Local Union No. 5163, Steelworkers

National Labor Relations Board - Board Decisions

Apr 4, 1980

248 N.L.R.B. 943 (N.L.R.B. 1980)

LOCAL UNION NO. 5163, STEELWORKERS 943
Local Union No. 5163, United Steelworkers of
America, AFL-CIO and Charles A. Bizzaro.
Case 25-CB-3643
APril 4, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 28, 1979, Administrative Law
Judge Bruce C. Nasdor issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only
to the extent consistent herewith.
Although we adopt the Administrative Law
Judge's recommended dismissal of the 8(b)(1)(A)
allegation of the complaint concerning a statement
made by Elvin Miller, the Respondent Local's
president, we find merit in the General Counsel's
exception to the recommended dismissal of an
8(b)(l)(A) allegation based on a statement made by
Carl Heimlich, a representative of the Internation-
al, during a union meeting on December 9, 1978.
The alleged violations arose from a dispute be-
tween officials of Local Union No. 5163, United
Steelworkers of America, AFL-CIO, and rank-
and-file members of the Local. On July 24, 1978,
Charles Bizzaro, a Local member, sent a petition
and cover letter to Lloyd McBride, president of
the Steelworkers. The petition asked for the recall
of Local President Miller, and the letter stated cer-
tain complaints about the operation of the Local,
including the failure to provide a steward, to police
plant safety standards, and to provide copies of the
Union's bylaws and constitution to the members.
The cover letter was signed by Bizzaro and 11
other employees. McBride referred the matter to
the district director.
In October, Bizzaro and two other signers of the
cover letter conversed with Local President Miller.
Miller had told Bizzaro that a union representative
wanted to speak with Bizzaro privately. Bizzaro
asked why he was the only one selected, and stated
that he would not appear unless he and the other
who had signed the letter received proper notifica-
tion of a meeting. Miller became upset and told
Bizzaro, "Well, if you had come to me a lot of this
could have been avoided." He then told them that
248 NLRB No. 104
he would or should sue everyone that had signed
the letter and petition.
After this incident, the dissident members
became concerned that the union official had not
done anything about their complaints. They there-
fore sent a second letter to McBride-this time
signed by eight members-stating this concern, and
warning that, if nothing were done in 10 days, they
would refer the matter to the Department of
Labor. The letter stated in relevant part:
Please be advised that as of the date of this
letter we have not yet received copies of the
U.S.W.A. Constitution or L.U. By-Laws. In
reference to this request, we respectfully
remind you of the provisions of the Labor-
Management Reporting and Disclosure Act as
amended in accordance with Title II Section
201 Sub-paragraph (a) etc. We feel that a suffi-
cient amount of time has been allowed for a
disposition of the complaint and/or charges as
outlined in our letter of July 24, 1978. If a
proper procedure of notification and disposi-
tion is not made within ten (10) days of receipt
of this letter, we will refer the above men-
tioned problems to the Department of Labor.
Thereafter, on December 2, Miller sent eight of
the signers a registered letter requesting each mem-
ber's presence at a meeting at the union hall on De-
cember 9 at 10 a.m. to discuss the complaints.
The meeting took place at the scheduled time. It
was attended by the eight signers, President Miller,
other officers of the Local, and Carl Heimlich, the
International representative. A discussion ensued
about the complaints, and some of them were re-
solved. Bizzaro again stated that the Labor-Man-
agement Reporting and Disclosure Act required
that members be provided with copies of the col-
lective-bargaining agreement and the Union's con-
stitution and bylaws. At this point Heimlich told
Bizzaro that he was not a lawyer, that he could not
interpret the law, and that Elvin could have sued
them all. The meeting ended shortly thereafter.
On these facts, the Administrative Law Judge
concluded that the statements by the union officials
that Miller would or could sue the dissident mem-
bers did not violate Section 8(b)(l)(A) of the Act.
He reasoned that the letters and meetings provok-
ing the statements constituted "an intraunion squab-
ble involving personality conflicts and intraunion
politics, nothing more." Accordingly, he found that
the dissidents were not engaged in concerted pro-
tected activity within the meaning of Section 7 of
the Act. Finally, he concluded that Miller's and
Heimlich's statements were "vague" and "isolated,"
and, therefore, not threatening and not violative of
Section 8(b)(1)(A).
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel argues that the dissidents
were engaged in Section 7 protected activity in
protesting certain union policies, and that the state-
ments made by Miller and Heimlich tended to in-
terfere with their protected activity. To establish
the threatening and coercive nature of these state-
ments, the General Counsel cites Petersburg Asso-
ciates, United Association of Journeymen & Appren-
tices of the Plumbing & Pipefitting Industry, Local
Union No. 81 (Morrison Construction Co., Inc.);2
and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Red
Ball Motor Freight),3 where the Board found that
similar threats to sue violated Section 8(b)(1)(A).
He also cites the recent decision of United Steel-
workers of America, Local 1397, AFL-CIO (United
States Steel Corporation, Homestead Works),4 as
general support for finding an 8(b)(1)(A) violation.
Clearly, these union members were engaged in
protected activity under Section 7 of the Act when
they wrote and petitioned the union president with
a list of complaints about the Local and the Local's
president. Indeed, the Board has held, on numerous
occasions, as in Homestead Works, that such activ-
ity is protected.5
The real issue is whether the statements made
would tend to restrain and coerce the members in
the exercise of their Section 7 rights.6 Resolving
this issue requires the Board, as often happens, to
draw lines "more nice than obvious."7 With re-
spect to the first statement made by Miller, we find
it so vague and offhand as to not constitute a threat
within the meaning of Section 8(b)(1)(A). In con-
text, Miller's statement is no more than a declara-
tion of his displeasure with the petition.
The statement by Heimlich, however, was a co-
ercive threat in violation of Section 8(b)(1)(A).
First, it was a reiteration of Miller's earlier state-
ment and, therefore, neither an offhand nor an iso-
lated statement. Second, it was made at an official
union meeting, for which the Respondent had re-
quested the dissidents to appear.8 Third, and most
I 239 NLRB No. 150, sl. op., p. 30 (1978).
2 237 NLRB 207 (1978).
3 191 NLRB 479 (1971).
4 240 NLRB No.105 (1979).
b See the cases cited in Homestead Works, sl. op., p. 4, and Carpenters,
Local Union No. 22. United Brotherhood of Carpenters and Joiners of Amer-
ica (Graziano Construction Co.), 195 NLRB I (1972); Hoisting and Portable
Engineers. Local 4, International Union of Operating Engineers (The Carl-
son Corp.), 189 NLRB 366 (1971), enfd. 456 F.2d 242 (lst Cir. 1972);
Groves-Granite, 229 NLRB 56, 63 (1977).
8 This is the standard used in Homestead Works, cited above, sl. op., p.
4.
' Local 761. International Union of Electrical, Radio and Machine Work-
ers. AFL-CIO [General Electric Company] v. N.L.R.B., 366 U.S. 667, 674
(1961).
8 Respondent admitted that Heimlich is an agent of Respondent. We
further find, on the basis of the above evidence, that Heimlich, in making
the threat to sue, was acting within the scope of his agency.
importantly, the statement by Respondent immedi-
ately followed member Bizzaro's reminder that the
Union was not in compliance with the Labor-Man-
agement Reporting and Disclosure Act, and it
came after the dissident members' statement in the
November 3 letter that they would refer the dis-
pute to the Department of Labor if the Union did
not meet their requests. In this context, the state-
ment about suing the members is more than a dec-
laration of displeasure, it is a threat to impede the
dissidents' recourse to the Department of Labor.
The threat is both concrete and immediate, and we
find that Respondent violated Section 8(b)(1)(A) by
making it.
In so concluding, we reject the Administrative
Law Judges' reasoning that a threat to sue violates
Section 8(b)(1)(A) only if it is in response to efforts
to use the Board's processes. The employees' Sec-
tion 7 right to seek redress from the Department of
Labor is as great as their right to use our processes,
and the protection from activity prohibited by Sec-
tion 8(b)(l)(A) is the same." For this reason, we
find that Respondent violated Section b)(l)(A)
when Heimlich told the dissident members that
Miller could have sued them.
THE REMEDY
Having found that Respondent engaged in and is
engaging in unfair labor practices in violation of
Section 8(b)(1)(A) of the Act, we shall order Re-
spondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Local Union No. 5163,
United Steelworkers of America, AFL-CIO, is,
and at all material times has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By threatening to sue employees and to cause
their discharge because they participated in in-
traunion activities or because of employees' dis-
agreement with the conduct of Respondent's offi-
cers or agents, Respondent has violated Section
8(b)(1)(A) of the Act.
3. By threatening to sue employees for seeking
redress of grievances before the United States De-
partment of Labor, Respondent has violated Sec-
tion 8(b)(l)(A) of the Act.
9 See, e.g., Tappan Co., 228 NLRB 1389, 1391 (1977) (the filing of a
complaint with the Occupational Health and Safety Commission is pro-
tected activity); The Massachusetts Women's Hospital, d/b/a Parker Medi-
cal Center, 227 NLRB 1289, 1292 (1977) (filing an affidavit for another
employee with the Massachusetts Commission Against Discrimination is
protected).
LOCAL UNION NO. 5163, STEELWORKERS 945
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Local Union No. 5163, United Steelworkers of
America, AFL-CIO, Richmond, Indiana, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening to sue employees because they
participated in intraunion activities or because of
employees' disagreement with the conduct of Re-
spondent's officers or agents.
(b) Threatening to sue employees for seeking re-
dress of grievances before the United States De-
partment of Labor.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the purposes of the Act:
(a) Post at its offices and meeting places in and
about Richmond, Indiana, copies of the attached
notice marked "Appendix."'° Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 25, after being duly signed by Re-
spondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Forward signed copies of said notice to the
Regional Director for Region 25 for posting by
Kemper Cabinets, Division of Tappan Company, if
willing, in conspicuous places, including all places
where notices to employees are customarily posted.
(c) Notify the Regional Director for Region 25,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
l0 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
We intend to abide by the following:
WE WILL NOT threaten to sue employees be-
cause they participated in intraunion activities
or because they disagree with the conduct of
our incumbent officers or agents.
WE WILL NOT threaten to sue employees for
seeking redress of grievances before the
United States Department of Labor.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights protected by Section 7 of the Act.
LOCAL No. 5163, UNITED STEEL-
WORKERS OF AMERICA, AFL-CIO
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge: This
case was heard at Richmond, Indiana, on July 27, 1979.
The charge in this proceeding was filed by Charles A.
Bizzaro on February 12, 1979. The complaint and notice
of hearing in this matter issued on March 30, 1979. The
issues to be resolved are whether the Respondent Union
by its officers and agents violated Section 8(b)(1)(A) of
the National Labor Relations Act, as amended, by
threatening to institute a lawsuit against members who
circulated and signed a petition requesting the resigna-
tion of Elvin Miller, the local union president.
Based on the entire record,' including my observation
of the demeanor of the witnesses, and after due consider-
ation of briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Kemper Cabinets, herein referred to as the Employer,
is a division of the Tappan Company, an Ohio corpora-
tion. The Employer is engaged at its Richmond, Indiana,
facility in the manufacture, sale, and distribution of kitch-
en cabinets and related products. During the past 12
months, a representative period, the Employer sold and
shipped from its Richmond, Indiana, facility, products
' On p 64 of the transcript, comments appearing beginning at I and
concluding at I 18, are incorrectly attributed to me These comments
were made by counsel for the Respondent. The transcript is corrected in
this respect
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valued in excess of $50,000 directly to points outside the
State of Indiana, and purchased goods and materials
valued in excess of $50,000 from points outside the State
of Indiana. The Employer, at all times material herein, is
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Respondent Union is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
The Facts
On July 24, 1978,2 Charles Bizzaro sent a petition
under cover of a letter he had written to Lloyd
McBride, president of the United Steelworkers of Amer-
ica. The petition was signed by roughly 200 employees
and the cover letter was signed by 123 individuals, in-
cluding Bizzaro, whose name appears first. The cover
letter sets forth several areas of dissatisfaction., including
safety and health, and specifically registers dissatisfaction
with Elvin Miller, president of Local Union No. 5163.
On August 4, McBride, by letter, responded to Biz-
zaro, advising him that his letter of July 24 was being re-
ferred to Harry O. Dougherty, the Union's district direc-
tor.
Bizzaro testified that sometime in October he had a
conversation with Miller at Miller's work station. Miller
told Bizzaro that there would be a staff representative at
the local union hall from 12:30 p.m. until 3:31) p.m. that
day, and that the staff representative wanted to talk to
Bizzaro. Bizzaro asked Miller what it was he wanted to
talk about and Miller responded he did not know. Ac-
cording to Bizzaro, when pressed Miller stated that he
thought it was about the letters and "charges" that he,
Bizzaro, had filed. Bizzaro questioned Miller as to
whether the union representative wanted to talk to
anyone else and Miller responded that the only one he,
Miller, was told to notify was Bizzaro. Bizzaro asked
about the other individuals who had signed the letter and
Miller said he did not know anything about that. At that
point Bizzaro left Miller's work station and approached
John Batt and Barbara Culbertson, two individuals who
had also signed Bizzaro's cover letter of July 24. Bizzaro
discussed with them what Miller had told him, and, ac-
cording to Bizzaro, they indicated they did not under-
stand why he was the only one to be notified.
After some discussion they decided that they would
talk to Elvin Miller about the situation. According to
Bizzaro the discussion took place in the paint department
and essentially dealt with why he was the only individ-
ual to be notified. In the presence of Batt and Culbert-
son, Bizzaro advised Miller that, until such time as he
and the others received proper notification specifying a
time and date for a meeting, he was refusing to attend
the meeting. Then, according to Bizzaro, Miller stated
that if Bizzaro had come to him a lot of this would have
been avoided. Bizzaro testified that Miller followed this
statement with the comment that he, Miller, was going
2 All dates are in 1978, unless otherwise indicated.
3 In reproducing this document, two names were deleted.
to sue everyone that had signed the letter and the peti-
tion.
On November 3, Bizzaro and seven other individuals
sent a letter to McBride. The letter set forth the details
of the conversation he had with Miller in October. It set
forth other areas of dissatisfaction that had not been re-
solved and requested disposition within 10 days of the
receipt of the letter, or the problems referred to in the
letter would be referred to the Department of Labor.
On December 2, Elvin Miller sent a letter to the eight
individuals including Bizzaro, who were signatories to
the November 3 letter sent to McBride. This letter re-
quested the presence of these individuals at the union
hall on December 9, at 10 a.m., to discuss their com-
plaints.
The individuals referred to above attended the meeting
which was conducted by Elvin Miller. Other union rep-
resentatives, namely, Phyllis Artman, Carl Heimlich, and
Ray Jones were also in attendance. Bizzaro testified that
Miller stated at the outset that he would like to go over
some of the items that were referred to in the petition to
see if a discussion could result in some type of resolution.
A discussion ensued dealing with areas of dissatisfaction
and apparently some items were resolved. According to
Bizzaro, Carl Heimlich, International staff representative,
became upset and stated that, "Elvin [Miller] could have
sued us all." This statement, according to Bizzaro, was
made by Heimlich in response to Bizzaro's comments
that the Labor-Management Reporting and Disclosure
Act requires that members be provided with copies of
the collective-bargaining agreement and the Union's con-
stitution and bylaws. Bizzaro testified that it was at this
point Heimlich told him he was not a lawyer, he could
not interpret the law, and Heimlich made the statement
referred to earlier.
John Batt testified that he attended the meeting with
Bizzaro, Culbertson, and Miller in October or November
1978. He testified that, after 15 or 20 minutes, "Elvin
became upset and made the remark that he should sue
everyone of us that signed the petition."
Batt testified that he also attended the meeting on De-
cember 9 at the union hall. According to Batt, during the
latter part of the meeting Heimlich stated that Miller
could sue all of them. On cross-examination, Batt testi-
fied that, during the meeting he attended with Culbert-
son, Miller stated he "should sue everyone," that Miller
did not mention any specific names nor the petition.
Barbara Culbertson testified that she was present
during the meeting in October where there occurred a
conversation between Bizzaro, Batt, Miller, and her. Ac-
cording to her testimony, Miller became angry because
Bizzaro was not going to attend the meeting with Dou-
gherty. According to Culbertson, Miller stated he "could
sue each and every one of us."
Culbertson testified further that she attended the meet-
ing at the union hall where Heimlich stated "Elvin could
sue every one of us if he wanted to."
Conclusions and Analysis
There is no evidence adduced that Miller engaged in a
threat at the December 9 meeting. Accordingly, the
motion to withdraw this allegation is granted.
LOCAL UNION NO. 5163, STEELWORKERS 947
It is my opinion that the evidence in this case does not
support a finding that the Respondent engaged in acts
violative of Section 8(b)(1)(XA) of the Act, as alleged in
the complaint. First, I do not think the case hinges on
the words "could sue" or "should sue." Batt testified
that Miller stated he should sue everyone without
making any reference to the individuals who signed the
letter or the petition.
Counsel for the General Counsel cited United Associ-
ation of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry, Local Union No. 81 (Morrison Con-
struction Company, Inc.), 237 NLRB 207 (1978), to sup-
port the proposition that the conduct in the instant case
violates Section 8(b)(IXA) of the Act. He also cites Pe-
tersburgh Associates, 239 NLRB No. 150 (1978), to sup-
port the same proposition. In my opinion, the conduct
herein does not begin to rise to the level of the conduct
in those cases. They involved, inter alia, threats to sue
employees for filing charges with the Board, threats of
reprisal for filing charges with the Board, refusing to
refer members for work, fining and assessing employees
for filing charges with the Board, fining employees for
refusing to drop charges filed with the Board, and caus-
ing an employer to discharge an employee-member be-
cause he filed charges with the Board. I would certainly
agree that it is well settled that the Union violates Sec-
tion 8(b)(IX)(A) of the Act if it impedes or threatens to
interfere with an employee's access to the National
Labor Relations Board and its processes. In my opinion
these vague and isolated comments did not restrain or
coerce employees in the exercise of rights guaranteed in
Section 7 of the Act.
Nor do I believe that the conduct of the union repre-
sentatives is against public policy. Blackhawk Tanning
Co., Inc., 178 NLRB 208 (1969), is certainly not control-
ling. Bizzaro and his colleagues did not file a decertifica-
tion petition seeking to "attack the very existence of the
Union as an institution."
I perceive this case as an intraunion squabble involving
personality conflicts and intraunion politics, nothing
more.
Accordingly, I recommend that the complaint be dis-
missed in its entirety.
CONCLUSIONS OF LAW
I. Kemper Cabinets, a Division of Tappan Company,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local Union No. 5163, United Steelworkers of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent
has engaged in conduct violative of Section 8(b)(1)(A) of
the Act have not been supported by substantial evidence.
[Recommended Order for dismissal omitted from pub-
lication.]