Operating Engineers, Local Union No. 3

National Labor Relations Board - Board Decisions

Jul 25, 1975

219 N.L.R.B. 531 (N.L.R.B. 1975)

OPERATING ENGINEERS , LOCAL NO. 3
Operating Engineers, Local Union No. 3 of the Inter-
national Union of Operating Engineers , AFL-CIO
and Redi-Mix Products , Inc., d/b/a Visalia Redi-
Mix. Case 20-CB-3317
July 25, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On May 1, 1975, Administrative Law Judge Henry
S. Sahm issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel and Respon-
dent filed exceptions and supporting briefs.
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 Administrative Law Judge and to
adopt his recommended Order.
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 Respondent Operating Engineers, Local
Union No. 3 of the International Union of Operating
Engineers , AFL-CIO, San Francisco , California, its
officers , agents, and representatives, 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.
Because there is no supporting record evidence , we do not rely on the
Administrative Law Judge's assumption that the quid pro quo for November
18, 1974, "Memorandum of Agreement" between the Operating Engineers
and the Teamsters was a tacit understanding that the employees, all of
whom were Teamsters members, would have a supervisor not unfriendly to
them. Furthermore, although we agree with the Administrative Law Judge
that Leonard Hill was an employer representative for the purpose of adjust-
ing grievances within the meaning of Sec. 8 (b)(I)(B) of the Act, there is no
evidence in the record that he participated in collective bargaining on behalf
of the Employer.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
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
APPENDIX
531
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge,
at which all sides had the chance to give evidence, it
had been decided that we, Operating Engineers, Lo-
cal Union No. 3 of the International Union of Oper-
ating Engineers, AFL-CIO, have violated the Na-
tional Labor Relations Act, and we have been
ordered to post this notice and carry out its terms.
WE WILL NOT picket, threaten, or strike the
premises of Redi-Mix Products, Inc., d/b/a Vi-
salia Redi-Mix, its successors or assigns, for the
purposes of restraining or coercing it in the se-
lection of its representatives for the purposes of
collective bargaining or the adjustment of griev-
ances.
WE WILL NOT in any other manner restrain or
coerce Redi-Mix Products, Inc., d/b/a Visalia
Redi-Mix, its successors or assigns, in the selec-
tion of its representatives for the purposes of
collective bargaining or the adjustment of griev-
ances.
OPERATING ENGINEERS , LOCAL UNION No. 3
OF THE INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO
DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Administrative Law Judge: This case
was heard at Fresno, California, on January 14 and 15,
1975, pursuant to a charge filed October 25, 1974, and a
complaint issued November 22.1 It presents the question
whether Respondent, herein called the Union, violated
Section 8(b)(1)(B) of the National Labor Relations Act, as
amended, by allegedly coercing Redi-Mix, herein referred
to interchangeably as the Company and Visalia Redi-Mix,
in the selection and retention of its representative for the
purpose of adjusting employees' grievances by threatening
to picket the Visalia Redi-Mix Inc. plant, if it did not rein-
state Leonard Hill, a union member, to the position of as-
sistant general manager which he held when he was termi-
nated by the Company on October 19.
Upon the entire record in this case, including observa-
tion of the demeanor of the witnesses and upon due con-
sideration of the briefs filed by both parties on March 3,
1975, there are made the following:
i All dates herein refer to the year 1974.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Redi-Mix Products, Inc., a California corporation, own-
ing several cementmixing plants, with one located at Visa-
lia, California, which is the one involved in this proceeding,
is engaged in the sale of concrete and related products uti-
lized in the construction industry.' During the past year, it
purchased and received goods valued in excess of $50,000
from California suppliers which, in turn, purchased and
received those goods directly from sources outside Califor-
nia. Respondent Union admits and it is found that the
Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the National Labor Relations Act,
herein referred to as the Act.
Local Union No. 3, International Union of Operating
Engineers , AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
The Evidence
Redi-Mix Products, Inc., owns the Visalia Redi-Mix
plant which is involved in this proceeding. The Visalia
plant is located on a site that was occupied by its predeces-
sor owners for more than 15 years who were also engaged
in the sale of concrete and other related products. The Vi-
salia plant was purchased sometime in the summer of 1973
by Redi-Mix Products, Inc., of which John F. George is
president.
Leonard Hill has been a member of Local Union No. 3
of the Operating Engineers since 1971. He was employed
by Redi-Mix at its Visalia plant since 1973 and before then
by its predecessor owners for almost 15 years. Hill was
terminated on October 19, 1974.
At the time the Visalia plant was purchased by Redi-Mix
Products, Inc., in 1973, Hill was general manager of the
plant. "Several" months later, Howard Hatcher was hired
as general manager. His principal job assignment was to
sell cement to contractors and to build up and retain the
good will of members of the construction industry. John F.
George, president of Redi-Mix Products, the Company
which owns the Visalia plant, testified that when Hatcher
was under consideration for the job of handling outside
sales , he first consulted with Hill, then general manager, to
ascertain if this was agreeable to him. When Hill stated it
was, Hatcher was hired.
When Hatcher assumed the sales duties for the Visalia
plant, Hill became "assistant general manager." He contin-
ued to handle the same tasks as when he was general man-
ager except for sales which Hatcher assumed although Hill
continued to handle those sales phoned in by customers
and to service those customers with whom he had a person-
al relationship which he had built up over the past 15 years
that he had worked at the Visalia plant .3
2 John F . George , president of Redi-Mix, Inc , testified that he owns "four
or five other companies" at which each of the managers "runs" the re-
spective plant at which they are employed.
3 Hatcher and his successor Cooper, who took over from Hatcher in May,
Hill, in his capacity as assistant general manager, contin-
ued to perform exclusively the same duties he had prior to
the advent of Hatcher with the exception noted immedi-
ately above. He had authority to recommend the hiring
and firing of employees as well as to discipline them, cor-
rect their faults, and reprimand them when they were de-
linquent in their duties. He dispatched the truckdrivers and
scheduled all the employees' work assignments and the
hours they worked. He also handled employees' complaints
on behalf of his employer and dealt with union officials in
attempting to adjust and resolve these grievances at the
first level of the grievance and arbitration procedures of
the collective-bargaining agreement which the Company
had with the Teamsters Union. In addition , Hill issued
purchase orders for all of the materials bought by the Visa-
lia plant and he was responsible for checking invoices and
auditing employees' timecards to see they correctly reflect-
ed the number of hours they worked. George, president of
the Company, testified that Hill was authorized to handle
any problems which originated due to complaints of cus-
tomers with respect to the quality of cement they pur-
chased from the Visalia plant. George also testified that
Hill was authorized to adjust personnel grievances "at the
plant level" except when the Union closed down the plant
which he (George) personally handled.
In March 1974, Hatcher left the employ of Visalia Redi-
Mix, at which time Hill again became general manager.
George testified that, about a week before he discharged
Hatcher, he asked Hill if he would "take over again?"
When Hill agreed, testified George, "I told him that he
would take over and run the plant as general manager
again, which he knew what that required at that time. He
had run this plant for 6 or 8 or 10 years, ever since I had
known him-which has been about 20 years."
Thomas Cooper was hired in May 1974, with the title of
general manager, and assumed the same sales duties
Hatcher had performed. Hill continued to discharge the
identical duties during Cooper's tenure as he had per-
formed when Hatcher was general manager . In the words
of George, the president of the Company, Hill was "the
only 'on-premise' supervisor" and he "ran the whole
plant." George continued that he knew the people from
whom he purchased the Visalia plant very well and they
had told him that when Hill was employed by them as
general manager he had authority to hire and fire. When
George was asked whether Hill had to obtain the approval
of anyone before he took any action with respect to the
employees and the operation of the plant, George an-
swered that, inasmuch as his office was some "distance
away" from the Visalia plant, Hill necessarily had to make
his own on-the-spot decisions. Moreover, he explained,
Hatcher and Cooper, both of whom took care of outside
sales, were off the plant premises most of the time contact-
ing contractors and other customers, and consequently,
"[t]here was no one for [Hill] to check with" so that he had
to assume these responsibilities "on his own." Moreover,
George stated, Cooper had no experience in the operation
of the plant other than sales. George testified that of the 40
spent most of their time off the plant premises soliciting and servicing cus-
tomers
OPERATING ENGINEERS , LOCAL NO. 3
to 50 hours Cooper worked each week, he probably spent 3
hours at the plant. It appears also that Hill had an "ex-
pense account" as George stated that Hill at times enter-
tained customers for which he was reimbursed.
On October 19, George told Hill that he would have to
terminate him because the Visalia plant was losing money
and he could not afford to retain him. On October 24,
Claude Odom, district representative of the Operating En-
gineers International Union, telephoned George and re-
quested him to be present at 10 a.m. at the Visalia plant.
When George arrived there, Bob Merriott, another union
official accompanied by Odom, and David Miller, secre-
tary-manager of the Tulare-Kings Employer Council, who
is George's labor consultant, were present also. According
to George, he and Miller were told by Odom, the Union's
district representative, that they were there to protest the
discharge of Hill, who was a member of Local 3 of the
Operating Engineers . Miller, who was George's labor con-
sultant, told Odom and Merriott that Hill was assistant
plant manager and therefore a supervisor within the mean-
ing of the National Labor Relations Act which meant that
he could be terminated for any reason whatsoever.4 Odom
then turned to George and referring to Miller said that
they had dealt with Miller on other matters in the past and
he would get George in trouble, stating also he knew what
Hill's job classification was but he was demanding that Hill
be reinstated with backpay. When George remonstrated
with Odom that the Visalia plant was in financial trouble,
Odom replied that was George's problem and no concern
of his.5 Odom continued that, if Hill was not reinstated
immediately, he would see to it that the Visalia plant was
picketed. George requested that this not be done as it
would result in all of the other plant employees who were
all members of the Teamsters Union being unable to work.
Hill was the only one at the Visalia plant who belonged to
Local 3 of the Operating Engineers. Odom, the union offi-
cial, stated that if he placed pickets at the Visalia plant he
was sure that the Teamsters Union would order its mem-
bers to honor the picket line. George again appealed to
Odom not to shut down the plant explaining that the deci-
sion to discharge Hill was a difficult one to make, but he
had no choice in view of the plant's precarious financial
situation. Odom's reply was that either Hill be reinstated or
there would be pickets at the plant the next morning. Ac-
cording to George, the meeting concluded when Odom
stated, "that the Company had a number of classifications
in the Operating Engineers contract that could be applied
to the [Visalia] plant, and if they were forced to go on
strike, they were going to get all of them." The union offi-
cials then left.
On cross-examination, both Miller and George testified
that Odom and Merriott mentioned nothing at this Octo-
° On his direct examination , Merriott , business representative of the Local
Union, testified that Miller "specif[ied ] Mr. Hill was a manager, a dispatch-
er; he didn 't come under the Act anyway . . . and that Miller described Hill
as being a supervisor."
5 Odom testified that before George and Miller arrived at the plant on
October 24, when he summoned them to appear there , that he spoke to
Hatcher's successor , Cooper, who told him " the plant 's overhead can no
longer stand the expense of a batch plant operator . . . [and that] Mr.
Cooper and the Teamsters were going to do the batching from now on "
533
ber 24 meeting with respect to their desire to renegotiate
the current collective-bargaining agreement due to expire
in July 1975, which covered Hill alone, who was the only
member of the Operating Engineers Union working at the
Visalia plant.
On November 18, 3 weeks after the charge was filed and
4 days before the complaint issued in this proceeding, a
picket appeared at the Visalia plant. The placard which he
carried had printed on it:
Visalia Redi-Mix
On Strike
Operating Engineers-Local No. 3
On the same day, Teamsters Union Local No. 94, which
represented the rank-and-file employees, and the Respon-
dent Union, Local 3, Operating Engineers, executed a
"Memorandum of Agreement" dated November 18, stat-
ing that the Teamsters do not have jurisdiction "of either
the loader or batch plant" and that the Operating Engi-
neers do have such jurisdiction at the Visalia plant.
Hill, who testified on behalf of the Respondent Union,
was not a credible witness and proved to be evasive, vague,
and at times, an incomprehensible witness who contra-
dicted himself. When asked how long he functioned as as-
sistant general manager since George purchased the plant,
he evasively answered: "I never had that title . . . a batch
plant operator of the size of Redi-Mix, he does everything.
He batches plants, he drives, dispatches, he tells the truck-
drivers where to come and get a load or where to take it,
and so forth. He just doesn't sit there, you know, when
there's no batching to be done . . . he does whatever is
required to fill the day out." At the outset of his direct
examination, Hill testified he was classified as a batch
plant operator and that his duties at the time Hatcher was
hired consisted of "batching and dispatching and selling."
Hill denied he did any hiring or firing, but admitted that
after Hatcher was terminated it was he who called the
union hall for two men. In the context of the facts stated
above, it would appear that Hill interviewed these two ap-
plicants whom the Union dispatched to the plant. More-
over, when he reprimanded Huff, an employee, for not
making out his timecard properly, it eventuated in a griev-
ance being filed which Hill and a Teamsters union official
resolved. Implicit also in this grievance incident and its
ultimate settlement is the inevitable conclusion that Hill
had the authority to recommend the employee's discharge
if he did not follow Hill's instructions with respect to his
timecard. In fact, the Teamsters union official agreed that
the employee must follow the order which Hill gave as to
the manner in which he was to make out his timecard.
Explicit too is the fact that Hill did adjust the Huff griev-
ance. Moreover, Hill acknowledged handling two or three
other grievances filed by the Union, one of which involved
an employee who was drinking on the job.
Furthermore, Hill admitted that before George pur-
chased the Visalia plant, he was general manager for 6 or 7
years, and during that period of time he adjusted one griev-
ance . It is noteworthy also that on an occasion when a
Teamsters union official threatened to shut down the plant
because of an alleged grievance, it was Hill with whom he
dealt.
Contrary to the credited facts is Hill's unbelievable testi-
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony that Hatcher "was off the premises very little" and
Cooper "was in and out, I'd say 50 percent, probably." Not
only did George credibly testify to the opposite effect, but
it is also clear that both Hatcher and Cooper, whose prima-
ry functions were sales, were off the plant premises most of
the time contacting customers . At such times , admitted
Hill, whenever Cooper was out of the plant soliciting sales,
which was virtually the entire time, he was in charge, as
Cooper had very little knowledge of the operation of the
plant. Moreover, Hill admitted that when Hatcher was off
the plant premises he was in charge.
Also patently false is Hill's testimony that "practically
every day, [he] did some batching." The record reveals that
Jurgens, who has been employed by Visalia for approxi-
mately 14 years, was the "regular" plant batcher and, ex-
cept when he was ill or on vacation, it was he who per-
formed this task. In fact, Hill admitted that Jurgens had
the job classification of "batch plant operator."
Although Hill testified that his duties were limited to
dispatching and sales, he admitted on cross-examination
that it was he who checked the number of hours of work
that the employees entered on their timecards, and in addi-
tion to dispatching the trucks, he not only directed the
employees and told them what to do but he also scheduled
their work hours as well as giving them time off from work.
Also significant is his admission that when Hatcher left
George "wanted me to take over the plant."
Claude Odom's version of the October 24 meeting with
George and his labor consultant, Miller, differs in that he
testified the primary purpose of this meeting was to renego-
tiate the Union's collective-bargaining agreement with Vi-
salia Redi-Mix which was due to expire the following July.
It was in this frame of reference, testified Odom, that he
told George and Miller the following:
I was explaining to them . . . about the violation of
the seniority and the hiring and . . . Mr. Miller broke
in-and interrupted, in fact,-that being Mr. Hill was
a supervisor, we really couldn't have any just de-
mand-we didn't have any authority in the matter as
he didn't come under the Act. And he also said that
the batch plant was the Teamsters jurisdiction. Well, I
told him that-the response was that, again attempted
to say it and then talk about it, and he wouldn't re-
spond. He wouldn't talk about it. He refused to talk
about it. So I told him, "Well, I assume you're aware
that a contract is open for wages and if this is going to
be your attitude, then you'll probably end up with a
picket." And Miller said, "A picket would be illegal."
I said, "Any picket we place will be a legal picket and
it will be sanctioned." I then told him-they didn't
respond to that-so we started to walk away and I
turned and said that we have a grievance procedure in
our agreement and we fully intend to pursue it. And
we left the job.
s s s s
We went down and talked to the Teamsters. Sam
Brashears and Everett Hupp of the Teamsters in Visa-
lia . . . . Well, we were going down there and talk to
them and told them we were going in there and would
be involved in negotiations, and it was highly likely
that we would put on an economic picket and we
would like to request a strike sanction from him on an
economic picket. And they made me absolutely sure
that it would not be jurisdictional because they cannot
sanction a jurisdictional picket line. They can't do it.
Odom testified he ordered an "economic" picket to be
placed at the plant of Visalia Redi-Mix on November 18,
because he was unable to obtain a "counter-proposal"
from the Company.
However, on cross-examination, Odom contradicted
himself with respect to his testimony that the prime pur-
pose of the October 24 meeting was to renegotiate the cur-
rent collective-bargaining agreement which was not due to
expire until 8 months later. He admitted that when he and
Merriott, the other union official, met with George and his
labor consultant Miller on October 24 that he was con-
cerned about Hill's discharge which was the basis for him
demanding that Hill be reinstated .6 Although Odom de-
nied on his cross-examination that he told the Company he
was going to picket the plant, the transcript reveals by a
preponderance of the creditable evidence that the contrary
is the fact. Moreover, Odom's demeanor, as well as his
testimony, left much to be desired. Accordingly, all testi-
mony that he gave which is contrary to the findings made
herein is not credited.
Bob Merriott, business representative for Local 3, Oper-
ating Engineers, corroborated much of Odom's testimony.
His testimony that the purpose of the brief October 24
meeting which "lasted three to five minutes," was twofold,
reads as follows: "It was in regards to Leonard Hill being
discharged and to the wage opener on the contract... .
We more or less mentioned what we were there for-about
putting Mr. Hill back to work. . . . Mr. Odom stated that
we were there to talk about getting Leonard Hill back to
work. . . . And the next step-well, I think it was where
Mr. George come in and told about the plant being in
financial problems. The meeting only lasted approximately
three to five minutes . It was just short. And they didn't
want to talk about the fact-they didn't want to talk about
it any more because it was explained to us that the batch
plant was the Teamsters' jurisdiction. And that's when Mr.
Odom told them that if-he reminded them of the fact that
if the contract negotiations were coming up, we were going
to meet with them on that later, if that was going to be
their attitude. And this was the negotiations that we would
expect, and that was about all there was to it."
On cross-examination, Merriott agreed with the General
Counsel's characterization that "one of the main reasons"
for the October 24 meeting was because of Hill's discharge.
Merriott continued that when Odom requested Hill's rein-
statement, "Miller stated the position of the Teamsters.
Mr. George stated the financial position of the plant. [Then
Odom] reminded [them] of the negotiations coming up. He
6 For a reason which is not clear , Odom insisted he was not interested in
Hill being reinstated to "his former position " but rather that he be reinstat-
ed "as a batch plant operator ." The distinction is not apparent as Hill was
the only member of the Operating Engineers employed at the Visalia plant
All the other employees , including the batch plant operator , were members
of the Teamsters Union.
OPERATING ENGINEERS, LOCAL NO. 3
told them that if this was going to be their attitude during
the negotiations, they could expect a picket...."
When Merriott agreed that the only negotiations in-
volved concerned Hill as he was the only person employed
at the Visalia plant who was a member of the Operating
Engineers, he was asked what was there to negotiate inas-
much as Hill had been discharged. His answer reads:
"Well, according to the contract, if they would have termi-
nated Hill for just cause, under the hiring procedure, they
would have to had another operating engineer out of the
hall. That would be the reason we were there on negotia-
tions on the wages and the fringes and the sick leave. That
was the only thing open in the three-year contract." When
asked about the Company's assertion that the reason they
discharged Hill was due to their inability to afford him
because of the Company's poor financial situation, Mer-
riott answered: "Well, at that time, I didn't know what
they meant by `they couldn't afford him,' whether he was
inefficient on the job or if he didn't know his job, or what
they meant by it. And as far as that goes, when somebody
tells you they can't afford somebody on the job, every con-
tractor I talk to is more or less in the same position-he
can't-so they tell me ." Merriott continued that he in-
quired of Hill the reason he was given by the Company for
his discharge and was told "they couldn't afford him... .
They didn't say why they couldn't afford him. What I am
saying is they didn't say whether they had been paying too
much money for the amount of work he did or what... .
He didn't go so far as to say about the business [being bad]
but because they told him they couldn't afford him." Mer-
riott concluded by stating that he did not ask Hill what the
Company meant by the phrase they could not afford him.
The Respondent Union contends that the record shows
Hill neither represented the Company in adjusting griev-
ances within the meaning of Section 8(b)(1)(B) of the Act
nor that the Union threatened to picket the Company if
they did not reinstate Hill.
The General Counsel's representative, on the other
hand, argues that the record does show Hill to be a super-
visor within the meaning of Section 2(11) of the Act as
evidenced, inter alia, by his handling complaints and ad-
justing grievances in the day-to-day activities on the job-
site. Moreover, contends the representative of the General
Counsel, the Union not only demanded the reinstatement
of Hill, a supervisor, who handled grievances but also
threatened to picket the Company if its demand was not
met, a violation of Section 8(b)(1)(B) of the Act. Corrobo-
rative of this conclusion, argues the General Counsel's rep-
resentative , is the "unbelievable" assertion of the Respon-
dent Union that its purpose in meeting with the company
representatives on October 24 was to negotiate the eco-
nomic terms and conditions for a new contract due to ex-
pire 8 months later, covering the Company's employees,
none of whom it represented on that date as Hill had been
discharged 5 days earlier.
Discussion and Conclusions
Section 8(b)(1)(B) of the Act provides that it shall be an
unfair labor practice for a labor organization or its agents
"to restrain or coerce . . . an employer in the selection of
535
his representatives for the purposes of collective bargaining
or the adjustment of grievances." The purpose of this sec-
tion is "clear on its face. It is designed to prevent unions
from restraining management's free choice of its agent to
bargain with the union or adjust grievances." International
Brotherhood of Electrical Workers v. N.L.R.B., 487 F.2d
1143, 1152, (C.A.D.C., 1973). Accord: Meat Cutters Union
Local 81 of Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO [Safeway Stores, Inc.] v.
N.L.R.B., 458 F.2d 794, 798, footnote 10 (C.A.D.C., 1972).
The "right of employees and the corresponding right of
employers . . . to choose whomever they wish to represent
them . . . is fundamental to the statutory scheme. In gen-
eral, either side can choose as it sees fit and neither can
control the others' selection," quoting from General Elec-
tric Co. v. N. L. R. B., 412 F.2d 512, 516-517 (C.A. 2, 1969).
Specifically, as the Senate Labor Committee explained in
reporting out the bill in which Section 8(b)(1)(B) originat-
ed, "this subsection would not permit a union to dictate
who shall represent an employer in the settlement of em-
ployee grievances...." S. Rep. No. 105, 80th Cong., 1st
Sess., p. 21, I. Leg. Hist. 427 (1947), cited with approval,
Electrical Workers v. N.L.R.B., supra. Therefore, union
pressure amounting to restraint and coercion applied di-
rectly to the employer to influence his choice of a duly
designated bargaining representative is proscribed by the
Act. The general principles of law defining the thrust of
Section 8(b)(1)(B) are enunciated by the Board in Toledo
Locals Nos. 15-P and 272 of the Lithographers and Photo-
Engravers International Union, AFL-CIO, 175 NLRB 1070,
1080 (1971), enfd. 437 F.2d 55 (C.A. 6). See also N.L.R.B.
v. Local 2150 International Brotherhood of Electrical Work-
ers AFL-CIO [Wisconsin Electric Co.], 486 F.2d 602 (C.A.
7), enfg. 192 NLRB 77 (1973).
In Carpenters District Council of Milwaukee County & Vi-
cinity, AFL-CIO v. N. L. R. B., 274 F.2d 564, 566 (C.A.D.C.,
1959); the court stated:
Congress was aware of the potential conflict between
the obligations of foremen as representatives of their
employers, on the one hand, and as union members on
the other. Section 2(3) evidences its intent to make the
obligations to the employer paramount. That provi-
sion excepts foremen from the protection of the Act.
Its purpose was to give the employer a free hand to
discharge foremen as a means of ensuring their undi-
vided loyalty, in spite of any union obligations. See H.
Rep. No. 245, 80th Cong., 1st Sess. 14-17 (1947); S.
Rep. No. 105, 80th Cong., 1st Sess. 3-5 (1947); L.A.
Young Spring & Wire Corp. v. N.L.R.B., 163 F.2d 905
(C.A.D.C.), certiorari denied, 1948, 333 U.S. 837.
As the Board reasoned in San Francisco-Oakland Mail-
ers' Union No. 18, International -Typographical Union, 172
NLRB 2173 (1968):
In enacting Section 8(b)(1)(B) Congress sought to pre-
vent the very evil involved herein-union interference
with an employer's control over its own representa-
tives. That [the union] may have sought the substitu-
tion of attitudes rather than persons, and may have
exerted its pressure upon the [employer] by indirect
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rather than direct means , cannot alter the ultimate
fact that pressure was exerted here for the purpose of
interfering with the [employer's] control over its repre-
sentatives . Realistically , the employer would have to
replace its foremen or face de facto nonrepresentation
by them.... The purpose and effect of [the union's]
conduct literally and directly contravened the statuto-
ry policy of allowing the employer an unimpeded
choice of representatives for collective bargaining and
the settlement of grievances.
In the course of the Senate 's consideration of Section
8(b)(1)(B), the following was stated:
[Q]uite a few unions forced employers to change fore-
men. They have been taking it upon themselves to say
that management should not appoint any representa-
tive who is too strict with the membership of the
Union. This amendment seeks to prescribe a remedy
in order to prevent such interferences.8
In the instant case , however, the circumstances differ
from the orthodox situation where the union coerces the
employer to change his representative whom he had select-
ed to adjust grievances , because the union believes the rep-
resentative to be too strict with the union employees. Hill,
the lone employee at the plant represented by the Operat-
ing Engineers , was in a strategically pivotal position with
respect to all the other employees who belonged to the
Teamsters Union, as he virtually ran the Visalia plant.
Moreover in the context of the Engineers and Teamsters
November 18, "Memorandum of Agreement," whereby the
Teamsters agreed to waive its rights and jurisdiction with
respect to "the Loader or Batch plant ," jobs, it is not too
unreasonable to assume that the quid pro quo for this en-
tente cordiale was a tacit understanding that the employees,
all of whom were Teamsters members , would have a super-
visor not unfriendly to them. Lending validity to this as-
sumption is the San Francisco-Oakland Mailers' Union
case, supra , where it was found that the union violated Sec-
tion 8(b)(1XB) by fining the employer's foremen who were
union members , for not appearing before its executive
committee. The Board found they were fined because the
union's purpose was designed to change the employer's
foremen representatives from persons representing man-
agement viewpoint to persons responsive or subservient to
the union's will.
When the Respondent 's union officials threatened to
picket the plant unless Hill was reinstated this conduct re-
strained and coerced the Company in its inalienable right
to no longer retain Hill, a supervisor within the meaning of
Section 2(11) of the Act, and thereby violated Section
8(b)(1)(B) of the Act.
It is not an essential element of an 8(b )( 1)(B) violation
that an employer have an existing bargaining obligation or
collective-bargaining agreement . Although experience has
shown that it is generally in such circumstances that a
union commits this statutory offense , nothing in the legisla-
7 Accord • New Mexico District Council of Carpenters and Joiners of Ameri-
ca (A S. Horner, Inc), 177 NLRB 500 (1969).
B See San Francisco-Oakland Mailers, 172 NLRB 2173 (1968), In. 4: 93
Cong. Rec. 4266.
tive history of this section suggests that an employer is
protected only if his supervisors are adjusting grievances
which arise under a collective -bargaining agreement. For
example , in Portland Stereotypers Union No. 48, 137 NLRB
782, 787 (1962), where the situation concerned a union's
insistence to impasse in negotiations with the employer on
the inclusion of a contract clause requiring foremen to be
union members , was held to violate Section 8(b)(1)(B). This
section of the Act, held the Board, "rests on coercion of the
[employers] in their choice of a bargaining representative,
because of the union 's insistence that the foremen who
concededly handled grievances , be a member of the union.
In Haverhill Gazette [365 U.S. 705, 1961], the Supreme
Court was equally divided on whether a strike for such an
object was violative of Section 8(b)(1)(B), thus leaving in
effect the decision of the Court of Appeals [278 F.2d 6
(C.A. 1, 1960)] that it was, with which the Board agrees. An
employer must be free of pressure in choosing his represen-
tative for collective bargaining. [Footnote omitted]. We
therefore find that by insisting upon and striking for this
clause the Respondents violated Section 8(b)(1)(B)."
Thus, Respondent Union's threatening to picket the Vi-
salia plant unless Hill was reinstated to his former position
whose duties included adjusting union grievances , violated
Section 8(b)(1)(B). This finding is premised on Hill having
been the Company's "representative for the purposes of
collective bargaining or the adjustment of grievances"
within the meaning of Section 8(b)(1)(B) of the Act. When
the various functions and duties that Hill was authorized
by the Company to perform are considered and which are
detailed above, it is clear that he was a supervisor and
therefore, subject to termination at the will of his employer.
Under such circumstances, the threat of the Respondent
Union to picket the Visalia plant unless he was reinstated,
violated Section 8(b)(1)(B).
The law is clear that a supervisor is not entitled to the
protection afforded employees under the Act .9 Hill was a
supervisor within the meaning of Section 2(11) of the Act.
He was in charge of purchasing materials for the plant and
dispatching the truckdrivers to construction sites to deliver
the concrete. He responsibly directed the work of the em-
ployees, and reprimanded them and designated the jobs to
be done, assigned work, gave employees time off from
work, audited the employees' timecards and recommended
their hiring and firing. He was in complete charge of the
plant. All orders in the operation of the plant on a day-to-
day basis originated with him except in those situations
where George relayed orders to employees through Hill. In
connection with him being shifted from general manager to
assistant general manager , and vice versa , it is pertinent to
note that it is the exercise of supervisory duties and not the
title a person holds that is controlling, especially so in the
circumstances here present, where Hill's duties constituted
more than routine direction of subordinates. He had the
attributes of a representative of management and was re-
garded as such by union officials with whom he adjusted
grievances and also by customers whose complaints he
handled. The record, considered as a whole, points indis-
L.A Young Spring & Wire Corporation v. N L.R B , 163 F.2d 905
(C.A D C. 1947), cert . denied 333 U.S. 837 (1947)
OPERATING ENGINEERS , LOCAL NO. 3
putably to the conclusion that Hill was "directly responsi-
ble for the performance" of the Visalia plant and that "he
had power commensurate with his responsibility." 10 "Per-
sons who are supervisors within the meaning of the Act are
employer representatives within the meaning of Section
8(b)(1)(B)•" 1
This conclusion is confirmed by the purpose of Section
8(b)(1)(B) which was clearly designed to prevent unions
from restricting management 's free choice as.to whether it
wishes to either dispense with its present representative or
insist that he continue as its representative for the adjust-
ment of grievances. When the Respondent Union infringed
on that statutory right by demanding, under threat of pick-
eting, that the Company reemploy Hill, it thereby commit-
ted an unfair labor practice. It would seem that this is pe-
culiarly the sort of conduct which Section 8(b)(1)(B) was
intended to prohibit, regardless of whether the Union's ob-
ject was to coerce the employer to discharge or retain its
representative for the purposes of collective bargaining or
the adjustment of grievances. Under the Act, each party to
a collective -bargaining agreement , as in this proceeding,
has a right to choose its representative and there is a correl-
ative duty on the opposite party to honor that right of the
other.12 To hold otherwise would be tantamount to con-
doning the Respondent's attempt to dictate who shall rep-
resent the Company in the settlement of employees' griev-
ances . The law is otherwise. Accordingly, the Respondent,
Local 3 of the Operating Engineers, violated Section
8(b)(1)(B) of the Act when it restrained and coerced John
George, President of Redi-Mix Products. Inc., d/b/a Visa-
lia Redi-Mix in his decision to terminate Leonard Hill, a
supervisor within the meaning of Section 2(11) of the Act,
by threatening to picket the plant unless George rescinded
his decision and reinstated Hill.
II. THE REMEDY
Respondent , having been found to have engaged in un-
fair labor practices prohibited by Section 8(b)(1)(B) of the
Act, should be required to cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
10 N.L.R.B. v. Fullerton Publishing Company d/b/a Daily News Tribune,
283 F.2d 545, 550-551 (C.A. 9, 1960).
11 Carpenters & Joiners Union, Local 14, 217 NLRB No. 11 (1975); Operat-
ing Engineers, Local No. 501 (Anheuser Busch, Inc.), 199 NLRB 551 (1972),
Rochester Musicians, Local 66, 207 NLRB 647 (1973).
12 See N L.R.B. v. International Ladies Garment Workers Union, AFL-
CIO, et at [Slate Belt Apparel Contractors Assn.], 274 F.2d 376 (C.A. 3,
1960)
537
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, there is hereby
issued the following recommended:
ORDER 13
Respondent, Operating Engineers, Local Union No. 3 of
the International Union of Operating Engineers, AFL-
CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Picketing or threatening to strike the premises of Vi-
salia Redi-Mix in order to restrain or coerce said Company
in the selection and/or retention of its representatives for
the purpose of collective bargaining or the adjustment of
grievances.
(b) In any manner restraining or coercing Redi-Mix
Products, Inc., d/b/a Visalia Redi-Mix, its successors or
assigns, in the selection of its representatives for the pur-
poses of collective bargaining or the adjustment of griev-
ances.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at all said Respondent's union business offices
and meeting halls and all other places where notices to
members are customarily posted, copies of the attached
notice marked "Appendix." 14 Copies of said notice on
forms provided by the Regional Director for Region 20,
after being duly signed by Claude Odom, District 5 repre-
sentative, shall be posted by Respondent Union immedi-
ately upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members of Respondent are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
13 In the event no exceptions are filed as provided by 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 , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."