Operating Engineers Local No. 9

National Labor Relations Board - Board Decisions

Sep 27, 1974

213 N.L.R.B. 679 (N.L.R.B. 1974)

OPERATING ENGINEERS LOCAL NO. 9 679
International Union of Operating Engineers, Local No.
9, AFL-CIO (Shelton Pipeline & Construction, Inc.)
and Robert Collins
International Union of Operating Engineers, Local No.
9, AFL-CIO and W. M. Grace Construction, Inc.
Cases 27-CB-772 and 27-CC-498
September 27, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS, AND PENELLO
On December 11, 1973, Administrative Law Judge
Maurice Alexandre issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions , a brief in support of exceptions, and a request
for permission to present oral argument.' The General
Counsel filed cross-exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions, brief, and
cross-exceptions and has decided to affirm the rul-
ings, findings, and conclusions of the Administrative
Law Judge and to adopt his recommended Order,
with the modifications indicated below.
The Respondent excepts to the finding by the Ad-
ministrative Law Judge that the Respondent violated
Section 8(b)(l)(B) of the Act by subjecting Collins to
intraunion proceedings and fining him for working
behind Trade Council's picket line. We find merit in
this exception.
Robert Collins, Shelton's superintendent, testified
that on March 8, 1973, Ferguson, Respondent's busi-
ness representative, stated in the presence of Hinkle,
an employee of Shelton, that Trades Council had a
dispute with Grace, that Trades Council planned to
place a picket at the site, that it was a "sanctioned"
picket, and that it should be recognized. Collins fur-
ther testified that he did not regard Ferguson's request
to recognize the picket line as directed to him. Fergu-
son testified that he told Collins, in the presence of
Hinkle, that Trades Council planned to picket the site
and that it was a "legal picket." He denied telling
Collins and Hinkle that they should recognize the
picket line. Hinkle corroborated Ferguson' s testimo-
ny. The Administrative Law Judge credited the testi-
mony of Collins.
During picketing at the site by Trades Council,
Robert Collins, Shelton's superintendent, crossed the
picket line and operated a piece of equipment. He had
previously operated such equipment during periods
1 Respondent's request for oral argument is hereby denied since the record,
the exceptions, brief, and cross-exceptions adequately present the issues and
positions of the parties.
when there was a shortage of manpower. On March
29, 1973, employee Hinkle filed an intraunion charge
against Collins, accusing him of crossing Trades
Council's picket line and working at the site. By letter
dated March 30, 1973, Respondent notified Collins of
the charge. By letter dated June 13, 1973, Respondent
notified Collins that he would be tried on July 13,
1973. Collins was found guilty, and was fined $300.
Stan Shelton was aware of the foregoing events.
The General Counsel contends that by its letters of
March 30, 1973, and June 13, 1973, and by fining
Collins because he worked behind a picket line, Re-
spondent violated Section 8(b)(1)(B), which provides
that it shall be an unfair labor practice for a union "to
restrain or coerce . . . an employee in the election of
his representative for the `purpose of collective bar-
gaining or the adjustment of greivances."'
We do not agree that the Respondent violated Sec-
tion 8(b)(1)(B) of the Act. Collins was one of the two
superintendents at Shelton; he reported directly to
Shelton's president; he was Shelton's representative
for the purpose of resolving disputes arising under the
collective-bargaining agreement with Respondent; he
was the person designated by Shelton to receive em-
ployee complaints; he represented Shelton at a hear-
ing before the Iowa Employment Security
Commission in a matter involving unemployment
compensation for a former employee; and Collins met
with Roderick, one of Respondent's business repre-
sentatives, and adjusted a paycheck problem involv-
ing an employee. We agree that Collins was a
representative selected by Shelton "for the purposes
of . . . the adjustment of grievances."
The Respondent's constitution provides that mem-
bers are subject to fines and expulsion for working
contrary to a declared strike. Sandidge, Respondent's
business agent and treasurer, testified that a member
commits a violation of the constitution if he crosses a
"legal" picket line. The Respondent fined Robert Col-
lins for crossing the picket line at the site.
The precise issue involved herein has recently been
resolved by the United States Supreme Court in Flori-
da Power & Light Co. v. International Brotherhood of
Electrical Workers, Locals 641, 622, 759, 820 and 1263;
N.L.R.B. v. International Brotherhood of Electrical
Workers, AFL-CIO, et al., 417 U.S. 790 (1974). The
Supreme Court decided in those cases that the unions
did not violate Section 8(b)(1)(B) of the Act when they
disciplined supervisor-members for crossing picket
lines and performing rank-and-file struck work dur-
ing a lawful economic strike against the employer.
The Court held that the union's discipline of supervi-
sor-members can violate Section 8(b)(1)(B) only when
it adversely may affect their conduct in performing
the duties of, and acting in the capacity of, grievance
213 NLRB No. 92
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adjusters or collective bargainers on behalf of the em-
ployer. Also, the Court noted in the decision that
Congress addressed the problem of a supervisor's loy-
alty to an employer not through Section 8(b)(1)(B),
but instead through Sections 2(3), 2(11), and 14(a),
which permit the employer to refuse to hire union
members as supervisors, to discharge supervisors be-
cause of union activities or membership, and to refuse
to engage in collective bargaining with them. In the
instant case, Superintendent Collins was not engaged
in performing the duties of, and acting in the capacity
of, grievance adjuster or collective bargainer on be-
half of the Employer when he crossed the picket line
and performed struck work.
The conflict-of-loyalties problem which arises in
the situation where supervisor-members are faced
with performing rank-and-file struck work can be
dealt with in several ways. The supervisor-member is
of course not bound to retain his union membership
absent a union-security clause, and if, for whatever
reason, he chooses to resign from the union, thereby
relinquishing his union benefits, he could no longer be
disciplined by the union for working during a strike.
The Court noted that Congress' solution was essen-
tially one of providing the employer with an option.
On the one hand, he is at liberty to demand absolute
loyalty from his supervisory personnel by insisting, on
pain of discharge, that they neither participate in, nor
retain membership in, a labor union. Alternatively, an
employer who wishes to do so can permit his supervi-
sors to join or retain their membership in labor
unions, resolving such conflicts as arise through the
traditional procedures of collective bargaining. But it
is quite apparent, given the statutory language and the
particular concerns that the legislative history shows
were what motivated Congress to enact Section
8(b)(l)(B), that it did not intend to make that provi-
sion any part of the solution to the generalized prob-
lems of supervisor union member conflicts of
loyalties.
For the above reasons, we hold that the Respon-
dent Union did not violate Section 8(b)(1)(B) of the
Act when it disciplined its supervisor-member for per-
forming rank-and-file struck work. Accordingly, we
shall modify the Administrative Law Judge's recom-
mended Order and notice.
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, as modified
below, and hereby orders that the Respondent, Inter-
national Union of Operating Engineers, Local No. 9,
AFL-CIO, Denver, Colorado, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, as so modified:
1. Delete paragraphs A, 2 and 3.
2. Delete paragraphs B, 1 and 2 and renumber the
subsequent paragraphs accordingly.
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
CHAIRMAN MILLER, dissenting in part:
I agree with my colleagues that the recent Supreme
Court decision in Florida Power & Light Co. v. Inter-
national Brotherhood of Electrical Workers, et al., su-
pra, precludes a finding that the fining of supervisors
for crossing picket lines constitutes an independent
violation of Section 8(b)(1)(B) of the Act.
But, where the fining of supervisors or employees is
done in furtherance of a course of conduct found to
have been violative of Section 8(b)(4)(i)(B), I would
grant a remedy designed to restore the status quo
which would have prevailed had not the Union acted
illegally. When a supervisor (or a rank-and- file em-
ployee) is the innocent victim of the Union's unlawful
conduct, as was Collins here, I would order the fine
rescinded and any sums paid toward such fine refund-
ed with interest. I would also include a cease-and-
desist order against any repetition of the fining of
members, including supervisors, for crossing picket
lines established in pursuit of like unlawful objectives
in the future.
In fact, virtually all of the order recommended by
the Administrative Law Judge here as a remedy for
the 8(b)(1)(B) violation is, in my view, equally applica-
ble as a remedy for the 8(b)(4)(i)(B) violation, once it
is recognized that the punitive action directed at Col-
lins was part and parcel of the Respondent's 8(b)(4)
course of conduct, as well as constituting what we
have, prior to Florida Power, found to be an indepen-
dent violation of another section of the Act.
Although we are now precluded from finding such
an independent violation, we ought not blind our-
selves to the interrelationship between the fine and the
unlawful 8(b)(4) conduct nor be too swift to narrow
our remedy without considering that interrelation-
ship.
For these reasons I dissent from the drastic modifi-
cations of the remedy which have been made by my
colleagues herein.
OPERATING ENGINEERS LOCAL NO. 9 681
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any individ-
ual employed by Shelton Pipeline & Construc-
tion, Inc., or any other person engaged in
commerce, to refuse in the course of his employ-
ment to perform any services, with an object of
forcing or requiring Shelton or any other employ-
er to cease doing business with W. M. Grace
Construction, Inc.
INTERNATIONAL UNION OF
OPERATING ENGINEERS, Lo-
CAL No. 9, 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 compli-
ance with its provisions may be directed to the
Board's Office, U.S. Custom House, Room 260,
721-19th Street, Denver Colorado 80202, Telephone
303-837-3551.
DECISION
MAURICE ALEXANDRE, Administrative Law Judge: This
case was tried before me in Denver, Colorado, on May 16
and 17, and October 2 and 3, 1973, upon complaints issued
on April 10 and on August 20, 1973.' The complaint in Case
27-CC-498, which was amended on May 4, 1973, alleged
that Respondent had violated Section 8(b)(4)(B) of the Na-
tional Labor Relations Act, as amended, by conduct direct-
ed at Shelton Pipeline & Construction, Inc., a neutral
employer (hereafter referred to as Shelton), in order to help
Colorado Building and Construction Trades Council (here-
after called Trades Council) in its dispute with W. M.
Grace Construction, Inc. (hereafter referred to as Grace) 2
The complaint in Case 27-CB-772 alleged that Respondent
had violated Section 8(b)(1)(B) of the Act by levying a fine
1 On August 27, 1973, pursuant to Respondent 's unopposed motion, I
reopened the record and consolidated the two complaints herein.
2 That complaint was based upon an original and an amended charge filed
on March 13 and 20, 1973, by Grace.
and engaging in certain additional punitive conduct against
one Robert Collins, employed as superintendent by Shelton,
because Collins had crossed and worked behind a picket
line established by Trades Council.3 In its answers to the
two complaints, Respondent denied commission of the un-
fair labor practices alleged.
Upon the entire record, my observation of the witnesses,
and the briefs filed by the General Counsel and by the
Respondent, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The record establishes the following facts. Grace is a
Missouri corporation engaged in the construction industry
as a general contractor and maintains a place of business in
Denver, Colorado. It has been engaged as a general contrac-
tor in the construction of a building at 790 East 104th Ave-
nue, Thornton, Colorado (herein called the site). Grace's
average gross sales amount to between 10 and 12 million
dollars a year. During 1973, Grace purchased steel for use
at the site valued in excess of $100,000 from a corporation
in Nebraska. Over half the steel was manufactured in that
State and shipped to the site.
Shelton is a Colorado corporation with its principal office
and place of business in Denver. It has been engaged as a
contractor in the construction industry. At all times materi-
al, Shelton was a subcontractor of Grace, and the consider-
ation agreed on by the parties to the subcontract was
$30,472. During 1973, Shelton performed services valued in
excess of $50,000 for Mead and Mount Corporation, a Col-
orado corporation. The latter corporation annually pur-
chases and receives goods and materials valued in excess of
$50,000 from places outside the State of Colorado.
I find that Grace and Shelton are employers engaged in
commerce within the meaning of the Act.4
II. THE UNFAIR LABOR PRACTICES
A. The 8(b)(4) Allegations
It is undisputed that at all times material, Trades Council
had a labor dispute with Grace; Trades Council picketed
Grace at the site on March 8, 9, and 12-16, 1973; Shelton
was a subcontractor of Grace at the Site; Shelton was party
to a collective-bargaining agreement with Respondent;
Shelton employed members of Respondent at the site; and
neither Trades Council nor Respondent had a primary dis-
pute with Shelton. Thus, Grace was the primary employer,
and Shelton was a neutral employer.
The General Counsel contends that Respondent engaged
in certain conduct which violated Section 8(b)(4)(B) of the
Act. The evidence relating to such conduct is as follows:
1. Robert Collins, Shelton's superintendent, testified that
on March 8 Ferguson, Respondent's business representa-
3 That complaint was based upon a charge filed by Robert Collins on June
26, 1973.
1 also find that Respondent and Trades Council are labor organizations
within the meaning of the Act.
5 All dates referred to hereafter relate to 1973 unless otherwise stated.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive, stated in the presence of Hinkle, an employee of Shel-
ton, that Trades Council had a dispute with Grace, that
Trades Council planned to place a picket at the site, that it
was a "sanctioned" picket, and that it should be recognized.
Collins further testified that he did not regard Ferguson's
request to recognize the picket line as directed to him. Fer-
guson testified that he told Collins, in the presence of Hin-
kle, that Trades Council planned to picket the site and that
it was a "legal picket." He denied telling Collins and Hinkle
that they should recognize the picket line. Hinkle corrobo-
rated Ferguson's testimony.
I credit Collins. If Ferguson did not want Hinkle to re-
spect the picket line, there would have been no point in
telling him that the picket line was either sanctioned or
legal. Ferguson's explanation is that it is his duty to tell
members about pickets, and that they then have the option
to respect or cross the line. This explanation is not persua-
sive. Respondent's constitution provides that members are
subject to fines and expulsion for working contrary to a
declared strike. Sandidge, Respondent's business agent and
treasurer, testified that a member commits a violation of the
constitution if he crosses a "legal" picket line. He further
testified that two members had been fined for crossing the
picket line of another labor organization. In addition, as
noted below, Respondent fined Robert Collins for crossing
the picket line at the site.
In view of this evidence, it strains credulity for Respon-
dent to assert that its members had a real choice. Moreover,
there is no evidence either that Hinkle requested advice
from Ferguson, or that the latter told Hinkle that he had an
option. So far as the record shows, Ferguson volunteered
information to Hinkle-a fact which suggests that Ferguson
gave Hinkle a signal. Even assuming that Ferguson told
Hinkle that the picket was merely "legal," i .e., that he had
a contractual right to refuse to cross the line, such gratuitous
advice unaccompanied by the further advice that he had the
option of crossing the line constitutes strong evidence that
the signal indicated a desire that Hinkle should respect the
picket line. In addition, I was impressed with the willingness
of Collins, a witness for the General Counsel, to testify to
facts adverse to the latter, i.e., that he did not regard
Ferguson's remarks as being directed to him. Such willing-
ness is strongly indicative of reliability in a witness.
Collins further testified that on March 12, he telephoned
Wolf, Respondent's president, and expressed concern be-
cause Shelton employees who were members of Respondent
wished to respect the picket line at the site; he further testi-
fied that Wolf stated that if Shelton would remove equip-
ment from the site for 4 or 5 days, Trades Council could
bring enough pressure on Grace to force the latter to sign
a contract with Trades Council. Wolf denied the statement
attributed to him. He testified that he merely suggested that
if Collins was upset about working at the site, he should go
to work at a different Shelton job. Between Collins and
Wolf, I am inclined to credit Collins, who appeared to give
a more forthright and persuasive account of the conversa-
tion. Moreover, Wolf was one of Respondent's representa-
tives to Trades Council.' It is thus logical that Wolf would
6 Sandidge , Respondent 's business agent and treasurer , was also a repre-
sentative to Trades Council.
wish to help Trades Council.
I find that the record establishes that Respondent,
through Ferguson, induced or encouraged Hinkle to refuse
to perform services for Shelton, a neutral, in order to force
the latter to cease doing business with Grace, the primary
employer, and thereby force Grace to sign a collective-
bargaining agreement with Trades Council. Such conduct,
as alleged in paragraph X(b) of the complaint, violated
Section 8(b)(4)(i)(B)?
2. Stan Shelton, the president of Shelton, testified that on
March 12 he called Respondent's dispatcher, Duran, and
asked the whereabouts of the three equipment operators
who were to be dispatched to the site that day and that
Duran replied that he could not dispatch operators to the
site as long as there were pickets on the job. Duran denied
that he had any authority to make the statement. I credit
Duran. He was a more impressive witness than Stan Shel-
ton. Moreover, the record shows that Duran had in fact
given three operators dispatch slips to work for Shelton at
the site on March 12. I therefore find that Duran did not tell
Stan Shelton that he could not dispatch operators to the site
while it was being picketed,8 and that the record fails to
establish the allegations in paragraph X(c) of the complaint.
3. On March 12, Stan Shelton asked Sandidge why Re-
spondent had not dispatched operators to the site. Sandidge
admittedly told Stan Shelton that Respondent would dis-
patch men to any employer who had a collective-bargaining
agreement with Respondent; but that where the job was
picketed, it followed the practice of informing those dis-
patched regarding the picketing; and that the dispatchee
could then exercise the option of accepting or refusing the
referral. Sandidge further testified that he told Stan Shelton
that Respondent would refer anyone who wanted to accept
employment at the site, and that those dispatched could
decide whether or not to accept the referral.
The General Counsel contends that Respondent did not
give dispatchees the asserted choice, and hence that the
statements made by Sandidge to Stan Shelton constituted
threats, coercion, and restraint inasmuch as "Shelton was
being faced with the prospect of not having the employees
he needed if he persisted in attempting to perform his con-
tract with Grace." The difficulty with this contention is that
there is no evidence that Shelton was aware that dispatchees
did not have a choice. It may be that even if Shelton was
so aware, there was no violation. On that issue I express no
opinion. What I do conclude is that absent knowledge of the
true facts on the part of Shelton, I cannot find that Shelton
was threatened, coerced, or restrained. It is true that on or
about March 30, i.e., 8 days after the conversation between
Sandidge and Stan Shelton, the latter was told by Superin-
tendent Collins that he would be tried by Respondent for
crossing the picket line in violation of Respondent's consti-
' In his brief , the General Counsel concedes that Wolfs remarks to Collins
did not constitute a separate violation of Sec. 8(bx4)(B ) as alleged in par.
X(a) of the complaint. He argues, however, that they establish Respondent's
motive behind the remarks of Ferguson and others . I agree. The General
Counsel further concedes that there is insufficient evidence to support the
allegations in par . X(d) of the complaint.
° There is no claim by the General Counsel , and there is insufficient
evidence to establish , that Duran induced or encouraged the dispatched men
to respect the picket line.
OPERATING ENGINEERS LOCAL NO. 9 683
tution. At that point, Shelton may well have become aware
that Respondent' s members did not in fact have a choice as
to whether they could cross the picket line. However, such
subsequently acquired knowledge would not taint the other-
wise lawful statement made by Sandidge on March 12. I
find that the record does not establish the violation alleged
in paragraph X(e) of the complaint.
4. Greenwood, a Shelton apprentice employee with little
knowledge of union affairs, testified that on March 12, in
the presence of Babcock (Respondent's apprentice coordi-
nator) and employee Hinkle, he told Barker, Respondent's
financial secretary, that he was worried about having
worked at the site while it was being picketed; that Barker
replied that a picket is a picket and that he should not go
out there; and that when he asked what Respondent could
do to him for having worked at the site on the preceding
Saturday, Barker told him that if a member brought charges
against him, he would have to answer the charges. Green-
wood further testified that Barker did not order him not to
go to the site, but merely advised him. Hinkle corroborated
Greenwood's testimony. Barker denied the statements attri-
buted to him. Babcock testified that no one gave Green-
wood any instructions, and that the latter was informed that
Respondent could not tell him whether or not to cross the
picket line. I credit Greenwood and Hinkle, a witness for
Respondent.
Respondent's defense is that at the time of the conversa-
tion, Hinkle was talking about filing charges against Green-
wood and others who had worked behind the picket line at
the site; that Barker was attempting to protect Greenwood
by persuading Hinkle not to file a charge; that he was thus
in an awkward position which forced him to discuss the
nature of a picket with Greenwood; and that it would not
effectuate the purposes of Section 8(b)(4)(B) to find a union
guilty of a violation where a union official comes to the aid
of an ignorant member.
I disagree. It may be that Barker, in telling Greenwood
not to work behind the picket line, sought to persuade Hin-
kle not to file a charge against Greenwood. But I am per-
suaded that Barker was also motivated by a desire to assist
Trades Council in its dispute with Grace by exerting pres-
sure on Shelton. Barker did not tell Greenwood that he
might be able to avoid being charged if he respected the
picket line. He told Greenwood that a picket line should be
respected. The motive behind this remark is illuminated by
the abovementioned statement made by Wolf,
Respondent's president, to Robert Collins, Shelton's super-
intendent, regarding Respondent's desire to force Grace to
sign a collective-bargaining agreement with Trades Council.
I am unable to credit Barker's testimony that he first learned
of the picketing from Hinkle on March 12 and did not know
who was picketing. Ferguson, Respondent's business repre-
sentative, admittedly knew that Trades Council was picket-
ing, and his knowledge may be attributed to Barker.
Moreover, in view of the stress laid by Ferguson and Bab-
cock, Barker's assistant, on the distinction between a legal
and a sanctioned picket line, it is reasonable to infer that
Barker would not have told Greenwood to respect an illegal
picket line. It follows that he must have known that the
picket line at the site was legal, and that he could know this
only if he knew that Trades Council was the picketing
union. But even if it were assumed that Barker did not know
the identity of the picketing union, he ran the risk, by failing
to ascertain the facts before telling Greenwood to respect
the picket line, that his statement would be tainted by the
unlawful purpose disclosed by Wolf.
I accordingly find that Respondent, through Barker, in-
duced or encouraged Greenwood, an employee of Shelton,
to refuse to perform services for the latter in order to force
Shelton to cease doing business with Grace, and thereby
force Grace to enter into a collective-bargaining agreement
with Trades Council. Such conduct, as alleged in paragraph
X(f) of the complaint, violated Section 8(b)(4)(i)(B).
B. The 8(b)(1)(B) Allegations
During picketing at the Site by Trades Council , Robert
Collins , Shelton 's superintendent, crossed the picket line
and operated a piece of equipment . He had previously oper-
ated such equipment during periods when there was a short-
age of manpower . On March 29 , Employee Hinkle filed an
intraunion charge against Collins , accusing him of crossing
Trades Council 's picket line and working at the site. By
letter dated March 30, Respondent notified Collins of the
charge . By letter dated June 13, Respondent notified Collins
that he would be tried on July 13 . Collins was found guilty
and fined $300. Stan Shelton was aware of the foregoing
events.
The General Counsel contends that by its letters of
March 30 and June 13 , and by fining Collins because he
worked behind a picket line , Respondent violated Section
8(b)(1)(B), which provides that it shall be an unfair labor
practice for a union "to restrain or coerce ... an employer
in the selection of his representatives for the purpose of
collective bargaining or the adjustment of grievances." I
agree. The record establishes that Collins was one of two
superintendents at Shelton; that he reported directly to
Shelton's president ; that he was Shelton 's representative for
the purpose of resolving disputes arising under the collec-
tive-bargaining agreement with Respondent (see art. VII of
the agreement); that he was the person designated by Shel-
ton to receive employee complaints ; that he represented
Shelton at a hearing before the Iowa Employment Security
Commission in a matter involving unemployment compen-
sation for a former employee ; and that Collins met with
Roderick , one of Respondent 's business representatives,
and adjusted a paycheck problem involving an employee?
I find that Collins was a representative selected by Shelton
"for the purposes of . . . the adjustment of grievances."
The record also shows , and I find , that in the past Collins
had performed rank-and-file work during employee short-
ages. The Board has held that a union violates Section
8(b)(1)(B) by subjecting a supervisor who performs struck
work to intraunion proceedings and by the imposition of a
fine upon him, where the underlying dispute is between the
union and the employer , not the supervisor . Local Union No.
2150, International Brotherhood of Electrical Workers, AFL-
CIO (Wisconsin Electric Power Company), 192 NLRB 77
(1971), enfd . 486 F.2d 602 (C.A. 7, 1973); International
9 I credit the testimony of Collins and Stan Shelton in this regard.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Electrical Workers, AFL-CIO, and Local
134, IBEW (Illinois Bell Telephone Company), 192 NLRB
85 (1971), enfd. 487 F.2d 1113 (C.A.D.C., 1972); Toledo Lo-
cals Nos. 15-P and 272 of the Lithographers and Photoengrav-
ers International Union, AFL-CIO (The Toledo Blade
Company, Inc.), 175 NLRB 1072 (1969), enfd. 437 F.2d 55
(C.A. 6, 1971); San Francisco Typographical Union No. 21
International Typographical Union, AFL-CIO (California
Newspapers, Inc., d/b/a San Rafael Independent Journal),
193 NLRB 319 (1971), enforcement denied 486 F.2d 1347
(C.A. 9, 1973).10 Here, Respondent's dispute was not with
Collins. Its dispute was with Shelton in the sense that it was
attempting, by respecting Trades Council's picket line, to
exert pressure upon Shelton, and thus indirectly upon
Grace, in order to help Trades Council in its dispute with
Grace. I accordingly find that by subjecting Collins to in-
traunion proceedings and fining him for working behind
Trades Council's picket line, Respondent violated Section
8(b)(1)(B).
Respondent contends that Shelton waived the right to
control its supervisors who were members of Respondent,
and thereby the right to be free from the restraint and
coercion otherwise guaranteed by Section 8(b)(l)(B). In
support of this contention, Respondent relies on testimony
that during the negotiations for renewal of the collective-
bargaining agreement with Respondent, the employers stat-
ed that they had experienced difficulty in persuading rank-
and-file employees to accept supervisory positions because
of the reluctance of such employees to give up certain fringe
benefits, such as participation in Respondent's pension and
the health and welfare programs; and that at the employers'
insistence, the collective-bargaining agreement, to which
Shelton is bound, contains provisions granting fringe bene-
fits to supervisory employees. According to the said testimo-
ny, Respondent agreed to the inclusion of those provisions
only after the employers' negotiators agreed that Respon-
dent could control supervisor-members just as it controlled
rank-and-file members.
I disagree. In effect, Respondent asserts that Shelton
waived the right to the services of its supervisors during a
rank-and-file strike. I find that the record fails to support
this assertion. As the court stated in N.L.R.B. v. Local 2150,
IBEW [Wisconsin Electric Power Company], 486 F.2d 602
(C.A. 7, 1973), waiver of the protection of Section 8(b)(1)(B)
must be made "in clear and unmistakable terms." If the
parties to the collective-bargaining agreement had intended
that supervisors who were members of Respondent were
under no obligation to work during a rank-and-file strike
and could be fined by Respondent if they did work, the
parties could have expressly stated so in the agreement. It
is clear that they did not. On the contrary, the contract
appears to negate the existence of such a waiver. Article II
of appendix C provides that supervisors
shall not operate equipment except in an emergency
providing an order for an employee is promptly placed
with the Job Placement Center serving the job or to
instruct an apprentice.
10 Although enforcement of some of the foregoing decisions has been
denied , I am bound by the Board 's view.
Although the meaning of the entire provision is not wholly
clear, it indicates that supervisors may work during an
emergency. A rank-and-file strike surely can be regarded as
an emergency. I find no waiver of Shelton's right to the
services of supervisors during a strike, and hence no waiver
of the protection of Section 8(b)(1)(B).
The General Counsel also contends that Respondent vio-
lated that section by causing Hinkle to file the intraunion
charge against Collins. Hinkle admitted that Wolf,
Respondent's president, told him that "it would be good if
you filed charges against Bob Collins and straightened him
out." I accordingly find that Respondent caused Hinkle to
file the intraunion charge against Collins. Such conduct
violates Section 8(b)(1)(B). Cf. San Francisco Typographical
Union No. 21 (California Newspapers, Inc.), supra, 193 NLRB
at 319.
CONCLUSIONS OF LAW
1. Respondent, through Ferguson, induced or encour-
aged employee Hinkle to refuse to perform services for
Shelton.
2. Respondent, through Barker, induced or encouraged
employee Greenwood to refuse to perform services for
Shelton.
3. An object of such inducement or encouragement was
to force or require Shelton to cease doing business with
Grace in order to compel Grace to enter a collective-bar-
gaining agreement with Trades Council.
4. By the above conduct, Respondent engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i)(B)
of the Act.
5. By causing Hinkle to file intraunion charges against
Supervisor Collins, and by subjecting Collins to intraunion
proceedings and a fine for working behind Trades Council's
picket line, Respondent restrained or coerced Shelton in the
selection of its representatives for the purposes of the adjust-
ment of grievances, thereby engaging in unfair labor prac-
tices within the meaning of Section 8(b)(1)(B) of the Act.
6. The aforesaid unfair labor practices affect .commerce
within the meaning of the Act.
7. Respondent did not violate the Act by any conduct not
found herein to constitute an unfair labor practice.
THE REMEDY
I recommend that Respondent be ordered to cease and
desist from the unfair labor practices found above, and to
take certain affirmative action necessary to effectuate the
purposes of the Act. Affirmatively, I recommend that Re-
spondent rescind the fine imposed on Collins and give him
written notice of such rescission.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
OPERATING ENGINEERS LOCAL NO. 9 685
ORDER 11
Respondent, International Union of Operating Engi-
neers, Local No. 9, AFL-CIO, its officers, agents, and rep-
resentatives, shall:
A. Cease and desist from:
1. Inducing or encouraging any individual employed by
Shelton Pipeline & Construction, Inc., or any other person
engaged in commerce, to refuse in the course of his employ-
ment to perform any services, with an object of forcing or
requiring Shelton or any other employer to cease doing
business with W. M. Grace Construction, Inc.
2. Assessing fines against Collins or any other supervisor
of Shelton, or subjecting them to intraunion disciplinary
proceedings, as a member of Respondent, for the conduct
of any such member in the performance of his work in the
employ of Shelton, while such member is the selected repre-
sentative of Shelton for the purposes of the adjustment of
grievances.
3. Causing the filing of intraunion charges against Col-
lins or any other supervisor because of any conduct referred
to in subparagraph 2 above.
11 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
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.
B. Take the following affirmative action:
1. Rescind the fine imposed on Collins, notify him in
writing of such rescission, and refund to him any sums he
may have paid toward such fine, plus interest at the rate of
6 percent per annum.
2. Correct all its records to reflect such rescission, and
notify Collins in writing that such action has been taken.
3. Post at its office and all meeting halls, and at the office
of Shelton if the latter is willing, copies of the notice at-
tached hereto and marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 27, after being duly signed by a representative of the
Respondent, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
4. Notify the Regional Director for Region 27, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
It is further recommended that the complaint be dis-
missed insofar as it alleges violations of the Act not found
herein.
12 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."