Wisconsin River Valley District Council of Carpenters

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1063 (N.L.R.B. 1975)

WISCONSIN RIVER VALLEY DISTRICT COUNCIL OF CARPENTERS 1063
Wisconsin River Valley District Council of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Skippy Enterprises , Inc. Case 30-
CB-626
June 30, 1975
SUPPLEMENTAL DECISION AND
ORDER
On June 7, 1974, the National Labor Relations
Board issued a Decision and Order in the above-
entilled proceeding' in which the Board adopted the
findings and conclusions of the Administrative Law
Judge as contained in his Decision dated February
26, 1974, and ordered that Respondent take the
action set forth in the recommended Order of the
Administrative Law Judge. In his Decision, the
Administrative Law Judge concluded, inter alia, that
Respondent violated Section 8(b)(1)(B) of the Act by
fining Supervisor Schulist for failing to comply with
its "'no contract-no work" order, and by thereafter
instituting action against Schulist in an attempt to
collect the fine. Shortly after the Administrative Law
Judge decided the instant case, the Supreme Court
issued its opinion in Florida Power & Light Company
v. International Brotherhood of Electrical Workers,
Local 641, et al. and N.L.R.B. v. International
Brotherhood of Electrical Workers, AFL-CIO, et al.,
417 U.S. 790 (1974), in which it affirmed the court of
appeals' ruling reversing and remanding those cases
to the Board.2
Thereafter, on September 5, 1974, the Board issued
a notice to the parties advising them that the Board
had decided to accept the remand from the court of
appeals, and to reconsider its Decision and Order in
the above-entitled proceeding in light of the Supreme
Court's opinion in Florida Power. All parties were
given the opportunity to submit written statements of
position in light of the issues raised by the court's
remand. Such statements of position were filed by
the General Counsel, the Charging Party and the
Respondent.
For some years prior to 1972, Skippy Enterprises,
Inc., the Employer herein, was either a party to, or
had agreed to be bound by, collective-bargaining
agreements between Respondent council and an
employer association covering carpenter employees.
In 11972, 'a new contract was negotiated by Respon-
dent with a committee of contractors, but a substan-
tial number of other contractors, including the
Employer, refused to become parties to the new
agreement. As a result the constituent locals of
Respondent issued a notice to all their members
' 211 NLRB 222 (1974).
2 Prior to the issuance of the Decision and Order in this case, the
prohibiting them from working for any contractor
who was not signatory to a collective-bargaining
contract with Respondent. Raymond Schulist was
among the local members who received this notice.
At the time of issuance of this "no contract-no
work" order, Schulist was acting as job superinten-
dent, a supervisory position, on one of the Employ-
er's work projects. In addition to his supervisory
duties, Schulist spent about 30 percent of his time
performing manual work as a carpenter. When
Schulist received the "no contract-no work" order, he
ignored it and continued to perform both his
supervisory and his manual work. The other carpen-
ters on the job were not union members, did not join
the strike, and continued to perform their customary
duties. As a result, Schulist's duties and work
performance after the strike call were the same as
those before the cease-work order.
On May 5, 1972, a business representative of
Respondent filed intraunion charges against Schulist
as follows:
The complainant above named complains that
Respondent [Schulist] has violated the provisions
of District Council order dated 4 February, 1972
ordering a "no contract, no work" provision for
all contractors who have not signed to the current
working Agreement. This order effective Febru-
ary 14, 1972.
Respondent has continued employment with
contractor who has not signed the current
Agreement and still continues his employment
under those substandard conditions co-incident
without a signed Agreement.
Respondent also violates section 6, Article VII of
the current Working Agreement working for
substandard wages and conditions.
On September 30, 1972, Schulist was found guilty
of violating the "no contract-no work" order and
fined $1,300. After Respondent instituted a lawsuit in
a state court seeking to collect the fine, the Employer
filed 8(b)(1)(B) charges against Respondent. On June
7, 1974, as noted above, the Board adopted Adminis-
trative Law Judge Arthur Left's Decision which
found that Respondent had violated Section
8(b)(1)(B) by fining Schulist for failing to comply
with its "no contract-no work" order and by
thereafter instituting action against Schulist in an
attempt to collect the fine.
After reconsidering our prior decision in this case
in light of the Supreme Court's decision in Florida
Power & Light Company v. IBEW, 417 U.S. 790, we
Supreme Court had granted the Board's petitions for certiorari in both of
these cases.
218 NLRB No. 157
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have decided to affirm our previous finding that
respondent violated Section 8(b)(l)(B) of the Act.3
The Supreme Court's decision in Florida Power &
Light dealt with the problem of whether it was a
violation of Section 8(b)(1)(B) for a union to
discipline a supervisor who was a union member for
crossing a picket line during a strike called by the
union and performing rank-and-file struck work, i.e.,
work normally performed by the nonsupervisory
employees then on strike. The Court answered this
question in the negative. However, the Court did not
overrule the Board's Oakland Mailers decision.4 It
only refused to extend it to a situation where
supervisors performed rank-and-file struck work.5
That is not the situation in the present case. The
employees working at the project where Schulist was
the supervisor were not members of Respondent's
locals and did not strike. Schulist continued to
perform only his normal duties after receiving the
"no contract-no work" instructions from Respon-
dent. The case is therefore substantially like New
Mexico District Council of Carpenters (A. S. Horner,
Inc.), 177 NLRB 500, enfd. 454 F.2d 1116 (C.A. 10,
1972). In that case a supervisor member of the
respondent union was fined for working as a
supervisor with a company which did not have a
contract with the union. The Board held that this was
a violation of Section 8(b)(1)(B) since compliance of
the supervisor with the union's demands would have
meant quitting the job with the employer, thereby
having "the effect of depriving the Company of the
services of its selected representative for the purposes
of collective bargaining or the adjustment of griev-
ances ." 177 NLRB at 502. In the circuit court's
opinion in Florida Power & Light which was affirmed
by the Supreme Court, the court approved Horner
and characterized it as falling "close to the original
rationale of 8(b)(1)(B) which was to permit the
employer to keep the bargaining representative of his
own choosing ." International Brotherhood of Electri-
cal Workers, AFL-CIO, and Local 134, I.B.E. W. v.
N.L.R.B., 487 F.2d 1143, 1155, fn. 19 (C.A.D.C.,
1973). The Supreme Court also cited the Horner case
without disapproval in discussing the evolving of the
Oakland Mailers doctrine.
Based on the foregoing analysis, we conclude that
the instant case is controlled by our rationale in
Horner and not by the Supreme Court's decision in
3 Member Penello, who participated in the original Decision and Order
herein, would dismiss the complaint in its entirety based on the reasons set
forth in his dissenting opinion, infra.
4 San Francisco-Oakland Mailers' Union No. 18, International Typographi-
cal Union (Northwest Publications, Inc.), 172 NLRB 2173 (1968).
5 The Supreme Court said: "We may assume without deciding that the
Board's Oakland Mailers decision fell within the outer limits of this
test...." 417 U S. at 805 Following the Supreme Court's decision in
Florida Power & Light, the Board stated that it would continue to adhere to
Florida Power & Light. Although Schulist spent 30
percent of his time in rank-and-file work, this
amount did not increase with the onset of the strike.
He did not perform the struck work of rank-and-file
employees; the latter in fact did not strike. In other
words, Schulist's duties and work performance were
not affected by the strike. He continued, as thereto-
fore, to spend 70 percent of his time in supervisory
functions. This was not a minimal amount of time
spent in supervisory duties. Under these circum-
stances, compliance of Schulist with Respondent's
demands, as in Horner, would have meant quitting
his job and thus depriving the Employer of the
services of its selected representative for the purposes
of collective bargaining or the adjustment of griev-
ances. Therefore, upon reconsideration, we affirm
our previous finding that Respondent violated
Section 8(b)(1)(B) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board- hereby orders that Respondent
Wisconsin River Valley District Council of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Wausau, Wisconsin, its officers,
agents, and representatives, shall take the action set
forth in our original Order.
MEMBER FANNING, dissenting:
I would dismiss the complaint.
The facts demonstrate conclusively that Respon-
dent fined Supervisor Schulist for failing to comply
with its "no contract-no work" order, an order
applicable to all its members. Schulist was, of course,
a member of Respondent and continued working for
his employer despite the Union's invocation of its
rule.
The majority opinion finds Respondent's actions
violated Section 8(b)(1)(B), not because Schulist was
fined for the manner in which he performed
"collective bargaining or grievance adjustment"
functions for his employer,6 but. merely because such
fine tended to deprive Schulist's employer "of the
services of its selected representative for the purposes
of collective bargaining or the adjustment of griev-
ances," citing New Mexico District Council of
its decision in Oakland Mailers. Teamsters Local No 524 (Yakima County
Beverage Company, Inc. and Chaney Beverage Company), 212 NLRB 908
(1974)
6 Schulist performed supervisory duties 70 percent of the time and
production work 30 percent of the time. As superintendent, he also may
have possessed-for purposes of this decision , I assume he did possess-
authority to adjust grievances . As noted, he was not disciplined for the
manner in which he performed such functions.
WISCONSIN RIVER VALLEY DISTRICT COUNCIL OF CARPENTERS
Carpenters (A. S. Horner, Inc.), 177 NLRB 500
(1969).
I think it clearly open to question whether the cited
case is apposite, for here, the Union invoked its rule
against working during an authorized strike or work
stoppage,7 and the fine therefore tended only to
deprive Schulist's employer of his services for the
duration of the economic struggle, and its effect is no
different than that of the fines for performing struck
work in the Florida Power and 'Illinois' Bell cases.8
However that may be, it is clear that the conceptual
basis of the Horner decision was effectively under-
mined by the Supreme Court's decision in Florida
Power.9
In its opinion, the Court described the Board's
decision in San Francisco-Oakland Mailers Union No.
18 (Northwest Publications, Inc.), 172 NLRB 2173, as
representing a significant expansion of the reach of
Section 8(b)(1)(B) to embrace union attempts to
influence the manner in which foremen interpreted
contracts. It then discussed subsequent Board deci-
sions, among which was the Horner case ielied on by
the majority opinion, as expanding 8(b)(1)(B) to
include union actions directed at the performance of
general supervisory duties, if the supervisor also
possessed authority to bargain collectively or to
adjust grievances.
These decisions [said the Court] reflected a
further evolution of the Oakland Mailers doctrine.
In Oakland Mailers, the union had disciplined its
supervisor-members for an alleged misinterpreta-
tion or misapplication of the collective-bargaining
agreement, and the Board had reasoned that the
natural and foreseeable effect of such discipline
was that in interpreting the agreement in the
future, the supervisor would be reluctant to take a
position adverse to that of the union. In the
subsequent cases [of which Horner was one],
however, the Board held that the same coercive
effect was likely to arise from the disciplining of a
supervisor whenever he was engaged in manage-
nmelit or supervisory activities, even though his
collective-bargaining or grievance-adjustment
duties were not involved. Through the course of
these decisions, § 8(b)(1)(B) thus began to evolve
in the view of the Board and the courts "as a
general prohibition of a union's disciplining
supervisor-members for their conduct in the
course of representing the interests of their
7 1 agree with Member Penello in his characterization of the nature of the
dispute.
S International Brotherhood of Electrical Workers System Council U-4, etc.
(Florida Power & Light Company), 193 NLRB 30 (1971); International
Brotherhood of Electrical Workers, AFL-CIO, and Local 134 etc. (Illinois Bell
Telephone Company), 192 NLRB 85 (1971), enforcement denied 487 F.2d
1143 i(C.A.D.C., 1973); Florida Power & Light Company v. International
1065
employers ." Toledo Locals Nos. 15-P & 272,
Lithographers & Photoengravers International, 175
NLRB at 1080, or for acts "performed in the
course of [their ] management duties," Meat
Cutters Union Local 81 v. N. L.R.B., 458 F.2d at
796.12
12 Indeed, in its orginal panel decision in the instant Illinois Bell
case, the Court of Appeals spoke of § 8(b)( 1)(B) as prohibiting union
discipline of supervisory employees "for actions performed by them
within the general scope of their supervisory or managerial responsibili-
ties." 487 F.2d at 1119.
Having thus described the expansion of the
Oakland Mailers doctrine 10 beyond its orginal
rationale, the Court found that the language and
legislative history of Section 8(b)(1)(B) "reflect a
clearly focused congressional concern with the
protection of employers in the selection of represent-
atives to engage in two particular and explicitly
stated activities, namely collective bargaining and
the adjustment of grievances . . . . Congress was
exclusively concerned with union attempts to dictate
to employers who would represent them in collective
bargaining and grievance adjustment.""
Concluding its discussion, the Court held:
The conclusion is thus inescapable that a union's
discipline of one of its members who is a
supervisory employee can constitute a violation of
§ 8(b)(1)(B) only when that discipline may
adversely affect the supervisor's conduct in
performing the duties of, and acting in his
capacity as, grievance adjuster or collective
bargainer on behalf of the employer.
Nye may assume without deciding that the
Board's Oakland Mailers decision fell within the
outer limits of this test, but its decisions in the
present cases clearly do not.12
Admittedly the reference to "present cases" was to
the Illinois Bell and Florida Power cases, under
review. However, it is clear that the Court set the
Oakland Mailers decision, involving discipline for the
manner in which a supervisor-member discharged a
collective-bargaining or grievance adjustment func-
tion, as the outer possible limits of permissibility, and
that it thereby did disapprove the later line of cases,
including the Horner case, upon which the majority
relies. Accordingly, the majority is in error in relying
upon that decision.
Brotherhood of Electrical Workers, Local 641, et al. 417 U.S. 790 (1974).
9 N.L.R.B. v. Rochester Musicians Association, Local 66, affiliated with
American Federation of Musicians, 514 F.2d 988 (CA. 2, 1975), denying
enforcement 207 NLRB 647 (1973).
10 Florida Power & Light Company v. IBEW, supra at 801-802.
11 Id at 803.
12 Id at 804-805.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I indicated, I view the situation involved in this
case as legally no different than that involved in the
Florida Power and Illinois Bell cases, and for the
reasons stated in my dissenting opinions in Ham-
mond Publishers 13 and Triangle Publications, 14 I
believe the Supreme Court's Florida Power decision
requires dismissal of the complaint.
MEMBER PENELLO, dissenting:
Based on my reading of the Supreme Court's
decision in Florida Power & Light Co. v. IBEW, Local
641, 417 U.S. 790 (1974),15 I would, in disagreement
with my colleagues in the majority, dismiss the
complaint herein in its entirety.
The record shows that when a substantial number
of contractors, the Employer among them, who had
previously been signatories to contracts with Respon-
dent, refused to become parties to a newly negotiated
agreement between Respondent and a negotiating
committee for area contractors, Respondent adopted
a "no contract-no work" order. After receiving
knowledge of this order, Schulist, the only union
member on the job,16 decided not to comply with the
order and thereafter continued to perform his
previous functions, not only of a supervisory nature,
but those of a carpenter journeyman as well . During
the period when the "no contract-no work" order
was in effect, the record shows that Schulist spent
approximately 70 percent of his time performing
supervisory functions, and the remaining 30 percent
working with the tools of his trade.
The Board's original decision in this case found
that Respondent violated Section 8(b)(1)(B) of the
Act by fining Schulist for violating the Respondent's
"no contract-no work" order, and by suing in state
court to collect the fine. Following the issuance of
the Board's Decision and Order, the Supreme Court
issued its opinion in Florida Power. My colleagues
now conclude that the decision in Florida Power does
not control the result in the instant case. I disagree.
In the majority's view, the result in the instant case
is controlled by the Board's decision in New Mexico
District Council of Carpenters (A. S. Horner, Inc.), 177
NLRB 500, enfd. 454 F.2d 1116 (C.A. 10, 1972),
wherein it was held that the respondent union
violated Section 8(b)(1)(B) for fining a supervisor
member of the Respondent for working as a
supervisor with a company which did not have a
contract with the Union.17
13 Chicago Typograplucal Union No. 16 (Hammond Publisher, Inc.), 216
NLRB No. 149 (1975).
14 New York Typographical Union No. 6, International Typograpical
Union, AFL-CIO (Daily Racing Form, a subsidiary of Triangle Publication,
Inc.), 216 NLRB No 147 (1975).
15 The Supreme Court held therein that a union did not violate Sec.
8(bXl)(B) by disciplining supervisor-members who crossed picket lines to
perform rank-and-file struck work . The supervisors therein were not
In finding an 8(b)(1)(B) violation against the
Respondent Union, the majority notes that while
Schulist spent about 30 percent of his time perform-
ing rank-and-file work during the period of the "no
contract-no work" order, his duties were seemingly
unaffected by the strike since he continued to
perform the same amount of rank-and-file work both
before and after the strike. In addition, the majority
asserts that Schulist did not perform the struck work
of rank-and-file employees since the latter did not, in
fact, strike. Relying on Horner, my colleagues in the
majority conclude that compliance of Schulist with
Respondent's demands would have meant quitting
his job and thus depriving the Employer of the
services of its selected representative for the purposes
of collective bargaining or the adjustment of griev-
ances.
In my view, it is clear that the fine imposed upon
Schulist for violating the "no contract-no- work"
order stems from the fact that he continued to work
for an employer who refused to sign a collective-
bargaining agreement with the Respondent-an
offense involving more than a "matter purely of
internal union administration." Thus, the fine im-
posed herein was directly related to a dispute
between the Employer and the Union. Such a
relationship is crucial in determining whether a
violation of Section 8(b)(1)(B) has taken place.18 The
fact that the instant case involves a "no contract-no
work" order, and no picket line, instead of an
economic strike with a picket line, is of no conse-
quence since, in either case, there exists an overriding
employer-union dispute. Furthermore, the fact that
the other 'carpenters on the job were not union
members or that they did not participate in the strike
does not detract, in any way, from the Union's
legitimate 'interest in preventing its members from
performing rank-and-file work during the course of a
strike. This conclusion follows whether the action
taken by the Union is labeled a strike or a "no
contract-no work" order.
Unlike the situation in Horner, relied on by my
colleagues in the majority, Schulist, the supervisor
herein, did perform rank-and-file struck work during
the period of the "no contract-no work" order. Thus,
it cannot be said that he was fined by the Respon-
dent Union simply "for working as a supervisor with
a company which did not have a contract with the
Union."
engaged in collective-bargaining or grievance adjustment, or in any
activities related thereto , when they crossed the picket lines to engage in
rank-and-file struck work.
16 The other carpenters did not join in the strike.
17 In Horner, the supervisormembers had not worked with the tools of
his trade for about.5 or 6 years prior to the time that he was fined.
18 United Brotherhood of Carpenters & Joiners of America, Local Union
No 14, AFL-CIO (Max M. Kaplan Properties), 217 NLRB No. 13 (1975).
WISCONSIN RIVER VALLEY DISTRICT COUNCIL OF CARPENTERS
In Chicago Typographical Union No. 16 (Hammond
Publishers, Inc.), 216 NLRB No. 149 (1975), the
Board decided , in view of the Supreme Court's
decision in Florida Power, that a union violated
Section 8(b)(1)(B) of the Act when it disciplined
supervisor-members who performed substantially
supervisory functions and only a minimal amount of
rank-and-file work during a strike . In so concluding,
the ]Board looked to the reasonably forseeable effect
of the union 's discipline on the supervisor-member's
performance of his 8(b)(1)(B) duties rather than to
the union's moviation in imposing the discipline.
The rationale employed in Hammond requires that
the complaint in the instant case be dismissed in its
entirety . This follows since Schulist , the supervisor-
19 Food Employers Council, Inc., 216 NLRB No. 150 (1975).
1067
member, in the instant case, unlike those in Ham-
mond, performed much more than a minimal amount
of rank-and-file work during the period in which the
"no contract-no work" order was in effect.19 In
reaching this conclusion , I reiterate the view which I
expressed in Max Kaplan, supra, that in determining
whether Section 8(b)(l)(B) has been violated, it is
irrelevant whether the disciplined supervisor -member
had performed rank-and-file work, in either the same
or a different proportion , before the employer-union
dispute. This follows since the only relevant inquiry
is what the supervisor-member did during the
employer-union dispute . Accordingly, I would dis-
miss the complaint in its entirety.