Welsbach Electric Corp.

WELSBACH ELECTRIC CORPORATION Welsbach Electric Corporation and James G. Fischer International Brotherhood of Electrical Workers Lo- cal No. 3, AFLCIO and James G. Fischer. Cases 29-CA-4871, 29-CA-5015, 29-CB-2409, and 29- CB-2509 May 26, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO. AND MURPHY On April 12, 1977, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding. Thereafter, the Respondents filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge, to modify his remedy so as to provide for the computa- tion of interest in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),3 and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent Welsbach Electric Corporation, its officers, agents, successors, and assigns, and Respondent International Brother- hood of Electrical Workers Local No. 3, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 'The Respondent has excepted to certain credibilit) findings made bh the Administrative Law Judge. It is the Board's established polics not to over- rule an Administrative Law Judge's resolutions with respect to credibilil) unless the clear preponderance of all of the relevant evidence consvinces us that the resolutions are incorrect. Standard Drs, Wall Products. Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 ((.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings In the absence of exceptions, swe adopt the Administrative I aw Judge's dismissal of the allegation in the complaint that Respondent International Brotherhood of Electrical Workers Local No. 3, AFL-CIO. violated Sec 8(bX I )A) of the Act by permitting Reade and Gavin to become and remain officers of Respondent Union while simultaneously permitting them to hold their positions as high-ranking supervisors with Respondent Welsbach Elec- tric ('orporation. See. generall., Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1. In paragraphs A, 2, (a), and B, 2, (b), delete the language "at the rate of 6 percent per annum." 2. Substitute the attached notices for those of the Administrative Law Judge. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with the administration of International Brotherhood of Electrical Workers Local No. 3, AFL-CIO, herein called Local 3, by permitting our high-ranking super- visors, Superintendent Robert Reade, General Foreman Harry Gavin, or any other high-rank- ing supervisor to serve as an officer of Local 3 or any other labor organization or coerce our em- ployees into signing authorizations for deduc- tions from their wages on behalf of Local 3, by permitting any of our supervisors, by their be- coming or remaining members of the Joint In- dustry Board of the Electrical Industry or the Pension Committee thereof, to engage in collec- tive bargaining on behalf of Local 3 with Wels- bach Electric Corporation or its agents; to par- ticipate on behalf of Local 3 in the administration of our collective-bargaining agreements with Local 3 or in the processing grievances with us as a representative of Local 3. WE WILl NOT encourage membership in Local 3. or in any other labor organization, by refusing to reemploy any employee or by otherwise dis- criminating against any employee in his wages, hours, or other terms and conditions of employ- ment, because he filed unfair labor practice charges against Local 3, or any other labor orga- nization, or any employer, or would not with- draw such charges. WE WILL NOT deduct, at the request of Local 3, or any other labor organization, from the wages of our employees, any dues or assessments with- out the voluntary written authorization therefor from each of said employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in their rights to be represented in collective-bargaining by individuals with single-minded loyalty to their interest, in the exercise of their rights of self-organization, to form, join, or assist Local 3, International Brotherhood of Electrical Work- ers, AFL-CIO, or any other labor organization, to bargain collectively through representatives 236 NLRB No. 63 503 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, ex- cept to the extent that such right might be affect- ed by any agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3) of the Act. WE WILL. jointly and severally with Welsbach Electric Corporation reimburse each employee of Welsbach Electric Corporation who has had deducted from his wages any Local 3 Loan Fund (LFA) assessment commencing on or after November 19, 1975, plus interest. WE WILL notify Welsbach Electric Corpora- tion to cease withholding from the wages of its employees dues or assessments payable to Local 3 until such dues or assessments shall have been voluntarily authorized, in writing, by the indi- vidual employees from whose wages the dues and assessments, if any, are withheld and de- ducted. INTERNATIONAL BROTH1ERHOOD OF Ei E(C- TRICAL WORKERS, LOCAI No. 3, AFL CIO APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Wels- bach Electric Corporation, or any other em- ployer, to deduct from the wages of their em- ployees dues or assessments for the benefit of Local 3 without Local 3 having procured un- coerced written authorizations for such deduc- tions from the employees. WE WILL NOT cause or permit our officer Rob- ert Reade, or any officer or agent of Local 3. to become or remain a member of or to administer and execute the policies and programs of the Joint Industry Board of the Electrical Industry as a representative appointed by Local 3. or cause or permit our officer, Harry "Sonny" Gavin, or any other officer or agent of Local 3, to become or remain a member of the Pension Committee appointed by Local 3, while the aforesaid persons are supervisors of Welsbach Electric Corporation or of any other employer who is subject to the terms and conditions of the collective-bargaining agreement, effective in the period of July 1, 1974, to June 30, 1977, between Local 3 and employers in the Electrical Industry known as the "Agreement and Working Rules" or any other continuation, modification, or re- newal thereof. WE WILL NOJ cause or attempt to cause Wels- bach Electric Corporation, or any other em- ployer, by failure to refer for employment or by rescinding referral for employment, to discrimi- nate against James G. Fischer or any other em- ployee because he filed charges of unfair labor practices against Local 3 or any other labor or- ganization, or because he refused to withdraw such charges. WE WILL NOT coerce or restrain any employee by threatening him with physical injury, with discriminatory job referral or placement, or any other retaliation if he files charges of unfair la- bor practices with the National Labor Relations Board against us or refused to withdraw such charges, or if he refuses to execute authorization for deduction from his wages of the Local 3 Loan Fund Assessment (LFA). WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL. jointly and severally with Welsbach Electric Corporation make James G. Fischer whole for any loss he may have suffered because of our discrimination against him including wages, pensions, welfare, and other benefits, plus interest. WE WILL jointly and severally with Local 3 reimburse each employee of Welsbach Electric Corporation who has had deducted from his wages any Local 3 Loan Fund (LFA) assess- ment commencing on and after November 19, 1975, plus interest. WE WILL jointly and severally with Local 3 make James G. Fischer whole for any loss he may have suffered because of our discrimination against him, plus interest. WEL.SBACH ELEC I RI( CORPORATION DECISION STATEMENr OF THE CASE ROBERT W LEINER, Administrative Law Judge: Upon charges filed on February 23, 1976 in Cases 29-CA-4871 and 29-CB-2409 by James G. Fischer, an individual, herein called the Charging Party, against Welsbach Elec- tric Corporation, herein called Respondent-Employer or Welsbach, and against International Brotherhood of Elec- trical Workers, Local No. 3, AFL-CIO, herein called Local 3 or the Union, the Regional Director of Region 29, on behalf of the General Counsel of the National Labor Rela- 504 WELSBACH ELECTRIC CORPORATION tions Board issued a consolidated complaint on June 18, 1976. On May 20, 1976, the Charging Party filed further charges against Welsbach and the Union in Cases 29-CA- 5015 and 29-CB-2509 and the Regional Director issued an Order Consolidating Cases, complaint and notice of hear- ing in those cases on July 30, 1976. On September 29, 1976, the Regional Director issued a further Order Consolidating Cases and notice of hearing in which all of the aforesaid cases were consolidated for purposes of hearing on Octo- ber 7, 1976. On II dates in the period October 7, 1976, through October 28, 1976, the hearing on the allegations in the above-consolidated cases was held before me in Brook- lyn, New York, at which time all parties were given full opportunity to appear, present evidence, examine and cross-examine witnesses, argue orally on the record and file briefs. After the close of the hearing, on February 23, 1977, Respondent-Union, Local 3, duly filed a thorough and per- suasive brief which I have considered. The consolidated complaint alleges various acts in viola- tion of Sections 8(a)(1), (2), (3), and (4) by Welsbach Elec- tric Corporation: and various acts of violation of Section 8(b)(l)(A) and (2) of the Act by the Union. The Union and Welsbach filed answers admitting certain allegations of the complaint and denying others. In substance, the consoli- dated complaint alleges, and Respondents admit, the juris- diction of the Board because of Welsbach engaging in in- terstate commerce: that Local 3, IBEW, is a labor organization within the meaning of Section 2(5) of the Act: and that at all material times, Local 3 has been the repre- sentative for the purpose of collective bargaining of certain of Welsbach's employees and has been, and is, party to collective-bargaining agreements I with Welsbach concern- ing their rates of pay, wages, hours of employment, and other terms and conditions of employment. It is further admitted that the agreements between the Welsbach and the Union have been, at all material times, maintained and enforced, and contain union-security provisions requiring membership in good standing in the Union of certain of Welsbach's employees as a condition of their continued employment. In the case of electrical or operational em- ployees, including supervisors,2 they are required to main- tain union membership in good standing if they were or became union members during the term July 1, 1974, to June 30, 1977, of the agreement; in the case of Respondent Employer's administrative employees, they are required not only to maintain union membership but to become There are two. overlapping collective-hbargaining agreements: The "A" agreement (G.C Exh. 2), and the "J" agreement (G.C. Exh 3). The "A" agreement, a collective-bargaining agreement between Local 3 and several multiemployer trade associations, of which Welsbach is a member, relates to both operational employees and "administrative" (clerical) employees: the "J" agreement between Local 3 and each of four individual employers (of which Welsbach is one) in the street lighting and traffic light maintenance and construction industry. relates only to operational employees In that industry. The "J" agreement is supplemental to the "A" agreement, accord- in to the assertions of Respondents Art. I(g) of the "A" agreement (G.C Exh. 2. p. 6): "All Employees who are or become members of the Union shall remain members of the U!nlon in good standing during the term of this Agreement as a condition of employ- ment." All parties agreed that this contractual requirement covered all "foremen" and the "superintendent." all of whom are supervisors within the meaning of Sec 2(11) of the Act members of Local 3 within 31 days of the execution of the collective-bargaining agreement or the beginning of their employment, whichever is later. Neither of the collective- bargaining agreements contain dues or other checkoff clauses of any kind. The practice for payment of union obligations is for members to pay union dues directly to the Union.' The consolidated complaint alleges, and Respondents admit, that at all material times Robert Reade has been vice president of the Union and a Welsbach supervisor. It is further admitted that Reade is the superintendent in charge of Welsbach's operational functions at its New York City depot located at 42nd Street in the Borough of Queens. New York. It is also admitted that two business representatives of Respondent-Union, Christopher Plunk- ett and Joseph Bono, are agents of Local 3, acting on its behalf. Respondents deny that one Herbert Ackerman is an agent of Respondent-Union. Respondents also admit that at all material times, and particularly since June 1, 1972. Robert Reade has been an employee representative, designated by Local 3, as a member of the Joint Industry Board (hereinafter sometimes called JIB), an organization made up of representatives of employers and employees in the electrical contracting industry, which organization was established and is maintained pursuant to the terms of the above-noted "A" collective-bargaining agreement. It is fur- ther admitted that Robert Reade, as an employee represen- tative of the JIB, administers and executes the policies and programs of the said board. Respondent Union and Re- spondent Employer denied that Reade "develops" the poli- cies and programs of Joint Industry Board. In particular, Respondent Employer and Respondent Union deny that Reade is a "high ranking supervisor" of Welsbach. In con- formity with this denial, Respondents deny the allegation of the complaint alleging that Reade's status as a high ranking supervisor and as a vice president of Respondent Union. and in his performance as an employee representa- tive of the JIB, violate Section 8(a)(l) and (2) and 8(b)(1)(A) of the Act, respectively. Separately, Respondents deny that the Charging Party, James G. Fischer, was unlawfully threatened, in violation of Section 8(b)( )(A) of the Act by Herbert Ackerman since he is not an agent of the Union; and further deny that, in violation of Section 8(aXl), (2), (3), and (4) and 8(b)(1)(A) and (2) of the Act, the Charging Party was un- lawfully discriminated against with regard to recall to em- ployment. Respondents, in first admitting and thereafter denying, the allegation that Respondent Local 3's bylaws define the function of its officers and provide for the substitution of its vice president in the absence of its president, aver that only its business manager and president engage in collec- tive bargaining for Local 3.4 ' Dues are paid on a monthly, quarterly or semiannual basis as prescribed for each division of union members in art. X, sec. 9 of the bylaws (G C. Exh. 6.pp. 16 17). Art. III, sec I of the bylaws (G.C. Exh. 6, p. 6) provides: "The officers shall perform such duties as are stated in Article XIX of IBEW Constitu- tion." Art. XIX of the IBFW constitution (G.C. Exh. 5. pp. 76-77) provides. in sec 2: "The vice president shall assist the president in the discharge of his duties and shall fill his place in case of the president's absence and perform Continued 505 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents also deny the allegation of maintaining an arrangement and practice whereunder Local 3 approves the reemployment of employees. Lastly, Respondents deny the allegation of the consoli- dated complaint which alleges that since on or about De- cember 1, 1975, Respondent Employer's deduction of union assessments and other union obligations from the wages of employees covered by the "A" collective-bargain- ing agreement with Respondent Union violated Section 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the Act. Upon all the testimony elicited at the hearing, the docu- mentary evidence received therein; upon the argument of counsel and Respondent Local 3's brief, and upon my ob- servation of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTION AND BUSINESS OF RESPONDENT-EMPLOYFR The complaint alleges, Respondent admits, and I find, that Respondent-Employer, Welsbach Electric Corpora- tion, is a corporation organized under and existing by vir- tue of the laws of the State of New York, 5 which corpora- tion maintains its principle office and place of business at 19-49 42d Street, Long Island City, Queens, New York, and at various other places of business in the State of New York and throughout the United States where it is engaged as a contractor in the construction of street lights and other related products. During the 12-month period ending July 1976, a representative period of its annual operations, Welsbach, in the course and conduct of its business opera- tions, performed services valued in excess of $1 million, of which in excess of $1 million of services were performed for the Departments of Transportation of the City of New York, the State of New York, and for the United States of America. In the same period, Welsbach Electric caused to be purchased, transported, and delivered to the above ad- dress in Long Island City, New York, light bulbs, street lights, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transferred and delivered to its above address in interstate commerce directly from States of the United States other than the State of New York. I conclude, in accordance with the allegations of the complaint, and the admissions of Respondents, that Welsbach has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I1. RESPONDENT UNION AS A LABOR ORGANIZATION The complaint alleges, Respondents admit, and I find that Local 3, IBEW, AFL-CIO, herein called Local 3 or the Union, is and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. such other duties as are required by this Constitution and the bylaws of the Ilocal Unionl." 5Cf. I ocal 2. International Brotherhood of Electrical Workers. A FL ( 10 (The Welshach Corporation). 218 NLRB 92 (1975). wherein the parent corpo- ration is ai Delaware corporation. IUl THE ALLEGED UNFAIR LABOR PRACTICES A. Background Welsbach Electric Corporation has its principal office and place of business at the aforementioned location in Long Island City. New York, where it maintains parking facilities, storage facilities, and offices, and engages in the business of constructing and maintaining electric traffic lights and maintaining street lighting equipment principally in New York City's Counties of Kings and Queens. How- ever, it performs the same functions at its branch locations in Baltimore, Maryland, St. Louis, Missouri, Cincinnati, Ohio, Orange, New Jersey, and locations in the State of North Carolina. It has a total of about 300 employees of whom 280 are operational employees actually engaged in the construction and maintenance of the traffic and street lights; and of which approximately 218 are in New York City with approximately 30 office clericals, called "admin- istrative" employees. Welsbach employs five "confiden- tial" employees at the corporate level, all in its New York City headquarters: chairman of the board and chief execu- tive officer, John J. Manganiello; its president, John M. Manganiello (son of the chairman of the board); Sam Her- zog, controller; Charles Clarkson, executive representative; and Richard Mason, chief engineer. Other corporate offi- cers are not "confidential" employees: Thomas Maye, vice president; Joseph Karney, treasurer; and Antoinette Carl- son, corporate secretary. These five "confidential" employ- ees, whether or not corporate officers, are not required to be, nor are they, members of the Union. The other corpo- rate officers are all members of Local 3. Thus, the only employees of Welsbach who are not members of the Union are the above five "confidential" employees. Welsbach also employs Robert Reade as its superinten- dent of operations. As superintendent, after receiving the plans, estimated man-hours and other particulars for the various jobs from Welsbach's chief engineer, Reade is in complete charge of the execution of the jobs, including the hiring, firing, and employment of Respondent's 218 street and traffic lighting employees, including all construction and maintenance. This authority has been directly delegat- ed to Reade by Chairman Manganiello to whom Reade directly and solely reports. In Manganiello's absence from the main office, Reade reports to Manganiello's son, Presi- dent John M. Manganiello. Chairman Manganiello holds Reade directly responsible for the success of all operations as Welsbach's "top supervisor." Reade's direct subordinate is the sole "general foreman" of all operational employees: Harry "Sonny" Gavin. Be- neath Gavin are six field foremen, conceded to be supervis- ors within the meaning of Section 2(11) of the Act, who have the direct responsibility of supervising the work of the 218 operational employees. Local 3, which has represented Welsbach's employees since 1936, has a membership, solely in the New York area, of approximately 35,000 of whom more than 6,000 are "A" cardholders and more than 100 are "J" cardholders. The evidence shows that Local 3 has various "divisions" com- prising its 35.000 members, each of which divisions is des- ignated by a capital letter.6 The "A" division is made up 506 WELSBACH ELECTRIC CORPORATION primarily of members who are prime pay-rate journeymen electricians employed in the construction industry. The "J" division is composed of members who are employed in the Street Lighting Division. As above-noted, Welsbach is cov- ered by both the "A" division collective-bargaining agree- ment and the "J" division agreement (G.C. Exhs. 2 and 3). Employees, members of Local 3, working for the "J" divi- sion employers, such as Welsbach, may not be "J" division union members. The Charging Party, for instance, is a member of the Union's DBM division (Building Mainte- nance Division). Any employee, however, regardless of his membership in a particular division, when working in a street lighting shop, is covered by the "J" division contract. The parties at the hearing were in agreement that more than one contract may apply to the operations of a particu- lar employer. In the case of Welsbach, both the "A" and "J" agreement applied. The evidence is also clear that em- ployees who are members of divisions ordinarily devoted to employers engaged, for instance, in manufacturing oper- ations (unlike Welsbach) are paid at higher rates for un- skilled or semiskilled work when employed by a "J" divi- sion employer such as Welsbach, and thus working under "J" agreement pay rates is an object of attraction to em- ployees who are members of other divisions. While all jour- neymen electricians who are holders of the "A" card are paid premium pay rates, the evidence shows that not all members of the "J" division are premium pay-rated jour- neymen electricians. Those journeymen electricians hold- ing "J" cards are paid the same premium rates as those paid to "A" division journeymen, but other "J" division employees, regardless of their division membership, are paid the high "J" division contract rates. In short, employ- ment in a "J" division shop is highly regarded by nonjour- neymen.7 The evidence also shows that the four employers covered by the "J" division agreement are: Welsbach, Lord Electric Company, Comstock Electric Co., and Broadway Mainte- nance, Inc., all employers in New York City. These em- ployers employ in excess of 600 employees. All members of the Union working for a "J" division employer, regardless of division affiliation, attend meetings of and vote in the "J" division.8 Harry Gavin is chairmen of the "J" division 9 and, as above-noted, Weisbach's gen- eral foreman. He is also a member of the pension commit- tee of the Joint Industry Board. Membership on the com- mittee does not require membership on the JIB itself. °0 The T he "E" division, for instance, is for members emplo ed bh emplosers in electric switchboard manufacturing: the "F" dlvision. for emplos!ees In electrical fixture manufacturing 7 At the hearing, the "J" agreement's wage rates were given as the sole basis for the applhcabilit? of that document to Welsbach's employees. Robert Reade, hoseser. a member of the "(i" division made up exclu- sivel] of superintendents stated he does not vole in the "J" diislion A, discussed below, Reade is Local 3's vice president 9 Division or "unit" chairmen. under the Union's hblas (C ( Exh. h. art XIV. p. 23) are elected bh secret ballot hb unit members on 3 se.arls basis. His duties are similar to those of the local UInion president lie pre- sides over the "Executive ( ommittee" as the Respondent-Union's president presides oser the Local's "Executive Board" as noted In the local LInion's bslaws and the Intern.aional U:nion's constitution (GC ( Exh i5 l Although the consolidated complaint. as further amended at the hear- Ing. alleges (Gi C' Exh 1(s ) i.a in toi he a member of the JIB and a trustee thereof. neither is true Nor is there proof that. as an emplosee i.e. union JIB names the members of the pension committee. This pension committee of the Joint Industry Board of the Elec- tric Industry consists, inter alia, of 10 representatives named by employers and 10 members (employee represen- tatives) named by the Union (G.C. Exh. 4, pp. 4-5). 1. The Joint Industry Board The "A" contract between New York Electrical Con- tractors Association, Inc. (NECA), and Local 3, to which Welsbach, a member of NECA, is bound, provides (G.C. Exh. 2. art. II, p. 6, et seq.) for the establishment of a Joint Industry Board consisting of 15 members selected by the Union (i.e., "employee members") and 15 members select- ed by employers. There is also one member representing the public. The functions of the Board " include the pro- motion of harmony between employers and employees in the electrical industry: the supervision of various vacation and other plans and trusts including Pension, Hospitaliza- tion and Benefit Plans of the Electrical Industry (G.C. Exh. 4) established and maintained under the collective-bar- gaining agreement: and supervision over the apprentice- ship and training plan. With regard to operational employees, the collective- bargaining agreement provides, with regard to the JIB, that "any question or controversy or dispute between parties [sic] of this agreement" is to be submitted to the JIB and thereafter to arbitration (Art. I(c), G.C. Exh 2). With re- gard to administrative employees covered by the agree- ment, "all grievances relating to the meaning and applica- tion of this agreement shall be submitted to the Joint Industry Board . . . for decision," (Sec. XIV, p. 37, G.C. Exh. 2)?12 Among other duties, the JIB is empowered to decide disputes regarding the wages paid to an employer's supervisors (foremen) in general (G.C. Exh. 2, rule 1 l(b), p. 21) and an employer's superintendent, in particular (G.C. Exh. 2, art. V, p. 27). The collective-bargaining agreement also provides for the discharge of employees for "just cause" (G.C. Exh. 2, rule 10(c), p. 20); and the JIB hears appeals based on terminations for cause (Rule 1 l(e) ).13 Robert Reade testified that he has been a member of the JIB since 1971 but has never been a member of the pension committee although he sits in on its meetings because of his office as Local 3 vice president. He testified that the JIB does not make policy for its several committees, and while it chooses the members of the various committees, among which are the members of the pension committee, the members of the pension committee need not be members of the JIB. The JIB. he said, inter alia, acts as a collection agent for various monies deducted from employees' sala- ries which monies are forwarded to the JIB as an intermed- represenltllse. on the Pension Committee he 'as chosen as a trustee. There is no trustee on the JIB; there is on the pension committee. i T'he cost of the administration of the JIB is borne by the employers. l The "J" ditision agreement (G.C. Exh. 3 p. 5) refers disputes first to negotiatlin bh the parties and then to arbitration. JIB is not mentioned In that agreement 1L Unlike the limitations imposed on actions of members of the Union's executive hoard bh the Ulnion's ctnstitution (Art. XIX. sec. 11), nothing in the colleclise-hargaining agreement (G C Exh 2) creating and defining the powers of the JIB prohibits a union member from sitting on cases Involving his own emiplotcr or the emplosers' employees 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iary before the monies are sent to Local 3. To perform its function, the JIB has a large clerical staff and is situated in a building, also occupied by the Union, on Jewel Avenue, Queens, New York. 2. Robert Reade: union officer and Welsbach supervisor a. Union officer Robert Reade has been a member of Respondent Union for more than 30 years and an officer thereof for 23 years. In 1957-72, he was recording secretary and since 1972 he has been annually elected vice president of Respondent Union and 14 in the 2-year period ending December 30, 1974, Robert Reade was "acting president" of Respondent Union. In fact, the "A" agreement, in effect since July 1, 1974, was executed by Robert Reade on behalf of Respon- dent Union in his capacity as "acting president." The vice president, according to the bylaws above, and in the Union's constitution (G.C. Exh. 5, art. XIX, sec. 2) "shall assist the president in the discharge of his duties and shall fill his place in case of the president's absence." The president's duties include, inter alia, enforcement of the constitution, bylaws, and union rules; appointment of all committees; acting as an ex officio member of all commit- tees and chairman of the executive board; presiding at all meetings; and cooperation with the business manager. Reade receives no salary as a union officer. He receives $3 for each executive board meeting he attends. He is a member of the "G" division-110 members-restricted only to superintendents. He does not vote in the "J" divi- sion, nor does he attend its meetings. As a member of the JIB since 1971, named by the Union, Reade engages in its functions. The 31-member JIB is a creature of the collective-bargaining agreement and it exists to harmonize labor relations in the industry. It con- sists of 15 persons representing the Union; 15 representing the employers and one person representing the public. I he evenly divided, 20-member pension committee also names a 4-member board of trustees, also evenly divided between employer and employee members. Reade is not a member of the pension committee board of trustees. Respondent Local 3 conceded that if JIB is a mechanism for "hammer- ing out" grievances. 5 it might constitute a form of collec- tive bargaining. Reade, as a JIB member, has the power to process grievances arising under the "A" agreement though counsel denied that the power was exercised. In addition, Reade as Union vice president, has been and is a member of Local 3's executive board which con- sists of Respondent Union president (George Schuck), vice president (Reade), and five members elected by the general membership. The executive board is a creature of the union constitution and the union bylaws. Reade testified that, although the business manager and his staff of business representatives, alone conducts con- 4 The union officers (president, vice president, and recording secretarys as well as the business manager are elected by the union membership Reade testified that the JIB hears disputes raised by employers rather than by employees He did not say employees are precluded from bringing grievances before the JIB. tract negotiations, and under the Union's bylaws (G.C. Exh. 6 art. VI, sec. 3, p. 10), suffers no interference in that function from Local 3 officers, in practice, however, the business manager does discuss with the executive board, in general, and with officers of the Union, in particular, in- cluding Reade, what the business manager is doing and is going to do in formulating aims of the Union in collective- bargaining.16 After negotiations start, the business manager keeps the executive board informed as to the course of bargaining. Unsuccessful bargaining, according to Reade, may result in and has resulted in strikes. Only the vote of the member- ship authorizes a strike, but such a vote is derived from the recommendation of the business manager. The executive board, meeting twice a month, recommends to the mem- bership votes on subjects in addition to strikes, including wages, and is empowered to sit as a "trial board" to hear and decide charges against members brought by the busi- ness manager. The union constitution, however, provides that an executive board member may not sit in a case af- fecting his own employer or an employee thereof (G.C. Exh. 5, p. 80). The executive board is empowered, inter alia, to pass on applications for union membership; grant withdrawal cards and traveling cards; pass on requests for dues exemp- tion and extention of time to pay; and to recommend in- creases in dues and assessments. It is also empowered to determine, in the future, the date of redemption of the "certificates of participation" in the Local 3 Loan Fund in the hands of employees who are required to contribute thereto by virtue of payroll deduction. b. Reade as Welsbach supervisor The evidence shows that Reade a Welsbach employee for 27 years, is in charge of all Welsbach operating person- nel, all operational authority having been delegated direct- ly to him by Chairman Manganiello, and is the superior supervisor to the sole general foreman, Harry Gavin, and the six foremen. All operating employees, including foremen, general foremen, and superintendents, are covered by the collec- tive-bargaining agreements and are subject to the mainte- nance of membership provision. While the foremen and general foreman are also specified therein with regard to rates of pay, hours and other conditions of employment, the superintendent, who receives "A"journeyman benefits, does not have his wages defined. Thus although the agree- ments between the multiemployer associations of contrac- tors and Local 3 provide for particular wage rates and l' Local 3's assertion that the "Executive Board has no role at all in determining collective-bargaining objectives" appears to be contrary to the credible evidence. For Reade testified: Yes. He [the business managerl does talk it [collective-bargaining aims] over with the Executive Board and the officers . .we work as a team With regard to the negotiations themselves, the business manager carries on the negotiations without the aid of the officers. The Union's bylaws, provide. art. Vl. sec. 3. p 10 iG C. Exh. 6): The Business Manager shall report to the Executive Board and the local union when called upon. or when he deems necessary. The Execu- tive Board shall nut interfere with the Business Manager in the perfor- mance of his duties. 508 WELSBACH ELECTRIC CORPORATION wage differentials for all foremen, general foremen, and subforemen (G.C. Exh. 2, rules 3 and I 1, p. 14-21) depend- ing, in part, on the number of foremen employed by the particular employer, the agreement (Art. V, G.C. Exh. 2), requires employers who take jobs of $100.000 or more, or who employ 25 employees. to also employ a superinten- dent: The superintendent shall receive all benefits under the agreement of "A" journeymen and shall negotiate wages with the individual employer. The Joint Industry Board shall be empowered to make appropriate rules and regulations for the interpreta- tion, administration and enforcement of this rule. Chairman Manganiello testified that Reade is not paid by the week but by the year. Reade, whose weekly pay rate comes to $671 a week (Gavin's pay is $644 a week) is the highest paid employee of the corporation other than the chairman and the president, and, in any event, is paid about $10,000 per year more than the other corporate offi- cers. Reade was originally the night foreman and then was promoted to general foreman when he was elected rec- ording secretary of the Union. In the 2-year period, 1972 74, when Reade was acting president (during which period he, along with business manager Thomas Van Arsdale, ex- ecuted the basic collective-bargaining "A" agreement on behalf of Respondent-Union), he remained Welsbach's su- perintendent. Board Chairman Manganiello testified to a "close relationship" with Reade for 27 years but denied anything other than very little knowledge of Reade's union activities. He stated that grievances of operating personnel are processed through the employee's particular foreman. thereafter to the general foreman or to Reade. In the past, the latest occasion being 7 to 8 years ago, Manganiello sent Reade to Welsbach's operations out of New York City to evaluate problems as a troubleshooter and to analyze the difficulties and problems in such foreign operations. Reade did not report the results of such investi- gations to local Welsbach management in the various cities of the United States in which Welsbach maintains these operating facilities, but reported the results only to Man- ganiello. Reade has the power to hire and fire but has no power to bid on new jobs or to order materials. His function is pure- ly operational. After Welsbach's chief engineer outlines the particular job to be performed, providing Reade with the gross time in which the job is to be executed and the man- hours available to him, it is Reade's duty to execute the job in all its requirements. Reade receives the same $250 bonus as do all of the foremen and is provided a company car which is indistinguishable from the cars provided the other foremen. Reade testified that in the hiring of the superintendent, such as himself, the Union recommends the candidate to the employer. While the Union would not force an em- ployer to accept a superintendent to whom an employer objected, the Union could veto the naming of a superinten- dent by an employer. Reade described the functional re- quisites of a superintendent as a person being thoroughly knowledgeable in electrical work; administrative ability; knowing how to handle men; and cost conscious.'" Contrary to the argument of counsel for Local 3 ad- vanced both at the hearing and contained in cited cases, Reade testified that superintendents. whether in the "J" division shops or "A" division shops. unlike foremen named by the employer under the "A" agreement (G.C. Exh. 2, rule I I-A p. 20; Cf. rule I I-E, p. 22) do not ordi- narils cease their employment as superintendents and re- turn to the status of journeymen electricians. Rather, they remain year after year with the employer as chief supervis- or of all operational work. Reade himself has been superin- tendent of Welsbach's operation for more than 5 consecu- tivte ears. As can he seen, Reade is no "transitory" supervisor typi- cal of the construction industry, Nassau and Suffolk Con- tractors Association, Inc., 118 NLRB 174, 184 (1957); De- troit Association of Plumbing Contractors, 132 NLRB 658, 659 (1961): and he is no "master mechanic" whose position is mandated when only five unit employees are hired, Nas- sau and Suffolk Contractors Association, 118 NLRB 174, 179, supra; nor is he a tugboat captain. A.L. Mechling Barige Lines, Inc., 197 NLRB 592 (1972).1 8 i-Chairman Manganiello testified that he holds Reade directls responsi- ble for execution of Welshach contracts. IR his effectivel? distinguishes Detroit ,4s.ociarion of Plumbing Contrac- ir*r2. 126 NL.R B 138 ( 1960). enfd in pertinent part sub nom Local 1636 of the I nited 4 isoclation i{t Journei men and Apprentries of the Plumbing and Pipe A)taing Indu.tri of the L nited States and Canada. .4 FL CIO v N L R B.. 287 IF.2d 354 (( .. (D.C. 1961). and 132 NLRB 658, on which Local 3 relies In citing this case. It ocal 3 asserts that the only reason an 8(aH2) violation was found in that case was because unlike the present case. the supervisors there were not members of the bargaining unit and the collective-bargaining agreement related only to journe)men Despite counsel's persuasive and forceful analsis of the Nassau-Suffolk line of cases, counsel. it seems to me, did not give sufficient weight to the Board's later admonition In Banner Yarn Dieing ( rporattrin, 139 NILRB 1018, 1019. fn 1I 1962), that the ratio- nale in utional Gipsum Companl, 139 NL.RB 916 (1962). renders Anchor- age Biusincsirmen's A4socialion. Drugsioro Unia, and its Member Emploiers etc 124 NLRB 662 (1962), consistent with the Nassau and Suffolk Contractors 4s ociation. 118 NL.RB 174 (1957). At 921 in National Gypsum. it is clear that the Board, adopting the Trail Examiner's decision, approved his analy- sis that an 8(a)(2) violation would be found. as in .4nchorage Businessmens 4ssociialton, upra,. even where the supervisors are included in the bargaining unit if thes arole at union meetings, serve on the Union negotiating commit- tee or have "managerial functions." Instead, counsel for Local 3 appears to argue that the Board did not actually reconcile the cases and that Anchorage Buvtnessnmen' .4ssociation. correctly "construed and clarified" by National Gtpfum Co . requires a holding that but for supervisors with "managerial functions." inclusion in the bargaining unit is a complete defense to an 8ai(2) finding The Board has not so held either in Anchorage Businessmen's 4lox ailton. , or atiional (lpsunm or in any other case cited b) Local 3. If the Board has erred In falling ito make inclusion or exclusion from the bargain- ing unit a complete defense to an allegation of violation of Sec. 8(aX2) of the Act where the high ranking supervisor is active in the Union. counsel must address himself to the Board rather than to me, Moreover, in .4 L. .UIihiing Barge I.ine. Inc. 197 NLRB 592, 597 (1972), cited by counsel for Local 3. the Administratlse Law Judge. with apparent Board approval, stat- ed 'Therefore. inclusion in or exclusion from the employee bargaining unit is not controlling when determining whether an employer is to be held liable for supervisiors voting in union elections.' The more important basis for the determination is whether the supervisors are lower level or are . . high ranking supersvisors. The decision in AMechling Barge Lines notes that a high ranking supervisor voting in a union election is "plainly a form of interference with the admin- istration of a labor organization." for, in a close election management would be in ai position to select the union officials with whom to deal in negotia- Continued 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Harry "Sonny" Gavin; general foreman and chairman of the "J" division 19 The consolidated complaint alleges, the parties admitted and the evidence shows that Gavin, who did not testify, is the sole general foreman at the 42nd Street, Queens, depot; is in charge of all Welsbach operation personnel at that location subject only to the direction of Robert Reade: is the superior of all six field foremen employed by Wels- bach; is paid only slightly less than Reade ($644 a week compared to $671 a week); has his own office in Welsbach Depot; reports directly to Reade; and has the power to hire and fire. Gavin is chairman of the Union's "J" division, is elected yearly by the 600 or more union members employed in the "'J" division shops and conducts the "J" division meetings which Charging Party Fischer attended. It was stipulated that Gavin is a member of the pension committee, named by the 15 union members of the JIB. The pension commit- tee, of course, passes on the eligibility of employees in the Industry to gain a pension. While Reade makes the major decisions in the area of maintenance and repair, particularly in traffic light con- struction, Gavin is almost exclusively in street light mainte- nance. In that position, about 90 electricians are subject to Gavin's direct control. Reade also testified that grievances are ordinarily taken up directly with an employee's own foreman, including grievances such as assigning sick em- ployees to light duty or reassigning employees from one crew to another because of personality differences. Chair- man Manganiello and Reade testified that employee griev- ances, presented first to the foreman, are thereafter taken to the general foreman, Gavin or to Reade. Ordinarily foremen do not come to Reade with minor grievances. But tions or grievance resolution. Counsel for Respondent correctlv points out that in the 35,000 member Local 3, Reade's vote would hardly put him in the position to select union officials with whom he would deal in negotia- tions or grievance resolution. I agree. However, voting in an election is net the only basis for an inference of unlawful interference. Reade, a high uilton official consulted on collective-bargaining aims, is already on the other (Union) side of the bargaining table because of his position on the Joint Industry Board. While it may be true, as Counsel urges, that Balnner )Ilrn Dveing Corp.. supra. requires, in order for a violation of Sec. 8(a)(2) to, he found, that the supervisor must participate in direct negotiations in collec- tive bargaining with the representative of its employer rather than merely being directly consulted, yet that has no contrary application in the instant case, For Reade's position on the Joint Industry Board involves no Icss. under the rules of the JIB, than direct collective bargaining since he resoil.es wage rates, grievances and just cause for discharge. JIB also. inter alia, is empowered to assess damages against late reporting employers on weekls payroll, waive both compulsory journeymen employment by emploers (G.C. Exh. 2, rules 2(a) and 2(e) ), and the number of foremen an emploter must hire (rule I I(b) ).) Thus, while I am persuaded by counsel for Respoin- dent that voting in the election, in the case of a high ranking supervisor vsho is also, like Reade. a high union officer, does not necessarily create the violation, as it did Anchorage Businessmens Association, there are clearly other grounds for concluding that unlawful interference and assistance oc- curred. 91 Charles T. Clarkson. Welsbach executive representative (Clarkson rep- resented Welsbach at the hearing) and one of the five nonunion "confident tial" employees of the Welsbach Corporation, testified that in order for . "J" division employee to transfer from one "J" division employer to another (or, as other evidence indicated, even in order for a "J" division employee toI return to work with a non -"J" division employer, the employee requires the permission of his present "J" division employer. As will be seen. intro. (iay- in exercised this supervisory power. with regard to grievances of a more serious nature such as an employee refusing to obey a foreman's order, such a grievance would be taken up between the shop steward and the foreman and then to Reade. On any grievances of em- ployee regarding safety problems, Reade testified that he would ultimately make the rulings in the matter which bind the Company. 4. Findings and conclusions with regard to allegations of unlawful assistance The amended consolidated complaint alleges, inter alia, in substance, (a) that Welsbach, through Reade and Gavin, by virtue of their simultaneous high supervisory status in Welsbach, and their holding positions as high officers in the Union, is rendering unlawful assistance to the Respon- dent Union; and (b) that, in any event. Welsbach, through Reade's and Gavin's membership on the JIB and the pen- sion committee, respectively, permits supervisors to engage in collective bargaining with Welsbach, while they are offi- cers of the Union, thereby rendering unlawful assistance to Local 3. B. Welshach Interference in the Union by the Status and Acts of Reade and Gavin Both the Board and the Courts agree that the question, whether an employer unlawfully interferes in the adminis- tration of the Union because its supervisor actively partici- pates in union affairs and is a union official, must be ap- proached on a case-by-case basis, indicating that a per se rule is unrealistic, especially in the construction industry, Allied Chemical Corporation, Wilputte Cake Oven Division, 175 NLRB 974, 978 (1969), and cases cited therein. There is no dispute that the leading case is Nassau and Suffolk Contractors Association, 118 NLRB 174. The Board was there confronted with a situation in which master me- chanics (statutory supervisors) were included in the bar- gaining unit under the terms of the collective-bargaining contract and actively participated in union affairs. Recog- nizing the upward and downward movement of supervisors in the construction industry, the Board held that a super- visor was not required to relinquish his basic union mem- bership or refrain from actively participating in union af- fairs, when occupying a supervisory position, unless it could be affirmatively shown that the employer instigated or ratified this conduct, or lead the employees to reason- ably believe that the supervisor was acting for or on behalf of the employer. The Board also holds that unlawful inter- ference in the affairs of a union occurs when supervisors who are members of a journeymen's union, engage in col- lective-bargaining negotiations with their employers, Nas- sau and Suffolk, supra; E.E.E. Co., Inc., 171 NLRB 982 (1968), or, if they are "high ranking" supervisors, vote in union elections, National Gypsum Company, 139 NLRB 916 (1962), or, if they are high level officers, merely engage in intraunion activities, Western Exterminator Company, 223 NLRB 1270 (1976). The reasoning for this is that such ac- tivity would result in divided loyalties and would be con- trary to the clear legislative policy to free the collective- bargaining process from all taint of employer influence. 510 WELSBACH ELECTRIC CORPORATION International Association of Machinists, Tool and Die Mak- ers Lodge No. 35 [Serrick Corp.] v. N.L.R.B., 311 U.S. 72, 80 (1940). Respondent Union argues (1) that if the supervisor is included by the collective-bargaining agreement in the contract unit, such inclusion in the bargaining unit per se prevents the supervisor from being a "high level" supervis- or; (2) absent evidence that the supervisor has managerial functions, the supervisor cannot be a "high ranking" super- visor whose engaging in intraunion affairs gives rise to un- lawful interference, Nassau and Suffolk Contractors Associ- ation, supra, Anchorage Businessmen's Association, 124 NLRB 662, enfd. 289 F.2d 619 (C.A. 9, 1961); (3) that, absent proof that Reade and Gavin engaged in direct nego- tiations with the employer, or actively resolved grievances with the employer, no unlawful assistance can be found; and (4) that there has been no showing in the instant case that Welsbach instigated or ratified any union conduct by Reade or Gavin nor did it lead the employees to believe that any of their actions were taken on behalf of Wels- bach. (I) Inclusion in or exclusion from the unit is not disposi- tive of the high level of the supervisor or of unlawful inter- ference. A. L. Mechling Barge Lines, Inc., 197 NLRB 592, 597, and cases cited. The inclusion in the unit is merely an exercise of union power or preference. Nassau and Suffolk, supra at 186. (2) Counsel next argues that neither Reade nor Gavin are "high level supervisors" within the meaning of Board precedent. He notes that the mere layering of supervision beneath the superintendent and the general foreman does not necessarily indicate that either Reade or Gavin was a "high level" supervisor, Detroit Association of Plumbing Contractors, supra. He also notes that the power to hire and fire is clearly not dispositive of that question, Nassau-Suf- folk, supra, 179. It is also observed that Reade and Gavin are subject to the union security clause, are union mem- bers, and are clearly dual agents, having allegiance both to the Union and to the employer in executing their supervis- or roles, Nassau-Suffolk, 118 NLRB at 182. I conclude, to the contrary, that both Reade and Gavin are "high level" supervisors within the meaning of Board precedent. Western Exterminator Company, 223 NLRB 1270 (1976), Anchorage Businessmen's Association, supra; National Gypsum Co., supra at 921, and that Welsbach by permitting them to engage in intraunion activities, violated Section 8(a)(2) and (1) of the Act. See: Western Extermina- tor Co., supra. I note in particular that Reade and Gavin are paid considerably more than almost all of Welsbach's corporate officers ($35,000 and $33,000 per year as op- posed to $24,000 per year). Unlike the cases which distin- guish the construction industry's supervisors from other in- dustrial supervisors on the ground that in the construction industry, a supervisor employed one day may be a journey- man and nonsupervisor the next, Local 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO [Detroit Assoc. of Plumbing Contractors], 287 F.2d 354 (C.A.D.C., 1961), Reade is no transitory supervis- or, having been employed by Welsbach as a supervisor for more than 20 years and as its superintendent for more than 5 years. In addition, unlike towboat captains, A. L. Mechl- ing Barge Lines, supra, labor foremen, Allied Chemical Corp.. supra, master mechanics, Nassau and Suffolk, supra, and other lower level supervisors, Reade is possessed of responsibilities and authority divorced from supervision ot bargaining unit employees: he is entrusted with investiga- tion and analysis of corporate operational problems arising outside New York City. In view of Reade's responsibilities, pay, and tenure, I reject counsel's further argument that "managerial functions" require responsibilities involving problems of corporate aims and structure. No authority has been shown for this proposition. Similarly, Harry Gavin, supervisor of 218 employees, paid ($33,000 per year) higher than almost all corporate officers ($24,000 per year) and next below Reade, is a "high level" supervisor, A. L. Mechling Barge Lines, Inc., supra; Western Exterminator Co., supra. As "high level" supervisors, their engaging, at all in union activities vio- lates Section 8(a)(1) and (2) of the Act. Nassau and Suffolk, supra. (3) Entirely apart from the question whether Reade and Gavin are high level supervisors, I find, in any case, that a violation of Section 8(a)(2) and (1) occurs, in this particular case, because Reade and Gavin engaged in "direct" collec- tive bargaining with the employer or its agents. Where "di- rect" bargaining occurs, the problem of "high level" super- visor appears to be eliminated. E.E.E. Co., Inc., 171 NLRB 982, 983 (1968). It may be true, as counsel urges, that Banner Yarn Dyeing Corp., 139 NLRB 1018, and Allied Chemical Corpo- ration Wilputte Coke Oven Division, 175 NLRB 974, 978, require that a supervisor-union agent engage in direct ne- gotiations with the employer in order to perfect an 8(a)(2) violation; but I conclude that such "direct" negotiations occurred here. The evidence in this case indicates that, even though the business manager had the fundamental responsibility to di- rect and implement collective bargaining, the business manager, worked in a team effort in advising and formulat- ing aims and objectives of collective bargaining, with the union officers, including Reade. Under such circumstanc- es, I do not believe that a literal reading of Banner Yarn constitutes the Board rule.20 If the participation by the sup- ervisor in face-to-face discussions was the absolute crite- rion for "direct" collective bargaining, the opportunity for subterfuge and fraud by the imposition of such a per se rule would be obvious. In such a case the actual collective bar- gainers could perhaps sit across the city or in the next room from the mere negotiators and not be held liable for unlaw- ful actions because they were not involved "directly" in the negotiations. In any event, we do not have such a case present here. In the case at bar. Reede sits on the JIB and Gavins sits, as the JIB union nominee, on the pension committee. In such 20 There is no question that such language requiring face-to-face partici- pation appears in the decisions of Administrative Law Judges correctly cit- ed by Local 3 Banner Yarn Dieing Corp. 139 NLRB 1018. 1026 (1962): Allied Chemical ( orporation Wilpuite Coke Oven Division, 175 NLRB 974, 978 (1969) 511 DECISIONS OF NATIONAL LABOR RELATIONS BOARD positions, they engage in "face-to-face" collective bargain- ing. 2 While it is true that in such positions neither Gavin nor Reade engaged in contract negotiations leading to collec- tive-bargaining agreements which, I have found, is the province of the business manager and his staff, I do not believe that the phrase "direct collective bargaining" ex- cludes Reade's sitting as a union nominee on the Joint Industry Board and Gavin sitting as a union nominee on the pension committee. Counsel for Local 3 particularly concedes, in his brief, a distinction between negotiations and other direct collective bargaining in suggesting that the rule appears to be that: [P]ermitting most supervisors to hold the highest union offices and to discharge the functions of that office by exercising its full range of powers is not a violation provided that the supervisor has not en- gaged, during the relevant period, in negotiations, or at most [sic] in some form of direct collective bargain- ing. It is sufficient, for purposes of the instant case to note that the collective-bargaining agreement which creates the Joint Industry Board, provides (G.C. Exh. 2, Art. 1. Sec. I(c), p. 5) that, prior to submission to arbitration, the Joint Industry Board shall have submitted to it for determina- tion "any question or controversy or dispute between par- ties of this agreement." It is clear that, at this late date, collective bargaining does not conclude with the execution of the collective-bargaining agreement but "unquestion- ably extends beyond the period of contract negotiations and applies to labor-management relations during the term of an [collective-bargaining] agreement." N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 436 (1967); N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421 (1967). The collective-bargain- ing agreement is a general framework for conditions in the shop, as the Supreme Court has held in the "trilogy" cases. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); Steel- workers v. Enterprise Wheel & Car Corp., 269 F.2d 327 (C.A. 4, 1959). A multitude of collective-bargaining prob- lems are required to be resolved subsequent to the execu- tion of the underlying collective-bargaining agreement. Di- rect, face-to-face negotiations can occur after execution of the underlying collective-bargaining agreement including the furnishing of information, N.L.R.B. v. Acme Industrial Co., supra; and the resolution of disagreements and griev- ances of all types, Vaca v. Sipes, 386 U.S. 171 (1967). The union agents, as fiduciaries of employees' rights are under a duty to be fair and diligent. Miranda Fuel Company, Inc., 140 NLRB 181 (1962); Ford Motor Company v. Huffman, 345 U.S. 330 (1953). Reade sits as one of the union designates, facing em- ployer designates, on the Joint Industry Board and is charged under the collective-bargaining agreement with the obligation to represent the employees, i.e., the Union, in post-contract resolution of problems. He has been on the Joint Industry Board for no less than 5 years and he is 21 See sec. 111, A. 3, and In. 18. supra. for the subjects of grievance han- dling and continued bargaining committed to the JIB. on the Joint Industry Board at the present time. His posi- tion on the JIB is no different, for the purposes of engaging in "direct" collective bargaining with representatives of the employers, than is "direct" collective bargaining carried on by the Union's business manager in the execution of the underlying collective-bargaining agreement. Under these circumstances, as I have said, supra, it is unnecessary to decide the question, as counsel for Respondent urges, whether the activities of the Local 3 business manager, in consulting and presenting his collective-bargaining aims to the union officers, including Reade, is sufficient to consti- tute "direct" bargaining by Reade, or as "indirect" bar- gaining, does not create a violation under the holding in Banner Yarn Dyeing Corp., supra. Unlike Banner Yarn Dyeing Corp, 139 NLRB at 1027, fn. 32, as cited by counsel for Respondent in its brief, here there is no mere potential power to directly bargain; and the ability of Reade to sit on the JIB, and his actual sittings thereon, is not merely a provision in the collective-bargaining agreement authoriz- ing him to engage in unlawful conduct, i.e., face-to-face direct bargaining; for here, Reade actually sits on the JIB and engages in face-to-face collective bargaining with his opposite numbers, the representatives of the Employer. Similarly, when Gavin, on the pension committee, is face-to-face with his opposite number on the employer side, and decides questions relating to an employer's right to a pension, he is engaged in "direct" collective bargaining within the meaning of that term as above cited.2 Therefore, I conclude that in conformance with Nassau- Suffolk, supra and Banner Yarn Dyeing Corp., supra at 1026, Welsbach, by engaging in face-to-face collective bargain- ing with Reade and Gavin, and by failing to register any protest and by actually dealing with them, violated its duty, when confronted with those persons on the Union's side of the negotiating table, to protest the composition of the union nominees and to refuse to deal with them because of the taint of employer interest. In short, Welsbach "ac- quiesced" in the appointment of Reade and Gavin to their union positions and to that extent interfered with the ad- ministration of the Union in violation of Section 8(a)(2) and (1) of the Act. Nassau-Suffolk Contractors Association, 118 NLRB 174 (1957); Banner Yarn Dyeing Corp., 139 NLRB 1018, 1026 (1962). Since the complaint alleges and the proof adduced at the hearing shows that Reade and Gavin have been on the JIB and the pension committee, respectively, since at least De- cember 31, 1975, well within the 6-month period, Respon- dent Union's reliance on Section 1O(b) of the Act to pre- '2 Even if Gavin's position on the pension committee, as one of 10 union appointees. is not comparable to that of Reade on the JIB. I would never- theless find his sitting thereon to be unlawful and in violation of Section 8(a)J2). A potential pensioner appearing before the pension committee may reasonable anticipate that the employer receiving his application owes him no fiduciary obligation. On the other hand. he cannot be unmindful of the unequivocal conflict of interest residing in the person of Harry Gavin when Gavin is sitting on the pension committee Not all pension applicants are highly paid journeymen. What can be the applicant's perspective upon hear- ing that Gavin. the union designate. is a $33.000 a year general foreman over 218 employees? In this context, I find irrelevant the much discussed distinction that construction industry supervisors. like Gavin, being union members, are to be distinguished from their manufacturing brethen. Nassau and Suffolk, at 182, because of their "dual" allegiance. "Dual" allegiance and "fiduciary" obligations are explicitly inconsistent. 512 WELSBACH ELECTRIC CORPORATION clude a violation concerning these supervisors engaging in collective bargaining on behalf of the Union is unfounded and citation of Beach Electric Co., Inc., et al., 174 NLRB 210, 214 (1969) is irrelevant. 23 C. Local 3's Coercion of Welsbach Emplovees by Virtue of the Status of Reade and Gavin. The complaint alleges (par. 13, Cases 29 CA-4871 and 29-CB-2409) that the Respondents. Welsbach and Local 3, violated Section 8(a)(1) and (2) and 8(b)(1)(A) of the Act by permitting Reade and Gavin to become and remain officers of the Respondent Union and the JIB and pension committee, respectively while, at the same time Welsbach permitted them to hold their positions as high ranking sup- ervisors with Respondent Welsbach. The 8(a)(2) violation is discussed, supra. While General Counsel has offered no authority for this proposition-that the valid, simultaneous holding of union office and high supervisory capacity-constitutes viola- tions of Section 8(a)(1) and (2) and 8(b)(1)(A), it would appear that, at least, no 8(b)(1)(A) violation occurs. For while Section 8(a)(2) proscribes employer assistance and interference in union affairs, there is no correlative union obligation to refrain from interfering in the affairs of the employer, Marinette Marine Corporation, 179 NLRB 627, 629 (1969). 1 shall recommend that the allegation be dis- missed. International Brotherhood of Electrical Workers, AFL-CIO (Waters Manufacturing, Inc.), 194 NLRB 1225 (1972). It is also true that dicta in Banner Yarn Dyeing Corp., supra, at 1026, and Nassau and Suffolk, supra at 186, would indicate that mere joint status does not indicate 8(b)(2) assistance or interference. As I read those cases, status as a supervisor and union officer is not unlawful where the sup- ervisor is low level; but at least the more recent Board gloss on Nassau-Suffolk type cases, would indicate that an em- ployer who permits its high level supervisor to simulta- neously serve as a high union officer, interferes with the administration of the labor organization in violation of Section 8(a)(2) and (1) of the Act. Western Exterminator Co., supra. D. Working Assessment and Loan Fund Assessment Deductions The IBEW constitution, to which Local 3 is bound, pro- vides, inter alia (G.C. Exh. 5, art. XX, p. 82), that dues shall be collected by the Local Union either on a monthly or quarterly basis in advance; that all assessments shall be charged against the member as regular dues, and must be paid within the time provided in order to protect the mem- bers' good standing and benefits. 2 Beac h Electric is also distinguishable on the ground that there. supervs is- ors were "transitory." In passing. I regard Reade's execution of the "A" agreement as acting president of the Union in 1974 to be an act barred by Sec. 10(b) of the Act. In any event. by itself, contrary to the importance placed upon it bs General Counsel, it was purely ministerial according to the evidence in this record See Banner Yarn Dieing Corp. supra. 139 NLtRB 1018, 1026. As above-noted, execution of the agreement is not equivalent Io being consulted on collective bargaining aims Local 3's bylaws provide (G.C. Exh. 6), in article X, sec- tion 2: Sec. 2. All assessments imposed in accordance with Article XX of the I.B.E.W. Constitution, shall be charged against the member as dues and must be paid within the time required to protect the members stand- ing and benefits. The assessments must be paid prior to the acceptance of basic dues. I. The working assessment On July 9, 1975, and continuing thereafter, it is conceded that the Union requested and demanded of Welsbach and other employers that they commence deducting from "A" cardholders (i.e., actually all members being paid the prime journeyman rate of pay. including "J" division and other members receiving the prime rate) 24 I percent of the em- ployees' weekly wages and to remit those wages to the JIB for further remittance to the Union. Such deductions were thereafter made for all prime rate members. Commencing December I, 1975, the Union requested and directed, and all employers complied with the Union's request. that the I percent working assessment be thereaf- ter applied to helpers as well as prime rate employees. Thus, commencing December I, 1975, the working assess- ment applied to helpers as well. Apparently by mistake, Welsbach failed to make this deduction at that time and, to rectify this improper result, commencing April 19, 1976, 2 percent of the helpers' salary was deducted in order to make up for this loss and ceased when the total deductions equalled the I percent deduction. The evidence shows and Respondents concede that there was never any checkoff clause in a collective-bargaining agreement relating to operating or administrative employ- ees and, in any event, no checkoff authorizations for the working assessment were procurred from any employees. In particular, there were no written checkoff authorizations procurred from any electrician, helper, or administrative employee of Respondent Welsbach. The funds collected pursuant to the working assessment deduction were paid into the general funds of Local 3. These funds were alleg- edly needed for the continued, general operation of the Union and General Counsel did not suggest otherwise or any special, limited use of these funds not withstanding the use of the term "assessment" in the description of this de- duction. 2. Loan fund assessment deduction (LFA) By letter dated November 19, 1975 (G.C. Exh. II), Local 3 notified all employers through the Joint Industry Board, that commencing with the payroll week ending November 19, 1975, each employer subject to collective bargaining with the Union under the "A" agreement would thereafter deduct on a weekly basis from the wages of each employee the amounts appearing in a preprinted payroll form desig- nated by the Union. The employer was instructed to total the amounts deducted from all such employees and to rem- 24The prime rate, for the period July I. 1976. to June 30. 1977. is S12.25 per hour (G.C Exh 2. p. 14). 513 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it that total to the Local 3 loan fund on a weekly basis. The testimony of Reade and Welsbach's executive repre- sentative, Clarkson, demonstrate that, in practice, the de- ductions for the loan fund consisted of a $20-per-week de- duction from the wages of employed members 25 earning the prime rate; $15-per-week deduction from operational employees earning less than the prime rate; and deduction of $5 and $10 per week from the wages of working admin- istrative employees, depending on wage rate. (G.C. Exh. 15-A, 15--B, and 34). Reade testified that the loan fund was established to make $100-per-week loans available to un- employed members from the wages of employed members. When a member became unemployed, he became eligible for the $100-per-week loans on an indefinite basis until he resumed employment. Upon resumption of employment, the deductions from his wages would be the regular deduc- tion into the loan fund and repayments of the amount which he borrowed. Clarkson testified that Welsbach's payroll ends Wednes- day of each week with payday the following Monday. No- vember 19, 1975, was a Wednesday. Clarkson testified that Welsbach commenced loan fund (LFA) deductions from employee wages immediately upon receipt of the Novem- ber 19, 1975, letter received by Welsbach on or about No- vember 21, 1975. Thus, Welsbach reflected deductions in the weekly payroll checks of its employees issued on the following Monday, November 24, 1975. Reade testified that the LFA deductions gave rise to "certificates of participation" which, as above noted, could be redeemed at a future date to be fixed by the executive board. No date has been set for such redemption according to Reade. Clarkson testified that sometime after receiving the No- vember 19, 1975, letter from the JIB on November 21, 1975, Harry Gavin delivered to him some 276 authoriza- tions for LFA deductions signed by individual employees of Welsbach, who were operational employees. It was con- ceded by Local 3 and Welsbach that no written authoriza- tions were ever procurred from the approximately 30 office clerical employees from whose wages LFA deductions were also made commencing November 19, 1975. In addi- tion to the 276 written authorizations, there were also seven authorization slips which were unsigned but which carried the names of additional operating employees. No further or other authorization was produced. The authorization slips in evidence (G.C. Exh. 8, 9(a), and 9(f) ) uniformly carry the following legend: I authorize Welsbach Electric Corporation to de- duct $- from my pay effective week ending 11/26/75, to be credited to my account in the Loan Fund of Local Union No. 3. Places for the employee's signature, social security num- ber, union division affiliation, and union membership card number appear at the bottom of each blank authorization slip. Some of the authorizations show, on their face, the date 11/26/75 crossed out and, superimposed thereon, the stamped date 11/19/75. Whether the new, earlier date was 25 There was no allegation that any working assessment or lo.lan fland deduction was made from any employee not a member of Local 3. superimposed by the Union after execution by the 276 em- ployees is unknown. Whether consent for the change was given is also unknown. As above noted, Gavin did not testify, but according to the testimony of Clarkson and the concession of counsel for Local 3, Gavin gave the authorization slips to the six subforemen for distribution to Welsbach operational em- ployees. They were thereafter executed by the individual employees in the presence of the foreman who distributed them, returned to the foremen and thereafter returned to Gavin. It was Gavin who gave the slips to Clarkson.2 6 The only other evidence of record regarding collection of individual signatures with regard to the authorization of LFA deduction comes from the testimony of the Charging Party, James G. Fischer. 3. The Charging Party executes the LFA authorization Fischer testified, without contradiction, that sometime in late November or early December 1975, while he was working in the field as a Welsbach digger-driver, along with a mechanic and another helper, he was visited by Louis De Gesu, a Welsbach's foreman. De Gesu was not foreman over this crew. Fischer and his crew stopped work when De Gesu drove up and told them that he had some authorization forms for them to fill out and sign. He told Fischer and the other helper to put the figure $15 in the blank space and for the mechanic to put $20 in the blank space. Although Fischer's testimony in direct examination suggests that he told De Gesu that he refused to sign, Fischer's testimony on balance indicates that he ques- tioned his obligation to sign rather than a direct refusal.27 4. Discussion and conclusions The evidence shows that Welsbach commenced loan fund assessment (LFA) deductions based on the JIB letter of November 19, 1975, before receipt of any individual written authorizations signed by employees and solely on 26 A witness called by Local 3 IJames Prince) testified that a fellow em- plo)ee gave him the LFA deduction authorization slip and that the LFA deduction followed his execution of the authorization iResp. Exh. 9) Since his authorization authorizes deduction commencing "11/26/75" and since Clarkson testified. without contradiction, that all deductions appeared in paychecks commencing November 24, 1975. Prince's testimony is not credited. Another witness called by Local 3 (W'alter Dreyer) testified that no one from Welsbhach or Local 3 ever told him that keeping his job depended on permitting the LFA deduction He did not testify concerning the circum- stances of his signing the deduction authorization slip. The JIB's November 19. 1975, letter to "All Employers" contains the following paragraph: As has been the practice in other instances of payroll deduction au- thorizations. the presence of the deduction amount in the designated column shall serve as authorization to the Employer to make this de- ductlion - Fischer's testimony on cross-examination, with allowance for the speaker. is as follows: Fischer: I said to him [De Gesu] do I have to sign? De Gesu: If you don't sign. what can I tell siu? I was told to come out here and get signatures. Fischer: He laughed and we all signed. Then I asked what It was for, and he said you get $100 per week when you are out of work and unemplo)ed Fischer testified that De (;esu did not say who sent him for the signatures 514 WELSBACH ELECTRIC CORPORATION the Union's request; and that no clerical employee ever authorized LFA deductions. Clarkson testified that Wels- bach remitted to the JIB the LFA deduction for all its employees, operational and administrative; and that the date of Welsbach first check to JIB for the LFA deduction was November 24, 1975. The evidence also shows that at no time since the July 9, 1975, deduction, have there been any authorizations from individual employees for the working assessment deduc- tions. The consolidated complaints allege that, in violation of Sections 8(a)(l), (2), and (3), and 8(b)( )(A) and (2), Re- spondents in the presence of a collective-bargaining agree- ment containing a requirement for maintenance of union membership as a condition of employment, authorized, di- rected and deducted, and remitted to the Union, working assessment and loan fund contributions without written authorization of the employees from whose wages the de- ductions were made. a. Working assessment deduction With regard to the so-called working assessment, the evi- dence indicates that the working assessment, regardless of its description as "assessment," nevertheless is dues. These moneys were paid to the general funds and were used, on uncontradicted evidence, with the general purpose of run- ning and maintaining the Union as an organization. The evidence shows, and, indeed, the Union and Welsbach ad- mit, that no written authorization for the deduction of the I percent working assessment exists. In American Screw Company, 122 NLRB 485, 489 (1958), the Board said: Each employee has the right to sign or not to sign a checkoff authorization and he must be given the op- portunity to decide this for himself. In N.L.R.B. v. Brotherhood of Railway. Airline and Steam- ship Clerks, etc. (Yellow, Cab Company of Tampa, Inc.) 498 F.2d 1105, 1109 (C.A. 5, 1974), the court said, in enforcing the Board decision, 205 NLRB 890 (1973): All agree that the dues check-off arrangement must be made with the employees' consent, and that an em- ployer who checks off union dues from an employee's pay and remits the proceeds to the union without the employee's written authorization violates Section 8(a)(2) and (1) of the Act. Chung King Sales. Inc.. 126 NLRB 851 (1960). Such a checkoff arrangement, as here present, which also unlawfully encourages membership in the Union in viola- tion of Section 8(a)(3) of the Act in view of the Union's causation of such a deduction, without authorization, also violates Section 8(b)(2) and 8(b)(1)(A) of the Act, Industrial Towel and Uniform Service, a Division of Cavalier Industries, Inc., 195 NLRB 1121, 1122 (1972), enforcement denied 473 F.2d 1258 (C.A. 6, 1973): cf. International Union of District 50, and Local Union No. 14029, International Union of Dis- trict 50, United Mine Workers of America (Ruberoid Compa- ny, a Division of General Aniline and Film Corporation, 173 NLRB 87, 93 (1968). I therefore conclude that Respondents, by causing the checkoff of the working assessment, and by its remittance to the Union by Welsbach in the presence of an otherwise valid maintenance of membership, violated Sections 8(a)(1), (2), and (3), and 8(b)(I)(A) and (2) of the Act, as alleged in the consolidated complaints because of the fail- ure to have voluntary written authorization therefore from the individual employees.2 8 As the Board said in the West- inghouse Electric Corp., supra, case, the proviso to Section 8(b)(1)(A). permitting a labor organization "the right" to prescribe its own rules regarding retention of membership "does not extend to interfere with the relationship between employee and employer." 180 NLRB 1066. The Union may not deprive the employees of his right to select or reject the checkoff system as the method by which to pay his periodic dues to the Union whether the collective agree- ment provides for a union-security clause, or, as in the present case, a lesser form of security such as a "mainte- nance of dues" clause. lb. at 1062. At the hearing, counsel for Respondent Union suggested that the affirmative vote of the employees in the union meeting authorizing the working assessment may have tak- en the place of individual written authorization. It is actu- ally unnecessary to pass on that contention since there was no evidence 29 that any such voting occurred by the em- ployees affected, much less that (1) all the employees from whom the deduction of the working assessments were made voted in the election: and (2) assuming that their votes were recorded, such recording was preserved. How- ever, use of a union vote, even if unanimous, to take the place of an individually executed checkoff would appear to offend the rule, supra, that each employee has the right to decide whether to pay his dues by checkoff. See: Local 4012, Conmmunications Workers of America, AFL-CIO (Michigan Bell Telephone Co.). 184 NLRB 166, fn. 2 (1970). b. Deduction of LFA With regard to the LFA deductions, the evidence of the record demonstrates, as Clarkson's uncontradicted testi- mony reveals, that Welsbach checked off and remitted the LFA deduction commencing with the payroll period of November 19. 1975. merely on the assertion by Local 3, through the JIB, that the deduction was authorized. As in the case of the 1 percent working assessment deduction, there were no written authorization for such deductions presented to the employer and none appear in the evidence for that payroll period. In addition, Clarkson testified that there were never any LFA deduction authorization for the office clerical employees. No credible evidence was intro- duced to show that an)' written authorization was executed on or before November 24. the date LFA deductions were forwarded bv Welsbach to the JIB and first appeared in See: ntrironlal t non oI El lectrical. Radio and Machine Workers, Lo- al 601, A4 1. ( I) (Ilrlne housc Elecrira (Corporation). 180 NLRB 1062 I 1970): Local 40J12 ( ommunicauntlln Ilt Arer. l) .j4merica. AFL-0 O (Michi- pan Be(ll 7hlcphonc ( ). 1184 NLRB 166 (1970). ( ommunication 8,8orAerr of 4merioa, .Local 6)06 (Solh-cstrern Bell Telephone Companv)'. 198 NLRB 1098. I 101 (1972). 2' 1 ocal 3 refused to produce minutes of its meetings notwithstanding the', ere sulhpen.ed 515 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Welsbach employee paychecks. I thus find, as in the case of the I percent working assessment deduction, that the deduction of the LFA contribution by Welsbach at the request and direction of Local 3, for the week commencing November 19, 1975, for all employees, violates Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the Act. I also find that, since no clerical employee ever execu- ted an authorization for such deduction, all such deduc- tions for clerical (administrative) employees violated the Act in the above manner. The record shows that some time on or after the issuance of the Monday, November 24, 1975, paychecks. Gavin. the general foreman of Welsbach, and chairman of the Union's "J" division, directed the foremen working under his control to solicit individual written authorizations from Welsbach's employees in the field for the purpose of au- thorizing LFA deductions. In the absence of Respondent's producing foreman De Gesu, and its concession on this point, that Gavin directed the foremen to obtain the LFA authorizations, I credit James Fischer's testimony with regard to procurement of the LFA authorizations by De Gesu. I also credit Fischer that De Gesu said that the employees had to sign 30 on pain of retaliation by Welsbach and the Union. I therefore con- clude on the basis of Fischer's and Clarkson's testimony and on the basis of the entire record that Gavin authorized and directed his foremen to procure the LFA authoriza- tions from Welsbach employees and that both the Union and Welsbach having countenanced Gavin's dual role, are responsible for his conduct and that of his agents, We.tern Exterminator Co., supra. In his brief, counsel for Local 3 states that it was Wels- bach that wanted the protection of written authorizations from employees. There is no proof to support this asser- tion; but, if true, it would be irrelevant. Counsel also sug- gests that the foremen, all union members, who collected the LFA authorizations were in the best position to collect them since it was they who traveled from jobsite to jobsite and that no coercion of union employees occurred because the foremen, as union members, would not coerce their fellow members. I disagree. Merely because the loan fund is not an illegal object of union activity does not mean that union agents-much less employer agents-could not coerce employees into authorization.) In either case. De Gesu's language and general conversation with Fischer's work crew clearly showed that the LFA deduction authori- zations were coerced. When De Gesu said that if the) did not sign "what can I tell you? I was told to come out here and get signatures," the employees did not have to be told "i' If sou donlt sign. what can I tell you? I was told to come out heic .n.d get signaltures." l Counsel is correct insofar as the ordinars rule. enshrined in aN.ma il, m1i Suffl/A, sitpri ait 181. citing Missis.sppi I/allet Strum turat Steel ( rmrnpanl. t/l- plewood Plant, 64 NLRB 78. 79 (1945), is that: "When a supervisor is includ- ed in the unit the employees obviously Isicl regard him as one Of thiemn selves. Statements made by such a supervisor are not considered hs employees to he the representations of management, hut of a fellow enlpi,'- ee. Thus the) do not tend to intimidate employees." This does not replesc.it the instant case where the employees kner that the foremen were not a. lint or speaking on their own initiatives, hut were agents of higher a;uthltritls Even in the absence iof such knowledge. since the acts were directed bh hieli managemenit and unliti officials. the result is unlawful coercion anything further. They signed, for they could recognize a threat when they heard one, and that the threat did not emanate from De Gesu. Coerced authorizations to deduct the LFA contributions do not give the Employer or the Union the right to make such deductions. Rather, such deductions based on these coerced LFA checkoff authori- zations by supervisors and union agents violate Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the Act. See: Communications Workers of America, Local 6306, AFL-CIO, and Communications Workers of America, AFL- CIO 198 NLRB 1098, 1101 (1972); Industrial Towel and Uniform Service, 195 NLRB 1121, 1122, and cases cited; see also Baggett Industrial Constructors Incorporated, 219 NLRB 171, 172 (1975); Luke Construction Company, Inc., 211 NLRB 602 (1974). Of course, implied threats are suffi- cient to find an 8(b)(1)(A) and (2) violation, International Union of Electrical, Radio and Machine Workers, Local 601, .4FL-CIO (Westinghouse Electric Corporation), 180 NLRB 1062 (1970). The only way Fischer and the crew could re- main members of the Union in good standing under the maintenance of membership clause, otherwise lawful, was to execute the LFA deduction authorization. The De Gesu threat independently violates Sections 8(a)(1) and 8(b)(1)(A) of the Act. While it is true that De Gesu's threat to Fischer and his two co-employees constituted direct coercion of those em- ployees. there is also the question whether the remaining employee-members who executed LFA deduction authori- zations were coerced and their authorizations thereby "tainted." There is no suggestion that other member-em- ployees were aware of this "isolated" threat. But cf: Gener- al Stencils, Inc.. 195 NLRB 1109, enforcement denied 472 F.2d 170 (C.A. 2, 1972). In two cases involving authorization cards, the Board, adopting without comment the decisions of Administrative Law Judges, agreed that solicitation of such cards by "low- level" supervisors violated neither Section 8(a)(2) and (1) nor Section 8(b)(l)(A). In one such case, relying on Nassau and Suffolk, supra, where the supervisor was traditionally a unit and union member, it was held that the supervisor was engaged in "traditional union activity" not inspired or rat- ified by the employer, Pangles Master Markets, Inc., 190 NLRB 332, 336 (1971). In Pangles, however, the Board did not comment on the footnoted statement (fn. 7, at 336) that the Nassau and Suffolk rule does not apply where the sup- ervisors "are high level or not otherwise in the bargaining unit." In the other case, IBEW (Waters Manufacturing, Inc.), 194 NLRB 1225. the Administrative Law Judge, in dismiss- ing the complaint for want of evidence to prove the super- visor a union agent, remarked that-whatever the employer's 8(a)(2) violation-there was no precedent for finding a union guilty of an 8(b)(1)(A) violation by its use of a supervisor to solicit authorization cards. Pangles did not express such an opinion. In Pangles Master Markets, supra, the Administrative Law Judge explicitly distinguished the case where high lev- el supervisors were concerned.32 Nassau and Suffolk, supra ' Hlie cited AIfrer Bro,s i Vli.sourl, ric, 151 NI.RB 889 (1965), and titah',,Il m on t A lr ( hetrelct. In, . an l,onner ( hulr l l In, , 141 Nl RB 541 1963) I hesecasmes howescr, inmol.e emploer unl.wfiul assistance in gain- 516 WELSBACH EL ECTRIC CORPORATION at 180, specifies that the relaxation of respondeat superior is permitted because the supervisor, in the unit and a union member. is deemed to be acting in his individual capacity and not for the employer, absent ratification or authoriza- tion by the employer. Similarly, in Waters Manu'facturing, Inc.. supra at 1226, the Administrative Law Judge did not pass on the case where other than a minor supervisor was involved. In the case at hand. Gavin does not "work with tools along with the men" he supervises, Nassau and Suffolk, su- pra at 180. I have held him to be high level supervisor. I therefore conclude that the foremen who collected the LFA authorization cards were agents of Gavin, a high ranking supervisor. As such, even without threats or other acts or coercion." their activities in getting the LFA au- thorizations coerced, restrained. and discriminated against employees in violation of Section 8(a)( 1) (2) and (3) 14 and tainted the cards due to their being coerced authorizations. I thus conclude that Pangles Master Markets. supra. and IBEW (Warers Manufacturing, Inc.), supra. are distinguish- able. I also conclude that Local 3. by virtue of Gavin being a high union official. Chairman of the "J" Division, has. along with Welsbach, "countenanced" Gavin's dual au- thority and is responsible for his unlawful activity' which violated Section 8(b)(l)(A) and (2). W'esrern E-terminator Co., supra. In short, the foremen's gaining signatures at Gasin's di- rector, being authorized by high union officials and em- ployer supervisors comes within the Nassau-SSuffolk rule (118 NLRB at 181): "Liability for such statements and activities may be attributed to the respondent only upon a showing that the respondent . . . authorized . . . their activities." It is unnecessary to reach or resolve the question of the effect of the change of the date of authorization on the slips from November 26 to November 19. apparently with- out the consent of the employees, in view of the fact that I have otherwise found them tainted by virtue of coercion. See: Cameron Iron r 14 'rks. Inc.. 227 NL RB 427 (1976). E. The Alleged Unlawvfidl Restcission of the Decision Io Recall James G. Fi.schr to mniplovmient, Threat.s of Reprisal The consolidated complaints alleged that Respondent- Union in violation of Section 8(b)( l)A) of the Act, bh its agent, Herbert Ackerman. threatened employees with dis- charge and loss of other benefits, with physical harm and ing origin;al recognition I cons der theri ent:rel, distincuii , h hble , Ithat g rounld 1 As avents of C(iasn as high ranking ,uperlsolt (and sinlce I oilcnl n l)e G(esu told emplosees he h;d been sent I,. collect ermpises inatul;lire and thns vas not acling On hIs oUnl. crnlploses signinig the ctrds Uild n1ot regard the forenman. ai uniin and unil member as "one of ilithcnlel " See ,is.sissippi Vallel Struci-ural Steei ( i. 64 NLt R 78 74. as citied in \a.,a ut and Sufolk., supra at 181. and fIn. 0. herein Since pa\ment iof the I V-A assit c lnenl i no dule, or nit l.aionl fees. .are outside the protection oif the la)Il aprol so the requirement that ellplo)ees authorize such deductlon. in the fa. e of the maililcn.ance of nelmherxhlip contract tlolates Sec. 8o()1il. other reprisals; (a) if they complained that high level em- ployer supervisors were officials of Respondent Union; and (b) if they filed charges or gave testimony under the Act and if they did not withdraw charges so filed. I he consolidated complaints also allege that, in violation of Section 8(a)( ), (2), (3), and (4) and Section 8(b)(1)(A) and (2) of the Act, the Respondents, by their agents Reade and Plunkett. unlawfully rescinded an offer to recall the charging party James G. Fischer to employment. The un- lawfulness of the decision to rescind the offer of recall was allegedly based upon Fischer having filed charges of unfair labor practices and given testimony under the Act. James G. Fischer testified that he was a member of Lo- cal 3 's division of building maintenance (DBM) and was a member of Local 3 for 6 years. He also testified that he worked as a Welsbach employee on and off since 1969 and commenced a period of reemployment in November 1975 as a helper. a truck digger. and truckdriver. As a driver he received higher pay than a nondriver helper. As early as 1972. there was confrontation between Su- perintendent Reade and Fischer. At that time there was an incident whereby Fischer. then a street light cleaner and a youth in his early 20's, wore sandals to work instead of workshoes in violation of Welsbach's work rules. A cleaner apparently works around broken glass. There was a direct dispute in the testimony with regard to Fischer's alleged willingness and ability to change into workshoes, which vworkshoes were alledgedly offered by a co-employee pres- ent at the dispute, to substitute for the sandals.3 5 In any event, Reade sent Fischer home and Fischer lost a day's pay. A week later, around May 26, 1972, Fischer sought work with a competing street lighting employer, L. K. Comstock Company and pursuant to the working arrange- ments in the industry, requested a release from Gavin, the chairman of the Union's "J" division and general foreman at Welsbach. 3 6 Gavin refused to give Fischer a release in spite of the fact that C'omstock had an opening in its table of organization for Fischer. Fischer was unable to take the job there as a "helper" and receive the higher wages which a helper received as opposed to his position as a cleaner. Gavin later agreed to give him a release to a DBM divi- silon shop. but not to Comstock Electric, a "J" division shop. Fischer thereafter returned to work at Welsbach Electric on November 5, 1975, and thereafter, to the period of January 20. 1976, working as a digger and truckdriver, experienced no trouble with supervision or the Union. " I ischer testified that he offered to change Into workshoes offered b) a i-cirmplo ee. Reade recaliled no offer to change into workshoes. It is unnec- e-salrs to resol' e the conftlcting tesilnlon v other than to observe it as a basis for Rcade's initial atinmus againsl filcher. no matter how well deserved I add the last phrase In tie. of m, clear observation that the dispute over the sand.lls uas transcended then. and now. hb an Incompatibilits in stiles of .ros>. deportmenit, nd generational "attitude' l; (I.arkson testified Ihat an employee transferring from one "I" division cmusplocr to .rnolher J" lie ision emploser needs the permission of his pres- errl enrploser In addition. the eiidence showus that unemplosed members of the I imot. at least in "J" division shops. are required to seek the assistance of .lld are required to report to. busilne.s representatives of the U nion to note their unempnlsment and their asdabhility of reemployment Thus. in .,rdrI rit, u.rk lst 'Ai elhach in Nvcilember I9'. Fischer sought the aid of and rctlgitred oliih Busilness Representatlie I outs Stein Stein gave him a job slip I( ( I(xh It1 dated II I5 75) for trannmssri tn General Fi reman (i.,x i"t put Jamne. i ischer [Ito work to give him a job. 517 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At or about 4 p.m., on January 20, 1976, Fischer, return- ing to Welsbach's yard and contrary to a posted Welsbach rule, drove down a street which had long been placed out of bounds 37 by Welsbach as a means of ingress into Welsbach's property. Fischer collided with a truck on the forbidden street. Robert Reade was immediately notified of the accident and drove to the site. Satisfying himself there with the facts of Fischer's wrongdoing by virtue of a conversation with Fischer, he returned to Welsbach. By the time Fischer returned to file an accident report, Reade had already prepared a discharge form for him. He told Fischer that he was terminating him because of the accident but that Fischer could telephone him in a couple of weeks and he would try to get him his job back. Reade said that he had to let him go in order to avoid setting a bad and le- nient precedent, and that the other employees would see that punishment had been meted out for this type of con- duct. Fischer returned to the Welsbach garage the next day and asked a co-employee to talk to Fischer's foreman (Sturgis) to see what could be done for Fischer to return to work. Thereafter, Sturgis told Fischer that there was noth- ing that could be done for him and that Fischer should call in a couple of weeks as Reade had suggested. On the same day, Fischer called Union Representative Christopher Plunkett and told him what had occurred. Plunkett told him to do what Reade had suggested, to call back in a couple of weeks. Thereafter, Fischer made several phone calls to Reade over a period of weeks regarding returning to work. In the first call which occurred around January 27, Reade told him that he had called too soon. In the second call about a week later, Reade asked him if he had "learned his lesson yet." Fischer answered that he was not a "kid." In the third week after the termination, Fischer called Reade again and Reade told him that it was still too soon. In the fourth week, when Fischer called, Reade told him to go to the Union and give his name to Union Agent Bono for em- ployment and that Fischer would be called back to work. This testimony, regarding the conversation between Reade and Fischer wherein Reade directed Fischer to speak with Bono and that Fischer would thereafter be called back to work is not contradicted. Fischer thereafter went to Bono's office and tried to see Bono and other union representatives but they were not in. He executed the necessary union employment card, noting for the Union that he was seeking employment. In this same fifth week of unemployment, Fischer called Reade on a daily basis for 3 or 4 days and also called Bono but neither Bono nor Reade returned his phone calls. He was told that they were not in their offices. Fischer then called his uncle, Herbert Ackerman, and his uncle told him not to call there again.38 After a conversa- tion with his father, Fischer decided to go to the National Labor Relations Board. On February 23, 1976, a Monday,. in the morning, he filed the charge in Case 29-CA-4871 17 (omplainis of noise and danger to schoolchildren caused the local po- lice to request W\'elsbach to refrain from using that street. 3' Fischer's deceased mother was Ackerman's sister. Ackerman, a longL time union member, is a friend of Reade. Ackerman. journelannll lcoirl- cian, sometimes acts as shop steward and 29-CB-2409. Nothing happened thereafter on that day. On the next day, Tuesday, February 24, 1976, at or about 6:30 p.m., the telephone rang in Fischer's home and his wife answered, telling him that Reade was on the phone. Reade told Fischer that he would be going back to work on Thursday and that the only reason he was being reemployed was that Reade was a good friend of Fischer's uncle, Ackerman. Reade told Fischer to see union business agent Plunkett the next day (Wednesday) before going back to work.39 On the next day, Wednesday, February 25. I d(o not credit Reade's essentially contrary 'ersion. iRtro, despite the fact that Fischer's pretrial affidavit given (Wednesday. February 25, 1976) to the (General Counsel shortly after the time he filed the charge (February 23. 1976) sass nothing of Reade telling him that he swas going back to work oin Ihursday, after meeting Business Representative Plunkett the next day. Wednesday, February 25. In Fischer's subsequent affidavit of March 2. 1976, he included as part of that conversation that Reade told him that he was going hack to work Thursdas. Thursdasy as above noted, is Welshach's first day of the week for payroll purposes Reade's recollection of the events were that on or about February 19 or 20. 1976 about I month after Fischer had been terminated Fischer's un- cle. Ackerman. Reade's old friend. telephoned Reade and asked him to help Fischer to get reemployed. Ackerman testified that he begged Reade. Reade testified that oin Monday. February 23. he met with Business Representative Plunkett and asked Plunkett to send Fischer hack to work at Welsbach. Reade testified he told Plunkett he already had spoken with Welshach ('hairman Minganiello to pave the was to have an employee (otherwise discharged for cause) return to work with the ('rmpany because the em- ploiee had merely made an error in judgment Reade asked Plunkett to a;pproach Manganiello in order to make it appear that the Union was anx- lous to have Fischer return to work. I credit this testimony. Reade testified. however. that all that Plunketi would commit himself to was to have Fischer see l'lunkett first, talk to Plunkeltt and then Plunkett would speak to Man- ganiello and "we'll see what we can do" Thus Reade denies making any comnlitnment in a phone call to I ischer other than that Fischer should see Plunkett. Reade specifically denied saying that Fischer would return to work the day after seeing Plunkett. In fact. Reade denied speaking to Fisch- er it all and testified that he could recall only speaking to Fischer's wife wherein he told her to habe Fischer see Plunkett the next day. I do not credit Reade's testimons in this regard. especially since Plunketi, the union husiness representative prominently mentioned in the complaint and In this conversation. as not called as a witness by Ltocal 3 There was no sugges- tion that he was not available. Moreover. Manganiello was not questioned on the point I thus balanced the ominous omission from I scher's first (February 23) stlement to the Board. supra. first measuring Fischer's intelligence and demeanor against Reade's inahilits to "recall" speaking to Fischer and the falllule to ca;ll Plunkett as . witness. I credit lsclther I draw the inference froim this failure to have Plunkett testify that Plunkcti's testimony would not hase supported Reade's version. Golden State Boraling ( ompani. Inc. d h a Pt7s.i-( ola Botlring (iCompani i Sacramento v. s I. R. , 414 U S 168. 174 (19738: t.frrs,,n Kiludwen C(,lpanl. Inr 213 Nl RB 280 291. fn. 54(1974). Not ivrnl does Re;lde deny committing himself in any telephone conver- sation to hare Fischer return to work. but as I have noted above. he also denied ever having spoken to Fischer at all. Rather. he testified that in the evening of Februars 24 T auesda ) he telephoned the Fischer household but spoke onls to Fischer's wife Reade testified that he told her only to have her husband go down and see Plunkett regarding employment. In particu- lar. Re;ade testified: I heard ir. Fi scher's testimony. that I called him. I've searched my recollection, I don't remember calling him I spoke to Mrs. Fischer. Although in later testimony. Reade categorically denied having spoken to Fischer. I was not inipressed by his testimony regarding his having searched his recollection and his inahilits to recall speaking to Fischer. Moreover. I note that Reade admitted having spoken to Plunkett In an effort to have Fischer return to work at Welsbach. I find it difficult to believe that he would have left the coinversation with Plunkett in such a state that Plunkett would hae made the decision as to whether he would approach Manganiel- lio in an effort to get Fischer returned to , ork. It was uncontraverted that when Reade told Fischer presiousls to speak to I nion Agent Bono. he said f:ischei would he cltled back to, work after speaking to Bono. Linder the 518 WELSBACH ELECTRIC CORPORATION instead of going to see Plunkett directly, as Reade directed in his telephone call of the previous night, Fischer went to the National Labor Relations Board in the morning to give his first written statement in support of the charges. He did not go to see Plunkett until later that afternoon, and when he arrived at Plunkett's office, Plunkett's secretary told them that Plunkett was not in the office, was out for the day and that Fischer should return at 9:30 a.m., on the next day, Thursday, February 26. On the next day, Thursday, February 26, 1976, the phone in Fischer's apartment rang at or about 8 a.m. Al- though Fischer's wife answered the phone, Fischer could hear screaming coming through the phone. He heard his uncle's (Ackerman) wife on the phone screaming and say- ing that Fischer should not have pressed charges at the National Labor Relations Board. Fischer told his aunt that he had to do something to get his job back and she told him that he would be lucky to get his job back in 3 years. She told him that his uncle almost had to punch Reade in the mouth to get Reade to return Fischer to employment.4' Fischer said that he did not know that, and his aunt told him that his uncle was not there then but wanted to talk to him later. Later that Thursday, February 26, morning, at or about 9:30 a.m., Fischer went to see Union Agent Christopher Plunkett as he had been directed to do the previous day by Plunkett's secretary. Plunkett was on the phone and Fisch- er, in Plunkett's office, heard Plunkett say: "I have young Fischer here now . . . he did? . . . he did?" When Plunkett hung up the phone, he did not question Fischer about the accident which caused Fischer his job: he did not question Fischer about his conversations with Fischer's uncle or with Reade; and he did not give Fischer a referral slip or discuss reemployment with Welsbach which, according to Reade, was the reason Reade had agreed with Plunkett for Fischer seeing Plunkett; but he told Fischer to call his.un- cle. Fischer testified that he did not know to whom Plunk- ett was speaking on the phone and there is no evidence in circumstances of this case, especially the close relationship with Ackerman, and the Union's failure to call Plunkett as a witness, I conclude that Reade told Fischer that Fischer would return to work Thursday but thal he should first see Plunkett in order to get a referral slip from Plunkett this is the normal hiring practice. Rather than Plunkett plating a decisive role In the recall of Fischer I conclude that Reade was using Plunkett only for perfolrm- ing a ministerial task in getting Fischer the referral slip hack to Welhach I thus conclude that Reade actually performed on his promise to Ackerman to get Ackerman's nephew back to work and that he was doing so only as a favor to Ackerman. I also conclude that Reade's ¥uesday night IFebruars 24. 1976) telephone call to Fischer suggesting that Fischer see Plunkett and then return to work on the following Fhursda) (February 26. 1976). oc- curred, of course, before Reade knew that Fischer had filed charges with the National Labor Relations Board. The "return receipts" of the sersice of the charges by registered mail (G.C. Exh. l(h and l(d} ) indicate that L ocal 3, and Welsbach, did not receive copies of the charges until Thursday, Febru- arN 26. 1976. In his exhaustive brief, counsel for l.ocai 3, correctly adverts toi Fischer's failure to relate. in his first Board statement, Reade's telephoned statement regarding Fischer's return to work on Thursdays hut Incorrectiv asserts that Mrs Fischer testified that Reade told her that Fischer should see Plunkett Ihe testimony. read as a whole, demonstrates a conversation between Fischer and his wife rather than between Reade and Mrs Fischer notwilh- standing Mrs. Fischer's hurried testimons which. at first blush, read sepa- ratelv. indicates a discussion between her and Reade "' Hence, an additional basis for concluding that Reade did not merely tell Fischer. the night before, to see Plunkett. this record who Plunkett was speaking to. As above noted, Plunkett was not called as a witness. Complying with Plunkett's direction, Fischer left Plunkett's office and called his aunt in order to get Ackerman's telephone num- ber at work. He then telephoned Ackerman at work and Ackerman reminded Fischer that Fischer's brother, father, and cousins were all members of Local 3, and that Acker- man played a large role in getting them into the Union and getting them jobs. Ackerman asked Fischer what he had done; told him he should have spoken to him first before filing charges; stated that Fischer would be lucky if he ever worked through the Union again; and told him that he should tear up his union card and get a job driving a cab." This is Fischer's testimony. On Monday, March 1, 1976, Ackerman telephoned Fischer, inquired if he had dropped the charges and threat- ened to break every bone in his body. By letter of March 2, 1976, Welsbach offered him reinstatement and on March 4, he returned to his old job. Concluding Findings Regarding the Failure To Reemploy Fischer The credited evidence is that on Monday, February 23, Fischer filed charges at the National Labor Relations 41 Ackerman. as I observed him. possessed a warm temper. On the basis of this observation of Ackerman. his unsure recollection of dates and places. his loialtl to Reade and the Union, and his palpable hostility to Fischer. I do not credit his testimony contrary lo Fischer's. In essence. Ackerman denied the above-credited testimony of Fischer including any threats of bodily harm or other harm to Fischer The threats of bodily harm and comment that Fischer would be lucky if he worked through the Union again., hile understandable in the face of Fischer's possible ingratitude. are not legalls defensible on that ground and must be remedied as a violation of Sec. 8b)( I (A) since they were made because Fischer filed and did not withdraw the unfair labor practice charges. Counsel for Local 3 urges that Herbert Ackerman, an occasional union shop steward at jobs unrelated to the street lighting industry is not created a union agent thereby, thus binding Local 3 with these threats. I agree. Counsel for Local 3 also attacks the agency theory advanced by General (Counsel, flowing from Plunkett's direction to Fischer to call his uncle, on the ground that at the time Plunkett made that statement, neither the Union nor the Emploser had "gotten wind of the charges at the time." I do not full) understand counsel's argument especially in the light of his suggestion that it was sormehrw Inconsistent for Plunkett to have ans knowledge that the charges had been filed when the charges in fact were not received bs the I nion until Thursday. February 26. the das Fischer was in his office I see no inconsistence in Plunkett learning of the charges from sources other than their being received on Thursday bh registered mail at the union hall. In- deed, it is clear, as counsel suggests. that by 8 a.m. Thursday morning, Hterhert Ackerman's wife had already known about the charges and that Ackerman himself had known about the charges through prior conversa- tions with Fischer's brother Not only does the ambiguous evidence ("He did' He did"') indicate that Plunkett knew of the charges while Fischer was standing in his office, but that issue need not be resolved. The issue is whether, under the Reade-Plunkett arrangement for the reemployment of Fischer. Plunkett's directions to Fischer to telephone Ackerman was the means if resolution orf the arrangement. and was an act authorized and directed bh V'clsbach and the Union to the extent that Ackerman spoke for Reade and Plunkett I conclude that Ackerman was the authorized agency for that resolution ' I R.B . Local 3, IBEW, 467 F.2d 1168 ICA. 2. 1972). I note in addition. that even through the time of the hearing, Local 3. with knowledge of Ackerman's activitlies. never repudiated them. That Ackerman may; have exceeded his actual authority does not affect the apparent author- it' derived froam Plunkett's direction to Fischer. '.L. R B v. Local 3, IBEW. supra: s IL RB . I.,oil 8RI5, International Brotherhood of Teamsters, (hauf- !l-rs,. r alreho)tremen and Helpers of .4merica, Independent (MontauA Iron SteIel ( or !. 290 F.2d 99, 103 104 (C.A. 2. 1961). 519 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board; on Tuesday, February 24, Reade told Fischer that Fischer was to return to work on Thursday, February 26, having first to visit with and get a referral slip from Union Business Representative Plunkett on Wednesday, February 25. Fischer gave a written statement to the Board on Wed- nesday. The evidence also shows that, in conformity with Reade's direction, Fischer, on that same intervening Wed- nesday, had later attempted to see Union Agent Plunkett but Plunkett was out. When, after the early Thursday (Feb- ruary 26) morning phone call from his aunt, Fischer actual- ly did see Plunkett on Thursday morning, Plunkett told him to call Ackerman, the phone call resulting in Acker- man telling Fischer that he should tear up his union card and that he would never work through the Union again. On the following Monday, March 1, 1976, Ackerman was even more forceful, threatening to break every bone in Fischer's body after inquiring whether Fischer dropped the charges at the National Labor Relations Board. The circumstances of this case show that when Fischer visited Plunkett on Thursday morning, having, at the very least, been told by Reade that Plunkett would decide after seeing Fischer whether to send Fischer over to Welsbach for reemployment (this is Reade's version), Plunkett never discussed anything with Fischer. He discussed neither the accident, nor Fischer's conversations with Reade, nor Fischer's desire to return to Welsbach. All that we have of record is the statement by Plunkett into the telephone ("he did? . . . he did?") which, under all the circumstances of this case, indicate receipt of information that Fischer had filed charges. There is also no contradiction in the testi- mony that Plunkett, to whomever he was speaking, told the other person that Fischer was in the office at that time. I am especially mindful, as above noted, that Plunkett was never called upon to explain the ambiguity of his conversa- tion. Under the facts of this case, it is clear that the pres- ence of Fischer in the office was pertinent to the conversa- tion and that the inference is fairly drawn that the words, "he did? ... he did?" referred to the filing of charges. I am under no obligation to be naif, Shattuck Denn Mining Cor- poration (Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (1966) as to the use of language. When Plunkett directed Fischer to call his uncle, he es- tablished, under the circumstances of this case, Ackerman's agency to speak for the Union at least in terms of the Reade-Plunkett arrangement to reemploy Fischer. This would be true, it seems to me, even if Reade's testi- mony were credited, that Plunkett would be responsible for the terms of reemployment. Carpenters Local Union 1260, United Brotherhood of Carpenters and Joiners of America, AFL CIO (Seizer Construction Co., Inc.), 210 NLRB 628, 631 (1974), and cases cited; N.L.R.B. v. Local 3, IBEW [N.Y. Telephone Co.1, supra; N.L.R.B. v. Local 815, IBT, supra. Respondents having established the mechanism of using Ackerman as their agent, they can not be now heard to complain of his act even outside the scope of his authori- ty. I therefore conclude that Ackerman's threats to break every bone in Fischer's body made on March 1, 1976, and his February 26 threat regarding Fischer's inability to ever again work through the Union were caused by Fischer hav- ing filed charges with the National Labor Relations Board and having refused to withdraw them. Such threats for having filed charges against the Union and not withdraw- ing them, as alleged in paragraph 14 of the consolidated complaint in Cases 29-CA-4871 and 29-CB-2409, clearly restrain and coerce Fischer's rights within the meaning of Section 8(b)(1)(A) of the Act and I find that such threats by Ackerman, as an agent of the Union violated Section 8(b)(l)(A) of the Act. Similarly, I conclude that Ackerman's threat that Fischer would never again get a job through the Union, sufficiently alleged, constituted unlaw- ful coercion and restraint in violation of Section 8(b)(l)(A). Heavy Construction Laborer's Local No. 663, AFL-CIO (Robert A. Treuner Construction Co. and Owen H. Brukner and Associates, Inc.), 205 NLRB 455 (1973). The complaint in Cases 29-CA-4871 and 29-CB-2409 also alleges that the Respondents had an agreement, or arrangement, and practice whereby Local 3 approved the reemployment of employees. The proof adduced at the hearing clearly showed the existence of such an arrange- ment and its utilization in the recall of Fischer on or about February 24, and at previous times such as Fischer's reem- ployment through the intervention of Business Representa- tive Louis Stein, in November 1975 (G.C. Exh. 16). The complaint, as amended at the hearing, also alleges that on or about February 26, 1976, Welsbach acting through Su- perintendent Reade and Local 3 acting through Vice Presi- dent Reade and Business Representative Plunkett, unlaw- fully rescinded the offer to recall Fischer which the Respondents: through Reade, had tendered to Fischer 2 days before.42 Having credited Fischer's version of the conversation, I conclude that Welsbach's failure to reemploy Fischer was based upon Reade's and Plunkett's discovery on or before February 26, 1976, that Fischer had filed charges against the Union and Welsbach. Finally, I find that Welsbach offered Fischer reinstatement on March 4, 1976, by virtue of its March 2 letter to him. In passing, it may also be noted that Reade's testimony and Plunkett's failure to testify also do not explain the fact that Welsbach indeed offered reinstatement to Fischer in its letter to him of March 2, 1976, without Fischer having first obtained a referral slip from Plunkett, or any clear- ance from Plunkett, or Plunkett's agreement (which agree- ment would have been forwarded to Welsbach). If Reade's explanation were accepted, the only step which Fischer was authorized by Reade to take was to see Plunkett. Hav- ing failed to obtain referral or clearance from Plunkett. or indeed arrive at any other understanding with Plunkett. Fischer had failed to avail himself of the first step in the very mechanism for reinstatement which Reade had pre- scribed, since clearance from or at least conversation with Plunkett was necessary. Yet Welsbach reemployed him without Plunkett's intervention. Rather than accept this version, I accept, as above noted, the version that Reade had already arranged with Plunkett for the reinstatement or else the Welsbach letter of March 2, would have been contrary to the preexisting arrangement between the Union I find from the evidence that ischer. contrary to 'he General ( Counsel was not suspended but swas discharged on January 20, 1976. I also conclude Ihat after Ackerman's phone call on Thursday. I ehruars 26, 1976, it vould have been futile for Fischer to go to Welsbach and request employmenl. 520 WELSBACH ELECTRIC CORPORATION and Welsbach with regard to the recall or reemployment of employees. Thus, I conclude. on the basis of my observation of the witnesses and upon the credited evidence that, as alleged in the complaint, on February 26, 1976, Respondents, through Reade and Plunkett, in violation of Section 8(a)(1), (2), (3). and (4) and 8(b)(1)(A) and (2) of the Act, rescinded Reade's offer of reemployment of Fischer be- cause Fischer filed charges and gave testimony under the Act. W'estern Exterminator Co., supra. IV. THF EFFE(UT OF TlE UINFAIR LABOR PRACTICES ItPON (COMMER CE The activities of Respondents set forth in section III above, occurring in connection with Welsbach's operations described in section 1, above. have a close, intimate, and substantial relationship to trade. traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondents have engaged in unfair labor practices, I shall recommend that they cease and de- sist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents unlawfully deprived the Charging Party, James G. Fischer, of work for the period February 26. 1976. to March 4, 1976, I shall recommend that Re- spondents make him whole and pay him for the wages he lost plus interest thereon at the rate of 6 percent per an- num, together with any other rights including vacations, pensions, and similar rights of which he was deprived, in- cluding seniority. F. W. Woolworth Compan., 90 NLRB 289 (1950). Having found that the deduction of the working assess- ment without written authorization therefore violates em- ployees' Section 7 rights. I shall order Respondent to cease and desist therefrom. In view of the lack of evidence of coercion in payment of the working assessment, I shall not recommend that the working assessment, actually dues which go into the Union's general funds be reimbursed to the members. International Union of Electrical. Radio and Machine Workers, Local 601, AFL CIO (Westinghouse Electric Corporation.) 180 NL.RB 1062, 1063 (1970). It seems to me that I am not obliged to do so even in view of the bylaws requirement (art. X, sec. 2) that assessments, must be paid (even prior to "basic" dues) to continue an employee's union membership in good standing. While it could be argued that the literal language of Haven Manor Health Related Faciliot. 226 NLRB 329 (1976), would re- quire reimbursement of the dues, including the working assessment "dues." since employees whose membership %was originally voluntary were coerced into continuing such membership because of the unlawful requirement of pay- ment of the working assessment, I believe Haven Manor is distinguishable since it involved unlawful initial recogni- tion together with a union-security clause. Here. there was no unlawful recognition and the members, in any event, would be required to pay "dues" as a condition of employ- ment under the otherwise lawful maintenance of member- ship provision. See Painters' Local Union 585, 159 NLRB 1362. 1363 (1966); International Union of Operating Engi- neers, Local 825, 173 NLRB 955, fn. 1 (1968). With regard to the LFA assessment deductions, how- ever, that is another matter. With regard to the clerical employees, no authorizations, coerced or otherwise, were ever produced nor, were they available since, as Respon- dents conceded, they did not exist. With regard to opera- tional employees there were no written authorizations for at least the first week of the deductions commencing No- vember 19. 1975. and, thereafter, the deductions were ac- complished by virtue of written authorizations which were tainted by their being acquired through the coercion of Gavin and his foremen on behalf of the Employer and the Union. This coercion deprived the employees, regardless of their union membership, of their right to pay the loan fund assessment directly to Respondent rather than have it checked off. As a matter of law, they could refuse to pay the loan fund assessment at all and still retain their jobs. Here, there is presented only the question of reimburse- ment of deductions of LFA assessments based on no au- thorizations (administrative employees) and coerced au- thorization (operational employees). These assessments must be reimbursed since there is no statutory requirement, regardless of contract. in the absence of voluntary employ- ee authorization, for payments of an assessment as a condi- tion of employment. An assessment, unlike dues and initia- tion fees, is outside the scope of the proviso of Section 8(a)(3), the purpose of which is to prevent "free riders" and may not be made a condition of employment even under a lawful union-security device. Local No. 959. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Independent (RCA Service Company), 167 NL.RB 1041 (1967): Food Fair Stores, Inc. v. N.L.R.B., 307 F.2d 311 (C.A. 3, 1962). To be sure, there is no question that the LFA assess- ment, unlike the working assessment, is a true assessment and not "dues." The LFA assessment does not go into the general funds of Local 3 but rather into special funds avail- able for redemption at an unspecified time. Thus, the LFA assessments deducted since November 19, 1975, by Wels- bach and remitted to Local 3, shall be reimbursed jointly and severally to employees, with interest, at the rate of 6 percent per annum, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).4 3 The exact number of employees and their names, of course, are matters to be taken up at the compliance stage of these proceedings. Having found Reade and Gavin to be high ranking sup- ervisors of Respondent Welsbach and high ranking offi- cials of Respondent Local 3. and members, respectively of the JIB and the penion committee. I shall recommend that Welsbach, by Reade and Gavin, and any other of its super- visors, cease interfering in the administration of the Union 41 o the extent that Ceneral (Counsel requested that the Order direct other employets subject to the "A" agreement to similarl) reimburse the Lt A deductiion that request is denied No proof was adduced concerning the circumstances surrounding ans such deductions nor. indeed. if thes wcr ern ide made b other emplosers 521 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by permitting high ranking supervisors to serve as high union officers, by coercing employees into signing authori- zations permitting Local 3 Loan Fund deductions or any other Local 3 obligation from their wages; engaging in col- lective bargaining or in grievance handling on behalf of Local 3, whether on the JIB or the pension committee. While there is some suggestion in the record that Local 3 may have caused other employers to deduct working as- sessment and LFA deductions, as above noted, there is no proof as to which employers and the circumstances sur- rounding the deductions. I shall, therefore, limit my recom- mended Order to Welsbach and Local 3. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent-Employer, Welsbach Electric ('or- poration, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Lo- cal No. 3, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Welsbach, by permitting its high level supervisors and agents to serve as high officers of Respon- dent Local 3, by permitting them to coerce employees into executing authorizations for the deductions from their wages of union obligations, and by permitting them, while they hold high office in Respondent Local 3, to participate on behalf of Respondent Local 3 in the collective-bargain- ing process, in contract administration procedures and in the processing of grievances, has interfered with the admin- istration of the affairs of Respondent Local 3 and with the rights of employees under Section 7 of the Act and it there- by violated Section 8(a)(2) and (1) of the Act. 4. Respondent Welsbach, by deducting from the wages of its employees dues and assessments based on coercively obtained authorizations for such deductions, or without any authorizations, and by transmitting such dues and as- sessments to Respondent Local 3, thereby provided that labor organizations with aid, support, and assistance in vi- olation of Section 8(a)(2) and (1) of the Act; and said em- ployees, having not voluntarily authorized wage deduc- tions in writing for the loan fund assessment, and, being under no obligation to make any such payments by means of wage deductions or otherwise to Respondent Local 3 even under the compulsion of the contractual maintenance of membership requirement, such deductions discrimi- nated with regard to such employees by encouraging mem- bership in Local 3 in violation of Section 8(a)(3) and (I ) of the Act. 5. Respondent Local 3, by causing Respondent Wels- bach to deduct from the wages of its employees dues and assessments based upon coercively obtained authorizations or upon no authorizations, no such employees having vol- untarily authorized same in writing, coerced and restrained such employees in violation of Section 8(b)(l)(A) of the Act; and also caused or attempted to cause Welsbach to discriminate against said employees, by encouraging mem- bership in Local 3, in violation of Section 8(b)(2) of the Act. 6. Respondent Welsbach, on February 26, 1976, by the act of its supervisor and agent, superintendent Robert Reade, in rescinding its offer to the Charging Party, James G. Fischer, to reemploy him because he filed unfair labor practice charges against Respondent Welsbach and Re- spondent Local 3 with the National Labor Relation Board and refused to withdraw them, violated Section 8(a)( 1), (3), and (4) of the Act. 7. Respondent Local 3, on February 26, 1976 through the acts of its agents, Vice President Robert Reade, Busi- ness Representative Christopher Plunkett, and Herbert Ackerman, by rescinding its offer to cause Respondent Welsbach to reemploy James G. Fischer because he filed unfair labor practice charges against Respondents Wels- bach and Local 3, restrained and coerced employees in violation of Section 8(b)(1)(A) and caused and attempted to cause unlawful discrimination against him in violation of Section 8(b)(2) of the Act. 8. Respondent Local 3, on February 26, 1976, and March 1, 1976, by its agent Herbert Ackerman threatening James Fischer with physical harm and loss of work because he filed unfair labor practice charges against Local 3 and Welsbach Electric Corporation; and, in late November, 1975, by its agent De Gesu threatening reprisal if he did not sign an LFA assessment deduction authorization vio- lated Section 8(b)(1)(A) of the Act. 9. The aforesaid unfair labor practice are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law. and upon the entire record in this case I hereby issue the following recommended: ORDER 44 A. The Respondent, Welsbach Electric Corporation, Long Island City, New York, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interfering with the administration of International Brotherhood of Electrical Workers, Local No. 3, AFL- CIO, herein called Local 3, by deducting dues or assess- ments of Local 3 from the wages of Welsbach Electric em- ployees without voluntary written authorizations therefore from each employee; by permitting its supervisors to coerce employee authorizations for deductions from their wages of dues or assessments of Local 3; by permitting its high ranking supervisors, Robert Reade and Harry Gavin, or any other high ranking supervisor, to serve as high offi- cers of Local 3; by permitting its high level supervisors, Robert Reade and Harry Gavin or any other high level supervisor, by virtue of their membership on the joint in- dustry board of the electrical industry or the pension com- mittee thereof, to engage in collective bargaining on behalf 4 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions. and recommended Order herein shall. as provided in Sec 102.48 of the Rules and Regulations, be adopted ho Ihe Board and become its findings. conclusions, and Order, and all objections thereto shall he deemed seraied for all purposes. 522 WELSBACH ELECTRIC CORPORATION of Local 3 with Welsbach Electric Corporation, or its agents; to participate, on behalf of Local 3, in the adminis- tration of its collective-bargaining agreement with Local 3, or in the processing of grievances as a representative of Local 3. (b) Encouraging membership in Local 3, or in any other labor organization, by refusing to reemploy any employee or by otherwise discriminating against any employee in his wages, hours, or other terms and conditions of employ- ment, because said employee filed charges with the Na- tional Labor Relations Board against Welsbach Electric Corporation or Local 3 or any other employer or labor organization or because said employee is out of favor of Local 3 or any other labor organization. (c) Deducting, at the request of Respondent Local 3, or any other labor organization, from the wages of its employ- ees, any dues or assessments without the voluntary written authorization therefore from said employee. (d) In any other manner, interfering with, restraining, or coercing its employees in their rights to be represented in collective bargaining by individuals who have a single- minded loyalty to their interest, in the exercise of their rights of self-organization, to form, join, or assist Local 3. International Brotherhood of Electrical Workers, AFL- CIO, or any other labor organization, to bargain collective- ly through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership of a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Jointly and severally with Respondent Local 3, reim- burse each employee of Welsbach Electric Corporation who has had deducted from his wages any Local 3 Loan Fund (LFA) assessment commencing on or after Novem- ber 19, 1975, plus interest at the rate of 6 percent per an- num. (b) Jointly and severally with Respondent Local 3 makes James G. Fischer whole for any loss he may have suffered because of the discrimination against him, includ- ing wages, pension, welfare and other benefits, in the man- ner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records, and reports. "contractor weekly payroll reports," and all other records necessary to analyze the amount of money due under the terms of this Order. (d) Post at its premises on 42nd Street, Queens, New York City, copies of the attached notice marked "Appen- dix A." 4 Copies of said notice, on forms provided by the 4 In the event that this Order is enforced b. a Judgment of the i nited States Court of Appeals, the words in the notice reading "Posted bh Order of the National L abor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L.abor Relatiions Board," Regional Director for Region 29, after being duly signed by an authorized representative of Respondent Welsbach Electric Corporation shall be posted by Welsbach Electric Corporation immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Welsbach Electric Corporation to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same condi- tions as set forth in paragraph. A, 2(d) above, as soon as they are forwarded by the Regional Director for Region 29. copies of the Respondent-Union attached notice marked "Appendix B." (f) Mail to the Regional Director for Region 29 signed copies of the attached notice marked "Appendix B" for posting by Respondent-Union Local 3, International Brotherhood of Electrical Workers, AFL-CIO, at its busi- ness office and meeting halls, including all places where notices to members are customarily posted. Copies of said notice to be furnished by the Regional Director for Region 29, shall, after being signed by an authorized representative of Welsbach Electric Corporation, be forthwith returned to the Regional Director for such posting. (g) Notify the Regional Director for Region 29 in writ- ing, within 20 days from the date of this Order, what steps the Respondent-Employer has taken to comply herewith. B. The Respondent, International Brotherhood of Elec- trical Workers, Local Union No. 3, AFL-CIO, Long Is- land City, New York, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Respondent-Em- ployer. Welsbach Electric Corporation, to deduct from the wages of its employees dues or assessments without Local 3 having procured uncoerced written authorization there- fore. (b) Causing or permitting its officer, Robert Reade, or any other agent of Local Union No. 3, to become or to remain a member of, or to administer and execute the poli- cies and programs of, the joint industry board of the elec- trical industry as a representative appointed by Respon- dent Local No. 3, or causing or permitting its officer Harry Gavin, or any other of its agents, to become or remain a member of the pension committee named by Local No. 3, while ary of the aforesaid persons are supervisors, within the meaning of Section 2(11) of the Act, of Respondent- Employer Welsbach Electric Corporation, or of any' other employer subject to the terms and conditions of the collec- tive-bargaining agreement. effective in the period July I, 1974, to June 30. 1977, between Respondent Local 3 and Employers in the Electrical Industry known as the "Agree- ment and Working Rules," or to any renewal, modification or continuation thereof. (c) Causing or attempting to cause Respondent Wels- bach Electric Corporation, or any other employer, to dis- criminate against James G. Fischer or any other employee 4" See fn 45. 4upra 523 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because he filed charges of unfair labor practices with the National Labor Relations Board or failed or refused to withdraw same. (d) Coercing or restraining any employee by threatening him with retaliation if he did not execute written authoriza- tion for deduction of loan fund assessment from his wages or with physical injury or with discriminatory job referral or placement if he filed charges of unfair labor practices with the National Labor Relations Board against any em- ployer or labor organization or if he refuses to withdraw same. (e) In any other manner, restraining, or coercing em- ployees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Jointly and severally with Respondent Welsbach Electric Corporation make James G. Fischer whole for any loss he may have suffered because of the discrimination against him, including wages, pension, welfare, and other benefits, in the manner set forth in the section of this Deci- sion entitled "The Remedy." (b) Jointly and severally with Respondent Welsbach Electric Corporation, reimburse each employee of Wels- bach Electric Corporation who has had deducted from his wages any Local 3 Loan Fund Assessment (LFA) com- mencing on or after November 19, 1975 plus interest at the rate of 6 percent per annum. (c) Notify Respondent Welsbach Electric Corporation to cease withholding from the wages of its employees dues or assessments payable to Local 3 until such dues or assess- ments shall have been voluntarily authorized in writing by the individual employees from whose wages the dues and assessments, if any, or withheld and deducted. (d) Post at its business office and meeting halls, copies of the attached notice marked "Appendix B." 47 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of the Respondent Local 3, shall be posted by Respondent Local 3 immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure said notices are not altered, defaced or covered by any other material. (e) Post at the same places and under the same condi- tions as set forth in paragraph B, 2(d) above, as soon as they are forwarded from the Regional Director, copies of the Respondent Welsbach Electric Corporation attached notice "Appendix A." 48 (f) Mail to the Regional Director for Region 29, signed copies of the attached notices marked "Appendix B" for posting by Respondent Welsbach Electric Corporation at its premises at 42nd Street, Queens, New York, in places where notices to employees are customarily posted. Copies of the said notices to be furnished by the Regional Director for Region 29 shall, after being duly signed by an author- ized representative of Respondent Local Union 3, be forth- with returned to the Regional Director for such posting. (g) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. 4 See fn. 45, .upra 4' See fn. 45. supra 524