Sheet Metal Workers, Local 71

National Labor Relations Board - Board Decisions

Sep 2, 1971

193 N.L.R.B. 23 (N.L.R.B. 1971)

SHEET METAL WORKERS , LOCAL 71 23
Sheet Metal Workers ' International Association, Local
No. 71, AFL-CIO (H. J. Otten Company, Inc.) and
William E. Schade . Case 3-CB- 1392-2
September 2, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September 30, 1970, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent timely filed exceptions to the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions,
and the entire record in the case, and hereby adopts
the findings, conclusions,' and recommendations of
the Trial Examiner.
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This proceeding was
heard before me in Buffalo, New York, on June 30,
pursuant to a charge filed on February 9, and complaint
issued on May 15, 1970. The complaint, as amended at the
hearing, alleges that Respondent Union restrained and
coerced H. J. Otten Company, Inc. (Otten), in violation of
Section 8(b)(1)(B) of the National Labor Relations Act, as
amended, by fining a management representative, also a
member of the Union, for working during a strike and for
the manner in which he made overtime assignments to
employees:
All parties appeared and were afforded full opportunity
to be heard and to examine and cross-examine witnesses.
Briefs were received from General Counsel and Respon-
dent on August 10, 1970. Upon the entire record' and my
observation of the testimonial demeanor of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Otten, the employer here involved, is a New York
corporation engaged in the fabrication and installation of
sheet metal and related products at its Cornwall Street
plant in Buffalo, New York, the plant here involved.
During the past year, a representative period, Otten
purchased and received at its said plant products valued in
excess of $50,000 from points outside New York State. I
find that at all material times Otten has been an employer
engaged in commerce and in operations affecting com-
merce within the meaning of the Act; and that assertion of
jurisdiction herein is proper.
II. LABOR ORGANIZATION INVOLVED
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Sheet Metal Workers' International
Association, Local No. 71, AFL-CIO, its officers,
agents , and representatives, shall take the action set
forth in the Trial Examiner's Recommended Order.2
1 Chairman Miller would not adopt the Trial Examiner's conclusion
that in the circumstances here , the Union 's request that Supervisor Schade
appear before the Union Executive Committee , in connection with a
matter in which the Union had a legitimate interest , was in and of itself a
violation of Section 8 (b)(lXB). As he agrees , however, that any attempt to
discipline a supervisor for anything which occurs in consequence of such
meeting is unlawful under Section 8 (b)(l)(B), he concurs in the other
findings of violation and the remedial order.
2 In footnote 18 of the Trial Examiner 's Decision , substitute "20" for
"10" days.
Respondent Union is a labor organization within the
meaning of "Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background; contractual relations and Schade's
position as management representative
Otten has had contractual relations with the Union for
several years. Unable to agree on a new collective
agreement with Otten and other employers in the area, the
Union on June 2, 1969,2 struck Otten and other employers.
The strike ended on June 15 when a new agreement,
effective June 1, 1969, to May 31, 1972, was executed. Qtten
customarily obtained all its help through referrals from the
Union, as provided in its collective agreements.
William E. Schade has been Otten's superintendent of
erection for 10 years. His duties include estimating and
pricing jobs. He spends a good portion of his time
I Transcript corrected by my order on notice dated September 2, 1970.
2 Unless otherwise indicated , all dates hereafter are 1969.
193 NLRB No. 5
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overseeing the work at jobsites, assigns work to employees,
transfers them from job to job, determines when overtime
work is needed and distributes it, and possesses authority to
hire, fire, and discipline. He handles and adjusts grievances,
including complaints concerning assignments and distribu-
tion of overtime work.
2. The Union Executive Board's questioning of
Schade concerning his overtime work assignments
and his employment during the strike
Schade has been a Union member for about 25 years. On
June 28, George Cuddihy, the Union's business manager
and "principal executive officer," wrote him a letter
requesting him to appear before the Union's Executive
Board "to either substantiate or dispel any or all .. .
complaints or rumors" concerning the work at the
Chevrolet Foundry project. Cuddihy testified that the letter
was prompted by complaints concerning the "inadequacies
of the distribution of the overtime and the favortism that
the members presumed Mr. Schade was showing to certain
people" before and after the strike. According to Cuddihy,
Schade was called to appear in his capacity as Union
member "and also as being responsible as a supervisor over
the overtime." Cuddihy explained that the distribution of
overtime, a matter covered by the collective agreement, had
been "a constant problem between the membership and the
Company. " 3
As required, Schade appeared before the Executive
Board at the Union hall on July 11.4 Cuddihy questioned
Schade about overtime-"how does he figure out who
works it." Schade said "our best help, our regular men .. .
they get mostly overtime." Among other things, Schade
complained about "the caliber of men" the Union was
sending him, stating that many were "intoxicated half the
time or they wouldn't do the work." After further
discussion of the overtime subject, Business Representative
Olenjniczak mentioned that "it was rumored that [Schade]
3 The collective agreement states : "Preference to overtime . work
shall be given to men on the job on a rotation basis so as to equalize such
work as nearly as possible."
4 The Union's steward at Otten (Pawlak) also appeared in response to
Cuddihy's request.
5 Schade testified that at the request of Otten President Hangauer he
went to the Chevrolet plant on two or three occasions during the strike to
estimate the value of the unfinished portion of a job started there by Otten
before the strike According to Schade, Chevrolet wanted Otten "to check
out the remainder of our work that was not finished in the plant because
they wanted to cancel us out and do it themselves if the strike lasted too
long."
9 the above findings on the July II Union Executive Board meeting are
based' primarily on Cuddihy's testimony , in large part corroborated by
Schade.
r The July 14 letter read:
Pursuant to your actions and admissions before the Executive
Board Meeting of this Local Union on July 11, 1969 we hereby charge
you with the following violations of the Sheet Metal Workers'
International Association Constitution and Ritual
1) Your failure to comply with the reasonable request of the President,
Financial Secretary and Business Manager to return your dues receipt
to your possession after throwing it out onto the meeting table
constitutes a violation of Article 17, Section 1 (b) of the Constitution
and Ritual.
2) Your verbal accusations that this Local Union has continously and
deliberately sent unfit journeymen members for work at the H J.
Otten Company and your verbal attacks of degradation upon the
had worked during the strike." Schade admitted doing
some "measuring work" at the Chevrolet project.5 Accord-
ing to Cuddihy, "everybody was then shooting questions
... as to what he was doing out there." One Executive
Board member remarked that "measuring work" was
"working, isn't it." Schade became angry and threw his
dues receipt slip on the table, exclaiming, "Yes, I worked
during the strike, Here's my card and you can have it. I
don't need it." As Schade started to leave , an Executive
Board member asked him to pick up the dues receipt, but
Schade "stormed" out of the room.6
3. Schade 's appearance before the Union's "trial
committee" to answer charges ; the fines levied
against him
By letter dated July 14, signed by Business Manager
Cuddihy and Business Representative Olenjniczak, Schade
was notified of charges against him under the Union's
constitution, consisting of five different specifications-one
based on his admission that he had worked at the Chevrolet
plant during the strike; three based on alleged misbehavior
at the July 11 Executive Board meeting (throwing down his
dues receipt, failing to pick it up on request, and accusing
the Union of referring "unfit" members); and the fifth of
general nature (conduct "detrimental to the best interests"
of the Union).7
On August 11, Schade appeared before a Union "trial
committee" in connection with these charges .8 Six members
of the Executive Board-all present at the July 11 Board
meeting-appeared as witnesses . Schade pleaded not guilty
to all five charges. Thereupon the witnesses testified
concerning the circumstances.
The trial committee unanimously found Schade guilty of
all five charges, levying fines against him ranging from $100
membership of this Local Union constitutes a violation of Article 17,
Section 1 (c) of the Constitution and Ritual.
3) Your action of throwing away your official dues receipt together
with the remarks that you do not need this Local Union and you do
not need to be a member to maintain your present employment and
enjoy your present wage rates constitutes an attempt to secede from
Local Union No. 71 and is therefore a violation of Article 17, Section
1(f) of the Constitution and Ritual.
4) Your admission that you worked for the H .J. Otten Company at the
Chevrolet Plant, River Road , Tonawanda New York, sometime during
a period beginning June 1 , 1969 until June 15, 1969 during which time
the members of this Local Union were on strike against various sheet
metal contractors , one of which was the H .J. Otten Company of 77
Cornwall Ave Buffalo N .Y., constitutes a violation of Article 17
Section 1 (g) of the Constitution and Ritual.
5) Your conduct has been of a nature detrimental to the best interests
of the Sheet Metal Workers' International Association and this Local
Union and constitutes a violation of Article 17 Section 1(m) of the
Constitution and Ritual.
A copy of these charges has been filed with the President of Sheet
Metal Workers Local Union No. 71 and you will be notified
accordingly.
8 The trial committee consisted of five Union members . Although the
transcript of the proceedings lists Cuddihy as a sixth committeeman, he
testified that he was not on the trial committee , but he conducted some of
the questioning . Although Schade appeared with an attorney, the latter was
not permitted to participate.
SHEET METAL WORKERS , LOCAL 71 25
to $300 on each-a total of $1,100. The fine on charge 4
(working during the strike) was $200.9 The committee's
decision and action were approved by Respondent Local
71; Schade's appeal to the International was pending at the
time of the instant hearing, with none of the fines paid.
B. Conclusions
1. Applicable principles
Under Section 8(b)(1)(B) of the Act, it is unlawful for a
union to "restrain or coerce . . . an employer in the
selection of his representatives for the purposes of collective
bargaining or the adjustment of grievances." The Board
and courts have construed this section broadly to
accomplish its intended objective. In San Francisco-Oak-
land Mailers' Union No. 18, International Typographical
Union (Northwest Publications, Inc.), 172 NLRB No. 252 (69
LRRM 1157), the Board stated, "In enacting [this section]
Congress sought to prevent . . . union interference with an
employer's control over its own representatives." Analogiz-
ing to the Section 7 right of employees to representatives of
their choice, the Court in General Electric Company v.
N.L.R.B., 412 F.2d 512, 516-517 (C.A. 2) observed: "This
right of employees and the corresponding right of
employers . . . to choose whomever they wish to represent
them . . . is fundamental to the statutory scheme. In
general , either side can choose as it sees fit and neither can
control the other's selection ...." Accord: Carpenters
District Council of Milwaukee, etc. [Del-Mar Cabinet
Company] v. N.L.R.B., 274 F.2d 564, 566 (C.A.D.C.).
As Respondent recognizes, the Board has interpreted
Section 8(b)(1)(B) to forbid a union to coerce or restrain an
employer by disciplining, or threatening to discipline, a
managerial representative who is also a member of the
union , where such action is taken against the latter "for his
performance of duties as an employer representative"
(Resp. br. p. 4). In Houston Typographical Union No. 87
(Houston Shopping News Company d/b/a Naylor Type and
Mats), 182 NLRB No. 91 (74 LRRM 1171), the Board held
that a union runs afoul of this section even if it merely
"took . . . action . . . to render a [management] represent-
ative . . . more amenable to its interpretation of how the
contract should be applied." In Dallas Mailers Union, Local
No. 143, etc. (Dow Jones Company, Inc.), 181 NLRB No. 49
(73 LRRM 1360), the Board held that action against a
member-supervisor is unlawful if it may be construed as a
"signal" to other company representatives "that they could
be subject to similar discipline if they administer the
contract in a manner so as to incur the Union's
displeasure." In short, a union may not, by using its internal
disciplinary procedures, compel a supervisor-member to
interpret a collective agreement or handle a grievance in
any particular manner.
While, as Respondent points out (br. pp. 7-9), the cases
heretofore decided in this area generally involved matters
relating to contract interpretation and grievance adjust-
ment, the Board in at least one case found the union's
disciplinary action against a supervisor-member violative of
Section 8(b)(1)(B) even though the supervisor's offending
conduct was not directly related to either. Thus, in New
Mexico District Council of Carpenters and Joiners of
America, etc, (A. S. Horner, Inc.), 176 NLRB No. 105 (71
LRRM 1445), the Board held that a union violated this
section by fining a supervisor-member for engaging in an
antiunion campaign-urging employees to vote against the
supervisor-member's union in a representation election.
The Trial Examiner's Decision in that case, adopted by the
Board, sets forth the following rationale:
It is clear that Respondents [the unions] preferred
charges against and fined Wilson [the supervisor-
member] as a means of disciplining him because he
placed the interests of the Company above those of
Respondents. This was obviously coercion against the
Company because it would tend to require the
Company to retain as representatives for collective
bargaining and adjustment of grievances only individu-
als who were subservient to Respondents.... Wilson
could and did adjust grievances. Respondents were
forbidden by the Act to dictate to the Company whom
it should select to adjust employee grievances. Respon-
dents' actions "were designed to change the
[Company's] representatives from persons representing
the viewpoint of management to persons responsive or
subservient to Respondents' will. In enacting Section
8(b)(l)(B) Congress sought to prevent the very evil
involved- herein-union interference with an employer's
control over its own representatives. [Citation] That
Respondent[s] may have sought the substitution of
attitudes rather than persons, and may have exerted
[their] pressure upon the [Company] by indirect rather
than direct means, cannot alter the ultimate fact that
pressure was exerted here for the purpose of interfering
with the [Company's] control over its representatives.
Realistically, the [Company] would have to replace its
[superintendents] or face de facto nonrepresentation by
them." San Francisco-Oakland Mailers' Union No. 18,
172 NLRB No. 252.
*
By fining Wilson, Respondents did so because he chose
to act as management representative, which he was,
Applying these principles to the facts in this case, I find
that Respondent restrained and coerced Otten in violation
of Section $(b)(1)(B) of the Act by: (1) summoning Otten's
erection superintendent (Schade) before a Union trial
committee to answer, among other things, a charge that he
worked during a strike against Otten, and then fining him
for performing the work; and (2) summoning him to the
Union's Executive Board and there questioning ' him
concerning his distribution of overtime work, a managerial
activity.
2. The charge and fine against Superintendent
Schade for working during the strike
The undisputed evidence establishes that Schade, a high
managerial official, made two or three visits to the
Chevrolet project during the June 2-15 strike against Otten
9 The fines on charges 1, 2, 3, and 5 (supra, In. 7) were respectively $100,
$300, $300, and $200.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of inspecting and estimating the value of
the unfinished work at Chevrolet. This work, made at the
request of Otten President Hangauer , was a normal part of
Schade's duties as superintendent of erection. When
questioned about it at the Union's July 11 Executive Board
meeting, Schade admitted working during the strike. Based
on this "admission" and alleged misconduct at that meeting
(throwing down his dues receipt, accusing the Union of
referring "unfit" members , etc., see supra, sec. A, 3),
Respondent preferred charges against Schade . On August
11, he was subjected to trial before a Union committee,
which found him guilty of all charges, including working
during the strike, for which he was fined $200.
While, as Respondent points out, the Board has not yet
directly passed on the question whether disciplinary union
action against a supervisor-member for working during a
strike is a violation of Section 8(b)(1)(B),10 my colleague,
Trial Examiner Frederick U. Reel, recently issued a
decision 11 in which he found that such union conduct falls
within the proscription of this section, particularly in the
light of the Board's decision in A. S. Horner, Inc., supra, 176
NLRB No. 105 . Trial Examiner Reel reasoned:
As an original proposition I would be inclined to
construe Section 8(b)(1)(B) as interdicting union fines
of supervisors only when the conduct for which the
supervisor was fined bore some relation to his role as a
representative of management in "collective bargaining
or the adjustment of grievances," to quote Section
8(b)(1)(B). In the instant case the question confronting
the supervisors whether to work or to respect the strike
call of their Union was in no way related to those
subjects.
The Board in the . . . Horner case (176 NLRB No. 105),
however, did not limit the scope of Section 8(b)(1)(B)
along the lines I have indicated. In that case the
supervisor was fined because he signed a letter urging
the employees to vote against the union. Such conduct
on his part bore no discernible relationship to his role as
a representative of management in collective bargaining
or the adjustment of grievances . Indeed , the conduct of
the supervisors in the instant case in working during the
strike seems far more directly related to furthering the
legitimate aims of management , and far more directly
related to the normal obligations of a supervisor, than
the conduct of the supervisor in Horner. But the Board
in that case found that the union by fining the
supervisor violated Section 8(b)(1)(B). . . . The respect
which I am compelled to pay the Board's holding in that
case requires me to find a similar violation here.
I agree . This case is even a stronger one than Illinois Bell
decided by Trial Examiner Reel. To begin with, the
10 In Toledo Locals Nos. 15-P and 272 of the Lithographers and
Photoengravers International Union, AFL-CIO (The Toledo Blade Company,
Inc.), 175 NLRB No. 173 (71 LRRM 1467), the Board found that a union
violated Section 8(b)(IXB) by imposing fines on supervisor-members for
working during a strike , but the Board's holding appears to turn on the
question whether the union could impose the fines because the supervisors
had allegedly violated specific contract provisions limiting the amount of
production the supervisors could perform and the circumstances under
which the supervisors could perform production work
supervisor here involved (Superintendent Schade) was a
higher managerial official than the foremen involved in
Illinois Bell. Moreover , whereas in that case the employer
"expressly left the decision up to each individual supervi-
sor, with specific assurances that no reprisals would be
visited on those who chose not to work," here the Employer
gave the supervisor (Schade) no such choice; it directed him
to perform the work which led to disciplinary action.12
Accordingly, as in A. S. Horner, supra, 176 NLRB No. 105,
"[i]t is clear that Respondent [s] preferred charges against
and fined [Schade ] as a means of disciplining him because
he placed the interests of the Company above those of
Respondent[s]. This was obviously coercion against the
Company because it would tend to require the Company to
retain as representatives for collective bargaining and
adjustment of grievances only individuals who were
subservient to Respondent[s]."
3. The Union Executive Board 's questioning of
Schade concerning his distribution of overtime
work
As found, on June 28 the Union summoned Superintend-
ent Schade to appear before the Union Executive Board "to
either substantiate or dispel any or all . . . complaints or
rumors" about his allegedly unequal or unfair distribution
of overtime assignments prior to and after the strike.
According to Union Business Manager Cuddihy, the
matter of overtime work was "a constant problem between
the membership and the Company." Cuddihy conceded
that Schade was called before the Executive Board in his
capacity as Otten's "supervisor" in charge of overtime
assignments as well as Union member. Subsequently, on
July 11, the Executive Board questioned Schade on the
manner and method of his assignment of this work (and
also, as we have seen, about his working during the strike).
There is no question that distribution of overtime work, a
subject covered by the collective agreement, related to
Schade's role as employer representative in administration
of the agreement. The sole question here is whether the
Union's action in hailing Schade before the Executive
Board meeting to justify his assignments and to answer
members' complaints regarding it had the natural and
foreseeable tendency of restraining or coercing Schade in
the exercise of this managerial function on behalf of his
Employer. I think it did. Summoning a supervisor-member
to a union hall for attendance before the highest official
body of the union, to respond to members' complaints
against his role in the administration of the collective
agreement, necessarily operates to inhibit and restrain the
supervisor-member in representing and advancing the
viewpoint of management, and is thereby coercive upon the
management on whose behalf he acts. The natural effect, if
11 International Brotherhood of Electrical Workers, AFL-CIO, and Local
134, etc. (Illinois Bell Telephone Company), Case 13-CB-2890
(TXD-378-70)
12 The lack of compulsion to work during the strike in Illinois Bell
prompted Trial Examiner Reel to observe that although he found the union
activity unlawful, he had "some difficulty in concluding that the Company
was restrained or coerced by the Union's action in fining the supervisors
who worked or even in finding that the Union 's action had any natural or
inherent tendency to restrain or coerce the Company."
SHEET METAL WORKERS , LOCAL 71 27
not the ostensible object, of such action is to induce and
compel the employer through its supervisor-member to be
more amenable to the union's interpretation of how the
contract should be administered. The fact that the union, as
here, did not actually discipline him by fine or expulsion in
connection with the overtime is not determinative. In the
circumstances indicated, Schade could reasonably have
concluded that further Union action would ensue if he
failed to conform to the Union's position. Furthermore,
"restrain or coerce" as used in Section 8(b)(l)(B) includes
action short of fine or expulsion.13 And the fact that Schade
may not have been actually coerced or intimidated "is of no
relevance" since the "test is whether the [union ] misconduct
is such that, under the circumstances existing, it may
reasonably tend to coerce or intimidate...." Cf. Local
542, International Union of Operating Engineers, AFL-CIO
[Giles & Ransome, Inc.] v. N.L.R.B., 328 F.2d 850, 852
(C.A. 3).
Contrary to Respondent's contention (br. p. 3), the
Executive Board's questioning of Superintendent Schade
cannot cavalierly be overlooked as a mere "general inquiry
concerning complaints." The "underlying dispute was
between the Respondent and the Company [on a contractu-
al matter-overtime ] and not between the Respondent and
one of its members [on an intraunion matter]." Cf. A. S.
Horner, Inc., supra, 177 NLRB No. 76. If Respondent
desired to question Schade's activities in this regard, it had
only to meet with him in his managerial capacity under the
available contractual procedures for settling grievances,
rather than (as here) through the Union's internal
procedures at a formal Executive Board meeting called for
that purpose. The Employer here was entitled to have its
representative (Schade) free of union coercion with respect
to the overtime decisions he made for it as its representa-
tive. See Freight, Construction, General Drivers, Warehouse-
men and Helpers Union, Local 287, etc. (Grinnell Company of
the Pacific), 183 NLRB No. 49,74 LRRM 1354.
Accordingly, I find and conclude that by summoning
Schade to the Union's Executive Board meeting and there
requiring him to defend against his managerial activity in
his Employer's behalf in assigning overtime work, Respon-
dent violated Section 8(b)(IXB) of the Act. 14
CONCLUSIONS OF LAW
1. Respondent violated Section 8(b)(1)(B) of the Act
13 In New Mexico District Council of Carpenters and Joiners of America
(A. S. Horner, inc.), 177 NLRB No. 76, 71 LRRM 1470 (the second Horner
case), the Board found a union's conduct in "citing" the management
representative to trial and preferring charges against him (as well as its
fining him) to constitute restraint and coercion. In Toledo Blade Company,
supra, 175 NLRB No. 173, the Board found the union 's fining of
supervisors unlawful even though the fines were suspended.
14 In making this finding , I am fully cognizant of the fact that the
complaint , as amended at the hearing , alleged that the violation consisted
of fining (not merely interrogating) Schade because of the manner of his
overtime assignments . While agreeing with Respondent (br. p. 13) that
none of the fines imposed on Schade (see In . 7, supra) was predicated on
the overtime assignments, I do not consider myself foreclosed from finding
that Respondent violated Section 8(b)(1)(B) by questioning Schade on this
subject and compelling him to defend himself at a formal Executive Board
meeting . This aspect was fully litigated, the violation found is closely
related to and intertwined with the allegations , and the finding is
established by substantially undisputed evidence , including the testimony
of Respondent's witness Cuddihy. Cf. Granada Mills, Inc., 143 NLRB 597,
by: (a) summoning Erection Superintendent Schade to the
Union's Executive Board, citing him to a Union trial, and
fining him for working during the June 2-15 strike; and (b)
summoning him to the Union Executive Board and there
questioning him concerning his overtime work assignments,
the subject of Union member complaints.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section
8(b)(1)(B) of the Act, I shall recommend that it be required
to cease and desist from the unfair labor practices found
and to take certain affirmative action designed to effectuate
the purposes of the Act. In his brief (pp. 3-4), General
Counsel requests that the order require Respondent to
rescind not only the $200 fine imposed against Schade for
working during the strike,15 but the total $1,100 fine levied
against him. As shown (supra, sec. A, 3, fn. 7), three of the
remaining four fines were based on Schade's alleged
misbehavior at the July 11 Executive Board meeting
(throwing down his dues receipt with the remark that he did
not need the Union, failure to pick it up when requested to
do so, and accusing the Union of referring "unfit" help)
and the fourth fine on the general charge that his conduct
"has been of a nature detrimental to the best interests" of
the Union.. General Counsel contends (br. p. 4) that since
the "total fines resulted as a direct consequence of
Respondent's calling Schade before the Executive Board to
dispel rumors that Schade was failing to administer
overtime assignments fairly, a matter of contract adminis-
tration, and that Schade was performing work during the
strike period . . . the entire fine based on the various
counts of the intra-union charge constituted a violation of
the Act."
I find merit in General Counsel's position. To be sure, a
union may lawfully discipline a member, even a supervisor-
member, for violating a purely internal union rule,
unrelated to his performance as a managerial representa-
tive, such as for misconduct at a union meeting or
revelation of a confidential union matter. See Grinnell
Company of the Pacific, supra, 183 NLRB No. 49. However,
here the member's alleged misconduct cannot be disentan-
gled from his execution of his job responsibilities on behalf
of his employer. In these circumstances, it "rested upon the
598, in. 1; Rttndolph Rubber Company, Inc., 152 NLRB 496, 499, fn. 7. Cf.
Frito Comparty v. N. L. R. B., 330 F.2d 458, 465 (C.A. 9). Nor do I find merit
in Respondent's contention that the complaint was improperly amended at
the close of the hearing to add the allegation on the overtime assignments.
(The original complaint alleged only a violation based on a fine against
Schade for working during the stoke-and also crossing a unioir picket
line, but the latter allegation was withdrawn at the outset of the hearing.)
As already noted, the findings on this point are based on undisputed
(including Union proffered) testimony . Additionally , although specifically
afforded opportunity to adduce further evidence to meet the allegation
concerning the overtime assignments , Respondent failed to avail itself of
the offer. Cf. The Lion Knitting Mills Company, 160 NLRB 801, 802;
N.L.R. B. v. Thompson Transport Company, Inc., 73 LRRM 2387, 2388 (C.A.
10); N L R B. v. William J. Burns International Detective Agency, Inc., 346
F 2d 897, 900 (C A. 8).
15 As indicated, no fine was imposed against Schade for his'alleged
unfair overtime work assignments, Schade having only been questioned
regarding his actions at the Union Executive Board meeting.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tortfeasor to disentangle the consequences for which it was
chargeable from those from which it was immune."
(N. L. R. B. v. Remington Rand, Inc., 94 F.2d 862, 872 (C.A.
2).) To conclude otherwise would permit a union to
accomplish indirectly what it could not accomplish
directly ; i.e., it could provoke a supervisor -member
resisting illegal union intrusion into the supervisor's
managerial functions to misconduct himself in the process
and then subject him to disciplinary action for violating its
internal union rules on conduct at meetings.
Accordingly , the remedy recommended herein will
include a requirement that the Respondent rescind the total
$1,100 fine levied against Schade . It will also require
Respondent , in accordance with usual requirements in
cases of this type , to expunge from its records any entry of
impropriety on Schade 's part in relation to the subject here
discussed and to notify Schade in wnting that it has taken
these actions , as well as that it will cease and desist from
similar action in the future. See, e .g., A. S. Horner, supra,
177 NLRB No. 76; Toledo Blade Company, supra, 175
NLRB No. 173.
RECOMMENDED ORDER i6
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I recommend that
Sheet Metal Workers ' International Association , Local No.
71, AFL-CIO, its officers, agents , and representatives,
shall:
1. Cease and desist from:
(a) Questioning at union meetings supervisors who are
members of Respondent, preferring charges against them,
or fining or otherwise disciplining them , as to matters
relating to their employment, while such supervisors are the
selected representatives of H. J . Otten Company, Inc., for
the purposes of collective bargaining or the adjustment of
grievances.
(b) In any like or related manner restraining or coercing
the aforesaid Employer in the selection of its representa-
tives for the purposes 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 fines imposed against William E. Schade
and expunge from its records all reference and other
evidence in its files to the proceedings in which Schade was
fined by Respondent and questioned concerning his
employment during the June 2-15, 1969 , strike and his
assignment of overtime before and after said strike.
(b) Notify Schade , in writing, that it has taken the action
described in paragraph 2(a), above , and that it will cease
and desist from any of the actions described in paragraph 1
of this Recommended Order.
(c) Notify, in writing, Respondent's International to
which Schade has appealed the fines levied against him of
the aforesaid actions with a copy of such writing to Schade.
receipt thereof , and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all places
where notices to members 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.
(e) Furnish the Regional Director for Region 3 signed
copies of said notice for posting by H. J. Otten Company,
Inc., if willing, in places where notices to employees are
customarily posted . Copies of said notices , on forms
provided by said Regional Director, shall, after being
signed by Respondent , be forthwith returned to the
Regional Director for disposition by him.
(f) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision , what steps have been
taken to comply herewith.is
I6 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102 .48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes,
it In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
is In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question at union meetings , prefer
charges against, and fine or otherwise discipline
William E. Schade or any other supervisor who is a
member of this labor organization as to matters relating
to his employment , while such supervisor is the selected
representative of H. J . Otten Company, Inc., for the
purposes of collective bargaining or the adjustment of
grievances.
WE WILL NOT in any like or related manner restrain
or coerce H. J. Otten Company , Inc., in the selection of
its representatives for the purposes of collective
bargaining or the adjustment of grievances.
WE WILL rescind the fines imposed against William
E. Schade and expunge from our records all reference
and other evidence in our files of the proceedings in
which Schade was fined by us and in which we
questioned Schade concerning his employment during
the June 2-15, 1969, strike and his assignment of
overtime before and after said strike.
(d) Post at its business office , meeting halls, copies of the SHEET METAL WORKERS'
attached notice marked "Appendix ." 17 Copies of said INTERNATIONAL
notice , on forms provided by the Regional Director for ASSOCIATION , LOCAL No.
Region 3 , after being duly signed by Respondent 's 71, AFL-CIO
representative , shall be posted by it immediately upon (Labor Organization)
SHEET METAL WORKERS , LOCAL 71 29
Dated By from the date of posting and must not be altered, defaced,
(Representative) (Title) or covered by any other material.
Any questions concerning this notice or compliance-with
its provisions may be directed to the Board 's Office, 4th
This is an official notice and must not be defaced by Floor, The 120 Building, 120 Delaware Avenue , Buffalo,
anyone . New York 14202 , Telephone 716-842-3700.
This notice must remain posted for 60 consecutive days