Sheet Metal Workers, Local 40

National Labor Relations Board - Board Decisions

Apr 6, 1973

202 N.L.R.B. 958 (N.L.R.B. 1973)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association,
Local Union No. Forty, AFL-CIO and The Capitol
Ventilating Company. Case 1-CB-2033
April 6, 1973
DECISION AND ORDER
complaint issued on July 21, and the case was heard on
October 4. The issues litigated involved alleged violations
of Section 8(b)(l)(B) of the Act. After the hearing briefs
were filed by Respondent and the General Counsel.
Upon the entire record,2 including observation of the
demeanor of the witnessess, the following findings and
recommendations are made:
By MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 19, 1972, Administrative Law Judge
Sidney Sherman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and General Counsel filed a
brief 1 in support of the Administrative Law. Judge'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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , Sheet Metal Work-
ers' International Association , Local Union No.
Forty, AFL-CIO, Hartford , Connecticut , its officers,
agents , and representatives , shall take the action set
forth in the said recommended Order.
I Subsequently, General Counsel filed a motion requesting that the
hearing in this case be reopened to permit its consolidation with another
case involving the same parties and having a common background and that
this case be remanded to Administrative Law Judge Sidney Sherman for the
purpose of receiving evidence on the complaint issued in the related case.
The motion is denied. Although the cases may be related, the alleged
violation in the subsequent case appears sufficiently different in character
and removed in time from the instant violations so as not to warrant the
action requested by General Counsel. The trier of subsequent case may,
insofar as is appropriate, take official notice of the record and our decision
herein.
2 We do not adopt the Administrative Law Judge's attempt to
"formulate a rule to fit all the precedents in this [8(b)(1)(B)l area" set forth
in the next to last paragraph of part B, entitled "Discussion, " of the attached
Decision.
DECISION
SIDNEY SHERMAN, Administrative Law Judge: The initial
charge was served upon Respondent on June 5, 1972,1 the
Jurisdiction
The Capitol Ventilating Company, hereinafter called the
Company, is a corporation under Connecticut law, and is
engaged at its plant in Hartford , Connecticut, in the
fabrication of sheet metal ducts and related products,
which it installs atjobsites in the Hartford area. It annually
receives from out-of-state points materials valued at more
than $50,000. Its employees are represented by Respon-
dent , which is a labor organization within the meaning of
the Act.
It is found that the Company is engaged in commerce
within the meaning of the Act and that it will effectuate the
Act's policies to assert jurisdiction herein.
1. THE MERITS
The pleadings, as amended at the hearing, raise the
following issue:
Whether Respondent violated Section 8(b)(1)(B) of the
Act by taking certain disciplinary action against three
alleged supervisors?
A. Sequence of Events
In its plant the Company fabricates sheet metal ducts
and ventilation equipment, which it installs atjobsites. The
fabrication work is directed by Goldstein, who bears the
designation of "shop foreman." The installation work is
directed by a number of so-called "field foremen,"
including Marks and Carola.
The Company's current contract with Respondent runs
from July 1, 1971, to June 30, 1973. The only specific
references therein to foremen are contained in "Addendum
VIII" of the contract, which requires the employment by a
local employer of at least one member of Respondent as a
foreman and the payment to foremen of 50 cents an hour
more than journeymen. The contract also provides for the
payment of contributions by the Company to various
funds, including vacation, pension, and welfare funds, the
amount of such contribution for each individual being
based on the number of hours worked by him.
On December 9, 1971, Carola discharged an employee
for cause. On February 1, he was fined $100 by Respon-
All dates herein are in 1972, unless otherwise shown.
2 At p. 37, I. 7, of the transcript, ruling was reserved on an objection by
counsel for the Charging Party to a certain line of testimony. At p. 39, II. 4-5
of the transcript, I stated that I would "admit" questions by Respondent's
counsel pertaining to that line, which ruling was intended to dispose of the
foregoing objection. In any event, to remove any doubt on the point, such
objection is now expressly overruled.
SHEET METAL WORKERS , LOCAL 40 959
dent for allegedly violating a provision of Respondent's
constitution in connection with that discharge.
On April 7, Goldstein and Marks performed some work
before their regular starting time in connection with the
loading of a truck. On July 28, on the basis of this incident,
each of them was fined $50 for an alleged violation of
article VI, section 1 of Respondent's current contract and
$50 for an alleged violation of Respondent's working rule
8.
Article VI, section 1, of the contract reads:
Section, 1. The regular working day shall consist of
seven (7) hours labor in the shop or on the job between
eight (8) a.m. and 3:30 p.m. and the regular working
week shall consist of five (5) consecutive seven (7) hour
days labor in the shop or on the job, beginning with
Monday and ending with Friday of each week. All full
time or part time labor performed during such hours
shall be recognized as regular working hours and paid
for at the regular hourly rate. Except as otherwise
provided pursuant to Section 4 of this Article, all work
performed outside the regular working hours and
performed during the regular work week, shall be at
Double (2) times the regular rate.3
Respondent's working rule 8 provides:
It shall be the responsibility of each journeyman to
report his overtime to the Union Office at once.
Both Marks and Goldstein are journeymen. Admittedly,
neither reported to Respondent his before-hours activity
on April 7.
As of the time of the instant hearing, the above fines had
not yet been paid.
B. Discussion
1. Carola
In its brief, Respondent concedes that Carola's status as
a statutory supervisor was established at the hearing and
that under Board precedent Respondent's action in fining
him for discharging an employee violated Section 8(b)
(1)(B). It is so found.
2. Goldstein and Marks
With respect to Goldstein and Marks, Respondent
contends that they are not supervisors and that, even if it
be assumed that they are, they were fined not for exercising
their authority as supervisors but for failing'to comply with
legitimate union requirements unrelated to their superviso-
ry status.
On the issue of their status, a synthesis of the uncontra-
dicted testimony of Goldstein, Marks, Carola, and General
Manager Molin shows the following:
;S The basis for Respondent's claim of a breach of this provision is not
clear. Such a claim seems supportable only if that provision is construed as
not only requiring the Company to give premium pay for overtime work but
also obligating the employees not to work overtime on a volunteer basis.
Nor is it clear, in any event, what union rule would have been breached by
such volunteering of overtime services. There is nothing in Respondent's
"Working Rules" dealing with the matter, nor was there any other evidence
of the existence of such a rule . However , since we are not concerned here
with the validity of Respondent's disciplinary actions under its own rules
but only with the propriety of such actions under the Act, there is no need
to dwell on the foregoing matters.
Goldstein directs the work of all the shop employees,
about ,40 in number, reporting only to Molin. Since the
latter spends most of his time away from the shop,
Goldstein is generally the only one to whom the. shop
employees can look for job assignments and instructions
regarding the manner of performance of their work. He is,
moreover, solely responsible for scheduling the fabrication
and shipment of the Company's products and has
authority, without consulting Molin, to discharge employ-
ees, to suspend an employee for misconduct, and to grant
time off. Marks, as a field foreman, has directed the work
of as many as 20 employees. All the field foremen,
including Marks, have authority, without consulting
Molin, to discharge for cause and to transfer employees
from one job to another, and, in selecting employees for
layoff, Molin relies entirely on their recommendations.
With respect to the adjustment of grievances, while
Respondent's contract contains an elaborate grievance
procedure, no reference is made therein to the role of the
foremen. However, the uncontested testimony of Gold-
stein, Marks, and Carola shows that it is the practice of the
employees and of Respondent's stewards to take up with
the various foremen complaints about uncongenial work-
ing conditions (e.g., lack of heat, insufficient ventilation) or
work partners, and about safety hazards; that, when a
dispute arose over an alleged breach of contract by the
Company in assigning the work of loading.trucks to its
drivers rather than to members of Respondent, its business
agent took the matter up with Goldstein; and that the
foremen have taken remedial action with respect to. the
foregoing complaints.4
It is concluded that the foremen, including Goldstein
and Marks, have the attributes of a statutory supervisor,
including, inter alia, the authority responsibly to direct the
work of others, to transfer employees, determine their work
assignments, discharge for cause, effectively recommend
layoff, and to adjust grievances, and that they are required
in the exercise • of such authority to use independent
judgment.
There remains to be considered Respondent's contention
that, even if Marks and Goldstein be deemed to be
supervisors, the fines were not imposed on them for
reasons proscribed by the Act. In order to evaluate this
contention, it is necessary to consider the particular,
circumstances that led to the imposition of such fines.
Goldstein testified that early in the morning of April 7,
shortly before his regular 8 a.m. reporting time, he was at
Respondent's premises supervising the work of drivers in
loading a truck to be dispatched to a jobsite; that he was
approached by Respondent' s business agent , Ford, who
demanded that he stop the loading by the drivers; ,5 and
that Goldstein complied with this request. The witness
4 As to the disposition bf the truck-loading grievance , see the discussion
below of the April 7 incident. While the other "grievances" described above
seem to have been "personal ," not involving any claim of contract breach,
the term "grievance" as used in the statutory definition of supervisor
appears to have been construed by the Board as embracing such personal
matters . The Toledo Blade Company, Inc., 175 NLRB 1072, 1078, enfd. 437
F.2d 55 (C.A. 6); Wisconsin Electric Power Co., 192 NLRB No. 16.
5 The performance of such work by drivers had been the subject of a
grievance , which had been taken to arbitration , resulting in an award of the
work to Respondent ' s members.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
added that he then performed the loading work, himself,
for about 10 minutes and during part of that time was
assisted by Marks, who confirmed that he spent about 3
minutes in rendering such assistance.
Ford professed to be unable to recall any such incident
on April 7.6 The only testimony by Respondent's witnesses
about the April 7 matter came from Wilkie, another
business agent , who testified that on that date he received a
complaint from Respondent's shop steward that Goldstein
and Marks had been loading a truck before 8 a.m.; and
that on the basis of the information furnished him by
employees who were present he concluded that the two
supervisors had worked about 45 minutes in that activity.
Insofar as there. is any conflict between Wilkie and
Goldstein about the events of April 7, the latter is credited,
since Wilkie admittedly was not present but was relying
only on hearsay. Insofar as there is any conflict between
Ford and Goldstein, the latter is again credited, because
Ford did not unequivocally dispute Goldstein's account,
merely pleading lack of recollection. It is accordingly
found that before 8 a.m., on April 7, after being
admonished by Ford to terminate the loading by drivers,
Goldstein did that work himself for about 10 minutes,
being aided therein for a few minutes by Marks. It is
found, also, as related above, that neither reported this
activity to Respondent nor received any extra pay therefor;
that Respondent charged them with, and fined them for,
(1) violating the working rule, quoted above, by neglecting
to make such report, and (2) violating the overtime
provisions of the contract.
Section 8 (b)(1)(B) forbids a Union to restrain or coerce
"an employer in the selection of his representatives for the
purpose of collective bargaining or the adjustment of
grievances." It is well settled that this provision is violated
when a union . fines a supervisor for exercising any of the
powers entrusted to him by his employer or for otherwise
engaging in conduct expected or requested of him by his
employer in his capacity as a supervisor .7 It matters not
that such fine was imposed for reasons other than the
supervisor's collective-bargaining or grievance adjustment
activities . Indeed , it is not even material that he has no
present authority with regard to such bargaining or
adjustment.8
Under the rule laid down by the Board in the IBEW
case, supra, it suffices that the fine was imposed on the
supervisor for aligning himself with his employer in a
dispute between him and either the union or the employ-
ees, since such disciplinary action tends to inculcate in the
supervisor subservience to the union's wishes rather than to
those of his employer, thereby destroying his effectiveness
as a representative of management.
In the recent Anheuser Busch case,9 in holding that a
union 's fining of a supervisor for performing production
work behind a picket line violated Section 8(b)(1)(B), the
Board reaffirmed the following statement in the Times
Publishing case. 10
6 He testified about another incident , in October 1971, when he allegedly
complained to Goldstein about the assignment of loading work to the
drivers and about work being done before 8 a . m., admonishing him that that
rule applied to Goldstein as well.
7 See IBEW v. N.L.R.B., 81 LRRM 2257 (C.A.D.C., 1972), and cases
there cited.
In order to constitute coercion within the proscrip-
tion of Section 8(b)(l)(B), it is not essential that the
union disciplinary action be related . to the offending
member's performance of supervisory functions, it
being sufficient that the discipline somehow concern
the relationship between the employer on the one hand
and the union or the employees on the other, as
distinguished from matters purely of internal union
administration.
With respect to the precise area here involved-the
fining of a supervisor for performing overtime work
without compensation-the General Counsel cites the
General Metal Products and the Koch cases.
In General Metal Products," the Board found that a
union violated Section 8(b)(1)(B) by fining a supervisor for
allegedly working before his regular reporting time with
members of other crafts. In Koch, 12 on facts strikingly like
those in the case at bar, the Board found a violation of
Section 8(b)(l)(B) in a union 's action in fining a supervisor
$500 on each of the following counts: ( 1) working for less
than the area wage rate, (2) working overtime without
additional compensation , and (3 ) not having health and
welfare contributions paid with respect to all hours worked
by him.
The Board there said:
It [the fine] related directly, in fact, to the very process
of supervisory selection . . . . If an employer is to be
free from union coercion in the selection of persons
who are to serve the employer as its representatives,
then surely the employer must be free from union
coercion in the matter of setting the terms of such
representatives ' employment . Thus to fine one who
agrees to serve as an employer 's representative solely
because he and the employer agreed on terms and
conditions of employment which the union may find
objectionable must necessarily have an inhibiting
effect-and indeed a coercive effort-on the employer
in his future selection of representatives . . . . The
message to the employer will be clear for the future
-don't select a supervisor unless the union approves of
the terms and conditions of his employment... .
Those [ the union 's] rules . . . would permit the union
to dictate the terms and conditions under which an
employer could select and engage its management
representatives . That seems to us such a clear interfer-
ence with the freedom of the employer to select his
representatives as to constitute an open and obvious
violation of Section 8(b)(1)(B).
The effect of the foregoing holding appears to be that the
fining of a supervisor by a union because the terms of his
employment do not meet with the union 's approval tends
to restrict unduly an employer 's freedom to select his
supervisors . The same considerations which impelled the
Board to find that the fines in Koch interfered with the
selection of the supervisor in that case would seem to
require a finding that the instant fines interfered with the
8 The Toledo Blade Company, Inc. supra; Anheuser Busch, Inc., 199 NLRB
No. 91.
9 199 NLRB No. 91.
10 196 NLRB No. 159.
11 178 NLRB 139, enfd . 430 F .2d 1348.
12 George Koch Sons , Inc., 199 NLRB No. 26.
SHEET METAL WORKERS, LOCAL 40 961
retention of the instant supervisors. Clearly, union pressures
on a supervisor which may result in loss of his services after
he has been hired are as incompatible with the policy of
Section 8(b)(1)(B) as pressures which may prevent him
from being hired. Indeed, apart from Koch, none of the
cases where a violation of that subsection has been found
involved interference with the selection. process, itself, it
being thought sufficient in those cases that the union
pressures unduly affected aspects of the posthire relation-
ship between the supervisor and the employees. Moreover,
of particular significance in this regard is the fact that in
Koch the fines were levied not only because the supervisor
agreed to work for a substandard rate of pay, but also
because, like the instant supervisors, he worked overtime
without compensation and took no action to secure the
payment of contributions to union trust funds on the basis
of hours .worked. The Board, at least by implication, found
that such fines were illegal insofar as they were predicated
on the latter,13 as well as the former, grounds.
While the applicability of Koch is thus clear with respect
to the fine imposed here for working overtime without
compensation, it may be thought that the matter is not so
clear with respect to the fine for not reporting such
overtime to the union. On that point, Respondent cites the
Syd Gough case,14 where the Board found no violation of
Section 8(b)(1)(B) in a union's fining of a supervisor for
failing to comply with a union rule requiring that he
register with it before reporting to a new jobsite within its
jurisdiction. It was there found that the purpose of the rule
was to facilitate administration by the union of the hiring
hall provisions of its contract and the collection of certain
union assessments. Presumably, the Board regarded these
matters as pertaining solely to the internal administration
of the union. By contrast, in Columbia Typographical Union
No. 101, 193 NLRB 1089, the Board found unlawful the
fining of a supervisor by a union for not notifying it of a
contract breach by him.
Here, it was agreed that the requirement that all overtime
be reported to Respondent was designed to insure the
proper payment by the Company of overtime compensa-
tion and fringe benefits to members of Respondent,
including the instant supervisors,15 and to facilitate the
policing by it of the Company's performance under the
contract. The latter was also the purpose of the notice
requirement in the Columbia Typographical case.
It is thus clear that insofar as the failure of the
supervisors to report to Respondent their overtime work of
April 7 impeded such policing function, it was not solely a
matter of internal union administration but impinged on
the relations between the Company and Respondent as
parties to the contract. Such failure also affected, albeit
indirectly, the instant supervisors' compensation. Accord-
13 While the point was not separately considered in the Board's opinion,
the remedial order requires reimbursement of the entire amount of the fines,
which necessarily included those levied on account of unpaid overtime and
unpaid contributions for health and welfare and pensions. Moreover, that
order forbade the union to demand any "pension fund contributions" for
the supervisor and required reimbursement of the employer, inter alia, for
all payments theretofore made by him under union coercion as "health and
welfare and pension fund contributions" for the supervisor.
14 183 NLRB No. 24.
ingly, whether one applies the test of Koch or of the other
cases cited above, it would seem that the fines for not
reporting overtime violated Section 8(b)(1)(B).
It may be added that, if one were to formulate a rule to
fit all the precedents in this area, it would seem to be that a
union violates Section 8(b)(1)(B) when it disciplines a
supervisor for any manifestation of loyalty to his employer,
whether such manifestation involves siding with him
against either the iunion or the employees or placing the
employer's interests above those of the supervisor, himself.
Here, the supervisors' willingness to waive any credit for
the overtime work of April 7, as reflected both in their
failure to claim overtime pay and to report such work to
Respondent, constituted such a manifestation of loyalty to
their employer.
For all the reasons discussed above, it is found that
Respondent violated Section 8(b)(I)(B) by fining Marks
and Goldstein for working overtime and for not reporting
such work to it.
II. THE REMEDY
It having been found that Respondent has violated
Section 8(b)(1)(B), it will be ordered that it cease and desist
therefrom and take appropriate affirmative action, includ-
ing the rescission of the fines imposed by it on the instant
supervisors.
III. CONCLUSIONS
1. Respondent is a labor organization within the
meaning of Sections 2(5) and 8(b) of the Act.
2. The Capitol Ventilating Company is an employer
engaged in commerce within the meaning of the Act.
3. Herbert Goldstein, Edward Marks, and Nicholas
Carola were at all times here material supervisors within
the meaning of ,Section 2(11) of the Act and "representa-
tives" of The Capitol Ventilating Company within the
meaning of Section 8(b)(1)(B) of the Act.
4. By restraining and coercing The Capitol Ventilating
Company in the selection of its representatives for the
purpose of collective bargaining or the adjustment of
grievances, Respondent has engaged-in, and is engaging in,
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
5. Such unfair labor practices affect commerce under
Section 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, there is issued the following recommended:
15 It was agreed at the hearing that the supervisors were regarded by the
parties as covered by the trust fund provisions of the contract and that the
amounts payable by the Company into such funds for each of them was
based on the number of hours worked by each. It was also agreed that
Marks was entitled to compensation for overtime work under the contract.
With regard to Goldstein, Molin testified that he had always been paid on a
salary basis and never received additional compensation for overtime.
Respondent professed at the hearing to have had no prior knowledge of this
arrangement, but did not dispute Molin's testimony.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER to
Respondent , Sheet Metal Workers ' International Associ-
ation , Local Union No. Forty, AFL-CIO, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Restraining or coercing , or attempting to restrain or
coerce, The Capitol Ventilating Company in the selection
or retention of its representatives for the purpose of
collective bargaining or the adjustment of grievances, by
trying and fining or otherwise disciplining Herbert Gold-
stein, Edward Marks , and Nicholas Carola or any other
supervisor of said employer.
(b) In any other manner restraining or coercing said
employer in the selection and retention of its representa-
tives for the purposes of collective bargaining or the
adjustment of grievances.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Rescind the fines heretofore imposed on Herbert
Goldstein , Edward Marks, and Nicholas Carola, expunge
all references thereto from its 'records , and notify them in
writing that such action has been taken.
(b) Post at its office and meeting places in Hartford,
Connecticut , copies of the attached notice marked "Ap-
pendix." 17 Copies of the notice , on forms provided by the
Regional Director for Region 1, after being duly signed by
its representative , shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or covered
by any other material.
(c) Forward signed copies of said notice to the Regional
Director for posting by The Capitol Ventilating Company,
if it being willing , at all locations where notices to
employees are customarily posted.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order , what steps
Respondent has taken to comply herewith.
16 In the event no exceptions are'filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings..
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
17 In the event the Board ' s Order is enforced by a Judgment of the
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 MEMBERS
POSTED BY ORDER. OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce The Capitol
Ventilating Company in the selection or retention of its
representatives for purposes of collective bargaining or
adjustment of grievances, including Herbert Goldstein,
Edward Marks, and Nicholas, Carola. '
WE WILL rescind the fines imposed on Herbert
Goldstein, Edward Marks, and Nicholas Carola, strike
all reference thereto from our records, and notify them
in writing of such actions.
SHEET METAL WORKERS'
INTERNATIONAL ASSOCIATION,
LOCAL UNION
No. FORTY, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This 'is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Seventh Floor, Bulfinch
Building, 15 New Chardon, Boston, Massachusetts 14202,
Telephone 617-223-3330.