Local Union No. 2150 IBEW

LOCAL UNION NO. 2150.IBEW - 77 Local Union No. 2150, International Brotherhood of Electrical Workers, AFL-CIO and Wisconsin Electric Power Company. Case 30-CB-293 July-14, 1971 DECISION .AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On May 6, 1970, Trial Examiner-Henry L. Jalette issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act,,-and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision.. Thereafter, Respondent, Charging Party, and General Counsel filed exceptions to the Decision and supporting briefs. The Respondent has also filed an answering brief to the General Counsel's and Charging Party's` exceptions. On"September 2, 1970, the National Labor Rela- tions Board; having determined that the instant case raised issues of substantial importance in the adminis- tration of the - National - Labor Relations act; as amended, ordered that this case be consolidated with one others for the purpose of oral argument before the Board. Oral argument was heard on October 5, 1970. The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing- and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, the oral arguments, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent consistent with our Decision and Order. The Charging Party, hereinafter referred to as WEPCO, had recognized and negotiated with the Respondent as the bargaining representative of. its employees since the 1930's. The collective-bargaining agreements, including the most recent negotiated by the parties provide in pertinent part that an employee promoted to a supervisory position may, upon request, be given a withdrawal card by the Respon- dent. The supervisor can request either a participating % International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, 'International Brotherhood of Electrical Workers,,,AFL-CIO (Illinois Bell Telephone Company), 192 NLRB No. 17, issued this date. 2 Member Ralph E. Kennedy, who succeeded to' the Board after the oral argument presented by the parties, has reviewed the entire record in this case including the arguments advanced during oral argument ,' and is participating in the disposition of this- case. 3 The Union mistakenly fined ` three supervisors. McMahon, while a member of the Union, was-in the hospital at the time of the strike and therefore could not, as charged in the union proceedings, perform the struck work. Both Miller and Gardner were not members of the Union at the time of the strike. Eventually the Union dropped charges against these 192 NLRB No. 16 ,or an honorary withdrawal card. With the possession of either. type of 'withdrawal card he continues, according to the International Brotherhood of Electri- cal Workers' Constitution, to be treated as a union member subject to the provisions of the constitution but he-is not required to pay dues. The only benefit of an honorary withdrawal card is the right of the holder to be restored to regular membership without fulfill- ing any of the normal reinstatement requirements. The participating withdrawal cardholder, besides possessing the benefits of an honorary cardholder, is entitled to participate in the Union's pension and insurance benefits. Between June 16, 1969, and, July 1,. 1969, Respon- dent engaged in an economic strike against WEPCO. Although not clear from the record, WEPCO's counsel, during oral argument, asserted that WEPCO directed that its supervisors report to work during the strike. It is clear from the record that substantially all of WEPCO's supervisors reported for work during the strike and performed struck work normally performed by rank-and-file employees represented by the Respondent. The parties, stipulated that the supervisors involved herein performed struck work. On August, 14, 1969, Respondent notified the supervisors involved herein that they had -been ^charged-with -"doing struck work of Local 2150." All but two of the charged supervisors were holders of withdrawal cards obtained under the terms of the collective-bargaining agreement. Trials wereheld but none of the charged individuals appeared. All but two were found guilty of violating the Union's Constitu- tion, and accordingly fined' $100 and suspended from membership for a year, with sentence to be suspended if they were not found guilty of a similar offense for a period of 2 years .3 The parties stipulated that 60 of the 61-in ividuals notified of charges and/or fined are supervisors and that 19 of'those 60 supervisors have the authority to adjust grievances. The Trial Examiner, and we agree for the reasons set forth in the Trial Examiner's Decision, found the remaining 41 supervisors also possess the authority to' adjust grievances and are representatives of the Employer within the' meaning of Section 8(b)(1)(B).4 The Trial Examiner concluded that the fining of the supervisors. However, at least one of the supervisors, Miller, was seriously inconvenienced since he was actually fined and forced to, make a formal appeal to the international to vindicate his position . The Trial Examiner concluded that the actions against these supervisors were the result of a mistake and since this problem is "outside the mainstream of this case" this portion of the complaint should be dismissed. We disagree. The fact that the Union brought ,charges of misconduct against these supervisors is sufficient- to warrant the finding of a violation. Cf. Granite State Joint Board -Local 1029, AFL-CIO (International Paper Machine Company), 187 NLaB No. 90. 4 The General Counsel and the Charging Party stave excepted to the Trial Examiner's finding that the safety specialist was not an employer (Continued) 78 DECISIONS OF NATIONAL ,LABOR RELA'Y'IONS BOARD supervisors for crossing a picket line and doing struck work violated Section 8(b)(1)(B) of the Act. He reasoned that whenever the dispute can be character- ized as a dispute between the employer and the^union rather- than between the union and its members, any union disciplinary action against a supervisor who may act , on behalf of, the employer in, grievance adjustment is violative of Section 8(b)(1)(B) of the Act. We agree. In the-,Toledo Blade case, the Board adopted the following, summary of the .general principle of law establishedlby Section 8(b)(1)(B): The Board's decision in the San Francisco Mailers case, underscores the . .' . import- of Section 8(b)(1)(B) as a general prohibition of a union's disciplining supervisor-members for their conduct in the course of representing the interests of their employers. As the, Board held, such discipline, by a union, even, though the employer may have consented to the compulsory union membership of the supervisor under a union- security clause, is an unwarranted "interference with -[the] employer's, control over, its'own repre- sentatives," and „deprives the . employer of the undivided loyalty of the supervisor, to which it is entitled. Applying those long-settled and, court-approved principles to this cases leads to the conclusion that Respondent violated Section 8(b)(1)(B) when it fined the supervisors for performing work which ,the Employer had directed ,them to perform. Here,, the supervisors, by doing struck work, as directed by the Employer, were, furthering the interests of the Em- ployer;in a dispute not between the Union and the supervisor-union members but betweenthe Employer and the Union. During the strike of the Union, the Employer clearly considered its supervisors among those,-it could depend ',on during this period. The Union's fining of the supervisors who, were acting in the Employer's, interest in performing,the struck work severely jeopardized the relationship ' between ', the Employer and its supervisors. Thus, the, fines, if found to be-lawful, „would now permit the Union to, drive a representative ' for the purposes of collective bargaining and 'grievance adjustment. We agree with the Trial Examiner that the safety .specialist, who is not clearly a statutory supervisor and is not empowered to settle grievances and has no direct and immediate likelihood of occupying such a position of authority where he might exercise such power , is not within the coverage of Section 8(b)(1)(B). In this regard, we follow the reasoning-set forth in Toledo , Locals Nos. 15-P and 272 of the Lithographers and Photoengravers International Union, AFL-CIO (The Toledo Blade Company, lnaA 175 NLRB Noe 193, enfd. 437 P.2d 55 (CA. 6). `5 See, e.g., Meat Cutters Union , Local 81 ' (Safeway ,Stores, Inc.), 185 NLRB No. 130;, Freight Construction, General Drivers, Warehousemen and Helpers, Union, Local 287, International "Br`otherhood of Teamsters, Chauffeurs, - Warehousemen and Helpers of America (Grinnell Co. of the Pacific), 183 NLRB No. 49; Local `Union N66453, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (Syd Gough and ,Sons, Inc.), 183 NLRB 'No. 24. Hous`ton' Typographical Union No. 87 (Houston wedge between a - supervisor and. the =Employer,- thus interfering with the performance of the duties the Employer had a right to expect the supervisor to perform. The Employer could, no longer count on the complete and undivided loyalty- of those it had selected to act as its collective-bargaining agents or to act for it in adjusting grievances. Morever, such fines clearly interfere with the Employer's control over its own representatives. Of course, our decision is-not meant to imply that a union is completely precluded from disciplining supervisor-union members. It only means that when the underlying dispute is between=the employer and the union rather than between the 'union and the supervisor, then the union is precluded in taking disciplinary action by Section 8(b)(1)(B). The intent is to prevent the supervisor from being placed in a position where he must decide either to, support his employer and thereby risk internal union discipline or support the union and thereby jeopardize his, position with the employer. To place the supervisor, in- such a position casts doubt both upon This, loyalty -to his employer and upon his effectiveness as the employer's collective-bargaining and grievance adjustment repre- sentative. The purpose of Section 8(b)(1)(B) is to assure to the employer that its selected collective- bargaining representatives will be completely faithful to its 'esires. This cannot be achieved if the union has an effective method, union, disciplinary action, by which' it can pressure such representatives to deviate from the interests of the- employer. Accordingly, we find that Section 8(bXl)(B) has been violated. ORDER Pursuant to Section 10(c) of the National Labor Relations Act,, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner andhereby orders that the Respondent, Local Union No. 2150, International Brotherhood , of Electrical Workers, ,AFL-CIO, its Shopping News Company), 182 NLRB No. 91; Dallas Mailers Unior, Local No. 143, and International Mailers ' Union (Dow Jones Co., Inc.), 181 NLRB No. 49; Sheet Metal Workers' International Association.. Local Uniofl 49, `AFL-CIO (General Metal Products Inc.), 178 NLRB No. 24, enfd. 436 F.2d 1348 (C.A. 10); New Mexico District Council of Carpenters and Joiners of America, United Brotherhood of Carpenters and Joiners of America,(A. S. Horner, Inc.), 177 NLRB No. 76; New Mexico District' Council of Carpenters and Joiners of America; United Brotherhood of Carpenters and Joiners of America (A. S. Horner, Inc.A 176 NLRB N9.1015; Toledo Local, Nos. 15-P and 272 of the Lithographers and Photoengravers' International' Union, AFL-CIO (The Toledo Blade Company, Inc.), 175 NLRB No. 173, enfd. 417 F.2d 55 (C.A. 6); San Francisco-Oakland `Mallers' Union No '18, International ' Typographical Union (Northwest Publications, Inc.), 172 NLRB No. 252. , LOCAL UNION NO. 2150 IBEW 79 officers, agents, and representatives shall take the action 6 set forth in-the Trial Examiner's Recommend- ed.Order.7 MEMBER FANNING, dissenting: During a strike called by Respondent Union, the Employer directed its supervisors to perform the work of the striking employees. Many of its supervisors were 'members' of the Union 'under a contractual provision initially proposed by the Employer which gave them the option of remaining union members when they advanced to supervisory positions.8 Mem- bership,in the ,Union is of considerable benefit to the individual, supervisors, but, as members, they re- mained bound to, discharge the obligations of mem- bership and are subject to union discipline for failure to faithfully discharge such obligations. By perform- ing production work during the strike, the supervisors violated the Union's =rule against performing struck work, and they were fined for such transgression. As in Illinois Bell Telephone Company, 192 NLRB No. 17, my colleagues find-that the Union violated the prohibition .contained in Section 8(b)(1)(B) against restraint or coercion of an employer in the selection of his representatives for the purpose of collective bargaining-or the adjustment of grievances. For the reasons that led me to dissent in Illinois Bell, I dissent herein. While it serves no useful purpose to repeat those reasons here, one aspect of the case seems to me to, -highlight a basic weakness in my colleagues' approach,. Section 8(b)(l)(B) proscribes restraint or coercion of the employer in his selection of representatives who adjust grievances. Here, of course,, the Employer was in no way restrained or coerced in his'selection of,such representatives, - indeed it took the initiative in enabling them to remain union members. Neverthe- less, had the Union restrained or coerced those representatives in the performance of their grievance- adjustment functions, the Employer would then have been, denied the unrestrained and uncoerced perform- ance for which he had selected them, and a violation of Section 8(b)(1)(B).,could properly be found., But their performance, of_ such functions is not involved herein, for the Employer directed them to perform nonsupervisory, production work during the strike. I do' not see 'how the restraints imposed on the supervisors for performing such work translate into restraint and coercion of'the Employer in'his selection of representatives for the purpose of settling griev- ances. e The General Counsel has excepted to the Trial Examiner's refusal to require that the Notice to Members be read at two of the Local 2150's general membership meetings. We'see no reason in this case for requiring such an'extraordinary remedy. r' In fm-I1' of the Trial Examiner's Decision change "10" to "20" days. 8 There 'is an 'obvious benefit to management in such a provision in that it permits recruitment of supervisors from the ranks of `highly qualified production employees who might be reluctant, to accept promotion if it meant cutting off all ties and associations with their union and the loss of benefits flowing from their membership Among the benefits retained by supervisors who-elect to take'a withdrawal card are the right to continued participation- -in pension- and insurance programs and the right' to restoration to regular membership status)without payment of reinstatement fees upon their return to employee ,status, TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY L:JALETTE, Trial Examiner: On January 12, 1970, a complaint issued against' the above-captioned Union alleging -that it had, restrained and coerced the above- captioned Employer in the selection of its representatives for purposes of collective bargaining and the adjustment of grievances in violation of Section 8(b)(1)(B) of the Act"by disciplinary action taken against the Employer's supervi- sors. The complaint was based on a charge filed by the Employer on October 23, ''1969. On February 19; 1970, a hearing was held before me in Milwaukee, Wisconsin. Upon the entire record and after due consideration of the briefs filed by 'General Counsel, the Employer, and Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Wisconsin Electric Company is a Wisconsin corporation with its principal office located-in Milwaukee, Wisconsin, where it is engaged as a public utility in the production and distribution of electric power to various, municipal, commercial, and private consumers throughout the States of Wisconsin and Michigan. In the course and .conduct of its business, the Employer annually receives gross revenues in excess of $250,000 of which in excess of $50,000,is for the transmission of electrical power 'from points within the State of Wisconsin directly to points outside the State of Wisconsin. Respondent admits, and I find, that Wisconsin Electric Power Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is, and at all times relevanthereto has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. • The Facts The facts are essentially undisputed. Respondent repre- sents certain of the Employer's employees and has had a contractual relationship with the Employer for a number of years. On June 16, 1969, Respondent engaged in an economic strike against the ' Employer which strike continued through July 1, 1969; During, the strike, supervisors crossed Respondent's primary picket line and performed unit, work. With two exceptions, all the supervisors - who are the object of this proceeding were holders of either participating or honorary 80 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD withdrawal cards' by virtue of I which they continue to be members of the 'Union ' ' and'subject "to provisions of`the Union's constitution. Holders' of Withdrawal eards_are not required to pay dues. The only benefit of 'an honorary withdrawal card is that the holder thereof may turn the card in and be restored to regular membership-upon request without payment of a reinstatement fee or the fulfillment of any other conditions .' The holder of a participating withdrawal card has the same benefits, but in consideration of the payment of certain fees` he is entitled to pension and insurance benefits. Such benefits are an incident .of union membership for all members who elect to participate. They are knot based on a collective-bargaining agreement nor on employer contributions.' On August 14,,6,1 individuals werenotified that they had been charged by a member of Respondent with "doing struck work of Local 2150" and that a trial would be held on August 29. Trials were held during the week,of August 29; but none "of the individuals appeared, and on October 10, all but 2 were notified , that they had been fined $ 100 and suspended, from membership for 1, year, ` sentence to be suspended provided they were not found guilty' of like violations for a' period , of 2 years; in such event, the sentence "was to become effective immediately upon the finding of a further violation. The parties stipulated that 60 of the 61 individuals notified of charges and/or fined are supervisors within the meaning of Section 2(11) of the Act. Of'these 60, it was stipulated that 19 occupied positions whereby they had'the authority to adjust grievances.2 ` The remaining 41 consisted of 33 general foremen and 8 power system supervisors. Respondent contends that they have no authority to `adjust grievances - and are not representatives - of the Employer within the meaning of Section 8(b)(1)(B). One-individual, Ronald Burghaus, is not a supervisor,-nor does he have the 'authority to adjust` grievances. He is a safety specialist and is not in the unit represented by Respondent. General Counsel contends heis a representa- tive -of,, the Employer within the ,-meaning- of Section 8(b)(1)(B)• B. Analysis and Discussion The facts and applicable legal principles it this case require 'very, little discussion. Respondent asserts two defenses both of which are indistinguishable from defenses previously considered by the Board and decided adversely to Respondent's position. The first of these, conceded by Respondent to present a secondary issue, is the status of 41 supervisors as representatives of the Employer within the meaning of fioa' (b)(1)(B) of the Act. As noted -earlier-,of-the-6-1 individuals charged sand/or ..fined 'for doing'struck work, although 60 were stipulated, to be statutory supervisors, only 19 were stipulated to have the authority to, adjust grievances. Respondent contends that the .remaining 41, who are ,classified as general foremen and power systems supervi- sors, are low - level supervisors "who have no_ meaningful authority , to adjust- grievances and that they are not therefore the' " Employer's representatives within the, mean- ing of Section 8(b,)(l)(B). I find-this contention to be without meet for two reasons. 'First, I believe that the Board has -construed Section 8 (b)(1)(B) to prohibit a union from fining any supervisor- as to matters concerning his employment. In Toledo Locals Nos. 15-P and 272 of the Lithographers, and Photoengravers International Union, AFL-CIO (The -Toledo, Blade Company, Inc.), 175 NLRB No. 173, the Trial Examiner stated, , But, even had Jones and 'Ulrich not been actually designated and serving the Blade as such grievance representatives, I would find that, in view of their status and roles as foremen with the substantial supervisory authority to direct-the work of,the men on their shifts, they were such natural and potential representatives of the Blade for the handling and settlement of grievances because of their day-to-day supervision and' contact with the employees in matters that spawn grievances, that the Blade should be entitled torely upon them, and `therefore to select them, as its representatives in handling and settling grievances whenever the occasion might arise. For Section, 8(bxl)(B) forbids a union's restraining and coercing "an employer in the selection of his 'representatives for the purposes of collective bargaining or the adjustment of, grievances" and this protection of the employer's right tc "selection" must be construed' as protecting not only-66 employer's continuing reliance upon supervisors already selected, but his right, at , any time to` make and' rely upon a selection of ,representatives from an uncoerced group of such supervisors whose, loyalty to him has not been prejudiced and who he believes would be peculiarly qualified, to, -represent him in the handling of grievances.a Without more,. therefore, based solelyon the stipulation that'they are statutory 'supervisors, I' wouldfind that -the general foremen and power system supervisors are representatives of the Employer for 'the= purpose of adjusting grievances within the 'meaning of Section 8(b)(1)(B)of the Act. Second, there- is evidence that the general foremen and power, system supervisors have the authority to adjust ,grievances. They are at the first level of supervision, and the collective-bargaining agreement contemplates that they Will I There is no contention either that the holders of withdrawal cards are not subject to'the Union's constitution, nor that the right to be an honorary member 'on withdrawal card is not a valuable right. 2 In addition, one of the 19, Billy McCoy, was also a representative of the Employer for the purpose ,of collective bargaining. 'a 6n "Counsel relies on' the language of 'this paragraph for his allegation that the fining of Ronald Burghaus was violative of Section 8(bX1XB) of the Act. General Counsel contends that although Burghaus was not a statutory supervisor, as safety specialist with the responsibility and authority, inter aha, to stop employees performing work in an unsafe manner, he was a "natural and potential" representative of the Employer for the adjustment of grievances. That rationale was applied to statutory supervisors in'the Toledo Blade case. In my opinion, it cannot with equal force be applied to nonsupervisors. Where such individuals are concerned, it is incumbent on General Counsel` to show pthat'theyactually' have been designated, as representative of the Employer to adjust grievances. Accordingly, I shall recommend that the complaint be dismissed insofar as it relates to the fining of Burghaus. LOCAL UNION NO. 2150 IBEW 81 resolve misunderstandings or disputes involving employees under their supervision to avoid the necessity of resolving them at the written - level or at higher levels of supervisions.4 Such grievance handling is of the informal type -which precedes the filing of a written grievance and may relate to such matters as work assignments, scheduling of work, scheduling of vacation and " the like. In the terminology used in Toledo Blade, the grievances adjusted at this level- could be termed "personal grievances" as distinguished from "cointractural grievances." As was held in Toledo Blade, (TXD, p.14) individuals who possess the authority to adjust "personal grievances" are representa- tives of an employer "for the purpose of ... the adjustment of grievances" within the meaning of Section 8(b)(1)(B) of the Act. Accordingly, I find that general foremen and power system supervisors are such representatives of the Employer herein. Respondent's principal contention is that N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, and related cases5 sanction" the discipline of union members who engage in conduct- detrimental to the union's legitimate interest, in this case, the maintenance of an effective economic strike. The simple answer to that contention is that the Board has rejected the Allis-Chalmers rationale as a defense-in Section 8(b)(1)(B) cases. `San Francisco-Oakland Mailer's Union - No. 18, International Tyographical Union, 172 NLRB No. 252; The Toledo Blade Company, supra; New Mexico District` Council of 'Carpenters and Joiners of America, (A. S. Horner, Inc.), 177 NLRB No. 76. - Respondent appears to contend that these cases are not dispositive because they involved situations where the discipline related directly to and arose out of the very manner in which the supervisors were performing their functions as representatives of their employer, whereas in this case the discipline was unrelated to any conduct of the supervisors in their capacity as supervisors. To put it another way, when the supervisors did unit work, they were not functioning either -as supervisors or representatives of the Employer under Section 8(b)(1)(B), and Section 8(b)(l)(B) is inapplicable. The Board's decisions in A.S. Horner, Inc., supra dictates a rejection of that argument. In that case, the employer had no contract with the union, and disciplinary action-against the supervisor was not invoked because of his exercise of any supervisory functions or functions as a, representative of the employer under Section 8(b)(1)(B); rather, discipli- nary action was invoked-pursuant to what I believe is a long standing tradition of trade unionism, ' particularly the building trades unions, that a union member does not work for a nonunion contractor. The same action would have been invoked against Freese had he been employed by Horner as a journeyman.6 Nevertheless, the Board found that the Union violated Section 8(b)(1)(B), not because of what Freese did as the employer's representative, but simply and solely because he had the authority to adjust grievances and "the basic dispute underlying the discipli- nary action against Freese was not entirely an infra-union matter, but stemmed from the fact that the Company did not have a collective-bargaining agreement with the Respondent and -was not ' making` payments into' the Respondent's health and welfare fund. Thus, as in San Francisco-Oakland Mailers' and in The Toledo Blade Company cases, supra the underlying dispute was between the Respondent and the Company and not -between the Respondent and one of its members." The same considerations apply here. The disciplinary action against the supervisors stemmed from the fact, that they worked for the Employer, at a time when the Employer did not have a collective-bargaining agreement with Respondent. The underlying dispute was between the Employer and Respondent and 'not between Respondent and its members. Respondent adverts to the fact-that the supervisors in this case were union members by choice. As a matter of fact, article VIII, sec.8.1 of the collective-bargaining agreement provided that should an employee be promoted to a supervisory position, he shall be given-a withdrawal card by the Union upon the employee's request. Although the Board adverted to the compulsory membership of the disciplined foremen in San Francisco Mailers (fn. 2), it did not indicate that the fact of compulsory union membership was material, even less essential, to a finding of a violation. The decision in A.S.' Horner Inc., supra, however, indicates that it is immaterial that the supervisor is a union member by'choice, because a violation was found where there was no contract between the union and Homer, much 'less a compulsory membership contract provision. The effect of the decision is to give the right to individuals to be both supervisors and union members. Thus,, foreman Freese in A. S. Horner could be both a union member and a supervisor for a nonunion contractor - pursuant to a provision of the Act designed to protect his employer when, for all that appears, his employer couldn't have cared less whether he was a union member so long as he was'a good supervisor. ` Under such a rationale, employers have the right under Section 8(bXl)(B) not only to select representatives of their own choosing, but even more, to select union members as such representatives, with the right to remain union members. This is made abundantly clear in Dallas Mailers Union, Local No. 143, and International Mailers Union; A 81 NLRB No. 49. The Board there rejected the argument that once a supervisor was expelled he was relieved of any further fear of coercion 'by the-union which would inhibit him from representing the viewpoint of management. As the Board indicated, the supervisor might well desire reinstatement in the union and his expulsion would have an inhibiting effect on his future conduct as a supervisor. This may very well be true, but I question that Congress intended by Section 8(bXl)(B) to compel unions to retain representatives of management on their- membership rolls. It appears, to me that individuals who, aspire to be representatives of management and to. receive the perqui- sites of management must be prepared to relinquish the benefits afforded by union membership. If they elect to eat 4 The grievance procedure is set forth in article III. The "divisional (C.A. 9), cert. denied 392 U.S. 904. supervisors" referred to in step I is a , generic term which includes 6 As noted in In. 3, the union had demanded that two rank-and-file supervisors,such as general foremen and power system supervisors. employees cease working for Horner. 5 Scofield v. Labor Board, 394 U.S. 423; Price v. N.LR.B., 373 F.2d 443 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the icing, they should eat the cake; if they choose union membership, they choose to abide by its constitution. It may be that the Board decisions 'in A. S. Horner, supra and Dallas Mailers, supra, do not- have the far-reaching effects I see in them. Be that as it may, I believe that-they are controlling in this case. So long as the disciplinary action against the supervisors arose out of matters relating to their employment,, it was proscribed by 'Section 8(b)(1)(B) of the Act and Respondent's motive or the legitimacy of its interest is immaterial. As noted 'earlier, of the 61 individuals notified of charges, 2 were not 'fined. Vincent McMahon was not fined because Respondent learned he had beenin the hospital and had not crossed ,the picket line. David Gardner was not fined becasue it was learned he did not hold a withdrawal card and was not a,member of Respondent. General Counsel contends that the act of notifying the supervisors oUcharges and of a trial to be held thereon was an act of restraint and coercion even though the charge was dropped without a trial, and that is no less restraint and coercion when the supervisor is not a union member. Where the -Board has proscribed disciplinary action against supervisors in 8(bxl)(B)" situations, it has also proscribed the act of preferring charges against them or citing them to appear for trial. San Francisco Mailers, supra. In McMahon's case, the charge against him and the notice thereof were the result of error. McMahon must have recognized that fact and I find it difficult to see how , there could have been any'restraint or coercion in his case. In the circumstances, I 1 would recommend dismissal of the complaint as'it relates to McMahon. The charge and notice thereof 'given David Gardner and the charge, al, and fining of,,David . Miller present' a different issue. Both were nonmembers, and when this fact was learned the charge against Gardner was dropped and Miller was advised by Respondent's International that the fine which had been levied was void. Whether or not,the preferring of charges and/or fining of nonmembers constitutes restraint and coercion is an interesting question. Since the fine would be void and uncollectible, how could the individual who was fined be restrained and coerced? Trial Examiner Milton Janus held that the-fining of nonmembers was restraint and coercion within the meaning of Section 8(b)(1)(A) in Granite State Joint Boar4 Textile Workers Union - of "America, Local - 1029, AFL-CIO (International Paper Box Machine Company), 187 NLRB, No. 90, but in that case there was a colorable claim by the union that the , employees who were fined were union members subject to union , discipline. In, this case, the actions against- Gardner and Miller were ,the result of a mistake. In my opinion, their case as well as° McMahon's are outside the mainstream of-this case and the issues they present can be left ' for determination in another case. I will recommend that the complaint be dismissed as it relates to Gardner and Miller. 9 Printing Specialties ' and Paper Products' Union No. 481, International Printing Pressmen and Assistants' Union of North America, AFL-CIO (Westvaco Corporation, H & D Container Division), 183 NLRB No. 125; IV. THE'EFFECT OB THE UNFAIR LABOR , PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III above, occurring , in, connection with the operations of the Employer-.described in section I above, haves. close, intimate, and substantial relation 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 the Respondent has engaged in unfair labor practices- I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Although the fines and suspension from membership were' suspended, the coercive effect of 'the fine, and suspension from membership will continue for a period of 2 years unless the actions of the` trial board are revoked in their entirety. Aecor'dingly, to remedy the coercive effect of having . charges preferred, against them-, having trials conducted thereon, and fining the Employer's representa- tives for the purpose of adjusting grievances within the meaning of Section 8(b)(1)(B) of the Act, I will, recommend that (1) Respondent revolve the actions of the trial board and expunge- from, its files any record or other evidence 'of the proceedings against them; (2) advise the Employer's representatives named in paragraph-6 of the complaint and appendix A, excepting Vincent McMahon, David Gardner, and David Miller, in' writing, of the aforesaid action; and (3) execute and post the notice her"eto attached as "Appendix." -General'Counsel-has requested that following receipt of the - "Appendix" Respondent' be directed to read its contents at two'' successive` regular meetings." Such a remedial` provision has been included' in''orders recom- mended by Trial Examiners in Section 8(b)(1)A) cases.a General Counsel has not shown that such a requirement has been deemed appropriate in .cases involving .Section 8(b)(1)(B) violations only. Since Section 8(b)(IXB) is for the protection of the employer, I deem the addition of a^reading requirement to the remedy recommended, above to be neither appropriate nor necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact-and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is, and has been at all times material; a labor organization within the meaning of Section 2(5) and Section 8(b),of the Act., 2. Wisconsin Electric Power Company is an employer within the meaning of Sections 2(2) and 8(bXl)(B) of the Act. I 1 3. Wisconsin Electric Power Company is engaged in Milwaukee Printing Pressmen & Assistants Union No . 7, affiliated with, the International Printing Pressmen & Assistants Union of North America' (North Shore Publishing Company), 192 NLRB No. 122. " " ' LOCAL UNION NO. 2150 3BEW 83 commerce within the meaning of Section2(6) and (7) of the Act. 4. The supervisors named in paragraph 6 and appendix A of the complaint are, each of them, and at all times material have been, supervisors within the meaning of Section 2(11) of the Act and representatives of the Employer for the purpose, among others, of adjusting grievances within the meaning of Section 8(bXl)(B) of the Act. 5. By preferring charges against the supervisors, conducting trials, and fining them (except Vincent McMahon, David Gardner and David Miller), Respondent restrained and coerced the Employer in the selection and retention of its representatives for the purpose of collective bargaining or the adjustment of grievances, and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law and the entire record in the case, I hereby issue the following: if willing, in places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Decision and Recommended Order what steps it has taken to comply herewith.". To the extent that the allegations of the complaint have been found not to have constituted violations of the Act, it is recommended that they be dismissed. to In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided by Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and order and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." RECOMMENDED ORDER Respondent, Local Union No. 2150, International Brotherhood of Electrical Workers, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining and coercing the Employer in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances. (b) Preferring charges against, conducting trials and fining the supervisors of Wisconsin Electric Power Company, as members of Respondent, because they crossed a picket line established by Respondent and performed services for their employer. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Revoke the actions of the trial board and expunge from its files all records or other evidence of the proceedings against the supervisors named in paragraph 6 of the complaint and the appendix thereto (except Vincent McMahon, David Gardner, and David Miller). (b) Notify the aforesaid supervisors in writing that it has taken the aforesaid action and that it will cease and desist from taking like action in the future. (c) Post in conspicuous places at its offices and meeting halls, and other places where notices to its members are customarily posted, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 30. shall, after being duly signed by an authorized representative of Local Union No. 2150, International Brotherhood of Electrical Workers, AFL-CIO, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director signed copies of such notice for posting by Wisconsin Electric Power Company, APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT WE WILL NOT in any manner restrain or coerce Wisconsin Electric Power Company in the selection of representatives chosen by it for the purposes of collective bargaining or the adjustment of grievances. WE WILL NOT prefer charges against, conduct trials of, or fine supervisors of Wisconsin Electirc Power Company, who aremembers•of thisllabor ,organization, because they crossed our picket line and worked during the strike in June 1969. WE WILL revoke the actions of the trial board, and WE WILL expunge from our files all records or other evidence of the proceedings against them. WE WILL notify those supervisors that we have revoked the actions of the trial board and have expunged from our files all records or other evidence of the proceedings against them and that WE WILL NOT take like action against them in the future. LOCAL UNION No. 2150, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL--CIO (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must ; remain posted, for 1601 consecutive days 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the, date.ofposting and, must notbe altered, defaced, its provisions, may be directed to the Board's,Office, 2nd or covered by any other material. Floor, Commerce Building,'\\ 744 North\ 4th Street, Milwau- Any questions concerning, this notice or compliance with kee, Wisconsin 53203, Telephone 4I4-272-X3861.