Bricklayers, Local 7

BRICKLAYERS, LOCAL 7 Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, Local No. 7 (United Masonry, Inc.) and K. R. Manning. Case 23-CB-1153 October 5, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On July 14, 1971, Trial Examiner Harry H. Kuskin issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. The General Counsel filed limited exceptions to the Trial Examiner's Decision and a brief in support of that Decision. The Respondent then filed a letter in opposition to the General Counsel's limited exceptions. 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 exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations i of the Trial Examiner as modified below. 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 modified below and hereby orders that the Respondent, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, Local No. 7, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. 1. Substitute the following paragraph for para- graph 2(a) of the recommended Order. "(a) Repay to K. R. Manning the sum of $100, with interest at 6 percent per annum, the amount assessed against him as a fine and heretofore paid by him." 515 2. Substitute the attached notice for the Trial Examiner's notice. i In accordance with our established policy, we shall order the Respondent to repay K. R Manning the $100 fine levied against him, and heretofore paid by him, with interest at 6 percent per annum Isis Plumbing & Heating Co, 138 NLRB 716, Sheet Metal Workers' International Association, Local Union 49, AFL-CIO, 178 NLRB No 24 APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce United Mason- ry, Inc., in the selection of representatives chosen by it for the purposes of collective bargaining or the adjustment of grievances: (a) by threatening to prefer intraunion charges against any such representative, and/or (b) by preferring intraunion charges against any such representative and trying him on these charges, and/or (c) by imposing a fine upon any such representative and by thereafter collecting same,-all because of the way in which he performed his work as such selected repre- sentative. WE WILL NOT in any like or related manner restrain or coerce United Masonry, Inc., in the selection of representatives chosen for the purpos- es of collective bargaining or the adjustment of grievances. WE WILL rescind the fine assessed against K. R. Manning and will expunge all record thereof from our files. WE WILL advise Manning, in writing, of the action taken by us as described immediately above. WE WILL repay to K. R. Manning the sum of $100, with interest at 6 percent per annum, the amount assessed against him as a fine and heretofore paid by him. BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL UNION OF AMERICA, AFL-CIO, LOCAL No. 7 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 193 NLRB No. 72 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H . KUSKIN, Trial Examiner : This proceeding was heard at Houston , Texas, on May 11, 1971. The complaint herein issued on March 5, 1971, based on a charge and an amended charge, filed on February 9 and March 4, 1971, respectively ; it alleges that Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, Local No. 7, herein called Respondent or the Union, has restrained and coerced United Masonry, Inc., herein called the Company , in the selection of its representative for the purposes of collective bargaining or adjustment of griev- ances in violation of Section 8(b)(1)(B) of the Act by (1) the conduct on or about January 20, 1971, of H. A. Brown, the business agent of the Union , of informing K. R. Manning, a member of the Union and a supervisory representative of the Company , that disciplinary intraunion charges would be filed against him if he, in accordance with his expressed intent, discharged Herman McCoy, the Union's steward on the job ; (2) the conduct of H. A . Brown on the same day of informing Donald Richardson, the Company's field superintendent, as to what he had told Manning with respect to the above filing of charges ; (3) the letter dated January 20, 1971, which was served on Manning and which charged him with violating article XIII , section 16, of the Union's constitution and bylaws by terminating McCoy on or about that date ; (4) the fine of $100 imposed on Manning by the Union 's trial committee because , accord- ing to its findings, Manning had terminated McCoy in violation of the above section of its constitution and bylaws; (5) the threat to Manning by President Scott of the Union of a fine of $200, in the event he again violated the above section of the constitution and bylaws ; I and (6) the resulting "payment under protest" of the above fine. Respondent's answer denies that it has violated the Act in any respect alleged herein . And by way of affirmative defenses, Respondent alleges ( 1) that the discharge by Manning of McCoy was without just cause, was contrary to the collective-bargaining agreement between Respondent and the Company, and was arbitrary, capricious, and vindictive ; and (2) that, just prior to, and at the time of, the discharge of McCoy, Respondent offered to arbitrate the matter with the Company in accordance with the contract's grievance and arbitration provision , but the Company was itself guilty of an unfair labor practice in refusing to arbitrate , that the Company continues to refuse to arbitrate, and that Respondent now renews its offer to arbitrate. Upon the entire record, including my observation of the witnesses , including their demeanor while on the witness stand, and after due consideration of the briefs of the General Counsel and Respondent filed herein, I make the following: FINDINGS OF FACT 1. JURISDICTION The complaint alleges, and Respondent admits, that United Masonry, Inc., a Texas corporation, with its home office and place of business in Pasadena, Texas, is engaged in commercial and industrial masonry construction; and that, during the preceding calendar year, it purchased and had shipped directly to it from outside Texas goods valued in excess of $50,000. I find, upon the foregoing, as Respondent also admits, that United Masonry, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent further admits, and I find , that Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, Local No. 7, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1 The collective-bargaining agreement between Respondent and the Company The Company has, by virtue of its membership in Masonry Contractors Association of Houston, Texas, been a party to a collective-bargaining agreement with Respon- dent since September 10, 1970. The agreement, which bears an expiration date of August 31, 1973, covers terms and conditions of employees employed as bricklayer foremen, journeymen, and apprentices. 2. The Company's job as subcontractor on the Deepwater Elementary School job and its work force, including supervision, at the jobsite. Under a subcontracting arrangement with Marshall Construction Company, which was the general contractor on the Deepwater Elementary School job, the Company undertook and performed that portion of the work thereon relating to bricklaying. The bricklaying work began about the middle of November 1970 and was finished sometime in February 1971. The Company's complement consisted, in the main, of about 12 to 15 bricklayers and 5 laborers. Beginning on December 3, 1970, and at all times material thereafter, Herman L. McCoy was one of those bricklayers. McCoy was also a member of Respondent at the time of his hire. He became the union steward a few days thereafter and held that office at the time of his discharge on January 19, 1971, almost 7 weeks later. The sole supervisor on the job for the Company was K. R. Manning, who is also a member of Respondent. Manning was, in turn, responsible I No evidence was adduced by the General Counsel in support of this allegation BRICKLAYERS , LOCAL 7 517 to Donald Richardson, the Company's field superintend- ent, and was one of about 12 to 15 foremen in the Company's employ answerable to Richardson. As foreman on the Deepwater Elementary School job, Manning was responsible for hiring the bricklayers and laborers and had authority to, and did, discharge both bricklayers and laborers. In addition, he acted as overseer of the work done by them, making certain that the required work was done properly; and he dealt with the union steward on matters pertaining to the job, such as unsafe scaffolds, unsafe scaffold boards, availability of drinking water and drinking cups, etc Further, with specific reference to the incident mentioned hereinafter involving the discharge of McCoy, for which Manning was thereafter disciplined by Respon- dent, there is credible testimony by Richardson that Manning "was the alter ego of the Company" throughout the handling of that matter. It is apparent from all the foregoing, and from my findings hereinafter, that Manning had substantial supervisory authority, as well as authority to handle grievances relating to the work under his supervision, including the instant grievance relating to the discharge of McCoy. Accordingly, I conclude, and find, that Manning was, at all material times, a supervisor within the Act's meaning and a representative of the Company for the purpose of the adjustment of grievances.2 B. The Circumstances of the Discharge of McCoy by Manning3 The record shows that a little more than a week before January 19, 1971,4 the date of McCoy's discharge, Manning reported to Richardson that McCoy had done "some rough work, under par work," and solicited advice from Richardson as to what should be done about it. Richardson said that Manning should talk to McCoy and caution him about his work Apparently, about this time, Manning had also had complaints from representatives of the general contractor about some of the work of the bricklayers. McCoy did thereupon caution the bricklayers, including McCoy, about this. The next development relating to McCoy's work took place on January 18. McCoy spent that day in building a double-faced concrete-block wall. He built the lower 4 feet of the wall himself; and thereafter, by working from a scaffold set up against the partly finished wall by the laborers, he and another bricklayer completed the wall that day to a height of "8 maybe 10 feet." After the wall was "topped out," the scaffolding was removed. At the end of the day, in the course of walking along the corridor, onto which one side of this already completed wall faced, Y In this connection , the Board has held that it is not essential, under Section 8(b)(I)(B), which is alleged to have been violated by Respondent herein, that the supervisor has actually been designated as the employer's grievance representative, since an employer's protected right to select collective-bargaining and grievance representatives includes "his right, at any time, to select his representatives from an uncoerced group of supervisors whose loyalty to him has not been prejudiced and whose substantial supervisory authority and day-to-day contact with and supervision of the employees under them make them natural choices for selection as such representatives " See International Association of Heat & Frost Insulators & Asbestos Workers, Local 127 (Cork Insulating Company of Wisconsin, inc), 189 NLRB No 124, and the citation therein of 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, affd. 437 F 2d 55 (C A 6) Accordingly, I find that, even Manning noticed that the part of the wall built by McCoy alone had a "swag" or concavity in it.5 It is the testimony of Manning that "right then [he] came to the decision that [he] was going to terminate Mr. McCoy." Later the same evening, Manning telephoned Richard- son, told him of his desire to terminate McCoy, and gave as the reason that McCoy "had done a bad piece" and that "it might end up costing the Company money." Arrangements were then made for Richardson to bring McCoy's paycheck to the job the following day and for Manning to notify Respondent at 8 o'clock the following morning of the projected termination of McCoy at 4:15 p.m., the end of the workday .6 These arrangements were carried out the following morning, i.e., Richardson stopped by the job early in the morning and gave Manning the paycheck for McCoy, and Manning notified the Union by telephone shortly after 8 o'clock of his intention to discharge McCoy. During this telephone conversation, Manning made it known to Malcolm Shaefer, Respondent's financial secretary, and to H. A. Brown, Respondent's business representative, in that order, that McCoy was to be discharged not for any union-related reason but because of trouble with his work. Both Shaefer and Brown insisted that Manning could not do that. In the course of speaking with Brown, Manning invited Brown to come to thejob and be shown the work for which McCoy was being faulted. Brown came to the job at or about 3 p.m. that day. He spoke to McCoy first. Upon discovering that McCoy was unaware that he was to be discharged, Brown apprised him of the 4 hours' notice to discharge him received by the Union from the Company that morning. According to the testimony of Brown, McCoy's reaction to this news was that he was ready to pick up his tools and quit forthwith; however, he, Brown, opposed such action by McCoy, telling McCoy that, "You can't make a practice of letting a foreman run the steward off at his discretion." Thereafter, as set forth herein seriatim, Brown had conversations with Manning and with Richardson and a second conversation with McCoy. During his conversation with Manning, Brown was shown the wall in question as well as a couple of places where McCoy had worked and where Manning claimed the work was not quite up to par. Brown admitted that the work on the wall in question was not what he would call "good workmanship," but took the position that the whole job looked rough and that, in any event, it would be a violation of Respondent's bylaws to terminate McCoy as he had Manning not been designated as such representative at the time of the discharge episode herein, he was then a natural choice for such selection. 3 My findings in this regard are based on a composite of so much of the testimony of Manning, McCoy, Brown, and Richardson as I find credible Where there were variances in their respective testimony, I attached considerable weight to the plausibility of a witness' testimony in assessing its credibility a All dates hereinafter are in 1971, unless otherwise indicated s Manning descnbed the wall at this location as bowing inward, so that one could run his fingers between a straight edge placed against the wall and the wall itself 6 Richardson directed Manning to give notice at or about 8 o'clock so as to exceed the requirements of the bargaining agreement between the Company and Respondent, which provides that Respondent is to be given 4 hours' notice of the discharge of a union steward 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a steward and was supposed to be the last among the rank-and-file employees on the job to be terminated.? A second conversation between Brown and McCoy then took place, during which the condition of the critical wall was discussed. McCoy's explanation to Brown was that the wall's condition was attributable to employee Clyde Dawson, who was drunk on the job while the wall was being built and "leaned or fell on the wall or did something to it, put some of his weight or something on it."s Fortified with this information and after allegedly having verified McCoy's statement that he, McCoy, had told employee I W. Gross, a bricklayer, about Dawson's conduct on the day it happened, Brown approached Manning a second time and told him of McCoy's claim that Dawson was drunk on the job and had caused the swag by falling into the wall. Brown also mentioned that employee Gross, another b-icklayer, was "willing to back McCoy up on this particular thing," and urged Manning to inquire from Cross on his own, but Manning refused, assertedly because he did not want to create a bunch of confusion on the job. During this conversation, both Manning and Brown adhered to their initial positions, with Manning claiming that he thought that he was right in his decision to discharge and that he had met the notice requirement to the Union as required by the bargaining contract, and with Brown insisting that Manning was wrong in this matter. Toward the end of this particular conversation, Brown offered to arbitrates the question of the Fropriety of discharging McCoy but Manning refused, saying that he did not see the need for it as he did not question McCoy's competency as a bricklayer but questioned only this particular work, which was not quite up to par either because of carelessness or a deliberate act; and further that he was going to terminate McCoy, as indicated. Manning also turned down Brown's request for a delay of 1 day, predicated on Brown's belief that McCoy would quit the next day. At this, Brown indicated to Manning that, if McCoy was discharged, he would bring Manning up on charges before the Union; and further that, since Manning refused to accept his suggestion to call Richardson, he was going to do so. Thereafter, at the instance of Brown, Richardson came to thejobsite around 4 p.m. A conversation ensued in which Brown and Richardson discussed the impending discharge of McCoy. Brown told Richardson "about the same thing that [he] told Manning, that if [Manning] laid the steward off, [he] would have to bring Mr. Manning up on charges. And [he ] asked [Richardson] about holding up on the man's check and if the man wanted to quit let him quit." Richardson indicated that the decision on McCoy was up to Manning. At or about 4:15 p.m., Manning joined the conversation. He had just prior thereto given McCoy his paycheck and terminat- ed him, thereby meeting the Union's 4:15 p.m. deadline for making the termination effective on a given day. At the 7 The constitution and bylaws are in evidence as G C Exh 2 The section involved is sec 16 of art XIII It reads, as follows The Steward shall be one of the last two men, including the Foreman, left on the job The Steward shall, when appointed by the Business Agent remain on the job until completion if possible He shall be given time during working hours to inspect credentials and see that working conditions are properly taken care of He shall inspect all scaffolds and see that ladders are provided for same McCoy testified that, at the time Dawson caused his trouble, he straightened the wall, that he noticed, after the wall was finished, that it time, there were some 12 or 13 bricklayers working for the Company. Manning informed Richardson and Brown of this action, saying it was now "too late" as he had already given McCoy his check. Brown replied that it was not too late and offered to get the check back from McCoy. However, when Manning insisted that "[his] mind is made up," Richardson told Brown that he would stand behind Manning's decision. Thereafter, just before the conversa- tion ended, Brown brought up the matter of arbitration, saying that the matter of McCoy's termination could go before an arbitration committee. Apparently, Richardson and Manning took this as raising the matter of McCoy's competency, and replied that there had never been any question about McCoy's being a competent bricklayer, and what was involved here was McCoy's work on this particular wall. C. The Proceedings Brought Against Manning by Respondent in Consequence of the Discharge by him of McCoy Manning was notified by registered letter from Respon- dent, dated January 20, that he was being charged with a violation of article XIII, section 16, of Respondent's bylaws 10 when he discharged McCoy, and that he was to appear to answer the charges on January 27 at 7:30 p.m. Manning appeared at the appointed time and proceedings were had before Respondent's trial board. Although Manning argued before the trial board that his reason for discharging McCoy was that McCoy had done unsatisfac- tory work on the wall, the trial board found him guilty as charged and fined him $100. The trial board also suspended Manning from union benefits, such as health and welfare and hospitalization, until the fine was paid. Manning paid the fine on February 1, "under protest." D. The Unfair Labor Practice Charge Filed by Respondent Alleging that the Company had Violated the Act in Refusing to Arbitrate, and the Disposition Thereof The record shows, as heretofore found, that the complaint in the instant proceeding issued on March 5, 1971; it also shows that, on March 22, Respondent filed its answer herein. The parties stipulated that, on March 23, Respondent filed a charge in Case 23-CA-3918, alleging that on or about January 20, 1971, the Company, in violation of the Act, "refused to arbitrate with the authorized representatives and agents of [Respondent], duly designated bargaining agent of a majority of [the Company's] employees employed in a unit, which is appropriate for the purpose of collective bargaining at the [Company's job involved herein], by refusing to follow the was sagging a little bit and straightened it again , and that the following morning he noticed a "little belly" in the wall 9 As found hereinafter, when Brown asked for arbitration he was, in effect, seeking to have Manning discuss the grievance with respect to McCoy with an "arbitration committee," which would follow up on his unsuccessful efforts to intercept McCoy's discharge, and he was not then seeking to invoke the arbitration procedures under the collective- bargaining agreement 10 See In 7, supra BRICKLAYERS, LOCAL 7 Grievance Procedures set forth in the existing collective bargaining agreements."li And it was further stipulated that the Regional Director for Region 23 of the Board thereafter refused to issue a complaint on the basis of the above charge, that Respondent appealed to the General Counsel from such refusal to issue, and that the General Counsel denied Respondent's appeal. Analysis and Conclusions It is apparent from all the foregoing, and I find, that Manning effected the discharge of McCoy, the steward on the job, on the basis of his own determination that McCoy's work performance was deficient enough to warrant such action, and that he did so after complying with the only applicable term of the existing bargaining agreement, by giving in excess of the required 4 hours' notice to Respondent before terminating a steward, and after informing Respondent both on the telephone and in person thereafter that his decision to terminate was based on his evaluation of the deficiencies in McCoy's work. And it is further apparent from all the foregoing that Brown, the business agent of Respondent, threatened Manning, a member of Respondent, that, in the event Manning discharged McCoy, he would charge Manning before Respondent with violating article XIII, section 16, of Respondent's bylaws, which provides, in relevant part, that "The Steward shall be one of the last two men, including the Foreman, left on the job"; that Brown did file such charges against Manning the day after McCoy's termina- tion; that a hearing was thereafter held on January 27, on these charges before Respondent's trial board at which Manning appeared and gave his business reasons for terminating McCoy, the steward; that the trial board found Manning guilty of violating the above-mentioned section of Respondent's bylaws and fined Manning $100; and that Manning paid the fine, under protest, on February 1. The General Counsel points, in its brief, to the fact that article XIV (duties of foremen), section 2, of Respondent's constitution, in addition to providing that a foreman, like Manning, be a member in good standing of the Internation- al Union, specifically recognizes a foreman as a representa- tive of management; 12 and to the further fact that article II, 11 Article V (grievance procedure) of the current agreement between Respondent and the Company, which is also in evidence as part of G C. Exh 2, provides, as follows Section I All disputes other than jurisdictional disputes that may arise on any job covered by this Agreement shall be handled in the following manner Section 2 It is agreed that a joint board of arbitration composed of three journeymen Bricklayers appointed by Local Union No 7 and three members appointed by the representatives of contractors shall be named within twenty-four (24) hours after either party has requested the establishment of such a board, to whom shall be referred disputes arising over the interpretation of this Agreement The decision of the board shall be final The board shall make its decision or name seventh arbitrator within twenty-four (24) hours. Section 3 . In the event of the failure of the joint board of arbitration to arrive at a solution, Contractors and the Union shall jointly select one (1) additional person to cast the deciding vote Decision of this board shall be made within seventy-two (72) hours after appointment of seventh man It shall be expressly agreed that all questions pertaining to the mason trade shall be settled by those connected therewith and none others it shall further be agreed that pending all differences being submitted to the committee for action work shall proceed without stopping. 519 section 2, of the bargaining agreement between Respondent and the Company excludes therefrom Respondent's constitution and bylaws, and precludes their use in the interpretation of the agreement.13 The General Counsel argues therefrom, and from the fact that Manning was, as already found herein, a supervisor within the meaning of the Act, and was, at all times material, selected, inter alia, for the purpose of adjustment of grievances, that Respon- dent, by its threat to prefer intraunion charges against Manning and by the actual preferring of charges and the imposition of a fine of $100 on Manning, contravened the statutory policy of allowing the Company an unimpeded choice of a representative for collective bargaining and the settlement of grievances. In the General Counsel's view, this is so because these acts were designed to change Manning from a person representing the viewpoint of the Company to one responsive and subservient to Respon- dent's will. Respondent, on the other hand, takes the position, in its bnef, (1) that it offered to arbitrate the question of whether McCoy was discharged for good cause but the Company refused to do so, in violation of section 15, subdivision B, of the working agreement 14 between Respondent and the Company; (2) that such a refusal was itself a violation of the Act; (3) that "since [the Company] refused to arbitrate the dispute, [it] had no choice except to file charges against Manning and discipline him under [its bylaws]," stating further in this connection that "Manning was not fined for the way he applied the bargaining contract while carrying out his supervisory functions but purely and simply for a violation of the union bylaws which he had sworn to uphold and defend," and citing article II, section 2, of the bargaining agreement which excludes Respondent's consti- tution and bylaws from the bargaining agreement and enjoins their use in interpretation of the agreement; 15 and (4) that, Section 8(b)(1)(B) seeks to prevent union interference with an employer's control over its own representatives, but does not regulate internal disciplinary measures which unions might lawfully take against union members. I am satisfied, on the basis of the entire record, and find, that Respondent's defense concerning the Company's failure to arbitrate does not withstand scrutiny, and its 12 The language of this particular section is, as follows: Foremen shall be practical mechanics in the branch of trade over which they exercise supervision Foreman having the authonty to hire, discharge and exercise similar supervisory functions, are recognized as representatives of management . And must be a member in good standing with the International Union. 13 The language of the section referred to above is as follows. The attached Working Conditions are an integral part of the Agreement, and shall supersede all other existing working rules. It is further agreed that neither the Constitution of the International Union nor the By-laws of the Local Union shall be considered a part of this Agreement, nor used in the interpretation thereof. 14 The reference is apparently to sec 15(b) of the part of the agreement entitled "Working Conditions." Sec. 15 refers in (a) to the right of access of a business agent to bncklayers during working hours , and in (b) to his handling of a grievance referred to him by the job steward In the latter respect, the provision reads as follows- In the event a Business Representative is unable to resolve a dispute or grievance referred to him by the job steward, he must refer the matter to the Board of Arbitration. 15 See In 13, supra 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reliance thereon is, in any event, misplaced. Thus, it is apparent from Brown's testimony (1) that when he asked for arbitration, he was, in effect, seeking to have Manning discuss the grievance with respect to McCoy with an "arbitration committee," which would follow up on his thus far unsuccessful efforts to intercept McCoy's discharge; (2) that, whether the arbitration procedures under article V of the bargaining agreement were to be invoked would be up to that committee; 16 and (3) that, when Manning turned him down and precluded a meeting with the arbitration committee by proceeding with McCoy's discharge, he took no steps to advise the arbitration committee thereof. And so far as appears nothing was done by Respondent either orally or in writing, prior to the complaint and answer herein, to invoke article V of the current bargaining agreement. I note, too, that article V speaks of a bipartisan joint board of arbitration to be named within 24 hours after either party has requested the establishment of such a board "to whom shall be referred disputes arising over the interpretation of this Agreement." Accordingly, even had a proper request for a point board of arbitration been made, contrary to my findings herein, there would have been nothing to arbitrate as there was no pending dispute over the interpretation of the contract herein. Moreover, assuming that the discharge of McCoy was an arbitrable matter under the bargaining agreement, and assuming further, contrary to my finding above, that Respondent made a proper request for arbitration and was refused such arbitration by the Company, it is patent that what is involved herein is whether Respondent contravened the Act by its conduct of threatening to discipline Manning as a union member if he discharged McCoy, and of disciplining him, following McCoy's discharge, by prefer- ring charges against him and imposing a $100 fine upon him, which he paid under protest; and not whether the Company improperly refused to arbitrate the dispute over McCoy's discharge. And while Respondent contends herein that the Company's refusal to arbitrate was itself an unfair labor practice, it suffices to point out, as already noted above, that Respondent sought to raise this very issue before the Board by filing unfair labor practice charges against the Company with the Regional Director for Region 23 of the Board in Case 23-CA-3918, the day after it filed its answer to the instant complaint, but the Regional Director refused to issue a complaint thereon and his ruling was thereafter sustained, on appeal, by the General Counsel. Viewed from another perspective, Respondent, by relying in its brief on the refusal of the Company to arbitrate the dispute concerning McCoy asjustification for its preferring charges against Manning as a union member and for its disciplining him thereafter under its bylaws, has acknowl- edged, in effect, that, but for the Company's refusal to i6 Brown's testimony , on redirect examination by Respondent's counsel in this regard, was as follows Q Well, did you have in mind,-did you understand at that time just how the committee would meet and who they'd meet with and where and after what notice and so forth" A Well, I would say I would leave it to the arbitration board and they would set it up themselves I mean, this would be getting out of my duties and into theirs i7 I am cognizant, in this connection, of Respondent's contention in its brief that it "did not discipline Manning because of his activities as a arbitrate the matter of McCoy's discharge, it would not have filed intraunion charges against Manning. Stated otherwise, Respondent has thereby impliedly admitted that its intraunion action against Manning resulted from the way Manning applied the bargaining contract, i.e., Manning's refusal, while carrying out his supervisory duties, to arbitrate the matter of the discharge of McCoy. In addition, I am persuaded, and I infer, and find, on the basis of the entire record that there was another reason underlying the intraunion action against Manning. As already found, both before the so-called request to arbitrate, and also thereafter, Respondent, in substance, attempted to get Manning to treat as decisive, on the question of whether to discharge McCoy, article XIII, section 16, of its bylaws, which restricts the discharge of a steward to such time as he is one of the last two men on the job. And it did so, notwithstanding a provision in the contract expressly excluding all of Respondent's bylaws therefrom, as well as their use in the interpretation of the contract. Thus, Brown admittedly told McCoy, who was ready to quit upon being informed by him of the impending discharge, "you can't make a practice of letting a foreman run the steward off at his discretion." And immediately thereafter, as I have found, when Manning showed Brown the part of the finished wall built by McCoy alone, with the swag in it, Brown told him, in substance, that, as McCoy was a steward and was therefore to be the last one among the rank-and-file bricklayers to be terminated, it would be a violation of the Union's bylaws to discharge him. And finally, when Manning remained firm on discharging McCoy and turned down Brown's so-called request for arbitration of the matter, Brown threatened to bring Manning up on charges before Respondent. In any event, whether Respondent's conduct of threaten- ing to bring Manning up on intraunion charges if he discharged McCoy, and of preferring such charges and fining him was occasioned by Manning's claimed refusal to arbitrate the discharge of McCoy or by his refusal to treat as decisive, on the question of whether to discharge McCoy, article XIII, section 16, of its bylaws, or by both, it is nevertheless clear, and I find, that Manning's performance of his supervisory duties in discharging McCoy and in administering the applicable collective-bargaining contract was an operative factor in bringing about this threat and this disciplinary action.17 Section 8(b)(1)(B) of the Act prohibits conduct by a labor organization which restrains or coerces "an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." As heretofore found, Manning was, at all material times, a supervisor already selected by the Company for these purposes. And it is well established that an employer's right under this foreman of the Company but solely because he violated his own Constitution and By-Laws which he had sworn to defend and uphold." However, since the underlying dispute was between Respondent and the Company over the discharge of McCoy, with Manning, by virtue of his authority to discharge employees and to adjust grievances involving employees under his supervision , acting for the Company in the discharge episode, the distinction urged by Respondent is, in my opinion , without substance. See New Mexico District Council of Carpenters and Joiners of America (A S Horner, Inc), 177 NLRB No 76 BRICKLAYERS, LOCAL 7 521 section of the Act extends, inter alia, to the continuing reliance on a supervisor already so selected.18 Yet, notwithstanding the foregoing, Respondent threatened Manning that it would prefer intraunion charges against him, informed Richardson of this threat, preferred such charges against Manning, and imposed a fine against him, all because he refused, in his capacity as foreman of the bricklayers on the job, to accede to Respondent's demands (a) that he, in effect, treat article XIII, section 16, of the Union's bylaws as decisive on the question of whether to discharge McCoy, contrary to the express exclusion of said bylaws from the bargaining agreement, and based thereon not discharge McCoy, the steward of the bricklayers; and/or (b) that he meet with an arbitration committee concerning the discharge of McCoy. It follows therefrom, and I infer, and find, that Respondent sought thereby to change Manning from a person representing the viewpoint of management to one subservient to Respondent's will. And even though Respondent sought to change Manning's attitude rather than to effect a substitution of someone for Manning, it is nevertheless true, and I infer, and find further, that the pressure exerted here was for the purpose of interfering with the Company's control over its representative, and was calculated to convey to Manning the message that any further disagreement between him and Respondent would invite further reprisals, thereby leaving the Company the alternatives of replacing Manning or of facing de facto nonrepresentation by him.19 Accord- ingly, I conclude, and find, that Respondent's above actions against Manning constituted unlawful restraint and coercion against the Company in violation of Section 8(b)(1)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. The Company is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. K. R. Manning has, at all times material herein, been a representative of the Company, selected by it for the purpose, among others, of the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. 18 Toledo Nos 15-P and 272 of the Lithographers and Photoengravers International Union, AFL-CIO (The Toledo Blade Company, Inc), supra 19 See San Francisco-Oakland Mailers Union No 18, International Typographical Union (Northwest Publications, Inc), 172 NLRB No 252 20 In the event no exceptions are filed as provided by Section 102 46 of 4. By restraining and coercing the Company in the selection of Manning as its representative for the purpose of the adjustment of grievances, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(b)(I)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not violated Section 8(b)(1)(B) of the Act in any respect alleged and not found herein. THE REMEDY Having found that Respondent violated Section 8(b)(1)(B) of the Act, I shall recommend that Respondent cease and desist from restraining or coercing the Company in the manner found herein. Additionally, I find that the restraining and coercive effect of Respondent's unlawful conduct can be removed only if Respondent is required affirmatively to rescind the action of its trial board in fining Manning, to expunge all records thereof from its files, and to repay the $100 assessed against him as a fine and heretofore paid by him under protest, and I shall so recommend. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: 20 ORDER Respondent, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining and coercing United Masonry, Inc., in the selection of representatives chosen by it for the purposes of collective bargaining or the adjustment of grievances: (1) by threatening to prefer intraunion charges against any of such representatives, and/or (2) by preferring intraunion charges against any such representative and trying him on these charges, and/or (3) by imposing a fine upon any such representative and by thereafter collecting same,-all because of the way in which he performed his work as such selected representative. (b) In any like or related manner restraining or coercing United Masonry, Inc., in the selection of representatives chosen by it for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action, designed to effectuate the policies of the Act: (a) Repay to K. R. Manning the sum of $100, the amount assessed against him as a fine and heretofore paid by him. (b) Rescind said fine and completely expunge all record thereof from its files. (c) Advise Manning, in writing, of the action taken by it as required in 2(b), above. 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 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its office and meeting halls copies of the attached notice marked "Appendix."21 Copies of said notice, on forms provided by the Regional Director for Region 23, after being signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps Respondent has taken to comply herewith.22 It is further recommended that the complaint be dismissed insofar as it alleges violations of Section 8(b)(I)(B) of the Act not specifically found. 21 In the event that the Board's Order is enforced by a Judgment of a 22 In the event that this recommended Order is adopted by the Board United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed, this provision shall be modified to read. Order of the National Labor Relations Board" shall be changed to read "Notify the Regional Director for Region 23, in writing , 20 days from the "Posted pursuant to a Judgment of the United States Court of Appeals date of this Order, what steps Respondent has taken to comply herewith." enforcing an Order of the National Labor Relations Board "