DECISIONS OF NATIONAL 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
August 27, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On July 21, 1980, the National Labor Relations
Board issued a Decision and Order1 in the above-
entitled proceeding in which a majority of the
panel2 adopted an Administrative Law Judge's
finding that Respondent did not violate Section
8(b)(1)(B) of the Act when it imposed a fine upon
supervisory employee Robert O'Donnell for alleg-
edly performing unit work prior to punching in on
the timeclock. The panel majority found that Re-
spondent's action against O'Donnell was not an at-
tempt "to force the Employer to change its inter-
pretation of the collective-bargaining agreement"
but, instead, was intended "to address the personal
decision of O'Donnell, a member of Respondent
Union, to violate trade union principles by 'donat-
ing' labor to the Employer." Accordingly, the
panel majority found Respondent's action in the in-
stant case distinguishable from the union's action in
a prior case3 where the union's discipline of super-
visory employees was found violative of the Act.
Accordingly, the panel majority dismissed the
complaint in its entirety. Member Jenkins dissented,
arguing that the discipline of O'Donnell was an at-
tempt by Respondent to impose its interpretation of
the collective-bargaining agreement on O'Donnell
and thereby impede the Employer's control over
its supervisors.4
Thereafter, the Employer filed a petition for
review of the Board's Order with the United States
Court of Appeals for the Ninth Circuit. On Sep-
tember 14, 1981, the court issued its decision, 5 va-
cating the Board's Order and remanding the case
to the Board for further consideration. In its deci-
sion, the court noted that in decisions such as
Yakima Beverage the Board has found that a union
violates Section 8(b)(1)(B) if it disciplines a
' 250 NLRB 838. On July 28, 1980, the Board issued an Order correct-
ing several inadvertent errors in its July 21, 1980, Decision and Order.
2 Former Members Penello and Truesdale with Member Jenkins dis-
senting.
I Teamsters Local No. 524, International Brotherhood of Teamsters,
Chauffeurs Warehousemen and Helpers of America (Yakima County Bever-
age Company, Inc. and Chaney Beverage Company), 212 NLRB 908 (1974).
' Member Jenkins further argued that the Yakima Beverage decision
(see fn. 3, supra) was applicable to the facts in the instant case.
6 656 F.2d 461.
supervisor/member when he or she has taken a po-
sition different from the union on a disputed con-
tract provision. The court then found that Re-
spondent's discipline of O'Donnell did, in fact, in-
volve the interpretation of the collective-bargaining
agreement and that in bypassing the grievance
process to fine a supervisor over a contract dispute
Respondent acted in violation of Section 8(b)(l)(B)
at least to the extent Yakima Beverage and related
cases remain the applicable law. Accordingly, be-
cause of the Board's failure to follow its own
precedent, the court remanded the case for further
proceedings.
Thereafter, the Board informed the parties that
they were entitled to file statements of position on
the issues raised by the remand. The General
Counsel filed a statement of position and the
Charging Party (Employer) filed a statement of po-
sition and supporting brief.
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, having accepted the remand, respect-
fully recognizes the court's decision as binding for
the purposes of deciding this case.
Briefly stated, the pertinent facts are as follows:
Robert O'Donnell, a supervisor within the meaning
of Section 2(11) of the Act and a member of Re-
spondent, was employed in the Employer's news-
print warehouse along with three other employees.
All four were covered by a collective-bargaining
agreement between Respondent and the Employer.
The four, including O'Donnell, were hourly paid,
punched a timeclock, and, for the most part, per-
formed the same type of work.
On March 24, 1979, the unit employees filed a
complaint with Respondent alleging that O'Don-
nell was performing certain unit work prior to his
starting time and on his lunchbreak. The work con-
sisted of certain "pre-start" activities that O'Don-
nell performed on a daily basis in walking from the
warehouse entrance to the timeclock. It appears
that this type of work had been consistently per-
formed by O'Donnell's predecessors.
On April 12, 1979, Respondent notified O'Don-
nell that he was to appear before its executive
board on April 26 in response to charges that his
pre-start activities violated sections 15 and 16 of
the collective-bargaining agreement. The Employer
directed O'Donnell not to appear and informed Re-
spondent that it considered O'Donnell's pre-start
work to be supervisory in nature. The Employer
further claimed that the disciplinary action inter-
fered with its right to name a supervisor and allow
him to function effectively. O'Donnell was fined
263 NLRB No. 104
778
TEAMSTERS LOCAL 296
$250, of which $150 was suspended. O'Donnell
paid the balance under protest.
Based on the foregoing, we conclude that Re-
spondent violated Section 8(b)(l)(B) when it disci-
plined O'Donnell for performing certain pre-start
job tasks. Our review of the entire record con-
vinces us that O'Donnell's actions were carried out
in furtherance of the Employer's established prac-
tice of having its supervisors perform such tasks.
Thus, Respondent plainly sought to interfere with
the performance of a job task traditionally per-
formed by the Employer's supervisory personnel.
In addition, contrary to the Administrative Law
Judge's conclusion, Respondent's action, in substan-
tial part, involved a dispute over the applicability
and interpretation of the collective-bargaining
agreement. Accordingly, by seeking to discipline
O'Donnell, Respondent unlawfully sought to
coerce O'Donnell into conforming his job tasks to
Respondent's perception of the contract require-
ments and supervisory functions. We find, there-
fore, that Respondent's action violated Section
8(b)(1)(B). Yakima Beverage, supra.6
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice, we shall order that it cease
and desist therefrom and take certain affirmative
action to effectuate the policies of the Act. We
shall, inter alia, order that Respondent rescind any
fines against Robert O'Donnell and refund to him
any moneys held on account of the fine assessed,
with interest in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977). 7
Upon the basis of the foregoing, and upon the
entire record in this case, including the Ninth Cir-
cuit Court of Appeals decision, the Board makes
the following:
6 In its remand, the court noted that the Board would be free to recon-
sider its decision in Yakima Beverage We continue to adhere to that deci-
sion.
The court also declined to pass on the issue of whether the "reservoir
doctrine" remains a viable means for determining whether a supervisor
such as O'Donnell is a representative within the purview of Sec.
8(bXlXB). Under the doctrine, the Board has found that all supervisors
within the meaning of Sec. 2(11) are representatives within the intent of
Sec. 8(bXIXB) notwithstanding the absence of evidence that the individu-
al in question is specifically vested with authority to act for the employer
in collective bargaining or the adjustment of grievances. See United
Brotherhood of Carpenters & Joiners of America, Local Union No. 14, .4FL-
CIO (Max M. Kaplan Properties), 217 NLRB 202 (1975). Cf. American
Broadcasting Companies Inc., et al. v. Writers Guild of America, West.
Inc., et al., 437 U.S. 411, 436 (1978), where the Court opined that: "Union
pressure on supers isors ,-an affect either their willingness to serve as
grievance adjustors or collecti've bargainers, or the manner in which they
fulfill these functions: and either effect impermissibly coerces the employ-
er in his choice of representative." We continue to adhere to the "reser-
voir doctrine" and, accordingly, we find that O'Donnell was a repre-
sentative within the purview of Sec. 8(b){XIX).
7 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Member Jenkins would compute interest in the manner set forth in his
partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980).
CONCLUSIONS OF LAW
1. Northwest Publications, Inc., is, and at all
times material herein has been, an employer within
the meaning of Sections 2(2) and 8(b)(1)(B) of the
Act.
2. Northwest Publications, Inc., is, and at all
times material herein has been, an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. Respondent Teamsters Local 296, Sales Deliv-
ery Drivers, Warehousemen and Helpers Union
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of
the Act.
4. Robert O'Donnell is, and at all times material
herein has been, a supervisor within the meaning of
Section 2(11) of the Act and a representative of
Northwest Publications, Inc., within the meaning
of Section 8(b)(1)(B) of the Act.
5. By imposing a fine against Robert O'Donnell
because he allegedly violated the collective-bar-
gaining agreement between Respondent and North-
west Publications, Inc., Respondent has restrained
and coerced Northwest Publications, Inc., in the
selection and retention of its representatives for the
purposes of collective bargaining or the adjustment
of grievances and has engaged in an unfair labor
practice within the meaning of Section 8(b)(1)(B)
of the Act.
6. The aforesaid unfair labor practice is an unfair
labor practice within the meaning of Section 2(6)
and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Teamsters Local 296, Sales Delivery Drivers,
Warehousemen and Helpers Union a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen & Helpers of America, San Jose, Cali-
fornia, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Fining or otherwise disciplining Robert
O'Donnell, or any other supervisor or representa-
tive of Northwest Publications, Inc., for allegedly
violating the provisions of the collective-bargaining
agreement between Respondent and Northwest
Publications, Inc.
(b) In any like or related manner restraining or
coercing Northwest Publications, Inc., in the selec-
tion and retention of its representatives for the pur-
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses of collective bargaining or the adjustment of
grievances.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Rescind the fine levied against Robert
O'Donnell and expunge all records of the fine from
its files.
(b) Refund to Robert O'Donnell any moneys
held on account of the fine assessed against him
with interest as set forth in the section of the Deci-
sion herein entitled "The Remedy."
(c) Post at its offices and meeting halls, and
other places where notices to its members are cus-
tomarily posted, copies of the attached notice
marked "Appendix."8 Copies of said notice, on
forms provided by the Regional Director for
Region 32, after being duly signed by an author-
ized representative of Respondent, shall be posted
by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Furnish the Regional Director for Region 32
with signed copies of such notice for posting by
Northwest Publications, Inc., if willing, in places
where notices to employees are customarily posted.
(e) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
a In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Order, what steps the Respondent has taken to
comply herewith.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
'POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fine or otherwise discipline
Robert O'Donnell, or any other supervisor or
representative of Northwest Publications, Inc.,
for allegedly violating the collective-bargain-
ing agreement between us and Northwest Pub-
lications, Inc.
WE WILL NOT in any like or related manner
restrain or coerce Northwest Publications,
Inc., in the selection and retention of its repre-
sentatives for the purposes of collective bar-
gaining or the adjustment of grievances.
WE WILL rescind the fine levied against
Robert O'Donnell and expunge all records of
the fine from our files.
WE WILL refund to Robert O'Donnell any
moneys held on account of the fine assessed
against him, with interest.
TEAMSTERS LOCAL 296, SALES DE-
LIVERY DRIVERS, WAREHOUSEMEN
AND HELPERS UNION A/W INTERNA-
TIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSE-
MEN & HELPERS OF AMERICA
780
