Electrical Workers, Local 73

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 809 (N.L.R.B. 1977)

ELECTRICAL WORKERS, LOCAL 73
International Brotherhood of Electrical Workers,
Local Union No. 73, AFL-CIO (Chewelah Con-
tractors, Inc.) and William O. Anderson. Case 19-
CB-2772
August 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On May 6, 1977, Administrative Law Judge Jerrold
H. Shapiro issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, International
Brotherhood of Electrical Workers, Local Union No.
73, AFL-CIO, Chewelah, Washington, its officers,
agents, and representatives, shall take the action set
forth in said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefull1 examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case, held on March 29, 1977, is based upon
a charge filed on October 7, 1976, by William O. Anderson,
herein called Anderson, against International Brotherhood
of Electrical Workers, Local Union No. 73, AFL-CIO,
herein called the Respondent, and a complaint issued on
November 29, 1976, by the General Counsel of the
National Labor Relations Board, herein called the Board,
alleging violations of the National Labor Relations Act, as
amended. In substance, the complaint alleges that the
Respondent, by disciplining Anderson, a supervisor em-
ployed by Chewelah Contractors, Inc., has restrained and
coerced, and is restraining and coercing, Chewelah Con-
tractors, Inc., an employer, in the selection of its represen-
tatives for the purposes of collective bargaining or the
adjudication of grievances in violation of Section 8(b)( I)(B)
of the Act. The Respondent's answer denies the commis-
sion of the unfair labor practices.
Upon the entire record, from my observation of the
witnesses, and having considered the posthearing briefs, I
make the following:
Findings of Fact
I. THE BUSINESS OF THE EMPLOYER INVOLVED
Chewelah Contractors, Inc., herein called the Employer,
a Washington corporation, at all material times has
maintained its principal office and place of business in
Chewelah, Washington, and has been engaged in the
business of construction and maintenance in Washington.
During the past 12 months the Employer purchased,
transferred, and had delivered to its operations in the State
of Washington goods and materials valued in excess of
$50,000, which were transported and received from other
enterprises located in the State of Washington, which other
enterprises received these goods and materials directly
from sources outside the State of Washington. The parties
stipulated, and I find, that at all times material the
Employer has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
It is conceded, and I find, that the Respondent is, and
has been at all material times, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
The broad question presented is whether the Respondent
violated Section 8(bXIXB) of the Act by disciplining
Anderson, a member of the Respondent, for working for an
employer which did not have a collective-bargaining
agreement with the Respondent.
B. The Facts '
At all times material herein, Anderson occupied the
position of superintendent for the Employer at its mainte-
nance job for Northwest Alloys, Inc., herein called the
Northwest Alloys job. The Employer was created and
Unless otherwise specified the facts are undisputed.
231 NLRB No. 134
809
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incorporated in February 19762 primarily for the purpose
of bidding for and performing the Northwest Alloys job.
The Employer succeeded in securing this contract in
March and on or about June 1 started to work under the
contract, at which time Anderson was placed on the
Employer's payroll as superintendent. Previously Ander-
son, with a certain amount of help from his wife, assisted
Robert LeCount, the Employer's president and principal
owner, in securing the contract for the Northwest Alloys
job. Anderson assisted LeCount in determining the job's
manpower and equipment requirements, helped him
formulate the Employer's successful bid for the job and
played a role in formulating the Employer's employment
policies. Also, in May, Anderson loaned the Employer
$43,000 which was 43 percent of the working capital used
by the Employer to commence its operations. 3 In consider-
ation for Anderson's aid and assistance LeCount promised
that if the Employer succeeded in getting the Northwest
Alloys job it would employ Anderson as superintendent.
During the critical period of time involved in this case,
June 1, the date Anderson commenced to work as
superintendent on the Northwest Alloys job, through
August 16, the date the Respondent disciplined Anderson
for this conduct, Anderson was the Employer's vice
president,4 but owned no stock in the Company and was
not a member of its board of directors.5 LeCount, the
president and 98-percent owner of the Company, was the
one who represented the Employer and managed its
business operation. Anderson was second in command,
under LeCount's supervision.
In his capacity as superintendent, Anderson was a
supervisor as that term is defined in Section 2(11) of the
Act and was also invested with grievance adjustment
powers within the meaning of Section 8(b)(I)(B) of the Act.
Anderson credibly testified that when he went to work for
the Employer, its president, LeCount, told him that as
superintendent he would "run the [Northwest Alloys] job."
LeCount credibly testified that Anderson hired and fired
employees, disciplined them, and solved their grievances
and, in connection with employees' grievances specifically,
he testified that Anderson "resolve[d] them," explaining
"that's what I hired him for. I didn't want [the employees]
running to me. [Anderson] was there to take care of them."
Based on the foregoing, I find that during the time material
herein Anderson was a statutory supervisor and, in
addition, represented the Employer for the purpose of
grievance adjustment.
Anderson had been employed as superintendent by
another company, Electric Smith, for several years. He
terminated his employment with that company April 2 and
on June I started working as a superintendent for the
2 All dates herein refer to 1976.
:' LeCount loaned the remaining $60,000. Anderson's loan was unse-
cured. paying him 7-percent interest. The loan was repaid in three
installments, commencing in September and ending in late October.
'The other officers were Robert LeCount, president, and LeCount's
wife, secretary-treasurer.
5 Robert LeCount owned approximately 98 percent of the stock, his wife
approximately I percent, and Robie Reed I percent. The shareholders also
signed the papers incorporating the Employer and were the Company's
board of directors. When Reed resigned in September, subsequent to
Anderson's discipline by the Respondent. Anderson was elected to take his
place.
Employer on the Northwest Alloys job. The Respondent
represented Electric Smith's employees and was a party to
a collective-bargaining agreement with Electric Smith but
did not represent the Employer's employees and did not
have a collective-bargaining agreement covering the Em-
ployer's employees. Anderson was a member of the
Respondent.
On June 18, by letter, the Respondent's business
manager and financial secretary, Stuart Kirk, invited
Anderson to appear before the Respondent's executive
board, asking Anderson "now that you are no longer
employed by Electric Smith and are working for a non-
union contractor . . . to explain your position." In July,
Anderson met with Kirk and certain members of the
Respondent's executive board, at which time Kirk asked
why Anderson was working for a "non-union" contractor
and told him to cease working for the Employer. Anderson
ignored Kirk's instruction.
Thereafter, on July 13, Kirk preferred charges against
Anderson alleging violations of the constitution of the
International Brotherhood of Electrical Workers (IBEW),
the Respondent's parent organization. In pertinent part,
Anderson was charged with violating article 27, section 1,
subsections 3, 4 and 21. In sum Kirk charged Anderson
with working for an employer that was in difficulty with
the Respondent. 6 Kirk's July 13 letter transmitting the
charges against Anderson to the Respondent's recording
secretary explained the basis for the charges in these terms:
"William O. Anderson went to work for Chewelah
Contractors on or about June 1, 1976. Chewelah Contrac-
tors is in difficulty with the IBEW, not recognizing any
bargaining agreements, and also refusing to negotiate."
On August 16, the Respondent's trial board found
Anderson guilty of the aforesaid charges, assessed fines
against him totaling $1,250, 7 and placed him on probation
for I year.
C. Discussion
Based on the undisputed facts set forth above, I find, in
agreement with the contention of the General Counsel, that
the Respondent restrained and coerced the Company in
the selection and retention of its representatives for the
purposes of collective bargaining and the adjustment of
grievances in violation of Section 8(bXI)(B) of the Act.
Anderson is a statutory supervisor who, among other
things, represented the Employer for the purpose of
grievance adjustment. The Respondent preferred charges,
imposed fines, and suspended Anderson's membership, all
because Anderson worked as a supervisor for a company
which did not have a contract with the Respondent. 8 The
6 Subsec. 21 of sec. I of art. 27 provides in part that "any member may be
penalized for ... working for any individual or company declared in
difficulty with a [local union] or the I.B.E.W ..... " The alleged violations
of subsecs. 3 and 4 were merely denvative violations stemming from the
violation of subsec. 21.
7 Of this amount. $550 was suspended on condition that Anderson
refrain from working for the Employer.
I I considered and rejected Kirk's testimony to the effect that the
Respondent's dispute with the Employer was not grounded upon its lack of
a contract with the Respondent. This testimony was not given in a
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ELECTRICAL WORKERS, LOCAL 73
situation is therefore identical to New Mexico District
Council of Carpenters, et al. (A. S. Horner, Inc.), 177 NLRB
500 (1969), enfd. 454 F.2d 1116 (C.A. 10, 1972). In that
case a supervisor-member of the respondent union was
fined for working as a supervisor with a company which
did not have a contract with the union. The Board held
that this was a violation of Section 8(b)(l)(B) since
compliance of the supervisor with the union's demands
would have meant quitting the job with the employer,
thereby having "the effect of depriving the company of the
services of its selected representative for the purpose of
collective bargaining or the adjustment of grievances." 177
NLRB at 502. Here, Anderson's compliance with the
Respondent's demand, as in Horner, would have meant
quitting his job, thus depriving the Employer of the services
of its selected representative for the purpose of the
adjustment of grievances. Accordingly, by preferring
charges, imposing fines, and placing Anderson on proba-
tion, all because he worked as a supervisor for a company
which did not have a contract with the Respondent, the
Respondent violated Section 8(b)( I)(B) of the Act.
Contrary to the Respondent's contention, I do not
believe that its conduct is insulated from the prohibitions
of Section 8(b)(1)XB) by the Supreme Court's decision in
Florida Power & Light Company v. I.B.E. W. Local 641, et
al., 417 U.S. 790 (1974). In Florida Power the union
discipline was not related to the supervisors' performance
of their customary supervisory duties, but rather it was
imposed upon supervisors performing rank-and-file work
of striking employees. In the instant case, as in Horner, by
contrast, the union discipline was directly related to the
supervisor's performance of his customary supervisory
duties and was not imposed upon a supervisor performing
the rank-and-file work of striking employees. In this case,
as in Horner, there was no struck work for the supervisor to
perform, nor is there any contention or evidence that
Anderson at any time performed duties other than his
customary supervisory ones. Thus, a union's interest in
preventing its supervisor-members from performing strike-
breaking work of replacement employees-an underlying
rationale for the Florida Power decision-is therefore not
present in the instant case. It appears that the Supreme
Court recognized and preserved this distinction in its
Florida Power decision when it included Horner among
those cases which it cited without disapproval in discussing
the evolving Oakland Mailers doctrine.9 (417 U.S. at 805.)
Moreover, the court of appeals' opinion in Florida Power,
which was affirmed by the Supreme Court, approved
Horner and stated it fell "close to the original rationale of
Section 8(b)(l)(B) which was to permit the employer to
keep the bargaining representative of his own choosing."
convincing manner and is contrary to the whole record. Thus, Kirk
criticized Anderson for working for the Employer because it was a "non-
union" company and based his charges against Anderson upon the fact that
Anderson was working for an employer which was in difficulty with the
Respondent because of its refusal to recognize 'any bargaining agreements"
and "to negotiate" with the Respondent. Kirk testified that in using the
quoted terminology he meant to state that the Employer "would not
negotiate with [the Respondent I to create a collective bargaining agree-
nenl."
" San Francisco-Oakland Mailers' ULnion ,No. 18, International Typographi
cal Union (N'orthest Publicalions, Inc.), 172 NLRB 2173 (1968).
"I Anderson. prior to his employment by the Employer, worked for
International Brotherhood of Electrical Workers, AFL-CIO,
Local 134 [Florida Power] v. N.LR.B., 487 F.2d 1143,
1155, fn. 19 (C.A.D.C., 1973). Also the Board, with the
approval of the Court of Appeals for the Seventh Circuit,
has reexamined Horner in the light of Florida Power and
reaffirmed its validity. Wisconsin River Valley District
Council of Carpenters (Skippy Enterprises), 218 NLRB 1063
(1975), enfd. 532 F.2d 47 (C.A. 7, 1976). See also United
Brotherhood of Carpenters & Joiners of America Local Union
No. 14, AFL-CIO (Max M. Kaplan Properties), 217 NLRB
202 (1975).
I also reject the Respondent's further contention that it
was free to discipline Anderson because Anderson was, for
all intents and purposes, the "employer" within the
meaning of Section 8(bX I)(B) of the Act. In this regard the
Board has held that a union does not violate Section
8(b)(XIXB) by disciplining supervisor-members who have a
substantial ownership interest in the employer. Bricklayers,
Masons and Plasterers' Union, Local No. I (Barr Floors), 209
NLRB 820, 822 (1974); International Association of Heat
and Frost Insulators and Asbestos Workers, Local 19
(Insulation Industries, Inc.), 211 NLRB 592 (1974); Glaziers
and Glassworkers Local Union No. 1621, et al. (Glass
Management Association), 221 NLRB 509 (1975). On the
other hand, the Board has declined to find that a supervisor
was the "employer" within the meaning of Section
8(b)(IXB) when said supervisor held no significant owner-
ship interest in the employer even though the supervisor
was a corporate officer and a member of the company's
board of directors. Bricklayers, Masons and Plasterers'
Union, Local No. I (Barr Floors), 209 NLRB at 821
(Daigle). In the instant case, Anderson held no ownership
interest in the Employer and did not otherwise share in the
Company's profits. Moreover, the record establishes that
LeCount, the Company's president and principal stock-
holder, was responsible for its management. Under these
circumstances, I find that at all times material herein
Anderson was simply a person selected by LeCount to
perform supervisory, including grievance adjustment,
functions and was not in any real sense an "employer" as
that term is used in Section 8(bXI)(B) of the Act.'o
Finally, I reject the Respondent's additional contention
that the close relationship between the Employer and
Anderson, in particular his position as vice president and
his outstanding loan to the Employer, "precludes the
possibility that the Union's disciplinary action could have
undermined any loyalty [the Employer] was entitled to
expect from Anderson." This is simply another way of
urging that Anderson's close relationship with the Employ-
er precluded him from being restrained or coerced by the
Respondent's discipline within the meaning of Section
another company, Electric Smith, and owned less than 10 percent of its
stock. Respondent subpenaed certain records from the Employer and
Electric Smith and urges that these records would help establish that the two
companies constitute a single employer, so that, in view of Anderson's
ownership of Electric Smith stock, he was also an owner of the Employer. I
granted petitions to revoke the subpenas since the record reveals that
Anderson sold his Electric Smith stock in May prior to both his employment
with the Employer and his discipline by the Respondent Accordingly,
assuming, arguendo, that Electric Smith and the Employer are a single
employer, Anderson's ownership of Electric Smith would not establish his
ownership of the single employer during the time material to this case.
811
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b)(1)(B). I disagree. It is settled that, in determining
whether union discipline restrains or coerces within the
meaning of Section 8(b)(1) of the Act, the answer does not
turn on whether the discipline succeeds or fails to
accomplish its objective, rather the test is whether the
discipline reasonably tends to restrain or coerce. E.g.,
American Federation of Musicians, Local 76, AFL-CIO
(Jimmy Wakely Show), 202 NLRB 620 (1973). Obviously, a
fine of $1,250 reasonably tends to restrain or coerce.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend that the Respondent be
ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the
meaning of Section 2(5) and Section 8(b) of the Act.
2. The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. William O. Anderson is, and has been at all times
material, a supervisor within the meaning of Section 2(11)
of the Act, selected by the Employer for the purpose,
among others, of the adjustment of grievances within the
meaning of Section 8(b)(1)(B) of the Act.
4. By preferring charges against Anderson, imposing
fines against him, and suspending his membership, the
Respondent restrained and coerced the Employer in the
selection and retention of its 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)(l)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, International Brotherhood of Electrical
Workers, Local Union No. 73, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing Chewelah Contractors, Inc.,
in the selection of representatives for the purposes of
collective bargaining or the adjustment of grievances by
preferring charges, fining, suspending from membership,
otherwise disciplining, or attempting by any means to
collect or enforce any fine or discipline imposed against
any such representative, including William O. Anderson,
for working for Chewelah Contractors, Inc., when the
Respondent is engaged in a labor dispute with that
employer.
(b) Engaging in any like or related conduct constituting
such restraint or coercion.
2. Take the following affirmative action designed to
effectuate the purposes of the Act:
(a) Rescind and expunge from its records the fines and
the I-year membership probation imposed upon William
O. Anderson on August 16, 1976, and any other disciplin-
ary acts which may have been taken against William O.
Anderson because of his employment by Chewelah
Contractors, Inc.
(b) Advise William O. Anderson, in writing, that it has
taken the aforesaid action in compliance with paragraph
2(a), above, and that it will cease and desist from the action
forbidden in paragraph I of this Order.
(c) Post at its business office and meeting hall copies of
the attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and maintained by
lit for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are custom-
!arily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Furnish the Regional Director for Region 19 signed
copies of said notice for posting by Chewelah Contractors,
Inc., if willing, where notices to employees are customarily
posted.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
812
ELECTRICAL WORKERS, LOCAL 73
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Chewelah Contrac-
tors, Inc., in the selection of representatives for the
purposes of collective bargaining or the adjustment of
grievances by preferring charges, fining, suspending
from membership, otherwise disciplining, or attempting
by any means to collect or enforce any fine or discipline
imposed against any such representative, including
William O. Anderson, for working for Chewelah
Contractors, Inc., when we are engaged in a labor
dispute with that employer.
WE WILL NOT engage in any like or related conduct
constituting such restraint and coercion.
WE WILL rescind and expunge from our records the
fines and the I-year membership probation imposed by
us upon William O. Anderson on August 16, 1976, and
any other disciplinary action which may have been
taken against William O. Anderson because of his
employment with Chewelah Contractors, Inc.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
LOCAL UNION No. 73,
AFL-CIO
813