Operating Engineers, Local 501

National Labor Relations Board - Board Decisions

Oct 10, 1972

199 N.L.R.B. 551 (N.L.R.B. 1972)

OPERATING ENGINEERS, LOCAL 501
Operating Engineers , Local No. 501 (Anheuser Busch,
Inc.) and Richard Osting . Case 31-CB-848
October 10, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 6, 1972, Administrative Law Judge I
George H. O'Brien issued the attached Decision in
this proceeding. Thereafter, General Counsel and An-
heuser Busch, Inc., as Intervenor, filed exceptions and
supporting briefs and Respondent Union filed cross-
exceptions and supporting brief.
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
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith .2
The Administrative Law Judge found that the
Respondent Union did not violate Section 8(b)(1)(B)
of the Act by imposing a fine, enforceable by expul-
sion from union membership, upon Supervisor-Union
Member Osting for working behind a union-spon-
sored picket line at the Respondent's premises.' We
find merit in the General Counsel's exception to this
finding.
As the Board noted in Times Publishing Compa-
ny4
All persons who are "supervisors" within the
meaning of Section 2(11) of the Act are employ-
ers' "representatives for the purposes of collec-
tive bargaining or the adjustment of grievances"
within the purview of Section 8(b)(1)(B) of the
Act....
The fact that the employer and the Union
have contracted that certain specified positions
are covered by the contract, including the union-
security provision thereof, does not constitute an
agreement that the incumbents may be subjected
to union discipline for violating union rules and
i The title of `Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 we hereby correct the Administrative Law Judge 's inadvertent errors on
p. 10, 1 28 , and p . 11, 1.46, of his Decision by changing the word "Respon-
dent" to the "Employer."
3 In reaching this finding the Administrative Law Judge noted the absence
of evidence indicating that Osting ever participated in this adjustment of
grievances as the Employer 's representatives. .
e The Newspaper Guild Erie, Newspaper Guild Local 187, AFL-CIO
(Times Publishing Company), 196 NLRB No. 159 See also cases cited therein.
551
regulations if they are supervisors within the stat-
utory definition of that term ....
In order to constitute coercion within the
proscription of Section 8(b)(1)(B), it is not essen-
tial that the union disciplinary action be related
to the offending member's performance of super-
visory functions , it being sufficient that the disci-
pline somehow concern the relationship between
the employer on the one hand and the union or
the employees on the other, as distinguished from
matters purely of internal union administration.
Specifically, it is violative of Section 8(b)(1)(B)
for a union to discipline a supervisor-member for
crossing the union 's picket line and working dur-
ing a strike.
Accordingly, inasmuch as Osting's supervisory
functions are conceded by all parties , the Union's
action in fining is violative of Section 8(b)(1)(B) of the
Act.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Oper-
ating Engineers, Local No. 501, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) In any manner restraining or coercing Anheu-
ser Busch, Inc., in the selection of representatives cho-
sen by it for the purpose of collective bargaining or
the adjustment of grievances.
. (b) Fining or otherwise disciplining Supervisor
Richard Osting because he crosses a picket line estab-
lished by the Respondent on the premises of Anheu-
ser Busch, Inc., and thereafter continues to work.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Rescind any fines, supensions, explusions, or
other disciplinary acts that may have been taken
against Richard Osting and excise and expunge all
records or other evidence in the files of Respondent
resulting from charges and proceedings brought
against Richard Osting because of his working for
Anheuser Busch, Inc., during the course of the strike
called by the Respondent in March 1971.
(b) Advise the said Richard Osting, in writing,
that Respondent has taken the aforesaid action in
compliance with paragraph 2(a), above, and that it
will cease and desist from the actions forbidden in
paragraph 1(b) of this Order.
(c) Post at the business office and meeting hall
copies of the attached notice marked "Appendix."6
5 See also Toledo Locals Nos 15-P and 272 of the Lithographers and Photoen-
gravers International Union, AFL-CIO (The Toledo Blade Company, Inc), 175
NLRB 1072, affd 437 F 2d 55 (C A 6)
6 In the event that this Order is enforced by a Judgment of a United States
199 NLRB No. 91
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice , on forms provided by the Re-
gional Director for Region 31, after being duly signed
by the Respondent Union 's representative , shall be
posted by the Respondent Union immediately upon
receipt thereof , and be maintained by it for 60 consec-
utive days thereafter , in conspicuous places, including
all places where notices to members are customarily
posted . Reasonable steps shall be taken by Respon-
dent Union to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Mail to the Regional Director for Region 31
signed copies of said notices for posting by Anheuser
Busch, Inc., if willing, in places where notices to em-
ployees are customarily posted . Copies of said notices,
to be furnished by the Regional Director for Region
31, shall , after being duly signed by the Respondent
Union's official representative, be forthwith returned
to the Regional Director.
(e) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER FANNING , dissenting:
My colleagues have found that the Respondent
Union here violated Section 8(b)(1)(B) of the Act by
coercing and restraining the Employer in the selection
of its representatives for the purposes of collective
bargaining and adjusting grievances . I disagree.
The record clearly demonstrates that Respon-
dent fined Osting, a supervisor member , solely be-
cause he worked behind its picket line performing
production work , during which time Osting neither
performed nor had occasion to perform as a supervi-
sor. Accordingly , for the reasons set forth in my dis-
senting opinion in International Brotherhood of
Electrical Workers, AFL-CIO, and Local 134 (Illinois
Bell Telephone Company), 192 NLRB No. 17, I would
dismiss the complaint in its entirety.
representatives chosen by it for the purposes of
collective bargaining or the adjustment of griev-
ances.
WE WILL NOT fine or otherwise discipline
Richard Osting because he crosses a picket line
established by the Respondent on the premises of
Anheuser Busch, Inc., and thereafter continues
to work.
WE WILL rescind any disciplinary action tak-
en against Richard Osting and excise and ex-
punge all records or other evidence in our files
resulting from charges and proceedings brought
against Richard Osting because of his working
for Anheuser Busch, Inc., during the course of
the strike called by us in March 1971.
OPERATING ENGINEERS, LOCAL
No. 501
(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 consecu-
tive 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, Federal Building, Room 12100, 11000
Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7351.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT in any manner restrain or
coerce Anheuser Busch, Inc., in the selection of
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."
GEORGE H. O'BRIEN, Trial Examiner: On March 23 and
24, 1972, in Los Angeles, California, a hearing was held in
the above-entitled matter. The complaint, issued December
8, 1971, is based on a charge filed September 24, 1971, by
Richard Osting . The complaint alleges that Operating Engi-
neers, Local No. 501, herein called Respondent, by levying
a fine on Osting, restrained and coerced Anheuser Busch,
Inc., herein called Employer, in the selection of Employer's
representatives for the adjustment of grievances , and there-
by violated Section 8(b)(1)(B) of the National Labor Rela-
tions Act. Employer's motion to intervene was granted, over
the objection of Respondent, at the opening of the hearing.
Upon the entire record in this proceeding, including
my observation of the witnesses , and after due considera-
tion of the posthearing briefs, I make the following:
OPERATING ENGINEERS, LOCAL 501 553
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Employer is a corporation engaged in the brewing, bot-
tling, and canning of beer at various breweries located
throughout the United States. Employer annually ships
from its Van Nuys, California, brewery directly to custom-
ers located outside the State of California, products valued
in excess of $50,000 and annually receives at its Van Nuys
brewery, directly from suppliers located outside the State of
California, products valued in excess of $50,000. Employer
is an employer within the meaning of Section 2(2) of the Act
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Respondent, a subordinate body of International Un-
ion of Operating Engineers , affiliated with AFL-CIO, is a
labor organization within the meaning of Section 2(5) and
Section 8(b) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The only issue in this case is whether Richard (Dick)
Osting was, at any material time, a representative of Em-
ployer for the adjustment 'of grievances.
All other issues are settled by the pleadings, and by a
specific concession of Respondent's counsel. Thus, the com-
plaint alleges and the answer admits that at all material
times:
Richard Osting occupied the position of Assist-
ant Chief Engineer at the Van Nuys Brewery ....
... Richard Osting was a member in good standing
of Respondent.
Commencing on or about March 24 and contin-
uing to March 27, 1971, Respondent called a strike and
established and maintained a picket line at the Van
Nuys brewery to protest its dispute with the Employer
concerning the number of employees required to staff
the powerhouse at the Van Nuys Brewery.
On or about March 24 and 25, 1971, Richard Ost-
ing did not observe the strike, crossed the picket line
and continued thereafter to report for work.
On or about April 20, 1971, Respondent accepted
and processed charges against Richard Osting for his
conduct [in crossing the picket line and reporting for
work].
On or about July 20, 1971, Respondent conducted
a trial on the charges ... and imposed a fine on Richard
Osting.
Respondent [conducted the trial and imposed the
fine] because Richard Osting had crossed the picket
line ... and had continued to report to work for the
i "adjust v .t. 1. to alter so as to make fit or correspondent . 2 to regulate,
make accurate, as a watch . 3. to settle or arrange rightly. . v i. to come into
conformity ; become suited or fit." Webster's New World Dictionary, College
Edition, 1966
Employer.
In his brief to me Respondent's counsel states:
Although denied in the pleadings, Respondent, on the
basis of the record, concedes that Osting after his appoint-
ment as Assistant and, particularly, after he was fined acted
as a minor supervisor 2 of the Maintenance Engineers. He
did so in the sense only of "responsible direction" of skilled
craftsmen .... He did not perform any functions in hiring
... nor did he "adjust" grievances, either formally or in-
formally.
B. The Setting
Employer's Van Nuys brewery occupies a number of
buildings on a multiacre site. Production employees, i.e.
brewers and bottlers, are represented by the Teamsters Un-
ion. Maintenance employees are represented by different
craft unions. Respondent represents the watch engineers in
the powerhouse and the maintenance engineers who main-
tain the fluid lines and equipment throughout the entire
plant. These lines carry water, steam, compressed air, car-
bonic acid gas, and refrigeration fluid.
The powerhouse contains the steam boilerroom, the
compressor room, and the office of the chief operating engi-
neer, Walter Rimkus. Prior to March 24, 1971, 12 licensed
watch engineers manned the powerhouse and patrolled the
plant 24 hours a day, 7 days a week. By rotating shifts, there
were, at any given time, one watch engineer in the boiler-
room, one watch engineer in the compressor room, and one
"outside watch engineer" patrolling the fluid lines and
equipment, making minor repairs and "logging" work to be
done by the maintenance engineers. On March 28, 1971, the
jobs of "compressor room watch engineer" and "outside
watch engineer" were combined, resulting in the elimina-
tion of four positions.
Maintenance of the fluid lines and equipment is the
responsibility of 14 to 17 "maintenance engineers" all of
whom work the day shift under the direct supervision of
Richard (Dick) Osting, assistant chief operating engineer.
The specific skills used are those of pipefitter and plumber,
welder, instrument mechanic, air-conditioning mechanic,
and refrigeration engineer. The maintenance shop, stock-
room, lunchroom, and Osting's office are located in a build-
ing about 400 feet from the powerhouse.
The contract between Employer and Respondent de-
fines the work "employee" to include the chief engineer, the
assistant chief engineer, the watch engineers, and the main-
tenance engineers. All are required to become and remain
members of Respondent as a condition of employment. All
are protected by the clause "no employee shall be dis-
charged or discriminated against because of membership or
2 Sec. 2(11) The term " supervisor" means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward or discipline other employees, or respon-
sibly to direct them, or to adjust their grievances, or effectively to recommend
such action , if in connection with the foregoing the exercise of such authority
is not of a merely routine or clerical nature, but requires the use of indepen-
dent judgment.
"This section is to be interpreted in the disjunctive, and the possession
of any one of the authorities listed, places the employee invested with this
authority in the supervisory class." Ohio Power Co v. N LRB, 176 F.2d 385,
387 (C.A. 6, 1949).
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities in the Union." The clause on "Arbitration and
Grievance" states in its opening paragraph:
(A) If an employee covered by the terms of this Agree-
ment has a grievance which cannot be settled by the
Shop Steward and the Chief Engineer, the union repre-
sentative and an employer representative shall attempt
to adjudicate same ....
and further provides:
Any settlement of a question by a Shop Steward
and Chief Engineer involved in a dispute shall be re-
viewable by an Executive of the Company and the
Business Representative of the Union at the request of
either and no such settlement shall establish a preced-
ent or conflict in any manner with the provisions of the
Agreement.
In prior years, chief engineers and assistant chief engi-
neers have refused to work behind picket lines and have not
been demoted nor disciplined by Employer. Osting's prede-
cessor, Fred Arens, worked behind the picket line of an-
other union at the Van Nuys plant, and was tried, found
guilty, and fined by Respondent. Employer made no pro-
test . After the fine was levied and while it remained unpaid,
Respondent prosecuted a grievance under the contract
which resulted in Arens receiving $40.54 "call in pay."
C. The Relation of the Assistant Chief Engineer
to the Adjustment of Grievances
Hubert J. Smith, resident engineer, is directly respon-
sible to the plant manager for all maintenance. When he
assumed his present position in 1964, he decided, in his own
mind, to include the chief operating engineer and the assist-
ant chief operating engineer in the management category.
He did not communicate this decision to anyone, with the
single exception of the then plant manager.
The present chief operating engineer, Walter Rimkus,
has held the position since 1965. The assistant chief from
1967 to February, 1971, was Fred Arens.
Rimkus testified, under cross-examination:
When I hired or promoted Fred Arens at that point I
indicated to him and told him that I wanted him to run
the operation and try to investigate any grievances be-
fore they got to the formal level and to get deeper into
the administrative part of personnel handling. I gave
the same instruction and the same thing to Dick Osting
when he was hired.
There is no evidence that Arens at any time during his
tenure as assistant chief adjusted any grievance or recom-
mended the adjustment of any grievance, or that Respon-
dent was notified that he had any such authority.
On August 23, 1969, while Arens in the absence of
Rimkus was acting chief engineer, it appeared to him that
a maintenance engineer, Pinion, was unfit for duty. Arens
telephoned Smith who came down to the brewery and made
a personal inspection. Arens recommended that Pinion be
sent home. Smith decided that Pinion should finish out his
shift and directed Arens to prepare a "Notice of Violation
of Plant Rules" suspending Pinion indefinitely. Pinion filed
a grievance which was resolved by Respondent's business
representative, Radamaker, and Smith.
Richard Osting was hired as a maintenance engineer in
1956 and joined the Union. In 1969 he crossed a Teamster
picket line at the Van Nuys plant and was fined $150 by
Respondent. He paid the fine November 10, 1969, and was
not reimbursed by Employer. In June of 1970 Osting was
appointed acting assistant chief during a temporary absence
of Arens. On Sunday, June 21, 1970, while Osting was in
charge, one of his subordinates, Ramos, backing a pickup
truck, damaged a painter's pick. Osting, after discussing the
matter with Rimkus and with Smith, prepared a formal
"Notice of Violation of Plant Rules." Ramos grieved
through Respondent's steward, Morris Wolfe. When Wolfe
received an unsatisfactory answer from Rimkus at the first
step of the grievance procedure, he referred the matter to
Respondent's business representative, Donald Radamaker.
When Radamaker, investigating the grievance, asked Ost-
ing if he had seen the accident, Osting replied that he had
not, that he did not instigate the reprimand, did not want
to sign it, but did so when Rimkus asked him to. The griev-
ance was settled by Radamaker and John Ostaich, assistant
director of industrial relations.
On Februrary 5, 1971, the following notice was posted:
To Operating and Maintenance Engineers
Assistant Chief Operating
Engineer
Effective February 22, 1971 Mr. Richard Osting has
been appointed to the position of Assistant Chief Oper-
ating Engineer. Mr. Osting will fill the vacancy created
by the promotion of Mr. Fred Arens to the new Anheu-
ser-Busch Plant in Williamsburg Virginia. Your coop-
eration and personal help to Dick in his new effort is
very much appreciated.
WALTER J. RIMKUS
Chief Operating Engineer
cc: H.R. Smith
C.E. Gilbert [Director Industrial Relations]
Bulletin Boards (2)
File
Prior to this announcement, Smith had exacted from
Osting a promise that, if Respondent should strike, Osting
would go through the picket line and perform the tasks of
a maintenance engineer.
At the same time that the parties signed the basis col-
lective-bargaining contract effective from August 21, 1970,
to August 20, 1973, they entered into a side agreement dated
December 28, 1970, providing:
Anheuser-Busch, Inc. agrees that it will not change its
present power house watch engineer staffing for a peri-
od of 60 days ... during which period the Employer
and the Union will engage in good faith negotiations
concerning the appropriate watch engineer staffing as
a result of the Company's recent modification of power
plant equipment and controls. In the event the parties
at the end of such period fail to reach agreement: 1.
The company shall be free to implement such staffing
as it then deems appropriate. Should the company take
such unilateral action, the Union will be free to engage
in a strike concerning such issue only ....
At about the time that Osting entered upon his new
OPERATING ENGINEERS, LOCAL 501 555
duties, he received further instructions from Rimkus. Rim-
kus testified, on direct examination:
I told Mr. Osting that he would be expected to do the
same type of work that Mr. Arens did. He would have
to accept the responsibility of running the maintenance
engineers and whatever duties there are. That I expect-
ed him to settle any grievances whenever it is possible
to keep them from becoming a formal grievance, going
to higher levels, and that if he could not do this and if
he felt it was too complicated or if he had no success
to come to me and I would help out.
Osting, in his direct examination, described his conver-
sation with Rimkus as follows:
Well, he said that I was to have charge of the mainte-
nance shop. He was going to let me run the shop, and
he didn't necessarily want to be-well, let' s see . I would
like to restrict that. He said that he would like to have
me run the maintenance shop and that in the event
there was any grievances or problems in the shop for
me to the best of my ability to try and handle them at
my level. If I ran into any trouble or needed help, that
he would be more than happy to handle it. If the griev-
ance was such that I couldn't handle it, to take it to his
level and he would take it from there.
When Osting was asked on cross-examination "Are
you testifying here that the chief engineer delegated authori-
ty to you to make a final and complete settlement and
adjustment of a grievance without his approval or the ap-
proval of anybody else?" Osting answered, "I am saying
that he asked me to take care of anything that I could
handle at my own level, yes."
Between February 22, 1971, and March 24, 1971, there
were no grievances involving maintenance engineers. On
Friday, March 12, 1971, Radamaker met with the watch
engineers in the powerhouse and with the maintenance en-
gineers in a lunchroom adjoining Osting's office. At each
meeting a secret ballot vote was taken as -to whether Re-
spondent should accept Employer's last offer. Osting at-
tended the meeting in the lunchroom and cast a ballot. The
vote to reject Employer's last offer was not unanimous.
Osting, under cross-examination, affirmed the truth of
a pretrial affidavit wherein he stated:
During the day of the 22nd of March, Smith came to
me and said, "In the event that there is a strike-and
it kind of looks as if there will be-you are going to
have to come in." I told him that I would report for
work as I always did .... Smith said that I would have
to take care of any maintenance work that came up in
order to keep the equipment running.
From March 24 through March 27, Osting worked be-
hind the picket line, performing the normal functions of a
maintenance engineer. He had no subordinates in the brew-
ery and there were, of course, no grievances.
In April 1971, at the direction of Rimkus, Osting pre-
pared a "Notice of Violation of Plant Rules" suspending
Manning, a maintenance engineer , for 1 week for negligent
performance of his duties. Manning filed a grievance. There
was a meeting attended by Respondent's steward, Phillipe,
Smith, Ostaich, Gilbert, manager of personnel, and Osting.
Osting's sole contribution was a recitation of "what hap-
pened to cause the reprimand."
In the spring of 1971, after the strike, Respondent's
steward, Clifford Phillipe, told Osting that there had been
work performed by machinists in the wrapping room which
belonged to the maintenance crew. Osting and Phillipe com-
plained to the machinist foreman and received his promise
that this would not happen again.
In midsummer 1971, Phillipe and Osting complained to
the superintendent of mechanical maintenance, Barnard,
that bottlers represented by the Teamsters Union were
doing work which belonged to the maintenance engineers.
Osting, in his pretrial affidavit, stated:
I went to Barnard more or less as a backup to Phillipe
.... I did not say too much because the decision was
between Phillipe and Barnard, that it was a union prob-
lem, and for Barnard to answer as to who should be
assigned the work ... later ... Radamaker made a
settlement of the problem ... my role in this problem
... is to see that the work remained for the maintenance
engineers.
One of Osting's duties is to call men in whenever
overtime work is required. The practice, not required by
contract, is to equalize overtime hours among the men who
desire it and, to insure fairness, the list is posted. In the fall
of 1971, a maintenance engineer, Hartman, noted that Ost-
ing had called a man out of turn on the list. Since Osting
was standing right there, Hartman called the matter to his
attention, and Osting immediately corrected the assign-
ment.
Osting has had no other connection with any grievance,
formal or informal, during his tenure as assistant chief oper-
ating engineer. In none of the foregoing instances did he
"adjust" any grievance, nor did he recommend the adjust-
ment of any grievance. Respondent was not advised, until
its representatives heard the testimony at this trial, of any
claim by Employer that Osting had been assigned any role
in the adjustment of grievances.
D. Concluding Findings
Employer's counsel in his brief to me lists four of the
statutory indicia of supervision possessed by Osting and
argues therefrom:
Nothing in the Collective Bargaining Agreement and
no other written or oral evidence provides grounds for
any rational surmise that the authority to deal with and
adjust grievances has been carved out of the other
above-described supervisory duties which Osting reg-
ularly performs.
Restated in positive terms, Employer appears to argue that
because Osting was a supervisor, and because Respondent
coerced Osting for acts which he performed in his capacity
as a supervisor, Respondent has coerced Employer "in the
selection of his representatives for the purposes of ... the
adjustment of grievances."
Employer's argument, reduced to syllogistic terms is:
1. One who responsibly directs other employees is
a supervisor.
2. One who represents employer for the adjust-
ment of grievances is a supervisor.
3. Osting responsibly directs other employees.
4. Therefore Osting is a supervisor.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. A supervisor represents employer for the adjust-
ment of grievances.
6. Therefore Osting is a representative of the Em-
ployer for the adjustment of grievances.
7. Therefore Respondent, when it fined Osting for
doing struck work, violated Section 8(b)(1)(B) of the
Act.
The error in the foregoing logic, if not apparent on its
face, may be demonstrated by applying the same logic to the
well-known personality, Lassie.
1. A collie is a dog.
2. A dachshund is a dog.
3. Lassie is a collie.
4. Therefore Lassie is a dog.
5. Therefore Lassie is a dachshund.
Respondent also argues that Osting's authority to ad-
just grievances should be inferred from the following:
1. Such authority was specifically delegated by
Rimkus.
2. The contract empowers the chief to adjust griev-
ances and generally directs the assistant chief to assist
the chief engineer.
3. Osting was involved in the two grievances over
work assignments.
4. Osting was directly involved in the resolution of
the Manning grievance and the Ramos grievance.
I find nothing in any of the testimony relied on by
Employer which will warrant an inference that Osting pos-
sessed or possesses the authority to adjust grievances.
The General Counsel, in his argument , carries the
Employer's logic one step further. He argues:
General Counsel contends that even if Osting had not
actually been designated and serving the Employer as
a grievance representative, in view of his status and role
as Assistant Chief Engineer with the substantial super-
visory authority to direct the work of the men in his
crew, Osting was a natural and potential representative
of the Employer for the handling and settlement of
grievances because of his day-to-day supervision and
contacts with the employees in matters that spawn
grievances; and that the Employer should be entitled
to rely upon Osting and to select him as its representa-
tive in handling and settling grievances whenever the
occasion might arise. Toledo Lithographers, 175 NLRB
1072, 1078-1079, enfd. 437 F.2d 55(C.A. 6).
I do not find either argument to be persuasive. The
offense with which Respondent is charged is a violation of
the following statutory prohibition:
8(b) It shall be an unfair labor practice for a labor
organization or its agents (1) to restrain or coerce (B)
an employer in the selection of his representatives for
the purposes of collective bargaining or the adjustment
of grievances.
The Employer and the General Counsel assume from
obiter dicta in a line of Board decisions that the Board has
construed this statutory language to mean "It shall be an
unfair labor practice for a labor organization to coerce a
supervisor." This is simply not true. In every case cited, the
Board has made a specific finding that the individual
coerced by a union possessed, at the time he committed the
offense against the union, the actual (not potential) power
to adjust grievances.
Osting did not, at any material time, possess any power
to adjust any grievance. The fact that he did and does exer-
cise other supervisory functions is immaterial. Although
Employer does have an absolute right guaranteed by statute
to designate any individual to be his representative for the
adjustment of grievances, it has, to this date, restricted such
designation to the chief engineer (with a substantial limita-
tion) and to higher officials. The reason is obvious. Employ-
er has compelled the chief and the assistant chief to
maintain membership in Respondent as a condition of em-
ployment. The limitation on the authority of the chief to
adjust grievances is designed to give Employer a veto over
any union dictated adjustment. There is no testimony on
this record that Smith or any higher official of Respondent
even mentioned grievances to Osting. Rimkus could not
have conferred on Osting any greater authority than he
himself possessed. Neither Rimkus nor Osting testified
clearly and unequivocally that even Rimkus' limited author-
ity was delegated to Ostmg. Respondent was not advised
that Osting had any power to adjust any grievance and there
was nothing in the conduct of Osting, Rimkus, or Smith
which could lead Respondent to suspect that any such pow-
er had been delegated.
CONCLUSION OF LAW
Respondent has not, on this record, engaged in unfair
labor practices within the meaning of Section 8(b)(1)(B) of
the National Labor Relations Act. [Recommended Order
omitted from publication.]