Local 702, Electrical Workers

National Labor Relations Board - Board Decisions

Jul 18, 1975

219 N.L.R.B. 251 (N.L.R.B. 1975)

LOCAL 702, ELECTRICAL WORKERS 251
Local 702, International Brotherhood of Electrical
Workers, AFL-CIO (Coulterville Tree Service) and
Jay H. Cody. Case 14-CB-2609
July 18, 1975
DECISION AND ORDER
On July 11, 1974, Administrative Law Judge Ben-
jamin K. Blackburn issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed cross-exceptions.
The Board has considered the record and the at-
tached Decision' in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
As the record shows, in February 1973, Herbert
Berry, the president of Coulterville Tree Service, di-
rected Foreman Jay Cody to move his crew and be-
gin tree-trimming operations in the vicinity of
Tamms, Illinois , within the Respondent's jurisdic-
tion. However, Berry did not tell Cody where he
should "headquarter" his crew and their vehicles
when they arrived, and left that decision up to Cody.
Cody and David Gay, another member of the three-
man crew, arrived at Tamms on February 16, and
Cody selected that town as his headquarters. It is
undisputed that Tamms was not a headquarters ap-
proved by either the Respondent or Coulterville pur-
suant to their bargaining agreement . Moreover, as
Berry testified, it was the "established custom and
practice" for employers, including Coulterville, to
notify the Respondent where a new headquarters had
been established so that the Respondent would give
its approval. Indeed, Berry testified that he had given
Cody specific instructions to "notify the [Respon-
dent] immediately" upon arriving at a new base.
Cody admittedly failed to do so in this instance.
Nonetheless, James Moore, the Respondent's busi-
ness representative, eventually became aware that
the Cody crew was headquartered in Tamms, and
immediately protested to Berry on February 21. Af-
ter Moore explained that Tamms was not an ap-
proved base, and offered several alternative head-
quarters, Berry told Moore that he would tell Cody
"that we had to move." Berry, who was occupied
with other business, told his general superintendent,
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board' s established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
Bill Jones, to "get things squared away." Jones tele-
phoned Cody that evening and, after relating Berry's
call to him (Jones) and Moore's call to Berry, told
Cody to "move your headquarters to Anna
[Illinois]." Cody, a member of a sister local working
in Respondent's jurisdiction on a job permit, replied,
"That's not according to [the Respondent's] contract.
Tell Berry and Moore to come down here. I'm not
going to move till they come down here." Jones end-
ed the conversation stating, "That's up to you. I'll tell
Berry and Moore to go down there."
Arriving in Tamms the following morning, Febru-
ary 22, Moore located Cody and his crew and told
them that Tamms was not an approved headquarters
and that Berry had agreed that the crew would
"move back to Anna." Cody and Gay protested, ar-
guing that Tamms was "suitable," and a heated dis-
cussion ensued which ended with Moore recording
their names and union card numbers.
Later that day, Berry called Cody and ordered him
to "move to Anna." Cody partially complied, by
leaving his equipment in Anna, but continuing to live
in Tamms.
In early March, Moore preferred charges against
Cody and Gay, an intraunion hearing was conduct-
ed, and Cody and Gay were found guilty of violating
the Respondent's contract and bylaws, and the par-
ent union's constitution. Each man was fined $200.
Based on the foregoing record evidence, it is abun-
dantly clear that Cody, after expressly refusing to
obey his superios' orders to "move your headquarters
to Anna," was engaged in frolic of his own design.
Clearly, he was no longer acting in a manner consis-
tent with his authority as Coulterville's representative
"for the purposes of collective bargaining or the ad-
justment of grievances," within the meaning of Sec-
tion 8(b)(1)(B). Indeed, he was personally opposing
his employer's settlement of the grievance and, when
he confronted Moore, he was still attempting to arro-
gate to himself the disposition of a matter which had
already been resolved by his employer pursuant to its
contract with the Respondent the employees' (and
Cody's) exclusive representative. In our view, Cody
acted at his peril in this regard, and we find no basis
for a conclusion that the Respondent's fines "could
adversely affect [his] conduct in performing the du-
ties of, and acting in his capacity as, grievance ad-
juster or collective bargainer on behalf 5f the employ-
er, " 2 especially since such conduct was so .
antithetical to his employer's wishes. and interest and
the interpretation of the contract the Employer and
union shared.
Faced with these circumstances, our dissenting
2 Florida Power & Light Co v. International Brotherhood of Electrical
Workers, Local 641, 417 U.S. 790 (1974) (Emphasis supplied)
219 NLRB No. 48
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
colleagues now suggest that Coulterville did not
abandon Cody, and even attempt to support him.
But while Berry may not have been initially "amena-
ble" to the Respondent's demand to change the
Tamms headquarters, he did thereafter unequivocal-
ly resolve this grievance in accordance with the
Union's contentions and so advised the Union, and
Cody was told to implement this settlement on three
separate occasions. Finally, Berry personally told
Cody in unmistakable terms that he was to "move to
Anna." The fact that the employer association, of
which Coulterville was a member, several weeks later
filed a grievance-but then failed to pursue it-hard-
ly supports a finding that Cody had not acted at his
peril.
Finally, our colleagues argue that the Respondent
sought to discipline Cody in his capacity as supervi-
sor for conduct which antedated the dispute over the
selection of Tamms as a headquarters. But, clearly
Cody's admitted failure to notify the Respondent of
his crew's whereabouts on February 16 and his selec-
tion of Tamms on that date were by his employer's
own admission, acts contrary to the understanding
between Coulterville and the Respondent; and while
the record does not show that Cody was specifically
charged with these separate violations they were ob-
viously inextricably part and parcel of the other, and
more serious , charges against him. And, as our col-
leagues concede, the Respondent preferred charges
only after Cody steadfastly insisted , contrary to his
employer's command and its bargaining agreement,
on standing by his initial decision to headquarter in
Tamms on February 16. In sum, there is no evidence
to suggest that Cody did not begin his unauthorized
frolic on that date.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
MEMBERS KENNEDY and PENELLO, dissenting:
We do not agree with our colleagues' adoption of
the Administrative Law Judge's Decision. While we
agree with the Administrative Law Judge that Jay
Cody is a supervisor and a representative of the Em-
ployer for the adjustment of grievances within the
meaning of Section 8(b)(1)(B) of the Act, we cannot
concur with his conclusion that Cody was perform-
ing no supervisory or management function when the
events which led to his fine occurred. On the con-
trary, we believe that Cody was engaged in contract
interpretation when he selected a town as headquar-
ters for his crew on February 16, 1973. In our view,
Respondent violated Section 8(b)(1)(B) when it fined
Supervisor-Member Cody for performing this super-
visory function.
Jay Cody is a working foreman employed by the
Coulterville Tree Service which is engaged in the
business of trimming trees along the rights of way of
electrical lines . Coulterville Tree Service is a member
of the American Line Builders Chapter, National
Electrical Contractors Association, which represents
Coulterville Tree Service and other contractors in the
negotiation and execution of collective-bargaining
agreements. The Association has identical collective-
bargaining agreements with the Respondent Union,
Local 702, International Brotherhood of Electrical
Workers, AFL-CIO, and Respondent's sister local,
Local 51. Section 5.01 of these identical agreements
provides, in pertinent part, that the "Employer shall
set up headquarters in the nearest town to the job
where suitable living quarters can be obtained by
workmen."
In February 1973, Herbert Berry, the president of
Coulterville Tree Service, instructed Foreman Cody
to commence tree-trimming operations in the town
of Tamms, Illinois, which is in Respondent's geo-
graphical jurisdiction. Berry said nothing to Cody
about where Cody should set up his crew's headquar-
ters . Cody's crew consisted of himself and David
Gay, both members of Local 51, and John Roth, a
member of Respondent Union. Cody and Gay were
working under permits from Respondent. On Febru-
ary 16, the day the crew commenced operations in
Tamms Cody selected Tamms as the crew's head-
quarters, and he and Gay elected to live in a motel in
Tamms since the crew's operations would begin and
end there each day. Rath, who would have commut-
ed to any headquarters town selected by Cody, com-
muted to work at Tamms daily.
Earlier in February, Respondent's business repre-
sentative, James Moore, had considered the suitabili-
ty of Tamms as a headquarters town for the crew of
another contractor, Henkel-McCoy. Although he
considered Tamms as unsuitable, Moore did not
communicate his opinion to representatives of Henk-
el-McCoy, to the Association, nor to any other em-
ployers whose employees Respondent represents,
since , according to Moore, Henkel-McCoy set up
headquarters elsewhere. Moore testified, however,
that Tamms was not included on an unwritten list of
suitable headquarters towns agreed upon by employ-
ers and the Respondent in the past. Although he in-
sisted that section 5.01 of the contract provides that
the Union and the employer shall set up the head-
quarters town, he conceded on cross-examination
LOCAL 702, ELECTRICAL WORKERS
that section 5.01 specifically states that the employer
shall set up the headquarters. In any case, Moore
acknowledged that the suitability of Tamms had nev-
er been the subject of negotiations between Respon-
dent and the Employer, Coulterville Tree Service.
On February 16, crewmember Roth asked Don
Fisher, a fellow member of Respondent and an em-
ployee of Henkel-McCoy, whether Tamms was an
approved headquarters town. After talking to Roth,
Fisher approached Cody and told him that Tamms
was not. Fisher also telephoned Union Business Rep-
resentative Moore and told him that Cody's crew had
headquartered in Tamms. On that same day, or
shortly thereafter, Moore telephoned the Employer
and told its president, Berry, that Tamms was not
one of the towns in Respondent's jurisdiction which
Respondent considered "suitable" within the mean-
ing of section 5.01 of the collective-bargaining agree-
ment. Berry questioned Moore's interpretation of
section 5.01, but indicated he would contact Cody
and instruct him to move. However, Berry became
busy and failed to contact Cody personally.
Between February 16 and 21, Roth and Fisher ap-
proached Cody and told him that he would have to
move the headquarters from Tamms since it was not
considered a suitable headquarters. Cody replied that
he would check into it, but that he considered
Tamms "suitable" within the meaning of the contract
since he and Gay were the only crew members living
away from home, and the accommodations in
Tamms suited their needs. On February 19 and 21,
Fisher again telephoned Moore, reporting that Cody
had not moved the headquarters. Until this time,
Cody had not discussed the matter with his superiors
at Coulterville Tree Service.
At the end of the working day on February 21,
Cody telephoned the Employer' s superintendent, Bill
Jones, who informed Cody that Moore had com-
plained about Cody's choice of Tamms as headquar-
ters. When Jones told Cody he would have to move
to Anna, Illinois , Cody responded, "That's not ac-
cording to contract. Tell Berry and Moore to come
down here." Jones then said, "That's up to you. I'll
tell Berry and Moore to go down there." Berry did
not go to Tamms. However, on the following day,
February 22, Moore went to Tamms where he found
Cody and his crew working. Moore, Cody, and Gay
argued over whether the crew could set up headquar-
ters in Tamms. Cody and Gay contended that
Tamms was suitable because they were satisfied, and
Moore insisted that Tamms was not approved by Re-
spondent. Finally, Moore demanded to see Cody's
and Gay's union credentials and copied down their
names and union card numbers. The evening of that
same day, February 22, Cody moved the headquar-
253
ters from Tamms to Anna where it remained thereaf-
ter.'
Following the argument with Cody and Gay,
Moore returned to his office where he drafted two
letters in which he preferred union charges against
Cody and Gay, respectively. The letter relating to
Cody, dated March 2, 1973, went to Respondent
Union's recording secretary and read as follows:
I, J. B. Moore, Card No. 984755, a member of
Local Union No. 702, IBEW, hereby prefer
charges against Brother, J. H. Cody, Card No.
D288341, a member of Local Union 51, IBEW,
whose last known mailing address is 103 W.
Bridge Road, E. Peoria, Illinois for violation of
the following.
Agreement 6-702-D between American Line
Builders Chapter NECA and Local Union 702,
IBEW, Article V. Section 5.01
By-Laws of Local Union 702, Article XVI, Sec-
tion 17.
Constitution of the IBEW, Article XXVII, Sec-
tion 1, Subsection 3.
Constitution of the IBEW, Article XXVII, Sec-
tion 1, Subsection 9.
The violation occurred at Tamms, Illinois on
Feb. 16, 1973 and each day thereafter until the
present.
The violation occurred as follows:
Brother Cody insisted on headquartering in a
town not agreed to as a headquarter town by the
Local Union. When the employer and the Local
Union agreed to change the headquarter site,
Brother Cody continued to insist that he was
headquartering in Tamms, Illinois.
Article XVI, section 17, of Respondent's bylaws pro-
vides:
The Local Union shall be the exclusive repre-
sentative of each member of the Local for the
purpose of collective bargaining and for the ne-
gotiation and execution of collective bargaining
agreements with employers; and it is irrevocably
authorized and empowered by each member to
present, negotiate and settle any and all griev-
ances, complaints and disputes arising out of the
3 Our colleagues believe that Cody only partially complied with the
Employer's instructions to move the headquarters to Anna since Cody con-
tinued to live in Tamms after he moved the crew 's equipment to Anna. The
record discloses , however, that there is no requirement that crewmembers
stay or live in the designated headquarters town . The only requirement is
that the equipment be left in the headquarters town so that crew operations
begin and end there each day. Thus, Cody fully complied with the instruc-
tions to move to Anna when he left the crew 's equipment there on the
evening of February 22, 1973.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relationship between the member and his em-
ployer, in such manner as it deems within its
discretion to be in the best interests of the Local
Union. The Local Union and its officers may
decline to process any such grievance, complaint
or dispute if, in their sole discretion and judg-
ment, such grievance, complaint or dispute lacks
merit.
Section 1, subsections 3 and 9, of article XXVII of
the IBEW's constitution provides:
Any member may be penalized for commit-
ting any one or more of the following offenses:
*
(3) Violation of any provision of this Consti-
tution and the rules herein, or the bylaws, work-
ing agreements , or rules of a L.U.
*
(9) Creating or attempting to create dissatis-
faction or dissension among any of the members
or among L.U.'s of the I.B.E.W.
Thereafter, the Respondent Union's recording sec-
retary sent identical letters to Cody and Gay. The
letters were dated March 6, 1973, and read as fol-
lows:
You are hereby notified to appear before the
Trial Board of Local Union No. 702, IBEW,
meeting at 106 North Monroe Street, West
Frankfort, Illinois, on March 16, 1973, at 7:00
p.m., to answer charges filed against you by
Brother James Bill Moore, Card No. 984755, for
an alleged violation of Article XVI, Section 17
of the Local Union By-Laws, Article V, Section
5.01 of Agreement 6-703-D between American
Line Builders Chapter NECA and Local Union
702, IBEW and Article XXVII, Section 1, Sub-
sections 3 and 9 of the Constitution of the
IBEW.
Enclosed is a copy of the original charge filed
against you. You may bring witnesses to give
evidence in your behalf. You will be afforded
the opportunity at the hearing to present any
relevant evidence and to cross-examine any wit-
nesses you may desire. You may, if you desire,
have an IBEW member act as your counsel.
Each letter included a copy of Moore's March 2 let-
ter to the recording secretary.
Cody and Gay appeared on March 16 and defend-
ed themselves with the same arguments they had
made to Moore on February 22. In a letter dated
March 21, Cody was informed of the Union's deci-
sion, as follows:
Please be advised the Executive Board, sitting as
a Trial Board of Local Union 702, I.B.E.W., on
March 16, 1973, after due consideration of the
evidence produced has acted upon the charges
filed against you by Brother James Bill Moore.
The charges alleged you violated Agreement
6-702-D between the American Line Builders
Chapter, NECA and Local Union 702, I.B.E.W.
Article V, Section 5.01, Local Union 702 By-
Laws, Article XVI, Section 17, IBEW Constitu-
tion, Article XXVII, Section 1, Sub-section 3
and 9. The decision of the Trial Board is as fol-
lows:
You were found guilty on all four counts and
the penalty assessed is $50.00 on each count for
a total fine of $200.00 to be paid within sixty
(60) days from the date of this letter.
If you wish to appeal this decision you must
comply with Article XXVII, Section 13 of the
IBEW Constitution before an appeal can be rec-
ognized.
Neither Cody nor Gay appealed, and both paid the
fine.
Berry later had the American Line Builders Chap-
ter file a grievance protesting Respondent's decision,
under its interpretation of section 5.01, that Tamms
was not an acceptable headquarters town. However,
the grievance was not pursued.
On April 16, 1973, Cody filed the charge in the
instant case, alleging that Respondent violated Sec-
tion 8(b)(1)(B) of the Act by bringing charges against
him and fining him for the position he took while
foreman of his crew, "when negotiating" the location
of the headquarters town. On March 29, 1974, the
General Counsel issued a complaint alleging that
Respondent's conduct restrained and coerced Coul-
terville Tree Service in the selection of representa-
tives for the purpose of collective bargaining and for
the adjustment of grievances, in violation of Section
8(b)(1)(B).
The Administrative Law Judge found that Cody
was not only a supervisor within the meaning of Sec-
tion 2(11) of the Act, but that he was a representative
for the adjustment of grievances within the meaning
of Section 8(b)(1)(B) as well. However, he found that
Respondent did not violate Section 8(b)(1)(B) by fin-
ing Cody on March 21, since he believed Cody was
not engaged in collective bargaining or grievance ad-
justment when he defied Respondent's wishes that he
not establish a headquarters in Tamms.
Unlike our colleagues, who would adopt the Ad-
ministrative Law Judge's findings, we are not con-
vinced that Cody was stripped of his authority with
respect to selecting a headquarters town, following
LOCAL 702, ELECTRICAL WORKERS 255
his conversation with Jones, the Employer's superin-
tendent, on February 21. Although the Employer's
president, Berry, told Respondent's business repre-
sentative, Moore, that he would tell Cody to move,
the entire context of their conversation reveals that
Berry was not as amenable to the change as the Ad-
ministrative Law Judge would lead us to believe.
When asked about his conversation with Moore, Ber-
ry related the following account:
(Moore) asked me what we were doing setting
up headquarters in Tamms, and I told him Jay
(Cody) had called and said that there was a
place to stay down there and eat and a station,
and then I wanted to know why, and he said it
wasn't a suitable place, and I said, `Well, we've
only got two men staying in there, both happy.'
He said, "Well, we'll have to move,' and I said I
would talk to Jay (Cody) and tell him that we
had to move, but I didn't get down there for a
couple days. . . . He got there before I did, so I
never did get there.
Thus, Berry concurred in Cody's interpretation of
section 5.01 and indicated that he would talk with
Cody before telling him to move from Tamms. Berry
further testified that he became very busy and could
not contact Cody personally. According to Berry, he
instructed Jones, his superintendent, to go to Tamms
"and see if he couldn't get things squared away."
Jones finally contacted Cody when Cody called him
on the evening of February 21. During his conversa-
tion with Jones, Cody protested that the move from
Tamms to Anna was "not according to contract."
When Cody stated that he would not move until he
could speak with Berry and Moore, Jones said,
"That's up to you. I'll tell Berry and Moore to go
down there [to Tamms]." In our opinion, Jones'
statement is further indication that the Employer had
not firmly decided to move the headquarters and
that, in any case, Cody was still authorized to remain
in Tamms, at least until Berry and Moore came
there.
In addition, the record fails to establish that the
Employer thereafter abandoned Cody on the issue or
stripped him of his authority to act with respect to
the selection of a headquarters town. On the con-
trary, Berry supported Cody to the point of filing a
grievance on the issue through the Association
against Respondent. Thus, we believe that Cody con-
tinued to perform his supervisory functions after
February 21, 1973, interpreting the contract and han-
dling Roth's grievance during the Employer's dispute
with the Respondent over the selection of Tamms as
a headquarters town. We therefore believe that the
fine, insofar as it may be said to have been directed
at Cody for his insistence on remaining in Tamms
after February 21, violated Section 8(b)(1)(B) of the
Act since the discipline would likely result in an ad-
verse effect on Cody's supervisory duties.
Nevertheless, were we to agree with the Adminis-
trative Law Judge and our colleagues that Cody was
no longer performing a supervisory function when he
insisted on remaining in Tamms after February 21,
we would still find, on the basis of the facts in this
case, that Respondent's discipline of Cody violated
Section 8(b)(1)(B) of the Act. A close inspection of
Moore's charges against Cody, which were included
in the Respondent's letter to Cody notifying him of
the proceedings against him, discloses that Cody was
being disciplined for the selection of Tamms, as well
as his insistence on remaining there after his conver-
sation with Jones on February 21. Both the charges
and the accompanying letter of notification stated
that the charges against Cody included an alleged
violation of section 5.01 of the collective-bargaining
agreement, as well as violations of Respondent's
constitutional provisions and bylaws. Significantly,
the charges specify that the violation occurred "on
February 16, 1973, and each day thereafter," thus
citing Cody for his conduct both before and after
February 21. Furthermore, the charges state that the
violation included Cody's insistence on headquar-
tering in a town not agreed to as a headquarters town
by the Respondent, as well as his continued insis-
tence on headquartering in Tamms after the Employ-
er and the Respondent agreed to change the head-
quarters site.
Unlike the Administrative Law Judge and our col-
leagues who would adopt his Decision, we take the
Respondent Union at its word, and would therefore
find that Respondent fined Cody for his interpreta-
tion of the collective-bargaining agreement when he
adhered to his choice of Tamms as a headquarters
town in response to Roth's grievance. Under these
circumstances, a later revocation of Cody's authority
is not relevant, for Respondent's discipline of Cody
for exercising supervisory functions when he was
clearly authorized to do so would likely result in an
adverse effect on his conduct in performing the du-
ties of, and acting in his capacity as, grievance ad-
juster or collective bargainer on behalf of the Em-
ployer.4 In accord with the Board's decision in
° See Florida Power & Light Co v. I.B E W., Local 641, 417 U.S. 790
( 1974). The Supreme Court held therein that a union did not violate Sec.
8(bXI)(B) by disciplining supervisor -members who crossed lawful picket
lines to perform rank-and-file struck work In the instant case , the fine was
imposed in a nonstnke setting, for exercising supervisory or management
functions , in an effort to impose the Respondent's interpretation of the
collective-bargaining agreement upon the Employer 's representative. We
adhere to the Board's holding in Teamsters Local No. 524, International
Continued
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yakima County Beverage Company, supra, we believe
that Respondent's discipline of Cody primarily af-
fects the relationship between the Union and the
Employer, "since the underlying question was the in-
terpretation of the collective-bargaining agreement
between the parties." 5
Our colleagues submit that Cody's failure to notify
Respondent of his crew's whereabouts and his selec-
tion of Tamms on February 16, was contrary to the
understanding between Respondent and Coulterville
Tree Service. They conclude that this was "obviously
inextricably part and parcel of the other, and more
serious, charges against him." However, as our col-
leagues concede, the record does not establish that
Respondent's charges against Cody included such an
allegation. Moreover, Respondent has not at any
stage in these proceedings contended that Cody's
failure to notify it of the selection or the crew's
whereabouts was a subject of those charges. Instead,
Respondent has consistently argued that it was enti-
tled to discipline Cody on the grounds that Cody had
no authority to select Tamms in the first place. In
these circumstances, we do not believe that the fail-
ure to notify was an additional reason for
Respondent's charges against Cody. In any event,
the inquiry herein should not focus on Respondent's
unannounced intentions, if indeed there were any.
Rather, the Board should direct its inquiry at wheth-
er the discipline of the supervisor-member would
likely result in an adverse effect on his conduct in his
representative capacity. We believe the proscribed
impact would result in this case, where Respondent
has clearly indicated to Cody that he is being disci-
plined for his continued insistence on selecting
Tamms in the face of Roth's grievance on February
16.
In our opinion, the rationale which the Board ap-
plied in San Francisco-Oakland Mailers' 6 is equally
applicable in this case. In that case, the Board found
that the Union's disciplinary action was violative of
Section 8(b)(1)(B), reasoning as follows:
The relationship between the Union and its
members appears to have been of only second-
ary importance, used as a convenient and, it
Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America
(Yakima County Beverage Company), 212 NLRB 908 (1974), that the Su-
preme Court 's opinion in Florida Power & Light should not be read to say
that a union , consonant with Sec . 8(bXI)(B), is free to discipline supervisor-
members under circumstances such as those which are present in the instant
case.
S San Francisco-Oakland Mailers' Union No. 18, International Typographi-
cal Union (Northwest Publications, Inc.), 172 NLRB 2173, 2174 ( 1968). In
Florida Power & Light, supra, the Supreme Court majority assumed , without
deciding that the Board 's decision in San Francisco-Oakland Mailers' fell
within the outer limits of Sec . 8(b)(1)(B). In Yakima County Beverage Co.,
supra, the Board decided to adhere to its decision in San Francisco-Oakland
Mailers'
6 172 NLRB 2173.
would seem , powerful tool to affect the employ-
er-union relationship; i.e., to compel the
Employer's foremen to take prounion positions
in interpreting the collective-bargaining agree-
ment . The purpose and effect of Respondent's
conduct literally and directly contravened the
statutory policy of allowing the Employer an un-
impeded choice of representative for collective
bargaining and settlement of grievances. In our
view it fell outside the legitimate internal inter-
ests of the Union . . . .7
In the instant case , the Respondent Union utilized
its internal disciplinary machinery in an attempt to
impose its interpretation of section 5.01 of the collec-
tive-bargaining agreement upon the Employer's rep-
resentative, Cody. Clearly, this infringes upon the
Employer's right to unencumbered control of Cody
while he serves in his representative capacity. As was
the case in Yakima County Beverage Company, supra,
it is irrelevant that the Union's interpretation may
ultimately be determined to be correct. Whether
hindsight reveals that Cody's interpretation of sec-
tion 5.01 was mistaken, or even that his interpreta-
tion was later rejected by the Employer, does not
alter the fact that he was authorized to interpret the
provision in the course of executing his responsibili-
ties as a grievance adjuster. Respondent's discipline
of Cody, so openly directed at him for his initial in-
terpretation of the contract provision, as well as his
later insistence on adhering to his interpretation, un-
questionably interferes with the performance of
Cody's grievance adjustment and contract interpreta-
tion functions in the interest of his employer, regard-
less of subsequent resolutions of the dispute. We
would therefore find that Respondent violated Sec-
tion 8(b)(1)(B) of the Act by fining Jay Cody on
March 21, 1973.
' 172 NLRB at 2174
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Administrative Law Judge: The
charge in this case was filed on April 16, 1973.1 The com-
plaint was issued on March 29, 1974. The hearing was held
in St . Louis, Missouri , on May 20, 1974. The issue litigated
was whether Respondent violated Section 8(b)(1)(B) of the
National Labor Relations Act, as amended, by fining Jay
H. Cody, a working foreman for Coulterville Tree Service,
for insisting on keeping Coulterville's headquarters in a
town not sanctioned by Respondent. For the reasons set
forth below, I find that it did not.
1 Dates are 1973 unless otherwise indicated.
LOCAL 702, ELECTRICAL WORKERS
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
briefs , I make the following:
FINDINGS OF FACT
1. JURISDICTION
Coulterville Tree Service is engaged in the business of
trimming trees along the rights of way of electrical lines
and clearing rights of way when such lines are under con-
struction . It is a member of The American Line Builders
Chapter , National Electrical Contractors Association, and
a signatory to the contract which the chapter negotiates
with the International Brotherhood of Electrical Workers,
AFL-CIO, for it and other employers in the same business.
As its name implies , The American Line Builders Chapter,
a nonprofit Illinois corporation , is also comprised of con-
tractors engaged in the business of constructing and main-
taining public utility lines and represents them in the nego-
tiation and execution of collective-bargaining agreements.
During calendar 1973, a representative period , the Ameri-
can Line Builders Chapter and its members collectively
purchased and caused to be transported to their respective
places of business in Illinois building materials and other
goods and materials valued in excess of $50 ,000 which
were delivered to them in Illinois directly from points out-
side the State of Illinois.
II. THE UNFAIR LABOR PRACTICE
A. Facts
Since its crews work over a wide area in Illinois, Coulter-
ville Tree Service has identical contracts with three IBEW
locals, Respondent, which is located in West Frankfort,
Illinois; Local 51, which is located in Springfield, Illinois;
and Local 309, which is located in Collinsville, Illinois. Sec-
tion 5.01 of the contract provides:
Employer shall set up headquarters in the nearest
town to the job where suitable living quarters can be
obtained by the workmen. When employee or employ-
ees are located at a headquarters less than five days,
Employer will reimburse employee in the amount of
$6.00 per day for the first day and like amount for
each day or any portion of day thereafter short of the
five normal workdays in addition to the wage to com-
pensate for additional expenses incurred. The above
will not apply when the Employer is paying all expen-
ses on emergency work. This shall not apply while
working out of a permanent established office and
warehouse.
Some time prior to February 16, because a contractor
named Henkel-McCoy was working in the area, James
Moore , one of Respondent's business representatives, un-
dertook to check on the suitability of Tamms, Illinois, as a
headquarters town. He concluded that it was not suitable.
He had no occasion at that time to discuss the matter with
a representative of Henkel-McCoy, or a representative of
The American Line Builders Chapter, or a representative
of any employer whose employees Respondent represents
because Henkel-McCoy elected to set up its headquarters
elsewhere. Whether Tamms is a suitable headquarters town
257
has never been the subject of negotiations between Re-
spondent and any employer.
A Coulterville Tree Service crew headed by Working
Foreman Jay Cody arrived in Tamms on Friday, February
16, and began trimming trees along electrical lines within
the city limits. Section 5.15 of Coulterville's contract with
Respondent provides, under the caption "Working Fore-
man":
When four or less men are required for a job, one
trimmer shall be designated as foreman and draw
foreman's pay, but he shall be permitted to work with
tools.
David Gay, a journeyman tree trimmer, accompanied
Cody to Tamms. Both Cody and Gay are members of Lo-
cal 51 and worked at Tamms, which is within Respondent's
geographical jurisdiction, under permits from Respondent.
John Roth, a member of Respondent, was hired through
Respondent's hiring hall as a ground man. Since less than
four men were required, Cody worked along with Gay and
Roth on the Tamms job.
Cody selected Tamms as headquarters town for the job.
He and Gay elected to live at the motel in Tamms which
Moore had recently found unsuitable. Roth commuted to
work from his home each day. If Cody had selected anoth-
er town as headquarters, Roth would have commuted to
that town and, like Gay, been compensated for the time it
took to drive between headquarters and Tamms. (Cody is a
salaried employee.) Cody failed to inform Respondent on
February 16 that his crew had established its headquarters
at Tamms.
While Cody's crew was working in Tamms, Gay com-
plained to Cody one morning that Roth had failed to fill
the gasoline cans used to transport gasoline to the jobsite
for use in various pieces of equipment such as power saws.
Cody pointed out to Roth that, as truckdriver, he had to do
it.
On February 16 Roth asked Don Fisher, an employee of
Henkel-McCoy, whether Tamms was an approved head-
quarters town. As a result, Fisher went to Cody and told
him it was not. Fisher also telephoned Moore and told him
the Coulterville crew had set up its headquarters in
Tamms. Moore telephone Herbert Berry, Coulterville's
president and general manager, and told him Cody's crew
could not keep its headquarters in Tamms because it was
not on Respondent's list of approved towns. (There is no
such list in the sense of a written document. What Moore
meant was that Tamms was not one of the towns in
Respondent's jurisdiction which, by custom and practice
over the years, Respondent and the employers it deals with
had agreed were "suitable" within the meaning of sec. 5.01
of the contract.) Berry told Moore he would tell Cody to
move to another town. Berry failed to do so.
Fisher and Roth told Cody that he had to move his
headquarters out of Tamms. Cody refused to do so, taking
the position that the accommodations he and Gay had
found in Tamms suited them and they were the only two
employees living away from home, therefore, the accom-
modations were "suitable" within the meaning of the con-
tract. Fisher telephoned Moore on Monday, February 19,
and again on Wednesday, February 21, to report that Cody
refused to move. When, at the end of the day on Wednes-
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day, Cody returned to the filling station at which he was
parking Coulterville' s equipment each night , he received a
message to call Bill Jones , Coulterville's superintendent.
Cody did so. Jones said, "I got a call from Herb Berry who
got a call from Moore , who complained about where you
are headquartered . Move your headquarters to Anna."
Cody said, "That's not according to contract. Tell Berry
and Moore to come down here. I'm not going to move till
they come down here."
Jones said , "That's up to you. I'll tell Berry and Moore
to go down there."
Moore went to Tamms on Thursday, February 22. Berry
did not. Moore found Cody and his men working in an
alley. Cody was up in the bucket trimming a tree when
Moore arrived. Moore called him down. When he reached
the ground , an argument started between Moore on the
one hand and Cody and Gay on the other over whether the
crew could set up headquarters in Tamms. Cody and Gay
repeated the argument that the accommodations in Tamms
were suitable because they were satisfied . Moore insisted
that Tamms was not on Respondent's approved list. He
said that Cody and Gay could live anywhere they liked but
that, because Tamms was not approved, the equipment
must be left elsewhere overnight and the workday must
begin and end there. The upshot of the argument was that
Moore demanded to see Cody's and Gay's union creden-
tials . He copied down their names and union card num-
bers . Cody moved the headquarters to Anna, Illinois, that
evening and operated out of Anna thereafter. Cody and
Gay continued to live in the motel of their choice in
Tamms.
When Moore returned to his office in West Frankfort,
he prepared two letters to Willard Gardner , Respondent's
recording secretary, under date of March 2. One referred
to Cody, the other to Gay. In all other respects they were
identical . The one which related to Cody read:
I, J. B. Moore , Card No. 984755, a member of Local
Union No. 702, IBEW, hereby prefer charges against
Brother J. H. Cody, Card No. D288341, a member of
Local Union 51, IBEW, whose last known mailing ad-
dress is 103 W. Bridge Road, E. Peoria , Illinois for
violation of the following.
Agreement 6-702-D between American Line Builders
Chapter NECA and Local Union 702, IBEW, Article
V, Section 5.01.
By-Laws of Local Union 702, Article XVI, Section 17.
Constitution of the IBEW, Article XXVII , Section 1,
Subsection 3.
Constitution of the IBEW, Article XXVII, Section 1,
Subsection 9.
The violation occurred at Tamms , Illinois on Feb. 16,
1973 and each day thereafter until the present.
The violation occurred as follows:
Brother Cody insisted on headquartering in a town
not agreed to as a headquarter town by the Local
Union. When the employer and the Local Union
agreed to change the headquarter site , Brother Cody
continued to insist that he was headquartering in
Tamms, Illinois.
Article XVI, section 17, of Respondent's bylaws provides:
The Local Union shall be the exclusive representa-
tive of each member of the Local for the purpose of
collective bargaining and for the negotiation and exe-
cution of collective bargaining agreements with em-
ployers; and it is irrevocably authorized and empow-
ered by each member to present , negotiate and settle
any and all grievances, complaints and disputes aris-
ing out of the relationship between the member and
his employer, in such manner as it deems within its
discretion to be in the best interests of the Local
Union. The Local Union and its officers may decline
to process any such grievance , complaint or dispute if,
in their sole discretion and judgment , such grievance,
complaint or dispute lacks merit.
Section 1, subsections 3 and 9, or article XXVII of the
IBEW's constitution provides:
Any member may be penalized for committing any
one or more of the following offenses:
(3) Violation of any provision of this Constitution
and the rules herein , or the bylaws, working agree-
ments , or rules of a L.U.
* * * * *
(9) Creating or attempting to create dissatisfaction
or dissension among any of the members or among
L.U.'s of the I.B.E.W.
Under date of March 6 Gardner sent identical letters to
Cody and Gay. They read:
You are hereby notified to appear before the Trial
Board of Local Union No. 702, IBEW, meeting at 106
North Monroe Street, West Frankfort, Illinois, on
March 16, 1973, at 7:00 p.m., to answer charges filed
against you by Brother James Bill Moore, Card No.
984755, for an alleged violation of Article XVI, Sec-
tion 17 of the Local Union By-Laws, Article V, Sec-
tion 5.01 of Agreement 6-702-D between American
Line Builders Chapter NECA and Local Union 702,
IBEW and Article XXVII, Section 1, Subsections 3
and 9 of the Constitution of the IBEW.
Enclosed is a copy of the original charge filed against
you. You may bring witnesses to give evidence in your
behalf. You will be afforded the opportunity at the
hearing to present any relevant evidence and to cross-
examine any witnesses you may desire. You may, if
you desire, have an IBEW member act as your coun-
sel.
Enclosed with each was a copy of Moore's March 2 letter
to Gardner.
Cody and Gay appeared and were tried together as
scheduled on March 16. They defended themselves with
the same arguments they had made to Moore in Tamms on
February 22. They were informed of the decision of the
LOCAL 702, ELECTRICAL WORKERS 259
Trial Board by identical letters sent to them by Gardner
under date of March 21. The letters read:
Please be advised the Executive Board, sitting as a
Trial Board of Local Union 702, I.B.E.W., on March
16, 1973, after due consideration of the evidence pro-
duced has acted upon the charges filed against you by
Brother James Bill Moore. The charges alleged you
violated Agreement 6-702-D between the American
Line Builders Chapter, NECA and Local Union 702,
I.B.E.W. Article V, Section 5.01, Local Union 702 By-
Laws, Article XVI, Section 17, IBEW Constitution,
Article XXVII, Section 1, Sub-sections 3 and 9. The
decision of the Trial Board is as follows:
You were found guilty on all four counts and the
penalty assessed is $50.00 on each count for a total
fine of $200.00 to be paid within sixty (60) days
from the date of this letter.
If you wish to appeal this decision you must comply
with Article XXVII, Section 13 of the IBEW Constitu-
tion before an appeal can be recognized.
Neither Cody nor Gay appealed. Each paid the fine levied
against him.
Gay also filed an unfair labor practice charge against
Respondent. His charge, Case 4-CB-2610, was dismissed
on March 28, 1974. The dismissal letter read, in pertinent
part:
As a result of the investigation, it appears that there is
insufficient evidence that Local 702, International
Brotherhood of Electrical Workers, AFL-CIO, has
coerced or restrained you by bringing charges against
you, trying you and fining you $200 in order to dis-
courage legitimate union activity, in violation of the
Act, as alleged. Accordingly, further proceedings are
not warranted at this time, and I am, therefore, refus-
ing to issue complaint in this matter.
On a date which does not appear in the record but which
Respondent's brief puts shortly before March 16, Berry
and The American Line Builders Chapter file a grievance
over the incident on his behalf. It apparently protested
Respondent's decision, under its interpretation of section
5.01, that Tamms is not an acceptable headquarters town.
It was not pursued.
B. Analysis and Conclusions
Respondent advances two defenses to the charge that it
restrained and coerced an employer, namely , Coulterville
Tree Service , in the selection of its representative, namely,
Jay Cody, for the purposes of collective bargaining or the
adjustment of grievances when it fined Cody under these
circumstances . It contends that Cody is not a supervisor
within the meaning of Section 2(11) or a representative
within the meaning of Section 8 (b)(1)(B). It argues that,
even if Cody is a supervisor and/or a representative, the
fine levied on him did not violate the Act because it was
unrelated to his activities as a supervisor.
That Cody is a supervisor within the meaning of the Act
cannot be gainsaid . He possesses the authority to hire and
fire . On one occasion he, in fact , hired two laborers to work
with his crew. (Although the record is not clear, he appar-
ently hired John Roth to work with his crew in Tamms
beginning on February 16.) He responsibly directs the
work performed by his crew. Rather, Respondent relies
principally on the contention that Cody is not a representa-
tive within the meaning of Section 8(b)(1)(B). It points out,
insofar as the reference to collective bargaining in Section
8(b)(1)(B) is concerned, that Cody has served for several
years as a member of Local 51's negotiating committee and
thus can hardly be said to have been designated by Coul-
terville as a management negotiator. With respect to the
reference to adjustment of grievances, it relies on the fact
that it has dealt only with Berry when Coulterville employ-
ees have come to it with grievances and that Cody has
never been designated by Coulterville to deal with it over
grievances.
Cody has bargained on the side of labor and has never
been designated to bargain for management. He has never
been designated to handle grievances for an employer
when they get to the stage of employer-union confronta-
tion, nor has he ever undertaken to do so without authori-
zation on behalf of any employer. Nevertheless, it does not
follow that he does not have authority to adjust employee
grievances on behalf of Coulterville. A grievance becomes
a grievance when an employee has a gripe over some term
or condition of his employment. It does not become a
grievance only when he turns to his collective-bargaining
representative for help. David Gay had a grievance when
he complained to Cody that John Roth had not filled the
gasoline cans . Cody adjusted Gay's grievance by telling
Roth to fill the gasoline cans. The fact that Cody dealt only
with the aggrieved employee, Gay, and not with a union
does not make this incident any less an exercise of an au-
thority delegated to Cody by Coulterville to adjust its em-
ployees' grievances on its behalf. I find, therefore, that Jay
Cody is not only a supervisor within the meaning of Sec-
tion 2(11) of the Act but also, more particularly, a repre-
sentative for the adjustment of grievances within the mean-
ing of Section 8(b)(1)(B).
With respect to Respondent's second defense, the briefs
filed by both Respondent and the General Counsel possess
an historical interest only, for both were obviously pre-
pared before the Supreme Court, on June 24, 1974, handed
down its decision in Florida Power & Light Co. v. Interna-
tional Brotherhood of Electrical Workers, Local 641, 417
U.S. 790 (1974).2 Before the Supreme Court acted in Flori-
da Power & Light, the extent to which Section 8(b)(1)(B)
proscribed fines of representatives of management for acts
growing out of their supervisory status but having nothing
to do with collective bargaining or adjustment of griev-
ances was unsettled. The two views presented in this case
2 The only reference to that case in either brief is the following portion of
a footnote in Respondent's-
... In the Board 's brief in the Supreme Court of the United States in
case No. 73-556 and 73-795, Florida Power and Light Company vs.
IBEW, the General Counsel is arguing that this issue [i.e., whether any
supervisor within the meaning of Sec 2(11) is also a representative
within the meaning of Sec 8(b)(IXB)] is not before the Court; it is
arguing that the Court need not decide whether Section 8(bXl)(B)
"would prescribe [sic] union discipline of a supervisor who did not
actually possess , but potentially could be assigned, these duties"... .
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are a good example of the sort of dispute which arose with
the law in this state . The General Counsel's argument is
summarized in this excerpt from his brief:
The record shows that the Union's disciplining of
Jay Cody concerns the relationship between the Em-
ployer and the Union. In accordance with Article V,
Section 5.01 of the collective -bargaining agreement,
Herbert Berry instructed Jay Cody to select a head-
quarters town. Jay Cody selected a town which Bill
Moore had unilaterally decreed not suitable for a
headquarters. Thus, the dispute concerns who will se-
lect the headquarters town.
Thus, the evidence shows that the underlying dis-
pute concerns the relationship between the Employer
and the Union. It also shows that Jay Cody's selection
of Tamms , Illinois was one of his managerial responsi-
bilities . It also shows that by selecting a headquarters
town and insisting that he would move when Herbert
Berry told him to, Jay Cody was acting in conformity
with the Employer's interpretation of the collective-
bargaining agreement . Thus, the Respondent's firing
Jay Cody violates Section 8(b)(1)(B) of the Act.
Respondent 's argument is summarized in this excerpt from
its brief:
Cody was disciplined by Local 702, not because he was
acting on behalf of Management in resisting in [sic] Local
702's position on the headquarters clause, but rather be-
cause he was acting for personal reasons or in furtherance
of his status as a collective bargaining representative of
Local 51. Thus, even if Cody was an 8(b)(1) representative
of the employer (which the Union disputes) he was not
being disciplined for acting in that capacity.
In Florida Power & Light v. IBEW, supra at 2694, the
Supreme Court has settled the question once and for all by
ruling:
a union's discipline of one of its members who is
a supervisory employee can constitute a violation of
§8(b)(1)(B) only when that discipline may adversely
affect the supervisor's conduct in performing the du-
ties of, and acting in his capacity as, grievance adjust-
er or collective bargainer on behalf of the employer.
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 adjust-
ment, or in any activities related thereto, when they
crossed union picket lines during an economic strike
to engage in rank and file struck work . [Footnote om-
itted.]
Here , it is certain that Jay Cody was not engaged in collec-
tive bargaining or grievance adjustment, or in any activities
related thereto, when he defied wishes of Respondent that
he not establish a headquarters in Tamms . Even if Mr.
Justice White is right when , in his dissenting opinion, he
says in a footnote:
I do not read the Court to say that §8(b)(1)(B)
would allow a union to discipline supervisor-members
for performing supervisory or management functions,
as opposed to customary rank-and-file work, during a
labor dispute.
The result here is the same , for Cody was performing no
supervisory or management function when the events
which led to his fine occurred. Cody insisted on staying in
Tamms after February 16 despite the fact Herbert Berry
had agreed to move as soon as James Moore brought the
matter to his attention . Berry is Cody' s superior . He is also
Bill Jones' superior . Once he decided that Coulterville
would not use Tamms as a headquarters town while car-
rying out a contract to trim trees in Tamms, only he could
change the decision. Therefore, the fact Jones said "that's
up to you" on the evening of February 21 when Cody re-
fused to obey Berry's order, relayed by Jones, to move to
Anna has no significance . At that point, Cody had no su-
pervisory function to perform insofar as deciding which
town to select as a headquarters was concerned . Moreover,
while Tamms was obviously the most desirable headquar-
ters from Coulterville 's point of view since it saved the
company the expense of paying employees for time spent
driving between some other town and Tamms, Cody never
advanced that as the reason why he wanted to make
Tamms the headquarters . During the events set forth in the
section entitled "Facts" above and while testifying in this
proceeding, he spoke only of his and Gay's personal inter-
ests and convenience . I find , therefore , that Respondent
did not violate Section 8(b)(1)(B) of the Act by fining Jay
Cody, a supervisor-member, $200 on March 21, 1973, for
insisting on keeping a headquarters in a town not agreed to
by Respondent.
Upon the foregoing findings of fact, and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. The American Line Builders Chapter, National Elec-
trical Contractors Association and its members , including
but not limited to Coulterville Tree Service , collectively
constitute a single employer for jurisdictional purposes
which is engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The allegation of the complaint that Respondent has
violated Section 8(b)(1)(B) of the Act has not been sus-
tained.
[Recommended Order dismissing complaint omitted
from publication.]