Nothum Mfg., Co.

National Labor Relations Board - Board Decisions

Aug 15, 1979

244 N.L.R.B. 224 (N.L.R.B. 1979)

DIE(CISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association, Local
No. 36, and Harold Tindell, its agent and Nothum
Manufacturing Company. Case 17-CB-1999
August 15. 1979
DECISION AND ORDER
BY MEMBI:RS PNI.I.O, MtIRPHY. AND TRUESDAI.E
On May 22, 1979, Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief. Respondent filed
cross-exceptions and a supporting brief and a reply to
the Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administration Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Sheet Metal Workers
International Association, Local No. 36, Springfield,
Missouri, its officers, agents, and representatives, and
Respondent Harold Tindell, its agent, shall take the
action set forth in the said recommended Order, ex-
cept that the attached notice is substituted for that of
the Administrative Law Judge.
I In rejecting Respondent's argument that no violation should be found in
this proceeding. the Administrative Law Judge, in the second sentence of the
last paragraph of the "Conclusion" portion of her Decision, inadvertently
referred to the "Union" rather than to the "Charging Party Employer." We
hereby correct this inadvertent error.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, as amended, and has ordered us to
post this notice. We intend to carry out the Order of
the Board and abide by the following:
WE WILL NOT restrain or coerce Nothum
Manufacturing Company in the selection of rep-
resentatives for purposes of collective bargaining
or the adjustment of grievances by preferring
charges, fining, refusing to accept the tender of
dues or to issue a withdrawal card pending pay-
ment of such fines, otherwise disciplining, or at-
tempting by any means to collect or enforce any
fine or discipline against Charles Fuhr or any
such representative for working with employees
of Nothum Manufacturing Company who are
not members of Respondent and who are not re-
ceiving the wages and benefits required by the
collective bargaining agreement.
WE WILL NO engage in any like or related
conduct constituting such restraint or coercion.
WE WILL rescind and expunge from our rec-
ords the fines imposed by us on Charles Fuhr on
April 25, 1978, and any other disciplinary action
which may have been taken against Charles
Fuhr because of his employment with Nothum
Manufacturing Company.
WE WILL reimburse Charles Fuhr with interest
for any money expended by him pursuant to said
fines or as a condition of filing an intraunion ap-
peal from the decision under which such fines
were imposed.
WE WILi. advise Charles Fuhr, in writing, that
the fines have been rescinded, that the records
thereof have been expunged, and that he will be
reimbursed with interest for any and all sums
paid by him pursuant to such fines or as a condi-
tion of filing an intraunion appeal from the deci-
sion under which such fines were imposed.
SHEEI METAL WORKERS INIERNAIONAL
ASSOCIATIN, LOC(AL No. 36
DECISION
STAIEMENT OF IHE CASE
EARl.DEAN V. S. ROBBINS, Administrative Law Judge:
This case was heard before me in Springfield. Missouri, on
March 14, 1979. The charge was filed by Nothum Manu-
facturing Company, herein called Nothum Co.. on October
2, 1978, and served on Respondent Sheet Metal Workers
International Association, Local No. 36, and Harold Tin-
dell, its agent, on that same date. The complaint, which
issued on November 27, 1978. alleges that Respondent vio-
lated Section 8(b)(l)(B) of the National Labor Relations
Act, as amended.
The principal issues herein are whether Charles Fuhr is a
supervisor within the meaning of Section 8(b)( I)(B) of the
Act and. if so, whether Respondent filed intraunion charges
244 NLRB No. 31
224
SHEET METAL WORKERS. LOCAL 36
and subsequently levied a fine against Fuhr for conduct in
the scope of his duties as a grievance adjustor or collective
bargainer on behalf of the Employer.
Upon the entire record, including my observation of the
demeanor of the witnesses and after due consideration of
briefs filed by the General Counsel and Respondent, I make
the following:
FINDINcS ()F FACI
I. JURISDICTION
Nothum Co. is now and at all times material herein has
been a Missouri corporation engaged in the manufacture of
sheet metal products at its facility located at Springfield,
Missouri. Nothum Co., in the course and conduct of said
business opertions, annually purchases goods and services
valued in excess of $50,000 directly from sources located
outside the State of Missouri.
The complaint alleges, Respondent admits, and I find
that Nothum Co. is and at all times material herein has
been an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LtABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that Respondent is now and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR ABOR PRACTICES
Nothum Co. is signatory to a collective-bargaining agree-
ment with Respondent effective by its terms from July 16,
1976, to July 15, 1978. During the times material herein
Nothum Co.'s employee complement ranged from five to
eight employees. Only two of these employees. Charles
Fuhr and Fritz Torbett, were members of the Union, and
they were the only employees paid the contractual wage
rate.
The collective-bargaining agreement provides that the
Employer shall notify the Union upon the employment of
any sheet metal worker no. referred by the Union. None of
the employees, other than Fuhr and Torbett, was referred
by the Union; however, Nothum did not notify Respondent
of their employment, nor did it make contributions on be-
half of these employees to the various benefit trust funds as
required by the collective-bargaining agreement.
During the latter part of November or the first part of
December 1977' four employees of Nothum Co. went to the
Union's office and inquired whether the Union had a col-
lective-bargaining agreement with their employer. Upon re-
ceiving an affirmative answer, they stated that they worked
at Nothum Co. and inquired why they were not in the
Union. This was the Union's first knowledge that Nothum
I Unless otherwise indicated all dates hereinafter in November and De-
cember are in 1977, and all other dates are in 1978.
Co. employed sheet metal workers other than uhr and
Torbett.
On December 9 Harold Tindell. business representative
and admitted agent of the Union, sent a letter to Fuhr
which reads:
This is to inform you that charges have been pre-
ferred against you by Brother Harold Tindell 259200)
for violation of Article 17. Section I(e), Section (h)
and Section (m) of the Sheet Metal Workers Interna-
tional Constitution and Ritual.
On the date of December 8. 1977. and dates belbre
you worked with a Mark Havens, Bob Lupton. l.arr\
Nevill and Jack Gough. employees of Nothum Manu-
facturing Company. with full knowledge that they
were not members of Sheet Metal Workers' Interna-
tional Association Local Union No. 36 and that they
were not receiving the negotiated wage and benefits
called for in the collective bargaining agreement.
On December 12 Tindell sent a letter to Nothum (Co.
which reads:
In accordance with the Standard Form of Union
Agreement, Article X. I am filing the following griev-
ance with the l.ocal Joint Adjustment Board.
That on the date of December 9, 1977. and dates
before ou had in the employees sicl of Nothum
Manufacturing Company employees b the name of
Mark Havens. Bob Lupton. l.arr 3 Nes ill and Jack
Gough. knowing full well they were not members of'
Sheet Metal Workers International Association. Local
Union 36 and were not drawing the wages and fringe
benefits called for in the negotiated agreement.
By letter dated December 27 the Union notified l:uhr
that a trial committee to conduct the hearing on these
charges would be elected at a regular union meeting to be
held on Januars 24. 1978. in St. Louis. Missouri. a distance
of about 227 miles from Springfield.
By letter dated January 4 Nothum Co. was notified that
the local joint adjustment board would hold a hearing in
Springfield, Missouri. on the grievance filed by the Union.
The hearing was held as scheduled. Robert Nothum. pres-
ident of Nothum Co.. attended and testified. Nothum Co.
was found to have violated the collective-bargaining agree-
ment and was fined $15.000.
By letter dated February 24 the Union notified Fuhr that
the union executive board had been elected as the trial
committee. and that the trial would be held in St. Louis.
Missouri, on March 23. Fuhr did not appear at the trial.
On April 10 Respondent sent Fuhr the minutes of the
trial committee which state, inter alita:
Brother Charles Fuhr was charges [sic] with being in
violation of Article 17. Sections I(E). I(H). and (M)
of the Constitution by Business Representative Harold
Tindell. Brother Fuhr was working with non-union
sheet metal workers at the Nothum Manufacturing
Co., a Local t36 contractor.
Brother Harold indell stated that Brother Fuhr is
still working for Nothum Manufacturing Co. President
Zimmermann asked Brother Tindell if the fringes were
225
r .
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid on time for Brother Fuhr: and Brother Tindell
stated that Brother Fuhr's fringes are paid and on
time, but that he is the only Local 36 employee at
Nothum Manufacturing Co.
Brother Tindell then read to the Trial Committee a
statement made by Mr. Nothum, who owns Nothum.
tHe stated-that he does employ non-union help and
Brother Fuhr does work with these employees. This
statement was made by Mr. Nothum at a Joint Board
Hearing held in Springfield, Missouri on January 26,
1978.
President Zimmermann thanked Brother Tindell for
his testimony, and then excused him. The Trial Com-
mittee reviewed the charges, and the sections of the
Constitution under which the charges were preferred.
The Trial Committee finds Brother Charles Fuhr,
No. 280754, guilty of violating Article 17, Sections
I(E), I(H) and (M) as charged, and recommends that
Brother Fuhr be fined $200.000 (two hundred) per
charge for a total of $600.00 (six hundred).
The sections of the constitution which Fuhr was found to
have violated read:
ARTICL.E SEVENTEEN (17)
Misconduct and Penalties
SECTION I OFFICERS, MEMBERS AND REPRESENTAIIVES
*
SEC. I(e). Violating the established union collective
bargaining agreements and rules and regulations of
any local union relating to rates of pay, rules and
working conditions.
* *
SEc. I(h). Agreeing to perform or performing any
sheet metal work covered by the claimed jurisdiction
of this Association on a piecework basis, lump sum
basis, or any other basis except that provided and
specified by this Constitution and by the established
and recognized union agreements, rules and regula-
tions of affiliated local unions and councils governing
the employment of members.
* * . * *
SEC. I(m). Engaging in any conduct which is detri-
mental to the best interests of this Association or any
subordinate unit thereof or which will bring said
unions into disrepute.
By letter dated May 5 Respondent notified Fuhr that at a
regular meeting held on April 25 the membership adopted
and concurred with the recommendation of the trial com-
mittee.
Subsequently, Fuhr appealed this decision to the Interna-
tional president. By letter dated August 2 the International
president notified Fuhr that his appeal was denied, but that
Fuhr had the right to appeal this decision to the general
executive council. The record does not establish whether
any further appeal was taken.
At the time of the hearing herein Fuhr had not paid the
fine. However, he had paid to the Union the $50 required as
a condition of filing an appeal. Respondent has refused to
accept payment of dues from Fuhr and has refused to hon-
or his request for a withdrawal card until the fine is paid.
Conclusion
Section 8(b)(1)(B) of the Act makes it an unfair labor
practice for a labor organization "to restrain or coerce ...
an employer in the selection of his representatives Ibr the
purpose of collective bargaining or the adjustment of griev-
ances." Hence, the threshold question is whether Fuhr is
Respondent's representative within the meaning of Section
8(b)(1)(B).
The record establishes that Fuhr has exercised the au-
thority to discharge employees, and that he has and exer-
cises the authority to effectively recommend the hiring and
firing of employees and to responsibly direct them. The rec-
ord further establishes that even though Nothum Co. ulti-
mately actually adjusts most grievances, Fuhr is the only
person in the work area who exercises supervisory author-
ity, and he is the person to whom employees take their
grievances. Fuhr then relates the greivance to Nothum Co.
along with his recommendation for the adjustment.
In these circumstances I conclude that Fuhr is more than
a mere conduit for communicating grievances to Nothum
Co., and that his is a vital role in the process of grievance
adjustment. Cf. International Organization of Masters,
Mates and Pilots, AFL CIO (Cone Tankers Corporation),
224 NLRB 1626 (1976). Accordingly, I find that Fuhr is a
supervisor within the meaning of Section 2(1 I1) of the Act
and a representative of the Act and a representative of
Nothum Manufacturing Co. for the purpose of collective
bargaining or the adjustment of grievances within the
meaning of Section 8(b)(l)(B) of the Act. However, a
union's discipline of a supervisor-member constitutes a vio-
lation of Section 8(b)(1)(B) only when such discipline may
adversely affect the supervisor's conduct in performing the
duties of, and acting in the capacity as, grievance adjustor
or collective bargainer on behalf of the Employer. Florida
Power & Light Co. v. International Brotherhood of Electrical
Workers, Local 641, et al., 417 U.S. 790 (1974), American
Broadcasting Companies, Inc., et al. v. Writers Guild of
America, West, Inc., et al., 437 U.S. 411 (1978).
Respondent contends that Fuhr was fined for violation of
the union constitution which required him to perform a
"purely ministerial act"-specifically to notify Respondent
Union that there were employees on the job who were not
union members, and that this function is not a violation of
Section 8(b)(1)(B). Regardless of the merits of Respondent's
legal argument, its contention that Fuhr was fined for not
notifying Respondent Union that Nothum Co. had non-
union members in its employ is not supported by the rec-
ord. Thus, the notification of filing of charges show, the
minutes of the trial committee indicate, and I find that
Fuhr was charged with and fined for working with employ-
ees who were not members of Respondent Union and who
226
SHEET METAL WORKERS. LOCAL 36
were not receiving the contractual wage rate. For Fuhr to
cleanse himself of the charges he would either have to leave
the employ of Nothum Co. or persuade the Employer to
pay wages and benefits as required by the collective-bar-
gaining agreement. That Respondent Union is more con-
cerned with the Employer's conduct than with that of Fuhr
is shown by the fact that a grievance was filed against
Nothum Co. at about the same time the charges were filed
and the fines were assessed against Fuhr involving the con-
tinued employment of employees who were not union mem-
bers and the failure to pay said employees the contractually
agreed upon wages and benefits. It is well established that a
union violates Section 8(b)(1)(B) of the Act when it imposes
discipline upon an employer's representative where such
conduct is rooted in disputes between the employer and the
union regarding a decision of the employer which the union
contends constitutes a breach of the collective-bargaining
agreement. San Francisco-Oakland Mailers' Union No. 18,
International Typographical Union (Northwest Publications.
Inc.), 172 NLRB 2173 (1968): Teamsters Local No. 524,
International Brotherhood of Teamsters, Chauffurs. UWare-
housemen and Helpers of A meric (Yakima County Beverage
Company, Inc. and ChaneV Beverage Comnpany), 212 NLRB
908 (1974).
Accordingly, I find that Fuhr was fined because he re-
mained in the employ of an employer who was engaging in
conduct in breach of the collective-bargaining agreement in
violation of Section 8(b)( I)(B). In reaching this conclusion I
have fully considered and have rejected Respondent's argu-
ment that no violation should be found because the Union
deliberately misled it into thinking that Fuhr was not a
supervisor. The only evidence that an affirmative attempt
was made to mislead Respondent in this regard had not
been reported to Tindell, the trial committee, or the Union
membership at the time the charges were filed and the fines
assessed. Furthermore, once Respondent learned that Fuhr
might well be a supervisor it took no steps to ascertain the
facts or to rescind the fine.
CON(CILUSIONS ()F LAW
I. Respondent is a labor organization within the mean-
ing of Section 2(5) and Section 8(b) of the Act.
2. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. Charles Fuhr is and has been at all times material a
supervisor within the meaning of Section 2(11 I) of the Act,
selected by the Employer for the purpose, among others, of
the adjustment of grievances within the meaning of Section
8(b)(l)(B) of the Act.
4. By preferring intraunion charges against Fuhr, by im-
posing fines against him because he worked with employees
of Nothum Manufacturing Company who were not mem-
bers of Respondent Union who were not receiving the
wages and benefits required by the collective-bargaining
agreement, and by refusing to accept his tender of dues or
to issue him a withdrawal card pending payment of such
fines Respondent has restrained and coerced Nothum
Manufacturing Company in the selection and retention of
its representatives for the purposes of collective bargaining
and the adjustment of grievances and thereby has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(b)(1)(B) 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 Act.
Tin REMFDY
Having found that Respondent had engaged in unfair
labor practices, I shall recommend that Respondent be or-
dered to cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the Act.
I have found that Respondent levied fines against Fuhr
in violation of the Act. Accordingly, I shall recommend
that said fines be rescinded and that Respondent Union
refund to Fuhr any money paid to Respondent Union pur-
suant to such unlawful fines or as a condition of filing an
intraunion appeal from the decision under which the fine
was imposed, with interest computed on all monies due as
provided in Florida Seel Corporation, 231 NLRB 651
(1977). 2
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER'
The Respondent. Sheet Metal Workers International As-
sociation. Local No. 36. Springfield. Missouri, its officers.
agents. and representatives, including Respondent Harold
Tindell. shall:
I. Cease and desist from:
(a) Restraining or coercing Nothum Manufacturing
Company in the selection of representatives for the purpose
of collective bargaining or the adjustment of grievances by
preferring charges. fining, refusing to accept the tender of
dues or to issue a withdrawal card pending payment of such
fine, otherwise disciplining. or attempting by any means to
collect or enforce any fine or discipline against Charles
Fuhr or any such representative for working with employ-
ees of Nothum Manufacturing Company who are not mem-
bers of Respondent Union who are not receiving the wages
and benefits required by the collective-bargaining agree-
ment.
(b) Engaging in any like or related conduct constituting
such restraint or coercion.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Rescind and expunge from its records the fines and
any other disciplinary acts which may have been taken
against Charles Fuhr because of his employment by
Nothum Manufacturing Company.
(b) Reimburse Charles Fuhr. with interest. for any mon-
ies expended by him pursuant to said fine or as a condition
2 ee, generally. Isis Plumbing & Heain Co. 138 Nt.RB 716 (1962).
3In the event no exceptions are filed as provided b) Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations he adopted by the Board and become its
findings. conclusions, and Order. and all objections thereto shall he deemed
waived for all purposes
227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of filing an intraunion appeal from the decision under
which such fines were imposed.
(c) Advise Charles Fuhr. in writing, that the fines have
been rescinded, that the records thereof have been ex-
punged, and that he will be reimbursed for any and all sums
paid by him pursuant to said fines or as a condition of filing
an intraunion appeal from the decision under which such
fines were imposed.
(d) Post at its business office, meeting halls, or other
places where it customarily posts notices copies of the at-
tached notice marked "Appendix."4 Copies of said notice.
4 In the event that this Order is enforced byh 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."
on forms provided by the Regional Director for Region 17,
after being duly signed by authorized representatives of Re-
spondent Union and individually by Respondent Harold
Tindell, shall be posted by said Respondents immediately
upon receipt thereof; and be maintained by them for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees and members are
customarily posted. Reasonable steps shall be taken by Re-
spondents to insure that said notices are not altered, de-
faced. or covered by any other material.
(e) Sign and mail to the Regional Director for Region 17
sufficient copies of said notice. on forms provided by him.
for posting at the premises of Nothum Manufacturing
Company. if said Employer is willing.
(f) Notify the Regional Director for Region 17, in writ-
ing. within 20 days from the date of this Order, what steps
Respondents have taken to comply herewith.
228