Local Union No. 2150 IBEW

National Labor Relations Board - Board Decisions

Jul 14, 1971

192 N.L.R.B. 77 (N.L.R.B. 1971)

LOCAL UNION NO. 2150. IBEW - 77
Local Union No. 2150 , International Brotherhood of
Electrical Workers, AFL-CIO and Wisconsin
Electric Power Company . Case 30-CB-293
July-14, 1971
DECISION .AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
On May 6, 1970, Trial Examiner-Henry L. Jalette
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the Act,,-and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision.. Thereafter, Respondent, Charging Party,
and General Counsel filed exceptions to the Decision
and supporting briefs. The Respondent has also filed
an answering brief to the General Counsel's and
Charging Party's` exceptions.
On"September 2, 1970, the National Labor Rela-
tions Board; having determined that the instant case
raised issues of substantial importance in the adminis-
tration of the - National - Labor Relations act; as
amended, ordered that this case be consolidated with
one others for the purpose of oral argument before
the Board. Oral argument was heard on October 5,
1970.
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-
mendations of the Trial Examiner only to the extent
consistent with our Decision and Order.
The Charging Party, hereinafter referred to as
WEPCO, had recognized and negotiated with the
Respondent as the bargaining representative of. its
employees since the 1930's. The collective-bargaining
agreements, including the most recent negotiated by
the parties provide in pertinent part that an employee
promoted to a supervisory position may, upon
request, be given a withdrawal card by the Respon-
dent. The supervisor can request either a participating
% International Brotherhood of Electrical Workers, AFL-CIO, and Local
134, 'International Brotherhood of Electrical Workers,,,AFL-CIO (Illinois Bell
Telephone Company), 192 NLRB No. 17, issued this date.
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 in the disposition of this- case.
3 The Union mistakenly fined ` three supervisors. McMahon, while a
member of the Union , was-in the hospital at the time of the strike and
therefore could not, as charged in the union proceedings , perform the
struck work . Both Miller and Gardner were not members of the Union at
the time of the strike. Eventually the Union dropped charges against these
192 NLRB No. 16
,or an honorary withdrawal card. With the possession
of either. type of 'withdrawal card he continues,
according to the International Brotherhood of Electri-
cal Workers' Constitution, to be treated as a union
member subject to the provisions of the constitution
but he-is not required to pay dues. The only benefit of
an honorary withdrawal card is the right of the holder
to be restored to regular membership without fulfill-
ing any of the normal reinstatement requirements.
The participating withdrawal cardholder, besides
possessing the benefits of an honorary cardholder, is
entitled to participate in the Union's pension and
insurance benefits.
Between June 16, 1969, and, July 1,. 1969, Respon-
dent engaged in an economic strike against WEPCO.
Although not clear from the record, WEPCO's
counsel, during oral argument, asserted that WEPCO
directed that its supervisors report to work during the
strike. It is clear from the record that substantially all
of WEPCO's supervisors reported for work during
the strike and performed struck work normally
performed by rank-and-file employees represented
by the Respondent. The parties, stipulated that the
supervisors involved herein performed struck work.
On August, 14, 1969, Respondent notified the
supervisors involved herein that they had -been
^charged-with -"doing struck work of Local 2150." All
but two of the charged supervisors were holders of
withdrawal cards obtained under the terms of the
collective-bargaining agreement. Trials wereheld but
none of the charged individuals appeared. All but two
were found guilty of violating the Union's Constitu-
tion, and accordingly fined' $100 and suspended from
membership for a year, with sentence to be suspended
if they were not found guilty of a similar offense for a
period of 2 years .3
The parties stipulated that 60 of the 61-in ividuals
notified of charges and/or fined are supervisors and
that 19 of'those 60 supervisors have the authority to
adjust grievances. The Trial Examiner, and we agree
for the reasons set forth in the Trial Examiner's
Decision, found the remaining 41 supervisors also
possess the authority to' adjust grievances and are
representatives of the Employer within the' meaning
of Section 8(b)(1)(B).4
The Trial Examiner concluded that the fining of the
supervisors . However, at least one of the supervisors, Miller, was seriously
inconvenienced since he was actually fined and forced to, make a formal
appeal to the international to vindicate his position . The Trial Examiner
concluded that the actions against these supervisors were the result of a
mistake and since this problem is "outside the mainstream of this case" this
portion of the complaint should be dismissed . We disagree . The fact that
the Union brought , charges of misconduct against these supervisors is
sufficient- to warrant the finding of a violation . Cf. Granite State Joint
Board -Local 1029, AFL-CIO (International Paper Machine Company), 187
NLaB No. 90.
4 The General Counsel and the Charging Party stave excepted to the
Trial Examiner's finding that the safety specialist was not an employer
(Continued)
78 DECISIONS OF NATIONAL ,LABOR RELA'Y'IONS BOARD
supervisors for crossing a picket line and doing struck
work violated Section 8(b)(1)(B) of the Act. He
reasoned that whenever the dispute can be character-
ized as a dispute between the employer and the^union
rather- than between the union and its members, any
union disciplinary action against a supervisor who
may act , on behalf of, the employer in, grievance
adjustment is violative of Section 8(b)(1)(B) of the
Act. We agree.
In the-,Toledo Blade case, the Board adopted the
following , summary of the .general principle of law
establishedlby Section 8(b)(1)(B):
The Board's decision in the San Francisco
Mailers case, underscores the . .' . import- of
Section 8(b)(1)(B) as a general prohibition of a
union's disciplining supervisor-members for their
conduct in the course of representing the interests
of their employers. As the, Board held, such
discipline, by a union, even, though the employer
may have consented to the compulsory union
membership of the supervisor under a union-
security clause, is an unwarranted "interference
with -[the] employer's, control over, its'own repre-
sentatives," and „deprives the . employer of the
undivided loyalty of the supervisor, to which it is
entitled.
Applying those long-settled and, court-approved
principles to this cases leads to the conclusion that
Respondent violated Section 8(b)(1)(B) when it fined
the supervisors for performing work which ,the
Employer had directed ,them to perform. Here,, the
supervisors, by doing struck work, as directed by the
Employer, were, furthering the interests of the Em-
ployer;in a dispute not between the Union and the
supervisor-union members but betweenthe Employer
and the Union. During the strike of the Union, the
Employer clearly considered its supervisors among
those,-it 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 now permit the Union to, drive a
representative ' for the purposes of collective bargaining and 'grievance
adjustment. We agree with the Trial Examiner that the safety .specialist,
who is not clearly a statutory supervisor and is not empowered to settle
grievances and has no direct and immediate likelihood of occupying such a
position of authority where he might exercise such power , is not within the
coverage of Section 8(b)(1)(B). In this regard , we follow the reasoning-set
forth in Toledo , Locals Nos. 15-P and 272 of the Lithographers and
Photoengravers International Union, AFL-CIO (The Toledo Blade Company,
lnaA 175 NLRB Noe 193, enfd. 437 P.2d 55 (CA. 6).
`5 See, e.g., Meat Cutters Union , Local 81 ' (Safeway ,Stores, Inc.), 185
NLRB No. 130;, Freight Construction, General Drivers, Warehousemen and
Helpers , Union, Local 287, International "Br`otherhood of Teamsters,
Chauffeurs, - Warehousemen and Helpers of America (Grinnell Co. of the
Pacific), 183 NLRB No . 49; Local `Union N66453, Brotherhood of Painters,
Decorators and Paperhangers of America, AFL-CIO (Syd Gough and ,Sons,
Inc.), 183 NLRB 'No . 24. Hous`ton' Typographical Union No. 87 (Houston
wedge between a - supervisor and. the =Employer,- thus
interfering with the performance of the duties the
Employer had a right to expect the supervisor to
perform. The Employer could, no longer count on the
complete and undivided loyalty- of those it had
selected to act as its collective-bargaining agents or to
act for it in adjusting grievances. Morever, such fines
clearly interfere with the Employer's control over its
own representatives.
Of course, our decision is-not meant to imply that a
union is completely precluded from disciplining
supervisor-union members. It only means that when
the underlying dispute is between=the employer and
the union rather than between the 'union and the
supervisor, then the union is precluded in taking
disciplinary action by Section 8(b)(1)(B). The intent is
to prevent the supervisor from being placed in a
position where he must decide either to, support his
employer and thereby risk internal union discipline or
support the union and thereby jeopardize his, position
with the employer. To place the supervisor , in- such a
position casts doubt both upon This, loyalty -to his
employer and upon his effectiveness as the employer's
collective-bargaining and grievance adjustment repre-
sentative. The purpose of Section 8(b)(1)(B) is to
assure to the employer that its selected collective-
bargaining representatives will be completely faithful
to its 'esires. This cannot be achieved if the union has
an effective method, union, disciplinary action, by
which' it can pressure such representatives to deviate
from the interests of the- employer. Accordingly, we
find that Section 8(bXl)(B) has been violated.
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 andhereby orders that
the Respondent, Local Union No. 2150, International
Brotherhood , of Electrical Workers, ,AFL-CIO, its
Shopping News Company), 182 NLRB No. 91; Dallas Mailers Unior, Local
No. 143, and International Mailers ' Union (Dow Jones Co., Inc.), 181 NLRB
No. 49 ; Sheet Metal Workers' International Association.. Local Uniofl 49,
`AFL-CIO (General Metal Products Inc.), 178 NLRB No. 24, enfd. 436 F.2d
1348 (C.A. 10); New Mexico District Council of Carpenters and Joiners of
America, United Brotherhood of Carpenters and Joiners of America,(A. S.
Horner, Inc.), 177 NLRB No. 76; New Mexico District' Council of Carpenters
and Joiners of America; United Brotherhood of Carpenters and Joiners of
America (A. S. Horner, Inc.A 176 NLRB N9.1015; Toledo Local, Nos. 15-P
and 272 of the Lithographers and Photoengravers' International' Union,
AFL-CIO (The Toledo Blade Company, Inc.), 175 NLRB No. 173, enfd. 417
F.2d 55 (C.A. 6); San Francisco-Oakland `Mallers ' Union No '18,
International ' Typographical Union (Northwest Publications, Inc.), 172 NLRB
No. 252. ,
LOCAL UNION NO. 2150 IBEW 79
officers, agents, and representatives shall take the
action 6 set forth in-the Trial Examiner's Recommend-
ed.Order.7
MEMBER FANNING, dissenting:
During a strike called by Respondent Union, the
Employer directed its supervisors to perform the work
of the striking employees. Many of its supervisors
were 'members' of the Union 'under a contractual
provision initially proposed by the Employer which
gave them the option of remaining union members
when they advanced to supervisory positions.8 Mem-
bership,in the ,Union is of considerable benefit to the
individual, supervisors, but, as members, they re-
mained bound to, discharge the obligations of mem-
bership and are subject to union discipline for failure
to faithfully discharge such obligations. By perform-
ing production work during the strike, the supervisors
violated the Union's =rule against performing struck
work, and they were fined for such transgression.
As in Illinois Bell Telephone Company, 192 NLRB
No. 17, my colleagues find-that the Union violated the
prohibition .contained in Section 8(b)(1)(B) against
restraint or coercion of an employer in the selection of
his representatives for the purpose of collective
bargaining-or the adjustment of grievances. For the
reasons that led me to dissent in Illinois Bell, I dissent
herein. While it serves no useful purpose to repeat
those reasons here, one aspect of the case seems to me
to, -highlight a basic weakness in my colleagues'
approach,.
Section 8(b)(l)(B) proscribes restraint or coercion of
the employer in his selection of representatives who
adjust grievances. Here, of course,, the Employer was
in no way restrained or coerced in his'selection of,such
representatives, - indeed it took the initiative in
enabling them to remain union members . Neverthe-
less, had the Union restrained or coerced those
representatives in the performance of their grievance-
adjustment functions, the Employer would then have
been, denied the unrestrained and uncoerced perform-
ance for which he had selected them, and a violation
of Section 8(b)(1)(B).,could properly be found., But
their performance, of_ such functions is not involved
herein, for the Employer directed them to perform
nonsupervisory, production work during the strike. I
do' not see 'how the restraints imposed on the
supervisors for performing such work translate into
restraint and coercion of'the Employer in'his selection
of representatives for the purpose of settling griev-
ances.
e The General Counsel has excepted to the Trial Examiner's refusal to
require that the Notice to Members be read at two of the Local 2150's
general membership meetings . We'see no reason in this case for requiring
such an ' extraordinary remedy.
r' In fm -I1' of the Trial Examiner's Decision change "10" to "20" days.
8 There 'is an 'obvious benefit to management in such a provision in that
it permits recruitment of supervisors from the ranks of `highly qualified
production employees who might be reluctant , to accept promotion if it
meant cutting off all ties and associations with their union and the loss of
benefits flowing from their membership Among the benefits retained by
supervisors who-elect to take'a withdrawal card are the right to continued
participation- -in pension- and insurance programs and the right' to
restoration to regular membership status)without payment of reinstatement
fees upon their return to employee , status,
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY L: JALETTE, Trial Examiner : On January 12, 1970,
a complaint issued against' the above-captioned Union
alleging - that it had , restrained and coerced the above-
captioned Employer in the selection of its representatives
for purposes of collective bargaining and the adjustment of
grievances in violation of Section 8(b)(1)(B) of the Act"by
disciplinary action taken against the Employer 's supervi-
sors. The complaint was based on a charge filed by the
Employer on October 23, ''1969. On February 19; 1970, a
hearing was held before me in Milwaukee, Wisconsin.
Upon the entire record and after due consideration of the
briefs filed by 'General Counsel, the Employer, and
Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Wisconsin Electric Company is a Wisconsin corporation
with its principal office located-in Milwaukee, Wisconsin,
where it is engaged as a public utility in the production and
distribution of electric power to various , municipal,
commercial, and private consumers throughout the States
of Wisconsin and Michigan. In the course and .conduct of
its business, the Employer annually receives gross revenues
in excess of $250,000 of which in excess of $50,000,is for the
transmission of electrical power ' from points within the
State of Wisconsin directly to points outside the State of
Wisconsin. Respondent admits, and I find, that Wisconsin
Electric Power Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is, and at all times relevanthereto has been,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. • The Facts
The facts are essentially undisputed. Respondent repre-
sents certain of the Employer 's employees and has had a
contractual relationship with the Employer for a number of
years. On June 16, 1969, Respondent engaged in an
economic strike against the ' Employer which strike
continued through July 1, 1969;
During, the strike, supervisors crossed Respondent's
primary picket line and performed unit, work . With two
exceptions, all the supervisors - who are the object of this
proceeding were holders of either participating or honorary
80 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
withdrawal cards' by virtue of I which they continue to be
members of the 'Union ' ' and'subject "to provisions of`the
Union's constitution . Holders' of Withdrawal eards_are not
required to pay dues . The only benefit of 'an honorary
withdrawal card is that the holder thereof may turn the card
in and be restored to regular membership-upon request
without payment of a reinstatement fee or the fulfillment of
any other conditions .' The holder of a participating
withdrawal card has the same benefits, but in consideration
of the payment of certain fees ` he is entitled to pension and
insurance benefits . Such benefits are an incident .of union
membership for all members who elect to participate. They
are knot based on a collective-bargaining agreement nor on
employer contributions.'
On August 14,,6,1 individuals werenotified that they had
been charged by a member of Respondent with "doing
struck work of Local 2150" and that a trial would be held
on August 29. Trials were held during the week, of August
29; but none "of the individuals appeared, and on October
10, all but 2 were notified , that they had been fined $ 100 and
suspended , from membership for 1, year, ` sentence to be
suspended provided they were not found guilty ' of like
violations for a' period , of 2 years ; in such event, the
sentence "was to become effective immediately upon the
finding of a further violation.
The parties stipulated that 60 of the 61 individuals
notified of charges and/or fined are supervisors within the
meaning of Section 2(11) of the Act.
Of'these 60, it was stipulated that 19 occupied positions
whereby they had'the authority to adjust grievances.2
` The remaining 41 consisted of 33 general foremen and 8
power system supervisors. Respondent contends that they
have no authority to `adjust grievances - and are not
representatives - of the Employer within the meaning of
Section 8(b)(1)(B).
One-individual, Ronald Burghaus, is not a supervisor,-nor
does he have the 'authority to adjust ` grievances. He is a
safety specialist and is not in the unit represented by
Respondent . General Counsel contends heis a representa-
tive -of , , the Employer within the ,- meaning- of Section
8(b)(1)(B)•
B. Analysis and Discussion
The facts and applicable legal principles it this case
require 'very, little discussion. Respondent asserts two
defenses both of which are indistinguishable from defenses
previously considered by the Board and decided adversely
to Respondent's position.
The first of these, conceded by Respondent to present a
secondary issue, is the status of 41 supervisors as
representatives of the Employer within the meaning of
fioa' (b)(1)(B) of the Act. As noted -earlier-,of-the-6-1
individuals charged sand/or ..fined 'for doing'struck work,
although 60 were stipulated, to be statutory supervisors,
only 19 were stipulated to have the authority to, adjust
grievances.
Respondent contends that the .remaining 41, who are
,classified as general foremen and power systems supervi-
sors, are low - level supervisors "who have no_ meaningful
authority , to adjust- grievances and that they are not
therefore the' " Employer's representatives within the, mean-
ing of Section 8(b,)(l)(B). I find-this contention to be
without meet for two reasons.
'First, I believe that the Board has -construed Section 8
(b)(1)(B) to prohibit a union from fining any supervisor- as
to matters concerning his employment. In 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, the Trial Examiner stated, ,
But, even had Jones and 'Ulrich not been actually
designated and serving the Blade as such grievance
representatives, I would find that, in view of their status
and roles as foremen with the substantial supervisory
authority to direct-the work of,the men on their shifts,
they were such natural and potential representatives of
the Blade for the handling and settlement of grievances
because of their day-to-day supervision and' contact
with the employees in matters that spawn grievances,
that the Blade should be entitled torely upon them, and
`therefore to select them, as its representatives in
handling and settling grievances whenever the occasion
might arise. For Section, 8(bxl)(B) forbids a union's
restraining and coercing "an employer in the selection
of his 'representatives for the purposes of collective
bargaining or the adjustment of, grievances" and this
protection of the employer's right tc "selection" must be
construed' as protecting not only-66 employer's
continuing reliance upon supervisors already selected,
but his right, at , any time to` make and' rely upon a
selection of ,representatives from an uncoerced group of
such supervisors whose, loyalty to him has not been
prejudiced and who he believes would be peculiarly
qualified, to, -represent him in the handling of
grievances.a
Without more,. therefore, based solelyon the stipulation
that'they are statutory 'supervisors, I' wouldfind that -the
general foremen and power system supervisors are
representatives of the Employer for 'the= purpose of
adjusting grievances within the 'meaning of Section
8(b)(1)(B)of the Act.
Second, there- is evidence that the general foremen and
power, system supervisors have the authority to adjust
,grievances. They are at the first level of supervision, and the
collective-bargaining agreement contemplates that they Will
I There is no contention either that the holders of withdrawal cards are
not subject to'the Union's constitution, nor that the right to be an honorary
member 'on withdrawal card is not a valuable right.
2 In addition, one of the 19, Billy McCoy, was also a representative of
the Employer for the purpose , of collective bargaining.
'a 6n "Counsel relies on' the language of 'this paragraph for his
allegation that the fining of Ronald Burghaus was violative of Section
8(bX1XB) of the Act . General Counsel contends that although Burghaus
was not a statutory supervisor, as safety specialist with the responsibility
and authority, inter aha, to stop employees performing work in an unsafe
manner, he was a "natural and potential " representative of the Employer
for the adjustment of grievances . That rationale was applied to statutory
supervisors in'the Toledo Blade case. In my opinion , it cannot with equal
force be applied to nonsupervisors . Where such individuals are concerned,
it is incumbent on General Counsel` to show pthat'theyactually' have been
designated , as representative of the Employer to adjust grievances.
Accordingly, I shall recommend that the complaint be dismissed insofar as
it relates to the fining of Burghaus.
LOCAL UNION NO. 2150 IBEW 81
resolve misunderstandings or disputes involving employees
under their supervision to avoid the necessity of resolving
them at the written - level or at higher levels of
supervisions.4 Such grievance handling is of the informal
type -which precedes the filing of a written grievance and
may relate to such matters as work assignments, scheduling
of work, scheduling of vacation and " the like. In the
terminology used in Toledo Blade, the grievances adjusted
at this level- could be termed "personal grievances" as
distinguished from "cointractural grievances." As was held
in Toledo Blade, (TXD, p.14) individuals who possess the
authority to adjust "personal grievances" are representa-
tives of an employer "for the purpose of ... the adjustment
of grievances" within the meaning of Section 8(b)(1)(B) of
the Act. Accordingly, I find that general foremen and
power system supervisors are such representatives of the
Employer herein.
Respondent's principal contention is that N.L.R.B. v.
Allis-Chalmers Manufacturing Co., 388 U.S. 175, and related
cases5 sanction" the discipline of union members who
engage in conduct- detrimental to the union's legitimate
interest, in this case, the maintenance of an effective
economic strike. The simple answer to that contention is
that the Board has rejected the Allis-Chalmers rationale as a
defense-in Section 8(b)(1)(B) cases. `San Francisco-Oakland
Mailer's Union - No. 18, International Tyographical Union,
172 NLRB No. 252; The Toledo Blade Company, supra; New
Mexico District` Council of 'Carpenters and Joiners of
America, (A. S. Horner, Inc.), 177 NLRB No. 76. -
Respondent appears to contend that these cases are not
dispositive because they involved situations where the
discipline related directly to and arose out of the very
manner in which the supervisors were performing their
functions as representatives of their employer, whereas in
this case the discipline was unrelated to any conduct of the
supervisors in their capacity as supervisors. To put it
another way, when the supervisors did unit work, they were
not functioning either -as supervisors or representatives of
the Employer under Section 8(b)(1)(B), and Section
8(b)(l)(B) is inapplicable.
The Board's decisions in A.S. Horner, Inc., supra dictates
a rejection of that argument. In that case, the employer had
no contract with the union, and disciplinary action-against
the supervisor was not invoked because of his exercise of
any supervisory functions or functions as a, representative
of the employer under Section 8(b)(1)(B); rather, discipli-
nary action was invoked-pursuant to what I believe is a long
standing tradition of trade unionism, ' particularly the
building trades unions, that a union member does not work
for a nonunion contractor. The same action would have
been invoked against Freese had he been employed by
Horner as a journeyman.6 Nevertheless, the Board found
that the Union violated Section 8(b)(1)(B), not because of
what Freese did as the employer's representative, but
simply and solely because he had the authority to adjust
grievances and "the basic dispute underlying the discipli-
nary action against Freese was not entirely an infra-union
matter, but stemmed from the fact that the Company did
not have a collective-bargaining agreement with the
Respondent and -was not ' making` payments into' the
Respondent's health and welfare fund. Thus, as in San
Francisco-Oakland Mailers' and in The Toledo Blade
Company cases, supra the underlying dispute was between
the Respondent and the Company and not -between the
Respondent and one of its members."
The same considerations apply here. The disciplinary
action against the supervisors stemmed from the fact, that
they worked for the Employer, at a time when the Employer
did not have a collective-bargaining agreement with
Respondent. The underlying dispute was between the
Employer and Respondent and 'not between Respondent
and its members.
Respondent adverts to the fact-that the supervisors in this
case were union members by choice. As a matter of fact,
article VIII, sec.8.1 of the collective-bargaining agreement
provided that should an employee be promoted to a
supervisory position, he shall be given-a withdrawal card by
the Union upon the employee's request. Although the
Board adverted to the compulsory membership of the
disciplined foremen in San Francisco Mailers (fn. 2), it did
not indicate that the fact of compulsory union membership
was material, even less essential, to a finding of a violation.
The decision in A.S.' Horner Inc., supra, however, indicates
that it is immaterial that the supervisor is a union member
by'choice, because a violation was found where there was
no contract between the union and Homer, much 'less a
compulsory membership contract provision. The effect of
the decision is to give the right to individuals to be both
supervisors and union members. Thus,, foreman Freese in
A. S. Horner could be both a union member and a
supervisor for a nonunion contractor - pursuant to a
provision of the Act designed to protect his employer
when, for all that appears, his employer couldn't have
cared less whether he was a union member so long as he
was'a good supervisor. `
Under such a rationale, employers have the right under
Section 8(bXl)(B) not only to select representatives of their
own choosing, but even more, to select union members as
such representatives, with the right to remain union
members. This is made abundantly clear in Dallas Mailers
Union, Local No. 143, and International Mailers Union; A 81
NLRB No. 49. The Board there rejected the argument that
once a supervisor was expelled he was relieved of any
further fear of coercion 'by the-union which would inhibit
him from representing the viewpoint of management. As
the Board indicated, the supervisor might well desire
reinstatement in the union and his expulsion would have an
inhibiting effect on his future conduct as a supervisor. This
may very well be true, but I question that Congress
intended by Section 8(bXl)(B) to compel unions to retain
representatives of management on their- membership rolls.
It appears, to me that individuals who, aspire to be
representatives of management and to. receive the perqui-
sites of management must be prepared to relinquish the
benefits afforded by union membership. If they elect to eat
4 The grievance procedure is set forth in article III. The "divisional (C.A. 9), cert. denied 392 U.S. 904.
supervisors" referred to in step I is a , generic term which includes 6 As noted in In. 3, the union had demanded that two rank -and-file
supervisors ,such as general foremen and power system supervisors. employees cease working for Horner.
5 Scofield v. Labor Board, 394 U.S. 423; Price v. N.LR.B., 373 F.2d 443
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the icing, they should eat the cake; if they choose union
membership , they choose to abide by its constitution.
It may be that the Board decisions ' in A. S. Horner, supra
and Dallas Mailers, supra, do not- have the far-reaching
effects I see in them. Be that as it may, I believe that-they
are controlling in this case. So long as the disciplinary
action against the supervisors arose out of matters relating
to their employment ,, it was proscribed by 'Section
8(b)(1)(B) of the Act and Respondent's motive or the
legitimacy of its interest is immaterial.
As noted 'earlier, of the 61 individuals notified of charges,
2 were not ' fined. Vincent McMahon was not fined because
Respondent learned he had been in the hospital and had
not crossed ,the picket line. David Gardner was not fined
becasue it was learned he did not hold a withdrawal card
and was not a,member of Respondent.
General Counsel contends that the act of notifying the
supervisors oUcharges and of a trial to be held thereon was
an act of restraint and coercion even though the charge was
dropped without a trial, and that is no less restraint and
coercion when the supervisor is not a union member.
Where the -Board has proscribed disciplinary action
against supervisors in 8(bxl)(B)" situations, it has also
proscribed the act of preferring charges against them or
citing them to appear for trial. San Francisco Mailers, supra.
In McMahon's case, the charge against him and the notice
thereof were the result of error. McMahon must have
recognized that fact and I find it difficult to see how , there
could have been any 'restraint or coercion in his case. In the
circumstances , I 1 would recommend dismissal of the
complaint as'it relates to McMahon.
The charge and notice thereof ' given David Gardner and
the charge, al, and fining of,,David
.
Miller present' a
different issue . Both were nonmembers , and when this fact
was learned the charge against Gardner was dropped and
Miller was advised by Respondent 's International that the
fine which had been levied was void . Whether or not,the
preferring of charges and/or fining of nonmembers
constitutes restraint and coercion is an interesting question.
Since the fine would be void and uncollectible, how could
the individual who was fined be restrained and coerced?
Trial Examiner Milton Janus held that the-fining of
nonmembers was restraint and coercion within the meaning
of Section 8(b)(1)(A) in Granite State Joint Boar4 Textile
Workers Union - of "America, Local - 1029, AFL-CIO
(International Paper Box Machine Company), 187 NLRB,
No. 90, but in that case there was a colorable claim by the
union that the , employees who were fined were union
members subject to union , discipline . In, this case, the
actions against - Gardner and Miller were , the result of a
mistake. In my opinion , their case as well as° McMahon's
are outside the mainstream of-this case and the issues they
present can be left ' for determination in another case. I will
recommend that the complaint be dismissed as it relates to
Gardner and Miller.
9 Printing Specialties ' and Paper Products ' Union No. 481, International
Printing Pressmen and Assistants ' Union of North America, AFL-CIO
(Westvaco Corporation, H & D Container Division), 183 NLRB No. 125;
IV. THE'EFFECT OB THE UNFAIR LABOR , PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III
above, occurring , in, connection with the operations of the
Employer -.described in section I above, haves. close,
intimate, and substantial relation to trade, traffic, and
commerce among ` the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices- I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Although the fines and suspension from membership
were' suspended, the coercive effect of 'the fine, and
suspension from membership will continue for a period of 2
years unless the actions of the` trial board are revoked in
their entirety. Aecor'dingly, to remedy the coercive effect of
having . charges preferred, against them-, having trials
conducted thereon, and fining the Employer's representa-
tives for the purpose of adjusting grievances within the
meaning of Section 8(b)(1)(B) of the Act, I will, recommend
that (1) Respondent revolve the actions of the trial board
and expunge- from, its files any record or other evidence 'of
the proceedings against them; (2) advise the Employer's
representatives named in paragraph-6 of the complaint and
appendix A, excepting Vincent McMahon, David Gardner,
and David Miller, in' writing, of the aforesaid action; and
(3) execute and post the notice her"eto attached as
"Appendix."
-General'Counsel-has requested that following receipt of
the - "Appendix" Respondent' be directed to read its
contents at two'' successive` regular meetings." Such a
remedial` provision has been included' in''orders recom-
mended by Trial Examiners in Section 8(b)(1)A) cases.a
General Counsel has not shown that such a requirement
has been deemed appropriate in .cases involving .Section
8(b)(1)(B) violations only. Since Section 8(b)(IXB) is for the
protection of the employer, I deem the addition of a^reading
requirement to the remedy recommended, above to be
neither appropriate nor necessary to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact-and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material; a
labor organization within the meaning of Section 2(5) and
Section 8(b),of the Act.,
2. Wisconsin Electric Power Company is an employer
within the meaning of Sections 2(2) and 8(bXl)(B) of the
Act. I 1
3. Wisconsin Electric Power Company is engaged in
Milwaukee Printing Pressmen & Assistants Union No . 7, affiliated with, the
International Printing Pressmen & Assistants Union of North America' (North
Shore Publishing Company), 192 NLRB No. 122. " " '
LOCAL UNION NO. 2150 3BEW 83
commerce within the meaning of Section2(6) and (7) of the
Act.
4. The supervisors named in paragraph 6 and appendix
A of the complaint are, each of them, and at all times
material have been, supervisors within the meaning of
Section 2(11) of the Act and representatives of the
Employer for the purpose, among others, of adjusting
grievances within the meaning of Section 8(bXl)(B) of the
Act.
5. By preferring charges against the supervisors,
conducting trials, and fining them (except Vincent
McMahon, David Gardner and David Miller), Respondent
restrained and coerced the Employer in the selection and
retention of its representatives for the purpose of collective
bargaining or the adjustment of grievances, and thereby has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(b)(1)(B) 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.
Upon the basis of the foregoing findings of fact,
conclusions of law and the entire record in the case, I
hereby issue the following:
if willing, in places where notices to employees are
customarily posted.
(e) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Decision and
Recommended Order what steps it has taken to comply
herewith.".
To the extent that the allegations of the complaint have
been found not to have constituted violations of the Act, it
is recommended that they be dismissed.
to In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided by 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. In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "POSTED BY ORDER OF
THE NATIONAL LABOR RELATIONS BOARD" shall be changed to
read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
RECOMMENDED ORDER
Respondent, Local Union No. 2150, International
Brotherhood of Electrical Workers, AFL-CIO, its officers,
agents , and representatives, shall:
1. Cease and desist from:
(a) Restraining and coercing the Employer in the
selection of its representatives for the purposes of collective
bargaining or the adjustment of grievances.
(b) Preferring charges against, conducting trials and
fining the supervisors of Wisconsin Electric Power
Company, as members of Respondent, because they
crossed a picket line established by Respondent and
performed services for their employer.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Revoke the actions of the trial board and expunge
from its files all records or other evidence of the
proceedings against the supervisors named in paragraph 6
of the complaint and the appendix thereto (except Vincent
McMahon, David Gardner, and David Miller).
(b) Notify the aforesaid supervisors in writing that it has
taken the aforesaid action and that it will cease and desist
from taking like action in the future.
(c) Post in conspicuous places at its offices and meeting
halls, and other places where notices to its members are
customarily posted, copies of the attached notice marked
"Appendix." 10 Copies of said notice, on forms provided by
the Regional Director for Region 30. shall, after being duly
signed by an authorized representative of Local Union No.
2150, International Brotherhood of Electrical Workers,
AFL-CIO, be posted immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Furnish the Regional Director signed copies of such
notice for posting by Wisconsin Electric Power Company,
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
WE WILL NOT in any manner restrain or coerce
Wisconsin Electric Power Company in the selection of
representatives chosen by it for the purposes of
collective bargaining or the adjustment of grievances.
WE WILL NOT prefer charges against , conduct trials
of, or fine supervisors of Wisconsin Electirc Power
Company, who aremembers•of thisllabor , organization,
because they crossed our picket line and worked during
the strike in June 1969.
WE WILL revoke the actions of the trial board, and
WE WILL expunge from our files all records or other
evidence of the proceedings against them.
WE WILL notify those supervisors that we have
revoked the actions of the trial board and have
expunged from our files all records or other evidence of
the proceedings against them and that WE WILL NOT
take like action against them in the future.
LOCAL UNION No. 2150,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL--CIO
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must ; remain posted, for 1 601 consecutive days
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the, date.ofposting and, must notbe altered, defaced , its provisions, may be directed to the Board's,Office, 2nd
or covered by any other material . Floor, Commerce Building,'\\ 744 North\ 4th Street, Milwau-
Any questions concerning, this notice or compliance with kee, Wisconsin 53203, Telephone 4I4-272-X3861.