Petition — International Brotherhood of Electrical Workers, Local Union No. 323, Afl-Cio v. National Labor Relations Board

Supreme Court brief1983

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JUL_ 25

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IN THE i

Supreme Court of the Gnited States

OCTOBER TERM, 1983

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

LocaL UNION No. 323, AFL-CIO,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

ELEVENTH CIRCUIT

JOSEPH C. SEGOR JoseEPH H. KAPLAN

Counsel of Record KAPLAN, SICKING, HESSEN, SUGARMAN,

9785 S.W. 146th Street RosENTHAL & De Castro, P.A.

Miami, Florida 33176 P.O. Drawer 520337

(305) 233-1380 Miami, Florida 33152

(305) 325-1661

I I ea ES SES ED)

PRESS OF BYRON S&S ADAMS PRINTING. INC.) WASHINGTON. 16

QUESTION PRESENTED

Whether it is a violation of § 8(b)(1)(B) of the National

Labor Relations Act for a union to discipline a member,

who is also a supervisor, where:

(a) The union does not represent the employer's

employees and does not display a representa-

tional interest in the employees.

(b) The discipline was imposed because the union

member performed an employer function, con-

trary to union rules, by using his master electri-

clan's license to obtain required governmental

permits.

TABLE OF CONTENTS

Page

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each cise ccectcccsccceccccs 2

PEDERAL STATUTE INVOLVED ................cccccc, 2

a 2

REASONS FOR GRANTING THE WRIT ..............0000 5

I. The Court Of Appeals Extended The Reach Of § &(B)

(1) (B) Of The NLRA Beyond Its Permissible

Boundary When It Ruled That The Union Violated

ag Section By Discipling A Supervisor Member ;

MITEMOWSG Ye deal ccnccscccccvccecccces 5

(a) The Union Did Not Represent The

Employer's Employees And Did Not

sg oe A Representational Interest

In The Employees. .............. 5

(b) The Discipline Was Imposed Because

The Union Member Performed An

Employer Function, Contrary To

Union Rules, By Using His Master

Electrician's License To Obtain Re-

quired Governmental Permits. ....

A. Previous Decisions Construing § 8(b)(1)(B). .

B. The Present Case Raises Questions Regarding

The Remoteness Of The Union From The Em-

ployer And The Nature Of The Suspect Activ-

ity That Are Not Answered By This Court's

eee 6

1. The union was too remote from the em-

ployer for its disciplinary actions to trans-

eee 6

2. A union member who uses his license to

obtain essential permits engages in an en-

treprenuerial activity and should properly

be treated as the functional equivalent of

an owner for purposes of § &(b)(1)(B). .. 8

oor

iii

Table of Contents Continued

Page

CMNCE TIMING sooo on va 6 oowes en te ee ne ll

CRRTHICATE OF SERVICE. ooo scccc ues ee 12

TABLE OF AUTHORITIES

CASES: Page

American Broadcasting Companies, Inc. v. Writer's

Guild of America, West, Inc. 473 U.S. 411, 98 S.Ct.

SURs, G7 Lad SA G18 C9TS) ois ccc cec scars. &E

Florida Power and Light Co. v. International Brother-

hood of Electrical Workers, 417 U.S. 790, 94 S.Ct.

Siot, 1 LB OTT GID) os ievscsvecs. 5, 6, 9

Glaziers and Glassworkers, Local 1621, 211 NLRB 509

ne ees oe adaware ck aacheKk a

International Brotherhood of Blectrical Workers, Local

No. 323 (Drexel Properties, Inc.) and John E. Wil-

SoU. ee SOR OO, OE 5 cc ec one 4 nawaeeca cos l

NLRB vy. Intr. Brotherhood of Electrical Workers, Local

Union #323, 703 Fed. Second 501 1983 .... 1, 8, 9, 10

New Mexico Council of Carpenters (A.S. Horner, Inc.),

ug png 500 (1969) enforced 454 F2d 1116 (10th ;

Bp SEED, Snka Fata seabentectersraceehesesecees ‘

NLRB vy. International Brotherhood of Electrical Work-

ers, Local 73 (Chewelah Contractor's Inc.), 621 F2d

ee en Ce OD rice cwaa Geass neteee a iy

San Francisco-Oakland Mailers’ Union No. 18, 172

DEMERS ru eas che aa: onak bee ebeeneaes 7

STATUTES:

National Labor Relations Act Section &(b)1(B) 29 USC

CERES os ok ns ccs ecndu ase: 2, 3, 5, 6, 7, 8

BR Is ae oad wumiea eee 2

ts Ein hse ing Pigg A age at an 2

ee Ee rain eee ek Cees ss aksweeens su cue pn es 2

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1983

PR Scenes

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

LocaL Union No. 323, AFL-CIO,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

ELEVENTH CIRCUIT

International Brothernood of Electrical Workers, Lo-

cal Union No. 323, AFL-CIO, respectfully prays that a

Writ of Certiorari be issued to review the Judgment of

the United States Court of Appeals for the Eleventh

Circuit entered April 18, 1983.

OPINIONS BELOW

The decision and order of the National Labor Relations

Board is reported at 255 NLRB No. 182 and is printed in

the appendix at pages 37a-42a. The opinion of the United

States Court of Appeals for the Eleventh Circuit is re-

ported at 703 F.2d 501 (11th Cir. 1983) and is reproduced

in the appendix at pages la-l4a.

JURISDICTION

The Judgment of the Court of Appeals was entered on

April 18, 1983. The jurisdiction of this court is pursuant to

28 USC § 1254(1).

FEDERAL STATUTE INVOLVED

This case involves § 8(b)(1)(B) of the National Labor

Relations Act, 29 USC § 158(b)(1)(B).

“Section (b). It shall be an unfair labor practice for a

labor organization or its agents—(1) to restrain or

coerce ... (B) an employer in the selection of his

representatives for the purpose of collective bargain-

ing or the adjustment of grievances... .”

STATEMENT OF THE CASE

This court is asked to review a judgment of the Court of

Appeals for the Eleventh Circuit enforcing an order of the

NLRB. ' The order held that Local No. 323 of the IBEW

had committed an unfair labor practice in violation of

§ 8(b)(1)(B) of the NLRA by disciplining and expelling a

member who performed supervisory functions for his

employer.

The charge alleged that the Union had unlawfully dis-

ciplined the member, John Willey, because he was work-

ing for a non-Union electrical contractor and because he

used his master electrician’s certificate to obtain county

permits required by his employer in order that it might

engage in its contracting business.

The Board adopted the administrative law judges’ rul-

ing that disciplining a supervisor member because he

works for a non-Union employer violates § 8(b)(1)(B),

‘The Court of Appeals had jurisdiction under § 10(e) of the Nation-

al Labor Relations Act, 29 USC §$§ 151, 160(e).

citing the Board’s previous holding in New Mexico Coun-

cil of Carpenters (A. S. Horner, Inc.), 177 NLRB 500

(1969) enforced, 454 F.2d 1116 (10th Cir. 1972).

The Board majority also rejected Chairman F anning’s

argument in dissent, that discipline imposed on Willey

because he was using his master’s license to obtain elec-

trical permits for his employer did not come within the

reach of § 8(b)(1)(B).

On appeal, the 11th Circuit rejected the Union’s re-

liance on the 9th Circuit’s opinion in NLRB v. Interna-

tional Brotherhood of Electrical Workers, Local 732

(Chewelah Contractor’s, Inc.), 621 F.2d 1035 (9th Cir.

1980). The 11th Circuit declined to adopt the holding in

Chewelah that a Union does not act contrary to

§ 8(b)(1)(B) if it neither representgnor displays a repre-

sentational interest in the company’s employees.

The court also rejected the argument that the use of

Willey’s license to “pull” permits went beyond his duties

as a supervisor and was in reality, so intimate and neces-

sary an element of the business that it was the functional

equivalent of an ownership interest.

BACKGROUND

John Willey was a long-time member of the IBEW.

Prior to migrating to Florida in 1970, he had been a

member of Local 725 in Terre Haute, Indiana. After his

arrival in Florida, he obtained a work permit from Local

323 and obtained employment through its hiring hall.

In late 1975 Willey was employed by Drexel Prop-

erties, Inc., anon-Union employer, as its electrical super-

intendent. As such, he performs supervisory activities

within the meaning of the statute. He does not own shares

in the business and receives a salary for his work.

MASTER'S CERTIFICATE

Willey is certified as a master electrician. This

certification qualifies him to operate as an electrical con-

tractor. By reason of this qualification he can obtain elec-

trical work permits for Drexel. These permits are a pre-

requisite to Drexel being able to legally perform electrical

contracting work.

Willey regularly “pulls” permits for Drexel. In so do-

ing, he accepts legal responsibility for the performance of

the electrical work covered by the permit.

CHARGES

Beginning on September 16, 1977, Willey was twice

charged with violations of the IBEW Constitution* and

the working agreement between Local 323 and area

Union employers.’ The violations alleged were that he

worked for a non-Union contractor and that he used his

? The Constitutional provisions were Art. XX VII, $ 1, subsections

10 and 21:

ARTICLE XXVII

MISCONDUCT, OFFENSES AND PENALTIES

sec. 1. Any member may be penalized for committing any one or

more of the following offenses:

(10) Working in the interest of any o ization or cause which

is detrimental to, or opposed to, the IBEW.

(21) bs for any individual or company declared in diffi-

culty witha L.U. orthe IBEW, in accordance with this Constitu-

tion.

‘The pertinent provision of the area working agreement reads,

ARTICLE II

EMPLOYER RIGHTS—UNION RIGHTS

Section 2.01. No member of the International Brotherhood of

Electrical Workers, or other employees, subject to employment

by employers operating under this agreement, s himself

become an employer for the performance of any electrical work.

master’s license to obtain permits for his employer. Wil-

ley was fined on both occasions and ultimately expelled

from the Union.

REASONS FOR GRANTING THE WRIT

The Court Of Appeals Extended The Reach Of § *‘b)(1)(B) Of

The NLRA Beyond Its Permissible Boundary When It Ruled

That The Union Violated That Section By Disciplining A

Supervisor Member Where:

(a) The Union Did Not Represent The Employer's Em-

ployees And Did Not Display A Representational

Interest In The Employees.

(b) The Discipline Was Imposed Because The Union

Member Performed An Employer Function, Con-

trary To Union Rules, By Using His Master Electri-

cian’s License To Obtain Required Governmental

Permits.

A. Previous Decisions Construing § 8(b)(1)(B)

This court, on two occasions, has explored the outer

limits of § 8(b)(1)(B) of the NLRA. In Florida Power and

Light Co. v. International Brotherhood of Electrical

Workers, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477

(1974) the court held that the section was not violated

when a Union disciplined member supervisors for cross-

ing Union picket lines to perform work that would other-

wise have been performed by striking non-supervisory

employees.

The court came to the opposite conclusion in American

Broadcasting Companies, Inc. v. Writer's Guild of

Any member, or other employee, possessing a masters license

while employed under the terms of this agreement, shall main-

tain same on an inactive status. Any employer working under

this agreement shall not take out a permit or master a job for any

other person or firm, except in the case of a true joint venture.

America, West, Inc., 487 U.S. 411, 98 S.Ct. 2423, 57

L.Ed.2d 313 (1978). American Broadcasting held that

the provision was violated where supervisor members

crossed picket lines to perform their normal supervisory

duties.

Both of these cases focused on the question of whether

the discipline “. . . adversely affected the supervisor's

conduct in performing the duties of, and acting in his

capacity as, grievance adjuster or collective bargainer on

behalf of the employer.” 417 U.S. at 804, 805, 437 U.S. at

424. The result turned on the nature of the activity that

provoked the discipline.

This court found a violation where the activity was

connected to the member’s supervisory duties and held

that no violation had occurred where the suspect activity

was unconnected to those duties.

B. The Present Case Raises Questions Regarding The

Remoteness Of The Union From The Employer And The

Nature Of The Suspect Activity That Are Not Answered

By This Court’s Previous Decisions.

1. The union was too remote from the employer for its

disciplinary actions to transgress § 8(b)(1)(B).

Florida Power and Light, supra, and American

Broadcasting, supra, both involved unions that repre-

sented the company’s employees and discipline that arose

out of activities occurring during an economic strike.

Neither of these elements exist in the present case. Local

323 does not represent Drexel’s employees and the Board

did not make a finding that the Union displayed a repre-

sentational interest in the company’s employees.

The 9th Circuit in NLRB vy. International Brotherhood

of Electrical Workers, Local Union No. 73, (Chewelah

Contractor’s Inc.), 621 F.2d 1035 (1980) held that under

such circumstances a violation did not occur. In

Chewelah, the union member had been disciplined be-

cause he violated a Union by-law prohibiting members

from obtaining employment with non-Union employers. ,

The rationale for the 9th Circuit’s Chewelah decision

was the remoteness of the Union from the employer.

Obviously, there must be some point at which the rela-

tionship between the Union’s activity and the employer

becomes so remote that there is no nexus between the

discipline and the underlying policy supporting

§ 8(b)(1)(B).

The section was enacted to prevent unions from re-

straining or coercing employers in the selection of their

representatives for the purposes of collective bargaining

or the adjustment of grievances. While it is recognized

that indirect, as well as direct, coercion is prohibited, San

Francisco-Oakland Mailers’ Union No. 18, 172 NLRB

2173, the statute cannot be construed to prevent all dis-

cipline of union members who happen, also, to be super-

visors.

If the opposite rule was to prevail, then a union would

commit an unfair labor practice if it expelled a supervisor

member who, under orders from his employer, refused to

pay dues. The expulsion would face the employee with the

choice of losing accumulated union benefits or finding a

more sympathetic employer. If he chose to abandon his

present employment, rather than lose his benefits, it

could be said that the union’s action had the effect of

restraining the employer's choice of his representative.

Nevertheless, it would be preposterous to argue that a

union is prohibited by § 8(b)(1)(B) from enforcing a uni-

form dues policy as to all of its members.

The 9th Circuit recognized this when it held that a

uniform policy against non-Union employment could be

enforced because the connection to the employer was too

remote. The 11th Circuit, in this case, rejected the 9th

Circuit’s approach and simplisticly held that any act hav-

ing “. . . the effect of restraining the employer's choice

ia of his supervisor violates the Act, 703 F.2d at 506.

It is submitted that the “any effect” test goes far

beyond this court’s previous holdings and potentially sub-

jects unions to adverse action by the Board for numerous

acts relating to their internal management, simply be-

cause those acts impact upon members who also happen

to be supervisors.

The direct and express conflict between the decision in

this case and the decision in Chewehela should be resolved

by this court because of the potential impact upon unions

of the “any effect” test. The uncertainty that this test

engenders will have a chilling effect upon unions and will

inhibit them from engaging in otherwise permissible acti-

vities for fear that a remote employer, with whom they

have no contact, might file an unfair labor practice

charge. This court should resolve that uncertainty.

2. Aunion member who uses his license to obtain essential

permits engages in an entreprenuerial activity and

should properly be treated as the functional equivalent

of an owner for purposes of § 8(b)(1)(B).

The Board has consistently held § &(b)(1)(B) inapplica-

ble in cases where the member is the owner of the busi-

ness. See, Glaziers and Glassworkers, Local] 1621, 211

NLRB 509 (1975). The Union argued in the Court of

Appeals that Willey’s use of his masters license to obtain

required permits for Drexel was not a supervisory func-

tion. Instead, it was an ownership function which, for

§ 8(b)(1)(B) purposes, made Willey the equivalent of an

owner.

The 11th Circuit rejected this argument on the basis

that the Union confused ownership with management

duties. It said that supervisors are managerial agents for

the employer and perform numerous tasks closely associ-

ated with the employer's role. The court further stated

that the reason the owner of a business is not covered by

the statute is that he has a personal stake in the business

and thus, would not be influenced in the performance of

his grievance-adjustment or collective bargaining func-

tion because, any decision he makes, directly works to his

benefit or detriment depending upon how he decides it,

703 F.2d at 507.

This begs the question. The employer is the adversary

in the context of labor relations. Organizations that rep-

resent workers have good reason to prohibit employer

membership. It is usually wise to keep the camel’s nose

out of the tent lest he wriggle his way inside, altogether.

There is a rational basis, especially in the construction

industry, for distinguishing between supervisors and

owners. Members in the construction industry often

move back and forth between rank and file and superviso-

ry jobs. Provisions are therefore made to permit super-

visors to retain some form of union membership, see

Florida Power and Light, supra, n.6, 417 U.S. at 796.

A union has an interest in keeping its supevisor *m-

bers because many of them can reasonably be expected to

return to rank and file status. This interest does not

necessarily carry over to the much smaller group who

become employers. The adversary nature of the labor-

employer relationship may reasonably prevail over the

union’s desire to retain its membership.

The Court of Appeals correctly noted that “. . . mere

labels do not control the existence or absence of a viola-

tion.” 703 F.2d at 506-507, n.10. It failed to apply this rule

to the question of who is the employer. The Union con-

tends that if an employee performs a function that is so

uniquely necessary to the functioning of the enterprise

that without it the enterprise cannot function, then, the

employee should be deemed the functional equivalent of

an owner.

An example might illuminate this issue. Suppose that a

union member put up the capital for a business and oper-

ated the business as its chief manager. At the same time,

he put all of the stock in the name of his spouse and the

spouse took no part in the operation of the business.

Under these circumstances, would a court look beyond

labels and find that the member was the “functional”

equivalent of the employer.

If the answer is conceivably yes, then the Court of

Appeals’ rejection of the Union’s functional argument

should be re-examined. The Union contends that Willey’s

masters license is the functional equivalent of capital in

the electrical contracting business. When he used his

license to “pull” permits, his contribution was the func-

tional equivalent of supplying capital. The fact that he did

not gain an ownership interest is irrelevant. What is

important is that he so closely allied himself with the

employer, that he moved beyond mere management and

for purposes of the license, became part of the employer.

Because of the widespread use of employee permits in the

construction industry, this court should examine the

issue with a view toward defining the tests necessary to

distinguish between a union’s legitimate interest in ex-

cluding employers from membership and improper coer-

cion of supervisory personnel.

CONCLUSION

Wherefore, Petitioner respectfully prays that a Writ of

Certiorari be granted.

Joseph H. Kaplan

Joseph C. Segor

JOSEPH C. SEGOR

Counsel of Record

Miami, Florida 33176

(305) 233-1380

JOSEPH H. KAPLAN

ROSENTHAL & DE Castro, P.A.

P.O. Drawer 520337

Miami, Florida 33152

(305) 325-1661

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that on the ___ day of __.,

1983, three true and correct copies of the foregoing Peti-

tion for Writ of Certiorari to the United States Court of

Appeals for the Eleventh Circuit were served on Counsel

for the Respondent by depositing the same in the United

States mail with first class postage prepaid and addressed

to: Elliott Moore, Deputy Associate General Counsel,

National Labor Relations Board, 1717 Pennsylvania Ave-

nue, S.W., Washington, D.C. 20570.

Joseph C. Segor

INDEX TO APPENDIX

“hike Page

. Opinion of the United States Court of Appeals for the

Eleventh Circuit in National Labor Relations

Board, Petitioner v. International Brotherhood of

Electrical Workers, Local Union No. 323, Respon-

GONE Soo oe cede nec an Coe bee e caverns es la

Proposed Decision of the Administrative Law

A MEP epee rere i Corer Pee ees l5a

Decision and Order of the National Labor Relations

Deas. FS Piles POO. Se i co decew ean eese 37a

APPENDIX A

UNITED STATES COURT OF APPEALS, ELEVENTH CIRCUIT

No. 81-6108

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

INTERNATIONAL BOARD OF ELECTRICAL WORKERS,

LocaL UNION No. 323,

Respondent.

April 18, 1982

National Labor Relations Board petitioned for enforcement

of order directed against labor union for alleged unfair labor

practice in disciplining and expelling a member. The Court of

Appeals, Albert J. Henderson, Circuit Judge, held that it was

an unfair labor practice to discipline member who was electric-

al superintendent for land developer, notwithstanding that

union did not represent developer's employees or that member

used his master’s license to obtain electrical permits.

Enforcement ordered.

Application for Enforcement of An Order of the National

Labor Relations Board.

Before HENDERSON and HaTcHETT, Circuit Judges, and TUT.

TLE, Senior Circuit Judge.

ALBERT J. HENDERSON, Circuit Judge:

The National Labor Relations Board (Board) petitions this

court to enforce an order directed against the respondent,

Local Union 323 of the International Brotherhood of Electrical

Workers (Union), for an alleged unfair labor practice in viola-

tion of § 8(b)(1)(B) of the National Labor Relations Act, 29

U.S.C. § 158(b)(1)(B). We enforce the order.

The facts are essentially undisputed. In 1970, John Willey, a

longtime member of the International Brotherhood of Electric-

al Workers (IBEW), moved to Palm Beach County, Florida.

He obtained a work permit from the local IBEW chapter, Local

323, and secured an electrician’s job through the Union’s hiring

hall. He retained his official membership with his former local

chapter of the IBEW in Terre Haute, Indiana.

In 1974, Willey passed the county’s master electrician exam-

ination and received a certificate of competency. This

authorization enabled him either to operate as a contractor or

to apply for the required electrical permits on behalf of other

contractors. Soon after acquiring master electrician status,

Willey and a partner formed their own electrical contracting

business. At that time, he allowed his working permit with the

local Union to expire, although he continued to pay mem-

bership dues.

The following year, Willey sold his business and accepted a

position as the electrical superintendent for Drexel Properties,

Inc. (Drexel). Drexel is engaged in land deveopment and resi-

dential and warehouse construction. The company is a nonun-

ion employer and has no contract with Local 323. In his capac-

ity as superintendent, Willey supervised all of the electrical

contracts performed in the company’s construction projects.

His responsibilities include the hiring and firing of electricians,

handling employee complaints concerning working conditions

and equipment safety, imposing disciplinary sanctions, making

work assignments, and approving vacation requests.

Additionally, he utilizes his master’s certificate to obtain coun-

ty permits on behalf of Drexel. By law, he is required to accept

supervisory responsibility for all electrical work performed

pursuant to those permits. As compensation, Willey receives a

salary; he does not share in Drexel’s profits nor does he hold

any ownership interest in the company.

In 1977, the business manager of Local 323 preferred writ-

ten charges against Willey, accusing him of “running a nonun-

ion electrical contracting business.” He charged that Willey

had violated the IBEW Constitution.' During the ensuing

trial, Willey and the Union officials discussed the fact that he

secured electrical work permits for Drexel through the use of

his master’s certificate. The trial board informed him that this

practice violated the working agreement between Local 323

and area union employees.’ One member advised Willey to quit

his job and leave the area.’ Soon afterward, Willey was found

‘The constitutional provisions cited in the charge were Article

XXVII, § 1, subsections 10 and 21:

ARTICLE XXVII

MISCONDUCT, OFFENSES AND PENALTIES

sec. 1. Any member may be penalized for committing any one or more

of the following offenses:

(10) Working in the interest of any organization or cause which is

detrimental to, or opposed to, the I.B.E.W.

(21) Working for any individual or company declared in difficulty

with a L.U. or the I.B.E.W., in accordance with this Constitution.

*The pertinent provision of the area working agreement reads,

ARTICLE II

EMPLOYER RIGHTS—UNION RIGHTS

Section 2.01. No member of the International Brotherhood of

Electrical Workers, or other employees, subject to employment by

employers operating under this agreement, shall himself become an

employer for the performance of any electrical work. Any member,

or other employee, possessing a masters license while employed

under the terms of this agreement, shal] maintain same on an inactive

status. Any employer working under this agreement shall not take

out a permit or master a job for any other person or firm, except inthe

case of a true joint venture.

‘During the subsequent hearing before an Administrative Law

Judge (ALJ), the officer denied having ever made that remark. The

ALJ, however, credited Willey’s account of the conversation. We

may not disturb a finding based upon a credibility determination. See

NLRB v. Pope Maintenance Corp. 573 F.2d 898, 905 (5th Cir. 1978).

guilty of violating the two constitutional provisions and was

fined $1,000.00 for each infraction. In a letter to Willey, the

tribunal agreed to suspend part of the fine if he would “get

right with the Local Union within 30 days and commit no

further violations for a period of one year.”

Willey then appealed to an International Vice President of

the Union. That official affirmed the trial board's decision and

noted that Willey had not contested the fact that he was “em-

ployed by a firm who does not have an agreement with Local

323." He also pledged to reduce the fines, contingent upon

Willey’s “immediate cessation of the violation.” Subsequently,

Willey continued to pursue his appeal in correspondence to

various IBEW officers.

Before the Union ever informed Willey that he had ex-

hausted his appeals, another member of Local 323 filed new

accusations against him citing the same two constitutional

provisions as the earlier charge, and also claiming a violation of

the area working agreement. Willey was adjudged guilty of all

three violations and fined an additional $5,150.00. The union

offered to suspend the second set of fines if Willey would pay

the fine outstanding on the first charge. Insisting that he was

still appealing the original decision and that he intended to

appeal the second set of charges, he refused. Consequently,

the trial board expelled Willey from membership in the IBEW.

As a result of these actions, the Union was charged with an

unfair labor practice, i.e., a violation of § &(b)(1)(B), which

proscribes the restraint or coercion of an employer in the

selection of his representative for the purposes of collective

bargaining or the adjustment of grievances. After a hearing,

the Administrative Law Judge (ALJ) found that the 1977 fines

were imposed for “working for a nonunion contractor.” The

ALJ also concluded that the second set of violations concerned

his association with a nonunion employer and his use of his

master’s certificate for the benefit of Drexel. In his view, these

sanctions constituted unlawful coercion under § 8(b)(1)(B).

The ALJ rejected the Union's contention that the statute did

not apply to its conduct because Willey was an employer.

Based on these findings, the ALJ recommended a cease and

desist order enjoining further violations, as well as various

types of affirmative relief.

The Union filed exceptions to the ALJ's findings. On review,

the National Labor Relations Board adopted all of the ALJ's

pertinent findings and conclusions of law. The Board members

unanimously agreed that the union acted in violation of

§ 8(b)(1)(B) by disciplining Willey for his employment with a

nonunion firm. A majority of the Board also characterized the

fine imposed for using the master’s certificate as “part and

parcel of the same violation.” One member, however, ex-

pressed a contrary view. The Board now seeks to enforce its

order.

Section 8(b) provides in pertinent part that “{iJt shall be an

unfair labor practice for a labor organization or its agents—(1)

to restrain or coerce. . .(B) an employer in the selection of his

representatives for the purposes of collective bargaining or the

adjustment of grievances.” Since the 1968 decision in San

Francisco-Oakland Mailers’ Union No. 18, 172 NLRB 2173,

the Board—with judicial acquiescence—has construed the

statute to prohibit not only direct pressure on an employer, but

also coercion aimed at the supervisor, which indirectly affects

the employer's selection. See American Broadcasting Cos. v.

Writer’s Guild of America, West, Inc., 437 U.S. 411, 429, 98

S.Ct. 2423, 2433-34, 57 L.Ed.2d 313, 328 (1978); see generally

Florida Power & Light Co. v. International Brotherhood of

Electrical Workers, 417 U.S. 790, 800-01, 94 S.Ct. 2737, 2742-

43, 41 L.Ed.2d 477, 485-86 (1974). In spite of this expansive

interpretation, the reach of § 8(b)(1)(B) is not without restric-

tion. In two cases decided during this past decade, the Su-

preme Court examined the “outer limits” of the statute's appli-

cation. See, e.g., Florida Power & Light, 417 U.S. at 805, 94

S.Ct. at 2745, 41 L.Ed.2d at 488. A closer look at the provi-

sion’s “outer limits” will demonstrate that the Union's actions

in this case fall within those parameters, thereby constituting

prohibited conduct.

The Court in Florida Power & Light faced the issue whether

punitive measures taken by a union against supervisory per-

sonnel for crossing picket lines to perform duties customarily

undertaken by rank-and-file employees contravened

§ 8(b)(1)(B). Without repudiating the San Francisco-Oakland

Mailers’ doctrine, the Court refused to extend the statute to

immunize a supervisor's performance of rank-and-file work.

Id. at 805, 94S.Ct. at 2745, 41 L.Ed.2d at 488. According to the

Court, it was the purpose of Congress to protect an employer's

“selection of its representatives for the purposes of collective

bargaining and grievance adjustment.” /d. at 804, 94S.Ct. at

2744, 41 L.Ed.2d at 488 (emphasis in original). For that reason,

the Court said,

(t]he conclusion is thus inescapable that a union's dis-

cipline of one of its members who is a supervisory employ-

ee can constitute a violation of § &(b)(1)(B) only when that

discipline may adversely affect the supervisor's conduct in

performing the duties of, and acting in his capacity as,

grievance adjuster or collective bargainer on behalf of the

employer.

Id. at 804-05, 94 S.Ct. at 2744-45, 41 L.Ed.2d at 488. Finding

that the union discipline did not affect the supervisors’ per-

formance of the pertinent duties, the Court held that the

Union's conduct did not violate the statute. /d. at 805, 94S.Ct.

at 2745, 41 L.Ed.2d at 488.

In American Broacasting Cos., the Court had occasion to

consider the implications of its holding in Florida Power &

Light. The union involved in that case ordered its supervisory

members not to cross picket lines, even to perform their

supervisory duties. Some of the members obeyed the direc-

tive, and the ones who did not were subsequently penalized by

the union. In its evaluation of the legality of the union’s actions,

the Court reiterated the inquiry originally formualted in Flor-

ida Power & Light. Union discipline of a supervisor con-

travenes § &(b)(1)(B) ifthat coercion “may adversely affect” his

performance of grievance adjustment or collective bargaining

responsibilities. American Broadcasting Cos., 437 U.S. at

429, 98 S.Ct. at 2484, 57 L.Ed.2d at 328; see Florida Power &

Light, 417 U.S. at 804-05, 94 S.Ct. at 2744-45, 41 L.Ed.2d at

485. Applying that test to the facts before it, the Court con-

cluded that the requisite “adverse” effect was present. As for

the supervisors kept from work by union pressure, the opinion

stated that the “employer was restrained and coerced within

the meaning of § 8(b)(1)(B) by being totally deprived of the

opportunity to choose these particular supervisors as his

collective-bargaining or grievance-adjustment representa-

tives during the strike.” American Broadcasting Cos., 437

U.S. at 482, 98S.Ct. at 2435, 57 L.Ed.2d at 329. Similarly, the

Court agreed with the Board that the discipline imposed on

those members who actually crossed the picket lines could

influence the performance of their grievance-adjustment

duties and therefore deprive the employer of “the full range of

services from his supervisors.” Jd. at 434, 98 S.Ct. at 2436, 57

L.Ed.2d at 331. The Court reasoned that “(uJnion pressure on

supervisors can affect either their willingness to serve as

grievance adjustors or collective bargainers, or the manner in

which they fulfill these functions; and either effect

impermissibly coerces the employer in his choice of represent-

ative.” Jd. at 436, 98 S.Ct. at 2437, 57 L.Ed.2d at 332; see also

NLRB vy. System Council T-6, International Brotherhood of

Electrical Workers, 599 F.2d 5, 9 (1st Cir. 1979).

To illustrate, the Court cited with approval New Mezico

District Council of Carventers and Joiners of America (A.S.

Horner, Inc.), 177 NLRB 500 (1969), enforced, 454 F.2d 1116

(10th Cir. 1972), a decision particularly applicable to the case at

hand, See American Broadcasting Cos., 437 U.S. at 436 n.36,

98 S.Ct. at 2437 n.36, 57 L.Ed. 2d at 332 n. 36. In A. S. Horner,

the Board found, as it did in this case, that union discipline of a

member because he worked as a supervisor for a nonunion

employer violated the statute. 177 NLRB at 503; c.f. Wiscon-

sin River Valley District Council v. NLRB (Skippy Enter-

prises, Inc.), 582 F.2d 47 (1976) (statute prohibits union fining

member-supervisor for disobeying a “no contract-no work”

policy and working for employer who refuses to sign bargain-

ing agreement). In discussing A. S. Horner, the Court relied

upon the District of Columbia Circuit's analysis of that case in

International Brotherhood of Electrical Workers v. NLRB,

487 F.2d 1143, 1154-55 n. 19(D.C.Cir. 1973) (en bane), aff'd sub

nom., Florida Power & Light Co. v. International Brother-

hood of Electrical Workers, 417 U.S. 790, 94 S.Ct. 2737, 41

L.Ed.2d 477 (1974). In that opinion, the court observed that

A. S. Horner “falls close to the original rationale of § &(b)(1)(B)

which was to permit the employer to keep the bargaining

representative of his own choosing.” 487 F.2d at 1155 n.19.

Against this background, the Union's disciplinary sanctions

and eventual expulsion of Willey constitute unlawful coercion.

The ALJ found, based on uncontroverted testimony, that Wil-

ley had extensive grievance adjustment responsibilities in his

capacity as Drexel’s electrical superintendent. As previously

noted, Willey had numerous duties—such as handling com-

plaints of conditions and safety at the work site—requiring

settlement of the individual problems of the employees under

his supervision. Because he was fined for his affiliation with a

nonunion company, “compliance. . . with the union’s demands

would have ‘the effect of depriving the Company of the services

of its selected representative for the purposes of collective

bargaining or the adjustment of grievances.’” American

Broadcasting Cos., 437 U.S. at 436 n. 36, 98S.Ct. at 2437 n. 36,

57 L.Ed.2d at 332 n. 36, quoting, A. S. Horner, 177 NLRB at

502. Such a potential adverse effect on the employer's choice is

determinative under the Supreme Court’s test. See, e.g.,

American Broadcasting Cos., 437 U.S. at 429, 98 S.Ct. at

2434, 57 L.Ed.2d at 328. Thus, the union's sanctions against

Willey amounted to an unfair labor practice in violation of

§ 8b 1B).

Nevertheless, the Union advances several reasons why the

prohibition should not apply to its actions in this case. First, it

argues that, because it did not represent Drexel’s employees,

the sanctions against Willey were an interna! union matter,

and not an attempt to coerce his employer. As support for this

position, it relies on NLRB y. /nternational Brotherhood of

Electrical Workers, Local 72 (Chewelah Contractor's, Inc.),

621 F.2d 1035 (9th Cir. 1980).

In Chewlah, the court held that a union does not act contrary

to § 8(b)(1)(B) if it neither represents nor displays a represen-

tational interest in the company’s employees. 621 F.2d at 1037,

The union in Chewelah had fined a member-supervisor for his

employment with a nonunion company. The Board declared

the discipline unlawful under § 8(b)(1)(B). On appeal, the

Ninth Circuit refused to enforce the order. The court initially

identified the two concerns it considered paramount in Con-

gress’ enactment of the statute: (1) preventing union pressure

on employers regarding their participation in multiemployer

bargaining units, and (2) guaranteeing a bargaining represent-

ative’s complete loyalty to his employer.‘ /d. at 1036. While the

court admitted that such considerations may be relevant when

the union represents the company’s employees, absent that

nexus, the policies underlying the statute were not implicated.

Id. at 1036-37.

The court further observed that in all the § 8(b)(10(B) deci-

sions it had reviewed, the union had been the bargaining repre-

sentative of the company’s employees.’ Jd. at 1037. Because it

did not have such a representational interest, the union lacked

any “incentive to either influence Chewelah's choice of

‘We note, however, that the Supreme Court has rejected the

notion that Congress intended § &(b)\(1)(B) to guarantee a super-

visor’s loyalty. See Florida Power & Light, 417 U.S. at 813, 94S.Ct.

at 2749, 41 L.Ed.2d at 492-93. Rather, othe, provisions in the Act

address that concern. /d. at 807, 94S.Ct. at 2746, 41 L.Ed.2d at 489,

* The court did not mention A. S. Horner, or the Supreme Court's

tacit approval of that case in American Broadcasting Cos. In A. S.

Horner, the union had lost two representation elections and did not

represent the company’s employees at the time of the imposition of

the sanctions. 454 F.2d at 1117: cf /nternational Organization of

Masters, Mates and Pilots, Marine Division v. NLRB. 339 F 2d

554-556 (Sth Cir. 1976) cert. denied, 434 U.S. 828, 98 S.Ct. 106. D4

L.Ed.2d 87 (1977) (union prohibited from picketing employer who

had entered collective bargaining agreement with rival union instead

of hiring its members as supervisors).

10a

bargaining representatives or affect [the supervisor's] loyalty

to Chewelah.” Jd. (emphasis added). Finally, characterizing

the discipline as an internal union affair, the court emphasized

that the penalized member always retained the option of re-

signing from the union.” Jd. For these reasons, the court an-

nounced that “[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.” Jd.

In this case, the Union invites us to engraft the same limita-

tion on our interpretation of the statute.” We decline to do so.

Our reading of the statute, and the two Supreme Court deci-

*On the contrary, the Supreme Court has suggested that the

option of terminating one’s union membership does not alleviate the

unlawful coerciveness of a union's sanctions. American Broadcasting

Cos., 437 U.S. at 437, 98 S.Ct. at 2437-38, 57 L.Ed.2d at 332.

Moreover, we are unconvinced that discipline imposed in those cir-

cumstances is aimed solely at a conflict between the union and its

member. As the Board observed in A. S. Horner, “the basic dispute

underlying the disciplinary action aginst [the supervisor] was not

entirely an intra-union matter but stemmed from the fact that the

Company did not have a collective-bargaining agreement with the

(union].” 177 NLRB at 503. In effect, the union is “using its internal

_ working rules to boycott an employer who [does] not have a contract

with the [union] by making it a violation, subject to fine, for its

members to work for such an employer.” Jd. at 502.

"Testimony at the hearing suggested that Local 323 may indeed

have had an interest in representing Drexel’s employees. Hearing

Transcript at 44, 194, 403-05, 422. If so, the union’s assessment of a

penalty against Willey violated the statute even under the test po-

sited by the Ninth Circuit. The ALJ and the Board, however, made

no finding on the issue.

* The Board claims that the Union has foreclosed our consideration

of this argument because it did not raise the defense during the

administrative proceedings. See 29 U.S.C. § 160/e). To the contrary,

lla

sions construing it, does not support such a restrictive applica-

tion. Most significantly, contrary to the Chewelah court's

suggestion, a $ 8(b)(1)(B) violation does not hinge on the

union’s incentive or intent in disciplining a supervisory mem-

ber. Rather, the statute proscribes any union pressure which

“may adversely affect” the supervisor's performance of the

protected duties. American Broadcasting Cos., 437 U.S. at

429, 98 S.Ct. at 2434, 57 L.Ed.2d at 328; Florida Light &

Power, 417 U.S. at 804-05, 94 S.Ct. at 2744-45, 41 L.Ed.2d at

488. Hence, the provision prohibits any union conduct which

has the effect of restraining the employer's choice, even if the

union’s motivation does not contemplate that result.’

Placing the emphasis on the effect caused by the union's

actions, rather than its intent, is more consistent with the

fundamental purpose of the statute. Congress’ overriding con-

cern in enacting § &8(b)(1)(B) was to insulate an employer's

selection of his collective bargaining or grievance adjustment

the Union preserved the contention in its exceptions to the ALJ's

decision, which were submitted three months prior to the Ninth

Circuit's issuance of the Chewelah opinion. There, the Union empha-

sized that it did not represent Drexel’s employees, thereby rendering

the sanction an internal union matter outside the scope of

§ 8(b)(1)(B).

*In American Broadcasting Cos., Justice Stewart in dissent

underscored this implication of the majority’s holding. As he ob-

served,

[iJn the present cases it is entirely clear that the union had no

interest in restraining or coercing the employers in the selection

of their bargaining or grievance adjustment representatives, or

in affecting the manner in which supervisory employees per-

formed those functions. As the Court notes, . . . the union ex-

pressed no interest at the disciplinary trials in the kind of work

that was done behind its picket lines. Its sole purpose was to

enforce the traditional kinds of rules that every union relies on to

maintain its organization and solidarity in the face of the poten-

tial hardship of a strike.

437 U.S. at 440, 98 S.Ct. at 2439, 57 L.Ed.2d at 334 (citations

omitted) (emphasis in original).

12a

representative from union influence or interference. See, ¢.g..

Florida Power & Light, 417 U.S. at 803, 94.8.Ct. at 2744, 41

L.Ed.2d at 487. An attempt to force a member-supervisor to

cease working for a nonunion company demonstrably infringes

onthe employer's right to choose that person as its representa-

tive. See A. S. Horner, 177 NLRB at 502. In view of that

inevitable result, even a union endeavoring only to enforce an

internal regulation, and not primarily motivated to influence

an employer's selection, can deprive the employer of the

protection afforded by the statute. Consequently, we find the

Chewelah limitation inconsistent with the central aim of

§ &(b)(1)(B).

Next, the Union attempts to escape the dictates of the

statute by characterizing Willey as an “employer.” The Union

reasons that the use of the master’s certificate to obtain elec-

trical permits is a responsibility more akin to an employer,

rather than a supervisory, function. Then, claiming that it

disciplined Willey primarily for his use of the certificate, the

Union urges that the statute does not condemn sanctions im-

posed on a member for engaging in strictly employer activities.

It is true that the Board has consistently held § &(b)(1)(B)

inapplicable in cases where the member is the owner of the

business. See, e.g., Glaziers and Glassworkers, Local 1621,

221 NLRB 509 (1975). In analyzing whether the member-

supervisor is indeed the employer, and thus unprotected by

the statute, the Board focuses on the extent, if any, of the

individual's financial ownership in the company. See 221

NLRB at 513. The reason for this rule is apparent. When a

person has a financial self-interest in the enterprise, “it is

difficult to envision circumstances where the employer would

be greatly influenced in the performance of his grievance-

adjustment or collective-bargaining functions where any deci-

sion he makes in those respects directly works to his benefit or

detriment depending on how he decides it.” Jd. NLRB at 512.

Moreover, the application of § 8(b)(1)(B) in that situation

would, through the subterfuge of protecting the employer's

selec:ion of his representative, effectively deprive a union ofall

13a

economic weapons, merely because the employer assumes the

additional role of a supervisor. As the Board has noted, Con-

gress certainly did not intend that result. See id. at 512-13.

The Union's assertion that Willey’s mere use of the master’s

certificate places him within the ambit of this rule miscon-

strues its rationale. Essentially, the Union confuses ownership

with management duties. Supervisory personnel, by their

very nature, often undertake numerous tasks closely associ-

ated with an employer's role, such as Willey’s acquisition of

electrical permits in this case. In effect, a supervisor acts as a

managerial agent for the employer. However, this responsibil-

ity does not necessarily create the personal stake inevitably

present when the individual possesses a financial interest in

the company. Without that participation, there is no assurance

that union pressure will not adversely affect the supervisor's

performance of his collective-bargaining and grievance-

adjustment duties. Thus, managerial responsibility, standing

alone, does not negate the applicability of § 8(b)(1)(B).

On that basis, the Union's argument must fail. The uncon-

troverted testimony before the ALJ established that Willey

owned no stock or other financial interest in Drexel. Without

such a personal stake, his responsibility in obtaining electrical

permits does not justify an exemption from the statute’s

coverage.”

“Implicit in this approach is a related contention based on the

Union's characterization of the master’s certificate as an “employer

function.” It essentially claims that since Florida Power & Light

construes the statute only to prohibit sanctions imposed for the

exercise of supervisory duties, and use of the master’s license is an

employer rather than a supervisory undertaking, discipline for that

purpose does not offend § 8(b)(1)(B). As previously noted, we are

unconvinced by the Union's attempt to distinguish between employ-

er and supervisory functions, in that the distinction ignores the

inherently managerial nature of a supervisor's role. Moreover, mere

labels do not control the existence or absence of a violation. See

American Broadcasting Cos., 437 U.S. at 430, 98 S.Ct. at 2484, 57

l4a

The order of the Board is ENFORCED.

L.Ed.2d at 328 (not all discipline imposed for performance of

“supervisory work” is necessarily unlawful). Rather, the inquiry

focuses on the effect of the discipline on the employer's selection of a

representative to perform the pertinent duties. The Board found an

equal adverse effect in the sanctions imposed for using the certificate

as it did with the discipline resulting from Willey’s association with a

nonunion employer. As the Board noted, “[iJt is part and parcel of the

same violation.” Recognizing that this finding of the requisite effect

is “peculiarly the kind of determination that Congress has assigned to

the Board.” American Broadcasting Cos., 437 U.S. at 432, 98 S.Ct.

at 2435, 57 L.Ed.2d at 330, we see no reason to disturb the Board’s

conclusion.

l5a

APPENDIX B

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

Case 12-CB-2052

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Lo-

CAL UNION No. 323 (Drexel Properties, Inc.)

and

JoHN E. WILLEY, an Individual

Bruce Harris, Esq., of Coral Gables.

FL, for the General Counsel.

Joseph H. Kaplan, Esq., of Miami,

FL, for the Respondent.

Jeffrey R. Cooper, Esq., of Miami,

FL, for the Charging Party.

DECISION

Statement Of The Case

PETER E. DONNELLY, Administrative Law Judge: The

charge herein was filed by John E. Willey, an individual,

herein called Charging Party or Willey, on January 15, 1979,

and a complaint thereon was issued on February 21, 1979.' An

' Certain jurisdictional allegations of the complaint were amended

at the hearing to reflect the correct location of Drexel Properties,

Inc., herein called Employer or Drexel, as having its principal office

in Fort Lauderdale, Florida with a facility in Boynton Beach, Flor-

ida. The complaint (paragraph 8(a)) was further amended to reflect

that Willey has been a member of IBEW Local 725 in Terre Huate,

l6a

answer thereto was timely filed by Respondent. Pursuant to

notice, a hearing was held before the Administrative Law

Judge at Coral Gables, Florida on May 29, 30 and June 31, allin

1979. Briefs were timely filed by Respondent and General

Counsel which have been duly considered.

FINDINGS OF FACT

I. Employer's Business

Employer is a Florida corporation with its main office in Fort

Lauderdale, Florida and a facility at Boynton Beach, Florida

where it is engaged in the business of land development and

construction enterprises. During the past 12-month period, in

the course and conduct of its business operations, Employer

purchased and received goods and materials valued in excess of

$50,000 at its Florida facilities which were shipped to it directly

from points outside the State of Florida. Based upon the above

facts I conclude that the Employer is an employer engaged in

commerce within the meaning of Section 2(6) and (7) of the Act.

II. Labor Organization

The complaint alleges, the Respondent and its answer

admits, and I find that Respondent is a labor organization

within the meaning of Section 2(5) of the Act.

Indiana since October 1952 and a new paragraph &(b) was added to

alleged that from July 1970 until 1975 Willey had a working permit

issued by International Brotherhood of Electrical Workers, Local

Union No. 323, herein called Respondent or Loca! 323. Paragraph 15

of the complaint was amended to read as follows:

At a meeting of Respondent's trial board on or about January 15,

1979, Respondent attempted to collect the balance of the fine

imposed upon the ark ore Party by Respondent on October 27,

1977, and by certified letter dated January 18, 1979, Respon-

dent’s International Union notified Charging Party that his

—_ of the trial board’s decision of October 27, 1977 had been

enied.

l7a

ILI. Alleged Unfair Labor Practices

The basic contention of the complaint is that Willey, a super-

visor for Drexel, was tried, fined, and expelled from the IBEW

because he was working for a nonunion employer, Drexel, and

that such conduct constitutes restraint and coercion of an em-

ployer in the selection of its representatives for the purposes of

collective bargaining or adjustment of grievances in violation

of Section 8(b)(1)(B) of the Act.

A. The Facts

1. Willey’s Union and Employment History

Prior to coming to Palm Beach County, Florida, in about

July 1970 Willey had lived in Terre Haute, Indiana, where he

had worked as an electrician and was a member of IBEW Local

725 in Terre Haute. After his arrival in Florida, Willey

obtained a work permit from Respondent and obtained em-

ployment by referral through the Respondent’s hiring hall.

Willey maintained this permit, making payments to Respon-

dent until December 1975. He also continued to make payment

on his membership dues to Local 725 and did so until his

expulsion from membership in the IBEW in January of 1979.

In about October of 1975 Willey began his employment with

Drexel as electrical superintendent. Drexel is a nonunion em-

ployer and has no contract with Local 323. Willey is a salaried

employee on Drexell’s payroll. His immediate supervisor is

William Cox, Jr., vice president of Drexel. Willey has overall

responsibility for all the electrical work performed by Drexel

including the authority to hire and fire employees. In addition,

his duties include the disposition of complaints and grievances,

imposition of disciplinary action, assignment of work, and ap-

proval of vacation requests.

In addition to these supervisory functions, Willey is certified

as a master electrician. By reason of this certification Willey is

qualified to operate as a contractor. By reason thereof, he is

also qualified to obtain electrical work permits for Drexel

which he apparently does on a regular basis. In so doing, Willey

lSa

accepts responsibility for the performance of the electrical

work covered by the permit.

Willey testified, without contradiction, that he is not an

officer or owner of Drexel, nor a shareholder, nor does he share

in the profits of Drexel. Willey testified that he signs electrical

permit applications, but does so as Drexel’s agent, rather than

as a contractor in his own right, although he is himself qualified

as an electrical contractor.

2. Charge of September 16, 1977

On September 16, 1977, C. E. Singletary, business manager

of Respondent at that time, perferred written charges against

Willey. The only violations set out in this charge (General

Counsel's Exhibit No. 2) involve Article XXVII, Section I,

Subsections 10 and 21 of the IBEW Constitution.‘ They read:

ARTICLE XXVII

MISCONDUCT, OFFENSES AND PENALTIES

Sec. 1. Any member may be penalized for committing any

one or more of the following offenses:

(10) Working in the interest of any organization or cause

which is detrimental to, or opposed to, the I.B.E.W.

(21) Working for any individual or company declared in

difficulty with a L.U. or the I1.B.E.W., in accordance with this

Constitution.

* = -

The body of the charge reads: “This member is running a

nonunion electrical contracting business.”

?The Constitution was amended in 1978, however, the parties

stipulated that none of the changes affect these proceedings.

19a

By letter dated October 7, 1977, Willey was notified to

appear before the trial board of the Respondent on October 25,

1977 to answer these charges.

At the trial, the charges were read to him and some dis-

cussion ensued. During the course of the discussion, Willey

conceded that he was “qualifying” i.e., obtaining electrical

work permits on behalf of Drexel through the use of his master

license. Willey admitted that he was so doing and was advised

that this activity violated the area working agreement (Inside

Wiremen Working Agreement). Article II, Section 2.01 of the

contract reads:

ARTICLE II

EMPLOYER RIGHTS—UNION RIGHTS

SECTION 2.01. NO MEMBER OF THE INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS, OR OTHER

EMPLOYEES, SUBJECT TO EMPLOYMENT BY

EMPLOYERS OPERATING UNDER THIS AGREEMENT,

SHALL HIMSELF BECOME AN EMPLOYER FOR THE

PERFORMANCE OF ANY ELECTRICAL WORK. ANY

MEMBER, OR OTHER EMPLOYEE, POSSESSING A

MASTERS LICENSE WHILE EMPLOYED UNDER THE

TERMS OF THIS AGREEMENT, SHALL MAINTAIN SAME

ON AN INACTIVE STATUS. ANY EMPLOYER WORKING

UNDER THIS AGREEMENT SHALL NOT TAKE OUT A

PERMIT OR MASTER A JOB FOR ANY OTHER PERSON

OR FIRM, EXCEPT IN THE CASE OF A TRUE JOINT

VENTURE.

Willey testified as to the constitutional violations:

JUDGE DONNELLY: Okay.

What was the explanation that you got of the nature of the

charge?

THE WITNEss: That I was working in violation of the IBEW

Constitution and it was, of course, naturally written out that—

what sections I was working in conflict with the—I was work-

ing for a company that was in conflict with the best interest of

20a

the IBEW and I don’t remember all the details of the other

charges were.

JupGe DoNNELLY: Did anyone tell you, explain to you, why you

should not do that it is that you were doing?

THE WITNEss: No, sir. I can’t say that they didn’t, but I do not

remember of anybody saying, you know,—

JuDGE DONNELLY: (Interposing) So, in other words, then what

they were doing was reciting those portions of the Constitution

that were supposed to have constituted the violation.

THE WITNEss: Yes, sir.

JupDGE DONNELLY: Your offense.

THE WITNESS: Now they did state the fact that I was qualifying

Drexel Properties as a contractor.

JUDGE DONNELLY: Right.

What did they say about that?

What was said about that?

THE WITNEss: Well, that Drexel Properties Properties did not

have a working agreement with 323 and was in violation of the

International Constitution.

JupGE DONNELLY: And it was said that that was—that those

facts constituted a violation of the international agreement

[Constitution]?

THE WITNEss: Yes, sir.

Willey also testified, that he was told by Claude Marshall,

president of Respondent and a member of the trial board at this

time, that he should quit his job and leave the territory of Local

323.’ While it appears that the matter of Willey qualifying

‘While Marshall denies ever saying anything to Willey at the

hearing, Marshall’s recollection of this meeting however is limited

and I find Willey’s testimony more convincing.

2la

Drexel as a violation of Section 2.01 of the area contract was

raised at the trial, it does not appear to have been the basis for

any action taken by the trial board since the minutes of the trial

and the letter of October 27, 1977 advising Willey of the trial

board's action do not refer to it. The October 27, 1977 letter

from Respondent's Recording Secretary to Willey reads:

The Executive Board, sitting as a Trial Board of Loca!

Union 323, 1.B.E.W., West Palm Beach, Florida, on Octo-

ber 25, 1977, after due consideration of the evidence pro-

duced, has acted upon the charges filed against you by

Brother C. E. Singletary.

You were found guilty of a violation of Article XXVII,

Section 1, Subsection 10, of the I.B.E.W. Constitution

and assessed $1,000.00 for this violation, 3750.00 to be

suspended provided you get right with the Local Union

within 30 days and commit no further violations for a

period of one year.

You were found guilty of a violation of Article XXVII,

Section 1, Subsection 21, of the I.B.E.W. Constitution

and assessed $1,000.00 for this violation, $750.00 to be

suspended provided you get right with the Local Union

within 30 days and commit no further violations for a

period of one year.

This constitutes a total of two violations for a total

assessment of $2,000.00, 1,500.00 to be suspended pro-

vided you get right with the Local Union within 30 days of

notification of this action, which would leave a balance of

$500.00 owed this Local Union.

It is my duty to inform you that in accordance with

Article XXVIJ, Section 12, of the IBEW Constitution,

under “appeals,” any member who claims an injustice has

been done him by any Local Union or Trial Board, may

appeal to the International Vice President of the 5th Dis-

trict, Dan H. Waters, Suite 113, No. 2 Metroplex Drive,

Birmingham, Alabama 35209, anytime within 45 days af-

ter the date of the action complained of; and Section 13,

“No appeal for revocation of an assessment shall be recog-

nized unless the member has first paid the assessment,

which he can do under protest. When the assessment

exceeds twenty-five dollars ($25.00), payments of not less

than twenty dollars ($20.00) in monthly installments must

be made. The first monthly installment must be made

within fifteen (15) days from the date of the decision ren-

dered and monthly installments continued thereafter or

the appeal will not be considered.

By letter dated November 7, 1977, Willey advised Respon-

dent of his intention to appeal the trial board’s decision. On

December 1, 1977 Willey wrote a letter to Dan H. Waters

International Vice President, which Waters treated as an

appeal. By letter dated December 8, 1977 Waters assigned a

representative to investigate the matter and on December 20,

1977 wrote a letter to Willey stating:

By letter dated December 1, 1977, you wrote to me in

the form of an appeal from actions of the Trial Board of

IBEW Local Union 323, West Palm Beach, Florida.

Your appeal was acknowledged by letter dated Decem-

ber 8, 1977. In this letter, you were also advised that

International Representative John Erickson of my Staff

would conduct an investigation of your appeal. I am now in

receipt of a detailed report of Representative Erickson’s

findings.

After carefully reviewing the Trial Board minutes, evi-

dence submitted to the Board, and correspondence in this

case, I am of the opinion your guilt was established with-

out a reasonable ious, Furthermore, you made no at-

tempt to dispute the fact you are employed by a firm who

does not have an agreement with Local 323.

The Trial Board afforded you a fair trial and all due

process in accordance with the IBEW Constitution.

Taking the above into consideration, along with the

serious nature of the violation, I see no valid reason to

reverse the decision to the Trial Board.

DECISION

The findings of guilty of violating Article XXVII, Sec-

tion 1, subsections 10 and 21 of the IBEW Constitution by

the Trial Board of Local Union 323 in the case of John E.

Willey are hereby upheld.

The assessment of 31,000 for each charge is hereby

reduced to 3500 for each charge. This reduction is con-

23a

ditioned on the appellant's immediate cessation of the

violation he was found guilty of by the Trial Board in this

instant case.

On January 23, 1978 Willey wrote to Charles H. Pillard,

International President, appealing Waters’ decision of Decem-

ber 30, 1977. On January 31, 1978 Pillard wrote to Willey

saying:

This will acknowledge your letter dated January 23,

1978 in which you are appealing a decision rendered by

International Vice President Dan H. Waters under date of

December 30, 1978.

I am requesting the International Vice President to

furnish me with his file in the case. After I have received

the file and have had an opportunity to study the material

contained therein, you wil be advised as to the position of

this office relative to your appeal.

On April 13, 1978 Pillard again wrote to Willey referring him

to the International Constitution's provisions to the effect that

appeals from the International Vice President are not recog-

nized until the decision has been complied with or the provision

is waived by the Vice President. On June 19, 1978 Willey wrote

to Waters requesting a suspension of the “cease and desist part

of the decision against me.”

On January 15, 1978 in a letter appealing a second decision of

the trial board on December 5, 1979, Willey complained that

his appeal on the first trial board decision was still pending

because his letter to Waters of June 19, 1978 was still un-

answered. By letter dated January 18, 1979 Waters advised

Willey:

This is to acknowledge your letter of January 15, 1979,

rons an appeal of a decision of the Trial Board of

IBEW Local Union 323, West Palm Beach, Florida.

_ Please be advised that according to the records of this

instant case, you have exhausted your appeals as outlined

in Article XXVII of the IBEW Constitution.

24a

3. Charge Of October 24, 1978 And Willey’s Expulsion

From IBEW

October 24, 1978 C. F. Griffin, assistant business manager

of Respondent, preferred written charges against Willey. This

charge, like the charge of October 15, 1977, cited violations of

Article XXVII, Subsections 1(10) and (21) and in addition

recited a violation of Article II, Section 2.01 of the area labor

agreement, quoted above. The explanation of the charge

reads:

Drexel Const. Co. is using John E. Willey Electrical Mas-

ters license. Drexel is the only construction company in

Green Tree Village.

John E. Willey License # U9420.

Upon notice, a trial was held on these charges, attended by

Willey, on December 5, 1978. At this time the above sections of

the area contract and Constitution were read to him and Willey

complained that he had the same charges pending on appeal.

He was advised by James Hayes, chairman of Respondent's

trial board, that his appeal had been denied by Waters. Hayes

testified that Willey was advised that he was in violation of the

area contract and the Constitution by using his masters license

as a contractor; that his masters’ license should be maintained

on an inactive status; that masters’ licenses are a contractor's

responsibility and he should not have been using his for Drexel.

He was told that he would have to stop using his masters’

license as a contractor.

With respect to the matter of the charges relating to the

Constitution, Hayes testified that these were separate

charges, stating:

Q. Well, what was the basis for that violation?

A. Which?

Q. For finding him in violation of Article 2

7, Section 1,

Subsection 10.

Working in the interest of an organization or cause

which is detrimental to, or opposed to, the IBEW.

25a

Section 10 is working in the interest of an organiza-

tion or cause which is detrimental to, or opposed to,

the IBEW.

That had nothing to do with his masters license; 10 or

21.

Then how did the Trial Board find him in violation of

that section?

Of 10?

Yes.

That company was not signatory to our working

agreement.

Q. What about Section 21?

A. Same thing.

e ©

Would you repeat what that reason is?

Let me look at it first.

That his company had people working for them that

wasn't paying the benefits and was not signatory to

our working agreement.

Q. And that is the reason he was found in violation of

those Constitutional provisions?

A. Of the two Constitutional provisions.

That is just one part of it. Well, one side of it.

By letter dated December 7, 1978 Willey was notified of the

action of the trial board. The letter reads:

The Executive Board, sitting as a Trial Board of Local

Union 323, 1.B.E.W., West Palm Beach, Florida, on De-

cember 5, 1978, after due consideration of the evidence

bec has acted upon the charges filed against you by

rother C. F. Griffin.

You were found guilty of Article II, Section 2.01 of the

Working Agreement and assessed $1,500.00 for this viola-

tion.

Your were found guilty of Article XXVII, Section 1,

Subsection 10 of the IBEW Constitution and assessed

$2,000.00 for this violation.

26a

You were found guilty of Article XXVII, Section 1,

Subsection 21, of the IBEW Constitution and assessed

$1,650.00 for this violation.

This constitutes three violations for a total assessment

of $5,150.00 due and owing this Local Union.

It is my duty to inform you that in accordance with

Article XXVII. Section 12, of the IBEW Constitution,

under “appeals,” any member who claims an injustice has

been done him by any Local Union or Trial Board, may

appeal to the International Vice President of the 5th Dis-

trict, Dan H. Waters, Suite 113, No. 2 Metroplex Drive,

Birmingham, Alabama 34209, anytime within 45 days af-

ter the date of the action complained of and Section 13, “No

appeal for revocation of assessment shall be recognized

unless the member has first paid the assessment, which he

can do under protest. When the assessment exceeds

twenty-five dollars ($25.00), payment of not less than

twenty dollars ($20.00) in monthly installments must be

made. The first monthly installment must be made within

fifteen (15) days from the date of the decision rendered and

monthly installments continued thereafter or the appeal

will not be considered.”

On January 9, 1979 Willey was requested, by letter, to meet

with the trial board on January 15, 1979. At the trial board

meeting January 15, 1979, Willey complained that his appeal

on the original charge was still pending, but he was advised by

Hayes that he would have to pay the original fine on the first

charge and that they could then drop the charges and fines on

the second charge. Willey was unwilling to compromise and by

letter dated January 19, 1979 Willey was expelled by Respon-

dent from membership in the International Brotherhood of

Electrical Workers. This letter reads:

The Executive Board, sitting as a Trial Board of Local

Union, 323, I.B.E.W., West Palm Beach, Florida, on

January 15, 1979, after due consideration of the testimony

roduced, has acted on a decision stemming from charges

led against you by Brother C. E. Singletary and sub-

sequent charges by Brother C. F. Griffin.

It is the decision of the Trial Board to expel you from

membership in the I.B.E.W.

27a

B. Analysis And Recommendation

1. Impact Of 10(b)' On The October 27, 1977 Fine

Respondent took the position at the hearing that the allega-

tions of the complaint concerning the fine levied by the Respon-

dent against Willey in October of 1977 were outside the 10(b)

period and therefore time barred in the instant proceeding

since no complaint could issue in this case based on any unfair

labor practices occurring before July 15, 1978.

The rationale of the Respondent's position appears to be that

final action on the fine took place as of April 13, 1978 the date on

which Pillard wrote to Willey advising him that he could not

recognize his appeal.

The General Counsel on the other hand, takes the position,

that certain action by the Respondent relating to the fine

occurred within the 10(b) period and were sufficient to bring

the matter of the October 1977 fine within the 10(b) period.

The record discloses that, within the 10(b) period, the second

charge was filed against Willey containing one charge identical

in composition to the original charge i.e., violations of Article

XXVII, Sections 1(10) and (21) of the Constitution.

Indeed, the part of the second charge relating to the Con-

stitutional violation was in essence, little more than an exten-

tion or continuation of the original charge since the factual

basis of the charges were the same. As a consequence of trial

board decisions as to both charges, a hearing was held on

January 19, 1979 to consider the matter of Willey’s expulsion,

and pursuant to this hearing Willey was expelled. Clearly

Willey’s expulsion was occasioned by his failure to comply with

the decisions of the trial board as to all of the outstanding

charges. In my opinion final action on Willey’s discipline did not

* Section 10(b) of the National Labor Relations Act provides. inter

alia; “That no complaint shail issue based upon any unfair labor

practice occurring more than 6 months prior to the filing of the charge

with the Board... .”

occur until he was expelled by reason of his failure to comply

with the discipline imposed by the trial board in both cases.

This occurred within the 10(b) period, making the allegations

relating to both properly subject to the complaint, especially

since the allegations relating to the Constitutional violations

were the same in both charges, indeed the identical alleged

misconduct.

2. The &(bi(1)(B) Allegations

Section &(b)(1)(B) provides that “It shall be unfair labor

practice for a labor organization or its agents—(1) to restrain

or coerce. . .(B)anemployer in the selection of his representa-

tive for the purposes of collective bargaining or the adjustment

of grievances;” The Board has, in several cases, held that a

supervisor within the meaning of the Act is also an employer

representative within the meaning of Section &(b)( 1)(B). This

record establishes, beyond cavil, that Willey exercises

supervisory functions on behalf of the Respondent that con-

stitute him a supervisor within the meaning of the Act, and

consequently an employer representative under Section

&(b)(1)(B). Local Union No. 6732, International Union of

Operating Engineers, AFL-CIO (Westinghouse Electric

Corporation), 229 NLRB 726.

It has also been held by the Board that firing supervisor

because they work for a nonunion employer also violates Sec-

tion &(b)(1)B) of the Act. New Merico District Council of

Carpenters (A. S. Horner, Inc.) 177 NLRB 500, enfd., 454

F.2d 1116 (C.A. 10, 1972).

Let us now review the record to determine whether or not

these principles are applicable to the instant case.

First, let us consider those charges that Willey violated the

IBEW Internationa! Constitution. The Language of Article

X XVII. Sections 1(10) and (21) are somewhat vague but clear-

ly provide discipline for members who work for employers or

organizations deemed “in difficulty with, “detrimental.” or

“opposed” to the IBEW.

29a

The original September 16, 1977 charge filed by Singletary,

alleging only Constitutional violations. recited, by the way of

explanation, that Willey is “running a nonunion electrical con-

tractor business.” At this time Willey was employed by Drexel

as electrical superintendent. At his trial Willey was advised

that he should quit his job and leave the area of Local 323. The

letter advising him of the trial board’s action refers only to the

Constitutional violations. Waters, in his letter of December 30,

1977 upholding the trial board states that after a careful review

of the record he was satisfied that Willey was guilty, and as a

basis for reaching his conclusion notes that Willey. “made no

attempt to dispute the fact that you [Willey] are employed by a

firm who does not have an agreement with Local 323.” Based

upon these facts and the entire record I am persuaded that

Willey was fined and his appeal denied because he was working

for a nonunion contractor.’

The Board has held that such disciplinary action, taken

against a supervisor-member, has the effect of depriving the

employer of the services of its selected representative for the

purposes of collective bargaining or the adjustments of grie-

vances. New Mexico District Council of Carpenters (A. S.

Horner, Inc.,) supra.

Turning now to the second charge filed against Willey on

October 24, 1978, it is clear that one of the two allegations

therein applies to the Constitution and is identical to the prior

charge of September 16, 1977. The record discloses that the

same objectives were being pursued as in the original charge

and relate to the same objectionable conduct by Willey, that is,

to force Willey out of his employment with a nonunion con-

tractor. This portion of the charge is nothing more, in essence,

than a renewal of the original charge. If any further evidence of

Contrary to the contention of the Respondent, I conclude that the

basis for this disciplinary action was the IBEW Constitution. While

Section 2.01 of the area contract was apparently discussed, it does

not appear to have been the motivating consideration in the imposi-

tion of the discipline.

30a

the Respondent's objective is necessary. the remarks of James

Hayes, quoted above, present clear and convincing evidence

that Willey’s basic transgression was that he was emploved by

a nonunion contractor.

The other allegation in the October 24, 1978 charge alleges

that Willey violated Section 2.01 of the area agreement quoted

above by using his masters license to obtain electrical construc-

tion permits for Drexel in the face of this sections’ requirement

that he maintain his masters license in an inactive status.

In examining this contention, a simple reading of the lan-

guage itself makes it apparent that Willey is not employed

“under the terms of this agreement.” Not only is Willey not a

member of Respondent, but Drexel was a nonunion contractor,

not subject to or bound by the area contract. However, even

assuming that the area agreement can be applied to Willey and

Drexel, I am not persuaded that the Respondent would be

absolved. Respondent contends that the discipline was purely

an internal union matter based solely on Willey’s refusal to put

his masters license on an inactive status while working for

Drexel. The masters’ license itself carries with it inherent

supervisory authority. It is by reason of this masters license

that Willey is able to obtain electrical construction contracts

for Drexel which contemplate the exercise of overall

supervisory authority which supervisory authority Willey rep-

resents in the electrical permit application he will undertake

and which he does undertake in his capacity as electrical super-

intendent for Drexel. In these circumstances it cannot be said

that Willey’s discipline is an internal union matter since the

necessary result of the disciplinary action is to restrict Willey

in the exercise of supervisory functions. Such discipline im-

posed on a supervisor-member constitutes coercion of an em-

ployer in the selection of his representative for the purposes of

collective bargaining and the adjustment of grievances. Com-

pare, Teamsters Local 643, affiliated with International

Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, Independent (Continental Oil Com-

pany), 193 NLRB 5al.

3la

Respondent also argues that Willey is himself acting as a

contractor in violation of the first sentence of Section 2.01

Stating that “No member of the International Brotherhood of

Electrical Workers, or other employees, subject to employ-

ment by employers operating under this agreement, shall him-

self become an employer for the performance of any electrical

work.” Once again, this provision does not apply to Willey

since Drexel is a nonunion employer, not an employer “operat-

ing under this agreement.” But even assuming that the area

agreement does apply, it is my conclusion that Willey is not

himself an “employer” so as to be in violation thereof. Willey is

not an owner, he is a salaried employee of Drexel. He does not

share in any of the profits of Drexel. While it appears that

Willey is certified as an electrical contractor. in that he meets

the state and local requirements to qualify as such, he is not

himself an employer or owner so as to exempt him as employer

from the application of Section &(b)(1)(B). International

Brotherhood of Electrical Workers Local Union 73, AFL-CIO

(Chewelah Contractors, Inc..) 231 NLRB 809.

In summary, I conclude that the Respondent's action in

disciplining Willey was not privilege either by the IBEW Con-

stitution or by the area labor agreement and further by dis-

ciplining him, Respondent has violated Section &(b)(1)(B) of

the Act.

IV. The Effects Uf The Unfair Labor Practice Upon Com-

merce

The activities of the Respondent set forth in section III.

above, have a close and intimate relationship 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 Respondent has engaged in, and is engag-

ing in certain unfair labor practices, I shal] recommend that it

cease and desist therefrom and take certain affirmative action

designed to effectuate the policies of the Act. Upon the basis of

the foregoing findings of fact and conclusions. and upon the

entire record in this case, I hereby make the following:

CONCLUSIONS OF LAW

1. Drexel Properties, Inc., is an employer engaged in com-

merce within the meaning of Section 2(6) and (7) of the Act.

2. Respondent is a labor organization within the meaning

of Section 2(5) of the Act.

3. John E. Willey is. and has been at all times material. a

supervisor within the meaning of Section 2(11) of the Act,

selected by the Employer for the purposes among others. of

collective bargaining and the adjustment of grievances within

the meaning of Section &(b)(1)(B) of the Act.

4. By the above action in disciplining Willey, the Respon-

dent restrained and coerced Drexel in these election and reten-

tion of its representatives for the purposes of collective

bargaining or the adjustments 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.

Upon the foregoing findings of facts, conclusions of law and

the entire record, and pursuant to Section 10(c) of the National

Labor Relations Act, as amended, I hereby issue the following

recommended:

ORDER

The Respondent, International Brotherhood of Electrical

Workers, Local Union No. 323, its officers, agents, and repre-

sentatives shall:

* Inthe 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. and recommended Order herein shall, as

provided in Section 102.48 of the Rules and Regulatins, be adopted

by the Board and become its findings, conclusions. and Order, and all

objections thereto shall be deemed waived for all purposes.

1. Cease and desist from:

(a) Restraining and coercing Drexel Properties. Inc.. in

the selection of representatives for the purposes of collective

bargaining or the adjustments of grievances.

(b) Preferring charges against or requiring John E. Willey

to appear before a trial board: fining, attempting to collect

fines, expelling, or otherwise jeopardizing the union mem-

bership of John E. Willey, or any other representative of

Drexel Properties, Inc., for acts performed during the course

of his or their duties as representatives of Drexel Properties,

Inc.

Properties, Inc., in the selection of its representatives for the

purposes of collective bargaining or the adjustments of grie-

vances.

2. Take the following affirmative action designed to

effectuate the policies of the Act:

(a) Expunge all record of the disciplinary action taken

against John E. Willey.

(b) Rescind any and all fines levied against John E. Willey

and refund to him any money that may have been paid to

Respondent as a result of such fine, together with interest

thereon to be computed in the manner proscribed in F. W.

Woolworth Co., 99 NLRB 289 (1950), and Florida Steel

Corporation, 231 NLRB 651 (1977).”

of International Brotherhood of Electrical Workers.

"See generally, Isis Plumbing & Heating Co., 138 NLRB 716

(1962). General Counsel filed a supplemental brief in support of a

remedial interest rate of 9 percent, however, absent modification the

Board's policy, I am constrained to follow the above existing Board

formula.

34a

(d) Notify John E. Willey, Drexel Properties. Inc.. IBEW

Local No. 725, and International Brotherhood of Electrical

Workers, that it has taken the aforesaid remedial action and

that it will in the future comply with the cease and desist

provisions of this Order.

(e) Post at its offices and any place where its meetings are

customarily held, copies of the attached marked “Appendix.”

Copies of said notices on forms provided by the Regional Direc-

tor for Region 12, after being duly signed by an official repre-

sentative of Respondent, shall be posted by it immediate upon

receipt thereof and be maintained by it for 60 consecutive days

thereafter, in conspicuous places, including all places where

notices to its members are customarily posted. Reasonable

steps shall be taken by the Respondent to insure that said

notices are not altered, defaced, or covered by any other mate-

rial.

(f) Mail signed copies of the notice to the Regional Director

for posting, Drexel Properties, Inc., willing, at all locations

where notices to its employees are customarily posted.

(g) Notify the Regional Director for Region 12, in writing,

within 20 days from the date of receipt of this Decision what

steps the Respondent has taken to comply herewith.

Dated, Washington, D.C. March 6, 190.

s Peter E. DONNELLY

Peter E. Donnelly

Administrative Law Judge

* Inthe event that the Board's Order is enforced by aJudgment ofa

United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS 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.”

35a

NOTICE TO

EMPLOYEES AND MEMBERS

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

AN AGENCY OF THE UNITED STATES GOVERNMENT

WE WILL NOT restrain or coerce DREXEL PROPERTIES,

INC., in the selection of representatives for the purposes of

collective bargaining or the adjustment of grievances.

WE WILL NOT prefer charges against or require JOHN E.

WILLEY to appear before a trial board: fine, attempt to

collect fines, expell, or otherwise jeopardize the union mem-

bership of JOHN E. Willey or any other representative of

DREXEL PROPERTIES, INC.., for acts performed during

the course of his or their duties as representatives of

DREXEL PROPERTIES, INC.

WE WILL NOT in any other manner restrain or coerce

DREXEL PROPERTIES, INC., in the selection of its repre-

sentatives for the purposes of collective bargaining or the

adjustment of grievances.

WE WILL expunge all record of the disciplinary action taken

against JOHN E. WILLEY.

WE WILL rescind any and all fines levied against JOHN E.

WILLEY and refund to him any money that may have been

paid to IBEW LOCAL 323 as a result of such fines, together

with interest thereon.

WE WILL reinstate JOHN E. WILLEY as a member in good

standing of the INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS.

WE WILL notify JOHN E. WILLEY, DREXEL PROP-

ERTIES, INC., IBEW LOCAL NO. 725, and INTERNA-

36a

TIONAL BROTHERHOOD OF ELECTRICAL WORKERS

that we have taken the aforesaid remedial action.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS. LOCAL UNION

NO. 323

* °

Drexel! Properties, Inc

? © ‘ ‘

Labor Urganization

Dated By

Representative) (Title)

Q”7-

Oia

APPENDIX C

WIPE OPATTa OF AME

“NITED S E

e ‘

Psi). 4 pres

Anke 5 Aes .

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Case 12—CB—2052

INTERNATIONAL BROTHERHOOD OF ELECTRICAL Workers, Lo.

caL Union No. 323 (Drexel Properties, Inc.

and

Joun E. Wittey, an Individual

DECISION AND ORDER

On March 6, 1980, Administrative Law Judge Peter E.

Donnelly issued the attached Decision in this proceeding.

Thereafter, Respondent filed exceptions and a supporting

Brief.

The Board has considered the record and the attached Deci-

sion in light of the exceptions and brief and has decided to

affirm the rulings, findings, and conclusions of the Administra-

tive Law Judge and to adopt his recommended Order, as

modified herein.’

Chairman Fanning, in his separate opinion, distinguishes

between the fine levied against John Willey for working fora

nonunion employer and the one levied againt him for using his

master’s license for the benefit of that employer. We see no

basis for making such a distinction. In suggesting that the

latter fine did not restrain Drexel’s choice of its grevance-

handling representative, the Chairman assumes that the job

In his recommended Order, the Administrative Law Judge in-

advertently referred to F. W. Woolworth Company, ® NLRB 2s9

(1950). for the interest formula. We shall therefore modify his recom-

mended Order accordingly

38a

functions Willey performed and the qualifications therefor can

be parsed. We disagree. Drexel needed an electrical superin-

tendent who had a master’s license and would use that license

on its behalf. Prohibiting Willey from so using his license, as

Respondent's fine would do, surely amounts to an attempt to

influence Drexel’s selection of Willey as its electrical superin-

tendent every bit as much as a flat attempt to prohibit him from

working for this nonunion employer. It is part and parcel of the

same violation. For that reason and those contained in the

Decision of the Administrative Law Judge, we find Respon-

dent's exception to be without merit.

ORDER

Pursuant to Section 10(c) of the National Labor Relations

Act, as amended, the National Labor Relations Board adopts

as its Order the recommended Order of the Administrative

Law Judge. as modified below, and hereby orders that the

Respondent, International Brotherhood of Electrical Work-

ers, Local Union No. 323, West Palm Beach, Florida, its offic-

ers, agents, and representatives, shall take the action set forth

in the said recommended Order, as so modified:

Substitute the following for paragraph 2(b):

“(b) Rescind any and all fines levied against John E. Willey

and refund to him any money that may have been paid to

Respondent as a result of such fines, together with interest

thereon to be computed in the manner prescribed in Florida

Steel Corporation, 231 NLRB 651 (1977). ”

Dated, Washington, D.C. May 11, 1981

Howard Jenkins, Jr., Member

Don A. Zimmerman, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

CHAIRMAN FANNING, concurring in part and dissenting in

nart:

39a

This is another decision which extends the reach of Section

8(b)(1)(B). I have previously expressed my concern that the

Board recognize reasonable limits to this section of the Act.-

and I dissent from part of the decisior.

The union conduct attacked by the 8(b)(1)(B) complaint here

was Respondent’s discipline of John Willey, member of a sister

local who was working under a permit from Respondent. Wil-

ley was electrical superintendent for Drexel Properties, Inc.. a

land developer and construction contractor. His duties as su-

perintendent included the disposition of employee complaints

and grievances, and, therefore, he was a grievance adjuster for

Drexel within the meaning of Section 8(b)(1)(B). In addition,

Willey was a certified master electrician, and through use of

his master’s licence obtained electrical work permits from the

county to enable Drexel to perform electrical contracting.

Respondent brought internal union charges against Willey,

and after various proceedings fined him for violating the Inter-

national constitution by working for a company which did not

have a working agreement with Respondent and for violating

the working agreement by failing to place his master’s license

in an inactive status and, instead, using it to qualify Drexel for

electrical work permits. Willey did not pay the fine and was

expelled from membership in the IBEW.

It appears, then, that union discipline was imposed on Willey

for two reasons—one, because he was working for a nonunion

employer, and two, because he was using his master’s license

to obtain electrical permits for his employer. I note that neith-

er of Willey’s offenses occurred by reason of his position as an

8(b)(1)(B) representative or his performance of grievance-

adjustment duties. Indeed, the discipline does not seem to

have been aimed at interfering with Drexel’s selection or con-

*See, for example, my dissenting opiniong in New York Typog-

raphical Union No. 6, International Typographical Union, AFL-

CIO (Daily Racing Form, a subsidiary of Triangle Publications,

Inc.), 216 NLRB &96 (1975).

40a

trol of Willey as a grievance adjuster or collective bargainer.

Rather, it seems to have been directed at discouraging union

members from working for nonunion employers in any capacity

and from qualifying employers as contractors by use of their

master’s licenses. Arguably, these goals are matters of legiti-

mate concern to a labor organization in controlling its members

and protecting its own interests. Nevertheless, an 8(b)(1)(B)

violation may be warranted based upon a probable adverse

impact the discipline might have had upon Willey’s assumption

or discharge of grievance-adjustment or bargaining functions

and the resulting indirect pressure upon his employer.

I concur with my colleagues in finding that Respondent's

imposition of discipline upon Willey for the first reason—

because he worked for a nonunion employer—contravened

Section &(b)(1)(B). Acquiescence in Respondent's demands

would have required Willey to abandon his employment with

Drexel and his superintendent's duties which included adjust-

ing grievances. Consequently, the discipline imposed for the

first reason would have had the likely result of making Willey

unavailable to Drexel for use as an 8(b)(1)(B) representative.

Authority supports the view of my colleagues that union dis-

cipline which has the effect of depriving an employer of the

grievance-adjustment services of an individual it has selected

to perform those duties violates Section 8(b)(1)(B).’

See American Broadcasting Companies, Inc., et al. v. Writers

Guild of America, West, Inc., et al., 437 U.S. 411 (1978), accepting as

reasonable the view of the Board majority in Writers Guild of Amer-

ica, West, Inc. (Association of Motion Picture and Television Pro-

ducers, Inc., et al.). 217 NLRB 957 (1975). See also New Mevrico

District Council of Carpenters and Joiners of America (A. S. Hor-

ner, Inc.), 1977 NLRB 500 (1969), enfd. 454 F.2d 1116 (10th Cir.

1972), and International Brotherhood of Electrical Workers, Local

Union No. 73, AFL-CIO (Chewelah Contractors, Inc.), 231 NLRB

809 (1977), relied upon by the Administrative Law Judge. I dissented

from the Board's decision in the American Broadcasting case, and I

did not participate in Horner or Chewelah.

dla

However, I cannot agree with the majority s conclusion that

Respondent's discipline of Willey because of his use of the

master’s license violated Section 8(b)(1)(B). I see no reason to

assume that discipline for this reason would have had an

adverse effect upon Willey’s willingness or availability to ac-

cept grievance-adjustment assignments or his independence

and capacity in carrying out such responsibilities. Conforming

to Respondent's requirement that he place the license in inac-

tive status might have deterred Willey from using the license

to obtain permits for Drexel, but it would not have impaired his

effectiveness as Drexel’s &(b)(1)(B) representative. It would

appear that Willey could have continued to work for Drexel

and fulfill all his grievance-adjustment functions without a

master’s license. His use of the license in Drexel’s behalf while

acting as electrical superintendent in no way related to the

performance of the grievance-adjustment duties of that posi-

tion. Therefore, I donot think Respondent's restraint of Willey

with regard to his master’s license can be deemed to have

resulted in pressure upon Drexel in its selection ofan 8(b)(1)(B)

representative or its authority over that representative.

The majority’s contrary position seeks to extend Section

8(b)(1)(B) yet further despite judicial admonition of its limited

scope. See Florida Power & Light Co. v. International

Brotherhood of Electrical Workers, Local 641, et al., 417 U.S.

790 (1974). Now, we are told, employers need only be affected

to be “restrained” by otherwise lawful union action against

members and bring the weight of &(b)(1)(B) sanctions to bear

on labor organization. And the test is to be subjective: Drexel’s

assertion that a superintendent must have a master’s license.

There would, of course, be no violation of Section 8(b)(1)( A)

had Respondent disciplined an employee-member in these cir-

cumstances. Drexel’s need, thus, is laid bare: To manipulate

the Act. Drexel is no more entitled to the benefits of a super-

visor’s master’s license under Section 8(b)(1)(B) than Florida

42a

Power & Light Co. was to a supervisor's performance of unit

work.

Dated, Washington, D.C. May 11, 1981

John H. Fanning, Chairman

NATIONAL LABOR RELATIONS BOARD

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.