International Union, United Automobile Workers

National Labor Relations Board - Board Decisions

Apr 10, 1975

217 N.L.R.B. 320 (N.L.R.B. 1975)

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union, United Automobile , Aerospace
and Agricultural Implement Workers of America
(Pitt Processing Co.) and Gary Cooper. Case
6-CB-2583
April 10, 1975
SUPPLEMENTAL DECISION AND AMENDED
ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On January 28, 1974, the National Labor Relations
Board issued its Decision and Order' in the above-
entitled proceeding, finding that the Respondent, Inter-
national Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (herein
UAW), had violated Section 8(b)(1)(A), 8(b)(1)(B),
and 8(b)(2) of the National Labor Relations Act, as
amended. Subsequently, on June 24, 1974, the United
States Supreme Court handed. down its decision in
Florida Power and Light Co. v. International Brother-
hood of Electrical Workers, Local 641, 417 U.S. 790
(1974).
In the initial decision in the instant case the Board
found that the Union had violated Section 8(b)(1)(A),
8(b)(1)(B), and 8(b)(2), when it penalized a former
supervisor, who had returned to rank-and-file em-
ployee status, by causing him to be placed at the bottom
of the seniority list and laid off, through strike threats,
because while a supervisor he had crossed the union
picket line and worked during a strike. As it appeared
that the stated rationale for the Board's finding of a
violation of Section 8(b)(1)(B) in this case was rejected
by the Supreme Court in Florida Power, the Board
requested the United States Court of Appeals for the
District of Columbia Circuit, where the case was pend-
ing upon a petition for review, to remand the case to
the Board for reconsideration in light of the Supreme
Court's decision in Florida Power.
Thereafter, the court of appeals having remanded the
case to the Board for reconsideration, on November 15,
1974, the Board notified the parties of the court's re-
mand and requested statements of position from them.
Such statements have been filed by the Respondent and
the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
For reasons more fully explicated hereinbelow, we
conclude that the Supreme Court's decision in Florida
Power and Light Co. requires that the 8(b)(1)(B) allega-
tion in this case be dismissed.'
1 208 NLRB 736
As found by the Board in the prior case, Gary
Cooper was employed by the Company as a laborer
since 1967. He was promoted to afternoon shift fore-
man during the first week of September 1972 in charge
of the zinc ammonium chloride (ZAC) and stannate
departments. He was the only supervisor present dur-
ing that shift and performed no regular production
work. About the middle of September, while Cooper
was such supervisor, the Union called the employees
out on a presumably organizational or recognitional
strike. During the September strike, Cooper as a super-
visor was requested by the Company to remain on the
job to help bed down the plant for shutdown. Cooper
did so and, in order to do so, crossed the union picket
line.
At the end of September or beginning of October
1972, the employees returned to work, including those
under Cooper's supervision. On December 18, 1972,
they were permanently laid off. Cooper was not laid off,
but thereafter worked on the day shift in closing down
the ZAC department and assisted a maintenance man
in building a new piece of equipment. Cooper retained
his foreman title and salary. About December 21, the
plant superintendent told Cooper that he.would be laid
off within 2 weeks because there was no need for a
supervisor. Thus, from the date of the layoff of the
ZAC employees until the date that Cooper was laid off,
December 29, Cooper performed nonsupervisory unit
work which could have been performed by rank-and-
file unit employees. The Board therefore found that by
December 29 Cooper had ceased to be a supervisor and
became and employee, regardless of his title and salary,
because he no longer had any subordinates and was
performing nonsupervisory unit work. This change
from supervisory to nonsupervisory duties was perma-
nent.
Since the Supreme Court in Florida Power held that
a union did not violate Section 8(b)(1)(B) by disciplin-
ing supervisor-member for crossing lawful picket lines
to perform rank-and-file struck work, it would appear
that our earlier finding in the instant case was in error.
We interpret the Supreme Court's decision as bottomed
on a determination that the effect of the union's disci-
pline may reasonably produce an adverse impact on a
2 Member Penello, who did not participate in the initial case, 208 NLRB
736, while agreeing that Respondent did not violate Sec. 8(b)(1)(B) under
the facts of this case, does not, in so doing, find it necessary or appropriate
to rely on the-Supreme Court's Florida Powerdecision. In his view, Florida
Power is inapposite since in this case Cooper, the affected individual, while
at one time a supervisor, was a rank-and--ftleemployee during the period that
the Union caused the Employer to lay him off In contrast, in Florida Power,
the affected individuals were supervisors during the period that they were
disciplined by the union. Therefore, in finding no 8(b)(1)(B) violation in this
case, Member Penello would rely solely on the fact that Respondent's
actions could never properly have constituted a violation of Sec. 8(b)(1)(B)
since, during the relevant period, Cooper was a rank-and-file employee and
not a supervisor or otherwise an 8(b)(1)(B) representative.
217 NLRB No. 46
INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS
supervisor's performance of his 8 (b)(l)(B) representa-
tive duties for the employer.3
For, as the Supreme Court stated in Florida
Power,
The conclusion is thus inescapable that a union's
discipline of one of its members who is a supervi-
sory employee can constitute a violation of §
8(b)(l)(B) only when that discipline may adversely
affect the supervisor 's conduct in performing the
duties of, and acting in his capacity as, grievance
adjuster or collective bargainer on behalf of the
employer. [Emphasis supplied.]'
Since Cooper was an employee, and not a supervisor,
when the Union penalized him by denying him seni-
ority status and thereafter demanding and causing the
Employer to discharge him, such union action could
not have "adversely affect[ed]" his supervisor's activi-
ties as an 8(b)(1)(B) representative on behalf of the
Employer, for as an employer he had no such duties of
representative capacity. We therefore find that the Re-
spondent Union did not violate Section 8(b)(1)(B) by so
penalizing Cooper. We shall dismiss this allegation of
the complaint.
We affirm, however, our earlier findings of violations
of Section 8(b)(1)(A) and 8(b)(2). Although Cooper
had been in the Company's employ longer than other
employees, the Respondent insisted with the threat of
strike in late December that Cooper had no seniority in
the unit, and that he should be displaced by an em-
ployee with greater seniority. This despite the fact that
there was no contract provision governing seniority at
that time. Yielding to the Respondent's threat to strike
unless Cooper was replaced, the Company laid him off
on December 29 and has not recalled him since that
date. We affirm our earlier finding that in denying
Cooper seniority status as an employee and thereby
securing his displacement as an employee Respondent
was motivated by the fact that Cooper had worked
previously during the Union's September strike. Since
we have found that Cooper was laid off as an employee
because he did not participate in a strike-a discrimina-
tory reason-we affirm our conclusion that Respond-
ent thereby caused the Company to discriminate
against employee Cooper in violation of Section 8(a)(3),
thus violating Section 8(b)(2) and 8(b)(1)(A) of the
Act.'
3 See Hammond Publishers, Inc., 216 NLRB No. 149 (1975).
4 Supra, 417 U S 790, 804-805 (1974)
5 Local 282, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Lizza and Sons, Inc.), 165 NLRB 997
(1967), enfd . 412 F.2d 334 (CA. 2), cert. denied 396 U .S. 1038 (1969).
The Remedy
321
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order Respondent
to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent caused the Company
discriminatorily to reduce the seniority of employee
Gary Cooper thus causing his discharge on December
29, 1972, we shall order Respondent to notify Pitt
Processing Co. that it withdraws its request that
Cooper be placed at the bottom of the seniority list for
unit employees and that it has no objection to the rein-
statement of Cooper. We shall also order Respondent
to make Cooper whole for any loss of pay suffered as
the result of the discrimination against him by payment
to him of a sum of money equal to the amount he
normally would have earned as wages if he had not
been discriminatorily laid off.' Backpay, if any, shall
be computed on a quarterly basis in the manner de-
scribed in F W. Woolworth Company, 90 NLRB 289
(1950), and with interest thereon at 6'percent per an-
num computed in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
AMENDED CONCLUSIONS OF LAW
Substitute the following Conslusions of Law for
those in the Board's prior Decision and Order:
1. International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America,
is a labor organization within the meaning of Section
2(5) of the Act.
2. Pitt Processing Co. is an employer within the
meaning of Section 2(2) of the Act, engaged in com-
merce or in industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
3. On December 18, 1972, the Company perma-
nently laid off all the employees of the ZAC and stan-
nate departments except Supervisor Gary Cooper, who
thereafter and by December 29, 1972, ceased being a
supervisor and became a rank-and-file employee of the
Company within the meaning of Section 2(3) of the
Act.
4. By threatening to engage in a work stoppage on
December 29, 1972, unless the Company discharged or
laid off Gary Cooper, the Respondent did not coerce
and restrain the Company within the meaning of Sec-
tion 8(b)(1)(B) of the Act, since Gary Cooper on that
date and thereafter was not a supervisor of the Com-
pany within the meaning of Section 2(11) of the Act.
6 It is uncertain how long Cooper would have continued working if Re-
spondent had not insisted on his displacement. This period can be deter-
mined in compliance proceedings
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By threatening to engage in a work stoppage on
December 29, 1972, unless the Company discharged or
laid off Gary Cooper, the Respondent caused the Com-
pany to discriminate against Cooper as an employee of
the Company in violation of Section 8(a)(3), thereby
violating Section 8(b)(2) and' (1)(A) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
AMENDED ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent , International
Union, United Automobile; Aerospace and Agricul-
tural Implement Workers of America, Pittsburgh,
Pennsylvania , its officers , agents , and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause the Company to
discriminate against employee Gary Cooper in viola-
tion of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the
Act, as modified by the Labor Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Withdraw its request that Gary Cooper be placed
at the bottom of the seniority list for rank-and-file unit
employees.
(b) Notify Pitt Processing Co. that it has no objection
to the reemployment of Gary Cooper as an employee
performing bargaining unit work.
(c) Make whole Gary Cooper for any loss of pay
suffered as a result of the discrimination against him in
the manner set forth in the section of this Supplemental
Decision and Amended Order entitled "The Remedy."
(d) Post at its business office and meeting halls copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 6, after being, duly signed by Respon-
dent's authorized representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days
thereafter , in conspicuous places, including all places
I In the event that this Amended Order is enforced by a Judgment of a
United State Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
where notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Deliver to the Regional Director for Region 6
signed copies of said notice for posting by Pitt Process-
ing Co., provided the said Company is willing, at its
plant involved herein.
(f) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Amended
Order, what steps the Respondent has taken to comply
herewith.
IT IS FURTHUR ORDERED insofar as the complaint alleges
a violation of Section 8(b)(1)(B) of the Act, it shall be,
and it hereby is, dismissed.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found
after a trial that we violated Federal law, we hereby
notify our members and all employees employed by Pitt
Processing Co. that:
WE WILL NOT cause or attempt to cause Pitt
Processing Co. to discriminate against employee
Gary Cooper in violation of Section 8(a)(3) of the
Act.
WE WILL NOT in any like or related manner re-
strain or coerce employees of Pitt Processing Co.
in the exercise of their rights to self-organization,
to form , join, or assist unions , to bargain collec-
tively through representatives of their own choos-
ing, to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid
or protection, or to refrain from such activities,
except to the extent that such rights may be af-
fected by an agreement requiring union member-
ship as a condition of employment , as authorized
by Section 8(a)(3) of the Act.
WE WILL notify the above-named Company that
we have no objection to the reemployment of Gary
Cooper as an employee doing bargaining unit
work.
WE WILL make whole Gary Cooper for any loss
of earnings he may have suffered as a result of our
unlawful conduct which caused Pitt Processing
Co. to discharge or lay off Gary Cooper.
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA