Plumbers Local 60 (Itmc Corp)

National Labor Relations Board - Board Decisions

Aug 10, 1990

299 N.L.R.B. 401 (N.L.R.B. 1990)

PLUMBERS LOCAL 60 (ITMC CORP ) 401
Local Union No. 60, United Association of Journey-
men and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and
Canada, AFL-CIO and ITMC Corp. Case 15-
CB-3354
August 10,, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 23, 1988, Administrative Law Judge
William N Cates issued the attached decision The
Respondent filed exceptions and a supporting
brief, 1 and the General Counsel filed limited excep-
tions and a supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order
The judge found that the Respondent violated
Section 8(b)(1)(B) of the Act by preferring charges
against, expelling from membership, and fining
Donald R Bennett, Henry Duchmann, and John C
Heard in order to restrain their employer, ITMC
Corp. in the selection of its representatives for the
purpose of collective bargaining or the adjustment
of grievances For the reasons set forth below, we
adopt the judge's findings of violations regarding
the Union's conduct in disciplining Bennett and
Heard With respect to Duchmann, however, we
reverse the judge and find that he was not a repre-
sentative for the purpose of collective bargaining
or the adjustment of grievances within the meaning
of Section 8(b)(1)(B) Accordingly, we find below
that the discipline the Union imposed on Duch-
mann did not violate the Act
1 The evidence concerning Bennett's and
Heard's 8(b)(1)(B) status shows that both worked
as site superintendents for the Employer on differ-
ent construction projects In this capacity, they
were the Employer's senior officials at their respec-
tive worksites, exercised the authority to hire, fire,
lay off, and discipline employees, determined the
need for and selected employees to work overtime,
and regularly adjusted employee complaints about,
inter aim payroll matters Although the complaints
Bennett and Heard resolved were not technically
contractual grievances, this was only because in the
Employer's nonunion operations there was no col-
' The Respondent thereafter submitted two letters citing recently
issued Board decisions
lective-bargaining agreement covering the employ-
ees they supervised Critically, disputes over pay-
roll matters are exactly the types of disputes that
would most likely be contractual grievances if
there was a collective-bargaining agreement in ex-
istence 2 In these circumstances, we affirm the
judge's findings that Bennett and Heard as the Em-
ployer's site superintendents were 8(b)(1)(B) repre-
sentatives for the adjustment of employees' griev-
ances 3
In addition to the above showing, the Supreme
Court in Electrical Workers Local 3404 also re-
quired evidence that a union sought to establish a
collective-bargaining relationship at that time with
the supervisor-member's employer to support a
finding that the union had coerced the employer in
the selection of its 8(b)(1)(B) representatives by dis-
cipline taken against the supervisor-member Here,
before the picketing commenced at the jobsites
where Bennett and Heard worked, the Respondent
unsuccessfully attempted to organize the employees
and also made repeated demands, which the Em-
ployer rejected, that the Employer execute a con-
tract with it Further, the Respondent, as the judge
found, continued to seek recognition from the Em-
ployer after the picketing began Although the Re-
spondent subsequently ceased picketmg and in-
formed the Regional Office in wntmg that it dis-
claimed any interest m representing the Employer's
employees, we agree with the judge that the dis-
claimer came too late to nullify a finding that the
Respondent had a recognitional objective here In
so concluding, we stress that before the Respond-
ent made its disclaimer it had filed internal union
charges against Bennett and Heard for refusing to
honor its picket lines and had tried them for engag-
ing in this alleged misconduct 5 Thus, we find that
the Respondent was presently seeking recognition
from the Employer at the time that it commenced
disciplinary action against Bennett and Heard 6
2 See Operating Engineers Local 101 (St Louis Bridge), 297 NLRB 485
(1989) In these circumstances, we find it unnecessary to rely on the
judge's finding to the extent It can be read to indicate that the adjustment
of any personal complaints would qualify the adjuster as an 8(bX1)(B)
grievance adjuster
'Based on our finding that Bennett and Heard were 8(b)(1)(B) griev-
ance adjusters, we find it unnecessary to pass on the judge's further find-
ings that they also served as collective-bargaining representatives for the
Employer
4 NLRB v Electrical Workers IBEW Local 340, 481 US 573, 589-590
(1987)
6 The judge erroneously found that the Respondent's imposition of dis-
cipline on Bennett and Heard also preceded its disclaimer here Although
it is clear that both the Union's decision to fine and expel these supervi-
sor-members and the International Union's subsequent approval of this
discipline occurred after the Respondent submitted the disclaimer, we
agree with the judge that the coercive effect of the Respondent's action
against Bennett and Heard had already been effectuated by this time
6 For this reason, we find that the present situation is distinguishable
from the decision in Plumbers Local 198 (Delta Mechanical), 292 NLRB
Continued
299 NLRB No 54
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, we agree with the judge that the Re-
spondent's conduct in fining and expelling these su-
pervisor-members for working behind its picket
line and thus failing to support its recognitional de-
mands was unlawful. In Electrical Workers, above,
the Supreme Court reiterated its holding in Ameri-
can Broadcasting7 that a union violated Section
8(b)(1)(B) by disciplining supervisors who crossed
a picket line during a strike to perform only their
regular supervisory duties, including the adjust-
ment of grievances. There is no evidence in this
case that Bennett or Heard performed "more than
[a] minimal amount of rank-and-file work" after the
picketing began. 8 Further, it is clear that during
this period Bennett and Heard continued to super-
vise hourly employees in the same manner that
they had before the picketing started. Because the
Respondent has fined Bennett and Heard for cross-
ing its picket line to perform only their regular su-
pervisory and grievance duties, we conclude that
the Respondent's discipline of these supervisor-
members would tend to have an adverse effect on
their future performance as grievance adjusters
and, therefore, would unlawfully coerce their em-
ployer in violation of Section 8(b)(1)(B) of the
Act.8
2. Regarding Duchmann's status as an 8(b)(1)(B)
representative, the evidence shows that he worked
as an estimator for the Employer preparing bids,
executing contracts on the Employer's behalf rang-
ing from a few dollars to $700,000, and coordinat-
ing work with various subcontractors whom the
Employer utilizes.' ° Duchmann, who has hired
806 (1989), in which the Board found that the respondent union had
abandoned its recogmitional efforts before the time of the alleged unfair
labor practices. This case is also distinguishable from Carpenters District
Council of Dayton (Concourse Construction), 296 NLRB 402 (1989), in
which the Board found insufficient evidence to establish that the union
was presently seeking recognition because the union did nothing more
than picket with signs stating that the employer had no contract with it.
In this case, by contrast, the Respondent's picketing was accompanied by
explicit demands for recognition which it repeatedly made.
7 American Broadcasting i Writers Guild, 437 U.S. 411 (1978).
Columbia Typographical Union 101 (Washington Post), 242 NLRB
1079, 1080 (1979). Indeed, there is no evidence that Heard performed any
bargaining unit work at that time. Although Bennett testified that on one
occasion he did about 30 minutes of unit work when he thought that an
employee's safety was at stake, this is insufficient to warrant a finding
that Bennett performed "a more than minimal amount of rank-and-file
work" under the standard set forth in Columbia Typographical Union 101.
9 In this regard, we find merit in the General Counsel's exception to
the judge's failure to include as part of his recommended remedy and
Order provisions requiring the Respondent to withdraw its petition filed
with the International Union's general executive board for approval of
the Respondent's disciplinary actions against Bennett and Heard, and to
request the International Union to rescind its approval of the Respond-
ent's discipline of them and to remove all references from its records per-
taining to such discipline. Accordingly, we shall include provisions in our
remedy and Order directing the Respondent to take this affirmative
action.
10 Duchmann and another estimator worked under the vice president
of estimating.
employees on projects for which he is responsible,
testified that he does not have any grievance ad-
justment duties for the Employer.
On the day the Respondent began picketing the
Employer, Duchmann was present at the Tenneco
Oil Refinery jobsite for a walk through and a meet-
ing with Project Superintendent Bennett on matters
unrelated to the Union's picketing. Bennett and the
rank-and-file employees did not immediately enter
the refinery area to perform their jobs. Instead,
they gathered at a restaurant across the street from
the jobsite where Duchmann met with Bennett.
The Union's International organizer Phil Miller,
and its business manager, Bunny Jaeger, were also
present in the restaurant that morning. When
Duchmann saw the union officials, he asked them
what was going on and how long the picketing
would last. Miller replied more than once that the
Respondent would continue its job action until the
Employer signed a collective-bargaining agree-
ment. Duchmann and Miller then engaged in an ar-
gument about whether the Respondent in some
cases had agreed to contracts which provided for
wage rates lower than those in its standard area
contract. When Ian Foster, who was then the Em-
ployer's vice president of construction, arrived at
the jobsite, he told Duchmann and Bennett that he
wanted to meet with the rank-and-file employees in
the Employer's offices at the jobsite. Miller then
informed Duchmann that the Respondent wanted
to be present and represent the employees at any
such meeting conducted by the Employer. Duch-
mann replied that the union officials would not be
welcome at this meeting because of their conduct
during an earlier meeting at the Employer's offices.
A majority of the affected employees subsequently
attended the Employer's meeting even though the
Respondent's officials were not present.
Thereafter, and subsequent to the institution of
the Respondent's disciplinary proceedings against
him, Duchmann was one of six management offi-
cials" who attended a meeting the Employer held
about the Respondent's bargaining demands. After
discussion of the "pluses and minuses" of the Re-
spondent's demands during which each participant
stated his opinion of whether the Employer should
sign the contract, these managers, including Duch-
mann, voted unanimously to remain nonunion."
All the managers' votes at the meeting carried
equal weight. The Employer then informed the Re-
spondent about this decision.
"The others were the Employer's president, vice president of sales,
vice president and secretary-treasurer, vice president of estimating, and
vice president of construction.
12 For some reason, the vice president of sales did not vote.
PLUMBERS LOCAL 60 (ITMC CORP ) 403
Although acknowledging that Duchmann's par-
ticipation in collective bargaining "was somewhat
minimal," the judge found that it was nonetheless
sufficient to establish that he acted as the Employ-
er's representative for the purpose of collective
bargaining within the meaning of Section
8(b)(1)(B) The judge concluded, without support-
ing case citation, that "[o]ne only needs to state a
position with an eye toward reaching an agreement
or resolving a dispute in order to be found to be
engaging in collective bargaining" and that Duch-
mann fit that descnption He concluded so, based
on the evidence of Duchmann's discussion with
Jaeger and Miller when the picketing commenced
and his participation in the management vote to
reject the Respondent's contract demands
Contrary to the judge, we do not find that there
is sufficient evidence here to support a finding
under Section 8(b)(1)(B) that Duchmann served as
a collective-bargaining representative for 8(b)(1)(B)
purposes In this regard, we stress that Duchmann's
meeting at the restaurant with the two union offi-
cials appears to have been simply happenstance and
amounted to nothing more than a discussion among
them about the picketing, which clearly was a
matter of mutual interest, rather than any kind of
collective-bargaining negotiations Similarly, the
ensuing argument between Duchmann and Union
Representative Miller and Duchmann's rejection of
the Union's request that it be present when the
Employer met with its employees do not establish
that Duchmann was a collective-bargaining repre-
sentative for the Employer Thus, we find that the
judge's reliance on this chance meeting to establish
Duchmann's 8(b)(1)(B) status was misplaced We
are left then only with Duchmann's participation in
the management meeting at which the Respond-
ent's bargaining demands were discussed Although
the judge, in finding that Duchmann was an
8(b)(1)(B) representative for the Employer, relied
on evidence showing Duchmann's participation in
the management decision to reject the Respond-
ent's contract demands, we do not consider wheth-
er this activity was sufficient to demonstrate Duch-
mann's alleged 8(b)(1)(B) authority because the
management vote, the sole possible evidence of the
existence of such authority, only occurred after the
Respondent had commenced its disciplinary pro-
ceedings against Duchmann The record is void of
any such alleged authority as being demonstrated
prior to the institution of those proceedings In
such circumstances, we do not agree with the
judge that the General Counsel has demonstrated
here that Duchmann possessed 8(b)(1)(B) status
Accordingly, we find that the Respondent did not
violate the Act by disciplining Duchmann and we
shall dismiss this allegation of the complaint
CONCLUSIONS OF LAW
1 ITMC is an employer engaged in commerce
and is a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Nation-
al Labor Relations Act
2 Local Union No 60, United Association of
Journeymen and Apprentices of the Plumbing and
Pipefittmg Industry of the United States and
Canada, AFL-CIO is a labor organization within
the meanmg of Section 2(5) of the Act
3 Donald R Bennett and John C Heard were at
all times matenal here employer representatives of
ITMC Corp within the meaning of Section
8(b)(1)(B) of the Act
4 By preferring charges against Donald R Ben-
nett and John C Heard, by imposing a fine of
$2000 against them, and by expelling them from
membership, the Respondent Union has restrained
and coerced ITMC Corp in the selection of its
representatives for the purposes of collective bar-
gaining or the adjustment of grievances and there-
by has engaged in unfair labor practices within the
meaning of Section 8(b)(1)(B) of the Act
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act Specifically, we shall order that the Respond-
ent rescind and remove from its records all discipli-
nary action brought against Donald R Bennett and
John C Heard, including refunding any fines they
may have paid to the Respondent, and notify them
in writing that this has been done
We shall also order that the Respondent with-
draw its petition filed with the International
Union's general executive board for approval of
the Respondent's disciplinary actions against Ben-
nett and Heard, and request the International
Union to rescind its approval of the Respondent's
discipline of these members and to remove all ref-
erences to such discipline from its records
ORDER
Local Union No 60, United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipefittmg Industry of the United States and
Canada, AFL-CIO, its officers, agents, and repre-
sentatives, shall
1 Cease and desist from
(a) Restraining or coercing ITMC Corp in the
selection of its representatives for the purposes of
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
collective bargaining or the adjustment of griev-
ances by preferring charges against, conducting
trials, fining, expelling, or otherwise disciplining
Donald R Bennett and John C Heard in an effort
to obtain a collective-bargaining agreement from
ITMC Corp
(b) In any like or related manner restraining or
coercing ITMC Corp in the selection of its repre-
sentatives for the purposes of collective bargaining
or the adjustment of grievances
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Rescind and remove from its records all dis-
ciplinary action taken against Donald R Bennett
and John C Heard, including refunding any fines
they may have paid to the Respondent, because of
their working as employer representatives for
ITMC Corp, and notify them in wntmg that this
has been done
(b) Withdraw its petition filed with the Interna-
tional Union's general executive board for approval
of the Respondent's disciplinary actions against
Bennett and Heard, and request the International
Union to rescind its approval of the Respondent's
discipline of them and to remove all references to
such discipline from its records
(c) Post at the Respondent's offices copies of the
attached notice marked "Appendix " 13 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 15, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(d) Sign and return to the Regional Director for
Region 15 sufficient copies of the notice for post-
ing by ITMC Corp, if willing, in places where no-
tices to employees are customarily posted
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations not found
here
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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"
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT restrain or coerce ITMC Corp in
the selection of its representatives for the purposes
of collective bargaining or the adjustment of griev-
ances by preferring charges, conducting tnals,
fining, expelling, or otherwise disciplining Donald
R Bennett and John C Heard in an effort to
obtain a collective-bargaining agreement from
ITMC Corp
WE WILL NOT in any like or related manner re-
strain or coerce ITMC Corp in the selection of its
representatives for the purposes of collective bar-
gaining or the adjustment of grievances
WE WILL rescind and remove from our records
all disciplinary actions taken against Donald R
Bennett and John C Heard, including refunding
any fines they may have paid to the Respondent,
because of their working as employer representa-
tives for ITMC Corp, and notify them in writing
that this has been done
WE WILL withdraw our petition with the Inter-
national Union's general executive board for ap-
proval of our disciplinary action against Bennett
and Heard, and request the International Union to
rescind its approval of our discipline of them and
to remove all references to such discipline from its
records
LOCAL UNION NO 60, UNITED ASSO-
CIATION OF JOURNEYMEN AND AP-
PRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-
CLO
Clement J Kentungton, Esq , for the General Counsel
Jerry L Gardner Jr, Esq and William Lurye, Esg , of
Metairie, Louisiana, for the Union
DECISION
STATEMENT OF THE CASE
WILLAM N CATES, Administrative Law Judge This
case was heard at New Orleans, Louisiana, on 21 and 22
March 1988 The case arose when ITMC Corp (ITMC)
filed an unfair labor practice charge against Local Union
No 60, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the U S
PLUMBERS LOCAL 60 (ITMC CORP ) 405
and Canada, AFL-CIO (Local 60), on 23 July 1987
The Regional Director for Region 15 investigated the
charge and thereafter on 27 November issued a com-
plaint and notice of hearing (complaint) alleging that
Local 60 had committed certain violations of the Nation-
al Labor Relations Act (the Act) The complaint alleges
that Local 60 violated Section 8(b)(1)(B) of the Act by
expelling from membership and fining John C Heard
(Heard), Donald R Bennett (Bennett), and Henry Duch-
mann (Duchmann) in order to restrain and coerce their
employer, ITMC, in the selection of its representatives
for the purposes of collective bargaining or the adjust-
ment of grievances Local 60 filed an answer to the com-
plaint in which it admitted certain allegations therein but
denied the commission of any unfair labor practices
All parties were afforded full opportunity to examine
and cross-examine witnesses, to argue orally, and to
submit briefs Briefs which have been carefully consid-
ered, were submitted by counsel for the General Counsel
and Local 60
Based on the entire record, including my observation
of the demeanor of the witnesses, I conclude below, after
examining the relevant evidence and applicable legal
principles, that Local 60 violated the Act substantially as
alleged in the complaint
FINDINGS OF FACT
I JURISDICTION
ITMC is a Louisiana corporation engaged in the fabn-
cation and installation of structural steel, pipe, vessels,
and related equipment at various industrial sites in the
State of Louisiana During the past calendar year, a rep-
resentative period, ITMC purchased and received goods
and materials valued in excess of $50,000 directly from
points located outside the State of Louisiana The com-
plaint alleges, the parties admit, and I find ITMC is, and
at all times material has been, an employer engaged in a
business affectmg commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act
II LABOR ORGANIZATION
Local 60 is a labor organization within the meaning of
Section 2(5) of the Act
in THE ALLEGED UNFAIR LABOR PRACTICES
The issues as framed by the complaint, answer, and
litigation may be generally summarized for discussion
purposes as follows
(1) Whether, at times material herein, Bennett,
Duchmann, and Heard were supervisors and repre-
sentatives of ITMC within the meaning of Section
2(11) and 8(b)(1)(B) of the Act
(2) Whether Bennett, Duchmann, and Heard per-
formed 8(b)(1)(B) duties for ITMC after crossing a
picket line established by Local 60 at ITMC's job
sites from approximately the end of June until the
end of July
'All dates are in 1987 unless otherwise indicated
(3) Whether, at material times herein, Local 60
had or sought to have a collective bargaining rela-
tionship with ITMC
(4) Whether Local 60 coerced ITMC within the
meaning of 8(b)(1)(B) when it brought charges
against Bennett, Duchmann, and Heard and thereaf-
ter tried, fined, and expelled them from its member-
ship
A Background and Contacts Between ITMC and
Local 60
Generally speaking, there does not appear to be any
great dispute about the history and background of the re-
lationship between ITMC and Local 60 There are some
disputes with respect to what was said or took place at
some of the meetings between ITMC and Local 60 I
have set forth the following credited or undisputed facts
in for the most part chronological order I have at some
places set forth my rationale for crediting one witness
over another This is merely to reenforce, not discount,
perceptions gained through my observation of the wit-
nesses as they testified Although the facts set forth are
not all inclusive, all evidence and arguments of counsels
about the evidence have been weighed and considered
To the extent that any testimony or other evidence not
mentioned in this decision may appear to contradict my
findings of fact, I have not disregarded that evidence but
have rejected it as incredible, lacking in probative
weight, surplusage, or irrelevant
ITMC, which is headquartered in Kenner, Louisiana,
was established in August and mcorporated in October
1986 2 Vice President of Construction Foster testified
ITMC was established to operate as a nonunion company
and never at any time after its inception executed any
collective-bargaining agreement with any union
It appears a number of the employees initially hired by
ITMC had previously worked for Gaffney Company, a
union contractor that had an agreement with Local 60 3
Local 60 encouraged its members at a membership meet-
ing in early 19874 to accept employment with ITMC
the hope it could successfully organize ITMC's employ-
ees and obtain a collective-bargaining agreement with
ITMC Bennett was among those in attendance at that
meeting Thereafter (30 March), Bennett executed a
Local 60 form that reflected he was working for ITMC
at the request and under the direction of its business
manager for "organizing purposes only"
Local 60 began its organizational efforts at ITMC
approximately mid-March Local 60 Vice President and
International Organizer Miller had difficulty at that time
2 At all times material, the officials of ITMC were President Trudy
Abrahmson (Abrahmson), Vice President and Secretary-Treasurer Jerry
Deem'. (Decuir), Vice President of Sales David Gaffney (D Gaffney),
Vice President of Estimating Tommy Casamento (Casamento), and Vice
President of Construction Ian Foster (Foster)
3 At the time ITMC was formed, Gaffney Company was no longer in
business
4 Local 60 President and Business Agent Charles Mouledous (Moule-
dons), Local 60 Vice President and International Organizer Philip A
Miller (Miller), Local 60 Vice President and Business Manager Robert
Jaeger (Jaeger), and Local 60 Business Agent Tommy Dominick (Domin-
ick) were present at the meeting
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
obtaining signed authorization cards from ITMC's em-
ployees Therefore, Local 60 Vice President and Busi-
ness Manager Jaeger telephoned Bennett and asked him
if he would be willing to take cards to his jobsite for
Miller Bennett thereafter met with Miller and Miller
gave him signature cards which he took to the jobsite
where he worked Miller agreed to pick up any signed
cards from Bennett the following day Miller did not do
so but told Bennett approximately 2 weeks later he had
not done so because he "did not think it was really that
important"
Local 60 Vice President and Business Manager Jaeger
met Vice President of Construction Foster at Vice Presi-
dent of Sales D Gaffney's home in early March Robert
Gaffney (R Gaffney), who had arranged the meeting,
was also present It was the first occasion for Foster and
Jaeger to meet Jaeger stated Local 60 had always had a
good working relationship with the Gaffney Company
and he would like to see that relationship continue with
ITMC Specifically, Jaeger wanted ITMC to sign an
agreement with Local 60 R Gaffney told Jaeger he
would have to direct his comments to Foster because R
Gaffney was not a corporate member of ITMC Foster
expressed concern about signing an agreement with
Local 60 because a number of the contractors in the area
that ITMC performed work in would not offer bids to
union contractors The meeting concluded with Jaeger
asking Foster to "think seriously" about signing an
agreement with Local 60
Thereafter, Jaeger requested another meeting with
Foster The two met on 13 March at Taylor's Restaurant
in Metairie, Louisiana Foster again told Jaeger he was
concerned about signing a "unilateral" contract with
Local 60 because ITMC would stand to lose work from
clients that would not utilize union contractors, howev-
er, he suggested ITMC might be amenable to signing a
"project agreement" with Local 60 5 Jaeger and Foster
both agreed they did not know if such an understanding
could be worked out and both wanted to seek legal
counsel on Foster's "project agreement" proposal Jaeger
asked Foster to allow him to speak with his attorney first
and get back with Foster because Jaeger feared Foster's
counsel might be biased against any type agreement be-
tween ITMC and Local 60 The meeting ended in that
manner
According to Foster, Jaeger never got back with him
on his proposal regarding a "project agreement" with
Local 60
Foster testified Local 60's next contact with ITMC
came about 2 weeks after his and Jaeger's 13 March
meeting At that time Jaeger and Local 60 Vice Presi-
dent and International Organizer Miller visited ITMC's
offices in Kenner, Louisiana, and according to Foster's
uncontradicted testimony
5 Foster defines "unilateral" and "project" agreements somewhat dif-
ferently than does the labor community or those in the construction in-
dustry Foster considers a "unilateral" agreement to be a full scale collec-
tive-bargaining agreement whereas he defines a "project" agreement as
one in which ITMC would subcontract to one of its supenntendents the
work at a particular jobsite and the site superintendent involved would
then execute an agreement for that work with Local 60 Foster hoped in
that manner to be able to work both as a union and nonunion contractor
Jaeger was intoxicated and they proceeded to
throw the telephone on the floor, throw things
around the plant on the floor for whatever reason, I
don't know So I guess that was kind of a response
as to how they felt the proceedings were going
Foster credibly testified Bennett and Heard reported
to him in either April or May that Local 60 was attempt-
ing at the two worksites involved herein to sign ITMC's
employees up with Local 60 Heard also told Foster he
had some contact with Local 60 Vice President and
International Organizer Miller Foster told Heard to
"find out what Miller want[ed]" but not to make any
agreement with him
Dunng the first week in June, Heard met with Local
60 Vice President and International Organizer Miller
dunng lunch at the Myrtle Grove Inn in Myrtle Grove,
Louisiana 6 Heard and Miller already knew each other
through their association with Local 60 Miller asked
Heard what type of job ITMC was doing at the Missis-
sippi River Alcohol construction site Heard explained
that the piping work on the job only amounted to ap-
proximately 5 percent of the total job and would not
come until near the end of the project Miller asked
Heard if ITMC would be willing to sign a collective-bar-
gaining agreement with Local 60 Heard left the matter
open by not responding one way or the other to Miller's
request
Two days later, Miller again met with Heard around
noon at the same location Miller asked Heard if it would
be possible for Heard to pass out authorization cards for
Local 60 Heard told Miller he was a superintendent and
could not do that Miller then asked Heard if it would be
possible for him to talk to someone within ITMC's man-
agement Heard told Miller he could talk with him and
asked Miller what he had to offer and told him it was
probably open for discussion Miller told Heard he had
Local 60's standard contract to offer which, included a
wage scale of $1240 per hour Heard told Miller he
would set up a meeting between him and Vice President
of Construction Foster and that Heard could not solely
answer Miller because he did not own the Company
Miller told Heard he wanted to meet with Foster with-
out Local 60 Vice President and Business Manager
Jaeger being involved
Miller met Heard for a third time a day or so later at
the same location as their first two meetings The two of
them discussed Miller's contract proposals Heard had al-
ready alerted Foster of Miller's desire to meet with him
Therefore Heard gave Miller Foster's home, business,
and automobile telephone numbers and told him Foster
would be "more than glad" to meet with him That
ended their meeting
Foster met with Miller alone 7 (probably in June) at
Ruth Chris' Steakhouse in Metaine, Louisiana Foster
6 Heard stated the meeting had been prearranged by two boilermakers,
namely, Hughey Spencer and Harry Payne Heard said he did not know
when he first met with Miller that their meeting had been prearranged
7 Foster testified Heard had told him the meeting would be with Miller
alone and Jaeger would not be Involved Heard testified he was unable to
attend the Miller/Foster meeting because of his work schedule and com-
mitments
PLUMBERS LOCAL 60 (ITMC CORP ) 407
credibly and without contradiction testified the first
thing they talked about was Jaeger's and Miller's con-
duct at ITMC's offices back in March 8 Foster told
Miller he had "a hell of a problem getting involved in
any kind of agreement with people that react[ed] in the
manner that they reacted especially when [they] were in
the middle of negotiation[s] " Foster warned Miller
he was "very concerned in even discussing any kind of
agreement unless they conducted themselves in a more
businesslike manner" Miller told Foster he was not ex-
cusing Jaeger's conduct at ITMC's offices but added
Jaeger was frustrated at the time Foster testified he and
Miller then began to discuss what was needed and/or re-
quired in order for them to arrive at a collective-bargain-
ing agreement Foster again stated his reason for not
wanting a "unilateral" (standard) agreement with Local
60 but did offer to execute a "project" type agreement
for certain work at the Tenneco Oil Refinery site in
Chalmette, Louisiana Miller suggested a $1246 per hour
wage rate while Foster suggested an $11 50 per hour
rate Miller told Foster he would take their discussions
back to Local 60's membership and get back with Foster
Miller did not thereafter directly respond to Foster's
proposals
On or about 26 June, Foster heard rumors at ITMC's
two jobsites involved here that Local 60 was planning
on establishing picket lines at both of ITMC's worksites
On that date he telephoned Miller at Local 60's offices
and asked him why he had not responded to his proposal
on a "project" agreement and if Local 60 was going to
establish picket lines at ITMC's jobsites Miller told
Foster that with respect to his proposal, Local 60 could
not move away from a payscale of $12 46 per hour
Foster told Miller that if Local 60 established picket lines
at any of ITMC's jobsites he would take such actions to
be a categorical "no" to all of ITMC's contract propos-
als That ended their conversation
The Union picketed ITMC's Tenneco Oil Refinery
and Mississippi River Alcohol construction sites from ap-
proximately 30 June until approximately 29 July 9
When Local 60 started picketing at the Tenneco Oil
Refinery site, Bennett and the other ITMC employees
did not immediately go inside the refinery area to their
jobs Estimator Duchmann was present at the Tenneco
Oil Refinery site that morning for a meeting with Super-
intendent Bennett 10 He met with Bennett at Rocky and
Carlo's Restaurant across the street from the Tenneco
Oil Refinery Bennett and ITMC's other employees had
gathered at that restaurant Local 60 Vice President and
Business Manager Jaeger and Local 60 Vice President
and International Organizer Miller were also present at
the restaurant that morning " Duchmann talked to
8 The conduct referred to is set forth earlier in this decision
9 Although Foster was not certain of the exact wording on signs uti-
lized by Local 60, his best recollection was that the signs read "ITMC
unfair to Pipefitters, Steamfitters, Boilermakers, Local 60, and Local 37"
Foster explained that Local 37 was the Boilermakers Union
'° Duchmann's ongmal purpose for being at the Tenneco Oil Refinery
site was for a walk through and meeting with Bennett on matters unrela-
tedto Local 60 s picketing
11 When Duchmann saw all that was happening at the site, he tele-
phoned Foster about the situation
Jaeger and Miller about what was going on and asked
them how long the picketing would last Miller informed
Duchmann at least twice that morning that the picketing
would not stop unless ITMC signed a collective-bargain-
ing agreement with Local 60 Duchmann and Miller dis-
cussed wages and engaged in a "shouting match" outside
the restaurant When Foster arrived at Rocky and
Carlo's Restaurant, he told Duchmann and Bennett he
wanted to meet with all of ITMC's employees in ITMC's
offices at the site Miller told Duchmann that if there
was going to be any meeting of ITMC's employees,
Local 60 wanted to be present to represent them Duch-
mann told Miller and Jaeger they would not be welcome
at any such meeting because of the previous problems
they had caused for ITMC Miller told the ITMC em-
ployees that if Local 60's representatives were not at the
meeting then the employees should not attend Duch-
mann told the employees it was up to them as to wheth-
er they attended or not A majority of the employees at-
tended the meeting notwithstanding the fact Local 60's
representatives were not present
Foster told the employees that if they did not report
for work the company, for whom ITMC was working,
would just get some other company to complete their
project Bennett expressed concern to Foster about the
jobs he had going at the refinery at that time and sug-
gested something ought to be done to get "this thing"
with Local 60 resolved Bennett asked Foster if Bennett
could set up a meeting between Foster and representa-
tives of Local 60 where he also could be present to wit-
ness "what was going on" from both sides Foster told
Bennett to go ahead and attempt to set up just such a
meeting 12
After Local 60 started picketing at ITMC's Mississippi
River Alcohol site Heard had a meeting with ITMC's
employees He told the employees it was up to them
whether they crossed Local 60's picket line and reported
to work or not On the second or third day of picketing
at the Mississippi River Alcohol site Heard spoke with
Local 60 President and Business Agent Mouledous at the
picket line Heard asked Mouledous why Local 60 was
picketing because he thought they were still trying to or-
ganize ITMC's employees and he saw no reason for the
picketing Mouledous told Heard representatives of
Local 60 were unable to approach ITMC officials and
ITMC was getting too big too fast and something had to
be done So, Local 60 established the picket line That
ended their conversation
On 7 July, Vice President of Construction Foster and
Tenneco Oil Refinery site Superintendent Bennett" met
at the Marina Wharf Restaurant in Chalmette, Louisiana,
with Local 60 President and Business Agent Mouledous,
Local 60 Vice President and Business Manager Jaeger,
Local 60 Business Agent Dominick, and Local 60 Vice
12 Bennett's efforts resulted in the 7 July meeting at the Manna Wharf
Restaurant which will hereinafter be discussed
13 Foster stated Bennett was at the meeting for two reasons (1) to un-
derstand fully each side's positions and proposals, and to inform the rank-
and-file employees about the status of the negotiations, and (2) to assist
Foster and answer any questions Foster might have at the meeting
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
President and International Organizer Miller." Foster
was the primary spokesperson for ITMC and Jaeger for
Local 60. Foster and Jaeger discussed their respective
positions on a collective-bargaining agreement. Foster
again expressed concern that ITMC could not be com-
petitive with the wage rates called for in Local 60's pro-
posals. Foster was uncertain about whether ITMC would
have to pay overtime if it worked four 10-hour days per
week instead of five 8-hour days." Foster also expressed
concern over the fact certain contractors that ITMC did
work for would not allow unionized contractors to bid
for their work. Jaeger gave :Foster a copy of a master
agreement for that type of industry which he proposed
as a collective-bargaining agreement. Foster asked "what
could be done to get rid of the picket[s]." Jaeger told
him to "sign an agreement." Superintendent Bennett
asked if the union charges that had been filed against he
and "his people" would be dropped if ITMC signed a
contract. Jaeger told Bennett they would be dropped."
Foster told Jaeger he would present Local 60's demands
to ITMC's officials for a decision and he would be back
in touch with Local 60.
ITMC's officials—namely President Abrahmson, Vice
President of Sales D. Gaffney, Vice President and Secre-
tary-Treasurer Decuir, Vice President of Estimating Ca-
samento, Vice President of Construction Foster and Esti-
mator Duchmann met on either 8 or 9 July and voted
unanimously to reject Local 60's proposals." Thereafter,
on approximately 21 July, Foster telephoned Local 60
Vice President and International Organizer Miller and
informed him ITMC had taken a vote and decided not to
sign an agreement with, nor recognize, Local 60 as bar-
gaining representative for its employees.
On 29 July, Local 60 sent a telegram to ITMC in
which it indicated all picketing at ITMC's worksites had
ceased as of that date and disclaimed any interest in rep-
resenting ITMC's employees.
B. The Job Duties of Bennett, Duchmann, and Heard
At all times material Bennett and Heard were em-
ployed as site superintendents and Duchmann as an esti-
mator for ITMC.
Heard served as site superintendent at ITMC's Missis-
sippi River Alcohol facility and Bennett served in that
same capacity at ITMC's Tenneco Oil Refinery project.
Both were the senior officials of ITMC at their respec-
tive work sites. Both had and exercised the authority to
hire, fire, lay off, and discipline employees. Both deter-
mined the need for and selected those to work overtime.
" Marty Catyb, business manager for Local 37 of the Boilermakers
Union, was also present at least for a portion of the meeting.
15 Bennett asked questions and then explained to Foster Local 60's
proposals on work hours and overtime. He did so to the extent those
issues were put to rest.
16 I credit Bennett's testimony on this point. Foster corroborated Ben-
nett's testimony. Jaeger did not recall Bennett or anyone else asking any
questions about union charges, however, he stated that if Foster asked
anything, that was not the main reason for their meeting. On cross-exami-
nation, Jaeger specifically denied the subject of union charges was raised.
Jaeger was a coy witness who did not impress me as being believable on
this point.
11 R. Gaffney was present for, but did not vote in, the proceedings. All
votes cast had equal weight.
Heard had three supervisors and approximately 45 jour-
neymen who worked under his direction—four of which .
were pipefitters by classification. The pipefitters that
worked under Heard's direction did not commence to do
so until near the end of ITMC's work at the Tenneco Oil
Refinery site. Bennett had as many as five foremen and
from 10 to 40 rank-and-file employees that worked for
him. Neither Heard nor Bennett performed any unit
work." Both men granted pay raises and determined
wage scales (within limits set by ITMC) for the rank-
and-file employees." Bennett testified without contradic-
tion that he daily handled personal grievances of em-
ployees on such matters as: whether certain working
conditions were safe; whether employees were getting
equal opportunities for overtime; and payroll complaints.
Bennett stated he also reviewed the qualifications for
and, where appropriate, upgraded employees from helper
classifications to journeymen status and from journeymen
status to foremen as needed. Bennett did not clear his
resolutions of the above matters with anyone. Heard tes-
tified without contradiction that he handled employee
complaints about sanitary facilities and working condi-
tions. Specifically, he increased the number of toilet fa-
cilities at the worksite he was responsible for. He investi-
gated complaints of helpers who thought they should be
journeymen and where appropriate reclassified helpers to
journeymen status. He routinely adjusted employee pay-
roll complaints, specifically, looking into complaints re-
lated to employees being short of hours or amounts of
pay on their payroll checks. In that regard, Heard testi-
fied no one looked over his shoulder at the corrections
he made.
Estimator Duchmann credibly testified without contra-
diction that as an estimator he prepared bids, coordinated
work with subcontractors, and executed contracts on
behalf of ITMC. Duchmann signed contracts with cus-
tomers on ITMC's behalf in amounts ranging from a few
dollars to $700,000. After successfully bidding any par-
ticular job, Duchmann's duties included securing the
services of a site superintendent and covering with the
superintendent selected, the scope of the job to be per-
formed at that particular site. He, with assistance from
the selected superintendent, would coordinate manpower
and arrange for the initial materials needed for the
project. Duchmann handled customer complaints at the
various projects he was involved with. Duchmann, from
time to time, filled in for Vice President of Construction
Foster. Duchmann hired employees for the various
projects he was involved with.
Bennett's, Duchmann's, and Heard's functions and ac-
tions with respect to any collective-bargaining duties
they performed for ITMC are set forth elsewhere in this
decision.
" On one occasion when he felt an employee's safety was at stake,
Bennett did approximately 30 minutes of unit work.
19 Although Local 60 in its answer to the complaint denied Heard,
Bennett, and Duchmann were supervisors within the meaning of Sec.
2(11) of the Act, it conceded in its posttrial brief that Heard and Bennett
had and exercised supervisory authority within the meaning of the Act.
However, it contends Bennett, Duchmann, and Heard are not and never
were representatives of ITMC within the meaning of Sec. 8(b)(1)(B) of
the Act.
PLUMBERS LOCAL 60 (ITMC CORP ) 409
C Local 60's Disciplining of Bennett, Duchmann,
and Heard
Internal union charges were filed on 3 July against
Bennett, Duchmann, Heard, and others who crossed
Local 60's picket lines at ITMC's two worksites involved
here It is undisputed that Bennett, Duchmann, and
Heard performed nonumt work behind the picket lines
The charges against Bennett, Duchmann, Heard, and
others allege they violated Section 200 of the Constitu-
tion of the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the
United States and Canada, and article VII, Working
Rules 2, 3, and 7 of Local 60's bylaws In essence, it is
alleged the individuals worked for a contractor (in this
case ITMC) who was not a signatory to a collective-bar-
gaining agreement with Local 60 Bennett, Duchmann,
and Heard were notified by letters dated 7 July that
charges had been preferred against them Bennett and
Duchmann acknowledged receipt on 10 July and Heard
on 18 July of the charges against them Bennett, Duch-
mann, Heard, and others were tried by Local 60 on 27
July and on or about 4 August found guilty of the
charges against them Each was fined $2000 and expelled
from membership in Local 60 On 4 August, Local 60
petitioned the International Union's General Executive
Board for approval of the above disciplinary actions
The General Executive Board by General Secretary-
Treasurer Charles J Habig and General President
Marvin J Boede notified Bennett, Duchmann, and Heard
on 18 November it was upholding Local 60's discipline
of them
D Positions of the Parties
I shall briefly highlight the parties' positions I have
not attempted at this point in the Decision to summarize
all contentions and arguments made by the parties How-
ever, all contentions and arguments have been consid-
ered and to the extent appropriate discussed
Counsel for the General Counsel asserts Bennett,
Duchmann, and Heard were at all times material supervi-
sors within the meaning of Section 2(11) of the Act, and
were disciplined in violation of the Act for engaging in
8(b)(1)(B) duties for ITMC In that regard, counsel for
the General Counsel contends Bennett and Heard pos-
sessed and exercised grievance adjustment responsibilities
regarding personal employee complaints and that Duch-
mann possessed and exercised collective-bargaining re-
sponsibilities for ITMC within the meaning of Section
8(b)(1)(B) of the Act Counsel for the General Counsel
asserts Local 60's reliance on NLRB v Electrical Workers
IBEW Local 340, 481 U S 573 (1987), is misplaced in
that the case sub judice is factually distinguishable in two
critical respects First, he contends that unlike the situa-
tion in IBEW Local 340, supra, Local 60 sought to estab-
lish a collective-bargaining relationship with ITMC Fur-
ther, counsel for the General Counsel argues that when
Local 60 disclaimed any interest in representing ITMC's
employees, it had already unlawfully coerced ITMC by
disciplining Bennett, Duchmann, and Heard He asserts
the fact the final approval for the discipline against the
three came after Local 60 disclaimed interest in repre-
sentmg ITMC's employees is no defense to it because its
postdisclaimer action of approving its predisclaimer disci-
pline was as a direct consequence of its earlier actions
and could not be disentangled therefrom Counsel for the
General Counsel would also distinguish the instant case
from IBEW Local 340, supra, by contending the three su-
pervisors involved here possessed and exercised griev-
ance adjustment or collective-bargaining responsibilities
for ITMC
Local 60 contends the instant case is controlled by
IBEW Local 340, supra Local 60 asserts that neither
Bennett, Duchmann, nor Heard engaged in any
8(b)(1)(B) activities as narrowly defined by the Court in
IBEW Local 340, supra Local 60 contends counsel for
the General Counsel failed to establish any of the three
Court-mandated elements of an 8(b)(1)(B) violation of
the Act Specifically, Local 60 argues counsel for the
General Counsel failed to demonstrate that (1) Bennett,
Duchmann, or Heard engaged in any collective bargain-
ing, grievance adjusting, or contract interpreting duties
on behalf of ITMC, (2) Local 60's discipline of Bennett,
Duchmann, or Heard was in retaliation for actions taken
by them in collective bargaining, grievance adjusting, or
contract interpreting inasmuch as they neither possessed
nor exercised any such duties or functions, and (3) Local
60's sanctions against Bennett, Duchmann, or Heard ad-
versely affected them in the performance of any collec-
tive bargaining, grievance adjusting, or contract inter-
preting duties on behalf of ITMC because they neither
possessed nor exercised any such duties
Local 60 also argues the Court in IBEW Local 340,
supra, rejected the notion that a supervisor can be an
8(b)(1)(B) representative when the supervisor works for
an employer that is not a signatory to a collective-bar-
gaining agreement with a labor organization
Local 60 further contends that even if Bennett, Duch-
mann, and Heard were 8(b)(1)(B) representatives, it, as a
matter of law, could not be found to have violated Sec-
tion 8(b)(1)(B) of the Act for disciplining them because it
had, in writing, disclaimed any interest in representing
the employees of ITMC and had not taken any action
since its disclaimer that was inconsistent with its written
disclaimer
E Legal Principles
Section 8(b)(1)(B) of the Act makes it unlawful for a
labor organization to "restrain or coerce an employ-
er in the selection of his representatives for the purposes
of collective bargaining or the adjustment of griev-
ances" Administrative Law Judge Jerrold H Shapiro
outlined in Plumbers Local 364, 254 NLRB 1123, 1125
(1981), certain principles the Board and courts have in
the past adopted related to Section 8(b)(1)(B) of the Act
Those principles are
Section 8(b)(1)(B) prohibits both direct union pres-
sure—for example, stnkes—to force replacement of
grievance representatives and indirect union pres-
sure—for example, union discipline of supervisor-
members—which may adversely affect the chosen
supervisors' performance of their representative
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
functions American Broadcasting Companies v Writ-
ers Guild of America West Inc , 437 U S 411 (1978),
New Mexico District Council of Carpenters and Join-
ers of America (A S Horner, Inc ), 177 NLRB 500,
502 (1969), enfd 454 F 2d 1116 (10th Or 1972),
and Wisconsin River Valley District Council of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Skippy Enterprises, Inc ), 218
NLRB 1063, 1064 (1975), enfd 532 F 2d 41 (7th
Cir 1976)
It is also well settled that union discipline of su-
pervisor-members who cross a picket line or other-
wise violate a union's no-work rule in order to per-
form their normal supervisory functions constitutes
indirect union pressure within the prohibition of
Section 8(b)(1)(B) In reaching this conclusion, the
Board and courts have recognized that the reason-
ably foreseeable and intended effect of such disci-
pline is that the supervisor-member will cease work-
ing for the duration of the dispute, thereby depriv-
ing the employer of the grievance adjustment serv-
ices of his chosen representative American Broad-
casting Companies, supra at 433-437, fn 36, NLRB
v International Union of Operating Engineers, Local
Union No 501, AFL-CIO, 580 F 2d 359, 360 (9th
Cir 1978), A S Homer, supra, 502, and Sloppy En-
terprises, supra, 218 NLRB 1064, enfd 532 F 2d at
52-53 Such discipline is unlawful even where, as
here, the supervisor defies the union and continues
to work for the employer during the dispute, the
discipline is unlawful because the supervisor, having
been disciplined for working during a labor dispute,
may reasonably fear further discipline and, hence,
will be deterred from ivorkmg during any future
disputes The employer, in such circumstances, must
either replace the disciplined supervisor or risk loss
of his services during a future dispute, in either
event, the employer is coerced in the selection and
retention of his chose grievance adjustment repre-
sentative American Broadcasting Companies, supra,
433-437
In Electrical Workers IBEW Local 340, the Supreme
Court concluded "discipline of a supervisor-member is
prohibited under Section 8(b)(1)(B) only when that
member is engaged in 8(b)(1)(B) activities—that is, col-
lective bargaining, grievance adjustment, or some other
closely related activity (e g, contract interpretation, as in
Oakland Mailers)" The Court in IBEW Local 340, supra,
specifically rejected the "reservoir doctrine" that all em-
ployer-supervisors fall within the protection of Section
8(b)(1)(B) of the Act In this regard, the Court noted
"One obvious ramification of this conclusion is that
8(b)(1)(B) prohibits discipline of only those supervisor-
members who actually perform 8(b)(1)(B) duties Clearly
a supervisor cannot be disciplined for acts or omissions
that occur during performance of 8(b)(1)(B) duties if he
or she has none"
The Court in IBEW Local 340, supra, noted it had ear-
lier, in Florida Power & Light Electrical Workers Local
641, 417 U S 790, 804-805 (1974), created a restrictive
"adverse-effect" test to determine when Section
8(b)(1)(B) is violated
Nowhere in the legislative history is there to be
found any implication that Congress sought to
extend protection to the employer from union re-
straint or coercion when engaged in any activity
other than the selection of its representatives for the
purposes of collective bargaining and grievance ad-
justment The conclusion is thus inescapable that a
union's discipline of one of its members who is a su-
pervisory employee can constitute a violation of §
8(b)(1)(B) only when that discipline may adversely
affect the supervisor's conduct in performing the duties
of and acting in his capacity as grievance adjuster or
collective bargainer on behalf of the employer 417
U S at 804-805 (emphasis added )
The Court in IBEW Local 340, supra, also noted it had
held in American Broadcasting Co v Writers Guild, 437
U S 411 (1978), that before an 8(b)(1)(B) violation could
be found or sustained the Board must make a factual
finding that a union's sanction will adversely affect the
employer-representative's performance of collective-bar-
gaining or grievance-adjusting duties With respect to
what constitutes 8(b)(1)(B) "grievance-adjusting duties,"
the Board for years has held the handling of noncontrac-
tual or personal grievances comes within the ambit of
that section of the Act See, for example, Toledo Lithog-
raphers, 175 NLRB 1072 at 1078 (1969) However, the
Court, at footnote 12 of its decision in IBEW Local 340,
supra, indicated, without specifically ruling on the issue,
that the "narrow purpose and scope of 8(b)(1)(B)" sug-
gested a more narrow definition of "gnevance" and
"grievance adjustment" than the Board followed Fol-
lowing the Court's decision in IBEW Local 340, supra,
the Board had an opportunity in Teamsters Local 379,
284 NLRB 1413 (1987), to again review and define the
scope of grievance adjustment within the meaning of
Section 8(b)(1)(B) of the Act At footnote 1 of its deci-
sion in Teamsters Local, 379, supra, the Board held that a
supervisor who "regularly handles and adjusts employee
complaints concerning safety matters" and "payroll
problems" had grievance adjustment authority within the
meaning of Section 8(b)(1)(B) of the Act despite the ab-
sence of "any specific role within the formal contractual
grievance procedure" The Board specifically declared
"the responsibility for handling such worksite complaints
falls within the scope of grievance adjustment authority"
The Court in IBEW Local 340, supra, held that where
the coercion against the employer is indirect—against the
employer's representatives, it must be shown that there is
a collective-bargaining relationship between the employ-
er and the union or that the union seeks such a relation-
ship before a violation of Section 8(b)(1)(B) of the Act
can be found The Court in IBEW Local 340, supra at
595, summarized its conclusions on Section 8(b)(1)(B) as
follows
Section 8(b)(1)(B) was enacted to protect the in-
tegrity of the processes of grievance adjustment and
collective bargaining—two private dispute-resolu-
PLUMBERS LOCAL 60 (ITMC CORP ) 411
non systems on which the national labor laws place
a high premium Although some union discipline
might impermissibly affect the manner in which a
supervisor-member carries out § 8(b)(1)(B) tasks or
coerce the employer in its selection of a § 8(b)(1)(B)
representative, union discipline directed at supervi-
sor-members without § 8(b)(1)(B) duties, working
for employers with whom the union neither has nor
seeks a collective-bargaining relationship, cannot
and does not adversely affect the performance of §
8(b)(1)(B) duties Consequently, such union action
does not coerce the employer m its selection of
§ 8(b)(1)(B) representatives
F Discussion, Analysis, and Conclusions
First, it is clear Bennett, Duchmann, and Heard were
at material times supervisors of ITMC within the mean-
ing of Section 2(11) of the Act The three of them testi-
fied convincingly and without contradiction that they
possessed numerous specific mdicia of supervisory au-
thority For example, Bennett and Heard hired, laid off,
fired, and disciplined employees Both were the ranking
representative of ITMC at their respective worksites
Both had several foremen/supervisors and numerous
rank-and-file employees working under their direct or in-
direct supervision The evidence is overwhelming that
Bennett's and Heard's duties required them to exercise
substantial independent judgment in their handling of
ITMC's employees Local 60 in its posttnal brief, in es-
sence, concedes Bennett and ,Heard were at all times ma-
terial supervisors of ITMC within the meaning of the
Act In fact, Local 60 does not appear to seriously dis-
pute that Duchmann had, and exercised, supervisory au-
thority within the meaning of Section 2(11) of the Act
Duchmann hired employees and committed ITMC's
credit in substantial amounts Duchmann directed site su-
perintendents in the performance of their duties and from
time to time filled in for the vice president of construc-
tion In that regard, I note Local 60 takes the position in
its posttnal brief that the vice president of construction
exercised managerial duties normally associated with a
chief executive officer of a company In summary, the
evidence demonstrates, and I find, Bennett, Duchmann,
and Heard all had and exercised supervisory duties
within the meaning of Section 2(11) of the Act
Finding Bennett, Duchmann, and Heard to be 2(11)
su-pervisors does not however resolve the issue of wheth-
er at material times they qualified as ITMC's representa-
tives within the meaning of Section 8(b)(1)(B) of the Act
In determining whether Bennett, Duchmann, or Heard
were 8(b)(1)(B) representatives, I shall examine the evi-
dence on each separately to see if one or all acted for
ITMC in the capacity of a grievance adjuster, or collec-
tive bargainer
Bennett was ITMC's highest ranking representative at
the Tenneco Oil Refmery jobsite and was its representa-
tive for adjusting personal noncontractual grievances It
is undisputed that Bennett handled, on a daily basis,
worksite complaints involving employees' safety, payroll
problems, overtime, and the assignment to and promo-
tions into and out of work classifications The Board has
long held and even after the Court's decision in IBEW
Local 340, supra, continues to hold that the adjustment
by a supervisor of personal complaints related to such
matters as safety and payroll problems brings the super-
visor within the scope of grievance adjustment authority
within the meaning of Section 8(b)(1)(B) of the Act See
Teamsters Local 379, supra Accordingly, I find Bennett
was, at material times, an employer representative within
the meaning of Section 8(b)(1)(B) of the Act inasmuch as
he had and exercised grievance adjustment duties and
functions for ITMC Additionally, Bennett served as one
of ITMC's bargaining representatives, at least, at the 7
July Manna Wharf Restaurant meeting One of the pur-
poses for Bennett being at that meeting, as testified to by
Vice President of Construction Foster, was to assist
Foster in the bargaimng session by, among other things,
answering any questions Foster had with respect to
Local 60's collective-bargaining proposals Bennett also
actively participated in the session by, among other
things, inquiring of Local 60's officials what disposition
would be made of the union charges filed against mem-
bers who crossed its picket lines Bennett was assured by
Business Manager Jaeger the charges would be dropped
if a collective-bargaining agreement was signed Thus,
Bennett's functions at the 7 July bargaining session were
more in the nature of a fundamental rather than orna-
mental participant Accordingly, I find Bennett was also
an 8(b)(1)(B) representative of ITMC in that he func-
tioned as a bargaining representative for it in negotiations
with Local 60
Heard was ITMC's highest ranking representative at
its Mississippi River Alcohol site and, like Bennett, was
its representative for adjusting personal noncontractual
employee grievances at that jobsite Heard handled wage
rate and job classification complaints He routinely han-
dled payroll and hours of work complaints without guid-
ance from anyone He handled complaints related to san-
itary working conditions Heard also functioned as a col-
lective-bargaining representative for ITMC with Local
60 In that regard, he met with Local 60 Vice President
and International Organizer Miller on three separate oc-
casions in June at which the two discussed the possibility
of ITMC signing a collective-bargaining agreement with
Local 60 and they also discussed Local 60's specific pro-
posals for a collective-bargaining agreement Heard spe-
cifically asked Miller what Local 60 had to offer and
told Miller that whatever it proposed would probably be
open for discussion with ITMC Heard arranged for, but
was not available to attend, a further negotiating session
between Vice President of Construction Foster and
Miller Additionally, in approximately early July, Heard
met with Local 60 President and Business Agent Moule-
dous at the picket line at Heard's worksite The two of
them discussed why Local 60 was picketing ITMC's
worksites Heard expressed his position to Mouledous
that since Local 60 was still trying to organize ITMC's
employees, he saw no reason for them to be picketing
the worksites Mouledous responded that ITMC was get-
ting too big too fast and something had to be done about
it In light of all the above, I am persuaded and find that
Heard was, at material times, an employer representative
for ITMC within the meanmg of Section 8(b)(1)(B) of
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Act in that he had and exercised not only grievance
adjustment duties and functions for ITMC but also
served as a collective-bargaining representative for it
There is no serious contention that Duchmann had or
exercised any grievance adjustment duties for ITMC If
he qualifies as an 8(b)(1)(B) representative of ITMC, it
would have to be that he served as a collective bargainer
for it I conclude and find he did Although Duchmann's
participation in collective bargaining was somewhat
minimal, it was sufficient to bring him within the ambit
of Section 8(b)(1)(B) as a collective bargainer One only
needs to state a position with an eye toward reaching an
agreement or resolving a dispute in order to be found to
be engaging in collective bargaining On the day picket-
ing commenced at ITMC's Tenneco Oil Refinery
project, Duchmann spoke with Local 60 Vice President
and Business Manager Jaeger and International Organiz-
er Miller at a restaurant near where the picketing was
taking place Duchmann inquired of Jaeger and Miller
how long the picketing would last Duchmann and
Miller engaged in a shouting match as they discussed the
wage rates ITMC paid its employees Miller informed
Duchmann more than once during their meeting that the
picketing by Local 60 would not stop unless ITMC
signed a collective-bargaining agreement with it Duch-
mann told Miller, after Miller requested to represent
ITMC's employees at a meeting that morning, he could
not do so On either 8 or 9 July, Duchmann along with
five other ITMC's officials voted unanimously to reject
Local 60's proposals for an agreement and to decline to
recognize it as a bargaining representative for ITMC's
employees In summary, I find Duchmann functioned as
a collective bargainer for ITMC within the meaning of
Section 8(b)(1)(B) of the Act
The Court in IBEW Local 340, supra, held that where
coercion is indirect, i e, upon the employer's representa-
tive rather than directly upon the employer, it must be
established that there is a collective-bargaining relation-
ship between the employer and the union or that the
union sought to have such a relationship In the case sub
judice, Local 60 at no time had a collective-bargaining
relationship with ITMC However, the evidence is con-
clusive and undisputed it sought such a relationship at
least until it notified ITMC on 29 July that it disclaimed
any interest in representing its employees for the pur-
poses of collective bargaining From Local 60's first con-
tact with ITMC in March until its disclaimer in July, it
actively sought to have ITMC sign a collective-bargain-
ing agreement with it I find no merit to Local 60's argu-
ment that because it filed a disclaimer in late July that as
a matter of law no 8(b)(1)(B) violation can be found
Local 60's predisclaimer actions of charging, fining, and
expelling Bennett, Duchmann, and Heard had already
been accomplished and the only postdisclaimer action
taken was when the International Union's General Exec-
utive Board approved Local 60's predisclaimer actions
Any coercive effect Local 60's actions against Bennett,
Duchmann, and Heard had on ITMC had, in essence, al-
ready been effectuated and the postdisclaimer action by
the International Union was as a direct result of Local
60's predisclaimer actions
Local 60's discipline of Bennett, Duchmann, and
Heard had the foreseeable consequence of causing them
in order to resolve their difficulties with Local 60 to seek
to have ITMC sign a collective-bargaining agreement
with Local 60 Local 60 actively sought to have Bennett
and Heard assist it in its efforts in that regard Further-
more, Local 60's representative made it known that not
only would the picketing at ITMC's worksites cease but
that the intraumon charges against Bennett, Duchmann,
Heard, and the others would be dropped if ITMC signed
an agreement with it Accordingly, based on the credited
facts and for all of the above-outlined reasons, I find
Local 60 restrained and coerced ITMC in its selection of
its representatives for the purposes of gnevance adjust-
ment or collective bargaining in violation of Section
8(b)(1)(B) of the Act
CONCLUSIONS OF LAW
1 Local Union No 60, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting In-
dustry of the U S and Canada, AFL-CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act
2 ITMC Corp is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act
3 Donald R Bennett, Henry Duchmann, and John C
Heard were at all times material employer representa-
tives of ITMC Corp within the meaning of Section
8(b)(1)(B) of the Act
4 By preferring charges against Donald R Bennett,
Henry Duchmann, and John C Heard and imposing a
fine of $2000 against them and by expelling them from
membership, Local 60 restrained and coerced ITMC
Corp in the selection of its representatives for the pur-
poses of collective bargaining or the adjustment of griev-
ances and thereby engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(b)(1)(B)
of the Act
THE REMEDY
Having found that Local 60 has engaged in certain
unfair labor practices, I shall recommend it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Local 60 will be ordered to rescind and expunge the
charges brought against, and all discipline imposed on,
Donald R Bennett, Henry Duchmann, and John C
Heard
[Recommended Order omitted from publication ]