IBEW, Local 134

IBEW, LOCAL.-134 International Brotherhood . of -Electrical Workers, AFL-CIO, and, Local 134, International; Brother- hood of Electrical Workers, AFL-CIO (Illinois Bell Telephone-Company) and " Supervisors Protec- tive Association (Not a Labor Organization). Case 13-CB-2890 July 14, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On June 29,1970, TrialExaminer Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the -Respondents have engaged in and were engaging in certain unfair labor practices within the meaning of the Act, and recommending that they cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. Thereafter, both `Respondents (hereinafter referred to as Respondent International and Respondent Local) and the Charging. Party (herein referred to as the Association) filed exceptions to the Decision and supporting briefs. The General Counsel has filed a brief in support of the Trial Examiner's Decision, cross-exceptions to the- Trial Examiner's Decision, and an answering brief to the Respondent International's exceptions. On September 2, 1970, the National Labor Rela tions Board, having determined that the instant case raised=issuesof'substantial importance in the adminis- tration of the National Labor Relations Act, _ as amended, ordered that this case be consolidated with one other 1, ,for the purpose of oral argument before the Board. On October -5, 1970, -these cases were argued orally before the Board. 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- i Local Union No. 2150, international Brotherhood of Electrical Workers, AFL-CIO (Wisconsin Electric Power Company), 192 NLRB No. 16, issued this day. 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 is the disposition of this case. 9 Article IL, section l(a) and exhibit A of the 1968-71 and all prior collective-bargaining agreements since 1948 provide in pertinent part:, Article II, section 1 (a) This Agreement covers all those employees of the Company in the group represented by Local Union No. 134, whose titles are included in Exhibit 'W"' .. . s r • • s 8$ mendations of, the Trial Examiner to the extent consistent with our Decision and Order. Illinois Bell Telephone Company, hereinafter re- ferred to as Illinois Bell, or -its- predecessors and Respondent Local have maintained a contractual relationship since 1909.Respondent Local represents Illinois Bell's Chicago -employees in the "Plant Department," including not only journeymen and apprentices employed as PBX-0 installers but also persons employed as "P:B:X. Installation Foremen,", "Building , Cable Foremen;" and, "General Foremen." 3 According, to the terms `of the collective- bargaining agreement all members of the bargaining`" unit, including the above-named a foremen, must become and remain members of Respondent Local.4 At one, time the collective-bargaining agreement between the parties prescribed the monthly wage rates, for the "foremen" listed above. However, in recent agreements no wage, provisions have been included but , the agreement includes a section ° entitled "Working Conditions for General Foremen- and Foremen" which concerns payment for overtime work and for certain, absences. Another contract clause provides that the appointment of general' foremen may not=be made fora period of less than 5S days. Further, other evidence-in the record shows that when Illinois -Belli , recently revised ,its .foremen overtime schedule it requested the concurrence of Respondent Local. Between May 8, 1968, and. September 203 1968, Respondent Local . engaged in an-economic strike, against Illinois Bell. At- the inception of the strike, Illinois Bell informed, the foremen that although it would like, to have them come- to work the decision whether to, work or to respect the strike was a matter of -personal discretion, and that-those.who chose not to work would not be penalized. On the other hand, at a Respondent Local union, meeting just prior to the strike a representative of Respondent Local, -in response to a question, warned that it would be the policy of the- Union- to discipline any, foremen who performed rank-and-file work during' the' strike:' It appears that a large, number of the foremen were present at this meeting- and heard the Union's warning. Thereafter, in^response to'the Respondent Exhibit A Wage Group Number I General Foremen Wage Group Number 2 PBX Installation Foremen Building Cable Foremen 4 Article a section 1 of the 1968-71 and all prior collective-bargaining agreements since 1948 provide in pertinent part: All employees with thirty days or more of employment with the Company, Who , are , represented by LocalUnion No. 134 shall become and remain members of, Local Union 'No. 1-14 in good standing as a condition of employment under this agreement' . 192 NLRB No. 17 86 DECISIONS OF NATIONAL LABOR"RELATIONS BOARD Local's warning," several foremen formed the` Bell Supervisors Protective Association. 'and through. it retained counsel to -protect the rights,of those foremen who chose to work during the strike. .buring the course of the, strike some of the foremen continued to,report'for work,and performed, rank- and-file work, and otheri foremen stayed away from work. ° After -the strike _ ,-Illinois, Bell in no Way- discriminated against The latter,groups; and ,,indeed promoted some of them; to' higher positions. .The ,record .reveals that' Respondent Local thereaf- ter 'carried ,,out its earlier; ,announcement and com- menced -,union proceedings against a number,of foremen, and-imposed,fines of $500 on foremen who performed, struck-,, work and $=1,000 fines against each, of, five foremen-who were instrumental. in forming the Association.Most:.of the fined foremen appealed to the International, which, ,.except where there was procedural irregularity, ,sustained the fines. Both at the proceedings-before the Local andon the appeal to the International' it: was urged by the foremen that the union-security clause , which- compelled them -to remain, members of Respondent, Local was illegal. Illinois'Bell has reimbursed these foremen for the full amount of the levied fines Which theypaid., , ,The Trial'EExaminer concluded that the Respondent Local, by imposing on foremen5 possessing the'power to, adjust? grievances fines for crossing the-Respondent Local's picket line and performing struck work; violated Section 8(b)(1)(B) of ;the Act. He, reasoned that-the, Respondent Local's action, impinged on the Loyalty:, which -Illinois Bell- should be able to expect, from its 'supervisors who are, the, "Employer's repr_e- sentatives" for the -adjustment , of -grievances and therefore, restrained.: and= -coerced Illinois, Bell' in violation, of, Section 8(b)(1)(B) of, the Act.'-T.he Trial Examiner, also-'found that the Respondent Local violated Section 8(b)(l)(B) by fining the supervisor- s The Respondents have excepted to the Trial Examiner's finding that foremen and'general` foremen were "Employer representatives." The record clearly 'shows thatthe^foremen and general foremen-do actually participate in Abe adjustment of grievances and therefore are, for the .purposes of. Sec. 8(bxlXB), '"Employer representatives." The Trial Examiner has, however, refused to rind' that persons occupying the -positions of assistant staff supervisor and;engineer are"Employer representatives" for the purposes of Sec. 8(b )(1)(B). We,agree,with the Trial Examiner..The three assistant staff supervisors occupy nonsupervisory`positions and do not have any contact with the grievance adjustment procedure . It is true that these persons were formerly foremen and expect to be returned to the supervisory hierarchy in a year or two. However, it is clear that the Company has no immediate expectation of having these persons represent it in collective-bargaining and grievance adjustment. Further, the record, although sparse, clearly shows that the two engineers occupy nonsupervisory staff -positions with duties which do not include participation in the collective bargaining and the adjustment of grievances . See Toledo , locals Nos. ,15 P and 272 of the Lithographers, and kPnotoengravers International , Union, AFL CIO (The Toledo-Blade Cjompany', Inc.), NLRB No. 173, enfdty437 F.2d 55 (C.A. 6).- The `^tion e fntgrnationa[ has excepted to the Trial Examiner's finding that it violated See. I:8(b)(1)(11) by ,affirming Local 134's fining of the union member `supervisors for doing struck work. It argues that it should not be held liable for its purely appellate review of the locals fines. The organizers of the 'Association since; although ,not sponsored' by, the Company, it was part^and parcel of the, overall 'attempt, by `'the Respondent., Local to restrain and coerce Illinois Belt in the:-selection of its representatives' for the • adjustment ,,of,,,'grievances. Finally, the Trial Examiner concluded that Respon- dent International also, violated Section8(b)(1)(B) by affirming, on appeal,'the imposition of those fines by the Respondent Locals- . We agree with these findings of the Trial Examiner. The Union in this case,-,as the union in Local Union No. 2150. -International Brotherhood of Electrical Workers. AFL-CIO (Wisconsin Electric Power Com- pany), 192 NLRB. No. 16 issued this day, fined union member supervisors for doing the work, of the rank- and-file union members during the course of a strike against-Illinois Bell. We find n© discernible difference between the two cases, and for the reasonsset forth in that case, we find that,; in the',instant' case, the Union violated Section 8(bX1)(B)v by fining union member supervisors for-doing struck work since-the underlying dispute' giving rise to the fines was between the Union and Illinois Bell rather than. between the; Union and its supervisor-members. The Trial Examiner has also found that the Union violated,, Section 8(b)(1)(B) by fining five supervisors for,organizing the Bell Supervisors Protective Associ- atior Weiagree, for the reasons set,forth in, the Trial Examiner's Decision, that while the Company was not active in the formation of the Association, the creation, of the Association was for the purpose of protecting the' rights of - those supervisors who were fined, unlawfully for doing ,struck work which -fur- thered the interests of the ,Company. Consequently, we conclude, as did the Trial Examiner, that the fining of these, supervisors for forming the Association must be considered as part of the. Union's overall, effort to International asserts- there is a common law principle which provides that an, international union is not 'answerable in damages to a wrongfully suspended, or, expelled member when its only action taken wis ;in=the nature of an appellate review of the locars actions . The two New York common law, cases, People ex rel." Solomon v. Brotherhood of Painters, Decorators . &, Paperhangerr, 218 N.Y. ' 115, 112 ME 725 (1916),- and Schouten v.,Alpine,. 2151, N.Y. 225, 109 N..-244 (1915), cited for this principle are inapposite. }ere unlike those cases , the International affirmed an appeal of fines' which' "on their face" were violative of the Act. Further, those who appealed the fines in this case specifically raised°the,question of whether the -fines were legal' `under the statute. United 'Brotherhood of Carpenters (Endicott Church Furniture Inc.) V. ' N.LRB.,' 286 F.2d 533 (C.A.D.C., 1960), also relied upon by the International, involves, in part, the court's' `refusal` to find an international'union in violation" of the Act because it approved work "rules which could have been applied in a legal manner rather than, as ^ they'were' applied, in an`illegal' manner. Here the fines "on their face" were unlawful ' and this situation was 'argued vigorously' to the` International by the supervisors when they-made the apInathe light of the above, we agree with, the Trial Examiner, for the reasons set forth' in his ' Decision, that in this ' case is was clear' that the International, ' by its review, sustained fines imposed in violation of a Federal law after the validity of these-fines under that law had been placed in issue before it and thereby violated Sec . 8(bXIXB) of the Act. IBEW, LOCAL 134 87 coerce and restrain the Employer in selecting its representatives. 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, as herein amended,7 and orders that the Respondents, International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, International Brotherhood of Electrical Workers, AFL-CIO, their officers, agents, and representatives,, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified: 1. Delete paragraph 2(b) and substitute the follow- ing: "Reimburse the supervisory employees for any and all sums paid by them pursuant to the fines referred to in the preceding paragraph, and advise in writing each supervisor against whom such fines were levied that the, fines have been rescinded and that the records thereof have been expunged; provided: that the action required in this subparagraph shall be primarily required of the Respondent Local, and shall be required, of Respondent International only to the extent that Respondent Local shall fail to give the written notices and pay the sums herein required." 2. Substitute the attached notice for the Trial Examiner's notice. MEMBER FANNING, dissenting: At issue herein is whether restraints imposed on supervisors by their union for their performance of duties not related to their supervisory functions constitute "restraint and coercion" of their employers within the meaning of Section 8(b)(1)(B). The relevant facts, may be summarized briefly as follows: Prior to a strike called by Respondent Union, a membership meeting was held by Respondent at which members who held supervisory positions were advised that they would be subject to union discipline if they performed rank-and-file work during the strike. The Employer informed the supervisor-mem- bers that it wished to have them come to work to perform rank-and-file work, but that the'decision to work was left to their discretion and could be exercised without fear of penalty if they chose not to ' It is not the purpose of the Board to become involved in the private arrangements made between individual supervisors and Illinois Bell about how the union-imposed fines were to be paid. It is clear that the fines were assessed against the supervisors individually and therefore we shall follow our customary practice and direct that the Union reimburse the supervisors rather than Illinois 'Bell 8 The cases cited by the majority in support of their decision all involve fines of supervisors imposed by their union because of the manner in which they discharged such functions . I agree with the Trial Examiner that they are distinguishable from the instant case. With respect to the Trial Examiner's view that the decision in the first A. S. Horner case (176 NLRB work. During the course of,the strike some supervisor- members performed rank-and-file work; others re- frained from working. After the strike, the ,Employer imposed no penalties,for failure to work and, in fact, promoted some supervisors who had refused to-work to higher positions. Respondent, after appropriate proceedings, ,imposed fines of $500 on- supervisor- members who performed rank-and-file, work-during the strike. Section 8(bXl)(B) makes it an unfair labor practice for a labor organization to "restrain or coerce ... an employer in the selection ofhis representatives for the purposes of collective bargaining or the adjustment of grievances." Thus, the , prohibited practice - is the restraint or coercion of the employer, not in any general sense, but solely in the :selection of his representatives-not just any, representative-but only those who perform collective-bargaining, func- tions or engage in the settlementpf grievances On the facts of this case, it is clear that the Employer felt no restraint or coercion from the Union's ac on; it left the decision whether to work entirely to th^discretion of the individual supervisors, and promoted some who had refused to work. Nevertheless, the law has developed so as to include within the statutory concept of restraint and coercion of an employer, union disciplinary actions 'which'in fact are directed towards compelling 4, supervisor's allegiance to his union rather than to his employer with respect to his performance of collective bargaining or -grievance- adjustment _ functions or his performance of duties which are directly related to or which may be said reasonably to grow out of his performance of such functions.8 However, to -constitute restraint or coercion of the employer in the statutory sense, it is necessary that the restraints imposed on the supervisor must be re- straints on his actions in such matters, not on his actions on other matters. For it is only in the denial to the employer of the unrestrained performance of ' such functions by one whom he has selected for that purpose that the employer can be said to be coerced in the selection of a representative to act in such matters. As the Board said in the San Francisco-Oakland Mailers case, "Realistically, the Employer would have No. 105) compels the result herein. ! believe he misconceives the role of the fined supervisor. There the, supervisor was fined because he gave an antiunion speech during an election campaign . Though the injury to legitimate union objectives is comparable to that flowing from the supervisor's performance of struck work in this case, the supervisor was performing a normal supervisory ,function of'informing employees of how management preferred to deal with , employee grievances and complaints-a system of direct dealing with employees rather than dealing with them through a representative. So viewed, the case may come within the San Francisco-Oakland Mailers''decision. However that may be, I did not participate in Horner and do not regard myself as bound by its holding. 88 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD to replace its foremen, or face de facto nonrepresenta- tioni 'by 'them- ." s If the restraints imposed upon the supervisor because of his actions in matters' unrelated to ° his general` supervisory'- functions there is no restraint- 'upon the employer- with respect to' his ,selection of representatives to perform such-functions though `he may of course be'restrained in the selection of repreisentatives'to'perform other functions. The Board has in fact recognized this distinction as valid in the Syd,Gougli':case10 where itfoUndno violation of Section.-$(b)(l)(B)-in a fine of- a supervisor (who had grievance-adjustment responsibilities) for his failure ,to register - at .-the union's-hiring hall. That decision necessarily stands for,the`proposition that a union- imposed restraint upon a supervisor because of matters, unconnected with his performance of collec-' tive-bargaining functions does not restrain orcoerce him yin` the performance of "the latter functions and, that being the case, there is no restraint or coercion of the'employer in the statutory sense. ' Here the supervisors ' were- not fined because- they gave directions to' the work ' force, interpreted the collective-bargaining agreement, adjusted: grievances, or performed;any, other function-- generally;related to supervisory ,activities, in a manner in disfavor-with the Respondent. Union. They were fined,, because they performed production, work in the bargaining' unit during a strike. Their Employer sought to use them, not in the direction of the work of employees who had not gone on strike or of replacements` for strikers, but to replace. the strikers' themselves. In short, he assigned them" to work as employees within the meaning of Section 2(3)' of the Act, not as supervisors within the meaning of Section 2(11) of the Act. Asthe Supreme` Court has held, fine 1s,of-members who act as strikebreakers during a strike do, not "restrain or coerce", them within-the meaning of Section 8(b)(1) of the ' Actai If the fine ' of an employee-member for engaging in strikebreaking does not restrain or coerce him within" themeaning of Section8(b)(1), I cannot see how-the same restraint` imposed upon a supervi- sor-member for the same activity can be broadened into restraint and `coercion of the employer within the meaning' of -that ' section. All the restraint does,' if successful, is to `deny the employer the' use of the supervisor is 'A production worker during the strike.12 My colleagues argue, however, that, During the strike of.the Union,-the Employ- er clearly considered" its supervisors among those it e Sad Francisco-Oakland Mailers' Union Local No. ',18, - International Typographical Union (Northwest Publications), 172 NLRB No. 252. 1e Local " Union No. 45`3, `Brotthethood of Painters, Decorators and Paperhangers of Anienca AFL-CIO (Syd Gough and Sons, Inc.) 183 `NLRB No.24. 11 N.L.R.B. v. Allis Chalmers Manufocting Co., 388 U.S. 175. 12 If &., Employer had requested his supervisors to perform their normal suprvisory functions in the direction of replacements or other could' depend on during this period. The `Union's fining of the supervisors who were" acting in the Employer's interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors. Thus,' the-fines, if found'to'be lawful, Would not permit the Union to drive' a wedge- between a supervisor and ^ the Employer," thus interfering- with-the performance of the duties the ' Employer had a right ,to espect the supervisor to perform.-The Employer could no longer count on `th'e complete ` and undivided loyalty of 'those it had selected to act as its collective-bargaining agents or' to act for -it _in adjusting grievances. Moreover, such fines clearly interfere with the Employer's control over its own representatives.13 The argument would be 'more, appropriate if Section 8(b)('1) 'also made it, an unfair labor practice for a union to induce or require supervisors to align themselves with the union on anymatters. - However, the section 'd'oes not 'contain such an unfair' labor practice."Moreover,t though the 1947 amendments did exclude supervisors from the defini- tion of employee 14' and declared that "no employer subject ' to this Act shall" be compelled to'- deem individuals defined herein, as supervisors as employ- ees for the purpose of any law,'either national or local, relating to collective bargaining," 15 it also declared that "Nothing herein shall prohibit any individual employed as a supervisor from becoming or remain- ing a member of a labor organization. '16 The effect of these various provisions is `a denial of any statutory protection to supervisors either in 'their' joining' or assisting a union or in their refraining . from such activities. It leaves the employer free to prohibit such activities or to permit them, to discharge supervisors for engaging in such activities if he'desires,Congress gave,employers this freedom to deal with supervisors ,precisely because, of the problem of " "divided loyalties." 17 It stopped short, however, of making it an unfair labor practice for a-labor organization to organize supervisors or to admit them to_membership. The only limitation it placed on unions in'this regard is the narrow prohibition against restraining or coercing employers in the selection 'Of representatives (including , supervisors, but not limited to supervisors) for purposes of collective bargaining or the"- adjust-ment. of grievances. My colleagues, in,effect, construe this as abill of rights freeing- supervisors from, any workers during the ,stnke, we would have a different situation. 13 Wisconsin Electric Power Co., 192 NLRB No. 16, incorporated' by reference in the majority-opinion herein. 14 Labor Management Relations Act of 1947, 61 Stat. 136,'29 U.S.C. 152 (3). 15 29 U.S.C. 164 (a). is Ibid' 17 S. Rept.'105 on S. 1126, pp. 3-5, I Leg. Hist. 409-411 (1'947).` IBEW, LOCAL 134 89 restraint or coercion by a labor organization, even where the effect is not to deny their employer the uncoerced performance of collective -bargaining or grievance-adjustment functions. This construction goes far beyond that intended by Congress" as disclosed by the relevant legislative history of the section: As first proposed in S. 1126, the section prohibited a labor organization from interfer- ing with, as well as restraining or coercing, an employer in the selection of his bargaining representa- tives. Senate Report 105 on S. 1126, stated Section 8(b)(1): This proscribes unions and their agents from interfering with, restraining, or coerc- ing employers in, the selection of their representa- tives for the purposes, of collective bargaining or the settlement of grievances. Thus, a union or its responsible .agents could not, without violating the law, coerce an.employer into joining or resigning from an employer association, which negotiates labor contracts on behalf of its members; also, this subsection would not permit a union to dictate who shall represent an employer in the settlement of employee grievances, or to compel the removal of a personnel director or supervisor who has been delegated the-function of settling grievances.18 This same refrain-the prohibition of forcing employ- ers into or out of employer associations or of compelling them to ,remove or discharge supervisors or personnel directors who engage in the settlement of grievances-is repeated in the remarks of .Senator Taft and , other Senators during floor debate on the bill.19 Although no Senator addressed himself to the preciseuquestion -presented in this and the other cases cited by the majority, namely, the conditions under which coercion of the representative becomes or constitutes; coercion of the employer in the selection of the representative, I believe the legislative history demonstrates that unless the union-imposed restraint on a supervisor is imposed because of his discharge of duties involved in the performance of the statutorily described functions or in the discharge ' of duties closely related thereto, the restraint or coercion is not proscribed by the section. At most, restraint imposed on the supervisor because of his performance of other functions constitutes an interference with the employ- er's selection of representatives for the performance of collective-bargaining or the adjustment of grievances functions assigned to such representatives, as indeed the majority opinion finally concludes with respect to the fines in this case. However, the words "interfere with" were eliminated from the section by an amendment offered by Senator Ives because of their far-reaching impact 20 I cannot agree to the reinser- tion of those words by decisional interpretation. In summaAy, because the fines involved herein were not imposed upon the supervisors because of the manner in which they performed duties related to their collective-bargaining or grievance-adjustment functions, but were imposed because of their violation of an unrelated union rule proscribing members of the union from performing struck work during a strike, I find that the supervisors were not restrained or coerced in the performance of the statutorily protect- ed functions. It follows that the Employer was not restrained or coerced in the selection of representa- tives to perform such functions. Accordingly I would dismiss the complaint. is At p. 21, I Leg. Hist. 427 (1947). 19 93 Cong. Rec. 3953 (II Leg. Hist. 1012), 93 Cong. Rec. 4266 (II Leg. Hist. 1077), 93 Cong.- Rec. 5106 (II Leg. Hist. 1454). 20 93 Cong. Rec. 4398 (II Leg. Mist. 1138-39). APPENDIX NOTICE To MEMBERS NATIONAL LABOR RELATIONS BOARD POSTED BY ORDER OF THE An Agency of the United. States Government WE WILL NOT - fine or otherwise discipline supervisory employees of Illinois Bell Telephone Company (such as, for example, P.B.X. installa- tion foremen) for engaging in productive work during a strike or for participating in any organiza- tion designed to counsel and protect such supervi- sors in the event they work during a strike. WE WILL NOT in any like or related manner restrain or coerce Illinois Bell Telephone Compa- ny in the selection of its representatives for the purposes of collective bargaining or the adjust- ment of grievances. WE WILL rescind, and expunge from our records, the fines levied against supervisory employees for working during the 1968 strike or for having formed the Bell Supervisors Protective Association. WE WILL refund to the Illinois Bell Telephone Company the sums it has paid pursuant to the fines we levied against supervisors in connection with the 1968 strike. WE WILL advise in writing each of the supervi- sors filled in connection with the 1968 strike that his fine has been rescinded and expunged, and-that we will reimburse each the sums paid pursuant to those fines. DECISIONS OF NATIONAL LABOR RELATIONS BOARD LocAL 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO (Labor Organization) Dated By (Representative) (Title) INTERNATIONAL BROTHERHOOD OF ELECTRICAL. WORKERS, AFL-CIO ' (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted, for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with, its provisions 'may be directed to,, the Board's Office, Room 881, Everett McKinley Dirksen Senate Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7575. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Chicago, Illinois, from March 31 through April 3, 1970,_ pursuant ` to a charge filed June 10, 1969, and a complaint issued December 31, 1969, arises out of certain fines levied by the Respondent Local and confirmed by the parent, Respondent International, ' upon certain of their members for either (a) continuing to perform work for their Employer during the course of `the Local Union 's strike against that Employer or (b) forming and.becoming officers in an association (the Charging Party herein), the purpose of which was to furnish assistance and counsel to foremen who worked during the strike. The primary issue in the case is whether the imposition of these fines violated Section 8(b)(IXB) of the Act, in view of the fact that in each instance the person fined was employed in what is allegedly a supervisory capacity, and allegedly represented his Employer in the adjustment of grievances . Respondents, uding documents submitted after the hearing, which are hereby .L= as G.C. Exhs. 22, 23, and 24, and Local 134s Exhs. 14A through I and 1SA and B, respectively. denying that the persons fined were supervisors or that they adjusted grievances, further contend that in any event, under the circumstances of this case, the-fines did not as a matter of law involve the Respondents in ' violation , of Section 8(bxl)(B). Upon the entire record,1 and after due consideration of the briefs filed by General Counsel - and 'each of the Respondents, and of the "Statement" filedon behalf of the Charging Party,2 I make the following: ' ` FINDINGS OF FACT 1. TILE BUSINESS OF THE EMPLOYER, AND THE LABOR ORGANIZATIONS INVOLVED Illinois Bell Telephone Company, herein called the Company, an Illinois corporation with headquarters in Chicago, renders local and long distance telephone service as part of a nationwide telephone , system, and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent Local 134, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Local or the Union, and its parent organization, the Respondent . International, are labor organizations within the meaning of Section_ 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Chronology For many, years, long antedating any Federal labor legislation, the Company (or its predecessor) and the Local have had-contractual relations, pursuant to which the Local represented the Company's Chicago employees for purposes of collective bargaining. The bargaining unit ' embraced employees in the "Plant Department," and, included, inter alia, not only journeymen and apprentices engaged, as P.B.X. installers but also persons employed, as "P.B.X. Installation Foremen," "Building Cable Foremen," "Test Center Foremen," and "General Foremen." The powers and duties of these "foremen" and the question whether they are "supervisors" within the meaning of the Act are among the litigated issues in this case . The contract provides that all members of the bargaining unit must become and remain members of the Local. As recently as 1959 the contracts in effect between the Local and the Company prescribed monthly wage rates for the various "foremen" listed above. Since May 1959 the contracts, did not provide wage rates for those foremen, but did contain a section headed "Working Conditions for General Foremen and Foremen." This provision concerned payment for overtime work and for certain absences, and contained a clause stating that an appointment as general foreman could not be made for a period of less than 5 days. Other provisions of the contract, such as, for example, that dealing with vacations, appear applicable to the foremen as well as to journeymen employees, - Between May 8, 1968, and September 20, 1968, the Local 2 Respondents' motion to strike a phrase from Charging Party's Statement as "scandalous and/or impertinent" is granted as Charging Party consented thereto. IBEW, LOCAL 134 91 was engaged in an economic strike against the Employer. At the inception of the strike the Company informed the foremen referred to above that the Company would like to have them come to work, but that the decision whether to work or to respect - the strike was a matter left to the discretion of each individual foreman, and, that those who refrained from working during the strike could resume work when it ended without being penalized. The- Local held a meeting just before the-strike at which the foremen were advised that they would be subject to union discipline if they performed - rank-and-file work during the strike. A number of foremen thereupon retained counsel and formed an association (the Charging Party, hereinafter referred to as the Association) to protect-foremen who worked during the strike. During the course of the strike some of the foremen performed rank-and-file work, and some stayed out of work. After the strike the Company in no way discriminat- ed against the latter group; and indeed promoted some of them to higher positions. The Local,conducted proceedings against a number of foremen;and imposed fines of $500 on foremen who performed rank-and-file work during the strike and of $1000 each against -the five foremen who were instrumental in forming the Association. Most of the fined foremen appealed to the International, which in most instances sustained, the action of the Local. During the intraunion proceedings, counsel for the Association assisted, the foremen in their defense, in which the accused foremen urged that they were supervisors, that the strike was not in their behalf, that the Local was not ;seeking to bargain for them, and that the union security clause which compelled their membership in the Local was illegal., The Local has commenced suit in the Illinois courts to collect some-of the fines,-Insofar as any of the foremen have paid any part of the fines, the Company has reimbursed them, B. The Status of the Foremen as "Supervisors" Within the Meaning of the Act, and Their Powers With Respect to the Adjustment of Grievances As noted above, most of the foremen involved in this case were employed as P.B.X. installation foremen, or in work of similar character such as building cable foremen , or general foremen. The record establishes that such foremen were in charge of crews of from 8 to 12 men, that they had power to grant time off to their men, that they scheduled overtime, selected the men who would work overtime, disciplined for tardiness by suspending men or docking their pay, and effectively recommended men for promotion or discharge. Although the Union argues that the testimony establishing these powers was of a -vague and general nature, it called no witnesses , to deny that the -foremen possessed the powers which -the company representatives, called as General Counsel's witnesses,. ascribed- to them.3 On this record I find that the foremen in question possessed one or more of the powers set forth in Section 2(11) "of' the Act and are supervisors within the meaning of the Act. See, e.g., S General Counsel expressed a readiness to interrogate, individual foremen as to their powers and duties . The Trial Examiner prevented him from doing so on the ground that such testimony would be cumulative, but expressly invited counsel for the Local to cross-examine such foremen on NLRB. v. Henry Colder Co., 416 F.2d 750, 754, fn. 3 (C.A. 7,1969). As to the, authority of these foremen to adjust grievances, the contract recites with respect to the grievance procedure that "The employee or his Steward shall first bring the grievance to his Foreman, or other first line supervisor," and that "If the grievance is not settled, it shall then be taken up with the succeeding appropriate levels of supervision .... " The contract thus unequivocally provides that the foremen here in question may adjust grievances. Moreover, the testimony adduced by General Counsel establishes that the foremen may-adjust grievances arising out of disputes over whether an employee should-be paid for certain hours he worked after checking out, or over working conditions (such as excessively cold air-condition- ing), or over disciplinary ,action taken by the foreman, or over overtime allocations he had made. Indeed, the testimony shows that most of the- grievances are adjusted informally by the foremen, either by their making the requested adjustment or by their persuading, the 'union representative that the grievance lacks - merit.' Manifestly, these matters are usually of minor importance, and major issues go on to later stages of the grievance procedure. Nevertheless, I am satisfied on this record that the foremen in question do' have power to adjust, and do adjust, grievances. Again the Union's suggestion that the testimony is vague and general is 'unavailing in the light of the contractual language and -the Union's failure to' adduce testimony which would diminish the force of the evidence presented by General Counsel. - The foregoing discussion of the powers and duties of the foremen is applicable to all those named in the complaint as- having ' been fined except for three men identified in the complaint as "assistant staff supervisor," -andtwo identified as "engineer." The record establishes that an "engineer" has no supervisory'-authority and that an "assistant staff supervisor" has no "occasion to participate in 'the adjust- ment of grievances, and normally has no people working for him. The record further establishes that it is a common practice for the Company to transfer a man from -a job, as P.B.X.-foreman to that of engineer andback again , and that "assistant staff supervisors" are selectedfrom the ranks of P.B.X. foremen, serve I or 2 years as assistant staff supervisors, and then -either return to their jobs as -P.B.X. foremen or are promoted to district installation- superin- tendents (a• supervisory position - with power to adjust grievances). - C. Board Decisions Concerning a Union's Power To Fine Supervisory Employees. A series of recent Board decisions, several of which are now awaiting judicial review, - hold that under --the circumstances-there presented a labor organization -violates Section 8(bX1XB) of the Act (i.e., restrains or coerces an employer in the selection of his representatives for the purposes , of collective bargaining or the adjustment of grievances) when it fines supervisory ,employees who are that issue„ and also to put on testimony on that issue as. part of Respondents case. No such cross-examination was attempted and the Local adduced no testimony on this issue as part of its case. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union members. Insofar as Respondents attack the validity of any or all of these holdings, I must, of course, refer them to' higher authority, administrative and judicial, as I am required, to'follow these precedents in the present state of the law. Insofar as Respondents urge that the instant case is distinguishable, however, it becomes important to set forth, as I 'understand it,.what the Board has, heretofore held this area, The lead case- apparently is San , Francisco-Oakland, Mailers' Union No., 18, , international Typographical Union (Northwest Publications, Inc.),, 172 NLRB No. 252. In, that case the union fined certain foremen-members4 because of alleged violations of the contract between the employer and the union. The union also threatened similar action against foremen as, a result of "disagreements. involving contract interpretations or grievance adjustment" ,,The Board's finding of, violation in that case sheds,iittle light on the problem. here,- for in- that case , the conduct for which.the foremen were fined was directly related to'their'role,asthe employer's.,representative in the adjustment of grievances and in collective, bargaining (which )ncludes, 'of course,, the administration of the contract; see Conley v., Gibson, 355 U.S.41,,46).5 The next case in this area to come .before the-,Board was 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.Jn that,case, as here, thee foremen involved were requiredto'bemembers of the union which fined them. The -fines, in. that case were imposed for alleged violations of .the contract, in that the supervisors worked on production during-a-strike, thereby violating two, contractual, provisions, one limiting the amount,of production a supervisor can, do, and the other prescribing a • minimum crew before any work- can be performed.- 'he Board in that case held that,the union by imposing, the fines violated Section 8(b)(1)(B): The-,case may be distinguishable "from that now before us, for although in'bpth cases ,the supervisors worked while their union was out on strike,, the basis of.the Board's.holding<in the Toledo pape appears , to be that the supervisors ,were involved in ;what their, union claimed to be violations of the contract and no such contention is urged here.-.,,,, The 'third case yin this, area to reach the Board was New Mexico District Council of Carpenters and Joiners, of America; United Brotherhood of Carpenters- and Joiners of America (A. S. Horner, Inc.). 176 NLRB No. 105. In this case one Wilson, a supervisor and a union member, signed a letter,, also signed by the company president, surging the employees to vote against the union in a representation election. The Board held that by imposing a fine on him for this conduct -the'uniond violated Section 8(bxl)(B). Mani- festly =Wilson"s act in urging' the employees to `vote against the, union , was . not itself directly-, related to contract interpretation, the adjustment of grievances,,orrany subject 4 There, as here, the contract required the foremen_etobe members of the union. The Board in the Oakland Mailers case and in'several subsequent cases distinguished N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, on which Respondents place their principal reliance. The Board appears to' be of the view that the fining of supervisors stands on an entirelydifferent footing from the fining of rank-and4ile members. 'I note that counsel for the International suggests that I not follow Blackhawk Tanning Co, Inc., of ; collective bargaining. However, the Trial Examiner's decision, adopted by the Board, states: _ - By preferring the charges and imposing a fine upon Wilson, Respondents were attempting to force, the Company to change its selected representative, for, the purposes of collective bargaining and the adjustment of grievances from a : representative of management's viewpoint, to a person subservient -- to the ' will , , of Respondents. The Council itself explained it was fining or bringing , charges -against Wilson because he placed the Company's: interests above,,those , of Respondents. Sizemore ,in his letter to the General Executive Board of the United Brotherhood stated, that ^ Superintendent Wilson's loyalty "must be'to the Union." It is-clear that Respondents preferred charges against and fined Wilson ' as, a means of disciplining him because he placed the interests of the Company above those of Respondents. This was obviously coercion against the Company , because' it -would tend, to require the Company -to retain as -representatives for collective bargaining-and adjustment of-grievances -only individu- als -^ who were subservient to Respondents: - That, the Company and -Respondents had no laboir, agreement does not detract from this finding. Wilson couldandAid adjust grievances. Respondents were forbidden by the Act to dictate to the Company whom it should select to adjust employee grievances. , Respondents' actions "were designed to change the [Company's] representa- tives from persons representing the 'viewpoint of management to persons' responsive or subservient to Respondents' will. In - enacting :; Section , 8(b)(1)(B) `Congress' sought to - prevent the 'very" evil involved herein-union interference ;with an employer's -control over its'"own - representatives:-. ,[Citation] That Respondent[s] may have sought the , substitution of attitudes rather than persons, and may have exerted [their] pressure upon the [Company] by indirect rather than direct means, cannot- alter the' ultimate fact that pressure " vas'exerted' here for thepurpose of interfering with the [Company's ] control vover'its representatives. Realistically, the [Company ]would have to ,replace its '[superintendents] of face de facto nonrepresentation by them." San Francisco=Oakland Mailers' Anion' No. 18, 172NLRE Rio. 252. By -fining Wilson, Respondents did .so because he chose to act as a' management representative, which he was. - In a' subsequent' case involving the saine,eniployer, and the same union, reportedatA 77 NLRB No.,764;the, Board again found a violation of Section 8(bxl)(B). In this' case the union fined a supervisor for continuing to work for an employer who was- not under contract with the union. This 178 NLRB No. 25, because the decision was,by a 3-2 majority and "As a realistic matter, it must be recognized that one of the members joining in the 'lead' opinion is no longer on the "Board and that the term of the other will be up in two months." I decline to engage in the speculation of counsel, but I call his 'attention to the' dangerous consequences of his thinking 'as applied to'" case,for only two members of the 5-4 majority in Allis-Chalmers are still on 'the Court. IBEW, LOCAL 134 case is plainly distinguishable from, that before us, as the` union's position' in the second Horner case was that `the supervisor must leave his employment altogether. Likewise distinguishable is still another New Mexico case, Sheet Metal Workers' International Association, Local Union-`49, AFL-CIO (,General Metal Products, Inc.), 178 NLRB No.. 24, where, the. Board found ' a violation of Section 8(b)(I)(B) in- the; union's.fining,of a supervisor for performing work in violation of the contract between the union and the employer. ,The holding in that: case that the union "attempted by itsv internal disciplinary procedure to circumvent the contractual procedures for settlement between the parties of a contractual 'grievance" does not apply to the instant case. Similarly two recent Board holdings in this area, Dallas Mailers Union, Local No. 143, and International Mailers Union (Dow Jones Co.), 181 NLRB No._49, and Houston Typographical Union No 87 (Houston-, Shopping News Co.), `182. NLRB, No. 91, are distinguishable. In the Dallas,, case the union expelled a supervisor- because. of, an order, he gave a nonsupervisory employee, which the, latter,charged was-discriminatory and improperly, motivated.- - Manifestly,. the- supervisor was exercising his supervisory authority, and as the Board stated, "His -expulsion will also- be a clear signal to other foremen,,who are, under the. established practice, members of the Union, that they could be subject to similar discipline if they administer, the contract in a manner so as to incur the Union's displeasure.'' In the, Houston case the union fined a supervisor=member for what it regarded as his failure to observe hiring procedures required, under the contract. ,The fine,"in the- Board's view, was designed to make A he supervisor "more -amenable to [the union's] interpretation of how the contract should be-applied ..." The 'rationale in the Dallas and Houston cases has no application here. Finally, m,Local Union No. 453, Brotherhood of Painters, etc. (Syd Gough & Sons, Inc.), 183 NLRB No. 24, the Board affirmed Trial Examiner Sherman's dismissal of a,--,com- plaint which alleged 'that it union violated Section 8(bx l)(B) by fining a supervisor for'wo king at a particular jobsite without notice to the union. The Trial Examiner in that case noted that the only purpose of the "notice" requirement was to facilitate-the union's administration of its hiring hall and the collection of certain assessments. He concluded that "unless the Board-is prepared to•say that the fining of a supervisor by a union for whatever reason, including,- for: example, late payment of dues or disruption of a union_meeting, tends to. impair his effectiveness, as an employer representative, , it_ is ^ , not clear how the fine imposed.., . for alleged noncompliance with Respondent's registration, requirement may ' be held to' violate Section 8(b)(1)(B)." The -Board in affirming the dismissal did not pass upon the Trial Examiner's analysis of the other cases in, this area but contented itself with rejecting,, as unsupported by the evidence, General Counsel's contention in that case that the union's motivation was'to 'retaliate against the employer forthe latter's filing of charges against the union., So far as here relevant the Gough case appears to stand for the proposition that the mere fining' of a supervisor does not establish a per se violation of the Act. 93 D. Conclusions With Respect to the, Legality- of the Fines As the discussion in the foregoing section indicates, most of the Board's holdings in this aArea: concern, discipline which a union directed At supervisory employees because of action by the , supervisor-' directly related to matters-, of contract construction or the discharge of supervisory functions. Those cases are readily distinguishable here where the action for which the ,supervisors were fined bore no direct relation to their work as supervisors or to any interpretation of the contract. As an originalpropQsit.ion I would be, inclined to, construe Section 8(b)(1XB), as interdicting union fines of supervisors only when the conduct for, which the supervisor was fined bore, some relation ,to his sole as a, representative of',inanagement in "collective bargaining or the, adjustment • of, grievances," to quote Section 8(bxl)(B). In the instant,case the,question confronting the ,supervisors whether,- work or to respect the strike call of their Union-was in,no way related to-those subjects. Moreover, ,the Company-,itself had made it clear that it was not demandin& that its supervisors work during the strike. On the contrary, the , party expressly left . the decision-up to,each individual supervisor, with specific assurances that no-reprisal would, be visited on those who chose not to-work. -After the strike the Company promoted some of the supervisors,, who had not ,worked during the strike. I therefore ,find some difficulty in, concluding that the Company was restrained or coerced by the .,Union's action in fining the supervisors who worked, or even in finding that the 'U on's action ha ^-anynatural or, inherent tendency to,restra fm or coerce the Company.. (Undoubtedly the fines tended to restrain or coerce the supervisors, but that is not the violation- charged. Also,, it is no part- of this case to decide whether the fines were lawful or proper under the Union's constitution.or under any provision of statute or common law other than Section 8(b)(IXB) of this Act.) The Board, in the first Horner case (176 NLRB No. 105), however, did ;not limit the scope of Section 8(b)(1)(B) along the lines I have indicated. In that case the supervisor was fined because he signed a letter urging the, employees to vote against the union. Such conduct on his part, bore no discernible relationship to his role as a representative of management in collective bargaining or the adjustment,of grievances. Indeed, ,the conduct of the ;supervisors, in, the instant rase in working during. the strike seems far more directly related to furthering the legitimate aims of management, and far more directly related to the normal obligations of a supervisor, than the conduct, of ' the supervisor in Horner. But the Board in that case found that the union by fining the-, supervisor violated Section 8(b)(l)(B), adopting without comment the Trial 'Examiner's observations quoted--above. The respect which,-I -am compelled to pay the, Board's holding in that. case requires me to -find a- similar violation here. See' St. Louis Typographical Union No. 8, (Graphic Arts Assn. of St. Louis), 149 NLRB 750, 758-759. What has been said above ' deals with the fines for performing work-during the strike. Five men were fined for organizing the Bell Supervisors Protective Association. They undertook this action "on their own," and it did not 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directly redound to the benefit of the Company. It may well be argued that to find a violation of Section 8(bX1XB) in these five instances is to go even beyond the first Horner case, where the 'supervisor •affixed his signature to a letter also signed by a company'official, andurged employees to reject a'union with which the company might have had to bargain: Not even Horner goes so far as to hold'that any fine a,' union,- imposed on a supervisor violates ' Section 8(b)(JXB), and the recent Gough decision appears to foreclose any such argument. If, to use the `hypothetical case `I suggested at the hearing, the union fined supervisors for resigning from the union's bowling league and forming one of their own, I would have some difficulty in discerning an infringement of the protection the statute gives employers in Section 8(bXl)(B). In-the actual case before us, however, the Bell `Supervisors Protective Association arose out of relations among the supervisors, the Company, and the 'Union, and not (as in the bowling example) out of relations solely between the supervisors and the Union. The Association was formed because the' Union threatened to fine ' supervisors for working during the strike, and to Protect, or, aid those who desired to work. As the Association had its inception as a,-response to what Where found to 'be illegal union conduct, it is not unreasonable to extend the finding of illegality to cover the Union's fines relating`to the Association. Although the Company was not a party to'the creation of the Association, the relationship of the supervisors to the Company underlies the creation of the Association just as it underlies the action of the supervisors in working during the strike. To `separate the two sets of finesswould behighly legalistic and unrealistic, it practice on which the Board has properly frowned on past occasions, prefering to' treat situations "as awhole." See, e.g., Curtis Mathes Mfg., Co., 145, NLRB 473, 475-476 overruling the finding -at 482; Pittsburgh Reflector Company, 177 NLRB No. 57. Moreover, as I understand the hospitable scope which the Board gave Section 8(bXl)(B) in the first Horner case, a union violates that section when it fines a supervisor for any conduct in which the supervisor engages ' which' -tends 'to -further the interests of the employer.e ' Here the Association tended to further the Employer's - interest by helping protect supervisors who desired to work during the strike. There-remains for consideration the case of the five men (two engineers and three assistant staff supervisors) : who apparently-had been and would again be in the supervisory category but who were removed therefrom--perhaps for as long as:1 or -2 years-and were not "supervisors" at the time the Union fined them (and presumably at the time of - the strike) and, had nothing whatsoever to do with "collective bargaining or the adjustment of grievances." General Counsel relies on the language approved by the Board in Toledo Blade, supra, finding a violation when the person disciplined,was merely a "natural, possible, future choice of the employer to handle its grievances as =occasion might arise... ,." But in that case those words were applied to a a The narrow holding in the Gough case falls within this generalization, as the supervisor's failure to register was in no sense in the employers interest. r I am aware ' of the general rule, as stated at 74 A.L.R.2d 783 at 800, that "where the only action taken by the national union, was in the nature of an appellate review of, the local's action, the national union has been supervisor who had "present substantial other supervisory authority and regular contact , with the, employees under him .... " The Company may well feel that it desires to reimburse these , nonsupervisors-,who were fined by the Union, and the legality of the fines may, be questioned in other proceedings and on other grounds. On the narrow issue before me, however, l , cannot find any restraint- or coercion of the Company in its selection of representatives for collective bargaining or adjustment of grievances in the Union's fining -of ,nonsupervisors ^who_ are=not `concerned with those subjects. To, be 'sure; if they, are thereafter returned to supervisory positions with power .to adjust grievances they will have felt the. force of , the Union's authority. The same, of course, would be true of any employee who had' been fined by the Union and „later achieved supervisory status. But, under the views heretofore expressed, the supervisors would be protected against union fines for strikebreaking as supervisors, and'IIsee no need, so far as the statutory purposes are concerned, to extend the protection at other times. In any event I find that the Union is not violating Section 8(bXIXB) insofar as it fines persons who are not, at the time of the conduct for which they are fined, supervisory employees, ,and are not, and in their then existing jobs cannot be, engaged in collective bargaining,, or in the adjustment of grievances. The first Horner case may require me to stretch .the, statute beyond what I would otherwise ,consider the breaking point, but it hardly justifies ignoring the statute altogether. Finally, insofar as a vice president of the International or its president affirmed the action°of°the Local in imposing fines heretofore found to have , been. illegally levied,- the International ratified the action of the Local, and therefore likewise violated Section 8(bXl)(B):,This result follows even in those cases where the International, did not pass. -the merits but found the appeal procedurally deficient,Rfor the, International should have, held all, the fines to be illegally imposed.? As the record shows that the International has not collected or attempted to collect any fines, -its liability to reimburse the fined employees - should be considered secondary to- that of the, primary violator, the, Local. Makela Welding Inc., 159 NLRB-964, 973, enfd. 387 F.2d 40 (C.A. 6, 1968); see also the Lexington Electric case there cited. E. Procedural RWings The, Local subpenaed certain records of the Association and certain notes or memoranda from the. Company. I granted motions to revoke, both subpenas forreasons'set forth in the transcript and the pertinent, exhibits and.I see no need to repeat those reasons here. At ' the, conclusion of the hearing the, Charging Party filed a document entitled a motion "for Amendment to,Conform Pleadings to Proof with-=Respect to the Union Shop Contract, Proved-in this Case." Counsel,for the Charging Party disclaimed any. power on its part to amend the held not answerable in damages to a wrongfully suspended or expelled member." In my judgment this general principle should not govern a case where the International, by its review, sustains a 'fine imposed in violation of a federal, law after the validity of that fine under that-law is placed in issue before it. IBEW, LOCAL 134 complaint, but pointed out that such power:resides in the Trial- Examiner and in -the Board, citing- Frito Company v. N.L.R.B., 33( F.2d 458 (C.A. 9,'1964). The avowed purpose of the amendment was to challenge the legality of the contract between,the Company' and _ the Local on the ground that the unit is inappropriate because it includes supervisors, and that the union-security clause is therefore illegal for failure to, meet the requirement of Section 8(aX3)(i). This was the precise contention advanced by the same Charging Party in Case 13-CA-8451, in which the General Counsel sustained the refusal of the Regional Director to issue a complaint. In a posthearing memoran dim in support of, the motion-",, the Charging Party pointed out that all the facts necessary to sustain its allegation, (the provisions of the contract and the supervisory status of the foremen included in the unit) - were established on this record. I denied the motion to amend. Most of the cases relied-on in support of the motion present the situation in which all parties were on notice throughout the,litigation of.all the facts` alleged to constitute a violation of law, but the complaint -failed, to ' allege violations of all the, proper subsections of the Act. Here the amendment offered by the Charging Party would of necessity add factual allegations to the complaint as well as new subsections to the list of those violated. The Frito case holds only that the Trial Examiner and the Board have statutory power to consider the validity of contractual provisions fully litigated although not alleged as violative of the Act; the case does not hold that the Board is compelled to do so. In the instant case, assuming the existence of power to pass on the issue tendered by the Charging Party at the close of the hearing, I think it inadvisable to do so. Among other considerations, I note that the effect of sustaining the Charging Party's position would be to invalidate a contract of many years' standing without any notice to either of the contracting parties, until the conclusion of the hearing, that the validity of their agreement was in issue. Cf. Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 232-235. I also note that the condition which the Charging Party urges is illegal (a union-security agreement in a bargaining unit which includes supervisory and nonsupervisory employees) has apparently been characteristic of several cases recently before the Board, without any intimation from that agency that it finds anything irregular in such a situation. I doubt the wisdom of deciding so far reaching a question which enters this litigation only by the back door, as it were. The Charging Party is, of course,, free to assign this ruling as error and to pursue it before the Board. I would respectfully suggest that if the Board is disposed to consider the matter on its merits, the other parties (Union, Company, and General Counsel) should be invited to submit supplementary briefs thereon. I would also assume that if the Board affirms my denial of the motion and the Charging Party presses the issue on judicial review, the court if it found procedural merit in the Charging Party's position would remand the issue to the Board to ascertain B 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 its substantive views, Cf. Laclede Gas. Co. v.-N.L.RB., 421 F.2d 610,617 (C.A. 8, 1970). CONCLUSIONS OF LAW, 1. Persons- employed by the _ Company as general foremen, P.B.X. installation foremen, test center foremen, building cable foremen, or district installation superintend- ents are -supervisors within the meaning of-Section 2(11).of the Act., - -2. Persons employed by the Company as engineers or as assistant staff supervisors are not supervisors within the meaning of the Act. - - , 'K , 3. By fining supervisors, as described in the first conclusion of law stated above, for engaging in productive work during the, strike or for-forming-the Bell>,$upervisors Protective Association, Respondent Local engaged in an unfair labor practice affecting commerce, Within the meaning of Sections 8(bxl)(B) and 2(6) and (7) of the Act. 4. Respondent International, insofar as.,it, acting through any of its officers, sustained the fines described-in the preceding conclusion,of law, engaged.in the same wifair labor practice. - " THE REMEDY I shall recommend that Respondents cease and desist from their unlawful conduct,, and that they make the unlawfully fined supervisors whole by rescinding the fines, expunging all records thereof, and refunding to the Company (which has already reimbursed the supervisors) the amount of the fines they have paid. The monetary liability for refunding the fines shall fall in the first instance on the Local, with secondary liability on the International. I shall further recommend the posting of a notice signed by officers of both Respondents. Accordingly, upon the foregoing findings and conclu- sions, and upon the entire record in the case, I recommend, pursuant to Section 10(c) of the Act, issuance of the following: ORDER8 Respondents International Brotherhood of Electrical Workers, AFL-CIO, and its affiliated Local 134, and their respective officers, agents, and representatives, shall: 1. Cease and desist from: (a) Fining supervisory employees of the Illinois Bell Telephone Company, whose duties include representing that Company in collective bargaining or in the adjustment of grievances, for engaging in productive work during the course of a strike or for activities directly related thereto such as forming or participating in an organization designed to protect supervisors who work during a strike. (b) In any like or related manner restraining or coercing the aforesaid Employer in the selection of his representa- tives for the purposes of collective bargaining or the adjustment of grievances. shall, as provided in 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. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -2.° Take `the following affirmative action necessary to- effectuate the policies of the Act: (a) Rescind, and expunge all records of, the fines levied against supervisory employees for having engaged in productive work during the 1968 strike or for having ssoc>ation. i*burse the-,Illinois Bell Telephone Company for anty'acid altsumpaid by,it pursuant to the fines referred to, in the preceding paragraph, and advise in writing,each employeeagainst whom such fines were levied that the fines have beenl'rescinded,, that the records, thereof have, been expunged, and that the Company has been, reimbursed; provided: that : the -action required in this subparagraph shall be: primarily required of _the Respondent Local, and shall, be}required of,Respondent International only to the, extent that Respondent Local shall fail to give the written notices and pay.the sums herein required. (c) Post at its business offices, meeting halls, and; all, other places where notices to members of the, Local are In the evert that the Board's Order is enforced by a Judgment of a fruited States Court of Appeals, the words in the notice-readmg-"POSTE'D BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read 4'POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN }Mated in, the formation of the "Bell, Supervisors customarily .posted, "copies of the attached notice marked "Appendix." s Copies of said notice, on forms provided by the Regional Director for Region 13, shall ; after being duly signed ,by , representatives-of the Respondents, be posted by the Respondents-immediately upon receipt thereof, and be maintained by them fora period of 60 consecutive days thereafter." Reasonable" steps shall be' taken by the Respondents to insure ' that said notices are not ` altered, defaced, or covered by any other'material. v (d), Furnish the Regional' Director for-Region 13 ,signed copies of' said notice for posting by Illinois BellTelephone Company, if,willing, in places where notices to, employees are customarily, posted. ^Copies of said notices, on forms provided by the Regional Director,,"shall, after being signed by -the. Respondents,,be forthwith ,retumed to.the Regional Director for disposition by him. . (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date `of the receipt of this Decision and Recommended Order, what steps they have taken to comply herewithao ORDER OF THE NATIONALLLABOR RELATIONS'BOARD." xo In the event that thisRecommended Order is adopted by .the Board, this,provision shall be modified to read : "Notify said Regional Director, m writing, within tO days from `the `date of`this'Order, what steps Respondent has taken to'comply herewith."