Appendix — Florida Power & Light Co. v. Electrical Workers

Supreme Court brief1974

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Supreme Court of the United States:

OCTOBER TERM, 1973

- No. 73-556

FLORIDA PowEeR & LIGHT COMPANY,

Petitioner,

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

LOCAL 641, 622, 759, 820 and 1263,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

No. 73-795

NATIONAL LABOR RELATIONS BOARD,

. Petitioner,

Vv.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

AFL-CIO, and Loca 134, INTERNATIONAL BROTHER-

HOOD OF ELECTRICAL WORKERS, AFL-CIO,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEX

Page

Relevant Docket Entries... 4 en 83

Ra ES aa he RNa th tie oA op wee

wee

ai ce NE See ibe RIOR a hate

swe MOH “ndlnnhing a

wureielsl _—

General Counsel’s Exhibits

No.

INDEX

Witnesses :—Continued

Edward Deady

Direct Examination 0000000000000 00000ococcccee ce cceeeeceeeeeeeeeeeeee

Charles Germain

Direct Examination _...2..0.00....0.....2...cccceecceeec cece ee eeeeeee

Leonard Farrell

Direct Examination ...... gov pub ensaxawsiedeseserstsnedessegsiaiscsd

Cross Examination ..... veucesececaucuetceececeescesseseecececseeeeeese

James B. Howe

Direct Examination _.........0000000.0000.000cceeecceesceeeeeeee

Cross Examination 2....00000000000000000002cccccceecceeeceeeee eee

Redirect Examination ..........0.00.00000000000000000ee-e -

Recross Examination ..............0....2.....000.c0000ccheeeeeeee

Richard A. Hawkins

Direct Examination .......000000000000..ccccceccceceeeceeecceeeeeeee

Cross Examination ...................000c0ccceeceseceeeeeeeeeeeeeeeees

Donald L. McClennon

Direct Examination ........................ccccccccceecceccecceeeeeee

Cross Examination _..........................cccccccceeccecceeceeeeees

Frank J. Cunningham

Direct Examintion _22.00.00000000000000occecccccc cette cee eeeceeeeees

Cross Examination ............ soepedesduedsaussteseseeessuscesseesetee. :

INDEX

General Counsel’s Exhibits—Continued Page

a 109

BP isis cata neh cient terecrsDbagtenetotdesseciociecc.-. 113

a 116

(Portions )

IN RD stenecintnerensts et ranensitnnens eset ureeeientoencercescect 140

NO. 2 esse stnentcensenertntntnstectntetenntistnsattinieeeee 142

NO. 1B nn oeeseneretneneensntetceneneuttntceetittsettcteeecce 145

NO NA econ ssenenteeensesetntntctntntentcittienetiecee 146

NO, 1G ses csseoreesnetenenesentatsabertntntrcnttepeeeeecec 147

Local 134 Exhibits:

No. 1 nna tate enahhnsai cana eaeieast sesob iecwssansnceiite ket usbuigs batcepeddeieadcc<: 148

(Portions)

DB sentneneectttenenetestsneeesnstten tenet ttattn sh senarhtbstneees cose. 155

DB eesreecretrenttectnesnteetennntntntnttetneecesittnacittitititieec. 158

PACA) oeseceeertrsentcnnmnentncnsnsnsetatnttentrtnttnetttnttigeeec 161

Board’s Decision and Order and Trial Examiner’s Decision

in International Brotherhood of Electrical Workers, AFL-

CIO, and Local 134, International Brotherhood of Electrical

Workers, AFL-CIO (Illinois Bell Telephone Company),

Cane No. 18-CB-2890 oo cststntsscnndeece 162

Board’s Decision and Order in Local Union No. 2150, Inter-

national Brotherhood of Electrical Workers, AFL-CIO and

Wisconsin Electric Power Company, Case No. 30-CB-293 __ 195

Portions of Stipulation of the parties in the Court of

APP CMS nes ceseceeetneneeststnttnttecitinttttectteene nt 202

Order of United States Court of Appeals for the District of

Columbia Circuit dated February 9,1973 204

Response of the Board and the International Union to Court’s —

OPO naa rneeneectcntneensteetntettnttcttttiattetissosicee 205

Response of Local 134 to the Court’s order 209

(The Judgment and Opinion of the United States Court of Appeals

for the District of Columbia Circuit on rehearing en banc are

printed in the Appendix to the Petition for Certiorari in the com-

panion case, Florida Power & Light Company v. 1.B.E.W., et al.

No. 73-556, and will not be reprinted in this appendix.)

—— A aap annus Pe pega arene: trun se . Rornreseerme:

« cposmenaase pins Seen AL Ta

ERG PP,

CHRONOLOGICAL LIST OF RELEVANT DOCKET ENTRIES

In the matter of:

IBEW, AFL-CIO, and Local 134, ete.

Case. No. 13-CB-2890

6.10.69 Charge filed

12.31.69 Acting Regional Director’s complaint and notice of

hearing, dated

1.13.70 Local 134’s answer to complaint

1.14.70 IBEW’s answer to complaint

3. 2.70 Amended charge filed

3.31.70 Hearing opened

4. 3.70 Hearing closed

6.29.70 Trial Examiner decision, dated

7.17.70 Bell Supervisors’ exceptions to Trial Examiner’s

decision, received ©

8. 5.70 IBEW’s motion to permit oral argument before the

Board, received

8. 5.70 IBEW’s exceptions to Trial Examiner’s decision,

received

8.10.70 Local 134’s exceptions to Trial Examiner’s decision,

received

8.20.70 General Counsel’s cross-exceptions to Trial Exami-

ner’s decision, received

7.14.71 Decision and Order issued by the National Labor

Relations Board .

9.22.72 Panel decision of the Court of Appeals

6.29.73 En Banc decision of the Court of Appeals

1.21.74 Order of Supreme Court granting certiorari

eK ABE OR eet OP! Sanpete Pa ee ee | 0b ORC TENA Ste heli COLAO EIT a ea

4 . T

Form NLRB—508 Form Approved

(2-60) Budget Bureau No. 64-R003.11

G. C. ExH. 1(a)

| UNITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD

CHARGE AGAINST LABOR ORGANIZATION OR ITS AGENTS

Neng Ne a ah abe.

INSTRUCTIONS: File an original and 3 copies of this

charge and an additional copy for each organization, each

local and each individual named in item 1 with the NLRB

regional director for the region in which the alleged un-

fair labor practice occurred or is occurring.

DNAs leeeicats siete ae AR Ratt inet Caley

Case No. 13-CB-2890

Date Filed June 10, 1969

1. Labor Organization or Its Agents Against

Which Charge Is Brought

Name: International Brotherhood of Electrical Workers,

AFL-CIO

> ei, BONE Se hie ae AS ai le hake ae SS EF St

1200 15th St. N.W., Washington, D.C.

(City, State and ZIP Code) Local 134, International

Brotherhood of Electrical Workers

600 W. Washington Blvd., Chicago, Ill. 60606

2. The above-named organization(s) or its agents has

(have) engaged in and is (are) engaging in unfair labor

practices within the meaning of Section 8(b) Subsec-

tion(s) 8(b)(1)(B) of the National Labor Relations

Act, and these unfair labor practice are unfair labor

practices affecting commerce within the meaning of the

Act.

The organizations since the Summer of 1968 have been

and are restraining and coercing Illinois Bell Telephone

Deiedn ta nt 40

. 85

the meaning of the Act, because they worked during a .

strike conducted by Local 134 against the employer dur-

ing the Summer and Fall of 1968. Among the repre-

sentatives so fined and the amounts of their fines are the

MacLennan, J. A. Marqua and W. H. Schroeder, $1,000

each; G. O. Balling, D. EB. Bennish, R. Bing, R. Bowes,

J. J. Braakman, J. R. Cline, H. E. Drucker, L. Farrell,

S. J. Finlay, Jr., B. Frueh, R. Goodrich, F. C. Hagen,

R. A. Hawkins, Sr., E. Hedstrom, R. L. Holm, J. P.

Howe, N. G. Jacobsen J r., R. O. Johnson, R. H. Kech,

K. C. Klopfleisch, C. H. Kopeika, W. L. Krizenecky, J.

seritt and C. §, Willoughby, $500 each, or a grand total

for the foregoing named Supervisors of $24,500. The

fines were imposed by the Local. Union on various dates

during October and November, 1968 and were timely ap-

pealed under the Union’s Constitution to the Interna-

by the International Vice President at sundry dates dur-

ing January and February, 1969. Thereafter the vari-

ous affected representatives appealed to the International

President, who on or about May 28, 1969, denied one

of the appeals, that of Robert P. Murphy, and in con-

sistency will, if he has not already done so, deny all of

the appeals. Immediate injunctive relief under Section

10(j) is requested.

3. Name of employer: Illinois Bell Telephone Com-

pany. -

4. Location of plant involved (Street, City, State, and

ZIP Code): 212 W. Washington St., Chicago, Ill. 60606.

5. Type of establishment ( Factory, mine, wholesaler,

etc.): Telephone company.

7 4

— iia M deeds ee ee POTN WHE 94 em Oto LACT pI Ems FLED OIC AAG ett ng ia

6. Identify principal product or service: Communica-

tion.

7. No. of workers employed: 2,500.

8. Full name of party filing charge: Bell Sanervinurs

Protective Association, not a labor organization.

9. Address of party filing charge (Street, City, State

and ZIP Code): c/o G. B: Christensen, 38 S. Dearborn

Street, Chicago, Ill. 60603.

10. Tel. No.: FI®-3600.

11. Declaration

I declare that I have read the above charge and that

the statements therein are true to the best of my knowl-

edge and belief.

By /s/ George B. Christensen

(Signature of representative

or person making charge)

Attorney

June 10, 1969

Wilfully false statement on this charge can be punished

by fine and imprisonment (U. S. Code, Title 18, Section

1001)

BRL LMA Aaa ie NSIS Cott

aon wre

DORNER a eet ite WX

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

THIRTEENTH REGION

Case No. 13-CB-2890

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

AFL-CIO, and LoOcAL 134,

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

AFL-CIO

(ILLINOIS BELL TELEPHONE COMPANY)

and

BELL SUPERVISORS PROTECTIVE ASSOCIATION

(Not a Labor Organization)

COMPLAINT AND NOTICE OF HEARING

It having been charged by Bell Supervisors Protective

Association that International Brotherhood of Electrical

Workers, AFL-CIO (hereinafter referred to as Respond-

ent International), and Local 134, International Brother-

hood of Electrical Workers, AFL-CIO (hereinafter re-

ferred to as Respondent Local 134), have engaged in,

and are engaging in, certain unfair labor practices affect-

ing commerce as set forth and defined in the National

Labor Relations Act, as amended, 29 U.S.C. Sec. 151,

et seg. (hereinafter called the Act), the General Counsel

of the National Labor Relations Board, on behalf of the

National Labor Relations Board (hereinafter called the

Board), by the undersigned Acting Regional Director for

the Thirteenth Region, pursuant to Section 10(b) of the

Act and the Board’s Rules and Regulations, Series 8, as

amended, Section 102.15, hereby issues this Complaint

and Notice of Hearing and alleges as follows:

The charge herein was filed on June 10, 1969, and a

copy thereof was served on Respondent Local 134 by

registered mail on or about June 12, 1969, and on Re-

ene PADDED Oy TEA

spondent International by registered mail on or about

June 13, 1969.

(a) Illinois Bell Telephone Company (hereinafter re-

ferred to as the Employer) is, and has been at all times

material herein, a corporation duly organized under, and

existing by virtue of, the laws of the State of Illinois.

(b) At all times material herein, the Employer has

maintained its principal office and place of business at

225 West Randolph Street, Chicago, Illinois, and branch

offices and places of business in the States of Illinois and

Indiana.

viding local and long-distance communications and related

services as part of a nationwide telephone system.

(d) During the past calendar year, the Employer, in

the course and conduct of its business operations, derived

gross reyenue in excess of one million dollars for com-

munication services between points within the States of

Illinois and Indiana, and points in other States.

(e) During the past calendar year, the Employer, in

the course and conduct of its business operations, had a

gross volume of business in excess of one million dollars.

III

The Employer is now, and at all times material herein

has been, an employer engaged in commerce within the

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

(a) Respondent International is, and has been at all

material times herein, a labor organization within the

meaning of Section 2(5) of the Act.

(b) Respondent Local 134 is, and has been at all ma-

terial times herein, a labor organization within the mean- _

ing of Section 2(5) of the Act.

— RE Hernan tem core tEetynmencere ee a

TONERS aR AR TRE Bae SEs aeN

(a) At all times material herein, there is, and has

been, a collective-bargaining agreement between Respond-

ent Local 134 and the Employer.

(b) The aforementioned Agreement was entered into

in 1948 and was last amended June 30, 1968, to be ef-

fective through June 26, 1971.

graphs (a) and (b) referred to above, Respondent Local

134 is the exclusive representative of employees described

in Article II, Section 1 (A), of said collective-bargaining

agreement.

(d) The persons employed by the Employer in the

classifications set forth below are members of Respond-

ent Local 134 under the terms of the collective-bargaining

agreement referred to above in subparagraphs (a), (b)

and (c), or because they voluntarily have become mem-

bers of Respondent Local 134.

(1) District Installation Superintendent

(2) Plant Assignment Foreman

(3) PBX Installation Foreman

(4) Assistant Staff Supervisor

(5) General Foreman

(6) Building Cable Foreman

(7) Test Center Foreman

(8) Engineer

(a) Including among the duties of persons occupying

the classifications set out in paragraph V (d) above are:

The authority to adjust grievances in the interest

of the employer; and

Supervisory authority in the day-to-day contact

with employees of the Employer involved herein.

(b) In addition, persons occupying the classifications

set out in paragraph V (d) above are, because of their

supervisory positions, persons upon whom the Employer

has called, and/or is likely to call, as representatives of

the Employer for the purpose of adjusting grievances

and/or, as representatives in. collective-bargaining nego-

tiations.

by the Employer, occupying the classifications set out in

paragraph V (d) above, have been, and are, supervi-

sors and agents of the Employer within the meaning of

Sections 2(11) and 2(13) of the Act, or are managerial

employees. .

VII

(a) On May 8, 1969, Respondent Local 134, as a

member of System Council T-4, struck the Employer.

(b) The strike continued until.September 20, 1968.

ferred to in paragraph V (d) above worked and/or su-

pervised the performance of work on behalf of the Em-

ployer.

(d) Following the conclusion of the strike, Respond-

ent Local 134 investigated, pressed charges against and

imposed fines on the individuals named in Appendix “A”

attached hereto.

(e) The individuals named in said Appendix “A” were

fined by Respondent Local 134 because they worked and/

or supervised the performance of work on behalf of the

Employer during the aforementioned strike.

(f) In addition, the persons named in Appendix “B”

attached hereto were fined by Respondent Local 134

because of their leadership in, and/or participation in,

the Bell Supervisors Protective Association,

(g) Said Association, referred to in paragraph (f)

above, was formed during the aforementioned strike to

promote the interest of the Employer’s supervisors, in-

cluding those persons in the classifications named in para-

graph V (d) above.

VIII

(a) The Constitution of Respondent International, in

Article XXVII titled “Misconduct, Offenses and Penal-

ties,” under the subheading titled ‘““Appeals,”’ provides, in

Sections 12, 14, 15, and 16, as follows:

Sec. 12. Any member who claims an injustice has

been done him by any L.U. [Local Union] or -trial

board, or by any Railroad Council, may appeal to

the I.V.P. [International Vice-President] any time

within 45 days after the date of the action com-

plained of. If the appeal is from an action of a

railroad local union, or a Railroad Council, it must

go to the I.V.P. in charge of railroad matters.

A copy of any appeal must be filed with the L.U.,

or with the Railroad Council, as the case may be.

Sec. 14. When a decision has been rendered by

the I.V.P. it shall become effective immediately.

See. 15. No appeals from decisions of the I.V.P.,

or from the I.P., or from the I.E.C. [International

Executive Committee], shall be recognized unless the

party or parties appealing have complied with the

decision from which they have appealed. However,

this section may be waived by the party making the

decision if good and sufficient reasons are furnished

and he is requested to do so.

Sec. 16. Appeals to the I.P. and to the I.E.C.,

and to the convention, to be considered, must be made

within 30 days from the date of the decision ap-

pealed from. (Appeals to the ILE.C. and to conven-

tions must be filed with the I.S.) If no appeal is

made within 30 days from the date that any deci-

sion is rendered, such decision shall be considered

final.

(b) Subsequent to the imposition of fines referred to

in subparagraph (a) above, the individuals named in Ap-

pendix “A”, pursuant to Respondent International’s Con-

stitution, Article XXVII, Section 12, as stated in sub

paragraph (a) above, appealed the imposition of said

fines by Respondent Local 134 to a Vice-President of Re-

spondent International.

(ec) In or about January and/or February 1969, a

Vice-President of Respondent International affirmed Re

spondent Local 134’s decision to impose the fines on ¥

dividuals named in Appendix “A.”

(d) Pursuant to Respondent International’s Constitu-

tion, Article XXVII, Section 16, in subparagraph (a)

above, the individuals named in Appendix “A” appealed

the decisions of a Vice-President of Respondent Inter-

national, upholding the fines imposed by Respondent Local

134.

(e) In or about late May and/or early August 1969,

the President of Respondent International affirmed the

decisions of a Vice-President to uphold the fines imposed

on. the individuals named in Appendix “A” by Respond-

ent Local 134 and dismissed the aforesaid appeals.

In or about October 1969, and continuing to date, Re-

spondent Local 134, through their officers and agents,

have attempted to collect, and have, in fact, collected said

fines imposed on persons named in Appendix “A.”

The conduct of Respondent Local 134 as described in

paragraph VII, subparagraphs (d), (e) and (f), and

paragraph IX above, has the foreseeable effect to bring,

or is bringing pressure upon the individuals employed

in the classifications set forth in paragraph V (d) above

—those fined and those not fined—to force them to place

their allegiance to Respondent Local 134 above their al-

legiance to the Employer, whenever those respective in-

terests might conflict.

By the conduct referred to in paragraph VII, subpara-

graphs (d), (e) and (f), and paragraph IX above, Re-

spondent Local 134 impinged, and is impinging on the

Employer’s statutory rights to select its representatives

for collective bargaining and grievance adjustments, and

to rely upon the uncontested allegiance of the selected

representatives, by causing the Employer to reasonably

believe that their grievance adjustors and collective-bar-

gaining representatives will place their allegiance to Re-

spondent Local 134 above their allegiance to the Employer,

whenever those respective interests might conflict.

XII

The conduct of Respondent Local 134 described in para-

graph VII, subparagraphs (d), (e) and (f), and para-

graph IX above, constitutes restraint and coercion of the

Employer in the selection of its representatives within

the meaning of Section 8(b)(1)(B) of the Act, and, by

- such conduct, Respondent Local 134 has violated, and is

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

XIII

(a) Respondent International, by sustaining the deci-

sion and discipline of Respondent Local 134, and dismiss-

ing the appeals as aforesaid, sanctioned the conduct of

Local 134 and the foreseeable effect of such conduct as

described in paragraph VII, subparagraphs (d), (e) and

(f), and paragraphs IX and X above.

(b) In or about October 1969, and continuing to date,

Respondent International, through their officers and

agents, have attempted to collect, and have, in fact, col-

lected said fines imposed on persons named in Appendix

“_

XIV

(a) By its conduct described in paragraph XIII above,

Respondent International thereby is impinging on the

Employer’s statutory rights to select its representatives

for collective bargaining and grievance adjustments, and

to rely upon the uncontested allegiance of selected repre-

sentatives.

(b) Respondent International thereby continued, and

is continuing, the restraint and coercion of the Employer

in the selection of its representatives for the purposes of

collective bargaining and the adjustment of grievances

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

By its conduct described in paragraph VIII, subpara-

graphs (c) and (e), and paragraphs XIII and XIV,

Respondent International has violated, and is violating,

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

XVI

The acts of Respondents Local 134 and International

described above in paragraphs VII through XV, occurring

in connection with the operations of the Employer de-

scribed in paragraph II above, have a close, intimate. and

substantial relation to trade, traffic and commerce among

the several States, tend to lead to labor disputes burden-

ing and obstructing commerce and the free flow of com-

merce, and constitute unfair labor practices affecting

commerce within the meaning of Section 8(b) (1) (B) and

Section 2(6) and (7) of the Act.

PLEASE TAKE NOTICE that on the 9th day of Feb

ruary, 1970, at 10 a.m., in Room 824-A, United States

Courthouse and Federal Office Building, 219 South Dear-

born Street, Chicago, Illinois, a hearing will be conducted

before a duly designated Trial Examiner of the National

Labor Relations Board on the allegations set forth in

the above Complaint, at which time and place you will

have the right to appear in person, or otherwise, and

give testimony. Attached is Form NLRB-4668, Sum-

mary of Standard Procedures in Formal Hearings Held

before the National Labor Relations Board in Unfair

Labor Practice Cases As Taken from the Board’s Pub-

lished Rules and Regulations and Statements of Pro-

cedure.

_ You are further notified that, pursuant to Section

102.20 and 102.21 of the Board’s Rules and Regulations,

Series 8, as amended, Respondents Local 134 and Inter-

national shall file with the undersigned Acting Regional

Director, acting in this matter as agent of the National

Labor Relations Board, an original and four copies of an

Answer to said Complaint within ten days from the

date of service thereof, and that unless it does so, all

of the allegations in the Complaint shall be deemed to

DPE EE SEALE LAL MELE OLLI AION, ES

be admitted to be true and may be so found by the

Board.

DATED at Chicago, Illinois, this 31st day of Decem-

ber, 1969.

/3/ Martin H. Schneid

MARTIN H. SCHNEID

Acting Regional Director

National Labor Relations Board

Thirteenth Region

Room 881, United States Court-

house and Federal Office

Building

219 South Dearborn Street

Chicago, Illinois 60604

Attachments

APPENDIX “A”

Name

Title When Fined

G. O. Balling

C. H. Barnes

D. Bennish

R. B. Bing

R. J. Bowes

J. Braakman

J. Cline

F. Crowley

H. E. Drucker

A. Ehrhardt

L. F. Farrell

_S. Finlay

B. Frueh

B. J. Gacek

R. Goodrich

F. Hagen

E. Hedstrom

R. Holm

J. Howe

N. G. Jacobson

R. Q. Johnson

R. H. Kech

T. Keegan

K. C. Klopfleisch

C. Kopieka

W. Krizenecky

V. Lovell

J.T. Magnuson

District Installation Supt.

Plant Assignment Foreman

PBX Installation Foreman

Assistant Staff Supervisor

PBX Installation Foreman

Assistant Staff Supervisor

PBX Installation Foreman

Engineer

Test Center Foreman

PBX Installation Foreman

Building Cable Foreman

PBX Installation Foreman

Building Cable Foreman

Engineer

PBX Installation Foreman

Plant Assignment Foreman

a a ae ee

eBabias sae

hat nh UAT OC RAS

ober ae

2 Spell aentys Rae e cB eta Ne de ee MR ee

eC ee ee

Name

Title When Fined

P. S. McCloskey

K. McGuire

J. Moore

R. H. Muench

R. P. Murphy

A. Novello

C. W. Paulson

I. W. Plahm

G. E. Roth

G. Schaeffer

C. R. Schmidt

J. Schraag

R. A. Schulz

N. Skertich

M. R. Tagney

R. Thome

G. M. Waters

R. J. Wenserett

W. S. Wheeler

D. L. MacLennan

C. S. Willoughby

H. W. Anderson

R. A. Hawkins

J. Marqua

W. Schroeder

ne, f)

FL LUA OLLIE LE MRE ENOL PONY LET AS PHL Res Heyy

PBX Installation Foreman

Assistant Staff Supervisor

PBX Installation Foreman

Building Cable Foreman

PBX Installation Foreman

General Foreman

District Installation Supt.

PBX Installation Foreman

Oe RESIN

VO LAL OLE ALE ey Se MOE

APPENDIX “B”

Name Title When Fined

D.L.MacLennan — General Foreman

H. W. Anderson -- PBX Installation Foreman

R. A. Hawkins — PBX Installation Foreman

J. Marqua — PBX Installation Foreman

W. Schroeder — PBX Installation Foreman

PULL OREO GT BOS ONE NROR ETT OE CTE ATES tan a ea err en tre ay

100

Form NLRB-4668

(9-67) (C CASES)

SUMMARY OF STANDARD PROCEDURES IN FORMAL HEAR-

INGS HELD BEFORE THE NATIONAL LABOR RELATIONS

BOARD IN UNFAIR LABOR PRACTICE CASES AS TAKEN

FROM THE BOARD’S PUBLISHED RULES AND REGULATIONS

AND STATEMENTS OF PROCEDURE

The hearing will be conducted by a Trial Examiner

of the National Labor Relations Board. He will preside

at the hearing as an independent, impartial trier of

the facts and the law and his decision in due time will

be served on the parties. His headquarters are either in

Washington, D.C. or San Francisco, California.

At the date, hour, and place for which the hearing is

set, the Trial Examiner, upon the joint request of the

parties, will conduct a “pre-hearing” conference, prior to

or shortly after the opening of the hearing, to assure

that the issues are sharp and clear-cut; or he may, on

his own initiative, conduct such a conference. He will

preside at any such conference, but he may, if the oc-

casion arises, permit the parties to engage in private

discussions. The conference will not necessarily be re-

corded, but it may well be that the labors of the con-

ference will be evinced in the ultimate record—for ex-

ample, in the form of statements of position, stipula-

tions, and concessions. Except under unusual circum-

stances, the Trial Examiner conducting the prehearing

conference will be the one who will conduct the hearing;

and it is expected that the formal hearing will com-

mence or be resumed immediately upon completion of the

prehearing conference. No prejudice will result to any.

party unwilling to participate in or to make stipulations

or concessions during any prehearing conference.

(This is not to be construed as preventing the parties

from meeting earlier for similar purposes. To the con-

trary, the parties are encouraged to meet prior to the

time set for hearing’ in-an°@itofuto~narrgw thacissves.),

Parties may be represented by an attorney or other

representative and present evidence relevant to the issues.

ST ALR ar a rider LAO RETTR CR WRAY eee TeRaNr Rie htew —

101

An official reporter will make the only official transcript

of the proceedings, and all citations in briefs and argu-

ments must refer to the official record. The Board will

not certify any transcript other than the official tran-

script for use in any court litigation. Proposed cor-

rections of the transcript should be submitted, either

by way of stipulation or motion, to the Trial Examiner

for his approval.

All matter that is spoken in the hearing room while

the hearing is in session will be recorded by the official

reporter unless the Trial Examiner specifically directs

off-the-record discussion. In the event that any party

wishes to make off-the-record s tements, a request to

go off the record should be directed to the Trial Ex-

aminer and not to the official reporter.

Statements of reasons in support of motions and ob-

jections should be specific and concise. The Trial Ex-

aminer will allow an automatic exception to all ad-

verse rulings, and, upon appropriate order, an objection

and exception will be permitted to stand to an entire

line of questioning.

All exhibits offered in evidence shall be in duplicate.

Copies shall also be supplied to other parties. If a copy

of any exhibit is not available at the time the original

is received, it will be the responsibility of the party of-

fering such exhibit to submit the copy before the close

of hearing. In the event such copy is not submitted,

and the filing thereof has not for good reason shown

been waived by the Trial Examiner, any ruling receiv-

ing the exhibit may be rescinded and the exhibit re-

jected.

Any party shall be entitled, upon request, to a reason-

able period at the close of the hearing for oral argument,

which shall be included in the stenographic report of the

hearing. In the absence of a request, the Trial Examiner

may himself ask for oral argument, if at the close of the

hearing he believes that such argument would be bene-

ficial to his understanding of the contentions of the par-

tives ail thie fratund, ‘esses inwlrad.

Any party shall also be entitled upon request made

before the close of the hearing, to file a brief or proposed

ee RTO VLEET "UHR RUT my my

hit 8 IR Le Pin 0) 0 Oona RS

pie Bist co attains ans F

FER ers power

102

findings and conclusions, or both, with the Trial Exam-

iner who will fix the time for such filing.

Attention of the parties is called to the following re-

quirements laid down in Section 102.42 of the Board’s

Rules and Regulations with respect to the procedure to

be followed before the proceeding is transferred to the

Board:

No request for an extension of time within which to

submit briefs or proposed findings to the Trial Exam-

iner will be considered unless received by the Chief Trial

Examiner in Washington, D. C. (or, in cases under the

San Francisco, California branch office of Trial Exam-

iners, the Associate Chief Trial Examiner in charge of

such office) at least 3 days prior to the expiration of time

fixed for the submission of such documents. Notice of

request for such extension of time must be served simul-

taneously upon all other parties, and proof of such service

furnished to the Chief Trial Examiner or Associate

Chief Trial Examiner, as the case may be. All briefs or

proposed findings filed with the Trial Examiner must be

submitted in triplicate, and may be in typewritten,

printed, or mimeographed form, with service upon the

other parties.

In due course the Trial Examiner will prepare and file

with the Board his decision in this proceeding, and will

cause a copy thereof to be served upon each of the parties.

Upon filing of the said decision, the Board will enter an

order transferring this case to itself, and will serve

copies of that order, setting forth the date of such trans-

fer, upon all parties. At that point, the Trial Examiner’s

official connection with the case will cease.

The procedure to be followed before the Board from

that point forward, with respect to the filing of exceptions

to the Trial Examiner’s Decision, the submission of sup-

porting briefs, requests for oral argument before the

Board, and related matters, is set forth in the Board’s

Rules and Regulations, Series 8, as amended, particularly

in Section 102.46, and following sections. A summary of

the more pertinent of these provisions will be served upon

the parties together with the order transferring the case

to the Board.

a ile ee aL en Tete

103

Adjustments or settlements consistent with the policies

of the Act reduce government expenditures and promote

amity in labor relations. Upon request, the Trial Ex-

aminer will afford reasonable Opportunity during the

hearing for discussions between the parties if adjust-

ment appears possible, and may himself suggest.

OPIN RTO OR TENS T (8 YOR Nm we aN Ng oe IE PIN AN ery . yw

ne at Lo th: be he htt OE ae BAEC 0 aE et EPO A LIK

OTe cL

Tg ae

PUA I rT Rs teh 9 oa

Se ne ee

104

G. C. ExH. 1(e)

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

THIRTEENTH REGION

Case No. 13-CB-2890

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

AFL-CIO, and LOCAL 134,

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

AFL-CIO

(ILLINOIS BELL TELEPHONE COMPANY)

and

BELL SUPERVISORS PROTECTIVE ASSOCIATION

(Not a Labor Organization)

ANSWER OF LOCAL 134 TO COMPLAINT

Now comes LOCAL 134, INTERNATIONAL BROTH-

ERHOOD OF ELECTRICAL WORKERS, AFL-CIO

(hereinafter called Local Union), by its attorneys, ROB-

ERT E. FITZGERALD, JR., and EDWARD J. CALI-

HAN, JR., and answers the Complaint in the above cap-

tioned case as follows:

A) The Local Union admits the allegations contained

in paragraphs I, II (a) (b) (c) (d) and (e), III, IV (a)

and (b), VII (a) and (b), and VIII (a).

B) The Local Union denies each and_every allegation

contained in paragraphs V (a) (b) (c) and (d), VI

(a) (b) and (ce), VII (c) (d) (e)(f) and (g), VIII

(b) (e) (d) and (e), IX, X, XI, XII, XIII (a) and (b),

XIV (a) and (b), XV and XVI.

C) The Local Union affirmatively states as follows:

1. That the charging party, the so-called Bell Super-

visors Protective Association, is a company dominated

labor organization, which was formed by the Illinois

Dy zeae, % .

TPE LEAR IN CC BYE POE ON ane mag {LON Rely Vey

105

Bell Telephone Company, during the strike referred to in

paragraph VII (a) and (b), for the purpose of solicit-

ing members of the Local Union to voluntarily act as

strike breakers, by performing the craft work of their

fellow members who were on strike.

2. That most of the persons listed in Exhibit A of

the Complaint voluntarily acted as strike breakers by

performing the craft work of their fellow members who

were on strike, and that the Loca] Union fined most of ©

the persons listed in Exhibit A for engaging in that

conduct.

3. That the Local Union fined the persons listed in

Exhibit B for their conduct in assisting the Illinois Bell

Telephone Company in the formation and operation of the

company dominated labor organization referred to in

1 above.

4. That all of the conduct of the Local Union was with-

in the proviso of Section 8(b) (1) of the Act.

WHEREFORE, the Local Union prays that the Com-

plaint herein be dismissed.

/8/ Robert E. Fitzgerald, Jr.

ROBERT FE. FITZGERALD, JR.

/8/ Edward J. Calihan, Jr.

EDWARD J. CALIHAN, JR.

Attorneys for Local 134, Inter-

national Brotherhood of Elec-

trical Workers, AFL-CIO

53 West Jackson Blvd.

Chicago, Illinois 60604

922-3113

ARG BA NOE TIN AD Gras A ae 0 cae AA AS OBL ON

106

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Answer

have been mailed this 138th day of January, 1970, via

regular mail to:

Ross M. Madden, Regional Director

National Labor Relations Board

Thirteenth Region

Room 881, United States Courthouse

219 South Dearborn Street

Chicago, Illinois 60604

George B. Christensen, Esq.

Winston, Strawn, Smith & Patterson

38 South Dearborn Street

Chicago, Illinois 60603

International Brotherhood of Electrical

Workers, AFL-CIO

Attn: Laurence J. Cohen, Esq.

1200 - 15th Street, N.W.

Washington, D.C. 20005

Local 134, International Brotherhood of

Electrical Workers, AFL-CIO,

600 West Washington Boulevard

Chicago, Illinois 60606

Bell Supervisors Protective Association

c/o George B. Christensen, Esq.

Winston, Strawn, Smith & Patterson

38 South Dearborn Street

Chicago, Illinois 60603

/s/ Robert E. Fitzgerald, Jr.

ROBERT E. FITZGERALD, JR.

107

G. C. Exu. 1(f)

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

THIRTEENTH REGION

Case No. 13-CB-2890

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

AFL-CIO, and LocaL 134,

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

AFL-CIO

(ILLINOIS BELL TELEPHONE COMPANY)

and

BELL SUPERVISORS PROTECTIVE ASSOCIATION

ANSWER OF RESPONDENT

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO

The International Brotherhood of Electrical Workers,

AFL-CIO (hereinafter Respondent International), here-

with files this Answer to the allegations in the Com-

plaint and Notice of Hearing issued by the Acting Re-

gional Director for Region 13 on December 31, 1969.

Respondent International admits the allegations of the

Complaint contained in paragraphs I, II(a)-(e), III,

IV(a)-(b), VII (a)-(b) and VIII (a).

Respondent International denies the allegations of the

Complaint contained in paragraphs V(a)-(d), VI(a)-

(ec), VII (e)-(g), VIII (b)-(e), IX, X, XI, XII, XIII (a)-

(b), XIV(a)-(b), XV and XVI.

In addition to the denial of the paragraphs of the

Complaint set forth above, Respondent International sets

forth as affirmative defenses the following:

1. Assuming, arguendo, the truth of all the factual alle-

gations in the Complaint, the conduct described therein

does not violate Section 8(b) (1) (B) of the Act as a

matter of law.

: Swe

vile ie

OSS tebe IP Faw Vendio aed

Pree NONE ace Dy PU rte eed

—e.

108

2. Respondent International did not, in fact or in law,

fine or otherwise discipline any of the individuals listed

in Appendices A or B to the Complaint, nor was Respond-

ent Local 134 acting for or on behalf of the Internation-

al with respect to any actions it took against said indi-

viduals. Therefore, assuming, arguendo, that Respondent

Local 134 is found to have violated Section 8(b) (1) (B)

as alleged in the Complaint, Respondent International

committed no act itself which constitutes a violation of

Section 8(b) (1) (B); nor can any violation of that Sec-

tion be found based on its status as the parent organiza-

tion of Respondent Local 134.

Respectfully submitted,

/s/ Laurence J. Cohen

LAURENCE J. COHEN

SHERMAN, DUNN & COHEN

1200 - 15th Street, N.W.

Washington, D. C. 20005

Counsel for Respondent

International

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Answer

were mailed this 14th day of January 1970 to the fol-

lowing:

Robert E. Fitzgerald, Jr., Esquire

53 West Jackson Boulevard, Suite 1112

Chicago, Illinois 60604

George B. Christensen, Esquire

38 South Dearborn Street

Chicago, Illinois 60603

Laurence J. Cohen

109

G. C. Exu. 1(i)

Form NLRB-508 Form Approved

(2-60) Budget Bureau No. 64-R003.11

DOCKETED

UNITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD

AMENDED CHARGE AGAINST LABOR ORGANIZATION

OR ITS AGENTS

INSTRUCTIONS: File an original and 3 copies of this

charge and an additional copy for each organization,

each local and each individual named in item 1 with

the NLRB regional director for the region in which the

alleged unfair labor practice occurred or is occurring.

Do Not Write in This Space

Case No.

13-CB-2890

Date Filed

March 2, 1970

1. Labor Organization or Its Agents Against Which

Charge Is Brought

Name

International Brotherhood of Electrical

Workers, AFL-CIO

1200 15th St. N.W., Washington, D.C.

Address (Street, City, State and Zip Code)

Local 134, International Brotherhood of Elec-

trical Workers

600 W. Washington Blvd., Chicago, Ill. 60606

The above-named organization(s) or its agents has

(have) engaged in and is (are) engaging in unfair labor

practices within the meaning of section 8(b) subsec-

tion(s) 8(b)(1)(B) of the National Labor Relations

MEARS BOLE CLOG LIE LS REL EN LT (oL BIOS AN SLO «OOS eR I IN Re SSS ILL RS IIL OSE EDD LONE: YEE OTT II

110

Act, and these unfair labor practices are unfair labor

practices affecting commerce within the meaning of the

j Act.

2. Basis of the Charge (Be specific as to facts, names,

addresses, plants involved, dates, places, etc.)

The organizations since the Summer of 1968 have

been and are restraining and coercing Illinois Bell

j Telephone Company in the selection of its representa-

3 tives for the purposes of collective bargaining or the

4 adjustment of grievanees by levying fines in large

; amounts of money against sundry of such repre-

sentatives, supervisors within the meaning of the

Act, because they worked during a strike conducted

by Local 134 against the employer during the Sum-

: mer and Fall of 1968. Among the representatives so

fined and the amounts of their fines are the follow-

ing: H. W. Anderson, R. A. Hawkins, Jr., D. L.

MacLennan, J. A. Marqua and W. H. Schroeder,

$1,000 each; G. O. Balling, D. E. Bennish, R. Bing,

: R. Bowes, J. J. Braakman, J. R. Cline, H. E. Druck-

4 er, L. Farrell, S. J. Finlay, Jr., B. Frueh, R. Good-

rich, F. C. Hagen, R. A. Hawkins, Sr., E. Hedstrom,

R. L. Holm, J. P. Howe, N. G. Jacobsen Jr., R. O.

Johnson, R. H. Kech, K. C. Klopfleisch, C. H. Kope-

ika, W. L. Krizonecky, J. T. Magnuson, P. S. Mc-

Closkey, K. G. Mcguire, J. E. Moore, R. H. Muench,

: R. P. Murphy, C. W. Paulson, I. I. Plahm, G. E.

. Roth, G. F. Schaefer, C. Schmidt, R. A. Schulz, N.

; Skertich, R. E. Thome, G. Waters, R. J. Wenseritt

and C. S. Willoughby, $500 each, or a grand total

for the foregoing named supervisors of $24,500. The

: fines were imposed by the Local Union on various

3 dates during October and November, 1968 and were

: timely appealed under the Union’s Constitution to

E the International Vice President at sundry dates

during October, November and December, 1968. The

appeals were denied by the International Vice Presi-

dent at sundry dates during January and February,

1969. Thereafter the various affected representa-

tives appealed to the International President, who

on or about May 28, 1969, denied one of the appeals,

that of Robert P. Murphy, and in consistency will,

if he has not already done so, deny all of the ap-

sstieeieeeeanadtinil —_— _—

10.

111

peals. Immediate injunctive relief under Section 10

(j) is requested.

The charging party is informed and believes that

$500 fines were imposed by the Local Union at vari-

ous dates during October and November, 1968 upon

the following named representatives of Illinois Bell —

Telephone Company;

C. H. Barnes T. Keegan M. R. Pagney

F. Crowley V. Lovell W. S. Wheeler

A. Ehrhardt A. Novello R. A. Schultz

B. J. Gacek J. Schraag J. Braakman

but is without information as to whether said fines

were appealed.

Name of Employer

Illinois Bell Telephone Company

Logation of Plant Involved (Street, City, State, and

ZIP Code)

212 W. Washington St., Chicago, Ill. 60606

Type of Establishment (Factory, mine, wholesaler,

etc.)

Telephone company

Identify Principal Product or Service

Communication

No. of Workers Employed

2,500

Full Name of Party Filing Charge

Bell Supervisors Protective Association, not a

labor organization

Address of Party Filing Charge (Street, City, State

and ZIP Code)

c/o G. B. Christensen

One First National Plaza, Chicago, Illinois

60670 .

Tel. No.

786-5600

112 |

11. Declaration

i I declare that I have read the above charge and that

the statements therein are true to the best of my

knowledge and belief.

By /s/ George B. Christensen

; (Signature of representative

or person making charge)

December 29, 1969 Attorney

. (Date) ' (Title or office, if any)

: Wilfully false statements on this charge can be punished

Z by fine and imprisonment (U. S. Code, Title 18, Section

] 1001)

POL ak ’ ad

113

G. C. Exu. 4

As a result of a series of discussions held with repre-

sentatives of Local 134 I.B.E.W. for the purpose of for-

mulating a plan for merging Local 134 Supervisory

forces into the 3 level structure required by the “District

Unit” plan of operation the following conclusions have

been reached:

PROMOTIONS

I All present P.B.X. General Foremen will be promoted

to District Installation Superintendents reporting to

the District Plant Superintendent in the Plant Dis-

trict to which they are assigned.

All present Building Cable General Foremen will be

promoted to District Construction Supervisors re-

porting to the Division Construction Superintendent

to whom they are assigned.

(A) As District Installation Superintendents and

District Construction Supervisors their wages

and conditions of employment will not be a

matter of union-management negotiations but

They will not be required to discontinue their

membership in the union as it is recognized

that they have accumulated a vested interest

in pension and insurance benefits as a result

of their membership in the union. However,

any allegiance they owe to the union shall not

affect their judgment in the disposition of their

supervisory duties. Since they will have under

their supervision employees who are members

of unions other than Local 134 and perhaps

some with no union affiliations whatever, the

company will expect the same impartial judg-

ment that it demands from all Supervisory

personnel.

114

GENERAL FOREMEN

The number of General Foremen under the contract

will be restricted to one in each plant Division in

the Chicago Area where Local 134 forces are em-

loyed under the contract and one in the State Area

Plant Department where Local 134 forces are em-

ployed.

(A) They shall be assigned to the staff of the Divi-

(B)

sion Supt. or the General Plant staff and their

duties shall be as follows:

Supervision of all apprentices, Journeymen and

Foremen in the Division to which they are as-

signed with respect to matters of personnel

and employee relations such as: training, force

adjustments, health and welfare, job safety,

overtime distribution, absenteeism, contract in-

terpretation, etc., by coordinating these mat-

ters between the Division staff and the line or-

ganization. They may be assigned to qualify

job observations and other assignments not in-

consistent with the provisions of the contract.

It is understood that the Foremen, while re-

porting directly to the District Installation Su-

perintendent or District Construction Super-

visor as the case may be, may consult with the

General Foreman of the Division in all cases

where the proper application of these matters

is. in question.

It is understood that future District Installa-

tion Superintendents or District Construction

Supervisors will be chosen at the discretion of

management and not necessarily from the

ranks of General Foremen.

However, it is further understood that no discrimi-

nation will be shown, that individual ability and

qualifications will control.

(C)

Conditions may warrant regrading of a Gen-

eral Foreman to the status of Foreman but the

PORTE Ga NE?

115

Company will use every effort to maintain

qualified General Foremen in that assignment.

FOREMEN:

III All apprentices and journeymen employees who are

members of Local 134 will be directly supervised by

Foremen who are active members of Local 184, and

nothing in these articles is meant to infer otherwise.

Tentative effective date July 1, 1954.

Approved :

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS—LOCAL No. 134

/s/ Harry J. Hughes

For Local Union No. 134

/s/ J. M. Boyle

Vice-President—Sixth District

International Brotherhood of

Electrical Workers

Approved:

ILLINOIS BELL TELEPHONE COMPANY

/8/ [Illegible]

General Plant Manager

Chicago Area

/8/ D. L. Brown

General Plant Manager—State Area

116

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140

G. C. Exu. 11

CHECK LIST FOR HANDLING GRIEVANCES

It will be well to bear in mind that sometimes prob-

lems can be solved before they become grievances by pre-

dicting what reaction might be anticipated in a given

situation. By explaining the reasons for the action, sell-

ing the fairness of the decision and trying to get the

employee to understand why, the cause for a grievance

may be eliminated.

When a grievance is presented, here are some ideas on

suggested procedure and discussion which may be help-

ful:

1. Hear the Grievance

Let the grievant talk.

Don’t interrupt, except to ask clarifying questions.

Give him the courtesy of a fair hearing.

Keep your temper.

Make notes for further reference.

Find out all you can about the problem.

Determine, through discussion, if there is an under-

lying cause for the grievance which does not ap-

pear on the surface.

If the grievant does not refer to it, be sure to ask

what part of the Agreement is alleged to have been

violated.

Draw out all facts the grievant can give about the

complaint.

2. Decide whether you can give your answer now or

whether you should postpone your decision until you

have had more time to consider.

If you are sure of your decision, give the answer

now. If you allow the grievance back down grace-

fully. See no. 5.

Explain why you must deny the grievance.

If the grievant is not satisfied, and says he’ll ap-

peal it, acknowledge that that is his privilege under

the Agreement.

Give your supervisor all the facts, so he can be

ready for the appeal, if it is processed.

141

142

G. C. Exu. 12

UNION AND PERSONNEL PROBLEMS

It would be worthwhile to consider what we might do to

help field supervision who are confronted with Union

and personnel problems. This opinion is prompted by

personnel cases, grievances, and even arbitration cases

which have occurred in the past year or more. Perhaps

a clearer understanding of field supervision’s role as

members of management, and a knowledge of techniques

and personnel consideration would help make them feel

more secure and effective in their day-to-day personnel

operations.

It is realized that most personnel cases are detected and

resolved. However, there is some evidence that others

are identified but tolerated, either covered up by sympa-

thetic but misguided supervisors, or else allowed to exist

because they are recognized as problems of long standing

and their solution seems too difficult to achieve.

Perhaps where the latter situation prevails, field people ~

are unduly influenced by similar cases where corrective

measures may have been attempted or taken; but in the

events which followed, the employee was reinstated be-

cause of facts or data which, later uncovered, placed

management in an untenable position. Where reversals

have taken place and those who were directly concerned

with. the initial action were not later acquainted with the

reasons for reversal, we may have unwittingly created

additional problems within our own management ranks.

To illustrate these points we have cases where:

1. Employee was dismissed for some infringement of

Company policy, but later reinstated with or without a

service break. _

2. Disciplinary action taken, but later overruled where

other controlling factors were introduced at a later date

which negated the justification for the penalty inflected.

Bo a EE a RS er Bae Bard

143

8. Action taken but not supported by higher levels which

resulted in “burying” the case thereby conditioning a “to

hell with it” attitude on similar situations in the future.

Where failure to follow through was a factor, it may

have been caused by a lack of understanding of manage-

ment’s responsibilities and prerogatives, a fear of in-

volvement with the Union, etc.

After the identification of a personnel problem, it is es-

sential that we build up a case step by stép to insure a

satisfactory conclusion, a correction of weaknesses or

faults, or a separation ‘from the payroll—other measures

having failed. In processing these cases it is imperative

and essential that:

(a) We get all the facts. This does not presuppose that

a statement or allegation by a management person is in

itself a fact. Allegations must and should be supported

by something more than an individual’s opinion or judg-

ment.

(b) We must consider all the facts, not only those

which support the action we desire to take. Mitigating

circumstances not brought out, or factual data deliber-

ately withheld but introduced later, places management

in a embarrassing position, causes it to lose prestige

while at the same time enhances the status of the Union

in the eyes of its membership. The Union’s basic func-

tion is to defend its people, and we recognize that this

is a legitimate objective. However, we should not build

up the Union’s image through our own inept handling

of such cases.

(ec) Disciplinary action must be taken-where it is war-

ranted but only after sober consideration has been given.

It is difficult to completely eliminate emotions, but We

must all be aware that emotions unchecked precipitate

actions and decisions which may later be found to be

improper.

In all instances we must take time out to reflect on all

facets of ‘the problem. There are no instances where we

should summarily discharge people. In an extreme case

we can even go to the extent of having people physically

— .

144

removed from the premises. We can best maintain our

position through the use of suspension as opposed to dis-

missal. The value in this approach is that we secure the

phychological effect of outright dismissal—the employee

is inclined to think the worse. Suspension gives us time,

time to recheck facts and minimize the extent to Which

emotions may have influenced judgment.

Where this reflection justifies the original judgment, dis-

missal may follow and in most instances will stand. If

not, we can mete discipline and return the employee to

the payroll at a later date in no way impairing our

status as management people. Familiarity with our ob-

ligations under the Agreement will also do much to in-

sure the success of the action we decide to take.

The above thoughts are set down more as a basis for

thinking and consideration rather than for communicat-

ing to line management people at this time.

The subject calls for much deliberation as to type of

approach we ought to develop to get these views across

without having our motives misunderstood. It is not our

intention to indulge in-a witch hunt, but rather to give

our management péople a clear understanding of their

responsibilities and prerogatives as management people;

and, the techniques and assistance available to them in

solving perhaps our most difficult problems—personnel

problems.

8-14-62

145

GENERAL COUNSEL’S EXHIBIT No. 13

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146

GENERAL COUNSEL’S EXHIBIT No. 14

Sane Onlin

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147

GENERAL COUNSEL’S EXHIBIT No. 16

Section C

SCHEDULE 2

TSH TEs

i Tat re

all;

itl

aie

0 il eed or

~~ /

Fe a ie a ee tele en * .

. p> pr PA NCEIR TEN OE: NIRA TRE MPL ES ©

P i wes Aah LP ia) ‘ ews ia

eegt

elas

SIE PMI LAL YD

AIEEE LETT IE IE ON IE CN mePAe

CONT NEE RE, CONDLED NIE II ONE EID

—_—

149

ARTICLE XXII

ADMISSION OF MEMBERS

* + * a

Sec. 2. Each applicant for membership shall fill out an

application blank furnished or approved by the LS., and

answer all questions. The original application or a copy

must be sent to the LS.

Sec. 3. The acceptance of an application for member-

ship, and the admission of the applicant into any L.U. of

the I.B.E.W., constitutes a contract between the member,

the L.U. and the I.B.E.W., and between such member

and all other members of the LBEW

Sec 4. Each applicant admitted, shall, in the presence

of members of the I.B.E.W., repeat and sign the follow-

ing obligation:

WE i ak ees Nee

? oO Lomas oe

presence of members of the International Brotherhood of

Electrical Workers, promise and agree to conform to and

abide by the Constitution and laws of the I.B.E.W.

and its local unions. I will further the purposes for

which the I.B.E.W. is instituted. I will bear true allegi-

ance to it and will not sacrifice its interest in any man-

ner.”

Sec. 5. The obligation card signed by the applicant

shall be sent to the LS.

The L.U. shall have each applicant, except as pro-

vided in Section 10 ofthis article, take the obligation

before a regular meeting, or if it so decides, this may

be done outside the regular meeting in the presence of the

president or the vice president or the recording secretary.

* * * *

150

ARTICLE XXVI

WITHDRAWAL CARDS—PARTICIPATING

AND HONORARY

* * * *

Sec. 5. The validity of any withdrawal card shall be

dependent upon the good conduct of the member. It can

be annulled by any L.U. or by the I.P. for violation of

the laws of the I.B.E.W., or the bylaws and rules of any

L.U., or for working with or employing non-members of

the I.B.E.W. to perform electrical work, or for any ac-

tion of the holder detrimental to the interests of the

I.B.E.W. Membership in the I.B.E.W. is automatically

terminated upon anhulment of any withdrawal card.

A member on a withdrawal card may be subject to

charges, trial and appropriate penalty in accordance with

provisions of the Constitution.

ARTICLE XXVII

MISCONDUCT, OFFENSES AND PENALTIES

Sec. 1. Any member may be penalized for committing

any one or more of the following offenses:

(1) Resorting to the courts for redress of any injustice

which he may believe has been done him by the I.B.E.W.

or any of its L.U.’s without first making use, for at

least a four-month period, of the process available to him

under the I.B.E.W. Constitution including any appeal or

appeals from any decision against him.

(2) Urging or advocating that a member, or any L.U.,

start action in a court of law against the

151

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157

Record of Attendance

Danny Covington, Building Cable Apprentice

Wo record maintaintd for first four weeks.

12-13-69 ~ Did not show up for Saturday Tour (2nd time)

12-15-69 - Absent - Personal Business (No reason)

12-19-69 - 4 hours ~ Personal Business

12-22-69 - 2 hours late ( docked )

12-26-69 - 1 hour late ( docked )

1- 9-70 ~ 10 minutes late

1-12-70 — 10 minutes late

1-13-70 = 30 minutes late ,

1-19-70 - 4 hours = Personal Business (Jail) /

1-21-70 - 1 hour late ’ /

2- ka70 = Absent — flu f

2-10-70 ~ 1 hour late : \

2-16-70 - 20 minutes late (Plant School) . '

2-17-70 - Absent - Toothache (Did not show up at Plant School and \

did not call until 11:00 a.m.) \

2-19-70 - 1 hour late — Brought in to Construction Cffice and dismisse’l.

Mr. Covington and the Union were informed on January 13, 1970 that

further tardiness or'unsubstantiated absence would lead to

dismissal,

158

illinois Bell

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M&. T. 8S. FPioretti . “ad mag % ae

District Installation Supte . rae

Franklin District ho ‘e

The following will serve as a documentation of the series of

events that occurred on Friday, March 28,\1969, from 8: A.M.

until 4:30 P.M. at The First National Bank of Chicago.

‘at 8:00 A.M., using payday as a vehicle to commmicate to

all the craft (38) at one time, I scheduled a general meeting.

Points to be covered at the meeting were as follows:

2. Coffee Breaks - In an effort to eleviate the problems we

are encountering with elevator service in the building, it was

my decision to split the coffee break into two locations within

related to all, that Mr. Full, my T-13, Mr. Hroch, my ——

‘be available and could act in my absence. All understood, and

all concurred. oo ae eae

2. Problem with keys ~ As you know, the keying system for the

telephone closets in the bank, at this time, is such that I have

two separate keys for each floor in the building, one Tor the

east shaft and one for the west. ‘This gives me a total of about

60 keys that we have signed for and must be managed. I have a

‘clip board system where the men can get the key they need. -

However; Certain individuals are forgetting to return the keys

and have taken them home, ard in oné instance the keys for one

: shaft have been lost. The cedure for obtaining and returning

3 the keys was. reviewed at. time. *-~ . ,

ra ee seine

REAM EE EH: FERAL NS TEESE BOT ER. eo DORA MINCE Rat ——

Sr EE EASES he ETE ER Poe a EONS SP aes (ot PDE N= El Bye ae ie Sete Ne!

iSite Sint siti 80 iia Rhian

159

Mr. T. S. Fioretti

March 28, 1969 .-

-2-

3. Floor plans - A similar condition exists in this area,

and again reviewed as to the importance. of the floor plans

being returned after use. Several of the other trades seem to

cotton to our floor plans, as they are more detailed and the

furniture layout and overall office arrangement 4s more easily

recognizable. ; * "

4. Security - In licu of the events of the past week, and

here I am referring to the rash of thievery that all trades are

experiencing in the building, I again reiterate the fact that

they must at all times lock their shafts, secure their own personal

tools and return to the tool locker any large — 1. Coy

electric drills, heaters, dated

5. Alcoholic Beverages = I had an experience i. the vast

week whereby a craftsman left the building at 12:00 o "clock noon

and returned shortly thereafter with sandwiches and a can of

beer. Upon secing him I told the individual that at no time and

under no circumstances would alcoholic beverages be carried into

the building on this job. In the event he was seen by the other

eraft I used this opportunity to express to all concerned the fact

that alcohol has no place in our Job _— and will not be

tolerated. : :

. The meeting was then opened for general discussion and several

ideas, unrelated to the five topics mentioned above, were ex-

changed and 6 easel ea Oe

7 e :

At approximately 12:30 P.M. I went to Mr. Fioretti's office

in Room 679 of the old bank building, to drop off some vapers he

had asked for and to.pick up my mail, which is Gelivered there.

We discussed some matters and I returned to my camp on the 34th

floor. At 1:00 o'clock P.M. Mr. Fioretti and Nr. Hubbarés entered

my office and expressed a desire to tour the upper floors, to

evalute the status of construstion of the tenants’ spaces. Having:

accomplished our objectives I returned to the 34th floor and

proceeded to visit my pre-wire room where I have 5 craftsmen

assemblying and pre-wiring frames for the telephone closets.

Mr. Gerald Woods and Nr. Steve Molx were missing from theiv job

locations and I inquired of Ray iicCarthy if he Ikmew where the men

« He replied that he did not, and I went to my office to find

Ed Full, to see if he knew their whereabouts. Upon entering ny

office I overfeard Mr. Full talking on the telephone. He was

telling someort® to get back to the building as soon as possible.

When I heard this I asked him who he was talking to and to give

nes.

“s

’

ee ees ea ee ee

pees ee Ae

160

Mr. T. S. Fioretti

March 28, 1969

-3- .

. . > : : : :

me the phone. The party hung up upon hearing my voice in the

background. JI asked Ed who was on the phone. He said Steve Molk,

end I asked where he was. Ed said at the 181 West Madison Grill.

_I told him to take one elevator -and pick up Mr. Hroch (the etewerd)

his job location and I would take another and meet him on the

first floor lobby. It was my intent at this point to meet Hr. Holk

and kr. Woods coming back to the building and have a confrontation

with them myself, and with their union steward. ‘We waited on the

first floor and they did not return. About fifteen minutes passed

end I told Mr. Full and Kr. Hroch to remain in the lobby and weit

for them to return, because I was going to the bar to find then

and I might miss seeing them. I entered the 181 West Madison Grill

about 3:50 P.M. and found Mr. Molk and Mr. Woods sittig at the bar

with drinks in front of them and money on the counter. They were,

in my opinion, inebriated. I told both of them they were off the

payroll, that I could do nothing for them and that they would be

hearing from their union representative. They both nodded their

heads; but gid not say a word. I stood there a moment and then

left withovt further conversation. I waited outside for a few

monents, and when they made no attempt to come out I returned to

“the lobby, picked up Mr. Full and Hr. Hroch and proceeded to

Mr. Fioretti's office to relate what had happened.

Footnote: Considering the fact that I held a meeting at 8:00 A.M.

this very day and discussed not leaving the building and not to -

consume alcoholic beverages, it is my personal feeling that the

two men in question were in direct defiance of my endeavors for

better job performance,: and it is my recommendation that they be

terminated. a _* ‘j

«tee

161

; APPLICATION FOR MEMBERSHIP

) INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

-.. Local No. B-134

* CHICAGO 7, ILLINOIS

—

‘ INITIATION FEE $__/ 22°

Desiring to becoine a member of the I. B. E. W., I hereby make application to your Local Union

with the accompanying fee and vouchers, I am a : :

° . 2

and work for_SQRivae “Bed AabalSrone where I have been employed

§ for_Q_ “20a Before that I worked for.

Have you ever been a member of the I. B.E. W.?. Ye

it so, where?.

Why did yen discontinue your membership?

Have you ever made application for membership in the L.B.E.W.?_

If so, where?.__>_. :

How long have you been in the electrical business?__&_ Wso.2

If given membership in your Local Union I will fulfill the requirements of the laws of the organ-

ization and remain a true and loyal member. I make this appiication of my-own free will, be-

lieving it to be to my interest to associate myseif with you. : -

I also agree to all the rules and regulations as set forth in the By-Laws of your Local Union

and the Constitution of the I. B. E. W. :

Failure to comply with any of the agreements as set forth above will be deemed by me a

sufficient cause for the forfeiture of any sum of money I have paid with this application to the

Brotherhood or may hereafter pay into your organization on account of this application.

I also agree that twenty per cent (2092) of the initiation fee will accompany this application

and that the full amount of initiation fee will be paid within ninety (90) days from the date of

application; failure to do so shall be a forfeiture of all monies I have paid towards this initiation

fee. . 7 g

Date o Birth Sadar 17,1929 signed Sao @ Wasson

, we Address 13.2 W Warens

Metephone “SP= | > 2 62.9

Date of Application Benge"

Date passed by Executive Board 206

Lat/ty etd

International Brotherhood of Electrical Workers, AFL-

CIO, and Local 134, International Brotherhood of Elec-

trical Workers, AFL-CIO (Illinois Bell Telephone Com-

pany) and Bell Supervisors Protective Association (Not

a Labor Organization). Case 13-CB-2890

162

July 14, 1971

DECISION AND ORDER

By CHAIRMAN MILLER AND MEMBERS

FANNING, JENKINS, AND KENNEDY

On June 29, 1970, Trial Examiner Frederick U. Reel

issued his Decision in the above-entitled proceeding, find-

ing that the Respondents have engaged in and were en-

gaging in certain unfair labor practices within the mean-

ing of the Act, and recommending that they cease and de-

sist therefrom and take certain affirmative action, as set

forth in the attached Trial Examiner’s Decision. There-

after, both Respondents (hereinafter referred to as Re-

spondent International and Respondent Local) and the

Charging Party (herein referred to as the Association)

filed exceptions to the Decision and supporting briefs.

The General Counsel has filed a brief in support of the

Trial Examiner’s Decision, cross-exceptions to the Trial

Examiner’s Decision, and an answering brief to the Re-

spondent International’s exceptions.

On September 2, 1970, the National Labor Relations

Board, having determined that the instant case raised is-

sues of substantial importance in the administration of

the National Labor Relations Act, as amended, ordered

that this case be consolidated with one other’ for the

3 purpose of oral argument before the Board. On October

4 5, 1970, these cases were argued orally before the Board.

: The Board’? has reviewed the rulings of the Trial

m : Basia , <6 _ Te oe “—

ills Mash i cle NA Nh OAD NIG i aA aR ie ERAN IE RIE 5 CA DEON i ADELE LORI Dine EERIE ene TOBE eS a

WO nal be heh 9 naa BF

fareye te te

i 1 Local Union No. 2150, International Brotherhood of Electrical

3 Workers, AFL-CIO (Wisconsin Electric Power Company), 192

§ NLRB No. 16, issued this day.

? Member Ralph E. Kennedy, who succeeded to the Board after

the oral argument presented by the parties, has reviewed the entire

PONE NERR SAAD Tr RTE SET ay Id, CREE BELA EA) Senge

163

Examiner made at the hearing and finds that no prejudi-

cial error was committed. The rulings are hereby affirm-

ed. The Board has considered the Trial Examiner’s Deci-

sion, the exceptions and briefs, the oral arguments, and

the entire record in the case, and hereby adopts the find-

ings, conclusions, and recommendations of the Trial Ex-

aminer to the extent consistent with our Decision and

Order.

Illinois Bell Telephone Company, hereinafter referred

to as Illinois Bell, or its predecessors and Respondent

Local have maintained a contractual relationship since

1909. Respondent Local represents Illinois Bell’s Chicago

employees in the “Plant Department,” including not only

journeymen and apprentices employed as PBX installers

but also persons employed as “P.B.X. Installation Fore-

men,” “Building Cable Foremen,” and “General Fore-

men.” * According to the terms of the collective-bargain-

ing agreement all members of the bargaining unit, in-

cluding the above-named foremen, must become and re-

main members of Respondent Local.‘

record in this case including the arguments advanced during oral

argument and is participating in the disposition of this case.

3 Article II, section 1(a) and exhibit A of the 1968-71 and all

prior collective-bargaining agreements since 1948 provide in per-

inent part:

Article II, section 1

(a) This Agreement covers all those employees of the Com-

pany in the group represented by Local Union No. 134, whose

titles are included in Exhibit “A”... .

* * oo *

Exhibit A

Wage Group Number 1

General Foremen

* * * *

Wage Group Number 2

PBX Installation Foremen

Building Cable Foremen

‘Article III, section 1 of the 1968-71 and all prior collective-

bargaining agreements since 1948 provide in pertinent part:

All employees with thirty days or more of employment with

the Company, who are represented by Local Union No. 134

tS MCAS ei MERA Nits A ar eg ith a Bo pe CRE te AO il Oe MANE ME 4 FLA HIS RNY cc

i tte ad Soa ae le

164

At one time the collective-bargaining agreement be-

tween the parties prescribed the monthly wage rates for

the “foremen” listed above. However, in recent agree-

ments no wage provisions have been included but the

agreement includes a section entitled “Working Condi-

tions for General Foremen and Foremen” which concerns

payment for overtime work and for certain absences.

Another contract clause provides that the appointment of

general foremen may not be made for a period of less

than 5 days. Further, other evidence in the record shows

that when Illinois Bell recently revised its foremen over-

time schedule it requested the concurrence of Respondent

Local.

Between May 8, 1968, and September 20, 1968, Re-

spondent Local engaged in an economic strike against

Illinois Bell. At the inception of the strike, Illinois Bell

informed the foremen that although it would like to

have them come to work the decision whether to work or

to respect the strike was a matter of personal discretion,

and that those who chose not to work would not be pen-

alized. On the other hand, at a Respondent Local union

meeting just prior to the strike a representative of Re-

spondent Local, in response to a question, warned that it

would be the policy of the Union to discipline any fore-

men who performed rank-and-file work during the strike.

It appears that a large number of the foremen were

present at this meeting and heard the Union’s warning.

Thereafter, in response to the Respondent Local’s warn-

ing, several foremen formed the Bell Supervisors Protec-

tive Association and through it retained counsel to pro-

tect the rights of those foremen who chose to work during

the strike.

During the course of the strike some of the foremen

continued to report for work and performed rank-and-

file work, and other foremen stayed away from work.

After the strike Illinois Bell in no way discriminated

against the latter groups, and indeed promoted some of

them to higher positions.

shall become and remain members of Local Union No. 134 in

good standing as a condition of employment under this agree-

ment....

165

The record reveals that Respondent Local thereafter

carried out its earlier announcement and commenced

union proceedings against a number of foremen, and im-

posed fines of $500 on foremen who performed struck

work and $1,000 fines against each of five foremen who

were instrumental in forming the Association. Most of

the fined foremen appealed to the International, which,

except where there was procedural irregularity, sustained

the fines. Both at the proceedings before the Local and

on the appeal to the International it was urged by the

foremen that the union-security clause which compelled

them to remain members of Respondent Local was illegal.

Illinois Bell has reimbursed these foremen for the full

amount of the levied fines which they paid.

The Trial Examiner concluded that the Respondent

Local, by imposing on foremen® possessing the power to

adjust grievances fines for crossing the Respondent Lo-

eal’s picket line and performing struck work, violated

Section 8(b)(1)(B) of the Act. He reasoned that the

Respondent Local’s action impinged on the Loyalty which

Illinois Bell should be able to expect from its supervisors

who are the “Employer’s representatives” for the adjust-

* The Respondents have excepted to the Trial Examiner’s finding

that foremen and general foremen were “Employer representatives.”

The record clearly shows that the foremen and general foremen

do actually participate in the adjustment of grievances and there-

fore are, for the purposes of Sec. 8(b)(1)(B). “Employer repre-

sentatives.” The Trial Examiner has, however, refused to find that

persons occupying the positions of assistant staff supervisor and

engineer are “Employer representatives” for the purposes of Sec.

8(b)(1)(B). We agree with the Trial Examiner. The three assist-

ant staff supervisors occupy nonsupervisory positions and do not

have any contact with the grievance adjustment procedure. It is

true that these persons were formerly foremen and expect to be

returned to the supervisory hierarchy in a year or two. However,

it is clear that the Company has no immediate expectation of having

these persons represent it in collective-bargaining and grievance ad-

justment. Further, the record, although sparse, clearly shows that

the two engineers occupy nonsupervisory staff positions with duties

which do not include participation in the collective bargaining and

the adjustment of grievances. See Toledo Locals Nos. 15-P and 272

of the Lithographers and Photoengravers International Union, AF L-

CIO (The Toledo Blade Company, Inc), 175 NLRB No. 173, enfd.

437 F.2d 55 (C.A. 6).

—_—_ EA EG LGR BYERS ROT RID 05 SNES —

re ee ee

166.

ment of grievances and therefore restrained and coerced

Illinois Bell in violation of Section 8(b)(1)(B) of the

Act. The Trial Examiner also found that the Respond-

ent Local violated Section 8(b)(1)(B) by fining the

supervisor-organizers of the Association since, although

not sponsored by the Company, it was part and parcel of

the overall attempt by the Respondent Local to restrain

and coerce Illinois Bell in the selection of its representa-

tives for the adjustment of grievances. Finally, the

Trial Examiner concluded that Respondent International

also violated Section 8(b) (1) (B) by affirming, on appeal,

the imposition of those fines by the Respondent Local.*

We agree with these findings of the Trial Examiner.

The Union in this case, as the union in Local Union No.

2150. International Brotherhood of Electrical Workers.

6 The International has excepted to the Trial Examiner’s finding

that it violated Sec. 8(b)(1)(B) by affirming Local 134’s fining of

the union member supervisors for doing struck work. It argues that

it should not be held liable for its purely appellate review of the

local’s fines. The International asserts there is a common law .

principle which provides that an international union is not answer-

able in damages to a wrongfully suspended or expelled member when

its only action taken was in the nature of an appellate review of the

local’s actions. The two New York common law cases, People ex rel.

Solomon v. Brotherhood of Painters, Decorators & Paperhangers,

218 N.Y. 115, 112 N.E. 725 (1916), and Schouten v. Alpine; 215

N.Y. 225, 109 N.E. 244 (1915), cited for this principle are inappo-

site. Here, unlike those cases, the International affirmed an appeal

of fines which “on their face” were violative of the Act. Further,

those who appealed the fines in this case specifically raised the ques-

tion of whether the fines were legal under the statute. United

Brotherhood of Carpenters (Endicott Church Furniture Inc.) V.

N.L.R.B., 286 F.2d 533 (C.A.D.C., 1960), also relied upon by the

International, involves, in part, the court’s refusal to find an inter-

national union in violation of the Act because it approved work

rules which could have been applied in a legal manner rather than, as

they were applied, in an illegal manner. Here the fines “on their

face” were unlawful and this situation was argued vigorously to the

International by the supervisors when they made the appeal.

In the light of the above, we agree with the Trial Examiner, for

the reasons set forth in his Decision, that in this case it was clear

that the International, by its review, sustained fines imposed in

violations of a Federal law after the validity of these fines under

that law had been placed in issue before it and thereby violated

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

167

AFL-CIO (Wisconsin Electric Power Company), 192

NLRB No. 16 issued this day, fined union member

supervisors for doing the work of the rank-and-file union

members during the course of a strike against’ Illinois

Bell. We find no discernible difference between the two

cases, and for the reasons set forth in that case, we find

that, in the instant case, the Union violated Section 8

(b) (1) (B) by fining union member supervisors for doing

struck work since the underlying dispute giving rise to

the fines was between the Union and Illinois Bell rather

than between the Union and its supervisor-members.

The Trial Examiner has also found that the Union vio-

lated Section 8(b) (1) (B) by fining. five supervisors for

organizing the Bell Supervisors Protective Association. .

We agree, for the reasons set forth in the Trial Exam-

iner’s Decision, that while the Company was not active

in the formation of the Association, the creation of the

Association was for the purpose of protecting the rights

of those supervisors who were fined unlawfully for doing

struck work which furthered the interests of the Com-

pany. Consequently, we conclude, as did the Trial Ex-

aminer, that the fining of these supervisors for forming

the Association must be considered as part of the Union’s

overall effort to coerce and restrain the Employer in se-

lecting its representatives.

ORDER

Pursuant to Section 10(c) of the National Labor Re-

lations Act, as amended, the National Labor Relations

Board adopts as its Order the recommended Order of the

Trial Examiner, as herein amended,’ and orders that the

Respondents, International Brotherhood of Electrical

Workers, AFL-CIO, and Local 134, International Broth-

erhood of Electrical Workers, AFL-CIO, their officers,

*It is not the purpose of the Board to become involved in the

private arrangements made between individual supervisors and

Illinois Bell about how the union-imposed fines were to be paid.

It is clear that the fines were assessed against the supervisors in-

dividually and therefore we shall follow our customary practice and

— that the Union reimburse the supervisors rather than Illinois

ee ee

168

agents, and representatives, shall take the action set

forth in the Trial Examiner’s recommended Order, as

herein modified:

1. Delete paragraph 2(b) and substitute the following:

“Reimburse the supervisory employees for any and

all sums paid by them pursuant to the fines referred to

in the preceding paragraph, and advise in writing each

supervisor against whom such fines were levied that the

fines have been rescinded and that the records thereof

have been expunged; provided: that the action required

in this subparagraph shall be primarily required of the

Respondent Local, and shall be required of Respondent

International only to the extent that Respondent Local

shall fail to give the written notices and pay the sums

herein required.”

2. Substitute the attached notice for the Trial Exam-

iner’s notice.

MEMBER FANNING, dissenting:

At issue herein is whether restraints imposed on super-

visors by their union for their performance of duties not

related to their supervisory functions constitute “restraint

and coercion” of their employers within the meaning of

Section 8(b) (1) (B).

The relevant facts may be summarized briefly as fol-

lows: Prior to a strike called by Respondent Union, a

membership meeting was held by Respondent at which

members who held supervisory positions were advised that

they would be subject to union discipline if they per-

formed rank-and-file work during the strike. The Em-

ployer informed the supervisor-members that it wished

to have them come to work to perform rank-and-file work,

but that the decision to work was left to their discretion

and could be exercised without fear of penalty if they

chose not to work. During the course of the strike some

supervisor-members performed rank-and-file work; others

refrained from working. After the strike, the Employer

imposed no penalties for failure to work and, in fact,

promoted some supervisors who had refused to work to

higher positions. Respondent, after appropriate proceed-

——

169

ings, imposd fines of $500 on supervisor-members who

performed rank-and-file work during the strike.

Section 8(b) (1) (B) makes it an unfair labor practice

for a labor organization to “restrain or coerce ... an

employer in the selection of his representatives for the

purposes of collective bargaining or the adjustment of

grievances.” Thus, the prohibited practice is the restraint

or. coercion of the employer, not in any general sense, but

solely in the selection of his representatives—not just any

representative—but only those who perform collective-

bargaining functions or engage in the settlement of griev-

ances. On the facts of this case, it is clear that the Em-

ployer felt no restraint or coercion from the Union’s

action; it left the decision whether to work entirely to

the discretion of the individual supervisors, and promoted

some who had refused to work. Nevertheless, the law has

developed so as to include within the statutory concept

of restraint and coercion of an employer, union disciplin-

ary actions which in fact are directed towards compelling

a supervisor’s allegiance to his union rather than to his

employer with respect to his performance of collective-

bargaining or grievance-adjustment functions or his per-

formance of duties which are directly related to or which

may be said reasonably to grow out of his performance

of such functions.’

* The cases cited by the majority. in support of their decision all

involve fines of supervisors imposed by their union because of the

manner in which they discharged such functions. I agree with the

Trial Examiner that they are distinguishable from the instant case.

With respect to the Trial Examiner’s view that the decision in the

‘first A. S. Horner case (176 NLRB No. 105) compels the result

herein, I believe he misconceives the role of the fined supervisor.

There the supervisor was fined because he gave an antiunion speech

during an election campaign. Though the injury to legitimate

union objectives is comparable to that flowing from the supervisor’s

performance of struck work in this case, the supervisor was per-

forming a normal supervisory function of informing employees of

how management preferred to deal with employee grievances and

complaints—a system of direct dealing with employees rather than

dealing with them through a representative. So viewed, the case

may come within the San Francisco-Oakland Mailers’ decision. How-

ever that may be, I did not participate in Horner and do not regard

myself as bound by its holding.

170

However, to constitute restraint or coercion of the em-

ployer in the statutory sense, it is necessary that the re-

straints imposed on the supervisor must be restraints on

his actions in such matter, not on his actions on other

matters. For it is only in the denial to the employer

of the unrestrained performance of such functions by one

whom he has selected for that purpose that the employer

can be said to be coerced in the selection of a representa-

tive to act in such matters. As the Board said in the

San Francisco-Oakland Mailers case, “Realistically, the

Employer would have to replace its foremen or face de

facto nonrepresentation by them.”*® If the restraint is

imposed upon the supervisor because of his actions in

matters unrelated to his general supervisery functions

there is no restraint upon the employer with respect to his

selection of representatives to perform such functions

though he may of course be restrained in the selection

of representatives to perform other functions. The Board

has in fact recognized this distinction as valid in the

Syd Gough case*® where it found no violation of Section

8(b) (1) (B) in a fine of a supervisor (who had griev-

ance-adjustment responsibilities) for his failure to regist-

er at the union’s hiring hall. That decision necessarily

stands for the proposition that a union-imposed restraint

upon a supervisor because of matters unconnected with

his performance of collective-bargaining functions does

not restrain or coerce him in the performance of the lat-

ter functions and, that being the case, there is no re-

straint or coercion of the employer in the statutory sense.

Here the supervisors were not fined because they gave

directions to the work force, interpreted the collective-

bargaining agreement, adjusted grievances, or performed

any other. function generally related to supervisory ac-

tivities, in a manner in disfavor with the Respondent

Union. They were fined because they performed produc-

° San Francisco-Oakland Mailers’ Union Local No. 18, Interna-

' tional Typographical Union (Northwest Publications), 172 NLRB

No. 252.

10 Local Union No. 458, Brotherhood of Painters, Decorators and

Paperhangers of America, AFL-CIO (Syd Gough and Sons, Inc.),

183 NLRB No. 24.

171

tion work in the bargaining unit during a strike. Their

Employer sought to use them, not in the direction of the

work of employees who had not gone on strike or of re-

placements for strikers, but to replace the strikers them-

selves. In short, he assigned them to work as employees

within the meaning of Section 2(3) of the Act, not as

supervisors within the meaning of Section 2(11) of the

Act. As the Supreme Court has held, fines of members

who act as strikebreakers during a strike do not “restrain

or coerce” them within the meaning of Section 8(b) (1)

of the Act.’ If the fine of an employee-member for en-

gaging in strikebreaking does not-restrain or coerce him

within the meaning of Section 8(b) (1), I cannot see how

the same restraint imposed upon a supervisor-member

for the same activity can be broadened into restraint and

coercion of the employer within the meaning of that sec-

tion. All the restraint does, if successful, is to deny the

employer the use of the supervisor as a production worker

during the strike." ;

My colleagues argue, however, that,

- . . During the strike of the Union, the Employer

clearly considered its supervisors among those it

could depend on during this period. The Union’s

fining of the supervisors who were acting in the

Employer’s interest in performing the struck work

severely jeopardized the relationship between the

Employer and its supervisors. Thus, the fines, if

found to be lawful, would not permit the Union to

drive a wedge between a supervisor and the Em-

ployer, thus interfering with the performance of the

duties the Employer had a right to expect the super-

visor to perform. The Employer could no longer

count on the complete and undivided loyalty of those

it had selected to act as its collective-bargaining

agents or to act for it in adjusting grievances. More-

1 N.L.R.B. v. Allis Chalmers Manufacturing Co., 388 U.S. 175.

2 If the Employer had requested his supervisors to perform their

normal supervisory functions in the direction of replacements or

other workers during the strike, we would have a different situation.

—_—_—— SAE IRONED IGE MERE Oe NID RR SERS eh SELLE IT RS ERR gg RT

172

over, such fines clearly interfere with the Employ-

er’s control over its own representatives.**

The argument would be more appropriate if Section 8(b)

(1) also made it an unfair labor practice for a union

to induce or require supervisors to align themselves with

the union on any matters. /

However, the section does not contain such an unfair |

labor practice. Moreover, though the 1947 amendments |

did exclude supervisors from the definition of employee “*

and declared that “no employer subject to this Act shall /)

be compelled to deem individuals defined herein as super-/

visors as employees for the purpose of any law, either

national or local, relating to collective bargaining,” * it

also declared that “Nothing herein shall prohibit ie é >

individual employed as a supervisor from becoming or

remaining a member of a labor organization.” '* The ef-

fect of these various provisions is.a denial of any statu-

tory protection to supervisors either in their joining or

assisting a union or in their refraining from such activi-

ties. It leaves the employer free to prohibit such activi-

ties or to permit them, to discharge supervisors for en-

gaging in such activities if he desires. Congress gave

employers this freedom to deal with supervisors precisely

because of the problem of “dividend loyalties.” “* It stop-

ped short, however, of making it an unfair labor practice

for a labor organization to organize supervisors or to

admit them to membership. The only limitation it placed

on unions in this regard is the narrow prohibition against

restraining or coercing employers in the selection of rep-

resentatives (including supervisors, but not limited to

supervisors) for purposes of collective bargaining or the

adjustment of grievances. My colleagues, in effect con-

sith ASP ee ai bie sabe amet ten A Se NT alls i icles aI TE AMS De

LLP eit set ONE Bry $a Si EW Aaah a

ee ae

4 13 Wisconsin Electric Power Co., 192 NLRB No. 16, incorporated

3 by reference in the majority opinion herein.

14 Labor Management Relations Act of 1947, 61 Stat. 136, 29

U.S.C. 152(3).

4 529 U.S.C. 164(a).

16 [bid.

_ 17S, Rept. 105 on S. 1126, pp. 3-5, I Leg. Hist. 409-411 (1947).

at eS mye SHY — . . .

i aA Ties SARL prey RN

173

strue this as a bill of rights freeing supervisors from any

restraint or coercion by a labor organization, even where

the effect is not to deny their employer the uncoerced

performance of collective-bargaining or grievance-adjust-

ment functions.

This construction goes far beyond that intended by

Congress as disclosed by the relevant legislative history

of the section: As first proposed in S. 1126, the section

prohibited a labor organization from interfering with, as

well as restraining or coercing, an employer in the selec-

tion of his bargaining representatives. Senate Report

105 on S.1126, stated

Section 8(b) (1): This proscribes unions and their

agents from interfering with, restraining, or coercing

employers in the selection of their representatives

for the purposes of collective bargaining or the set-

tlement of grievances. Thus, a union or its responsi-

ble agents could not, without violating the law, coerce

an employer into joining or resigning from an em-

ployer association, which negotiates labor contracts

on behalf of its members; also, this subsection would

not permit a union to dictate who shall represent

an employer in the settlement of employee grievances,

or to compel the removal of a personnel director or

supervisor who has been delegated the function of

settling grievances."* |

This same refrain—the prohibition of forcing employers

into or out of employer associations or of compelling them

to remove or discharge supervisors or personnel directors

who engage in the settlement of grievances—is repeated

in the remarks of Senator Taft and other Senators dur-

ing floor debate on the bill.’ Although no Senator ad-

dressed himself to the precise question presented in this

and the other cases cited by the majority, namely, the con-

ditions under which coercion of the representative be-

comes or constitutes coercion of the employer in the selec-

tion of the representative, I believe the legislative history

18 At p. 21, I Leg. Hist. 427 (1947).

993 Cong. Rec. 3953 (II Leg. Hist. 1012), 93 Cong. Rec. 4266

(II Leg. Hist. 1077), 93 Cong. Rec. 5106 (II Leg. Hist. 1454).

—_— SP ERE SEMI OLY LEP IO LAINIE ES ONT INET IOS 5 ENON ST ene varie PRIN LO

i wt hal a Date Sa

174

demonstrates that unless the union-imposed restraint on

a supervisor is imposed because of his discharge of duties

involved in the performance of the statutorily described

functions or in the discharge of duties closely related

thereto, the restraint or coercion is not proscribed by the

section. At most, restraint imposed on the supervisor

because of his performance of other functions constitutes

an interference with the employer’s selection of repre-

sentatives for the performance of collctive-bargaining or

the adjustment of grievances functions assigned to such

representatives, as indeed the majority opinion finally

concludes with respect to the fines in this case. However,

the words “interfere with” were eliminatd from the sec-

tion by an amendment offered by Senator Ives because of

their far-reaching impact.”” I cannot agree to the re-

insertion of those words by decisional interpretation.

In summary, because the fines involved herein were not

imposed upon the supervisors because of the manner in

which they performed duties related to their collective-

bargaining or grievance-adjustment functions, but were

imposed because of their violation of an unrelated union

rule proscribing members of the union from performing

struck work during a strike, I find that the supervisors

were not restrained or coerced in the performance of the

statutorily protected functions. It follows that the Em-

ployer was not restrained or coerced in the selection of

representatives to perform such functions. Accordingly

I would dismiss the complaint.

APPENDIX

NOTICE TO MEMBERS

NATIONAL LABOR RELATIONS BOARD

POSTED BY ORDER OF THE

An Agency of the United States Government

WE WILL NOT fine or otherwise discipline supervisory

employees of Illinois Bell Telephone Company (such as,

for example, P.B.X. installation foremen) for engaging

in productive work during a strike or for participating in

2093 Cong. Rec. 4398 (II Leg. Hist. 1138-39).

175

any organization designed to counsel and protect such

supervisors in the event they work during a strike.

WE WILL NOT in any like or related manner restrain

or coerce Illinois Bell Telephone Company in the selec-

tion of its representatives for the purposes of collective

bargaining or the adjustment of grievances.

WE WILL rescind, and expunge from our records, the

fines levied against supervisory employees for working

during the 1968 strike or for having formed the Bell

Supervisors Protective Association. -

WE WILL refund to the Illinois Bell Telephone Company

the sums it has paid pursuant to the fines we levied

against supervisors in connection with the 1968 strike.

WE WILL advise in writing each of the supervisors

fined in connection with the 1968 strike that his fine has

been rescinded and expunged, and that we will reimburse

each the sums paid pursuant to those fines.

LOCAL 134, INTERNATIONAL BROTHER-

HOOD OF ELECTRICAL WORKERS, AFL

CIO .

(Labor Organization)

Dated By

(Representative) (Title)

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO

(Labor Organization)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This noticé must remain posted for 60 consecutive days

from the date of posting and must not be altered, de-

faced, or covered by any other material.

Any questions concerning this notice or compliance

with its provisions may be directed to the Board’s Office,

Room 881, Everett McKinley Dirksen Senate Building,

219 South Dearborn Street, Chicago, Illinois 60604, Tele-

phone 312-353-7575.

SRE NBR i ERT EER BY NETO ARNE DYSART

176

TRIAL EXAMINER’S DECISION

STATEMENT OF THE CASE

FREDERICK U. REEL, Trial Examiner: This proceeding,

heard at Chicago, Illinois, from March 31 through April

3, 1970, pursuant to a charge filed June 10, 1969, and a

complaint issued December 31, 1969, arises out of certain

fines levied by the Respondent Local and confirmed by the

parent, Respondent International, upon certain of their

members for either (a) continuing to perform work for

their Employer during the course of the Local Union’s

strike against that Employer or (b) forming and becom-

ing officers in an association (the Charging Party here-

in), the purpose of which was to furnish assistance and

counsel to foremen who worked during the strike. The

primary issue in the case is whether the imposition of

these fines violated Section 8(b)(1)(B) of the Act, in

view of the fact that in each instance the person fined

was employed in what is allegedly a supervisory capacity,

and allegedly represented his Employer in the adjustment

of grievances. Respondents, denying that the persons

fined were supervisors or that they adjusted grievances,

further contend that in any event, under the circum-

stances of this case, the fines did not as a matter of law

involve the Respondents in violation of Section 8(b) (1)

(B).

Upon the entire record,’ and after due consideration

of the briefs filed by General Counsel and each of the

Respondents, and of the “Statement” filed on behalf of

the Charging Party,’ I make the following:

Pe A Od ee |

Fee aE wee

Dew Rd cameo ha ee ko ia dis TAL EMSA

Including documents submitted after the hearing, which are

hereby admitted as G.C. Exhs. 22, 23, and 24, and Local 134’s Exhs.

14A through I and 15A and B, respectively.

;

* Respondents’ motion to strike a phrase from Charging Party’s

Statement as “scandalous and/ or impertinent” is granted as Charg-

ing Party consented thereto.

177 /

FINDINGS OF FACT

I. THE BUSINESS OF THE EMPLOYER AND THE LABOR

ORGANIZATIONS INVOLVED

Illinois Bell Telephone Company, herein called the Com-

pany, an Illinois corporation with headquarters in Chi-

cago, renders local and long distance telephone service

as part of a nationwide telephone system, and is “an em-

ployer engaged in commerce within the meaning of Sec-

tion 2(6) and (7) of the Act. Respondent Local 134,

International Brotherhood of Electrical Workers, AFL-

CIO, herein called the Local or the Union, and its parent

organization, the Respondent International, are labor or-

ganizations within the meaning of Section 2(5) of the

Act.

II, THE UNFAIR LABOR PRACTICES

A. Background and Chronology

For many years, long antedating any Federal labor

legislation, the Company (or its predecessor) and the

Local have had contractual relations, pursuant to which

the Local represented the Company’s Chicago employees

for purposes of collective bargaining. The bargaining

unit embraced employees in the “Plant Department,” and

included, inter alia, not only journeymen and apprentices

engaged as P.B.X. installers but also persons employed

as “P.B.X. Installation Foremen,” “Building Cable Fore-

men,” “Test Center Foremen,” and “General Foremen.”

The powers and duties of these “foremen” and the ques-

tion whether they are “supervisors” within the meaning

of the Act are among the litigated issues in this case.

The contract provides that all members of the bargaining

unit must become and remain members of the Local. As

recently as 1959 the contracts in effect between the Local

and the Company prescribed monthly wage rates for the

various “foremen” listed above. Since May 1959 the

contracts did not provide wage rates for those foremen,

but did contain a section headed “Working Conditions for

General Foremen and Foremen.” This provision con-

cerned payment for overtime work and for certain ab-

Ba ered Abe eae "

OIE DP

178

sences, and contained a clause stating that an appoint-

ment as general foremen could not be made for a period

‘of less than 5 days. Other provisions of the contract,

such as, for example, that dealing with vacations, appear

applicable to the foremen as well as to journeymen em-

ployees.”

Between May 8, 1968, and September 20, 1968, the

Local was engaged in an economic strike against the Em-

ployer. At the inception of the strike the Company in-

formed the foremen referred to above that the Company

would like to have them come to work, but that the deci-

sion whether to work or to respect the strike was a mat-

ter left to the discretion of each individual foreman, and

that those who refrained from working during the strike

could resume work when it ended without being penal-

ized. The Local held a meeting just before the strike at

which the foremen were advised that they would be sub-

ject to union discipline if they performed rank-and-file

work during the strike. A number of foremen thereupon

retained counsel and formed an association (the Charg-

ing Party, hereinafter referred to as the Association) to

protect foremen who worked during the strike.

During the course of the strike some of the foremen

performed rank-and-file work, and some stayed out of

work. After the strike the Company in no way discrimi-

nated against the latter group, and indeed promoted some

of them to higher positions. The Local conducted pro-

ceedings against a number of foremen, and imposed fines

of $500 on foremen who performed rank-and-file work

during the strike and of $1000 each against the five fore-

men who were instrumental in forming the Association.

Most of the fined foremen appealed to the International,

which in most instances sustained the action of the Local.

During the intraunion proceedings, counsel for the Asso-

ciation assisted the foremen in their defense, in which

the accused foremen urged that they were supervisors,

that the strike was not in their behalf, that the Local

was not seeking to bargain for them, and that the union

security clause which compelled their membership in the

Local was illegal.

The Local has commenced suit in the Illinois courts to

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179

collect some of the fines. Insofar as any of the foremen

have paid any part of the fines, the Company has reim-

bursed them.

B. The Status of the Foremen as “Supervisors” Within

the Meaning of the Act, and Their Powers With Respect

to the Adjustment of Grievances

As noted above, most of the foremen involved in this

case were employed as P.B.X. installation foremen, or in

work of similar character such as building cable fore-

men, or general foremen. The record establishes that

such foremen were in charge of crews of from 8 to 12

men, that they had power to grant time off to their men,

that they scheduled overtime, selected the men who would

work overtime, disciplined for tardiness by suspending

men or docking their pay, and effectively recommended

men for promotion or discharge. Although the Union

argues that the testimony establishing these powers was

of a vague and general nature, it called no witnesses to

deny that the foremen possessed the powers which the

company representatives, called as General Counsel’s wit-

nesses, ascribed to them.’ On this record I find that the °

foremen in question possessed one or more of the powers

set forth in Section 2(11) of the Act and are supervisors

within the meaning of the Act. See, eg., N.L.R.B. v.

Henry Colder Co., 416 F.2d 750, 754, fn. 3 (C.A. 7,

1969).

As to the authority of these foremen to adjust griev-

ances, the contract recites with respect to the grievance

procedure that “The employee or his Steward shall first

bring the grievance to his Foreman, or other first line

supervisor,” and that “If the grievance is not settled, it

shall then be taken up with the succeeding appropriate

3’ General Counsel expressed a readiness to interrogate individual

foremen as to their powers and duties. The Trial Examiner pre-

vented him from doing so on the ground that such testimony would

be cumulative, but expressly invited counsel for the Local to cross-

examine such foremen on that issue, and also to put on testimony

on that issue as part of Respondent’s case. No such cross-examina-

tion was attempted and the Local adduced no testimony on this

issue as part of its case.

BOS VO BERS RTL LOTT EY ANION SY OES EERIE REIN LSM 6

i a

‘or are promoted to district installation superintendents

180

levels of supervision... .” The contract thus unequivo-

cally provides that the foremen here in question may

adjust grievances. Moreover, the testimony adduced by

General. Counsel establishes that the foremen may adjust

grievances arising out of disputes over whether an em-

ployee should be paid for certain hours he worked after

checking out, or over working conditions (such as ex-

cessively cold air-conditioning), or over disciplinary ac-

tion taken by the foreman, or over overtime allocations

he had made. Indeed, the testimony shows that most

of the grievances are adjusted informally by the fore-

men, either by their making the requested adjustment

or by their persuading the union representative that the

grievance lacks merit. Manifestly, these matters are

usually of minor importance, and major issues go on to

later stages of the grievance procedure. Nevertheless, I

am satisfied on this record that the foremen in question

do have power to adjust, and do adjust, grievances. Again

the Union’s suggestion that the testimony is vague and

general is unavailing in the light of the contractual lan-

guage and the Union’s failure to adduce testimony which

would diminish the force of the evidence presented by

General Counsel.

The foregoing discussion of the powers and duties of

the foremen is applicable to all those named in the com-

plaint as having been fined except for three men identi-

fied in the complaint as “assistant staff supervisor,” and

two identified as “engineer.” The record establishes that

an “engineer” has no supervisory authority and that an

“assistant staff supervisor” has no occasion to partici-

pate in the adjustment of grievances, and normally has

no. people working for him. The record further estab-

lishes that it is a common practice for the Company to

transfer a man from a job as P.B.X. foreman to that

of engineer and back again, and that “assistant staff

supervisors” are selected from the ranks of P.B.X. fore-

men, serve 1 or 2 years as assistant staff supervisors,

(a supervisory position with power to adjust grievances).

181

C. Board Decisions Concerning a Union’s Power T

Fine Supervisory Employees : |

A series of recent Board decisions, several of which

are now awaiting judicial review, hold that under the

circumstances there presented a labor organization vio-

lates Section 8(b)(1)(B) of the Act (i.e. restrains or

coerces an employer in the selection of his representa-

tives for the purposes of collective bargaining or the

adjustment of grievances) when it fines supervisory em-

ployees who are union members. Insofar as Respondents

attack the validity of any or all of these holdings, I must,

of course, refer them to higher authority, administrative

and judicial, as I am required to follow these precedents

in the present state of the law. Insofar as Respondents

urge that the instant case is distinguishable, however, it

becomes important to set forth, as I understand it, what

the Board has heretofore held in this area.

The lead case apparently is San Francisco-Oakland

Mailers’ Union No. 18, International Typographical Union

(Northwest Publications, Inc.), 172 NLRB No. 252. In

that case the union fined certain foremen-members‘ be-

cause of alleged violations of the contract between the

employer and the union. The union also threatened simi-

lar action against foremen as a result of “disagreements

involving contract interpretations or grievance adjust-

ment.” The Board’s finding of violation in that case

sheds little light on the problem here, for in that case

the conduct for which the foremen were fined was directly

related to their role as the employer’s representative in

the adjustment of grievances and in collective. bargaining

(which includes, of course, the administration of the con.

tract; see Conley v. Gibson, 355 U.S. 41, 46).° -

* There, as here, the contract required the foremen to be members

of the union.

*The Board in the Oakland Mailers case and in several subse-

quent cases distinguished N.L.R.B. v. Allis-Chalmers Mfg. Co., 388

U.S. 175, on which Respondents place their principal reliance. The

Board appears to be of the view that the fining of supervisors

stands on an entirely different footing from the fining of rank-and-

file members. I note that counsel for the International suggests

that I not follow Blackhawk Tanning Co., Inc., 178 NLRB No. 25,

]

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182

The next case in this area to come before the Board

was Toledo Locals. Nos. 15-P and 272 of the Lithogra-

phers and Photoengravers International Union, AFL-

CIO (The Toledo Blade Company, Inc.), 175 NLRB No.

173. In that case, as here, the foremen involved were

required to be members of the union which fined them,

The fines in that case were imposed for alleged viola-

tions of th® contract, in that the supervisors worked on

production during a strike, thereby violating two con-

tractual provisions, one limiting the amount of produc-

tion a supervisor can do, and the other prescribing a

minimum crew before any work can be performed. The

Board in that case held that the union by imposing the

fines violated Section 8(b) (1) (B). The case may be dis-

tinguishable from that now before us, for although in

both cases the supervisors worked while their union was

out on strike, the basis of the Board’s holding in the

Toledo case appears to be that the supervisors were in-

volved in what their union claimed to be violations of

the contract, and no such contention is urged here.

The third case in this area to reach the Board was

New Mexico District Council of Carpenters and Joiners

of America; United Brotherhood of Carpentérs and Join-

ers of America (A. S. Horner, Inc.), 176 NLRB No. 105.

In this case one Wilson, a supervisor and a union mem-

ber, signed a letter, also signed by the company presi-

dent, urging the employees to vote against the union in

a representation election. The Board held that by im-

posing a fine on him for this conduct the union violated

Section 8(b) (1) (B). Manifestly Wilson’s act in urging

the employees to vote against the union was not itself

directly related to contract interpretation, the adjust-

ment of grievances, or any subject of collective bargain-

ing. However, the Trial Examiner’s decision, adopted

by the Board, states:

because the decision was by a 3-2 majority and “As a realistic mat-

ter, it must be recognized that one of the members joining in the

‘lead’ opinion is no longer on the Board and that the term of the

other will be up in two months.” I decline to engage in the specula-

tion of counsel, but I call his attention to the dangerous consequences

of his thinking as applied to this case, for only two members of the

5-4 majority in Allis-Chalmers are still on the Court.

ERR TE IER TNE ANI Ae KBR Uh DL SOR RRUNREE NTrE

183

By preferring the charges and imposing a fine

upon Wilson, Respondents were attempting to force

the Company to change its selected representative

for the purposes of collective bargaining and the

adjustment of grievances from a representative of

management’s viewpoint to a person subservient to

the will of Respondents. The Council itself explained

it was fining or bringing charges against Wilson

because he placed the Company’s interests above

those of Respondents. Sizemore in his letter to the

General Executive Board of the United Brotherhood

stated that Superintendent Wilson’s loyalty “must

be to the Union.” It is clear that Respondents pre-

ferred charges against and fined Wilson as a means

of disciplining him because he placed the interests

of the Company above those of Respondents. This

was obviously coercion against the Company because

it would tend to require the Company to retain as

representatives for collective bargaining and adjust-

ment of grievances only individuals who were sub-

servient to Respondents. That the Company and Re-

spondents had no labor agreement does not detract

from this finding. Wilson could and did adjust

grievances. Respondents were forbidden by the Act

to dictate to the Company whom it should select to

adjust employee grievances. Respondents’ actions

“were designed to change the [Company’s] repre-

sentatives from persons representing the viewpoint

of management to persons responsive or subservient

to Respondents’ will. In enacting Section 8(b) (1)

(B) Congress sought to prevent the very evil in-

volved herein—union interference with an employ-

er’s control over its own representatives, [ Citation |

That Respondent[s] may have sought the substitu-

tion of attitudes rather than persons, and may have

exerted [their] pressure upon the [Company] by in-

direct rather than direct means, cannot alter the

ultimate fact that pressure was exerted here for the

purpose of interfering with the [Company’s] con-

trol over its representatives. Realistically, the [Com-

pany] would have to replace its [superintendents] of

——e PENI TEE REE get gn ete

184

face de facto nonrepresentation by them.” San Fran-

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

252. |

By fining Wilson, Respondents did so because he

chose to act as a management representative, which

he was.

In a subsequent case involving the same employer and

the same union, reported at 177 NLRB No. 76, the Board

again found a violation of Section 8(b) (1) (B). In this

case the union fined a supervisor for continuing to work

for an employer who was not under contract with the

union. This case is plainly distinguishable from that

before us, as the union’s position in the second Horner

case was that the supervisor must leave his employment

altogether.

Likewise distinguishable is still another New Mexico

case, Sheet Metal Workers’ “International Association,

Local Union 49, AFL-CIO (General Metal Products, Inc.),

178 NLRB No. 24, where the Board found a violation of

Section 8(b) (1) (B) in the union’s fining of a supervisor

for performing work in violation of the contract between

the union and the employer. The holding in that case

that the union “attempted by its internal disciplinary

procedure to circumvent the contractual procedures for

settlement between the parties of a contractual grievance”

does not apply to the instant case. Similarly two recent

Board holdings in this area, Dallas Mailers Union, Local

No. 143, and International Mailers Union (Dow Jones

Co.), 181 NLRB No. 49, and Houston Typographical

Union No. 87 (Houston Shopping News Co.), 182 NLRB

No. 91, are distinguishable. In the Dallas case the union

expelled a supervisor because of an order he gave a non-

supervisory employee, which the latter charged was dis-

criminatory and improperly motivated. Manifestly, the

supervisor was exercising his supervisory authority, and

as the Board stated, “His expulsion will also be a clear

signal to other foremen, who are, under the established

practice, members of the Union, that they could be sub-

ject to similar discipline if they administer the contract

in a manner so as to incur the Union’s displeasure.” In

185

the Houston case the union fined a supervisor-member

for what it regarded as his failure to observe hiring pro-

cedures required under the contract. The fine, in the

Board’s view, was designed to make the supervisor “more

amenable to [the union’s] interpretation of how the con-

tract should be applied... .” The rationale in the Dallas

and Houston cases has no application here.

Finally, in Local Union No. 453, Brotherhood of Paint-

ers, etc. (Syd Gough & Sons, Inc.), 1883 NLRB No. 24,

the Board affirmed Trial Examiner Sherman’s dismissal

of a complaint which alleged that a union ‘violated Sec-

tion 8(b) (1) (B) by fining a supervisor for working at

a particular jobsite without notice to the union. The

Trial Examiner in that case noted that the only purpose

of the “notice” requirement was to facilitate the union’s

administration of its hiring hall and the collection of

certain assessments. He concluded that “unless the Board

is prepared to say that the fining of a supervisor by a

union for whatever reason, including, for example, late

payment of dues or disruption of a union meeting, tends

to impair his effectivéhess as an employer representative,

it is not clear how the fine imposed .. . for alleged non-

compliance with Respondent’s registration requirement

may be held to violate Section 8(b) (1)(B).” The Board

in affirming the dismissal did not pass upon the Trial

Examiner’s analysis of the other cases in this area but

contented itself with rejecting, as unsupported by the

evidence, General Counsel’s contention in that case that

the union’s motivation was to retaliate against the em-

ployer for the latter’s filing of charges against the union.

So far as here relevant the Gough case appears to stand

for the proposition that the mere fining of a supervisor

does not establish a per se violation of the Act.

D. Conclusions With Respect to the Legality

of the Fines

As the discussion in the foregoing section indicates,

most of the Board’s holdings in this area concern disci-

pline which a union directed at Supervisory employees

because of action by the supervisor directly related to

matters of contract construct

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