Local Union No. 85

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 523 (N.L.R.B. 1984)

SHEET METAL WORKERS LOCAL 85 (SUBURBAN SHEET' METAL) 523
Local Union No 85, affiliated with the Sheet Metal
Workers International Association, AFL-CIO
(Suburban. Sheet Metal Co. Inc.) and Lee
McFarland, Jr. Case 10-CB-4305
14 December 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On ,13 August 1984 Administrative Law Judge
William N. Cates issued the attached decision. The
Respondent filed exceptions -and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three=
member panel.
The Board has considered the, decision and the
record in light bf the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Local Union No. 85, affiliated with the
Sheet Metal Workers International Association,
AFL-CIO, Atlanta, Georgia, its officers, agents,
and representatives, shall take the action set forth
in the Order as modified.
1. Insert the following as paragraph 1(a) and re-
letter the subsequent paragraph.
"(a) Restraining or coercing Suburban Sheet
Metal Co., Inc., in the selection and retention of its
representative for the purpose of collective bar-
gaining or the adjustment of, grievances by prefer-
ring charges, fining, suspending from- membership,
or attempting otherwise to cause the removal of
such representative from performing supervisory,
executive, or managerial functions for said employ-
er."
•2. Substitute the attached notice for that of the
administrative law judge.
The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law Judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We shall modify par 1(a) . of the recommended the order to conform
with the standard language used in cases of this sort
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An A'gency of the United States Government,
To all members of Local Union No. 85, affiliated
With the Sheet Metal Workers International Asso-
ciation, AFL-CIO.
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT restrain or coerce Suburban Sheet
Metal Co., Inc., in the selection and retention of its
representative for the purposes of collective bar-
gaining or the adjustment of grievances by prefer-
ring charges, fining, suspending from membership,
or attempting otherwise to cause the removal of
such representative from pert'orming supervisory,
executive, or managerial functions for said employ-
er.
WE WILL NOT engage in any like or related con-
duct constituting such restraint and coercion.
WE WILL rescind the fine - levied against Lee
McFarland Jr., and expunge from our records all
references to the charges against him and the impo-
sition of said fine.
WE WILL restore Lee McFarland Jr., upon his
tendering regular membership dues, to a member in
good standing with all attendant rights as neces-
sary.
WE WILL notify Lee McFarland Jr., in writing,
that the fine -has been rescinded, that all records of
the charge and fine have been expunged, and that
he will be restored to a member in good standing
with all attendant rights as necessary.
LOCAL UNION No. 85, AFFILIATED
WITH THE SHEET - METAL WORKERS
INTERNATIONAL ASSOCIATION, AFL-
CIO
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This
case was tried before me on June 5, 1984'. The original
charge in the instant case was filed on March 23, 1984,
by Lee McFarland Jr.; an individual (McFarland).
Thereafter, on April 18, -1984, .McFarland amended the
charge he filed against Local Union No 85, affiliated
with the Sheet Metal Workers International Association,
AFL-CIO (Respondent), and a complaint and an amend-
ed complaint issued on May 1 and May 8, 1984, respec-
tively, by the General Counsel of the National Labor
Relations Board (Board) alleging violations of the Na-
273 NLRB No. 82
524 DECISIONS OF NATIONAL LABOR • RELATIONS BOARD
tonal Labor Relations Act (the Act). In substance, the
amended complaint alleges that Respondent, by disciplin-
ing McFarland, an alleged supervisor employed by Sub-
urban Sheet Metal Co., Inc. (Suburban) has restrained
and coerced and is restraining and coercing Suburban, an
employer, in the selection of its representatives for the
purposes of collective bargaining or- the adjustment of
grievances in violation of Section 8(b)(1)(B) of the Act.
Respondent's answer denies the commission of the unfair
labor practices. •
On the entire record, including my observation of the
demeanor of the witnesses and after due consideration of
briefs filed by the General Counsel and counsel for Re-
spondent, I make the following
FINDINGS OF FACT -
I. THE BUSINESS OF THE EMPLOYER INVOLVED
Suburban, a Georgia corporation, with an office and
place of business located at Austell, Georgia, is engaged
in the fabrication and installation of sheet metal pipes
and duct work. During the 12 months preceding the issu-
ance of the complaint herein, Suburban purchased and
received at its Georgia place of business goods valued in
excess of $50,000 from suppliers located in the State of
Georgia, who in turn purchased the goods and supplies
directly from manufacturers outside the State of Georgia.
The amended complaint alleges, Respondent admits, and
I find that Suburban is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that Respondent is now, and at . all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
This case presents certain issues which have been thor-
oughly litigated. The issues generally summarized are as
follows:
1. Whether at all times material herein McFarland was
a supervisor within the meaning of Section 2(11) of the
Act and an employer representative within the meaning
of Section 8(b)(1)(B) of the Act.
2. Whether Respondent restrained and coerced Subur-
ban in the selection of its supervisor and employer repre-
sentative by requiring McFarland to plead on charges
filed against him by an agent of Respondent and by
fining McFarland and suspending him from membership
in Respondent because he performed supervisory- duties
for a nonsignatory employer.
3. Whether Respondent's lack of knowledge of McFar-
land's supervisory status constitutes a lawful defense to
its actions.
B. Chronology of Events.-
The following 'facts are either established beyOhd ques-
tion, admitted, undisputed, or not contradicted. McFar-
land commenced work for Suburban as a field foreman
in approximately mid-July_ 1983. 1 He worked at various
jobsites in Georgia where Suburban was the subcontrac-
tor installing sheet metal pipes and duct work. Suburban
employs roughly 80 employees. Prior to McFarland's
suspension from membership in Respondent, he had been
a member of Respondent for approximately '9 years.
On September 14, 1983, McFarland telephoned Re-
spondent regarding the employment situation in the local
area. 2 McFarland spoke with Respondent Business
Agent Mike Cannon. Cannon asked McFarland if he was
making a lot of money for himself and for Suburban.
Cannon told McFarland he was in a position to help Re-
spondent and stated, "[T]he [Respondent] was going to
try and organize Suburban Sheet Metal again, and
asked . . . if [he] could help." McFarland told Cannon
he could not help Respondent because he felt an obliga-
tion to the president of Suburban. McFarland then asked
Cannon - if Respondent was going to bring charges
against him. Cannon told McFarland he did not know
but that Business Representative Hankins had observed
him working for Suburban on September 7, 1983.3
, In a letter dated September 21, 1983, Business Repre-
sentative Hankins notified McFarland that he was
charged with violating certain provisions of the constitu-
tion and ritual of Respondent Hankins' .letter to McFar-
land stated:
You are hereby charged by the undersigned with
violation of the Constitution and Ritual of the Sheet
Metal Workers International Association, Article
17, Section 1(b) 1(e) and 1(m) which states as fol-
lows.
Article 17, Section 1(b)
• Refusal or failure to perform any duty or Obli-
gation imposed by this Constitution the policies
of this Association, the valid decision of any offi-
cer or officers- thereof or the valid decision of the
General Executive Counsel or Convention or the
valid rules and regulations of any local union or
counsel. -
Article 17, Section 1(e)
Violating the established union collective bar-
gaining agreements and rules and regulations of
' McFarland's authority and duties are discussed elsewhere in this de-
cision inasmuch as an issue exists regarding whether he, at material times
herein, was a supervisor within the meaning of Sec 2(11) of the Act
2 It appears Respondent had been unsuccessful in obtaining employ-
ment for 'McFarland It likewise appears that McFarland had ceased
working as a field foreman for one area contractor, Metro Sheet Metal,
after being told by Respondent Business Representative Ronnie Hankins
that he could not work for Metro because Metro was a nonunion con-
tractor and that if he continued to work for the nonunion contractor he
would press charges against him
3 It is admitted that at all times material herein Cannon and Hankins
were agents of Respondent within the meaning of the Act
SHEET 'METAL WORKERS LOCAL 85 (SUBURBAN 'SHEET METAL)
525
any local union relating to'rates of pay, rules and
working conditiOns. "
Article 17, Section .1(m),
Engaging in any conduct which is detrimental
to - the best- interests of this Association, or_ any
subordinate unit thereof or which will bring said
unions into disrepute.
, I. observed yo,u, working on the second, floor 'at
Perimeter 400 on Wednesday, the 7th of September,
1983. The contractor doing the duct work on this
project is Suburban Sheet Metal, a nonsignatory
contractor with Sheet Metal Workers International
Association and Local 85 [G C. Exh. 2]
'McFarland was nOtified in writing on-or about No-
vember 2; 1983, that a trial'on the charges against him
would be held on December 6, 1983 (G.C. ,Exh., 3). 'A
trial on the diaries Was held as 'scheduled. Respondent
trial cOmmittee found 'McFarland guilty - and, levied a
$7500 fine against hini. Thereafter; Respondent's Mem-
bership approved the trial committee' g 'findings, and on
December 30, 1983, McFarland -was so 'notified in' writ-
ing (G.0 Exh. 4): McFarland has never -. paid the fine
levied against him. On or about April 4--1984, McFar-
land was notified in writing that he had been 'suspended
from membership in' Respondent TofnOnpayment of dues
(G.C. Exh. 5). 4 -
Respondent did not at any time notify 'Subtirban of the
charges involving McFarland. Respondent never at any
time took any 'action against Suburban in .siipPoOrt of its
charges or actions against McFarland There nO Col-
lective-bar:gaining relationship between Resriondent -and
Suburban. ' , • -
C. McFarland Superi,igory Status
1. The facts
Regiondent called no witnesses of its own :on the issue
of McFarland's supervisory 'status. All evidenée . in the
record relating to the supervisory status of-McFarland is
contained in the testimony 'given by Suburban President
James Harris and McFarland. Respondent contends no
credence should be given' to McFarland's -testimony on
the supervisOry' issue because he has a pecuniary interest
in whether or not he is found to be a statutory supervi-
sor. Respondent also' contends MCFarland and'- Harris
gave incOnsistent testimony regarding McFarland's au-
thority and duties: While there were some inconsistenbies
in their testimony, my findings and -conclusions I on the
supervisory issue' viould be the 'same if. Fconsidered
either Harris' or McFarland's testimony standing alone.
Therefore, I find it unnecessary to . 'dwell on any incon-
sistencies that may exist between their testimony regard:
ing McFarland's supervisory authority.-Eshall, however,
consider McFarland's testimony with respect to -his an-
thority and duties because I am persuaded his testimony
4 'Respondent's constitution and ritual precludes the receipt of member-
ship dues' from any 'member' until all fines owed to Resn'ondent by ' that
member are paid in full (R Exh 1)
was based on more firsthand knowledge of what his
exact authority and duties were than was Harris'.6
'McFarland stated he was responsible for seeing that
the sheet metal work on any particular project that Sub-
urban was working on was installed correctly and in a
s'ale manner. In accomplishing that task McFarland
stated he assigned employees to whatever work he felt
needed to be done at the time. McFarland stated he
served as Suburban's liaison with the general contractor
on any project he was on and that he also served as Su-
burban's liaison with other subcontractors at the various
projects he Worked on.
McFarland testified he' hired employee William Ervin. .
to work for Suhurbaii. McFarland stated he did not con-
sult with anyone in ' management at Suburban prior to
hiring Ervin. 6 McFarland testified he hired Ervin be-
Cause he was increasing the size of his work crew.
McFarland testified he discharged employees Jerry
McDaniels and Herman Dean. McFarland stated he had
difficulty with McDaniels because he came to work late
and on certain occasions did not show up for work at all.
McFarland stated • he diseussed McDaniels' attendance
problems with Superintendent Mallory and Mallory told
him to cOunsel McDaniels and then use his own judg-
inent on , whether to 'fire him or not. According to
McFarland, McDaniels' attendance did not improve and
he discharged him. McFarland testified he terminated
employee Dean because of Dean's inability to perform
sheet metal work McFarland stated he did not speak
with anyone in management at Suburban about Dean
before he terminated him.
McFarland testified he recommended that employees
Kevin Jones and Bill Barnett be given pay raises. Both
thereafter were granted wage increases. McFarland testi-
fied he granted time off to employees Dennis Barnett
and Kevin Jones without consulting with anyone.
McFarland testified he performs no hands-on work and
that he is paid a higher, wage rate than the rank-and-file
employees who work with' him.
2 Analysis and conclusion
Section 2(11) of the Act reads as follows:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspad; lay Off, recall, promote, discharge,
assign, reward, or discipline other employees, or re-
s'pongibly to direct them, or to adjust their griev-
ances, or effectively to recommend such action, if in
conneCtiön with the foregoing the exercise of such
authority 'is 'not Of • a merely routine or clerical
nature, but requires the use of independent judg-
ment : -
5 McFarland 'testified in a straightforward and detailed manner and he
responded to questions in a sincere and believable manner without hesita-
tion I credit McFarland's testimony as it relates to his authority and Job
duties '
6 McFarland testified that Superintendent Mallory gave him W-2
-forms to keep in his toolbox and told him, "if you hire someone, have
them fill out these W-2 forms and notify us as soon as possible"
526 DECISIONS OF NATIONAL LABOR RELATIONS ,BOARD
It is clear from the statute as well as case-law-that pos-
session of any one of the powers enumerated is sufficient
to confer supervisory status. See, e.g., NLRB v. ,Edward
G. Budd Mfg. Co., 169 F.2d 571 at 576 (6th- Cir. 1948),
cert. denied sub nom. Foremans Assn. v. Edward G. Budd
Mfg. Co., 355 U S. 908 (1949). , Also actual existence of
supervisory- authority rather than its exercise is determi-
native. See, e.g., Eastern Greyhound Lines v. NLRB, 337
F.2d 84- at 88 (6th Cir. 1964).
In the instant case it is clear from the facts outlined
above that McFarland had and exercised a nimber Of thez
powers set forth in Section 2(10' of the Act. lt. is not
necessary to repeat the facts relating- to all the powers
exercised by McFarland; however, (I specifiCally , nOte
that he had and eiercised, with independent judgnient the
authority to hire and discharge employees Accordingly,
I find McFarland was a 'Section 2(11) .supeivisor at all
times material to the instant case.
D. McFarland's Status as an Employer Representative
Within the Purview of Seetion-8(b)(1)(B).of the Act
It is an established Board principle commonly referred
to . as the "reservoir, doctrine7, that .all persons who are
found to be supervisors within the _meaning of Section
2(11) of the Act are also employer representatives within
the intent of Section 8(b)(1)(B) of. the Act. See, -e.g.,
Sheet Metal Workers Local 141 (Glen way Investments), 270
NLRB 1350 (1984), and Teamsters Local 296 (Northwest -
Publications), 263 NLRB 778, 779 fn. 6 (1982). .•
In the instant case it is not necessary to rely solely on
the reservoir doctrine referred to above inasmuch as the
record provides an evidentiary basis for finding McFar-
land to be an employer representative for the adjustment
of grievances. Both McFarland arid Harps testified
McFarland was authorized to resolve 'employee disputes
or proble s.-
Accordingly, I find that McFarland, at all times mate-
rial herein, was a representative of Suburban within the
meaning of Section 8(b)(1)(B) of the Act. ;
E. The Alleged Unlawful Restraint and Coercion
In agreement with the General Counsel, I find Re-
spondent restrained and coerced Suburban in the Selec-
tion and retention of its representative for the purposes
of collective bargaining and the adjustment of grievances
in violation of Section 8(b)(1)(B) of the Act 7 Respond-
ent required McFarland to plead on charges, imposed a
fine on him, and susfiended his Membership in Respond-
ent because he worked as a statutory supervisor for an
employer which did not have a contract with Respond-
ent. 8 McFarland only performed customary, supervisory
7 Sec 8(b)(1)(8) states "It shall be an unfair labor practice for,a labor
organization or its agents to restrain or coerce . . an emilloyer in the
selection of his representatives for the purposes of collective bargaining
or the adjustment of grievances"
8 It is recognized that McFarland's membership in Respondent was ac-
tually suspended because of a failure to pay dues, however, Respondent
would not accept McFarland's dues because he had not paid the fine
levied against him I consider the suspension to be an inseparable part of
the action Respondent 'took against McFarland because he worked as a
statutory supervisor for Suburban
duties for Suburban. Therefore, for -McFarland ,to have
honored Respondent's request_ not 'to work for , a honsig-
natory contractor he would have had to quit his job with
Suburban-and in doing so Suburban would have been de-
prived of the services of its selected representative for
the purposes of collective bargaining or the adjustment
of grievances. It is clear and I find that the , actions of
Respondent-violated Section 8(b)(1)(B) of the Act. Elec-
trical Workers IBEW Local , 73 (Chewelah_ Contractors),
231 NLRB '809 (1977), enf. denied 621 F,2d 1035 (9th
Cir. 1980).9 ."
- •
Lai* of KnOwled ge-bij Respondent of
McFarland's Supervisory Status
- -I have considered and reject . Respondent's contention
that " its lack ,of knowledge of :McFarland's supervisory
status serves as, defense to any unfair_ labor practice
finding -in the instant case There _is nothing in the :lan-
guage of Section 8(b)(1)(B) of.the Act That - suggests
scienter, , is an_ element of that unfair labor practice. Car-
penters. Wisconsin River. Valley Council„(Skippy Enter-
prises), 211 NLRB 222 at 227 (1974), As noted by- Ad-
ministrative Law Judge Leff. with Board :approval in
Carpenters Wisconsin River , Valley , Council, supra, a re-
spondent's good faith is not involved because the test of
restraint and coercion under Section 8(b)(1)(B) of the
Act does not- turn on a union motivemotive but on whether
the conduct engaged in reasonably tends to restrain or
coerce employers within the meaning. of that , Section- of
the Act. - , .
Accordingly, on_ all of the evidence and for the rea-
sons I have stated, I conclude and find Respondent en-,
gaged in . unfair labor practices within the, meaning of
Section 8(b)(1)(3)` of the Act when it - required McFar-
land to plead on charges, fined him $7500, and suspended
him from membership in the Respondent.
CONCLUSIONS, OF LAW
1. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
- 2. Suburban is , . an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
,3. -McFarland is, and has been . at all times material
herein, a supervisor within the meaning of Section 2(11)
of the Act selected by Suburban for the purpose, among
others, of the adjustment of gneyances within the_mean-
ing of Section 8(b)(1)(B) of the„Act.
4. By requiring McFarland to plead on , charges, fining
him.$7, 500,,and suspending him from membership in Re:-
spondent :Respondent .restrained and coerced Suburban
in the selection and retention of its representatives for
the purposes of collective bargaining and the adjustment
of grievances, and thereby has engaged in and is engag-
9 'The court of appeals denied enforcement of ttie• Board's order in
Chewelah, supra, because there was no evidence ,the in that case
sought to represent that employer's employees .The Instant case is distin-
guishable in that Respondent, through its agent Cannon, sought to have
McFarland assist Respondent in an attempt to organize, Suburban's em-
ployees Cannon's comments to McFarland demonstrate, Respondent in-
tended to organize Suburban's employees if it could have obtained, the
assistance of McFarland
SHEET- METAL WORKERS LOCAL 85 (SUBURBAN SHEET METAL) 527
ing in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(B) of the Act. -
5. The aforesaid ,unfair labor, practices are .unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
have found that Respondent required McFarland to
plead on chargs, 'fined him- $7500, and suspended him
from membership in Respondent. I have found such ac-
tions of Respondent to, violate the Act. Accordingly, I
shall recommend, that the, ,fine be rescinded and that
McFarland, upon tendering regular membership dues, be
restored to a member ,in good standing in Respondent
with all attendant rights, and that Respondent notify him
in writing that the above action has been taken. I also
recommend that Respondent post the attached notice
marked- "Appendix"
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edio
_ ORDER
The Respondent, Local Union No. 85, affiliated with
the Sheet Metal Workers International Association,
AFL-C/O, Atlanta, Georgia, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Restraining and coercing Suburban in the selection
of its representatives for the purposes of collective bar-
gaining or ,the adjustment of grievances by charging,
If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 10248 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
fining, suspending from membership, or otherwise disci-
plining McFarland or any other representative of Subur-
ban when Respondent is engaged in a labor dispute with
that Employer.'
(b) Engaging in any like or related conduct constitut-
ing such restraint or coercion.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act.
(a) Rescind and expunge from its records the fine and
membership , suspension imposed on McFarland because
of his employment by Suburban.,
(b) Restore McFarland, on his tendering regular mem-
bership dues, to a member in good standing in Respond-
ent with all attendant rights as necessary.
(c) Notify McFarland in writing that the fine has been
rescinded, that records of the charges and fine against
him have been expunged, and that he will be restored to
a member in good standing with all attendant rights as
necessary on his tendering regular membership dues.
(d) Post at its business office and meeting hall copies
of the attached notice marked "Appendix." Copies of
the notice, on forms provided by the Regional Director
for Region 10, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Furnish the Regional Director signed copies of the
notice for posting by Suburban, if Suburban is willing,
where notices to employees are customarily posted.
(4 Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"