IBEW, Local 134

National Labor Relations Board - Board Decisions

Jul 14, 1971

192 N.L.R.B. 85 (N.L.R.B. 1971)

IBEW, LOCAL.-134
International Brotherhood . of -Electrical Workers,
AFL-CIO, and, Local 134, International ; Brother-
hood of Electrical Workers, AFL-CIO (Illinois Bell
Telephone- Company) and " Supervisors Protec-
tive Association (Not a Labor Organization). Case
13-CB-2890
July 14, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
On June 29,1970, TrialExaminer Frederick U. Reel
issued his Decision in the above-entitled proceeding,
finding that the -Respondents have engaged in and
were engaging in certain unfair labor practices within
the meaning of the Act, and recommending that they
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial
Examiner's Decision. Thereafter, both `Respondents
(hereinafter referred to as Respondent International
and Respondent Local) and the Charging. Party
(herein referred to as the Association) filed exceptions
to the Decision and supporting briefs. The General
Counsel has filed a brief in support of the Trial
Examiner's Decision, cross-exceptions to the- Trial
Examiner's Decision, and an answering brief to the
Respondent International's exceptions.
On September 2, 1970, the National Labor Rela
tions Board, having determined that the instant case
raised=issuesof'substantial importance in the adminis-
tration of the National Labor Relations Act, _ as
amended, ordered that this case be consolidated with
one other 1, ,for the purpose of oral argument before
the Board. On October -5, 1970, -these cases were
argued orally before the Board.
The Board 2 has reviewed the rulings of the Trial
Examiner made at the hearing and. finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs,- the
oral arguments, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
i Local Union No. 2150, international Brotherhood of Electrical Workers,
AFL-CIO (Wisconsin Electric Power Company), 192 NLRB No. 16, issued
this day.
2 Member Ralph E. Kennedy, who succeeded to the Board after the
oral argument presented by the parties, has reviewed the entire record in
this case including the arguments advanced during oral argument and is
participating is the disposition of this case.
9 Article IL, section l(a) and exhibit A of the 1968-71 and all prior
collective-bargaining agreements since 1948 provide in pertinent part:,
Article II, section 1
(a) This Agreement covers all those employees of the Company in
the group represented by Local Union No. 134, whose titles are
included in Exhibit 'W"' .. .
s r • • s
8$
mendations of, the Trial Examiner to the extent
consistent with our Decision and Order.
Illinois Bell Telephone Company, hereinafter re-
ferred to as Illinois Bell, or -its- predecessors and
Respondent Local have maintained a contractual
relationship since 1909.Respondent Local represents
Illinois Bell's Chicago -employees in the "Plant
Department," including not only journeymen and
apprentices employed as PBX-0 installers but also
persons employed as "P:B:X. Installation Foremen,",
"Building , Cable Foremen;" and, "General
Foremen." 3 According, to the terms `of the collective-
bargaining agreement all members of the bargaining`"
unit, including the above-named a foremen, must
become and remain members of Respondent Local.4
At one, time the collective-bargaining agreement
between the parties prescribed the monthly wage rates,
for the "foremen" listed above. However, in recent
agreements no wage, provisions have been included
but , the agreement includes a section ° entitled
"Working Conditions for General Foremen- and
Foremen" which concerns payment for overtime
work and for certain, absences. Another contract
clause provides that the appointment of general'
foremen may not=be made fora period of less than 5S
days. Further, other evidence-in the record shows that
when Illinois -Belli , recently revised ,its .foremen
overtime schedule it requested the concurrence of
Respondent Local.
Between May 8, 1968, and. September 203 1968,
Respondent Local . engaged in an-economic strike,
against Illinois Bell. At- the inception of the strike,
Illinois Bell informed, the foremen that although it
would like, to have them come- to work the decision
whether to, work or to respect the strike was a matter
of -personal discretion, and that-those.who chose not
to work would not be penalized. On the other hand, at
a Respondent Local union, meeting just prior to the
strike a representative of Respondent Local, -in
response to a question, warned that it would be the
policy of the- Union- to discipline any, foremen who
performed rank-and-file work during' the' strike:' It
appears that a large, number of the foremen were
present at this meeting- and heard the Union's
warning. Thereafter, in^response to'the Respondent
Exhibit A
Wage Group Number I
General Foremen
Wage Group Number 2
PBX Installation Foremen
Building Cable Foremen
4 Article a section 1 of the 1968-71 and all prior collective-bargaining
agreements since 1948 provide in pertinent part:
All employees with thirty days or more of employment with the
Company, Who , are , represented by LocalUnion No. 134 shall become
and remain members of, Local Union 'No. 1-14 in good standing as a
condition of employment under this agreement ' .
192 NLRB No. 17
86 DECISIONS OF NATIONAL LABOR"RELATIONS BOARD
Local's warning," several foremen formed the` Bell
Supervisors Protective Association. 'and through. it
retained counsel to -protect the rights,of those foremen
who chose to work during the strike.
.buring the course of the, strike some of the foremen
continued to,report'for work,and performed, rank-
and-file work, and otheri foremen stayed away from
work. ° After -the strike _ ,-Illinois, Bell in no Way-
discriminated against The latter,groups; and ,,indeed
promoted some of them; to' higher positions.
.The ,record .reveals that' Respondent Local thereaf-
ter 'carried ,,out its earlier; ,announcement and com-
menced -,union proceedings against a number,of
foremen, and-imposed,fines of $500 on foremen who
performed, struck-,, work and $=1,000 fines against each,
of, five foremen-who were instrumental. in forming the
Association.Most:.of the fined foremen appealed to
the International, which, ,.except where there was
procedural irregularity, ,sustained the fines. Both at
the proceedings-before the Local andon the appeal to
the International' it: was urged by the foremen that the
union-security clause , which- compelled them -to
remain, members of Respondent, Local was illegal.
Illinois'Bell has reimbursed these foremen for the full
amount of the levied fines Which theypaid., ,
,The Trial'EExaminer concluded that the Respondent
Local, by imposing on foremen5 possessing the'power
to, adjust? grievances fines for crossing the-Respondent
Local's picket line and performing struck work;
violated Section 8(b)(1)(B) of ;the Act. He, reasoned
that-the, Respondent Local's action, impinged on the
Loyalty:, which -Illinois Bell- should be able to expect,
from its 'supervisors who are, the, "Employer's repr_e-
sentatives" for the -adjustment , of -grievances and
therefore, restrained.: and= -coerced Illinois, Bell' in
violation, of, Section 8(b)(1)(B) of, the Act.'-T.he Trial
Examiner, also-'found that the Respondent Local
violated Section 8(b)(l)(B) by fining the supervisor-
s The Respondents have excepted to the Trial Examiner's finding that
foremen and 'general` foremen were "Employer representatives." The record
clearly 'shows thatthe^foremen and general foremen-do actually participate
in Abe adjustment of grievances and therefore are, for the .purposes of. Sec.
8(bxlXB), '"Employer representatives." The Trial Examiner has, however,
refused to rind' that persons occupying the -positions of assistant staff
supervisor and;engineer are"Employer representatives" for the purposes of
Sec. 8(b )(1)(B). We,agree ,with the Trial Examiner.. The three assistant staff
supervisors occupy nonsupervisory`positions and do not have any contact
with the grievance adjustment procedure . It is true that these persons were
formerly foremen and expect to be returned to the supervisory hierarchy in
a year or two. However, it is clear that the Company has no immediate
expectation of having these persons represent it in collective-bargaining
and grievance adjustment . Further, the record , although sparse , clearly
shows that the two engineers occupy nonsupervisory staff - positions with
duties which do not include participation in the collective bargaining and
the adjustment of grievances . See Toledo , locals Nos. ,15 P and 272 of the
Lithographers, and kPnotoengravers International , Union, AFL CIO (The
Toledo-Blade Cjompany', Inc.), NLRB No. 173, enfdty437 F.2d 55 (C.A.
6).-
The `^tione fntgrnati a[ has excepted to the Trial Examiner's finding that it
violated See. I:8(b)(1)(11) by ,affirming Local 134's fining of the union
member s̀upervisors for doing struck work. It argues that it should not be
held liable for its purely appellate review of the locals fines. The
organizers of the 'Association since; although ,not
sponsored' by, the Company, it was part^and parcel of
the, overall 'attempt, by `'the Respondent., Local to
restrain and coerce Illinois Belt in the:-selection of its
representatives' for the • adjustment ,,of,,,'grievances.
Finally, the Trial Examiner concluded that Respon-
dent International also, violated Section8(b)(1)(B) by
affirming, on appeal,'the imposition of those fines by
the Respondent Locals- .
We agree with these findings of the Trial Examiner.
The Union in this case,-,as the union in Local Union
No. 2150. -International Brotherhood of Electrical
Workers. AFL-CIO (Wisconsin Electric Power Com-
pany), 192 NLRB. No. 16 issued this day, fined union
member supervisors for doing the work, of the rank-
and-file union members during the course of a strike
against-Illinois Bell. We find n© discernible difference
between the two cases, and for the reasonsset forth in
that case, we find that,; in the',instant ' case, the Union
violated Section 8(bX1)(B)v by fining union member
supervisors for-doing struck work since-the underlying
dispute' giving rise to the fines was between the Union
and Illinois Bell rather than. between the; Union and
its supervisor-members.
The Trial Examiner has also found that the Union
violated,, Section 8(b)(1)(B) by fining five supervisors
for,organizing the Bell Supervisors Protective Associ-
atior Weiagree, for the reasons set,forth in, the Trial
Examiner's Decision, that while the Company was not
active in the formation of the Association, the
creation, of the Association was for the purpose of
protecting the' rights of - those supervisors who were
fined, unlawfully for doing ,struck work which -fur-
thered the interests of the ,Company. Consequently,
we conclude, as did the Trial Examiner, that the fining
of these, supervisors for forming the Association must
be considered as part of the. Union's overall, effort to
International asserts - there is a common law principle which provides that
an, international union is not 'answerable in damages to a wrongfully
suspended, or, expelled member when its only action taken wis ;in=the
nature of an appellate review of the locars actions . The two New York
common law, cases, People ex rel." Solomon v. Brotherhood of Painters,
Decorators . &, Paperhanger r, 218 N.Y. ' 115, 112 ME 725 (1916),- and
Schouten v.,Alpine,. 2151, N.Y. 225, 109 N..-244 (1915), cited for this
principle are inapposite. }ere unlike those cases , the International affirmed
an appeal of fines ' which' "on their face" were violative of the Act. Further,
those who appealed the fines in this case specifically raised°the,question of
whether the -fines were legal' `under the statute . United 'Brotherhood of
Carpenters (Endicott Church Furniture Inc.) V. ' N.LRB.,' 286 F.2d 533
(C.A.D.C., 1960), also relied upon by the International , involves, in part,
the court's' `refusal` to find an international ' union in violation" of the Act
because it approved work "rules which could have been applied in a legal
manner rather than, as ^ they'were' applied, in an`illegal' manner . Here the
fines "on their face" were unlawful ' and this situation was 'argued
vigorously' to the` International by the supervisors when they-made the
apInathe light of the above, we agree with, the Trial Examiner, for the
reasons set forth' in his ' Decision , that in this ' case is was clear' that the
International , ' by its review, sustained fines imposed in violation of a
Federal law after the validity of these - fines under that law had been placed
in issue before it and thereby violated Sec . 8(bXIXB) of the Act.
IBEW, LOCAL 134 87
coerce and restrain the Employer in selecting its
representatives.
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 Trial Examiner, as herein amended,7
and orders that the Respondents, International
Brotherhood of Electrical Workers, AFL-CIO, and
Local 134, International Brotherhood of Electrical
Workers, AFL-CIO, their officers, agents, and
representatives,, shall take the action set forth in the
Trial Examiner's recommended Order, as herein
modified:
1. Delete paragraph 2(b) and substitute the follow-
ing:
"Reimburse the supervisory employees for any and
all sums paid by them pursuant to the fines referred to
in the preceding paragraph, and advise in writing
each supervisor against whom such fines were levied
that the, fines have been rescinded and that the
records thereof have been expunged; provided: that
the action required in this subparagraph shall be
primarily required of the Respondent Local, and shall
be required, of Respondent International only to the
extent that Respondent Local shall fail to give the
written notices and pay the sums herein required."
2. Substitute the attached notice for the Trial
Examiner's notice.
MEMBER FANNING, dissenting:
At issue herein is whether restraints imposed on
supervisors by their union for their performance of
duties not related to their supervisory functions
constitute "restraint and coercion" of their employers
within the meaning of Section 8(b)(1)(B).
The relevant facts, may be summarized briefly as
follows: Prior to a strike called by Respondent Union,
a membership meeting was held by Respondent at
which members who held supervisory positions were
advised that they would be subject to union discipline
if they performed rank-and-file work during the
strike. The Employer informed the supervisor-mem-
bers that it wished to have them come to work to
perform rank-and-file work, but that the'decision to
work was left to their discretion and could be
exercised without fear of penalty if they chose not to
' It is not the purpose of the Board to become involved in the private
arrangements made between individual supervisors and Illinois Bell about
how the union-imposed fines were to be paid . It is clear that the fines were
assessed against the supervisors individually and therefore we shall follow
our customary practice and direct that the Union reimburse the supervisors
rather than Illinois 'Bell
8 The cases cited by the majority in support of their decision all involve
fines of supervisors imposed by their union because of the manner in which
they discharged such functions . I agree with the Trial Examiner that they
are distinguishable from the instant case. With respect to the Trial
Examiner's view that the decision in the first A. S. Horner case (176 NLRB
work. During the course of,the strike some supervisor-
members performed rank-and-file work; others re-
frained from working. After the strike, the ,Employer
imposed no penalties,for failure to work and, in fact,
promoted some supervisors who had refused to-work
to higher positions. Respondent, after appropriate
proceedings, ,imposed fines of $500 on- supervisor-
members who performed rank-and-file, work-during
the strike.
Section 8(bXl)(B) makes it an unfair labor practice
for a labor organization to "restrain or coerce ... an
employer in the selection ofhis representatives for the
purposes of collective bargaining or the adjustment of
grievances." Thus, the , prohibited practice - is the
restraint or coercion of the employer, not in any
general sense, but solely in the :selection of his
representatives-not just any, representative-but
only those who perform collective-bargaining, func-
tions or engage in the settlementpf grievances On the
facts of this case, it is clear that the Employer felt no
restraint or coercion from the Union's ac on; it left
the decision whether to work entirely to th^discretion
of the individual supervisors, and promoted some who
had refused to work. Nevertheless, the law has
developed so as to include within the statutory
concept of restraint and coercion of an employer,
union disciplinary actions 'which'in fact are directed
towards compelling 4, supervisor's allegiance to his
union rather than to his employer with respect to his
performance of collective bargaining or -grievance-
adjustment _ functions or his performance of duties
which are directly related to or which may be said
reasonably to grow out of his performance of such
functions.8
However, to -constitute restraint or coercion of the
employer in the statutory sense, it is necessary that the
restraints imposed on the supervisor must be re-
straints on his actions in such matters, not on his
actions on other matters. For it is only in the denial to
the employer of the unrestrained performance of ' such
functions by one whom he has selected for that
purpose that the employer can be said to be coerced in
the selection of a representative to act in such matters.
As the Board said in the San Francisco-Oakland
Mailers case, "Realistically, the Employer would have
No. 105) compels the result herein. ! believe he misconceives the role of the
fined supervisor. There the, supervisor was fined because he gave an
antiunion speech during an election campaign . Though the injury to
legitimate union objectives is comparable to that flowing from the
supervisor's performance of struck work in this case, the supervisor was
performing a normal supervisory ,function of'informing employees of how
management preferred to deal with , employee grievances and
complaints-a system of direct dealing with employees rather than dealing
with them through a representative. So viewed, the case may come within
the San Francisco-Oakland Mailers'' decision. However that may be, I did
not participate in Horner and do not regard myself as bound by its holding.
88 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
to replace its foremen, or face de facto nonrepresenta-
tioni 'by 'them- ." s If the restraints imposed upon the
supervisor because of his actions in matters' unrelated
to ° his general` supervisory'- functions there is no
restraint- 'upon the employer- with respect to' his
,selection of representatives to perform such-functions
though `he may of course be'restrained in the selection
of repreisentatives'to'perform other functions. The
Board has in fact recognized this distinction as valid
in the Syd,Gougli':case10 where itfoUndno violation of
Section.-$(b)(l)(B)-in a fine of- a supervisor (who had
grievance-adjustment responsibilities) for his failure
,to register - at .-the union's-hiring hall. That decision
necessarily stands for,the`proposition that a union-
imposed restraint upon a supervisor because of
matters, unconnected with his performance of collec-'
tive-bargaining functions does not restrain orcoerce
him yin` the performance of "the latter functions and,
that being the case, there is no restraint or coercion of
the'employer in the statutory sense. '
Here the supervisors ' were- not fined because- they
gave directions to' the work ' force, interpreted the
collective-bargaining agreement, adjusted: grievances,
or performed;any, other function-- generally;related to
supervisory ,activities, in a manner in disfavor-with the
Respondent. Union. They were fined,, because they
performed production, work in the bargaining' unit
during a strike. Their Employer sought to use them,
not in the direction of the work of employees who had
not gone on strike or of replacements` for strikers, but
to replace. the strikers' themselves. In short, he
assigned them" to work as employees within the
meaning of Section 2(3)' of the Act, not as supervisors
within the meaning of Section 2(11) of the Act. Asthe
Supreme` Court has held, fine 1s,of-members who act as
strikebreakers during a strike do, not "restrain or
coerce", them within-the meaning of Section 8(b)(1) of
the ' Actai If the fine ' of an employee-member for
engaging in strikebreaking does not restrain or coerce
him within" themeaning of Section8(b)(1), I cannot
see how-the same restraint ` imposed upon a supervi-
sor-member for the same activity can be broadened
into restraint and `coercion of the employer within the
meaning' of -that ' section. All the restraint does,' if
successful, is to `deny the employer the' use of the
supervisor is 'A production worker during the strike.12
My colleagues argue, however, that,
During the strike of.the Union,-the Employ-
er clearly considered" its supervisors among those it
e Sad Francisco-Oakland Mailers' Union Local No. ',18, - International
Typographical Union (Northwest Publications), 172 NLRB No. 252.
1e Local " Union No. 45`3, `Brotthethood of Painters, Decorators and
Paperhangers of Anienca AFL-CIO (Syd Gough and Sons, Inc.) 183 `NLRB
No.24.
11 N.L.R.B. v. Allis Chalmers Manufocting Co., 388 U.S. 175.
12 If &., Employer had requested his supervisors to perform their
normal suprvisory functions in the direction of replacements or other
could' depend on during this period. The `Union's
fining of the supervisors who were" acting in the
Employer's interest in performing the struck work
severely jeopardized the relationship between the
Employer and its supervisors. Thus,' the-fines, if
found'to'be lawful, Would not permit the Union to
drive' a wedge- between a supervisor and ^ the
Employer," thus interfering- with-the performance
of the duties the ' Employer had a right ,to espect the
supervisor to perform.-The Employer could no
longer count on `th'e complete ` and undivided
loyalty of 'those it had selected to act as its
collective-bargaining agents or' to act for -it _in
adjusting grievances. Moreover, such fines clearly
interfere with the Employer's control over its own
representatives.13
The argument would be 'more, appropriate if Section
8(b)('1) 'also made it, an unfair labor practice for a
union to induce or require supervisors to align
themselves with the union on any matters. -
However, the section 'd'oes not 'contain such an
unfair' labor practice."Moreover,t though the 1947
amendments did exclude supervisors from the defini-
tion of employee 14' and declared that "no employer
subject ' to this Act shall" be compelled to'- deem
individuals defined herein, as supervisors as employ-
ees for the purpose of any law,'either national or local,
relating to collective bargaining," 15 it also declared
that "Nothing herein shall prohibit any individual
employed as a supervisor from becoming or remain-
ing a member of a labor organization. '16 The effect of
these various provisions is `a denial of any statutory
protection to supervisors either in 'their' joining' or
assisting a union or in their refraining . from such
activities. It leaves the employer free to prohibit such
activities or to permit them, to discharge supervisors
for engaging in such activities if he'desires,Congress
gave,employers this freedom to deal with supervisors
,precisely because, of the problem of " "divided
loyalties." 17 It stopped short, however, of making it
an unfair labor practice for a-labor organization to
organize supervisors or to admit them to_membership.
The only limitation it placed on unions in'this regard
is the narrow prohibition against restraining or
coercing employers in the selection 'Of representatives
(including , supervisors, but not limited to supervisors)
for purposes of collective bargaining or the"-
adjust-ment. of grievances. My colleagues, in,effect, construe
this as abill of rights freeing- supervisors from, any
workers during the , stnke, we would have a different situation.
13 Wisconsin Electric Power Co., 192 NLRB No. 16, incorporated' by
reference in the majority-opinion herein.
14 Labor Management Relations Act of 1947, 61 Stat. 136,'29 U.S.C.
152 (3).
15 29 U.S.C. 164 (a).
is Ibid'
17 S. Rept.'105 on S. 1126, pp . 3-5, I Leg. Hist. 409-411 (1'947).`
IBEW, LOCAL 134 89
restraint or coercion by a labor organization, even
where the effect is not to deny their employer the
uncoerced performance of collective -bargaining or
grievance-adjustment functions.
This construction goes far beyond that intended by
Congress" as disclosed by the relevant legislative
history of the section : As first proposed in S. 1126, the
section prohibited a labor organization from interfer-
ing with, as well as restraining or coercing, an
employer in the selection of his bargaining representa-
tives . Senate Report 105 on S . 1126, stated
Section 8(b)(1): This proscribes unions and their
agents from interfering with, restraining , or coerc-
ing employers in, the selection of their representa-
tives for the purposes, of collective bargaining or
the settlement of grievances . Thus , a union or its
responsible .agents could not, without violating the
law, coerce an.employer into joining or resigning
from an employer association , which negotiates
labor contracts on behalf of its members; also, this
subsection would not permit a union to dictate
who shall represent an employer in the settlement
of employee grievances , or to compel the removal
of a personnel director or supervisor who has been
delegated the-function of settling grievances.18
This same refrain-the prohibition of forcing employ-
ers into or out of employer associations or of
compelling them to ,remove or discharge supervisors
or personnel directors who engage in the settlement of
grievances-is repeated in the remarks of .Senator
Taft and , other Senators during floor debate on the
bill.19 Although no Senator addressed himself to the
preciseuquestion -presented in this and the other cases
cited by the majority, namely, the conditions under
which coercion of the representative becomes or
constitutes; coercion of the employer in the selection
of the representative, I believe the legislative history
demonstrates that unless the union-imposed restraint
on a supervisor is imposed because of his discharge of
duties involved in the performance of the statutorily
described functions or in the discharge ' of duties
closely related thereto, the restraint or coercion is not
proscribed by the section . At most, restraint imposed
on the supervisor because of his performance of other
functions constitutes an interference with the employ-
er's selection of representatives for the performance of
collective-bargaining or the adjustment of grievances
functions assigned to such representatives , as indeed
the majority opinion finally concludes with respect to
the fines in this case . However, the words "interfere
with" were eliminated from the section by an
amendment offered by Senator Ives because of their
far-reaching impact 20 I cannot agree to the reinser-
tion of those words by decisional interpretation.
In summaAy, because the fines involved herein were
not imposed upon the supervisors because of the
manner in which they performed duties related to
their collective-bargaining or grievance-adjustment
functions, but were imposed because of their violation
of an unrelated union rule proscribing members of the
union from performing struck work during a strike, I
find that the supervisors were not restrained or
coerced in the performance of the statutorily protect-
ed functions. It follows that the Employer was not
restrained or coerced in the selection of representa-
tives to perform such functions. Accordingly I would
dismiss the complaint.
is At p. 21, I Leg. Hist. 427 (1947).
19 93 Cong. Rec. 3953 (II Leg. Hist. 1012), 93 Cong. Rec. 4266 (II Leg.
Hist. 1077), 93 Cong.- Rec. 5106 (II Leg. Hist. 1454).
20 93 Cong. Rec. 4398 (II Leg. Mist. 1138-39).
APPENDIX
NOTICE To MEMBERS
NATIONAL LABOR RELATIONS BOARD
POSTED BY ORDER OF THE
An Agency of the United. States Government
WE WILL NOT - fine or otherwise discipline
supervisory employees of Illinois Bell Telephone
Company (such as, for example, P.B.X. installa-
tion foremen) for engaging in productive work
during a strike or for participating in any organiza-
tion designed to counsel and protect such supervi-
sors in the event they work during a strike.
WE WILL NOT in any like or related manner
restrain or coerce Illinois Bell Telephone Compa-
ny in the selection of its representatives for the
purposes of collective bargaining or the adjust-
ment of grievances.
WE WILL rescind, and expunge from our
records, the fines levied against supervisory
employees for working during the 1968 strike or
for having formed the Bell Supervisors Protective
Association.
WE WILL refund to the Illinois Bell Telephone
Company the sums it has paid pursuant to the
fines we levied against supervisors in connection
with the 1968 strike.
WE WILL advise in writing each of the supervi-
sors filled in connection with the 1968 strike that
his fine has been rescinded and expunged, and-that
we will reimburse each the sums paid pursuant to
those fines.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LocAL 134,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL. WORKERS,
AFL-CIO '
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted, for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with, its provisions 'may be directed to,, the Board's
Office, Room 881, Everett McKinley Dirksen Senate
Building, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 312-353-7575.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL , Trial Examiner : This proceeding,
heard at Chicago , Illinois, from March 31 through April 3,
1970,_ pursuant ` to a charge filed June 10, 1969, and a
complaint issued December 31, 1969, arises out of certain
fines levied by the Respondent Local and confirmed by the
parent, Respondent International, ' upon certain of their
members for either (a) continuing to perform work for their
Employer during the course of `the Local Union 's strike
against that Employer or (b) forming and.becoming officers
in an association (the Charging Party herein), the purpose
of which was to furnish assistance and counsel to foremen
who worked during the strike. The primary issue in the case
is whether the imposition of these fines violated Section
8(b)(IXB) of the Act, in view of the fact that in each
instance the person fined was employed in what is allegedly
a supervisory capacity , and allegedly represented his
Employer in the adjustment of grievances . Respondents,
uding documents submitted after the hearing, which are hereby
.L= as G.C. Exhs . 22, 23 , and 24, and Local 134s Exhs. 14A through
I and 1SA and B, respectively.
denying that the persons fined were supervisors or that they
adjusted grievances, further contend that in any event,
under the circumstances of this case , the-fines did not as a
matter of law involve the Respondents in ' violation , of
Section 8(bxl)(B).
Upon the entire record,1 and after due consideration of
the briefs filed by General Counsel - and 'each of the
Respondents, and of the "Statement" filedon behalf of the
Charging Party,2 I make the following: ' `
FINDINGS OF FACT
1. TILE BUSINESS OF THE EMPLOYER, AND THE LABOR
ORGANIZATIONS INVOLVED
Illinois Bell Telephone Company, herein called the
Company, an Illinois corporation with headquarters in
Chicago, renders local and long distance telephone service
as part of a nationwide telephone , system, and is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Respondent Local 134,
International Brotherhood of Electrical Workers,
AFL-CIO, herein called the Local or the Union, and its
parent organization , the Respondent . International, are
labor organizations within the meaning of Section_ 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Chronology
For many, years, long antedating any Federal labor
legislation, the Company (or its predecessor) and the Local
have had-contractual relations, pursuant to which the Local
represented the Company's Chicago employees for purposes
of collective bargaining . The bargaining unit ' embraced
employees in the "Plant Department ," and, included, inter
alia, not only journeymen and apprentices engaged, as
P.B.X. installers but also persons employed, as "P.B.X.
Installation Foremen," "Building Cable Foremen," "Test
Center Foremen," and "General Foremen ." The powers
and duties of these "foremen" and the question whether
they are "supervisors" within the meaning of the Act are
among the litigated issues in this case . The contract
provides that all members of the bargaining unit must
become and remain members of the Local. As recently as
1959 the contracts in effect between the Local and the
Company prescribed monthly wage rates for the various
"foremen" listed above . Since May 1959 the contracts, did
not provide wage rates for those foremen , but did contain a
section headed "Working Conditions for General Foremen
and Foremen ." This provision concerned payment for
overtime work and for certain absences, and contained a
clause stating that an appointment as general foreman
could not be made for a period of less than 5 days. Other
provisions of the contract , such as, for example, that
dealing with vacations, appear applicable to the foremen as
well as to journeymen employees, -
Between May 8, 1968 , and September 20, 1968, the Local
2 Respondents' motion to strike a phrase from Charging Party's
Statement as "scandalous and/or impertinent" is granted as Charging
Party consented thereto.
IBEW, LOCAL 134 91
was engaged in an economic strike against the Employer.
At the inception of the strike the Company informed the
foremen referred to above that the Company would like to
have them come to work, but that the decision whether to
work or to respect - the strike was a matter left to the
discretion of each individual foreman , and, that those who
refrained from working during the strike could resume
work when it ended without being penalized . The- Local
held a meeting just before the-strike at which the foremen
were advised that they would be subject to union discipline
if they performed - rank-and-file work during the strike. A
number of foremen thereupon retained counsel and formed
an association (the Charging Party, hereinafter referred to
as the Association) to protect - foremen who worked during
the strike.
During the course of the strike some of the foremen
performed rank-and-file work, and some stayed out of
work . After the strike the Company in no way discriminat-
ed against the latter group ; and indeed promoted some of
them to higher positions. The Local,conducted proceedings
against a number of foremen ;and imposed fines of $500 on
foremen who performed rank-and-file work during the
strike and of $1000 each against -the five foremen who were
instrumental in forming the Association . Most of the fined
foremen appealed to the International , which in most
instances sustained, the action of the Local . During the
intraunion proceedings, counsel for the Association
assisted, the foremen in their defense, in which the accused
foremen urged that they were supervisors, that the strike
was not in their behalf , that the Local was not ;seeking to
bargain for them, and that the union security clause which
compelled their membership in the Local was illegal.,
The Local has commenced suit in the Illinois courts to
collect some-of the fines ,-Insofar as any of the foremen have
paid any part of the fines , the Company has reimbursed
them,
B. The Status of the Foremen as "Supervisors" Within
the Meaning of the Act, and Their Powers With Respect
to the Adjustment of Grievances
As noted above , most of the foremen involved in this case
were employed as P.B .X. installation foremen , or in work of
similar character such as building cable foremen , or general
foremen. The record establishes that such foremen were in
charge of crews of from 8 to 12 men, that they had power to
grant time off to their men, that they scheduled overtime,
selected the men who would work overtime , disciplined for
tardiness by suspending men or docking their pay, and
effectively recommended men for promotion or discharge.
Although the Union argues that the testimony establishing
these powers was of a -vague and general nature, it called no
witnesses , to deny that the -foremen possessed the powers
which - the company representatives , called as General
Counsel's witnesses,. ascribed- to them.3 On this record I
find that the foremen in question possessed one or more of
the powers set forth in Section 2(11) "of' the Act and are
supervisors within the meaning of the Act . See, e.g.,
S General Counsel expressed a readiness to interrogate , individual
foremen as to their powers and duties . The Trial Examiner prevented him
from doing so on the ground that such testimony would be cumulative, but
expressly invited counsel for the Local to cross-examine such foremen on
NLRB. v. Henry Colder Co., 416 F.2d 750, 754, fn. 3 (C.A.
7,1969).
As to the, authority of these foremen to adjust grievances,
the contract recites with respect to the grievance procedure
that "The employee or his Steward shall first bring the
grievance to his Foreman , or other first line supervisor,"
and that "If the grievance is not settled , it shall then be
taken up with the succeeding appropriate levels of
supervision .... " The contract thus unequivocally
provides that the foremen here in question may adjust
grievances . Moreover, the testimony adduced by General
Counsel establishes that the foremen may-adjust grievances
arising out of disputes over whether an employee should-be
paid for certain hours he worked after checking out, or over
working conditions (such as excessively cold air-condition-
ing), or over disciplinary , action taken by the foreman, or
over overtime allocations he had made . Indeed, the
testimony shows that most of the - grievances are adjusted
informally by the foremen , either by their making the
requested adjustment or by their persuading, the 'union
representative that the grievance lacks - merit .' Manifestly,
these matters are usually of minor importance, and major
issues go on to later stages of the grievance procedure.
Nevertheless, I am satisfied on this record that the foremen
in question do' have power to adjust, and do adjust,
grievances. Again the Union's suggestion that the testimony
is vague and general is 'unavailing in the light of the
contractual language and -the Union's failure to' adduce
testimony which would diminish the force of the evidence
presented by General Counsel. -
The foregoing discussion of the powers and duties of the
foremen is applicable to all those named in the complaint as-
having ' been fined except for three men identified in the
complaint as "assistant staff supervisor," -andtwo identified
as "engineer." The record establishes that an "engineer"
has no supervisory'-authority and that an "assistant staff
supervisor" has no " occasion to participate in 'the adjust-
ment of grievances , and normally has no people working
for him . The record further establishes that it is a common
practice for the Company to transfer a man from - a job, as
P.B.X.-foreman to that of engineer andback again , and that
"assistant staff supervisors" are selected from the ranks of
P.B.X. foremen, serve I or 2 years as assistant staff
supervisors , and then - either return to their jobs as -P.B.X.
foremen or are promoted to district installation- superin-
tendents (a• supervisory position - with power to adjust
grievances). -
C. Board Decisions Concerning a Union's Power To
Fine Supervisory Employees.
A series of recent Board decisions, several of which are
now awaiting judicial review, - hold that under --the
circumstances-there presented a labor organization -violates
Section 8(bX1XB) of the Act (i.e., restrains or coerces an
employer in the selection of his representatives for the
purposes , of collective bargaining or the adjustment of
grievances) when it fines supervisory , employees who are
that issue„ and also to put on testimony on that issue as. part of
Respondents case. No such cross-examination was attempted and the
Local adduced no testimony on this issue as part of its case.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union members. Insofar as Respondents attack the validity
of any or all of these holdings, I must, of course, refer them
to' higher authority, administrative and judicial, as I am
required, to'follow these precedents in the present state of
the law. Insofar as Respondents urge that the instant case is
distinguishable, however, it becomes important to set forth,
as I 'understand it,.what the Board has, heretofore held
this area,
The lead case- apparently is San , Francisco-Oakland,
Mailers' Union No., 18, , international Typographical Union
(Northwest Publications, Inc.),, 172 NLRB No. 252. In, that
case the union fined certain foremen-members4 because of
alleged violations of the contract between the employer and
the union. The union also threatened similar action against
foremen as, a result of "disagreements. involving contract
interpretations or grievance adjustment" ,,The Board's
finding of, violation in that case sheds,iittle light on the
problem. here,- for in- that case , the conduct for which.the
foremen were fined was directly related to'their'role,asthe
employer's.,representative in the adjustment of grievances
and in collective, bargaining (which )ncludes, 'of course,, the
administration of the contract; see Conley v., Gibson, 355
U.S.41,,46).5
The next case in this area to come .before the-,Board was
Toledo Locals Nos. 15-P and 272, of ,the Lithographers and
Photoengravers International Union, AFL-CIO (The, Toledo'
Blade Company, Inc.), 175 NLRB,No. 173.Jn that,case, as
here, thee foremen involved were requiredto'bemembers of
the union which fined them. The -fines, in. that case were
imposed for alleged violations of .the contract, in that the
supervisors worked on production during-a-strike, thereby
violating two, contractual, provisions, one limiting the
amount,of production a supervisor can, do, and the other
prescribing a • minimum crew before any work- can be
performed.- 'he Board in that case held that,the union by
imposing, the fines violated Section 8(b)(1)(B): The-,case
may be distinguishable "from that now before us, for
although in'bpth cases ,the supervisors worked while their
union was out on strike,, the basis of.the Board's.holding,$upervisors
Protective Association, Respondent Local engaged in an
unfair labor practice affecting commerce, Within the
meaning of Sections 8(bxl)(B) and 2(6) and (7) of the Act.
4. Respondent International, insofar as ., it, acting
through any of its officers , sustained the fines described-in
the preceding conclusion , of law, engaged.in the same wifair
labor practice. - "
THE REMEDY
I shall recommend that Respondents cease and desist
from their unlawful conduct,, and that they make the
unlawfully fined supervisors whole by rescinding the fines,
expunging all records thereof, and refunding to the
Company (which has already reimbursed the supervisors)
the amount of the fines they have paid. The monetary
liability for refunding the fines shall fall in the first instance
on the Local, with secondary liability on the International.
I shall further recommend the posting of a notice signed by
officers of both Respondents.
Accordingly, upon the foregoing findings and conclu-
sions, and upon the entire record in the case, I recommend,
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER8
Respondents International Brotherhood of Electrical
Workers, AFL-CIO, and its affiliated Local 134, and their
respective officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Fining supervisory employees of the Illinois Bell
Telephone Company, whose duties include representing
that Company in collective bargaining or in the adjustment
of grievances, for engaging in productive work during the
course of a strike or for activities directly related thereto
such as forming or participating in an organization
designed to protect supervisors who work during a strike.
(b) In any like or related manner restraining or coercing
the aforesaid Employer in the selection of his representa-
tives for the purposes of collective bargaining or the
adjustment of grievances.
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-2.° Take `the following affirmative action necessary to-
effectuate the policies of the Act:
(a) Rescind, and expunge all records of, the fines levied
against supervisory employees for having engaged in
productive work during the 1968 strike or for having
ssoc>ation.
i*burse the-,Illinois Bell Telephone Company for
anty'acid altsumpaid by,it pursuant to the fines referred to,
in the preceding paragraph, and advise in writing,each
employeeagainst whom such fines were levied that the fines
have beenl'rescinded,, that the records, thereof have, been
expunged, and that the Company has been, reimbursed;
provided: that : the -action required in this subparagraph
shall be : primarily required of _the Respondent Local, and
shall, be}required of,Respondent International only to the,
extent that Respondent Local shall fail to give the written
notices and pay.the sums herein required.
(c) Post at its business offices, meeting halls, and; all, other
places where notices to members of the, Local are
In the evert that the Board's Order is enforced by a Judgment of a
fruited States Court of Appeals, the words in the notice-readmg-"POSTE'D
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read 4'POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
}Mated in, the formation of the "Bell, Supervisors
customarily .posted, " copies of the attached notice marked
"Appendix." s Copies of said notice, on forms provided by
the Regional Director for Region 13, shall ; after being duly
signed , by , representatives-of the Respondents , be posted by
the Respondents-immediately upon receipt thereof, and be
maintained by them fora period of 60 consecutive days
thereafter." Reasonable" steps shall be' taken by the
Respondents to insure ' that said notices are not ` altered,
defaced, or covered by any other'material.
v (d), Furnish the Regional ' Director for-Region 13 , signed
copies of' said notice for posting by Illinois BellTelephone
Company, if,willing, in places where notices to, employees
are customarily, posted. ^ Copies of said notices , on forms
provided by the Regional Director,," shall, after being signed
by -the. Respondents,, be forthwith ,retumed to . the Regional
Director for disposition by him. .
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date `of the receipt of this
Decision and Recommended Order , what steps they have
taken to comply herewithao
ORDER OF THE NATIONALLLABOR RELATIONS'BOARD."
xo In the event that thisRecommended Order is adopted by .the Board,
this , provision shall be modified to read : "Notify said Regional Director, m
writing, within tO days from t̀he `date of`this'Order , what steps Respondent
has taken to'comply herewith."