Sheet Metal Workers, Local 361

National Labor Relations Board - Board Decisions

Feb 11, 1972

195 N.L.R.B. 355 (N.L.R.B. 1972)

SHEET METAL WORKERS, LOCAL 361 355
Sheet Metal Workers' International Association, Lo-
cal Union No. 361 (Langston & Co,, Inc .) and Elmer
C. Langston. Case 15-CB-1159
February 11, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
On August 25, 1971, Trial Examiner Thomas S. Wil-
son issued the attached Decision in this proceeding.
Thereafter, the General Counsel and the Charging
Party filed exceptions and supporting briefs and Re-
spondent Union filed an answering brief.'
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, conclusions, and recommendations
only to the extent consistent herewith
The complaint alleged that Respondent Union, Sheet
Metal Workers' International Association, Local Un-
ion No. 361, herein called Local 361, violated Section
8(b)(1)(B), 8(b)(1)(A), and 8(b)(2) of the Act when it
tried, fined, and expelled Elmer Langston (Elmer), the
Charging Party, who is the sheet metal superintendent
for Langston & Co., Inc., herein called the Employer,
and who was also a member of Local 361. The Trial
Examiner dismissed these allegations. For the reasons
stated below, we disagree.
The Employer is a family-owned corporation en-
gaged in the plumbing, heating, air-conditioning, and
sheet metal installation and repair business. Its presi-
dent is Earl Langston (Earl), the brother of Elmer. By
virtue of its authorization to the North Louisiana
Roofing & Sheet Metal Contractors' Association, the
Employer is a party to a contract with Local 361, con-
taining an admittedly legal 8-day union-security clause
and providing for the submittal to a joint board of all
disputes arising out of the interpretation and enforce-
ment of the collective-bargaining agreement. While in
practice the Employer has obtained its sheet metal
workers from Local 361, it is not clear from the face of
the contract's referral provision that the hiring arrange-
ment between the parties is an exclusive one.
Elmer has been employed by the Employer since
1949. Since about 1955 he has been the Employer's
sheet metal department superintendent in charge of all
of the Employer's sheet metal work. On occasion, when
work was not available from the Employer, he worked
elsewhere out of Local 361's hall. Elmer has been a
member of Local 361 from'between 12 to 15 years. The
Sheet Metal Workers' International Association Con-
stitution and Ritual , adopted by Local 361, permits
foremen and superintendents who are not owners or
partners in a contracting business to obtain and retain
membership in Local 361.
In 1969, the Employer contracted to install the sheet
metal work in connection with the construction of two
hospitals: the LaSalle Hospital in Jena, Louisiana, and
the Compass Medical Facility at England Air Force
Base, herein referred to as Jena and England, respec-
tively. Elmer was in charge of the sheet metal work at
both these sites until February 18, 1970.2 In such
capacity, the Trial Examiner found, and Local 361's
brief admits, Elmer did all the hiring and firing and
adjusted on-the-job grievances for the Employer.
From the beginning of the Jena job until February
18, the Employer's sheet metal work at Jena was done
by two employees under the direction of Elmer, both of
whom were members of Local 361. On February 18,
the Employer transferred all three men to the England
site . According to the uncontradicted testimony of
Earl, the Employer was forced to make this move be-
cause Local 361 refused to supply it with additional
sheet metal workers, so that the Employer had to con-
centrate its whole force at England. Earl also testified,
without contradiction, that Elmer had no authority at
Jena from February 18 to May 8, and that the Em-
ployer had subcontracted the Jena job on an oral day-
to-day arrangement to Mechanical Manpower, Inc.,
herein called MM, a corporation formed on February
9, whose sole direction is under Lloyd Langston, son of
Earl and also a stockholder and director of the Em-
ployer. Under this arrangement , MM supplied sheet
metal workers whom, Earl admitted, he knew to be
members of Allied Federation of Unions, Local No.
101, herein called District 101.' However, Earl ac-
knowledged that he never informed the general con-
tractor, James Radcliffe, that the Employer was not
continuing the sheet metal work under its subcontract
on the Jena project.
On April 1, two employees, one of them Lloyd Lang-
ston, and both of them members of District 101, began
working at Jena. About this time Local 361 heard ru-
mors that the Employer was working non-Local 361
sheet metal workers at Jena. These rumors were
verified on two occasions thereafter. Toward the end of
April, Local 361's business manager, O. S. Anthony,
' Respondent Union's request to disregard the General Counsel's excep-
tions as failing to meet the requirements of the Board's rules and regulations
is hereby denied as lacking in merit
195 NLRB No. 65
x All dates hereinafter referred to are in 1970.
The parties stipulated that District 101 and Local 361 had for a number
of years been involved in numerous Labor Board and court cases, allegedly
arising out of the raiding tactics of District 101
SHEET METAL WORKERS , LOCAL 361 355
Sheet Metal Workers' International Association, Lo-
cal Union No. 361 (Langston & Co., Inc.) and Elmer
C. Langston . Case 15-CB-1159
February 11, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
On August 25, 1971, Trial Examiner Thomas S. Wil-
son issued the attached Decision in this proceeding.
Thereafter, the General Counsel and the Charging
Party filed exceptions and supporting briefs and Re-
spondent Union filed an answering brief.'
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, conclusions, and recommendations
only to the extent consistent herewith
The complaint alleged that Respondent Union, Sheet
Metal Workers' International Association, Local Un-
ion No. 361, herein called Local 361, violated Section
8(b)(1)(B), 8(b)(1)(A), and 8(b)(2) of the Act when it
tried, fined, and expelled Elmer Langston (Elmer), the
Charging Party, who is the sheet metal superintendent
for Langston & Co., Inc., herein called the Employer,
and who was also a member of Local 361. The Trial
Examiner dismissed these allegations. For the reasons
stated below, we disagree.
The Employer is a family-owned corporation en-
gaged in the plumbing, heating, air-conditioning, and
sheet metal installation and repair business. Its presi-
dent is Earl Langston (Earl), the brother of Elmer. By
virtue of its authorization to the North Louisiana
Roofing & Sheet Metal Contractors' Association, the
Employer is a party to a contract with Local 361, con-
taining an admittedly legal 8-day union-security clause
and providing for the submittal to a joint board of all
disputes arising out of the interpretation and enforce-
ment of the collective-bargaining agreement. While in
practice the Employer has obtained its sheet metal
workers from Local 361, it is not clear from the face of
the contract's referral provision that the hiring arrange-
ment between the parties is an exclusive one.
Elmer has been employed by the Employer since
1949. Since about 1955 he has been the Employer's
sheet metal department superintendent in charge of all
of the Employer's sheet metal work. On occasion, when
work was not available from the Employer, he worked
elsewhere out of Local 361's hall. Elmer has been a
member of Local 361 from between 12 to 15 years. The
Sheet Metal Workers' International Association Con-
stitution and Ritual , adopted by Local 361, permits
foremen and superintendents who are not owners or
partners in a contracting business to obtain and retain
membership in Local 361.
In 1969, the Employer contracted to install the sheet
metal work in connection with the construction of two
hospitals: the LaSalle Hospital in Jena, Louisiana, and
the Compass Medical Facility at England Air Force
Base, herein referred to as Jena and England, respec-
tively . Elmer was in charge of the sheet metal work at
both these sites until February 18, 1970.2 In such
capacity, the Trial Examiner found, and Local 36l's
brief admits, Elmer did all the hiring and firing and
adjusted on-the-job grievances for the Employer.
From the beginning of the Jena job until February
18, the Employer' s sheet metal work at Jena was done
by two employees under the direction of Elmer, both of
whom were members of Local 361. On February 18,
the Employer transferred all three men to the England
site. According to the uncontradicted testimony of
Earl, the Employer was forced to make this move be-
cause Local 361 refused to supply it with additional
sheet metal workers, so that the Employer had to con-
centrate its whole force at England. Earl also testified,
without contradiction, that Elmer had no authority at
Jena from February 18 to May 8, and that the Em-
ployer had subcontracted the Jena job on an oral day-
to-day arrangement to Mechanical Manpower, Inc.,
herein called MM, a corporation formed on February
9, whose sole direction is under Lloyd Langston, son of
Earl and also a stockholder and director of the Em-
ployer. Under this arrangement , MM supplied sheet
metal workers whom, Earl admitted, he knew to be
members of Allied Federation of Unions, Local No.
101, herein called District 101.' However, Earl ac-
knowledged that he never informed the general con-
tractor, James Radcliffe, that the Employer was not
continuing the sheet metal work under its subcontract
on the Jena project.
On April 1, two employees, one of them Lloyd Lang-
ston , and both of them members of District 101, began
working at Jena . About this time Local 361 heard ru-
mors that the Employer was working non-Local 361
sheet metal workers at Jena. These rumors were
verified on two occasions thereafter. Toward the end of
April, Local 361's business manager , O. S. Anthony,
' Respondent Union's request to disregard the General Counsel's excep-
tions as failing to meet the requirements of the Board's rules and regulations
is hereby denied as lacking in merit
All dates hereinafter referred to are in 1970
The parties stipulated that District 101 and Local 361 had for a number
of years been involved in numerous Labor Board and court cases, allegedly
arising out of the raiding tactics of District 101
195 NLRB No. 65
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other union representatives went to the England
project and asked Elmer about the District 101 work-
men at Jena. According to the credited testimony of
Anthony, Elmer told Anthony that he had checked
their cards and that both of the men were in good
standing with Local 361. However , as previously men-
tioned , it is undisputed that Elmer had no authority at
the Jena project at this time.
On April 29, Local 361 filed a grievance with the
North Louisiana Roofing & Sheet Metal Contractors
Association charging the Employer with violating the
referral and union-security provisions in the collective-
bargaining contract . On May 1 , Local 361 again
checked the Jena job and confirmed that neither of the
two sheet metal workers had a Local 361 card and both
had District 101 cards. That same day Local 361 sent
the Employer a telegram requesting it to comply with
the union-security clause of the contract between the
parties in regard to the two men on the Jena job. Later
that same day, the Employer replied by stating that
Local 361 had not complied with the referral provision
which precedes compliance with the union-security
clause . The Employer also said that Local 361's filing
of a grievance should take care of the union-security
problem. In addition, the Employer told Local 361 to
have men report to England and that it would select
and transfer them to Jena.
On May 4, Local 361 struck Jena because of the
presence of the District 101 men. On May 8, the Em-
ployer and Local 361 settled their differences concern-
ing the District 101 men and the strike ended. Two
Local 361 members were returned to the Jena job by
Elmer on May 11, while Local 361 sent at least four
workers to England as requested. Four of these men
were paid off and discharged on May 11, the day they
reported. During the following week, Local 361 sup-
plied the Employer with about 15 workers.
The Employer's portion of the Jena project was com-
pleted on or about June 1 by the two Local 361 men
without further trouble. However, there was trouble
between the Employer and Local 361 at the England
site, where on May 28 the Employer paid off all the
Local 361 employees without indicating when, if ever,
they might be recalled. Local 361 then filed another
grievance against the Employer claiming that the Em-
ployer had locked out its Local 361 employees and had
failed to make contributions to the health and welfare
fund for the District 101 men who had been employed
at Jena. This grievance was heard by the joint board
which decided that the charge of lockout was unjus-
tified, but upheld the grievance as to the nonpayment
of the contractually required contributions. Thereafter,
Local 361 collected these contractual contributions by
legal action.
Subsequently , both the Jena and England projects
were completed . At the time of the hearing herein, the
Employer had no sheet metal work in progress.
On July 17, Local 361 filed the charges against El-
mer, the nature of which will be discussed below and
which are the basis of the unfair labor practice allega-
tions herein . A hearing was held on October 16, after
which the trial committee found Elmer guilty as
charged and recommended that he be expelled from
Local 361 for life and fined $2,500 . This decision was
thereafter affirmed by the membership . On December
4, Elmer appealed this decision to the International,
which appeal was still pending as of the date of the
hearing. In order to prosecute his appeal , Elmer paid
$50 as a portion of his fine.
It is undisputed that Elmer Langston is a supervisor
within the meaning of the Act, and that he was fined
by Respondent in the amount of $2,500 and expelled
from membership in Respondent.
The charges against Elmer Langston which resulted
in the fine and expulsion are set forth in detail in the
Trial Examiner 's Decision . They include a number of
items which were part and parcel of his supervisory
duties, including , inter alia, "fireing [sic] Sheet Metal
Workers sent to the job before they had a chance to
prove themselves," and an allegation that he "did dis-
charge one man without pay."
It is clear from our prior decisions that union fines
predicated upon a member's conduct and action as a
supervisor violate Section 8(b)(1)(B) of the Act. Toledo
Locals Nos. 15-P and 272 of the Lithographers and
Photoengravers International Union, AFL-CIO (The
Toledo Blade Company, Inc.), 175 NLRB 1072; San
Francisco-Oakland Mailers ' Union No. 18, ITU
(Northwest Publications, Inc.), 172 NLRB No. 252; and
Sheet Metal Workers International Association, Local
Union 49, AFL-CIO (General Metal Products, Inc.),
178 NLRB 139, enfd . 430 F. 2d 1348 (C.A. 10). Simi-
larly, the expulsion of a supervisor from a union, based
upon the same conduct , violates the proscriptions of
Section 8(b)(1)(B) of the Act , as amended. Dallas Mail-
ers Union, Local No. 143, and International Mailers
Union (Dow Jones Company, Inc.), 181 NLRB 286,
enfd . 445 F .2d 730 (C.A.D.C.).
The Trial Examiner , however, did not find the con-
duct here to be violative of the Act, because , in his view,
the Union disciplined Elmer Langston for actions
which "the Union , as a reasonable person , could and
did believe in good faith and for good cause constituted
unfair labor practices against it, his own Union, in
violation of the 8(a) part of the same Act."
We disagree with both the factual and legal basis for
his conclusion, at least upon this record.
The Trial Examiner did not find that the above-
mentioned discharges made by Langston were dis-
criminatory or in any way violative of our Act. Yet it
SHEET METAL WORKERS , LOCAL 361 357
is uncontested that the fine and expulsion were based,
in part at least, upon Langston's having initiated such
discharges. This is sufficient to establish a violation of
Section 8(b)(1)(B), and, contrary to the Trial Exam-
iner, we so find.
We turn now to his dismissal of the 8(b)(1)(A) and
(2) allegations. The internal union disciplinary charges
against Elmer Langston included the following allega-
tions:
Bro Elmer Langston was a party to and knowingly
agreed to work with and encourage the Company
to hire Employee's of Allied Federations of Un-
ions Local 101. Bro. Elmer Langston membership
# 339041 was and still is Foreman, with the right
to hire and fire Employee's. The above Employee's
were hired and placed to work at Jena, Louisiana.
Bro. Elmer Langston stated they were members in
good standing of the Union, but after checking
they were members of Local # 101, Allied Federa-
tion of Union Local # 101. Article 17, Sec. 1 (f).
[Sic.]
We believe it plain from the above-quoted allegation
that the Union was prosecuting Elmer Langston for
hiring Local 101 members, rather than hiring members
in good standing of Respondent, or, in other words, for
not insisting, in his capacity as foreman, that anyone
hired be a member of Respondent as a condition
preceding hire.
The Trial Examiner dismissed these allegations on
the grounds that the evidence did not show an immedi-
ate protest by Respondent when Local 101 men were
hired, and that the protest came more than 8 days after
their hire, at which time it would have been proper to
require them to join Respondent Union as a condition
of continued employment.
But it is our view that the Trial Examiner's explana-
tion does not square with the union allegations against
Elmer Langston. Those allegations make no complaint
of a failure to enforce a union-security clause after the
employees were hired. Instead, they complain that
"The above Employee's [sic] were hired and placed to
work at Jena, Louisiana." The Union's complaint,
then, was that Elmer had sanctioned the hiring of these
men. And why was this hiring offensive to the Union?
Because, to paraphrase the rest of the allegation, they
were not members of Respondent but, instead, were
members of another union. Thus Elmer's sin, as the
Union saw it, was that he failed to require membership
in Respondent as a condition preceding employment.`
We therefore find that Respondent's discipline of Lang-
ston was, in part, an attempt to cause him, as the
' Since we find the language of the union allegations clear enough in this
respect , we need not reach General Counsel 's exceptions relating to the
Trial Examiner's exclusion of the transcript of the Union hearing which was
offered as further proof that this was indeed the gravamen of this allegation
Employer's representative, unlawfully to discriminate
against applicants for employment in violation of Sec-
tion 8(a)(3) of the Act. We find that, by engaging in
such conduct, Respondent violated Section 8(b)(1)(A)
and (2) of the Act.
The gravamen of the Trial Examiner's rationale for
dismissal requires some further comment. In his deci-
sion he reviews the detailed sequence of events which
preceded the union disciplinary action against Lang-
ston and concludes that the Employer's principals
were, throughout, engaged in "a surreptitious, clandes-
tine scheme" designed to rid the employer of the Re-
spondent Union and, if necessary, to replace it with
another union, a "hated rival" of Respondent. He fur-
ther appears to conclude that Elmer Langston was in-
volved in this conspiracy, and that the Union's actions
here were designed to combat this improper activity by
the Employer, and, particularly, to deter Langston
from participating therein.
Without weighing the truth or relevance of this view
of the facts, the evidence in this record demonstrates
that Respondent exceeded permissible legal bounds in
the actions it took. Thus, however sincerely or legiti-
mately concerned Respondent may have been at what
it regarded as overall improper conduct by the Em-
ployer and its Supervisor Elmer Langston, it must nev-
ertheless be found to have run afoul of specific prohibi-
tions of our Act when it fined Langston for (a)
exercising permissible and normal supervisory func-
tions with respect to the discharge of employees, and
(b) failing to require membership in Respondent as a
condition precedent to employment with the Em-
ployer.
Neither the Trial Examiner nor we have the au-
thority to overlook or excuse such violations of the
statute merely because Respondent may have been
motivated in resorting to such excesses by a belief,
however good faith that belief may have been, that in
so doing it might succeed in deterring Employer or its
agents from violating other provisions of our Act.
A union faced with such concerns is not without
remedies. Contractual violations can be remedied
through appropriate grievance procedures. Violations
of this Act may be pursued by filing charges with this
Agency. Self-help, through the exercise of statutorily
protected strike and picketing activity, may also be
available.
But the use of coercive tactics specifically banned by
Section 8(b) will not be sanctioned by this Board.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Sheet Metal
Workers' International Association, Local Union No.
361, its officers, agents, and representatives, shall:
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Restraining or coercing, or attempting to restrain
or coerce Langston and Company, Inc., in the selection
or retention of its representatives for the purposes of
collective bargaining or the adjustment of grievances by
trying, fining, and expelling, or otherwise disciplining,
Superintendent Elmer Langston or any other super-
visor of the Employer, because of his conduct and per-
formance of work as the Employer's selected represent-
ative for the purposes of collective bargaining or the
adjustment of grievances.
(b) Causing or attempting to cause Langston and
Company, Inc., to discriminate against employees
within the meaning of Section 8(a)(3) of the Act by
trying, fining , and expelling Elmer Langston, the Em-
ployer's representative, for the purposes of collective
bargaining and adjustment of grievances, or any other
supervisor for hiring nonunion employees.
(c) In any like or related manner restraining or coerc-
ing Langston & Co., Inc., in the selection and retention
of its representatives for the purposes of collective bar-
gaining and the adjustment of grievances, or restraining
or coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Repay to Elmer Langston the $50 he posted to
prosecute his appeal, with interest at 6 percent per
annum.
(b) Rescind the action taken in expelling Elmer
Langston from membership in Local 361.
(c) Make Elmer Langston whole for any losses he
may have suffered by reason of Local 361's action in
expelling him from membership in Local 361, with
interest at 6 percent per annum.
(d) Rescind the $2,500 fine imposed against Elmer
Langston and excise its imposition from Local 361's
records.
(e) Excise all reference to the charges against and
trial, fining, and expulsion of Elmer Langston from
Local 36l's records.
(f) Advise Elmer Langston in writing that it has
taken the action required in (a)-(e) above.
(g) Post at its business office, union hall, or any
places where it customarily posts notices to its mem-
bers copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gional Director for Region 15, after being duly signed
by an authorized representative of Local 361, shall be
posted by it immediately upon receipt thereof, and be
' 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 OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD "
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 Local 361 to insure that said notices
are not altered, defaced, or covered by any other
material.
(h) Furnish the Regional Director for Region 15
signed copies of such notice for posting by Langston &
Co., Inc., if willing, in places where notices to em-
ployees are customarily posted.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain and coerce Langston &
Co., Inc., in the selection and retention of its repre-
sentatives, including Elmer Langston, for pur-
poses of collective bargaining and adjustment of
grievances.
WE WILL NOT cause or attempt to cause Lang-
ston & Co., Inc., to refuse to hire nonunion em-
ployees in violation of Section 8(a)(3) of the Na-
tional Labor Relations Act.
WE WILL NOT prefer charges against, try, fine,
expel, or similarly discipline Elmer Langston, or
any other supervisor of Langston & Co., Inc., as
a member of this labor organization, as to matters
concerning their employment while such member
is the selected representative of Langston & Co.,
Inc., as its representative for the purposes of col-
lective bargaining or the adjustment of grievances.
WE WILL rescind the $2,500 fine imposed upon
Elmer Langston and excise or blot out all refer-
ence of its imposition from our records and ex-
punge from our records all references in our files
to the proceedings in which Elmer Langston was
fined.
WE WILL rescind the expulsion of Elmer Lang-
ston from union membership and restore him to
membership in the Union with all the rights and
privileges due him and remove from our records
any reference to such expulsion.
WE WILL repay to Elmer Langston the $50 he
paid to Local 361 to prosecute his appeal, with
interest at 6 percent per annum.
WE WILL advise Elmer Langston in writing
that we have taken the aforesaid action.
WE WILL make Elmer Langston whole for any
losses he may have suffered by reason of Local
361's action in expelling him from membership in
Local 361 with interest at 6 percent per annum
from the date of such losses.
SHEET METAL WORKERS , LOCAL 361
SHEET METAL
WORKERS'
INTERNATIONAL
ASSOCIATION,
LOCAL UNION
No. 361
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, T6024 Federal Building (Loyola), 701 Loyola
Avenue, New Orleans, Louisiana 70113, Telephone
504-527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner : Upon a charge duly
filed on February 24, 1971, and thereafter amended on March
25, 1971, and on April 12, 1971, by Elmer C. Langston, an
individual , and hereinafter referred to as Elmer or the Charg-
ing Party, the General Counsel of the National Labor Rela-
tions Board, hereinafter referred to as the General Counsel'
and the Board , respectively , by the Regional Director for
Region 15 (New Orleans , Louisiana), issued its complaint
dated April 12, 19712 against Sheet Metal Workers Interna-
tional Association , Local Union No. 361 , herein called Re-
spondent or Local 361.
The complaint alleged that Respondent Union had en-
gaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (b)(1)(A) and (B)
and Section 8(b)(2) and Section 2(6) and (7) of the Labor
Management Relations Act, as amended, herein referred to
as the Act.
Respondent duly filed its answer admitting certain allega-
tions of the complaint but denying the commission of any
unfair labor practices.
Pursuant to notice, a hearing hereon was held before me
in Alexandria, Louisiana, from May 10 through May 12,
1971, inclusive . All parties appeared at the hearing, were
represented by counsel , and were afforded full opportunity to
be heard , to produce and cross -examine witnesses, and to
introduce evidence material and pertinent to the issues. At
the conclusion of the hearing , oral argument was waived.
Briefs were received from the General Counsel and Respond-
ent on June 23, 1971.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
' This term specifically included the attorney appearing for the General
Counsel at the hearing.
' All dates herein are in the year 1970 unless otherwise specified
FINDINGS OF FACT
I BUSINESS OF LANGSTON & CO
359
The complaint alleged , the answer admitted, and I there-
fore find:
Langston & Co., herein called L & Co., is a Louisiana
corporation with its principal place of business located in
Alexandria , Louisiana , where it is engaged in the plumbing,
air conditioning , and ventilation equipment installation and
service business . During the past 12 months , which period is
representative of all times material herein , L & Co. purchased
and received goods and materials valued in excess of $50,000,
which goods and materials were shipped directly to it in the
state of Louisiana from points outside of the State of Louisi-
ana.
Accordingly, I find that L & Co. is now, and has been at
all times material herein , an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
II THE RESPONDENT
Sheet Metal Workers International Association , Local Un-
ion No. 361, is a labor organization admitting to membership
employees of L & Co.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
L & Co., the employer here , is a corporation headquartered
in Alexandria , Louisiana , engaged in the plumbing , heating,
air conditioning , and sheet metal installation and repair busi-
ness . Although incorporated, L & Co. is really more of a
family affair . Its president is Earl Langston . Its only stock-
holders are Earl,' his wife , Pauline , his brother , Howard, and
his son Lloyd R. The board of directors consists of all those
named above except Pauline.
In the latter part of 1969, L & Co. received contracts to
install the sheet metalwork in the construction of two hospi-
tals, the Lasalle Hospital in Jena , Louisiana , and the Com-
pass Medical Facility at the England Air Force Base, which
will referred to here as the Jena project and the England
project, respectively. These jobs were some 40-odd miles
apart.
Elmer Langston (Elmer), a brother of Earl, was the sheet
metal department superintendent in charge of the sheet metal
jobs at both Jena and England for L & Co. Elmer had been
the sheet metal department 's superintendent for L & Co. for
a number of years in charge of all L & Co. sheet metalwork.
As superintendent, Elmer did all the hiring and firing and
adjusted grievances for and on behalf of L & Co. on its sheet
metal jobs . Earl testified that he personally spent about 1 hour
per week at the Jena and England projects . Hence to all
intents and purposes , Elmer was L & Co. on these projects.
At all times material here L & Co. was a signatory to a
collective-bargaining agreement with Local 361 providing,
inter alia, for an admittedly legal union -security clause re-
quiring membership in Local 361 after 8 days of employment,
the hiring of employees through a nondiscriminatory hiring
hall and for submittal to a joint board of all disputes arising
out of interpretation and enforcement of the collective agree-
ment . L & Co. also was a member of the North Louisiana
Roofing and Sheet Metal Contractors Association which
represented such contractors in their relations with Local
361.
' Due to the number of Langstons involved herein , each will be referred
to herein by his given name in order to differentiate among them
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the beginning of the Jena job until at least February
18, 1970,' L & Co.'s sheet metalwork at Jena was being done
by employees Ewell Langston ,' as foreman , and Frankie
McCann, both members of Local 361 , under the direction of
Sheet Metal Department Superintendent Elmer , also a mem-
ber of Local 361. On or about February 18, according to the
testimony of Earl , L & Co. transferred Elmer and employees
Ewell and McCann to the England project from Jena , thereby
apparently leaving the Jena project without any L & Co.
employees.6
On April 28, Local 361 's business manager , O. S. Anthony,
accompanied by Wallace R. Rutherford , business manager of
Local 21 of the Sheet Metal Workers Union , and Area Stew-
ard Sanson returned to the Jena project and on this occasion
found that there were two sheet metalworkers still doing the
sheet metalwork at the Jena project . One of these employees
was identified as Jimmy Gauthier whom Rutherford recog-
nized as a former member of his Local 21 . Anthony asked
him for his union credentials . Gauthier produced an out-of-
date Local 21 receipt and then a card indicating his member-
ship in District 101 of Allied Federation of Unions . The other
sheet metal employee again managed to depart the project
without showing his credentials.
At or about this time Gauthier had been observed going in
and out of the sheet metal shop of L & Co. in Alexandria.
Following the discovery of the two District 101 men work-
ing on the sheet metalwork at Jena , Anthony , Rutherford,
and Sanson drove to the England project where Anthony
asked Elmer about the District 101 workmen at Jena. Elmer
informed Anthony that he, Elmer , had checked their cards
and that both of the men were in good standing with Local
361.6
On April 29, after having telephoned Earl in regard to
these District 101 men working on the Jena job and having
Earl thereupon slam the telephone down in his ear , Anthony
filed the following grievance with the North Louisiana
Roofing and Sheet Metal Contractors Association:
The Union is filing grievance against Langston &
Company, Inc., P . O. Box 5053 , Alexandria , Louisiana
71301, for violation of union agreement . Article IV, Sec-
tion I. Article V, Section I.
Statement of Fact.-
Article IV. The Union has not been contacted, or any
request made by Langston & Company , for qualified
sheet metal workers.
Article V. Langston & Company did have and still has
nonunion sheet metal workers in his employ on the Jena,
Louisiana , hospital . After contacting Mr. Langston to
All dates are in the year 1970 unless otherwise specified.
Another brother of Earl.
According to the testimony of Earl, for which there is no corroboration
in the record, L & Co was forced to make this move on the ground that
Local 361 refused to supply it with sheet metalworkers so that L & Co had
to concentrate its whole work force at England.
About April 1, Local 361 heard rumors that L & Co was working non-
Local 361 sheet metalworkers at Jena On April 17, Local 361' s area stew-
ard, James Sanson , went to Jena to check on this rumor and discovered that
there were two sheet metal employees doing the L & Co sheet metalwork
on the Jena job He was unable to check on the individual workmen as they
both departed the job upon his arrival . But Sanson was informed by the
superintendent for the general contractor that these men were working for
L & Co.and that the general contractor looked to L & Co for the sheet
metalwork on the Jena project'
Earl acknowledged that L & Co. never informed the general contractor
that L & Co. was not continuing the sheet metalwork under its subcontract
on the Jena project.
District 101 Allied Federation of Unions and Local 361 had for a
number of years last past been involved in numerous Labor Board cases and
court cases allegedly arising out of the raiding tactics of District 101
discuss the matter, Mr. Langston hung up the phone in
the business manager 's ear . The Union requests a speedy
hearing concerning this matter and requests the right to
cancel the agreement . Charges should be heard within
the time limit set forth in the agreement.
On May 1, Sanson again checked the Jena job and on this
occasion was able to check the credentials of both Gauthier
and the other sheet metalworker on the job. The other sheet
metalworker was Lloyd R. Langston, the 35-year-old son of
Earl, the stockholder and director of L & Co. who, prior to
1969, had worked for L & Co. as an estimator. Neither was
able to produce a Local 361 card but did produce District 101
cards for inspection.
On May 1, Local 361, over the signature of Anthony, sent
L & Co. the following telegram:
Dear Sirs In accordance with Article Five of your
signed agreement with this Union employees Jimmy
Gauthier and Lloyd R. Langston are not in good stand-
ing of the Sheet Metal Workers International Assn. Lo-
cal Union 361 please comply with contract and notify
this Union by return wire of your intentions.
Later that same day, L & Co. answered as follows:
Retel, Article 4, which you have not complied with'
precedes [sic] Article V. Please comply with our wire of
4-30. Your grievance filing should take care of Article V.
Have men report to EAFP job. We will select and trans-
fer to Jena job. Thank you.
On May 4, Local 361 struck the Jena project because of the
presence of the District 101 men. On May 8, Earl and Local
361 settled their differences over the District 101 men. On
May 11, Ewell and McCann were returned to the Jena job by
Elmer while Local 361 sent at least four sheet metalworkmen
to England as requested. Four of these men were paid off and
discharged on May 11, the day they reported as requested for
work. During the following week or 10 days, Local 361 sup-
plied L & Co. with approximately 15 sheet metalworkers.
L & Co.'s part of the Jena project was thereafter completed
on or about June 1 by Ewell and McCann without further
trouble between L & Co. and Local 361 at Jena.
There was, however, trouble between L & Co. and Local
361 at England where, on May 28, L & Co. paid off all the
Local 361 employees without any indication as to when, if
ever, they might be recalled. L & Co. took this action on the
day when building inspectors conducted an investigation of
the building construction at the request of a Louisiana con-
gressman who had been alerted to alleged deficiencies in the
construction by a member of Local 361.
Anthony promptly filed another grievance against L & Co.
claiming that L & Co. had locked out its Local 361 employees
and had failed to pay contributions to the health and welfare
fund for the District 101 men who had been employed at
Jena. This grievance was heard by the joint board which
decided that the charge of lockout was unjustified but upheld
the grievance as to the nonpayment of the contractually re-
quired contributions. Thereafter, Local 361 collected these
contractual contributions by legal action. Since then relations
between L & Co. and Local 361 have been more peaceful,
possibly due to the completion of both the Jena and the
England jobs. At the time of the hearing L & Co. had no sheet
metalwork in progress.
On July 17 the following charge over the signature of O.
S. Anthony was filed with Local 361 against Elmer:
In accordance with the Constitution of the Sheet Metal
Workers' International Association, charges are being
' This statement is the only purported corroboration of Earl's claim that
Local 361 had failed to furnish L & Co with men It is also the first written
request by L & Co for men since February 9
SHEET METAL WORKERS , LOCAL 361 361
placed against Brother Elmer Langston, membership
# 339041, for violation of Article 17, Sec. (c). Article 17,
Sec. (e) Article 17, Sec. 1 (f) and Article 17, Sec. I (m).
Statement of Fact.-
Bro. Elmer Langston Membership #339041, did slan-
der the Sheet Metal Workers' Union Local #361. He
stated in public that the entire Local was nothing but a
bunch of drunks. Article 17, Sec. 1 (c).
Bro. Elmer Langston did and is still breaking down
working conditions. Bro. Elmer Langston did defy the
Business Manager by fireing (sic) Sheet Metal Workers'
sent to the job before they had a chance to prove them-
selves. Bro. Elmer Langston did discharge one man
without pay. Article 17, Sec. 1 (e).
Bro Elmer Langston was a party to and knowingly
agreed to work with and encourage the Company to hire
Employee's of Allied Federations of Unions Local 101.
Bro. Elmer Langston membership #339041 was and
still is Foreman, with the right to hire and fire Em-
ployee's. The above Employee's were hired and placed
to work at Jena, Louisiana. Bro. Elmer Langston stated
they were members in good standing of the Union, but
after checking they were members of Local # 101, Allied
Federation of Union Local # 101. Article 17, Sec. 1 (f).
Bro. Elmer Langston's conduct during the time we had
trouble with The Langston and Company was not in
favor of the Union. This made the Local Union look sick
in the eyes of the public Article 17, Sec. 1(m).
On October 16, a hearing on these charges was held before
the duly constituted trial committee of Local 361. After a
hearing which Elmer attended, the trial committee found
Elmer guilty as charged and recommended that he be ex-
pelled from the Union for life and fined $2,500. At a regular
meeting, Local 361 voted to affirm the decision of the trial
committee. On December 4, Elmer appealed this decision to
the International Union. At the time of the instant hearing
this appeal was still pending.
B. Conclusions
The gravamen of General Counsel's complaint against Lo-
cal 361 is set forth in paragraphs 8 and 9 thereof. The allega-
tions of paragraph 8, together with its conclusionary para-
graph 10, clearly allege the elements necessary for a violation
of Section 8(b)(1)(B) of the Act by Respondent."
The allegations in paragraph 9, together with its conclu-
sionary paragraph 11 alleging that paragraph 9 states viola-
tions of Section 8(b)(1)(A) and (2) of the Act, however are
something else again. Whether the pleading of paragraph 9
applies only to Elmer or, on the other hand, is intended to
encompass Lloyd and Gauthier and/or even theoretical fu-
ture employees, neither the pleading nor the brief of General
Counsel makes clear. I acknowledge that the allegations of
paragraph 9 confuse me. General Counsel's brief had done
nothing to clear up this confusion.
Paragraph 9 of the complaint reads as follows:
Commencing on or about October 16, 1970 and continu-
ing to date, Respondent, by trying, fining, and expelling
Elmer C. Langston from membership in Respondent
because he "was a party to, and knowingly agreed to
work with and encourage the company to hire em-
Section 8(b)(1)(B) reads as follows
Section 8(b) it shall be an unfair labor practice for a labor organization
or its agents-(1) to restrain or coerce (B) an employer in the selec-
tion of his representatives for the purposes of collective bargaining or
the adjustment of grievances,
ployees of Allied Federation of Union, Local No. 101,""
thereby attempted to cause , and is attempting to cause,
the Company to discriminate against employees because
of their non-membership in Respondent and in violation
of Section 8(a)(3) of the Act.
Despite the obtuse phraseology of paragraph 9 of the com-
plaint, for our purposes here paragraph 9 can be rapidly
disposed of for the simple reason that , no matter how inter-
preted, this paragraph is both factually and legally incorrect
on the facts as disclosed by the testimony herein.
As far as Section 8(b)(2) of the Act is concerned, the evi-
dence produced here conclusively shows that Local 361 never
"caused or attempted to cause" L & Co. to discriminate
against employees because of their nonmembership in Re-
spondent and in violation of Section 8(a)(3) of the Act as
required by that section of the Act. First, Elmer was an
admitted supervisor to whom Section 8(a)(3) does not apply
so that there could be no violation of Section 8(a)(3) even if
the Union had caused L & Co. to discharge him, which the
Union did not do or attempt to do.i" Second, under the as-
sumption that paragraph 9 involved Lloyd and Gauthier, in
addition to Elmer, the evidence here proves conclusively that
Local 361 did not protest the hiring of these two District 101
men. The evidence proves that both were hired and working
on the Jena project long before Local 361 even knew about
it. The April 28 protest of Local 361 to L & Co. over the
continued employment of these two individuals came long
after the 8 days provided in the existing union-security clause
of the contract for these men to have applied for membership
in Local 361 and thus provides both Local 361 and L & Co.
with a perfect defense to any charge of a violation of Section
8(a)(3) of the Act. Last, as to any possible future employees,
that amounts to pure unadulterated speculation . Hence I
must, and hereby do, dismiss paragraph 9 of the complaint
as regards any possible violation of Section 8(b)(2) of the Act.
In addition the evidence presented here is clear that neither
Lloyd nor Gauthier ever applied for membership in Local 361
in accordance with the existing union-security clause of the
agreement between L & Co. and Local 361 and, hence, Local
361 could neither have denied nor terminated the member-
ship of either individual in violation of Section 8(b)(2) of the
Act. Nor were either representatives of L & Co. for bargain-
ing or adjustment of grievances. Thus, Lloyd and Gauthier
are effectively eliminated from any further consideration un-
der the allegations of the complaint here.
That leaves Elmer alone for further consideration.
Of course, General Counsel here proved a prima facie case
of violation of Section 8(b)(1)(B) when he proved that:
1. Elmer was a supervisor with authority to hire and fire
and to adjust on-the-job grievances, and
2. Local 361 brought charges of "dual unionism" against
Elmer, tried and convicted him thereof and expelled him
from union membership with a fine therefor, together with
3. The Board's oft applied presumption that a union by
charging , trying, expelling , and fining a supervisor , who hap-
pens also to be a union member, for violation of such super-
visor's union membership obligation," necessarily deprives
his employer of his right to the undivided loyalty of that
" The quoted material is an exact partial quotation from the charges filed
by Anthony against Elmer on July 17
" It is true that Earl testified, and Anthony denied , that, in two conversa-
tions with Earl, Anthony suggested that Elmer be replaced allegedly be-
cause the men "would not work with him " On the pure credibility issue
between the two, I have to credit Anthony's denial as he was a believable
witness whereas Earl was unbelievable , unless corroborated Earl's credibil-
ity was shattered by his own testimony as will be discussed hereinafter
" See Houston Typographical Union No. 87, 182 NLRB No 91, and
cases there cited.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor as the employer's representative for the adjust-
ment of grievances by reason of such trial and penalty. Thus,
superficially at least , by such proof General Counsel has
proved by a prima facie case that Local 361 violated Section
8(b)(1)(B).
There is, however, more to this case. Over continuing and
strenuous objections of General Counsel and L & Co.'s attor-
ney, I permitted the Union to develop evidence on the ques-
tion of the Union's charge of "dual unionism" against Elmer.
On February 9, in the Parrish of East Baton Rouge, Louisi-
ana, articles of incorporation of a corporation named "Me-
chanical Manpower, Inc.," (herein M.M.) were signed by its
sole incorporator, one Ronald M. Jones, an attorney but
otherwise unidentified in this record. The stated object and
purpose of this corporation was "to engage, either for its own
account or the account of others, as either agent or principal,
in any lawful activity ... " No officers or directors were
named therein.
By letter this same February 9, Earl wrote Local 361 in
pertinent as follows:
It is anticipated that in about a week or two, we will need
a qualified journeyman sheetmetal worker to properly exe-
cute the work that we will have on hand at that time.
Please accept this as our formal request that he [Jack
Harrison] be made available to us when and if it materi-
alizes that we need him.
This was the last request for men by L & Co. to Local 361
until its telegram to Local 361 dated May 1.
On March 2, M.M. filed its "Amended Initial Report"
which listed M.M.'s location and P.O. address as a post office
box number in Alexandria, Louisiana, and the names of two
"registered agents" and one director of the corporation. One
of these named registered agents as well as the sole director
of M.M. was Lloyd R. Langston, the 35-year-old son of Earl,
the stockholder and director of L & Co. as well as a member
of District 101 who, with Gauthier, did sheet metalwork in
the Jena job from at least April 1 to May 4.
Long, arduous cross-examination of Earl, a most reluctant,
evasive, confused, and confusing witness about affairs of
M.M., allegedly because he was "not affiliated with it," devel-
oped other aspects of M.M.'s existence and activities. Earl
"would not deny" that he participated in the meetings leading
to the incorporation of M.M. He maintained that Lloyd and
Gauthier were employees of M.M. while working at Jena-
and not employees of L & Co.-and that Elmer, as the super-
intendent of the sheet metal department of L & Co., had no
authority at all at the Jena project from February 18 to May
8. Originally Earl testified that M.M. merely supplied the
manpower for the Jena project between April 1 and May 8,
that L & Co. did not "hire" the two men and, indeed, had no
superintendent or timekeeper on that project between those
dates but merely paid M.M. the wages of Lloyd and Gauthier
plus a 10 percent commission. Earl was then asked if L & Co.
"subcontracted" the Jena job to M.M. which Earl answered
"you might define it as a subcontract, it is conceivably defined
as that."14 Then Earl acknowledged that the arrangement
between L & Co. and M.M. was an oral, day-to-day arrange-
ment whereby M.M. supplied the men whom Earl admitted
he knew to be District 101 members. Whatever the actual
arrangements between L & Co. and M.M. for the work at
Jena may have been, they resulted from Earl's request for
manpower to the "local representative" of M.M., Earl's
" At this point the L & Co attorney offered to stipulate "that there is
a subcontract to" M M This offer was declined
phraseology, who turned out to be one J. C. Gassiott who also
happened to be "very distantly related," Earl's phrase, to
Earl, to wit, a nephew, who was also simultaneously em-
ployed by L & Co. as an estimator.
The above facts make it quite clear that the whole Lang-
ston family at L & Co. (except Elmer) became engaged on or
before February 9 in a surreptitious , clandestine scheme
whose purpose quite obviously was to supplant Local 361 as
the recognized bargaining agent of the employees of L & Co.
at Jena if not at all L & Co. jobs, to eliminate the existing
contractual relationship between L & Co. and Local 361 at
Jena, at least, and to replace Local 361 as such bargaining
agent with District 101, if necessary.
Further, Earl admitted that L & Co. had never informed
the general contractor on the Jena job that L & Co. had
nothing further to do with the Jena project." Furthermore,
it is noteworthy that Earl's excuse for having to make a deal
with M.M. was to keep L & Co. "out of hot water" by
preventing the general contractor on the Jena job from be-
coming restive over the absence of sheet metalworkers on that
job.
These facts remove the last vestiges of Section 8(b)(1)(A)
from this case because it is clear that, if anyone was attempt-
ing "to restrain or coerce employees in the exercise of the
ri ghts guaranteed in Section 7," it was L & Co. and not Local
361.
As for Elmer's participation in this scheme, the following
occurred during the cross-examination of Earl:
Q. (By Mr. Peters) Prior to April 1, 1970, did you ever
discuss Mechanical Manpower, Incorporated with El-
mer Langston?
A. Not that I remember, no.
Q. If you had, do you think you would remember it
Mr. Langston?
A. I could possibly remember it, yes.
Q. Did you ever discuss Manpower, Mechanical Man-
power, Incorporated and their furnishing you with man-
power after April 1, 1970 with Mr. Elmer Langston?
A. No.
Q. Then may I take it that your answer is that you
have never discussed Mechanical Manpower and their
furnishing of labor with Mr. Elmer Langston?
A. You can take it that way if you want to, yes.
TRIAL EXAMINER: Now wait a minute. Please, Mr.
Langston, I wish that you would give us the facts, so that
we won't have to assume, speculate. If you could give us
the facts, we would get out of here much faster.
THE WITNESS: Thank you sir. Your Honor, I will try
to do better.
TRIAL EXAMINER: Thank you, I appreciate it. I real-
ize that there are many things that you probably have
forgotten or don't recollect but I think some of these
matters I think you should recollect and if you could
help us along, it would speed this thing up considerably.
MR ROBERTSON: Your Honor, may I make a state-
ment, that there is a tradition in this part of the world,
part of the country, to use the term, "I don't recall it"
and it usually means no. I think Mr. Langston is engag-
ing in that and I am sure a lot of this he doesn't remem-
ber, this has been quite some time and I think Mr. Lang-
" This was corroborated by the superintendent for the general contractor
at Jena when he told representatives of Local 361 that the sheet metalwork
on that project was being done by employees of L & Co. and that the general
contractor was holding L & Co responsible for the sheet metalwork on that
project. It was further corroborated by the speed with which L & Co was
able to get rid of M.M. and the District 101 men on May 4 after Local 361
filed its grievance with the joint board on April 29
SHEET METAL WORKERS , LOCAL 361
ston is being very candid with this Trial [Examiner] and
I hope the Trial Examiner doesn 't have any other im-
pression.
TRIAL EXAMINER: No, but I did not realize, I do not
recall as to the tradition as you have just suggested. I am
not a Louisianan.
MR PETERS: I have never heard that before in my life.
I have been in this state longer than he has.
TRIAL EXAMINER: Up North, it is sometimes used to
prevaricate a little bit and I hope and expect that that
will not happen down here but I am glad you called the
colloquialism to my attention."
So, according to Earl, he had no conversation with Elmer
about the scheme for hiring temporary District 101 help from
M.M. "to try to keep us out of hot water with the contractor
in Jena ." The facts would seem logically to point to the
contrary.
With so many members of the Langston family actively
involved in the M .M. arrangement , it seems almost incon-
ceivable that Elmer, the superintendent of the sheet metal
department and, therefore, the L & Co. official most directly
concerned with the performance of the sheet metalwork as
well as the hiring at the Jena project, would not even be
consulted or notified about M.M. or District 101 at Jena.
After all for 15 years Elmer had had exclusive charge of all
hiring and firing of employees on L & Co. sheet metal pro-
jects. This is particularly so as the facts show that Gauthier
was in and out of the L & Co. and sheet metal shop during
this period. But, at least , that was Earl's testimony.
Yet it was Superintendent Elmer who took the first overt
step, after the signing of the M.M. incorporation papers,
towards the accomplishment of the scheme when on Febru-
ary 18, 9 days after the M.M. incorporation papers were
signed , he brought the Local 361 sheet metal employees from
the Jena project and put them to work at England, thereby
leaving the Jena project free and clear for the introduction of
M.M. and its District 101 "employees" on, according to Earl,
"about April 1."" Of course this timing may have been pure
coincidence.
Actually, whether or not Earl consulted with Elmer on this
matter is relatively unimportant to a decision here because it
is doubtful that on July 17, when he filed the charges against
Elmer, Business Agent Anthony knew about M.M. and the
part it played.
But Anthony did know that L & Co. had had two District
101 workmen employed at Jena far beyond the 8 days permit-
ted under the existing union-security clause in the L & Co.
contract without their having applied for membership in Lo-
cal 361 as required and that Elmer had told him that he,
Elmer, had checked the union cards of these two employees
at Jena and found that they were members of Local 361 "in
good standing ." In addition, Anthony and Local 361 knew
also that for the past 15 years Elmer had been, and still was,
the sheet metal department superintendent in charge of all L
& Co. sheet metal contracts who did all the hiring and firing
of employees as well as settling all on-the-job grievances on
behalf of L & Co.'' There was no claim made that Local 361
'° From carefully listening to Earl's testimony plus an equally careful
reading of the transcript of his testimon3,, I am convinced that, even assum-
ing Earl had heard of this alleged Louisianan colloquialism, he was not,
during his testimony, making use of that colloquialism even if it "usually"
meant "no "
" Perhaps there was no sheet metalwork to be done at Jena between
February 18 and April 1, although this appears doubtful in view of Earl's
testimony about trying to keep "out of hot water" at Jena with the contrac-
tor
° In its answer Respondent denied that Elmer had authority to bargain
and adjust "grievances" for and on behalf of L & Co It became obvious from
363
was ever told that Elmer's authority at Jena had been
removed.
Consequently, as of July 17, Anthony and Local 361 had
good cause to believe that, as sheet metal department superin-
tendent, Elmer had hired and deliberately retained District
101 members, Lloyd and Gauthier, far beyond the time limits
set in the existing collective-bargaining agreement between L
& Co. and Local 361 and that Elmer was doing this in an
effort to displace Local 361 at Jena with the more favored L
& Co. union, District 101. In other words, Local 361 could
reasonably believe that Elmer was attempting to get rid of
Local 361 despite its contract with L & Co. and replace it
surreptitiously with District 101. In short, the evidence here
proves that the proverbial reasonable man, based on the facts
then known to Local 361, had good cause to believe that
Elmer, with or without L & Co.'s participation, was busily
engaged in activities favoring District 101 which amounted to
unfair labor practices in violation of Section 8(a)(2) and (1)
of the Act as well as in violation of the terms of the existing
collective-bargaining agreement. If Elmer's actions were not
violative of Section 8(a)(2) of the Act, at least it appeared that
he was deliberately engaged, or had engaged, in making a
"sweetheart deal" with District 101, the hated rival of Local
361.
It must be pointed out here that, as the L & Co. attorney
noted at the hearing, the grievances growing out of contract
interpretation and/or enforcement filed by Local 361 relating
to Jena as well as those filed relating to England against L &
Co., had all been settled or otherwise disposed of prior to the
time that Anthony filed his charges of "dual unionism"
against Elmer on July 17. These charges against Elmer, con-
trary to the contention of the General Counsel, had nothing
to do with contract interpretation or enforcement, as these
had all been settled with L & Co. by Local 361 under the
contract grievance procedure, as pointed out above. The dual
unionism issue against Elmer, as a union member, had not
been settled thereby and had nothing to do with either con-
tract interpretation or enforcement. The grievances filed
against Elmer were exclusively a matter of internal union
concern relating, without exception, to the relationship be-
tween the Union and one of its members. Surely a union need
not harbor a known "fifth columnist" in its membership
while he commits unfair labor practices against it merely
because that "fifth columnist" happens to be a supervisor for
some company."
The above-cited Kingston Cake case is of interest here. In
that case an officer of Union A refused to sign the then
required non-Communist oath for the purposes of keeping
Union A from appearing on a representation election ballot
against Union B, which the officer of Union A personally
favored. The Board decided in that case that, after Union A
had expelled its officer for this failure and then demanded and
secured his discharge under a union-security clause, this con-
stituted "some ground other than" the failure to tend to the
regular dues and initiation fees and thus that the union had
thereby violated Section 8(b)(2). The Third Circuit Court of
Appeals reversed in a split decision despite the restrictive
language of that section.
In the Philadelphia Typographical Union No. 2 case, 189
NLRB No. 105, the Board itself has apparently reversed its
decision in the Kingston Cake case by finding that, despite the
restrictive phraseology of Section 8(b)(2), the Respondent in
the evidence that Respondent's denial referred to grievances filed by Local
361 with the joint board where Elmer had never appeared on behalf of L
& Co and had no reference to Elmer's authority to handle on-the-job
grievances for L & Co
19 N.L.R.B. v Kingston Cake Co Inc., 206 F 2d 604 (C A 3, 1953).
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that case committed no violation of the Act when it interfered
with a member's priority (seniority) thereby causing his dis-
missal from employment when that union 's action was based
upon and caused by its members ' embezzlement of some
$30,000 of union funds . The actions of some union members
thus become so dishonest or dishonorable as to require an
extension of the restrictive language of the statute.
So here, as in Kingston Cake and as in Philadelphia Typo-
graphical No. 2, the fine and expulsion of Elmer from union
membership-although not affecting his employment in any
way-was based upon and caused by the Union 's reasonable
belief that Elmer was engaged in dual unionism against his
own union , if not amounting to unfair labor practices under
the Act, or was aiding and abetting his employer in commit-
ting acts against his own union and in favor of another union
amounting to violations of Section 8(a)(2) of the Act.
Under the circumstances present here it would be incon-
gruous, at the very least , for a Board Trial Examiner to find
Local 361 guilty of having violated the 8(b) part of this Act
for having fired and expelled Elmer from membership therein
because of actions taken by him for and on behalf of his
employer which the Union, as a reasonable person , could and
did believe in good faith and for good cause constituted unfair
labor practices against it , his own Union , in violation of the
8(a) part of the same Act. Such a finding here would in effect
amount to rewarding Elmer for committing or attempting to
commit unfair labor practices against his Union. This is par-
ticularly so in the light of the fact that Local 361 has not in
any way attempted to interfere with Elmer 's employment
which is a condition precedent to a violation of Section
8(b)(2) of the Act.
Finally as to Section 8(b)(1)(B) i.e ., "to restrain and coerce
. (B) an employer in the selection of his representatives for
collective bargaining or adjustment of grievances ." No em-
ployer has a vested right in having his supervisors be, or
remain , members of a union . Unlike the Houston Typograph-
ical Union No. 87 case, above cited , there is in the instant
matter no contractual provision in the collective -bargaining
agreement requiring supervisors to be or remain members of
the contracting union . Unlike the Houston case Elmer's re-
tention of membership in Local 361 was his own voluntary
choice and for his own personal benefit . It was not maintained
in order to remain superintendent for L & Co . Hence the
action of Local 361 in expelling and fining Elmer because he
committed and/or attempted to commit unfair labor prac-
tices against his own union for and on behalf of his employer
could not in any way coerce or restrain that employer in his
selection or retention of Elmer as his representative for collec-
tive bargaining or for the adjustment of grievances . In fact,
logically the loss of his union membership would tend to
make Elmer even more loyal to his employer , if possible, and
more attentive to the employer 's interest.
Ewell's own testimony confirms this observation when Earl
testified as follows:
TRIAL EXAMINER : Well, let 's do it this way. I under-
stand that Elmer is not on the payroll of Langston &
Company now.
THE WITNESS : At this particular time, yes.
TRIAL EXAMINER : When you get some sheet metal
work, will the company reemploy Elmer as a superinten-
dent?
THE WITNESS : That is correct . He will be the superin-
tendent as long as we have sheet metal work.
In addition , the above-quoted testimony appears to rebut
the presumption, mentioned heretofore , allegedly arising
from the fining or expelling of a supervisor by a union.
In Local Union No. 2150 (Western Electric Power Com-
pany), 192 NLRB No. 16, the Board considered a question
somewhat akin to that in the instant case and there said:
The Trial Examiner concluded that the fining of the
supervisors for crossing a picket line and doing struck
work violated Section 8 (b)(1)(B) of the Act. He reasoned
that whenever the dispute can be characterized as a
dispute between the employer and the Union rather than
between the Union and its members , any union discipli.
nary action against a supervisor who may act on behalf
of the employer in grievance adjustment is violative of
Section 8(b)( 1)(B) of the Act . We agree.
In the instant matter the dispute or activities resulting in
the expulsion and fine of Elmer cannot be characterized as
"between the employer and the Union" but instead was solely
a dispute "between the Union and its members." Hence Local
361 had the right under the proviso of Section 8(b)(1), to wit,
"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; ... ," to
fine or suspend Elmer on the good-faith belief that he was
committing or attempting to commit unfair labor practices
against his own union and thereby engaging in "dual union-
ism."
CONCLUSIONS OF LAW
1 Langston & Co., Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Sheet Metal Workers International Association, Local
Union No. 361, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Local 361 has not engaged in any of the unfair labor
practices alleged in the complaint.
[Recommended Order omitted from publication.]