Carpenters Dist Council of Sabine Area

178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters District Council of Sabine Area and Vicinity (Miner-Dederick Construction Corpora- tion) and Benedict Bushnell. Case 23-CB-1114 January 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 9, 1971, Trial Examiner Melvin J. Welles issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter the General Counsel filed excep- tions to the Decision and a brief in support thereof. Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint herein be, and it hereby is, dismissed in its en- tirety. MEMBER JENKINS, dissenting: Unlike my colleagues, I would find that the Re- spondent violated Section 8(b)(1)(A) of the Act by its ratification of McCormick's verbal and physical assault upon Bushnell in the presence of rank-and-file laborer employees. My colleagues find that McCormick's con- duct did not violate 8(b)(1)(A) because, in their view, the altercation arose not from the desire of Bushnell or McCormick to protect work for their respective unions, but from the employer's conflicting orders concerning work jurisdiction' or from McCormick's reluctance as ' At a meeting at which Bushnell and McCormick were present, the employer instructed Bushnell to provide two laborers to carry material to carpenters who were building scaffolds In response to a question by McCor- mick, the employer told him that he could get one or two pieces of material a journeyman carpenter, rather than as a steward, to take orders from Bushnell, a laborer.' Moreover, my colleagues note that at the time of the altercation McCormick was a steward not of the Respondent Dis- trict Council, but of Carpenters Local 753, and that Bushnell was a supervisor rather than an "employee" within the meaning of the Act. In my opinion, Bushnell's attempt as the Laborers' foreman to police the employer's working rules under authority delegated to him by the employer was not inconsistent with his desire, as a union member, to protect job opportunities for members of his union. In providing laborers and insisting that laborers carry materials for the carpenters, Bushnell acted not only pursuant to instructions he received from his employer, but also on behalf of his fellow union members. Bush- nell's statements to McCormick, calculated as they un- deniably were to preserve job opportunities for Labor- ers, are a form of legitimate union activity and constitute concerted activity for mutual aid and protec- tion within the meaning of the Act.' To say that McCormick, in verbally and physically assaulting Bushnell, acted as a journeyman carpenter who was expressing personal prejudice rather than as a local steward who was protecting carpenter's work, is not determinative of the Respondent's responsibility for McCormick's conduct. Responsibility of the Re- spondent District Council for the unlawful act of McCormick must be determined in light of the general law of agency. In this regard, the Board has held that "ratification may be manifested by conduct, sometimes even passive acquiescence as well as by words."' In the subject case, the Respondent, in effect, adopted, ratified, and condoned the conduct of McCormick when its business agent, Wheeler, without investiga- tion, and based upon the mistaken belief that Bushnell had assaulted McCormick, sought the discharge of Bushnell and refused to permit carpenters on the site until Bushnell was transferred. The Respondent Dis- trict Council is not immunized from liability for an otherwise unlawful act merely because it acts, though when he needed it, although at the time, the employer did not think that McCormick was actually going to do so. ' After the meeting , Bushnell provided two laborers, told McCormick that the two laborers would work with him, and that if he needed anything to tell them and they would get it for him McCormick replied "I don't work with no damn nigger " Bushnell told him "Aw, you ought not to talk that way We don't want no feud " McCormick then picked up a 4 by 6 piece of lumber and Bushnell told him to "take it easy " Bushnell jumped over a small fence and told McCormick he could not haul the material, that he had two laborers to do that McCormick said "he wasn't waiting for no damn laborers" or working "with no damn nigger," grabbed Bushnell's shirt and hit him on the side of his head with a hammer, calling him a "black son-of- bitch " Bushnell shoved McCormick away, they both fell, and were sepa- rated See, e g , Sandpiper Builders, 152 NLRB 796, 799 SunsetLineand Twine Company, 79 NLRB 1487, 1508, and see United Furniture Workers of America, CIO, 84 NLRB 563, 583 195 NLRB No. 28 CARPENTERS DIST COUNCIL OF SABINE AREA 179 in good faith, on the strength of erroneous information or a mistaken belief as to what actually occurred.' McCormick's abusive language, combined with his assault upon Bushnell, expressed overwhelming hos- tility and carried a threat of violence to the rank-and- file members of the Laborers union. Under the circum- stances, they could reasonably fear that the same fate would befall them if they engaged in union or concerted activities. Accordingly, I would find that McCormick's conduct restrained and coerced rank-and-file laborers in violation of Section 8(b)(1)(A) of the Act.' In any event, in view of the fact that McCormick's conduct occurred in the presence of rank-and-file employees, there is no ment in my colleagues' contention that McCormick's conduct, having been directed against a supervisor, did not constitute restraint and coercion of "employees" within the meaning of Section 8(b)(1)(A) of the Act. For it is well settled that an attack on a supervisor, as such, is violative of Section 8(b)(1)(A) if the employees are aware or may reasonably be expected to become aware of the attack.' Contrary to my colleagues, I would find that the respondent violated 8(b)(1)(B) of the Act by demand- ing that the employer discharge Bushnell and by refus- ing to permit carpenters to work at the site until Bush- nell was transferred to another site. My colleagues find that the Respondent's conduct did not violate the Act because the Respondent was motivated not by Bush- nell's supervisory authority, which my colleagues find to be insubstantial, but by the Respondent's belief that Bushnell had assaulted McCormick.' I would find that the employer, by its instructions to Bushnell concerning the assignment of work, gave Bushnell substantial authority so as to make him a natural choice for the handling of future grievances which might arise.' It is apparent that at the time of the altercation, Bushnell, in attempting to assign two la- borers to carry materials for the carpenters, exercised his authority pursuant to the employer's instructions and as the Laborers' foreman for the employer. It was this very exercise of Bushnell's authority which upset McCormick and which eventually led to the Respond- ent's unlawful acts. Certainly it cannot be said that the Respondent was justified in seeking the discharge of Bushnell merely because McCormick refused to work with laborers or because all carpenters refused to work with Bushnell. To hold otherwise would virtually nullify the Act in any situation where rival labor organizations were in- volved. It would mean that the rights supposedly guar- anteed under the Act, whether of a majority or a minority group, would be at the mercy of the rival group and the employer in any case where the rival group chose to exert pressure and the employer chose to take advantage of it.10 In any event, as previously stated, the fact that the Respondent acted in good faith upon erroneous information and upon the mistaken belief that Bushnell had assaulted McCormick is no justification for its insistence that Bushnell be dis- charged or for its removal of carpenters from the site until Bushnell was transferred." Unlike my colleagues, I would find that the Re- spondent violated 8(b)(2) and 8(b)(1)(A) of the Act, if not by a direct request or demand, at least by a course of conduct that created such circumstances and exerted such pressure on Bushnell's employer that it was caused not to employ Bushnell in a rank-and-file job at the employer's Nederland site. 12 My colleagues dismiss the testimony of Autwell,l' the employer's vice presi- dent, as hearsay, and ignore the testimony of Dodson,'4 Local 753's steward at Nederland, because he did not inform the employer of his conversations concerning Bushnell. Although Autwell's testimony may not be evidence that the Respondent expressly told carpenters to leave Nederland if Bushnell were employed there, the testimony is, nevertheless, admissible to show the content of Merriweather's conversation with Autwell. That is to say, even though the conversation is not admissible to show the truth of the Respondent's state- ment it is, nevertheless, admissible to show that the conversation between Merriweather and Autwell oc- curred.[' Thus, while Autwell's testimony may not be See The Englander Company, Inc, 108 NLRB 38, 39, Cory Corpora- tion, 84 NLRB 972, 977, and Local 404, International Brotherhood of Teamsters, 100 NLRB 801, 811, enfd 205 F 2d 99 (C A 1) NL R B v United Mineworkers, 92 NLRB 916, 949, affd 195 F 2d 961 (C A 6), cert denied 344 U S 920, Gimbel Brothers, Inc, 100 NLRB 870, 877, United Packinghouse Workers Local 46, 153 NLRB 956, 980-981 G & H Towing Company, 168 NLRB 589, 602, Local No 1150, United Electrical, Radio and Machine Workers, 84 NLRB 972, 973, Smith Cabinet Manufacturing Company, 81 NLRB 886, 888-889 After the altercation, McCormick went to the office of Wheeler, the Respondent's business agent, and told him that Bushnell had jumped over the handrail and grabbed him by the collar The employer tentatively de- cided to discharge Bushnell and McCormick Wheeler objected to the firing of McCormick, saying that the employer should not fire a man who was attacked for following orders Wheeler stated that the job site was unsafe for carpenters as long as Bushnell was there and then ordered the carpenters off the job until Bushnell was removed from the project a few days later Toledo Lithographers, 175 NLRB 1072, 1079, affd 437 F 2d 55 (C A 6) '° H N Thayer Co, 99 NLRB 1122, 1133-1134, 1225, enfd as modified 213 F 2d 748 (C A 1), cert denied 348 U S 883, The Grauman Company, 100 NLRB 753, 754, enfd 205 F 2d 515 (CA 10), Cape Cod Trawling Corporation, 23 NLRB 208, 216 11 See cases cited herein at fn 5 and see Baker Hotel of Dallas, Inc, 134 NLRB 524, 536, affd 311 F 2d 528 (C A 5) 11 Westwood Plumbers, 122 NLRB 726, 735, Northwestern Montana District Council (Glacier Park Company), 126 NLRB 889, 897-898 13 Autwell testified that the employer's superintendent at Nederland, Merriweather, told him that "it would not be a good idea at that time to send him [Bushnell] down there because the business agent for the Carpenters had been down there and told their steward [Dodson] if Ben Bushnell did show up there to work for them, to leave, the carpenters to leave " 1' Dodson testified that the Respondent's assistant business agent told him to remove the Carpenters from the job if Bushnell were employed there, but that one day later he was told to "forget about it, not to leave the job" and "to call them if anything turned up " " Section 10(b) of the Act provides that a proceeding before the Board is to be conducted in accordance with the rules of evidence applicable in the (Cont ) 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence of a direct request or demand by the Respond- ent upon the employer, I am convinced that it and the testimony of Dodson are evidence that the Respondent, by its course of conduct, created such circumstances and exerted such pressure on Bushnell's employer that it was caused to transfer Bushnell to a site other than Nederland. Taking into account the employer's knowl- edge of the Respondent's demonstrated ability to cause a work stoppage based upon Bushnell's presence on the St. Elizabeth site, where carpenters and laborers were jointly employed, I am convinced that the Respondent gave the employer good cause to believe that if it trans- ferred Bushnell to the Nederland site, where carpenters and laborers were also jointly employed, the Respond- ent could and would cause an interruption in the em- ployer's work at Nederland. Under the circumstances, I would find that the record as a whole furnishes sub- stantial evidence that the Respondent intended the re- sult it achieved at the Nederland site, and thereby vi- olated 8(b)(2) and 8(b)(1)(A) of the Act.16 Based upon the foregoing, I conclude that the Re- spondent violated Section 8(b)(1)(A) and (B) and 8(b)(2) of the Act. Accordingly, I would order the Respondent to make Bushnell whole for any loss of wages he may have suffered as a result of its interfer- ence with his employment. I would also require the Respondent to refrain from all such conduct in the future and to post appropriate notices. District Courts of the United States See Texarkana Motor Co v Brushears, 37 SW 2d 773, 774 (Tex Ct Civ App.), O'Connor v Nat'l Motor Club of Texas, Inc, 385 SW 2d 558, 560-561 (Tex Ct Civ App), and Okan Pipeline Company v. Eland, 394 SW 2d 548, 551 (Tex Ct Civ App) 16 It is well established that a union which has violated Section 8(b)(2) of the Act by causing employer discrimination is also guilty of an unfair labor practice under Section 8(b)(1)(A) See cases cited at 98 L Ed 488, 492, 4 L Ed 2d 2016, 2020, and I8L Ed 2d 1651, 1654 The General Counsel's failure to allege in the complaint that by the conduct described therein the Respondent violated 8(b)(1)(A) as well as 8(b)(2) does not preclude the Board from finding a violation of 8(b)(1)(A) See American Newspaper Publishers Assn v NLRB, 193 F 2d 782, 799 (C A 7) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Trial Examiner: This proceeding was heard at Beaumont, Texas, on March 3, 1970, pursuant to a charge filed October 9, 1970, and a complaint issued Decem- ber 18, 1970, alleging that Respondent Union violated Sec- tion 8(b)(1)(A) and (B) and 8(b)(2) of the Act. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and the Respondent Union, I made the following: more than $50,000 from points outside the State of Texas. I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent Car- penters District Council of Sabine Area and Vicinity is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues The alleged violations in this case all stem from an alterca- tion between a laborer foreman, Benedict Bushnell, and a carpenter employee and union steward, Odis McCormick, on a construction job for Miner-Dederich Co., at Beaumont, Texas. Crucial to the alleged violations according to the Gen- eral Counsel, are whether McCormick or Bushnell was the agressor and the reason for the altercation. The General Counsel, contending that McCormick was the agressor, al- leges that Respondent Union thereby violated Section 8(b)(1)(A) because McCormick was a union steward, because the fight allegedly arose over Bushnell's attempt to protect laborers' work, and because it was witnessed by many em- ployees and therefore would tend to restrain and coerce them from engaging in activities protected by the Act. Following the fight, Respondent's agent Auvie B. Wheeler demanded that the Company fire Bushnell and refused to permit the carpenters on the job to work until the Company did so. The General Counsel alleges that by this conduct Respondent Union violated Section 8(b)(1)(B). Finally, General Counsel alleges that Respondent Union violated Section 8(b)(2) and (1)(A) by its asserted refusal to permit the Company to put Bushnell on a rank-and-file job at another construction site. B. The Critical Events On September 18, 1970, Ivan Boudreaux, business manager of Labor Local 870, was called to the Company's St. Elizabeth Hospital job by Job Steward John Taylor. After some discussion by Boudreaux, Company Superintendent Charles Neichoy, Taylor, and Carpenter Steward Odis McCormick, with Labor Foreman Benedict Bushnell present, it was agreed that laborers would furnish and carry material to carpenters for purposes of building scaffolds. Nei- choy instructed Bushnell to furnish two laborers to the car- penters for carrying material to wherever the carpenters wanted it. McCormick then asked Neichoy if, when he needed one or two pieces of material, he could get it. Neichoy said that he could.' Bushnell and McCormick then left the group. Bushnell got two laborers, and told McCormick that they would work with him, that if McCormick needed any- thing, he was to tell them and they would get it for him. McCormick said "I don't work with no damned nigger." Bushnell told him "Aw, you ought not talk that way ... We don't want no feud " McCormick then picked up the 4 by 6 (or 4 by 4; it doesn't matter), and Bushnell told him "take it easy."' What happened next is in sharp dispute. According to Bushnell, McCormick then turned around, hit him on his hard hat with his hammer, "and cussed me black son-of-a- bitch." McCormick then drew back "to hit me again," Bush- FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Miner-Dederick Construction Company, herein called the Company, is a Texas corporation engaged in general con- struction work with its principal office at Houston, Texas. During the past 12 months it purchased supplies valued at ' These facts are based on the uncontradicted testimony of Neichoy and Boudreaux Neichoy testified that he did "not think at the particular time that he [McCormick] was going to get the material I lust thought that he was asking that question to satisfy his own mind at that time." He added that his response to McCormick was not qualified in any way ' The foregoing is based primarily on the credited testimony of Bushnell McCormick's version of this does not include the conversation, but he did not deny the remarks as testified to by Bushnell CARPENTERS DIST. COUNCIL OF SABINE AREA nell shoved McCormick away, and both men fell in the pile of wood. Taylor and Robert Simon, a laborer, then pulled them apart. Bushnell had not, he testified, made any menac- ing gesture. McCormick testified that when he picked up the 4 by 6, Bushnell jumped over a small railing and grabbed him by the collar, that he then hit Bushnell with his hammer. He added, on cross-examination, that Bushnell had his fist drawn back to hit him. Also testifying about the affray to a greater or lesser extent were Boudreaux, Neichoy, R. E. Lampin, a heavy equipment operator on the job, and Robert Simon, a laborer. Neichoy was about 75 feet away from the fight, and could not see any more than "a white hand" with a hammer in it coming down. He testified that the fight did not occur until 2 or 3 minutes after his conversation with McCormick, when he told McCormick it was all right for McCormick to pick up a board. Boudreaux, who was standing next to Neichoy, also testified that there was no way for them to see just what was happening. Lampin was standing with Neichoy and Bou- dreaux. He testified, however, that Bushnell went across the rail, grabbed McCormick by the shirt, and then McCormick dropped the 4 by 6 he was holding and hit Bushnell. As Lampin was standing with Neichoy and Boudreaux, who both said they could not see the fight from where they were, I place no reliance on his testimony. The closest to the actual fight, about 10 feet or so away, was Simon, who, along with John Taylor, separated McCormick and Bushnell after they grappled and fell into woodpile. Si- mon testified that Bushnell jumped over the small fence, told McCormick he could not haul the material, that he had two laborers to do that, and McCormick said he "wasn't waiting for no damn laborers," or "with no damn nigger," grabbed Bushnell, and hit him on the side of his head with the ham- mer, calling him a "black son-of-a-bitch." I believe that both Bushnell and McCormick were testify- ing honestly, for it is quite natural for each of the participants in a heated argument, particularly one which results in fighting, to believe that the other was the aggressor and he the defender. Indeed, the two versions are not that far apart. I rely on Simon, who was a credible witness, in concluding that Bushnell did jump the fence, that he did not raise his arm in a threatening manner, that McCormick grabbed at Bushnell's shirt, and hit him on the head with his hammer, calling him a "black son-of-a-bitch." McCormick's version of the whole incident is somewhat truncated, in my view, for it does not account for the at least 2 or 3 minutes, as Neichoy testified, between McCormick's leaving Neichoy and the fight which took place 75 feet away. For that reason, and because Bush- nell's recollection appeared better than McCormick's and closer to that of the nearest eyewitness, Simon, I credit Bush- nell's account of what was said, which was largely confirmed by Simon. I also credit Respondent's business agent, Auvie Wheeler, who testified that McCormick came in to his office (lust across the street from the jobsite) acting "very scared," and "upset," and told him that Bushnell had "jumped over the handrail and grabbed him by the collar." Bushnell then came over to the jobsite and spoke to Neichoy, who said he thought he would fire both Bushnell and McCormick. Wheeler ob- jected to the firing of McCormick, saying in effect that the Company should not fire a man who was attacked for follow- ing orders (meaning, I assume, Neichoy's response to McCor- mick's question about carrying material). He added that the place was unsafe for carpenters as long as Bushnell was there, and he was going to ask the carpenters to leave the job. They did so, not returning until Bushnell was removed from the 181 project, following a meeting with Company Vice President Autwell a few days later.' On all these facts, I am convinced that Bushnell was not the aggressor, that he did not in fact threaten McCormick, and that McCormick struck the first, and only, blow , follow- ing which the two men grappled and fell into the woodpile. On the other hand, the facts satisfy me that McCormick reasonably thought that when Bushnell jumped the railing he might be attacking him, and fully believed then , and when he went across the street to see Wheeler, that he had acted in self-defense . By the same token, Wheeler, not unreasonably, believed McCormick and, accordingly , that it was unsafe for carpenters to remain on the job. This belief was perhaps reinforced by laborer business agent Boudreaux 's willingness to agree with the Company 's initial view that both men be fired. Subsequently, Bushnell was sent to other jobs for the Com- pany. As detailed in section C, infra, there is no probative evidence that the Respondent caused the Company not to send him to a particular company jobsite at Nederland, Texas. C. The Alleged Violation of Section 8(b)(1)(A) and (2) With regard to whether Bushnell or McCormick was the aggressor in the September 8 altercation, I see no basis for finding a violation of 8(b)(1)(A) by Respondent District Council. In the first place, although McCormick was a union steward, there is no evidence to show that he was a District Council steward, and I suspect, indeed, that his stewardship was on behalf of Carpenters Local Union No. 753, not even a respondent in this case. Secondly, it is clear, as noted above, that the somewhat conflicting orders, or statements, by Su- perintendent Neichoy, with Bushnell and McCormick each convinced that the other was wrong as a result of the conflict, underlay the altercation Thus, I reject the General Counsel's contention that Bushnell was engaging , as a member of La- borers' Union, in protecting laborers' work, except inciden- tally and peripherally, or that McCormick was in any sense acting as a union steward, or motivated by protecting "car- penters' work." If anything, McCormick was upset that a laborer, or "colored" man or "black,"' was giving an order to a journeyman carpenter. Thus, even if McCormick were regarded as Respondent' s agent, and assuming that he was the aggressor, I do not find that this conduct was calculated to, or would tend to, restrain and coerce rank-and-file em- ployees (Bushnell, of course, was a supervisor) in the exercise of any Section 7 rights. As to the Section 8(b)(2) allegation, there is no probative evidence that Respondent attempted to cause, or did cause, the Company to refuse to transfer Bushnell to an employee position at the Company's Nederland, Texas, jobsite. The General Counsel relies on the testimony of James Dodson, Local 753's steward at Nederland, and William Autwell, the Company's vice president. Dodson testified that one William Carr, an assistant business agent of Respondent, instructed him to remove the carpenters from the Nederland job if Bush- nell was employed there. However, Dodson also testified that later the same day he went to the union hall and was told to "forget about it, not to leave the job," and "to call them if anything turned up." He also testified that he did not inform any company official or supervisor of either conversation. Autwell testified that the company superintendent at Neder- ' At this meeting, Boudreaux was agreeable to the Company letting both men go, but Wheeler was not In his testimony before me, it was obvious that "colored people" was used by McCormick as a synonym for "laborer " 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD land, Tommy Merriwether, told him that "it would not be a good idea at that time to send him [Bushnell] down there because the business agent for the Carpenters had been to the job and told their steward if Ben Bushnell did show up there to work for them, to leave, the carpenters to leave." This is even less than hearsay on hearsay, for the testimony of Aut- well does not even tell us how Merriwether said he got the message. Finally, Eddie Bonsall, carpenter foreman for the Company at Nederland, testified credibly that no one ever gave him instructions, or told him, that the carpenters were not to work if Bushnell came on the job. In the absence of any probative evidence of Respondent Union causation, I shall dismiss the Section 8(b)(2) and (1)(A allegations relating to the failure of the Company to transfer Bushnell to its Nederland job. D. The Alleged Violation of Section 8(b)(1)(B) Although as a general proposition a union's attempt to coerce an employer into firing a supervisor violates Section 8(b)(l)(B), I cannot subscribe to the view that such action is per se and irrebuttably a violation. Nor, I think, does the General Counsel so contend here, for he concedes that no violation could be found if Bushnell started the fight. It would be a rather harsh and rigid application of 8(b)(1)(B) to say that a union could not under penalty of violating the law help to protect its members and employees it represented against potential danger, because the danger happened to be in the person of a company supervisor. Plainly there is tension be- tween 8(b)(1)(B) on the one hand and the protected rights of employees and their representatives, and perhaps even a un- ion's obligation to protect the employees, on the other. I suppose the General Counsel is at least close to the mark when he says in his brief to me that there could be no viola- tion if Bushnell was guilty of provoking the fight because "then it could not be argued that Bushnell was acting in his supervisory capacity at the time the event took place ... " I think the General Counsel does not go quite far enough, however. The test of whether the attempt to remove a super- visor (or, as many of the cases involve, fining or otherwise disciplining a supervisor who is also a union member) violates Section 8(b)(1)(B) seems to me to turn more on the Union's motivation, that is, whether it seeks his removal (or fines or disciplines him) because of his supervisory conduct, or for some other reason. Local Union No. 453, Brotherhood of Painters, Decorators and Paperhangers ofAmerica, AFL-CIO (Syd Gough and Sons, Inc.), 183 NLRB No. 24, arising in the context of a fine rather than removal, seems to support this approach. There, the Board found no violation of 8(b )(1)(B) in a union's fining a supervisor for returning to the job with- out giving the union advance notice, a requirement which existed for purely union reasons and had nothing to do with his supervisory functions. Application of the principles I derive from the Board cases to the instant case is not easy. I have found above that McCormick was actually the aggressor, in the sense that Bushnell was not attacking or attempting to strike McCor- mick, so that McCormick's hitting Bushnell on his hard hat with a hammer was the first blow. However, I noted also that I believe McCormick thought that Bushnell was going to strike him, and although he thought erroneously his fears were not unreasonable. Similarly, I have concluded that Re- spondent's business agent, Wheeler, was motivated by a desire to protect McCormick, who came to him "scared" and reported to him that he had been attacked, and any other carpenters on the job. The fact that Bushnell was a supervisor, and that the dis- pute arose over an instruction given by Bushnell to McCor- mick, appears to be happenstance, for Wheeler's insistence that Bushnell be discharged stemmed from Wheeler's belief that Bushnell had assaulted McCormick, and Wheeler, I be- lieve, would have taken the identical position had Bushnell been a rank-and-file employee. Two other considerations appear to me to militate against an 8(b)(1)(B) finding. First, although Bushnell was a super- visor, he was not a supervisor of the carpenter employees. He would normally, therefore, not be directing the carpenters in their work, other than in the very limited sense that a foreman of one craft group might give minor directions to employees in another group when they are working together or in close proximity to one another. This reinforces my view that Re- spondent was not motivated by Bushnell's supervisory status. Second, the Board has held, in adopting a Trial Examiner's finding of a violation of Section 8(b)(1)(B), that it is not essential to the violation that the supervisor has actually been designated as the employer's bargaining or grievance repre- sentative; it suffices if the disciplined supervisor merely "has such present substantial other supervisory authority" (empha- sis supplied) as to make him a natural choice in the future for handling grievances. 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. See also International Association of Heat & Frost Insulators & Asbestos Workers, Local 127 (Cork Insulating Company of Wisconsin, Inc.), 189 NLRB No. 124. Here, the supervisory authority of Bushnell was hardly "substantial"; he apparently drove a truck much of the time. And, as indicated, his super- visory authority over the carpenters on the job was virtually nonexistent, so that he was hardly a natural choice to handle grievances of the carpenter employees. I realize that in Cork Insulating Company, supra, the Board, although reciting with approval its reasoning in Toledo Blade, proceeded to find that the individual fined was not a statutory supervisor, suggesting that the Board may be of the view that if a man is a supervisor within the meaning of Section 2(11), he ipso facto has "sub- stantial authority." If so, then my reliance on Bushnell's limited authority may be misplaced. But, for all the reasons stated above, I conclude that Respondent has not violated Section 8(b)(1)(B) by its conduct in this case.' CONCLUSION OF LAW The evidence does not establish that Respondent engaged in the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and upon the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety. ' Contrast the result reached in Carpenters District Council of Saline Area and Vicinity, and Carpenters Local Union No 610, 193 NLRB No 63