Patternmakers Assn. of Detroit

National Labor Relations Board - Board DecisionsJun 4, 1973

203 N.L.R.B. 1126 (N.L.R.B. 1973)

1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Patternmakers Association of Detroit and Vicinity, Pattern Makers' League of North America, AFL- CIO and Automotive Pattern Company . Case 7- CB-2679 June 4, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 13, 1973, Administrative Law Judge Alvin Lieberman issued the attached Decision in this proceeding. Thereafter, Respondent Union filed ex- ceptions and a supporting brief, and the Charging Party filed a brief in opposition to Respondent's ex- ceptions. 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 briefs and has decided to affirm the rulings , findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below 2 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 Respondent , Pattern- makers Association of Detroit and Vicinity, Pattern Makers' League of North America , AFL-CIO, its of- ficers, agents , and representatives , shall take the ac- tion set forth in the said recommended Order, as so modified. 1. Delete from paragraph 1(a) of the recommended Order the words "or any other employer." 2. Delete paragraph 1(b) and substitute the follow- ing: "b. Expelling from its membership or otherwise disciplining supervisors employed by Automotive Pattern Company because they perform work as di- rected by their Employer during a strike called by 1 We find , contrary to the Administrative Law Judge 's assumption in In. 6 of his Decision , that Respondent did not abandon its contentions that Pnsewski and Smith were expelled from membership because they had violat- ed their oath of membership and did not comply with Respondent's Laws This finding does not, however, affect the results herein 2 We find went in Respondent's contention that the board order recom- mended by the Administrative Law Judge is not warranted We have there- fore modified the recommended Order accordingly. Respondent against their Employer." 3. Substitute the attached notice for the notice at- tached to the Administrative Law Judge's Decision. MEMBER FANNING , dissenting: For the reasons stated in my dissents in Internation- al Brotherhood of Electrical Workers, AFL-CIO, and Local 134 (Illinois Bell Telephone Company), 192 NLRB 85, and Local Union No. 2150, International Brotherhood of Electrical Workers, AFL-CIO (Wis- consin Electric Power Company), 192 NLRB 77, I would reverse the Administrative Law Judge' s finding that Respondent violated Section 8(b)(1)(B) by expel- ling supervisors Pneiwski and Smith from member- ship. Accordingly, I would dismiss the complaint. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportuni- ty to present their evidence, the National Labor Rela- tions Board has found that we violated the law and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: WE WILL NOT restrain or coerce Automotive Pattern Company in the selection of its represen- tative for the purposes of collective bargaining or the adjustment of grievances. WE WILL NOT expel from our membership or in any other way discipline any member of our union who is a supervisor of Automotive Pattern Company because he has worked, or because he does work of any kind, for said employer during a strike against it. Because it has been decided that we violated the law when we expelled from our membership Edward Pniewski and David Smith, who are supervisors for Automotive Pattern Company, for doing work for Automotive Pattern Company during our strike against that company, we will do the following things: WE WILL take Edward Pniewski and David Smith back into membership and give them all the rights, benefits, and privileges due them as members of our union just as though they had never been expelled from our union. WE WILL remove from our records all mention that Edward Pniewski and David Smith were ever expelled from our union. WE WILL notify Edward Pniewski and David 203 NLRB No. 166 PATTERNMAKERS ASSN. OF DETROIT Smith, in writing, that they have been taken back into membership in our union and that all men- tion that they were ever expelled from our union has been removed from our records. WE WILL pay to Edward Pniewski and David Smith the money value of any right, benefit, or privilege they may have lost because they were expelled from our union. PATTERNMAKERS ASSOCIA- TION OF DETROIT AND VICIN- ITY, PATTERN MAKERS LEAGUE OF NORTH AMERICA, 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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313- 226-3200. DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The trial in this proceeding, with all parties represented, was held before me in Detroit, Michigan, on November 14, 1972, upon the General Counsel's complaint dated September 20, 1972,1 and Respondent's answer . 2 The sole issue litigated was whether Respondent violated Section 8(b)(1)(B) of the Na- tional Labor Relations Act, as amended (the Act) by expel- ling from its membership two supervisors employed by Automotive Pattern Company (Automotive). Upon the entire record,3 upon my observation of the 1 The complaint was issued pursuant to a charge filed on August 23, 1972, by Z Automotive Pattern Company During the trial the answer was amended to admit all the allegations of paragraphs 2, 4, 11, 12, and 13 of the complaint. 3 Issued simultaneously is a separate order cofrecting obvious inadvertent errors in the stenographic transcript of this proceeding. 4 Although all the arguments of the parties; and the authorities cited by them, whether appearing in their briefs or made orally at the trial, may not be discussed in this Decision , each has been carefully weighed and consid- 1127 witnesses and their demeanor while testifying, and upon consideration of the arguments made and briefs sub- mitted,4 I make the following: FINDINGS OF FACT 1. JURISDICTION Automotive, an Ohio corporation, is engaged in Detroit, Michigan, in the manufacture and sale of wood and metal patterns and related products. During the year ending on September 30, 1971, a representative period, Automotive shipped to customers located outside the State of Michigan goods valued at more than $50,000. Accordingly, I find that Automotive is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (the Board) is war- ranted. Siemons Mailing Service, 122 NLRB 81, 85. II THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(b) of the Act. III INTRODUCTION Briefly, this case is concerned with Respondent's expul- sion from its membership of two supervisors, Edward Pniewski and David Smith, employed by Automotive be- cause they worked during a strike carried on by Respondent against Automotive. The General Counsel and Automotive contend 5 that by expelling the supervisors Respondent vio- lated Section 8(b)(1)(B) of the Act. Taking a contrary posi- tion, and not denying that Pniewski and Smith were expelled because, as supervisors, thedy worked during the strike, Respondent argues, on brief, that their expulsion was not unlawful because it could have been based on grounds falling within the protection afforded labor organi- zations by the proviso to Section 8(b)(1)(A).' ered. 5 As the contentions of the General Counsel and Automotive are, in the main, similar , they will be referred to hereinafter as the General Counsel's contentions unless otherwise noted. 6 At the trial respondent asserted that Pniewski and Smith were expelled for having violated their oath of membership and because they did not comply with Respondent 's laws. Respondent did not reiterate these conten- tions in its brief. I assume, therefore , that they have been abandoned. 7 Sec 8(b)(l) of the Act is as follows- (b) It shall be an unfair labor practice for a labor organization or its agents- (I) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein , or (B) an employ- er in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances Insofar as pertinent , Sec 7 provides. Sec 7 Employees shall have the right to self-organization, to form, loin , or assist labor organizations , to bargain collectively through repre- sentatives of their oun choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection , and shall also have the right to refrain from any or all of such activities .. . 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. PRELIMINARY FINDINGS AND CONCLUSIONS 8 A. The Status of Pniewski and Smith There is no dispute as to the supervisory status of Edward Pniewski and David Smith . As alleged in the complaint and admitted in Respondent's answer, at all material times Pniewski and Smith , respectively Automotive's shop super- intendent and general foreman , were representatives of Au- tomotive in the adjustment of grievances filed on behalf of Automotive's employees for whom Respondent was the col- lective-bargaining agent . Accordingly , I conclude that Pniewski and Smith are supervisors within the meaning of Section 2(11) of the Act.9 There are two classes of supervisors in Automotive's em- ploy, characterized by Wendell Doolin , Automotive's vice president, as "working Foremen" and "executive foremen." Doolin testified , in this regard, that the former "can actually do work or manual labor pertaining to the pattern work," whereas the latter, in which category Pniewski and Smith fall, "are not allowed to execute work." Pniewski became a member of Respondent in 1941 and Smith in 1956 . Because of benefits enjoyed by Respondent's members Pniewski and Smith retained their membership until they were expelled on July 11, 1972. B. Respondent 's Strike Against Automotive and the Struck Work Performed by Pniewski and Smith For several years Automotive and Respondent, as the representative of all journeymen patternmakers and ap- prentices employed by Automotive , have been parties to successive collective agreements . The current agreement be- tween them was entered into on January 18, 1971. In October 1970, upon the expiration of the contract which preceded the one presently in effect, Respondent struck Automotive . Because of the difference in function between executive and working foremen , executive foremen were not barred from Automotive 's shop during the strike. Wendell Doolin , Automotive's vice president, testified that there was a "gentlemen 's agreement" that executive foremen "would not execute work in the shop during the strike ." The parties to the "gentlemen's agreement" men- tioned by Doolin are not clearly defined in the record. When asked about this Doolin replied that it was "between the pattern makers [Respondent?) and the executive fore- man." This would seem to indicate that Automotive was not a party . Nonetheless , on brief, Respondent refers to the agreement as being between Automotive and Respondent. There being no supporting evidence of this, I cannot find The purpose of these findings is to furnish a frame of reference within which to consider the facts relating to respondent 's alleged unfair labor practices and to the conclusions to which they may give rise . To the extent that the contentions of the parties relate specifically to the findings made here they will be treated here , although they, as well as the findings, may again be considered in other contexts. 9 Insofar as material Sec. 2( l 1) provides that "the term 'supervisor' means any individual having authority , in the interest of the employer . ..to adjust [employees'] grievances...." that Automotive was, indeed, a party. Furthermore, I have grave doubts that there was a "gentlemen 's agreement" even between Respondent and Automotive's executive foremen. The evidence that such an agreement existed consists only of Doolin's bare assertion that it did. However, the source of Doolin's knowledge as to this matter does not appear. This being so, I can place no weight on Doolin's testimony in this regard. Accordingly, it is my opinion that the record does not warrant a finding that there was a "gentlemen's agreement" that executive foremen "would not execute work in the shop during the strike." While the strike was in progress Automotive engaged Hofley Manufacturing Co. (Hofley) to build a definning fixture 10 ordered from Automotive by one of its customers. Had Respondent not struck Automotive this item would have been built in Automotive's plant and some employees represented by Respondent would have worked on it. Automotive sent Edward Pniewski and David Smith, ex- ecutive foremen, to Hofley's shop to oversee the construc- tion of the definning fixture . In large measure the work Pniewski and Smith did at Hofley's premises was superviso- ry in character. In this regard, when, from time to time, it became necessary for Pniewski and Smith to give instruc- tions to Honey's employees, who were not patternmakers, they did so through the medium of Hooey's foremen, never themselves speaking directly to the employees working on the fixture. In addition, while at Hofley's shop Pniewski and Smith did a small amount of nonsupervisory work in connection with the manufacture of the definning fixture. This consist- ed mainly of checking dimensions and modifying, in one respect, the model from which Hofley's employees were working. Making much of the fact that Pniewski and Smith per- formed nonsupervisory work in Hofley's shop, Respondent, by way of exculpation, argues in its brief that by doing so Pniewski and Smith violated the above-mentioned "gentlemen 's agreement." For this reason , Respondent's ar- gument continues, they could lawfully have been expelled from Respondent's membership. Regardless of any other consideration concerning the merits of this contention, it is deprived of validity by my conclusion that a finding that there was a "gentlemen 's agreement" is not warranted on the record before me. V THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Concerning Respondent's Violations of Section 8(b)(1)(B) of the Act On about January 4, 1971, Kenneth Banfield, Respondent's business manager, visited Edward Pniewski and David Smith, Automotive's supervisors, while they were working at Hofley's shop. After questioning them con- cerning the work they were doing there for Automotive, Banfield told Pniewski and Smith that they were in "deep ...trouble." Later that day Banfield informed Pniewski and Smith that he intended "to prefer charges against [them 10 In briefest outline, a definning fixture is used to remove unwanted ridges, technically known as fins, which adhere to a mold in the course of its manufacture PATTERNMAKERS ASSN. OF DETROIT for] strike breaking."" Formal charges were brought against Pniewski and Smith by Respondent's executive board on March 2, 1971.On that date identical letters, signed by Banfield, were sent to Pniewski and Smith notifying them that the executive board would recommend to Respondent's members that they be expelled from membership for "passing on information and instructions to nonpatternmakers working on struck work at Hofley Manufacturing Company on or about January 4, 1971."12 On July 11, 1972, Pniewski and Smith were expelled from membership in Respondent "because ," as was stipulated during the trial, "of what they did at Hofley during the strike." Pniewski and Smith were notified of their expulsion on July 14, 1972.13 B. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of Section 8(b)(1)(B) of the Act "It is now well established that [a union's] fining or other- wise penalizing a supervisor-union member for performing work for his employer during a strike restrains and coerces such employer in the selection of his representatives in vio- lation of Section 8(b)(1)(B) of the Act." Lietzau Pattern Co., et al., 199 NLRB No. 14.14 The rational underlying this proposition appears in Wisconsin Electric Power Company, 192 NLRB 85. There the Board said: ...[T]he supervisors, by doing struck work, as directed by the Employer, were furthering the interests of the Employer in a dispute not between the Union and the supervisor-union members but between the Employer and the Union. During the strike of the Union, the Employer clearly considered its supervisors among those it could depend on during this period. The Union's fining of the supervisors who were acting in the Employer's interest in performing the struck work se- verely jeopardized the relationship between the Em- ployer and its supervisors. Thus, the fines, if found to be lawful, would now permit the Union to drive a 11 The quotations appearing in the text are taken from testimony given by Pniewski. 12 G.C Exhs. 2 and 9. 13 In the period intervening between the filing of the charges against Pniewski and Smith and their expulsion notice on July 14, 1972, which for convenience will be referred to as the final expulsion notice , an intermediate order of expulsion was issued against them by Respondent . Pntewski and Smith appealed from this order to the executive board of the Pattern Makers' League of North America (the League), Respondent 's parent body . Being of the opinion that the order appealed from was violative of Section 8(b)(1) of the Act, the League 's executive board sustained the appeal and decided "not to approve the action of the Detroit Association [Respondent ] to expel Broth- ers Smith and Pniewski " (G.C. Exh. 4.) From this decision Respondent appealed to the League 's convention which , on about June 21 , 1972, "voted to sustain the appeal of the Detroit Association [Respondent ] from the deci- sion of the General Executive Board not to approve the expulsion of Brothers Smith and Pniewski ." (G.C. Exh. 5.) This was followed by the issuance of the final notice of expulsion 14 "All persons who are 'supervisors' within the meaning of Section 2(11) of the Act are employers' 'representatives for the purposes of collective bargaining or the adjustment of grievances' within the purview of Section 8(b)(1)(B) of the Act ." The Newspaper Guild, Erie Newspaper Guild, Local 187 (Times Publishing Company), 196 NLRB 1121 1129 wedge between a supervisor and the Employer, thus interfering with the performance of the duties the Em- ployer had a right to expect the supervisor to perform. The Employer could no longer count on the complete and undivided loyalty of those it had selected to act as its collective-bargaining agents or to act for it in adjust- ing grievances. Moreover, such fines clearly interfere with the Employer's control over its own representa- tives. Of course, our decision is not meant to imply that a union is completely precluded from disciplining super- visor-union members. It only means that when the un- derlying dispute is between the employer and the union rather than between the union and the supervisor, then the union is precluded in taking disciplinary action by Section 8(b)(1)(B). The intent is to prevent the supervi- sor from being placed in a position where he must decide either to support his employer and thereby risk internal union discipline or support the union and thereby jeopardize his position with the employer. To place the supervisor in such a position casts doubt both upon his loyalty to his employer and upon his effective- ness as the employer's collective-bargaining and griev- ance adjustment representative. The purpose of Section 8(b)(1)(B) is to assure to the employer that its selected collective-bargaining representatives will be complete- ly faithful to its desires. This cannot be achieved if the Union has an effective method, union disciplinary ac- tion, by which it can pressure such representatives to deviate from the interests of the employer. Respondent admitted in its answer and specifically con- ceded at the trial that it expelled Pniewski and Smith, Automotive's supervisors, from its membership for doing struck work for Automotive at Automotive's direction. Not- withstanding this, Respondent argues that because Pniew- ski and Smith could have been expelled on two other grounds, both of which, it claims, fall within the protection afforded labor organizations by the proviso to Section 8(b)(1)(A) of the Act, the principles enunciated in N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967), rather than those set forth in Wisconsin Electric Power, supra, apply. Respondent does not gain exculpation by this argument. That Pniewski and Smith could have been expelled for al- legedly lawful reasons is not the governing criterion. What does govern in that their expulsion was for a reason coming within the proscription of Section 8(b)(1)(B) of the Act. This being the case, the two grounds upon which Respon- dent states it could justifiably have expelled Pniewski and Smith need not be discussed. However, they will be briefly mentioned. The first is that during the strike Pniewski and Smith performed at Hofley's premises nonsupervisory work for Automotive which would have permitted their expulsion even if there had been no strike. To assert this ground to justify the expulsion of Pniewski and Smith presupposes that had Respondent not struck Automotive they would, nevertheless , have performed rank-and-file work. Such spe- culation is unwarranted. The second ground upon which Respondent claims it could have expelled Pniewski and Smith with impunity is that by performing nonsupervisory work during the strike 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they violated a "gentlemen 's agreement" that they would not do so . The short answer to this contention is, as I have earlier noted , that in my opinion the record does not support a finding that there was such an agreement . Moreover, even if there had been , its violation by Pniewski and Smith would not have justified their expulsion . General Metal Products, Inc., 178 NLRB 139, 142, enfd . 430 F.2d 1348 (C.A., 1970). Accordingly, I conclude that Respondent violated Sec- tion 8(bXl)(B) of the Act by expelling Pniewski and Smith, Automotive 's supervisors , from its membership because at Automotive's direction they worked during Respondent's strike against Automotive. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's unfair labor practices occurring in connec- tion with Automotive 's operations set forth in section I, above, have a close, intimate , and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(bXl)(B) of the Act, my recommended Order will require Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the purposes of the Act . In this connection, my Order will provide that Respondent, among other things, restore Pniewski and Smith to membership in its organization and make them whole for any benefits they may have lost by reason of their expulsion. Upon the basis of the foregoing findings of fact , and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Automotive is an employer within the meaning of Sec- tion 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Pniewski and Smith are supervisors within the mean- ing of Section 2(11) of the Act. 4. By expelling Pniewski and Smith from its membership for working during Respondent 's strike against Automotive, thereby restraining and coercing Automotive in the selec- tion of its representatives for the purposes of collective bar- gaining or the adjustment of grievances , Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(b)(IXB) of the Act. 5. The unfair labor practices engaged in by Respondent, as set forth in Conclusion of Law 4, above, affect commerce 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 , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 15 Respondent Patternmakers' Association of Detroit and Vicinity, Pattern Makers League of North America, AFL- CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining and coercing Automotive Pattern Com- pany or any other employer in the selection of its represent- atives for the purposes of collective bargaining or the adjust- ment of grievances. (b) Expelling from its membership or otherwise disciplin- ing supervisors employed by Automotive Pattern Company or any other employer for performing services for Automo- tive Pattern Company or such other employer during a strike against Automotive Pattern Company or such other employer. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Restore Edward Pniewski and David Smith to mem- bership in its organization with all rights, benefits, and privi- leges pertaining to membership as though they had never been expelled. (b) Expunge from its records all references to the expul- sion from its membership of Edward Pniewski and David Smith. (c) Make Edward Pniewski and David Smith whole for any loss of benefits they may have suffered by reason of their expulsion from its membership. (d) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examina- tion and copying, all records necessary to determine the value of the benefits, the loss of which Edward Pniewski and David Smith may have suffered by reason of their expulsion from its membership. (e) Notify Edward Pniewski and David Smith, in writing, that they have been restored to membership in its organiza- tion and that in the future it will not, so long as they are supervisors, expel them from its membership or otherwise discipline them for working for their employer during a strike. (f) Post at its offices and meeting halls copies of the attached notice marked "Appendix: ' 6 Copies of said no- tice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Respondent 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 insure that said notices are not altered, defaced, or covered by any other material. (g) Deliver to the Regional Director for Region 7 signed 15 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 16 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " PATTERNMAKERS ASSN. OF DETROIT 1131 copies of said notice in sufficient number for posting by (h) Notify the Regional Director for Region 7, in writing, Automotive Pattern Company, it being willing, at locations within 20 days from the date of this Order, what steps Re- where notices to its employees are customarily posted. spondent has taken to comply herewith.