George Williams Sheet Metal Co.

National Labor Relations Board - Board Decisions

Mar 1, 1973

201 N.L.R.B. 1050 (N.L.R.B. 1973)

1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Williams Sheet Metal Co. and Rodney L.
Tweedy
Sheet Metal Workers International Association, Local
67, AFL-CIOandRodney L. Tweedy . Cases 23-CA-
4393 and 23-CB-1290
March 1, 1973
DECISION AND ORDER
On September 27, 1972, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding . Thereafter , the General Counsel
filed exceptions and a supporting brief.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
MEMBER KENNEDY, dissenting:
The Administrative Law Judge found that Union
Stewards Cobberly and Stringer told the Employer
Our dissenting colleague contends that this case should be remanded
sua sponte for a new hearing since no written transcript of the testimony was
prepared He argues that Rule 102 35(1), under which this hearing was
conducted, violates Sec 10(c) of the Act and effectively precludes
meaningful court review We disagree.
Rule 102 35(1), quoted in the dissent , was adopted so that parties, at their
option, may have the issues raised in a complaint resolved more
economically and expeditiously than under our normal procedures Thus,
the rule provides that parties may voluntarily dispense with a verbatim
transcript and with their right to file exceptions to the findings of fact made
by the Administrative Law Judge The stipulation to which all parties
voluntarily must agree provides that the record in these circumstances
consists of the pleadings . any documents received in evidence, and the
decisions of the Administrative Law Judge and the Board . Furthermore, the
stipulation states that "The parties understand that the [Administrative Law
Judge], in his Decision , will discuss the oral testimony in summary form but
that his Decision will not recite in detail the specific testimony upon which
he relies in making his findings of fact "
This procedure permits economy for both the Board and the parties by
eliminating the increasingly' heavy costs of court reporter services, but more
importantly is designed to reduce litigation delays both by enabling the
Administrative Law Judge to issue his decision promptly and by obviating
the necessity for lengthy briefing of factual issues in cases, for example,
where the parties are satisfied that there will not be critical factual disputes
and are thus content to let the facts be determined and set forth by the
Administrative Law Judge In the instant case , counsel for the General
Counsel, and the attorneys for Respondent Employer , Respondent Union,
and the Charging Party voluntarily agreed to follow this procedure , and did
so with the approval of Administrative Law Judge Herbert Silberman As a
result, that Decision issued just over a month after the hearing was held No
exceptions were filed regarding the use of this procedure
In our view, this rule does not conflict with Sec 10(c) of the Act. The
provision in Sec. 10(c) that "testimony shall be reduced to writing" is
clearly designed for the benefit of the parties , by preserving a written record
of the testimony adduced by each party for review by this Board or by the
courts But neither the language nor the legislative history of that section
that all the sheet metal workers would go home if the
Charging Party, Tweedy, returned to work for the
Employer at its Round Rock, Texas, project. There-
after, the Employer did not permit Tweedy to go to
work. Notwithstanding these findings, the Adminis-
trative Law Judge dismissed both the 8(a)(3) and
8(b)(2) allegations of the complaint on the ground
that the Union was merely acting as a conduit for the
employees' sentiments. The majority adopts the
recommended dismissal of the complaint by the
Administrative Law Judge. I cannot agree.
Contrary to my colleagues, I would remand the
above case for a new hearing so that the Board can
make a judgment as to the merits of the complaint on
the basis of a record prepared in accordance with the
Act. No written transcript of the testimony of the
witnesses has been prepared, and I cannot review the
evidence offered in this proceeding.
This case demonstrates that the Board should not
have amended its Rules and Regulations on March
7, 1972, to permit the parties to "dispense with a
verbatim written transcript of oral testimony ad-
duced at the hearing." 2 Such amendment is contrary
to Section 10(c) of the Act which provides that
testimony "shall be reduced to writing and filed with
the Board." The absence of a transcript precludes
any meaningful review of an unfair labor practice
proceeding by either the Board or a circuit court of
appeals pursuant to Section 10(e) or (f) of the Act.
suggests that a verbatim transcript is required or that it cannot be voluntarily
and consciously waived by agreement of all parties in interest
Thus, here , we believe the language of Sec 10 (c), while imperative in
structure, was not designed as some eternal verity, but only to fully
safeguard the review rights of parties . If all those parties are satisfied that
their rights are adequately protected by the wholly voluntary alternative
procedures made available under Rule 102 35 ( 1), we see no reason to defeat
their agreement by invoking a rule of immutability as to the need for written
transcripts . Indeed, in an age when courts and quasqudicial agencies are
inundated by the flow of an ever-increasing volume of litigation and are
struggling to find new and expeditious means of handling that volume
without allowing undue delays to develop, we feel it our duty to encourage
parties voluntarily to assist us by their willingness not to insist slavishly
upon the observance of all traditional forms when the substance of their
dispute does not require it
Furthermore , unlike our dissenting colleague, we are convinced that
court review will not be hindered by this procedure The waiver constitutes
an agreement by the parties that they will subscribe to the facts as found by
the Administrative Law Judge in his Decision . This is surely less of a waiver
of traditional forms than when the parties fully waive the taking of
testimony and instead submit a case on stipulated facts We know of no case
in which court review has been held to have been improperly limited
because of the absence of testimony and the voluntary substitution of a
factual stipulation of the parties
In short , we believe that the adoption of Rule 102 35 (1) was a wholly
proper administrative decision since it permits parties, by their voluntary
agreement , cooperatively to improve the administration of this Act so that
alleged violations of the Act may be resolved inexpensively and promptly
2 Sec 102 35(1) grants authority to Administrative Law Judges
To approve a stipulation voluntarily entered into by all parties to the
case which will dispense with a verbatim written transcript of record of
the oral testimony adduced at the hearing, and which will also provide
for the waiver by respective parties of their right to file with the Board
exceptions to the findings of fact (but not to conclusions of law or
recommended orders ) which the (Administrative Law Judge) shall
make in his decision
201 NLRB No. 144
GEORGE WILLIAMS SHEET METAL CO.
I do not think it accidental that Congress, in
drafting Section 10(c), specified that testimony "shall
be reduced to writing." Nor can I agree with my
colleagues that the foregoing provision "is clearly
designed for the benefit of the parties." Manifestly,
the elimination of a transcript eliminates all review of
questions such as improper denial of cross-examina-
tion or other issues as to prejudicial error. How can
there be an inquiry into questions of fair procedure
and substantial evidence if there is no record as to
what transpired at a hearing? To satisfy due process
there must exist the means for reviewing the
procedural rulings as well as the evidence which
provide the basis of this Agency's action.3
Section 102.35(i) provides for the waiver of the
"right to file exceptions to findings of fact (but not to
conclusions of law or recommended orders)." The
rule is premised on the erroneous notion that one can
readily determine what is a question of fact and what
is a question of law. Since Lord Mansfied' s time,
courts have wrestled with mixed propositions of law
and fact.4 It has been often said that "What one
judge regards as a question of fact another thinks is a
question of law."5 Indeed, fundamental to the entire
decisionmaking process is the proposition that:
The determination of a question often necessi-
tates a decision upon issues of both law and fact
or, as often said, upon a mixed question of law
and fact .6
The amendment to the Board' s rules disregards this
basic proposition and treats questions of fact and
questions of law as being separable. The error in this
approach was ably discussed in United States v.
Forness7 wherein the court noted that:
The correct finding, as near as may be, of the
facts of a law suit is fully as important as the
application of the correct legal rules to the facts
9 In defense of the newly enacted amendment to the Board 's rules, the
majority stresses the voluntary nature of the procedure and draws an
analogy between said procedure and the practice of submitting cases to the
Board on stipulated facts, thereby waiving completely proceedings before
an Administrative Law Judge . Such logic leaves me unconvinced because
here, unlike the case where the facts are so clear and uncontroverted that
they can be submitted directly to the Board by stipulation , there are
substantial issues of fact involving the credibility of witnesses . Moreover,
how can administrative due process and the integrity of our decisionmaking
procedure be safeguarded when the parties , without knowing in advance
what procedural or substantive errors may be committed , give Administra-
tive Law Judges carte blanche regarding the most fundamental functions of
this Agency? See Berger , Administrative Arbitrariness and Judicial Review,
65 Col. L Rev 55 (1965).
4 Johnstone v Sutton, I T.R. 493, 545 (1786).
5 Report of Attorney General Committee on Administrative Procedure,
88, 90 (1941). The Supreme Court has frequently referred to "mixed
questions of law and fact." See in this connection Manual Enterprises v.
Dav, 370 U.S 478; ICC v Union Pacific R.R, 222 U.S. 541, 547 (1912).
6 53 Am. Jur. 145 (1945).
9 125 F.2d 928 (C A. 2, 1942), cert. denied 316 U.S. 694 (1942).
s Id. at 942, citing address before Federal Bar Association in 1931, quoted
in The New York Times, Feb. 13, 1931, 18
8 See N LR B v. Nevada Consolidated Copper Corp., 316 U.S. 105 (1942);
Universal Camera Corp v N.LR B, 340 U.S. 474 (1951).
1051
as found. An impeccably "right" legal rule
applied to the "wrong" facts yields a decision
which is as faulty as one which results from the
application of the "wrong" legal rule to the
"right" facts. facts. . . . Chief Justice Hughes
once remarked, "An unscrupulous administrator
might be tempted to say `Let me find the facts for
the people of my country, and I care little who
lays down the general principles.' "8
The new rule also ignores the importance of
inferences drawn by the trier of fact. It escapes me
how this Board (or reviewing courts) can adopt or
reject inferences drawn by an Administrative Law
Judge from evidence if that evidence is not perpetu-
ated and not available to us.9
In writing their decisions our Administrative Law
Judges are expected to summarize the relevant facts.
This necessarily involves judgment, for reasonable
men differ frequently as to what the relevant facts
are in any given case. Board volumes are replete with
cases in which the Board has found it necessary to
amplify or correct findings of fact of its Administra-
tive Law Judges.10 Such amplification or correction
is impossible in cases in which there is no prepared
transcript. Surely we must recognize that writers of
judicial opinions frequently set forth the facts in a
manner which tends to support their conclusions.
Important facts are easily overlooked, unintentional-
ly, which would be included if a different result were
reached.1" I do not have the slightest doubt that the
decisions of our Administrative Law Judges will have
greater likelihood of accuracy if Administrative Law
Judges know that transcripts are available to verify
their findings.12 In my view, the elimination of a
transcript has the necessary effect of insulating the
findings and conduct of our Administrative Law
Judges from review by the Board and the appellate
10 We frequently characterize the errors as inadvertent.
11 To illustrate the point, in the instant case the Administrative Law
Judge found that there was no evidence that any union official participated
in the decision of Respondent's employees to strike in protest of Tweedy's
presence on the project. On the other hand, the General Counsel argues in
his brief that the Union " implemented , condoned, ratified and approved the
work stoppages of its members on June 2 and June 19." Without a
reviewable record how are we to determine which assertion is correct? And
if we are unable to resolve questions of fact such as this , how can we
determine whether the General Counsel is correct as a matter of law that the
actions of the Respondents in this case require application of Bricklayers
Local 2 (Glenshaw Glass Company, Inc.), 176 NLRB 434, and a finding that
such actions violate the statute?
12 Expedition and economy are laudable objectives . However , transcripts
are customarily delivered by the reporter within 10 days after a witness has
testified in an unfair labor practice hearing . Therefore, the receipt of a
transcript is not a factor in the delay in the issuance of initial decisions by
our Administrative Law Judges . Of course, recollections of wise, fair
mortals are sometimes faulty and examination of the transcript is necessary
to accurately describe the events and facts which are the subject of the
litigation Such examination of the record takes time, but this is preferable
to careless fact finding.
Economy is highly desirable , but reduction of other expenditures of the
Agency should precede the elimination of transcripts.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
courts. In the instant case we cannot determine
whether the findings of fact are "supported by
substantial evidence on the record considered as a
whole" as required by the National Labor Relations
Act and the Administrative Procedure Act.
I would remand this case for a new hearing so that
the Board can discharge its responsibilities under the
statute.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Administrative Law Judge: Rod-
ney L. Tweedy, an individual, having filed a charge on
June 12, 1972, in Case 23-CA-4393 against George
Williams Sheet Metal Co., herein called the Company, and
a charge and an amended charge on May 25 and June 27,
1972, respectively, against Sheet Metal Workers Interna-
tional Association, Local 67, AFL-CIO, herein called the
Union, an order consolidating said cases and a consolidat-
ed complaint therein was issued by the Regional Director
for Region 23, on July 7, 1972. The complaint alleges that
the Company has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended , and that the Union has engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(bXIXA) and (2) of the
Act. Copies of the charges , the order consolidating the
cases , the consolidated complaint and the notice of hearing
thereon were duly served on the parties. The Union filed
an answer, dated July 19, 1972, generally denying that it
had engaged in the alleged unfair labor practices. The
Company filed an answer on July 17, 1972, and a
supplemental answer on August 10, 1972 . In its answers the
Company denies that it has engaged in the alleged unfair
labor practices and, in the nature of a cross-action,
requests a determination that any remedial order herein
should provide that the primary obligation to correct any
unfair labor practices that may be found shall be directed
against the Union.'
With respect to the unfair labor practices, the consolidat-
ed complaint, in substance , alleges: (a) that beginning on
May 18, 1972, the Union attempted to cause the Company
to discharge its employee, Rodney L. Tweedy, and that on
June 2, 1972, by engaging in a work stoppage, the Union
did cause the Company to discharge Rodney L. Tweedy;
(b) that the objects of the work stoppage "were to force
and require Respondent Williams to terminate, suspend,
lay-off, or otherwise dispense with the services of the
Charging Party herein, because said Charging Party was
not a member in good standing in Respondent Local 67
and/or for arbitrary, irrelevant and unfair reasons, and
thereby cause or attempt to cause Respondent Williams to
violate Section 8(a)(3) of the Act"; (c) that on June 19,
1972, the Union prevented Rodney L. Tweedy from
returning to work for the Company "because he had not
been referred by the Respondent Local 67"; and (d) that
the Company terminated Rodney L. Tweedy on June 2,
1972, and since that date has failed and refused to reinstate
him to his former position , "because said employee was not
a member in good standing of Respondent Local 67
and/or otherwise lacked clearance of Respondent Local
67."
Pursuant to notice, a hearing in these proceedings was
held in San Antonio , Texas, on August 22, 1972. General
Counsel and Respondents were represented at the hearing
by counsel and the Charging Party appeared in person. In
accordance with the procedure authorized by Section
102.35(1) of the Rules and Regulations , the parties at the
hearing entered into a stipulation waiving a verbatim
transcript of the oral testimony and waiving their right to
file with the Board exceptions to the findings of fact which
the Administrative Law Judge shall make in this case. A
copy of the stipulation is attached hereto as Appendix A
[omitted from publication]. All parties were afforded full
opportunity to be heard, to examine and cross-examine
witnesses , and to introduce evidence pertinent to the issues.
Pursuant to permission granted the parties at the hearing,
General Counsel and each Respondent have filed briefs
with the Administrative Law Judge.
Upon the entire record in these cases, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company , a Texas corporation , is a sheet metal
contractor. During the times material hereto the Company
performed work as a subcontractor at a construction
project known as the Westinghouse Turbine Plant in
Round Rock, Texas. During the 12 months preceding the
issuance of the complaint, for use in the performance of its
work on said job, the Company purchased goods and
materials valued in excess of $50,000 which were shipped
to the jobsite through channels of interstate commerce
from locations outside the State of Texas . The value of the
services which will be performed by the Company in the
performance of its work at said construction project is in
excess of $400,000 . The parties admit , and I find, that the
Company is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
The principal issue in this case is whether Respondents,
or either of them , have engaged in unfair labor practices by
reason of the discharge of Rodney L. Tweedy on June 2,
1972. Tweedy was then employed as a journeyman sheet
metal worker by the Company on the Westinghouse
Turbine Plant job (hereinafter referred to as the Project).
I The pleadings and the other formal papers were received in evidence as
G C Exhs 1(a) through l(n).
GEORGE WILLIAMS SHEET METAL CO. 1053
In connection with the performance of its work on the
Project the Company has maintained a collective-bargain-
ing relationship with the Union which is reflected by the
contract received in evidence as General Counsel's Exhibit
2. The contract requires membership in the Union as a
condition of employment and also requires "the Union
... to furnish upon request by the Employer duly
qualified journeymen and apprentice sheet metal workers
in sufficient numbers as may be necessary to properly
execute work contracted for by the Employer in the
manner and under the conditions specified in this
Agreement."
During the times material to this case there has been a
shortage of qualified sheet metal workers. Before the
Company undertook the Westinghouse Turbine Plant job,
its president, George Williams, received assurances from
Union Business Agent W. F. Keller that the Union would
furnish him with the necessary men for the job. In order to
obtain personnel for the Project, Keller appealed to other
locals of the same International union to refer sheet metal
workers to the Company. All sheet metal workers em-
ployed by the Company on the Project have been referred
to the job by the Union either directly or through one of its
sister locals.
Rodney L. Tweedy, who is a member of the Dallas
Local, was referred to the job in the fashion mentioned and
began working on March 13, 1972. Contrary to the
allegation in the complaint, there is no evidence that
Tweedy was not a member in good standing or "lacked
clearance of Respondent Local 67." Tweedy specifically
testified that he has had no problems with the Union and
there is no evidence by way of oral testimony or otherwise
that Tweedy's employment on the Project was offensive to
the Union.2
Upon his hire on March 13, 1972, Tweedy was appointed
foreman. He was removed from that position on April 12
but continued with the Company as a journeyman sheet
metal worker. Hollis Dawkins, the Company's job superin-
tendent, testified that he removed Tweedy from the
position of foreman because Dawkins had received
complaints from the men about Tweedy. Three sheet metal
workers who have been employed by the Company on the
Project testified as to their objections to Tweedy. Their
principal complaint was that Tweedy assumed an arrogant
and authoritarian manner towards the other sheet metal
workers which offended the men. In addition, Tweedy
tried pushing the men into working harder which the men
resented and which the men considered created dangerous
conditions of work.
Sheet metal welder Jimmy Rogers testified about two
disputes he had with Tweedy while the latter was foreman.
2 The testimony at the hearing was to the effect that Tweedy was a
member in good standing of the Dallas Local , and was referred to the
Project in accordance with the practice and procedure established by the
Union Business Agent Keller.
3 On his cross-examination , W. N. Newman testified that the Umon had
been good to him and to his family in providing them with employment.
Newman also testified that he resented the fact that Tweedy had filed unfair
labor practice charges against the Union. However , Newman 's testimony, as
well as the testimony of Jimmy Rogers, is that the antagonism of the sheet
metal workers at the Project towards Tweedy antedated May 25 when he,
"Tweedy" filed the first charge in these proceedings . This is confirmed by
the testimony of Williams and Dawkins that between May 18 and 20 they
On one occasion he would have quit his job with the
Company but for Superintendent Dawkins' intercession.
However, Rogers finally quit soon after Tweedy ceased
being foreman because, according to Rogers , Tweedy still
acted as if he had authority and kept trying to push people
into working faster and because he did not like working
around Tweedy.
W. N. Newman also testified that even after Tweedy's
removal as foreman Tweedy behaved on the job as if he
still retained managerial authority. According to Newman,
Tweedy continued to shout instructions to the other men
and in the mornings at starting time Tweedy assumed to
tell the men, who normally gathered in the toolshed when
they arrived at the Project, when to go to work.3
Employees W. N. Newman and Rex Albert Dunlap
testified about the alleged hazardous conditions created by
Tweedy's assiduity on the job. The practice is for the sheet
metal workers to work in groups of three and four. After
Tweedy ceased being foreman he worked with the two sons
of W. N. Newman. Tweedy was the more experienced of
the three and acted as a kind of job leader. According to
Superintendent Dawkins, Tweedy and the two Newman
boys did two to three times as much work as any other
group on the Project. However, W. N. Newman testified
that his sons did not like working with Tweedy. They
objected to Tweedy's authoritarian manner and they
complained to their father that they thought Tweedy was
creating unsafe conditions of work for them. In the latter
connection the men worked 40 to 60 feet above the ground
in the steel framework of the structure. Any misstep might
cause an individual to fall off the beam on which he is
standing. The likelihood that such accident might occur
multiplies as the pace of the work increases . According to
W. N. Newman, his sons believed that Tweedy was leading
them at a dangerously fast rate.
Rex Albert Dunlap testified that it was dangerous for the
men to work on the elevated portions of the structure in the
rain. On one occasion during a rainstorm, when all the
other men had come down from the framework, he
observed Tweedy and the two men with whom Tweedy
was working still aloft. Dunlap called the situation to
Superintendent Dawkins' attention who then ordered the
three men to come down.4
The evidence does not support the Union's contention
that Tweedy was responsible for creating hazardous and
unsafe conditions of employment for himself and for the
other sheet metal workers. At no time was any complaint
to such effect lodged with the Company. What the
testimony in this case shows is that the sheet metal workers
found Tweedy's personality abrasive. They considered
Tweedy arrogant, domineering, and overbearing and found
were informed that the sheet metal workers might quit the Company's
employ unless Tweedy were removed from the job.
4 There was testimony about an incident , during the period when
Tweedy was foreman , when a riser which was being hoisted by rope fell
because the rope parted There is an implication from the testimony that
Tweedy was at fault in using old rope when new rope was available. This
incident occurred more than 2 months before Tweedy's discharge. The
accident was not of a repetitive nature . While the incident might reflect
unfavorably upon Tweedy 's judgment as a foreman , it has no bearing upon
Tweedy allegedly creating hazardous conditions of work after he ceased
being foreman.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it offensive working with him. As Tweedy worked at a
substantially faster pace than the other employees un-
doubtedly this served to aggravate their irritation with him.
It is not unnatural that the men sought to condemn
Tweedy's performance at work by denouncing it as unsafe.
But if, in fact, Tweedy had been responsible for creating
unsafe conditions of work the men undoubtedly would
have taken some affirmative steps to correct the situation.
So far as the testimony shows they did little more than
grumble to one another about the subject. No complaints
of a nature serious enough to impel action were made to
the union officials. Business Agent W. F. Keller testified
that in the latter part of May when he visited the Project
the men complained to him that they cannot get along with
Tweedy, that Tweedy was giving orders like he was a
foreman, that Tweedy was pushing too hard on the job,
and that Tweedy was going to cause someone to get hurt.
Some of the men also said they would quit if Tweedy was
not removed from the job. Similarly, Traveling Steward
Robert Thomas Stringer testified that the men resented
Tweedy because he continued to boss them, was arrogant
and also because they believed Tweedy was creating unsafe
working conditions by rushing around too much. Thus, in
complaining about Tweedy to the union officials the men
emphasized their dislike of Tweedy and only incidently
accused him of creating unsafe working conditions by
pushing too hard or rushing around too much. None of the
men asked the union officials to file any grievance or to
take any other action to cure the alleged unsafe conditions
and the union officials apparently did not take the
complaints seriously enough to initiate any corrective
action themselves.
Without regard to the question of safety, the sheet metal
workers on the Project resented Tweedy because of his
overbearing personality and perhaps also because his work
pace cast an unfavorable light upon their performance. For
these reasons the men sought Tweedy's removal from the
Project.
About May 18, Business Agent Keller informed Compa-
ny President Williams that Keller had heard that if Tweedy
is not taken off the job the other men would quit.5
Williams advised job Superintendent Hollis Dawkins
about the conversation. The next day Dawkins called
Keller and inquired whether the Company had to get rid of
Tweedy. Keller responded that he was having too much
trouble with Tweedy and promised to send Traveling
Steward Stringer to the Project. Stringer met with Dawkins
later the same day and told Dawkins that he, Stringer, had
had nothing but trouble with Tweedy and he would not be
5 I credit Williams' version of his May 18 conversation with Keller
Keller's version of the conversation is not substantially different Keller
testified that he informed Williams that Tweedy was causing problems, that
the men were going to leave the job, and that Tweedy was pushing the men
and someone would get hurt
6 Stringer testified that every time he went to the Project he received
complaints about Tweedy. He tried to calm the men by suggesting to them
that they have patience and by telling them that their problems with Tweedy
would work themselves out
r Tweedy testified that after he received notification of his discharge he
asked Job Steward Finch why he was terminated and Finch replied because
he had been giving too many orders About an hour later , according to
Tweedy, Finch remarked to him that "it took a long time but I [Finch)
finally got you fired."
able to keep the men on the job. Dawkins replied that in
the absence of any reason he would not discharge
Tweedy.6
On June 2 the approximately 10 sheet metal workers on
the Project decided that they were going to leave the job
because they objected to the continued presence of
Tweedy. There was no meeting at which the decision was
made but rather the men passed the word from one to
another . There is no evidence that any union official
instigated or participated in the decision . About 8 : 15 a.m.
Job Steward Gene Finch informed Superintendent Daw-
kins that he, Finch, was going to quit as soon as he got his
paycheck. Finch told Dawkins he was quitting because of
the mess. When Dawkins asked what he was referring to,
Finch replied that Dawkins should get rid of Tweedy.
About a half hour later Finch told Dawkins that he felt it
was his duty to inform Dawkins that all the men were
going to quit if Tweedy were not fired.
Dawkins spoke to Company President Williams about
the problem and the latter instructed Dawkins to terminate
Tweedy. At 1 p.m. Dawkins informed Tweedy that he was
terminated.? Just prior to Tweedy's termination, at 12:45
p.m., three sheet metal workers, Gomez, Moore, and
Carpenter, quit their jobs and did not again return to the
Project. Between 2 and 2:30 p.m., still before the end of the
normal workday, two other employees, Riggs and Dunlap,
left work. However, they returned to the job on Tuesday,
June 6.
H. N. Newman testified that he and his two sons did
not report for work on Monday, June 5. During the day he
spoke with Traveling Steward Stringer who informed him
that everything was okay on the job. He and his sons
returned to work on Tuesday, June 6.
On June 19, Tweedy returned to the Project and
informed Williams that Business Agent Keller had said
that he could work .8 However, the other sheet metal
workers would not go to work while Tweedy was there and
Cecil Cobberly, who was acting as job steward in the place
of Finch, informed Williams that all the men would go
home if Tweedy returned to work. Stringer later appeared
and also informed Williams that the men would not work if
Tweedy was returned to the job. Williams acceded and did
not permit Tweedy to go to work.9
Conclusions as to Tweedy's Discharge
General Counsel's position in regard to this case is
expressed in his brief, as follows:
... Respondent Union through its admitted agents
sought the discharge of Tweedy because he was not a
8 Tweedy testified that on June 17 he received a telephone call from
someone who identified himself as Keller and who informed him that he
could return to work on Monday . Keller denied making such telephone call
6 The Company's position is that it is willing to employ Tweedy, that it
discharged Tweedy and has not returned him to work only because the
other sheet metal workers would not work with Tweedy. Also, the Company
claims it would be subject to possible cancellation of its subcontract and
other penalties if it permitted work to stop . Corroborating this assertion it
introduced , as Respondent Employer's Exhibit I, a telegram from the
mechanical contractor . Natking and Company , advising . "As of 8:00 a.m
Monday, June 5 , 1972, you are in default of our sub-contract agreement
. in that no sheet -metal workers are present at the job site . Natkin &
Company will take necessary steps . . . if this job is not manned
immediately "
GEORGE WILLIAMS SHEET METAL CO. 1055
member of Respondent Union and because he filed
charges with the National Labor Relations Board.
The deficiency with this argument lies in the absence of
evidence to support its factual premises. First, the Union
did not seek Tweedy's termination . No discharge impera-
tive was given the Company. The union representatives
only informed the company officials that the other men
would quit work if Tweedy was not taken off the job.10
Second, no evidence was offered at the hearing, either
oral or documentary, that Tweedy's discharge was sought
because he was not a member of the Union and General
Counsel refers to no such proof in the summary of the facts
set forth in his brief. The testimony adduced at the hearing
was to the contrary. Tweedy was a member in good
standing of the Dallas Local. He and other sheet metal
workers who were not members of the Union but were
members of sister locals were recruited by the Union to
work on the Project. During the times material hereto there
was a shortage of sheet metal workers and the Union had
to go outside its jurisdiction to obtain journeymen to staff
jobs within its territorial boundaries. Even Tweedy testified
that he had no problems with the Union about obtaining
employment within its jurisdiction.
Third, the contention that the Union sought Tweedy's
discharge "because he filed charges with the National
Labor Relations Board" is equally without factual support.
The first charge filed by Tweedy was on May 25.
According to General Counsel witnesses Williams and
Dawkins, between May 18 and 20 they were informed by
union representatives that the sheet metal workers might
quit the Company's employ unless Tweedy were removed
from the job. Thus, the effort to remove Tweedy from the
Project antedated the filing of the first charge by a week.
Tweedy was not discharged for any union-related reason
and the Union not only did not oppose Tweedy's
employment at so-called union jobs but offered to assist
him in obtaining such employment. Thus, after his
termination, Tweedy telephoned Business Agent Keller
and asked to be referred to the Westinghouse Project.
Keller replied that he could not send Tweedy back to the
Project because the other men would then quit, but he
informed Tweedy that there were three or four jobs
available in Austin and he would give Tweedy the pick of
these jobs.
The Union did not instigate Tweedy's discharge. The
men who were working with Tweedy found him objection-
able and during the month of May threatened to quit the
Project unless Tweedy were removed . The union officials
relayed the threats to the Company without either
endorsing or condemning the threats . In so doing they
were not acting to promote any interest or policy of the
Union. The June 2 walkout was a spontaneous action on
the part of the men. The Union was not consulted. While
the Union did not approve the walkout, neither did it
repudiate the employees' action . The Union functioned as
a conduit for relaying the employees ' sentiments by
informing the Company that Tweedy would have to be
removed from the Project in order to induce the men to
return to work." In these circumstances I find that the
Union did not cause or attempt to cause the Company to
discharge Tweedy.
The operative events here are strikingly similar to the
factual situations in Continental Overall Company, 116
NLRB 1588, and Studebaker Corporation, 110 NLRB 1307,
affd. 229 F.2d 138 (C.A. 7).12 The rationale of these cases
also apply to the instant proceedings . 13 An employer who
discharges an employee only because of the refusal of other
employees to work with him as an individual (i.e., where
there is no question of union activity, union fealty, or
statutory protected activity) does not violate the Act.14 Nor
does a labor organization violate the Act where , as in the
Studebaker and Continental Overall cases, their representa-
tives press upon the employer the attitude of their
members . Furthermore , even if, contrary to the holdings in
the Studebaker and Continental Overall cases, the Union
here should be deemed responsible for securing Tweedy's
discharge , as the discharge neither was to encourage or
discourage membership in a labor organization nor was of
a nature which "inherently encourages or discourages
Union membership ," it would not violate Section 8(aX3)
and the Union therefore would not violate Section 8(b)(2)
for causing such discharge.15
10 Thus, Company President George Williams testified that on May 18
Business Agent Keller told him that he had to get rid of Tweedy or the men
would walk off the job. I do not credit Dawkins testimony that on May 19,
Keller advised him to get rid of Tweedy because Keller was having too
much trouble with Tweedy and later that day Stringer came to the Project
and informed Dawkins that Tweedy had to go The pretrial affidavit which
Dawkins furnished General Counsel does not include any statement that
Keller directed Dawkins to discharge Tweedy. Stringer testified that he told
Dawkins that he had been having nothing but trouble with Tweedy and
would nQt be able to keep the men on the job Furthermore , Dawkins'
testimony regarding the statements made to him on May 19 by Keller and
Stringer is inconsistent with the tenor of the testimony of the other witnesses
at the hearing, including George Williams, that the union representatives
did not affirmatively request Tweedy's termination but merely advised the
company officials as to the attitude of the sheet metal workers employed on
the Project. Job Steward Finch's remark to Tweedy on June 2 , after the
latter had been notified of his discharge , that it had taken "a long time but I
(Finch) finally got you fired ," in context of the events of the day, indicate
that Finch was expressing his personal animosity rather than bragging that
the Union had secured Tweedy's termination . Early in the morning on June
2 Finch notified Superintendent Dawkins that he (Finch) was quitting
because of Tweedy The record indicates that Finch did quit and did not
thereafter return to the Project . In the circumstances it is not unnatural for
Finch to have derived pleasure from Tweedy 's discharge and to have
enhanced his satisfaction by bragging to Tweedy that he was responsible. If
the Union had intended to cause Tweedy's discharge it is not likely that
Finch would have been impelled to quit his job.
11 On June 2, Business Agent Keller sent to the Company the following
telegram : "This is to advise that Sheet Metal Local 67 does not seek release
of Rodney Tweedy and is not responsible for any matters leading to his
discharge ." This bare self-serving statement is of no force . It neither
exculpates the Union from responsibility , if any , for Tweedy 's discharge nor
points to the Union's guilt of the instant charges.
12 See also Philadelphia Typographical Union No. 2, 189 NLRB No. 105;
N L R B. v. Local 294, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent, 317 F.2d 746 (C.A. 2).
13 I subscribe to and adopt the rationale advanced in the Intermediate
Report issued in the Studebaker case
14 Master Dynamics Corporation, 180 NLRB 802 ; N.LR.B. v. Wytherville
Knitting Mills, 175 F.2d 238 (C.A. 3); N.LR.B. v . I. Spiewak, 179 F.2d 695
(C.A. 3); Queens-Premier-Williams Fur Dressing Corp., 92 NLRB 42.
15 There can be no 8(bX2) violation unless that which is caused or
attempted is a violation of Sec . 8(aX3). N.LR.B. v. Local 294, etc., 317 F.2d
746, 750 (C.A. 2). "In general , this Court has assumed that a finding of
violation of Section 8(a)(3) or Section 8(bX2) requires an affirmative
showing of a motivation of encouraging or discouraging union status or
(Continued)
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the complaint alleges that an object of the June 2
strike was to force and require the Company to terminate
Tweedy for "arbitrary, irrelevant and unfair reasons,"
General Counsel does not pursue this position in his brief.
I also am of the opinion that the facts here do not spell out
a violation under the principle enunciated in the Miranda
case . is First , I do not find that the Union was responsible
for causing Tweedy's discharge . Second , even if it were,
there still would be no conflict with the Miranda principle.
Tweedy's continued employment by the Company was not
guaranteed by the terms of the applicable collective-
bargaining agreement . No specific statutory or constitu-
tional right was infringed upon by his discharge . For the
Union to have pressed for Tweedy's termination in
response to the demands of the majority of the unit who
found Tweedy 's personality traits offensive and who were
prepared to quit their employment rather than to continue
working with him is not conduct that would be deemed
"arbitrary , irrelevant or unfair" within the meaning of the
Miranda case .[? As the exclusive representative of the
appropriate unit of employees, the Union has the "statuto-
ry obligation to serve the interests of all members without
hostility or discrimination toward any, to exercise its
discretion with complete good faith and honesty, and to
avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177.
In the discharge of this obligation necessarily a "a wide
range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents,
subject always to complete good faith and honesty of
purpose in the exercise of its discretion ." Ford Motor Co. v.
activity . There have, to be sure , been exceptions to this requirement, but
they have been narrow ones . ." Harlan , J., concumng in Local 357,
International Brotherhood of Teamsters, Chauffeurs Warehousemen and
Helpers ofAmerica v N LR.B., 365 U.S 667, 680.
16 Miranda Fuel Company, Inc, 140 NLRB 181, enforcement denied 326
F 2d 172 (C A. 2)
Ir See Local Union No 456, International Brotherhood of Electrical
Workers, AFL-CIO, 183 NLRB No 130, New York Typographical Union
Huffman, 345 U.S. 330, 338. Thus, a labor organization
may pursue policies which result in a disparity of treatment
among employees .18 This is an every day concomitant of
its bargaining and representational functions . Its obliga-
tion to accord fair representation to all the members of the
unit does not mean that regardless of the circumstances it
must seek to the full extent of its powers to protect the job
of each employee in the unit . 19 As here, the union lawfully
could support its members who were seeking to remove
Tweedy from his job where the reasons for the termination
and the discharge itself do not infringe upon any right
guaranteed by contract or by law.
I find General Counsel has not proved that the
Respondents have engaged in any of the unfair labor
practices alleged in the complaint.
Upon the basis of the above findings of fact , and upon
the entire record in the case , I make the following:
CONCLUSION OF LAW
Respondents have not engaged in the unfair labor
practices alleged in the complaint.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the Act , I hereby issue the
following recommended:
ORDER
The complaint is dismissed in its entirety.
Number Six, etc., 144 NLRB 1555 , affd . 336 F .2d 115 (C.A. 2); International
Typographical Union, Columbus Typographical Union No 5, AFL-CIO, 177
NLRB 855 , affd . 437 F.2d 454 (C.A. 6); N. L. R. B. v . Local 294, etc.,317 F.2d
746, 749, fn. 4 (C.A 2).
Is International Hod Carriers, Building and Common Laborers Union of
America, Local 7, AFL-CIO, 135 NLRB 865.
19 Vaca v . Sipes, supra.