Sheet Metal Workers Local 550 (Dynamics Corp.)

National Labor Relations Board - Board Decisions

Sep 20, 1993

312 N.L.R.B. 229 (N.L.R.B. 1993)

229
312 NLRB No. 49
SHEET METAL WORKERS LOCAL 550 (DYNAMICS CORP.)
1 The judge found that the reason for the Union’s trials and fines
of the three members was to retaliate against them for giving infor-
mation to their Employer, testifying at the arbitration hearing, and
giving statements to the Board.
2 In this connection, it must be remembered that we are addressing
here the issue of whether it is unlawful for the Union to maintain
the rule requiring the steward’s presence, not whether the Union may
retaliate against members for giving statements solicited by their
Employer. The latter conduct may be found unlawful, as the judge
properly found here.
Sheet Metal Workers International Association
Local 550 (Dynamics Corporation of America,
Anemostat Products Division) and Keith Row-
lands. Case 4–CB–6424
September 20, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 10, 1992, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings as modified, and conclusions as modi-
fied, and to adopt the recommended Order as modified.
We agree with the judge that the Respondent vio-
lated Section 8(b)(1)(A) and (3) of the Act by trying
and fining employee/members Keith Rowlands, Lee
Ditchey, and Richard Gatto.1 We also agree with the
judge that the Respondent violated Section 8(b)(1)(A)
by attempting to enforce its rule requiring the presence
of a union representative during investigatory inter-
views in retaliation against the three members for their
protected activities. For the reasons stated below, how-
ever, we disagree with the judge’s finding that the Re-
spondent’s mere maintenance of the rule is unlawful.
The judge found that the Union’s internal rule is un-
lawful, because it conflicts with the national labor pol-
icy favoring the free submission of disputes to griev-
ance-arbitration machinery and with the statutory right
of employees to refrain from union activity and the
corollary right of employees to decline union assist-
ance in disciplinary matters. We do not agree.
We find that the rule serves a legitimate union pur-
pose of allowing the Union to participate in the inter-
view of employees during the investigation of matters
that might lead to discipline and to represent its mem-
bers in the grievance-arbitration process. The specific
purpose of the rule here, as stated by the Union, is to
ensure the accuracy of statements made to the Em-
ployer at investigatory interviews. Cf. Graphic Com-
munications Local 388M (Georgia Pacific), 300 NLRB
1071, 1073 (1990) (union has a legitimate interest in
disciplining a member for making perjured statements
at arbitration hearing).
Contrary to the judge, we find that a rule attempting
to secure the legitimate purpose described above does
not interfere with the grievance-arbitration process.
The rule requires the employee to request steward rep-
resentation, and the Employer has consented to the
presence of a steward if one is requested. Further, the
rule does not prohibit an employee who is asked to
make a statement during an interview from doing so.2
Accordingly, there is no basis in this case for finding
that the mere maintenance of the rule will impair the
Employer’s ability to secure information from an em-
ployee in preparation for a grievance.
Nor does the Union’s rule interfere with an employ-
ee’s right to refrain from engaging in union activities.
Members who choose to decline to be represented by
the Union at an investigatory interview are free to re-
sign their membership and thereby avoid application of
the rule. Pattern Makers League v. NLRB, 473 U.S. 95
(1985). In this regard, we note that the General Coun-
sel has failed to show, and the evidence fails to indi-
cate, that the Union has sought to apply or enforce its
rule against nonmembers, that there are any unlawful
restrictions on the right of members to resign, or that
the Union’s internal rule is somehow binding on non-
members.
Under Scofield v. NLRB, 394 U.S. 423, 430 (1969),
a union is free to enforce a properly adopted rule
which reflects a legitimate union interest, impairs no
policy Congress has imbedded in the labor laws, and
is reasonably enforced against union members who are
free to leave the union and escape the rule. There
being no argument by the General Counsel that the
rule was not properly adopted or communicated to the
Union’s members, we find, in accordance with Scofield
principles, that the Union’s mere maintenance of the
rule is not unlawful. The portion of the complaint al-
leging that the maintenance of the rule violated Section
8(b)(1)(A) of the Act is dismissed.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Sheet
Metal Workers International Association Local 550,
Throop, Pennsylvania, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Conducting disciplinary trials of, and imposing
fines on, employee/members for giving information or
evidence to the Employer respecting misconduct by
other employee/members when discipline and resort to
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the grievance-arbitration processes may be anticipated;
for being called as witnesses and/or testifying at griev-
ance-arbitration proceedings; or for giving testimony or
providing information to the National Labor Relations
Board; and attempting to enforce its rule requiring the
presence of a steward or other union representative
during investigatory interviews in retaliation against
members for engaging in the above-described acts.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT conduct disciplinary trials of, or im-
pose fines on, employee/members for giving informa-
tion or evidence to the Employer respecting mis-
conduct by other employee/members when discipline
and resort to the grievance-arbitration procedures may
be anticipated; for being called as witnesses and/or tes-
tifying at grievance-arbitration proceedings; or for giv-
ing testimony or providing information to the National
Labor Relations Board; and WE WILL NOT attempt to
enforce our rule requiring the presence of a steward or
other union representative during investigatory inter-
views in retaliation against members for engaging in
the above-described acts.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL NOT fail and refuse to bargain in good
faith with the Employer by conducting disciplinary
trials of, and imposing fines on, employee/members
who are called as witnesses and/or testify at grievance-
arbitration proceedings.
WE WILL rescind the fines assessed against Keith
Rowlands, Lee Ditchey, and Richard Gatto.
WE WILL remove from our records all references to
the trials of and fines against Keith Rowlands, Lee
Ditchey, and Richard Gatto and notify them in writing
that this has been done and that the discipline will not
be used as the basis for any future actions against
them.
WE WILL make Keith Rowlands, Lee Ditchey, and
Richard Gatto whole, with interest, for any travel and
other expenses they incurred and any loss of earnings
and other benefits they may have suffered as a result
of the trial board hearings conducted in Throop, Penn-
sylvania, on July 17, 1991.
SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION LOCAL 550
Carmen P. Cialino, Jr., Esq., for the General Counsel.
Edwin A. Abrahamsen, Esq. (Abrahamsen, Moran &
Conaboy, P.C.), for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard in Scranton and Philadelphia, Pennsylania, on
May 4, 5, and 25, 1992, based on an unfair labor practice
charge filed on September 19, 1991, by Keith Rowlands, an
individual, as amended on November 27, 1991, and a com-
plaint issued by the Regional Director of Region 4 of the Na-
tional Labor Relations Board (the Board) on November 27,
1991. The complaint alleges that Sheet Metal Workers Asso-
ciation Local 550 (Respondent or the Union) restrained and
coerced certain employees of Dynamics Corporation of
America, Anemostat Products Division, in violation of Sec-
tion 8(b)(1)(A), and failed and refused to bargain in good
faith with that employer in violation of Section 8(b)(3) and
(d), of the National Labor Relations Act (the Act). Respond-
ent’s timely filed answer denies the commission of any un-
fair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS AND PRELIMINARY
CONCLUSIONS OF LAW
Dynamics Corporation of America (Anemostat Products
Division) (the Employer), a New York corporation, is en-
gaged in the manufacture, sale, and distribution of air dis-
tribution equipment and related products at its facility in
Scranton, Pennsylvania. In the course and conduct of its
business operations at that location, it annually sells and
ships products valued in excess of $50,000 directly to cus-
tomers located outside the State of Pennsylvania. The Re-
spondent admits, and I find and conclude, that the Employer
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find and
conclude that it is a labor organization within the meaning
of Section 2(5) of the Act.
231SHEET METAL WORKERS LOCAL 550 (DYNAMICS CORP.)
1 In his brief, counsel for General Counsel concedes the existence
of the rule.
2 All dates hereinafter are between November 1990 and July 1991.
3 Group leaders are unit employees. According to their job descrip-
tion, group leaders, under the direction of a supervisor, assign work
and are responsible for its quality and completion, instruct personnel
in operating practices, set up machines, and perform unit work. Ac-
cording to Rowlands, they are expected to report safety violations.
4 The record fails to sustain General Counsel’s contention that
Rowlands and Ditchey were led to believe that they might be subject
to discipline for their roles in the November 2 incident. Rowlands
specifically denied that he was told ‘‘that it was either you or War-
ren.’’ The statement made to Ditchey, to the effect that the problems
in the plant impacted on everybody’s job, including his, was not a
threat of potential discipline.
5 Schadt testified, without contradiction, that when Rowlands
called him on November 6, apparently to apologize for bringing
about his discharge, he asked Rowlands whether Rowlands had
asked for a union representative when he went into Foote’s office.
The intent of the rule, he claimed, was to provide a witness so that
an employee could not subsequently be misquoted.
II. UNFAIR LABOR PRACTICES
A. Collective-Bargaining Relationship
The Union has a long standing collective-bargaining rela-
tionship with the Employer, representing its employees in the
following unit:
Production, maintenance, shipping and receiving em-
ployees, excepting office and plant clerical employees,
supervisors and statutory exclusions as defined in the
Labor-Management Relations Act of 1947, as amended.
Respondent admits, and I find and conclude, that the unit
is appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
At all material times, Respondent and the Employer have
been parties to a collective-bargaining agreement covering
those employees. The current contract is effective from Sep-
tember 7, 1990, to August 15, 1993.
B. Union Rule and the Underlying Dispute
The Respondent has a rule or practice, unwritten but gen-
erally known to the employees, whereby employees who are
called into the office in regard to disciplinary matters are
supposed to be accompanied by a steward. The purpose of
the rule, according to Local Union President Schadt, is to
prevent employees from being misquoted; he denied that it
was intended to suppress the expression of statements harm-
ful to the Union. The Employer honors such requests.1
Apparently, a controversy exists among the Union, some
of its members, and the Employer over the assignment of
overtime. The Union objects to the amount of overtime
worked by some employees and/or the fact that they perform
work outside of their regular classifications when on over-
time. As discussed hereinafter, the Employer has contended
that the Union has utilized an overtime ban to exert eco-
nomic pressure on it and that it restrained and coerced em-
ployees in its efforts to enforce such a ban.
C. The Events Leading to Warren Schadt’s Termination
Keith Rowlands is a group leader; Lee Ditchey is a press
brake operator. Both work on the second shift, from 3:30
p.m. to midnight. On November 2, 1990,2 Rowlands and
Ditchey were scheduled to work overtime, from 1:30 p.m.
until the start of their shift. At about 1:15, they were relaxing
before commencing work when Schadt, a first shift fork lift
operator, spotted them. Schadt and Rowlands got into an ar-
gument over the overtime. It was observed (and to a lesser
extent participated in) by Richard Gatto, a first shift group
leader3 (and frequent overtime worker). It was also observed
by a supervisor, Dave Rollison.
Rollison sent both Rowlands and Schadt into the office.
Following a brief meeting, Schadt was placed on an indefi-
nite suspension and sent home. The chief steward was
present during this meeting.
On November 5, Rowlands, Ditchey, and Gatto were each
sent into the plant manager’s office, individually. Present in
the office, in addition to Plant Manager Foote, was the Em-
ployer’s president, Robert Yarnchak. Foote questioned each
of them about the November 2 incident, asking whether
Schadt was bothering or harassing them with respect to their
working overtime. Each acknowledged that Schadt was and
each agreed to sign a statement indicating that they felt that
Schadt was harassing them with respect to overtime and
work assignments.4
None of these employees requested union representation
when they went into Foote’s office. Rowlands believed that,
inasmuch as his dispute was with the Union and its presi-
dent, any steward called to represent him would have had a
conflict of interest. Ditchey told the chief steward that he had
been called into the office, that he had been questioned about
the November 2 incident and that he gave a statement to
management about it.
On November 6, Schadt was notified that he was termi-
nated, effective as of November 9.
D. The Union’s Charges Against Rowlands, Ditchey,
and Gatto
On November 11, Schadt filed internal union charges
against Rowlands, Ditchey, and Gatto. He charged them
under article 17, section 1(m) [Engaging in conduct which is
detrimental to the best interests of this Association . . . or
which will bring said union into disrepute] ‘‘by making state-
ments or by signing statements with management. Thereby
causing me to be terminated from my job.’’
On direct examination, Schadt claimed that he had brought
the charges against them because they had gone into a meet-
ing with management unaccompanied by a union steward, in
violation of the Union’s unwritten rule. Under cross exam-
ination, he acknowledged that he was motivated, at least in
part, by the fact that their oral and written statements to
management had caused him to be fired. Given the language
of the charges he filed, the fact that his NLRB investigatory
affidavit contains no reference to the breach of the unwritten
rule, and the absence of any explanation of what purpose
such a representative might have served in these meetings
other than to stifle the employees’ honest reporting of per-
ceived misconduct, I must conclude that the reference to the
unwritten rule was an afterthought.5 At best, it was but a sec-
ondary and less significant reason for the charges.
The Union’s constitution, article 18, provides the proce-
dure trial board hearings. Those trials are to be conducted by
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Viercinski may have had no role in scheduling the trial board
hearings but he would have been privy to discussions regarding
those hearings. I credit Ditchey, noting that his testimony is consist-
ent with the discussion at the January 13 Union meeting and with
the interest expressed by the trial board members in what these em-
ployees had told both the Board agent and the arbitrator.
7 Trial board member Mazza’s claim that he did not ask Gatto
about the arbitration is contradicted by Belaus’ minutes and by his
own affidavit. I find the Union’s minutes to be the most reliable evi-
dence of what transpired at Gatto’s hearing.
committees made up of union executive board members or
specially elected union members. The date for such trials is
supposed to be set by the presiding officer; section 2(d) pro-
vides that they shall be held promptly, but not less than 15
days after the mailing of the notice of the charges. The
charges were initiated at the Union’s December 9 monthly
meeting.
According to the minutes of the Union’s January 13 meet-
ing, the Union’s business manager, Tom Guida, rec-
ommended that, because of two arbitrations and other
charges, the trials on these charges ‘‘be rescheduled till after
the results of the [Schadt] arbitration issues.’’ Guida, who
had little if any responsibility regarding such trials, testified
that be requested this delay because of the press of other
business and in order to avoid giving the Employer’s attor-
ney any advantage in the Schadt arbitration. At that point in
time, Schadt’s arbitration was being postponed at the Em-
ployer’s request. The membership voted to postpone the
hearings as Guida recommended. Schadt was unable to de-
scribe any advantage the Employer might gain from an ear-
lier commencement of the trial board hearings.
E. Unfair Labor Practice Charges
On November 12, the Employer filed Section 8(b)(1) and
(3) unfair labor practice charges against the Union. The
charges alleged that the Union, particularly by Schadt’s con-
duct, restrained and coerced employees in order to prevent
them from performing overtime and other work. Rowlands,
Ditchey, and Gatto were among the individuals interviewed
by the Board agent in the course of the investigation.
The Employer’s unfair labor practice charge was dismissed
on February 21.
F. Arbitration of Schadt’s Discharge
Schadt’s discharge was arbitrated on April 22. Rowlands,
Gatto, and Ditchey were subpoenaed by the Employer’s at-
torney and testified as employer witnesses. No official steno-
graphic record was made of that hearing. However, the arbi-
trator essentially summarized their testimony, as well as the
testimony of several others who saw or heard the ‘‘two to
three minute heated exchange’’ between Schadt and Row-
lands.
Arbitrator Margaret Brogan issued her decision on June 5.
The grievance was sustained, in part, with the arbitrator con-
cluding that the employer had not been even-handed in its
assignment of discipline. Schadt, she therefore found, had not
been discharged for good and sufficient cause; the discharge
was converted to a 30-day suspension and Schadt was rein-
stated with backpay from the conclusion of the suspension
and without loss of seniority.
G. The Trial Board Hearings
Prior to Schadt’s arbitration, Rowlands asked Guida what
was holding up the trial board hearings. Guida said that ev-
erything was on hold until after the arbitration. Similarly,
Ditchey questioned the then union financial secretary,
Viercinski, about the scheduling of his hearing. Viercinski
told him that they were going to wait and see what the three
said at the arbitration hearing. Viercinski also referred to the
fact that they had spoken to the Board agent with respect to
the Employer’s unfair labor practice charges.6
On June 27, 3 weeks after the arbitrator’s award issued,
the Union sent out its notices scheduling the trial board hear-
ings. Those hearings were held on July 17. As in the arbitra-
tion hearing, there was no official record; however, minutes
were made by the Union’s recording secretary, George
Belaus.
As Rowlands recalled his trial, he was questioned about
why he had not taken a union representative in with him
when he went into Foote’s office on November 5. He replied
that he did not think he needed one and noted the Union’s
conflict of interest. He was asked what he had told the Labor
Board and what he had testified to before the arbitrator.
Rowlands protested that he had been assured, in both forums,
that what he testified to could not be used against him.
Belaus told him that they did not care what the Board agent
or the arbitrator had said and then read the arbitrator’s sum-
mary of Rowland’s testimony to the trial panel.
Belaus’ minutes essentially corroborate Rowlands’ testi-
mony. In them, it is noted that Schadt testified that Rowlands
should have gone to the Union, and not into Foote’s office;
that having gone into the office, he should not have said any-
thing; and, that the statements Rowlands gave to manage-
ment caused Schadt to be discharged. Those minutes also re-
flect that Rowlands was asked about what had transpired in
his meeting with the Board agent.
Similarly, Ditchey recalled that, in his trial, he was asked
about his testimony before the arbitrator and about what he
had told the Board agent; he was also asked why he did not
seek Union representation when the Board agent questioned
him. His testimony before the arbitrator was read to the trial
panel, over his objection.
The minutes of Ditchey’s trial indicate that Schadt re-
peated the statement he had made regarding Rowlands, to the
effect that he should not have gone into the office and, by
doing so, had caused Schadt to be discharged. They further
indicate that Ditchey was asked why he had not sought union
representation when he was called into the office.
Gatto’s trial followed the same pattern as those of Row-
lands and Ditchey. Schadt’s opening statement asserted that
Gatto should have gone to the Union instead of management
and that Gatto’s statements to management had caused his
discharge. He was questioned about the meeting with Foote
and about his arbitration testimony.7
In each hearing, the employee was asked whether he had
given a written statement to management. Each denied hav-
ing done so.
The trial boards found Rowlands, Ditchey, and Gatto
guilty of the charges against them. They then made rec-
ommendations to the membership with respect to the appro-
priate penalties. While the membership wanted to expel
233SHEET METAL WORKERS LOCAL 550 (DYNAMICS CORP.)
8 The record contains no explanation of why this same logic was
not applied to Rowlands, who was also a group leader.
9 This latter principle is so self-evident that no further discussion
is required. See Automotive Salesmen’s Assn. (Spitler-Denmer Inc.),
184 NLRB 608 (1970), and Operating Engineers Local 138, 148
NLRB 679 (1964). I deem it immaterial whether their roles in that
investigation were actually considered in the trial boards’ judgments
or whether they were merely given that impression. In either case,
they and any other employees who might be faced with a request
to give evidence would be restrained and coerced into foregoing
such cooperation. Respondent’s counsel acknowledges that the Act
prohibits union discipline motivated by an employee’s testimony be-
fore either the Board or an arbitrator.
them, the panels recommended, and the membership agreed,
that they only be fined. The Union’s costs incurred in the
Schadt arbitration were determined to total $2700 and the
fines assessed, $1500 against Rowlands, $1000 against
Ditchey, and $200 against Gatto, were set to recoup those
costs.
Union trustee White, who sat as a trial board member in
Rowlands’ trial, acknowledged that the fine assessed against
Rowlands was the largest because his testimony was the
most damaging to Schadt. The fine assessed against Gatto
was the smallest, according to executive board member
Mazza, because Gatto was only doing his job. As a group
leader, Mazza stated, Gatto was expected to answer such
questions.8
Efforts to appeal the findings and fines to the International
Union were rejected on technical grounds. However, the
Union has made no effort to date to enforce the fines.
H. Analysis and Conclusions
The Union contends that Rowlands, Ditchey, and Gatto
were tried and fined because they breached its rule or policy
regarding securing union representation before going into the
office on a disciplinary matter. While their breaches of this
policy was raised in their trials (and in Schadt’s November
6 conversation with Rowlands), the evidence belies this con-
tention. I am compelled to conclude, in agreement with the
General Counsel, that they were fined because they cooper-
ated with management in the investigation of alleged mis-
conduct by Schadt, giving statements supporting manage-
ment’s discharge of Schadt both to management and before
the arbitrator.
Thus, I note the language of Schadt’s charges against each
of them and his statements in support of those charges at
their trials. Those charges and statements attacked what they
said and the fact that they went to management rather than
to the Union, not their failures to comply with the rule. I
note also that when Guida recommended that the trials be
postponed, he did not merely ask for a delay until after the
arbitration. Rather, he asked that the trials be postponed until
after the arbitrator’s decision had issued. There is no rational
explanation for seeking such a delay except to determine the
effect of the witnesses’ testimony upon the outcome and
thereby apply undue pressure upon potential witnesses.
Moreover, while Guida claimed that he asked for the delay
because of the press of other business and his desire to avoid
giving any edge to management in that hearing, he had little
if any role in the trial board hearings and could offer no ex-
amples of how an earlier hearing might give the Employer
such an edge. Similarly, I find it noteworthy that the trial
board hearings were scheduled promptly after the arbitrator
issued her decision.
Finally, I note the fines assessed against the three, equal
to the Union’s expenses in the arbitration and scaled in pro-
portion to the effect the testimony each gave had upon the
outcome. This is persuasive evidence that the Union’s objec-
tion to their conduct was directed at what they said, not the
absence of a steward when they said it.
Further, I find, in agreement with the General Counsel,
that these employees were disciplined, in part, because they
gave evidence to the NLRB in the investigation of an Em-
ployer-filed unfair labor practice charge. At the very least,
the Union gave them the impression that their roles in that
investigation were considered in judging whether they had
violated the Union’s constitution. In so finding, I note
Viercinski’s statement to Ditchey, the questions asked of
Rowlands and Ditchey at their trials and the disregard of
their rights not to disclose what they had told the Board
agent or testified to in the arbitration. The charges may have
been filed against them before the Employer’s ULP charge
was filed, but their cooperation in the investigation of the
ULP charge was considered, or they were lead to believe that
it was considered, when the trial boards reached their ver-
dicts.
The law is unequivocally clear that a union may not fine
members because they testify in an arbitration proceeding,
because they cooperate with their employer in the investiga-
tion of misconduct by other employees (at least where a
grievance has been or is likely to be filed), or because they
give evidence to the NLRB with respect to unfair labor prac-
tice charges.9
Thus, the Board has long held that the Section 8(b)(1)(A)
right of employees to refrain from assisting a labor organiza-
tion includes the right to appear as a witness at an arbitration
and give testimony deemed contrary to the Union’s interests.
That section is violated by subjecting employee-members to
a disciplinary hearing as well as by the assigning of fines or
other discipline. Graphic Communications Local 388M
(Georgia Pacific), 300 NLRB 1071 (1990). As the Board
stated therein:
It is axiomatic that grievance and arbitration procedures
are a fundamental component of national labor policy.
Steelworkers v. Gulf Navigation, 363 U.S. 574 (1960).
It is essential to the integrity of these processes that
witnesses feel free to testify before an arbitrator without
fear of reprisal from either the employer or the union.
Accordingly, Board law holds that a union violates Sec-
tion 8(b)(1)(A) of the Act by disciplining members for
appearing and testifying in arbitration proceedings in a
manner contrary to the interests of other employees. Oil
Workers Local 7-103 (DAP, Inc.), 269 NLRB 129, 130
(1984); Oil Workers Local 4-23 (Gulf Oil), 274 NLRB
475 (1985).
Moreover, given the strong statutory policy favoring the
resolution of industrial disputes through a collectively bar-
gained grievance and arbitration procedure, discipline im-
posed upon employees because they appeared and/or testified
in such a proceeding is also deemed to violate the Union’s
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Inasmuch as the subject of the Employer’s questioning was con-
duct of a high ranking union officer, and particularly in view of the
fact that that officer had already been suspended and was going to
be discharged, the Employer and the three employees could reason-
ably anticipate, here, as in Dap, Inc., supra, that a grievance would
be filed and, absent settlement, would proceed to arbitration.
11 As the record fails to sustain the contention that Rowlands and
Gatto were obligated, as group leaders, to report employee mis-
conduct, I reject the argument that the fines were violative for the
additional reason that they impeded the performance of their job
functions. Compare Carpenters (Hopeman Bros.), 272 NLRB 584
(1984), where the duty to report violations of the employer’s rules
of conduct was explicit. I need not reach the issue of whether this
contention was pleaded or fully litigated.
duty to bargain in good faith under Section 8(d) and 8(b)(3).
As the Board stated in Gulf Oil, supra at 476:
Protection of the arbitral process is a cornerstone in
the Federal statutory scheme of providing industrial
peace by the application and interpretation of the col-
lective bargaining agreement. . . .
To maintain the confidence of those subject to its
processes, to assure its integrity and effectiveness as a
means of dispute resolution, and to protect its status
with respect to our deferral policies, arbitration must be
shielded against measures which would tend to discour-
age any individual from appearing and testifying fully
and truthfully. Union rules and discipline which are de-
signed to discourage or prevent individuals from testify-
ing or being called as witnesses in grievance arbitration
hearings are inherently destructive of the contractual ar-
bitration process and are therefore unlawful . . .
[under] Section 8(d) and Section 8(b)(3) . . . .
Correlative to all of the foregoing is the right of employ-
ees to cooperate with management in the investigation of
employee misconduct which might lead to discipline, at least
where a grievance has been, or, as here, is likely to be
filed.10 Permitting interference with the employer’s investiga-
tion of such misconduct or with its preparation for arbitration
would render access to the grievance machinery nugatory.
DAP, Inc., supra.11
Finally, I turn to the Union’s contention that it tried and
fined these employees for violating its rule or policy against
participating in investigatory interviews without a union pres-
ence. I have found that such a policy existed but that it was,
at most, only marginally involved in the disciplinary action.
Moreover, the General Counsel argues, and I agree, that the
maintenance of such a rule is a further violation of Section
8(b)(1)(A).
Under Scofield v. NLRB, 394 U.S. 423, 430 (1969), unions
are ‘‘free to enforce a properly adopted rule which reflects
a legitimate union interest, impairs no policy Congress has
imbedded in the labor laws, and is reasonably enforced
against union members who are free to leave the union and
escape the rule.’’ In this case, even aside from the question
of whether the Union’s unwritten rule or policy was ‘‘prop-
erly adopted,’’ the rule squarely conflicts with two well es-
tablished elements of the national labor policy. The first is
the policy favoring the free submission of industrial disputes
to contractually adopted grievance arbitration machinery, as
described above. As applied to Rowlands, Ditchey, and
Gatto, Respondent’s rule impairs such access.
The facts of this case indicate that the purpose of the
Union’s rule, at least as applied to Rowlands, Gatto, and
Ditchey, was not to protect them from unwarranted dis-
cipline. They were not the subjects of the Employer’s inquir-
ies, Schadt was. It is clear from the context and from
Schadt’s opening statements before the trial boards that the
Union expected that the three would have given different in-
formation, or none at all, had they been accompanied by
their stewards when they went into Foote’s office on Novem-
ber 5. Thus, the rule, like the fines, interferes with the Em-
ployer’s right to secure employee testimony in preparation
for grievance arbitration hearings. Gulf Oil, supra.
Second, but of no lesser importance, while employees
have the right to the assistance of their union in disciplinary
matters, that right is personal to them and does not reside in
the union. They also have the basic statutory right to decline
such union assistance or participation. The Union’s rule im-
pinges upon that clear Congressional policy. It interferes with
the exercise of the right to refrain from union activities in
violation of Section 8(b)(1)(A). NLRB v. J. Weingarten, 420
U.S. 251 (1975); Appalachian Power Co., 253 NLRB 931
(1980). I cannot find, as suggested by Respondent, that the
Union’s rule is a logical and appropriate extension of the
Weingarten rule permitting employees to have union rep-
resentation, on their request, at investigatory interviews.
CONCLUSIONS OF LAW
1. By conducting disciplinary trials of, and by imposing
fines upon, employee/members who: give information or evi-
dence to their employer respecting misconduct by other
employee/members when discipline and resort to the griev-
ance procedure may be anticipated; are called as witnesses
and/or testify at grievance arbitration proceedings; or who
give testimony or provide information to the National Labor
Relations Board; and by maintaining and enforcing a rule or
practice which impedes employee/members from cooperating
with the employer in grievance arbitration proceedings or
which precludes them from exercising their right to refrain
from union activity by requiring the presence of a steward
or other union representative whenever an employee is called
into the office in regard to a disciplinary matter, the Union
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(1)(A) and Section 2(6)
and (7) of the Act.
2. By conducting disciplinary trials of, and by imposing
fines upon, employee/members who are called as witnesses
and/or testify at grievance arbitration proceedings, the Union
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(3) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
In order to place the three employees in the position they
would have been absent Respondent’s unfair labor practices,
I shall recommend that Respondent be ordered to make them
whole for all legal and other expenses incurred, including
any wages lost and travel expenses incurred by attending the
235SHEET METAL WORKERS LOCAL 550 (DYNAMICS CORP.)
12 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Union’s trial board hearings in Throop, Pennsylvania, on
July 17, 1991. Georgia Pacific, supra; Laborers Northern
California Council (Baker Co.), 275 NLRB 278 (1985). In-
terest thereon shall be computed in the manner set forth in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
While Respondent contends that the General Counsel has
failed to prove such expenses, I find that the extent to which
such expenses were incurred is appropriately a matter for the
compliance phase of this proceeding.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Sheet Metal Workers International Asso-
ciation Local 550, Throop, Pennsylvania, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Conducting disciplinary trials of, and imposing fines
on, employee/members who: give information or evidence to
the Employer respecting misconduct by other employee/-
members when discipline and resort to the grievance arbitra-
tion processes may be anticipated; are called as witnesses
and/or testify at grievance arbitration proceedings; or who
give testimony or provide information to the National Labor
Relations Board; and maintaining and enforcing a rule or
practice which impedes employee/members from cooperating
with the Employer in the investigation of employee mis-
conduct or which precludes them from exercising their right
to refrain from union activity by requiring the presence of a
steward or other union representative whenever an employee
is called into the office in regard to a disciplinary matter.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
(c) Failing and refusing to bargain in good faith with the
Employer by conducting disciplinary trials of, and imposing
fines upon, employee/members who are called as witnesses
and/or testify at grievance arbitration proceedings.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the fines assessed against Keith Rowlands, Lee
Ditchey, and Richard Gatto.
(b) Expunge from its records all references to the trials of
and fines against Keith Rowlands, Lee Ditchey, and Richard
Gatto and notify them in writing that this has been done and
that the discipline will not be used as the basis for any future
actions against them.
(c) Make Keith Rowlands, Lee Ditchey, and Richard Gatto
whole, with interest, for any loss of earnings and other bene-
fits they may have suffered as a result of the Union’s unfair
labor practices, and for any travel or other expenses they
may have incurred as a result of the trial board hearings con-
ducted in Throop, Pennsylvania on July 17, 1991, with inter-
est.
(d) Post at its office and meeting hall in Throop, Pennsyl-
vania, copies of the attached notice marked ‘‘Appendix.’’13
Copies of the notice, on forms provided by the Regional Di-
rector for Region 4, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employee and members are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(e) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Dynamics Corporation of
America, Anemostat Products Division, if willing, at all
places where notices to employees are customarily posted.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.