Gerald Nell, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 2004

341 N.L.R.B. 537 (N.L.R.B. 2004)

ELECTRICAL WORKERS LOCAL 494 537
International Brotherhood of Electrical Workers,
Local 494; International Brotherhood of Electri-
cal Workers, Sixth District and Joseph G. Po-
dewils and Gerald Nell, Inc. Cases 30–CB–4127
and 30–CB–4128
March 31, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On October 31, 2000, the National Labor Relations
Board issued a decision and order in this proceeding.1
Thereafter, on December 28, 2001, the United States
Court of Appeals for the District of Columbia Circuit
remanded the case to the Board for further proceedings
not inconsistent with its opinion.2 On remand, the Re-
spondent and the Charging Parties filed briefs.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
Having accepted the remand, the Board has considered
the decision of the court of appeals and the briefs on re-
mand. For the reasons below, the Board now finds that
the Respondent violated Section 8(b)(1)(B), as alleged.
Section 8(b)(1)(B) provides that it shall be an unfair
labor practice for a labor organization to restrain or co-
erce an employer in the selection of its representatives
for the purposes of collective bargaining or the adjust-
ment of grievances. In our initial decision in this pro-
ceeding, the Board found that the Respondent IBEW
Local 494 did not violate Section 8(b)(1)(B) and dis-
missed the complaint. Contrary to the finding of the ad-
ministrative law judge, the Board found that the Respon-
dent was not seeking to enter into a collective-bargaining
relationship with the Employer, Charging Party Gerald
Nell, Inc. Accordingly, the Board concluded that the
Respondent did not violate Section 8(b)(1)(B).3
On review, the court of appeals squarely rejected the
Board’s finding that the Respondent was not seeking a
collective-bargaining relationship with the Employer.
The finding of the court of appeals, of course, is the law
of the case. Because the Respondent was seeking a col-
lective-bargaining relationship with the Employer and
because all the remaining elements of an 8(b)(1)(B) vio-
lation have already been adjudicated and established in

1 332 NLRB 1223.
2 274 F.3d 536 (D.C. Cir. 2001).
3 As the Board noted in the initial decision, a union must, at a mini-
mum, either have a collective-bargaining relationship with an em-
ployer, or at least be seeking to have such a relationship, in order to run
afoul of Sec. 8(b)((1)(B). NLRB v. Electrical Workers Local 340
(Royal Electric), 481 U.S. 573, 590 (1987).
the initial proceeding, it follows that the Respondent vio-
lated Section 8(b)(1)(B), and we so find.4
Having found that the Respondent violated Section
8(b)(1)(B), we shall issue an appropriate remedial order.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent shall rescind and remove from its re-
cords all disciplinary action brought against Joseph G.
Podewils, including refunding to him any fines that may
have been paid to the Respondent, with interest to be
computed in the manner set forth in New Horizons for
the Retarded, 283 NLRB 1173 (1987), and shall notify
Podewils that this has been done. We shall also order
that the Respondent reimburse Podewils for any costs
that Podewils may have incurred in defending himself at
the Respondent’s disciplinary hearing. See Elevator
Constructors Local 10 (Thyssen Elevator Co.), 338
NLRB 701 (2002).5 We shall also order that the Re-
spondent request that the International Union rescind its
approval of the Respondent’s discipline of Podewils and
remove all references to such discipline from its records.
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Electrical
4 An 8(b)(1)(B) violation is established when a labor organization
imposes discipline on a supervisor/member that 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
employer. Florida Power & Light Co. v. Electrical Workers Local 641,
417 U.S. 790, 804–805 (1974). In the initial proceeding, the Board
adopted the judge’s findings that Charging Party Podewils was an 8
(b)(1)(B) representative, as he engaged in 8 (b)(1)(B) duties as a griev-
ance adjuster or collective bargainer. Further, the Board left undis-
turbed the judge’s finding that the fine imposed on Podewils was likely
to have adversely affected his performance of 8(b)(1)(B) duties. On
remand, the Respondent contests these findings only to the extent of
contending (in addition to seeking to have the Board revisit the issue of
the Respondent’s organizational intent) that Sec. 8(b)(1)(B) only comes
into play when a union has a collective-bargaining relationship with the
employer, which is absent here. See Royal Electric, supra, 481 U.S. at
596 (Scalia, J., concurring) (when the union’s violation of Sec.
8(b)(1)(B) is indirect, that is, through the discipline of its members,
would limit applicabililty of section to situations where there is an
actual collective-bargaining relationship between the parties). This
contention, however, does not reflect the state of current Board law, as
noted above. Member Liebman believes that the Respondent’s conten-
tions regarding the application of Sec. 8(b)(1)(B) to unorganized set-
tings are worthy of consideration. In her view, however, the law of this
case, on remand, calls for the application of current Board precedent.
5 Consistent with Thyssen Elevator Co., supra, we shall not order re-
imbursement of any expenses incurred during the Board proceeding.
341 NLRB No. 71
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538
Workers, Local 494, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Restraining and coercing Gerald Nell, Inc., an em-
ployer, in the selection of its representatives for purposes
of collective bargaining or the adjustment of grievances
by preferring and processing charges against Joseph G.
Podewils, by holding a trial and finding Podewils guilty
of such charges, and by levying a fine against him.
(b) In any like or related manner restraining or coerc-
ing Gerald Nell, Inc., in the selection of its representa-
tives for the purposes of collective bargaining or adjust-
ment of grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of this Order, rescind the charges
brought and the fine levied against Joseph G. Podewils,
remove all references to the charges and fine from its
files, and within 3 days thereafter notify him and the
Employer in writing that this has been done and that the
charges and fine will not be used against him in any way.
(b) If any part of the fine levied against Joseph G. Po-
dewils has been paid, within 14 days refund to him the
entire amount paid and reimburse him for any expenses
he has incurred in defending against these charges, with
interest, as set forth in the remedy section of this sup-
plemental decision.
(c) Within 14 days of this Order, request that Interna-
tional Brotherhood of Electrical Workers rescind its ap-
proval of the discipline imposed on Joseph G. Podewils
and remove all references to such discipline from its re-
cords.
(d) Within 14 days after service by the Region, post at
its union office copies of the attached notice marked
“Appendix.”6 Copies of the notice, on forms signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Sign and return to the Regional Director sufficient
copies of the notice for posting by Gerald Nell, Inc., if
willing, at all places where notices to employees are cus-
tomarily posted.

6 If this Order is enforced by a judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT restrain and coerce Gerald Nell, Inc., an
employer, in the selection of its representatives for pur-
poses of collective bargaining or the adjustment of griev-
ances by preferring and processing charges against Jo-
seph G. Podewils, by holding a trial and finding Po-
dewils guilty of such charges, and by levying a fine
against him.
WE WILL NOT in any like or related manner restrain or
coerce Gerald Nell, Inc. in the selection of its representa-
tives for the purposes of collective bargaining or adjust-
ment of grievances.
WE WILL, within 14 days of the Board’s Order, rescind
the charges brought and the fine levied against Joseph G.
Podewils, remove all references to the charges and fine
from our files, and within 3 days thereafter notify him
and the Employer in writing that this has been done and
the charges and fine will not be used against him in any
way.
WE WILL, within 14 days of the Board’s Order, refund
to Joseph G. Podewils any of the fine levied against him
that has been paid and WE WILL reimburse him for any
expenses he has incurred in defending against the
charges, with interest.

ELECTRICAL WORKERS LOCAL 494 539
WE WILL, within 14 days of the Board’s Order, request
that the International Brotherhood of Electrical Workers
rescind its approval of the discipline imposed on Joseph
G. Podewils and remove all references to such discipline
from its records.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 494