Plumbers Local 364

National Labor Relations Board - Board Decisions

Mar 5, 1981

254 N.L.R.B. 1123 (N.L.R.B. 1981)

,964,
2nd
-CB-7275
0 1 1
Judg;e
T'le
conc:lusions
a l o p t
l q c )
Re1:~tions
latic~ns
hemby
Steamfitters
Colton,
Cal~fornia,
recom-
m e ~ ~ d e d
J I ~ R R O L D SHAPIRO,
unfair
hercin
Pi-
Na-
tior~al
con~plaint
Stewart,
8(b)(l)(B)
$50,000
2(6)
11.
2(5)
111.
A1
251.
1123 PLUMBERS, LOCAL NO. 364
Plumbers, Steamfitters and Refrigeration Local No.
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO
William Stewart d/b/a West Coast Con-
tractors. Case 21
March 5, 1981
DECISION A N D O R D E R
November 6, 1980, Administrative L a w
Jerrold H. Shapiro issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided t o affirm the rulings, findings, and
of the Administrative Law Judge and
t o his recommended Order.
O R D E R
Pursuant t o Section of the National Labor
Act, as amended, the National Labor Re-
Board adopts as its Order the recommended
Order of the Administrative Law Judge and
orders that the Respondent, Plumbers,
and Refrigeration Local No. 364,
United Association of Journeymen and Apprentices
of .he Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO,
its officers, agents, and representatives,
shall take the action set forth in the said
Order.
DECISION
H. Administrative Law Judge: The
hea-ing in this case, held on July 23, 1980, is based upon
an labor practice charge tiled on March 28, 1980,
by William Stewart d/b/a West Coast Contractors,
called the Employer, against Plumbers, Steamfit-
ters and Refrigeration Local No. 364, United Association
of Journeymen and Apprentices of the Plumbing and
pefitting Industry of the United States and Canada,
AFL-CIO, herein called Respondent, and a complaint
issued May 8, 1980, by the General Counsel of the
Labor Relations Board, herein called the Board,
alleging violations of the National Labor Relations Act,
as amended, herein called the Act. In substance, the
alleges that Respondent, by disciplining Russ
Jr., a supervisor employed by the Employer,
has restrained and coerced, and is restraining and coerc-
ing, the Employer in the selection of its representatives
for the purpose of collective bargaining or adjustment of
grievances in violation of Section of the Act.
Respondent filed an answer denying the commission of
the alleged unfair labor practices.
N L R B NO. 147
Upon the entire record, from my observation of the
sole witness, Russ Stewart, Jr., and having considered
the post-hearing briefs, I make the following:
I. THE BUSINESS OF THE EMPLOYER INVOLVED
The Employer is a sole proprietorship engaged in the
business of plumbing contracting in Southern California.
During the 12-month period material to this case, the
Employer, in the operation of his business, purchased
and received goods and products valued in excess of
directly from suppliers located within the State
of California, each of which, in turn, purchased these
same goods and products directly from suppliers located
outside the State of California. Respondent admits, and I
find, that at all times material the Employer has been and
is an employer engaged in commerce within the meaning
of Section and (7) of the Act.
T H E LABOR ORGANIZATION INVOLVED
It is conceded, and I find, that Respondent is, and has
been at all times material, a labor organization within the
meaning of Section of the Act.
THE UNFAIR LABOR PRACTICES
A. The Evidence
The Employer is a plumbing contractor who, during
the time material herein, normally employed between 4
to 6 plumbers and 4 to 6 laborers, but occasionally em-
ployed as many as 12 plumbers and 10 laborers.
On March 30, 1978, the Employer and Respondent en-
tered into a collective-bargaining agreement, herein
called the March 30, 1978, agreement, covering the Em-
ployer's workers who perform plumbing work. The
March 30, 1978, agreement was scheduled by its terms to
remain in effect until June 30, 1980. The agreement con-
tained a union-security provision which required employ-
ees to become members of Respondent 7 days after their
employment. Nevertheless, Respondent, at no time mate-
rial to this case, either at the time it entered into the
March 30, 1978, agreement or thereafter, represented a
majority of the Employer's plumbers.
On January 29, 1980, Respondent's business represen-
tative, Robinson, filed a grievance against the Em-
ployer, pursuant to a grievance procedure contained in
the March 30, 1978, agreement, alleging in substance that
with one exception all of the employees doing plumbing
work for the Employer were not members of Respon-
dent and that the Employer had evaded Robinson's ef-
forts to resolve this grievance. In reply the Employer, by
letters dated February 15 and 20, 1980, notified the joint
arbitration board, established by the March 30, 1978,
agreement, that it was the Employer's position that the
Joint Arbitration Board was without authority to decide
1121
Respondent's
pre-
hir,: 8(f)
dertt
On represen-
t a t~on
rec-
ogl~ized
En~ployer's
Th:
her,ring
sorletime
M u c h en-
ter':d 8(f)
rep-
res-nted
agleement
3 n
Rr
3 n
filed
dirclaiming
en~ployees.
zjudice.
jo~~rneyman
mc:mber
Ernployer.
St1:wart
2(11)
that
milterial
and,
did
thl: contradic-
' fhere
~ t ~ r 30. whlch
Slrwert
tion,
d i s p a t ~ h . ~
Al
projects-
work.3
the
aftirma-
155(a),
205(b)
non-UA work."4
plumb~ng
Sec.
." Sec. ZOS(b)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance because the March 30, 1978,
agreement was not enforceable inasmuch as it was a
contract under Section of the Act, and Respon-
did not represent a majority of the Employer's
plumbers.
February 25, 1980, the Employer filed a
petition with the Board in Case 21-RM-2018 al-
leging that Respondent had presented a claim to be
by the Employer as the representative of the
employees who performed plumbing work.
Employer, by filing its petition, sought an election
to resolve Respondent's representation claim. During the
on the Employer's petition, which was held
in March 1980, Respondent took the position
that the March 30, 1978, agreement was a bar to an elec-
tion. The Employer, in opposition, argued that the
30, 1978, agreement was a prehire agreement,
into pursuant to Section of the Act and since
there was no evidence that Respondent at any time
a majority of the Employer's plumbers that the
was not a bar to an election.
April 14, 1980, the Board's Regional Director for
gion 21 issued a Decision and Direction of Election in
Case 21-RM-2018 wherein, in agreement with the Em-
ployer, he rejected Respondent's contention and directed
an election in a bargaining unit of the employees em-
ployed by the Employer who performed plumbing work.
April 14, 1980, Respondent, in the meantime, had
a disclaimer of interest with the Regional Director
any interest in representing the Employer's
And, on April 24, 1980, the Regional Direc-
tot., based on Respondent's disclaimer of interest, issued
an order vacating Decision and Direction of Election
an3 dismissing the petition in Case 21-RM-2018 with
pr
Russ Stewart, Jr., herein called Stewart, has been a
plumber for approximately 39 years and a
of Respondent. He is the Employer's brother,
but has no ownership interest in the business. On April
12, 1978, he was dispatched by Respondent to the Em-
ployer as general foreman, a position whose terms and
conditions of employment are governed by the March
30, 1978, agreement.
Stewart was designated "supervisor" by the Employer
and was the highest ranking supervisor employed by the
During his employment with the Employer,
was admittedly a supervisor as that term is de-
fined in Section of the Act and, with regard to the
adjustment of employees' grievances concerning terms
and conditions of employment, the record establishes
he was invested with grievance adjustment powers
on behalf of the Employer and in fact exercised this par-
ticular authority.' I therefore find that, during the time
to this case, Stewart was a statutory supervisor
in addition, represented the Employer for the pur-
pose of adjusting employees' grievances.
With regard to the wages paid to the employees who
plumbing work for the Employer, Stewart, who set
employees' wage rates, testified, without
were no grievances filed by employees alleging infractions of
March 1978. agreement. thus, none of the grievances
adjusted involved collective-bargaining grievances.
that those employees who performed plumbing
work were paid the rate of pay set forth in the March
30, 1978, agreement.
With regard to the hiring of job applicants to d o
plumbing work for the Employer, Stewart, who did all
of the hiring, testified, without contradiction, that it was
his practice to initially phone Respondent's hiring hall
for workers and only if Respondent was not able to dis-
patch workers would he then hire applicants from other
sources, but admittedly did not send them to Respondent
for
On December 19, 1979, Robinson, a business repre-
sentative for Respondent who is apparently also Respon-
dent's secretary, visited one of the Employer's
the vineyards project-and discovered employees per-
forming plumbing work who were not members of Re-
spondent. He then visited the Employer's haystack pro-
ject and spoke to Stewart. In reply to Robinson's inquiry
Stewart told Robinson he was "running the job." Robin-
son complained to Stewart that one of the workers
whom he had spoken to at the vineyards project was not
a member of Respondent and asked whether Stewart
knew he was supposed to bring employees to Respon-
dent's offices within 30 days of their employment and get
them signed up with Respondent. Stewart indicated he
realized this. Robinson stated that he was very angry and
asked whether the Employer was there, explaining to
Stewart that he intended to file charges against the Em-
ployer to collect fringe benefit payments for all of the
employees employed by the Employer performing
plumbing Robinson also told Stewart that he in-
tended to file charges against Stewart "for working with
non-union people." Stewart asked whether he would
have to quit his job with Employer if Robinson filed
such charges. When Robinson answered in the
tive Stewart asked him not to file charges against him
because he only needed 3 more years of employment
credit to become eligible to collect his pension. Robinson
stated he would talk to his superior and determine if Re-
spondent wanted to file charges against Stewart.
On February 1, 1980, Robinson filed a charge with
Respondent against Stewart alleging that on December
19, 1979, Stewart had violated sections 162, and
of the constitution of Respondent's International
Union, herein called the UA, by "working with and di-
recting members to d o plumbing On
The March 30, 1978, agreement provides for an exclusive hiring hall,
whereby the signatory employer agrees to employ applicants through the
Respondent's hiring hall and Respondent agrees to refer registrants
within 48 hours. In the event the contractor, within 48 hours of request.
does not obtain the number of employees needed. the agreement permits
the contractor to obtain them from any other source, but such employees
are required to register with Respondent's dispatch office prior to report-
ing for work.
The record establishes that the Employer in derogation of the March
30, 1978, agreement failed to make certain fringe benefit payments into
the trust funds provided for in the agreement on behalf of its employees
who performed work, other than Stewart.
155 of the UA constitution in pertinent part states. "No journey-
man member will be permitted to work with an apprentice or helper who
is not a member . . . in pertinent part states: "No member
may be employed [by an employer where the local union does not have a
Continued
l I25
A ~ r i l
exicutiv':
in:;tead
tinfair
dz,ted
on
th:
Ilobinson's
8(b)(l)(B)
selction
8(b)(l)(B)
Znc.,
District oflarpenters ef
Horner, Inc.), (1969),
F.2d
Dstrict Brotherhood Car-
~ h e r i c a , (Skippy~nter-
crew prises, Znc.), (1975), F.2d
47 Cir. 1976).
assistsed in violat- It is also
inl: hiring and wage provisions of the collective
letler
StewaH
the
c.ecision
suc11
spondel~t's
in-
In
collstitution
v~olated,
~xecutive
decisio:~
agreement.=
collectiva:
conc itions
Sec.
I@,
insutlicient
Stew~~rt's 30.
]lave
represenlative,
30.
filed
8(b)(l)(B).
433-437, F.L.R.B.
Lgcrrl SOI, AFL-
F.2d Horner,
rerprises, supra, NLRB
F.2d 5283. discipline
during
dispute;
2(11)
employees'grie-
1978, ag!&ment before executive
of 30.
misted
PLUMBERS. LOCAL NO. 364
3, 1980, a hearing was held before Respondent's
board concerning the charge against Stewart.
Stewart chose not to attend this meeting to present a de-
fense; the Employer, on March 28, 1980, filed the
instant labor practice charges against Respondent.
After listening to Robinson's testimony given in support
of his charges against Stewart, Respondent's executive
board, cn April 3, 1980, decided that Stewart was guilty
and recommended his expulsion from Respondent with a
$5,000 line for reinstatement. Stewart was notified by
letter April 21, 1980, of this decision. In the mean-
time, April 18, 1980, Respondent petitioned the UA's
general executive board to approve Respondent's disci-
plinary action. The petition filed with the UA summa-
rized testimony of Robinson, which had been consid-
ered by Respondent's executive board in finding Stewart
guilty. testimony follows:
[Robinson] found brother Stewart working with
a of non-union men doing work with the same
within the scope of UA jurisdiction. Stewart
worked [the Employer] and him
bargaining agremeent.
By from the UA's general secretary-treasurer,
was afforded an opportunity to file an appeal
with UA's general executive board from Respon-
dent's to discipline him. Stewart apparently filed
no appeal. There is no indication whether, as of the
date of the hearing in this case, the UA had ruled on Re-
petition.
The foregoing and undisputed evidence-Robinson's
December 19 warning to Stewart of his intent to file
traunion charges against Stewart, the allegations con-
tained the charge Robinson filed, the sections of the
UA which Stewart was alleged and found to
have and Robinson's testimony before Respon-
dent's board on which Respondent based its
to discipline Stewart-persuades me that Re-
spondent filed intraunion charges against Stewart, fined
him $5,000 and expelled him from membership because
Stewart worked as a supervisor for an employer that em-
ployed plumbers who were not members of Respondent
and because Respondent thought Stewart had failed to
enforce the March 30, 1978,
bargaining agreement . . . or where the wage rate and terms
and of employment in the plant are less than the standards es-
tablished in the Local Union's Agreement." And 162 recites the oath
which ar applicant must take before joining the Union and which, among
other thi obligates the member to abide by the UA's constitution.
In rejecting Respondent's contention that there is evi-
dence to establish that Respondent's disciplinary action was based in part
on failure as a supervisor to enforce the March 1978, agree-
ment, I relied on these considerations. When Respondent's business
Robinson, initially threatened Stewart with discipline, the
threat was expressed during the same conversation in which Robinson
asked whether Stewart was the person in charge of the Employer's
workers and indicated he was angry at the Employer for not complying
with the terms of the March 1978, agreement. Contemporaneously
with the charge Robinson filed against Stewart, Robinson also a
charge against the Employer charging it with violating the March 30,
and in testifying Respondent's board in
support his charge against Stewart; Robinson testified that Stewart had
he Employer in violating the hiring and wage provisions of the
B. Conclusions
Section of the Act provides that "it shall be
an unfair labor practice for a labor organization . . . to
restrain or coerce . . . an employer in the of his
representative for the purpose of collective bargaining or
the adjustment of grievances." Section prohib-
its both direct union pressure-for example, strikes-to
force replacement of grievance representatives and indi-
rect union pressure-for example, union discipline of su-
pervisor-members-which may adversely affect the
chosen supervisors' performance of their representative
functions. American Broadcasting Companies v. Writers
Guild of America, West, 437 U.S. 411 (1978); New
Mexico Council and Joiners Amer-
ica (A. S. 177 NLRB 500, 502 enfd.
454 1116 (10th Cir. 1972); and Wisconsin River
Valley Council o f the United of
penters and Joiners of AFL-CIO
218 NLRB 1063, 1064 enfd. 532
(7th
well settled that union discipline of supervi-
sor-members who cross a picket line or otherwise violate
a union's no-work rule in order to perform their normal
supervisory functions constitutes indirect union pressure
within the prohibition of Section In reaching
this conclusion, the Board and courts have recognized
that the reasonably foreseeable and intended effect of
such discipline is that the supervisor-member will cease
working for the duration of the dispute, thereby depriv-
ing the employer of the grievance adjustment services of
his chosen representative. American Broadcasting Compa-
nies, supra at fn. 36; v. Znternational
Union of Operating Engineers. Union No.
CIO, 580 359, 360 (9th Cir. 1978); A. S.
supra, 502; and Skippy 218
1064, enfd. 532 s t Such is unlawful
even where, as here, the supervisor defies the union and
continues to work for the employer, during the dispute;
the discipline is unlawful because the supervisor, having
been disciplined for working a labor dispute, may
reasonably fear further discipline and, hence, will be de-
terred from working during any future disputes. The em-
ployer, in such circumstances, must either replace the
disciplined supervisor or risk loss of his services during a
future in either event, the employer is coerced in
the selection and retention of his chosen grievance ad-
justment representative. American Broadcasting Compa-
nies, supra, 433-437.
In light of the foregoing principles, the General Coun-
sel's contention, here, that Respondent's discipline of Su-
pervisor Stewart restrained and coerced the Employer in
the selection and retention of its grievance adjustment
representative-is clearly correct. Initially the record
evidence, as found supra, establishes that Stewart was a
supervisor for the Employer within the meaning of Sec-
tion of the Act and Stewart's responsibilities as a
supervisor includes the adjustment of
vances. Stewart was, thus, the Employer's representative
March 1978, agreement. It was on the basis of this testimony that Re-
spondent decided to discipline Stewart. I
8(b)(l)(B).
F.2d
8(b)(l)(B)
(Nothum
(1979),
Son Francisco-
18,
Inc.),
(1968), 524,
Chauffeurs, He lp
?rs Inc.),
(1974), supervi-
:ontract
defgnse
~nion
>Ute,
ias
.4ct.
Chewelah I ~ C . , ~
8(b)(l)(B)
lor
onun union
held
8(b)(l)(B)
B, Inlernarional
Lhion 73. A F L - C I O (Chewelah Contmcrors Inc.).
(:977), F.2d
supervisor-
Chewelah
8(f)
Chewelah
Broadcasting
affirmed
8(b)(l)(B) disciplineGnd
8(b)(l)(B).
adjustmenl
Inc.,?
8(b)(l)(B)
Mexim Disrricr S. Inc.).
5KI (1969). F.2d 1 1 16, (10th
1126 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
for the adjustment of grievances within the meaning of
Section
Furthermore, as I have described supra, when Respon-
dent learned that Stewart was working as a supervisor
for an employer who employed nonunion employees and
was not abiding by its collective-bargaining agreement
with Respondent, Respondent threatened Stewart with
discipline unless he ceased working for the Employer.
When Stewart ignored this threat Respondent preferred
intraunion charges against him, fined him, and expelled
him from Respondent because he was supervising non-
union employees and was failing to enforce Respondent's
collective-bargaining agreement. In these circumstances,
compliance by Stewart with Respondent's demands
"would have meant quitting the job with the employer,
thereby having the effect of depriving the Company of
the services of its selected representative for the purpose
of collective bargaining or the adjustment of griev-
ances." A. S. Horner, supra at 502. Accord: Skippy Enter-
prises, supra, 218 NLRB at 1064, enfd. 532 at 52-53.
I therefore find that Respondent's conduct restrained and
coerced the Employer in violation of Section
of the Act. See Sheet Metal Workers International Associ-
ation, Local No. 36 Manufacturing Company),
244 NLRB 244 where a supervisor-member was
disciplined by his union for working with employees
who were not union members and who were not receiv-
ing the contractual wage rate. Also see
Oakland Mailers' Union No. International Typographi-
cal Union (Northwest Publications, 172 NLRB 2173
and Teamsters Local No. International Broth-
erhood of Teamsters, Warehousemen and
of America (Yakima County Beverage Company,
212 NLRB 908 where unions disciplined
sor-members for refusing to take the unions' position in
disputes with the supervisors' employers.
Respondent's principle is that this case does
not involve a supervisor who has been disciplined by his
for failing to take the union's side in a labor dis-
but involves a situation where a supervisor-member
been disciplined for working for a nonunion employ-
er, which is the kind of discipline not proscribed by the
In support of this argument, Respondent cites the
court's decision in Contractors, where the
Court of Appeals for the Ninth Circuit denied enforce-
ment of a Board Decision and Order, wherein the Board
lound that a union violated Section of the Act
disciplining a supervisor-member for working for a
employer. In denying enforcement, the court
(at 1037):
A union does not violate Section by dis-
ciplining a member, even though that member is
also the bargaining representative of an employer, if
the union neither represents nor shows an intent to
represent the employer's employees.
I reject Respondent's defense for these reasons. As I
tave found supra, contrary to Respondent's contention,
N.L .R. v. Brotherhood of Electrical Workers, Local
No. 231 NLRB 809
enforcement denied 621 1035 (9th Cir. 1980).
the instant case involves a situation where a
member was disciplined for his failure to take Respon-
dent's side in a labor dispute with the Employer over the
enforcement of a collective-bargaining agreement. In any
event, the court's opinion in Contractors is in-
apposite because here the record overwhelmingly estab-
lishes that Respondent, at all times material had a strong
desire to represent the Employer's employees and was
actively engaged in a course of conduct toward this end.
Thus, Respondent and Employer were signatories to a
collective-bargaining agreement, albeit an agreement,
which Respondent was actively attempting to have the
Employer comply with at the time it initiated the disci-
plinary proceedings against Stewart.
Finally, with regard to Contractors, even as-
suming it is controlling, I am obligated to follow the
Board's decision in that case, unless the Board or the Su-
preme Court rules otherwise, especially where as here
the Board's position appears to have the support of the
Supreme Court and the opinions of other courts. Thus,
in American Companies, Inc. v. Writers
Guild of American, West, Inc., supra, the Supreme Court
the Board's finding that the union (which repre-
sented writers in the film industry) violated Section
by threatening to by disciplining
various supervisors-including directors-who worked
during the writers' strike. It was undisputed that the di-
rectors-who supervised other employees and adjusted
other employees' grievances-never dealt with writers
and did not adjust writers' grievances. In the Supreme
Court, the union argued that the threats and discipline
directed toward the directors could not possibly affect
their adjustment of writers' grievances and that therefore
the union's actions regarding the directors had not vio-
lated Section 437 U.S. at 437, fn. 37. The Su-
preme Court explicitly rejected the union's contention,
noting that "directors . . . had [grievance]
duties with respect to other employees" and finding that
the Union's sanctions made the directors "less than com-
pletely reliable and effective employer representatives for
the duration of the strike, and less likely to perform any
supervisory task during future strikes." Id. The court
then concluded: "A union may no more interfere with
the employer's choice of a grievance representative with
respect to employees represented by other unions than
with respect to those employees whom it itself repre-
sents." 437 U.S. at 438, fn. 37.
The Union involved in Writers Guild did, of course,
represent the employer's writing employees and, thus,
had a bargaining relationship with the coerced employ-
ers. However, the Supreme Court also made clear that
its rationale applied equally in circumstances where the
union did not represent the employees of the coerced
employer. Thus, the Supreme Court endorsed the
Board's decision in A. S. Horner. finding an
violation where the respondent union did not
represent the employees of the coerced employer. Refer-
' New Council of Carpenters (A. Horner. 177
NLRB enfd. 454 1 1 18 Cir. 1972).
1127
zpproval opinion"iscussing
[Horrler]
~ n i o n . circum-
stanc8:s 8(b)(I)(B)]
woulJ
servi8:es
grie\ances.
§8(bi(l)(B)
choceing."
F.2d
Furthe'more,
Riiters
courts
8(b)(l)(B)
Internatic~nal In-
ternationtrl AFL-CZO:
Trobtriodores De Muelles Ramas Anexas,
& International Corp,]
F.2c 1973),
ar'd International
S A:sociation, N. F.2d
559-560 1976),
th):
c i t ~ d
Guild,
pr,actices,
affirmat~ve
2(5) 8(b)
The
meanin:; 2(6)
Ri~ss
t i ~ r
2( l l )
Infer ~orionol Bmrhcrhood Elecrrfcol Workerr. Loco1 IJ4. Inrernorion-
ol Brorhtrhwd Elecrricol Workerr, [Florrdo Power & Llghr
Co.] I.I.L.R.B., F.2d 1155, (1973). affd. U.S.
(
8(b)(l)(B)
8(b)(l)(B)
2(6)
10(c)
Pipe-
AFL-
afirmative
~ p ~ r e n t i c e s i f
Sec.
Relat~ons lind-
Ings, conclus~ons, In
Sec. 102.48
for
PLUMBERS. LOCAL NO. 364
ring with to a D.C. Circuit

Horner, the Supreme Court stated (437 U.S. at 436, fn.

36):

The [D.C. Circuit] noted its agreement with
where a union member worked as a super-
visor for a company which had no contract with
the . . A fine imposed in these
violated [Section because compli-
ance by the supervisor with the union's demands
have required his leaving his job and thus
have the effect of depriving the Company of the
of its selected representative for the pur-
pose!, of collective bargaining or the adjustment of
. . . The [D.C. Circuit] said that Horner
thus "falls close to the original rationale of
which was to permit the employer to
keep the bargaining representative of his own
159 U.S. App. D.C., at 284, fn. 19, 487
at 1155, fn. 19.
in addition to the Supreme Court's deci-
sion in Guild and the Tenth Circuit's decision en-
forcing the Board's order in A. S. Horner, at least two
other of appeals have approved Board findings of
violations where the respondent union had no
bargaining relationship with the employer involved. See
Organization of Masters, Mates and Pilots
Marine Division, ILA, and Union
De Y Local 140
[Marine Marketing v. N.L.R.B.,
486 1271, 1274 (D.C. Cir. cert. denied 416
U.S. 950 (1974); Internationol Organization of Masters,
Motes Pilots Marine Division, Longshore-
men AFL-CIO v. L.R.B., 539 554,
(5th Cir. cert. denied 434 U.S. 828 (1977).
Both D.C. Circuit and the Fifth Circuit decisions
were with approval by the Supreme Court in Writ-
ers 437 U.S. at 438, fn. 37.
Havirg found that Respondent has engaged in unfair
labor I shall recommend that Respondent be
ordered to cease and desist therefrom and take to certain
action designed to effectuate the policies of
the Act
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
1. Respondent is a labor organization within the mean-
ing of Section and Section of the Act.
2. Employer is engaged in commerce within the
of Section and (7) of the Act.
3. Stewart, Jr., at all times material, was a super-
visor the Employer within the meaning of Section
of the Act, selected by the Employer for the pur-
e of
of A F L- C I O
v. 487 1143. fn. 19 417 790
1974).
pose, among others, of the adjustment of grievances
within the meaning of Section of the Act.
4. By preferring charges against Stewart, imposing a
fine against him, and expelling him from membership.
Respondent restrained and coerced the Employer in the
selection and retention of its representatives for the pur-
poses of collective bargaining and the adjustment of
grievances, and thereby has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section
of the Act, I hereby issue the following recommended:
The Respondent, Plumbers, Steamfitters and Refrig-
eration Local Union No. 364, United Association of
Journeymen and Apprentices of the Plumbing and
fitting Industry of the United States and Canada,
CIO, Calton, California, its officers, agents, and represen-
tatives, shall:
1. Cease and desist from:
(a) Restraining o r coercing William Stewart d/b/a
West Coast Contractors, or any other employer, in the
selection of its representatives for the purpose of collec-
tive bargaining or the adjustment of grievances by
threatening to try, trying, or disciplining any such repre-
sentative for performing supervisory, executive, o r man-
agerial functions for said employer.
(b) In any like or related manner restraining or coerc-
ing William Stewart d/b/a West Coast Contractors, o r
any other employer, in the selection of representatives
for the purpose of collective bargaining or the adjust-
ment of grievances.
2. Take the following action necessary to
effectuate the policies of the Act:
(a) Rescind and expunge from its records all disciplin-
ary action taken against Russ Stewart, Jr., including the
fine and his expulsion from membership, because of his
working for William Stewart d/b/a West Coast Contrac-
tors.
(b) Notify, in writing, United Association of Journey-
men and the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-CIO, of
said recission and expungement and request that said In-
ternational Union rescind and expunge any disciplinary
action it has taken against Stewart.
(c) Notify Russ Stewart, Jr., in writing, that the fine
levied against him and his expulsion from membership
have been rescinded; that all Local records of disciplin-
ary action against him have been expunged; and that Re-
g In the event no exceptions are filed as provided by 102.46 of the
Rules and Regulations o f the National Labor Board, the
and recommended Order herein shall, as provided
o f the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived all purposes.
1128
writ-
of ices
attached "Appendix."lo
noticc:,
const:cutive
cclvered
~ e ~ i o "
employees
( f )
step:,
--
' O
Orde.
ORDER
STEAMFIT~ERS
PIPE-
F I ~ T I N G
DECISIONS O F NATIONAL LABOR
spondent has so advised its International Union in
ing.
(d) Post at its and meeting halls copies of the
notice marked Copies of said
on forms provided by the Regional Director for
Region 21, after being duly signed by its authorized rep-
resentative, shall be posted by said Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
days thereafter, in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced,
or by any other material.
(e) Deliver to the Regional Director for 21,
signed copies of said notices in sufficient number for
posting by William Stewart d/b/a West Coast Contrac-
tors, said employer willing, at all locations where notices
to are customarily posted.
Notify the Regional Director for Region 21, in
writ ng, within 20 days from the date of this Order, what

Respondent has taken to comply herewith.

In the event that this Order is enforced by a Judgment of a United

State:; Court of Appeals, the words in the notice reading "Posted by

of the National Labor Relations Board" shall read "Posted Pursu-
ant t o a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS

POSTED BY OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE WILL NOT restrain or coerce William Stewart
d/b/a West Coast Contractors, or any other em-
ployer, in the selection of representatives for the
purpose of collective bargaining or the adjustment
of grievances by threatening to try, trying, o r disci-
plining any such representative for performing su-
pervisory, executive, o r managerial fucntions for
said employer.
WE WILL NOT restrain or coerce any employer in
any like o r related manner.
WE WILL rescind and expunge from our records
all disciplinary action taken against Russ Stewart,
Jr., including the fine and his expulsion from mem-
bership, because of his working for William Stewart
d/b/a West Coast Contractors.
W E WILL notify, in writing, our International
Union and Russ Stewart, Jr., that we have revoked
our action in so disciplining Russ Stewart, Jr., and
WE WILL request that the International Union re-
scind and expunge any disciplinary action it has
taken against Stewart, related thereto.
PLUMBERS, AND REFRIG-
ERATION LOCAL UNION NO. 364, UNITED
ASSOCIATION OF JOURNEYMEN AND AP-
PRENTICES OF THE PLUMBING AND
INDUSTRY OF THE UNITED STATES
AND CANADA, AFL-CIO.