Sheet Metal Workers Local 33 (Cabell Sheet Metal)

National Labor Relations Board - Board Decisions

Feb 27, 1995

316 N.L.R.B. 504 (N.L.R.B. 1995)

504
316 NLRB No. 100
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge did not address the Respondent’s defense that the
charge was untimely because more than 6 months had elapsed be-
tween the adoption of the Union’s fine by the membership and the
filing of the charge. However, the fine did not become final until
the conclusion of the Union’s internal appeal process, which was
within the 10(b) period. Accordingly, the charge is not time-barred.
Sheet Metal Workers Local 75 (Owl Constructors), 290 NLRB 381
(1988).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 In affirming the judge’s dismissal of the complaint, we do not
rely on the judge’s findings that there was no contention that Caudill
was engaged in collective-bargaining or grievance adjustment duties
during the May 3 incident that led to the internal union charges, and
that there was no contention that the internal union charges related
to collective-bargaining or grievance adjustment activities on
Caudill’s part. We construe the complaint as having raised such
claims. In affirming the judge’s dismissal of the complaint, we have
considered these contentions and we reject them. In our view,
Caudill was not engaged in collective-bargaining, grievance adjust-
ment, or contract interpretation duties during the incident that led to
the union charges, and thus the union charges were not related to
such duties. Thus, we affirm the judge’s finding, in reliance on
NLRB v. Electrical Workers IBEW Local 340 (Royal Electric), 481
U.S. 573 (1987), that Caudill was disciplined for behavior unrelated
to 8(b)(1)(B) functions.
We also do not rely on the judge’s finding that no claim was made
that the Respondent’s internal union charges were intended to or did
prevent Caudill from entering the Big Elm jobsite on May 3.
1 Counsel for Respondent’s posthearing motion to amend its an-
swer to admit complaint commerce allegations is granted. See ALJ
Exh. 1.
Sheet Metal Workers International Association,
Local Union No. 33, AFL–CIO (Cabell Sheet
Metal & Roofing) and William L. Caudill. Case
6–CB–9223–2
February 27, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On November 10, 1994, Administrative Law Judge
Frank H. Itkin issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief and cross-
exceptions and a supporting 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,1 findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Clifford E. Spungen, Esq., for the General Counsel.
John F. Dascoli, Esq., for the Respondent.
DECISION
FRANK H. ITKIN, Administrative Law Judge. An unfair
labor practice charge and amended charge were filed in this
case on May 31 and July 14, 1994, respectively, and a com-
plaint issued on July 15, 1994. The General Counsel alleged
in the complaint that Respondent restrained and coerced Em-
ployer Cabell Sheet Metal & Roofing in the selection of its
representatives for the purposes of collective bargaining or
adjustment of grievances, in violation of Section 8(b)(1)(B)
of the National Labor Relations Act, by fining Charging
Party William Caudill on October 13, 1993, because he had
exercised his supervisory authority as a representative of the
Employer; by denying Caudill’s appeal of the fine on De-
cember 23, 1993, resulting in the fine becoming final; and
by filing a complaint in the West Virginia Circuit Court on
April 8, 1994, seeking a judgment against Caudill in the
amount of the fine with interest, costs, and attorney fees. Re-
spondent filed an answer admitting and denying various alle-
gations of the complaint and alleging that the Charging Party
had failed to file a timely charge under Section 10(b) of the
Act. Accordingly, a hearing was held on the issues raised in
Morgantown, West Virginia, on September 22, 1994. On the
entire record thus made, including my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
Cabell Sheet Metal & Roofing is admittedly an employer
engaged in commerce as alleged.1 Respondent Sheet Metal
Workers International Association, Local Union No. 33,
AFL–CIO is admittedly a labor organization as alleged.
Charging Party William Caudill is employed by Cabell as its
superintendent. He is also a member of Sheet Metal Workers
Union, Local Union No. 24.
Caudill testified that Cabell is engaged in roofing and
sheet metal work in Kentucky, Ohio, and West Virginia; that
he has been superintendent for the Employer for about 3
years and also has been a member of Local Union No. 24;
that he is in charge of Cabell’s ‘‘sheet metal operation’’; that
Cabell has no other superintendents; and that his duties in-
clude the following:
I [Caudill] am in charge of all the sheet metal jobs for
Cabell and I travel to various jobs throughout Ken-
tucky, Ohio and West Virginia. I attend job meetings
and check on the progress of the job and the men, and
iron out any problems that Cabell has or the men have.
Caudill ‘‘runs’’ some six to seven ‘‘jobs’’ ‘‘at one time.’’ He
‘‘reports to’’ Company Vice President Frank Browning, who
does not ‘‘regularly go to these sheet metal jobs to check on
them.’’ And, ‘‘all the rest of people in the hierarchy are
under’’ Caudill, which includes some 11 workers in the
‘‘sheet metal operation.’’ In addition, Caudill ‘‘travels be-
tween the jobs usually spending about half a day at each
job’’; he ‘‘visits’’ the ‘‘larger jobs about once every two
505SHEET METAL WORKERS LOCAL 33 (CABELL SHEET METAL)
2 Caudill acknowledged that he was ‘‘working with his tools on
the Big Elm job on the same day that Richard Fife and Tronnie
Boone were.’’
weeks’’ and the ‘‘smaller jobs’’ ‘‘at least once a week’’; he
‘‘determines’’ ‘‘when,’’ ‘‘where,’’ ‘‘which men’’ and ‘‘how
many men are needed on a job’’; he ‘‘assigns,’’ ‘‘transfers’’
and ‘‘reassigns the guys’’ ‘‘according to their abilities’’; and
he ‘‘decides whether to hire’’ ‘‘additional men’’ ‘‘from a
local union hall’’ when there is a ‘‘need for additional men.’’
Caudill generally explained that ‘‘if employees have com-
plaints on the job from the Company . . . they come to
me’’; he has ‘‘the authority to adjust their grievances’’; he
has in fact ‘‘adjusted their grievances’’; ‘‘if stewards have
complaints on the job . . . they come to me’’; he has in fact
‘‘adjusted their grievances’’; ‘‘if a Union business represent-
ative or other Union officials have complaints on the job
. . . they come to me’’; ‘‘if they have questions regarding
the job . . ., they come to me’’; ‘‘if they have problems with
the operation of the collective bargaining agreement . . .
they come to me,’’ and he has ‘‘the authority to adjust those
problems’’ and has ‘‘done it’’; he has ‘‘discussed verbal
modifications of the collective bargaining agreement with
Union business representatives’’; he has ‘‘adjusted safety
questions’’; and he has ‘‘the responsibility to administer the
collective bargaining agreement on the jobsite.’’ (See Tr. 47–
55.)
Caudill testified that his Employer is signatory to a collec-
tive-bargaining agreement with Local Union No. 24; it uses
‘‘only Union men on each project’’; and it occasionally
‘‘does work outside of Local Union 24’s jurisdiction’’ within
the jurisdiction of Respondent Local Union 33. Caudill, in
the past, has ‘‘hired’’ for his Employer workers ‘‘out of
Local Union 33’s hiring hall,’’ and they were ‘‘covered by’’
and were ‘‘paid’’ the wages and benefits ‘‘of Local 33.’’
Caudill noted that his Employer, ‘‘when working in Local
Union 33’s jurisdiction,’’ is ‘‘covered by’’ the so-called
‘‘two man rule’’ as contained in the Sheet Metal Workers
International Associations’ ‘‘Constitution & Ritual.’’ (See
G.C. Exh. 2, art. 16, sec. 9(q), pp. 86–87.) (See also the col-
lective-bargaining agreements between Sheet Metal Contrac-
tors of West Virginia and Sheet Metal Workers International
Association, Local Union No. 33, G.C. Exh. 3, art. 8, sec.
6, pp. 9–10; and Sheet Metal Contractors of Central Ohio
and Sheet Metal Workers Local Union No. 24, G.C. Exh. 4,
art. 8, sec. 6, pp. 6–7.) Under this rule, according to Caudill,
‘‘an employer can send two men anywhere in the United
States and Canada on any job that they have.’’
Caudill testified that his Employer, during 1993, started
‘‘work at the Big Elm Elementary School job in Shinnston,
West Virginia,’’ which is within the ‘‘jurisdiction of Local
33.’’ His Employer was also ‘‘working at another jobsite in
Local 33’s jurisdiction at approximately the same time,’’
‘‘the Nutter Fort School job.’’ The Employer ‘‘had bid these
two jobs.’’ Caudill previously had telephoned Kenneth
Perdue, business representative of Local 33, requesting refer-
ral of Bill and Clark Kisner for these jobs. He explained:
I [Caudill] knew that they had two men up there that
I wanted to hire . . . they were two brothers . . . I
wanted to put one on one job and put one on the other
job as foremen and then hire all of the other men out
of the Local 33 area. . . . He [Perdue] said that these
two men were off, but they were on recall for another
contractor, and he had other men.
Later, Caudill again telephoned Perdue ‘‘and again asked for
the two brothers to work on these two jobs . . . one to be
foreman on one job and . . . one to be foreman on the other
job.’’ Caudill then
explained to him [Perdue] that if I [Caudill] couldn’t
get these two men, I didn’t know anybody else up here
. . . I would have to send members out of Local 24
that I knew.
Caudill testified that, subsequently, about early spring
1993,
I [Caudill] came up first and I worked with Gordon
Simpson, and I reported myself and Gordon Simpson in
at the Big Elm School job. . . . I worked . . . for a
week . . . at the Nutter Fort School job . . . the next
week I sent Tronnie Boone [also appearing in the
record as Tronne Boone] up and Tronnie Boone worked
there for a while . . . at the Nutter Fort School . . .
and then I sent Mike Long to take Tronnie Boone’s
place. . . . Mike Long and Tronnie Boone [were] trav-
eling back and forth between the Big Elm and the Nut-
ter Fort job. Then, they started falling behind on the
Big Elm job, so I came up and started to work with
Richard Fife. Richard Fife reported in and I didn’t feel
like I needed to report in anymore because I had al-
ready reported in. I worked there for about a month
with Richard Fife and then other jobs demanded more
of my attention; so I had to pull off that job and I hired
Tommy Thompson to take my place; I sent him to
work with Richard Fife.
Caudill next recalled that on May 3, 1993, he returned to
the Big Elm job. Caudill testified:
Q. At some point did you see Perdue on the Big Elm
jobsite?
A. Yes. . . . It was about 10:30 in the morning.
Q. Did you speak with him?
A. Yes I did. . . . Perdue walked up and introduced
himself to me . . . and Perdue asked how many men
was on the job, and I said two. . . .
Q. How many men were on the job?
A. There [were] three.2
Q. Why did you tell him there were only two on the
job?
A. I didn’t want to cause any trouble.
Q. You realized you were in violation . . . ?
A. Yes.
Q. . . . Perdue asked you for your dues receipt?
A. . . . I told him I didn’t have a dues receipt, I
don’t carry one and according to the constitution I don’t
have to carry a dues receipt. . . . [He] said that . . .
‘‘I can send you home’’ and I agreed with him.
Q. Were you paid up to date on your dues?
A. Yes.
Q. So what happened next?
A. After that he asked Tronnie Boone to see his dues
receipt.
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Appeals are governed by art. 19 of the Sheet Metal Workers
International Associations’ ‘‘Constitution & Ritual.’’ See G.C. Exh.
2.
4 Employee Tronnie Boone was fined $250 for his involvement in
the above incident with $200 ‘‘held in abeyance providing there are
no further violations for the next three years.’’ See G.C. Exh. 5.
Q. Did you talk about wages?
A. Yes. . . . [He] asked me how much money I
made and I told him and then he asked Tronnie Boone
how much money he made and then he asked how
much expenses were paid. . . . I told him I made more
than Local 33 allowed . . . and I told him the Com-
pany pays all of my expense money. . . . He asked
Boone how much he made and Boone told him $25.
[Perdue] says that is not what the Parkersburg contract
called for. He said I should be paying $27 a day. . . .
He made a threat against the Company; he said he
could pull Cabell Sheet Metal’s books and make Cabell
pay all the backpay and then show him a copy of the
canceled check where Cabell had paid.
Caudill later left the jobsite to attend to other Cabell work.
Caudill was later apprised by Local 33 in a letter dated
July 14, 1993, that ‘‘charges’’ had been filed against him by
Perdue and a trial would be held on September 11. (See G.C.
Exh. 6.) Caudill determined to submit his written ‘‘testi-
mony’’ to the Union on September 8, 1993. (See G.C. Exh.
7.) The Union thereafter sent Caudill on September 13, 1993,
a ‘‘copy’’ of the ‘‘minutes’’ of his ‘‘trial.’’ (See G.C. Exh.
8.) The Union subsequently sent Caudill a letter dated Octo-
ber 13, 1994, apprising him as follows (see G.C. Exh. 9):
This is to inform you of the decision of the trial com-
mittee accepted by the membership at the regular mem-
bership meeting on . . . October 12. . . . The decision
of the trial committee found you to be in violation of
. . . the Constitution & Ritual . . . as charged. . . .
For the violation of Art 17, Section 1(b) . . . because
brother Caudill knowingly violated the Constitution’s
two man rule and by purposely not calling in plac[ing]
two other members in jeopardy, . . . a fine of $250.
[For the violation of] Art. 17, Section 1(e) . . . because
of brother Caudill’s supervisory position and having
worked in the area numerous times before, for working
for improper rates of pay, travel expenses and by apply-
ing undo [sic] influence over others causing them to
work for improper rates of pay, etc. . . . a fine of
$1500.
[For the violation of] Art. 17, Section 1(m) . . . be-
cause brother Caudill knowingly violated the working
rules causing a loss of revenue to local trust funds and
the local union by purposely placing other members in
jeopardy for his own gain and causing a full time rep-
resentative to expend a lot of time and unnecessary ex-
pense to reveal and verify his deception . . . a fine of
$1500.
Caudill sent the Union his ‘‘letter of appeal’’ from the
above decision on November 8, 1993. (See G.C. Exhs. 10,
11, and 13.) The Union thereafter notified Caudill in a letter
dated December 27, 1993 (see G.C. Exh. 14):
In reviewing your appeal, the letter notifying you of the
decision of the trial was dated and mailed to you on
October 13, 1993, and in order for your appeal to be
timely, it should have reached my office no later than
November 12, 1993. Therefore, since I did not receive
your appeal until November 15, 1993, your appeal is
three days late.
Caudill later wrote the Union on January 2, 1994, protesting
that (see G.C. Exh. 15):
I mailed my notice in plenty of time for your office [in
Washington, D.C.] to [receive] it. The Cleveland office
received the notice on the 12th day of November. You
should have received the notice on the same day.3
The Union apprised Caudill by letter dated January 3, 1994
(see G.C. Exh. 16):
We are in receipt of a letter from the International stat-
ing that your appeal . . . has been denied. . . . As a
result, your fine . . . is due and owing immediately.
See also General Counsel’s Exhibit 17, denying Caudill’s
‘‘request for reconsideration.’’ Thereafter, on April 8, 1994,
the Union filed a civil action against Caudill seeking to col-
lect the fine, interest, costs, and attorney fees. (See G.C. Exh.
18.)4
Frank Perdue, business representative for Local 33, testi-
fied that he had filed the above charges and explained his
reasons for doing so. (See Tr. 58–62.) As the record shows,
Perdue’s charges were predicated on Caudill’s conduct while
working on the Big Elm jobsite on May 3, 1993. Caudill was
charged with violating that day the Union’s ‘‘two man rule,’’
failing ‘‘to report in,’’ failing ‘‘to carry a dues receipt,’’
‘‘improper wages’’ and ‘‘misconduct detrimental to the
Local.’’ In addition, Perdue generally asserted that Caudill
had never engaged in collective bargaining or contract inter-
pretation or grievance adjustment on behalf of Cabell.
Perdue’s knowledge of Caudill’s ‘‘authority’’ was admittedly
limited to what he, Perdue, may have ‘‘personally dealt
with’’ or ‘‘observed’’ in Local 33’s ‘‘jurisdiction.’’ There is,
however, no claim made here that Caudill, during the May
3 incident resulting in the above ‘‘charges,’’ was engaged in
any collective-bargaining or grievance adjusting duties. There
is also no claim made here that the Union’s ‘‘charges’’
against Caudill were related to any collective-bargaining or
grievance-adjusting activities on Caudill’s part.
Dennis Talbott, financial secretary-treasurer for Local 33,
similarly related his involvement in the disciplinary proceed-
ings against Caudill. (See Tr. 62–65.) And, Thomas Thomp-
son, a member of Local 24 who had worked for Cabell on
the Big Elm jobsite, generally asserted that he had never dis-
cussed his rates of pay or hours of work or expenses with
Caudill while working on the Big Elm job. Thompson also
generally asserted that Caudill had never ‘‘engaged in collec-
tive bargaining on behalf of Cabell’’ or ‘‘adjusted any griev-
ances’’ or ‘‘interpreted any disputed contract clauses’’ there
or at another Employer jobsite. Thompson, however, ac-
knowledged that he was ‘‘only aware of what Caudill would
have discussed’’ with him or in ‘‘his presence.’’ Further,
Gary Angel, union representative of Local 24, generally as-
507SHEET METAL WORKERS LOCAL 33 (CABELL SHEET METAL)
5 I credit the testimony of Caudill as detailed above. His testimony
is substantiated in large part by undisputed documentary evidence
and he impressed me as a trustworthy and reliable witness. On the
other hand, I was not impressed with the testimony of Perdue,
Talbott, Thompson, and Angel. Their testimony was at times vague,
incomplete, and unclear. Insofar as the testimony of Caudill differs
with the testimony of Perdue, Talbott, Thompson, and Angel, I find
that the testimony of Caudill is more complete and reliable. In par-
ticular, I credit the general testimony of Caudill with respect to his
supervisory and contract interpretation and grievance-adjusting du-
ties. However, as noted above and discussed further infra, there is
no claim made here that Caudill, during the May 3 incident resulting
in the above ‘‘charges,’’ was engaged in any collective-bargaining
or grievance-adjusting duties. There is also no claim made here that
the Union’s ‘‘charges’’ against Caudill were related to his collective-
bargaining or grievance-adjusting activities.
serted that he had never bargained with Cabell ‘‘over con-
tract terms’’ because the Employer is a member of the Con-
tractors Association, and that he has never had ‘‘disputes
with Cabell over contract interpretation’’ or ‘‘any grievance
adjustments.’’ Angel acknowledged that ‘‘basic level job dis-
putes are dealt with by the steward on the job.’’5
Discussion
Section 8(b)(1)(B) of the National Labor Relations Act
makes it an unfair labor practice for a labor organization or
its agents
to restrain or coerce . . . an employer in the selection
of his representatives for the purposes of collective bar-
gaining or the adjustment of grievances.
The General Counsel contends here that Respondent violated
the above statutory proscription ‘‘by filing internal Union
charges, fining and attempting to enforce said fines against
William Caudill, a supervisor member employed by Cabell.’’
(See G.C. Br. 7–17.) Respondent contends that ‘‘General
Counsel has failed to prove by a preponderance of the evi-
dence that Local 33 violated the Act by interfering with the
contract interpretation and grievance adjustment activities of
Cabell.’’
Recently, in NLRB v. Electrical Workers Local 340 (Royal
Electric), 481 U.S. 573, 580–586 fn. 8 (1987), the United
States Supreme Court, in an opinion by Justice Brennan, re-
stated the controlling principles of labor law, in pertinent part
as follows:
This section was enacted to prevent a union from exert-
ing direct pressure on an employer to force it into a
multiemployer bargaining unit or to dictate its choice of
representatives for the settlement of employee griev-
ances. S.Rep. No. 105, 80th Cong., 1st Sess., pt. 1, p.
21 (1947).
For two decades after enactment, the Board con-
strued § 8(b)(1)(B) to prohibit only union pressure ap-
plied directly to the employer and intended to compel
it to replace its chosen representative. In 1968, how-
ever, the Board substantially extended § 8(b)(1)(B) in
San Francisco-Oakland Mailers’ Union No. 18 (North-
west Publications, Inc.), 172 NLRB 2173 (1968). The
NLRB held that a union violates § 8(b)(1)(B) when it
disciplines an employer-representative for the manner in
which his or her § 8(b)(1)(B) duties are performed. . . .
[T]he Board concluded that union pressure designed to
alter the manner in which an employer-representative
performs § 8(b)(1)(B) functions coerces the employer in
its selection of the § 8(b)(1)(B) representative. . . .
This Court has since indicated that the Board’s expan-
sion of § 8(b)(1)(B) in Oakland Mailers was at best
‘‘within the outer limits’’ of the section. Florida Power
& Light Co. v. Electrical Workers, 417 U.S. 790, 805
(1974).
. . . .
In Florida Power . . . [t]he Court held that
§ 8(b)(1)(B) cannot be read to prohibit discipline of em-
ployer-representatives for performance of rank-and-file
work during a strike. . . . [stating] ‘‘. . . that a union’s
discipline of one of its members who is a supervisory
employee can constitute a violation of § 8(b)(1)(B) only
when that discipline may adversely affect the super-
visor’s conduct in performing the duties of, and acting
in his capacity as, grievance adjuster or collective bar-
gainer on behalf of the employer. . . .’’
The Court then found that the union’s discipline of em-
ployer-representatives who crossed a picket line to do
struck work could not adversely affect performance of
§ 8(b)(1)(B) duties. In so finding, the Court stressed
that the employer-representatives ‘‘were not engaged in
collective bargaining or grievance adjustment, or in any
activities related thereto. . . .’’
The Court’s language implicitly limited the applica-
tion of the adverse-impact test: an adverse effect on fu-
ture § 8(b)(1)(B) activity exists only when an employer-
representative is disciplined for behavior that occurs
while he or she is engaged in § 8(b)(1)(B) duties—that
is, ‘‘collective bargaining or grievance adjustment or
. . . any activities related thereto.
. . . .
Four years later, in American Broadcasting Cos. v.
Writers Guild West, Inc., 437 U.S. 411 (1978), the
Court . . . held that union discipline of employer-rep-
resentatives who performed § 8(b)(1)(B) duties, specifi-
cally grievance adjustment, during a strike violated the
employer’s rights under § 8(b)(1)(B):
. . . .
The Court . . . held that, before a § 8(b)(1)(B) violation
can be sustained, the NLRB must make a factual find-
ing that a union’s sanction will adversely affect the em-
ployer-representative’s performance of collective-bar-
gaining or grievance-adjusting duties. . . .
In ABC, therefore, the Board found, and the Court
agreed, that union fines of employer-representatives en-
gaged in grievance adjustment would have an adverse
impact on the supervisor-member’s future performance
of that same § 8(b)(1)(B) duty. This holding is consist-
ent with the analysis of the Court in Florida Power—
that § 8(b)(1)(B) forbids only discipline for acts or
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
omissions that occur while an employer-representative
is engaged in § 8(b)(1)(B) activities.8
8 . . . Insofar as dictum in ABC suggests that a union may not dis-
cipline supervisor-members for acts or omissions that occur while the
supervisor-member is engaged in supervisory activities other than
§ 8(b)(1)(B) activities, the dictum is inconsistent with Florida Power,
and we disavow it.
The Court concluded in Royal Electric that a union does not
restrain or coerce an employer in the selection of his rep-
resentatives for the purposes of collective bargaining or the
adjustment of grievances when it disciplines a supervisor-
union member who does not participate in collective bargain-
ing or adjust contractual grievances, and, further, whose em-
ployer has not entered into a collective-bargaining agreement
with the union.
In the instant case, the credible evidence of record amply
establishes that Caudill was a ‘‘supervisor’’ of Cabell under
Section 2(11) of the Act. Section 2(11) defines a ‘‘super-
visor’’ as
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Caudill credibly testified that he has been superintendent for
the Employer for about 3 years; that he is in charge of
Cabell’s ‘‘sheet metal operation’’; that Cabell has no other
superintendents; and that his duties include the following:
I [Caudill] am in charge of all the sheet metal jobs for
Cabell and I travel to various jobs throughout Ken-
tucky, Ohio and West Virginia. I attend job meetings
and check on the progress of the job and the men, and
iron out any problems that Cabell has or the men have.
Caudill ‘‘runs’’ some six to seven ‘‘jobs’’ ‘‘at one time.’’ He
‘‘reports to’’ Company Vice President Frank Browning, who
does not ‘‘regularly go to these sheet metal jobs to check on
them.’’ And, ‘‘all the rest of people in the hierarchy are
under’’ Caudill, which includes some 11 workers in the
‘‘sheet metal operation.’’ Caudill ‘‘travels between the jobs
usually spending about half a day at each job’’; he ‘‘visits’’
the ‘‘larger jobs about once every two weeks’’ and the
‘‘smaller jobs’’ ‘‘at least once a week’’; he ‘‘determines’’
‘‘when,’’ ‘‘where,’’ ‘‘which men’’ and ‘‘how many men are
needed on a job’’; he ‘‘assigns,’’ ‘‘transfers,’’ and ‘‘reassigns
the guys’’ ‘‘according to their abilities’’; and he ‘‘decides
whether to hire’’ ‘‘additional men’’ ‘‘from a local union
hall’’ when there is a ‘‘need for additional men.’’
In addition, the credible evidence of record also amply es-
tablishes that Caudill has performed collective-bargaining
and grievance adjustment duties and functions for his Em-
ployer. Caudill credibly testified that ‘‘if employees have
complaints on the job from the Company . . . they come to
me’’; he has ‘‘the authority to adjust their grievances’’; he
has in fact ‘‘adjusted their grievances’’; ‘‘if stewards have
complaints on the job . . . they come to me’’; he has in fact
‘‘adjusted their grievances’’; ‘‘if a Union business represent-
ative or other Union officials have complaints on the job
. . . they come to me’’; ‘‘if they have questions regarding
the job . . . they come to me’’; ‘‘if they have problems with
the operation of the collective bargaining agreement . . .
they come to me,’’ and he has ‘‘the authority to adjust those
problems’’ and has ‘‘done it’’; he has ‘‘discussed verbal
modifications of the collective bargaining agreement with
Union business representatives’’; he has ‘‘adjusted safety
questions’’; and he has ‘‘the responsibility to administer the
collective bargaining agreement on the jobsite.’’ Cf. Sheet
Metal Workers Local 104 (Simpson Sheet Metal), 311 NLRB
758 (1993); and Sheet Metal Workers Local 68 (DeMoss),
298 NLRB 1000 (1990).
The question remains, however, whether or not the
Union’s disciplining of Caudill in the instant case ‘‘may ad-
versely affect [this] supervisor’s conduct in performing the
duties of and acting in his capacity as grievance adjuster or
collective bargainer on behalf of the employer.’’ See Royal
Electric, supra. There is no claim made here that Caudill,
during the May 3 incident resulting in the above ‘‘charges,’’
was engaged in any collective-bargaining or grievance-ad-
justing duties for his Employer. There is also no claim made
here that the Union’s ‘‘charges’’ against Caudill were related
to his collective-bargaining or grievance-adjusting activities.
In addition, there is no claim made here that the Union’s
‘‘charges’’ against Caudill were intended to or in fact pre-
vented Caudill from entering the Big Elm jobsite on May 3
and thus prevent him from performing any collective-bar-
gaining or grievance-adjusting duties on May 3, or anywhere
else on any other day.
This record makes it clear that Caudill was a member of
Local Union No. 24. His Employer was also signatory to a
collective-bargaining agreement with Local Union No. 24.
Caudill and his Employer were admittedly obligated to com-
ply with certain union rules and regulations and pay certain
wages and benefits when working outside of Local Union
No. 24’s jurisdiction. The Big Elm jobsite was situated out-
side of the jurisdiction of Local Union No. 24 and within the
jurisdiction of Local Union No. 33. On May 3, Caudill, as
he testified, went to the Big Elm jobsite and was ‘‘working
with his tools on the Big Elm job on the same day that Rich-
ard Fife and Tronnie Boone were.’’ He was approached by
Local Union No. 33 Business Representative Perdue and
asked questions pertaining to his and his Employer’s compli-
ance with the Union’s rules and regulations and payment of
the required wages and benefits. When asked how many em-
ployees were on the job, he admittedly lied and claimed that
only two employees were working there. He realized that he
was then in violation of the Union’s ‘‘two-man rule’’ but as-
sertedly did not want to ‘‘cause any trouble.’’ He also admit-
tedly did not have his dues receipt book and had failed to
‘‘report in.’’ And, apparently, his Employer was also not
fully complying with Local Union No. 33’s contractually re-
quired wage and benefit payments. Perdue, following an in-
vestigation, ‘‘charged’’ Caudill with violating the Union’s
‘‘two-man rule,’’ failing ‘‘to report in,’’ failing ‘‘to carry a
dues receipt,’’ ‘‘improper wages’’ and ‘‘misconduct det-
rimental to the Local.’’ The Union, following a trial, found
that Caudill had ‘‘knowingly violated the Constitution’s two-
man rule and by purposely not calling in plac[ed] two other
members in jeopardy’’; had been ‘‘working for improper
509SHEET METAL WORKERS LOCAL 33 (CABELL SHEET METAL)
6 Under the circumstances, it is unnecessary for me to discuss the
remaining contentions of Respondent.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
rates of pay, travel expenses and . . . applying undo [sic] in-
fluence over others causing them to work for improper rates
of pay, etc.’’; and had ‘‘knowingly violated the working
rules causing a loss of revenue to local trust funds and the
local union by purposely placing other members in jeopardy
for his own gain and causing a full time representative to ex-
pend a lot of time and unnecessary expense to reveal and
verify his deception.’’ Again, none of Caudill’s ‘‘charged’’
conduct is claimed to be related to his contract or grievance
adjustment duties.
On this showing, I find and conclude that the Union’s dis-
ciplinary treatment of Caudill will not ‘‘adversely affect
[this] supervisor’s conduct in performing the duties of and
acting in his capacity as grievance adjuster or collective bar-
gainer on behalf of the employer’’ and, consequently, is not
violative of Section 8(b)(1)(B) of the Act as alleged. For, as
the Court explained in Royal Electric,
An employer representative who has been disciplined
for acts or omissions that occur while he or she is en-
gaged in Section 8(b)(1)(B) activity might well be wary
about crossing the union when performing such duties
in the future. But a supervisor member who has been
disciplined for behavior unrelated to Section 8(b)(1)(B)
functions is unlikely to react by altering his or her per-
formance of Section 8(b)(1)(B) tasks.
I would therefore dismiss the complaint for this reason.6
CONCLUSIONS OF LAW
1. Respondent is a labor organization and Cabell Sheet
Metal is an employer engaged in commerce as alleged.
2. The General Counsel has failed to prove that Respond-
ent violated Section 8(b)(1)(B) of the Act as alleged, and
therefore the complaint filed herein should be dismissed.
ORDER7
It is ordered that the complaint filed here be dismissed.