N.L.R.B. v. General Steel Erectors, Inc.
| Decision Date | 29 May 1991 |
| Docket Number | Nos. 90-1917,90-2025,s. 90-1917 |
| Citation | 933 F.2d 568 |
| Parties | 137 L.R.R.M. (BNA) 2466, 60 USLW 2016, 119 Lab.Cas. P 10,790 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL STEEL ERECTORS, INCORPORATED, Respondent. LOCAL UNION NO. 22, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Frederick W. Dennerline, Fillenwarth, Dennerline, Groth & Baird, Indianapolis, Ind., for petitioner.
Christopher W. Young, Aileen A. Armstrong, William M. Bernstein, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., William T. Little, N.L.R.B., Indianapolis, Ind., for respondent.
Sandra Rae Benson, Victor J. VanBourg, VanBourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., amicus curiae.
Frederick W. Dennerline, Fillenwarth, Dennerline, Groth & Baird, Indianapolis, Ind., Frederick King, Sommer & Barnard, Indianapolis, Ind., for respondent.
Before CUMMINGS, POSNER and FLAUM, Circuit Judges.
This case requires us to choose between a per se rule and a case-by-case approach to unfair labor practices. We must decide whether a company has violated its legal duties to its employees by permitting one of its top employees simultaneously to hold positions as company superintendent and union president of Local Union No. 22, International Association of Bridge, Structural and Ornamental Iron Workers ("Local 22") that provides the workforce for the company. Specifically the National Labor Relations Board has applied for enforcement of a February 7, 1990, order it issued against respondent General Steel Erectors, Incorporated ("Company") for engaging in unfair labor practice conduct in violation of Sections 8(a)(2) and (1) of the National Labor Relations Act (29 U.S.C. Sec. 158(a)(2) and (1)) ("NLRA").
The unfair labor practice at issue concerned the dual positions held by one Harry Fryar, who was both a superintendent at the Company and the president of Local 22. The Board's order required the Company to cease and desist from engaging in the unfair labor practice conduct by "taking whatever steps necessary to ensure that Harry L. Fryar, Jr., as long as he remains a supervisor for the [Company], shall not also serve in any of [five related] union positions [including president]." In addition the Board also ordered the Company to post an appropriate notice on the premises so that its employees would be aware that the Company had taken affirmative measures to overcome the unfair labor practice uncovered by the Board. Local 22, of which Fryar was president, has cross-petitioned for review. The International Union has itself filed an amicus curiae brief supporting its Local 22; however, the Company refrained from filing a brief, stating that it concurs fully in the views of Local 22. The Board's decision and order appear in 297 NLRB 116 (1990). For the reasons set forth below, we will enforce the Board's order.
The Company's principal place of business is in Indianapolis, Indiana. Since 1971 the Company and Local 22 have been parties to collective bargaining agreements covering the Company's iron worker employees. The last such contract disclosed in the record was effective from June 1, 1987, until May 31, 1990.
Harry Fryar has been the Company's superintendent since 1971 and is a supervisor within the meaning of the National Labor Relations Act. He reports directly to the Company's president and is responsible for the Company's day-to-day operation. Since 1987 Fryar has also served as president of Local 22. The Company's president, Sterling Phillips, knew of Fryar's dual positions. In addition to supervising a permanent staff of six Company workers, Fryar also bears responsibility for hiring temporary employees. When the need for additional help arises, Fryar requests dispatches from the Union. *
As president of Local 22, Fryar is the chief executive officer of Local 22 and holds various union positions. He is the chairman of the executive committee, Local 22's collective bargaining agent. In this position, Fryar is empowered to call meetings of Local 22's executive committee "to adjust all labor troubles" with respect to Local 22. The executive committee also decides whether to process a member's grievance against the Company. Additionally, as president of Local 22, Fryar may vote in the event of a deadlock in the executive committee.
On review, the Board found that the Company violated Sections 8(a)(1) and (2) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1) and (2), by permitting Fryar to serve as president of the Union and ex officio in other Local 22 positions. In relevant part, the statute provides:
(a) It shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 156 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay Consequently, the Board ordered the Company to ensure that Fryar, "as long as he remains a supervisor for the [Company], shall not also serve in any of the union positions" that might give rise to conflicts of interest. For example, Fryar's dual positions would place him in an awkward position in dealing with employee grievances. As both Local 22's president and Company supervisor, his loyalties cannot be undivided, especially in cases where an employee of the Company seeks to redress a grievance through the union. Under Section 14(a) of the Act (29 U.S.C. Sec. 164(a)), he is free to remain a Union member. Indeed he may even hold a Union position that is not somehow involved in the Union's collective bargaining relationship with the Company. Hoyt, Brumm & Link, Inc., 292 NLRB 111 (1989). The Board specified five related conflicting taboo positions and ordered that they be included in the general notice posted for the Company's employees. Thus in addition to president, Fryar may not serve as chairman of Local 22's executive board, chairman of its examining committee, trustee of the welfare fund, or trustee of the joint apprenticeship committee (App. 11).
In reviewing the Board's per se rule, we acknowledge the usual deference with which we approach its decisions. Discussing the standard of review appropriate to a decision by the Board, we have noted before that our review is "narrow," and that "where the problem requires the balancing of legitimate conflicting interests, the function of striking that balance to effectuate national labor policy, often a difficult and delicate responsibility, has been committed by Congress primarily to the Board, subject to limited judicial review." Local 1384, United Auto., Aerospace and Agricultural Workers of Am., 756 F.2d 482, 486 (7th Cir.1985), citing NLRB v. Truck Drivers Local 449, 353 U.S. 87, 96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676.
Even though the National Labor Relations Act does not make it unlawful for supervisors to retain union membership, under the above-quoted statutory provisions unions are to be free from employer influence or involvement, so that an employer may not interfere in union affairs through the participation of a supervisor in employer-union relations. In Local 636, United Ass'n of Journeymen v. NLRB, 287 F.2d 354 (D.C.Cir.1961), a leading case upon which the Board relies, the D.C. Circuit reviewed a factually similar case in which a construction industry supervisor participated actively in union affairs with the knowledge of his employer. The court affirmed the Board's finding that the employer violated Sections 8(a)(1) and (2) and concluded that the Board need not show the existence of an actual agency relationship before an employer can be charged with union activities of its supervisory employees. Rather, the D.C. Circuit recognized a broader principle--namely, that such known participation by a supervisor in union affairs is properly characterized as interference that is actionable under the Act since it conflicts with the Act's clear policy to free the collective bargaining process from all taint of an employer's influence. Local 636, 287 F.2d at 361. See also Mon River Towing, Inc. v. NLRB, 421 F.2d 1, 8 (3d Cir.1969) (); NLRB v. International Typographical Union, 452 F.2d 976 (10th Cir.1971) (); Bausch & Lomb Optical Co. and United Optical & Instrument Workers of Am., Local 678, 108 NLRB 213 at 1555, 1559, 1561 (1954) ().
In Powers Regulator Co. v. NLRB, 355 F.2d 506 (7th Cir.1966), this Court considered whether the Powers Regulator Company violated Sections 8(a)(1) and (2) of the Act where two or three company supervisors organized the company's employees against the steel workers union in accordance with management's...
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E.E.O.C. v. Pipefitters Ass'n Local 597
...of the company cannot hold a union post that would create divided loyalty and thus undermine the union. NLRB v. General Steel Erectors, Inc., 933 F.2d 568 (7th Cir. 1991); Local 636, United Ass'n of Journeymen v. NLRB, 287 F.2d 354, 361-62 (D.C.Cir.1961). Hahney's dual role as company super......