Sheet Metal Workers, Local 71

SHEET METAL WORKERS, LOCAL 71 23 Sheet Metal Workers' International Association, Local No. 71, AFL-CIO (H. J. Otten Company, Inc.) and William E. Schade . Case 3-CB- 1392-2 September 2, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 30, 1970, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices 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 timely filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board 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 Respondent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. TRIAL EXAMINER'S DECISION SAMUEL M. SINGER, Trial Examiner: This proceeding was heard before me in Buffalo, New York, on June 30, pursuant to a charge filed on February 9, and complaint issued on May 15, 1970. The complaint, as amended at the hearing, alleges that Respondent Union restrained and coerced H. J. Otten Company, Inc. (Otten), in violation of Section 8(b)(1)(B) of the National Labor Relations Act, as amended, by fining a management representative, also a member of the Union, for working during a strike and for the manner in which he made overtime assignments to employees: All parties appeared and were afforded full opportunity to be heard and to examine and cross-examine witnesses. Briefs were received from General Counsel and Respon- dent on August 10, 1970. Upon the entire record' and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Otten, the employer here involved, is a New York corporation engaged in the fabrication and installation of sheet metal and related products at its Cornwall Street plant in Buffalo, New York, the plant here involved. During the past year, a representative period, Otten purchased and received at its said plant products valued in excess of $50,000 from points outside New York State. I find that at all material times Otten has been an employer engaged in commerce and in operations affecting com- merce within the meaning of the Act; and that assertion of jurisdiction herein is proper. II. LABOR ORGANIZATION INVOLVED 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 and hereby orders that Respondent, Sheet Metal Workers' International Association, Local No. 71, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order.2 1 Chairman Miller would not adopt the Trial Examiner's conclusion that in the circumstances here, the Union's request that Supervisor Schade appear before the Union Executive Committee, in connection with a matter in which the Union had a legitimate interest , was in and of itself a violation of Section 8(b)(lXB). As he agrees, however, that any attempt to discipline a supervisor for anything which occurs in consequence of such meeting is unlawful under Section 8 (b)(l)(B), he concurs in the other findings of violation and the remedial order. 2 In footnote 18 of the Trial Examiner's Decision, substitute "20" for "10" days. Respondent Union is a labor organization within the meaning of "Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Background; contractual relations and Schade's position as management representative Otten has had contractual relations with the Union for several years. Unable to agree on a new collective agreement with Otten and other employers in the area, the Union on June 2, 1969,2 struck Otten and other employers. The strike ended on June 15 when a new agreement, effective June 1, 1969, to May 31, 1972, was executed. Qtten customarily obtained all its help through referrals from the Union, as provided in its collective agreements. William E. Schade has been Otten's superintendent of erection for 10 years. His duties include estimating and pricing jobs. He spends a good portion of his time I Transcript corrected by my order on notice dated September 2, 1970. 2 Unless otherwise indicated , all dates hereafter are 1969. 193 NLRB No. 5 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overseeing the work at jobsites, assigns work to employees, transfers them from job to job, determines when overtime work is needed and distributes it, and possesses authority to hire, fire, and discipline. He handles and adjusts grievances, including complaints concerning assignments and distribu- tion of overtime work. 2. The Union Executive Board's questioning of Schade concerning his overtime work assignments and his employment during the strike Schade has been a Union member for about 25 years. On June 28, George Cuddihy, the Union's business manager and "principal executive officer," wrote him a letter requesting him to appear before the Union's Executive Board "to either substantiate or dispel any or all .. . complaints or rumors" concerning the work at the Chevrolet Foundry project. Cuddihy testified that the letter was prompted by complaints concerning the "inadequacies of the distribution of the overtime and the favortism that the members presumed Mr. Schade was showing to certain people" before and after the strike. According to Cuddihy, Schade was called to appear in his capacity as Union member "and also as being responsible as a supervisor over the overtime." Cuddihy explained that the distribution of overtime, a matter covered by the collective agreement, had been "a constant problem between the membership and the Company. " 3 As required, Schade appeared before the Executive Board at the Union hall on July 11.4 Cuddihy questioned Schade about overtime-"how does he figure out who works it." Schade said "our best help, our regular men .. . they get mostly overtime." Among other things, Schade complained about "the caliber of men" the Union was sending him, stating that many were "intoxicated half the time or they wouldn't do the work." After further discussion of the overtime subject, Business Representative Olenjniczak mentioned that "it was rumored that [Schade] 3 The collective agreement states : "Preference to overtime . work shall be given to men on the job on a rotation basis so as to equalize such work as nearly as possible." 4 The Union's steward at Otten (Pawlak) also appeared in response to Cuddihy's request. 5 Schade testified that at the request of Otten President Hangauer he went to the Chevrolet plant on two or three occasions during the strike to estimate the value of the unfinished portion of a job started there by Otten before the strike According to Schade, Chevrolet wanted Otten "to check out the remainder of our work that was not finished in the plant because they wanted to cancel us out and do it themselves if the strike lasted too long." 9 the above findings on the July II Union Executive Board meeting are based' primarily on Cuddihy's testimony, in large part corroborated by Schade. r The July 14 letter read: Pursuant to your actions and admissions before the Executive Board Meeting of this Local Union on July 11, 1969 we hereby charge you with the following violations of the Sheet Metal Workers' International Association Constitution and Ritual 1) Your failure to comply with the reasonable request of the President, Financial Secretary and Business Manager to return your dues receipt to your possession after throwing it out onto the meeting table constitutes a violation of Article 17, Section 1(b) of the Constitution and Ritual. 2) Your verbal accusations that this Local Union has continously and deliberately sent unfit journeymen members for work at the H J. Otten Company and your verbal attacks of degradation upon the had worked during the strike." Schade admitted doing some "measuring work" at the Chevrolet project.5 Accord- ing to Cuddihy, "everybody was then shooting questions ... as to what he was doing out there." One Executive Board member remarked that "measuring work" was "working, isn't it." Schade became angry and threw his dues receipt slip on the table, exclaiming, "Yes, I worked during the strike, Here's my card and you can have it. I don't need it." As Schade started to leave, an Executive Board member asked him to pick up the dues receipt, but Schade "stormed" out of the room.6 3. Schade's appearance before the Union's "trial committee" to answer charges ; the fines levied against him By letter dated July 14, signed by Business Manager Cuddihy and Business Representative Olenjniczak, Schade was notified of charges against him under the Union's constitution, consisting of five different specifications-one based on his admission that he had worked at the Chevrolet plant during the strike; three based on alleged misbehavior at the July 11 Executive Board meeting (throwing down his dues receipt, failing to pick it up on request, and accusing the Union of referring "unfit" members); and the fifth of general nature (conduct "detrimental to the best interests" of the Union).7 On August 11, Schade appeared before a Union "trial committee" in connection with these charges.8 Six members of the Executive Board-all present at the July 11 Board meeting-appeared as witnesses. Schade pleaded not guilty to all five charges. Thereupon the witnesses testified concerning the circumstances. The trial committee unanimously found Schade guilty of all five charges, levying fines against him ranging from $100 membership of this Local Union constitutes a violation of Article 17, Section 1(c) of the Constitution and Ritual. 3) Your action of throwing away your official dues receipt together with the remarks that you do not need this Local Union and you do not need to be a member to maintain your present employment and enjoy your present wage rates constitutes an attempt to secede from Local Union No. 71 and is therefore a violation of Article 17, Section 1(f) of the Constitution and Ritual. 4) Your admission that you worked for the H .J. Otten Company at the Chevrolet Plant, River Road, Tonawanda New York, sometime during a period beginning June 1 , 1969 until June 15, 1969 during which time the members of this Local Union were on strike against various sheet metal contractors, one of which was the H.J. Otten Company of 77 Cornwall Ave Buffalo N.Y., constitutes a violation of Article 17 Section 1 (g) of the Constitution and Ritual. 5) Your conduct has been of a nature detrimental to the best interests of the Sheet Metal Workers' International Association and this Local Union and constitutes a violation of Article 17 Section 1(m) of the Constitution and Ritual. A copy of these charges has been filed with the President of Sheet Metal Workers Local Union No. 71 and you will be notified accordingly. 8 The trial committee consisted of five Union members. Although the transcript of the proceedings lists Cuddihy as a sixth committeeman, he testified that he was not on the trial committee , but he conducted some of the questioning. Although Schade appeared with an attorney, the latter was not permitted to participate. SHEET METAL WORKERS, LOCAL 71 25 to $300 on each-a total of $1,100. The fine on charge 4 (working during the strike) was $200.9 The committee's decision and action were approved by Respondent Local 71; Schade's appeal to the International was pending at the time of the instant hearing, with none of the fines paid. B. Conclusions 1. Applicable principles Under Section 8(b)(1)(B) of the Act, it is unlawful for a union to "restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." The Board and courts have construed this section broadly to accomplish its intended objective. In San Francisco-Oak- land Mailers' Union No. 18, International Typographical Union (Northwest Publications, Inc.), 172 NLRB No. 252 (69 LRRM 1157), the Board stated, "In enacting [this section] Congress sought to prevent . . . union interference with an employer's control over its own representatives." Analogiz- ing to the Section 7 right of employees to representatives of their choice, the Court in General Electric Company v. N.L.R.B., 412 F.2d 512, 516-517 (C.A. 2) observed: "This right of employees and the corresponding right of employers . . . to choose whomever they wish to represent them . . . is fundamental to the statutory scheme. In general, either side can choose as it sees fit and neither can control the other's selection ...." Accord: Carpenters District Council of Milwaukee, etc. [Del-Mar Cabinet Company] v. N.L.R.B., 274 F.2d 564, 566 (C.A.D.C.). As Respondent recognizes, the Board has interpreted Section 8(b)(1)(B) to forbid a union to coerce or restrain an employer by disciplining, or threatening to discipline, a managerial representative who is also a member of the union, where such action is taken against the latter "for his performance of duties as an employer representative" (Resp. br. p. 4). In Houston Typographical Union No. 87 (Houston Shopping News Company d/b/a Naylor Type and Mats), 182 NLRB No. 91 (74 LRRM 1171), the Board held that a union runs afoul of this section even if it merely "took . . . action . . . to render a [management] represent- ative . . . more amenable to its interpretation of how the contract should be applied." In Dallas Mailers Union, Local No. 143, etc. (Dow Jones Company, Inc.), 181 NLRB No. 49 (73 LRRM 1360), the Board held that action against a member-supervisor is unlawful if it may be construed as a "signal" to other company representatives "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 short, a union may not, by using its internal disciplinary procedures, compel a supervisor-member to interpret a collective agreement or handle a grievance in any particular manner. While, as Respondent points out (br. pp. 7-9), the cases heretofore decided in this area generally involved matters relating to contract interpretation and grievance adjust- ment, the Board in at least one case found the union's disciplinary action against a supervisor-member violative of Section 8(b)(1)(B) even though the supervisor's offending conduct was not directly related to either. Thus, in New Mexico District Council of Carpenters and Joiners of America, etc, (A. S. Horner, Inc.), 176 NLRB No. 105 (71 LRRM 1445), the Board held that a union violated this section by fining a supervisor-member for engaging in an antiunion campaign-urging employees to vote against the supervisor-member's union in a representation election. The Trial Examiner's Decision in that case, adopted by the Board, sets forth the following rationale: It is clear that Respondents [the unions] preferred charges against and fined Wilson [the supervisor- member] 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.... Wilson could and did adjust grievances. Respondents were forbidden by the Act to dictate to the Company whom it should select to adjust employee grievances. Respon- dents' actions "were designed to change the [Company's] representatives from persons representing the viewpoint of management to persons responsive or subservient to Respondents' will. In enacting Section 8(b)(l)(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 was exerted here for the purpose of interfering with the [Company's] control over its representatives. Realistically, the [Company] would have to replace its [superintendents] or face de facto nonrepresentation by them." San Francisco-Oakland Mailers' Union No. 18, 172 NLRB No. 252. * By fining Wilson, Respondents did so because he chose to act as management representative, which he was, Applying these principles to the facts in this case, I find that Respondent restrained and coerced Otten in violation of Section $(b)(1)(B) of the Act by: (1) summoning Otten's erection superintendent (Schade) before a Union trial committee to answer, among other things, a charge that he worked during a strike against Otten, and then fining him for performing the work; and (2) summoning him to the Union's Executive Board and there questioning ' him concerning his distribution of overtime work, a managerial activity. 2. The charge and fine against Superintendent Schade for working during the strike The undisputed evidence establishes that Schade, a high managerial official, made two or three visits to the Chevrolet project during the June 2-15 strike against Otten 9 The fines on charges 1, 2, 3, and 5 (supra, In. 7) were respectively $100, $300, $300, and $200. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purposes of inspecting and estimating the value of the unfinished work at Chevrolet. This work, made at the request of Otten President Hangauer , was a normal part of Schade's duties as superintendent of erection. When questioned about it at the Union's July 11 Executive Board meeting, Schade admitted working during the strike. Based on this "admission" and alleged misconduct at that meeting (throwing down his dues receipt, accusing the Union of referring "unfit" members, etc., see supra, sec. A, 3), Respondent preferred charges against Schade . On August 11, he was subjected to trial before a Union committee, which found him guilty of all charges, including working during the strike, for which he was fined $200. While, as Respondent points out, the Board has not yet directly passed on the question whether disciplinary union action against a supervisor-member for working during a strike is a violation of Section 8(b)(1)(B),10 my colleague, Trial Examiner Frederick U. Reel, recently issued a decision 11 in which he found that such union conduct falls within the proscription of this section, particularly in the light of the Board's decision in A. S. Horner, Inc., supra, 176 NLRB No. 105 . Trial Examiner Reel reasoned: As an original proposition I would be inclined to construe Section 8(b)(1)(B) as interdicting union fines of supervisors only when the conduct for which the supervisor was fined bore some relation to his role as a representative of management in "collective bargaining or the adjustment of grievances," to quote Section 8(b)(1)(B). In the instant case the question confronting the supervisors whether to work or to respect the strike call of their Union was in no way related to those subjects. The Board in the . . . 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 case 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)(1)(B). . . . The respect which I am compelled to pay the Board's holding in that case requires me to find a similar violation here. I agree. This case is even a stronger one than Illinois Bell decided by Trial Examiner Reel. To begin with, the 10 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 (71 LRRM 1467), the Board found that a union violated Section 8(b)(IXB) by imposing fines on supervisor-members for working during a strike, but the Board's holding appears to turn on the question whether the union could impose the fines because the supervisors had allegedly violated specific contract provisions limiting the amount of production the supervisors could perform and the circumstances under which the supervisors could perform production work supervisor here involved (Superintendent Schade) was a higher managerial official than the foremen involved in Illinois Bell. Moreover, whereas in that case the employer "expressly left the decision up to each individual supervi- sor, with specific assurances that no reprisals would be visited on those who chose not to work," here the Employer gave the supervisor (Schade) no such choice; it directed him to perform the work which led to disciplinary action.12 Accordingly, as in A. S. Horner, supra, 176 NLRB No. 105, "[i]t is clear that Respondent[s] preferred charges against and fined [Schade ] as a means of disciplining him because he placed the interests of the Company above those of Respondent[s]. 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 individuals who were subservient to Respondent[s]." 3. The Union Executive Board's questioning of Schade concerning his distribution of overtime work As found, on June 28 the Union summoned Superintend- ent Schade to appear before the Union Executive Board "to either substantiate or dispel any or all . . . complaints or rumors" about his allegedly unequal or unfair distribution of overtime assignments prior to and after the strike. According to Union Business Manager Cuddihy, the matter of overtime work was "a constant problem between the membership and the Company." Cuddihy conceded that Schade was called before the Executive Board in his capacity as Otten's "supervisor" in charge of overtime assignments as well as Union member. Subsequently, on July 11, the Executive Board questioned Schade on the manner and method of his assignment of this work (and also, as we have seen, about his working during the strike). There is no question that distribution of overtime work, a subject covered by the collective agreement, related to Schade's role as employer representative in administration of the agreement. The sole question here is whether the Union's action in hailing Schade before the Executive Board meeting to justify his assignments and to answer members' complaints regarding it had the natural and foreseeable tendency of restraining or coercing Schade in the exercise of this managerial function on behalf of his Employer. I think it did. Summoning a supervisor-member to a union hall for attendance before the highest official body of the union, to respond to members' complaints against his role in the administration of the collective agreement, necessarily operates to inhibit and restrain the supervisor-member in representing and advancing the viewpoint of management, and is thereby coercive upon the management on whose behalf he acts. The natural effect, if 11 International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, etc. (Illinois Bell Telephone Company), Case 13-CB-2890 (TXD-378-70) 12 The lack of compulsion to work during the strike in Illinois Bell prompted Trial Examiner Reel to observe that although he found the union activity unlawful, he had "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 Union's action had any natural or inherent tendency to restrain or coerce the Company." SHEET METAL WORKERS , LOCAL 71 27 not the ostensible object, of such action is to induce and compel the employer through its supervisor-member to be more amenable to the union's interpretation of how the contract should be administered. The fact that the union, as here, did not actually discipline him by fine or expulsion in connection with the overtime is not determinative. In the circumstances indicated, Schade could reasonably have concluded that further Union action would ensue if he failed to conform to the Union's position. Furthermore, "restrain or coerce" as used in Section 8(b)(l)(B) includes action short of fine or expulsion.13 And the fact that Schade may not have been actually coerced or intimidated "is of no relevance" since the "test is whether the [union ] misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate...." Cf. Local 542, International Union of Operating Engineers, AFL-CIO [Giles & Ransome, Inc.] v. N.L.R.B., 328 F.2d 850, 852 (C.A. 3). Contrary to Respondent's contention (br. p. 3), the Executive Board's questioning of Superintendent Schade cannot cavalierly be overlooked as a mere "general inquiry concerning complaints." The "underlying dispute was between the Respondent and the Company [on a contractu- al matter-overtime ] and not between the Respondent and one of its members [on an intraunion matter]." Cf. A. S. Horner, Inc., supra, 177 NLRB No. 76. If Respondent desired to question Schade's activities in this regard, it had only to meet with him in his managerial capacity under the available contractual procedures for settling grievances, rather than (as here) through the Union's internal procedures at a formal Executive Board meeting called for that purpose. The Employer here was entitled to have its representative (Schade) free of union coercion with respect to the overtime decisions he made for it as its representa- tive. See Freight, Construction, General Drivers, Warehouse- men and Helpers Union, Local 287, etc. (Grinnell Company of the Pacific), 183 NLRB No. 49,74 LRRM 1354. Accordingly, I find and conclude that by summoning Schade to the Union's Executive Board meeting and there requiring him to defend against his managerial activity in his Employer's behalf in assigning overtime work, Respon- dent violated Section 8(b)(IXB) of the Act. 14 CONCLUSIONS OF LAW 1. Respondent violated Section 8(b)(1)(B) of the Act 13 In New Mexico District Council of Carpenters and Joiners of America (A. S. Horner, inc.), 177 NLRB No. 76, 71 LRRM 1470 (the second Horner case), the Board found a union's conduct in "citing" the management representative to trial and preferring charges against him (as well as its fining him) to constitute restraint and coercion. In Toledo Blade Company, supra, 175 NLRB No. 173, the Board found the union's fining of supervisors unlawful even though the fines were suspended. 14 In making this finding, I am fully cognizant of the fact that the complaint, as amended at the hearing, alleged that the violation consisted of fining (not merely interrogating) Schade because of the manner of his overtime assignments . While agreeing with Respondent (br. p. 13) that none of the fines imposed on Schade (see In. 7, supra) was predicated on the overtime assignments, I do not consider myself foreclosed from finding that Respondent violated Section 8(b)(1)(B) by questioning Schade on this subject and compelling him to defend himself at a formal Executive Board meeting. This aspect was fully litigated, the violation found is closely related to and intertwined with the allegations, and the finding is established by substantially undisputed evidence, including the testimony of Respondent's witness Cuddihy. Cf. Granada Mills, Inc., 143 NLRB 597, by: (a) summoning Erection Superintendent Schade to the Union's Executive Board, citing him to a Union trial, and fining him for working during the June 2-15 strike; and (b) summoning him to the Union Executive Board and there questioning him concerning his overtime work assignments, the subject of Union member complaints. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Section 8(b)(1)(B) of the Act, I shall recommend that it be required to cease and desist from the unfair labor practices found and to take certain affirmative action designed to effectuate the purposes of the Act. In his brief (pp. 3-4), General Counsel requests that the order require Respondent to rescind not only the $200 fine imposed against Schade for working during the strike,15 but the total $1,100 fine levied against him. As shown (supra, sec. A, 3, fn. 7), three of the remaining four fines were based on Schade's alleged misbehavior at the July 11 Executive Board meeting (throwing down his dues receipt with the remark that he did not need the Union, failure to pick it up when requested to do so, and accusing the Union of referring "unfit" help) and the fourth fine on the general charge that his conduct "has been of a nature detrimental to the best interests" of the Union.. General Counsel contends (br. p. 4) that since the "total fines resulted as a direct consequence of Respondent's calling Schade before the Executive Board to dispel rumors that Schade was failing to administer overtime assignments fairly, a matter of contract adminis- tration, and that Schade was performing work during the strike period . . . the entire fine based on the various counts of the intra-union charge constituted a violation of the Act." I find merit in General Counsel's position. To be sure, a union may lawfully discipline a member, even a supervisor- member, for violating a purely internal union rule, unrelated to his performance as a managerial representa- tive, such as for misconduct at a union meeting or revelation of a confidential union matter. See Grinnell Company of the Pacific, supra, 183 NLRB No. 49. However, here the member's alleged misconduct cannot be disentan- gled from his execution of his job responsibilities on behalf of his employer. In these circumstances, it "rested upon the 598, in. 1; Rttndolph Rubber Company, Inc., 152 NLRB 496, 499, fn. 7. Cf. Frito Comparty v. N. L. R. B., 330 F.2d 458, 465 (C.A. 9). Nor do I find merit in Respondent's contention that the complaint was improperly amended at the close of the hearing to add the allegation on the overtime assignments. (The original complaint alleged only a violation based on a fine against Schade for working during the stoke-and also crossing a unioir picket line, but the latter allegation was withdrawn at the outset of the hearing.) As already noted, the findings on this point are based on undisputed (including Union proffered) testimony. Additionally, although specifically afforded opportunity to adduce further evidence to meet the allegation concerning the overtime assignments , Respondent failed to avail itself of the offer. Cf. The Lion Knitting Mills Company, 160 NLRB 801, 802; N.L.R. B. v. Thompson Transport Company, Inc., 73 LRRM 2387, 2388 (C.A. 10); N L R B. v. William J. Burns International Detective Agency, Inc., 346 F 2d 897, 900 (C A. 8). 15 As indicated, no fine was imposed against Schade for his'alleged unfair overtime work assignments, Schade having only been questioned regarding his actions at the Union Executive Board meeting. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tortfeasor to disentangle the consequences for which it was chargeable from those from which it was immune." (N. L. R. B. v. Remington Rand, Inc., 94 F.2d 862, 872 (C.A. 2).) To conclude otherwise would permit a union to accomplish indirectly what it could not accomplish directly ; i.e., it could provoke a supervisor-member resisting illegal union intrusion into the supervisor's managerial functions to misconduct himself in the process and then subject him to disciplinary action for violating its internal union rules on conduct at meetings. Accordingly, the remedy recommended herein will include a requirement that the Respondent rescind the total $1,100 fine levied against Schade . It will also require Respondent, in accordance with usual requirements in cases of this type, to expunge from its records any entry of impropriety on Schade's part in relation to the subject here discussed and to notify Schade in wnting that it has taken these actions, as well as that it will cease and desist from similar action in the future. See, e.g., A. S. Horner, supra, 177 NLRB No. 76; Toledo Blade Company, supra, 175 NLRB No. 173. RECOMMENDED ORDER i6 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I recommend that Sheet Metal Workers' International Association, Local No. 71, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Questioning at union meetings supervisors who are members of Respondent, preferring charges against them, or fining or otherwise disciplining them , as to matters relating to their employment, while such supervisors are the selected representatives of H. J . Otten Company, Inc., for the purposes of collective bargaining or the adjustment of grievances. (b) In any like or related manner restraining or coercing the aforesaid Employer in the selection of its representa- tives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Rescind the fines imposed against William E. Schade and expunge from its records all reference and other evidence in its files to the proceedings in which Schade was fined by Respondent and questioned concerning his employment during the June 2-15, 1969, strike and his assignment of overtime before and after said strike. (b) Notify Schade, in writing, that it has taken the action described in paragraph 2(a), above , and that it will cease and desist from any of the actions described in paragraph 1 of this Recommended Order. (c) Notify, in writing, Respondent's International to which Schade has appealed the fines levied against him of the aforesaid actions with a copy of such writing to Schade. receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted . Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Furnish the Regional Director for Region 3 signed copies of said notice for posting by H. J. Otten Company, Inc., if willing, in places where notices to employees are customarily posted . Copies of said notices, on forms provided by said Regional Director, shall, after being signed by Respondent, be forthwith returned to the Regional Director for disposition by him. (f) Notify said Regional Director , in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.is I6 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 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, it 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." is 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." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question at union meetings , prefer charges against, and fine or otherwise discipline William E. Schade or any other supervisor who is a member of this labor organization as to matters relating to his employment, while such supervisor is the selected representative of H. J . Otten Company, Inc., for the purposes of collective bargaining or the adjustment of grievances. WE WILL NOT in any like or related manner restrain or coerce H. J. Otten Company, Inc., in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances. WE WILL rescind the fines imposed against William E. Schade and expunge from our records all reference and other evidence in our files of the proceedings in which Schade was fined by us and in which we questioned Schade concerning his employment during the June 2-15, 1969, strike and his assignment of overtime before and after said strike. (d) Post at its business office, meeting halls, copies of the SHEET METAL WORKERS' attached notice marked "Appendix." 17 Copies of said INTERNATIONAL notice, on forms provided by the Regional Director for ASSOCIATION , LOCAL No. Region 3 , after being duly signed by Respondent's 71, AFL-CIO representative, shall be posted by it immediately upon (Labor Organization) SHEET METAL WORKERS, LOCAL 71 29 Dated By from the date of posting and must not be altered, defaced, (Representative) (Title) or covered by any other material. Any questions concerning this notice or compliance-with its provisions may be directed to the Board's Office, 4th This is an official notice and must not be defaced by Floor, The 120 Building, 120 Delaware Avenue, Buffalo, anyone . New York 14202, Telephone 716-842-3700. This notice must remain posted for 60 consecutive days