Schwenk Inc.

National Labor Relations Board - Board Decisions

May 13, 1977

229 N.L.R.B. 640 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schwenk Incorporated and Neal E. Wright and
Sheetmetal Workers International Association,
Local Union No. 2, Party in Interest. Case 17-
CA-7012
May 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge duly filed by Neal E. Wright, an
Individual, on March 8, 1976, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 17, issued a complaint
on May 10, 1976, alleging that Respondent Schwenk
Incorporated has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(l) and (2) of the National Labor Relations Act,
as amended. The Respondent filed an answer on
May 24, 1976, denying the commission of unfair
labor practices.
On July 13, 1976, the parties executed a stipulation
of facts, waived a hearing before an Administrative
Law Judge and the issuance of an Administrative
Law Judge's Decision, and moved that the matter be
transferred to the Board for findings of fact,
conclusions of law, and an Order directly by the
Board.' On September 16, 1976, the Board granted
the parties' motion to transfer proceedings to the
Board, and granted permission and time for the filing
of briefs. Thereafter, the General Counsel and
Respondent filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the basis of the stipulation of facts, the
briefs, and the entire record in this proceeding, the
Board makes the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent Schwenk Incorporated is engaged in
the business of sheet metal fabrication and contract-
ing work in the construction industry, with its
principal place of business located in Kansas City,
Kansas. In the course and conduct of its business
operations at the Kansas City facility, Respondent
annually purchases goods and/or services valued in
excess of $50,000 directly from sources located
outside the State of Kansas and annually sells goods
I The parties stipulated that the charge, complaint and notice of hearing,
answer (denoted as Exhs. 1, 2, and 3), and the stipulation of facts and
accompanying exhibit would constitute the entire record in this case.
229 NLRB No. 94
and/or services valued in excess of $50,000 directly
to customers located outside the State of Kansas.
Respondent admits and we find that it is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act. We also find that it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and we
find that Sheetmetal Workers International Associa-
tion, Local Union No. 2, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
At all times material herein, Respondent has been
a member of Sheet Metal and Air Conditioning
Contractors National Association, Inc., Kansas City
Chapter (herein called the Association). The Associa-
tion is a multiemployer bargaining group which, on
behalf of its members, is a party to a collective-
bargaining agreement with the Union.
Respondent is a family-owned business and its
executive officers are all members of the Schwenk
family. Respondent employs approximately 60 em-
ployees. Wesley Friley has been employed by
Respondent as plant manager since 1968 and Jim
Shy as project manager since 1967. Both are
supervisors within the meaning of Section 2(11) of
the Act. As plant manager, Friley is the frontline
supervisor in the shop where he oversees the
production of materials to be fabricated and works
with the tools of the sheet metal trade. From 15 to 40
people work under Friley in the plant, the average
being 17. Shy, as project manager, schedules work to
be done in the plant, works out coordination
problems, and works with the tools of the sheet metal
trade. If a particular job requires either a foreman or
a general foreman under the terms of the collective-
bargaining agreement, Shy makes the assignment.
The current collective-bargaining agreement which
expires June 30, 1977, requires, pursuant to a
demand by the Union, that persons performing the
work done by Friley and Shy be members of the
Union. As members of the Union, both Friley and
Shy participated in the last strike against the
Association which was from July until September,
1969. Neither individual has participated in any
collective-bargaining negotiations either as represen-
tative of the Association or as representative of the
Union, neither has any financial interest (other than
as employees) in Schwenk or any other member of
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SCHWENK INCORPORATED
the Association, and neither has ever held office in or
been members of the Association.
From about June 1970 until February 26, 1976,
Friley was vice president of the Union, and from
February 26 until June 26, 1976, he occupied the
position of president. From about June 1970 until
June 26, 1976, Shy occupied the position of recording
secretary of the Union. While occupying these
offices, both Friley and Shy have voted in internal
union elections to determine who is to administer the
affairs of the Union.
B. Contentions of the Parties
The General Counsel contends that both Friley
and Shy are high level supervisors and that Respon-
dent, by permitting them to participate in internal
union affairs by holding offices within the Union and
voting in internal union elections, is interfering with
the administration of a labor organization in viola-
tion of Section 8(a)(2) of the Act. Respondent
contends that the status of Friley and Shy is identical
to that of the master mechanics in Nassau and Suffolk
Contractors' Association, Inc., et al., 118 NLRB 174
(1957), where the Board held the employers were not
liable for the intraunion conduct of the master
mechanics because they were only low level supervi-
sors. Respondent advances numerous arguments in
support of its position: Neither is an executive or
officer and both are low level supervisors. They have
never participated in collective-bargaining negotia-
tions on behalf of the Union or the Association.
There is no allegation that the Employer, Friley, or
Shy participated in any way in the formation of the
Union. The Employer has never acted in a way to
lead other employees to believe that either of them
acts on behalf of the Employer. They are required by
the collective-bargaining agreement to be members
of the Union. Both are rank-and-file union members
who have worked their way up the normal career
ladder in the construction industry while remaining
active and concerned with their Union, and to strip
them of a voice and a right of activity in their Union
would in effect strip them of their job security.
C. Analysis and Conclusions
In Nassau and Suffolk Contractors' Association,
supra, the Board found that the employers interfered
with the administration of a labor organization by
virtue of the fact that certain executives, three job
superintendents, a shop foreman, and a corporate
officeholding master mechanic attended union meet-
ings and voted in secret union elections. With regard
to the master mechanics, the Board found that they
were low level supervisors, that their allegiance was,
at least, as much with their union as with their
employers, and that the employers did not interfere
with the affairs of the union by virtue of the master
mechanics' voting in elections. In Nassau, a master
mechanic had to be employed by an employer if five
or more operating engineers were at work. Thus,
these employees might be master mechanics at one
time and ordinary operating engineers at other times,
depending on whether the number of operating
engineers was above or below the specified level.
In the instant case both Friley and Shy are high
level supervisors and are not, as contended by
Respondent, comparable to the master mechanics in
Nassau and Suffolk Contractors' Association. Both
Friley and Shy have been regularly employed in their
current managerial positions for almost 10 years.
Friley, as plant manager, oversees the inplant
production of material to be fabricated for field
installation, supervising from 15 to 40 employees
depending on the amount of inplant work being
performed. Shy, as project manager, oversees field
work, works out production problems, and coordi-
nates plant production schedules with Friley. Shy
supervises from 20 to 40 employees depending on the
amount of field installation being performed in
relation to inplant production and is responsible for
designating both foremen and general foremen and
assigning them to field projects when called for by
crew sizes under the collective-bargaining agreement.
Accordingly, we find that both Friley and Shy
occupy managerial and high level supervisory posi-
tions with Respondent. Since Respondent has stipu-
lated that both Friley and Shy have attended union
meetings and voted in internal union elections and
have held offices in the Union, we find that
Respondent has interfered with the internal affairs of
a labor organization in violation of Section 8(a)(2)
and (I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of the Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(2) and (1) of the Act, we shall order that it cease
and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act.
641
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent Schwenk Incorporated is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Sheetmetal Workers International Association,
Local Union No. 2, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By permitting Wesley Friley and Jim Shy,
managerial and high level supervisory employees of
Respondent, to attend meetings and vote in secret
elections and to hold elective office in Sheetmetal
Workers International Association, Local Union No.
2, Respondent has interfered in the internal affairs of
said Union and has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(2) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Schwenk Incorporated, Kansas City, Kansas, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interfering with the internal affairs of Sheetme-
tal Workers International Association, Local Union
No. 2, by permitting Wesley Friley and Jim Shy to
attend meetings and vote in secret elections and hold
elective offices in said Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights protected under Section 7 of the Act.
2. Take the following affirmative action which
the Board finds is necessary to effectuate the policies
of the Act:
(a) Notify and require of Wesley Friley and Jim
Shy that while they are employed by Respondent as
plant manager and project manager, respectively,
they shall not attend meetings or vote in elections or
hold elective offices in Sheetmetal Workers Interna-
tional Association, Local Union No. 2.
(b) Post at its plant in Kansas City, Kansas, copies
of the attached notice marked "Appendix." 2 Copies
of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
2 In the event 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
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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with the internal affairs
of Sheetmetal Workers International Association,
Local Union No. 2, by permitting our agents,
Wesley Friley and Jim Shy, to attend meetings
and vote in secret elections or hold elective offices
in said Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights protected under
Section 7 of the Act.
WE WILL instruct and require of Wesley Friley
and Jim Shy that while they are employed by us
as plant manager and project manager, respec-
tively, they shall not attend meetings and vote in
elections or hold elective offices in Sheetmetal
Workers International Association, Local Union
No. 2.
SCHWENK INCORPORATED
642