Sheet Metal Workers, Local 17

National Labor Relations Board - Board Decisions

Sep 20, 1972

199 N.L.R.B. 166 (N.L.R.B. 1972)

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association, Local
Union No. 17, AFL-CIO and George Koch Sons,
Inc. Case l-CB-1719
September 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On February 8, 1972, Trial Examiner John F.
Funke issued the attached Decision in this proceed-
ing, recommending that the complaint be dismissed.
Thereafter, the General Counsel and the Charging
Party, George Koch Sons, Inc., filed exceptions and
supporting briefs, and the Respondent filed a brief in
support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm only the Trial
Examiner's rulings, findings, and conclusions as are
consistent herewith.
The complaint alleged that the Respondent Un-
ion violated Section 8(b)(1)(B) of the Act by charging
and fining David Ziltener, a former "erection supervi-
sor" of the Employer, Koch, for certain alleged viola-
tions of the Union's rules' and alleged violations of
the collective-bargaining contract applicable to Koch.
The complaint also alleged that by striking to compel
Koch to pay Ziltener for back wages and overtime
and to make payments to the health and welfare and
pension fund, the Respondent Union restrained and
coerced Koch in the selection of its representatives for
purposes of collective bargaining or the adjustment of
grievances in violation of the Act.
The Trial Examiner, in dismissing the complaint
in its entirety, found it unnecessary to determine
whether Ziltener was a supervisor within the meaning
of the Act, since no disciplinary action was taken
against him until after he was discharged. Distin-
guishing this case from others where the Board has
found violations, the Trial Examiner stated that: (1)
Ziltener was not a supervisor nor even an employee at
the time he was fined and (2) Ziltener was not charged
with any violation which related to his supervisory
duties or responsibilities, but was fined for violation
of Local 17 rules. In finding that the work stoppages
'Specifically, the union rules violated were (a) working for less than
Boston' wages in the Boston area, (b) being paid for only 40 hours when
working over 40 hours, and (c) having no health and welfare or pension
contributions paid on hours worked.
did not coerce Koch, the Trial Examiner concluded
the stoppages occurred to protest Koch's failure to
abide by the terms of the contract and to redress
Ziltener for the losses sustained because of that
breach. For the reasons stated below, we disagree with
these conclusions of the Trial Examiner.
Koch, an Indiana employer, was working under
contract with General Motors at the GM plant in
Framingham, Massachusetts. Koch operated at the
Framingham location under the Local 17 area agree-
ment. Throughout the job, Koch had under its super-
vision up to 150 employees, 87-90 of whom were
sheetmetal workers.
In November 1969, Koch wrote David Ziltener,
a member of Sheet Metal Workers Local 416 at Janes-
ville, Wisconsin, who had previously worked as a fore-
man for Koch, employing Ziltener as an "erection
supervisor" for the GM job. Ziltener had negotiated
his own salary and had already agreed to terms of
employment which were set out in the letter as a week-
ly salary of $285, living expenses of $20 per day, and
other terms. Ziltener reported to the Framingham job-
site November 17, without any tools of the trade,
talked to George Thompson, the general superintend-
ent at the site, who told him he was an "erection
superintendent" and to "walk the job" as a "coordina-
tor." Thompson considered Ziltener "second in com-
mand," and introduced him around as such. Ziltener
attended private management meetings to discuss
work and manning of personnel, was left in charge
during Thompson's absences, handled grievances and
work problems, made job assignments, recommended
the discharge of at least one employee, disciplined
employees, granted time off, and acted as Koch's rep-
resentative. In Thompson's absence, Ziltener was giv-
en full responsibility for the operation of the job.
While Respondent introduced testimony at the
hearing for the purpose of demonstrating a lack of
supervisory authority in Ziltener, we are left unper-
suaded by this testimony. Two union witnesses (Spra-
gue and McLaughlin) admitted that Ziltener attended
supervisory meetings; union witness Dowd indicated
in his testimony that Ziltener "may have" discussed
Robinson's discharge; union witness Sprague admit-
ted that he had observed Ziltener giving orders. Most
of the union testimony was limited to establishing that
the witnesses had not themselves observed Ziltener
performing supervisory functions but,•since their ob-
servations of Ziltener were limited to only a short time
on any given day, their testimony has limited proba-
tive value.
Thus even without resolving credibility ques-
tions, which is normally a function of the Trial Exam-
iner, we are satisfied that the evidence, considered as
a whole, establishes the supervisory's status of Zilten-
199 NLRB No. 26
SHEET METAL WORKERS , LOCAL 17 167
er, and we so find .2 We also find that this record
supports a finding that he was the Employer's repre-
sentative "for the purposes of collective bargaining or
the adjustment of grievances" within the meaning of
Section 8(b)(1)(B).
Ziltener was discharged by Koch on July 6, 1970.
He then went to Local 17 officials and complained
that Koch had not made health and welfare payments
and pension contributions to Ziltener's home local as
Ziltener claimed Koch had orally promised to do, and
it was at that same time Local 17 became aware that
Ziltener was working for less than the contract wage
scale for foremen.' Local 17 agents conferred with
Thompson regarding Ziltener's wage rates, health and
welfare payments, and pension contributions, but
Thompson told them it was out of his hands since
Ziltener was paid out of the Evansville office. For the
3 weeks following his discharge, Ziltener remained on
Koch's payroll as a journeyman because of Local 17's
intervention, but was not permitted to work over 40
hours per week.
On July 30, 1970, Koch's vice president, Dish-
man, out of Evansville, was in Framingham and was
told by Local 17 that, if the matter of payments due
Ziltener was not straightened out, Local 17 would
"pull the men." The sheetmetal workers did not work
on July 31 or August 1, 1970. Koch's representatives
then went to the union hall and made payment by
check, in amounts computed by Local 17, for health
and welfare and for the pension fund, as well as back
wages (including overtime) to Ziltener. In addition,
Koch issued payment to the other sheetmetal workers
for the time they lost while on strike. Later, when
Local 17 refused to issue general releases (that Koch
had made the payments under duress), Koch stopped
payment of the checks to Ziltener. Thereafter, on No-
vember 2 to 9 and on December 4, Local 17 again
"pulled" the men after threatening to do so if the
payments to Ziltener were not made good.
In the meantime, on August 17, Local 17 advised
Ziltener that charges had been preferred against him
for: (1) working for less than the Boston area wage;
(2) being paid for 40 hours while working over 40
hours; (3) having no health and welfare or pension
paid on hours worked; and (4) contracting to do busi-
ness on a basis other than that provided in the con-
tract. Ziltener was notified of his trial, did not appear,
and was subsequently notified that he had been fined
$500 on each of the first three charges. Ziltener paid
the $1,500 fine.
When the sheetmetal workers did not appear for
2 The Trial Examiner made no findings on this matter.
3 Under the contract, journeymen started at $7 33 an hour. Foremen re-
ceived about $8 50 an hour. The work week consisted of 40 hours, with
overtime at double hourly wages Usually overtime amounted to about 13
hours per week.
work on December 4, 1970, Koch filed the instant
charge and also submitted to the Local Joint Adjust-
ment Board its grievance against Local 17 for striking
in violation of the no-strike clause. Koch claimed in
its grievance that Local 17 struck to force the health
and welfare and pension payments of Ziltener who
was a supervisor of Koch and not covered by the
contract. In response to Koch's grievance, Local 17
filed a grievance charging Koch with violation of the
contract. On January 1, 1971, the Local Board ruled
unanimously that Ziltener came into Local 17's area
under the "2-man rule" as a sheetmetal worker and
that he was entitled to sheetmetal workers' wages in
their entirety for all hours worked. Koch appealed the
Local Board determination. A panel was appointed
and a hearing set for May 20, 1971, but there has been
no decision on the appeal.
First, as noted above, we have found that Zilten-
er was a supervisor. The fact that Ziltener had been
terminated as a supervisor at the time he was fined by
the Union is not, contrary to the Trial Examiner's
Decision, dispositive of the issue before us. There is
no question but that the fine was imposed because of
events occurring during the time of his supervisory
employment. It related directly, in fact, to the very
process of supervisory selection by Respondent. If an
employer is to be free from union coercion in the
selection of persons who are to serve the employer as
its representatives, then surely the employer must be
free from union coercion in the matter of setting the
terms of such representatives' employment. Thus to
fine one who agrees to serve as an employer's repre-
sentative solely because he and the employer agreed
on terms and conditions of employment which the
union may find objectionable must necessarily have
an inhibiting effect-and indeed a coercive effect-
on the employer in his future selection of representa-
tives. And this is true no matter at what point in time
the fine itself may have been imposed. The message
to the employer will be clear for the future-don't
select a supervisor unless the union approves of the
terms and conditions of his employment.
As the above comments suggest, we are also un-
willing to accept the Trial Examiner's conclusion that
Ziltener was not charged with any violation relating
to his supervisory status but was fined solely for viola-
tion of Local 17 rules. Those rules, as applied by the
Union here, would permit the union to dictate the
terms and conditions under which an employer could
select and engage its management representatives.
That seems to us such a clear interference with the
freedom of the employer to select his representatives
as to constitute an open and obvious violation of Sec-
tion 8(b)(1)(B). We think it equally clear that the work
stoppages which were initiated by Respondent were
for the purpose of requiring Koch to accede to the
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-dictated terms and conditions of Ziltener's em-
ployment and thus coerced the Employer in the same
manner as the fines levied on Ziltener himself, and we
find such conduct on the part of the Union also to be
violative of Section 8(b)(1)(B).
We turn next to Respondent 's contention that,
pursuant to the doctrine established by the Board in
the case of Collyer Insulated Wire, 192 NLRB No. 150,
we should defer decision in this matter until the pend-
ing arbitration proceedings are completed (referring
to the processing of the grievance initiated by the
Employer alleging that the work stoppage was in vio-
lation of article X of the governing col-
lective -bargaining agreement). In this connection we
note first that the contention has little merit insofar as
it is directed to the issue of the fining of Ziltener, since
the propriety of the union fine would of course not be
determined in that proceeding . As to the work stop-
page , however, the contention requires more thorough
exploration . For if it were true that the determination
of whether the strike violated the agreement turned on
essentially the same criteria as we would apply in
determining whether our Act had been violated by the
self-same strike , then, as in Collyer, there would be
good reason for us to step aside and let the parties'
own procedures resolve their dispute.
In many cases of the type here involved such
deferral might well be appropriate , for many collec-
tive agreements define the bargaining unit essentially
in the wording of a Board certification and thus often
excludes from coverage by the agreement "supervi-
sors as defined by the National Labor Relations Act,
as amended ." Under such an agreement the issue un-
der the grievance and arbitration provisions would be
whether the strike was to compel the payment of ben-
efits required by the agreement to an employee cov-
ered by the agreement or, on the other hand, to an
excluded "supervisor ." If the former, the strike would
not violate the agreement if, as here , there is a specific
provision in the agreement permitting a strike under
such circumstances . But if the latter , the no-strike
provisions of the agreement would apply, since the
strike would not be to compel payments on behalf of
an "employee ." Thus, an arbitrator-or the parties
themselves in the grievance discussions-would of ne-
cessity be considering the same legal issue-i.e.,
whether Ziltener was an "employee" or a "supervi-
sor." We might well under such circumstances be will-
ing to defer, retaining jurisdiction only against the
contingency that the arbitrator 's determination of this
issue should be repugnant to the policies of our stat-
ute.
We have , however, examined the instant agree-
ment and find that it contains no such exclusion from
coverage of statutory "supervisors." In fact , the agree-
ment contains no description of the unit of employees
covered . We further note that , unlike many industrial
agreements , this contract specifically covers foremen.
Indeed, the Union here claims that Ziltener should
have received payments of wages and benefits appli-
cable to foremen generally . It would therefore not
appear that an arbitrator , in determining whether or
not Ziltener was working at a position intended to be
covered by the agreement , would be considering the
issue which we are called on to decide-i.e., Ziltener's
status as an "employee" or "supervisor" as defined in
the Act which we administer.
Furthermore, since we are in any event required
to take jurisdiction in order to determine the issue of
whether the fine was violative of our Act, there seems
less reason to defer the other issue raised by the com-
plaint; namely, the Union's conduct with respect to
the strike . When an entire dispute can adequately be
disposed of under the grievance and arbitration ma-
chinery, we are favorably inclined toward permitting
the parties an opportunity to do so . One of our rea-
sons for so doing is to avoid litigating the same issues
in a multiplicity of forums . But here , since we must
perforce determine a part of the dispute , there is far
less compelling reason for not permitting the entire
dispute to be resolved in a single proceeding.
For these reasons we decline in this instance to
defer to the grievance and arbitration provisions of
the agreement and instead , having found both the fine
and the work stoppage to have violated Section
8(b)(1)(B) of our Act, shall enter an appropriate order
to remedy the said violation.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of Sections 2(5) and 8(b) of the Act.
2. George Koch Sons , Inc., is an employer en-
gaged in commerce within the meaning of the Act.
3. David Ziltener, when employed by George
Koch Sons , Inc., the Charging Party , was at all mate-
rial times a supervisor and "representative " of George
Koch Sons , Inc., within the meaning of Section
8(b)(1)(B) of the Act.
4. By restraining and coercing the Charging Party
in the selection of its representative for the purposes
of collective bargaining or the adjustment of griev-
ances, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
SHEET METAL WORKERS , LOCAL 17
Relations Act , as amended , the National Labor Rela-
tions Board hereby orders that the Respondent, Sheet
Metal Workers' International Association , Local Un-
ion No. 17, AFL-CIO, its officers , agents , and repre-
sentatives , shall:
1. Cease and desist from:
(a) Restraining or coercing , or attempting to re-
strain or coerce , George Koch Sons , Inc., in the selec-
tion or retention of its representatives for the purposes
of collective bargaining or the adjustment of griev-
ances by trying and fining or otherwise disciplining
Erection Supervisor David Ziltener or any other su-
pervisor of the Employer.
(b) In any other manner restraining or coercing
George Koch Sons , Inc., in the selection and retention
of its representatives for the purposes of collective
bargaining and the adjustment of grievances.
(c) Making further demands on George Koch
Sons , Inc., for payments of the sums for back wages
and pension fund contributions for David Ziltener.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Repay to David Ziltener the sum of $1,500,
the amount assessed against him as a fine , together
with 6-percent interest from the date of his payment
of the fine.
(b) Rescind said fine and completely exscind all
record thereof , and notify David Ziltener in writing
that such action has been taken.
(c) Reimburse George Koch Sons , Inc., for all
moneys paid by it for back wages and health and
welfare and pension fund contributions for David Zil-
tener and for all moneys extracted from George Koch
Sons , Inc., as payment of wages to sheetmetal workers
on strike on July 31 and August 1, 1970, for services
not performed together with 6-percent interest from
the date of payment by Koch.
(d) Notify, in writing, any banks or banking insti-
tutions holding any of the checks issued to David
Ziltener or to the health and welfare and pension
funds that it will not insist on or demand payment.
(e) Post at its office and meeting places in Boston
copies of the attached notice marked "Appendix."4
Copies of said notice , on forms provided by the Re-
gional Director for Region 1, after being duly signed
by Respondent's representative , shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered , defaced , or covered by any other
material.
(f) Forward signed copies of said notice to the
Regional Director for posting by George Koch Sons,
Inc., it being willing , at all locations where notices to
169
employees are customarily posted.
(g) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
4 In the event that 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 "
APPENDIX
NOTICE TO ALL MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain and coerce George
Koch Sons, Inc., in the selection and retention of
its representatives, including David Ziltener, for
purposes of collective bargaining and adjustment
of grievances.
WE WILL NOT prefer charges against, try, fine,
or similarly discipline David Ziltener, or any oth-
er supervisor of George Koch Sons, Inc., as a
member of this labor organization, in regard to
matters concerning their employment while such
member is the selected representative of George
Koch Sons, Inc., for the purposes of collective
bargaining or the adjustment of grievances.
WE WILL NOT make further demands on
George Koch Sons, Inc., for payments of the
sums for back wages and health and welfare and
pension fund contributions for David Ziltener.
WE WILL rescind the $1,500 fine imposed on
David Ziltener, together with 6-percent interest
per annum, and WE WILL exscind all reference
thereof from our records, and will advise David
Ziltener that we have taken the aforesaid action.
WE WILL reimburse George Koch Sons, Inc.,
for all sums of money paid by it for back wages
and health and welfare and pension fund contri-
butions for David Ziltener and for all sums of
money extracted from George Koch Sons, Inc.,
as payment of wages to sheetmetal workers who
were on strike on July 31 and August 1, 1970, for
services not performed, together with interest
thereon at the rate of 6-percent interest per an-
num.
WE WILL notify, in writing, any bank or
banking institutions currently holding any
checks issued to David Ziltener for back wages or
to the health and welfare and pension funds that
we will not insist on or demand payment.
170
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SHEET METAL WORKERS ' INTER-
NATIONAL ASSOCIATION, LOCAL
UNION No 17, AFL-CIO
(Labor Organization)
(Representative) (Title)
At all times material herein Koch has been employed
as a contractor by General Motors Corporation at its Fram-
ingham, Massachusetts, plant and receives goods and mate-
rials valued in excess of $50,000 annually at said plant from
places outside the Commonwealth of Massachusetts.
Koch is engaged in commerce within the meaning of
the Act.
II THE LABOR ORGANIZATION INVOLVED
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Seventh Floor, Bulfinch Building, 15
New Chardon" Street, Boston, Massachusetts 02114,
Telephone 617-223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: This case was brought
before the Board upon:
1. A charge by George Koch Sons, Inc., herein Koch,
against Sheet Metal Workers' International Association,
Local Union No. 17, AFL-CIO, herein Local 17, alleging
Local 17 violated Section 8(b)(1)(B), filed December 4,
1970.
2. A complaint, an amended complaint, and an
amendment to the complaint issued by the General Counsel
against Local 17 alleging violation of Section 8(b)(1)(B),
said complaints being dated February 24, June 24, and July
17, 1971.
3. A hearing held before me at Boston, Massachusetts,
on September 9 and November 30, 1971.
4. Briefs submitted by the parties I on January 3, 1971.
Upon the entire record in this case and from my obser-
vation of the witnesses while testifying, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF KOCH
Koch is an Indiana corporation having its principal
place of business at Evansville, Indiana, where it is engaged
in the manufacture and installation of organic paint pro-
cessing equipment and related products. In the course of its
business Koch purchases large quantities of equipment
which are transported in interstate commerce through vari-
ous States of the United States and sells and transports
substantial quantities of its manufactured equipment in in-
terstate commerce to States of the United States other than
Indiana.
1 Robert M Segal was substituted for Arthur J Flamm as attorney for
Respondent during the hearing
Local 17 is a labor organization within the meaning of
the Act.
III THE UNFAIR LABOR PRACTICES
A. The Chronology of Events
In November 1969, Koch was working on the installa-
tion of a new plant facility for General Motors at its Fram-
ingham, Massachusetts, plant. The job was a large one and
at one time Koch employed about 90 sheetmetal workers on
the job. George Thompson was the general superintendent
for Koch at the jobsite. Terry Dishman was manager of the
service and installation department of Koch, working out of
its Evansville, Indiana, office.
The sheetmetal work at this job was performed pur-
suant to a local area contract between Local 17 and the
Roofing and Sheet Metal Contractors Association of the
Building Trades Employers Association? Koch was allowed
two employees who were not members of Local 17,3 but all
other sheetmetal workers were employed through Local 17
and worked under the terms and conditions of the contract.
On November 11, 1969, and after prior discussion with
him, Koch wrote Dave Ziltener, a sheetmetal worker previ-
ously employed by Koch and who resided at Janesville,
Wisconsin, the following letter:
November 11, 1969
(Our 96th Year)
Mr. Dave Zlitener
1845 Garden Drive
Janesville, Wisconsin 53545
Dear Dave:
The following is a confirmation of our conversa-
tion and agreement on employing you as an erection
supervisor for our oven job at GMAD-Framingham,
Massachusetts, Job #909-4:
Weekly salary would be $285.00 per week including
any and all overtime.
Airplane travel to job at start and return to Janesville
at end of job.
No transportation or travel expense atjob-site is to be
furnished.
Living expenses of $20.00 per day for duration of job
is included.
Your immediate superior during the job will be Mr.
George Thompson, General Job Superintendent.
2 Resp Exh 1
3Id art VIII, sec. 6
SHEET METAL WORKERS , LOCAL 17
The above is only for this particular job at Fram-
ingham, Massachusetts. If after completion of this job,
it is mutually agreed to retain you in our employment,
all the above conditions will then be reviewed.
We would like for you to report to Framingham
the morning of November 17, 1969.
Any further arrangements can be made with Mr.
Thompson, c/o Winthrop Apts., Apt. #6, 135 Win-
throp Street, Framingham, Massachusetts. Home
phone-area 617-875-6884 or office phone-area 617-
879-5028.
Very truly yours,
GEORGE KOCH SONS, INC.
Ziltener testified that he reported to the jobsite on No-
vember 17 and worked pursuant to the terms of the letter
as erection superintendent until July 6, 1970. He told the
representatives of Local 17 that he was receiving "about
$600 a week," which satisfied them that he was receiving at
least the union scale for the area. (Journeymen were averag-
ing, according to union representatives, from $450 to $500
per week.)4
Ziltener testified that on July 6 he was notified by
Thompson that his services were no longer needed by
Koch. On either the next or the second day after this notice
Ziltener went to John Dowd, the union steward, and told
him Koch had not been making the required health and
welfare payments to his local (in Wisconsin) as required by
Local 17. At the intervention of Local 17 Ziltener was re-
tained on Koch's payroll until July 30. During this period
Ziltener had discussions with Laurence McLaughlin, presi-
dent of Local 17 and employed at the jobsite, and with
George Riley, one of Local 17's business agents, concerning
his wage rates, health and welfare payments, and pension
payments during his employment at Framingham .6 Riley
approached Thompson about this problem and he told Ri-
ley it was out of his hands since Ziltener's payroll audit was
controlled by the Evansville office.
On July 30 Terry Dishman was at the jobsite and was
told by Riley that if the matter of the payments due Ziltener
was not straightened out he (Riley) was pulling the men.
Art. VIII, sec 5 , of the contract provided-
Except as provided in Section 2 and 5 of this Article, the Employer
agrees that journeymen sheet metal workers hired outside of the territo-
rial jurisdiction of this Agreement shall receive the wage scale and
working conditions of the local agreement covering the territory in
which such work is performed or supervised.
Addendum 16 of the contract reads
Foremen Shall receive amounts above the going rates as set forth be-
low -
Crew of four (4) to (7) inclusive , twenty-five cents per hour
Crew of eight (8) to twelve ( 12) inclusive , forty cents per hour.
Crew of thirteen (13) to twenty (20) inclusive , fifty cents per hour
Neither Ziltener nor Thompson testified as to the reasons for his dis-
charge There is testimony that Ziltener told a union representative it was for
absenteeism over the preceding weekend Ziltener was not only an evasive
but an unwilling witness He did not appear at the first hearing on September
9 and the hearing was recessed until November 30 to permit the General
Counsel to compel his appearance by subpena
6 Ziltener admitted to them that he had been receiving only $285 per week
and told them no payments had been made for health and welfare or pension
to his Wisconsin local
171
The sheetmetal workers did not work on either Friday, July
31, or Saturday, August 1. On Friday morning Dishman
called Riley and he and Thompson went to the union hall
where they met with Riley, Dowd, and another business
agent named Keough. The question of the amount owed
Ziltener was discussed and, after Dishman and Thompson
left the room, the union representatives computed the mon-
eys due Ziltener as $9,442.42 for backpay, $601.61 for health
and welfare, and $505 for pension. Koch agreed to make the
payments in exchange for general releases from Local 17.
Local 17 demanded, in addition, that the sheetmetal work-
ers who were on strike that day and would be on strike
Saturday be paid for the time lost if they were to work on
Monday. Koch agreed to this and checks to the individual
sheetmetal workers in the total amount of $13,119.92 were
issued. These checks were cashed but Dishman testified that
when Local 17 refused to issue general releases payment was
stopped on the checks to Ziltener and to the health and
welfare and pension funds and they had not been paid at
the time of the hearing.
The impasse was apparently maintained until Novem-
ber 2, 1970, when according to Dishman, he received a
telephone call from Riley in which Riley told him the men
would not return to work (the men had been out again
because General Motors had been struck by the U.A.W.)
unless the checks were paid. Dishman stated the men re-
turned to work on November 9 after a series of telegrams
from Dishman to the Sheet Metal Workers' International.
(These were not offered in evidence.)
Meanwhile, on August 17, Local 17 wrote Ziltener noti-
fying him that charges had been preferred against him and
enclosing a copy of the charges (Resp. Exh. 10). Specifically
he was charged with:
1. Working for less than the Boston wages in the Boston
area.
2. Being paid for forty hours and working various hours
over forty.
3. Having no Health & Welfare or Pension paid on
hours worked.
4. Contracting to do work on a basis other than that
provided in contract.
On September 8 Ziltener was notified that his trial
would be held on September 24 at Local 17 offices in Bos-
ton, Massachusetts. (Resp. Exh. 11.) On November 16 Zil-
tener was sent a copy of the minutes of the hearing and
notified that he had been fined $500 on each of the first
three specifications. (Resp. Exh. 12.)
Dishman testified that on November 25 Riley again
called him and told him that unless new checks were written
for Ziltener and the health and welfare payments the job
would be "pulled." The sheetmetal workers did not work
December 4 but returned after Dishman sent telegrams to
the International and Local 17. On December 4 Local 17
forwarded to Local 416, in Janesville, Wisconsin, the checks
made by Koch to the health and welfare fund and to the
pension fund, for collection by that local and also notified
Local 416 that Ziltener had paid the fine of $1,500. This
concludes the facts with respect to the fine levied against
Ziltener.
On December 4 Koch submitted to the Local Joint
Adjustment Board of Local 17 and the Roofing and Sheet
Metal Contractors Association of the Building Trades Em-
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployers Association its dispute with Local 17 respecting the
payments allegedly due Ziltener and the health and welfare
and pension funds. (Resp. Exh. 2) This letter is attached
hereto as Appendix A.
On December 7 Local 17 filed a complaint with the
Joint Board alleging Koch with violations of the contract
between Local 17 and the Association and asking for a
hearing. (Resp. Exh. 3.)
On January 4, 1971, the Joint Board held a hearing and
Koch submitted a three-page statement of its position with
respect to the dispute. (Resp. Exh. 4.) The minutes of this
meeting were received in evidence (Resp. Exh. 5). The meet-
ing was continued by the Board on January 12 and the
minutes (Resp. Exh. 6) contain the decision, which was as
follows:
... the Board ruled unanimously that one David Zilten-
er came into Sheet Metal Workers' Local Union # 17
area under the provisions of the 2 man rule as a sheet
metal worker and that David Ziltener is entitled to the
sheet metal workers' wages in their entirety for all
hours worked under the existing Sheet Metal Workers'
Local U ion Agreement.
On February 1, 1971, Koch took an appeal from the
Joint Board by making "Application for Services of a Panel
and Hearing under Article X, Section 3, of the Standard
Form of Union agreement." (Resp. Exh. 8.) In its appeal
Koch took the same position as that set forth in its "State-
ment of Position" before the Joint Board. On April 26 a
panel was appointed and a hearing noticed for May 20.
(Resp. Exh. 9.) At the time of the conclusion of the hearing
in this case, November 30, 1971, no decision had issued.
B. The Issues
On the basis of the foregoing facts the General Coun-
sel issued the complaint, as amended, alleging Local 17
violated Section 8(b)(1)(B) of the Act by:
1. Filing charges against and fining David Ziltener for
working for less than Boston wages in the Boston area and
having no health and welfare or pension paid on hours
worked.
2. By telling Koch it should make health and welfare
and pension payments to Local 17 on behalf of Ziltener; by
telling Koch it should pay Ziltener the difference between
the wages paid Koch and the wages due Koch under the
union contract.
3. By causing work stoppages at the Framingham job-
site on July 31 and August 1, 1970, from November 2
through 7,7 and again on December 4 to compel Koch to
make the aforesaid payments.
C. Conclusions
As the Trial Examiner remarked at the hearing, there
must be more to this case than meets the eye, but the deci-
sion must rest on what does meet the eye and not on the
suspected motives of the parties.
I do not find it necessary to determine whether Ziltener
7 These dates accord with the evidence taken at the hearing.
was a supervisor within the meaning of the Act between
November 17, 1969, and July 6, 1970, for no disciplinary
action was taken against him during that periods Local 17
did not take disciplinary action against Ziltener until after
his discharge by Koch on July 6. In fact it was Local 17
which kept him on Respondent's payroll for a period of
approximately 3 weeks while it investigated his complaints
against Koch. Having discovered from Ziltener that he had
lied to its representatives concerning his wages and that he
was in fact scabbing during the entire course of his employ-
ment with Koch, Local 17 then preferred the charges, giving
Ziltener due notice and opportunity to appear, and found
him guilty.
This case is distinguishable from all the cases cited by
the General Counsel and Respondent in two vital factors.
First, Ziltener was not a supervisor at the time he was fined
nor was he even an employee. Second Ziltener was not,
charged with any violation which related to his supervisory
duties or responsibilities. He was fined for three specific
violations of Local 17 rules relating to the terms of the
contract Koch had agreed to abide by. The General Counsel
is apparently contending that Ziltener had the right to scab
and that Koch had the right to breach the contract it had
agreed to observe simply by classifying Ziltener as an "erec-
tion supervisor." No easier way to evade the contract wage
scale could be found. (Foremen, as well as journeymen,
were covered by the contract wages.) Under these circum-
stances I do not find that Local 17's actions taken against
Ziltener constituted restraint or coercion of the Respondent
in the selection of its bargaining representatives. Ziltener
was no longer such a representative and had no foreseeable
prospect, in view of his discharge, from becoming such a
representative in the future. More important, however, is
the fact that the action taken by Local 17 was not directed
against Ziltener for any conduct in his capacity as supervi-
sor or representative of Respondent. It was directed solely
to his acceptance of working conditions lower than those
provided in the area bargaining agreement. I hardly think
that Section 8(b)(1)(B) was intending to protect scabbing or
to protect any employer who violates his own agreement.
I find even less merit, if possible, in the argument of the
General Counsel and Koch that the work stoppages viola-
81 agree with the General Counsel that if it is shown that an employee
possesses any of the indicta of supervisory authority set forth in Sec. II of
the Act he becomes , per se, a representative "for the purposes of collective
bargaining or the adjustment of grievances ," within the meaning of Sec.
8(b)(1)(B) of the Act See Toledo Locals Nos 15-P and 272, etc (Toledo Blade
Company), 175 NLRB 1072 , enfd . 437 F 2d 55 (C A 6). Under Toledo the
Employer was protected not only as to representatives who adjusted contrac-
tual grievances but as to those who handled or adjusted personal gripes or
grievances regardless of their triviality (In a prior hearing before the court
in the same case, 76 LRRM 2796), the court lamented that its calendar was
bogged down with "infinitesimally small abstract grievances .") Not only did
the Board in Toledo give full scope of the term "grievance" but also included
within the term "representative " not only supervisors who had handled griev-
ances but supervisors who might be "natural and potential representatives of
the Blade for the handling and settlement of grievances ." Statutory construc-
tion could be stretched no further to protect the employer's rights. In view
of the fact that all journeymen craft workers sent to a construction site are
eligible for selection as foreman and many shift from journeymen to foremen
and back again it would appear that every craftmen was a member of a pool
of potential representatives for the handling of grievances . The General
Counsel has not, however , advanced the argument that any fine of any union
member would constitute a violation of Sec 8(b)(1)(B) so I find it unneces-
sary to reach that issue.
SHEET METAL WORKERS , LOCAL 17
ted Section 8(b)(1)(B). These stoppages occurred not to
coerce Koch in the selection of his representative nor to
protest the action of any supervisor acting in that capacity
but to protest Koch's failure to abide by the terms of its
agreement with Local 17 and to redress Ziltener for the
losses sustained by reason of such breach. I am somewhat
at a loss to understand the purpose of the General Counsel,
advanced with unusual zeal,9 designed, it seems, to protect
Koch from the consequences of its own bad faith.'
ORDER
It is recommended that the complaint be dismissed in
its entirety.
9 Among the remedies urged by the General Counsel is that reimbursement
of Koch by Local 17 of the $13,119 92 paid to the sinking sheetmetal work-
ers Local 17 was not enriched by this sum and , if compelled to reimburse,
would undoubtedly impose assessments on the strikers I doubt that the
policies of the Act require the General Counsel to act as a collection agency
on behalf of an employer against employees
10 The Joint Board , which might be presumed to have more expertise in
this specific area than the Labor Board and to which Koch submitted the
dispute, found against Koch on the contract issue as set forth above.
APPENDIX A
December 4, 1970
Local Joint Adjustment Board
C/O Sheet Metal Workers' Local Union No. 17
216 Tremont Street
Room 302
Boston , Massachusetts 02116
and
C/O Roofing and Sheet Metal Contractor
Associations of the Building Trades
Employers Association
141 Milk Street
Boston, Massachusetts 02109
Gentlemen:
George Koch Sons, Inc., P. O. Box 358, Evansville,
Indiana, 47704, (herein called the "Employer"), is pre-
sently and has been engaged in the performance of
certain sheet metal work at the General Motors Assem-
bly Division, Framingham, Massachusetts.
In the course of the performance of this work, it
has employed members of Sheet Metal Workers' Un-
173
ion No. 17, and has at all times material adhered to the
terms and conditions of the current collective bargain-
ing agreement between that union and the Sheet Metal
Contractor Associations of the BTEA.
Notwithstanding compliance by the Employer
with the terms of said agreement as above set forth, the
Union engaged in a strike on July 31 and August 1,
1970 and also engaged in a strike commencing 8:00
A.M. this date, in violation of the no-strike clause con-
tained in Article X of the agreement. A grievance con-
cerning this matter was the subject of my telegram to
the General President, dated December 3, 1970.
The strikes above described were instituted for the
purpose of coercing the Employer to make payments to
the Health and Welfare Fund and also to the Pension
Fund for David Ziltener who was a supervisor of the
Employer. Mr. Ziltener was at all times material and
still is a member of Local No. 416 of the Sheet Metal
Workers' Union of Janesville, Wisconsin. This dispute
constitutes the subject matter of the Employer's griev-
ance.
Pursuant to the provisions of Article X, Section 2,
of the current collective bargaining agreement, the Em-
ployer herewith appeals the dispute concerning the in-
terpretation of the agreement, it not having been settled
in accordance, with the provisions contained in Section
1 of Article X.
It is the Employer's position that David Ziltener
was its supervisor and therefore not subject to the terms
and conditions of the collective bargaining agreement;
and furthermore, that even assuming he was subject to
the terms and conditions of the agreement, that pay-
ments in the manner demanded by the union should
not have been made because he was a member of an-
other sheet metal local. Such payments, if due and
owing, should be made in accordance with the provi-
sions contained in the "interpretations and Clarifica-
tions of the Standard Form of Union Agreement
(SFUA) For the Sheet Metal Contractor Working Out-
Of-Town." The provisions of this document require
that such payments be made directly to the individual
involved and not to Local Union No. 17 funds.
TD: mmm
Very truly yours,
GEORGE KOCH SONS,
INC.
By
Terry Dishman, Manager
Service and Installation
Department