Operating Engineers, Local No. 501

National Labor Relations Board - Board Decisions

Mar 31, 1975

217 N.L.R.B. 207 (N.L.R.B. 1975)

OPERATING ENGINEERS, LOCAL NO 501
Operating Engineers, Local No . 501 (Anheuser Busch,
Inc.) and Richard Osting. Case 31-CB-848
March 31, 1975
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On October 10, 1972, the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled proceeding' in which the Board found, contrary
to the Decision of the Administrative Law Judge, dated
June 26, 1972, that the Respondent Union violated
Section 8(b)(1)(B) of the Act by fining the Charging
Party, a supervisor-member, for crossing a lawful
picket line and performing rank-and-file struck work
during an economic strike. The Board's decision was
based on Times Publishing' which, in turn, was based
on the Board cases which were rejected by the U.S.
Supreme Court in Florida Power & Light'
Subsequent to the Court's decision in Florida Power
& Light, supra, the Board sought and obtained a re-
mand of the instant case to reconsider its Decision and
Order in the above-entitiled proceeding in light of the
Supreme Court's opinion. The Board further invited
the parties to file statements of position with respect to
the effect of the Supreme Court's opinion on the instant
proceeding. No party filed a response thereto.
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.
In its opinion the Supreme Court considered the
precise issue involved herein and held that a union does
i 199 NLRB 551 Member Fanning dissented for reasons set forth in his
dissenting opinion in International Brotherhood of Electrical Workers,
AFL-CIO, and Local 134 (Illinois Bell Telephone Company), 192 NLRB 85
(1971), and would have dismissed the complaint in its entirety.
2 The Newspaper Guild, Erie, Newspaper Guild, Local 187, AFL-CIO
(Times Publishing Company), 196 NLRB 1121 (1972), reversed and re-
manded 489 F 2d 416 (C A. 3, 1973)
3 Florida Power & Light Company, International Brotherhood ofElectri-
cal Workers, Local 641, et al., and NL.R B. v. International Brotherhood
of Electrical Workers, AFL-CIO, et aL, 417 U S. 790 (1974).
207
not violate Section 8(b)(1)(B) of the Act by fining mem-
ber-supervisors for crossing its picket line and perform-
ing rank-and-file struck work during a lawful economic
strike against the employer. Upon reconsideration of
our prior Decision herein, we conclude that it cannot
stand because it is contrary to that holding of the Su-
preme Court, and we therefore find that Respondent
did not violate the Act as alleged in the complaint.
Accordingly, we shall dismiss the complaint in its en-
tirety.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
MEMBER KENNEDY, concurring:
I agree with my colleagues that the Respondent did
not violate Section 8(b)(1)(B) of the Act by fining a
member-supervisor for working during its strike
against the Employer herein.
The record in this case does not support a finding
that the supervisor performed _ any supervisory func-
tions during the period for which he was fined. Indeed,
the only record evidence concerning his duties during
that period establishes that the supervisor was, in fact,
performing only rank-and-file struck work, specifically
the work of a maintenance engineer. The supervisor
testified that "during the strike [he] worked on equip-
ment with the tools," and that he had repaired the
compressor which "maintenance men" would nor-
mally have taken care of.
Unquestionably, the supervisor herein was fined for
performing rank-and-file struck work.' In these cir-
cumstances, I agree with my colleagues that the
Court's decision in the Florida Power case requires dis-
missal of the complaint 'herein.'
4 The Union's fine was levied pursuant to an mtraumon charge of "work-
ing contrary to a strike by our Local No. 501 at Anheuser-Bush, , Inc., on
March 24 and 25, 1971." Compare my dissent in Max M. Kaplan
Properties, 217 NLRB No. 13 (1975), wherein the supervisor was fined for
"working without a steward."
5 Chicago Typographical Union No. 16 (Hammond Publishers, Inc.), 216
NLRB No. 149 (1975).
217 NLRB No. 21