Sheet Metal Workers Local 104 (Simpson Sheet Metal)

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 758 (N.L.R.B. 1993)

758
311 NLRB No. 76
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Board has long held that contract interpretation is an
8(b)(1)(B) activity. Typographical Union No. 18 (Northwest Publica-
tions), 172 NLRB 2173 (1968).
Sheet Metal Workers International Association,
Local 104, AFL–CIO (Simpson Sheet Metal,
Inc.) and Douglas Henry. Case 20–CB–8612
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 15, 1992, Administrative Law Judge James
M. Kennedy issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed a reply brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge dismissed allegations that the Respondent,
Sheet Metal Workers International Association, Local
104, violated Section 8(b)(1)(B) of the Act by filing
internal union charges against Douglas Henry, a Sec-
tion 2(11) supervisor, because it believed that Henry
had interpreted the collective-bargaining agreement
with Simpson Sheet Metal, Inc. in a manner incon-
sistent with the Respondent’s view. For the reasons
discussed below, we reverse the judge’s conclusion
and find that the Respondent violated the Act, as al-
leged.
The facts, as more fully set forth in the judge’s deci-
sion, are not in dispute. The Employer is a sheet metal
contractor. Henry, a member of the Respondent, is the
Employer’s second in command. Henry was admittedly
a supervisor within the meaning of Section 2(11) of
the Act. As part of his duties, Henry settled employ-
ees’ complaints regarding their travel pay. On these
occasions, Henry consulted the relevant contract provi-
sions and, based on his understanding of them, deter-
mined whether the appropriate travel pay had been
paid. If he determined that an adjustment was required,
Henry advised the Employer’s payroll department to
make the appropriate corrections.
The Respondent’s business agent filed internal union
charges against Henry alleging that he had violated the
Respondent’s constitution and bylaws by directing
rank-and-file members employed by Simpson to work
in breach of the Union’s interpretation of the collec-
tive-bargaining agreement.
A trial committee heard the charges, found Henry
guilty as charged, fined him $10,000, and put him on
probation for 3 years. Henry’s appeal of the decision
was denied. In January 1991, the Respondent’s general
secretary-treasurer and its financial secretary-treasurer
notified Henry that the Respondent intended to insti-
tute civil proceedings against him to collect the fine.
The judge concluded, based on his interpretation of
the Supreme Court’s decision in NLRB v. Electrical
Workers Local 340 (Royal Electric), 481 U.S. 573
(1987), that Section 8(b)(1)(B) does not reach contract
interpretation but only collective bargaining or griev-
ance adjustment activities. The judge further concluded
that Henry’s discussions with employees regarding dis-
putes over their travel pay did not require him to inter-
pret the contract and did not rise to the level of griev-
ance adjustment. He reasoned that Henry’s resolution
of the travel pay disputes was ‘‘only an everyday, rou-
tine answer to an employee question.’’ Accordingly, he
found that the Respondent’s actions against Henry did
not violate Section 8(b)(1)(B) of the Act.
The General Counsel maintains that the judge mis-
construed the Supreme Court’s decision in Royal Elec-
tric and that the authority to engage in contract inter-
pretation is, in fact, sufficient to establish an individ-
ual’s representative status under Section 8(b)(1)(B).
The General Counsel further contends that internal
union charges filed against Henry by the Respondent’s
business agent were a direct result of Respondent’s
disagreement with the way it believed that Henry had
interpreted the contract. The General Counsel also
excepts to the judge’s finding that Henry is not a
grievance adjuster.
We hold that a supervisor’s contract interpretation
function brings him within the 8(b)(1)(B) definition of
‘‘representative’’ and thus find merit in the General
Counsel’s exceptions.
The Board, in Sheet Metal Workers Local 80
(Limbach Contractors), 285 NLRB 386 (1987), held
that the union had violated Section 8(b)(1)(B) by dis-
ciplining an employer representative because of his in-
terpretation of the collective-bargaining agreement. The
Board said that in Royal Electric, supra, ‘‘the Supreme
Court held that Section 8(b)(1)(B) prohibits discipline
of a supervisor-member only for performing 8(b)(1)(B)
duties which include collective bargaining, grievance
adjustment, and contract interpretation.’’ 285 NLRB at
387.1 In Limbach, the parties had stipulated that Super-
visor Olchowik possessed authority to act as the em-
ployer’s representative for purposes of collective bar-
gaining or the adjustment of grievances. The Board
further found, however, that the union’s action against
Olchowik was caused by his interpretation and admin-
istration of the collective-bargaining agreement with
respect to the layoff of a union steward. The Board
held that the union violated the Act based on a finding
that the only conduct engaged in by Olchowik that was
specifically complained of in notifying him of the
759SHEET METAL WORKERS LOCAL 104 (SIMPSON SHEET METAL)
2 In our discussion above we have dealt with the activity for which
the Respondent disciplined Henry as an instance of contract adminis-
tration that comes within the category of ‘‘collective bargaining’’ re-
ferred to in Sec. 8(b)(1)(B). We note that it could also be viewed
as a form of grievance adjustment. As the the Board observed in
Sheet Metal Workers Local 68 (DeMoss Co.), 298 NLRB 1000,
1003–1004 (1990), the interest that Congress was protecting through
the inclusion of ‘‘adjustment of grievances’’ in Sec. 8(b)(1)(B) is
implicated whenever an employee requests action from the employ-
er’s representative as to a matter governed by the contract which the
representative is authorized to resolve and on which the bargaining
representative and the employer may have divergent views. Accord:
Steelworkers Local 1013 (USX Corp.), 301 NLRB 1207, 1210
(1991). Sec. 8(b)(1)(B) protection is triggered because the employ-
er’s right to be free of union coercion of its grievance adjustment
representative would obviously be compromised if the employer’s
representative reasonably believed he could escape union sanctions
only by resolving the matter in the employee’s favor even before a
formal grievance could arise. Id.
Member Devaney agrees with his colleagues that, in his contract
interpretation role, Henry served as an employer representative with-
in the meaning of Sec. 8(b)(1)(B). Member Devaney, therefore, finds
it unnecessary to pass on whether Henry’s contract interpretation ac-
tivities could also be viewed as a form of grievance adjustment with-
in the meaning of that section.
union charges was his decision concerning the stew-
ard’s layoff.
Similarly, the conduct that the Union complained
about in its charges against Henry related specifically
to the Union’s beliefs concerning Henry’s alleged in-
terpretation of the collective-bargaining agreement with
respect to assigning air conditioning specialists to work
on commercial work and calculating the correct travel
mileage. We find that Henry possessed the authority to
interpret the contract, as demonstrated by his con-
sulting the contract to calculate the appropriate travel
pay. Although Henry denied involvement in the spe-
cific dispatches giving rise to the internal union
charges, there is no ground for dispute that he pos-
sessed the authority to interpret the contract. Most sig-
nificantly, the Respondent brought charges against him
because of his alleged interpretation of the contract.
Therefore, we find that the Respondent’s charging, try-
ing, disciplining, and fining Henry, and threatening to
file a lawsuit to collect the fine all resulted from the
Respondent’s disagreement with his interpretation of
the collective-bargaining agreement. Accordingly, the
Respondent restrained and coerced Simpson Sheet
Metal in the selection of its representative for the pur-
pose of collective bargaining or the adjustment of
grievances, which includes contract interpretation. The
Respondent thereby violated Section 8(b)(1)(B) of the
Act.2
On the basis of the foregoing facts and the entire
record, the Board makes the following
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusions of Law
3 and 4.
‘‘3. Douglas Henry, at all times material herein, has
been a representative of the Employer for the purposes
of collective bargaining or the adjustment of griev-
ances within the meaning of Section 8(b)(1)(B) of the
Act.
‘‘4. By filing internal union charges against Douglas
Henry, disciplining and assessing a fine against him,
and threatening to file a lawsuit to collect the fine, the
Respondent has engaged in unfair labor practices with-
in the meaning of Section 8(b)(1)(B) of the Act.’’
2. Add the following as Conclusion of Law 5.
‘‘5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.’’
THE REMEDY
Having found that the Respondent engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(b)(1)(B) of the Act, we shall order that
it cease and desist and take certain affirmative action
designed to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Sheet Metal Workers International Asso-
ciation, Local 104, AFL–CIO, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Restraining or coercing Simpson Sheet Metal,
Inc. in the selection of its representatives for the pur-
pose of collective bargaining or the adjustment of
grievances by maintaining charges against, fining,
placing on probation, or threatening to file a lawsuit
against Douglas Henry or otherwise disciplining him
because of his performance of his collective bargaining
or grievance adjustment duties.
(b) In any like or related manner restraining or co-
ercing Simpson Sheet Metal, Inc. in the selection of its
representative for the purpose of collective bargaining
or the adjustment of grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the charges brought against and the fine
and probationary period imposed against Douglas
Henry because of his performance of grievance adjust-
ment duties for Simpson Sheet Metal and remove from
its files all records of these matters and withdraw any
lawsuit filed to collect the fine.
(b) Restore Douglas Henry to his status as a member
in good standing in Respondent Local 104 with attend-
ant rights.
(c) Notify Douglas Henry in writing that it has taken
the above action.
(d) Post at its office and any place where its meet-
ings are customarily held copies of the attached notice
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The statute reads:
Sec. 8(b) . . . It shall be an unfair labor practice for a labor
organization or its agents—(1) to restrain or coerce (B) an em-
ployer in the selection of his representatives for the purpose of
collective bargaining or the adjustment of grievances.
2 Cf. NLRB v. Boeing Co., 412 U.S. 67 (1973).
3 There may be circumstances by which the conduct complained
of, fining a supervisor/union member for the manner in which he
performs his job, could violate the good-faith bargaining obligation
marked ‘‘Appendix.’’3 Copies of the notice, on forms
provided by the Regional Director for Region 20, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(e) Furnish the Regional Director for Region 20
signed copies of the notice for posting by Simpson
Sheet Metal, Inc., at all places where notices to em-
ployees are customarily posted.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO 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 or-
dered us to post and abide by this notice.
WE WILL NOT restrain or coerce Simpson Sheet
Metal, Inc. in the selection of its representative for the
purpose of collective bargaining or the adjustment of
grievances by maintaining charges against, fining,
placing on probation, or threatening to file a lawsuit to
collect the fine, or otherwise disciplining that rep-
resentative for performing representative duties on be-
half of Simpson.
WE WILL NOT in any like or related manner restrain
or coerce Simpson Sheet Metal in the selection of its
representative for the purpose of collective bargaining
or the adjustment of grievances.
WE WILL rescind the charges brought against Doug-
las Henry and the fine and probationary period im-
posed on Douglas Henry, and WE WILL remove from
our files all records of these matters and WE WILL re-
store him to membership in good standing with all at-
tendant rights and privileges and WE WILL notify
Douglas Henry, in writing, that the fine and proba-
tionary period have been rescinded, that all records of
the charge, fine, and probation have been removed,
and that he will be restored to full membership.
WE WILL withdraw any lawsuit filed to collect such
a fine.
SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION, LOCAL 104,
AFL–CIO
WE WILL withdraw any lawsuit filed to collect such
a fine.
SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION, LOCAL 104,
AFL–CIO
Mary Vail, for the General Counsel.
Kathryn A. Sure (Wylie, McBride, Jesinger, Sure & Platten),
of San Jose, California, for the Respondent.
Marilyn P. Curry (Jordan & Ferrington), of Santa Rosa,
California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in San Francisco, California, on Feb-
ruary 27, 1992, on a complaint issued by the Regional Direc-
tor for Region 20 of the National Labor Relations Board on
August 27, 1991. The complaint is based on a charge filed
by Douglas Henry, an individual (Henry), on February 26,
1991, and amended on August 21, 1991. It alleges that Sheet
Metal Workers International Association, Local Union No.
104, AFL–CIO (Respondent or the Union) has committed
certain violations of Section 8(b)(1)(B) of the National Labor
Relations Act (the Act).
Issues
The principal issue to be decided is whether Respondent’s
fining Douglas Henry, a supervisory official of Simpson
Sheet Metal and a member of the Union, was in contraven-
tion of Section 8(b)(1)(B) of the Act. That section prohibits
labor organizations from restraining or coercing an employer
in the selection of its representatives for the purpose of col-
lective bargaining or the adjustment of grievances.1 The evi-
dence shows that Henry had no collective-bargaining respon-
sibilities and the threshold issue which I must decide is
whether he was his employer’s representative for the ‘‘ad-
justment of grievances.’’
In addition, it is important to note what is not in issue
here. To the uninitiated, it may appear that the Union’s pro-
cedures leading to the fine and/or the size of the fine itself
are either unfair or draconian. Section 8(b)(1), however, ad-
dresses neither of those matters. Instead, they are left either
for the courts in collection proceedings2 or private suit in
proceedings under the Labor-Management Reporting and
Disclosure Act of 1959, §§ 101(a)(5) and 102. Indeed, even
the reason for the fine may seem unnecessary, particularly
since the perceived wrongdoing had been corrected by the
Employer. The Union’s policy in this regard, wise or unwise,
is not clearly barred by any other section of the Act,3 nor
761SHEET METAL WORKERS LOCAL 104 (SIMPSON SHEET METAL)
required by Sec. 8(d) and enforced by Sec. 8(b)(3). If so, such a the-
ory has not been presented here and cannot be considered. Cf.,
Teamsters Local 788, 190 NLRB 24 (1971). There, the union was
found to have breached the good-faith bargaining obligation by
fining a member for giving unfavorable testimony to an arbitrator
who was evaluating another employee’s grievance, thereby cor-
rupting the arbitral process.
4 The pay errors themselves appear to have been corrected earlier
when the employees questioned the calculations. There is no evi-
dence that any employee needed to file a grievance.
is it plainly contrary to national labor policy. It is, therefore,
not the Board’s duty to assess the wisdom of this policy, ex-
cept to the extent that it may be a subterfuge to accomplish
aims prohibited by this subsection of Section 8(b)(1).
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs. The General
Counsel and Respondent have filed briefs which have been
carefully considered. Based on the entire record of the case,
as well as my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, Simpson Sheet Metal, Inc., is a California
corporation, headquartered in Santa Rosa, California, where
it is engaged in the building and construction industry as a
sheet metal contractor. It sells, installs, and services heating
and air conditioning systems. Its annual gross sales exceed
$500,000 and it annually receives equipment and supplies
from vendors outside California valued in excess of $50,000.
Accordingly, Respondent admits, and I find, the Employer to
be an employer engaged in commerce and in an industry af-
fecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits it is a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As noted, the Employer is a sheet metal contractor. It is
owned by Bill and Nancy Simpson, who are husband and
wife. Bill is president of the corporation and it appears that
Nancy may be the secretary-treasurer. Certainly she is in
charge of the office and keeps the books. Henry, the Charg-
ing Party, has worked for the Company since 1978 in various
capacities. He began as a journeyman sheet metal worker,
served as a foreman and dispatcher from 1983 to 1988 and
since that time has been ‘‘second in charge of everything;’’
his only superior being Bill Simpson. In 1988, his job dis-
patching (scheduling) duties were given to Bill’s brother,
Bernie, who is subordinate to Henry. Occasionally, in Ber-
nie’s absence, Henry will assign work to the employees.
Henry describes himself in various ways and, although one
might regard them as inconsistent, I do not. He simply has
ubiquitous duties, and does what has to be done. When asked
what his profession is, he replied, ‘‘Journeyman sheet metal
worker.’’ Later, he agreed that he does ‘‘foreman’’ work. He
mainly serves as a residential estimator, meaning he puts
bids together in a sales capacity. He also oversees most of
the work, whether residential or commercial. There is no evi-
dence that he currently performs any actual labor such as
would be required of an active journeyman; he has advanced
well beyond that into management.
Nonetheless, he has, since his apprenticeship days in 1972,
maintained his membership in the Union. He considers him-
self a good union member and has no desire to undermine
union standards. For many purposes he views himself as a
member of the bargaining unit; indeed, the Union so regards
him as well, for foremen are covered by the contract, and
much of what he does is considered foreman’s work. In fact,
in recent memory he has consulted with David Browning,
one of the Union’s business agents for the North Bay area,
over a personal pay rate matter.
It is undisputed that the Employer does not ask Henry to
perform any actual collective bargaining with the Union. Bill
Simpson, together with his attorney, Mark Jordan, are the in-
dividuals responsible for that portion of the business. The
Employer also appears to be a member of the Redwood Em-
pire Chapter of the Sheet Metal and Air Conditioning Con-
tractors National Association (SMACNA), or at least bound
by the SMACNA multiemployer collective-bargaining con-
tract with Respondent. SMACNA, therefore, would appear to
be the Employer’s collective-bargaining representative, as-
suming that Bill Simpson has delegated that function to any-
one. Certainly Henry is not involved in any way.
On July 21, 1989, one of Respondent’s San Francisco
business agents, James Sheehan, acting pursuant to the
Union’s constitution and by-laws, filed charges against
Henry, accusing him of violating the collective-bargaining
contract and engaging in conduct detrimental to the Union.
More specifically, Sheehan accused him of directing rank-
and-file members to work in breach of the terms of the appli-
cable collective-bargaining contract. He contended that Henry
had dispatched employees to a San Francisco jobsite, covered
by the San Francisco, not the Santa Rosa, contract and had
told them to work under Santa Rosa rules. This included
working an 8-hour, rather than a 7-hour, day; using the Santa
Rosa light commercial payscale instead of the San Francisco
building trades rate; and not allowing for the proper travel
allowances from Santa Rosa.
Henry denied being responsible for whatever had hap-
pened on that job. He answered the charges with a letter,
dated August 4, 1989, saying his responsibilities did not in-
clude that project, as he was serving as the Company’s resi-
dential estimator in Santa Rosa at the time. He affirmatively
asserted that he had not dispatched any employees to it. He
acknowledged that the Company had made a mistake, but
says the employees were paid journeyman wages. He pointed
out that claiming travel pay is first the employee’s responsi-
bility, for he must put the proper information on his time-
card. He then observed that he, personally, has no responsi-
bility to oversee the payroll and has no access to company
payroll records. He therefore denied any personal involve-
ment in, or responsibility for, the San Francisco situation.4
His response, putting the facts in issue, led to a hearing
on Sheehan’s charges. It was conducted on November 14,
1989. Sheehan called employees as witnesses in support of
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Union’s trial record shows that Sheehan asserted that Henry
does not perform collective bargaining or grievance processing for
the Employer. The record is silent regarding Henry’s response, if
any.
6 Sabatino was one of the employees who had been sent to San
Francisco and improperly paid. It may well be, given the timing, that
Henry’s action here corrected the San Francisco error.
his accusations; Henry offered evidence to the contrary. Al-
though the testimony conflicted, the trial committee credited
the workmen. It found Henry guilty as charged and levied
what can only be described as a heavy fine, $10,000, half of
which was to be suspended upon payment of the first half.5
Henry appealed the fine to the International president, but
the president denied the appeal on March 30, 1990; Henry
exercised his right to appeal to the International’s general ex-
ecutive council, but that body denied it; the general sec-
retary-treasurer so notified Henry by letter of November 16,
1990. His only avenue of appeal thereafter was to the general
convention, but it required prepayment of the fine, which
Henry was unable to pay. He sought a waiver but the rules
apparently did not permit the fine to be waived. Having gone
as far as he could, Henry filed the instant unfair labor prac-
tice charge on February 26, 1991.
B. Henry’s Duties for the Employer
There is no dispute that Henry is second in command of
the field work performed by the workmen. He is second only
to Bill Simpson. Respondent concedes that his duties are su-
pervisory in nature and it is apparent that is so. When it
comes to giving directions to employees, he certainly has
independent judgment in making assignments. Indeed, so
does his subordinate, Bernie Simpson. The assignment of
work, dispatching and scheduling are clearly within his au-
thority, although since 1988 those duties have been primarily
Bernie Simpson’s. He has never been formally involved in
any grievance proceeding as those matters have been left to
Bill Simpson. As a matter of timing, it appears that the first
formal grievances filed against Respondent (though its rec-
ognition of the Union is longstanding) occurred after the San
Francisco episode, so that incident is the first time the ques-
tion of grievance-handling authority has ever come up.
There have been occasions in which Henry has been called
on to concern himself with some payroll questions or some
apparently employment-related matters.
With respect to pay rates, his discretionary authority is
nonexistent. The Santa Rosa contract sets forth two pay rates
for journeymen, one for residential work and the other for
light commercial. The rate is determined by the type of
structure being built. Even the San Francisco pay rates,
though different, would be treated in the same manner. The
contract governs and removes discretion from any employer
bound by it. He also testified that he was the individual who
had to seek approval for the employees to work overtime,
approval which had to come from the Union, according to
the contract. When overtime was approved, it was for a spe-
cific job at a contract-specified rate and for specific employ-
ees.
The most common topic discussed appears to be travel al-
lowances. Henry says about once a month a journeyman will
ask questions regarding the appropriate travel pay. He and
the journeyman then look at item 10 of the collective-bar-
gaining contract, check a map and determine what the travel
pay shall be. If errors have been made, he makes the appro-
priate note to payroll for correction. One example of such a
correction occurred with respect to an employee named
Sabatino in March or April 1989,6 where he photocopied the
rule for the employee. If no error has occurred, the matter
ends. He testified that he has no discretion in such matters.
Henry readily agreed with Respondent’s counsel that the
application of the travel rules is mechanical and easy to un-
derstand. That portion of the contract establishes zones based
on either counties where the work is performed or air miles
from a specific point set forth in the contract. The North Bay
counties are Marin, Sonoma, Mendocino, and Lake Counties
and the dispatch and mileage point is 1700 Corby Avenue
in Santa Rosa. In addition, the contract provides a 20-air-
mile radius ‘‘free zone,’’ measured from the Employer’s
shop for which no travel pay is paid. A second 20-air-mile
‘‘free zone’’ can be established for workers sent from a dis-
patch point other than the Employer’s shop. If the work is
performed outside the ‘‘free zones,’’ then travel rules come
into play. Like the map radii, these, too, are mechanical.
They involve nothing more than knowing who provided the
transportation and the number of miles traveled past the
‘‘free zone.’’ I suspect that most questions with which Henry
dealt involved map locations and distance calculations, not
the interpretation of the contract language.
Similarly, another clause of that item provides that ‘‘time
and a half’’ shall be the appropriate wage for driving loaded
trucks before and after regular start and quit times. Again,
the most likely questions Henry had to answer would have
been timecard entries and whether they were before or after
the regular start and quit times. Even the definition of a load-
ed truck is set forth in the contract. This, too, is mechanical.
Henry is also alleged to have been involved in determining
premium pay and bonuses for certain journeymen who have
performed exceptionally well. His testimony does not de-
scribe any specific instance where that has occurred. How-
ever, the preamble to addendum No. 1 to the SMACNA
agreement contains the following sentence: ‘‘The parties
agree that the terms and conditions contained in this Agree-
ment shall apply as the minimum conditions for all work per-
formed hereunder . . . .’’ [emphasis added]. Thus, even if
Henry were involved in deciding whether premium pay or
bonuses should be paid, who should receive it, or how much
it should be, those decisions were not governed by the con-
tract, but had been deliberately left to the Employer’s discre-
tion.
Respondent, in addition to its regular complement of jour-
neymen, also employs apprentices. These are ‘‘beginners’’ in
the industry who have formally enrolled in a training pro-
gram jointly administered by the Union and employer des-
ignees. In addition to their regular workday, apprentices are
obligated to complete a fixed course of schooling, apparently
in the evening. The entity operating the apprenticeship pro-
gram is the joint apprenticeship committee and is created by
item 25 of the addendum. That article sets forth the wage of
an apprentice and requires the Employer to contribute money
to the committee for training. It also limits the Employer’s
right to discharge an apprentice, requiring the committee’s
approval for such a decision. Dispatching the proper ratio of
apprentices to journeymen is also governed by the clause.
763SHEET METAL WORKERS LOCAL 104 (SIMPSON SHEET METAL)
7 Sec. 8(d) in pertinent part: ‘‘[T]o bargain collectively is the per-
formance of the mutual obligation of the employer and the represent-
ative of the employees to meet at reasonable times and confer in
good faith with respect to wages, hours and other terms and condi-
tions of employment, or the negotiation of an agreement or any
question arising thereunder.’’
These ratios are clear and allow for little, if any, discretion.
Ratios also come into play when assigning air-conditioning
specialists to jobs. Again, the contract clearly specifies what
those ratios are to be and Henry agrees that he, as dispatcher,
has no discretion over the proper ratios. Similarly, pay rates
for apprentices are mechanical as well. Depending on length
of time as an apprentice, his rate is a percentage of the jour-
neyman scale as set forth in a chart in the contract.
Each employer involved in the apprenticeship program is
asked to evaluate the apprentice’s progress from time to
time. This Employer does participate in the plan and has des-
ignated Henry to fill out the progress reports for the com-
mittee. The Employer does not currently have a representa-
tive sitting on the committee itself, but Business Representa-
tive David Browning sits on the committee. Browning testi-
fied that the committee accepts evaluations of apprentices
made by either journeymen or foremen, occasionally even
accepting those made by air-conditioning specialists (who are
not considered as skilled as journeymen).
On one occasion, in March 1989, the joint apprenticeship
committee called some of the Employer’s apprentices on the
carpet to explain their excessive absenteeism from the school
program. The committee was considering expulsion and on
March 2 held a meeting to judge their situation. The Em-
ployer sent Henry to that meeting to explain that the appren-
tices’ absences were not their fault, that the Employer had
been sending them to jobs in locations which made it impos-
sible for them to get to the classroom. Henry’s explanation
was accepted and the apprentices were reinstated, but on a
probationary basis.
IV. ANALYSIS AND CONCLUSIONS
This case is the result of two separate views about the
scope of Section 8(b)(1)(B). The Union argues that it should
be narrowly construed; the General Counsel that it it should
be read more broadly. It is true that traditionally the concept
of ‘‘collective bargaining’’ includes the duty to meet and
deal in good faith over employee grievances. Timken Roller
Bearing, 70 NLRB 500, 502 (1946), revd. on other grounds
161 F.2d 949 (6th Cir. 1947); Jacobs Mfg. Co., 94 NLRB
1214, 1225 (1951), affd. 196 F.2d 680 (2d Cir. 1952); Beth-
lehem Steel, 136 NLRB 1500, (1962), enfd. in pertinent part
320 F.2d 615 (3d Cir. 1963); Conoco, Inc., 287 NLRB 548
(1987). Section 8(d) of the Act, which defines good-faith
bargaining, gives the concept a broad reach. Indeed, the duty
is ‘‘continuous,’’ in that it continues throughout the period
during which the parties have a 9(a) exclusive relationship.
Section 8(d) speaks of ‘‘conferring’’ as part of the collective-
bargaining duty, meaning that the duty is ongoing even dur-
ing the term of the agreement, as well as before or after.7
The employer’s representatives performing the ‘‘conferring’’
function may easily be seen as collective-bargaining rep-
resentatives in the broad sense. Thus, the General Counsel’s
view that a person assigned to confer with the Union on the
Employer’s behalf is a collective-bargaining representative or
grievance adjuster within the meaning of Section 8(b)(1)(B)
is not an unreasonable one.
The Supreme Court, however, has recently said on several
occasions that the language of Section 8(b)(1)(B) is to be
narrowly construed. That approach was first highlighted by
the Court in Florida Power Co. v. Electrical Workers IBEW
Local 641, 417 U.S. 790 (1974), when it rejected the Board’s
contention that a violation of Section 8(b)(1)(B) occurred
when a union fined supervisor-members for performing
struck work. It said:
In the present cases, the Board has extended that
doctrine [referring to the San Francisco-Oakland Mail-
ers case, discussed infra] to hold that § 8(b)(1)(B) for-
bids union discipline of supervisors for performance of
rank-and-file work on the theory that performance of
such work during a strike is an activity furthering man-
agement’s interests. We agree with the Court of Ap-
peals that § 8(b)(1)(B) cannot be so broadly read. Both
the language and the legislative history of § 8(b)(1)(B)
reflect a clearly focused congressional concern with the
protection of employers in the selection of representa-
tives to engage in two particular and explicitly stated
activities, namely collective bargaining and the adjust-
ment of grievances. By its terms the statute proscribes
only union restraint or coercion of an employer ‘‘in the
selection of his representatives for purposes of collec-
tive bargaining or the adjustment of grievances,’’ and
the legislative history makes clear that in enacting the
provision Congress was exclusively concerned with
union attempts to dictate to employers who would rep-
resent them in 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 af-
fect 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 803–805. [Emphasis added; emphasized portion
to be compared infra with certain language quoted from
NLRB v. Electrical Workers Local 340 (Royal Electric),
481 U.S. 573 (1987)].
That language was, at least in part, reendorsed by the
Court in American Broadcasting Co. v. Writers Guild, 437
U.S. 411 (1978), and further clarified in Royal, supra. The
latter case rejected the Board’s so-called reservoir doctrine
under which it had concluded that Section 8(b)(1)(B) covered
any supervisor even if he/she did not then actually perform
collective-bargaining or grievance adjustment duties, because
those people were the ‘‘reservoir’’ from whom such persons
would probably come and would or could be called upon to
perform those duties in the future. Thus, it is fair to say that
the Court’s analysis of this portion of the statute is signifi-
cantly more restrictive than the Board’s. There is no bright
line test which both the Board and the Court have adopted.
Respondent asserts, with good reason, that the General Coun-
sel is seeking to reintroduce the reservoir doctrine here;
counsel for the General Counsel says she is simply following
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 San Francisco-Oakland Mailers Local 18 (Northwest Publica-
tions), 172 NLRB 2173 (1968).
9 Sec. 2(11) reads: ‘‘The term ‘supervisor’ means any individual
having authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward or dis-
cipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in con-
nection with the foregoing the exercise of such authority is not of
a merely routine or clerical nature, but requires the use of inde-
pendent judgment.’’ [Emphasis added.]
10 The Board had found in the underlying decision in Royal, that
a supervisor became an 8(b)(1)(B) representative if he handled ‘‘per-
sonal’’ grievances. The Court was skeptical of that analysis, citing
the Board to the congressional purpose as set forth in Florida
Power, supra at fn. 12. I think it is now clear that ‘‘personal griev-
ances’’ are outside the scope of the statute. If the General Counsel’s
reference to Henry’s appearance at the joint apprenticeship com-
mittee meeting is being viewed as some sort of personal grievance
authority, that opinion is without congressional warrant.
11 Even if Henry were an 8(b)(1)(B) representative attempting to
adjust a grievance, the committee members would not be able to do
so for they have no such authority. Thus he would not be engaged
in an 8(b)(1)(B) activity while appearing before the committee.
Therefore, such an appearance would not be evidence of his
8(b)(1)(B) authority. Such evidence would come from some other
source.
that part of the Supreme Court’s Royal decision which ap-
proved a portion of the San Francisco Oakland Mailers’8
logic.
In addition, the Writers Guild decision reiterated the re-
quirement that, as a prerequisite to an 8(b)(1)(B) violation,
the Board must as a factual matter ‘‘inquire whether the
[union’s] sanction may adversely affect the supervisor’s per-
formance of his collective-bargaining or grievance adjust-
ment tasks and thereby coerce or restrain the employer con-
trary to § 8(b)(1)(B).’’ The Court in Royal later described
that duty as the ‘‘crux’’ of Writers Guild.
Thus, under the statute and the Court’s construction, the
Board must first determine whether the supervisor being dis-
ciplined is either a collective bargainer or a grievance ad-
juster; if so, it must then determine whether the discipline
would actually adversely affect his/her performance of those
duties.
First, it is quite clear, conceded by Respondent, that Henry
in 1989 at the time the disciplinary proceedings began, was
a 2(11) supervisor. It is true that one of the duties which
makes one a supervisor under that section of the Act is the
power to adjust grievances.9 However, the Board has always
read those powers in the disjunctive, so that the possession
of only one of those attributes is sufficient to make one a
supervisor. NLRB v. St. Francis Hospital, 601 F.2d 404, 421
(9th Cir. 1979). It is not to be read in such a fashion as to
invest supervisors with those powers, that is, if you possess
one, you possess all. Therefore, when Respondent concedes
Henry is a 2(11) supervisor, it does not also grant that he
is an 8(b)(1)(B) representative. Proof of that fact remains
with the General Counsel.
To prove the contention, the General Counsel has essen-
tially cited, without a great deal of detail, many of Henry’s
2(11) duties. He certainly assigns work, transfers employees
from job to job, oversees and directs their work and evalu-
ates performance; he has the power to hire and fire. He may,
though it is not clear, participate in decisions to reward em-
ployees for good work, i.e., merit pay and bonuses. Some of
these things are governed by the collective-bargaining con-
tract; most are not. For example, hiring must be done
through Respondent’s hiring hall and in accordance with the
contract’s rules. Firing is subject, in a limited way, to the
grievance procedure. The contract does not appear to contain
a ‘‘just cause’’ for discharge clause; nonetheless, item 24,
section N requires the employer to state a reason for the dis-
charge and section O gives the discharged employee the right
to file a grievance.
The General Counsel points to Henry’s ‘‘representation’’
of the Employer during the joint apprenticeship committee
meeting in an effort to head off the committee’s expulsion
of the apprentices as somehow a ‘‘grievance adjusting’’ or
‘‘collective bargaining’’ task within the meaning of Section
8(b)(1)(B). First of all, I fail to see what the grievance was
or what the collective-bargaining task was. It is true that the
committee is the creature of the collective-bargaining con-
tract, but it is an independent body, apparently established
under the auspices of Section 302(c)(6) of the Act. Indeed,
the employer members of such joint committees themselves
have been held not to be employer representatives within the
meaning of Section 8(b)(1)(B) because of that very inde-
pendence and the fact that it does not engage in collective
bargaining. NLRB v. Amax Coal, 453 U.S. 322, 337–338
(1981). If that body is independent, it is not even the agent
of Respondent, so in attending one of its meetings one can-
not resolve contractual grievances or be an essential part of
the collective-bargaining process.10 Accordingly, I do not see
that Henry’s participation in that process shows that he has
any authority under this statute.11
That takes us to the General Counsel’s principal argument,
that under San Francisco-Oakland Mailers, supra, a super-
visor becomes an 8(b)(1)(B) representative if one’s duties in-
volve contract interpretation. It is certainly true that the Su-
preme Court in Royal said:
[W]e conclude that 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). [Emphasis added.]
It is this language which is to be compared with the
italicized quote from Florida Power, supra. It can be seen
that the chief difference between the two is the added ref-
erence to San Francisco-Oakland Mailers, apparently giving
that case some special approval insofar as contract interpreta-
tion may lead to a finding that a supervisor may be deemed
an 8(b)(1)(B) representative. It almost appears that the Royal
decision has added an additional method to the Florida
Power formula for determining such a status. A careful read-
ing, however, reveals that is not the case. Nonetheless, that
appears to be the General Counsel’s rationale behind the in-
stant complaint.
An analysis of San Francisco-Oakland Mailers clearly
shows the fallacy of that reasoning. In that case the dis-
ciplined supervisors clearly had grievance adjusting author-
ity; it was a given in the case. See Trial Examiner Heming-
way’s decision, 172 NLRB at 2176:
765SHEET METAL WORKERS LOCAL 104 (SIMPSON SHEET METAL)
These assistants direct the work and, when the head
foreman is not present, they may (within the limits of
the contract) call for additional men, lay off men, make
initial decisions on grievances, and send a man home
for cause and recommend his discharge. . . . [A]nd, if
the head foreman is not, even temporarily, available at
the time a grievance arises, the chapel chairman [union
steward] will take up grievances or disputes initially
with the assistant foreman. In such instance, the assist-
ant foreman is acting as a representative of manage-
ment. . . . And the fact is that the [Employer] has des-
ignated the foreman and, in his absence, the assistant
foreman, as its representative to make initial decisions
in the adjustment of grievances or the settlement of dis-
putes arising under the contract. [Emphasis added.]
Analytically, therefore, the question of whether those fore-
men interpreted the contract had no bearing on whether they
were 8(b)(1)(B) representatives. They had been given spe-
cific authority as such by the employer; it was a fact and
legal conclusion which was not in dispute and unnecessary
to prove.
To what then, was the Supreme Court in Royal referring?
In context, it was referring to the second element of the vio-
lation, that even where a supervisor-member is an 8(b)(1)(B)
representative, no violation can be made out unless the
union’s discipline ‘‘may adversely affect the supervisor’s
conduct in performing the duties of, and acting in his capac-
ity as, grievance adjuster or collective bargainer on behalf of
the employer.’’ It is the reappearance of the Florida Power
language, previously utilized as the ‘‘crux’’ in Writers Guild
to show that fining the Writers Guild supervisor-members
did in fact interfere with their grievance adjusting authority,
thereby resulting in a violation of Section 8(b)(1)(B).
Thus, in using that language, the Court in Royal was bal-
ancing the right of an employer to have an unfettered collec-
tive bargainer or grievance adjuster against a union’s right to
impose its rules on its own members, whether they were su-
pervisors or not. In some situations, it reasoned, even an
8(b)(1)(B) representative can be subjected to union discipline
without running afoul of that section of the Act. Writers
Guild clearly allows for that possibility. Therefore, the Gen-
eral Counsel’s contention that Henry’s ‘‘contract interpreta-
tion’’ authority renders him an 8(b)(1)(B) representative is a
nonsequitur and not an element of proof of the issue.
Curiously, however, the only area of Henry’s duties which
might be considered interpretation of the collective-bar-
gaining contract is that dealing with travel pay. Yet it is un-
disputed that the provision requires nothing more than a me-
chanical application of distance measurements and appro-
priate mathematical calculations. That sort of ‘‘interpreta-
tion’’ is hardly the sort of skill which the Court would regard
as committed to resolving even less than complex distinc-
tions which might be drawn from a contract. Clearly the
Court was not concerned with so-called ‘‘pre-grievance’’
processing. Obviously, if an employee has a complaint about
a working condition or a claim under the collective-bar-
gaining contract, he or she is likely to first discuss it with
the first line supervisor. Even if that individual reads the
contract and makes a decision, whether favorable or unfavor-
able to the employee, it does not necessarily amount to
‘‘grievance adjustment’’ as that phrase is used in the statute.
If that were true, nearly every employment related decision
made by a supervisor would render him an 8(b)(1)(B) rep-
resentative. Given the Court’s determination that the statute
has a specific and quite narrow purpose, such an analysis
cannot withstand its scrutiny for it is far too broad.
Therefore, I conclude that Henry’s reading and explaining
the travel pay rules, or photocopying them for an employee’s
benefit, cannot even constitute a ‘‘pre-grievance’’ resolution;
certainly it does not rise to any formal or semiformal griev-
ance resolution. It is only an everyday, routine answer to an
employee question. It is true that the employee may later dis-
agree with the explanation by filing a grievance or taking it
to a union official for explanation or further processing. Not
until then would the employer need a grievance adjuster on
the scene. The identity of that person and the nature of his
authority would depend on the needs and desires of higher
management. Not every employer will respond in the same
manner.
Here, Henry was only a potential grievance adjuster, i.e.,
part of the ‘‘reservoir.’’ The authority had never been given
him, even though he was either a foreman or a general fore-
man. Bill Simpson had yet to make a decision on the point
at the time Respondent filed charges against Henry. Indeed,
there is no evidence in this record that Simpson ever made
such a decision, much less gave that power to Henry.
Accordingly, I find that the General Counsel has failed to
demonstrate that the Employer had appointed Douglas Henry
as a collective bargainer or grievance adjuster as those terms
are used in Section 8(b)(1)(B). The discipline levied on
Henry for the manner which employees were paid is outside
the reach of the Act. The complaint shall therefore be dis-
missed.
CONCLUSIONS OF LAW
1. The Employer, Simpson Sheet Metal, Inc., is an em-
ployer engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Respondent, Sheet Metal Workers International Associa-
tion, Local Union No. 104, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. Douglas Henry is not a representative of the Employer
within the meaning of Section 8(b)(1)(B) of the Act.
4. Respondent’s discipline of Henry, therefore, did not
constitute a breach of Section 8(b)(1)(B) of the Act.
[Recommended Order for dissmisal omitted from publica-
tion.]