Elevator Constructors Local 1 (Otis Elevator)

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 907 (N.L.R.B. 1986)

ELEVATOR CONSTRUCTORS LOCAL 1 (OTIS ELEVATOR) 907
Elevator Constructors Union , Local No . 1 of New
York and Vicinity , International Union of Ele-
vator Constructors, AFL-CIO (Otis Elevator
Company) and Louis Greene . Case 2-CB-9888
30 September 1986
Richard M. Markowitz Esq., of Philadelphia , Pennsylva-
nia, for the Respondent.
Farmer, Wells, Sibal & Dempsey by Edward J. Dempsey,
Esq., of Hartford , Connecticut, for the Charging Party.
DECISION
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 16 March 1984 Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent and Charging Party filed excep-
tions and supporting briefs , and the General Coun-
sel filed a brief.
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, I and
conclusions2 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 , Elevator
Constructors Union, Local No. 1 of New York and
Vicinity, International Union of Elevator Construc-
tors, AFL-CIO, New York City, New York, its of-
ficers, agents, and representatives shall take the
action set forth in the Order.
' We find merit to the Charging Party's exception to the judge 's find-
ing that Greene's job did not entail either collective-bargaining or griev-
ance handling functions . The record establishes that Greene exercises
both functions on behalf of the Employer and did so in the very circum-
stances which precipitated the fine. First, Greene exercised collective-
bargaining judgment when he determined that the work was maintenance
work under the contract and assigned it accordingly. Later, after issuing
employee Heck a disciplinary letter for refusing work , Greene discussed
with Heck the applicability of the contract and the union rules to Heck's
conduct. Greene also discussed Heck's discipline with the Respondent's
business agent on at least one occasion.
As found by the judge , Greene also is involved in various employee
problems before they become formal grievances . Contrary to the judge's
finding , it is not necessary in the construction of Sec . 8(b)(1XB) that the
representative handle contractual grievances to be considered a represent-
ative . Typographical Union 529 (Hour Publishing), 241 NLRB 310 (1979).
The propriety of this construction is illustrated by the instant case
where the first formal step of the grievance procedure is before the bipar-
tisan New York Arbitration Committee and by the Respondent 's coun-
sel's position at the hearing that discussing Heck's discipline with
Greene's immediate superior , McDonald , was "taking up (the) grievance"
although McDonald's grievance handling authority was not meaningfully
distinguished from Green's.
' We do not endorse the judge's criticisms of Teamsters Local 524
(Yakima Beverage), 212 NLRB 908 (1974).
Ellen Dichner, Esq., and Mary Schuette, Esq., for the
General Counsel.
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in New York , New York, on No-
vember 17 , 1983 . The charge was filed on May 9, 1983,
and the complaint was issued on July 28 , 1983. At the
opening of the hearing , the complaint was amended. In
substance, the complaint , as amended , alleges that on
June 7 , 1983 , the Union brought intraunion charges
against Louis Greene , a supervisor , and thereafter, in
September 1983 , assessed a fine of $2000 against him. It
is argued that this intraunion disciplinary action coerced
and restrained Otis Elevator Company in the selection of
"its representative for the purposes of collective bargain-
ing or the adjustment of grievances ," and that, therefore,
the Union violated Section 8(b)(1)(B) of the Act. The
Union maintains that the fine was levied against Greene
because , contrary to the terms of the collective -bargain-
ing agreement, he performed bargaining unit work.
Based on the entire record , including my observation
of the demeanor of the witnesses , and after considering
the briefs filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
As the Respondent admits the jurisdictional allegations
of the complaint, I find that Otis Elevator Company 1 is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. I also find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. OPERATIVE FACTS
At all times material Otis has been a member of the
Elevator Manufacturers ' Association which is an associa-
tion of employers which bargains on its behalf with the
Union. The most recent collective-bargaining agreement
runs for a term from July 1, 1981, through June 30, 1984.
The bargaining unit is defined as:
All elevator constructor mechanics and elevator
constructor helpers in the employ of the employer-
members of the Association , engaged in the con-
struction, modernization, repair, maintenance and
constructural service work for that area within a
radius of 35 miles of the City Hall of the City of
New York , except Monmouth County New Jersey,
but including all of New York.
For about 7 years until 1982 , Greene was an elevator
maintenance mechanic employed by Otis and was part of
' Otis Elevator is affiliated either as a division or a subsidiary of
United Technologies Corporation.
281 NLRB No. 123
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bargaining unit . In June 1982, Greene was made a
temporary district maintenance supervisor and in Octo-
ber 1982 , he was permanently assigned to that position.
It was stipulated at the hearing that in this position,
Greene was a supervisor within the meaning of Section
2(11) of the Act.
Notwithstanding the stipulation regarding Green's su-
pervisory status, the Respondent nevertheless maintains
that although Greene had supervisory authority , his job
did not include either bargaining or grievance handling
functions as defined in Section 8(b)(1)(B) of the Act.
As a district maintenance supervisor , Greene super-
vises about 13 mechanics and 4 helpers who service ele-
vators in midtown Manhattan . He has the authority to
hire, discipline , and discharge employees . The record dis-
closes, however, that Greene has not been authorized by
his employer to participate in collective bargaining or to
participate in the handling or adjustment of grievances
under the contractual procedure . To a limited extent,
Greene may become involved in minor employee prob-
lems which have not risen to the level of grievances. For
example, if an employee complains that his paycheck is
incorrect because it does not reflect the proper hours of
work, Greene will check the timecards and notify the
office of the discrepancy . Also, if an employee has not
received his check in the mail , he is authorized to issue a
"voucher check ." Another example cited by the General
Counsel involves situations where Greene may resched-
ule vacations . Yet in this situation the contract provides
for preference based on seniority and as in the pay situa-
tions noted above, it appears that Greene's settlement of
disputes is purely ministerial in nature . On occasion, a
maintenance mechanic will be called on to work at a
construction site and therefore be entitled to claim con-
struction pay under the contract . In this circumstance,
Greene can authorize such pay but I do not see much of
an element of discretion on his part and I cannot imagine
that the determination of whether such pay is appropri-
ate is anything more than routine . Finally, there have
been occasions when a union agent or shop steward has
asked Greene to explain the circumstances of a discipli-
nary action he has taken . However, the record does not
show that these discussions are anything other than a
fact-gathering process and I do not believe that such
conversations amount to grievance settlement discus-
sions . As noted above, Greene does not participate even
at the first step of the contractual grievance procedure.
In short, it is my opinion that although exercising certain
supervisory functions, Green's dealing with employee
complaints involves routine matters, requiring at most,
ministerial discretion on his part.
Preliminary to a discussion of the events leading up to
the instant charge, it is noted that the collective -bargain-
ing agreement makes a distinction between repair work
as opposed to maintenance work. Repair work is defined
in the contract at section VI(A) and the Company is re-
quired to assign such work to two-man crews consisting
of employees exclusively assigned to repair work . 2 Main-
2 Sec. VI(A) states:
Repair work, as distinguished from Maintenance Work, is defined
as the repair or replacement of parts and assemblies of an elevator,
tenance work is defined at article VII(A) of the contract,
and such work is ordinarily performed by a single em-
ployee among a group which only does maintenance
work.3 Thus, if a particular job is defined as repair work,
the Company must send a two-man crew to do the work
and in certain overtime situations they must be paid at
double-time rates . On the other hand, if a particular job
is designated as maintenance work, the Company can
send one man to do the work and his maximum overtime
rate is at 1-1/2 times his regular pay. Obviously in any
doubtful case, it would be to the Company's advantage
to define the job as a maintenance job, whereas it would
be to the Union's advantage to define the job as a repair
job.
In connection with the distinction between repair
work and maintenance work, the record shows that over
the years there have been numerous disagreements be-
tween the Union and employers and that there exists a
large overlapping grey area which reasonably could fall
into either category. It also appears that because of man-
ufacturing advances, there has been a diminution (at least
from the Company's point of view) of repair work. Ap-
parently this too has resulted in a number of disputes and
the Union has sought to preserve work for those of its
members who are classified as repair mechanics . In 1981
the contracting parties established a joint committee
which was given the job of attempting to clarify the dis-
tinction between repair and maintenance work. Howev-
er, although a report was issued , the parties have not
made any agreement in this respect . Accordingly, the
problem still persists and disputes still arise to be han-
dled, under the contract, on a case-by-case basis . In con-
nection with this problem, Greene, as a supervisor who
makes assignments, must be cognizant of the contractual
provisions relating to repair and maintenance work.
When Greene was made a permanent supervisor he
obtained from the local union a withdrawal card .4 In this
escalator , or dumbwaiter because of normal wear and tear , damage
to or deterioration thereof such as, renewal of all ropes; shortening
of all hoisting or counterweight cables , safety tests where test
weights are required ; replacement of worms and gears ; replacing or
repairing wood floors or platforms; rescoring of sheaves and drums,
as well as any other work not falling within the scope of paragraph
(A) of Construction Work, (A) of Modernization and (A ) of Con-
tractual Service Work.
Sec. VI(A) then goes on to describe a procedure for resolving disputes as
to whether or not a particular job is repair work.
a Sec. VII(A) of the contract reads.
Contractual Service (Maintenance) Work is defined as that service
rendered under a contract between the Employer and an Owner or
Agent, in which the Employer provides regularly scheduled inspec-
tion, cleaning, oiling and adjusting , and/or including repair and re-
placement of parts for the purpose of maintaining the elevator, esca-
lator , dumbwaiter and equipment outlined in Section IV, Paragraph
Al and A2, in good operating condition . These contractual services
require unscheduled callbacks, emergency service and special con-
tract service (shift work ) as hereinafter described.
The foregoing definitions insofar as it includes non-scheduled re-
pairs is not intended to deprive repairmen of repair work hereinbe-
fore defined in Section VI , (A) of this Agreement
4 Art. XXVII, sec. I of the Local Union 's constitution reads:
Any member who advances his position in the trade to . . . [a]
supervisory capacity above Mechanic in Charge . . . will be given a
withdrawal card within six months by the Executive Board, provid-
ing he has all his arrearages paid up . On request for readmission such
Continued
ELEVATOR CONSTRUCTORS LOCAL I (OTIS ELEVATOR)
respect, he testified that he took the withdrawal card
notwithstanding the Union's attempt to convince him to
retain full membership. As a supervisor, Greene was no
longer in the bargaining unit, and therefore was no
longer entitled to the contractual benefits. As a with-
drawn member, Greene was no longer obligated to pay
dues, could no longer attend union meetings and no
longer could vote on the union's business. Nevertheless,
by taking a withdrawal card, instead of simply resigning
his membership entirely, Greene, under the International
and Local Union constitutions, retained certain union ob-
ligation. Thus, the International's constitution, at article
XVI(B), states:
Where the holder of a withdrawal card commits
any act detrimental to the International Union of
Elevator Constructors or its local unions or violates
any section of the International Union Constitution,
he/she shall be disciplined in accordance with Arti-
cle XIX, and the discipline may also include cancel-
lation of the withdrawal card.
Similarly, the Local Union's constitution at article
XXVII, section 13 states:
A member holding withdrawal card who directly
or indirectly does or helps to work against the in-
terest, Constitution, By-Laws, trade agreements, etc.
of this Local, shall forfeit all rights to readmission
and said card shall be nullified. Members holding
withdrawal cards . . shall be entitled to hearings
and trials the same as other members.
Before moving on to the events which were the proxi-
mate cause of the Union's disciplinary action against
Greene, it is noted that the collective-bargaining agree-
ment has a clause at section II(N)(3) which prohibits,
except in certain circumstances, supervisors from doing
bargaining unit work. This clause reads as follows:
No salaried Employee, partner or member of a firm
of an Employer shall perform any of the physical
work of the Employees covered by this Agreement
unless agreed to by the Union, except for situations
of emergency or in which the services of the Eleva-
tor Constructors are not available. An emergency
shall be defined as a situation in which someone is
caught in an elevator, or personal safety is in imme-
diate danger or substantial property damage is in-
volved.
On the evening of Friday, April 15, 1983, Greene re-
ceived a call advising him that a dumbwaiter was out of
service at the Manhattan Eye, Ear, and Throat Hospital.
This dumbwaiter was used by the hospital to transport
sterilized tools and equipment from the sterilization room
in the basement to the operating theatre on the second
floor. Operations were scheduled for the following
morning.
applicant must appear before the Executive Board and present his
case Readmission will not be granted to any applicant who
has done anything to conflict with the interests, Constitution, By-
Laws, trade agreements etc of this Local
909
As a result of this call, Greene called Thomas Heck, a
maintenance mechanic, and asked him to fix the dumb-
waiter. Heck refused, asserting that the work was repair
and not maintenance work. When Green offered to pay
Heck and another maintenance mechanic the repair rates,
Heck still refused. At this point Greene contacted a
repair team, but was informed that they were already on
a job and would not be finished until about 3 a.m.
Agreeing with the repair team that they would be too
tired to go over to the hospital, Greene attempted with-
out success to call the Company's repair supervisors who
were not at home. Faced with this situation, Greene
called his supervisor Stanley McDonald, the district
service manager, and advised him of the problem.
McDonald asked if Greene would do the job himself and
Greene said he would if so directed. (I assume that
Greene was aware of the contract's prohibition on his
doing bargaining unit work). McDonald directed Greene
to do the job and to take along another maintenance su-
pervisor. At this time, Greene and another supervisor
went to the hospital and he fixed the dumbwaiter by put-
ting the cable back on the pulley. The job entailed about
7 minutes of work.
The General Counsel seemingly asserts that on April
15 there existed an emergency as defined in the contract,
thereby allowing Greene to perform bargaining unit
work. The Respondent asserts, however, that no such
emergency existed (only an inconvenience), because the
hospital had alternative means of bunging sterilized
equipment to the operating theatre. Frankly, as no one
from the hospital testified, I am not in a position to de-
termine whether there existed an emergency as that term
is defined in the contract, although it would be a safe bet
that the hospital would have been very displeased if the
dumbwaiter had not been fixed that evening.
The Respondent also asserts that both Greene and
McDonald did not exhaust all avenues for finding alter-
native employees to do the job that night. However, I
note in this regard that the on-call maintenance mechan-
ics refused the job asserting that it was repair work; that
Greene did contact a repair team which was too busy on
other work; and that he tried to contact the repair super-
visors. In these circumstances, I cannot say that Greene
did not take reasonable steps to find available men to do
the work or that a reasonable man, from Greene's point
of view, would not have concluded that no one was
available.
On Monday, April 18, McDonald called Union Agent
John Green to inform him of the events of Friday night.
Among other things, he told John Green that Heck's re-
fusal to do the work warranted disciplinary action.
About the same time, Greene issued a disciplinary notice
to Heck. Sometime during the week of April 25, Union
Agent Green called McDonald and asked that the disci-
pline of Heck be withdrawn. This request was refused.
The Union did not file a grievance regarding Heck's dis-
cipline.
On April 28, the Union sent a letter to Greene sum-
moning him to a hearing to answer a charge that he vio-
lated article XIX(4) of the International Union's constitu-
tion because of his alleged breach of the collective-bar-
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining agreement on April 15. That provision of the
constitution defines as a punishable offense:
[F]ailure or refusal to abide by the provisions of the
Standard Agreement, or the Canadian Agreements,
or the provisions of any local agreement, such as a
local union transportation agreement.
On June 7, Greene appeared at a union hearing and
was told that he was charged with having performed
bargaining unit work on April 15. In his defense, Greene
asserted that his actions were proper because there was
an emergency. In September the executive board found
Greene guilty and fined him $2000. In pertinent part, the
executive committee's decision stated:
The charges essentially allege , and the evidence
established, that Lou Greene performed bargaining
unit work on April 15, 1983 at the Manhattan Eye,
Ear and Throat Hospital, 224 East 64 Street, New
York, New York. The evidence disclosed that Lou
Greene and another individual repaired a shutdown
of a dumbwaiter at this hospital shortly after 11:00
p.m. on April 15, 1983.
The Executive Board has decided that Brother
Greene is guilty of the charges filed against him.
The Executive Board finds that Brother Greene im-
properly used his supervisory position to perform
work which should have been performed by an em-
ployee in the bargaining unit. His performance of
such work, and his failure to have such work per-
formed by an employee in the bargaining unit, con-
stitute a violation of our Constitution and By-Laws.
The Executive Board desires to emphasize that
its finding of guilt on the part of Brother Greene is
not intended in any way to affect his supervisory
status with Otis Elevator Company. This Union
does not in any way intend to affect Brother
Green's conduct in performing his duties as supervi-
sor on behalf of Otis. Our finding of guilt relates
only to Brother Green's performance of repair
work which is work traditionally performed by bar-
gaining unit employees, and not by supervisors. As
a member on withdrawal card from his Local
Union, Brother Greene does not have the right to
perform work which should be performed by rank
and file employees. This is the sole basis for this Ex-
ecutive Board's finding that Brother Greene is
guilty of the charges against him.
With respect to the above, it is noted that the Union
elected to utilize only its own internal disciplinary mech-
anism for dealing with its claim that Greene and the
Company had breached the terms of the collective-bar-
gaining agreement. It did not file any grievance under
the contract, as it could have done, to assert that Green's
performance of the work was prohibited or that his disci-
pline of Heck was unjustified. I also note (although not
strictly relevant), that the amount of the fine ($2000),
was, in my opinion grossly disproportionate to the
amount of money which would conceivably have been
lost to even two mechanics had they performed the 7-
minute job instead of Greene.
Subsequent to the imposition of the fine, Greene filed
an appeal to the International Union.
III. ANALYSIS
Section 8(b)(1)(B) of the Act provides that it shall be
an unfair labor practice for a labor organization : "to re-
strain or coerce . . . an employer in the selection of his
representatives for the purposes of collective bargaining
or the adjustment of grievances."
Obviously, if one were to read this section of the Act
literally, no violation would be found in the present case
for two reasons. First, the evidence does not establish
that the Union was attempting to force the Employer to
substitute another person in Greene's job. Secondly, it is
my opinion, as noted above, that although Greene was a
supervisor within the meaning of Section 2(11) of the
Act, I do not believe that the evidence establishes that
his job actually entailed either collective-bargaining or
grievance-handling functions.
Nevertheless, the General Counsel and the Charging
Party urge a more expansive reading of the statute which
is supported by a degree of precedent.
Subsequent to 1968 and continuing after the Supreme
Court's decision in Florida Power Co. v. Electrical Work-
ers IBEW Local 641, 417 U.S. 790 (1974), the Board has
interpreted Section 8(b)(1)(B) broadly.5 In San Francisco-
Oakland Mailers Union 18 (Northwest Publications), 172
NLRB 2173 (1968), the Board held that a union violated
Section 8(b)(1)(B) when it expelled three union-member
foremen because they assigned work in violation of the
collective-bargaining agreement . The Board stated:
That Respondent may have sought the substitution
of attitudes rather than persons, and may have ex-
erted its pressures upon the Charging Party by indi-
rect rather than direct means, cannot alter the ulti-
mate fact that pressure was exerted here for the
purpose of interfering with the Charging Party's
control over its representatives . Realistically, the
Employer would have to replace its foreman or
face de facto nonrepresentation by them.
Subsequently, the Board further expanded its interpre-
tation of Section 8(b)(1)(B) by holding that a coercive
effect was foreseeable when a union disciplined a
member-supervisor for engaging in management func-
tions even if his collective-bargaining or grievance-han-
dling functions were not involved. Thus in Toledo Li-
thographers (Toledo Blade), 175 NLRB 1072 (1969), enfd.
437 F.2d 55 (6th Cir. 1971), the Board held that the
Union unlawfully disciplined two supervisor-members
for working in a crew which was smaller than the con-
tractually prescribed minimum and for performing more
work than the contractually prescribed maximum. The
Trial Examiner, in an opinion adopted by the Board,
stated that even if the two men had not actually been
designated by the employer to serve as grievance repre-
s As noted by the Court in Florida Power, Sec 8(bXl)(B) was primarily
used prior to 1968 to prohibit unions from forcing employers into multi-
employer bargaining associations or to compel employers to dismiss labor
relations representatives thought to be hostile to a union.
ELEVATOR CONSTRUCTORS LOCAL I (OTIS ELEVATOR) 911
sentatives , their status as supervisors vested then with
potential grievance-handling functions . He stated (at
1078):
But even had Jones and Ulright not been actually
designated and serving the Blade as such grievance
representatives, I would find that , in view of their
status and roles as foremen with the substantial su-
pervisory authority to direct the work of the men
on their shifts, they were such natural and potential
representatives of the Blade for the handling and
settlement of grievances because of their day-to-day
supervision and contacts with the employees in mat-
ters that spawn grievances, that the Blade should be
entitled to rely upon them , and therefore to select
them , as its representatives in handling and settling
grievances whenever the occasion might arise. For
Section 8(b)(1)(B) forbids a union's restraining and
coercing "an employer in the selection of his repre-
sentatives for the purposes of collective bargaining
or the adjustment of grievances" and this protection
of the employer's right to "selection " must be con-
strued as protection not only the employer's con-
tinuing reliance upon supervisors already selected,
but his right at any time to make and rely upon a
selection of representatives from an uncoerced
group of such supervisors whose loyalty to him has
not been prejudiced and who he believes would be
peculiarly qualified to represent him in the handling
of grievances.
A similar result was reached in Meat Cutters Union
Local 81 v. NLRB, 458 F.2d 794 (D.C. Cir. 1972). In that
case the court enforced the Board 's conclusions that the
Union violated Section 8(b)(1)(B) by fining and expelling
the employer's meat market manager . The facts showed
that prior to July 1968, the process of fine grinding of
meat and the slicing of liver had been performed by em-
ployees in the stores who were represented by the
Union. In July the Company decided that these functions
would no longer be performed in the stores and directed
its meat market managers to order these products from
the Company's warehouse . The Union maintained that
this new practice violated the labor agreement and it no-
tified the meat market managers, who also were mem-
bers of the Union , to refuse to carry out the Company's
new policy. When the individual involved refused to
comply with the Union's directive, he was fined and ex-
pelled by the Union. The court stated:
The Union in the instant case fined and expelled
Supervisor Hall in retaliation for his performance of
duties indigenous to his position as a management
representative . He was disciplined as a result of his
managerial decision to implement a new Company
meat-procurement policy . He merely complied with
a Safeway order that was directed to the managers
of all of its meat markets in the Seattle area. Had
Hall, as supervisor, refused to carry out these
orders as directed by his Employer, he certainly
would have been subject to Company discipline,
and there would have been serious doubt thereafter
as to whether he could represent the Company in a
bona fide manner against the Union in other matters
where their interests were adverse . Under these cir-
cumstances, it is obvious that the Union's actions
were impermissibly designed "to change [the Com-
pany 's] representative from one representing the
viewpoint of management to a person responsive or
subservient to the Union's viewpoint ." (458 F.2d at
798-799.)
The "conduct of the union could very well be
considered as an endeavor to apply pressure on the
supervisory employees of the [Company ], and to
interfere with the performance of the duties which
the employer required them to perform . . . and to
influence them to take action which it, the employ-
er, might deem detrimental to its best interests. This
conduct of the union would further operate to make
the employees reluctant in the future to take a posi-
tion adverse to the union , and their usefulness to
their employer would thereby be impaired." [Id. at
799.]
The Union finally contends that since its action
had the objective of preserving bargaining unit
work, it was permissible under the Act . However,
while it is well recognized that the preservation of
unit work is a legitimate union goal , a labor organi-
zation is clearly not free to utilize any means its
chooses in order to achieve a desired result. In the
instant case , the Union claimed that the new Com-
pany meat procurement policy, compliance with
which led to the imposition of Union discipline on
Supervisor Hall, was established in violation of the
collective bargaining agreement . Although that
same agreement expressly provided for the resolu-
tion of such conflicts through the use of the con-
tract's grievance-arbitration procedures , the Union
sought to enforce its interpretation upon manage-
ment unilaterally through the exercise of its internal
disciplinary authority upon supervisory personnel.
Such action not only contravened the specific statu-
tory policy expressed in section 8(b)(1)(B) of the
Act, as we have already noted , but it also contro-
verted the generally recognized federal labor policy
favoring the peaceful , bi-party resolution of such
contract disputes through resort to the arbitration
process. [Id. at 801-802.] [Citations and fns. omit-
ted.]
In 1974, the Supreme Court in Florida Power Co. v.
IBEW, supra, was called on to decide whether a union
violated Section 8(b)(1)(B) when it imposed intraunion
discipline on supervisor-members who performed bar-
gaining unit work during an economic strike . (The Board
had found a violation but the D .C. Circuit had reversed.)
The Court stated:
Nowhere in the legislative history is there to be
found any implication that Congress sought to
extend protection to the employer from union re-
straint or coercion when engaged in any activity
other than the selection of its representatives for the
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining and grievance ad-
justment . The conclusion is thus inescapable that a
union 's discipline of one of its members who is a su-
pervisory employee can constitute a violation of
§8(b)(1)(B) only when that discipline may adversely
affect the supervisor 's conduct in performing the
duties of, and acting in his capacity as, grievance
adjuster or collective bargainer on behalf of the em-
ployer.
We may assume without deciding that the
Board 's Oakland Mailers decision fell within the
outer limits of this test , but its decisions in the
present cases clearly do not . For it is certain that
these supervisors were not engaged in collective
bargaining or grievance adjustment , or in any ac-
tivities related thereto , when they crossed union
picket lines during an economic strike to engage in
rank-and-file struck work.
It is strenuously asserted , however, that to permit
a union to discipline supervisor -members for per-
forming rank-and-file work during an economic
strike will deprive the employer of the full loyalty
of those supervisors . Indeed , it is precisely that con-
cern that is reflected in these and other recent deci-
sions of the Board holding that the statutory lan-
guage "restrain or coerce ... an employer in the
selection of his representatives for the purposes of
collective bargaining or the adjustment of griev-
ances" is not confined to situations in which the
union 's object is to force a change in the identity of
the employer 's representatives , but may properly be
read to encompass any situation in which the
union's actions are likely to deprive the employer of
the undivided loyalty of his supervisory employees.
[417 U .S. at 804-806.]
The Board in the present cases echoes this view
in arguing that "where a supervisor is disciplined by
the union for performing other supervisory or man-
agement functions, the likely effect of such disci-
pline is to make him subservient to the union's
wishes when he performs those functions in the
future. Thus, even if the effect of this discipline did
not carry over to the performance of the supervi-
sors' grievance adjustment or collective bargaining
functions, the result would be to deprive the em-
ployer of the full allegiance of, and control over, a
representative he had selected for grievance adjust-
ment or collective bargaining purposes."
The concern expressed in this argument is a very
real one, but the problem is one that Congress ad-
dressed, not through §8(b)(1)(B), but through a
completely different legislative route. Specifically,
Congress in 1947 amended the definition of "em-
ployee" in §2(3), 29 U.S.C. §152(3), to exclude
those denominated supervisors under §2(11), 29
U.S.C. §152(11), thereby excluding them from the
coverage of the Act. [Id. at 807.1
Thus, while supervisors are permitted to become
union members, Congress sought to insure the em-
ployer of the loyalty of his supervisors by reserving
in him the right to refuse to hire union members as
supervisors, the right to discharge such supervisors
because of their involvement in union activities or
union membership. [Id. at 808.]
Congress' solution was essentially one of provid-
ing the employer with an option. On the one hand,
he is at liberty to demand absolute loyalty from his
supervisory personnel by insisting, on pain of dis-
charge, that they neither participate in, no retain
membership in, a labor union. Alternatively, an em-
ployer who wishes to do so can permit his supervi-
sors to join or retain their membership in labor
unions, resolving such conflicts as arise through the
traditional procedures of collective bargaining. But
it is quite apparent, given the statutory language
and the particular concern that the legislative histo-
ry shows were what motivated Congress to enact
§8(b)(1)(B), that it did not intend to make that pro-
vision any part of the solution to the generalized
problem of supervisor-union member conflict of
loyalties. [Id. at 812-813.] [Fns. and citations omit-
ted.]
Subsequent to the Court's opinion in Florida Power, the
Board continued to apply the rationale of San Francisco-
Oakland Mailers, noting that the Court stated that it as-
sumed, without deciding, that the decision in San Fran-
cisco-Oakland Mailers fell within the outer limits of Sec-
tion 8(b)(1)(B). Teamsters Local 524 (Yakima Beverage
Co), 212 NLRB 908 (1974). Thus, in Teamsters Local 524
the Union was held to have unlawfully fined several su-
pervisor-members on the grounds that they violated the
terms of collective-bargaining agreement by working
after the regular quitting time set forth in the contract. It
should be noted that unlike the present case, the parties
there stipulated that these individuals were not only su-
pervisors within the meaning of Section 2(11) but also
representatives within the meaning of Section 8(b)(1)(B).
The Board, relying on San Francisco-Oakland Mailers,
stated:
We have consistently applied these principles in
finding union disciplinary actions against supervi-
sors unlawful where they were rooted in disputes
between employers and unions over the interpreta-
tion of their collective bargaining agreement. Our
concern in each of these cases rested upon the
Union's use of unlawful means to impose its inter-
pretations directly or indirectly upon an employer's
representative which, in turn, infringed upon the
employer's right to unencumbered control of that
representative.
In the instant case, the underlying dispute re-
volved solely around the Employer's decision to ar-
range their displays after 6 in the evening, which
the Union contends constituted a breach of article
IX, section 9.02, of their agreement . The Respond-
ent chose to use its internal disciplinary machinery
to interpose Clark, Folk, and Smith into its contro-
versy with Yakima and Chaney. The Respondent,
ELEVATOR CONSTRUCTORS LOCAL 1 (OTIS ELEVATOR)
in its brief, admits that the purpose of instituting the
discipline against Clark , Folk, and Smith was "to
force the supervisors to follow the terms of the col-
lective-bargaining agreement." In these circum-
stances, we find that the Respondent restrained and
coerced Yakima and Chaney in their selection of
representatives for the purpose of collective bar-
gaining or the adjustment of grievances in violation
of Section 8(b)(1)(B), by fining supervisor/members
in an attempt to impose the Respondent 's interpreta-
tion of the collective-bargaining contract on them
and thus to impede the Employer's control over
them. 6
There is no doubt in my mind that the Board has
stretched, perhaps to the breaking point, the meaning of
Section 8(b)(1)(B). Illustrative of the difficulty thereby
created is the history of a case called Teamsters Local
296 (Northwest Publications), 250 NLRB 838 (1980). In
that case , the union had fined a supervisor-member
(O'Donnell) because he worked "off the clock" in per-
forming certain prestart activities in his role as a fore-
man. He was fined because in the union 's view, his work
off the clock was contrary to the terms of the collective-
bargaining agreement . The Board in a 2-to-1 decision,
initially dismissed the complaint which relied on the
Yakima rationale . The Board stated:
Here, in contrast , Respondent made it clear to
O'Donnell and to the Employer that it was not at-
tempting through its discipline of O'Donnell to
force the Employer to change its interpretation of
the collective-bargaining agreement but, rather, as
found by the Administrative Law Judge , to address
the personal decision of O'Donnell , a member of
Respondent Union, to violate trade union principles
by "donating" labor to the Employer. This is made
clear by Respondent's letter to O'Donnell informing
him of the fine, when it stated that "this [is] a union
matter not involving the employer in any way."
Moreover, even when invited to do so by the Em-
ployer, Respondent did not file a grievance or take
other steps to demonstrate its belief that the Em-
ployer was violating the agreement by permitting
O'Donnell to perform "pre-start" duties. Respond-
ent's concern with O'Donnell's activities was identi-
cal to that expressed with regard to other members
who had been fined for working "off the clock."
For this reason, we believe that Yakima is inappo-
site and , accordingly, we affirm the Administrative
Law Judge's finding that Respondent did not vio-
late Section 8(b)(1)(B) of the Act.
On appeal the Ninth Circuit in Northwest Publications
v. NLRB 656 F.2d 461 (9th Cir. 1981), vacated the order
and remanded the case to the Board. In its opinion, the
Board had not followed its own precedent in Yakima.
The court also stated, at footnote 8, that it expressed no
view concerning the correctness of the Yakima doctrine
See also Longshoremen ILA Local 333 (Morania Oil Tankers), 233
NLRB 387 (1977), Plumbers Local 364 (West Coast Contractors), 254
NLRB 1123 (1981).
913
in light of Florida Power. In its supplemental decision, at
263 NLRB 778 (1982), the Board thereupon reversed its
earlier opinion and concluded that the Union had violat-
ed Section 8(b)(1)(B). It stated:
Based on the foregoing , we conclude that Re-
spondent violated Section 8(b)(1)(B) when it disci-
plined O 'Donnell for performing certain pre-start
job tasks . Our review of the entire record convinces
us that O 'Donnell 's actions were carried out in fur-
therance of the Employer's established practice of
having its supervisors perform such tasks . Thus, Re-
spondent plainly sought to interfere with the per-
formance of a job task traditionally performed by
the Employer's supervisory personnel. In addition,
contrary to the Administrative Law Judge's conclu-
sion , Respondent 's action, in substantial part, in-
volved a dispute over the applicability and interpre-
tation of the collective-bargaining agreement. Ac-
cordingly , by seeking to discipline O'Donnell, Re-
spondent unlawfully sought to coerce O'Donnell
into conforming his job tasks to Respondent's per-
ception of the contract requirements and superviso-
ry functions . We find, therefore, that Respondent's
action violated Secton 8(b)(1)(B).
It is further noted that, in its supplemental decision, the
Board also reaffirmed its "reservoir doctrine" pursuant
to which "the Board has found that all supervisors
within the meaning of Section 2(11) are representatives
within the intent of Section 8(b)(1)(B) notwithstanding
the absence of evidence that the individual in question is
specifically vested with authority to act for the employer
in collective bargaining or the adjustment of grievances."
In light of the present case law , it seems to me that I
am constrained to find a violation of the Act given the
facts of the instant case . Thus, notwithstanding the Re-
spondent 's assertion that Greene was not, in fact, vested
with collective-bargaining or grievance-handling func-
tions, I would have to find, under the "reservoir doc-
trine" that he nevertheless was a representative for such
purposes within the meaning of Section 8(b)(1)(B ). Also,
given the facts of the instant case, it seems to me that the
Union's disciplinary action was designed to influence
Greene to perform his supervisory functions in conformi-
ty with the Union's interpretation of the collective-bar-
gaining agreement.
The facts herein show that Greene had instructed
Heck, a maintenance mechanic , to do certain work
which Heck refused because of his belief (contrary to
Green 's) that it was repair work reserved for repair me-
chanics . When Greene could not obtain a repair crew
through reasonable efforts, he did the work himself in
accordance with McDonald 's instructions , as both he and
McDonald felt that this was an emergency situation.
Greene also issued a disciplinary warning to Heck and
the Union soon thereafter summoned Greene to a disci-
plinary hearing where he was fined $2000 . In this regard,
it is noted that the Union could have , but did not, file a
grievance under the applicable provisions of the collec-
tive-bargaining agreement to vindicate any claim that
Greene 's performance of the work or his imposition of
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline on Heck was violative of the contract. Instead
it sought to achieve this result by intraunion means.
In utilizing its own internal procedures to resolve a
dispute which was subject to the grievance-arbitration
provisions of the labor agreement , the Union thereby
foreclosed the Company from being a party to the proce-
dure. I also note that given the situation on April 15, it is
not at all clear that Greene had, in fact, violated the pro-
visions of section II,(N),(3) of the collective-bargaining
agreement. At the very least, he had a legitimate argu-
ment that the contract permitted him to do the work in
question either because an emergency existed or because
no bargaining -unit employees were available . Although I
make no conclusion as to whether the Union or the
Company would have prevailed had the dispute been
submitted to arbitration, it nevertheless is evident that
the Union, in bypassing the contractual grievance proce-
dure, and utilizing its own disciplinary procedures,
sought to compel Greene to abide by the Union's inter-
pretation of the collective-bargaining agreement in the
future.
Although I shall conclude that the Union violated Sec-
tion 8(b)(1)(B), the Board may wish to reconsider the
Yakima rationale on which this decision is based. Thus,
the Supreme Court in Florida Power assumed, without
deciding, that this type of rationale was perhaps the
outer limit of a permissible interpretation of this section
of the Act. I also note that the easy solution for a com-
pany to avoid these kinds of problems is simply to insist
that employees promoted to supervisory positions resign
their union membership.' In this regard I note that the
present Board majority in Meyers Industries, 268 NLRB
493 (1984), has expressed the opinion that prior Board
decisions had stretched the plain meaning of the statute
(in that case Sec. 7), and created legal fictions designed
to reach results inconsistent with the express intentions
of Congress. Although noting its outrage with the Em-
ployer's conduct in Myers, the Board indicated, in effect,
that absent legislative mandate, "we are not empowered
to correct all immorality or even illegality arising under
the total fabric of Federal and State laws."
It seems to me that the rationale of San Francisco-Oak-
land Mailers and Yakima is an interpretation of the Act
which stretches the plain meaning of Section 8(b)(1)(B)
as much as the rationale in Alleluia Cushion Co. 221
NLRB 999 (1975), had stretched the plain meaning of
"concerted activity" as defined by Section 7.
CONCLUSIONS OF LAW
1. The Respondent, Elevator Constructors Union,
Local No. 1 of New York and Vicinity, International
There is the possibility that an employee who is promoted to a super-
visor will thereafter be demoted back to a bargaining unit job Assuming
that he resigned his membership at the time of his promotion , the em-
ployee might wish to be reinstated into union membership upon being de-
moted to a nonsupervisory job. It is of course possible in such circum-
stance, especially if the individual incurred the displeasure of the Union
while a supervisor , that the Union would not readmit such person into
union membership Nevertheless, even if such an employee was denied
membership in a union for reasons other than his failure to pay initiation
fees and dues, the Union could not, under Sec. 8(b)(2), cause or attempt
to cause the employer to discharge him or otherwise affect his employ-
ment status
Union of Elevator Constructors, AFL-CIO is, and at all
times material has been, a labor organization within the
meaning of Section 2(5) of the Act.
2. Otis Elevator Company is an employer engaged in
commerce within the meaning of Sections 2(2), (6), and
(7) and 8(b)(1)(B) of the Act.
3. Louis Greene is, and at all times material has been, a
supervisor within the meaning of Section 2(11) of the
Act and a representative of Otis Elevator Company
within the meaning of Section 8(b)(1)(B) of the Act.
4. By imposing a fine against Louis Greene because he
allegedly violated the collective-bargaining agreement
between Respondent and Otis Elevator Company, Re-
spondent has restrained and coerced the Company in the
selection and retention of its representatives for the pur-
pose of collective bargaining or the adjustment of griev-
ances and has engaged in an unfair labor practice within
the meaning of Section 8(b)(1)(B) of the Act.
5. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
The Respondent, Elevator Constructors Union, Local
No. 1 of New York and Vicinity, International Union of
Elevator Constructors, AFL-CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Fining or otherwise disciplining Louis Greene, or
any other supervisor or representative of Otis Elevator
Company, for allegedly violating the provisions of the
collective-bargaining agreement.
(b) In any like or related manner restraining or coerc-
ing Otis Elevator Company in the selection and retention
of its representatives for the purposes of collective bar-
gaining or the adjustment of grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the fine levied against Louis Greene and
remove all records of the fine from its files.
(b) If the fine has been paid by Louis Greene, refund
said moneys to him with interest in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977).
(c) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."9 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
s 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 pur-
poses
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
ELEVATOR CONSTRUCTORS LOCAL 1 (OTIS ELEVATOR)
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced, or covered by
any other material.
(d) Furnish the Regional Director with signed copies
of such notices for posting by Otis Elevator Company, if
willing, in places where notices to employees are cus-
tomarily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 fine or otherwise discipline Louis
Greene, or any other supervisor or representative of Otis
915
Elevator Company for allegedly violating the collective-
bargaining agreement between us and that company.
WE WILL NOT in any like or related manner restrain or
coerce Otis Elevator Company , in the selection and re-
tention of its representatives for the purposes of collec-
tive bargaining or the adjustment of grievances.
WE WILL rescind the fine levied against Louis Greene
and remove all records of the fine from our files.
WE WILL refund to Louis Greene any moneys he may
have paid on account of the fine assessed against him
with interest.
ELEVATOR CONSTRUCTORS UNION LOCAL
No. 1 OF NEW YORK AND VICINITY,
INTERNATIONAL UNION OF ELEVATOR
CONSTRUCTORS , AFL-CIO