Intl. Union of Operating Engineers, Local 450

National Labor Relations Board - Board Decisions

Mar 7, 1974

209 N.L.R.B. 463 (N.L.R.B. 1974)

INTL. UNION OF OPERATING ENGINEERS, LOCAL 450
International Union of Operating Engineers, Local
Union No. 450, AFL-CIO and Schneider Con-
struction Company. Case 23-CB-1352
March 7, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 15, 1973, and November 14, 1973,
Administrative Law Judge Sydney S. Asher issued
the attached Decision and Supplemental Decision,
respectively, in this proceeding. Thereafter, Respon-
dent filed exceptions and a supporting brief, and the
Charging Party filed a brief in answer to Respon-
dent's exceptions.
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 and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, International Union
of Operating Engineers, Local No. 450, AFL-CIO,
Houston, Texas, its officers, agents and representa-
tives, shall take the action set forth in the said
recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544. enfd . 188 F.2d 362 (C.A 3. 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
SYDNEY S. ASHER, Administrative Law Judge: On
November 2, 1972, Schneider Construction Company,
Houston, Texas, herein called the Company, filed charges
against International Union of Operating Engineers, Local
No. 450, Houston, Texas, herein called the Respondent.
Based on these charges the General Counsel, on January
10, 1972, issued a complaint alleging that on or about
i The Respondent's admission in this respect was made at a preheanng
conference. Through inadvertence this admission does not appear in the
record. Nevertheless, as the admission was made in my presence. I deem it
just as effective as if it had been made on the record.
463
September 28, 1972, the Respondent fined B. F. Simmons,
a foreman, because he continued to work for the Company
during a strike by members of the Respondent on March 8,
1972. It is alleged that this conduct violated Section
8(b)(1)(B) of the National Labor Relations Act, as
amended (29 U.S.C. § 151, et seq. ), herein called the Act.
The Respondent filed an answer denying that B. F.
Simmons had been a foreman on March 8, 1972, admitting
that Simmons had been fined by the Respondent, denying
that Simmons had been fined because he continued to
work for the Company during the strike of the Respon-
dent's members, and denying the commission of any unfair
labor practices.
Upon due notice, a hearing was held before me on
March 6, 1973, at Houston, Texas. All parties were
represented and participated fully in the hearing. After the
close of the hearing, all parties filed briefs, which have
been carefully considered.
Upon the entire record, and from my observations of the
witnesses, I make the following:
FINDINGS OF FACT
A. Preliminary Matters
The complaint alleges, the Respondent admits,' and it is
found that the Company is, and at all material times has
been, a Texas corporation with its principal office and
place of business in Houston, Texas. The Company is a
general contractor for commercial construction. During
the 12 months preceding January 10, 1973, the Company
purchased goods valued at more than $50,000, which were
shipped directly to its jobsite in Houston, Texas, from
sources outside the State of Texas. It is therefore found
that the Company is, and at all material times has been, an
employer engaged in commerce as defined in the Act, and
its operations meet the Board's jurisdictional standards.
The complaint further alleges, and the Respondent in its
answer admits, that the Respondent is, and at all material
times has been, a labor organization within the meaning of
the Act.
B. The Setting
At all material times the Company was engaged, as
general contractor, in the construction of buildings at 1233
West Loop South, 1333 West Loop South, and 1433 West
Loop South, in Houston, Texas. The general superintend-
ent of the project was Richard C. Rochester.
Operating engineers were among the workers employed
on this project. The Company and the Respondent had
entered into a collective-bargaining agreement which, at all
material times, governed the working conditions of the
operating engineers . Certain pertinent provisions of this
contract will be set forth hereafter.
C. Assumed Facts2
On March 7, 1972, Rochester discharged a rank-and-file
2 1 have recommended below that the Board should not decide this
matter on the merits , but rather should defer to the grievance -arbitration
machinery set up by the parties themselves . The ultimate findings of fact,
therefore, should be left to the arbitrator. In this posture of the case, I have
(Continued)
209 NLRB No. 71
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operating engineer, M. L. ("Shorty") Jackson, a member of
the Respondent. Jackson reported his discharge to Robert
L. ("Sonny") Johnson, the Respondent's business agent.
Johnson protested the discharge to Rochester that same
day. No satisfactory adjustment of the dispute was reached
that day. That night Rochester, in a telephone conversa-
tion, reduced Marvin Lamb, operating engineer foreman
on the project, to a rank-and-file employee.
On the following day, March 8,3 at the start of the
workday, a number of operating engineers employed by
the Company (including the Respondent's steward on the
project) went on strike 4 B. F. Simmons, a rank-and-file
operating engineer employed on the project and a member
of the Respondent, did not join the strikers. Early in the
workday Rochester appointed Simmons operating engineer
foreman on the project, in Lamb's place. Approximately a
half hour after he became foreman, Simmons had a
conversation on the jobsite with M. F. McNamara, a rank-
and-file operating engineer on the project and a member of
the Respondent. Shortly after this conversation McNamar-
a went to the Respondent's union hall and signed and filed
charges against Simmons which read, in pertinent part:
1, M. F. McNamara, Register No. 875476, wish to file
charges on Brother B. F. Simmons. Register No.
1246211, under Article 23, Subdivision 7, Section e, for
working without a steward and slandering his Brother
members on the Schneider Construction job, 1333 W.
Loop South, Houston, Texas, on this date.'
Simmons was notified of these charges, was tried on
these charges before the Respondent's membership,
found guilty as charged, and fined. He appealed the
finding. The appeal is pending and Simmons as yet has
not paid the fine. At all material times he has remained
a member of the Respondent in good standing.
D. Contentions of the Parties
The parties appear to espouse divergent views of the
facts. The General Counsel, supported by the Company,
maintains that the facts are as set forth above. He also
seems to deny that Simmons was, in fact , guilty of any
slander .6 From this he argues that Simmons was punished
by the Respondent for refusing to strike on March 8, when
he was already a supervisor. The Respondent , conversely,
contends that Simmons was not promoted to supervisor
until May 9 , after he had refused to strike and that
therefore the Respondent had a right to discipline him as a
assumed a set of facts most favorable to the General Counsel 's case and
have-without deciding credibility of specific witnesses-set forth the
versions elicited by the General Counsel, even where contradicted by the
versions elicited by the Respondent
3 All dates hereafter refer to the year 1972. unless otherwise indicated.
4 There is apparently no contention that the Respondent was responsible
for, or called, this strike Nor is the legality of the strike in issue.
5 Article XXIII. subdiv. 7, Sec. (e) of the constitution of the Respon-
dent's international reads, in pertinent part
Any officer or member of a Local Union who becomes an habitual
drunkard , who wrongs a fellow member or defrauds him, who commits
an offense discreditable to the International Union or its subdivisions,
who creates dissension among the members , who destroys the interest
and harmony of the Local Union. who seeks to dissolve any Local
Union or separate it from the general organisation ; who wilfully
rank-and-file employee. In any event, the Respondent
seems to take the position that he was fined in substantial
part for slandering his fellow members, and that the fact
that he worked during a strike was merely incidental.
The parties differ as to another aspect of this matter. The
Respondent argues in its brief that "the questions raised by
the complaint are all resolvable under the grievance and
arbitration machinery of the collective-bargaining agree-
ment." These provisions, in pertinent part, are as follows:
ARTICLE V
Grievance Procedure
It is agreed that all disputes, other than those
pertaining to jurisdictional disputes, that may arise on
any job covered by this Agreement shall be handled in
the following manner without any person permitting or
causing the grievance to cause a work stoppage or
interfere in any way with the progress and prosecution
of the work .. .
(a) A Joint Board of Interpretation composed of two
(2) members from the Union and two (2) members
appointed by the representatives of the Contractors
shall be named within twenty-four (24) hours after a
registered letter or telegram requesting the establish-
ment of such a Board has been received by either party
from the other, and to whom such dispute shall be
referred within twenty-four (24) hours after the
members of the Board are named. The Board shall
make its decision within ninety-six (96) hours after it is
named, and the decision of the Board shall be final and
binding on all parties to the dispute.
(b) In the event of the failure of the Joint Board of
Interpretation to arrive at a solution within the time
limits set forth above, the Board, or any member of the
Board, shall immediately request the Federal Media-
tion and Conciliation Service to submit a list of five (5)
arbitrators to the Board. Within forty-eight (48) hours
after receipt of these five (5) names by the Board, the
Union representatives on the Board shall strike two (2)
names and the Contractor representatives on the Board
shall strike two (2) names , and the person whose name
then remains shall be immediately asked to serve as
Arbitrator in the dispute. The decision of the Arbitrator
shall be final and binding on all parties to the dispute,
slanders or libels an officer of [sic ] member of the Organization, who
violates the trade rules of the locality in which he is working. who
fraudulently receives, misapplies , converts or embezzles the funds of
any subdivision of the International Union of [sic ] the monies of any
member entrusted to him, who violates his obligation or any section of
the Constitution , Rules, Edicts and Ritual of the International Union;
who divulges the password to anyone except the officer authorized to
receive the same , who is guilty of insubordination ; or who refuses to
acknowledge or perform the lawful command of those authorized
within the International Union to issue the same , may be disciplined or,
upon trial therefor and conviction thereof, be fined, suspended or
expelled from his Local Union
6 Simmons admitted calling McNamara a "snowbird," but nothing
more On the other hand. McNamara testified at Simmon 's union trial that
Simmons had called the other union members "a bunch of bastards "
INTL. UNION OF OPERATING ENGINEERS, LOCAL 450
and his fees and expenses shall be borne equally by the
Contractors and the Union.
(c) In the event of the failure of either party to name
two (2) members to the Board, as required in paragraph
(a) above, or to strike two names from the list
submitted by the Federal Mediation & Conciliation
Service, as required in paragraph (b) above, an
Arbitrator to decide the dispute shall, on petition of
either party, be appointed by the District Court of the
United States for the Southern District of Texas,
Houston Division, whose decision shall be final and
binding on all parties to the dispute.
An addendum entitled "Working Conditions" contains the
following provisions:
Section 15. - Foreman, Assistant and Engineer Ratio
(a) When as many as four (4) Operating Engineers
are employed on any one (1) job. one (1) shall be a
Foreman .. .
(d) It shall be understood that the Foreman shall not
be under the supervision of anyone except the project
manager and field superintendent.
*
(f) The Foreman . . . shall direct the work of the
men under him in the performance of their routine
duties .. .
In support of this contention the Respondent cites Houston
Mailers Union No. 36 (Houston Chronicle Publishing
Company), 199 NLRB 804.
The General Counsel and the Company argue against
deferral and urge the Board to decide the case on the
merits. The General Counsel contends that Houston
Mailers is distinguishable. The Company in its brief refers
to the Respondent's "afterthought argument" and resists
submission of this dispute to arbitral proceedings.
E. Conclusions
In Houston Mailers, as here, the collective-bargaining
contract "contained a detailed grievance and arbitration
procedure." In Houston Mailers, as here, "the contract
state[s] that all work is under the foreman's direction." In
Houston Mailers the contract included this specific prohi-
bition: "The Union or its representatives shall not discipline
the foreman for carrying out the instructions of the
[employer]." A majority of the Board decided to defer the
matter to the grievance-arbitration machinery which the
parties themselves had established. The General Counsel
and the Company point out, however, that the instant
contract does not contain a specific prohibition of union
discipline of foremen. The Respondent counters by
r Hercules Motor Corporation , 136 NLRB 1648 , Collyer Insulated Wire, A
Gulf and Western Si stems Co, 192 NLRB 837; Houston Mailers Union No
36 (Houston Chronicle Publishing Company), 199 NLRB 804, and Baltimore
Typographical Union No. I?, International Typographical Union, AFL-CIO
465
contending that the instant contract, while not prohibiting
such action in precise language, does so by inference.
The issue is whether the wording of the instant contract
("the Foreman shall not be under the supervision of
anyone except the project manager and field superintend-
ent") can reasonably be read as a commitment by the
Respondent to refrain from punishing a foreman who
follows his superior's orders. In my opinion, this is an
arguable interpretation. Contract interpretation is a func-
tion which arbitrators normally perform. And in the light
of the sweeping scope of the grievance-arbitration clause in
the instant contract, I deem it appropriate for an arbitrator
to decide herein whether the quoted clause here is the
substantial equivalent of the clause in the Houston Mailers
contract and, if so, whether the Respondent's fining of
Simmons violated that contract provision. In sum, I
consider this the kind of dispute which should be
determined under the contract. I therefore recommend that
the Board defer this case to the arbitral process provided
for by the parties themselves.?
Upon the basis of the above findings of fact, and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Schneider Construction Company is, and at all
material times has been, an employer within the meaning
of Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local
Union No. 450, AFL-CIO, is, and at all material times has
been, a labor organization within the meaning of Section
2(5) of the Act.
3. At all material times there has been in full force and
effect a collective-bargaining agreement between the
Respondent and the Company which commits the parties
to settle all disputes between them through the grievance
and arbitration procedure contained therein.
4. It is appropriate and proper that the issues in this
case, as set forth in the pleadings, be resolved through the
grievance and arbitration machinery contained in the
above-described contract.
THE REMEDY
The Respondent's contention that the Board defer to
arbitration has been found meritorious. I therefore
recommend that the complaint be dismissed. However, the
Board should retain jurisdiction for the purposes of
entertaining an appropriate and timely motion for further
consideration upon a proper showing that (a) the dispute
has not, with reasonable promptness after the issuance of a
Board decision, either been resolved by amicable settle-
ment in the grievance procedure or submitted to arbitra-
tion, (b) the grievance or arbitration procedure has reached
a result repugnant to the Act, or (c) the decision of the
arbitrator is not wholly dispositive of the issues in this
proceeding.
(`The A S. Abel! Company), 201 NLRB 120. See also Deferral to
Arbitration-Temperance or Abstinence ', remarks of Chairman Miller,
N.L.R B., before Ga. Bar Assn, 87 Daily L. Rep.. D-l (May 4, 1973).
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of law, SUPPLEMENTAL FINDINGS OF FACT
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The complaint herein is dismissed in its entirety;
provided, however, that jurisdiction of this proceeding is
retained for the limited purpose indicated in the section of
this Decision entitled "The Remedy."
9 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes
SUPPLEMENTAL DECISION
SYDNEY S. ASHER, Administrative Law Judge: On May
15, 1973, I issued my Decision in the above-entitled case,
concluding that the Board should defer the matter to
arbitration and that the complaint should be dismissed in
its entirety. Thereafter the Company and the Respondent
filed with the Board exceptions and supporting briefs, and
the Company later filed a motion to reopen the record. On
September 6, 1973, the Board issued its order reopening the
record and directing that a further hearing be held before
me "for the purpose of receiving evidence concerning the
allegations of the complaint." The Regional Director was
directed to arrange such further hearing and authorized to
issue notice thereof.
Accordingly, on September 19, 1973, the Regional
Director issued a notice of hearing. Thereafter, on October
15, 1973, the parties filed with me joint motion to receive
certain documentary evidence, close the record, and set a
date for the filing of supplemental briefs. To this were
attached two letters dated after the close of the hearing.
The parties stipulated that these letters could be received in
evidence. They further requested that no further hearing be
held and that upon receipt of the letters referred to above
the record in this case be closed.
Accordingly, on October 15, 1973, I revoked the notice
of hearing issued by the Regional Director on September
19, 1973, and notified all parties that no further hearing
would be held. On October 16, 1973, in accordance with
the joint request of all parties, the above-described letters
were received in evidence, and as so augmented the record
herein was closed. Thereafter, the Company and the
Respondent filed supplemental briefs, which have been
carefully considered.'
From the entire record, and from my observation of the
witnesses, I make the following:
I In its brief the Respondent moves that I reconsider my ruling denying
its motion to correct the transcript For reasons stated in my earlier ruling,
the motion to reconsider is denied
2 The finding that this telephone conversation took place on the night of
March 7 is based on Rochester's testimony . Lamb placed the event as
having occurred on the afternoon of March 8 . 1 credit Rochester's version
as the more accurate
3 All dates hereafter refer to the year 1972, unless otherwise indicated.
A. Sequence of Events
On March 7, 1972, the Company discharged a rank-and-
file operating engineer , M. L. ("Shorty") Jackson, a
member of the Respondent. Jackson reported his discharge
to Robert L. ("Sonny") Johnson, the Respondent's
business agent. Johnson protested the discharge to Richard
C. Rochester, the general superintendent of the project,
that same day. No satisfactory adjustment of the dispute
was reached that day. That night Rochester, in a telephone
conversation, reduced Marvin Lamb, operating engineer
foreman on the project, to a rank-and-file employee.2
On the following day, March 8,3 at the start of the
workday, a number of operating engineers employed by
the Company (including the Respondent's steward on the
project) went on strike.4 B. F. Simmons, a member of the
Respondent, and a rank-and-file operating engineer on the
project, did not join the strikers. Early in the workday
Rochester appointed Simmons operating engineer foreman
on the project, in Lamb's stead , and placed the words
"Operating Engineers' Foreman" on Simmons' hat. Ap-
proximately half an hour after he became foreman,
Simmons, wearing the hat bearing that inscription, had a
conversation on the jobsite with M. F. McNamara, a rank-
-and-file operating engineer on the project and a member of
the Respondent.5 Shortly after this conversation McNa-
mara stopped working, leaving Simmons as the only
operating engineer not on strike. McNamara then went to
the Respondent's union hall and filed charges against
Simmons which read, in pertinent part:
I, M. F. McNamara, Register No. 875476, wish to file
charges on Brother B. F. Simmons, Register No.
1246211, under Article 23, Subdivision 7, Section e, for
working without a steward and slandering his Brother
members on the Schneider Construction job, 1333 W.
Loop South, Houston, Texas, on this dates
Simmons (who had operated the rig at the jobsite the rest
of the day) was later notified of these charges, was tried on
these charges before the Respondent's membership, found
guilty as charged, and fined $600 with $300 being
suspended. The Respondent notified Simmons that "The
fine of $300 must be paid in full before we can accept any
further dues." Simmons appealed the finding to the
Respondent's International. After the close of the hearing
herein, the International' s general executive board "sus-
tained the action of Local 450 in finding Brother Simmons
guilty of violating its working rules ; set aside that protion
[sic ] of the verdict which related to alleged slander of
fellow' members; and reduced the penalty to a fine of
$100." Thereafter Simmons was notified that the Respon-
' There is no contention that the Respondent was responsible for, or
called, this strike . Nor is the legality of the strike in issue
S Simmons admitted that he referred to McNamara as a "snowbird" but
denied McNamara 's accusation that he (Simmons) called McNamara a
"snowbird son of a bitch" or cursed the Respondent 's officers . I deem it
unnecessary to resolve this conflict.
8 [See In. 5 of ongmal Decision.]
INTL.. UNION OF OPERATING ENGINEERS , LOCAL 450
dent would refuse to accept further dues from him "until
your fine is paid in full."
B. The Status of Simmons
The General Counsel and the Company contend that
Simmons was already a supervisor at the time he and
McNamara conferred on the jobsite on March 8. They
point to the testimony of Simmons and Rochester that,
about a half-hour previous to this Simmons-McNamara
conversation, Rochester had informed Simmons of his
promotion and given him lettering on his hat indicating his
foreman's rank. Simmons further testified that he was
wearing this hat during his talk that day with McNamara.
McNamara's contrary testimony is not credited.
In its supplemental brief, the Respondent argues:
the Company could have produced records which
would have shed much light on the matter. If the
Company had produced the records of its timekeeper
or the timekeeper himself, there could be a conclusive
showing of exactly when Simmons became a foreman
.... The Company produced no such evidence to
show at what date Simmons' promotion became
effective. This leads the Union to the assumption that
as of March 8 Simmons was still carried by the
timekeeper as a rank and file employee.
This argument lacks ment.7 The records are not necessarily
conclusive to contradict the testimony of Rochester and
Simmons because, in view of the strike, the timekeeper may
not have been immediately advised as to the change of
status of Lamb and Simmons. Moreover, the issue here is
not when the timekeeper recorded foreman's pay for
Simmons, but rather when Simmons' new authority as
foreman became effective. I conclude that it became
effective on the morning of March 8, before Simmons
talked to McNamara.
The Respondent further defends on the ground that,
because "there was no one for him to supervise" that day,
Simmons could not have "performed any duties of a
supervisor on March 8." 1 do not agree. The test of
supervisory status is not whether the necessary authority
has actually been exercised, but merely whether it has been
conferred. Rochester testified:
Q. Could Mr . Simmons in his capacity as job
foreman hire operating engineers?
T The Respondent produced check stubs of Lamb showing that his rate
of pay was $6 63 for the period ending March 8 but dropped to $6.25 for the
period ending March 15, the next pay period The Respondent in its
supplemental brief states "The Union produced the previous foreman's pay
checks for the period in question showing that his rate of pay on March 8
was that of a foreman " I do not agree that the check stubs show this
indeed, as Lamb did not work at all on March 8. what pay he might have
received if he had worked that day is hypothetical.
8 Toledo Locals Not 15-P and 272, of the Lithographers and Photoengrav-
ers International Union, AFL-CIO (The Toledo Blade Company, Inc), 175
NLRB 1072; Dallas .hailers Union, Local No 143 (Dow Jones Company,
Inc), 181 NLRB 286, Meat Cutters Union Local 81 (Safeway Stores, Inc.),
185 NLRB 884; Passaic, Morris, Sussex & Bergen Counties Newspaper
Printing Pressmen's Union No. 60 (Passaic Daily News), 190 NLRB 268; San
Francisco Typographical Union No 21, International Typographical Union,
AFL-CIO (California Newspapers, Inc), 192 NLRB 523. New York
Typographical Union No. 6, International Typographical Union, AFL-CIO
467
A. Yes.
Q. Could he also, as job foreman, discharge
operating engineers?
A. Yes, sir.
Q. Do you know if Mr. Simmons had the authority
to discuss grievances?
A. No, sir, as far as I remember, we didn't have
any grievances to amount to anything.
Q. I am not asking you whether you had them. I
am asking you if he could discuss grievances.
A. Yes, sir.
Q. He had that authority?
A. That's right.
JUDGE ASHER: I take it all these questions about his
having that authority is after he was appointed?
MR. ERwIN: Yes, sir, after he was appointed
supervisor, job foreman.
On the record before me I find that on the morning of
March 8 Rochester effectively cloaked Simmons with
supervisory authority described in Section 2(11) of the Act,
and that Simmons thereby became a supervisor within the
meaning of that Section.
C. The Reason for the Fine
The Respondent also defends on the ground that it "did
not violate the Act by disciplining him [Simmons] for the
offense for which he was charged," because "in order for a
union to violate Section 8(b)(1)(B) of the Act the reason for
which the supervisor is fined must relate to his duties as a
supervisor," and further that the "offenses charged against
Simmons had nothing to do with his status as a supervisor
... [they] were offenses which could have been commit-
ted by any union member with the same import." The fact
remains, however, that Simmons was disciplined (at least
in substantial part) "for working without a steward" at a
time when he was a supervisor. This is equivalent to saying
that he was fined because he, a supervisor, worked during a
strike. It is well established that such conduct by a union
constitutes interference with the employer's right to select
his representatives for the purposes of collective bargaining
or the adjustment of grievances and thereby violates
Section 8(b)(1)(B) of the Act.8 Here, the Respondent's
pressure on Simmons, the Company's supervisor, tended to
inhibit him and impair his effectiveness as a loyal
supervisor in maintaining the Company's interests. I
conclude that the Respondent's actions toward Simmons-
(Dally Racing Form), 206 NLRB No 83, International Brotherhood of
Electrical Workers, AFL-CIO (Illinois Bell Telephone Company), 192 NLRB
85; and International Brotherhood of Electrical Workers System Council
U-4 (Florida Power & Light Company), 193 NLRB 30. 1 am aware that the
latter two decisions were refused enforcement by the Court of Appeals for
the District of Columbia sitting en lane, 83 LRRM 2582. However, I am
required "to apply established Board precedent which the Board or the
Supreme Court has not reversed." Insurance Agents' International Union,
AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768.
772-773. Novak Logging Company, 119 NLRB 1573, 1575-56; and Scherrer
and Davisson Logging Company, 119 NLRB 1587, 1589 i therefore follow
the Board 's decisions in the lllinots Bell Telephone and Florida Power &
Light cases rather than the decision of the court which refused to enforce
them. Moreover, the Tenth Circuit contrary to the District Circuit has
agreed with the Board in this respect. N L R B v New Mexico District
Council of Carpenters and loinersofAmericaA S HORNER, Inc, 454 F 2d
1116 (CA. 10, 1972)
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-both the fine itself and the later refusal to accept dues
until the fine was paid-violated Section 8(b)(1)(B) of the
Act.
On the basis of the foregoing findings of fact and the
entire record herein , I make the following:
SUPPLEMENTAL CONCLUSIONS OF LAW
Delete Conclusions of Law 3 and 4 of my original
Decision and substitute therefor the following:
3. B. F. Simmons has been, since the morning of March
8, 1972, a supervisor of the Company, within the meaning
of Section 2(11) of the Act.
4. By fining B. F. Simmons and refusing to accept his
dues until the fine has been paid, thereby restraining and
coercing the Company in the selection of its representatives
for the purposes of collective bargaining or the adjustment
of grievances, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(b)(1)(B) of the Act.
5. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce, and constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(b)(1)(B) of the Act, it will be recommended that the
Respondent cease and desist from restraining or coercing
the Company in the manner found herein. Additionally,
the coercive effect herein found can be removed only if the
Respondent is required to rescind its fine against B. F.
Simmons, to expunge from its records all reference thereto,
and to make Simmons whole for any loss he may have
suffered by reason of the Respondent's above-described
action .9
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I issue the following
recommended:
ORDER io
International Union of Operating Engineers, Local
Union No. 450, AFL-CIO, Houston , Texas, its officers,
agents, and representatives , shall:
1. Cease and desist from:
(a) Restraining or coercing Schneider Construction
Company in its selection of representatives for the
purposes of collective bargaining or the adjustment of
grievances.
(b) Attempting to enforce or collect the fine levied on
Supervisor B. F. Simmons , or otherwise disciplining him,
because he performed work for the above -named Compa-
ny on March 8, 1972.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Rescind the fine it levied against Supervisor B. F.
Simmons and its notification that it would not accept dues
from him until the fine has been paid , and expunge from its
records all references thereto.
(b) Make Supervisor B. F. Simmons whole for any loss
he may have suffered by reason of the fine levied against
him.
(c) Notify B. F. Simmons and Schneider Construction
Company, in writing, that all references to the fine levied
against B. F. Simmons have been expunged from the
Respondent's records.
(d) Post at its business offices and union halls in
Houston, Texas, copies of the attached notice marked
"Appendix." i i Copies of such notice, on forms provided
by the Regional Director for Region 23, after being signed
by an authorized representative of the Respondent, shall
be posted by the Respondent immediately upon receipt
thereof, in conspicuous places, including all places where
notices to members are customarily displayed, and shall be
maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to
insure that the notices are not altered, defaced, or covered
by any other material.
(e) Cause copies of such notice, to be furnished as
described above, to be signed by the Respondent's
representative and promptly returned to the said Regional
Director for posting by Schneider Construction Company,
should said Company be willing to do so.
(f) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
9 In its supplemental brief the Company, pointing out that the
Respondent has refused to accept dues from Simmons until the illegal fine
has been paid, requests that the remedy include "the full reinstatement of
Simmons' standing in the Union ." I believe the Order hereafter recommend-
ed is sufficient to attain that result
IU See In. 8 of original decision
ii In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
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 Schneider Construc-
tion Company in its selection of representatives for the
purposes of collective bargaining or the adjustment of
grievances.
WE WILL NOT attempt to enforce or collect the fine
levied on Supervisor B. F. Simmons, or otherwise
discipline him, because he performed work for the
above-named company on March 8, 1972.
WE WILL rescind the fine levied against Supervisor
B. F. Simmons and our notification that WE WILL not
accept dues from him until the fine is paid, and WILL
make him whole for any loss he may have suffered by
reason of such actions and will remove from our
records all references to such fine.
INTL . UNION OF OPERATING ENGINEERS, LOCAL 450 469
Dated By
INTERNATIONAL UNION OF
OPERATING ENGINEERS,
LocAL UNION No. 450,
AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Dallas-Brazos Building, 1125 Brazos Street , Houston,
Texas 77002, Telephone 713-226-4296.