Esi, Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1989

296 N.L.R.B. 1319 (N.L.R.B. 1989)

ESI, INC. 1319
ESI, Inc . and Paul Donald Hurst, Joseph T. Small,
and Wayne J. Whalen
International Brotherhood of Electrical Workers,
Local 212, AFL-CIO and Paul Donald Hurst,
Joseph T . Small, and Wayne J. Whalen
International Brotherhood of Electrical Workers,
Local 212, AFL-CIO and Paul Donald Hurst
and Joseph T. Small . Cases 9-CA-24791-1,-2,-
3, 9-CB-6889-1,-2,-3, and 9-CB-6898-1,-2
October 16, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On September 6, 1988 , Administrative Law
Judge Thomas A. Ricci issued the attached deci-
sion . The Respondent Union filed exceptions and a
supporting brief, two individual Charging Parties
filed an exception , and the General Counsel filed
an answering 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, and
conclusions and to adopt the recommended Order
as modified below.1
We agree for the following reasons with the
judge's finding that Respondent Union violated
Section 8(b)(1)(A) of the Act by appointing Alfred
Boggess, a statutory supervisor , as one of its repre-
sentatives on the Joint Apprenticeship and Training
Committee (JATC or Committee). We do not
agree that Respondent Union 's appointment of
Boggess to the Joint Apprenticeship Trust Fund
(JATF or Fund), which automatically flowed from
his appointment to the Committee , violated Section
8(b)(1)(A). Such a finding conflicts with the Su-
preme Court's holding in NLRB v. Amax Coal Co.,
453 U.S. 322 (1981).2 We shall therefore modify
the judge 's recommended Order accordingly.3
i We have modified the judge 's recommended Order to substitute the
attached notices The Charging Parties' exception urges the Board to
change one portion of the judge 's recommended Order-which directs
that notices be posted by the Respondents at their respective places of
business , offices, and meeting halls-to require that the notices be mailed
to all employees of Respondent Employer and all members of Respond-
ent Union We find that neither the reasons advanced for this exception
nor the record warrants changing the judge 's notice -posting provisions,
which are in conformity with our standard posting requirements
2 We further note that there is no evidence here demonstrating that the
collective-bargaining representative is in de facto control of a nominally
independent trust fund . See Food & Commercial Workers Local 1439 (Lay-
man's Market), 268 NLRB 780 , 781 (1984)
9 No exceptions were filed to the judge's finding that Respondent Em-
ployer violated Sec 8(a)(2) and ( 1) by permitting Boggess to serve as a
union representative on the Committee and the Fund . We therefore adopt
Respondent Employer and Respondent Union
are signatories to a multiemployer collective-bar-
gaining agreement effective May 1, 1986 , through
May 31 , 1988 . Article IV of that agreement pro-
vides for the continuation of a Joint Apprenticeship
and Training Committee , composed of three em-
ployer selected and three union selected representa-
tives, to "make local standards in conformity with
the National Apprenticeship and Training Stand-
ards for the Electrical Contracting Industry gov-
erning the selection , qualifications , education and
training of all apprentices ." The Committee exer-
cises supervisory authority over all matters involv-
ing apprenticeship training , including removal of
apprentice trainees , determination of the number of
apprentices assigned to any employer , and transfer
of apprentices from one job or employer to another
for diversity or work opportunities.
On September 1, 1987 , Respondent Union Presi-
dent Niederhelman appointed Boggess as one of its
three representatives on the JATC. At that time,
Boggess had recently been promoted from general
foreman , the highest contractual pay classification,
to assistant field superintendent .4 It is undisputed
that Boggess functioned as a statutory supervisor
for the Employer both before and during his ap-
pointment by the Union to the JATC. 5 As a result
of his apointment to the JATC, Boggess automati-
cally became a union -designated representative on
the Fund (JATF).
The Board has noted that a labor organization
may be disqualified as a bargaining representative
of particular employees if its structure permits the
active participation of supervisors (of even other
employers) in its internal affairs , because such par-
ticipation may give rise to a conflict of interest. See
Sierra Vista Hospital, 241 NLRB 631, 632-633
(1979).8 The courts also have acknowledged the
this finding and the judge 's recommended Order as modified concerning
Respondent Employer . Nevertheless , we note that the judge's reliance on
J. A. Jones Construction Ca, 284 NLRB 1335 (1987), as binding precedent
on this issue is misplaced No exceptions cognizable before the Board
were filed in that case Thus, the unfair labor practice allegations in J A
Jones were neither presented to nor considered by the Board.
4 Contrary to the judge's finding that Boggess was a general foreman
at the time of his appointment to the JATC, a company memorandum
addressed to all ESI employees on July 27, 1987 (G.C. Exh 5), an-
nounced Boggess ' promotion to assistant field superintendent as of that
date
s Boggess has been involved for a number of years in the apprentice-
ship program as an apprentice trainer There is no allegation or evidence
that Boggess has acted improperly or other than impartially while a
member of the JATC
6 The mere fact that supervisors are members of a labor organization,
however, does not automatically disqualify the union as a bargaining rep-
resentative Nor is a supervisor 's membership and participation as a
member in a union by itself generally sufficient to affect the union's ca-
pacity to act as a bargaining representative See Power Piping Co, 291
NLRB 494 (1988)
296 NLRB No. 148
1320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
potential for conflicting interests , both within the
union and on the job , when supervisors actively
participate in a union that represents the rank-and-
file employees who serve under them . See, e.g.,
NLRB v. North Shore University Hospital, 724 F.2d
269, 272-274 (1983).
In Nassau & Suffolk Contractors' Assn., 118
NLRB 174 (1957), the Board held that an employ-
er's failure to protest the presence of its own super-
visors on the union 's side of the negotiating table
interfered with the administration of the union in
violation of Section 8(a)(2). Although the Board
was not presented with the question of whether
there was a corollary violation of Section
8(b)(1)(A) in that case, it did observe that
"[E]mployees have the right to be represented in col-
lective-bargaining negotiations by individuals who
have a single-minded loyalty to their interests," and
that it is "improper for supervisors , even those
with predominantly union loyalty , to serve as ne-
gotiating representatives of employees." Id. at 187
(emphasis in original).
Considerations similar to those involved in
Nassau & Suffolk are present in this case. The
JATC's administration of the contract 's apprentice-
ship program governs "the selection , qualifications,
education and training of all apprentices ." That in-
cludes the removal of apprentices from the pro-
gram , the assignment and transfer of apprentices
throughout the multiemployer bargaining unit, and
the consideration and adjustment of grievances re-
lating to apprentice-employees . Thus, it is clear
that the decision and actions of the JATC taken
with respect to these matters affect the apprentices'
terms and conditions of employment , and concern
matters that are subject to the collective-bargaining
process.?
In recognition of the significance of the JATC
and its function , and the impact of its decisions and
conduct on the employment rights of apprentices,
the parties , apparently to protect their respective
bargaining interests , provided for an equal number
of union and management representatives on that
committee . However , the Union 's selection of Su-
pervisor Boggess negated the employees ' reasona-
ble expectation that the union representatives
would represent them with single-minded loyalty
to their interests , as observed in Nassau & Suffolk
Contractors Assn. That is because Boggess, by
virtue of his dual status as a supervisor and union
committeeman, likely would be perceived by the
employees as possessing split loyalties in which ex-
isted the potential for his subordinating their inter-
ests to those of his employer and other employers
7 Asbestos Workers Loca l 27 (Master Insulators), 263 NLRB 922-923
(1982)
party to the apprentice program ." Concededly,
wide latitude is ordinarily granted the employees'
exclusive bargaining representative regarding the
discharge of its duties under Section 9(a), but a
limit must be drawn to preclude a union from dele-
gating such a substantial degree of bargaining au-
thority to an individual who remains responsible as
a supervisor over employees it represents that,
either potentially or actually , the employees' enti-
tlement to , and expectation of, single -minded repre-
sentation by their union is impaired.
In light of the foregoing , we find that the Re-
spondent Union 's selection of Boggess as a JATC
representative restrained and coerced employees in
the exercise of their rights guaranteed by Section 7,
in violation of Section 8(b)(1)(A) of the Act.9 We
accordingly adopt the judge's rescission of Bog-
gess' appointment to that position.' °
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth in full below.
A. Respondent ESI, Inc ., Cincinnati , Ohio, its
officers , agents, successors, and assigns, shall
1. Cease and desist from
(a) Permitting its supervisors to serve as union
representatives on the Joint Apprenticeship Train-
ing Committee and Trust Fund.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
8 This is so despite the absence of evidence here that Boggess engaged
in any improper conduct while representing the Union on the JATC
9 ITT Arctic Services, 238 NLRB 116 ( 1978), is overruled to the extent
that it is inconsistent with our decision The premise for the analysis in
I7T Arctic Services, that the union 's appointment of a supervisor to a
union position is keyed to the union 's attempt to increase its influence and
power , is not well founded . Rather, the proper focus is whether it is rea-
sonable to conclude that the divided loyalties inherent in a supervisor's
involvement in internal affairs of the union restrains and coerces employ-
ees
10 Although , as explained above, we have deleted that portion of the
judge 's recommended Order that pertains to the Union's selections of
trustees on the JATF (because it runs afoul of the holding in NLRB v.
Amax Coal Ca , supra), we are aware that the Order requiring Boggess'
removal from the JATF has the consequence of removing him from his
position as trustee on the JATF , since the Trust Fund Agreement in evi-
dence provides that JATF trustees "shall be selected from the members
of the Joint Apprenticeship and Training Committee , and shall continue
to serve as a Trustee only so long as he remains a member of said com-
mittee " This effect , however, is a result of the parties' decision to link
the trustee selections for these two separate entities, and they cannot
properly , by the decision, immunize the JATC appointments from the
strictures of the Act Under our Order the Union is free either to renego-
tiate that linkage so that Boggess could remain on the JATF without
being a member of the JATC or to keep the linkage but limit its future
JATC selections to persons other than statutory supervisors
Member Higgins concurs in this result
ESI, INC.
(a) Take whatever steps necessary to ensure that
Alfred Boggess, as long as he remains a supervisor
for the Respondent , shall not also serve as the
union representative on the Joint Apprenticeship
Training Committee and Trust Fund.
(b) Post at its place of business in Cincinnati,
Ohio, copies of the attached notice marked "Ap-
pendix A." 11 Copies of the notice , on forms pro-
vided by the Regional Director for Region 9, after
being signed by the Respondent 's authorized repre-
sentative , shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced , or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
B. Respondent International Brotherhood of
Electrical Workers, Local 212, AFL-CIO, its
agents, officials , and representatives, shall
1. Cease and desist from
(a) Appointing a supervisor of Respondent Com-
pany to act as the Union 's representative on the
Joint Apprenticeship Training Committee.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Remove Alfred Boggess as its representative
on the parties ' Joint Apprenticeship Training Com-
mittee.
(b) Post at its offices and meeting halls copies of
the attached notice marked "Appendix B."12
Copies of the notice , on forms provided by the Re-
gional Director for Region 9, after being signed by
the Respondent 's authorized representative , shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted . Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
" 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."
12 See fn . 11, supra
1321
APPENDIX A
NOTICE To EMPLOYEES
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT permit any of our supervisors to
serve on the Joint Apprenticeship Training Com-
mittee and Trust Fund as a representative of Inter-
national Brotherhood of Electrical Workers, Local
212, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL take whatever steps are necessary to
ensure that Alfred Boggess, as long as he is our su-
pervisor , shall not also serve the Union as its repre-
sentative on the Joint Apprenticeship Training
Committee and Trust Fund.
ESI, INC.
APPENDIX B
NOTICE To 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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
1322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT designate a supervisor to act as
our representative on the Joint Apprenticeship
Training Committee.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL remove Alfred Boggess as our repre-
sentative on the parties ' Joint Apprenticeship
Training Committee.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS , LOCAL 212,
AFL-CIO
James R. Schwartz, Esq., for the General Counsel.
Thomas F. Phalen, Jr., Esq., of Cincinnati, Ohio, for the
Respondent.
Daniel P. Dooley, Esq., of Cincinnati, Ohio, for the Em-
ployer.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held on March 16, 1988, in
Cincinnati , Ohio, on complaint of the General Counsel
against Respondent, ESI, Inc . (the Company Respond-
ent), and against International Brotherhood of Electrical
Workers, Local 212, AFL-CIO (the Union Respondent).
The complaint issued on December 23, 1987, based on
multiple but exactly similar charges filed by three indi-
viduals on various dates from October 28 to December
12, 1987. One simple, plain issue is presented . Did the
Respondent Union violate Section 8(b)(1)(A) of the Act
by selecting a management agent to represent it, the
Union, on a Joint Apprenticeship Training and Trust
Committee , and did the Respondent Company violate
Section 8(a)(2) of the Act by permitting that action on
the part of the Union? Briefs were filed after the close of
the hearing by the General Counsel and the Union.
On the entire record and from my observation of the
witnesses I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
ESI, Inc . is engaged as a contractor in the electrical
building and construction industry in Cincinnati, Ohio.
During the 12-month period ending March 31, 1987, in
the course of its operations it purchased and received at
its Cincinnati facility products , goods and materials
valued in excess of $50,000 directly from points outside
the State of Ohio. During that same period the Respond-
ent performed services valued in excess of $50,000 for
firms located outside the State of Ohio . I find that the
Respondent Employer is an employer within the mean-
ing of the Act.
H. THE LABOR ORGANIZATION INVOLVED
I find that International Brotherhood of Electrical
Workers, Local 212, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
There is no dispute as to the facts in this case. In the
summer of 1987, Alfred Boggess was a general foreman
among the Company 's approximately 140 employees. His
classification is included in the collective-bargaining
agreement between the Company and the Union. Gener-
al foreman is the highest pay job covered by that con-
tract . The next below general foreman is foreman, the
second highest pay category . There is no evidence here
as to what authority on behalf of the company the "fore-
man" exercises . But the parties agreed , by stipulation,
that Boggess, the general foreman , was at all times a su-
pervisor within the meaning of the Act, clearly, there-
fore, an agent of the Company.
On about September 1, 1987, Alfred Niederhelman, the
president of the Respondent Local 212, appointed Bog-
gess as a union representative on the Joint Apprentice-
ship Training Committee (the Committee) and Trust
Fund. The designation was approved by the Union's
business manager. The Company agreed with that ap-
pointment.
The contract then in effect was a multiemployer agree-
ment . There were three employer members on that Com-
mittee and three union representatives . Opposite Boggess
on the Committee also sat Russ Miller, an agent of the
Respondent , who was classified field superintendent, and
was also Boggess' immediate superior . Because the func-
tioning of the apprenticeship committee could affect the
employment status of apprentices hired by the various
employers covered by the union contract, it was improp-
er, according to the complaint , for the Union to have
chosen Boggess to act on that committee , and, therefore,
a violation of Section 8(b)(1)(A) of the Act, and equally
improper for the Company to have permitted that desig-
nation, and therefore a violation of Section 8(a)(2) of the
Act.
The Board has held that designation , by a union, of an
admitted statutory supervisor to a joint apprenticeship
committee is illegal under this statute . In J. A. Jones
Construction Co., 284 NLRB 1335 (1987), the Board
found that when a general foreman served as a union
representative on the parties' joint apprenticeship com-
mittee and a trustee of the trust fund, the employer com-
mitted an unfair labor practice . The essential defense
here is an argument that Boggess is a low managerial hi-
erarchy man and that the complaint must therefore be
dismissed for that reason, citing , Plumbers Local 636 v.
NLRB, 287 F.2d 354 (D.C. Cir . 1961). I think the ques-
tion boils down to the plain issue of how low, or how
high , did Boggess function as a supervisor for the Com-
pany . Restated : What was the potential of conflict that
will come into play in his judgment when functioning as
a member of that apprenticeship committee as the union
representative?
On this, the sole question in the case, Boggess was the
main witness . Of course nothing he said was contradict-
ESI, INC. 1323
ed, and there is no doubt he spoke truthfully throughout
his testimony . Based on his statements , set out here ver-
batim , I find he exercised and still exercises sufficient
managerial authority to support the complaint allegations
against both the Respondents.
From May to June 1987, Boggess worked on a compa-
ny job called the Barrett jobsite . About six employees
worked there. "I was a general foreman .. . I was run-
ning the job . . . I worked with the tools . I did paper-
work."
Q. What percentage of your time were you
working with your tools up there, at Barrett?
A. It varied. It depended on how the job went.
I'd say about 10 to 15 percent of the time.
From the Barrett job Boggess reported to Miller, the
project manager, at his office 5 miles away. Miller only
appeared at the Barrett site "a couple of hours a week,"
and "he moved to different job sites." Again from Bog-
gess' testimony:
Q. Did you have anything to do with the assign-
ing of employees to their work at the Barrett job
site?
A. Yes sir.
Q. What was your role in assigning employees to
work?
A. As a general foreman. . . . Just to tell them
what had to be done.
Q. You indicated that you had something to do
with ordering materials at the Barrett job site too?
A. Yes, sir.
Q. How would you go about ordering materials?
A. I would call up the purchasing agent, and I
would tell him what materials I needed.
Q. What would happen then? Would it just be
purchased or would you have to further conversa-
tions, or send them paper work?
A. It would just be purchased , and part of the
paper work would be-after I called it up , I would
write it down, and I would put a date on it, so I
would have some references to track the materials,
if I didn 't get it.
Q. Is it your understanding that the purchasing
agent would rely on what you said needed to be or-
dered, in ordering it?
A. Yes sir.
Q. Before the end of each day, what I'd do is, I'd
fiqure out what had to be done the following day,
and was going to do it, and about how long it
would take, and if I had the material, and make sure
I had everything there.
Q. How about allowing employees to leave
early-somebody had an appointment for some-
thing. Did that ever occur at the Barrett site?
A. Yes sir.
Q. Who would authorize the employees to leave,
or tell them they couldn 't leave?
A. I would.
After being moved to the main office, Boggess
supervised work of several job sites.
Q. Doing this period you've worked in the office,
do you do any working with tools, at all?
A. No, sir.
Q. What was the nature of the work that you did
in the office?
A. Dealing with , you know , another job, the
MAB, which is right next to the Barrett, and I was
doing basically the same thing that I was doing out
in the field... .
Q. Do you deal with any other-any other em-
ployees or any other job site, other than MAB, and
the Barrett?
A. I've dealt with other jobs , yes sir . I visited
jobs for Russ, and I've walked through jobs.
Boggess said he "walked through" the various other
job sites he has been visiting since going to the office.
The Company then had about 100 employees . Boggess
explained what he meant by "walk through" a job.
Q. Did you have anything to do with these other
90 or so employees?
A. Not directly-no more than just going
through and you know , walking through the job,
and talking to them . If somebody had a complaint,
they would come up and say, "hey, I don't like this
job." Or, "this foreman is on my case ." Or some-
thing like that, but other than that, just basically
just an establishing rapport with them , no I didn't
have anything to do with them, at that time.
Q. What did you have to do with the complaints?
A. I'd basically just sat on them , depending on
what the complaint was.
Q. Do you talk to a foreman , and try to get it
resolved?
A. If there was a complaint of that nature, yes
sir.
Other than-on a couple of jobs, I've attended
job meetings, so the foreman doesn 't have to attend
job meetings , and most jobs would have a weekly
progress meeting, and what I could do, is go in and
sit in on the meetings , and just, you know, represent
the ESI in those meetings , basically, is what I did.
Q. Was there a steward at the meetings , or some
union representative?
A. No sir.
Q. And what would you discuss at the meetings
with them?
A. Just about how far along the job was, what
had to be done, and you know , if there was any
problems.
Q. Are these all company people . or are there
union representatives on this committee?
A. These are all company people.
Q. What did you discuss , in general , at that meet-
ing-or the meetings that you had been at , on this
committee?
Q. Basically , all they do is go down, and they do
look at the difference jobs, and how many people
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are on the different jobs, and if there is going to be
any requirement for extra manpower or deletion of
manpower.
Q. Do you have recommendations that you make
at these meetings, or are you expected to, to your
knowledge?
A. As of a couple of weeks ago, I've started a
program of assisting Russ in handling the personnel.
Q. And I believe you stated that these meetings
that are being held, that you attend , what was the
purpose of your attendance?
A. Because recently, I've been having a little
more to do with the personnel , as far as, moving
people around from job to job.
The written document which established the Joint Ap-
prenticeship Committee and Trust Fund, received in evi-
dence, includes the following:
4.4(a) In order to provide the diversity of train-
ing or work opportunities , the Committee shall
have full authority to transfer apprentices from one
job or employer to another. All transfers and as-
signments for work shall be issued by the Commit-
tee and the referral office be so notified.
When Abbott was moved to the main office , the em-
ployer gave him a company car for his personal use,
which he also uses to go home with . At about the same
time, on July 27, 1987, the Company issued a written
notice to employees . It reads as follows:
Subject : Assistant field superintendent
Starting this date, Al Boggess will be employed
as an assistant to Russ Miller . This appointment is
being made because of the anticipated increase in
manpower . Al will supervise certain projects select-
ed by the office. With your help and coordination
to Russ, we feel the company will continue its cur-
rent success and growth. Signed Robert L. Harrison
president.
There is no question in my mind that the elevation of
Boggess from the status of supervisor over only six men
to such a higher managerial post put him in a position
where the potential of a conflict of interest is inevitable.
In his functioning as a member of the apprenticeship pro-
gram he has to this day been impartial between the Com-
pany and the Union. There is no question about that. But
that the interests of the Company, vis-a-vis those the
Union could come into conflict is the various duties he
performs as a higher supervisor, cannot be doubted. This
is reason enough , under Board law , for a holding that
the Union cannot use him as its representative and that
the Company may not permit him to act in that capacity.
Cf. Plumbers Local 636, supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activity of the Respondents set forth in section
III, above , occurring in connection with the operations
of the Respondent Employer described in section I, has a
close, intimate , and substantial relationship to trade, traf-
fic, and commerce among the several States, and tends to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
THE REMEDY
To remedy the unfair labor practices here found Bog-
gess must be removed from the Joint Apprenticeship
Training Committee and Trust Fund as a representative
of the Union. And, of course, the Union must not again
appoint a management agent as its representative on that
Committee, and the Company must not again permit any
of its management agents to serve on that Committee as
union representatives.
CONCLUSIONS OF LAW
1. By knowingly permitting its general foreman to
serve on the Joint Apprenticeship Training Committee
and Trust Fund as a representative of the Respondent
Union, the Respondent Employer has violated and is vio-
lating Section 8(a)(2) of the Act.
2. By appointing a general foreman of the Company to
act as its representative on the Joint Apprenticeship
Training Committee and Trust Fund the Respondent
Union has violated and is violating Section 8 (b)(1)(A) of
the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]