Glaziers & Glassworkers Local 1621

National Labor Relations Board - Board Decisions

Nov 19, 1975

221 N.L.R.B. 509 (N.L.R.B. 1975)

GLAZIERS - & GLASSWORKERS LOCAL 1621
Glaziers and Glassworkers Local Union No. 1621,
International Brotherhood of Painters and Allied
Trades , AFL-CIO and Glass Management Associ-
ation
Glaziers and Glassworkers Local Union No. 718,
International Brotherhood of Painters and Allied
Trades, AFL-CIO and Glass Management -Associ-
ation. Cases 20-,CB-3008 and 20-CB-3065
November 19, 1975
DECISION AND ORDER
BY MEMBERS- FANNING, JENKINS, AND
PENELLO
On June 26, 1974, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondents each filed
exceptions and briefs and the General Counsel and
Charging Party filed briefs in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of'Section 3(b) of the
National Labor Relations ' Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge concluded that
Respondents violated Section 8(b)(1)(B) of the Act
by fining and/or citing all 18 supervisor-members
involved herein for crossing or working behind a
picket line. His decision, ' however, issued before the
Supreme Court handed down its decision in Florida
Power & Light Co. v. International Brotherhood of
Electrical Workers, Local '641, et al., 417 U.S. 790
(June 24, 1974), wherein the' Court construed Section
8(b)(1)(B) of the Act. Our application of the Supreme
Court's Florida Power holding to the facts here results
in our finding a violation of Section 8(b)(1)(B) with
respect to I individual cited and fined by Respon-
dent Local No. 1621 and dismissing the allegations
with respect to the remaining 17, individuals in issue.
The essential facts were stipulated by the parties.
Charging Party, Glass Management Association
(hereafter referred to as GMA), is a multiemployer
bargaining association consisting of approximately
65 member-employers engaged in the retail and
wholesale and servicing of glazing products and in
the construction industry in the bay area counties of
1 All dates hereinafter refer to 1973 unless otherwise indicated
2 Two of the supervisors cited by Respondents had applied for and
received withdrawal cards from their Union prior to the'strike . However, the
221 NLRB No. 91
509
California. GMA represents its member-employers in
collective-bargaining negotiations with Respondent
Unions, Local No. 718 and Local No. 1621.
Following expiration of the latest collective-bargain-
ing agreement, the parties became embroiled in an
economic dispute lasting from July 2 through July
24, 1973,1 during which. time Respondent Unions
maintained picket lines in front of the premises of the
GMA member-employers. On July 24, the parties
reached agreement on a new contract and the
employees returned to work.
Following the strike, Respondent Unions cited 18
supervisor-members 2 for crossing and/or working
behind authorized picket lines. Seventeen of these
were eventually brought to trial and fined; the
remaining individual failed to appear for his sched-
uled trial and no fine was ever levied against him.
Of the 18 supervisor-members fined and/or cited
by Respondents, ,7 performed the same amount of
bargaining unit work (i.e., cutting of glass for retail
customers) during the strike as they had prior to its
commencement, 6 performed less, and 5 performed
more. Sixteen of the 18 supervisors cited by Respon-
dents, personally own stock in their, respective
employers, and some of these also have family
members who have stock ownership interests in their
employers, Moreover, in two instances two supervi-
sors own stock in the same employer; in one case
each supervisor owns 50 percent, and in the other
case one supervisor owns 25 percent and the other
supervisor owns 75 percent together with the corpo-
rate secretary.''
The amount of stock owned by each individual
supervisor in his respective company and the amount
of family ownership or, in the two cases, other
supervisors' ownership, as well as the amount of
bargaining unit work performed by each supervisor
before and, during the strike, is set forth following
each of the cited individuals' names in Appendix A,
attached hereto.
During the strike, aside from the time they spent
performing bargaining unit work, the 18 cited
individuals performed their usual administrative
functions, such as giving estimates, retail sales, job
bidding, and purchasing.
With regard to grievance adjustment, during
normal times all the supervisors cited by Respon-
dents were responsible for adjusting grievances.
However, during the strike none of the supervisors
cited performed ' any such functions, inasmuch as
there were no employees working during this period.
parties stipulated that both of these supervisors were still subject to the rules
of their Union
510 DECISIONS OF NATIONAL
With regard' to collective bargaining, only one of
the supervisors cited, Jean Hinterman, was, -as a
member of GMA's negotiating committee,3 directly
engaged in collective bargaining during the strike.4
Several of the other individuals cited, however, were
responsible ' for determining whether to ratify for
their respective employers any collective-bargaining
agreement reached by GMA in negotiations with
Respondents.5
Discussion and Conclusions
I
,In Florida Power, supra, the Supreme Court found,
contrary to the Board, that there was no 8(b)(1)(B)
violation by a union's sanctions against supervisor-
members who were performing tank-and-file work
behind the picket line. In the course of its decision, it
enunciated the .following test for determining when a
union violates Section 8(b)(1)(B) of the Act by
disciplining supervisor-members:-
'The conclusion is thus inescapable 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 ad-
versely affect that supervisor's conduct in per-
forming the duties of, and acting in his capacity
as, grievance adjuster or collective bargainer on
behalf of the employer. [417 U.S. 790, 804-805.]
Since then, we have had occasion to apply that
standard in the following cases, among others:
Hammond Publishers,6 Triangle Pubhcations,7 Food
Employers Council,8 Max M. Kaplan Properties,9 and
Skippy Enterprises. 10
Hammond Publishers, supra, was the first case in
which the Board was faced with interpreting the
scope of the Supreme Court's "adversely affect" test.
In that case, a majority of the Board (Member
Fanning dissenting) reversed the Administrative Law
Judge's decision and found an 8(b)(1)(B) violation
under circumstances where one of the supervisors
fined performed "at most 35 minutes per day"
bargaining unit work, and the other supervisors fined
performed what the' Administrative Law Judge found
3 In addition to bargaining, the same representatives who serve on the
GMA negotiating committee also serve on the Joint conference committee
which handles all disputes arising out of the collective-bargaining agreement
that cannot be settled by a representative of Respondent and the individual
employer involved.'
4 All the record shows about Hmterman is that he crossed the picket line
to perform administrative work, and also that he was the only one of the 18
supervisors cited who performed no bargaining unit work during the strike
There is noamdication in the record that Hmterman crossed the picket line
to perform collective-bargaining or grievance-adjustment functions
5 These supernsor-members are Roger F Bibo, Joe Baxter, Joseph P.
Bard-, Alexander R Meyer, Jr., Michael R. Meyer, Roy E. Statham, Jr., and
Everett L Pezoldt.
LABOR RELATIONS BOARD
to be "a minimal amount" of bargaining unit work.
The' Board stated there in the text .accompanying
footnote 7: ,
The . . . question of "when that discipline may
adversely affect the supervisor's conduct ..."
clearly depends on an analysis, of the - activity
engaged in by the supervisor during the period for
which the discipline is imposed, rather than on an
evaluation of the union's motivation... .
The application of the effect test is relatively
straightforward in extreme situations where the
disciplined 'supervisor has engaged`either only in
the performance of supervisory, activities (not
limited to grievance adjustment or collective
bargaining), or only in the performance of rank-
and-file struck work. In the former there is clearly
a violation since it is reasonably likely that an
adverse effect will, carry over to the supervisor's
performance of his 8(b)(1)(B) duties where he is
disciplined after having engaged only in the
performance of supervisory duties. In the latter,
there is no violation since it is, not reasonably
likely that an adverse effect will carry over where
the supervisor has, engaged in the performance of
only rank ;and-file struck work.
... We believe that the Respondent's acts of
discipline,, in the instant case violated Section
8(b)(1)(B) notwithstanding the fact that Palmer
and Andress may have , performed a minimal
amount of rank-and-file struck work. This fol-
lows, we feel, since under our view of Florida
Power it makes no difference whether a supervisor
performs a minimal amount of struck work
because it is still reasonably likely that an adverse
effect may carry over to the supervisor's perfor-
mance of his 8(b)(1)(B) duties when he is
disciplined after having performed substantially
only supervisory functions and only a minimal
amount of what might arguably be called rank-
and-file struck work during a work stoppage.
[Footnotes omitted.]
In Triangle Publications, supra, we applied the
above reasoning in finding a violation of 8(b)( 1)(B)
where the, supervisor-member fined had performed
6 Chicago Typographical Union No 16 (Hammond Publishers, Inc), 216
NLRB No. 149 (1975).
9 New York Typographical Union No 6, International Typographical
Union, AFL-CIO (Daily Racing Form, a subsidiary of Triangle Publications,
Inc), 216 NLRB No. 147 (1975) '
3 Bakery and Confectionery Workers International Union of America,
Local Unions 24 and 119 (Food Employers Council, Inc.), 216 NLRB No. 150
(1975).
9 United Brotherhood of Carpenters & Joiners ofAmerica, Local Union No
14, AFL-CIO (Max M. Kaplan Properties), 217 NLRB No. 13 (1975)
10 Wisconsin River Valley District Council of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc ), 218
NLRB No 157 (1975).
GLAZIERS & GLASSWORKERS- LOCAL 1621 511
only supervisory functions behind the picket line. On
the other hand, in Food Employers Council, supra, we
found the respondent unions did not violate Section
8(b)(1)(B) by fining certain supervisor-members
under circumstances where these individuals normal-
ly spent about 45-50 percent of their time performing
bargaining unit work, which they continued to
perform during the strike, and some of those fined
actually increased the proportion of bargaining unit
work they performed during the strike. Applying the
Hammond rationale, the Board reasoned that these
individuals "performed much more than a minimal
amount of rank-and-file work during the strike
[footnote omitted]." Similarly, in Max M. Kaplan
Properties, supra, the Board again found no violation
in a union's fining a supervisor-member for continu-
ing to work behind the picket line where the
individual "continued to spend at least 50 percent of
his working time performing bargaining unit work
,,
Finally, in Skippy Enterprises, supra, the Board
(Members Fanning and Penello dissenting separate-
ly) found a violation of Section 8(b)(1)(B) in a
union's fining a supervisor-member who continued
to Work in violation of the union's "no, contract-no
work" order. In that case, all of the other employees
continued to work since they were not members of
the,union and, consequently, the individual fined was
performing the same work functions following the
no-work order as prior thereto-i.e., approximately
30 percent of his time performing rank-and-file work,
and the remaining 70 percent performing his supervi-
sory responsibilities. The Board distinguished these
facts from those in Florida Power noting that the
work performed by the supervisors in Florida Power
was "struck" work. The Board further noted that the
Supreme Court did not overrule the Board's decision
in Oakland Mailers," but only refused to extend it to
a situation where struck work was involved. The
Board went on to find the facts here to be similar to
those in A. S. Horner, i2 where the Board found that
the supervisor's compliance with the union's no-work
order would have meant quitting the job with the
employer, thereby depriving the employer of the
services of its designated representative. Noting that
ii San Francisco-Oakland Mailers' Union No. 18, International Typo-
graphical Union (Northwest Publications, Inc.), 172 NLRB 2173 (1968)'.
12 New Mexico District Council of Carpenters and Joiners ofAmerica (A.
S. Horner, Inc.), 177 NLRB 500, enfd . 454 F.2d 1116 (CA. 10, 1972).
is Although, as noted earlier , none of the 18 individuals disciplined by
Respondents performed any strictly supervisory functions behind the picket
line, since there were no employees working during this period, we
nonetheless consider the administrative work performed by the individuals
here to be of the same protected nature . In our view, a union's disciplining
supervisor-members while they are performing their usual administrative
functions is as likely to have an adverse effect on their perception in the
performance of grievance adjustment and collective-bargauung functions as
would discipline imposed on them while actually performing supervisory
functions . Supervisors are just as likely to interpret the sanctions as having
the supervisor here did not perform any struck work,
and that the amount of time spent on supervisory
duties was not "minimal," the Board found that here,
as in Horner, compliance with the union's order
would have meant quitting his job with the same
proscribed effect of depriving the employer of the_
services of its designated representative.
On the basis of the foregoing precedent, it is clear
that our determination as to whether Respondents
committed 8(b)(1)(B) violations in the instant case
will hinge on, the comparative amount of bargaining
unit work, as opposed to normal supervisory func-
tions, which the 18 individuals performed while
working behind the picket line. As noted in the
factual statement above, the ' bargaining unit work'
performed by those 18 individuals ranged from 0 to
70 percent, the remainder of their time being spent in
the performance of their usual administrative func-
tions.13
However, before determining specifically who
among these 18 individuals performed a substantial
amount of supervisory/administrative work or only a
minimal amount of rank-and-file bargaining unit'
work behind the picket line, we think it advisable to
dispose of the issue of ownership and to what extent
Respondents were privileged to fine certain individu-
als, regardless of how little bargaining unit work they,
performed behind the picket line, because the
individuals were, for all intents and purposes, the
"employer" within the meaning of Section 8(b)(1)(B).
Since we are finding below that certain of the
individuals have such a substantial ownership inter-
est so as to constitute the "employer," with respect to
them it will' not be necessary to apply the substan-
tial/minimal test. Consequently, rather than attempt-
ing to draw the fine lines, we find, necessary in
applying that test herein, we will defer our applica-
tion of the substantial/minimal test to a later portion
of this decision, after we have excluded those whom,
because of their ownership interest, Respondents
were free to sanction in any event.
been for standing by their employer during a time of economic conflict, and
therefore could reasonably be expected to believe that they could be subject
to fines whenevei they took their employer 's position as against the union's,
including the time they are adjusting grievances or engaging in collective
bargaining.
We further believe that the Supreme Court did not intend to foreclose
such an interpretation in its Florida Power decision. Thus , as Justice white
noted in lus dissent in 417 U.S. at 815, fn 2:
I do not read the Court to say that § 8(b)(IXB) would allow a union
to discipline, supervisor-members for performing supervisory or
management functions, as opposed to customary rank-and-file, work
during a labor dispute. [Emphasis supplied.]
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II
The Board has previously interpreted Section
8(b)(1)(B) of the Act as not protecting a supervisor-
member from sanctions against him by his union
under circumstances where he is also the sole owner
of the employer.14 The legislative history behind
Section 8(b)(1)(B) makes it clear that Congress was
only concerned with protecting employers, in the
selection of their representatives for the two purposes
provided therein ; there is,.no indication that Con-
gress . intended to protect the employer himself
against such fines and sanctions.15 There is no
restraint or coercion against the employer in the
selection of his representatives for the prohibited
objects where the employer himself is acting as the
representative for' these purposes. This dichotomy in
treatment of union sanctions imposed on an employ-
er's supervisors as opposed =to those levied directly
against the employer himself may also be explained
by the fact that it is difficult to envision circum-
stances where the employer would be greatly
influenced in the performance of his grievance-
adjustment or collective-bargaining functions where
any decision he makes in those respects directly
works to his benefit or detriment depending, on how
he decides it.
In Insulation Industries,16 the Board, extended the
above principle to an individual who was president
and, 98-percent owner of the employer, and the
remaining 2 percent was owned by his two daughters
in equal ` shares. The Board stated there:
Under .-these circumstances , we do not consider
Tate ,[the supervisor-member disciplined by his
union ,] to be an employee selected for supervisory
functions, but we do consider him, regardless of
the corporate technicalities, to be the owner of the
Employer. In view of this determination, we
conclude that Respondent's conduct in fining
Tate would not tend to subvert any loyalty
between the Employer herein and its supervi-
sors. . . .
As noted above, in the instant case, 4 of the
supervisor-members fined were sole owners of their
respective employers, and 12 of the remaining 14 had
ownership interests in their respective employers
ranging from 2 to 90 percent. The Administrative
14 See Local 146, Sheet Metal Workers International Association, AFL-
CIO, et al. (Robert Dale Jones d/b/a Aarctic Heating and Cooling Company),
203 NLRB 1090 (1973); Bricklayers, Masons and Plasterers' Union, Local
No. I (Barr Floors, Inc.), 209 NLRB 820 (1974).
15 This interpretation is also consistent with the Supreme Court's
analysis of the legislative history behind Sec 8(b)(1)(B) in Florida Power,
supra.
16 International Association of Heat and Frost Insulators and Asbestos
Workers, Local 19 (Insulation Industries, Inc.), 211 NLRB 592 (1974).
17 See Morand Brothers Beverages Co., 91 NLRB 409, 414-415 ( 1950),
Law Judge found that none of the supervisor-
members had ownership interests of'such a nature as
to constitute any of them a relevant employer for
purposes of Section 8(b)(1)(B). Further, he found
that even the sole owners perform a representative
function with respect to GMA and that therefore
GMA could be coerced and restrained in the
selection of its representatives by fines levied against
even the sole owners. We disagree.
The Board has long held that a union's picketing of
an employer to pressure it into entering a collective-
bargaining agreement does not violate Section
8(b)(1)(B).17 For the same reasons, we recently held
that a union's fining of a supervisor-member who
was the sole owner of the employer in order to
pressure him to sign a collective-bargaining agree-
ment did not violate Section 8(b)(1)(B).18 Here, the
supervisor-members were fined and/or cited for
crossing and working behind their unions' authorized
picket lines. It would appear, a fortiori, that the same
rationale applies and a union can fine its supervisor-
member-owners for crossing picket lines which have
been established for the purpose of obtaining a
collective-bargaining agreement just as it could fine
them to achieve such an end where no picket line
existed. The only possible distinction-and that
specifically relied on by the Administrative Law
Judge in finding violations in the present case-is the
contention that it was not the' individual supervisor-
member-owners who were being pressured by the
fines, but GMA; that this action would tend to
subvert the loyalty between GMA and the members
of its "negotiating committee" or "joint conference
committee" who' are sole owners; and that hence
GMA would be restrained or i coerced in selecting
any of such owner-members to serve on either of
those committees. As set forth in Hammond Publish-
ers; supra, the Supreme Court has limited the
"conflict of loyalties" rationale, and in applying the
test of Florida Power, we do not agree with the
Administrative Law Judge's conclusion.
Contrary to the Administrative Law Judge, we do
not, find that owner-members, of GMA may be
viewed as analogous to supervisory personnel in their
relationship to GMA. As was said ' in Robert Dale
Jones,19
enfd. in part and remanded 190 F.2d 576 (C.A. 7, 1951), supplemental
decision 99 NLRB 1448 (1952), enfd. 204 F.2d 529 (C.A. 7, 1953), cert.
denied 346 U.S.909, rehearing denied 34¢ U.S. 940 (1953); International
Hod Carriers, Building, and Common Laborers Union of America, Local
#1082 (E. L. Boggs Plastering Company), 150 NLRB 158 , 163 (1964), enfd.
384 F.2d 55 (C.A. 9, 1967), cert. denied 390 U.S. 920 (1968).
18 Robert Dale Jones, supra at 1093-94.
is Supra at 1093. This rationale of the Administrative Law Judge was
adopted without comment by, the Board.
GLAZIERS & GLASSWORKERS LOCAL 1621
To ascribe to the General Counsel's theory of the
violation that because of such fine Jones would
thereafter be restrained or coerced in the selection
of his representatives who were members of the
Respondent because they might suffer similar
penalties unless they acceded to the Respondent's
position in bargaining or adjustment of grievance
situations, not only ignores the basis for Jones'
fine and the Respondent's objective of obtaining
a collective-bargaining agreement, but presumes
without any valid foundation that the Respon-
dent would thereafter discipline supervisors em-
ployed by the Company to force or require them
to accede to its unlawful demands. It does not
necessarily follow, neither can it be inferred, that
a, union by engaging in coercive conduct to
achieve one objective would thereafter engage in
similar conduct for- the purposes of obtaining
those objectives clearly proscribed by the Act, nor
would, such contemplated conduct be a reason-
able forseeable [sic] consequence of the initial
conduct... .
There is a substantial difference between finding
the possibility of an adverse effect from a union's
sanctions against a supervisor-member while per-
forming substantially supervisory functions and
finding such a possible effect from a union's
sanctions against a substantial owner of an employer.
For the same reasons that we believe Congress did
not intend to protect under Section 8(b)(1)(B) a
supervisor-member who is also the sole or, a
substantial owner of 'his firm and is'himselfperform-
ing the relevant functions, we see no reason for
finding that GMA acquires the protection that the
supervisor-member-owners do not have individually.
For the Administrative Law Judge's conclusion
requires inversion of the actual relationship of GMA
and 'its members. Thus, GMA is' an employer within
the meaning of the Act, but ' only because it is the
agent of a group of employers 20 And the' principal in
this situation is that group of employers, i.e., the
GMA members. In acting as members of the
"negotiating committee" or "joint conference com-
mittee" those owners are acting on behalf of
themselves and as agents of the other similar owners,
not as agents of GMA to further the interests of the
latter as a separate entity. To find, as does the
Administrative Law Judge, that the fines' of the
members are unlawful would be to hold that a fine of
the principal would have an adverse effect on the
agent. This is clearly a distortion of the meaning and
purpose of Section 8(b)(1)(B).
Further, it is unlikely that an individual with
substantial ownership interests in a firm would take
20 Sec. 2(2) of the Act. -
513
actions in the performance of the relevant functions
which would be detrimental to his own business or
that of others similarly situated in his bargaining
organization. To hold otherwise would be to resur-
rect the sweeping conflict of loyalties rationale
which, as we have noted above, the Supreme Court
has limited in Florida Power.
Consequently, we find, contrary to the Administra-
tive Law Judge, that Respondents were free to fine
those supervisor-member-owners whose ownership
interest is so substantial so as to make them the
employer. With respect to the 16 supervisor-member-
owners involved here, we find that those who either
personally, or together with other family members,
had more than 25-percent ownership interest in their
companies are employers. As can be seen from the
factual statement earlier, 15 of the 18 individuals in
issue have such an ownership interest. Accordingly,
we will dismiss the 8(b)(1)(B) allegations in the
complaint with respect to them.
III
Having found that Respondents were free to fine
the 15 individuals who personally, or together with
other family members, owned 25 percent or more of
their respective firms, we. turn to the 3 remaining
individuals whose ownership, interests were less than
that. These individuals are Lawrence W. Hall, who
prior to the strike performed no bargaining unit work
and during the strike spent 40 percent of his time
performing unit work; Randall A. Wolf, who
performed no bargaining unit work before the strike
and spent 2-3 percent of his time doing unit work
during the strike; and Lawrence Haas, who spent a
substantial amount of time doing bargaining unit
work prior to the strike and spent the 2-1/2 days
which he worked during the strike performing
bargaining unit work exclusively.
As noted earlier, in applying the "adversely affect"
test of Florida Power we find no violation where, a
union disciplines a supervisor-member who performs
more than a minimal amount of struck bargaining
unit work, but find that there may be an adverse
effect on the performance of the supervisor's relevant
functions where the supervisor-member who is fined
has performed only a minimal amount of bargaining
unit work. Applying that standard -to the three
remaining individuals before us, we find that
Lawrence W. Hall and Lawrence Haas spent more
than a minimal amount of their time performing
struck bargaining unit work while working behind
the picket lines, and, accordingly, we will dismiss the
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b)(1)(B) allegations relating to- the Respondent's
disciplining of these,individuals.21 However, we find
that Randall A. Wolf spent only a minimal amount
of -time performing bargaining unit work while
working behind the picket line and that the sanctions
which Respondent imposed on him may adversely
affect his performance of grievance-adjustment and
collective-bargaining functions for his employer.
Thus, with respect to Randall A. Wolf we find that
Respondent Local No. 1621 violated Section
8(b)(1)(B)_of the Act by citing and fining him.22
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent
Glaziers and Glassworkers Local Union No. 1621,
International Brotherhood of Painters and Allied
Trades, AFL-CIO, its officers, agents, and represent-
atives, shall:
1. Cease and desist from restraining or coercing
the employer of Randall A. Wolf in the selection of
its representatives for the purposes of collective
bargaining or the adjustment of grievances by citing
and fining him for crossing or working behind a
picket line under circumstances where he is engaged
primarily in the performance of supervisory or
administrative functions while so employed and
-Performs only a minimal amount of bargaining unit
work.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Rescind the action against Randall A. Wolf
which resulted in fines against him and expunge from
its records all references thereto.
(b) Reimburse Randall A. Wolf and make him
whole for any and, all sums paid by him pursuant to
the fine referred to in the preceding paragraph,
together with interest thereon at the rate of 6 percent
per annum, and advise him, in writing, that the
action taken against him which resulted in said fine
has been rescinded and- the record of its unlawful
action has been expunged.
(c) Post at its offices and union hall copies of the
attached notice marked "Appendix B.1123 Copies of
said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
21 Food Employers Council, supra, Max M Kaplan Properties, supra
22 Hammond Publishers, supra; Triangle Publications, supra.
23 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director "for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER FANNING, concurring in part and, dissenting
in part:
I would dismiss the complaint with respect to the
fining of supervisor-member Wolf for the same
reason that I join in the majority's dismissal of the
complaint with respect to the fining of the remaining
supervisor-members, namely that all performed
bargaining unit work behind a lawful picket line24
and were disciplined for that reason. The -case thus
falls, in my estimation, squarely within-the teachings
of Florida Power. See my dissenting opinion in
Chicago Typographical Union No. 16 (Hammond
Publishers, Inc.), supra.
I do not intend to set forth,, once again, the
substance of my disagreement with my colleagues
concerning the thrust of Section 8(b)(l)(B) in light of
the Supreme Court's Florida Power decision. To my
mind, my differences with my colleagues in this area
are capable of reduction to a single, simple compo-
nent. They have yet to come to grips with the fact
that, to put it frankly, Section 8(b)(l)(B) of the Act is
not what they had thought it to be before Florida
Power.
In the assumption that the reader of today's
majority opinion has already been thoroughly con-
fused by my colleagues' attempts" to explain away the
meaning of Florida Power, I would only refer the
reader to the series of post-Florida Power-decisions
setting forth my separate views 25 and point, out that
in today's decision my colleagues have taken an
additional step and equated "administrative" func-
tions with "managerial" functions which somehow
become "supervisory" functions' and, therefore(?),
8(b)(1)(B) functions.
I would dismiss the complaint in its entirety
because the fined individuals, assuming they were
possessed` of the'specific 8(b)(1)(B) functions , crossed
a lawful union picket line and, as, members of that
union, could be disciplined for that act.
24 With the exception of Supervisor Hinterman. I would dismiss with
respect to his fining for the reasons set forth in my dissenting opinion in
Triangle Publications, supra.
25 Id, Hammond Publishers, supra, Food Employers Council, supra
(concurring opinion); Max M Kaplan Properties, supra (concurring
opinion); Skippy Enterprises, supra (dissenting opinion).
GLAZIERS & GLASSWORKERS LOCAL 1621
,PPEihDIX A
Ownership
Individual Family &
Other
Supervisors Before
Jean hinterman 100% 0 10-15%
Frank Jarboe 100% 0 15%
Roy E. Statham 100% 0 2%
Joseph P. Bardi 100% 0 50%
Peter C. Bello 90% 0 "very rarely"
William 0. Caro 75% ?*/ less than 1%
(owned
"together with"
corporate
secretary
Lynette Caro)
A. Leandro 0% . Bertheaud 0%
owns remaining
50%
E. Bertheaud 50% A. Leandro 50%
owns remaining
50%
Everett L. 33.5% Since stoppage less than 1%
Pezholt
(during work
stoppage)
Douglas R. 5%
ended Pezholt
& wife own
65% jointly
Father, mother, 0%
Lystra
Keith Claussen 25%
& brother each
own 25%
Wm. Caro & less than 1%
corporate
secretary
Lynette Caro
own remaining
75%
Joe Baxter 25% Father owns 5%
remainder
515
Percentage of Time Spent
Performing Bargaining Unit Work
Durin
0
less than 15%
20-25%
less than 50%
1 hr. a day
less than 1%
30%
30%
70%
10%
less than 10%
5%
*/ Although it appears likely that there is some family relationship between
Lynette and William Caro (probably husband and wife), there is no record
evidence establishing what that relationship is, if any.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ownership
Individual Family &
Other
Supervisors
Alexander R. 10% M. Meyer owns
Meyer 10%, sister
10%, & father
remaining 70%
11iichael R. 10% A. Meyer owns
Meyer 10%, sister
10%, & father
remaining 70%
Roger F. Bibo 10% Wife & father
own remaining
90%
Lawrence W. ttaas 2%
Lawrence
Hall 0%
Randall A.
Wolf 0%
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce the employer of
the individual named below in the selection'of its
representatives for the purposes of collective
bargaining or the adjustment of grievances by
citing and fining him for crossing or working
behind a picket line under circumstances where
he is performing no more than a minimal amount
of bargaining unit work while so employed.
WE WILL rescind the action which we took
against Randall A. Wolf which resulted in fines
being levied against him and will remove from
our records all documents and notations relating
to the proceedings against him.
WE WILL reimburse Randall A. Wolf and make
him whole, with interest, for any and all sums
which he may have paid pursuant to the fines
referred to in the preceding paragraph.
Percentage of Time Spent
Performing Bargaining Unit Work
Before Turing
5-10% 5--10%
"minor "Minor part
part of
his time"
of his time"
2--5% 2--5%
Substantial 2-1/2--3 days
0 40%
0 2-3%
GLAZIERS AND
GLASSWORKERS LOCAL
UNION No. 1621,
INTERNATIONAL
BROTHERHOOD OF
PAINTERS AND ALLIED
TRADES, AFL-CIO
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based on
a charge filed in Case 20-CB-3008 on October 1, 1973, by
Glass Management Association, hereinafter referred to as
GMA, the complaint in said case was issued on November
16, 1973. Said complaint alleges that Glaziers and
Glassworkers Local Union No. 1621, International Broth-
erhood of Painters and Allied Trades, AFL-CIO, herein-
after referred to as Local 1621, engaged in conduct
violative of Section 8(b)(1)(B) of the Act. Respondent
Local 1621, by its answer, denies that its conduct was
violative of Act.
Based on a charge filed in Case 20-CB-3065 on
November 21, 1973, by GMA, the complaint in said case
was issued on December 21, 1973. Said complaint alleges
that the Glaziers and Glassworkers Local Union No. 718,
International Brotherhood of Painters and Allied Trades,
GLAZIERS & GLASSWORKERS LOCAL 1621
AFL-CIO, hereinafter referred to as Local 718, engaged in
conduct violative of Section 8(b)(1)(B) of the Act.
Respondent Local 718, by its answer, denies that its
conduct was violative of the Act.
By Order dated December 21, 1973, the above two cases
were consolidated for hearing. Pursuant to notice, a
hearing in the two above-entitled cases was held in San
Francisco, California, on February 20 and 21, 1974, before
the duly designated Administrative Law Judge. Appear-
ances were entered on behalf of all the parties and briefs
were received from them on April 15, 1974.
Upon the entire record in this proceeding, I make the
following:
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED HEREIN
A. Case 20-CB-3008
The Employers involved in Case 20-CB-3008 are GMA,
Del Monte Glass Company, West Coast Glass Company,
Inc., Franciscan Glass Company, Cobbledick-Kibbe Glass
Co., and Haviland-Witkin Company.
GMA, a California corporation having a place of
business in San Francisco, California, is a voluntary
association of employers engaged in the retail and
nonretail glazing industry in Northern California.
At all times material herein, GMA has existed for
purposes of representing its employer-members, including
Del Monte Glass Company, West Coast Glass Company,
Inc., Franciscan Glass Company, Cobbledick-Kibbe Glass
Co. and Haviland-Witkin Company, in collective bargain-
ing and in negotiating and administering collective-bar-
gaining agreements with various labor organizations
including Respondent.
During the past 12 months, GMA's employer-members
in the State of California, in the course and conduct of
their business operations, collectively received gross
revenues in excess of $500,000.
During the past 12 months, GMA's employer-membcrs
in', the State of California, in the course and conduct of
their business operations, collectively purchased and
received goods and products valued in excess of $50,000
which were shipped to them directly from suppliers located
outside the State of California,
As is admitted by Respondent Local 1621, at all times
material herein, GMA and each of its employer-members,
including Del Monte Glass Company, West Coast Glass
Company, Inc., I and Franciscan Glass Company, have
constituted employers engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
B. Case 20-CB-3065
The employers involved in Case 20-CB-3065 are GMA,
Columbus Glass Company, Bello Glass Company, Inc.,
House "0" Glass Co., Inc., Golden Gate Glass and Mirror
1 It appears from the record that E Korbus & Son Glass Company,
Western Plate and Window Glass Company, Star Glass Co, B & L Glass
517
Co., Statham Glass and Aluminum Products, and Glass
and Sash, Inc.
GMA, a California corporation having a place of
business in San Francisco, California, is a voluntary
association of employers engaged in the retail and
nonretail glazing industry in Northern California.
At all times material herein, GMA has existed for
purposes of representing its employer-members, including,
but not limited to, Columbus Glass Company, Bello Glass
Company, Inc., House "0" Glass Co., Inc., Golden Gate
Glass and Mirror Co., Statham Glass and Aluminum
Products, and Glass and Sash, Inc., in collective bargaining
and in negotiating and administering collective-bargaining
agreements with various labor organizations including
Respondent.
During the past 12 months, GMA's employer-members
in the State of California, in the course and conduct of
their business operations, collectively received gross
revenues in excess of $500,000.
During the past 12 months, GMA's employer-members
in the State of California, in the course and conduct of
their business operations, collectively purchased and
received goods and products valued in excess of $50,000
which were shipped to them directly from suppliers located
outside the State of California.
As is admitted by Respondent Local 718, at all times
material herein, GMA and each of its employer-members,
including, but not limited to, Columbus Glass Company,
Bello Glass Company, Inc., House "0" Glass Co., Inc.,
Golden Gate Glass and Mirror Co., Statham Glass and
Aluminum Products, Glass and Sash, Inc.,' have constitut-
ed employers engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
As is admitted by Respondents , each of them is, and has
been at all times material herein , a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are whether or not
Local 1621 violated Section 8(b)(1)(B) of the Act by citing,
trying, and fining the four individuals named in Part 3 of
"The Undisputed Facts" set forth hereinbelow; and
whether or not Local 718 violated Section 8(b)(1)(B) of the
Act by citing, trying, and fining the individuals named in
paragraphs a through in in Part 4 of "The Undisputed
Facts" set forth hereinbelow, and citing the individual
named in paragraph n thereof.
B. The Undisputed Facts
Set forth hereinbelow are the undisputed facts based on
a stipulation of the parties. Part 1 and Part 2 are applicable
to both cases herein; Part 3 applies to the case involving
Company, and Cobbledick-Kibbe Glass Company are also included among
the employer-members of GMA.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1621; and Part 4 applies to the case involving Local Part 2
718.
Part I
GMA is a multiemployer bargaining group consisting of
approximately 65 member employers engaged in the retail
and wholesale sales and servicing of glazing products and
in construction in the Bay Area Counties, California.
GMA represents its member employers in collective-
bargaining negotiations with Local 718 and Local 1621.
The purposes of GMA are set forth in Article II of the
Articles of Incorporation and By-laws of Glass Manage-
ment Association as amended January 10, 1972. GMA as
such does not employ employees represented by Local 718
or Local 1621. Members of the two Local Unions are
employed directly by the respective employers who belong
to GMA.
On June 30, 1973, the then current collective-bargaining
agreement between GMA and Local 718, Local 1621, and
Glaziers and Glassworkers Local Union No. 169 (which
local is not involved in the instant proceeding) expired. On
or about April 19, 1973, GMA had selected the individuals
who would serve as the negotiating committee on its behalf
with the above-named Local Unions for the then forth-
coming collective-bargaining negotiations. Those repre-
sentatives were as follows: Lloyd Cobbledick, Jr., Jean
Hinterman , Bill Denhardt, Harold Witkin, Bud Lawson,
Don Elgie, Charles Tscharner, and Vester Wilson.
On or about July 2, 1973, Local 718 commenced an
economic strike against Paige Glass Company and Haben-
icht & Howlett. On or about the same date, Local 1621
commenced an economic strike against Havlm-Witkin
Company and Royal Glass and Mirror Company. On or
about July 3, 1973, the members of GMA who were not
struck locked out their bargaining unit employees pursuant
to the express position of GMA as indicated at the outset
of negotiations that a strike against one member of GMA
would be deemed by GMA to be a strike against all its
members (as provided in Art. VIII of the bylaws of GMA).
On or about July 24, 1973, agreement was reached on a
new contract and the bargaining unit employees returned
to work.
The current collective-bargaining agreement between the
parties is for the term extending from July 1, 1973, through
June 30, 1976.
The procedure followed by the parties in resolution of
grievances and disputes is set forth in the 1973 - 76 and the
preceding collective-bargaining agreements. As a general
rule the employer and union representatives on the joint
conference committee are the same individuals who serve
on the parties' respective negotiating committees. The
procedure is as follows:
... All matters of controversy or dispute arising out
of the operation or interpretation of this Agreement
which cannot be settled by a duly authorized represent-
ative of the union and the Individual Employer
involved shall be referred to the Joint Conference
Committee... .
All individuals referred to in this stipulation and in the
complaints as amended have at all times material hereto
been members of either Local 718 or Local 1621 depending
on the location of their places of employment and the
applicable union jurisdiction, and all companies referred to
in this stipulation have at all times material hereto been
members of GMA. In order to work as journeymen
glaziers or to perform other work covered by the collective-
bargaining agreement, an individual is required to become
and remain a member of the local union having jurisdic-
tion over his particular geographic area. All such members
of the union are eligible for and receive the benefits
specified in the collective-bargaining agreements, the
bylaws of their respective local unions, and the constitution
of the International Brotherhood of Painters and Allied
Trades. Among the benefits provided for in the documents
referred to above are such things as health insurance,
pension benefits, sick benefits, and death benefits, which
are provided only to members of the union, including the
individuals mentioned herein.
Part 3 (re Local 1621)
The parties stipulated to the following facts concerning
those individuals who were cited, tried and fined by Local
1621 as set forth in the complaint, as amended:
a. Roger F. Bibo is employed by Franciscan Glass
Company, a California corporation. Bibo is vice president
of the corporation and owns 10 percent of the stock of the
corporation. The remainder of the stock is owned by Bibo's
wife (Ruth) and his father (Lloyd), the treasurer and
president of the corporation, respectively.
Bibo has been a member of Local 1621 for approximate-
ly I1 years. Bibo has continued his membership in Local
1621 in order to perform work covered by the collective-
bargaining agreement when necessary and to continue his
eligibility for the benefits as described above in Part 2.
Franciscan Glass Company employs three to five journey-
man glaziers.
Bibo is responsible for managing the business including
hiring and firing of employees, making personnel policy
decisions, resolving complaints and grievances that arise
among the Company's employees, directing the work of the
journeyman glaziers, scheduling their work, and perform-
ing job estimates . Bibo occasionally performs work
covered by the collective-bargaining agreement consisting
of cutting of glass in the shop for retail customers at those
times when a journeyman glazier is not available to do the
work. The amount of time generally spent by Bibo in this
type of work is between two and five percent of his total
working time. Bibo speaks for the Company with regard to
ratification of collective-bargaining agreements negotiated
by GMA.
During the work stoppage described above in Part 2,
Bibo reported to work each day pursuant to a decision of
the corporate board of directors that he should continue to
run the business during that period even though no jobsite
glass and glazing work was being performed. During the
work stoppage Bibo functioned in the same capacity as he
normally does, as described above, except for the fact that
GLAZIERS & GLASSWORKERS„LOCAL 1621 519
there were no bargaining unit employees present in the
shop who required his supervision or direction.
By letter dated August 16, 1973, Bibo was cited to appear
before the Local 1621 executive board.2 Bibo appeared
before the executive board on September 4, 1973, and by a
second letter dated September 6, 1973, was advised as to
the findings of the executive board (trial board).3 Bibo has
not filed an appeal to the findings and was advised on or
about October 19, 1973, that Local 1621 would not accept
his dues until the fine was paid or until the matter was
resolved by the National Labor Relations Board.
b. Joe Baxter is employed by West Coast Glass
Company, Inc., a California corporation. Baxter is the
secretary of that corporation, his father Cecil Baxter is the
president, his mother Hazel Baxter is the vice president,
and Clyde Baxter is the treasurer. The same four
individuals constitute the corporation's board of directors.
Cecil Baxter and Joseph Baxter own the stock of the
corporation. Joe owns 25 percent of the stock and Cecil
Baxter owns the remaining 75 percent of the stock. Joe
Baxter has been a member of Local .1621 since 1955 and
currently maintains his membership because such is
necessary to maintain his union benefits and to enable him
to perform bargaining unit work as necessary. The
Company employs four journeyman glaziers. Baxter speaks
for the Company with regard to ratification of collective-
bargaining agreements negotiated by GMA.
Baxter is the chief estimator, including bidding and
estimating work, is the sales manager and material
expediter, and is responsible for hiring and firing the
bargaining unit employees , assigning them work , directing
them in their work, and resolving and dealing with any
grievances which may arise under the terms of the
collective-bargaining agreement . The bargaining unit work
performed by Baxter involves the cutting of glass in the
shop for retail customers when a glazier is not otherwise
available, The performance of bargaining unit work
occupies approximately 5 percent of Baxter's total working
time.
During the work stoppage Baxter reported to the
Company's shop each working day pursuant to the
decision of the corporation's, board of director's that the
shop should remain open during the strike to continue
business and to minimize the loss of goodwill of its
established customers . During that period, Baxter contin-
ued to estimate jobs, make retail sales, and do job bidding
and purchasing and continued to do the same, things he
was doing before the strike, including spending 5 percent
of his time cutting glass for retail customers. As no
bargaining unit employees were present, during that
period, there were no supervisory functions which had to
be performed . Baxter also contacted regular customers to
advise them as to why his Company was unable to perform
the work for them during that period.
By letter dated August 16, 1973, Baxter was cited i to
appear before the Local 1621 executive board for an
alleged violation of its constitution and bylaws. That letter
was identical in content to that sent to Bibo. On September
2 The charge was a violation of certain provisions of the constitution and
bylaws It appears that the gist of Bibo's offense was that of crossing and
working behind an authorized picket line
4, 1973, Baxter appeared before the executive board, as
directed. By letter dated September 6, 1973, Baxter was
advised as to the findings of the executive board (trial
board). The contents of that letter are identical to the
second letter sent to Bibo. Baxter has not appealed that
fine and has been advised by Local 1621 that his dues
would not be accepted until the fine was paid or until the
matter was resolved by the National Labor Relations
Board.
c. Lawrence W. Haas is employed by Del Monte Glass
Company and has been so employed for the last 5 years.
Haas is neither an officer nor director of the Company but
does own approximately 2 percent of the stock in the
Company pursuant to a stock option purchase plan. Haas
is a journeyman glazier and a member of Local 1621 and
functions as a glazier foreman for Del Monte Glass
Company, as defined in the collective-bargaining agree-
ment. Haas supervises the work of 12 to 25 bargaining unit
employees . Haas assigns all work to the bargaining unit
employees including journeyman glaziers, production
workers, and allied workers. He directs those employees in
the manner and means by which they perform their work
and 'reprimands employees for poor work performance. A
substantial amount of Haas' working time is spent in the
performance of bargaining unit work. He has final
authority with regard to hiring and firing of employees and
has exercised that authority. He authorizes overtime work
and resolves grievances and complaints arising among
bargaining unit employees. He is paid 10 percent above the
journeyman glazier's scale as provided in the collective-
bargaining agreement.
During the work stoppage described above Haas did not
report to work at the Company's shop located in Monterey,
California. However, on or about July 4, 1973, Haas was
contacted by Les Golding, the president of the Company,
and directed to report to a jobsite in Monterey in order to
remove and reinstall a storefront window on the Hyatt
House project which was being performed by the Compa-
ny. Haas complied with the directive of Les Golding and
on or about July 5, ' 1973, reported to the Hyatt House
jobsite and began to perform the glazing work as described
in order that the other trades working on the j obsite could
proceed with their jobs on the project. During the time
Haas was on that jobsite there was no picket line present.
Haas worked on the jobsite approximately 2-1/2 to 3 days,
at which time he was advised by Local 1621 that if he
remained on the'jobsite it would be picketed. Accordingly,
he left the jobsite at that time and did not return.
By letter dated August 16, 1973, Haas' was cited to
appear before the Local 1621 executive board for alleged
violation of its constitution and bylaws. The contents of
that' letter were as set forth in the letter to Bibo. On
September 4, 1973, Haas appeared before the executive
board as directed. By letter dated September 6, 1973, Haas
was notified as to the result reached by the trial board. The
contents of that letter are identical to that of the second
letter to Bibo. Haas has not paid or appealed the fine and
his dues will not be accepted until such time as he pays the
3 The finding was guilty of the charge and the fine was $1,000 and
suspension until the fine is paid
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fine or the matter is resolved by the National Labor
Relations Board.
d. Randall A. Wolf is employed by Hart Glass Compa-
ny, a California corporation, located in San Jose, Califor-
nia. He has been employed by that Company since
November 1964 when he began his employment as an
apprentice glazier. Wolf does not own any stock in the
Company nor is he an officer or director of the Company.
In July 1971, he applied for and received a withdrawal card
from Local 1621 which was effective January 1972 and is
still effective as of this date. He remained amenable to the
rules of the Union. Wolf is employed as a job superinten-
dent. In that capacity he is responsible for scheduling the
glazier crews for various jobs, controlling work loads given
out to the crews, supervising the glazing work that is
performed on the jobsite, measuring jobs, and coordinating
contractual agreements between contractors and the
Company. He also performs office work including estimat-
ing and billing. He has hired and fired employees on behalf
of the Company. He has full authority and responsibility
with respect to the adjustment of grievances which may
arise among members of Local 1621 working for the
Company and has exercised same. Ordinarily Wolf does
not perform any work covered by the collective-bargaining
agreement referred to above.
During the work stoppage Wolf was directed by the
Company to report to work as normal and did so each
working day during the work stoppage. During that period
his responsibilities included checking on jobs which were
in progress when the work stoppage commenced, working
with contractors, advising them as to what steps they
should take, and asking them to be patient with the
Company until such time as the work stoppage was over
and work on their jobs could be continued. He also worked
in the office performing estimating work, billing customers,
and coordinating contracts. He performed some measuring
work. During the work stoppage Wolf spent approximately
two to three percent of his time working in the shop cutting
glass for retail customers and repairing of some frames
which had been made by bargaining unit employees prior
to the work stoppage and which had to be redone during
the work stoppage. These frames were delivered to the
jobsite by Wolf.
By letter dated August 16, 1973, Wolf was cited to
appear before the Local 1621 executive board to answer
charges: The contents of that letter were identical to the
contents of the letter to Bibo. On September 4, 1973, Wolf
appeared before the board as instructed. By letter dated
September 6, 1973, Wolf was advised as to the results of
the Local 1621 trial board procedure. The contents of that
letter are the same as the contents of the second letter to
Bibo.
Part 4 (re Local 718)
The parties stipulated to the following facts concerning
those individuals who were cited, tried, and fined by Local
718 as set forth in the complaint, as amended:
a. Joseph P. Bards is the sole owner of Columbus Glass
Company, a sole-proprietorship located in San 'Francisco,
California. The Company employs approximately six
bargaining unit employees who are members of Local 718.
Bardi is a journeyman glazier and has been a member of
Local 718 since 1938. Bardi's responsibilities with the
Company include sales, estimating jobs, measuring jobs,
ordering stock, handling necessary paper work, and
answering phones. Bardi also performs bargaining unit
work covered by the collective-bargaining agreement,
which work takes up approximately 50 percent of his
working time. This work includes work in the shop (cutting
glass and fabricating of aluminum windows) as well as
some jobsite work when necessary. Barth hires and fires all
employees working for the Company and assigns work to
them. He resolves any grievances or complaints which
employees may have and speaks for the Company with
respect to ratification of contracts negotiated by GMA
with Local 718. Bardi is responsible for making policy
decisions on behalf of the Company.
During the work stoppage described above, Bardi spent
less time actually performing bargaining unit work (for
example, cutting glass in the shop) than he does in normal
situations since there was no jobsite glazing work being
performed during that period. During the work stoppage,
Bardi engaged in his usual functions involving sales of
products, ordering stock for future deliveries, and speaking
with customers on the phone and explaining to them why
the Company was unable to complete jobs which were in
progress.
By letter and charge sheet dated October 1, 1973, Bardi
was cited to appear before the Local 718 executive board
to answer charges for an alleged violation of Article 33,
Section, 13 of its bylaws .4 On October 23, 1973, Bardi
appeared as directed before the Local 718 executive board,
sitting as a trial board. Bards was tried and convicted and,
by a second letter dated November 8, 1973, Bards was
advised as to the decision of the trial board.5 Bardi has not
paid the fine and has not appealed.
b. Peter C. Bello is employed by Bello Glass Company,
a California corporation, located in San Francisco,
California. He is the president of that corporation, his wife
is the vice president, and his daughter is the secretary-
treasurer. Bello owns 90 percent of the stock of the
Company. Bello has been a member of Local 718 since
1936. The Company employs approximately four journey-
man glaziers and one allied worker under the terms of the
collective-bargaining agreement. Bello manages the busi-
ness, including exercising final authority with regard to
hiring and firing of employees, handling any personnel
matters that arise and resolving any complaints or
grievances which employees may present. Bello very rarely
performs any bargaining unit work in the shop and never
performs onsite glazing work. The only time that Bello
performs glazing work in the shop would be in emergency
situations when all of the glaziers are out of the shop. The
bulk of Bello's time is taken up purchasing stock, checking
job estimates, talking to customers on the telephone, and
handling correspondence.
4 The gist of the charges was that of crossing and working behind an 5 He was found guilty of the charge and fined $200 of which $150 was
authorized picket line. "held in abeyance "
GLAZIERS- & GLASSWORKERS LOCAL 1621
During the work stoppage described above, Bello
reported to work as usual. His duties during the work
stoppage consisted of answering telephones, handling
paper work, doing estimating work, banking, paying bills,
and talking' to certain customers in an attempt to convince
them to be patient with the Company until the work
stoppage was over. In addition, if a retail customer came
into the store and asked for a piece of glass, Bello did
supply it to the customer. His function in this latter
capacity occupied at most an hour or so each day. No
onsite glazing work was performed by the Company during
the strike.
On October 1, 1973, Bello was cited to appear before the
Local 718 executive board. The letter and charge sheet
received by Bello are identical to those received by Bardi.
On October 23, 1973, Bello as directed appeared before the
Local 718 executive board, sitting as a trial board. Bello
was tried and convicted and, by letter dated November 9,
1973, was notified of the decision of the trial board. The
contents of that letter are identical to that of the second
letter received by Bardi.
c. Alexander R Meyer, Jr. (herein referred to as A.
Meyer), is employed by Golden Gate Glass & Mirror Co.,
Inc., located in San Francisco. The Company is a
California corporation: A. Meyer is a vice president of the
corporation and owns 10 percent of the stock. Michael R.
Meyer is also a vice president and owns 10 percent of the
stock. A. Meyer's sister owns 10 percent of the stock and
A. Meyer's father owns the remaining 70 percent of the
stock. A. Meyer is authorized to and does hire and fire
employees, assigns work to employees, and directs the
work of employees at various jobsites. A. Meyer is
authorized to and does direct employees to correct
mistakes in their work as observed by him and in the
manner in which they are performing their work. A. Meyer
is authorized to and does adjust any grievances or
complaints which employees may have and A. Meyer has
participated in collective bargaining with Local 718 in
speaking for the Company with regard to the ratification of
the contracts negotiated by the negotiating committee of
GMA.
The Company employs approximately six members of
Local 718. A. Meyer has been a member of Local 718 since
1950 and has continued to maintain his membership in the
Union, as have the other individuals involved in this
matter, in order to qualify for pension credits and/or other
benefits and in order to perform bargaining unit work.
Prior to the work stoppage of July 1973, A. Meyer spent
approximately 5 to 10 percent of his time in the shop area
cutting glass and working with the tools of the trade in
servicing retail over-the-counter customers. The rest of A.
Meyer's time is spent in the office handling various paper
work, doing job estimating, going to jobsites and measur-
ing work, and checking on the progress of jobs, answering
telephones, talking to customers, and directing the work of
the employees as described above.
During the work stoppage of July 1973, A. Meyer
continued to report to work pursuant to an informal
decision of the corporate board of directors and continued
to do sales work and take care of any retail over-the-
counter customers who came into the shop. A. Meyer
521
answered telephones, cleaned up the shop, and arranged
materials that were stored in the- shop. During the work
stoppage, A. Meyer functioned in the same capacity as he
normally does (as described above) except for the fact that
there were no bargaining unit employees present in the
shop who required his supervision or direction.
By letter and charge sheet dated October 1, 1973, A.
Meyer was cited to appear before the Local 718 executive
board. The contents of that letter and charge sheet are
identical to those received by Bardi. On October 23, 1973,
A. Meyer appeared before the Local 718 executive board,
sitting as a trial board. He was tried and convicted and by
letter dated November 11, 1973, was advised of the
decision of the trial board. The contents of that letter are
identical to the second letter received by Bardi. The fine
has not been paid or appealed.
d. Michael R Meyer (herein referred to as M. Meyer) is
employed by Golden Gate Glass & Mirror Company, Inc.,
located in San Francisco, California. The parties incorpor-
ated by reference thereto the description of the business as
set forth above under subparagraph c. M. Meyer is
authorized to and does hire and fire employees, ' assigns
work to employees, and directs the work of employees at
jobsites. M. Meyer is authorized to and has 'corrected
employees in the manner in which they are performing
their jobs and has adjusted complaints or grievances
brought to his attention by bargaining unit employees. M.
Meyer performs selling work, makes job estimates, quotes
prices, contacts and deals with customers , answers tele-
phones, handles customer complaints. M. Meyer spends a
minor part of his working time performing bargaining unit
work involving the cutting of glass in the shop for retail
over-the-counter customers. M. Meyer- participates in
collective bargaining in the capacity of voting on behalf of
the Company for approval or disapproval of contracts
negotiated between GMA and Local 718.
During the work stoppage M. Meyer continued to report
to work and his duties during that period were basically the
same as described above. He also helped clean up the shop
and arrange supplies during the work stoppage.
By letter and charge sheet dated October 1, 1973, M.
Meyer, was cited to appear before the Local 718 executive
board. The contents of that letter and charge sheet are
identical to those received by Bardi. On October 23, 1973,
M. Meyer appeared before the executive'board sitting as a
trial board. M. Meyer was tried and convicted, and, by
letter dated November 12, 1973 (identical in contents to
the second letter received by Bardi), was advised as to the
decision of the trial board. M. Meyer has not paid the fine
nor did he appeal the decision.
e. Roy E. Statham, Jr., is the sole owner of Statham
Glass and Aluminum Products, a sole proprietorship
located, in Daly City, California. The Company employs
four journeyman glaziers and one apprentice glazier.
Statham is currently the president of GMA and has been a
member of Local 718 for the past 7 years. Statham handles
sales work, job estimates, measuring of jobs, customer
complaints', paper work, and coordination of the work
efforts of the bargaining unit employees. Statham hires and
fires employees, assigns them work, and directs them in
their work' on a daily basis. Statham handles and adjusts
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any grievances or complaints which the employees may
have. On behalf of the Company, Statham votes with
respect to ratification of collective-bargaining agreements
negotiated on the Company's behalf by GMA. Statham
performs bargaining unit work in the Company's shop for
approximately 2 percent of his,total working time including
cutting of glass for retail customers and fabricating glass
and aluminum products.
During the work stoppage described above, Statham
continued to report to work as usual. No work was
performed by the Company outside of its shop nor were
any construction sites manned by anyone from the
Company. Statham continued to work with the Company's
customers with particular regard to providing explanations
as to why work in progress at that time could not be
manned . Statham did basically the same work as he
normally did before the work stoppage. Statham's perfor-
mance of bargaining unit work during the work stoppage
was approximately 20 to 25 percent of his time, and
involved cutting of glass and drilling of aluminum in
various fabrication work.
By letter and charge sheet dated October 1, 1973,
Statham was cited to appear before the executive board of
Local 718 for an alleged violation of union bylaws. The
contents of that letter and charge sheet are identical to
those received by Bardi. On October 23, 1973, Statham
appeared before the executive board sitting as a trial
board. Statham was tried and convicted and by letter dated
November 12, 1973 _(the contents of which are identical to
the second letter received by Bardi), was advised as to the
outcome of the trial board proceedings. Statham has not
paid the fine nor has he appealed.
f. Everett L. Pezoldt is employed by Glass & Sash, Inc.,
'a California corporation, located in San Rafael, California.
Pezoldt is the president 'of that corporation, his wife is the
secretary-treasurer, and, in July 1973, Oscar Deen was vice
president . Each of the officers owned one-third of the
stock . Since the work stoppage ended Larry Monestier has
become the vice president of the corporation and Mrs.
Pezoldt and Pezoldt own 65 percent of the stock jointly.
Pezoldt is currently and has been a member of Local 718
for the past 20 years.,The Company employs approximate-
ly eight members of Local 718. Pezoldt is responsible for
hiring and firing all employees employed by the Company,
for adjusting the grievances which arise among, the
company employees, and for stating the Company's
position with respect to ratification of any contracts
negotiated on its behalf by the GMA negotiating commit-
tee. His other responsibilities include sales, reading, and
interpretation of blueprints, dealing with architects' offices,
and dealing with the Company's customers. Less than 1
percent of Pezoldt's time is spent performing bargaining
unit work, which consists of cutting an occasional piece of
glass in the ;shop for a retail customer when a glazier is not
available.
During the work, stoppage described above, Pezoldt
reported to work each day in an attempt to keep the
business going, to prevent customers from going elsewhere,
and to maintaining a few potential retail sales. Pezoldt
waited on customers and handled a few emergencies which
arose during the strike and continued to do his normal
paper and bookkeeping work as during nonwork stoppage
situations. Approximately 70 percent of Pezoldt's time was
spent performing bargaining unit work during the work
stoppage and consisted only of shop work (glass cutting)
for retail customers. The remaining working employees
repaired the company truck engines and cleaned the office
during that period.
By letter and charge sheet dated October 1, 1973,, Pezoldt
was cited to appear before the Local 718 executive board
to answer charges levied against him, The contents of that
letter are identical to that received by Bardi. Pezoldt
appeared before the executive board, sitting as a trial
board, on October 23, 1973. Pezoldt was tried and
convicted of the charges against him and was advised
thereof by letter dated November 12, 1973, the contents of
which are identical to the second letter received by Bardi.
Pezoldt has not paid the fine and has not appealed.
g. Frank Jarboe is the sole owner of E. Korbus & Son
Glass Company located in San Francisco, California. The
Company employs two bargaining unit employees. Jarboe
is responsible for and does hire and fire employees and
direct the employees in their work. He adjusts any
grievances which may arise among the employees or
complaints that may be filed by customers. Jarboe does
estimating work and handles office paper work and billing.
Jarboe has been a member of Local 718 for 20 years.
Jarboe spends approximately 15 percent of,his working
time in the shop performing bargaining unit work-
cutting of glass for retail customers-at those times when a
unit employee is not available to, do same.
During the work stoppage described above, Jarboe
continued to perform work in the office including handling
of bills, banking, and talking to customers. The time
Jarboe spent during the work stoppage performing bar-
gaining unit work such as cutting glass for retail customers
was less than the 15 percent of his working time he
normally spent before and after the work stoppage.
On October 1, 1972, by letter and charge sheet, the
contents of which are identical to those received by Bardi,
Jarboe was cited to appear before the Local 718 executive
board to answer charges levied against him. On October
23, 1973, Jarboe appeared before the executive board
sitting as a trial board and was tried and convicted of the
charges levied against him. By letter dated on or, about
November 1973 (the contents of which are identical to the
second letter received by Bardi), Jarboe was advised by the
trial board of the results of his proceeding. Jarboe has not
paid the fine, nor has he appealed.
h. Keith Claussen is employed by Western Plate and
Window Glass Company, a California corporation, located
in San Francisco, California. Claussen is the vice president
of the Company and owns 25 percent of the stock. The
president-of the Company is Willard O. Caro and together
with the secretary, Lynette Caro, own the remaining 75
percent of the stock. Alexis O. Caro is another vice
president. Keith Claussen has been a member of Local 718
for at least the past 20 to 30 years.
Claussen hires and fires employees, directs the work of
employees , grants time off, adjusts grievances which arise
among the employees, and performs estimating work.
Claussen spends less than 1 percent of his time in the shop
GLAZIERS & GLASSWORKERS LOCAL 1621 523
performing bargaining unit work. During the work
stoppage Claussen continued to report to work as usual
and to perform the same duties as described above, except
for, supervision of employees. He also contacted customers
to explain why work was not proceeding and he performed
various office functions.
By letter and charge sheet dated October 1, 1973, the
contents of which are identical to those received by Bardi,
Claussen was cited to appear before the executive board of
Local 718. On October 23, 1973, Claussen appeared before
the Local 718 executive board sitting as a trial board to
answer said charges. Claussen was tried and convicted and
was advised as to the outcome of the trial board decision
by letter dated December 20, 1973, the contents of which
are identical to the, second letter received by Bardi.
Claussen has not paid the fine and has not appealed.
i. Willard O. Caro is the president of Western Plate and
Window Glass Company.. The parties stipulated that the
work performed by Caro (before and during the work
stoppage) is substantially identical to that performed by
Claussen as described above in paragraph h and that Caro
was cited, tried, and fined in the same manner in which
Claussen was. Caro's notification of fine was by letter
dated December 1, 1973. The. fine has not been paid or
appealed.
j. Douglas R. Lystra is employed by House "0" Glass
Company, Inc., located in Sebastopol, California. The
Company is a California corporation and Lystra 'is the
treasurer of the corporation and owns 25 percent of the
stock. Lystra's father is the president of the corporation, his
mother is the secretary, and his brother is vice president.
They each own 25 percent of the stock. Lystra is a member
of Local 718' and has been a member since 1967. The
Company employs approximately eight members of Local
718. 'Lystra's duties include general sales and estimating
work, contacting customers, and resolving any customer
complaints which may arise. Approximately 10 percent of
his time is spent performing bargaining unit work mainly
involving cutting of glass in the shop for retail customers.
Lystra resolves or assists in resolving customer complaints
in the field when a customer claims that a job is not done
right by the bargaining unit employees. Lystra directs the
work of the bargaining unit employees both in the shop
and on the jobsite. Lystra assigns employees to the various
job responsibilities each day, authorizes overtime work if
necessary, and advises employees if he feels the job is not
done correctly. Lystra has hired employees on behalf of the
Company and'is authorized to and does resolve or assist in
resolving any employee complaints or grievances.
During the work stoppage described above, Lystra
continued to report to work as usual in order to keep his
estimating work up to date: He spoke to customers whose
work remained to be completed at that time and explained
to them why 'the work was not being performed. He
cleaned up the shop, answered telephones, took care of
normal paper work, and spent approximately the same
amount of time performing bargaining unit work as during
nonwork stoppage situations, involving the cutting of glass
in the shop for retail customers.
By letter and charge sheet dated October 1, 1973, the
contents of which are identical with those received by
Bardi, Lystra was cited to appear before the Local 718
executive board to answer charges for alleged violations of
bylaws. On October 23, 1973, Lystra appeared as directed
before the executive board sitting as a trial board. Lystra
was tried and convicted, and by letter dated November 11,
.1973, the contents of which are identical to the second
letter received by Bardi, Lystra was advised as to the
decision of the trial board. He has not paid the fine and has
not appealed.
k. Jean Hinterman is the president of Star Glass Co., a
California corporation. Hinterman owns 100 percent of the
stock and employs eight members of Local 718. Hinterman
has been a member of Local 718 for at least the past 30
years. Hinterman is responsible for hiring and firing
employees, adjusting grievances, estimating work, billing
work, and contacting - customers. Hinter man spends ap-
proximately 10 to 15 percent of his working time in the
shop performing bargaining unit work.
During 1973, Hinterman was one of the members of the
GMA negotiating committee and prior to that time had
been a member of the negotiating committee for 2 years.
Hinterman is also a member of the joint conference
committee.
During the work stoppage Hinterman was involved in
contract negotiations with Local 718, Local 1621, and
Local 169 and did no bargaining unit work. During that
period, however, Hinterman did report to the shop on
occasions to handle administrative matters.
By letter and charge sheet dated October 1, 1973, the
contents of which were identical with those received by
Bardi, Hmterman was cited to appear before the Local 718
executive board to answer charges for alleged violations 'of
bylaws. On October 23, 1973, Hinterman appeared as
directed before the executive board sitting as a trial board.
Hinterman was tried and convicted, and, by letter dated
November 9, 1973, the contents of which are identical to
the second letter received by Bardi,-Hinterman was advised
as, the decision of the trial board. Hinterman did not pay
the fine not did he appeal.
1-m. A. Leandro and E. Bertheaud each own 50 percent
of the stock of B & L Glass Company, a California
corporation. Leandro is the vice president and secretary
and Bertheaud is the president and treasurer. The
Company employs one apprentice glazier who is a member
of Local 718. Both Leandro and Bertheaud are members of
Local 718, Leandro since 1955 and Bertheaud since 1940.
Both Leandro and Bertheaud hire employees and - are
authorized to and do adjust grievances. Prior to the work
stoppage they spent 50 percent of their' time performing
bargaining unit work, including work in the shop and work
on the jobsite.
During the work stoppage described above, Leandro and
Bertheaud spent 'approximately 30 percent of their time
performing bargaining unit work in the shop involving the
cutting of glass. No onsite work was performed. The
remainder of their time was spent in performing manageri-
al duties.
By letter and charge sheet dated October 1, 1973,
Leandro and Bertheaud each were cited to appear before
the Local 718 executive board to answer, charges for
alleged violations of bylaws. The contents of those letters
'-524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were identical with those received by BardfOn October
23, 1973 , Leandro and Bertheaud appeared as directed
before the executive board sitting as a trial board. They
were tried and convicted , and by letters dated November
12, 1973 , Bertheaud and Leandro were advised as to the
decision of the , trial board proceedings . The contents of
those letters were identical to the second letter received by
Bardi . The fines have not been paid and there has been no
appeal.
n. Lawrence Hall is employed by Cobbledick-Kibbe
Glass Company , a California corporation . Hall is not an
officer, shareholder, or director of that corporation. Hall is
currently on withdrawal from Local 718 but remains
subject to the rules of the Union . Hall's duties include
hiring and firing of bargaining unit employees , estimating
work, coordinating and scheduling work, and resolving
grievances that arise among the bargaining unit employees.
Hall is a salaried employee and is employed in the capacity
of job superintendent . Ordinarily Hall does not perform
any work covered by the collective -bargaining agreement
referred to above.
During the work stoppage , Hall was directed by the
Company to continue to work as usual and did so each
working day during the work stoppage except that he spent
approximately 40 percent of his time performing bargain-
ing unit work.
By letter dated July 16, 1973, and accompanying charge
sheet dated July 7, 1973, Hall was cited to appear before
the executive board of Local 718 to answer charges as set
forth . The charges were that he crossed "the picket line"
and was observed driving a company truck . Hall did not
appear as directed by the Local 718 executive board. There
was no trial and no fine imposed.
Concluding Findings
It appears from the foregoing that all of the above-
named individuals, with the exception of Hall (par. n, part
4), were cited, tried, and fined for crossing and working
behind an authorized picket line and that Hall was cited on
the charge of crossing "the picket line" and driving his
Employer's truck, but no further action was taken on the
charge against him. It is also clear that all of the
individuals named in Parts 3 and 4 were supervisors within
the meaning of the Act, and the Companies with which
they were associated were Employer-Members of GMA. It
does not appear that the aforesaid actions of the Respon-
dents against, said individuals were predicated on their
having done "bargaining unit work." 6
A recent decision of the Board, Bricklayers, Masons and
Plasterers' Union, Local No. 1 (Barr Floors, Inc.), 209
NLRB 820 (1974), appears to govern the disposition of
most of the issues in this proceeding.? Said decision
discloses that it is well-established Board law that fining
supervisors for crossing a picket line is a violation of
6 As noted herembelow, even if the actions were so predicated, the
conclusions herein would not be altered.
7 None of the parties mentioned this decision in their briefs, ostensibly
because they had not become aware of its issuance prior to the -time their
briefs were filed.
8 See for example , Local Union No. 2150, International Brotherhood of
Section 8(b)(l)(B) of the Act. Further, in said decision (fn.
1) the Board reaffirmed its previous holding 8 that a union's
fining of supervisors for doing "bargaining unit work" is
violative of the Act, contrary to the holding of the Court of
Appeals for the District of Columbia. In said decision,
however, the Board affirmed the conclusion of the
'Administrative Law Judge that fining a supervisor who is
the 100 percent owner of an employer is 'not violative of
Section 8(b)(1)(B) of the Act. The Board apparently
predicated this conclusion on the rationale of the Adminis-
trative Law Judge which is as follows:
Where an individual is the sole owner of a
corporation, the Board has consistently ignored the
corporate fiction and has considered one as the alter
ego of the other. Diaper Jean Manufacturing Company,
109 NLRB 1045 (1954); Industrial Fabricating Inc., 119
NLRB 162, 169 (1957), enfd. 272 F.2d 184 (C.A. 6,
1959); Ogle Protection Service, Inc. and James L. Ogle,
149 NLRB 545, 546 (1964), fn. 1, modified in other
respects 375 F.2d 497 (C.A. 6, 1967).
On principle, there is no more reason for permitting
an individual to avoid his obligation to the union of
which he is a member by organizing a corporation
which he completely owns, than there is to permit a
person to avoid the effect of his unfair labor practices
by organizing a corporation to carry on his business. As
Gelmini was the sole owner of, Barr Floors, the
Respondent's "conduct directed to the employer
himself rather than to his supervisor[s] would not tend
to subvert any loyalty between the Company and his
supervisors" (Local 146, Sheet Metal Workers Interna-
tional Association, AFL-CIO, et al. (Robert Dale Jones),
203 NLRB No. 168). Accordingly, Lfind and conclude
that the Respondent did not violate Section 8(b)(1)(B)
of the Act by fining Gelmini, and the complaint should
be dismissed in this regard.9
It is noted that four individuals named in part 4 are sole
owners of their businesses, Joseph P. Bardi (par. a), Roy E.
Statham, Jr. (par. e), Frank Jarboe (par. g), and Jean
Hinterman (par. k). The other supervisors involved herein
who have an interest in their respective companies do so in
percentages varying from 2 percent to 90 percent. It
appears that the Board's decision that a sole owner of a
company can be fined by the union of which he is a
member would not apply to a partial owner, no matter
what his percentage of ownership may be, since the
rationale is that a sole owner is the alter ego of the
employer and, therefore, his loyalty to his company cannot
be subverted since he can be equated with the company
itself. Thus, it appears that the fining of a supervisor who
owns a percentage of his employer less than 100 percent
would not be exempt from the prohibition of Section
Electrical Workers, AFL-CIO (Wisconsin Electric Power Company), 192
NLRB 77 (1971).
9 It is noted that the report of this Decision in 85 LRRM 1553, 1554,
indicates that no exceptions were filed, to this conclusion, but there is
nothmg in the report of the Decision issued by the Board which would
indicate that it did not consider it. Whichever may be the case, the
conclusions herembelow would not be affected.
GLAZIERS & GLASSWORKERS LOCAL 1621
8(b)(1) (B) of the Act, since such fine would tend to subvert
his loyalty to the interests of the other owner or owners.10
Consequently, it, is concluded from the above-cited
decision of the Board, that the citing, trying, and fimng of
the individuals named hereinabove, other than the four
sole owners named hereinabove, were acts violative of
Section 8(b)(1)(B) of the Act.
The said decision of the Board, however, does not
dispose of the issue with respect to the four above-
mentioned sole owners in view,of the finding that their
companies are employer-members of GMA. The cases
herein are not limited to a single employer and a sole
owner thereof, but rather involve an association and 65
employer-members thereof including the Companies of the
above-mentioned sole owners, which represents a factor
not present in the above-cited Board decision. Therefore,
there remains the issue of whether or not this factor is
sufficient to distinguish the cases herein (particularly Case
20-CB-3065) from the cited decision in which it was held
that a sole owner can be fined with impunity. Research
failed to reveal any decision of the Board in which this
issue was considered.
Section 8(b)(1)(B) of the Act provides as follows:
It shall be an unfair labor practice for a labor
organization or its agents - (1) to restrain or coerce
.:. (B) an employer in the selection of his representa-
tives for the purposes of collective bargaining or the
adjustment of grievances.
It is well established that an association of employers is
an employer within the meaning of Section 2(2) of the Act
even though it is only acting in its representative capacity.
It is apparent that from the contract between GMA and
the Respondents that GMA is considered an employer for
the purposes of bargaining vis a vis the Respondents. The
Board has ordered an association of employers to bargain
with a union. Dover Tavern Owners'Association, 169 NLRB
28, 30 (1968). In Pacific American Shipowners Association,
98 NLRB 582, 600, the Board stated:
... Since the Respondent PASA [Pacific American
Shipowners Association], whom we have found to be
an employer within the meaning of the Act, shares
responsibility for that unlawful arrangement, by virtue
of its execution of the December 2 contract on behalf
of the Respondents Alaska and American Mail, and
other member companies, it must also be held to share
the responsibility for the results reasonably to be
anticipated. [Fn. omitted.] We therefore find that, in
the cases adverted to above, the Respondent PASA
discriminated against employees in violation of Section
8(a)(3) and 8(a)(l) of the Act.
Also, in Restaurant Association of the State of Washington,
Inc., 190 NLRB 133, 140 (1971), an association of
employers was made jointly and severally liable with its
employer-members for backpay arising out of its unfair
labor practices. Since it appears that an association of
50 To arbitrarily select some percentage less than 100 percent would be
difficult and necessarily cause inequities.
11 The basis for this conclusion would, of course, also apply to the above
525
employers is an "employer" subject to the prohibitions of
the Act in its representative capacity, it logically follows
that it should be afforded the protections of the Act as an
"employer" when acting in its representative capacity.
Consequently, it is concluded that it is appropriate to find
that GMA is an employer within the meaning of Section
8(b)(1)(B) of the Act.
The articles of incorporation and bylaws of GMA
provide, inter alia:
Each year the Board of Directors shall appoint a
negotiating committee composed of members of the
Association (or partners, directors, officers or employ-
ees of members)... .
The primary duty of the negotiating committee is to
negotiate on behalf of the members of the Association a
master collective bargaining agreement with labor
unions representing glaziers and glassworkers em-
ployed by members of the Association. It shall
represent the Association and the membership of the
Association in all employer-employee or employer-
labor union disputes involving glaziers and glasswork-
ers and in all other matters relating to collective .
bargaining or labor relations involving glaziers and
glassworkers... .
The collective-bargaining agreement between GMA and'
the Respondents provides for a "joint conference commit-
tee" for the settlement of grievances arising under' the
contract. Representatives on the committee are appointed
by GMA and the Respondents and handle matters,of
dispute which "cannot be settled by the duly authorized
representatives of the Union and the Individual Employer
involved." Thus, it appears that, if the Respondents are
permitted to fine "sole owners" with impunity, such power
would restrain and coerce GMA and its employer-mem-
bers in the selection of representatives for the purposes of
collective bargaining or the adjustment of grievances. Any
member of the "negotiating committee" or the "joint
conference committee" who is a sole owner of his business
could presumably have his loyalty to GMA and to the
employer-members of GMA "subverted" by fear of a fine
imposed by either of the Respondents. Consequently, if the
Respondents had the power to fine sole-owner members of
GMA, it would be "restrained and coerced" with respect to
selecting any- one of such members to serve on either of the
aforesaid committees . Furthermore, each of the sole owners
adjusts grievances at the first step of the procedure under
the contract between GMA and Respondents.
Therefore, it is concluded that, in the circumstances of
Case 20-CB-3065, the citing, trying, and fining of the
above-mentioned four sole owners of their businesses was
violative of Section 8(b)(1)(B) of the Act."
There remains the issue of whether or not the citation of
Hall (par. n, Part 4) by Local 718 for crossing "the picket
line" and driving a company truck was violative of Section
conclusion that Respondents violated Sec 8(b)(1)(B) of the Act by citing,
trying, and fining the other individuals named hereinabove, all ofwhom, it
appears from the record, are employed by employer-members of GMA.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b)(1)(B) of the Act. It is disclosed by the stipulation of
the parties that he did not appear as directed by the
citation, that there was no trial , and no fine was imposed.
However , there is no indication that the citation was
withdrawn or that Local 718 notified Hall that the charges
against him were dropped. Consequently, Hall could
reasonably assume that some time in the future he might
be called on to respond to the pending citation . Thus, it is
concluded that the outstanding citation, absent a notifica-
tion to Hall that the charges against him have been
dropped; constitutes a' threat that he 'might be tried and
fined for the acts with which he has been charged. This
threat to take action violative of Section 8(b)(1)(B) of the
Act is also deemed to be violative of Section 8(b)(1)(B) of
the Act. San Francisco-Oakland Mailers' Union No. 18,
International Typographical Union (Northwest Publication,
Inc.), 172 NLRB 2173 (1968).
As an affirmative defense, Local 1621 alleged that the
four individuals named ,in Part 3 failed to, exhaust the
"administrative or private remedy available to them."
During the course of the hearing the issue of the defense of
the failure to exhaust the intraunion administrative remedy
was mentioned . However, no mention was made in
Respondents ' brief of this defense. It is well established
that the right to authorize the Board's processes cannot be
impeded by a union's internal rules or regulations which
require that a member first exhaust all available union
appeals. See, for example , International Union of Operating
Engineers, Local No. 825 (Building Contractors Association
of N. J.), 173 NLRB 955, 959 (1968), and N.L R.B . v. Radio
Officers' Union of the Commercial Telegraphers Union, AFL
(A. H. Bull Steamship Company), 196 F.2d 960, 965(C.A. 2,
1952).
IV. THE EFFECT OF THE,UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in section III,
above , occurring in connection with the operations ; of the.
Employers " described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce -.among the several States, and,tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof. -
V. THE REMEDY
It having been found that the Respondents have engaged
in unfair labor Practices within the meaning of Section
8(b)(1)(B) of the Act, it will be recommended that they
cease and desist therefrom and that they take certain
affirmative action designed to effectuate the policies of the
Act.
It having been found that Respondent Local 1621
illegally cited, tried, and fined Roger F. Bibo, Joe Baxter,
Lawrence W. Haas, and Randall A. Wolf, it will be
recommended that Respondent , be ordered to rescind its
action in citing, trying, and fining them and reimburse
them for any fines which they may have paid to' the
Respondent with interest at the rate of 6 percent per
annum.
It having been found that Respondent Local 718 illegally
cited, tried, and fined Joseph P. Bardi , Peter C. Bello,
Alexander R. Meyer, Jr., Michael R. Meyer, Roy E.
Statham, Jr., Everett L. Pezoldt, Frank Jarboe, Keith
Claussen, Willard O. Caro, Douglas R. Lystra, Jean
Hinterman, A. Leandro, and E . Bertheaud , it will be
recommended that Respondent be ordered to rescind its
action in citing , trying, and fining them and reimburse
them for any fine which they may have paid to Respondent
with interest at 6 percent per annum.
It having been found that Respondent Local 718 illegally
cited Lawrence Hall, it will be recommended that the
Respondent be ordered to rescind its action in citing him.
It will also be recommended that Respondents expunge
from their records all references to their unlawful actions.
CONCLUSIONS OF LAW
1. Glass Management Association is an employer
within the meaning of Section 2 (2),and Section 8(b)(1)(B)
of the Act. ,
2. Respondent Local 1621 violated Section 8(b)(1)(B)
of the Act by citing, trying, and fining Roger F: Bibo, Joe
Baxter, Lawrence W. Haas, and Randall A. Wolf.
3." Respondent Local 718 violated Section 8(b)(1)(B) of
the Act by citing, trying, and fining Joseph P. Bardi, Peter
C. Bello, Alexander R. Meyer, Jr., Michael R. Meyer, Roy
E. Statham, Jr., Everett L. Pezoldt, Frank Jarboe, Keith
Claussen, Willard O. Caro, Doublas R. Lystra, Jean
Hinterman , A. Leandro, and E . Bertheaud.
4. Respondent Local 718 violated Section 8(b)(1)(B) of
the Act by citing Lawrence Hall.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]