Glaziers Local 1162, Painters

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 393 (N.L.R.B. 1969)

GLAZIERS LOCAL 1162, PAINTERS
Glaziers Local Union No. 1162 , affiliated with the
Brotherhood of Painters, Decorators,
Paperhangers, Glaziers and Glassworkers of
America , AFL-CIO and Tusco Glass, Inc. and
Stark Glass, Inc. Case 8 -CB-1329
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On May 20, 1969, Trial Examiner David S.
Davidson issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case and hereby adopts the
findings, conclusions and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent , Glaziers Local
Union No . 1162, affiliated with the Brotherhood of
Painters , Decorators , Paperhangers , Glaziers and
Glassworkers of America , AFL-CIO , Akron, Ohio,
its officers , agents, and representatives , shall take
the action set forth in the Trial Examiner's
Recommended Order.
'We note that the Trial Examiner's Decision in National Grinding Wheel
Company, Inc. Case 3 -CB-1068 referred to by the Trial Examiner in the
instant case has been adopted by the Board . See 176 NLRB No. 89.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner : Pursuant to a
charge filed on November 13, 1968, by Tusco Glass, Inc.
and Stark Glass, Inc., against Glaziers Local Union No.
1162, affiliated with the Brotherhood of Painters,
Decorators, Paperhangers, Glaziers and Glassworkers of
393
America, AFL-CIO, hereinafter referred to as the Union,
a complaint issued on January 31, 1969. The complaint
alleges that the Union violated Section 8(b)(1)(A) by
threatening to fine and fining two employees of Tusco and
Stark for refusing to follow an instruction of the Union's
business representative to leave their jobs at a time when
both employers were parties to contracts with the Union
containing a no-strike clause. By its answer the Union
denies the commission of any unfair labor practices.
A hearing was held before me on March 12, 1969, at
Akron, Ohio. At the close of the hearing the parties were
given leave to file briefs which have been received from
the General Counsel and Respondent Union.
Upon the entire record in the case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Tusco Glass, Inc., and Stark Glass, Inc., referred to
herein as Tusco and Stark, are Ohio corporations,
engaged at their respective locations in Dover and
Massillon , Ohio , in glazing contracting work and in the
fabrication of glass and metal products. Each annually
receives at its place of business materials valued in excess
of $50,000 directly from sources located outside the State
of Ohio. I find that Tusco and Stark are employers
engaged in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE FACTS
A. The Contracts Between the Parties
On May 29, 1967, Respondent Union entered into an
agreement with the Glazing Contractors Association of
Akron and Canton to continue in effect through April 30,
1970.' At the time the contract was executed, existing
Akron area wage rates were higher than Canton area
rates. In view of this differential a rider was attached to
the agreement establishing a separate scale of wage rates
for journeymen glaziers in the Canton area and providing
for a gradual increase in Canton rates over the term of
the agreement in order to bring them up to the level of
Akron rates by the end of its term. The rider provided
that it was to apply to work performed by the Canton
contractors "within the jurisdiction of same as outlined by
Glaziers, Local Union 1162." In November 1967, Stark
and Tusco, which were not then members of the
Association, entered into separate contracts with the
Union identical to the Association agreement and rider.'
The basic agreement between the Union and the
charging parties contained the following provisions:
ARTICLE X
Members of the Union will not work for any Employer
that has not signed this Agreement or one similar as
'Separate agreements were executed covering outside glaziers and inside
glass workers, respectively. The agreement covering the outside glaziers is
the only one here involved.
'Stark later became a member of the Association , but Tusco did not.
177 NLRB No. 37
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approved by the International Brotherhood of Painters,
Decorators and Paperhangers of America , AFL-CIO,
or any Employer who does not live up to the provisions
contained herein.
ARTICLE XII
In the event , during the term of this Agreement, there
shall be any controversy or dispute , as to the meaning
or application of the provisions of this Agreement, there
shall be no suspension of work but all differences shall
be adjusted by a Committee consisting of one (1)
representative of the Company and one (1)
representative of the Union , who shall , if they are
unable to reach conclusion themselves , select an
impartial third party . The decision of the majority of
this Arbitration Committee shall be binding upon both
parties . The cost of the Arbitration Committee , if any,
shall be borne equally by both parties.
The foregoing shall not apply in the event of default of
fringe benefit payments (as specifically outlined in
Article IV, Section c).
B. The Question Arising Over Wooster Wage Rates
In the fall of 1967, Stark performed glazing work on
three construction jobs in the Wooster , Ohio, area. Two
of these jobs were at Wooster College and the third was at
a school in or near Wooster . In March 1968, Union
Business Representative George Sokolovits informed
Lombardi , general manager of Stark , that four of Stark's
employees had complained to him that they had been paid
the rates applicable to Canton area work on jobs in
Wooster, Ohio, on which they believed the higher Akron
rates were applicable . At that time Lombardi questioned
Sokolovits as to the jurisdictional line which separated the
Akron rate area from the Canton rate area, and
Lombardi asked Sokolovits for a letter defining the line.
Sokolovits told Lombardi that he believed that Akron
rates applied to all of Wayne County , in which Wooster is
located.
Between March and September, Sokolovits raised the
matter with Lombardi on several other occasions.
According to Sokolovits soon after his first
conversation with Lombardi about the claim , he learned
that the dividing line between the two rate areas was U.S.
Route 30, with all glazing work north of route 30 falling
in the Akron area and work south of route 30 falling in
the Canton area . He testified that he informed Lombardi
of the correct dividing line shortly thereafter. However,
Sokolovits conceded that he continued to refuse to comply
with Lombardi' s requests for a written statement
describing the dividing line.
Thereafter , according to Sokolovits, he ascertained that
two of the three jobs in the Wooster area on which
Stark ' s employees had worked were north of route 30, and
he pressed for payment of the difference between Akron
rates and Canton rates to four employees for work they
had performed on those two jobs.
Lombardi conceded that Sokolovits told him that route
30 was the dividing line, but testified that Sokolovits later
told him he was not certain what the line was . Lombardi
also testified that Sokolovits pressed him to pay the
Akron rate on all three jobs despite the fact that two of
the jobs fell in the Canton area as defined by Sokolovits.
According to Lombardi he remained uncertain as to which
rate applied to the work in question because of the lack of
a written jurisdictional statement from the Union.
However , Lombardi also testified that by September he
told Sokolovits that there had been a clerical error and
that he would pay Akron rates for the work in question.
He conceded that he had no dispute or controversy with
Sokolovits at that time , and he testified that all that
remained was for him to check the pay records for the
period in question , compute the amounts due, and make
the payments. He also testified that he started to check
the records in July and that he told Sokolovits that when
the check was completed , he would make the payments.
Lombardi ' s testimony that there remained confusion
over the dividing line between the two jurisdictions and
the jobs to which the Akron rate applied is not consistent
with his testimony as to the posture of the matter by the
beginning of September . Accordingly , I have credited
Sokolovits as to what he had told Lombardi with respect
to the dividing line and the Union ' s claim , and I find that
by the beginning of September, as Lombardi conceded, he
had agreed to pay the Union ' s claim after the records
were checked and the amounts computed.'
C. The Work Stoppage
On September 8, Lombardi telephoned Sokolovits and
told him that because of a material shortage, he lacked
work for four outside glaziers . Sokolovits said that there
was a need for outside glaziers in the Akron area and that
he would find temporary employment for them. On
September 9 the four employees who were entitled to
backpay for the Wooster work started to work
temporarily for other employers on referral by Sokolovits.
A fifth outside glazier employed by Stark , Robert Wuske,
was temporarily assigned to work for Tusco, of which
Lombardi was vice president and former manager.
Shortly before September 16, after learning that Stark
could again utilize the four glaziers who had taken other
temporary work , Lombardi asked Sokolovits to return the
men to their jobs with Stark on Monday , September 16.
Lombardi said he would contact their employers and see if
he could get them back on short notice.
On Friday, September 13, Lombardi contacted each of
the four employees by telephone and told them he had
work for them the following Monday. Each was
noncommittal and indicated concern over giving notice to
their interim employers and being contacted by
Sokolovits.
The four employees did not return to work on
September 16, and Lombardi again contacted Sokolovits,
reminding him of the terms they had agreed to in
temporarily reassigning the men .' Lombardi asked why
the men had not returned , and Sokolovits replied that
they would not be returned until they were paid their
backpay.' Lombardi expressed the view that the contract
provided procedures to follow other than a work stoppage
or walkout . Sokolovits did not respond.
'I also reject the General Counsel ' s contention that Lombardi's
concession that he had no dispute or controversy with Sokolovits should be
construed as a limited concession that he did not resist paying what he
properly owed but remained in doubt as to the extent of his liability
because of uncertainty over the dividing line.
'According to Lombardi , Sokolovits had agreed to get the men back on
I or 2 days' notice Lombardi testified that when he reminded Sokolovits
of this, Sokolovits told Lombardi that Sokolovits ' word meant nothing and
he would not return the men.
'Lombardi placed this conversation on September 23, although it
GLAZIERS LOCAL 1162, PAINTERS
The four employees did not return to work that week,
and they refused delivery of registered letters mailed them
by Stark. On September 27 and 28 Sokolovits requested
all outside glaziers employed by Stark and Tusco to stop
working for Stark and Tusco as of Monday, September
30, and to take jobs with other employers on that date. It
is conceded that this request was made in support of the
Union's request for payment of the Akron rate on the
Wooster work performed the previous year.
On September 27, Sokolovits went to the premises of
Tusco where Elmer Negley and Robert Doty were
working as outside glaziers for Tusco. Sokolovits sought
their support in the wage dispute at Massillon, with
evident reference to Stark , and asked them to leave their
jobs and take other jobs . Initially, both Negley and Doty
stated that they would not leave their jobs . Sokolovits said
he would get their support one way or another and that he
would have them before the union trial board . Doty then
decided to comply, but Negley refused and continued to
report for work thereafter.'
Also on September 27, Sokolovits visited Stark's
premises and told several employees , including Robert
Wuske,' that he would have to pull them off the job until
the wage dispute over the Wooster jobs was settled.'
Sokolovits told them he would call them at their homes
and tell them where to report for work the following
Monday. The next morning , Sokolovits telephoned Wuske
and told him to report to Kent, Ohio , to work on
Monday . Wuske replied that he had a job at Stark and
would not leave . Sokolovits replied that he would have to
take a different route and go before the Executive Board.
Wuske indicated that whatever happened would happen.
He continued to report for work at Stark . He was the
only outside glazier who did so until sometime in
October.9
In late September , Lombardi advised his labor relations
counsel, Edward Kaminski, that the glaziers employed by
Stark and Tusco were on strike, and Kaminski arranged
to meet with Sokolovits.
During an extended discussion , Kaminski repeated
Stark ' s request for a written statement of the boundary
line between the Akron and Canton jurisdiction. He urged
Sokolovits to put the men back to work and settle the
matter through the contractual grievance procedure.
Sokolovits took the position that the men wanted the
money paid before they would return to work.
Sokolovits and Kaminski reached a tentative agreement
pursuant to which the men would return to work and file
appears in context that it occurred on September 16. According to
Lombardi , Sokolovits also conditioned their return on Stark 's agreement
to provide for dues checkoff. Lombardi conceded that a dispute over the
application of the check -off provisions of the Association agreement to
Stark was settled by an agreement signed on September 20. Sokolovits
testified that in August , Lombardi had asked to arbitrate the checkoff
dispute , and that Stark signed the checkoff agreement in August, while
Tusco signed it in September . It is not necessary to resolve the conflicts in
testimony relating to the dues checkoff as there is no indication that it
remained an issue by September 27 when Sokolovits asked the employees
of Stark and Tusco to report to other employers.
'There was one inside glazier employed by Tusco who was not asked to
leave his job.
'Wuske had been an outside glazier for Stark for about I year. Before
that he had been shop superintendent for I I years.
'According to Wuske , two of the employees to whom Sokolovits spoke
were inside glaziers . A third and Wuske were outside glaziers.
'According to Wuske one of the inside glaziers employed by Stark left
his job and the others did not . There is no evidence that any additional
pressures were placed on the inside glaziers after Sokolovits' September 27
visit.
395
a grievance while Respondent would withdraw a prior
charge that had been filed. The following day Kaminski
called Sokolovits to tell him that the companies had
agreed to withdraw the charge, but Sokolovits stated that
he could not put the men back until they were paid.
Kaminski then advised his clients to compute the
backpay and make out the checks so that work could be
resumed . On October 7 or 8 Kaminski advised Sokolovits
that the checks were being made out. Sokolovits then
notified the glaziers to return to their jobs. On October
10, the outside glaziers at Stark returned to work and the
full complement returned at Tusco by October 23.
D. The Charges Against Negley and Wuske
In the latter part of October, Negley and Wuske were
sent copies of Union charges filed against them by
Sokolovits charging them with violations of enumerated
sections of the constitution of the Union's parent
Brotherhood and of the Union's bylaws." The explanation
set forth in the charges against Negley was:"
On September 27th, 1968, Brother Elmer Negley did
wilfully interfere with the orders of the Business
Representative of Glaziers & Glassworkers, Local 1162
to perform his duties to protect eight (8) brother
members of Glaziers & Glassworkers, Local 1162.
The charge gave notice of a hearing before a Trial
Board on November 16, 1968.
The Trial Board hearing was held as scheduled. Both
Negley and Wuske appeared, pleaded not guilty, and were
tried together, apparently with their consent. Their
testimony and the nonverbatim minutes of the hearing
prepared by the Trial Board secretary from a tape
recording of the trial, since erased, establish that the
violations charged against the two men were based on
their refusal to stop work for Tusco and Stark when
requested by Sokolovits.
At the conclusion of the trial, the Trial Board
determined that both men were guilty and imposed a fine
of $100 on each of them to be paid by November 30,
1968. Neither Negley nor Wuske has paid the fine.
E. Concluding Findings
The evidence establishes that on September 27
Respondent caused the employees of Stark and Tusco to
engage in a concerted work stoppage because of Stark's
failure to pay four employees the Akron rate for work
they had performed in Wooster. Although it appears that
the four employees with backpay claims were then
working for other employers as a result of Respondent's
work shortage earlier in September, there was more than
a simple refusal by the four employees to return to their
jobs with Stark until paid. Business Representative
Sokolovits asked other outside glaziers to take other
employment and brought charges against the two who
refused to do so. The occurrence of the work stoppage, its
"The charges against both were the same except that the charge against
Negley enumerated two sections that were not included in the charge
against Wuske . One of the additional violations charged against Negley
stemmed from a statement about the Union attnbuted to him by
Sokolovits at the time Sokolovits asked him to leave work The minutes of
the trial indicate the Negley was found not guilty with respect to the
portion of the charge against him based on the statement. Another
violation was apparently based upon Negley's notifying the companies of
the charges against him . Negley was found guilty of that charge.
"The explanation in the charge against Wuske was identical except as to
name and date.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause, and the Union's responsibility for it are all clear.
It is also clear from the trial minutes and the testimony
of Negley and Wuske that the charges against them which
resulted in their fines were based upon their refusal to
leave work, as asked by Sokolovits, to join in the work
stoppage of Tusco and Stark employees.
The General Counsel contends that the work stoppage
was in violation of article XII of the agreements between
Respondent and the companies and was therefore
unprotected. Accordingly, the General Counsel contends
that this case is distinguishable from N.L.R.B. v.
Allis-Chalmers, 388 U.S. 175, and that the fines imposed
by the Union on Negley and Wuske violated Section
8(b)(l)(A) of the Act.
Respondent contends on the other hand that the fines
were purely an internal union matter over which the
Board has no jurisdiction and that in any event Article X
of its agreements with the companies freed it to withhold
the services of its members from the companies so that
the Allis-Chalmers decision controls this case.12
1. The application of the no-strike clause
Articles X and XII of the agreement between the
Union and the companies are set forth above in their
entirety." The critical portion of article XII provides that
in the event of "any controversy or dispute, as to the
meaning or application of the provisions of this
Agreement, there shall be no suspension of work but all
differences shall be adjusted" by a committee of
representatives of the parties and an impartial third party,
if required. Article X on the other hand provides that
union members will not work for any employer that has
not signed the agreement , or a similar agreement
approved by the Brotherhood "or any Employer who does
not live up to the provisions contained herein."
The General Counsel contends that there was a dispute
between the parties within the meaning of article XII over
the payment for the Wooster jobs which required its
submission to the grievance procedure . Respondent
contends, however, that as Lombardi had conceded
liability but failed to make payment , there was no dispute
or controversy within the meaning of article XII and that
Stark and Tusco were employers who failed to live up to
the provisions of the agreement within the meaning of
article X for whom Union members will not work.
As I have found, before the work stoppage occurred
Lombardi had agreed to pay Akron rates for the Wooster
work in accord with the Union's claim, and all that
"Respondent contends further that no violation should be found because
Negley and Wuske failed to file appeals within the Union in accord with
the procedures established in the Brotherhood ' s constitution. Negley
conceded that he did not file an appeal but explained that he had requested
necessary appeal papers which had never been furnished him. Wuske was
not questioned about an appeal . It appears from Negley's testimony and
sec 275(c) and 289 of the Brotherhood Constitution that the Union's
failure to present Negley and Wuske with a written decision may have
prevented their compliance with the appeal procedures of the constitution
In any event , what is involved in this proceeding is the enforcement of
public rights and not the internal rights of a member vis-a -vis his union, so
that exhaustion of internal union appeals is not required before the Board's
processes may be invoked Local 138 International Union of Operating
Engineers , AFL-CIO (Charles S. Skura), 148 NLRB 679, 684.
"Respondent appears to contend that the interpretation of its contract is
a matter for the courts over which the Board lacks jurisdiction . However,
it is settled that where the interpretation of an agreement is required in
order to determine whether unfair labor practices have occurred, the Board
has the power to interpret the agreement . N L R.B v C & C Plywood
Corp.. 385 U.S 421, Mastro Plastics Corp v. N.L R B., 350 U S 270
remained was to check Stark's records, compute the
amounts due, and make payment. The initial question to
be answered is whether at this point the Union's claim for
back wages gave rise to a "controversy or dispute, as to
the meaning or application" of the provisions of the
agreement within the meaning of article XII.
Although Lombardi conceded that there was no
"dispute" or "controversy" between him and Sokolovits,
his concession does not dispose of the question. Lombardi
did not concede that he interpreted article XII as
inapplicable, and there remained unsettled the question of
the amounts due and when they were to be paid even
though he conceded liability for back wages.
The Union's obligation to refrain from work stoppages
established by article XII is directly tied to the obligation
of the parties to submit controversies or disputes to
arbitration. If the unsettled issues between the parties at
the time of the work stoppage were arbitrable under the
agreement, then under the terms of article XII the Union
was obligated to pursue arbitration to settle the issues and
was not free to engage in a work stoppage.
In construing agreements to arbitrate in labor
agreements, the Supreme Court has said: "[T]o be
consistent with congressional policy in favor of settlement
of disputes by the parties through the machinery or
arbitration, the judicial inquiry under Section 301 must be
strictly confined to the question whether the reluctant
party did agree to arbitrate the grievance or did agree to
give the arbitrator power to make the award he made. An
order to arbitrate the particular grievance should not be
denied unless it may be said with positive assurance that
the arbitration clause is not susceptible to an
interpretation that covers the asserted dispute. Doubts
should be resolved in favor of coverage."" The Court also
stated, "In the absence of any express provision excluding
a particular grievance from arbitration, we think only the
most forceful evidence of a purpose to exclude the claim
from arbitration can prevail, particularly where, as here,
the exclusion clause is vague and the arbitration clause
quite broad." 's
This approach to the interpretation of agreements to
arbitrate was found to be dictated by the federal policy
reflected in national labor laws "to promote industrial
stabilization through the collective bargaining agreement"
which is fully achieved "when the agreement contains both
an arbitration provision for all unresolved grievances and
an absolute prohibitation of strikes, the arbitration
agreement being the `quid pro quo' for the agreement not
to strike.""
Following this approach the Supreme Court rejected
the so-called Cutler-Hammer doctrine" that "If the
meaning of the provision of the contract sought to be
arbitrated is beyond dispute, there cannot be anything to
arbitrate and the contract cannot be said to provide for
arbitration.""
Here the Respondent Union argues that its grievance
was so clearly meritorious in view of Lombardi's
concession that there was no dispute or controversy and
the Union was free to strike . However , assuming the merit
of its claim , its argument in this respect appears no
"United Steelworkers of America v Warrior and Gulf Navigation Co,
363 US 574, 582-583.
"363 U.S. at 584-585.
11363 U.S. at 578 and fn 4.
"International Association of Machinists v Cutler-Hammer, Inc, 271
App. Div 917, affd . 297 N Y. 519.
"United Steelworkers of America v American Manufacturing Co, 363
US 564, 567
GLAZIERS LOCAL 1162, PAINTERS
different in kind from that rejected in The American
Manufacturing Company case. Just as "The processing of
even frivolous claims may have therepeutic values which
those who are not a part of the plant environment may be
quite unaware,"" so also the processing of a meritorious
claim through the grievance and arbitration procedure
may have similar effect.
While an argument can be made that in the
circumstances of this case at the time the work stoppage
occurred Respondent's position was the same as if it had
an arbitration award with which Stark failed or refused to
comply, it cannot be said that the construction of article
XII which the Union urges is free of doubt, that the
evidence of a purpose to exclude the Union's claim for
back wages from the arbitration provision was "most
forceful," or that the arbitration clause is not susceptible
to an interpretation that covered the Union's claim. As set
forth, even after Lombardi's concession of liability, it
remained for Stark to check its records, compute the
amounts due, and pay them. Although there was no
dispute over liability, and thus it may be said that there
was no dispute or controversy over the meaning of the
agreement, there was at the very least a controversy over
application of the agreement.
Far from exhibiting a purpose to exclude this
controversy from the arbitration agreement, the last
paragraph of article XII indicates a contrary conclusion.
That paragraph states a purpose to exclude from the
grievance and arbitration provisions defaults of fringe
benefit payments, referring to article IV, Section c of the
agreement. Article IV, section c, expressly states the right
of the Union to declare the agreement terminated on 5
days written notice in the event of a nonpayment of
health, welfare, and vacation contributions to Union
funds. It permits the Union to strike in the event of such
nonpayment without liability for damages after 5 days'
notice of termination has been given. Having specifically
provided for the suspension of the grievance procedure in
the event of default of payment of fringe benefits, it may
be concluded that the parties intended no similar exclusion
for other defaults. Even if one were to interpret the last
paragraph of article IV as extending to defaults in wage
payments, there is no evidence that any written notice of
intent to terminate was given by the Union, so as to bring
its provisions into play.
There remains for consideration the impact of article
X. While the full scope and intent of this article is far
from clear, the question here is what is meant by "an
employer who fails to live up to the provisions" of the
agreement, which in turn leads to the question of by
whom or how it is to be determined whether an employer
has failed to live up to the provisions of the agreement. If
that determination is independent of article XII, then the
Union would have the option or perhaps even the duty to
withhold the services of its members whenever it was
certain the agreement had been violated without first
resorting to the grievance and arbitration provisions of the
agreement. In view of the mandatory language of article
XII, a more plausible reading of article X requires that
the determination of whether the employer has failed to
live up to the provisions of the agreement is to be made
pursuant to article XII before the Union is free to strike.
Thus, if there is a controversy or dispute as to the
meaning or application of the Agreement, the Union is
free to strike under article X only after a determination
by the majority of the Arbitration Committee provided in
"363 U.S. at 568.
397
article XII and a refusal by the employer to accept the
determination of the Arbitration Committee as binding.
So construed, article X does not free the Union to strike,
if as here, article XII applies and its procedures were not
exhausted. While other constructions of Article X can be
argued, I can find in it no clearer exclusion of the Union's
claim from its no-strike obligation than appears in article
XII. Accordingly, I conclude that the Union's back wage
claim gave rise to a dispute or controversy within the
meaning of article XII at the time the work stoppage
occurred. As the Union caused a suspension of work over
its claim for back wages, without first exhausting the
grievance and arbitration procedures, the Union violated
its obligation under article XII to refrain from a
suspension of work.20
2. The fines
In N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175,
the Supreme Court held that Section 8(b)(1)(A) was not
violated when a union threatened and imposed fines
against members who crossed a picket line and went to
work during authorized strikes against their employer.
There the strikes were in support of demands for new
agreements, and there was no contention that the union
had violated any contractual obligation by striking.
Although there is language in the principal opinion of the
Court which may be broadly read to support the position
of Respondent in this case, it is clear that in
Allis-Chalmers the Court was concerned only with
internal union discipline which restrained or coerced
employees to join in "authorized" and "lawful" concerted
activity. 31
Subsequently, in N.L.R.B. v. Industrial Union of
Marine & Shipbuilding Workers of America, AFL-CIO,
391 U.S. 418, the Court considered the expulsion of a
union member for filing a charge with the Board alleging
that the union had violated the Act. The principal issue in
that case was whether the union violated Section
8(b)(1)(A) by disciplining an employee for failure to
exhaust all the remedies available to him within the union
before he filed charges with the Board. However, the
Court indicated therein its agreement with the Board that
an expulsion based on the filing charges with the Board
violated Section 8(b)(1)(A).
The Court stated "Section 8(b)(1)(A) assures a union
freedom of self-regulation where its legitimate internal
affairs are concerned. But where a union rule penalizes a
member for filing an unfair labor practice charge with the
Board other considerations of public policy come into
play."" Finding a public policy in keeping persons free of
any coercion against making complaints to the Board
important to the functioning of the Act as a whole, the
Court agreed that "overriding public interest"" made
"In all of the above, I have considered the obligation of the Union to
Stark and Tusco as the same . Although it can be argued that the work
stoppage at Tusco, where Negley was employed, raises a different issue
from the work stoppage at Stark , neither counsel for the General Counsel
nor Respondent in their briefs have separated the work stoppages at the
two locations for purposes of argument . There is some evidence to indicate
a close relationship between Tusco and Stark, and it appears from the
minutes of the union trial of Negley and Wuske that the Union acted on
the belief that both corporations stood in the same position. In these
circumstances, I have treated the work stoppage as if it were a single work
stoppage against a single employer for purposes of decision in this case.
"388 U.S at 176-177.
11391 U.S. at 424.
"Ibld
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unimpeded access to the Board the only alternative , except
and unless plainly internal affairs of the union were
involved . As the charges that the employee filed with the
Board went beyond the internal affairs of the Union, the
Court concluded that the expulsion of the employee based
on his filing of the charges violated Section 8 (b)(1)(A).
Allis-Chalmers and Marine & Shipbuilding Workers
left open the question of what constitutes "legitimate
internal" union affairs and whether other public interests
may be deemed to override the right of a union to impose
discipline in the conduct of its internal affairs without
violating Section 8(b)(1)(A).
More recently in Scofield et al v. N.L.R. B., 89 S.Ct.
1154, the Court sustained the right of a union , without
violating Section 8 (b)(1)(A), to fine union members for
violating union rules against drawing more than a
"ceiling" rate for their production under an incentive pay
system . There after reviewing Allis-Chalmers and Marine
& Shipbuilding Workers, the Court stated:"
Under this dual approach , Sec. 8 (b)(1) leaves a union
free to enforce a properly adopted rule which reflects a
legitimate union interest, impairs no policy Congress
has imbedded in the labor laws, and is reasonably
enforced against union members who are free to leave
the union and escape the rule.
Applying this view of Section 8(b)(1) to the case before
it the Court focused its inquiry "on the legitimacy of the
union interest vindicated by the rule and the extent to
which any policy of the Act may be violated by the
union-imposed production ceiling."" Before concluding
that no impairment of statutory policy was shown, the
Court first satisfied itself that enforcement of the union
rule did not impede collective bargaining , did not violate
the contract between the union and the employer, did not
result in featherbedding , induced no discrimination by the
employer against any class of employees , and represented
no dereliction by the union of its duty of fair
representation.
Both the statement of the Court' s view and the scope of
its inquiry in Scofield support the contention that the
policy of protecting the right of employees to file charges
against restraint is not the only policy which may override
a union ' s right to enforce its internal rules under Section
8(b)(1)(A).
Even before the Supreme Court decided Scofield, in
Local 12419 , International Union of District 50, United
Mine Workers of America (National Grinding Wheel
Company, Inc.),=6 Trial Examiner A. Norman Somers
concluded that the considerations of public policy which
outweigh a union's right to impose internal union
discipline were not limited to those before the Court in
Marine & Shipbuilding Workers . The opinion of the
Court in Scofield supports that conclusion which I also
reach herein.
Here the policy which must be weighed against the
right of the Union to impose internal discipline concerns
adherence to the terms of a collective-bargaining
agreement . As Trial Examiner Somers observed in his
decision in National Grinding Wheel the policy of
encouraging adherence to collective-bargaining agreements
has been implicit in the preamble of the Act from its
inception and was voiced in the reports of both houses of
Congress ." Early in the administration of the Act, the
"89 S.Ct. at 1158.
"89 S.Ct. at 1158.
"Case 3-CB-1068, decided July 30, 1968, and now pending before the
Board
Supreme Court gave force to the policy in holding that a
violation of a collective bargaining is not a protected
activity and that employees may lawfully be discharged
for its repudiation."
In 1947, when the Act was amended, Congress
demonstrated further interest in providing for the
enforcement of collective-bargaining agreements by adding
Section 203(d) and Section 301 and "promoting collective
bargaining that ended with agreements not to strike."2'
The finding of a federal policy reflected in the national
labor laws "to promote industrial stabilization through the
collective bargaining agreement" led the Supreme Court
to conclude that Section 301 is not merely procedural but
requires the fashioning of a body of federal substantive
law for the enforcement of collective-bargaining
agreements," that an agreement to arbitrate is to be
construed in favor of arbitration if there is doubt as to its
coverage," and that an agreement not to strike is to be
implied coextensive with an agreement to arbitrate, even
where the parties to a contract have not explicitly agreed
to ban strikes."
In this case, the fines were based not simply upon a
refusal to violate an agreement but on a refusal to violate
the no-strike clause of an agreement. If policy favoring
enforcement of agreements were not deemed to override
the right of a union to impose discipline upon its
members, the Union would remain free through the
imposition of fines to coerce otherwise unwilling
employees to join in strikes in breach of contract, making
more complete the disruption of the employers' business,
subjecting the employers to greater economic pressure at a
time when the employers had contracted to be free of
them , and exposing the unwilling employees to the
possibility of discipline by the union if they resisted
joining in the violation of the agreement or of discipline
by the employer if they did not.
Like Trial Examiner Somers in National Grinding
Wheel, supra , I conclude that the public policy in favor of
enforcement of collective-bargaining agreements overrides
and outweighs the Union ' s right to discipline its members
for violating rules enforced to compel their participation
in a strike in breach of contract , and it would "impair ...
policy Congress has imbedded in the labor laws" to hold
in this case that Section 8(b)(l)(A) does not reach the
discipline imposed on Negley and Wuske.
Accordingly, I find that Respondent violated Section
8(b)(1)(A) by imposing fines on Elmer Negley and Robert
Wuske because they failed to heed the request of
Sokolovits to leave their jobs with Tusco and Stark and
report to other employers in support of Respondent's
efforts to compel payment of the back wages to Stark's
employees.
3. The threats
The complaint also alleges that Respondent violated
Section 8(b)(1)(A) by Sokolovits' threat to Negley and
"H Rep No 1147, 74th Cong. 1st Sess. p. 20, S Rep No. 753, 74th
Cong ., 1st Sess. p. 13.
"N.L R B. v. The Sands Manufacturing Company. 306 U S 332.
"Textile Workers Union of America v Lincoln Mills of Alabama. 353
U.S. 448, 453.
"Textile Workers Union of America v. Lincoln Mills of Alabama,
supra
"United Steelworkers of America v. Warrior A Gulf Navigation
Company, supra, United Steelworkers of America v American
Manufacturing Company, supra
"Local 174 , Teamsters, etc. v Lucas Flour, 369 U.S 95
GLAZIERS LOCAL 1162, PAINTERS
Wuske that he would bring charges against them if they
failed to heed his request . The evidence shows that on
September 27 and 28 when Negley and Wuske indicated
to Sokolovits their intention to remain on their jobs,
Sokolovits told Negley that he would get his support one
way or another and that he would have him before the
Union Trial Board. Sokolovits told Wuske that he would
have to take a different route and go before the Executive
Board . Both statements by Sokolovits signalled his
intention to institute disciplinary action against Negley
and Wuske if they failed to leave their jobs and
constituted threats of disciplinary action . As I have found
that the disciplinary action subsequently taken violated
Section 8(b)(1)(A) of the Act, I also find that the threats
to take such action violated Section 8(b)(l)(A) of the
Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent 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
Having found that Respondent Union has engaged in
certain unfair labor practices , I shall recommend that it
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. As I have found that Respondent Union violated the
Act by fining Elmer Negley and Robert Wuske because of
their refusal to join in a strike in violation of its contracts
with Stark and Tusco , I shall also recommend that
Respondent Union be ordered to rescind the fines imposed
on them , notify them of the recission of the fines, and
reimburse and make them whole for the amount of the
fines they may have paid with interest at 6 percent per
annum."
Upon the basis of the above findings of fact and the
entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Glaziers Local Union No. 1162, affiliated with the
Brotherhood of Painters, Decorators, Paperhangers,
Glaziers, and Glassworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
2. Tusco Glass, Inc., and Stark Glass, Inc., are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
3. By threatening to fine and fining employees for
refusing to join in a work stoppage called by Respondent
in violation of its agreements with the charging parties,
Respondent restrained and coerced employees of the
charging parties in the exercise of their rights guaranteed
"Red Ball Motor Freight , Inc., 157 NLRB 1237, enfd . 379 F.2d 137
(C A.D.C.); St. Louis Offset Printing Union , AFL-CIO, et al (Mendle
Press, Inc), 130 NLRB 324; United Furniture Workers of America,
Local 309, CIO, et al (Smith Cabinet Manufacturering Company, Inc.),
81 NLRB 886.
"Local /38, International Union of Operating Engineers, AFL-CIO,
(Charles S. Skura), supra.
399
by Section 7 of the Act and has engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b)(1)(A) and Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and pursuant to Section 10(c) of the
Act, I hereby recommend that Respondent, Glaziers Local
Union No. 1162, affiliated with the Brotherhood of
Painters, Decorators, Paperhangers, Glaziers, and
Glassworkers of America, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Assessing fines against , otherwise disciplining, or
threatening to discipline members for failing or refusing to
provisions of any agreement between Respondent and
participate in a work stoppage in violation of the no-strike
Stark Glass, Inc. or Tusco Glass, Inc. '
(b) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Rescind the fines imposed on Elmer Negley and
Robert Wuske for having failed or refused to join in the
work stoppage of the employees of Stark Glass, Inc. and
Tusco Glass, Inc., which occurred during September and
October 1968, and inform each of them by letter that the
fines have been rescinded.
(b) Reimburse and make each of the above-named
persons whole for the amount of the fine he may have
paid as set forth in the section of the Decision above,
entitled "The Remedy."
(c) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's
authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent labor organization to insure that said notices
are not altered, defaced, or covered by other material.
(d) Mail signed copies of said Appendix to the Regional
Director for Region 8 for posting by Stark Glass, Inc. and
Tusco Glass, Inc., if said employers are willing, at all
locations where notices to their employees are customarily
posted.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF GLAZIERS LOCAL UNION
No. 1162, AFFILIATED WITH THE BROTHERHOOD OF
PAINTERS, DECORATORS, PAPERHANGERS, GLAZIERS, AND
GLASSWORKERS OF AMERICA, AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT assess fines , against, otherwise
discipline , or threaten to discipline our members for
failing or refusing to participate in a work stoppage in
violation of the no-strike provisions of any agreement
we have with Stark Glass, Inc., or Tusco Glass, Inc.
WE WILL rescind the fines imposed on Elmer Negley
and Robert Wuske for having failed or refused to join
in the work stoppage of the employees of Stark Glass,
Inc., and Tusco Glass, Inc., which occurred during
September and October 1968.
WE WILL make Elmer Negley and Robert Wuske
whole for the amount of the fine either of them may
have paid because of his failure or refusal to participate
in said work stoppage.
WE WILL NOT in any like or related manner restrain
or coerce our members in the exercise of their rights
guaranteed in Section 7 of the Act.
Dated By
GLAZIERS LOCAL UNION
No. 1162, AFFILIATED
WITH THE BROTHERHOOD
OF PAINTERS, DECORATORS,
PAPERHANGERS, GLAZIERS
AND GLASS WORKERS OF
AMERICA, AFL-CIO
(Labor Organization)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 1695 Federal
Office Building , 1240 East 9th Street , Cleveland, Ohio
44199, Telephone 216-522-3715.