Local 146 Sheet Metal Workers

National Labor Relations Board - Board DecisionsJun 1, 1973

203 N.L.R.B. 1090 (N.L.R.B. 1973)

1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 146, Sheet Metal Workers International Associ- ation, AFL-CIO and Harold Tindell and Ed Merritt, its Agents and Robert Dale Jones d/b/a Aarctic Heating and Cooling Company . Case 17-CB-995 June 1, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 14, 1973, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, the Charging Party and the General Counsel filed exceptions and supporting briefs, and the Respondents filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three -member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has to affirm the rulings , findings , and conclu- sions 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 Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and hereby is, dismissed in its entirety. ' The amended charge of September 28, 1972, alleging a union attempt by fine to coerce the employer "tojom the Sheet Metal Contractors Association of Springfield , Missouri , for collective-bargaining purposes or the adjustment of grievances, etc." was not included as an allegation of the complaint which issued the next day, and the Administrative Law Judge therefore did not consider the issue . Nevertheless there was litigation of it. Evidence is lacking, however, of a request to sign such a contract , and we do not believe that the Employer was coerced in the selection of hiscollecuve -bargaining representa- tive merely by being presented with apartial copy of the association contract (having no first page), along with a blank form contract for an employer doing residential work, and a form contract for commercial work with the words "name of contractor or contractors association" printed under a blank line. We note, in addition, that on a least one occasion the Union offered to negotiate an individual contract different from the "standard form" agreement insofar as it pertained to wage rates for residential work. Accordingly, on the record as a whole we find no coercion of this Employer in the selection of his col active-bargaining representative within the meaning of Sec. 8(bXIXB). DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON , Administrative Law Judge: This case was heard at Springfield , Missouri , on November 16, 1972,' pursuant to a second amended charge 2 filed on Sep- tember 28, by Robert Dale Jones , and a complaint issued on September 29. The complaint alleges that Local 146, Sheet Metal Work- ers International Association , AFL-CIO (herein referred to as the Respondent), and its Agents Harold Tindell , Ed Mer- ritt, and Norbert Wagner 3 violated Section 8(b)(1)(B) of the National Labor Relations Act, as amended (herein referred to as the Act), by restraining and coercing Robert Dale Jones d/b/a Aarctic Heating and Cooling Company (herein referred to as the Company ), in the selection of his represen- tatives for the purposes of collective bargaining or the ad- justment of grievances , by fining Jones because he refused to enter into a collective -bargaining agreement with the Respondent. Respondent in its answer filed on October 6 denied that it or its agents had violated the Act. The issues involved are whether Respondent fined Jones for refusing to enter into a collective-bargaining agreement with the Respondent, and if so, whether such conduct vio- lated Section 8(b)(1XB) of the Act." At the hearing the parties were afforded full opportunity to introduce relevant evidence , to examine and cross-exam- ine witnesses, to argue orally on the record, and to submit briefs. Upon the entire record in this case , and from my observa- tion of the witnesses , and after due consideration of the briefs filed by General Counsel , Respondent , and the Charging Party , I hereby make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Robert Dale Jones d/b/a Aarctic Heating and Cooling Company, a sole proprietorship, with its place of business located at Springfield , Missouri,is engaged in the business of residential and commercial installation of sheet metal heating and cooling equipment . It annually in the operation of the Springfield facility purchase goods valued in excess of $50,000 from enterprises located in Missouri which in turn purchases those goods from enterprises located outside the State of Missouri. Respondent admits, and I find, that the Company is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. i All the dates referred to are in 1972, unless otherwise stated. 2 The original charge was filed on February 18 and a first amended charge was filed on March 17. 3 The complaint was amended at the hearing to include the name of Norbert Wagner. All three individuals were officers and admitted Agents of Respondent . Harold Tindell served as business manager , Ed Merritt as busi- ness representative , and Norbert Wagner as secretary. 4 The Charging Party contrary to the General Counsel further contended the Respondent unlawfully restrained and coerced Jones for not employing Respondent's members and attempted to force the Company to join an employer association. Inasmuch as these matters although raised in the charges were not included within the scope of the complaint the failure to which the Charging Party could have filed an appeal such issues will not be considered. 203 NLRB No. 168 LOCAL 146 SHEET METAL WORKERS 1091 II THE LABOR ORGANIZATION INVOLVED Respondent admits , and I find that it is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Robert Dale Jones , who had been a member of Local 303, Sheet Metal Workers International Association , AFL-CIO, located at Gary, Indiana , since 1965, transferred his mem- bership to Respondent about May 1970 . The parties stipu- lated Jones was a dues -paying member of Respondent from January through September 1971 and that Respondent's records reflected he was suspended from membership on November 30, 1971.5 Unable to obtain regular work through the Respondent, Jones, as the sole owner , opened his own business in De- cember 1970 under the name of Robert Dale Jones d/b/a Aarctic Heating and Cooling Company , performing the in- stallation and service of heating , air-conditioning , ventila- tion, and sheet metal work. Jones credibly testified that prior and subsequent to opening his business he attempted without success to obtain a withdrawal card from membership in Respondent but was informed by Business Manager Edward Merritt he wasn't eligible . Merritt acknowledged , as discussed infra, he had informed Jones he couldn't have a withdrawal card unless he ran a union shop. The Company hired its first one or two employees in January 1971 and the number of employees steadily in- creased thereafter until that spring when a normal comple- ment of between 8 to 12 employees was reached . Besides its employees the Company employed one foreman who at the time of the hearing had been employed for approximately a year . Prior thereto Jones himself had performed such supervision . The evidence does not establish and no conten- tion was made that any of the Company's employees were ever members of Respondent. Respondent 's constitution provided in pertinent parts, as follows: Article 16 SEC. 6(c). Owners or Partners in Business. Good standing members who become owners , partners, agents , contractors , or subcontractors or who become directly or indirectly financially interested or involved in the management of a sheet metal shop or business as officers or otherwise shall be eligible to receive and retain withdrawal cards only if, (1) such sheet metal shop or business in which they are interested continues to operate under a Union Agreement with the local 5 The stipulation conflicts with the Charging Party's contention raised in its brief that Jones' membership had already terminated automatically under the provisions of Respondent's constitution and ritual (herein referred to as the constitution). union in whose jurisdiction such business is conducted, (2) not more than one person connected or associated with the management of the sheet metal shop or busi- ness in which they are interested, whether such persons hold withdrawal cards or not, works with the tools of the trade and then in the shop only, and (3) at least one member of this Association is employed on all work covered by Article One (1), Section 5 of this Constitu- tion. SEC. 6(d). Penalties. Any member who fails or re- fuses to request and receive a withdrawal card in ac- cordance with the provisions of this Constitution within thirty (30) days from the change of his employ- ment status, as provided herein, shall not be permitted to pay any further dues, fees or taxes to his local union or this Association and at the expiration of two (2) months from the date of his change of employment status shall automatically forfeit his membership and all of the rights and' privileges in connection therewith. In the event the holder of a withdrawal card fails to refuses to comply with the conditions provided in this Section, the local union issuing the withdrawal card or the General Secretary-Treasurer, shall cancel same and no privileges and benefits in connection therewith shall be reinstated except upon re-initiation in accordance with the provisions of this Constitution. Any former member holding a withdrawal card, who as the em- ployer fails or as the person responsible for the failure of an employer, to fulfill his financial obligations to fringe benefit funds or to his employees, shall forfeit his withdrawal card and the same shall be cancelled. Article 17 SEC. 1(a). Except as otherwise provided in this Constitution, any officer or member of this Association or any local union or council thereof may, after trial and conviction on any of the following offenses, be reprimanded, fined, removed from office, suspended or expelled as the evidence may warrant. SEC. 1(b). Refusal or failure to perform any duty or obligation imposed by this Constitution, the policies of this Association, the valid decision of any officer or officers thereof or the valid decisions of the General Executive Council or Convention or the valid rules and regulations of any local union or council. SEC. 1(e). Violating the established union collective bargaining agreements and rules and regulations of any local union relating to rates of pay, ales and working conditions. SEC. 1(h). Agreeing to perform or performing any sheet metal work covered by the claimed jurisdiction of this Association on a piecework basis, a lump sum basis, or any other basis except that provided and spe- cified by this Constitution and by the established and recognized union agreements, rules and regulations of affiliated local unions and councils governing the em- ployment of members. SEC. 1(m). Engaging in any conduct which is detri- mental to the best interests of this Association or any subordinate unit thereof or which will bring said unions into disrepute. 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Respondent's Demands That the Company Sign an Agreement Between January and October 1971, several conversa- tions occurred between Jones and Respondent 's Business Manager Harold Tindell and Business Representative Ed- ward Merritt. Jones testified the first conversation occurred in January 1971, when Business Representative Merritt visited his shop, presented him with some proposed collective-bargain- ing agreements and requested him to sign them . Among the proposed agreements presented , two were entitled "Stan- dard Form of Union Agreement" and were to be executed individually between the Respondent and an Employer. The third document of which the first page was missing and, according to Jones he was not supposed to sign, appeared to be an addendum to a collective-bargaining agreement and contained blank signature lines for various employers under the Sheet Metal Contractors of Springfield and Vicinity, of which organization the Company was not a member. Jones refused to sign claiming he couldn't afford to since he was just starting his own business . On two other occasions, one occurring in April 1971, Business Representative Merritt returned to the shop and renewed his request for Jones to sign the agreements, which he refused . On one occasion Merritt offered to negotiate an agreement different than the standard agreements by initially including a lower scale for residential work until the Company got started. Jones testified that, a few days prior to October 26, 1971, both Business Representative Merritt and Business Manag- er Tindell came to the shop and again asked him to sign the agreements which he refused. On October 26, 1971, pur- suant to Tindell 's request, Jones went to Respondent's of- fice, at which time Merritt and Tindell repeated their request for him to sign the agreements . When he refused, they told him to return approximately a week later at which time they wanted his answer that he would sign the agree- ments or else. Business Representative Merritt acknowledged on sever- al occasions beginning around February 1971 he had visited Jones for the purpose of discussing a collective-bargaining agreement between Jones and the Respondent, and at Jones' request had left copies of Respondent's proposed agreements with him . Merritt's versions of the conversations were that he had asked Jones if he knew what the constitu- tion provided, whereupon Jones replied he was familiar with it. When Jones requested a withdrawal card he informed him that under the circumstances he couldn 't give it to him because the only way he could have a withdrawal card would be to have a union agreement . Jones' response was he couldn't be a union contractor because his pay scale was only $1.60-$2.25 an hour. Merritt also informed Jones the only way he could keep his membership was to comply with article 16, Sec. 6 of the constitution by having a union agreement. Merritt further admitted telling Jones in order to hold his union status or to have a withdrawal card he would have to sign a union agreement. Merritt testified that his last conversation with Jones oc- curred around October 1, 1971, when Jones came to Respondent's office and informed him and Tindell he want- ed to talk about the agreement and asked for another copy which they gave him. Jones informed them he couldn't go into commercial work but was interested in residential work, whereupon they talked about a residential agreement. According to Merritt, Jones informed them he would get back in touch with them. While Merritt first denied and later stated he could not recall ever specifically asking Jones to sign an agreement with Respondent, I credit Jones' versions of these conversa- tions and find that Merritt and Tindell did on more than one occasion request Jones to sign an agreement with Re- spondent and finally gave him an ultimatum to do so or else. Merritt, who contradicted his own testimony on several occasions and whose denials I do not find plausible when considered in light of his other testimony, did not impress me as a credible witness. Tindell did not testify. C. Fine Imposed Upon Jones Despite the ultimatum given to Jones by Business Manag- er Tindell and Business Representative Merritt to inform them he would sign an agreement with Respondent or else, Jones did not either comply or give them an answer. Thereafter on November 4, 1971, Tindell and Merritt filed charges with Respondent against Jones, charging him with violating article 16, sections 6(c) and (d), and article 17, sections 1(b), (3), (h), and (m), of the constitution, which provisions are set forth supra. According to Merritt, the reasons they filed the charges were because they knew Jones wasn't coming back and he couldn't keep his membership unless he signed an agree- ment . A copy of the charges received by Jones informing him of the trial to be held, recount, in part, that both Merritt and Tindell had visited Jones who had opened his shop for the purposes of discussing a union agreement and, at the last meeting held at Respondent's office on October 28, Jones had made an appointment to give his answer on November 3, but had not replied. On November 22, a trial committee comprised of Respondent's members heard the charges against Jones, who did not appear, found Jones guilty as charged, and recommended that he be fined $150 on each of the six counts charged for a total fine of $900. The minutes of the trial reflect in part that Jones was to give Respondent an answer on November 3, 1971, about straightening up the shop and running it union but that he did not appear. On December 22, 1971, Respondent's Secretary Norbert Wagner informed Jones by letter of the trial committee's recommendations and fine which the Respondent had vot- ed to accept, and further advised him of his appeal proce- dures. Jones, although suspended from membership, but not expelled, elected not to appeal but instead filed the charges in the instant case. D. Analysis and Conclusions The General Counsel contends, while the Respondent denies, that the Respondent violated Section 8(b)(1)(B) of the Act 6 by restraining and coercing Robert Dale Jones 6 Sec 8 (b)(1)(B) of the Act provides It shall be an unfair labor practice for a labor organization or its LOCAL 146 SHEET METAL WORKERS 1093 d/b/a Aarctic Heating and Cooling Company in the selec- tion of his representatives for the purposes of collective bargaining, or the adjustment of grievances by fining Jones because he refused to enter into a collective-bargaining agreement with the Respondent. Having already found supra that one of the reasons Jones was fined was because of his refusal to enter into a collec- tive-bargaining agreement with Respondent, the remaining issue to be decided is whether such conduct violated Section 8(b)(1)(B) of the Act. Section 8(b)(1)(B) of the Act proscribes restraint or coer- cion by a union of an employer in his selection of represen- tatives for the purposes of collective bargaining or the adjustment of grievances. Both the wording of the statute and its legislative history indicate that Congress, by en- acting this section, sought to safeguard the right of employ- ers to freely select their own agents for purposes of collective bargaining. Lumber and Sawmill Workers, Local No. 2647 (Cheney California Lumber Company), 130 NLRB 235, modification denied 319 F.2d 375 (C.A. 9, 1963). The purpose of the section is to assure an employer that its selected collective-bargaining representatives will be com- pletely faithful to its desires rather than to those of a union. Local Union No. 2150, International Brotherhood of Electrical Workers, AFL-CIO (Wisconsin Electric Power Company), 192 NLRB 77. The Board in the Wisconsin Electric Power case in discussing the import of this section adopted in the Toledo Blade 7 case stated as follows: The Board's decision in the San Francisco Mailers case, underscores the . . . import of Section 8(b)(1)(B) as a general prohibition of a union's disciplining supervisor- members for their conduct in the course of representing the interests of their employers. As the Board held, such discipline by a union, even though the employer may have consented to the compulsory union member- ship of the supervisor under a union-security clause, is an unwarranted "interference with [the] employer's control over its own representatives ," and deprives the employer of the undivided loyalty of the supervisor to which it is entitled. Violations of this section may be found where no bargain- ing relationship exists between an employer and a union. New Mexico District Council of Carpenters and Joiners of America (A. S. Horner, Inc.), 177 NLRB 500, enfd.454 F.2d 1116 (C.A. 10, 1972). The General Counsel in contending the Respondent by its conduct violated Section 8(b)(1)(B) of the Act in the instant case urges that the rationale of the decisions in San Francisco-Oakland Mailers Union No. 18, International Ty- pographical Union (Northwest Publications, Inc.),8 referred to supra, and Dallas Mailers Union, Local No. 143 and Interna- tional Mailers Union (Dow Jones Company, Inc.),' applies arguing the fine amounted to illegal restraint of Jones in the selection of a representative for the purposes of collective bargaining or adjustment of grievances and was intended to coerce Jones with respect to his bargaining position in that "He would be most unlikely to select any union member to represent him, as it has been made abundantly clear to him, by the fine imposed on him, that such representative would be liable to the same penalty as he suffered unless such representative acceded to the union's position in a bargain- ing or grievance adjustment situation." Both cases cited, as distinguished from the instant case, where the conduct was directed solely to the employer himself, involved discipli- nary action taken by unions against employers' supervisors either by fine or expulsion arising out of the performances of their supervisory duties in administering the collective- bargaining agreements between the unions and the employ- ers. The Board in the San Francisco Mailers' case stated: "In enacting Section 8(b)(1)(B) Congress sought to prevent the very evil involved herein-union interference with an employer's control over its own representatives." In the Dal- las Mailers case the Board found an additional effect of a supervisor's expulsion restrained and coerced the employer within the meaning of Section 8(b)(1)(B) by limiting its "right at any time to make and rely upon a selection of representatives from any uncoerced group of such supervi- sors whose loyalty to [it] has not been prejudiced." Applying the above principles, neither the cases cited by the General Counsel or the Charging Party, not the ration- ale underlying such cases establish a basis for finding a violation of Section 8(b)(1)(B) of the Act in the instant case. Here the only object established by the evidence for fining Jones was to force him to enter into a collective-bargaining agreement with the Respondent which under Respondent's constitution he had obligated himself to do in the event he went into this type of business for himself.1° Such conduct directed to the employer himself rather than to his supervi- sor would not tend to subvert any loyalty between the Com- pany and his supervisors. 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 selec- tion of his representatives who were members of the Re- spondent 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 ob- taining a collective-bargaining agreement, but presumes without any valid foundation that the Respondent would thereafter discipline supervisors employed 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 purpose of obtaining those objectives clearly proscribed by the Act, nor would such contemplated conduct be a reason- able forseeable consequence of the initial conduct. The Board has held that a union, by picketing an employer for an object of obtaining a collective-bargaining agreement, agents-(I ) to restrain or coerce . . (B) an employer in the selection of his representative for the purposes of collective bargaining or the adjustment of grievances. . 7 Toledo Locals Nos 15-P and 272 of the Lithographers and Photo-Engravers International Union AFL-CIO (The Toledo Blade Company, Inc), 175 NLRB 1072, enfd 437 F 2d 55 (C.A. 6, 1971). 8 172 NLRB 2173. 9 181 NLRB 286, enfd . 445 F.2d 730 (C.A.D.C, 1971) 10 Whether such conduct may have violated some other section of the Act is not an issue before me. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not violate Section 8(b)(I)(B) of the Act. I t and I per- ceive no logical distinction whereby coercing an employer through his union membership by fining him for the same objective would thereby constitute such a violation. In the cases cited as in the instant case forms of coercion, i.e., picketing or fines, were resorted to against employers for the same objective. Thus, under these circumstances, Jones would not be restrained or coerced in his future selec- tion of representatives within the meaning of Section 8(b)(IXB) of the Act. Accordingly, General Counsel has not sustained his burden of proving the violations alleged in the complaint, as amended. ing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 146, Sheet Metal Workers International Associ- ation, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, and Harold Tindell, Edward Merritt, and Norbert Wagner are its Agents. 3. The evidence does not prove that the Respondent or its Agents Harold Tindell, Edward Merritt, or Norbert Wagner violated Section 8(b)(l)(B) of the Act as alleged. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I hereby issue the following recommended: CONCLUSIONS OF LAW 1. Robert Dale Jones d/b/a Aarctic Heating and Cool- 11 See Morant Brothers Beverages Co, 91 NLRB 409, enfd in part and remanded in part 190 F.2d 576 (C A. 7, 1951), supplemental decision, 91 NLRB 1448, enfd . 204 F 2d 529 (C.A. 7, 1953), cert denied 346 U S. 909, rehearing denied 346 U.S 940; International Hod Carriers, Building and Com- mon Laborers Union of America, Local No 1082 (E L Boggs Plastering Company), 150 NLRB 158, enfd . 384 F 2d 55 (C.A 9,1%7), cert . denied 390 U.S. 920 (1968) ORDER12 The complaint herein, including the amendments, is dis- missed in its entirety. 12 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.