NLRB v. Silver Bay LU No. 962, Int. Bro. of P., S. & PMW
| Decision Date | 22 May 1974 |
| Docket Number | No. 73-1037.,73-1037. |
| Citation | 498 F.2d 26 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SILVER BAY LOCAL UNION NO. 962, INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE & PAPER MILL WORKERS, AFL-CIO, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stanley Zirkin (argued), Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Charles M. Henderson, Director, NLRB, Seattle, Wash., for petitioner.
Lawrence Schwerin (argued), of Donaldson, Hafer, Cassidy & Price, Seattle, Wash., for respondent.
Before KOELSCH, CARTER and WRIGHT, Circuit Judges.
The National Labor Relations Board petitions to enforce its order finding that the respondent union violated § 8(b)(1)(B) of the National Labor Relations Act 29 U.S.C. § 158(b)(1)(B). The Board ordered the union to cease and desist from its unlawful conduct, to post appropriate notices, and to pay back pay to a supervisor terminated as a result of the union's conduct.
We are concerned with two issues on appeal: (1) whether substantial evidence on the record as a whole supports the Board's finding that the union violated § 8(b)(1)(B) by using the threat of a strike to restrain or coerce an employer in the selection of its "representrative for the purposes of collective bargaining or the adjustment of grievances"; and (2) whether the NLRA authorizes an order awarding back pay to a supervisor for a purpose other than to protect the rights of employees. We remand on the issue of back pay but order enforcement of the remainder of the order.
The dispute arose in the plant of the Alaska Lumber & Pulp Co. at Sitka, Alaska, the employer of more than 200 men. Earl Niesen had been a member of the company's general work force and the respondent union for more than six years. In late June 1970 the company, hoping to solve problems of excessive absenteeism, tardiness, and poor job performance, appointed Niesen supervisor of the woodroom. Niesen was selected over several foremen senior to him. Prior to his promotion he was active in the union and held the position of Standing Committee Chairman. Upon his new appointment, he resigned from the union and began a break-in period of two weeks before commencing his new duties as supervisor.
Responding to management's encouragement, Niesen met with employees and indicated he would strictly enforce the provisions of the collective bargaining agreement with respect to absenteeism, tardiness, and job performance. The record before us indicates he succeeded in significantly improving production in the woodroom over a period of months.
Shortly after Niesen announced his intent to "crack down," a grievance was filed against him charging misapplication of the seniority rules and harassment of the employees. The grievance was discussed at a meeting of the union-management committee. The company defended Niesen's attempts to achieve efficient production, but indicated concern with what might be poor methods on Niesen's part to achieve this goal. It said the complaints would be handled pursuant to the contract.
Approximately six months later another employee filed a grievance against Niesen, claiming that Niesen pushed him during a dispute in the latter's office. Another meeting of the union-management committee was convened, and the union indicated that it wanted Niesen relieved of his duties as supervisor. The company responded in writing that the dispute had become serious enough to escalate the grievance to the next step in the adjustment of complaints.
The next day, a petition was circulated calling for a "Strike vote Earl Niesen woodroom case." A strike vote, not sanctioned by the International Union, was conducted at two special meetings of union members. The union representative told the 210 men in attendance that a strike vote would be taken in order to demonstrate to the company that the entire work force was supporting the union leadership in the Niesen matter. The representative discounted the likelihood of a strike actually occurring. The employees voted to strike, 178 to 29.
At a union-management meeting the company expressed concern that a strike was imminent, and it offered to train Niesen for one week and to put an overseer in with him. The union rejected this offer. The next day the union documented off-job incidents of violent conduct by Niesen. The company responded with a proposal to have Niesen act only through foremen, thereby avoiding all direct contact with employees "until conditions return to normal." The union rejected this because they did not want Niesen "anywhere near our people" and because the proposal was unilateral in nature. Negotiations broke down and the company advised the International Union representative that it would accede to the union's request to discharge Niesen because the company could not "take a strike." Niesen was then terminated.
The Board concluded that the union violated § 8(b)(1)(B) by demanding upon threat of a strike that Niesen be removed from his supervisory position. The union claims the strike vote was only a "show of strength," and that it wanted Niesen terminated only because of his propensity for violence. There is substantial evidence in the record as a whole, however, to support the administrative law judge's findings, adopted by the Board, that the fear of strike did in fact coerce the company's decision to terminate Niesen, and that it was Niesen's vigorous enforcement of work rules, rather than his propensity for violence, that prompted the union's conduct.
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