Steelworkers, Local Union 5550

National Labor Relations Board - Board Decisions

Apr 9, 1976

223 N.L.R.B. 854 (N.L.R.B. 1976)

854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Steelworkers of America, AFL-CIO-CLC,
Local Union 5550 and Redfield Company, a Divi-
sion of Outdoor Sports Industries . Case 27-CB-966
April 9, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On January 7, 1976, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, counsel for Respondent filed
exceptions and a supporting brief and counsel for
General Counsel filed a reply brief to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent United Steelworkers of
America, AFL-CIO-CLC, Local Union 5550, its of-
ficers, agents, and representatives, shall take the ac-
tion set forth in the Administrative Law Judge's rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON , Administrative Law Judge: This matter
was heard before me in Denver, Colorado, on November
20, 1975. The complaint which issued on September 19,
1975, pursuant to a charge filed on September 5, 1975, al-
leges that Respondent violated Section 8(b)(1)(A) of the
Act by threatening employees of the Employer that charges
could be filed against them within the Respondent Union
if they testified in an arbitration hearing against another
employee. The Respondent denies that statements made by
its president, James Johnston, "reaches the stature of any
kind of a threat." All parties were given full opportunity to
appear, to introduce evidence, to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs. In support
of his oral argument and in lieu of a brief, the General
Counsel submitted a letter containing a single case citation.
Upon the entire record in the case,' including oral argu-
ment and the letter filed by the General Counsel, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Redfield Company , a Division of Outdoor Sports Indus-
tries , herein called the Employer , is engaged in the manu-
facture and sale of telescopic sights for sporting uses at its
plant in Denver , Colorado. The Employer annually sells
and ships goods and materials valued in excess of $50,000
directly to points and places located outside the State of
Colorado. The Employer is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO-CLC, Local
Union 5550, herein called Respondent, is now , and at all
times material herein has been , a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Although not alleged in the complaint nor introduced as
an exhibit at the hearing, it appears that the Respondent
and the Employer are parties to a collective-bargaining
agreement containing a grievance and arbitration proce-
dure. The record shows that shortly before an arbitration
hearing in September 2 regarding one of the Employer's
employees, Union President James Johnston approached
Kerry Simonton, a machinist employed by the Employer,
and stated "he thought it was wrong I was testifying for the
Company, and wished I would reconsider because a Union
member or the Union president or anybody could file
charges against me . . . for testifying against . . . another
union member." Simonton told Johnston "to go ahead, I
wasn't going to reconsider." Ron Borer testified as follows
regarding statements made to him by Johnston prior to the
scheduled arbitration hearing:
Well, Jim just told me that he didn't think it was right
for me to be sitting down at the arbitration on the
Company's side of the table and that he wished that I
would reconsider and I just told him that it didn't
really matter which side of the table I was on, I was
just down there to tell the truth.
Respondent sought to question Simonton regarding his
subjective reaction to Johnston's statement. While I sus-
tained the General Counsel's objection to such testimony,
the Respondent showed, without objection by the General
Counsel, that Simonton gave a statement to the Board
prior to the hearing in which he said that he didn't think
Johnston's statement was a threat. Respondent called no
1 In view of my findings herein, the Respondent 's motion to dismiss is
denied.
2 All dates herein are in 1975 unless otherwise stated.
223 NLRB No. 127
STEELWORKERS , LOCAL UNION 5550
witnesses to rebut the testimony of either Simonton or
Borer.
Analysis
The question is whether Johnston's statements to Simon-
ton and Borer restrained or coerced said employees in the
exercise of rights guaranteed in Section 7 of the Act. While
the statement made to Borer is far too nebulous upon
which to find a violation of the Act, I find that the state-
ment made to Simonton contained a veiled threat which, I
find, tends to coerce or intimidate employees in the exer-
cise of rights guaranteed in Section 7 of the Act. The Board
has long held that the test of misconduct is not whether it
succeeds or fails but, rather, whether the alleged offender
engaged in conduct which tends to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed
them in the Act. Thus, in Local 542, International Union of
Operating Engineers AFL-CIO v. N.L.R.B., 328 F.2d 850
(C.A. 3, 1964), cert. denied 379 U.S. 826, the court stated,
at 852, that the circumstances "that no one was in fact
coerced or intimidated is of no relevance. The test of coer-
cion and intimidation is not whether the misconduct
proves effective. The test is whether the misconduct is such
that, under the circumstances existing, it may reasonably
tend to coerce or intimidate employees in the exercise of
rights protected under the Act." As stated by Administra-
tive Law Judge Arthur Leff in Freight Drivers and Helpers
Local Union No. 557, IBT (Liberty Transfer Company, Inc.),
218 NLRB 1117, 1120 (1975), "The right guaranteed em-
ployees by Section 7 of the Act to assist or refrain from
assisting labor organizations is sufficiently broad to in-
clude within its scope the right of an employee to appear as
a witness in a proceeding to which a union is a party and to
give testimony supporting or opposing the union's interest
in that proceeding. It is no less an infringement of that
statutory right for a union to discipline or threaten to disci-
pline an employee for testifying on behalf of an employer
than it is for an employer to retaliate against an employee
for testifying on behalf of a union. Nor does the proviso to
Section 8(b)(1)(A) shelter a union from Board remedial ac-
tion in such a situation because the discipline taken or
threatened is confined strictly to internal union sanctions
not affecting the employee's job status. It is now well estab-
lished that the immunity accorded a union by the proviso
with respect to the internal enforcement of its rules and
policies is not an unqualified one. The proviso, it has been
held, does not leave a union free to enforce union rules or
policies which serve no legitimate union interest or run
counter to other public policies of an overriding nature
that Congress has embedded in the labor laws. [Footnote
omitted.] The repression by a union of testimony can
scarcely be viewed as serving a legitimate union interest.
And for clear evidence of a Congressional policy against
such repressive action, one need only refer to Section
10(a)(4) of the Labor Management Reporting and Disclo-
sure Act, which provides in relevant part that `No labor
organization shall limit . . . the right of any member
[thereof] to appear as a witness in any judicial, administra-
tive, or legislative proceeding.... "
As aptly stated by Judge Corenman in Cannery Ware-
855
housemen, etc., IBT, (Marston Ball), 190 NLRB 24, 27
(1971): "Arbitration is the keystone to industrial peace in
the day-to-day application and interpretation of the collec-
tive-bargaining agreement, and its integrity without imped-
iment has been sanctioned by the Supreme Court in the
Steelworkers trilogy. It is essential to the existence of the
arbitration process that witnesses testify before the arbitra-
tor without fear of reprisal from either the employer or the
union. . . . If either the employer or the Union were per-
mitted to take reprisal against witnesses before the arbitra-
tor, the integrity of the arbitration process would be de-
stroyed and the arbitration clause perverted."
Accordingly, I find that the Respondent coerced and re-
strained employees in the exercise of rights guaranteed in
Section 7 of the Act by telling Simonton that "a union
member or the Union president [emphasis supplied] or any-
body could file charges . . ." if they testified in an arbitra-
tion hearing against another employee, thereby violating
Section 8(b)(1)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with the operations of the
Employer as described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tends to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found the Respondent has engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening employees that charges could be filed
against them within the Respondent Union if they testified
in an arbitration hearing against another employee, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 3 ing, within 20 days from the date of this Order , what steps
Respondent Union has taken to comply herewith.
Respondent , United Steelworkers of America, AFL-
CIO-CLC, Local Union 5550, Denver, Colorado, its offi-
cers , agents , and representatives , shall:
1. Cease and desist from:
(a) Restraining and coercing employees in the exercise
of their rights guaranteed by Section 7 of the Act by threat-
ening employee -members that charges could be filed
against them within the Union if they testified in an arbi-
tration hearing against another employee.
(b) In any like or related manner, restraining or coercing
employees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix." 4 Copies of said no-
tice , on forms provided by the Regional Director for Re-
gion 27, after being duly signed by an authorized represen-
tative of the Respondent , shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, including
all places where notices to members are customarily post-
ed. Reasonable steps shall be taken to insure that said no-
tices are not altered , defaced , or covered by any other ma-
terial . Upon the request of the Regional Director,
Respondent shall supply him with a sufficient number of
signed copies for posting by Redfield Company, a Division
of Outdoor Sports Industries , if desired by them.
(b) Notify the Regional Director for Region 27, in writ-
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
4In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence the National Labor Relations Board has found
that we violated the National Labor Relations Act, and has
ordered us to post this notice.
WE WILL NOT restrain or coerce employees in the ex-
ercise of their rights under Section 7 of the Act, by
threatening them that charges could be filed against
them within the Union if they testified in an arbitra-
tion hearing against another employee.
UNITED STEELWORKERS OF AMERICA , AFL-CIO-
CLC, LOCAL UNION 5550