Intl. Union; Automobile Wkrs.

National Labor Relations Board - Board Decisions

Jan 28, 1974

208 N.L.R.B. 736 (N.L.R.B. 1974)

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union, United Automobile , Aerospace
and Agricultural Implement Workers of America
(Pitt Processing Co.) and Gary Cooper; Case
6-CB-2583
January 28, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September 11, 1973, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed exceptions, a supporting brief, and
an answering brief to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
below.
The complaint alleged that Gary Cooper, a former
supervisor, on the insistence of Respondent was
placed at the bottom of the seniority list, when he
returned to rank-and-file status, because he had
failed to join a strike while serving as a supervisor,
and as a result was laid off on December 29. 1972.
The complaint further alleges that by such conduct
Respondent violated Section 8(b)(l)(A), (1)(B), and
(2) of the Act.
The Administrative Law Judge found that the
Company had discharged Cooper on the Respon-
dent's demand because he had crossed the picket line
during a strike. However, he concluded that Respon-
dent had thereby violated Section 8(b)(1)(B). but not
8(b)(1)(A) or (2), because at the time of his discharge
Cooper was a supervisor. We agree with the
Administrative Law Judge's finding as to the
motivation of Respondent in demanding that Cooper
go to the bottom of the seniority list. We do not agree
that at the time of his discharge Cooper was a
supervisor. Consequently, we base our finding of
violations of the Act on the following rationale.
Cooper was hired as a laborer in 1967, was
promoted to crew leader in the summer of 1972, and
then to afternoon shift foreman during the first week
of September 1972, in charge of the zinc ammonium
i Coast Delivery Service, Inc, 172 NLRB 2268. 2273. Sealte, i Southern
Dairies Division, National Dairy Product., Corporation, 121 NLRB 1277,
chloride (ZAC) and stannate departments. Cooper
was the only supervisor present on that shift. While
he was supervisor, he performed no regular pro-
duction work. On December 18, 1972, the Company
laid off all the employees in the two departments
except Cooper. About December 21, the plant
superintendent told Cooper that he would be laid off
within 2 weeks because there was no need for a
supervisor. Although he retained his foreman title
and salary, Cooper's duties thereafter consisted of
closing down the ZAC department and assisting a
maintenance man in building a chlorinator, a new
piece of equipment.
It is thus clear that by December 29 Cooper had
ceased to be a supervisor, regardless of his title and
salary.' By December 29, Cooper no longer had any
subordinates and was performing nonsupervisory
unit work. It was precisely because of the fact that
Cooper was performing unit work that Respondent
demanded, that he be displaced by another employee.
This change from supervisory to nonsupervisory
duties was not temporary. The employees in the ZAC
and stannate departments had been permanently laid
off. As the plant superintendent had told Cooper,
there was no longer going to be any need for a
supervisor in the two departments.
Previously, when Cooper was a supervisor, he had
crossed the Union's picket line and worked during
the strike in September 1972. After the strike,
Respondent was certified as bargaining representa-
tive and commenced negotiations with the Company
for a collective-bargaining agreement. However, it
was not until April 1, 1973, months after Cooper's
discharge, that a collective-bargaining contract be-
tween the parties was signed. During the interim
period, there was no contract provision in effect
governing seniority. Although Cooper had been in
the Company's employ longer than other employees,
Respondent insisted, in late December, as found by
the Administrative Law Judge, that Cooper had no
seniority in the unit and that, because he was
performing unit work, he should be displaced by an
employee with greater senionty. Bowing to the
Respondent's threat to strike unless Cooper was
replaced, the Company laid him off on December 29
and has not recalled him. As found by the Adminis-
trative Law Judge, Respondent was motivated in
denying Cooper seniority status and in securing
Cooper's displacement by the fact that he had
worked during the Union's September strike. This
was an impermissible discriminatory reason.
As we have found that at the time of his layoff
Cooper was not a supervisor, and as he was laid off
as a result of the Respondent's demand that he be
1279, Gellman Manufacturing Company. 87 NLRB 292.294
208 NLRB No. 107
INTL. UNION; AUTOMOBILE WKRS. 737
placed at the bottom of the seniority list because of
his nonparticipation in a strike--a discriminatory
reason, we conclude that Respondent thereby caused,
the Company to discriminate against Cooper in
violation of Section 8(a)(3), thus violating Section
8(b)(2) and (1)(A) of the Act.2
Section 8(b)(1)(B) provides that it is an unfair labor
practice for a labor organization or its agents to
restrain or coerce "an employer in the selection of his
representatives for the purposes of collective bargain-
ing or the adjustment of grievances." The Board has
held that penalizing supervisors for crossing a picket
line during a strike and performing the work of rank-
and-file employees is a violation of Section
8(b)(1)(B) 3 In the Illinois Bell and Wisconsin Electric
cases, the penalty consisted of fining the supervisors.
Here, it consisted of reducing Cooper's seniority
when he returned to rank-and-file status and there-
after demanding his discharge. It is not material that
at the time the penalty was imposed the supervisor
no longer occupied that status. In either case, if the
penalty were allowed to stand, there would be
interference with the performance of the duties
which an employer has the right to expect from
persons while they are acting in a supervisory
capacity. Knowledge that a supervisor could be
penalized in this fashion would clearly interfere with
the employer's control over his representative.
Accordingly, we find that, by reducing Cooper's
seniority standing and thereafter demanding ' his
discharge because he had crossed a picket line and
worked during a strike while a supervisor, Respon-
dent violated Section 8(b)(1)(B) of the Act.
TI->;E REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order Respon-
dent to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent caused the Compa-
ny discriminatorily to reduce the seniority of Gary
Cooper thus. causing his discharge on December 29,
1972, we shall order Respondent to notify Pitt
Processing Co. that it withdraws. its request that
Cooper be placed at the bottom of the seniority list
for unit employees and that it tag noobjection to the
reinstatement of Cooper. We shalt also order
Respondent to make Cooper whole for any loss of
pay suffered as the result of the discrimination
2 Local 282, International Brotherhood of Tearnttters Chanffenrs, Ware-
housemen and .Helpers of America (Lizza and Sons, Inc.A 165 NLRB 997,
enfd . 412 F.2d 334 (C.A. 2, 1969), cert. denied 396 U .S. 10388(1910).
3 International Brotherhood of Electrical Workers, AFLrCIO, and Local
134 (Illinois Bell relephone Company), 192 NLRB 85, reversed and
remanded 93 LRRM 2582, 71 ; LC 1 13,782 (C.A.D.C, 1973); Local 2150
against him by payment to him of a sum of money
equal to the amount he normally would have earned
as wages if he had not been'discriminatorily laid off.4
Backpay, if any, shall be computed on a quarterly
basis in the manner described in F. W. Woolworth
Company, 90 NLRB 289. and with interest thereon at
6 percent per annum computed in the manner set
forth in Isis PlumbiAg & Heating Co., 138 NLRB 716.
AMENDED CONCLUSION OF LAW
Insert the following conclusion of law as paragraph
5, and renumber the present paragraph 5 of the
Administrative Law Judge's Conclusions of Law as
paragraph 6.
"5. By threatening to engage in a work stoppage
unless the Company discharged or laid off Gary
Cooper, the Respondent, caused the Company to
discriminate against Cooper in violation of Section
8(a)(3), thereby violating Section 8(b)(2) and (1)(A)
of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
Pittsburgh, Pennsylvania, its officers, agents; and
representatives, shall:
1. Cease and desist from:
(a) Restraining and coercing Pitt Processing Co. in
the selection and retention of its representatives for
the purposes of collective bargaining or the adjust-
ment of grievances.
(b) Causing or attempting to cause the Company to
discriminate against Gary Cooper in violation of
Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in
Section 8(a)(3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Withdraw its request that Gary Cooper be
placed at the bottom of the seniority list for rank-
and-file unit employees. .
International` Brotherhood of Electrical Workers, AFL-CIO (Wisconsin
Electric Power Conpany), 192 NLRB 77, enfd. 486 F.2d 602 (C.A. 7, 1973).
4 It is uncertain how long Cooper would have continued waking if
Respondent had not insisted on his displacement . This period can be
determined in compliance proceedings.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify Pitt Processing Co. that it has no
objection to the reemployment of Gary Cooper
either as a supervisor or as an employee performing
bargaining unit work.
(c) Make whole Gary Cooper for any loss of pay
suffered as a result of the discrimination against him
in the manner set forth in the section of this Decision
and Order entitled "The Remedy"
(d) Post at its business office and meeting halls
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by Respondent
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members
are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(e) Deliver to the Regional Director for Region 6
signed copies of said notice for posting by Pitt
Processing Co., provided the said Company is
willing, at its plant involved herein.
(f) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
S In the event that 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 National Labor, Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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 having found
after a trial that we violated Federal law, we hereby
notify our members and all employees employed by
Pitt Processing Company that:
WE WILL NOT cause or attempt to cause Pitt
Processing Co. to discriminate against Gary
Cooper in violation of Section 8(aX3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees of Pitt Processing
Co. in the exercise of their rights to self-organiza-
tion, to form, join, or assist unions, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purposes of collective bargaining or other mutual
aid or protection, or to refrain from such
activities, except to the extent that such rights
may be affected by an agreement requiring union
membership as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
WE WILL notify the above-named Company
that we have no objection to the reemployment of
Gary Cooper either as a supervisor or as an
employee doing bargaining unit work.
WE WILL make whole Gary Cooper for any loss
of.earnings he may have suffered as a result of
our unlawful conduct which caused Pitt Process-
ing Co. to discharge or lay off Gary Cooper.
INTERNATIONAL UNION,
UNITED AUTOMOBILE,
AEROSPACE AND
AGRICULTURAL
IMPLEMENT WORKERS OF
AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
DECISION
STATEMENT OF THE CASE
MORTON D.. FRIEDMAN , Administrative Law Judge:
Upon a charge filed on January 10, 1973, and an amended
charge filed March 14, 1973, by Gary Cooper, an
individual , herein called Cooper, the Regional Director for
Region 6 of the National Labor Relations Board , herein
called the Board , issued a complaint on June 29, 1973, on
behalf of the General, Counsel of the Board against
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America , herein called
the Union or the Respondent , alleging violations of Section
8(b)(lXA), (1)(B), and (2) of the National Labor Relations
Act,. as amended (29 U.S.C. Sec . 151, et seq. ), herein called
the Act. In its duly filed answer, the Union, while
admitting certain allegations of. the complaint , denied the
commission of any unfair labor practices.
Pursuant to notice , a hearing in this case was held before
me at Pittsburgh , Pennsylvania , on July 25, 1973. All
parties were represented and were afforded full opportuni-
ty to be heard, to introduce relevant evidence , to present
oral argument, and to file briefs. Oral argument was
INTL. UNION ; AUTOMOBILE WKRS. 739
waived. Briefs were filed by counsel for the General
Counsel and the Union. Upon consideration of the entire
record herein,' and upon my observation of each witness
appearing before the, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Pitt Processing Co., herein called the Employer or the
Company, a Pennsylvania corporation with its principal
offices located in Pittsburgh , Pennsylvania, where it is
engaged in the manufacture and nonretail sale of chemical
products, during the 12-month period immediately preced-
ing the issuance of the complaint herein, a representative
period, purchased directly from outside the Common-
wealth of Pennsylvania, goods and materials of a value in
excess of $50,000 for use at its plant located in McDonald,
Pennsylvania, the facility of the Company which is the
subject of this proceeding . During this same period, the
Company shipped goods of a value in excess of $50,000
from its McDonald, Pennsylvania plant to points directly
outside the Commonwealth of Pennsylvania.
It is conceded, and I find, that the -Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find , that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
The complaint alleges , in substance, that the Union
caused the Company to discriminatorily lay off Gary
Cooper , a former supervisor and representative of the
Employer, for the purpose of the adjustment of grievances,
by placing Cooper at the bottom of the seniority list when
Cooper returned to the bargaining unit as a rank-and-file
employee and that the Union caused this layoff by reason
of the fact that Cooper , while a supervisor, failed to join a
strike of the employees called by the Union.
The Respondent's answer denies the allegations of the
complaint pertaining to the unfair labor practices and
Respondent asserts as its defense that Cooper was laid off
as a supervisor and not as a rank-and-file employee and
that the reason for the Union 's demand for his layoff was
that Cooper at the time of his layoff was performing work
belonging to members of the unit who at that time were in
layoff status . It further contends that the Employer had
agreed not to permit supervisory personnel to perform the
work of the unit which the Union represented.
Thus the issues are:
1 After the close of the hearing counsel for the General Counsel filed a
written motion to make certain corrections in the transcript of the record
herein. There being no opposition to said motion , and [ having concluded
that the motion has merit, it is hereby ordered that the record herein be
corrected as to the matters set forth in the said motion.
s From credited , uneontroverted testimony of Cooper and A . B. Horn,
also known as "Bud," plant manager of the facility involved . The record
1. Was Cooper a supervisor or a rank -and-file employ-
ee at the time of his layoff?
2. Did the Union cause Cooper's layoff because the
latter crossed the picket line and failed to join the strike
called by the Union?
3. Did the Union by demanding Cooper's layoff for the
aforesaid reason thereby restrain and coerce the Company
in the selection of iLs representative for the purpose of
collective bargaining and the adjustment of grievances in
violation of Section 8(b)(IXB) of the Act?
4. Did the Union cause the layoff of Cooper by forcing
him to the bottom of the seniority list because while the
latter was a supervisor he crossed the picket line and did
this constitute a discriminatory discharge - within the
meaning of Section 8(aX3) of the Act and did the
Respondent thereby violate Sections 8(bXI)(A) and (2) of
the Act?
B. The Events
Cooper was hired as a laborer by the Respondent, a
manufacturer of chemicals used in the steel processing
industry, on March 7, 1967. Cooper progressed to more
responsible jobs and ultimately, at the beginning of
September 1972, he was made foreman of the zinc
ammonium chloride department , herein referred to as the
ZAC department, and the stannate department on the
afternoon shift. On that shift, he was the only supervisor
present. While he was such supervisor, Cooper performed
no regular production work. His duties were to oversee the
production in the departments and also to supervise
employees who were performing equipment repairs. How-
ever, there were times when he had to lend a hand on a
physical basis when necessary to perform emergency
repairs.2
In August 1972, the Union began an organizational drive
among the Respondent's production and maintenance
employees. At approximately the middle of September,
after Cooper had been appointed a foreman , the Union
called the employees out on what was, presumably, an
organizational or recognitional strike. Thereafter, the
Union filed a petition for representation and the Board
conducted an election which the Union won . Thereafter
the Union was certified as bargaining representative of a
unit of Respondent's production and maintenance employ-
ees. Shortly thereafter, probably some time in late
September or October 1972, the Union and the Company
began negotiations toward a collective -bargaining agree-
ment . However, during the strike,3 Cooper remained on the
job at the request of the Company. to help bed down the
plant for shutdown . In order to do this, he.had to cross the
picket line established by the Union. It should be noted
that in the election which took place shortly thereafter,
Cooper was told not to vote in the election because he was
does not reveal Cooper's authority as a representative of the Employer for
the purpose of adjustment of grievances . However, as heretofore stated,
Cooper was the only management representative in the named departments
at the times that he acted as foreman of the afternoon shift.
3 The record does not reveal exactly what date the strike began or what
day it ended except that it began sometime about the middle of September.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ineligible. He was told this by George Smith, evidently a
union representative among the employees.
During negotiations the union representatives demanded
that supervisors not be permitted to perform production
and maintenance work of the unit. This was contained in
the original proposal some time in late September or early
October. The final terms of this portion of the bargaining
agreement was reached in November 1972. In fact, all of
the noneconomic provisions of the agreement were reached
before the end of December 1972. The agreement itself,
however, was not entered into until April 1, 1973.4
In any event, while • negotiations were going on, the
employees of the ZAC and stannate department which
Cooper supervised on the afternoon shift , returned to
work, evidently at the end of September or beginning of
October, and worked until December 18, 1972, when they
were laid off. Cooper remained on the job even though the
employees whom he supervised were laid off. However,
although he retained his title of and salary as foreman, his
principal duties after the layoff of the employees whom he
supervised , were working closing down the ZAC depart-
ment on days, not on the afternoon shift , and assisting, a
maintenance. man, Frank Amber, in building a chlorinator,
a new piece of equipment . Although Cooper testified that
the assisting which he did was actually instructing Amber
in the use of fiberglass in construction work and the fitting
of plastic pipe , Plant Manager Horn testified that after the
layoff of the employees in the ZAC department there was
no one remaining to be supervised and, as a result, the
work performed by Cooper from the date of the layoff of
the ZAC employees until the date that Cooper was laid off,
December 29, Cooper performed work which could have
been performed by rank-and-file unit employees.
Horn, however, further conceded that although Cooper's
work was nonsupervisory during the period in question,
Cooper retained his title and his salary was not reduced.
This, according to'Hom, whom I credit, was due to the fact
that the Company had had little experience with unions
and'did not realize the import of the assignment of the
work that Cooper was doing. Moreover, the Company at
that time knew that it only had a few more weeks of work
for Cooper, at the most, after the first of the year 1973,
and, therefore, did not wish to reduce his salary. Neverthe-
less, Horn admitted that he never conveyed to anyone
representing the Union or, for that matter, to any
employees of the plant including Cooper that Cooper had
been returned to rank-and-file status . Thus, I find and
conclude that so far as the Union and Cooper himself were
concerned, they had no knowledge that Cooper was no
longer a supervisor, if, indeed , Cooper was no longer a
supervisor . Indeed , Cooper testified , without contradiction,
that throughout the period of his employment after the
ZAC department layoff he was logging and taking in
information as foreman.
About December 21, Plant Superintendent Colosi told
Cooper that the latter was going to be laid off because
there was going to be a change in the stannate department
4 From the uncontroverted testimony of Union Representative Don F.
Dornetto . Although A. B. Horn testified that he did attend some of the
negotiating sessions , he admitted that his participation was marginal and
that most of the negotiating was done by his brother, Richard Horn, the
and there would no longer be a need for a supervisor. He
further told Cooper that the layoff would be within 2
weeks As a result, on the sameday, Cooper called Richard
Horn, brother of A. B. Horn and head of the firm, who
promised to keep Cooper on until the chlorinator was
finished and on other work until Cooper could get another
job. Cooper, in turn, promised to stay until the chlorinator
was finished and not accept another job. However, even
with this information about Cooper's being laid off, no one
in the Company told Cooper that he was no longer a
supervisor.
Thus matters stood until December 28, 1972. On that
day, Cooper was engaged in a conversation in the locker
room of the plant with union committeemen John Casey
and Roy Downey. Downey and Casey told Cooper in that
conversation that he no longer had any seniority and was
to be laid off. Downey then left and Casey told Cooper
that the latter gambled when he took the foreman's job and
would have to pay for it. Cooper then asked Casey if that
was in the Union's contract and Casey answered "No, but
it's going to be." Casey also said something to the effect
"... you didn't go out and stand on the street with the
boys, so you're going to be laid off."
Later on that day, December 28, Cooper spoke to
company head Richard Horn who told Cooper that the
Company had more work for him, building a dusting tower
to be constructed on the Respondent's plant's premises.
Cooper then asked of Richard Horn if the contract, which
was not yet completely negotiated, contained a provision
that foremen lost their seniority. Horn answered, "No, but
you are going to have trouble with the Union." This was in
the context of Cooper's telling Horn that Amber was due
to be laid off within the week and Cooper offered to stay
on as a maintenance man. It was then that Horn told
Cooper that the latter would have trouble with the Union.
With regard to Cooper's conversation with Casey and
Downey on December 28, the two union representatives
told Cooper that he was last on the seniority list behind
John Hunter, the newest employee.
The following morning, December 29, Cooper asked
Casey if the latter had spoken to Don F. Dornetto, the
union representative, about the contract and seniority.
Casey answered in the negative but stated that he had
asked an employee of another mill (not the Company's)
and the man told him that Cooper would lose his seniority.
Cooper said that might have been true in the other man's
company's contract but not in Pitt's. Thereafter, in the
same conversation, Casey repeated "Well, you didn't stand
out in the street with the boys so you're going to be laid
off."
Later that day, A. B. Horn, also known as Bud Horn,
told Cooper that Downey and Casey were going to decide
what to do about Cooper. At 3 p.m. Cooper went to Horn's
office. Horn told Cooper that the Union, through Casey
and Downey, demanded that Cooper be laid off and that
the Union would have another man out there the next
working day, Tuesday, January 2, 1973, or the Union
head of the firm. Thus. A. B. Horn was unable to testify as to any of the
details of the negotiations or the date upon which any particular provision
was agreed to by the negotiating parties.
INTL. UNION; AUTOMOBILE V1tKRS. 741
would call a strike. Cooper was thereupon laid off and has
not been recalled.5
During the rather troublesome days between the layoff
of the ZAC line and. the ultimate layoff of Cooper on
December 29, Smith and Downey had several conversa-
tions with A. B. (Bud) Horn. Thus, on December 28, Casey
told Horn that Horn would have to lay off Cooper and put
the next most senior man to work to take Cooper's place.
Casey said thin was so "because he [Cooper] was not on the
picket line with the rest of the boys and did not fight for
the Union.... " Casey further stated that by reason
thereof Cooper would "have ,to go to the end of the line."
Horn testified that he presumed this meant that Cooper
had lost his seniority. Horn also had a conversation with
Downey the same day in the same vein. The name of Carl
Manni was brought up as the most senior man to replace
Cooper. Horn answered Downey that he would take it
under advisement. On the same day "they" also told Horn
that Cooper had lost his seniority because he was a
foreman.
Then, on the following day, Friday, December 29, Casey,
in a conversation with Horn, reiterated what he had told
Horn the day before. Horn also had a conversation with
Downey on December 29, telling the latter that Cooper
intended to be in the plant the following Tuesday, January
2, 1973. Downey then told Horn that if Cooper showed up
"We will shut down all operations and this time nothing
will come down the road." Horn replied "That if Cooper
does come he will not be paid." To which Downey
answered "That's okay." In the light of these threats, Horn
later in the day informed Cooper that December 29 would
be his last day' or the Union would go on strike. This is
what Horn believed, based on what Downey had told him.
On January 2, Carl Manni was called in to take Cooper's
place. Manni worked for only I week and left for another
job. However, Horn testified that inasmuch as the
Company had only about 2 week's work for Manni, he
would not have worked much longer in any event. So the
Company, in effect, would have terminated his employ-
ment . Amber, however, the individual whom Cooper was
instructing after layoff of the ZAC department, continued
to work through March 1973, building the chlorinator and
performing maintenance work which Cooper could have
done. The Company laid Amber off at the request of the
Union because the Union maintained that Amber was a
junior man and they wanted the next most senior qualified
man, who had been laid off, to take Amber's place.
However, since the operation was financially marginal, the
Company did not put on another man until some time
later .6
It should be noted, that the agreement which was
ultimately reached and signed on April 1, 1973, did contain
a clause, article IV, section 3, which, in substance, provides
that supervisory personnel shall not perform unit work
except in certain specified instances such as emergencies
and so forth. However, the seniority provisions of the
contract do not provide in any way, nor do they mention,
S All of the foregoing from credited testimony of Cooper . Casey testified
that he merely told Cooper that the latter could not do unit work as a
supervisor, and that was the reason they desired to see him cease such work.
From my observation of Cooper and Casey and by reason of the fact that
Casey admitted that he "might" have told Horn that one of the reasons the
that supervisors returning to rank-and-file employee
positions within the bargaining unit are without seniority
and are to be placed at the bottom of the seniority list.
Thus, it is clear, that no agreement was ever reached on
this latter seniority matter, or, if it was indeed ever
discussed at the negotiation meetings, it was not adopted
by the parties. As noted above, according to the,uncontro-
verted testimony of IDornetto, the Union' s business
representative, all of the noneconomic terms of the
agreement had been reached by December 29, the day that
Cooper was laid off.
It should also be noted, in connection with the seniority
question, Casey and Downey both admitted, in testifying,
that it was the position of the.. Union that if Cooper
returned to the production and maintenance unit he would
have to go to the bottom of the seniority list. This,
according to Casey,, is still the Union's position. Addition-
ally, in connection with the seniority question, Downey
admitted that on the seniority list introduced into evidence
by the Union, his name lead the list, and; that his seniority
dated from his original hiring date although, for a period of
time, some years prior to the events herein, he served as a
foreman. However, no one ever discussed the matter of
Downey's losing his seniority. Furthermore, Downey
admitted that as a committeeman he had attended all of
the bargaining sessions or most of them, and that no
discussions were ever had with the Company during the
contract negotiations regarding' a supervisor's seniority
status upon return to the bargaining unit. Downey also
testified that although he retained his seniority when he
returned to the bargaining unit, this occurred in 1965 or
1966, long before the advent of the Union. Downey further
testified, without contradiction, that the way that the
seniority question came up was that he and Casey told
Cooper that the Union's position was that a salaried
foreman could not do unit work and then Cooper wanted
to know how to go about getting a union card. Downey
then told Cooper if the latter, as a salaried man, returned
to the unit, he would have to go to the bottom of the list.
Thus, it is established, that Casey and Downey, both
committeemen and spokesmen for the Union, told both
Horn and Cooper that if Cooper returned to rank-and-file
status he would have to go to the bottom of the seniority
list. However, as heretofore set forth, no one, including
Cooper, ever said that Cooper was returning to rank-and-
file unit status.
C. Discussion and Concluding Findings
Counsel for the General Counsel contends that the
Union violated Section 8(bXIXA) and (2) of the Act
because the Respondent had caused the Company to place
Cooper at the bottom of the seniority list and as a result
Cooper had been laid off and that the Respondent's
reasons for forcing' the Company to do this were for
considerations which were arbitrary, irrelevant, and invidi-
ous. According to counsel for the General Counsel, the
Union wanted Cooper laid off was that he did not join the picket line, I
credit Coopers version.
6 All of the foregoing from uncontroverted testimony of Horn, whom I
credit.
742 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
invidious and arbitrary reason was that Cooper had
crossed the picket line and that reducing him to a rank-
and-file employee and putting him at the bottom of the list
would , insure the satisfaction of the Union 's desire to see
that Cooper did not work regardless of his status , either as
a supervisor or a rank -and-file employee.
Counsel for the General Counsel further contends that
the Respondent violated Section 8(b)(1)(B) of the Act in
that it forced the Company to discharge Cooper, in his
supervisory capacity, for the reason that Cooper crossed
the picket line and that the Respondent thereby placed the
Company on notice that a supervisor would have to obey
union demands in the future or be faced with some adverse
effect on their employment status . Thus, the Union's
threatened strike if Cooper was not laid off restrained the
Employer in connection with the selection of its supervi-
sors, from whom it has the right to expect undivided
loyalty.
While the theories of the General Counsel , as heretofore
outlined, may have validity, if, indeed, Cooper were both a
supervisor and a rank-and-file employee , nevertheless,
Cooper could not have been employed in both capacities
on the date of his discharge and, therefore, he was laid off
either from his capacity as a supervisor or as a rank-and-
file employee. Thus, counsel for the General Counsel
cannot have it both ways.
While it is true that Cooper was performing work which
would ordinarily have been assigned to members of the
Union as unit work , as noted above , there is nothing in the
record to show that either Cooper or any representative of
the Union was ever told by management that Cooper was
no longer a supervisor . In fact, just the opposite is true and
Cooper was paid and treated as a supervisor by manage-
ment up to and including the day he was laid off. Thus, the
record establishes, that the Union , through Casey and
Downey , could not have caused discrimination against
Cooper within the meaning of Section 8(bX1XA) and (2) of
the Act because, in fact , they did not regard Cooper as a
rank-and-file employee . While I credit Cooper insofar as
his testimony reveals that Casey and Downey undoubtedly
told him that if he returned to the rank-and-file employee
status he would lose his seniority and be placed on the
bottom of the seniority list, and while I also credit A. B.
Horn to the same effect, I cannot regard this information
imparted by Casey and Downey to Horn and Cooper as
anything more than what would happen to Cooper if, as,
and when he returned to the bargaining unit as a rank-and-
file employee. However, so far as any of these individuals
ever knew, with the possible exception of Plant Manager
Horn, Cooper never became a rank-and-file employee. The
mere threat that if he did become a rank-and-file employee
he would be placed on the bottom of the seniority list had
no bearing on the alleged violation because ,.in fact, Section
8(bx1XA) and (2) apply only to unlawful discharges or
coercion with regard to employees and not supervisors.
Accordingly, I shall order dismissed those portions of the
complaint which allege that the Respondent violated
Section 8(bx1)(A) and (2) of the Act.
What is left of the complaint allegations is the charge
that the Respondent violated Section 8(bXIXB) of the Act
by causing the Company to discharge Cooper, a supervisor;
because the latter failed to join the strike that was called by
the Union in September 1972. The Respondent argues that
Cooper, being a supervisor and performing work belonging
to members of the unit, was violating the terms of the
legitimate bargaining agreement between the Company
and the Respondent and that all Casey and Downey and
the Union were attempting to have the Company do was to
live up to the terms of4hat agreement. Respondent further
argues that it did not request Cooper 's layoff or discharge
but merely that Cooper cease doing unit work . Presuma-
bly, therefore , the Union would further argue that if there
was no other work but unit work for Cooper to do , and the
Company therefore laid hire off upon the request of the
Union not to have Cooper perform unit work , the resulting
layoff was merely incidental and not the result of a
demand by the Union to interfere with the choice of the
Company's representative within the meaning of Section
8(b)(IXB) of the Act. I do not find merit in this defense of
the Respondent.
It is true that the ultimate contract entered into between
the Company and the Union on April 1 does contain a
clause which prohibits the Company from assigning unit
work to supervisors except in emergency situations.
Additionally, it is equally true, if the testimony of Union
Representative Dornetto is accepted , that at the time that
Cooper was laid off all of the noneconomic provisions of
the contract, including the one concerning supervisory
employees doing unit work , were agreed upon by the
parties .- Also, Dornetto testified, without contradiction,
that as of December 29 and before that date , the Company
and Union were operating under whatever had been
agreed to up to that point. Moreover , it cannot be denied
that the Union had a legitimate interest in prohibiting
supervisors. from doing unit work . both as a general
proposition and by reason of the agreed-upon clause which
was later included in the April 1 collective -bargaining
agreement . Thus, at first blush, it would seem that the
proffered defense of the Union that it only desired and
requested that Cooper , a supervisor, not do unit work, has
acceptability and that this was the sole basis and
constituted the only reason for the Union 's request,
through committeemen Casey and Downey, to have
Cooper immediately stop performing the work he was
assigned to after the layoff of the ZAC line. However, to
accept the foregoing as a complete defense would necessi-
tate brushing aside other very significant evidence.
As set forth heretofore, on December 28, Casey told Bud
Horn that Horn would have to lay off Cooper and put the
next most senior man to work to take Cooper's place.
Casey said this was "because he [Cooper] was not on the
picket line with the rest of the boys and did not fight for
the Union...: . I have heretofore credited this testimony
of Horn over the denial of Casey because I concluded that
Casey equivocated to a certain extent when asked if he
made this statement . Casey finally admitted that he "might
have" mentioned to Horn the fact that Cooper did not
participate in the September 1972 strike . Additionally,
Cooper credibly testified that both on December 28 and 29
in conversations with Casey and Downey, Casey also
stated to Cooper that he was`to be laid off and said
something to the effect ". . . you didn 't go out and stand
INTL. UNION; AUTOMOBILE WKRS.
on the street with the boys , so you're going to be laid off."
Thus, Casey, on at least three different occasions on
December 28 and 29 , mentioned the fact that Cooper had
to be laid off because he did not support the Union 's strike.
Additionally, on December 29, according to Horn's
credited testimony , Downey told him that if Cooper
showed up for work on the following Tuesday morning,
January 2, 1973, "we will shut down all operations and this
time nothing will come down the road ." It should be noted,
that Downey, who testified after Horn testified, did not
deny this statement . Downey did not modify this statement
when he made it to Horn and did not add that if Cooper
came to work on the following Tuesday and performed unit
work there would be a strike. He stopped short of this, and
merely indicated very strongly to Horn that if Cooper
showed up at all there would be a strike . Moreover, Casey
admitted on cross-examination that he told Bud Horn that
if Cooper came to work on Tuesday, January 2, "it was
going to be a long, cold winter." Again, Casey did not state
that if Cooper came to work and performed unit work it
was,going to be a long, cold winter, but merely that if
Cooper showed up at all the threat of a strike would
become reality.
Finally, I cannot ignore the animosity displayed by
Casey and Downey in informing Cooper that the latter
could not become a rank-and-file employee without
dropping to the bottom of the seniority list. I have
heretofore refused to find that this was a violation because
Cooper, in fact, never changed his status and remained a
supervisor until his layoff . Nevertheless , these statements
do reveal the true purpose of Casey and Downey in forcing
the Company's hand which resulted in Cooper's layoff.
This is so because there never was any agreement between
the Union and the Company to disregard the accumulated
seniority of supervisors and to place supervisors returning
to the bargaining unit at the bottom of the seniority list.
Significantly, although not recited above, when Casey first
told Cooper that if he returned to the bargaining unit he
would go to the bottom of the list, Cooper asked Casey if
this was in the agreement . Casey admitted that it was not,
but "the boys decided on it." I consider this tactic on the
part of the Union to be a demonstration of the Union's
true purpose in urging Cooper's layoff. It had the purpose
of disciplinary action against Cooper for not having joined
the September union picket line.
By reason of all of the foregoing, I find and conclude
that the Union, through its representatives , committeemen
Casey and Downey, forced the Company upon threat of
strike to lay off or discharge Cooper, not because Cooper
was performing unit work, but because Cooper, although a
supervisor, failed to support the Union in its September
1972 strike and crossed the picket line during that period.
The Board has long held that internal union discipline
imposed on a supervisor member for doing unit work
during a strike restrained an employer in the selection of its
collective-bargaining representative.?
As the General Counsel contends, the instant case
presents an even stronger situation for a finding of
violation . The Union here did not merely fine a member, it
7 International Brotherhood of Electrical Workers, AFL-CIO, and Local
134 (Illinois Bell Telephone Company), 192 NLRB 85.
743
caused the termination of employment of a nonmember
because he refused to join the strike and it did so for the
nonmember's action taken while he was a supervisor. Such
pressure cannot help but influence the supervisor's per-
formance of his duty to his Employer. Nor is this merely an
internal union matter since the pressure as demonstrated
by the activity of Casey and Downey was directed at the
Company as well as a& Cooper. Thus, the Union's action
did, in fact, have the effect of restraining and coercing Pitt
Processing Company, an employer, in the selection, of its
representative for the purpose of collective bargaining or
the adjustment of grievances , and such action is violative
of Section 8(b)(IXB) of the Act.
The record sheds little light on Cooper's duties and
authority as a foreman and there is no direct testimony
that Cooper had any responsibility for representing the
Company in collective bargaining or the adjustment of
grievances . However, the record does show, through the
uncontested testimony of Cooper and Horn, that as the
foreman of the ZAC department and the stannate
department on the afternoon shift, Cooper was the only
supervisor or representative of management present in
those departments during that time . Nor does the Respon-
dent deny that Cooper was a supervisor . In fact, the
Respondent urges that at all times Cooper was such
supervisor. Because Cooper was the only supervisor
present in the two departments on the afternoon shift,
there was no one else to whom the employees could bring
their grievances. Thus , inherent in the range of supervisory
responsibilities such as Cooper would have had to have
was the authority to adjust complaints and grievances that
employees in those departments on that shift might have
had regarding matters pertaining to the work and job
conditions.8 Accordingly, I find and conclude that Cooper
was the Company's representative for the purposes of
adjustment of grievances on the afternoon shift in those
departments. His layoff at the behest of the Union,
therefore, interfered, as noted above, with the Company's
choice of representative , clearly a violation of Section
8(b)(IXB) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Company's
operations described in section 1, above , have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it is recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent restrained and
coerced the Company to discharge Gary- Cooper as a
" See Local Union No. 101, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (Fruehauf-Fischbach Automation), 191 NLRB 577.
744 DECISIONS OF NATIONAL
foreman , I shall recommend that the Respondent , through
its officials, notify the Company that it has no objection to
the Company hiring Cooper in the capacity formerly held
by him. I shall further recommend that the Respondent
make Cooper whole for any loss of earnings he may have
suffered as a result of the unlawful conduct found herein.
The backpay, if any, shall be computed on a quarterly
basis in the manner described in F. W. Woolworth
Company, 90 NLRB 289, and with interest thereon at 6
percent per -annum computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.9
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
2. Pitt Processing Company is an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
9 Although the record herein contains some indication as to the length of
time that the individual who replaced Cooper remained in the employ of the
Respondent . and the record also indicates that the period Cooper would
have worked had the Respondent not taken the unlawful action against him
would have been of short duration , I nevertheless make no finding with
LABOR RELATIONS BOARD
or in industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. The position of foreman of the ZAC department and
stannate department of the Company is and was a
supervisory position within the meaning of Section 2(11) of
the Act and Gary Cooper, the occupant of said position,
was a representative of the Company for the . purposes of
collective bargaining or the adjustment of grievances
within the meaning of Section 8(b)(IXB) of the Act.
4. By threatening to engage in a work stoppage unless
the Company discharged or laid off Supervisor Gary
Cooper, the Respondent coerced and restrained the
Company within the meaning of Section 8(bXIXB) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Acct.
[Recommended Order omitted from publication.]
regard thereto. The determination of the exact time that Cooper would have
worked and the amount he would have earned is left to the compliance
stage of the proceeding and is not cognizable at this stage of the
proceedings.