued
on March 28, 1983, I found that Respondent violated
Section 8(b)(l)(B) of the Act by preferring charges
against representatives of May Han Electric, d/b/a M &
M Electric, Clint McCubbin, Inc., Rex Moore Electric
Company, and Amos J. Walker, Inc., and by imposing
fines against such representatives. In that case I found
that the Union intended to withhold supervision from the
employers in order to force the employers to come back
to the Union. The Union would then be in a position to
bargain with the employers on an individual basis rather
than on a NECA multiemployer basis.
F. Conclusions
Section 8(b)(1)(B) of the Act provides that "it shall be
an unfair labor practice for a labor organization . . . to
restrain or coerce . . . an employer in the selection of
his representative for the purposes of collective bargain-
ing or the adjustment of grievances." The applicable
principles of law are set forth in Plumbers Local 364, 254
NLRB 1123, 1125 (1981):1 °
9 The Union sought an order setting aside the entire collective-bargain-
ing agreement between the NAIU and NECA. I found, inter alia, that
NECA had unlawfully recognized the NAIU with regard to two em-
ployers for whose employees valid representation petitions were pending.
I also found, inter alia, that Nutter Electric had lawfully recognized the
NAIU. However, Nutter had assisted the NAIU by unlawfully soliciting
dues-checkoff authorizations and by unlawfully deducting dues from the
wages of some employees without proper written authorization. The
unfair labor practice case was transferred to the Board upon issuance of
my decision. If timely exceptions to the decision are not filed, the deci-
sion will be adopted by the Board and become its findings, conclusions,
and Order.
i' See also Painters District Council No. 36 (Brown d Co), 259 NLRB
808, 810-811 (1981).
Section 8(b)(1)(B) prohibits both direct union pres-
sure-for example, strikes-to force replacement of
grievance representatives and indirect union pres-
sure-for example, union discipline of supervisor-
members-which may adversely affect the chosen
supervisors' performance of their representative
functions. American Broadcasting Companies v. Writ-
ers Guild of America West, Inc., 437 U.S. 411 (1978);
New Mexico District Council of the United Brother-
hood of Carpenters and Joiners of America (A.S.
Horner, Inc.), 177 NLRB 500, 502 (1965), enfd. 454
F.2d 1116 (10th Cir. 1972); and Wisconsin River
Valley District Council of Carpenters and Joiners of
America, AFL-CIO (Skippy Enterprises. Inc.), 218
NLRB 1063, 1064 (1975), enfd. 532 F.2d 47 (7th
Cir. 1976).
It is also 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. American Broad-
casting Companies, supra, at 433-437 fn. 36; .VLRB
v. International Union of Operating Engineers, Local
Union No. 501, AFL-CIO, 580 F.2d 359, 360 (9th
Cir. 1978); A. S. Horner, supra, 502; and Skippy En-
terprises, supra, 218 NLRB 1064, enfd. 532 F.2d at
52-53. 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.
In light of the foregoing principles, Respondent's disci-
pline of Schoux and Choate, because they worked for
nonsignatory employers, would appear to restrain and
coerce the instant two employers in the selection and re-
tention of their grievance adjustment representatives.
Respondent's discipline of Miller for working on
Nutter Electric's United Grocers' jobsite presents a dif-
ferent situation. As discussed above, it is not uncommon
in the construction industry for an individual to be em-
ployed as a rank-and-file worker on one job and as a su-
pervisor on the next. Here, Miller, a supervisor, was
fined for conduct he engaged in while working as a
rank-and-file employee. The General Counsel and the
1000
ELECTRICAL WORKERS IBEW LOCAL 340 (ROYAL ELECTRIC)
Charging Parties argue that during the time period from
March 2, when Miller was charged by the Union, until
May 4, when the fine was imposed, Miller worked only
29 percent of the time on the United Grocers' jobsite.
However, I find this argument unpersuasive since there
is no evidence that any portion of the discipline was im-
posed because of Miller's work on any jobsite other than
the United Grocers' jobsite. As discussed above, on this
jobsite Miller worked as a rank-and-file employee. The
reasonable and foreseeable consequences of such disci-
pline does not restrain or coerce Nutter Electric in its se-
lection or retention of supervisors. Nor does this disci-
pline interfere with Miller's performance of his represent-
ative functions. The resonable consequence of the
Union's action is that Nutter Electric must employ Miller
in a supervisory capacity if it intends to use Section
8(b)(1)(B) as a shield from union discipline. Section
8(b)(l)(B) does not prevent intraunion discipline of rank-
and-file employees. It is well settled that a union may
fine an employee-member for crossing a picket line or
otherwise violating a union's no-work rule. See, e.g.,
NLRB v. Textile Workers Local 29, 409 U.S. 213, 217
(1972); Machinists Local 405 v. NLRB, 412 U.S. 84
(1973). Accordingly, for the reasons discussed above, I
shall recommend that the complaint in Case 20-CB-
5825, which pertains to the Union's discipline of Miller,
be dismissed.
Respondent, relying on the decision of the United
States Court of Appeals for the Ninth Circuit in the
Chewelah Contractors case, " argues that no violation of
Section 8(b)(l)(B) can be found because the Union did
not have a collective-bargaining agreement or a collec-
tive-bargaining relationship with either of the employers
at the time Schoux and Choate engaged in the conduct
for which they were fined.
In Chewelah Contractors, the court, in refusing to en-
force the Board's finding of a violation of Section
8(b)(1)(B), stated that the purposes of the section were to
prevent unions from forcing employers into or out of
multiemployer bargaining units and to gurarantee that an
employer's bargaining representative would be complete-
ly faithful to the employer's desires. The court noted that
in any decision involving Section 8(b)(1)(B) that had
come to its attention, the charged union had been the
bargaining representative of the complaining company's
employees. However, the charged union in Chewelah
Contractors neither represented the company's employees
nor demonstrated a desire to represent the employees.
The court reasoned that the union had no incentive to
influence the company's choice of representative or
affect the member's loyalty to the company. Thus, the
court held that a union does not violate Section
8(b)(1)(B) by disciplining a member, even though that
member is also the bargaining representative of an em-
ployer if the union neither represents nor shows an intent
to represent the employer's employees.
In Plumbers, Local 364, supra at 1126-27, the Board
concluded that the Ninth Circuit's decision in Chewelah
was in conflict with a long line of Board cases, and that
Il 'LRB v. Electrical Workers IBEW Local 73 (Chewelah Contractors),
621 F.2d 1035 (9th Cir. 1980). denying enf. 231 NI RB 809 (1977).
the Board's position appeared to have the support of the
United States Supreme Court and the opinions of other
circuit courts:
... in American Broadcasting Companies, Inc. v.
Writers Guild of America, West, Inc., supra, the Su-
preme Court affirmed the Board's finding that the
union (which represented writers in the film indus-
try) violated Section 8(b)(1)(B) by threatening to
discipline and by disciplining various supervisors-
including directors-who worked during the writ-
ers' strike. It was undisputed that the directors-
who supervised other employees and adjusted other
employees' grievances-never dealt with writers
and did not adjust Writers' grievances. In the Su-
preme Court, the union argued that the threats and
discipline directed toward the directors could not
possibly affect their adjustment of writers' griev-
ances and that therefore the union's actions regard-
ing the directors had not violated Section
8(b)(l)(B). 437 U.S. at 437, fn. 37. The Supreme
Court explicitly rejected the union's contention,
noting that "directors . . . had [grievance] adjust-
ment duties with respect to other employees" and
finding that the union's sanctions made the directors
"less than completely reliable and effective employ-
er representatives for the duration of the strike, and
less likely to perform any supervisory task during
future strikes." Id. The court then concluded: "A
union may no more interfere with the employer's
choice of a grievance representative with respect to
employees represented by other unions than with
respect to those employees whom it itself repre-
sents." 437 U.S. at 438, fn. 37.
The Union involved in Writers Guild did, of
course, represent the employer's writing employees
and, thus, had a bargaining relationship with the co-
erced employers. However, the Supreme Court also
made clear that its rationale applied equally in cir-
cumstances where the union did not represent the
employees of the coerced employer. Thus, the Su-
preme Court endorsed the Board's decision in A. S.
Horner, Inc.,7 finding an 8(b)(l)(B) violation where
the respondent union did not represent the employ-
ees of the coerced employer. Referring with ap-
proval to a D.C. Circuit opinion8 discussing Horner,
the Supreme Court stated (437 U.S. at 436 fn. 36):
The [D.C. Circuit] noted its agreement with
[Horner] where a union member worked as a su-
pervisor for a company which had no contract
with the union .... A fine imposed in these cir-
cumstances violated [Section 8(b)(l)(B)] because
compliance by the supervisor with the union's de-
mands would have required his leaving his job
and thus have the effect of depriving the Compa-
ny of the services of its selected representative
for the purposes of collective bargaining or the
adjustment of grievance .... The [D.C. Circuit]
said that Horner thus "falls close to the original
rationale of 8(b)(1)(B) which was to permit the
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer to keep the bargaining representative of
his own choosing." 159 U.S. App. D.C., at 284,
fn. 19, 487 F.2d at 1155, fn. 19.
Furthermore, in addition to the Supreme Court's
decision in Writers Guild and the Tenth Circuit's de-
cision enforcing the Board's order in A. S. Horner,
at least two other courts of appeals have approved
Board findings of 8(b)(1)(B) violations where the re-
spondent union had no bargaining relationship with
the employer involved. See International Organiza-
tion of Masters, Mates and Pilots International Marine
Division, ILA, AFL-CIO; and Union De Trabajor-
dores De Muelles Y Ramas Anexas, Local 140
[Marine & Marketing International Corp.] v. NLRB,
486 F.2d 1271, 1274 (D.C. Cir. 1973), cert. denied
416 U.S. 956 (1974); International Organization of
Masters, Mates and Pilots Marine Division, Interna-
tional Longshoremen's Association, AFL-CIO v.
NLRB, 539 F.2d 554, 559-560 (5th Cir. 1976), cert.
denied 434 U.S. 828 (1977). Both the D.C. Circuit
and the Fifth Circuit decisions were cited with ap-
proval by the Supreme Court in Writers Guild, 437
U.S. at 438, fn. 37.
New Mexico District Council of Carpenters (A. S. Horner, Inc.),
177 NLRB 500 (1969), enfd. 454 F.2d 1116, 1118 (10th Cir. 1972).
s International Brotherhood of Electrical Workers, Local 134.
International Brotherhood of Electrical Workers, AFL-CIO {Florida
Power & Light Co.] v. N.L.R.B., 487 F.2d 1143, 1155, fn. 19 (1973),
affd. 417 U.S. 790 (1974).
Even assuming that the rationale of Chewelah should
be applied to the present case, a violation of the Act
would still be found. In Chewelah the court found that
since the union did not represent Chewelah's employees
nor demonstrate a desire to represent the employees, the
union had no incentive to either influence Chewelah's
choice of bargaining representative or affect the supervi-
sors' loyalty to Chewelah. In this case the Union evi-
denced reasons to influence the employers' choice of bar-
gaining representatives and to affect the supervisors' loy-
alty to their employers.
While the Union disclaimed interest in representing
employees in the NECA bargaining unit, it sought repre-
sentation in single employer units of 17 NECA represent-
ed employers. Lee Frith's testimony at this proceeding
reveals that Respondent intended to bargain with a new
association comprised of these 17 employers. Thereafter,
Respondent desired to have the other employers join the
new association.
In the Hulse case, supra, I found that the Union in-
tended to withhold supervision from the employers in
order to force the employers to come back to the Union.
The Union would then be in a position to bargain with
the employers on an individual basis rather than on a
NECA multiemployer basis. Here, Frith indicated that
the Union sought to bargain with a new association and
have the other employers join or adopt the new associa-
tion's agreement. Thus, Chewelah is distinguishable be-
cause the Union continued to desire to represent the em-
ployees of the employers albeit not in the NECA multi-
employer unit. More importantly, one of the Union's
purposes was to force the employers out of the NECA
multiemployer bargaining and into bargaining on a single
employer basis or new association basis. A union's at-
tempt to force an employer to resign from a multiem-
ployer bargaining association was recognized as an
8(b)(1)(B) violation by the Court in Chewelah. See 621
F.2d at 1036, citing Roofers Local 36 (Roofing Contrac-
tors), 172 NLRB 2248 (1968). Thus, even under the ra-
tionale of Chewelah, Respondent's fining of the supervi-
sors as part of a course of conduct designed to cause the
"good" employer-members of NECA to abandon NECA
multiemployer bargaining and to bargain on a single em-
ployer basis or to form a new association, is a violation
of Section 8(b)(1)(B) of the Act.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the mean-
ing of Section 2(5) and Section 8(b) of the Act.
2. Royal Electric and Nutter Electric are employers
engaged in commerce and in businesses affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
3. Albert Schoux (Royal Electric) and Ted Choate
(Nutter Electric), at all times material, were supervisors
for their respective employers within the meaning of
Section 2(11) of the Act and employer representatives
within the meaing of Section 8(b)(1)(B) of the Act.
4. By preferring charges against Schoux and Choate,
and imposing fines against them, Respondent restrained
and coerced the above-named Employers in the selection
and retention of their representatives for the purposes of
collective bargaining and the adjustment of grievances,
and thereby has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(b)(1)(B)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The General Counsel has not established that Re-
spondent has violated the Act in imposing discipline
against Melvin Miller for working on Nutter Electric's
United Grocers jobsite.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that Respondent be
ordered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
12 All outstanding motions inconsistent with this recommended Order
are hereby denied. If no exceptions are filed as provided by Sec. 102,46
of the Board's Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
1002
ELECTRICAL WORKERS IBEW LOCAL 340 (ROYAL ELECTRIC)
ORDER
Respondent, International Brotherhood of Electrical
Workers, Local Union 340, AFL-CIO, its officers,
agents, and representatives, shall
I. Cease and desist from
(a) Restraining or coercing Royal Electric and Nutter
Electric in the selection of their representatives for pur-
poses of collective bargaining or the adjustment of griev-
ances by preferring charges, holding a trial, fining, or
otherwise disciplining any such representative perform-
ing supervisory, managerial or grievance-adjustment
functions for said Employers.
(b) In any like or related manner restraining or coerc-
ing Royal Electric and Nutter Electric in the selection of
their representatives for the purposes of collective bar-
gaining or the adjustment of grievances.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act.
(a) Rescind and expunge from its records all discipli-
nary action taken against Albert Schoux (Royal Electric)
and Ted Choate (Nutter Electric), including the fines,
because of their working as supervisors and employer
representatives, and notify Schoux and Choate, in writ-
ing, that the fines levied against them have been rescind-
ed and that all records of disciplinary action against
them have been expunged.
(b) Post at its business office and meeting halls copies
of the attached notice marked "Appendix."' 3 Copies of
said notice, on forms provided by the Regional Director
for Region 20, after being signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including places where
notices to members are customarily posted. Reasonable
steps shall be taken by Repsondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(c) Mail to the Regional Director for Region 20 signed
copies of said notice for posting by the Employers, if
those companies are willing, in places where notices to
employees are customarily posted.
i' 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the allegations of the
complaint in Case 20-CB-5825 are hereby dismissed.
APPENDIX
NOTICE To EMPLOYEES AND 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 or-
dered us to post and abide by this notice.
WE WILL NOT restrain or coerce Nutter Electric or
Royal Electric in the selection of their representatives
for purposes of collective bargaining or the adjustment
of grievances by preferring charges, holding a trial,
fining, or otherwise disciplining any such representative
performing supervisory, managerial or grievance-adjust-
ment functions for said Employers.
WE WILL NOT in any like or related manner restrain or
coerce Nutter Electric or Royal Electric in the selection
of their representatives for the purpose of collective bar-
gaining or the adjustment of grievances.
WE WILL rescind and expunge from our records all
disciplinary action taken against Albert Schoux (Royal
Electric) and Ted Choate (Nutter Electric), including the
fines, because of their working as supervisors and em-
ployer representatives, and notify Schoux and Choate, in
writing, that the fines levied against them have been re-
scinded and that all records of disciplinary action against
them have been expunged.
INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, LOCAL UNION 340,
AFL-CIO
1003