Plumbers Local 469 (Valley Mechanical)

National Labor Relations Board - Board Decisions

Sep 22, 1986

281 N.L.R.B. 536 (N.L.R.B. 1986)

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry, AFL-
CIO, Local 469 (Valley Mechanical , Inc.) and
Frank Dean Bobnic. Case 28-CB-2255
22 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 11 October 1984 Administrative Law Judge
Richard D. Taplitz 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 of the exceptions and brief and has
decided to affirm the judge's rulings, fmdings,1 and
conclusions and to adopt the recommended
Order.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, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Indus-
try, AFL-CIO, Local 469, its officers, agents, and
representatives, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1.
"1. Cease and desist from
"(a) Preferring charges against, trying, or fining
any supervisor so as to restrain or coerce an em-
ployer in the selection of his representatives for the
purpose of collective bargaining or the adjustment
of grievances.
"(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT prefer charges against, try, or fine
any supervisor so as to restrain or coerce an em-
ployer in the selection of his representatives for the
purpose of collective bargaining or the adjustment
of grievances.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the fine assessed against Frank
Dean Bobnic, which was based on his working as a
supervisor for a nonunion contractor.
WE WILL remove from our files any reference to
the unlawful charges, trial, and fine of Frank Dean
Bobnic; withdraw the charge we filed against him
with his home local; and notify him in writing that
we have done so and that the charges, trial, and
fine will not be used against him in any way.
WE WILL refund to Frank Dean Bobnic the full
amount of any fine that he had paid in connection
with this matter, with interest.
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUS-
TRY, AFL-CIO, LOCAL 469
Kenneth D. Meadows Esq., for the General Counsel.
A. D. Ward, Esq. (Ward & Keenan, Ltd.), of Phoenix, Ar-
izona, for the Respondent.
DECISION
' In adopting the judge 's finding that Bobmc was a supervisor and ad-
justed grievances , we find it unnecessary to rely on the judge 's alterna-
tive finding regarding the "reservoir doctrine "
8 We will modify the judge 's recommended Order and notice to in-
clude the narrow injunctive language in order to conform to his Conclu-
sions of Law.
STATEMENT OF THE CASE
RICHARD D . TAPLITZ , Administrative Law Judge.
This case was tried in Phoenix, Arizona, on August 9,
1984. The charge and amended charge were filed on
May 8 and 10, 1984 , by Frank Dean Bobnic , an individ-
281 NLRB No. 89
PLUMBERS LOCAL 469 (VALLEY MECHANICAL)
ual. The complaint, which issued on June 8, 1984, and
was amended at the hearing , alleges that United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry, AFL-CIO, Local 469 (Re-
spondent or the Union) violated Section 8(b)(1)(B) of the
National Labor Relations Act.
Issue
The key issue is whether the Union violated Section
8(b)(1)(B) by charging , trying, and fining Bobnic because
he worked as a supervisor for the Company , with whom
the Union did not have or seek a collective -bargaining
relationship.
All parties were given full opportunity to participate,
to produce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs . Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and the Union.
On the entire record' of the case , and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Valley Mechanical , Inc. (the Company), an Arizona
corporation with its principal office and place of business
in Phoenix, Arizona, is a mechanical contractor in the
building and construction industry . During the year im-
mediately preceding issuance of complaint , the Company
purchased and received goods and materials valued in
excess of $50,000, which were transported in interstate
commerce and delivered to its places of business in Ari-
zona directly from points outside of Arizona . The com-
plaint alleges, the answer admits , and I find that the
Company is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Frank Dean Bobnic is a member of Local 130, United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry , AFL-CIO, which is
located in Chicago , Illinois. He worked out of that local
for about 18 years before moving to Phoenix , Arizona.
Beginning several months before his move to Phoenix,
Bobnic had several telephone conversations with repre-
sentatives of Respondent , a sister local of the same Inter-
national union . On each occasion he called Respondent's
number and asked to talk to a business agent . When the
person who represented himself to be the business agent
got on the phone , Bobnic said that he was a member of
Local 130, that he intended to move to Phoenix , and that
he wanted to submit his travel card to the Phoenix local.
On each occasion the business agent told him in sub-
I The General Counsel's unopposed motion to correct the transcript is
granted . A copy of that motion has been added to the exhibits as G.C.
Exh. 8.
537
stance that Respondent did not have enough work for its
own people who belonged to the local, that its own
people were working out of State on travel cards, and
that Bobnic was better off staying where he was. On
each occasion Bobnic told the business agent that he
would like to submit his travel card to the local and be
put on their waiting list to go out to work . Each time
the business agent answered that Respondent was not ac-
cepting travel cards and there was no work available.
In spite of the dire predictions about the availability of
work, Bobnic came to Phoenix to live on about April 20
or 21 , 1983 . As soon as he arrived, he called Respondent
and again was told by a business agent that there still
was no work, that Respondent was having a hard time
keeping its own people working , that there was no hope
of his going out to work, and that there was no use of
his coming to the hall to drop off his card because the
Union was not accepting cards.2
Bobnic made no further effort to deposit his travel
card with Respondent . Instead he sought nonunion
work.
B. Bobnic 's Nonunion Work and the Union's Action
Against Him
Bobnic was hired by the Company in mid-November
1983 as the field superintendent on a Federal prison job.
The Company was the plumbing contractor on a project
that involved the erection of 14 buildings . As field super-
intendent, Bobnic did all the hiring, firing, and disciplin-
ing of employees . After initial startup work with 2 or 3
men working under him , Bobnic had 4 to 18 employees
under his supervision . Those employees were journey-
men, plumbers , apprentices, laborers, and operators. He
had authority to hire and fire as well as discipline and
adjust grievances and was the only supervisor regularly
on the job. He adjusted grievances by resolving disputes
between the Company's employees and between employ-
ees of the Company and employees of different contrac-
tors on the job. In early April 1984 he was promoted to
the position of general superintendent for the Company.
As general superintendent he did all the hiring, firing,
and adjustment of grievances for the Company. He was
in overall charge with 5 superintendents under him, each
of whom had 2 to 12 employees under him.
The complaint alleges that Bobnic was a supervisor
within the meaning of the Act on the relevant dates
herein. The answer states that the Union is without reli-
able information about supervisory matters and therefore
denies that allegation . However, in its brief, the Union
acknowledges that Bobnic continued to work in a super-
visory capacity for the Company. The evidence clearly
establishes and I find that Bobnic was at all times rele-
vant a supervisor within the meaning of Section 2(11) of
the Act. a
Y The Union in its brief acknowledges that the Union advised Bobnic
on several occasions that there was no work available and that it was not
accepting travel cards.
8 NLRB Y. Budd Mfg. Co., 169 F.2d 571 (6th Cir. 1948); Big Rivers
Electric Corp., 266 NLRB 380, 382 ( 1983); Redi-Serve Foods, 226 NLRB
636 (1976).
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union's business representative, John L. Neigh-
bors, became aware that the Company, a nonunion con-
tractor, was on the job in December 1983 when he was
informed by the general contractor, MacCarthy Western,
that the Company was working and was not signatory to
an agreement with the Union. Neighbors visited the job-
site on three different occasions. The first was in Decem-
ber 1983 when he went there to check an allegation that
there were illegal aliens on the job. At that time he did
not speak to any of the employees of the Company. The
second visit was in January 1984 when he went to the
site to deal with problems involving a different employ-
er. At that time he asked employees of the Company
how they were getting along, who was on the job, and
what they were being paid. He did not identify himself.
The Company had five or six employees on the site. The
third visit was sometime in March 1984 when he went to
the jobsite to speak to the director of the Federal Bureau
of Prisons. That visit was a followup to a letter dated
February 15, 1984, to Russ Martin, project representa-
tive, U.S. Department of Justice, Federal Bureau of Pris-
ons. In that letter Neighbors requested an audit of the
Company, which was identified as the plumbing contrac-
tor on the Federal prison project. The letter based the
request on the Union's suspicion that the contractor was
falsifying payroll records, misclassifying plumbers as la-
borers, not paying the prevailing wage rate as required
under "the Act," and listing employees as apprentices
when it did not have a certified apprenticeship program.
A copy of the letter was sent to the U.S. Department of
Labor.
The Act mentioned in the letter appears to be the Fed-
eral Davis-Bacon Act, which requires the payment of
prevailing wage rates in the construction of public build-
ings and public works.
About February 1, Neighbors spoke to one of the
company employees in the union office. The employee
asked what they should be receiving in pay at the Feder-
al prison. The employee told Neighbors that the employ-
ees felt they were not receiving the money they should
and he asked where to go. The employee also said that
he was doing plumbing work on the job. Neighbors told
the employee what the employees should be paid. That
was the prevailing wage rate, which was also the union
scale.
On April 20, 1984, Union Business Representative
Neighbors filed intraunion charges against Bobnic. The
charge alleged that Bobnic violated the International
Union's constitution on April 17, 1984, by working at the
Federal prison job. The charge described the nature of
the offense as follows: "Frank Bobnic is a member of
Local 130, not on travel card, and working for Valley
Mechanical, a contractor not signatory to our agree-
ment." By letter dated April 24, 1984, the Union, by its
Financial Secretary Michael Wall, notified Bobnic that
the Union had accepted the charges lodged against him.
On about May 10, 1984, the Union conducted a local ex-
ecutive board hearing on the charges. Bobnic did not
attend the hearing. He was fined $500. By letter dated
May 21, 1984, Bobnic was notified of the fine. Also on
about May 21, 1984, the Union sent a "form for filing
charges" to Local 130, Bobnic's home local. It was
signed by Henry Olea, the Union's business representa-
tive, and alleged that Bobnic violated the International's
constitution at the Federal prison job on April 17, 1984,
by working in Respondent's jurisdiction without deposit-
ing a travel card for a contractor who was not signatory
to the agreement.
The fine has not been paid and the Union has taken no
further action against Bobnic.
Bobnic testified that neither the charges nor the assess-
ment of the fine affected the manner in which he did his
job with the Company.
The Respondent argues in its brief that one of the rea-
sons Bobnic was disciplined under the International con-
stitution was because he failed to deposit his travel card.
That argument needs little discussion. The law does not
require futile gestures, and it clearly would have been
futile for Bobnic to make any further effort to deposit his
card with Respondent. Respondent's representatives told
him that the Union would not accept it. In any event the
testimony of John Neighbors, Respondent's business rep-
resentative, establishes that the moving factor in the dis-
cipline against Bobnic was his work for a nonsignatory
employer and not his failure to deposit the travel card.
According to Neighbors the travel card only related to
union work because it was always a violation of the con-
stitution for a member to work for a nonunion firm
whether or not the travel card had been deposited.
Neighbors further testified that Respondent would not
accept the deposit of a travel card and allow an individ-
ual to work for a nonsignatory contractor, and would
not refer any individual to a nonsignatory contractor.
Neighbors averred that if Bobnic were to deposit his
travel card, he could still not escape the charges and the
fine unless he was willing to quit or terminate his em-
ployment with the nonsignatory contractor. I find that
the charges, trial, and fine against Bobnic were keyed to
his acceptance of work with a nonunion contractor and
that Respondent's defense, which relates to Bobnic's fail-
ure to deposit his travel card with the Union, is without
substance.4
C. Analysis and Conclusions
The central question in this case is whether a union
can use its internal procedures to discipline a member
who works in a supervisory position for a company with
whom the union does not have or seek a collective-bar-
gaining relationship.
All parties agree that there is no collective-bargaining
relationship. There is no evidence to indicate that the
Union seeks one. The Union did send a letter to the Fed-
eral Government requesting an inquiry to see whether
the Company was violating the Davis-Bacon Act and did
speak to certain employees, but there is no indication
that the Union solicited employees to join the Union or
sought to represent them.
Section 8(b)(1XB) of the Act makes it an unfair labor
practice for a labor organization to restrain or coerce
..an employer in the selection of his representatives for
4 See New Mexico District Council, Carpenters (A. S. Horner), 177
NLRB 500 (1969), enfd 454 F 2d 11 16 (10th Cir 1972)
PLUMBERS LOCAL 469 (VALLEY MECHANICAL)
the purposes of collective bargaining or the adjustment
of grievances."
Bobnic was a supervisor within the meaning of the
Act. He resolved disputes between employees of his
Company and between those employees and employees
of other companies.5 In addition he was the highest com-
pany official on the project and had broad authority. It is
reasonable to infer that if employees had grievances
against the Company, Bobnic would have the authority
to resolve them- 6
The Union charged, tried, and fined Bobnic because
he worked for a nonsignatory contractor. The Union's
action constituted a restraint or coercion of the Compa-
ny within the meaning of Section 8(b)(1)(B) of the Act.
ABC v. Writers Guild, 437 U.S. 411 (1978). The difficulty
arises in deciding whether Bobnic was the Company's
representative for the purpose of collective bargaining or
the adjustment of grievances within the meaning of Sec-
tion 8(b)(1)(B). The Company could not, in any meaning-
ful sense, have had a representative for the purpose of
collective-bargaining because there was no collective
bargaining . There was no collective-bargaining repre-
sentative of the employees, and without that there could
only be individual bargaining. The Company could have
a representative for the purpose of adjusting grievances
because employees can have grievances with or without
a collective-bargaining representative. However, there is
a serious question whether Section 8(b)(1)(B) was intend-
ed to encompass such a situation. A persuasive argument
could be made that Section 8(b)(1)(B) was intended to
keep a union from pressuring an employer into multiem-
ployer bargaining and to prevent it from having an influ-
ence on both sides of the bargaining or grievance table.'
An employer is entitled to a supervisor of his own
choosing free of union interference with relation to its
dealings with a union. In the instant case, the Union
seeks to use its internal disciplinary procedures to dis-
courage members from working for nonunion contrac-
tors. There was no evidence that the Union sought to
affect the way a supervisor performed his duties. The
Union appears to be taking the position that union mem-
bers should only work for union contractors and that it
does not matter whether that member is an employee or
a supervisor. In this case Bobnic appears to want the best
of both worlds. His actions indicate that he desires to
remain a member of the Union in good standing and at
5 The Board has held that personal as well as contractual grievances
are encompassed by Sec. 8(b)(IXB) of the Act. Norwalk Typographical
Union 529 (Hour Publishing Co.), 241 NLRB 310, 315 (1979).
6 Even in the absence of evidence that Bobnic had authority to adjust
grievances , the Board would hold that his position was encompassed by
Sec. 8(bXIXB) of the Act in that he was part of the "reservoir" from
which the Employer would select its representative for collective bar-
gaining or the adjustment of grievances . Electrical Workers IBEW Local
340 (Nutter, Inc.), 271 NLRB 995 (1984); Electrical Workers IBEW Local
11 (Bergelectric Corp.), 271 NLRB 25 (1984). But see Operating Engineers
Local 926 v. Jones, 112 LRRM 3272 (1983), in which the United States
Supreme Court held:
Of course, not every supervisor is a "representative for the purpose
of collective bargaining or the adjustment of grievances " for the pur-
pose of Section 8(bXl)(B). Florida Power & Light v. Electrical Work-
ers, 417 U.S. 790, 811, n. 21 (1974).
7 See the discussion of the legislative history in Florida Power Ca v.
Electrical Workers IBEW Local 1641, 417 U.S. 790, 802-805 (1974).
539
the same time work for a nonunion contractor, albeit in a
supervisory capacity.
The United States Supreme Court law on this issue is
not dispositive. At one point the Board held that any
work a supervisor did came within the compass of Sec-
tion 8(bXl)(B) even if it involved the performance of
rank-and-file struck work during the course of a strike.
In Florida Power Ca v Electrical Workers IBEW Local
1641, 417 U.S. 790 (1974), the United States Supreme
Court in effect held that the statute meant what it said
and that "struck work" could not be found to be "collec-
tive bargaining" or the "adjustment of grievances." To
the argument that the fine would interfere with the su-
pervisors' loyalty to the Company and therefore would
indirectly affect their role in collective bargaining and
the adjustment of grievances, the court pointed out that
the Company could lawfully insist that its supervisors be
nonunion if it were concerned with conflicts of loyalty.
In ABC v. Writers Guild, supra, the high court held
that a union could not lawfully fine supervisors for cross-
ing a picket line and performing their normal supervisory
duties, which included the adjustment of grievances. The
court held that the result was not changed because of the
fact that some of the supervisors (the directors) adjusted
grievances of employees who were not members of the
striking union but were members of a different union
with whom the Company had a collective-bargaining re-
lationship. There was still a union involved in the proc-
essing of grievances . However at footnote 36 of the deci-
sion, the court does appear to approve of the Board's
reasoning in New Mexico District Council, Carpenters
(A. S Homer), 177 NLRB 500 (1969), enfd. 454 F.2d
1116 (10th Cir. 1972), which held that a fine of a supervi-
sor who works for a company that does not have a con-
tract with a union would have the effect of requiring the
supervisor to leave the job, thus "depriving the Compa-
ny of the services of its selected representative for the
purposes of collective bargaining or the adjustment of
grievances." However, unlike the instant case, in Horner
the union had consistently sought to represent the em-
ployees of the employer. There the union lost Board-
conducted elections on June 5, 1967, and July 26, 1968.
The results of the last election was certified on Septem-
ber 6, 1968, and 1 month later, October 8, 1968, the
union filed charges against a supervisor who was work-
ing for the company. A union that claims to represent
employees may very well have a role in the adjustment
of grievances even when it is not the collective-bargain-
ing agent of a majority of the employees.
The Board appears to have little difficulty with the
problem. Under controlling Board law the absence of
any relationship between the company and the union is
immaterial in resolving an 8(b)(1)(B) case. In Electrical
Workers IBEW Local 73 (Chewelah Contractors), 231
NLRB 809 (1977), enf. denied 621 F.2d 1035 (9th Cir.
1980), petition for rehearing denied 106 LRRM 2020
(1980),s the Board adopted without comment an adminis-
a See also Electrical Workers IBEW Local 323 (Drexel Properties), 255
NLRB 1395 (1981), enfd. 703 F.2d 501 (11th Cir. 1983); Wisconsin River
Valley District Council, Carpenters (Skippy Enterprises), 218 NLRB 1063
(1975), enfd. 352 F.2d 47 (7th Ca. 1976).
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trative law judge 's decision that found that a union vio-
lated Section 8(b)(1)(B) of the Act by fining a supervisor
who worked for a company that did not have a contract
with that union . The decision found that the Horner case,
supra, was controlling . However , unlike the Chewelah
case, in Horner the union was seeking representation.
There was no discussion concerning whether the concept
of "collective bargaining" and "adjustment of griev-
ances" as used in Section 8(b)(1XB ) had relevance in the
situation where there was no collective-bargaining rela-
tionship present or being sought.
In denying enforcement of the Board 's Order, the
Ninth Circuit held, 621 F.2d at 1037:
In every decision that has come to our attention,
the union charged with violating Section 8(bXl)(B)
was the bargaining representative of the complain-
ing company 's employees . Here, IBEW neither rep-
resents Chewelah's employees nor has it demon-
strated a desire to represent the employees. The
union had no incentive to either influence Chewe-
lah's choice of bargaining representatives or affect
Anderson's loyalty to Chewelah. Further, the acts
complained of did not deprive Chewelah of a loyal
bargaining representative . IBEW's purpose was to
enforce a presumably valid bylaw which one of its
members had violated.
The union's action was also not inherently de-
structive of Chewelah's right to choose a loyal bar-
gaining representative . The representative Chewe-
lah chose was a member of a union which prohibit-
ed its members from working for non-union em-
ployers . The Board does not question the validity of
this bylaw . Anderson could have avoided the penal-
ty for violating his union's bylaw by resigning from
the union before he started work for Chewelah.
A union does not violate Section 8(b)(1)(B) by
disciplining a member, even though that member is
also the bargaining representative of an employer, if
the union neither represents nor shows an intent to
represent the employer's employees.
Enforcement of the Board's order is denied.
The Board had occasion to again consider the situation
in Plumbers Local 364 (West Coast Contractors), 254
NLRB 1123 (1981). There a supervisor was fined for fail-
ing to take the union 's side in a labor dispute over the
enforcement of a collective-bargaining agreement.
Though the case was clearly distinguishable from Chewe-
lah, supra , the administrative law judge noted in his deci-
sion that the Board 's position in Chewelah appeared to
have the support of the Supreme Court and of other
courts . He stated that the United States Supreme Court
in ABC v. Writers Guild, supra, endorsed the Board's de-
cision in the Horner case, supra, which found an
8(b)(1)(B) violation "where the respondent union did not
represent the employees of the coerced employer." How-
ever, in the Horner case, as discussed above, the union
sought to represent the employees and may well have
had a role in the adjustment of grievances. The Board
adopted the administrative law judge's decision without
comment.
In recent cases the Board has consistently held that
there need be no collective-bargaining relationship be-
tween the company and the union for a violation of
8(bx1)(B) of the Act to exist . Thus in Electrical Workers
IBEW Local 11 (Bergelectric Corp.), supra, the Board re-
ferred with approval to Bricklayers (McCleskey Construc-
tion), 241 NLRB 898 (1979), in which a violation was
found when "a local fined a supervisor -member for
working for an employer that did not have a contract
with the local ." In Electrical Workers IBEW Local 340
(Nutter Inc), supra, Administrative Law Judge Jay Pol-
lack discussed the problem in detail and came to the
same conclusion . The Board adopted his decision with-
out comment.
Though the Ninth Circuit Court of Appeals in refusing
to enforce the Board 's Order in the Chewelah case, supra,
has adopted a position that is completely inconsistent
with that of the Board , I am constrained to follow the
Board rather than the circuit court law. Controlling
Board policy requires administrative law judges to
follow Board rather than circuit court law when there is
a conflict between the two, until such time as the Su-
preme Court has ruled . Bricklayers Local 17 (California
Tile), 271 NLRB 1571 (1984); Regency at the Rodeway
Inn, 255 NLRB 961 fn. 2 (1981); Iowa Beef Packers, 144
NLRB 615 (1963), enf. denied in part 331 F.2d 176 (8th
Cir. 1964).9
For the reasons stated above, I find that the Union
violated Section 8(b)(1)(B) of the Act as alleged in the
complaint.
CONCLUSION OF LAW
By preferring charges against and trying and fining
Bobnic, the Union restrained and coerced the Company
in the selection and retention of its representative for the
purpose of collective bargaining and the adjustment of
grievances , and thereby engaged in unfair labor practices
within the meaning of Section 8(b)(1)(B) of the Act.
THE REMEDY
Having found that the Union 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.
Having found that the Union unlawfully fined Bobnic,
I shall recommend that the Union be ordered to rescind
that fine. As of the date of the trial Bobnic had not paid
In the Iowa Beef Packers case the Board reiterated what it had stated
in prior cases:
It has been the Board 's consistent policy for itself to determine
whether to acquiesce in the contrary views of a circuit court of ap-
peals or whether , with due deference to the court's opinion, to
adhere to its previous holding until the Supreme Court of the United
States has ruled otherwise. But it is not for a Trial Examiner [now
administrative law judge] to speculate as to what course the Board
should follow where a circuit court has expressed disagreement with
its views On the contrary, it remains the Trial Examiner's duty to
apply established Board precedent which the Board or the Supreme
Court has not reversed Only by such recognition of the legal au-
thority of Board precedent, will a uniform and orderly administra-
tion of a national act, such as the National Labor Relations Act, be
achieved
PLUMBERS LOCAL 469 (VALLEY MECHANICAL)
any part of the union fine. If since that time all or part of
the fine has been paid, the Union is to refund that money
to him with interest to be computed in the manner set
forth in Florida Steel Corp., 231 NLRB 651 (1977).
It is further recommended that the Union be ordered
to remove from its files any reference to the unlawful
charge, trial, and fine of Bobnic , withdraw the charge it
filed against him with his home local , and notify Bobnic
in writing that it has done so and the charge , trial, and
fine will not be used against him in any way.
On these findings of fact and conclusions of law and
oon the record, I issue the following recommended"
ORDER
The Respondent , United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Indus-
try, AFL-CIO, Local 469, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from preferring charges against,
trying, or fining any supervisor so as to restrain or
coerce an employer in the selection of his representatives
for the purpose of collective bargaining or the adjust-
ment of grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the fine assessed against Frank Dean
Bobnic that was based on his working as a supervisor for
a nonunion contractor.
10 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. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
541
(b) Remove from its files any reference to the unlawful
charges, trial, and fine of Frank Dean Bobnic; withdraw
the charge it filed against him with his home local; and
notify him in writing that it has done so and that the
charges, trial, and fine will not be used against him in
any way.
(c) Refund to Frank Dean Bobnic the full amount of
any fine that he has paid in connection with the above
matter, with interest, as is set forth in the remedy section
of this decision.
(d) Post at its offices and meeting halls copies of the
attached notice marked "Appendix.""' Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Furnish the Regional Director with signed copies
of the aforesaid notice for posting by Valley Mechanical,
Inc., if that company is willing to post it.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
11 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."