Local No. 1, Elevator Constructors

National Labor Relations Board - Board Decisions

May 24, 1974

210 N.L.R.B. 903 (N.L.R.B. 1974)

LOCAL NO. 1, ELEVATOR CONSTRUCTORS 903
Local No. 1, International Union of Elevator Con-
structors, AFL-CIO (Westinghouse Electric Cor-
poration) and William J. Wahigren, Jr. Case
2-CB-5456
May 24, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On February 27, 1974, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions 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
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
performing struck work during a strike. Wahigren
chose to cross the picket line to perform rank-and-
file work. Since Wahlgren did not yet possess a
withdrawal card, the Union correctly considered him
a member and fined him. In performing unit work,
Wahigren was not in any way acting as an employer
representative in the performance of a function
statutorily protected from union discipline.
Accordingly, for the reasons stated in my dissents
and the court decisions cited above, I would not find
that the Union's actions violated Section 8(b)(1)(B)
of the Act, and I would dismiss the complaint.
i Although the Administrative Law Judge recommended that Respon-
dent be ordered to cancel the expulsion of Wahigren from its membership,
we note that in the Remedy section the Administrative Law Judge
inadvertently recommended that Respondent reinstate Wahlgren without
requiring him to pay a reinitiation fee As we believe that Wahigren should
be reinstated to his withdrawal status, but not to full membership status, we
adopt the recommended Order of the Administrative Law Judge but not the
aforementioned recommendation
' I note that the Court of Appeals for the District of Columbia Circuit
denied enforcement in Illinois Bell for basically the same reasons as stated
in my dissent in that case (487 F.2d 1143 (C A D C, 1973)) The Courts of
Appeals for the Ninth and Third Circuits have also denied enforcements of
Board orders which found violations of Section 8(b)(I)(B) based on the
Union's disciplining member-supervisors for crossing a lawful economic
picket line (NLRB v San Francisco Typographical Union No 21
[California Newspapers, Inc d/b/a San Rafael Independent Journal], 486
F 2d 1347 (C A 9, 1973), Newspaper Guilt, Erie Newspaper Guild, Local 187,
AFL-CIO [Times Publishing Company] v N LR B, 489 F 2d 416 (C.A 3,
1973))
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, Local No. 1, Interna-
tional Union of Elevator Constructors, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the said recommended Order.
MEMBER FANNING, dissenting:
Once again we are confronted with a situation
wherein a union has fined a supervisor-member for
performance of duties wholly unrelated to his
supervisory function. Although a majority of my
colleagues again has found that by this action a
union coerces and restrains "an employer in selection
of his representatives for the purposes of collective
bargaining on the adjustment of grievances," I
adhere to my position as stated in my dissenting
opinions in IBEW, Local 134 (Illinois Bell Telephone
Company), 192 NLRB 85, and Local Union No. 2150,
IBEW, AFL-CIO (Wisconsin Electric Power Compa-
ny), 192 NLRB 77.2
In this case, I fail to understand how the Employer
is restrained or coerced in selecting its bargaining or
grievance adjustment representatives when the fine
was not imposed upon Wahlgren because of his
performance of duties related to such functions, but
was imposed because of his violation of an unrelated
union rule proscribing members of the Union from
210 NLRB No. 158
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
is an unfair labor practice case brought under the
provisions of Section 10(b) of the National Labor Rela-
tions Act, herein called the Act. 29 U.S.C. 160(b). The
complaint, issued on November 8, 1973, by the General
Counsel of the National Labor Relations Board, herein
called the Board, through the Acting Regional Director of
the Second Region (New York, New York), names Local
No. 1, International Union of Elevator Constructors,
AFL-CIO, herein called Local No. I or the Union, as
Respondent. That complaint is based on a charge filed on
September 20, 1973, by William J. Wahlgren, Jr., the
Charging Party.'
In substance the complaint avers that Respondent
transgressed Section 8(b)(1)(B), and that such conduct
affects commerce within the meaning of Section 2(6) and
(7) of the Act. Respondent has answered admitting some of
the allegations of the complaint but denying that it
committed any unfair labor practices.
Pursuant to due notice this case came on to be heard,
and was tried before me at New York, New York, on
December 5, 1973. All parties were represented at and
participated in the trial, and had full opportunity to adduce
evidence , examine and cross -examine witnesses , file briefs,
and argue orally . Short oral arguments were presented at
i Westinghouse Electric Corporation , herein called Westinghouse, was
permitted to intervene at the trial as a party in interest
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the close of the case. A brief has also been received from
the Respondent.
This case presents the issue of whether the Union
properly expelled Wahlgren from membership and also
fined him, a supervisor for Westinghouse, because he
performed struck work for Westinghouse, during Respon-
dent's strike there. Wahlgren had applied to withdraw his
membership in the Union before said strike began but such
withdrawal was not approved by the Union until a month
and 7 days after it was given to the Union.
Upon the entire record in this case, including the facts
stipulated by the parties, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Westinghouse, a Pennsylvania corporation, has an office
in New York, New York, and a plant in Newark, New
Jersey. During the year preceding the complaint Westing-
house at its said plant sold products valued in excess of
$50,000 directly to states outside of New Jersey. I find that
Westinghouse is an employer within the meaning of
Section 2(2), and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jurisdiction
over this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 1, Respondent herein , is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
The facts recited in this section III are taken from
admissions in Respondent 's answer and the stipulation of
the parties.
Wahlgren has been employed by Westinghouse for
almost 20 years. Until 1972 he had been a member of
Respondent, Local No. 1. In February 1972, Westinghouse
made Wahlgren a temporary field superintendent and a
supervisor within the meaning of Section 2(11) of the Act.
The 15 employees he supervised are covered by a
collective-bargaining agreement between Westinghouse
and Local No. 1. At first he served a probationary period
as such supervisor. During his probationary period
Wahlgren remained a member in good standing of Local
No. 1 and was covered by the foregoing collective-
bargaining agreement.
In June 1972, Wahlgren completed his foregoing proba-
tionary term and became a permanent field superintend-
ent. Immediately thereafter he requested a withdrawal card
from Local No. 1. It was not issueC to him by the Union
until July 31, pursuant to sections 1 and 13 of article
XXVII of its constitution and bylaws. (See Resp. Exh. 2.
See also Resp . Exh. 3, articles 16 and 19.) About June 30,
1972, Local No. 1 commenced an economic strike against
Westinghouse and other employers. Although said strike
did not terminate until January 31, 1973, Wahlgren, along
with all the other field superintendents, worked during the
entire time it continued in effect . They performed
emergency repair services on elevators, normally the work
of the employees on strike.
On February 21, 1973, Wahlgren was advised by Local
No. 1 that charges (see G.C. Exh. 3) had been filed against
him for performing said work during the aforesaid strike
and was informed that on March 17 a hearing before the
Union's executive board would be held. (See G.C. Exh. 2.)
At said hearing, which was held on March 17, Wahlgren
contended orally and in writing that any action taken
against him would violate Section 8(b)(1)(B) of the Act.
(See G.C. Exh. 4.) Nevertheless Wahlgren was advised on
April 9 that he was expelled from the Union. In addition
(see G.C. Exh. 5) a fine of $2,000 was imposed on him, and
he was apprised he would have to pay a reinitiation fee of
$400 to be reinstated. Said $2,000 fine has not yet been
paid. Wahlgren appealed this decision to the Union's
International (see G.C. Exh. 5) but said appeal has not yet
been adjudicated. (See G.C. Exhs. 7 and 8.)
The contract between the Union and Westinghouse does
not include permanent field superintendents in its cover-
age. Also, it was stipulated that (a) field superintendents
are supervisors within the meaning of the Act, and (b) had
the power, as part of their job functions, to adjust
grievances. Section 1 of article XXVII of the Union's
constitution and bylaws (see Resp. Exh. 1), expressly
provides that "any member who advances his position in
the trade to District Superintendent . . . or any other
supervisory capacity . . . will be given a withdrawal card
within 6 months by the Executive Board ...."
B. Concluding Findings and Discussions
Notwithstanding the argument of the Union's very able
counsel that I follow certain court decisions upholding its
position, I am constrained to rule that I am bound by
Board decisions on the issue before me until such Board
adjudications are expressly rejected by the United States
Supreme Court, and that I may not disregard Board
decisions inconsistent with court decisions. Accordingly,
on the basis of Board adjudications expressly in point I
find that the Union's expelling Wahlgren from its member-
ship, levying a $2,000 fine on him, and requiring him to
pay a reinitiation fee of $400 to be reinstated to such
membership constitute "restraining or coercing . . . an
employer in the selection of his representatives for the
purposes of collective bargaining or the adjustment of
grievances." Such conduct falls within the ambit of Section
8(b)(1)(B) of the Act, and I so find.
Admittedly Wahlgren was vested with authority to adjust
grievances as a duly appointed representative of Westing-
house, i.e., as a permanent field superintendent. And I
further find that as such field superintendent, Wahlgren
crossed the Union's picket line during its strike at
Westinghouse and discharged the work of employees in the
unit for which the Union was the duly recognized
collective-bargaining representative.
In a very recent judgment the Board has reaffirmed its
principle "that penalizing supervisors for crossing a picket
line during a strike and performing the work of rank-and-
file employees is a violation of Section 8(b)(l)(B)."
International Union U.A. W. (Pitt Processing Co.) 208 NLRB
LOCAL NO. 1, ELEVATOR CONSTRUCTORS 905
No. 107 Cf. Erie Newspaper Guild [Times Publishing
Company] v. N.L.R.B., 489 F.2d 416 (C.A. 3, 1973). Such
disciplining of a supervisor "would be interference with the
performance of duties which an employer has the right to
expect from persons while they are acting in a supervisory
capacity."
Prior Board cases on this branch of the law have
announced the foregoing principle and have arrived at the
above result. Sheet Metal Workers Local 361 (Langston &
Co., Inc.), 195 NLRB 355; Local Union 2150, IBEW,
AFL-CIO (Wisconsin Electric Power Company), 192 NLRB
77, 78, and cases cited at 78; IBEW, AFL-CIO, Local 134
(Illinois Bell Telephone Company), 192 NLRB 85, 86; San
Francisco Typographical Union No. 21 International Typo-
graphical Union, AFL-CIO (California Newspapers, Inc.
d/b/a San Rafael Independent Journal), 193 NLRB 319;
Newspaper Guild, Erie Newspaper Guild, Local 187,
AFL-CIO (Times Publishing Company), 196 NLRB 1121;
Toledo Locals Nos. 15-P and 272 of the Lithographers and
Photo-Engravers International Union, AFL-CIO (Toledo
Blade Co), 175 NLRB 1072, enfd. 437 F.2d 55, 57 (C.A. 6,
1971). The Wisconsin Electric Power Company case, supra,
was enforced by the Court of Appeals for the Seventh
Circuit, 486 F.2d 602 (1973). On the other hand, the D.C.
Circuit Court of Appeals by a divided court (487 F.2d
1143, 1973) reversed the Board in the Illinois Bell Telephone
case, supra, and the Ninth Circuit Court of Appeals
likewise reversed the Board, in pertinent part, in the
California Newspapers case, supra, 486 F.2d 1347(1973).
While I recognize that such reversals have been relied on
by the Union, I must, and do, follow Board decisions not
consonant therewith until such Board adjudications have
been overturned by the Supreme Court. As recited above
Board decisions upon this branch of the law compel the
conclusion that the facts disclosed by the record herein
oblige me to rule that the Union has engaged in conduct
which transgresses Section 8(b)(1)(B) of the Act. See also
N.L.R.B. v New Mexico District Council of Carpenters, and
Joiners of America [A.S. Horner, Inc.], 454 F.2d 1116, 1118,
1120 (C.A. 10, 1972). Cf. Plumbing and Steamfitters Local
100, AFL-CIO, (The McCally Co.), 188 NLRB 951;
N.L.R B v. Local 361, Sheet Metal Workers, [Langston &
Co., Inc.], 477 F.2d 674, 677 (C.A. 5, 1973).
Finally, I am of the opinion, and rule, that the Union
may not defend levying a fine upon Wahlgren on the
ground that such action concerns internal union matters.
This is because Section 8(b)(1)(B) of the Act reaches
internal disciplinary measures which interfere with an
employer's freedom to select supervisory personnel. North-
west Publications, 172 NLRB 2173, 2173-74; California
Newspaper, Inc., 192 NLRB 523, enforcement denied 486
F.2d 1347 (C.A. 9, 1973). As the Sixth Circuit has said,
N. L R. B v. Allis Chalmers Mfg. Co., 388 U.S. 175 (1967),
does not call for a contrary result. See Toledo Blade case,
437 F.2d 55 at 57.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activity of Respondent set forth in section III,
above, found to constitute an unfair labor practice,
occurring in connection with the operations of Westing-
house described in section I, above, has a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States, and tends to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
As Respondent has been found to have engaged in an
unfair labor practice I shall recommend that it be ordered
to cease and desist therefrom and that it take specific
affirmative action, as set forth below, designed to effectu-
ate the policies of the Act.
In view of the finding that the Union unlawfully fined
Wahlgren, it will be ordered to cancel said fine and
expulsion and expunge from its records all reference to
such fine and the proceedings relating thereto. Also, the
Union will be ordered to reinstate Wahlgren without
requiring him to pay a reinitiation fee. Finally, it will be
recommended that the Union post appropriate notices.
Upon the facts unfolded by the record herein Respon-
dent's conduct towards Wahlgren does not in my opinion
demonstrate a general disregard of or hostility to the Act,
and I so find. Accordingly, I find that a broad remedial
order against the Union is not warranted. Instead, I find
that it will effect the policies of the Act to enjoin the Union
from repeating the type of unfair labor practice con-
demned by Section 8(b)(l)(B) of the Act as to any of
Westinghouse's supervisors.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Westinghouse is an employer within the meaning of
Section 2(2), and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. At all times material William J. Wahlgren, Jr., was
employed by Westinghouse as a field superintendent and
as such was a supervisor and a representative of Westing-
house for the purposes of adjusting grievances within the
meaning of Section 8(bXIXB) of the Act.
4. Wahlgren, as such supervisor and representative, is
one whom Westinghouse is entitled to select, and rely
upon, as its representative to adjust grievances within the
purview of Section 8(b)(1)(B) of the Act.
5. At all times material Wahlgren has been a member
of the Union.
6. By fining (but see Communication Workers v.
Jackson, 516 P.2d 529,) Wahlgren and expelling him from
its membership for obeying a lawful order of his employer
in the regular performance of his duties as a field
superintendent the Union restrained and coerced Westing-
house, his employer, in the selection of its representative
for the purposes of adjusting grievances.
7. By restraining and coercing Westinghouse in the
manner set forth in paragraph 6, above, the Union has
engaged in an unfair labor practice within the purview of
Section 8(bx1)(B) of the Act.
8. The foregoing unfair labor practice affects com-
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case , and pursuant to Section
8(b)(1)(B) of the Act, I hereby issue the following
recommended: I
ORDER
Respondent, its officers, agents, representatives, succes-
sors, and assigns, shall:
1. Cease and desist from fining, expelling, or otherwise
disciplining William J. Wahigren, Jr., or any other
supervisor of Westinghouse, as a member of Respondent,
for the conduct of any such member in performing work in
the employ of Westinghouse while such member is the
designated representative of Westinghouse for the purposes
of collective bargaining or the adjustment of grievances.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Rescind the fine assessed against, and cancel the
expulsion from its membership of, William J. Wahlgren,
Jr., on April 9, 1973, and expunge from its records all
reference to such fine and expulsion and the proceedings
relating thereto.
(b) Notify Wahigren and Westinghouse in writing that
Respondent has taken the action required by paragraph
2(a), above.
(c) Post at its business offices, meeting halls, and all
other places where notices to members are customarily
posted, copies of the attached notice marked "Appendix." 2
Copies of said notice, to be provided by the Regional
Director for Region 2, after being signed by a duly
authorized representative of Respondent, 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 members are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Furnish the Regional Director for Region 2 signed
copies of said notice for posting by Westinghouse, if
Westinghouse is willing, in places where notices to its
employees are customarily posted. Copies of said notice, to
be supplied by said Regional Director, after being signed
by a duly authorized representative of Respondent, shall
be forthwith returned to said Regional Director for
transmission by him to Westinghouse.
(e) Notify the Regional Director for Region 2, in writing,
within 20 days from receipt of this decision what steps have
been taken to comply herewith.
1 In the event no exceptions are filed as provided by Section 102.46 of
the Board's Rules and Regulations , the findings, conclusions, recommenda-
tions, and recommended Order herein shall, as provided in Section 102.48
,f said 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
2 In the event 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 fine, expel from membership, or
otherwise discipline William J. Wahigren, Jr., or any
other supervisor of Westinghouse Electric Corporation,
as a member of our Union, for the conduct of said
William J. Wahlgren, Jr., or any other such member in
performing work in the employ of Westinghouse while
such member is the designated representative of
Westinghouse for the purpose of collective bargaining
or the adjustment of grievances.
WE WILL expunge from all our records and files all
reference to the above mentioned fine and expulsion
from membership of WILLIAM J. WAHLGREN, JR., and
the proceedings resulting in such fine and expulsion.
LOCAL No. 1,
INTERNATIONAL UNION OF
ELEVATOR CONSTRUCTORS,
AFL-CIO
(Labor Organization)
Dated By
(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,
Federal Building, 36th Floor, 26 Federal Plaza, New York,
New York 10007, Telephone 212-264-0306.