Teamsters Local 379 (J. H. Mcnamara)

National Labor Relations Board - Board Decisions

Jul 27, 1987

284 N.L.R.B. 1413 (N.L.R.B. 1987)

TEAMSTERS LOCAL 379 (J. H. MCNAMARA)

1413
Teamsters Local Union No. 379, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America and J. H.
McNamara, Inc. Cases 1-CB-6020 and 1-CB-
6065
27 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 22 August 1985 Administrative Law Judge
Harold Bernard Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party Employer filed a
brief in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, 1 and
conclusions but to substitute the following Order
for that recommended by the judge.2
ORDER
The National Labor Relations Board orders that
the Respondent, Teamsters Local Union No. 379,
a/ w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Boston, Massachusetts, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Charging, trying, suspending, fining, or other-
wise disciplining Albert Lyons and James Ander-
son and any other of its members because they pro-
vided information to J. H. McNamara, Inc. in con-
1 The judge relies on Oil Workers Local 7-103 (DAP, Inc.), 269 NLRB
129 (1984), in finding that the Respondent's fine and suspension of James
Anderson violate Sec. 8(bX1XA) of the Act, citing specifically former
Member Dennis' concurrence. We place no reliance on that concurrence
or on the judge's comments concerning whether a legitimate umon mter-
est existed, in adopting the finding that the action taken by the Respond-
ent against Anderson violated the Act as alleged.
In adopting the judge's determination that Plant Manager Albert
Lyons qualifies as an employer representative within the meaning of Sec.
8(bX1)(B) of the Act, we place no reliance on the judge's "alternative"
rationale under the now-defunct reservoir doctrine. See NLRB v. Electri-
cal Workers IBEW Local 340, 125 LRRM 2305 (1987). We rely entirely
on the judge's primary finding, as supported in the record, that Lyons
regularly handles and adjusts employee complaints concerning safety
matters, the condition of the vehicles they drive, and payroll problems.
Despite the absence of any specific role within the formal contractual
grievance procedure, the responsibility for handling such worksite com-
plaints falls within the scope of grievance adjustment authority. See
NLRB v. Electrical Workers IBEW Local 323, 703 F.2d 501, 505 (11th
Cir. 1983); Toledo Blade Co., 175 NLRB 1072, 1078 (1969); Norwalk Typo-
graphical Onion 529 (Hour Publishing), 241 NLRB 310 (1979).
2 A revised Order and notice are set forth in order that the remedial
provisions separately and specifically address each violation found.
284 NLRB No. 145
nection with the grievance-arbitration procedures
under the collective-bargaining agreement.
(b) Restraining or coercing J. H. McNamara,
Inc. in the selection or retention of its representa-
tives for the adjustment of grievances.
(c) Refusing to bargain collectively with J. H.
McNamara, Inc. by attempting to coerce its choice
of representatives.
(d) In any like or related manner restraining or
coercing employees in their participation in the
grievance-arbitration procedures.
(e) In any like or related manner attempting to
restrain or coerce employers' participation in the
grievance-arbitration process or collective-bargain-
ing process.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Restore to membership in good standing
James Anderson and Albert Lyons; rescind the
fmes assessed against them; refund to them, with
interest computed in the manner prescribed in New
Horizons for the Retarded, 3 the full amount of any
fines paid by them; and make them whole for any
internal union benefits they may have lost as a
result of their suspension.
(b) Remove from its files any reference to the
unlawful charges, hearing, fine, and suspension of
James Anderson and Albert Lyons.
(c) Notify James Anderson and Albert Lyons in
writing that it has taken the action required in
paragraphs (a) and (b) above.
(d) Post at its offices and meeting halls copies of
the attached notice marked "Appendix." 4 Copies
of the notice, on forms provided by the Regional
Director for Region 1, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble 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 for
Region 1 sufficient copies of the attached notice
for posting by J. H. McNamara, Inc., if willing, in
3 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621. Interest on amounts accrued prior to 1 January
1987 shall be computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977).
4- 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 Nation-
al 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."
1414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conspicuous places including all places where no-
tices to employees are customarily posted.
(0 Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 ordered us to post and abide by this notice.
WE WILL NOT charge, try, suspend, fine, or oth-
erwise discipline members because they provide in-
formation to their employer in connection with the
grievance-arbitration procedures under their collec-
tive-bargaining agreement.
WE WILL NOT restrain or coerce J. H. McNa-
mara, Inc. in its selection or retention of represent-
atives for the adjustment of grievances.
WE WILL NOT refuse to bargain collectively with
J. H. McNamara, Inc. by attempting to coerce its
choice of representatives.
WE WILL NOT in any like or related manner at-
tempt to restrain or coerce employees' participation
in the grievance-arbitration process.
WE WILL NOT in any like or related manner at-
tempt to restrain or coerce employers' role in the
grievance-arbitration process or collective-bargain-
ing process.
WE WILL restore to membership in good stand-
ing James Anderson and Albert Lyons; WE WILL
recind the fines assessed against them;
WE WILL refund to Anderson and Lyons the full
amount, with interest, of any fines paid by them;
and WE WILL make Anderson and Lyons whole for
any internal union benefits they may have lost as a
result of their suspension from membership.
WE WILL remove from our files any reference to
the unlawful charges, hearing, fme, and suspension
of James Anderson and Albert Lyons.
WE WILL notify James Anderson and Albert
Lyons in writing that we have taken the steps or-
dered by the Board to remedy the unfair labor
practices taken against them.
TEAMSTERS LOCAL UNION No. 379
ANT INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA
Don Firenze, Esq., for the General Counsel.
Paul F. Kelly, Esq., of Boston, Massachusetts, for the Re-
spondent.
John D. O'Reilly, Esq., of Framingham, Massachusetts,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD JR., Administrative Law Judge.
This case was tried before me on 13 December 1984 in
Boston, Massachusetts, on complaint issued 5 October al-
leging that Respondent Union unlawfully fmed and sus-
pended from its membership James Anderson, a rank-
and-file employee, and Albert Lyons, plant manager, be-
cause of their conduct in connection with the discharge
of a fellow union member, thereby violating Section
8(b)(1)(A) and (B) of the Act. The complaint was
amended at hearing to add the allegation that Respond-
ent's conduct also violated Section 8(b)(3) of the Act.
Respondent's answer denies any violation of the Act.
All parties were given full opportunity to participate,
to produce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally and to file briefs. The
Charging Party and Respondent submitted briefs that
have been carefully considered.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Employer, J. H. McNamara, Inc., is a Massachu-
setts corporation engaged in the manufacture, sale, and
distribution of concrete at a plant in Waltham, Massachu-
setts, and annually purchases goods and materials re-
ceived there valued in excess of $50,000 from sources
outside Massachusetts. As admitted, I fmd that this Com-
pany is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
The Employer sells and delivers its own freshly mixed
concrete to customers from a batching plant in Waltham,
Massachusetts, where it employs 24 cement truckdrivers,
a yardman, James Anderson, and a plant manager,
Albert Lyons, all union members and all covered by the
Employer's collective-bargaining agreement with the
Union.
Because the Employer can be "back-charged" lateness
fees by customers for delayed deliveries to the custom-
er's site, care is exercised by Plant Manager Lyons in the
assignment of deliveries to the various drivers so that the
driver, his familiarity with the area, the capacity, and
condition of the truck's engine are taken into account. In
addition, trip tickets are assigned to various trucks by
number, and drivers are preassigned by Lyons to such
numbered trucks so that, in the morning, when deliveries
are begun, there is a lineup of trucks in a preplanned
TEAMSTERS LOCAL 379 (J. H. MCNAMARA)

1415
order assembled in the garage, ready to begin loading
the wet concrete mix as their turn comes, under the
plant delivery scale bars. Lyons operates a push-button
console there and fills the trucks with the amount of ma-
terials called for by the order, and the truck embarks on
its destination, making way for the next scheduled truck
and so on down the line—all under his immediate con-
trol and supervision.
Lyons, it should be noted, is the Employer's only man-
agement representative at the Waltham plant, which an-
nually generates $2 million worth of business. He is con-
sidered by the Employer's superintendent and general
manager, Charles Ciana, who is located at another plant
and with whom Lyons is in daily contact reporting the
goings-on, to be fully in charge at Waltham. The record
reflects that Lyons, though hourly paid like other unit
employees, spends only one-third of the time filling the
trucks and the remainder of his time in supervisory and
managerial tasks. Thus, Lyons keeps the timecard
records for all employees, handles employee grievances
concerning pay shortages and other matters, effectively
recommends permanent status for probationary employ-
ees, administers oral reprimands, has exercised the au-
thority to grant time off, and supervises "inside" truck
mechanics as well as plant maintenance employees fol-
lowing decisions by him to have repair work done.
Moreover, Lyons has authority to order supplies on the
Employer's behalf, and his ordered up to $200,000 worth
of such supplies from outside sources over and above
what he requests from in-house sources, and is responsi-
ble for maintaining a proper inventory of supplies. He,
and his assistant, yardman Anderson, are paid annual bo-
nuses, and Lyons attends three management meetings a
year—the only person from the Waltham plant to do so,
and attended a seminar on business management in the
recent past. Given his substantial supervisory and mana-
gerial responsibilities and clear authority, much of which
the record shows Lyons exercises in a manner requiring
the use of independent judgment, as opposed to routine
rule-following, I find that he is a supervisor and a mana-
gerial employee—the latter given his exclusive represent-
ative status at Waltham as well as his power to order
plant repair work and to pledge the Employer's credit to
a substantial degree—as defmed by the Act. 1 Sheet Metal
Workers Local 141 (Glenway Investments), 270 NLRB
1350 (1984); Musicians Local 655 (Royal Palm Theatre),
275 NLRB 677 (1985); and Carpenters Local Union 14
(Kaplan Properties), 217 NLRB 202 (1975).
Anderson, while he reports to and works closely with
Lyons and "fills in" for the latter when Lyons is off on
break or otherwise unavailable, is not shown by this
record to either possess or exercise Lyons' supervisory
or managerial authority. Accordingly, it is found that he
is not a supervisory or managerial employee as defined
by the Act. It is clear, however, and uncontested, that
Anderson works very closely with Lyons, hand-in-glove
it appears, as an assistant to keep the plant functioning
smoothly, fills the sand and gravel bins, helps maintain
1 Waltham employs the largest contingent of employees, 25, from
among the Employer's 3 locations; the others being 7 employees in Wa-
tertown and 12 drivers in Allston.
the plant equipment, and, in short, works to keep the
physical plant operation running to Lyons' satisfaction,
even performing some of Lyons' functions on occasion,
so that the primary concern, timely deliveries of con-
crete to customers, is met. Anderson, as was noted in
this regard, is, along with Lyons, paid an annual bonus
so that his interest in meeting this goal is obvious, a fact
made further evident as events unfolded on 21 Septem-
ber 1983.
On that day one of the Employer's drivers, Joseph
Blackburn, a fellow member in the Union with Lyons
and Anderson, reported for work assigned to cement
truck 35 at 6:45 a.m. Blackburn had worked for the Em-
ployer about 2 years and had a sorry record of tardiness,
having been late some 36 occasions, for which Lyons
had reprimanded him and for which Blackburn had
twice been sent home. Some of the instances reportedly
involved Blackburn having overslept.
As Lyons saw to the filling up of a certain truck with
the amount of materials called for by the order ticket
that morning, he would glance outside at the lineup of
trucks to ensure they were in order, that the next truck
to come under the loading structure matched the order
slips and thus was in its correct place in the line. Around
7 a.m. Lyons noticed that truck 35 was not yet in line,
and as he filled earlier-scheduled orders and sent the
truck on its way, he took to looking out in the yard be-
tween loads to doublecheck on Blackburn's whereabouts.
Anderson, who was working in the area, spotted Lyons
at the window looking around the area and asked Lyons
on the plant intercom who he was looking for and, when
Lyons told him he was looking for truck 35, Anderson
told him again on the intercom located 20 feet from
Blackburn's truck that Blackburn was in the cab sleeping
with the truck running. Lyons told Anderson to wake
Blackburn up and the latter declined.2
Lyons then told Anderson he would be down later
and returned to loading the waiting trucks, having to
devote immediate attention to the tasks at hand, and
having also, it is noted, to reshuffle the loading tickets to
take care of the problems in meeting the scheduled deliv-
eries—the problems being occasioned by Blackburn's
failure to get in line for loading of truck 35, thereby
causing a rippling effect-like disruption in all the orders
behind that assigned to Blackburn—which had to be
moved up through reassignment to different vehicles.
In the same timespan, Lyons called General Manager
Charles Ciano to report the incident, recommending that
Blackburn be sent home because, "if he's sleeping this
early in the morning behind the wheel, he shouldn't be
out driving." Ciano agreed. Lyons had not yet had time
to check out matters himself, but soon would finish dis-
patching trucks as called for by a cluster of customer
orders and would be temporarily free to investigate mat-
ters and talk to Blackburn himself.
In fact, Lyons was able to look into the situation only
5 or 10 minutes later, when he finished loading two
2 The record contains various but generally consistent versions con-
cerning Anderson's exact report and reply to Lyons and the reason he
declined to comply with Lyons' request, but I find the inexactitude of the
record in the minor requests inconsequential to the decision.
1416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
trucks and walked into the garage, where he saw Black-
burn asleep in the cab of truck 35 with his head on the
steering wheel. As Lyons approached, Blackburn awak-
ened and raised up his head, whereupon Lyons told him
to punch out and go home.
Still in the same timeframe and shortly after Anderson
had reported to Lyons that Blackburn was in his truck
sleeping with the engine on—but most probably before
Lyons had ordered Blackburn to go home—Anderson
took photographs of Blackburn sleeping in the truck.
About an hour or so later, after Blackburn had been sus-
pended, Anderson told Lyons about his picture-taking.
Still later, when Lyons called Ciano again and told him
what Anderson had done, Ciano told him he wanted the
film, a request which Lyons relayed to Anderson still
later that day. There is also testimony by Lyons that he
also had ordered Anderson to give him the film but, be
that as it may, the fact is that Anderson supplied the film
to Lyons that day after Blackburn was suspended. Two
days later, Blackburn was discharged after Lyons had
recommended the action and Ciano, on review with
Lyons of Blackburn's record and the circumstances con-
curred.
But noteworthy is the obvious fact emerging from this
record that the parties, certainly Blackburn, the Union,
and the Company—if not all the employees as well, in-
cluding Anderson—knew from the start that this matter
of Blackburn's conduct was headed for serious doings
vis-a-vis the Union and management. Thus, on the same
day he had slumbered at the wheel of his concrete
mixing truck with the motor on, and been discovered
and disciplined on the spot, Blackburn, now more ener-
gized, promptly traveled to the Allston plant to see
Chief Union Steward Timothy Chase concerning the ex-
pectedly serious—for him—further consequences yet to
unfold. This was a preliminary to the first step in the
grievance-arbitration procedure. (R. Exh. 3, XV, p. 11.)
At the plant he encountered Ciano and told Ciano he
had to see the chief steward. The same day, Chief Stew-
ard Chase called Lyons—plant manager at Waltham—to
discuss Blackburn's situation, asking him who turned in
or reported on Blackburn, whereupon Lyons said he was
the one.
Lest there be any doubt on such score, namely, the
probability from 21 September 1983 onward that the pic-
ture-taking was part and parcel of a sure grievance-filing
dispute from the very beginning, later events and plain
logic dictate a confirmation of this.
Thus, Ciano testified without contradiction s that on
the very afternoon of Blackburn's misconduct, he told
Lyons he wanted Anderson's film and got it at lunchtime
from him. Ciano then met with Chase and Blackburn and
told Chase Anderson had taken pictures of Blackburn in
an apparent sleeping position. Just 2 to 3 weeks later,
Ciano informed Union Business Agent Vinney Miller
about the pictures and Miller told him to "just show
those photos to Timmy [Chase] and that'll be the end of
it." Ciano then made arrangements for this to be done.
3 The only witnesses testifying at this hearing were Lyons, Anderson,
and Ciano; their accounts of events are in the main mutually corrobora-
tive.
The Internal Union Charges
Subsequent to his discharge, on 23 September 1983,
Blackburn filed intraunion charges against Lyons for his
conduct on 21 September, "turning me in to manage-
ment, and Jim Anderson for taking pictures," by letter to
the Union's executive board dated 16 November 1983.
The Union, after postponing hearing on the charges in an
effort to proceed first to arbitration—a step Ciano
learned about just before he learned of the internal
charges—ultimately heard the charges on 4 June 1984
and found both Lyons and Anderson guilty of violating
section 30, Obligation, in the Union's bylaws, which
states, inter alia, "I will never knowingly harm a fellow
member." (R. Exh. 4, p. 84.) The Union fined each $200
and suspended them both from membership that same
day, 4 June. On brief in the instant case, counsel for Re-
spondent also makes it clear that Anderson was penal-
ized for his picture-taking referred to later therein as
"gratuitously taking damaging pictures of his co-worker
Anderson."
In related earlier events, the arbitration that the Union
decided to pursue following Blackburn's filing of a griev-
ance, apparently sometime between 23 September and 8
November 1983, over his discharge, took place on 25
January 1984. The decision later issued, after the Union
discipline against Lyons and Anderson had been im-
posed, reinstating Blackburn on grounds the Employer
had not sufficiently warned Blackburn prior to taking the
discharge action against him, but let stand a 2-week dis-
ciplinary penalty. Blackburn returned to work for a
week and then resigned.
Analysis
The Suspension and Fine of Anderson
Anderson, a former union steward for the Respondent
knew full well as was true that when both Lyons and
Ciano ordered him to provide management with the film
he used to take photographs of Blackburn asleep at the
wheel of his cement truck on 21 September, and he com-
plied, that he was cooperating with the grievance ma-
chinery as contained in the contract between the Em-
ployer and Union. This is so because the record is re-
plete with evidence described above that the film was
important to the Employer's preparation for a potential,
reasonably foreseeable grievance-filing—which in fact
occurred shortly afterward when Blackburn grieved his
discharge based on the sleeping incident and the matter
later went to arbitration as provided in the parties' col-
lective-bargaining agreement. From the first the picture-
taking figured importantly in both side's position in the
grievance-arbitration procedure on the suspension and
later discharge.
Moreover, it is equally evident that Anderson's duties
as assistant plant manager, though he was not a supervi-
sor, required him to help to keep the plant operation—
especially the Employer's truck-loading procedure—run-
ning smoothly. This included very close cooperation
with Lyons, such as his reporting the reasons and cause
for any stoppages in the loading of trucks with freshly
mixed cement destined for waiting customers to Plant
TEAMSTERS LOCAL 379 (J. H. MCNAMARA) 1417
Manager Lyons on the latter's need to know. And Lyons
needed to know in order to keep the assembly-line pro-
cession of trucks going. Because Anderson clearly had
this duty as part of his employment with the Employer,
he also thereby had the corollary right, in my view, to
support the accuracy of any such reports—in this par-
ticular instance his report to Lyons that Blackburn's
sleeping was the cause for the absence from the truck-
loading line of truck 35, with any supporting proof he
had, in this case photographs taken by him on 21 Sep-
tember that would tend to support or substantiate such
report. It was not, as argued unpersuasively by Respond-
ent, for simply taking pictures of Blackburn in a vacuum
devoid of reality that Anderson was fined and suspend-
ed, as a preponderance in the evidence, as well as com-
monsense, establish that it was the furnishing of those
pictures to the Employer, thereby buttressing the Em-
ployer's position in defense of suspending and later dis-
charging Blackburn—all in the context of the parties'
grievance-arbitration machinery, for which the Union
punished Anderson. Thus, it is only in the context of the
Employer's discipline of Blackburn that the otherwise in-
nocuous and innocent picture-taking derives any import
whatsoever, because it should be further observed An-
derson was charged and penalized by a fine and suspen-
sion from membership for violating the obligation of An-
derson as a member of the Union to, "[I will] never
knowingly harm a fellow member." (R. Exh. 4, p. 84.) In
sum, just the act of taking a picture clearly did not con-
stitute "knowingly harm[ing] a fellow member."
For both alternative reasons, the fact that the picture-
taking and delivery of the film to the Employer by An-
derson was inextricably interwoven in the parties' griev-
ance-arbitration machinery, and also was an integral, nat-
ural part in Anderson's performance of his regularly as-
signed employment duties, I fmd that Respondent's fme
and suspension of Anderson from union membership vio-
lated Section 8(b)(1XA) of the Act. Oil Workers Local 7-
103 (DAP, Inc.), 269 NLRB 129 (1984).
I rely still further for this determination on the fully
pertinent view expressed in Board Member Patricia Diaz
Dennis' concurring opinion in the above case that,
wherein, after citing the Scofield decision (394 U.S. 423,
430 (1969)) reference to a union being free under Section
8(b)(1) to adopt a rule that reflects a legitimate union in-
terest, Member Dennis observed that:
[A] union rule that authorizes the fining of members
for reporting a fellow employee's infraction of a
proper plant rule does not reflect a "legitimate
union interest," and is contrary to national labor
policy, which favors the observance of valid rules
governing the workplace.
It is self-evident that Blackburn's condition posed an
enormous threat to the workplace, himself, fellow em-
ployees, and, had he been undetected, to the motoring
public's safety on the highways, as in his somnolent state
on 21 September it cannot be reasonably doubted that he
could easily lose control in a drowsy moment and thus
cause a serious accident. A union action to punish
those—who prevented such a menacing occurrence—
surely does not reflect a "legitimate union interest."
The Union's Discipline of Plant Manager Lyons
Respondent fmed and suspended Plant Manager Lyons
pursuant to Blackburn's charging Lyons "for turning me
in to management." (G.C. Exh. 2d.) Lyons has herein-
above been determined to be a supervisor and a manage-
rial representative. In addition, although Lyons did not
negotiate agreements on the Employer's behalf with the
Union, and did not process formal contract grievances, it
is undisputed that he handled and adjusted personal
grievances brought to him as the sole management repre-
sentative for the Employer at Waltham by employees
concerning pay adjustments, disputes over equipment,
and other employee problems. It has been long estab-
lished, and recently noted, that in the context of the
present 8(b)(1)(B) issue before me having to do with
Lyons' status, that it is immaterial whether the griev-
ances handled by the person whose status is in question
are personal or contractual—that the term grievance
properly embraces both. I conclude therefore that Lyons
was, given the above authority, as well as under the al-
ternative Board's "resevoir doctrine," an employer repre-
sentative within the purview of Section 8(b)(1)(13). Musi-
cians Local 655 (Royal Palm Theatre), supra, and Team-
sters Local 296 (Northwest Publications), 263 NLRB 778
(1982).
This being the case and, as is abundantly clear, the
Union fined and suspended Lyons for carrying out his
supervisory and managerial duties to run the Waltham
plant which duties, just as obviously, included the
normal supervisory action of reporting Blackburn's mis-
conduct disrupting delivery operations at the plant on 21
September (as well as representing management interests
by securing the film as evidence against Blackburn and
otherwise assisting in Blackburn's disciplinary suspension
and discharge), I find that the Union clearly violated
Section 8(b)(1)(B). Operating Engineers Local 501 (Peter-
son Mfg.), 269 NLRB 685 (1984); Oil Workers Local 4-23
(Gulf Oil), 274 NLRB 475 (1984); and Musicians Local
655 (Royal Palm Theatre), supra.
The Further Allegation in the Amended Complaint
that the Union's Conduct Violated Sections 8(b)(3)
and 8(d) of the Act
I further fmd that the Union's action in this case
against Lyons and Anderson because of their conduct in
the Blackburn discharge case, indivisible as it was from
the grievance arbitration machinery, could not help but
serve to cut off or dry up sources of res gestae evidence
concerning events, as well as intimidate, discourage, and
prevent individuals from testifying in grievance or arbi-
tration proceedings for fear that their conduct would be
considered "disloyal," or as "harmful" to a fellow union
member and thus punishable by fine or suspension. The
Union's legitimate power and interest in rulemaking to
cover such matters as dues paying, the conduct of mem-
bers at union meetings, work rules, standards, safety con-
cerns, and a multitude of other areas contributing to
strength in the ranks of its members, must yield, howev-
1418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cr, to the paramount importance bestowed on the griev-
ance-arbitration system, described by the late Justice
Douglas as follows:
[T]he grievance machinery under a collective-
bargaining agreement is at the very heart of the
system of industrial self-government. Arbitration is
the means of solving the unforeseeable by molding a
system of private law for all the problems which
may arise and to provide for their solution in a way
which will generally accord with the variant needs
and desires of the parties. The processing of dis-
putes through the grievance machinery is actually a
vehicle by which meaning and content are given to
the collective bargaining agreement.
Apart from matters that the parties specifically
exclude, all of the questions on which the parties
disagree must therefore come within the scope of
the grievance and arbitration provisions of the col-
lective agreement. The grievance procedure is, in
other words, a part of the continuous bargaining
process. It, rather than a strike, is the terminal point
of a disagreement.4
There is no substitute for seeing to it that this impor-
tant process—particularly at its very inception—for later
issues and matters of great importance to the parties are
shaped by the earlier fact-gathering efforts is kept free
and open to the free flow of information.
As the Board has stated in Oil Workers Local 4-23,
supra at 476:
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, arbitra-
tion must be shielded against measures which would
tend to discourage any individual from appearing and
testiAing fully and truthfully. Union rules and disci-
pline which are designed to discourage or prevent indi-
viduals from testifying or being called as witnesses in
grievance-arbitration hearings are inherently destruc-
tive of the contractual arbitral process and are there-
fore unlawful. The Union's discipline of [Rhodes] for
giving arbitration testimony adverse to the grievant
4 Steelworkers v. Gulf Navigation, 363 U.S. 574, 581 (1960).
tended to obstruct and impair the arbitral process.
Accordingly, not to find a violation of Section 8(d)
and Section 8(b)(3) under these circumstances
would sanction the perversion of the parties' arbi-
tration clause and the impairment of this voluntarily
agreed-upon dispute resolution procedure.
There can be perceived no distinction between either
the early fact-gathering in the instant case for which
Lyons and Anderson, I find, were punished, and the
harmful effects on the grievance-arbitration process that
was caused by their punishment, and the damage done to
the grievance-arbitration machinery when individuals
who testify at the arbitration hearing stage itself are
thereafter punished because they did so as in the just-
cited case. The harm done to the process is just as severe
in either case because it tends to starve the parties of the
necessary factual nourishment to determine the truth.8
Based on the foregoing, I conclude that the Union also
violated Section 8(b)(3) and 8(d) of the Act by disciplin-
ing Lyons and Anderson for providing information to
the Company in connection with the grievance arbitra-
tion machinery under the collective-bargaining agree-
ment.
CONCLUSIONS OF LAW
1.By charging, trying, fining, and expelling Lyons and
Anderson from membership for providing information to
the Company in connection with the grievance-arbitra-
tion procedure under the collective-bargaining agreement
between the Union and the Company as described about
the Respondent violated Sections 8(bX1)(A) and (B),
8(b)(3), and 8(d) of the Act.
2. Respondent's unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
As a remedy for the Respondent's unfair labor prac-
tices the following recommended Order is issued.
[Recommended Order omitted from publication.]
5 In fact, as observed before, in Transit Union Division 825 (Transport of
New Jersey), 240 NLRB 1267 at fn. 22 (1979):
It has been noted that information provided during the early stages
of a grievance may actually contribute toward the settlement of
grievances without arbitration and thereby prevent overburdening
the arbitral process. Fawcett Printing Corp., 201 NLRB 964, 972
(1973). See also Rockford Newspapers, 229 NLRB 429, 433 (1977).