Teamsters Local 296

National Labor Relations Board - Board Decisions

Jul 28, 1980

250 N.L.R.B. 838 (N.L.R.B. 1980)

DECISIONS OF NA'IIONAI. LABOR RELATIONS BOARD
Teamsters Local 296, Sales Delivery Drivers, Ware-
housemen and Helpers Union a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America and Northwest
Publications, Inc. Case 32-CB-513
July 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDA I.1.
On January 9, 1980, Administrative Law Judge
Timothy D. Nelson issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Although we are in substantial agreement with
our dissenting colleague's recitation of the facts,'
we disagree with his conclusion that this case is in-
distinguishable from Teamsters Local No. 524, Inter-
national Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America (Yakima County
Beverage Company, Inc. and Chaney Beverage Com-
pany).2 In Yakima, the Board found that the union
violated Section 8(b)(1)(B) of the Act when it fined
three statutory supervisors, who were part owners
or managers of the employer, for performing bar-
gaining unit work after regular working hours in
response to a customer's emergency request. The
Board there interpreted the disciplining as an at-
tempt by the union to "interpose [the supervisors]
into its controversy with [the employers]," and
stressed that the union conceded that its purpose in
disciplining the supervisors was to "force the su-
pervisors to follow the collective-bargaining agree-
ment." 212 NLRB at 910.
Here, in contrast, Respondent made it clear to
O'Donnell and to the Employer that it was not at-
tempting through its discipline of O'Donnell to
force the Employer to change its interpretation of
I We notle that the record is unclelvar whether aill f R hobert ()'I),lonlnel's
predecessors enllgaged in "pre-sl art" actiiities ,imilar Il those for i hich
Respondent fined ()'[)Donnell ())'Donn)ell testificd thiat on!,i he illnd hi, mnl-
mediate prcdect.,mr, Willie (ion/alei/ hil e gaged ill "prc-start" alctiil-
ties Moreo( sr, F arl HIlaIck ore. (GonI lez' predLcessor. dcnieid hlialllig
ever weorked "off the clock" Iri ini eseill. resollitil, on l this faLctull issue
has no bhearing ofl our coniidcratiol ot the .allegCd iilltir lihor piaCtlie
I212 Nl RI '9)X (1974j
250 NLRB No. 126
the collective-bargaining agreement:" but, rather, as
found by the Administrative Law Judge, to address
the personal decision of O'Donnell, a member of
Respondent Union, to violate trade union principles
by "donating" labor to the Employer. This is made
clear by Respondent's letter to O'Donnell inform-
ing him of the fine, when it stated that "this [is] a
union matter not involving the employer in any
way." Moreover, even when invited to do so by
the Employer, Respondent did not file a grievance
or take other steps to demonstrate its belief that the
Employer was violating the agreement by permit-
ting O'Donnell to perform "pre-start" duties. Re-
spondent's concern with O'Donnell's activities was
identical to that expressed with regard to other
members who had been fined for working "off the
clock." For this reason, we believe that Yakima is
inapposite and, accordingly, we affirm the Admin-
istrative Law Judge's finding that Respondent did
not violate Section 8(b)(1)(B) of the Act.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
Contrary to my colleagues, I would find that Re-
spondent violated Section 8(b)(l)(B) of the Act by
fining a supervisor/member in an attempt to
impose Respondent's interpretation of the collec-
tive-bargaining agreement on the supervisor/
member and thus impede the Employer's control
over its supervisor.
The operative facts are essentially undisputed.
Northwest Publications, Inc., herein referred to as
the Employer, publishes and distributes a newspa-
per in the San Jose, California, vicinity. The facili-
ty involved herein is the Employer's newsprint
:' The Adminisltratie LaA Judge found that it is undisputed that. prior
to the start of the 7 a m shift () Donnelrl engaged in "trpical 'unit' work.
performed throughout the normal shift bh him and [hisl felhlo employ-
ce, " Therefire. as all parties agree that ()')onnerllll performed "unil"
vsork. the dissent errs im implying that the parties ucre in coifliclt over
the nmainlg or applicatilon of the collecti;e-bhargainig agreertment
I lirei,.er, we note that. since Rcspoiidellt disciplincd ()'Do )llnell for
performing unit wvork. Rc'pnridenl' s ctotion, could not -reasoliahl he
foreseen .lo affenlt adscerstel the perfirnmance of Ihal uperil,sor' grie-
allcc-alljustmlent duties" ( iolumihia 11pogarphiLal t,,,,Union N, 1 /(I nIrln-
iirial I i.pographii l t linumi ii] N'orth .i-/i, rico.. i .I L--C1 0 (1Ii Hau /tingril
PI'r ( ',impauiiy). 242 Nl RH No 135 (1 79) Noir dies Repoldentll' , di ci-
plinc rcasonabhl tend to ilcrlterc ith thle Inpplser', abilit to obtain
supcrt is. r, frol airnilg Respil.dcints ncmlilhcrslhip i .ho are iR lliiig tIo
,crie .is grileillcc adlu~Sr , or oilllctiici hbrga i ller. oor depri.e the 1 [i-
plo)er oI ()' )('iii el]'s fIIl sccrxie ass l olletlli\c- halrgailrlilg rCpresenta-
lID C f \ i )irA N, ¥ pup r 'rlmiiloti Pr, ,siuni ' I till 1 7 2 York lc
\,in / i) 24) Nl RB No 112 (11SO)
838
I'|LAMSI'tFRS OI()CAI. 29t.
warehouse. Four individuals are employed in the
warehouse; Robert O'Donnell, the working fore-
man;5 Willie Gonzalez; Earl Blackmore; and Bill
Wyatt. Both Gonzalez and Blackmore previously
held the position of working foremen. All four are
covered by a collective-bargaining agreement be-
tween Respondent and the Employer. The ware-
house employees use forklifts and other mecha-
nized equipment to unload, store, and move rolls of
newsprint weighing approximately 1,600 pounds
each. The majority of O'Donnell's working time is
spent performing the same work as the employees
he supervises. Like the employees he supervises,
O'Donnell punches a timeclock and is hourly paid,
albeit at a higher rate.
Prior to punching in each morning, it was
O'Donnell's practice to perform certain "pre-start"
tasks,6 such as starting the engines on the forklifts
to enable them to warm up; moving the "dock
plate," used to span the gap between the loading
dock and a truck's tailgate, into place; and using a
"clamplift" vehicle to remove the two rearmost
rolls of newsprint from trucks at the dock. 7 The
purpose of performing these tasks was to enable
the employees to begin working immediately at 7
a.m., the assigned starting time. The Employer's
vice president for employee relations testified that
over a period of years he had personally observed
O'Donnell's predecessors, including Gonzalez, per-
form precisely those tasks for which O'Donnell
was disciplined by Respondent.
On March 24, 1979, Wyatt, Blackmore, and
Gonzalez filed a complaint with Respondent alleg-
ing that O'Donnell worked before his starting time
and during his lunch break without pay. On April
12, Respondent notified O'Donnell that he was to
appear before its executive board on April 26 to
answer charges of violating sections 15 and 16 of
the collective-bargaining agreement between Re-
spondent and the Employer.8 At the Employer's
instruction, O'Donnell did not attend the executive
board meeting. However, the Employer advised
Respondent in writing that it had ordered O'Don-
nell not to appear. The letter further advised Re-
spondent that the Employer considered the tasks
performed prior to normal working hours to be su-
pervisory in nature and accused Respondent of in-
' At all times herein O()'Donnell ,as a member ill good standing of Re-
spondent, and sas als.o a supervisor
i The A arehouse is approximately 300 feet long and 150 feel wide Ihe
entrance used hl ()'Donnell Aas at one end, the iimeclock "as at the
other end T'he "pre-start"' duties :ere performed i;s ()'Donnell walked
from the entrance to the timneclock, and look hetwcc n 15 and 3(1 mnuilntes
each nmorninlg
II 'I as neccessar to reino e, the rearnil st roll or t'o of te' wspri ii ii
order to pol(lon the "dIck plate."
Sec IS pro'ldcd that eo crtllc bhe paid for iork perfrlced prior t1
the scheduled starting time Sec It pro ,idcd fIlr prenrmium pal I or s.ork
performed prior t ? a inll
terfering with management's right to name a super-
visor and have him function effectively. Neverthe-
less, at its meeting on April 26, Respondent's ex-
ecutive board fined O'Donnell $250, with $150 of
the fine suspended. O'Donnell paid the remaining
$100 under protest.
Based on the foregoing facts, the Administrative
Law Judge found, and my colleagues agree, that
"the discipline in question derived solely from
O'Donnell's personal choice, in violation of trade
union principles, to 'donate' time and labor to [the
Employer]." I disagree. Even apart from the inex-
plicable failure of the Administrative Lax, Judge,
and my colleagues, to consider the testimony estab-
lishing that performance of the "pre-start" activi-
ties by O'Donnell was in accord with the Employ-
er's past practice, I am unconvinced by their at-
tempt to distinguish the instant case from our deci-
sion in Teamsters Local Nlo. 524, International
Brotherhood of Teamsters. Chauffeurs, Warehouse-
men and Helpers of America (Yakima Count.v Bever-
age Company), 212 NLRB 908 (1974), which I find
controlling.
In Yakima, the union filed charges against three
statutory supervisors for performing bargaining
unit work after regular working hours upon an
urgent request of a customer. The charges alleged
that the supervisor/members violated the union's
bylaws and constitution by breaching a provision
of the applicable collective-bargaining agreement,
because they performed work after regular work-
ing hours without prior union agreement. In the in-
stant case, the Administrative Law Judge recog-
nized, as do my colleagues, the similarity of
Yakimna, but found it inapplicable. The Administra-
tive Law Judge stated that the Board there held
that "where the discipline was used [as] a means of
resolving in the union's favor a dispute over the
meaning or application of contract terms, there ex-
isted the requisite carry-over impairment of the su-
pervisor's 8(b)(l)(B) functions." The Administra-
tive Law Judge distinguished Yakima on the
grounds that there the supervisor/members were
part owners or managers, performed the unit work
on an emergency basis, and, unlike the instant case,
the dispute was rooted in a contract between the
union and the employer and the purpose of the dis-
cipline was to force the supervisors to follosw the
collective-bargaining agreement. I cannot agree
that Yakima can be so easily distinguished.
As in Yakima, here a supervisor performed unit
work "off the clock." That O'Donnell w'as a los-
level supervisor is of no moment. See United Broth-
erhood of Carpenters & Joiners of Anmerica. Local
Union No. 14. .- FL-CIO (Max- .t. Kaplan Proper-
ties), 217 NLRB 202 (1975). As for the work in
8 l)
DECISIONS O()F NATIONAI. LABOR RELATIONS B13()ARD
Yakima being performed on an emergency basis, I
note that, while Yakimas customer described the
work as of "considerable urgency," the Board did
not rest its holding upon any theory relating to the
"emergency." Indeed, there was not any showing
that Yakima's regular employees could not perform
this "emergency" work, or even that it was not
Yakima's purpose merely to avoid payment of
overtime to its unit employees. With regard to the
remaining factors allegedly distinguishing Yakima,
the Administrative Law Judge stated that "there is
no background tending to show that Respondent's
discipline was 'rooted in' a dispute between the
[Employer] and Respondent over the meaning of a
contractual provision." Once again, I must dis-
agree. It is undisputed that O'Donnell's alleged
working "off the clock" resulted in his being
charged with violating sections 15 and 16 of the
applicable collective-bargaining agreement. It ap-
pears from the record that the performance of
these "pre-start" duties by the working foreman
was an established and longstanding practice.
Under these circumstances, I conclude that a dis-
pute between the Employer and Respondent exist-
ed, and that the dispute involved, at least in sub-
stantial part, the interpretation of contractual pro-
visions in the light of custom and work practices.
For the foregoing reasons, I would find Yakima
applicable herein and, accordingly, find that Re-
spondent violated Section 8(b)(l)(B) of the Act as
alleged in the complaint.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NEI SON, Administrative Law Judge:
This case was heard before me in San Jose, California,
on October 2, 1979.1 It arose from original and amended
charges filed by Northwest Publications, Inc. (herein
called Northwest) on May 4 and June 11, respectively,
against Teamsters Local 296, Sales Delivery Drivers,
Warehousemen and Helpers Union a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America (herein called Respondent), and a
complaint based thereon issued on June 14 by the Re-
gional Director for Region 32 of the National Labor Re-
lations Board (herein called the Board). The complaint
alleged in substance that Respondent violated Section
8(b)(1)(B) of the National Labor Relations Act, as
amended (herein called the Act) by taking disciplinary
action (an internal union fine) against a supervisor of
Northwest, Robert O'Donnell, because of certain actions
taken by O'Donnell in the course of his performance of
supervisory or managerial duties for Northwest.
I All dates are in 1479 unlesls Xothers ise statcd
THI ISSUtS
Respondent admits all jurisdictional allegations.2
Respondent further admits that it fined O'Donnell in
the amount of $250 ($150 "suspended") following inter-
nal union charges filed against him by fellow bargaining
unit employees and a hearing thereon. Respondent denies
that O'Donnell is a supervisor within the meaning of the
Act. It further denies that the fine was in retaliation for
any supervisory or managerial actions taken by O'Don-
nell, but, rather, was for O'Donnell's having performed
bargaining unit work "off the clock" (i.e., at times when
he was not receiving payment therefor because he had
not yet punched in on the timeclock).
Upon the entire record herein, including my observa-
tion of the witnesses' demeanor and consideration of the
post-trial brief filed by counsel for the General Counsel, 3
I hereby make the following:
i. FINI)INIGS OF FACT
A. General Background
Northwest publishes and distributes a daily newspaper
in the San Jose area. The Union represents a collective-
bargaining unit of Northwest's employees consisting in
the main of persons engaged in the distribution of and
collection for those newspapers, together with the group
of persons with whom we are presently concerned who
work in Northwest's newsprint warehouse.
The newsprint warehouse typically employs, in addi-
tion to O'Donnell, three other full-time employees and
one other part-time employee. Using forklift and "clamp-
lift" mechanized equipment, those employees do the
work of unloading the newsprint rolls from delivery
trucks and locating them in temporary warehouse stor-
age, and. pursuant to orders from Northwest's press-
room, moving rolls of newsprint to the pressroom either
by such mechanized lift equipment or by conveyors
which run from the warehouse to the pressroom.
B. Supervisory Status of O'Donnell
With the exception of the part-time employee, the
other four warehouse employees are experienced, with
tenures in that job of at least 4 years. The work is large-
ly routine and repetitive. The employees do not need to
be told how to do their jobs. Through experience, they
know what is required to handle, store, move, and keep
simple records pertaining to their departmental function.
O'Donnell has been designated as a "working fore-
man" (or, as he called it, with a tendency to embellish,4
Specifically, due filing anld ser .ice of Ihe charges and Ihe complaint
on it; anid that Northse',sl by virtue of annual business svolume' exceed-
inlg 2(XI.0(X0. coupled A ith more than deminimis interstate business ,oper-
itions, is an employer engaged in commerce within the meaning of Sec-
lion 2(6) and (7) of the Act Respondent further admits that it is a labor
organizati on within the meaninrg oIf Section 2(5) ofr the Act
: Neither the Union nor the Chalrging Party filed a brief
4 While it Is nli nece%,.ars, to detail. 'iiiLC I find hereafter that ()O'Don-
nell may he classified ;1 ;1 ta perviBor v ilhill the mearnilg of the Act,
() 'Donnellil dlsplaycd al pronoitullnced tleldeticy ti exa;ggerate the limited Su-
per,, ir. r funi,.on .hhlich he perfrrms Corintrair to iniplicatioti, iI sonic
of his tCstiMon>i during cirect cxaminlatilmi hs the (;einral Crounsel. he
( riiitItiiiod
840
It ANi SI[ RS L.()tCA 296h
"warehouse foreman-supervisor") since February 1978.
He regularly performs the same job functions as his
fellow full-timers, Willie Gonzales, Earl Blackmore, and
William Wyatl. He is conceded to be part of the bargain-
ing unit, but earns a 10 percent "working foreman's" pre-
mium, pursuant to contractual agreement. He punches a
timeclock like the other warehouse workers.
In many of his day-to-day activities, O'Donnell's func-
tion is more closely akin to that of a nonsupervisory
"leadman" through whom orders are transmitted for the
types of newsprint rolls required in the pressroom, and
which cause O'Donnell to designate which deliveries are
to be unloaded first in the event that more than one sup-
plier's truck is awaiting unloading at the warehouse load-
ing dock. Normally, however, the trucks are unloaded
according to a "first-in, first-out" procedure. Likewise,
when O'Donnell tells a fellow employee to move a cer-
tain newsprint roll from storage to the pressroom, it is
not an order reflecting O'Donnell's use of independent
judgment and discretion, but, rather, merely reflects the
demands of the pressroom, as communicated through
O'Donnell as the warehouse "contact." However, Press-
room demands are posted, and the other employees do
not normally even need to be told by O'Donnell to take
the demanded newsprint from storage and to move it to
the pressroom.
O'Donnell spends portions of each day on the tele-
phone talking with newsprint suppliers about delivery
schedules. He also maintains inventory and related rec-
ords, working from a desk enclosed in a chicken wire
cage in the warehouse in which another desk is also lo-
cated. The other warehouse employees also use those
desks for doing simple paperwork, as well as for lunch
and coffeebreak purposes. When O'Donnell isn't on the
telephone or doing paperwork, he operates lift equip-
ment, and moves newsprint rolls along with the others in
the warehouse.'
There is the following undisputed evidence tending to
show, as I find, that O'Donnell possesses supervisory au-
thority:
The warehouse is administratively part of the "produc-
tion department" which includes approximately 600 em-
ployees working in the mailroom and the pressroom.
Larry Herman, a conceded supervisor, is the "assistant
production manager" and is the only person to whom
O'Donnell is required to report. Herman does not regu-
larly oversee the warehouse operations and is not a regu-
lar presence there.
When O'Donnell was first designated foreman by Pro-
duction Manager Gene Falk, he was told that he had the
responsibility for ordering newsprint for the warehouse
based on his own judgment of expected pressroom needs
and his assessment of the ability of the warehouse to
handle the same.
does not, in fact, use any independent judgment in. for example. making
out weekly work schedules or in setting annual vacation periods The
latter is done by "hbid" among the warehouse workers in the order of se-
niority The former is constant. and has been so for years
s Although the record does not reflect the percentages with an) preci-
sion, O'Donnell stated. responding to the question of how he spcnds his
time during the normal .iorkitg shift. " would drise Ihe fork lift, clamp
lift, the same as the others." Asked. "Did you spend much time in your
office?" O'Donnell replied. "Not very much "
O'Donnell may determine unilaterally that overtime
work is required and may order the other employees to
work overtime Usually, w hen fewer than four warehou-
semen are needed, the selection of specific employees for
overtime is based on consent, with O'Donnell approach-
ing employees and seeking volunteers. On one occasion
shortly after becoming foreman, O'Donnell sought to re-
quire two employees to work overtime. They com-
plained that they had not been given sufficient advance
notice and refused the assignment. O'Donnell consulted
with Herman, who sought O'Donnell's recommendation
whether the two men should be fired. O'Donnell advised
against this and his counsel was followed. Herman did
meet with the two men, however, and, in O'Donnell's
presence, confirmed O'Donnell's authority to require
them to work overtime.
O'Donnell once determined that the warehouse needed
additional help and went to the personnel office to re-
quest two additional temporary, part-time employees to
meet that need. The personnel office referred five appli-
cants to O'Donnell who briefly interviewed them, tested
them on their ability to operate mechanized equipment,
and, based on his own judgment, selected the two he
wanted. They were hired.
O'Donnell has at least once recommended that a ware-
house employee be transferred to a different department
based on his judgment that the employee "wasn't work-
ing out." His recommendation was followed.
Finally, on March I, O'Donnell made a substantial
change in the warehouse work schedule affecting all of
the employees who worked there. Contrary to a prior
practice of operating from 6 a.m. to 2 p.m., O'Donnell
determined that a 7 a.m. to 3 p.m. schedule would be less
costly to Northwest. He had observed that under the old
schedule, employees would frequently have to stay after
2 p.m. to handle later newsprint deliveries, resulting in
overtime premium pay. Under the new schedule, he ex-
pected that those later deliveries could be handled on
"straight time," thereby reducing a recurring payroll ex-
pense. O'Donnell had mentioned his plan to Herman,
who told him to implement the same if he thought it
would be effective. O'Donnell thereafter did so. He testi-
fied that he received no complaints nor opposition from
the other warehousemen when and after he posted the
new schedule on March 1.
Accordingly, while his regular day-to-day activities do
not ordinarily involve the exercise of supervisory author-
ity, I conclude that O'Donnell nevertheless possesses the
same, and that, by the foregoing examples, he has exer-
cised it.
C. The Alleged Unfair Labor Practice
Newsprint warehouse employees have traditionally ar-
rived at their workplace up to an hour before regular
starting time. All of the full-timers named above, includ-
ing O'Donnell, have keys to the warehouse and it has
been customary for the first person to arrive to unlock
the door, turn on the interior lights, and to raise the inte-
rior doors on his way through the warehouse. It has
been the custom for these employees to get a cup of
coffee and read the newspaper until approximately 5
841
I) (CISI()NS ()t' NA I ()NAI. .AII()R REI.AlI()NS B()ARD
minutes before the scheduled starting time. at w hich
point they go to the limeclock. punch in, anld begin their
work routine.
It had been O'Donnell's developing practice during
this "pre-start" period in the morning to perform other
tasks as well. Most relevant for present purposes was his
admitted practice. before punching in, of starting up a
clamplift vehicle and taking it to the loading dock where
a delivery truck loaded with newsprint rolls had been
spotted. O'Donnell admittedly would take a "dock
plate," used for spanning the gap between the dock and
the truck's tailgate, put the same in place, and then use
the clamplift to remove the two rearmost newsprint rolls
from the truck. He did this, as well as other less conse-
quential tasks (such as starting the conveyor to move any
newsprint already on it into the pressroom), in order to
get a head start on the bargaining unit work to be per-
formed that day. 6
Fellow employee William Wyatt credibly testified
without contradiction that he began to observe O'Don-
nell performing this work sometime in late February.
About a week after he first observed this phenomenon,
he began to make notes reflecting the dates on which he
observed O'Donnell performing such unloading work.7
His notes also reflected reports from other warehouse
employees that they had observed O'Donnell doing such
work on days when Wyatt was not scheduled to work.
Following discussions with fellow employees Black-
more and Gonzales, Wyatt initiated internal union
charges under Respondent's internal constitution and
bylaws against O'Donnell. All three above-named em-
ployees signed the charge forms on March 24 and for-
warded it to Respondent.
Pursuant to established procedures, Respondent noti-
fied O'Donnell by letter dated April 12 that he was
being ". . . cited to appear before the Executive Board
of this Local Union . . . on Thursday, April 26, 1979
.... " The letter further advised that O'Donnell had
been ". . . observed working during your lunch period
and working off the clock, before starting time on [the
same dates specified in the underlying "charge"], adding:
"This is a violation of Sections 15 and 16 of the contract
and the working rules of this Local Union." The letter
closed with the admonition that O'Donnell's failure to
6 O'Donnell concedes, and it is undisputed, that the above-described
work was typical "unit" work, performed throughout the normal shift by
him and fellow employees. There is no suggestion anywhere in the
record that he did so pursuant to any standing directive from higher
management
7 Wyatt had worked foir Northwest for 10 years in its stereotype room
before transferring to the warehouse in or about 1975 As a stereotyper.
he had served as shop steward and vice president of the local union rep-
resenting that group. He %was aware from that experience that "donating
time" was contrary to Irade union principles and he had been familiar
with that union's policy of fining stereotype union members guilts of
such "working off the clock" practices.
a Actually, the "form" used was captioned "Informalion of Complaint
or grievance" and contained the following pertinent language, in addition
to the pretyped material:
Robert O'Donnell has been working before his starting time and
during his lunch period without pay, therefore violating Sections 15
and 16 of the contract [which deal generally ,ith hours of work,
lunch periods. pay rates and overtime]. Working before starting time
March 1. 2. 6, 13, 14, 15, 16, 20. 21, 22. Took only 15 minutes for
lunch on March 15 [Resp Exh. 2]
appear at the executive board hearing would constitute a
"waiver of appearance," and that the hearing would pro-
ceed in his absence.
O'Donnell was ordered by Northwest not to appear at
the April 26 hearing and, accordingly, he failed to do
St,9
The hearing was brief, consisting only of the testimony
of employees Wyatt and Blackmore, who testified to
having personally observed O'Donnell "working off the
clock" on the dates earlier specified. and the reading into
the record of Hammett's April 18 letter partially quoted
above. Respondent's agent de Diego credibly testified
without contradiction that the only evidence furnished
pertained to O'Donnell's "off-the-clock" work practices
and that there was no reference to the manner in which
O'Donnell performed any supervisory functions.
On April 27, Respondent, through de Diego, wrote to
O'Donnell advising that the hearing had been held as
scheduled, that the April 18 letter from Hammett had
been "discussed" by the executive board, but that the
"... Board felt that this was a union matter, not involv-
ing the Employer in any way." The letter announced
that the executive board had decided to fine O'Donnell
. . . an amount of Twenty-Five Dollars ($25.00) for
each of the ten times you worked off the clock, for a
total of Two Hundred Fifty Dollars, with One Hundred
Fifty Dollars suspended, leaving a fine owing of One
Hundred Dollars." The letter further advised that contin-
ued violations would result in the suspended amounts
being added to any other fine levied for such new viola-
tions.
O'Donnell paid the $100 fine, "under protest," after re-
ceiving the above notice. The record shows without con-
tradiction that fines of at least $25.00 per "off-the-clock"
infraction are typically imposed by Respondent as part of
its standard internal union disciplinary procedures.
11. ANAI.YSIS ANt) CONCL USIONS
A. Some First Principles
Section 8(b)(1)(B) of the Act makes it an unfair labor
practice for a labor organization ". . . to restrain or
coerce . . . an employer in the selection of his repre-
sentatives for the purposes of collective bargaining or the
adjustment of grievances .... " In the landmark Florida
Power,t 0 decision, the Supreme Court authoritatively
traced the origins and evolving applications of Section 8
9 Northwest's vice president for employee/community relations. John
Hammett, perceived Respondent's April 12 summons to O'Donnell as re-
flecting some form of retaliation against O'Donnell for his performance
of supervisory work. In a letter to Respondent's Secretary-Treasurer
Henry de Diego dated April 18, Hammett stated that O'Donnell"
has been at work before the other rank-and-file warehouse employees,
but this has been to perform a supervisory function." Hammett then ob-
served, inconclusively, that "The dates set forth in the second paragraph
of your letter occur immediately after he gave the order to change the
starting times." Hammett also concluded that Respondent's action "
is a direct interference with our right to name a supervisor of our choice
and have him function effectively He is being ordered by us not to
appear at the meeting on April 26. 1979 "
"' Florido Power & Lighi Co. v Ilternationlu/ Brotherhood o Ehrctrical
Workcry, Loxal 64/, el al. 417 UI S 790 (1974). in v;hich the Court reject-
ed the Board's vie' that Sec. 8(h)(l)(B) is violated ".hen a union disci-
plines supervistr/ membchr fior pcrformiing rank-and-file struck iork
842
It 1.\S''TSI RS I ()('A I 2th
(h)(113), As the Courl noIecd therein. Section 8(b)(l)(B)
wsas enacted in 1947 principally to pre\:cnt unions froml
coercing an employer intlo joining or resigning from an
employer association. and to pre'ent unions from dictat-
ing who shall represenl an employer in settling employee
grievances, or compelling the removal of persons already
designated by an employer as the functionary responsible
for settling grievances. Id. at 798 (citing legislative histo-
ry ).
The Court further observed that. until the Board's
Oakland Mailers decision'' in 1968, the Board had ap-
plied Section 8(b)(l)(B) only to cases squarely within the
"metes and bounds" of that declared legislative intent.
Id. at 798-800.
Concluding, after further discussion of the legislative
history underlying Section 8(b)(1)(B), the Court stated
(id. at 804-805):
Nowhere in the legislative history is there to be
found any implication that Congress sought to
extend protection to the employer from union re-
straint or coercion when engaged in any activity
other than the selection of its representatives for the
purposes of collective bargaining and grievance ad-
justment. The conclusion is thus inescapable that a
union's discipline of one of its members who is a su-
pervisory employee can constitute a violation of
§8(b)(1)(B) only when that discipline may adversely
affect the supervisor's conduct in performing the
duties of, and acting in his capacity as, grievance
adjuster or collective bargainer on behalf of the em-
ployer. We may assume without deciding that the
Board's Oakland Mailers decision fell within the
outer limits of this test ....
I San Frranrci:co-Ookland Mailers' Union .No. I,. Internalional 7lpo-
graphical Union (.ortrhwrc Publcations. Inc.). 172 NLRB 2173 (1968), Co-
incidentally. the same employer charging party is involved
herein Oakland Maiders. supra. was seen by Ihe Court as "'significantly
expand[ingl the reach of Section 8(b)tl)(B)" (id. at 799-800) since there
was no effort by the charged union therein to "coerce" or "dictate" the
removal of certain supervisory representatives of management Rather. as
foiund by the Board, the union had, bh imposing internal discipline on
certain supervisor/members, sought io influence the manner in which
those supervisors performed their supervisorial and grievance-handling
tasks. particularly (on matters where the union and the employer had dif-
fering interpretations of contractual provisions governing the assignment
orf bargaining unit work Having determined that the union's discipline
was directed at the supervisor/members' alleged misinterpretation or mis-
application of the labor agreement, the Board reasoned (permissibly, in
the Court's ultimate view) that a "natural and forseeable effect" of such
discipline would be to make the supervisor/member reluctant to take a
position contrary to the union's in any future disputes over contract inier-
pretation or application Id at 801 The Court went on. however, to reg-
ister disapproval with the series of Board and circuit court decisions rely-
ing on and extending the rationale in Oakland Mailers, especially with the
evolving view that Section 8(b)(lNB) operated "as a general prohibition
of a union's disciplining supervisor/members for their conduct in the
course of representing the interests of their employers," or for acts "per-
formed in the course of [their] management duties'" Id at 801-802 (citing
and quoting from decisions respeclively in Toledoi L.oculs .'. 15-P &
272. of the Liihographers and Phorowngraiers International UnIiom.41L-
C/O (The Toledo Blado Company. lic.). 175 NLRB 1072. 1080 (1i9t). and
Meat CutterN Union Local 81 ol the 4nmalgamaucd Meat Cutters aud Buich-
er Workmen it .'orth .4mericau. .l-(O x . L. RB. 458 F 2d 794, 796
(DC Cir 1972)
The Court also rejected a rationale underlying many
of the post-Oakland M.Jaiier decisions and urged bS the
Board as a basis in Florida Powsner itself for concluding
that Section 8(b)(1)(B) had been violated--namely, that
even if a union's discipline of supervisor/mtembers cannol t
be shovni to have a specific adverse effect on the super-
visors' performance of collecti, e bargaining or griev -
ance-handling duties, such discipline nevertheless impairs
the "loyalty" in a general sense which an employer may
properly expect from its supervisory force. As to that
point, the Court held that Section 8(b)(1)(B) was not in-
tended by Congress to function as a shield against any
and all union discipline of supervisor/members W/hich
might arguably serve to dilute such loyalty. Rather. said
the Court, Congress provided alternative means to
ensure supervisory loyalty by enactment of Sections 2(3)
and 14(a) of the Act, thereby giving employers the abso-
lute option to refuse to hire or retain supervisors who
were union members and to refuse to bargain over their
terms and conditions of employment. Id. at 805-813
Thus, the Court concluded, "... it is quite apparent,
given the statutory language and the particular concerns
that the legislative history shows were w hat motixat'd
Congress to enact Section 8(b)(1)(B), that it did not
intend to make that provision any part of the solution to
the generalized problem of supervisor/member conlnict
of loyalties." Id. at 813.
In subsequent cases arising under Section 8(b)(1)(B),
the Board has refrained from employing the broad "loy-
alty" analysis rejected by the Florida Power court and has
instead narrowed its analytical focus to the question
whether the challenged union discipline of a supervisor/
member may adversely affect the supervisor's conduct in
performing his collective bargaining and grievance-ad-
justment duties (or, in the shorthand parlance now regu-
larly used by the Board, whether the union's discipline
has an adverse "carry-over" effect on the supervisor's
exercise of "8(b)(l)(B) duties"). 2
B. Discussion and Application
Having outlined my understanding of the current pa-
rameters of Section 8(b)(l)(B) and the analytical tests
employed by the Board in deciding cases arising under
that Section, it remains to apply those tests to the instant
facts, giving due regard to the cases and theories ad-
vanced on brief by the General Counsel.
I have no hesitancy in concluding herein that Re-
spondent's fine levied against O'Donnell for performing
bargaining unit work off the clock could not possibly be
construed as having any adverse carryover effect on
O'Donnell's performance of 8(b)(1)(B) duties (assuming,
arguendo, that O'Donnell possesses actual or potential au-
"2 See, e .g, Chicago Typographical C'Union .'o. 16 (luanmornd Puhlishcr.
Incl. 216 NL.RB 903 (1975), enfd. 539 F2d 242 (D( Cir 1976h) The
iBoard's current approach to the fining of supervisor/membcers ho vr ork
during a strike. applying the more resrictise I-'1orida Poiir tests. is i, alp
prosed by the Supreme Court im 4inerlulan Brr-ado-avping Cirompanieri Icr
ti al/ v W4 rltcr Guild oJ' 4inercu. ', r. li, 417 t4 S 411 (lt07). andtl Sc
espcciall) dtips.tissi ofi cases at 422 429I
1 tI ISI()NS ()F NAII()ONAL .AB()OR RELATIONS BO()ARD
thorily to represent Northwest in grievance- handling or
other collective-bargaining matters.)':
The above conclusion from the undisputed fact that
Respondent's fine work directed solely at O'Donnell's
performance of rank-and-file bargaining unit work off the
clock, M4 a species of conduct which unions have tradi-
tionally sought to ban their members from engaging in
for obvious reasons. "Donating time" by a member is an-
tithetical to one of the union's core functions of regulat-
ing, in the interests of its membership as a whole, when,
and for what rate of pay, members will perform work
for an employer. By voluntarily performing bargaining
unit work without pay, the errant member not only di-
minishes the amount of work available to the other mem-
bers of the bargaining unit, but also creates situations in
which subtle pressures can be brought to bear by the em-
ployer on other members to similarly perform certain in-
crements of unit work gratis. It is the potential for this
type of "competitive pressure" which the Supreme Court
found to justify the legitimate concern of the union
which imposed fines against members who had exceeded
"production quotas" in Scofield, et al. v. N.L.R.B., 394
U.S. 423, 431 (1969).
Viewed this way, it is difficult to imagine how Re-
spondent's disciplinary action against O'Donnell could be
interpreted to have an adverse carryover to his perform-
':' The Board evidently adheres to the pec se ".. rule that persons
who are supervisors within the meaning of the Act are employer repre-
sentatives within the meaning of Sec. 8(b)(1)(B)." United Brotherhood of
Carpenters & Joiners of 4merica. Local Union Vo. 14. AFL-CIO0 (lax M
Kaplan Properties). 217 NLRB 202 (1975). a post-Florida Power decision.
citing pre-Florida Power Board holdings This per se approach, sometimes
called the "reservoir doctrine" (even nongrievance-handling supervisors
are a "reservoir" to be called upon in futuro to handle grievances) has
been criticized by the Second Circuit in its review and denial of enforce-
ment of one of the Board cases cited in Kaplan Properties, vupra. N L R B.
v Rochester Musician: Asociation Local 66. affiliated with the .4merican
Federation of Musicians. 514 F. 2d 988 (2d Cir. 1975). The Second Circuit
concluded that Florida Power "effectively undermined its conceptual
basis." Id at 992.
Were it necessary to determine whether O'Donnell's limited supervi-
sory function includes 8(h)(1)(B) duties. I would find that no such duties
have been conferred on him. The contractual grievance procedure does
not expressly vest the working "foreman" with any responsibility for
dealing with grievances even at a preliminary state. Rather, "first-stage"
grievances are "referred" to "representatives of the Local Union and to
the individual Employer" for settlement, and, failing satisfaction, to a
joint union management "grievance committee" and. thereafter to third-
party arbitration. That O'Donnell may take responsibility for "rectifying"
paycheck discrepancies does not. of itself, show that he has authority to
"settle" or "negotiate" disputes over pay practices. but, rather, shows
only that he may certify to the payroll department that someone who has
been inadvertently underpaid actually performed work during the hours
for which pay is claimed by the employee
i4 It appears from Hammett's April 18 letter of protest to Respondent
that the employer interpreted the initiation of discipline against O'Don-
nell as a form of covert retaliation for his March I (admittedly supervi-
sory) decision to change the work schedule in the warehouse This inter-
pretation is unsupported by any substantial evidence Indeed, as is noted
above. O'Donnell admitted that this change did not appear to cause re-
sentment among the other warehouse workers, Neither does the General
Counsel advance such a theory Accordingly. I reject it as explaining Re-
spondenl's disciplinary actlion. Similarly. Hammett's assertion in the April
18 protest that O'Donnell was only performing "supervisory functions"
before the start or the regular shift is unsupported by the evidence
Unless O'Donnell's supervisory status automatically converts his perform-
ance of bargaining unit work off the clock into a "supervisory function"
(a posi1ion not taken by the General Counsel), it is not possible on this
record to view Respoisdent's actions as directed against O'Donnell's su-
pervissory behavior.
ance of 8(b)(1)(B) duties. Having been fined for perform-
ing bargaining unit work without pay, the only "lesson"
which O'Donnell might learn therefrom is that, so long
as he remains a member of Respondent, he may not with
impunity undermine Respondent's legitimate interest in
seeing to it that all bargaining unit work be done for
compensation. The only other arguable carryover effect
of such narrowly directed discipline would appear to be
the possibility that O'Donnell's "loyalty" to his employer
would be diminished to the limited extent that the em-
ployer would have a more difficult time in getting bar-
gaining unit work done by O'Donnell gratis. But it is not
suggested by the General Counsel herein that he seeks to
reinstate the now-discredited "loyalty" rationale underly-
ing some of the Board cases discussed critically by the
Court in Florida Power.
The General Counsel's brief contains no reference to
"Florida Power" or its narrowing impact on the scope of
Section 8(b)(1)(B). Instead, the General Counsel stresses
the fact that Respondent's discipline against O'Donnell
was based, in part, on an alleged contract violation (i.e.,
that the moving papers referred to O'Donnell's "...
violation of Section 15 and 16 of the contract and the
working rules of the local union.") From this, the Gener-
al Counsel argues that ". . . Respondent's discipline is
violative of Section 8(b)(l)(B) because internal union dis-
cipline has been employed as a tool to compel the fore-
men to take a pro-union position in interpreting the col-
lective bargaining agreement... ."
If Respondent's action against O'Donnell had truly
grown out of some dispute between Respondent and
Northwest over the interpretation or application of a
contractual provision, there would be a stronger basis for
asserting that Respondent's actions violated Section
8(b)(1)(B). For the Board has regularly held in post-Flor-
ida Power cases, relying on the "outer limits" Oakland-
Mailers case, supra, that union disciplinary actions against
supervisors are ". . . unlawful where they were rooted in
disputes between employers and unions over the inter-
pretation of their collective bargaining agreement."
Teamsters Local No. 524, International Brotherhood of
Teamsters, Chauffeurs, Warehouse men and Helpers of
America (Yakima County Beverage Company, Inc. and
Chaney Beverage Company), 212 NLRB 908, 909 (1974)
(emphasis supplied); see also International Union of Oper-
ating Engineers, Local Union No. 428, AFL-CIO (Mercury
Constructors, Inc.,), 216 NLRB 580 (1975), in which the
Board found a violation when the supervisor/member was
' . . disciplined after he engaged in what amounted to his
interpretation of the collective bargaining agreement."
But here, as was suggested earlier, there is no back-
ground tending to show that Respondent's discipline was
"rooted in" a dispute between Northwest and Respond-
ent over the meaning of a contractual provision. Rather,
the discipline in question derived solely from O'Don-
nell's personal choice, in violation of trade union princi-
ples, to "donate" time and labor to Northwest. It was
only incidental to the internal disciplinary action taken
against him that his conduct also involved an arguable
violation by Northwest of the contractual pay provi-
sions.
844
TEAMSTERS LO()CA 29%
The General Counsel seems to argue, however, that
whenever a union alleges as a basis for discipline that a
supervisor/member has violated a contractual provision,
then the discipline automatically violates Section
8(b)(1)(B) under the rationale of the cases just discussed.
Indeed, the General Counsel states as if it were a rule of
8(b)(l)(B) law that "The proper procedure for Respond-
ent to have followed would have been to discuss with
the employer on an informal basis, or on a formal basis
through the grievance procedure, the issue of whether a
supervisor who receives an additional 10-percent com-
pensation over and above his normal wage is permitted
to perform functions, regardless of their nature, prior to
the regularly scheduled starting time. The additional
issue for the parties to have discussed would be whether
or not those functions were supervisorial, rank and file,
or a combination of both, and if so, to what proportion."
This is, at best, a novel rule of "proper procedure." It
suggests that whenever a supervisor/member's behavior
involves an arguable contract breach (and without
regard to whether or not it may also be a clear example
of conduct which a union may legitimately regulate
through internal disciplinary proceedings), then the
union violates Section 8(b)(1)(B) by choosing to redress
the offense through internal disciplinary action rather
than through contractual disputes-settlement procedures.
The Board has never suggested that Section 8(b)(1)(B)
limits a union's options to such a degree. Rather, in
Yakima Beverage and Mercury Constructors, supra, the
gravamen of the Board's holdings was that where the
discipline was used as a means of resolving in the union's
favor a dispute over the meaning or application of con-
tract terms, there existed the requisite carryover impair-
ment of the supervisor's 8(b)(l)(B) functions.15 It did not
|s The General Counsel argues with some justification that Yakima
Beveraoge, supra, is factually similar to the instant case There, arguably,
the supervisor/members' alleged infractions were likewise characterizable
as the type of "working off the clock" violation for which O'Donnell
was disciplined herein. In addition. however, the supervisors in Yakima
Beverage were charged with having violated certain contractual provi-
sions pertaining to the performing of work after the regular quitting time
without prior union agreement. The following additional features seem to
distinguish that case from the instant one:
The "supervisors" who performed the work in question were
themselves part owners and/or managers of beverage wholesaling
firms who had. apparently contrary to the normal practice of having
shelves stocked by nonsupervisory bargaining unit employees, them-
selves engaged in an emergency stocking task one evening to accom-
modate a retail store customer. Apparently based on that unique fac-
tual setting, and the particular contractual provision invoked by the
union in disciplining the supervisor/members. the Board interpreted
suggest that in cases such as this, that the mere existence
of contractural language arguably covering the problem
requires the union to resort to the grievance procedure
as the exclusive remedy for a member's misconduct.
Were that the rule, low-level supervisors such as O'Don-
nell would enjoy a special status under Section 8(b)
(I)(B) not enjoyed by their rank-and-file brethren. Hut
Florida Power quite clearly intended that the employers
who elect to permit their supervisors to become union
members must, of necessity, "pay a price" -- the price
being in cases such as this that their supervisors are just
as vulnerable to internal union discipline for performing
bargaining unit work off the clock as are nonsupervisory
members of the same union.
Accordingly, in the absence of a showing that Re-
spondent's discipline against O'Donnell affected or could
affect his performance of any grievance-handling or col-
lective-bargaining responsibilities for Northwest, it is
concluded that the complaint may not be sustained.
CONCLUSIONS Or LAWs
1. Northwest is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3. Respondent did not violate Section 8(b)(1)(B) of the
Act when it fined Robert O'Donnell, a supervisor within
the meaning of Section 2(11) of the Act, for having per-
formed bargaining unit work without compensation.
Upon the foregoing findings of fact, conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 17
The complaint is dismissed in its entirety.
the discipline as an attempt by the union to "interpose [the supervi-
sors] into its conflict with [the employers) " The Board also stressed
In its holding that the union had conceded that its purpose in disci-
plining the supervisors was to "force the supervisors to follow the
collective bargaining agreement " (Yakima Beverage. supra, at 910)
NR ,,ew York Tlypogruphical Union No. 6. International T'ographical
Union .AFL-CIO (Daily Rucing Form. a subsidiary of Triangle Publicaions.
Inc), 216 NLRB 896. 897 (1975)
': In the event no exceptlins are filed as provided by Sec 10246h of
the Rules and Regulations of the National Labor Relations Board. the
findings. conclusions, and recommended Order herein shall, as prosided
in Sec 102.48 of the Rules and Regulations. he adopted hb the Board and
become its findings, conclusions. and Order, and all obJectimon, thereto
shall he deemed waived fior all purposes
845