Sheet Metal Workers, Local 361

SHEET METAL WORKERS, LOCAL 361 355 Sheet Metal Workers' International Association, Lo- cal Union No. 361 (Langston & Co,, Inc.) and Elmer C. Langston. Case 15-CB-1159 February 11, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On August 25, 1971, Trial Examiner Thomas S. Wil- son issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs and Re- spondent Union filed an answering 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, conclusions, and recommendations only to the extent consistent herewith The complaint alleged that Respondent Union, Sheet Metal Workers' International Association, Local Un- ion No. 361, herein called Local 361, violated Section 8(b)(1)(B), 8(b)(1)(A), and 8(b)(2) of the Act when it tried, fined, and expelled Elmer Langston (Elmer), the Charging Party, who is the sheet metal superintendent for Langston & Co., Inc., herein called the Employer, and who was also a member of Local 361. The Trial Examiner dismissed these allegations. For the reasons stated below, we disagree. The Employer is a family-owned corporation en- gaged in the plumbing, heating, air-conditioning, and sheet metal installation and repair business. Its presi- dent is Earl Langston (Earl), the brother of Elmer. By virtue of its authorization to the North Louisiana Roofing & Sheet Metal Contractors' Association, the Employer is a party to a contract with Local 361, con- taining an admittedly legal 8-day union-security clause and providing for the submittal to a joint board of all disputes arising out of the interpretation and enforce- ment of the collective-bargaining agreement. While in practice the Employer has obtained its sheet metal workers from Local 361, it is not clear from the face of the contract's referral provision that the hiring arrange- ment between the parties is an exclusive one. Elmer has been employed by the Employer since 1949. Since about 1955 he has been the Employer's sheet metal department superintendent in charge of all of the Employer's sheet metal work. On occasion, when work was not available from the Employer, he worked elsewhere out of Local 361's hall. Elmer has been a member of Local 361 from'between 12 to 15 years. The Sheet Metal Workers' International Association Con- stitution and Ritual, adopted by Local 361, permits foremen and superintendents who are not owners or partners in a contracting business to obtain and retain membership in Local 361. In 1969, the Employer contracted to install the sheet metal work in connection with the construction of two hospitals: the LaSalle Hospital in Jena, Louisiana, and the Compass Medical Facility at England Air Force Base, herein referred to as Jena and England, respec- tively. Elmer was in charge of the sheet metal work at both these sites until February 18, 1970.2 In such capacity, the Trial Examiner found, and Local 361's brief admits, Elmer did all the hiring and firing and adjusted on-the-job grievances for the Employer. From the beginning of the Jena job until February 18, the Employer's sheet metal work at Jena was done by two employees under the direction of Elmer, both of whom were members of Local 361. On February 18, the Employer transferred all three men to the England site. According to the uncontradicted testimony of Earl, the Employer was forced to make this move be- cause Local 361 refused to supply it with additional sheet metal workers, so that the Employer had to con- centrate its whole force at England. Earl also testified, without contradiction, that Elmer had no authority at Jena from February 18 to May 8, and that the Em- ployer had subcontracted the Jena job on an oral day- to-day arrangement to Mechanical Manpower, Inc., herein called MM, a corporation formed on February 9, whose sole direction is under Lloyd Langston, son of Earl and also a stockholder and director of the Em- ployer. Under this arrangement, MM supplied sheet metal workers whom, Earl admitted, he knew to be members of Allied Federation of Unions, Local No. 101, herein called District 101.' However, Earl ac- knowledged that he never informed the general con- tractor, James Radcliffe, that the Employer was not continuing the sheet metal work under its subcontract on the Jena project. On April 1, two employees, one of them Lloyd Lang- ston, and both of them members of District 101, began working at Jena. About this time Local 361 heard ru- mors that the Employer was working non-Local 361 sheet metal workers at Jena. These rumors were verified on two occasions thereafter. Toward the end of April, Local 361's business manager, O. S. Anthony, ' Respondent Union's request to disregard the General Counsel's excep- tions as failing to meet the requirements of the Board's rules and regulations is hereby denied as lacking in merit 195 NLRB No. 65 x All dates hereinafter referred to are in 1970. The parties stipulated that District 101 and Local 361 had for a number of years been involved in numerous Labor Board and court cases, allegedly arising out of the raiding tactics of District 101 SHEET METAL WORKERS , LOCAL 361 355 Sheet Metal Workers' International Association, Lo- cal Union No. 361 (Langston & Co., Inc.) and Elmer C. Langston. Case 15-CB-1159 February 11, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On August 25, 1971, Trial Examiner Thomas S. Wil- son issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs and Re- spondent Union filed an answering 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, conclusions, and recommendations only to the extent consistent herewith The complaint alleged that Respondent Union, Sheet Metal Workers' International Association, Local Un- ion No. 361, herein called Local 361, violated Section 8(b)(1)(B), 8(b)(1)(A), and 8(b)(2) of the Act when it tried, fined, and expelled Elmer Langston (Elmer), the Charging Party, who is the sheet metal superintendent for Langston & Co., Inc., herein called the Employer, and who was also a member of Local 361. The Trial Examiner dismissed these allegations. For the reasons stated below, we disagree. The Employer is a family-owned corporation en- gaged in the plumbing, heating, air-conditioning, and sheet metal installation and repair business. Its presi- dent is Earl Langston (Earl), the brother of Elmer. By virtue of its authorization to the North Louisiana Roofing & Sheet Metal Contractors' Association, the Employer is a party to a contract with Local 361, con- taining an admittedly legal 8-day union-security clause and providing for the submittal to a joint board of all disputes arising out of the interpretation and enforce- ment of the collective-bargaining agreement. While in practice the Employer has obtained its sheet metal workers from Local 361, it is not clear from the face of the contract's referral provision that the hiring arrange- ment between the parties is an exclusive one. Elmer has been employed by the Employer since 1949. Since about 1955 he has been the Employer's sheet metal department superintendent in charge of all of the Employer's sheet metal work. On occasion, when work was not available from the Employer, he worked elsewhere out of Local 361's hall. Elmer has been a member of Local 361 from between 12 to 15 years. The Sheet Metal Workers' International Association Con- stitution and Ritual, adopted by Local 361, permits foremen and superintendents who are not owners or partners in a contracting business to obtain and retain membership in Local 361. In 1969, the Employer contracted to install the sheet metal work in connection with the construction of two hospitals: the LaSalle Hospital in Jena, Louisiana, and the Compass Medical Facility at England Air Force Base, herein referred to as Jena and England, respec- tively. Elmer was in charge of the sheet metal work at both these sites until February 18, 1970.2 In such capacity, the Trial Examiner found, and Local 36l's brief admits, Elmer did all the hiring and firing and adjusted on-the-job grievances for the Employer. From the beginning of the Jena job until February 18, the Employer's sheet metal work at Jena was done by two employees under the direction of Elmer, both of whom were members of Local 361. On February 18, the Employer transferred all three men to the England site. According to the uncontradicted testimony of Earl, the Employer was forced to make this move be- cause Local 361 refused to supply it with additional sheet metal workers, so that the Employer had to con- centrate its whole force at England. Earl also testified, without contradiction, that Elmer had no authority at Jena from February 18 to May 8, and that the Em- ployer had subcontracted the Jena job on an oral day- to-day arrangement to Mechanical Manpower, Inc., herein called MM, a corporation formed on February 9, whose sole direction is under Lloyd Langston, son of Earl and also a stockholder and director of the Em- ployer. Under this arrangement, MM supplied sheet metal workers whom, Earl admitted, he knew to be members of Allied Federation of Unions, Local No. 101, herein called District 101.' However, Earl ac- knowledged that he never informed the general con- tractor, James Radcliffe, that the Employer was not continuing the sheet metal work under its subcontract on the Jena project. On April 1, two employees, one of them Lloyd Lang- ston, and both of them members of District 101, began working at Jena. About this time Local 361 heard ru- mors that the Employer was working non-Local 361 sheet metal workers at Jena. These rumors were verified on two occasions thereafter. Toward the end of April, Local 361's business manager, O. S. Anthony, ' Respondent Union's request to disregard the General Counsel's excep- tions as failing to meet the requirements of the Board's rules and regulations is hereby denied as lacking in merit All dates hereinafter referred to are in 1970 The parties stipulated that District 101 and Local 361 had for a number of years been involved in numerous Labor Board and court cases, allegedly arising out of the raiding tactics of District 101 195 NLRB No. 65 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and other union representatives went to the England project and asked Elmer about the District 101 work- men at Jena. According to the credited testimony of Anthony, Elmer told Anthony that he had checked their cards and that both of the men were in good standing with Local 361. However, as previously men- tioned, it is undisputed that Elmer had no authority at the Jena project at this time. On April 29, Local 361 filed a grievance with the North Louisiana Roofing & Sheet Metal Contractors Association charging the Employer with violating the referral and union-security provisions in the collective- bargaining contract . On May 1 , Local 361 again checked the Jena job and confirmed that neither of the two sheet metal workers had a Local 361 card and both had District 101 cards. That same day Local 361 sent the Employer a telegram requesting it to comply with the union-security clause of the contract between the parties in regard to the two men on the Jena job. Later that same day, the Employer replied by stating that Local 361 had not complied with the referral provision which precedes compliance with the union-security clause . The Employer also said that Local 361's filing of a grievance should take care of the union-security problem. In addition, the Employer told Local 361 to have men report to England and that it would select and transfer them to Jena. On May 4, Local 361 struck Jena because of the presence of the District 101 men. On May 8, the Em- ployer and Local 361 settled their differences concern- ing the District 101 men and the strike ended. Two Local 361 members were returned to the Jena job by Elmer on May 11, while Local 361 sent at least four workers to England as requested. Four of these men were paid off and discharged on May 11, the day they reported. During the following week, Local 361 sup- plied the Employer with about 15 workers. The Employer's portion of the Jena project was com- pleted on or about June 1 by the two Local 361 men without further trouble. However, there was trouble between the Employer and Local 361 at the England site, where on May 28 the Employer paid off all the Local 361 employees without indicating when, if ever, they might be recalled. Local 361 then filed another grievance against the Employer claiming that the Em- ployer had locked out its Local 361 employees and had failed to make contributions to the health and welfare fund for the District 101 men who had been employed at Jena. This grievance was heard by the joint board which decided that the charge of lockout was unjus- tified, but upheld the grievance as to the nonpayment of the contractually required contributions. Thereafter, Local 361 collected these contractual contributions by legal action. Subsequently, both the Jena and England projects were completed. At the time of the hearing herein, the Employer had no sheet metal work in progress. On July 17, Local 361 filed the charges against El- mer, the nature of which will be discussed below and which are the basis of the unfair labor practice allega- tions herein . A hearing was held on October 16, after which the trial committee found Elmer guilty as charged and recommended that he be expelled from Local 361 for life and fined $2,500 . This decision was thereafter affirmed by the membership . On December 4, Elmer appealed this decision to the International, which appeal was still pending as of the date of the hearing. In order to prosecute his appeal, Elmer paid $50 as a portion of his fine. It is undisputed that Elmer Langston is a supervisor within the meaning of the Act, and that he was fined by Respondent in the amount of $2,500 and expelled from membership in Respondent. The charges against Elmer Langston which resulted in the fine and expulsion are set forth in detail in the Trial Examiner's Decision . They include a number of items which were part and parcel of his supervisory duties, including, inter alia, "fireing [sic] Sheet Metal Workers sent to the job before they had a chance to prove themselves," and an allegation that he "did dis- charge one man without pay." It is clear from our prior decisions that union fines predicated upon a member's conduct and action as a supervisor violate Section 8(b)(1)(B) of the Act. Toledo Locals Nos. 15-P and 272 of the Lithographers and Photoengravers International Union, AFL-CIO (The Toledo Blade Company, Inc.), 175 NLRB 1072; San Francisco-Oakland Mailers ' Union No. 18, ITU (Northwest Publications, Inc.), 172 NLRB No. 252; and Sheet Metal Workers International Association, Local Union 49, AFL-CIO (General Metal Products, Inc.), 178 NLRB 139, enfd . 430 F.2d 1348 (C.A. 10). Simi- larly, the expulsion of a supervisor from a union, based upon the same conduct , violates the proscriptions of Section 8(b)(1)(B) of the Act , as amended. Dallas Mail- ers Union, Local No. 143, and International Mailers Union (Dow Jones Company, Inc.), 181 NLRB 286, enfd . 445 F.2d 730 (C.A.D.C.). The Trial Examiner , however, did not find the con- duct here to be violative of the Act, because, in his view, the Union disciplined Elmer Langston for actions which "the Union, as a reasonable person , could and did believe in good faith and for good cause constituted unfair labor practices against it, his own Union, in violation of the 8(a) part of the same Act." We disagree with both the factual and legal basis for his conclusion, at least upon this record. The Trial Examiner did not find that the above- mentioned discharges made by Langston were dis- criminatory or in any way violative of our Act. Yet it SHEET METAL WORKERS, LOCAL 361 357 is uncontested that the fine and expulsion were based, in part at least, upon Langston's having initiated such discharges. This is sufficient to establish a violation of Section 8(b)(1)(B), and, contrary to the Trial Exam- iner, we so find. We turn now to his dismissal of the 8(b)(1)(A) and (2) allegations. The internal union disciplinary charges against Elmer Langston included the following allega- tions: Bro Elmer Langston was a party to and knowingly agreed to work with and encourage the Company to hire Employee's of Allied Federations of Un- ions Local 101. Bro. Elmer Langston membership # 339041 was and still is Foreman, with the right to hire and fire Employee's. The above Employee's were hired and placed to work at Jena, Louisiana. Bro. Elmer Langston stated they were members in good standing of the Union, but after checking they were members of Local # 101, Allied Federa- tion of Union Local # 101. Article 17, Sec. 1 (f). [Sic.] We believe it plain from the above-quoted allegation that the Union was prosecuting Elmer Langston for hiring Local 101 members, rather than hiring members in good standing of Respondent, or, in other words, for not insisting, in his capacity as foreman, that anyone hired be a member of Respondent as a condition preceding hire. The Trial Examiner dismissed these allegations on the grounds that the evidence did not show an immedi- ate protest by Respondent when Local 101 men were hired, and that the protest came more than 8 days after their hire, at which time it would have been proper to require them to join Respondent Union as a condition of continued employment. But it is our view that the Trial Examiner's explana- tion does not square with the union allegations against Elmer Langston. Those allegations make no complaint of a failure to enforce a union-security clause after the employees were hired. Instead, they complain that "The above Employee's [sic] were hired and placed to work at Jena, Louisiana." The Union's complaint, then, was that Elmer had sanctioned the hiring of these men. And why was this hiring offensive to the Union? Because, to paraphrase the rest of the allegation, they were not members of Respondent but, instead, were members of another union. Thus Elmer's sin, as the Union saw it, was that he failed to require membership in Respondent as a condition preceding employment.` We therefore find that Respondent's discipline of Lang- ston was, in part, an attempt to cause him, as the ' Since we find the language of the union allegations clear enough in this respect, we need not reach General Counsel's exceptions relating to the Trial Examiner's exclusion of the transcript of the Union hearing which was offered as further proof that this was indeed the gravamen of this allegation Employer's representative, unlawfully to discriminate against applicants for employment in violation of Sec- tion 8(a)(3) of the Act. We find that, by engaging in such conduct, Respondent violated Section 8(b)(1)(A) and (2) of the Act. The gravamen of the Trial Examiner's rationale for dismissal requires some further comment. In his deci- sion he reviews the detailed sequence of events which preceded the union disciplinary action against Lang- ston and concludes that the Employer's principals were, throughout, engaged in "a surreptitious, clandes- tine scheme" designed to rid the employer of the Re- spondent Union and, if necessary, to replace it with another union, a "hated rival" of Respondent. He fur- ther appears to conclude that Elmer Langston was in- volved in this conspiracy, and that the Union's actions here were designed to combat this improper activity by the Employer, and, particularly, to deter Langston from participating therein. Without weighing the truth or relevance of this view of the facts, the evidence in this record demonstrates that Respondent exceeded permissible legal bounds in the actions it took. Thus, however sincerely or legiti- mately concerned Respondent may have been at what it regarded as overall improper conduct by the Em- ployer and its Supervisor Elmer Langston, it must nev- ertheless be found to have run afoul of specific prohibi- tions of our Act when it fined Langston for (a) exercising permissible and normal supervisory func- tions with respect to the discharge of employees, and (b) failing to require membership in Respondent as a condition precedent to employment with the Em- ployer. Neither the Trial Examiner nor we have the au- thority to overlook or excuse such violations of the statute merely because Respondent may have been motivated in resorting to such excesses by a belief, however good faith that belief may have been, that in so doing it might succeed in deterring Employer or its agents from violating other provisions of our Act. A union faced with such concerns is not without remedies. Contractual violations can be remedied through appropriate grievance procedures. Violations of this Act may be pursued by filing charges with this Agency. Self-help, through the exercise of statutorily protected strike and picketing activity, may also be available. But the use of coercive tactics specifically banned by Section 8(b) will not be sanctioned by this Board. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Sheet Metal Workers' International Association, Local Union No. 361, its officers, agents, and representatives, shall: 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Restraining or coercing, or attempting to restrain or coerce Langston and Company, Inc., in the selection or retention of its representatives for the purposes of collective bargaining or the adjustment of grievances by trying, fining, and expelling, or otherwise disciplining, Superintendent Elmer Langston or any other super- visor of the Employer, because of his conduct and per- formance of work as the Employer's selected represent- ative for the purposes of collective bargaining or the adjustment of grievances. (b) Causing or attempting to cause Langston and Company, Inc., to discriminate against employees within the meaning of Section 8(a)(3) of the Act by trying, fining, and expelling Elmer Langston, the Em- ployer's representative, for the purposes of collective bargaining and adjustment of grievances, or any other supervisor for hiring nonunion employees. (c) In any like or related manner restraining or coerc- ing Langston & Co., Inc., in the selection and retention of its representatives for the purposes of collective bar- gaining and the adjustment of grievances, or restraining or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Repay to Elmer Langston the $50 he posted to prosecute his appeal, with interest at 6 percent per annum. (b) Rescind the action taken in expelling Elmer Langston from membership in Local 361. (c) Make Elmer Langston whole for any losses he may have suffered by reason of Local 361's action in expelling him from membership in Local 361, with interest at 6 percent per annum. (d) Rescind the $2,500 fine imposed against Elmer Langston and excise its imposition from Local 361's records. (e) Excise all reference to the charges against and trial, fining, and expulsion of Elmer Langston from Local 36l's records. (f) Advise Elmer Langston in writing that it has taken the action required in (a)-(e) above. (g) Post at its business office, union hall, or any places where it customarily posts notices to its mem- bers copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 15, after being duly signed by an authorized representative of Local 361, shall be posted by it immediately upon receipt thereof, and be ' 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 OR- DER OF THE NATIONAL LABOR RELATIONS BOARD " maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Local 361 to insure that said notices are not altered, defaced, or covered by any other material. (h) Furnish the Regional Director for Region 15 signed copies of such notice for posting by Langston & Co., Inc., if willing, in places where notices to em- ployees are customarily posted. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain and coerce Langston & Co., Inc., in the selection and retention of its repre- sentatives, including Elmer Langston, for pur- poses of collective bargaining and adjustment of grievances. WE WILL NOT cause or attempt to cause Lang- ston & Co., Inc., to refuse to hire nonunion em- ployees in violation of Section 8(a)(3) of the Na- tional Labor Relations Act. WE WILL NOT prefer charges against, try, fine, expel, or similarly discipline Elmer Langston, or any other supervisor of Langston & Co., Inc., as a member of this labor organization, as to matters concerning their employment while such member is the selected representative of Langston & Co., Inc., as its representative for the purposes of col- lective bargaining or the adjustment of grievances. WE WILL rescind the $2,500 fine imposed upon Elmer Langston and excise or blot out all refer- ence of its imposition from our records and ex- punge from our records all references in our files to the proceedings in which Elmer Langston was fined. WE WILL rescind the expulsion of Elmer Lang- ston from union membership and restore him to membership in the Union with all the rights and privileges due him and remove from our records any reference to such expulsion. WE WILL repay to Elmer Langston the $50 he paid to Local 361 to prosecute his appeal, with interest at 6 percent per annum. WE WILL advise Elmer Langston in writing that we have taken the aforesaid action. WE WILL make Elmer Langston whole for any losses he may have suffered by reason of Local 361's action in expelling him from membership in Local 361 with interest at 6 percent per annum from the date of such losses. SHEET METAL WORKERS , LOCAL 361 SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, LOCAL UNION No. 361 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner : Upon a charge duly filed on February 24, 1971, and thereafter amended on March 25, 1971, and on April 12, 1971, by Elmer C. Langston, an individual, and hereinafter referred to as Elmer or the Charg- ing Party, the General Counsel of the National Labor Rela- tions Board, hereinafter referred to as the General Counsel' and the Board, respectively, by the Regional Director for Region 15 (New Orleans, Louisiana), issued its complaint dated April 12, 19712 against Sheet Metal Workers Interna- tional Association, Local Union No. 361 , herein called Re- spondent or Local 361. The complaint alleged that Respondent Union had en- gaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b)(1)(A) and (B) and Section 8(b)(2) and Section 2(6) and (7) of the Labor Management Relations Act, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain allega- tions of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing hereon was held before me in Alexandria, Louisiana, from May 10 through May 12, 1971, inclusive . All parties appeared at the hearing, were represented by counsel , and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. At the conclusion of the hearing, oral argument was waived. Briefs were received from the General Counsel and Respond- ent on June 23, 1971. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: ' This term specifically included the attorney appearing for the General Counsel at the hearing. ' All dates herein are in the year 1970 unless otherwise specified FINDINGS OF FACT I BUSINESS OF LANGSTON & CO 359 The complaint alleged, the answer admitted, and I there- fore find: Langston & Co., herein called L & Co., is a Louisiana corporation with its principal place of business located in Alexandria, Louisiana, where it is engaged in the plumbing, air conditioning, and ventilation equipment installation and service business . During the past 12 months, which period is representative of all times material herein , L & Co. purchased and received goods and materials valued in excess of $50,000, which goods and materials were shipped directly to it in the state of Louisiana from points outside of the State of Louisi- ana. Accordingly, I find that L & Co. is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE RESPONDENT Sheet Metal Workers International Association , Local Un- ion No. 361, is a labor organization admitting to membership employees of L & Co. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts L & Co., the employer here, is a corporation headquartered in Alexandria, Louisiana, engaged in the plumbing , heating, air conditioning, and sheet metal installation and repair busi- ness. Although incorporated, L & Co. is really more of a family affair. Its president is Earl Langston. Its only stock- holders are Earl,' his wife, Pauline, his brother, Howard, and his son Lloyd R. The board of directors consists of all those named above except Pauline. In the latter part of 1969, L & Co. received contracts to install the sheet metalwork in the construction of two hospi- tals, the Lasalle Hospital in Jena, Louisiana, and the Com- pass Medical Facility at the England Air Force Base, which will referred to here as the Jena project and the England project, respectively. These jobs were some 40-odd miles apart. Elmer Langston (Elmer), a brother of Earl, was the sheet metal department superintendent in charge of the sheet metal jobs at both Jena and England for L & Co. Elmer had been the sheet metal department's superintendent for L & Co. for a number of years in charge of all L & Co. sheet metalwork. As superintendent, Elmer did all the hiring and firing and adjusted grievances for and on behalf of L & Co. on its sheet metal jobs . Earl testified that he personally spent about 1 hour per week at the Jena and England projects . Hence to all intents and purposes , Elmer was L & Co. on these projects. At all times material here L & Co. was a signatory to a collective-bargaining agreement with Local 361 providing, inter alia, for an admittedly legal union-security clause re- quiring membership in Local 361 after 8 days of employment, the hiring of employees through a nondiscriminatory hiring hall and for submittal to a joint board of all disputes arising out of interpretation and enforcement of the collective agree- ment. L & Co. also was a member of the North Louisiana Roofing and Sheet Metal Contractors Association which represented such contractors in their relations with Local 361. ' Due to the number of Langstons involved herein , each will be referred to herein by his given name in order to differentiate among them 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From the beginning of the Jena job until at least February 18, 1970,' L & Co.'s sheet metalwork at Jena was being done by employees Ewell Langston,' as foreman, and Frankie McCann, both members of Local 361 , under the direction of Sheet Metal Department Superintendent Elmer , also a mem- ber of Local 361. On or about February 18, according to the testimony of Earl, L & Co. transferred Elmer and employees Ewell and McCann to the England project from Jena, thereby apparently leaving the Jena project without any L & Co. employees.6 On April 28, Local 361 's business manager , O. S. Anthony, accompanied by Wallace R. Rutherford, business manager of Local 21 of the Sheet Metal Workers Union , and Area Stew- ard Sanson returned to the Jena project and on this occasion found that there were two sheet metalworkers still doing the sheet metalwork at the Jena project . One of these employees was identified as Jimmy Gauthier whom Rutherford recog- nized as a former member of his Local 21 . Anthony asked him for his union credentials . Gauthier produced an out-of- date Local 21 receipt and then a card indicating his member- ship in District 101 of Allied Federation of Unions. The other sheet metal employee again managed to depart the project without showing his credentials. At or about this time Gauthier had been observed going in and out of the sheet metal shop of L & Co. in Alexandria. Following the discovery of the two District 101 men work- ing on the sheet metalwork at Jena, Anthony, Rutherford, and Sanson drove to the England project where Anthony asked Elmer about the District 101 workmen at Jena. Elmer informed Anthony that he, Elmer, had checked their cards and that both of the men were in good standing with Local 361.6 On April 29, after having telephoned Earl in regard to these District 101 men working on the Jena job and having Earl thereupon slam the telephone down in his ear, Anthony filed the following grievance with the North Louisiana Roofing and Sheet Metal Contractors Association: The Union is filing grievance against Langston & Company, Inc., P. O. Box 5053, Alexandria, Louisiana 71301, for violation of union agreement . Article IV, Sec- tion I. Article V, Section I. Statement of Fact.- Article IV. The Union has not been contacted, or any request made by Langston & Company, for qualified sheet metal workers. Article V. Langston & Company did have and still has nonunion sheet metal workers in his employ on the Jena, Louisiana, hospital . After contacting Mr. Langston to All dates are in the year 1970 unless otherwise specified. Another brother of Earl. According to the testimony of Earl, for which there is no corroboration in the record, L & Co was forced to make this move on the ground that Local 361 refused to supply it with sheet metalworkers so that L & Co had to concentrate its whole work force at England. About April 1, Local 361 heard rumors that L & Co was working non- Local 361 sheet metalworkers at Jena On April 17, Local 361' s area stew- ard, James Sanson , went to Jena to check on this rumor and discovered that there were two sheet metal employees doing the L & Co sheet metalwork on the Jena job He was unable to check on the individual workmen as they both departed the job upon his arrival. But Sanson was informed by the superintendent for the general contractor that these men were working for L & Co.and that the general contractor looked to L & Co for the sheet metalwork on the Jena project' Earl acknowledged that L & Co. never informed the general contractor that L & Co. was not continuing the sheet metalwork under its subcontract on the Jena project. District 101 Allied Federation of Unions and Local 361 had for a number of years last past been involved in numerous Labor Board cases and court cases allegedly arising out of the raiding tactics of District 101 discuss the matter, Mr. Langston hung up the phone in the business manager's ear. The Union requests a speedy hearing concerning this matter and requests the right to cancel the agreement. Charges should be heard within the time limit set forth in the agreement. On May 1, Sanson again checked the Jena job and on this occasion was able to check the credentials of both Gauthier and the other sheet metalworker on the job. The other sheet metalworker was Lloyd R. Langston, the 35-year-old son of Earl, the stockholder and director of L & Co. who, prior to 1969, had worked for L & Co. as an estimator. Neither was able to produce a Local 361 card but did produce District 101 cards for inspection. On May 1, Local 361, over the signature of Anthony, sent L & Co. the following telegram: Dear Sirs In accordance with Article Five of your signed agreement with this Union employees Jimmy Gauthier and Lloyd R. Langston are not in good stand- ing of the Sheet Metal Workers International Assn. Lo- cal Union 361 please comply with contract and notify this Union by return wire of your intentions. Later that same day, L & Co. answered as follows: Retel, Article 4, which you have not complied with' precedes [sic] Article V. Please comply with our wire of 4-30. Your grievance filing should take care of Article V. Have men report to EAFP job. We will select and trans- fer to Jena job. Thank you. On May 4, Local 361 struck the Jena project because of the presence of the District 101 men. On May 8, Earl and Local 361 settled their differences over the District 101 men. On May 11, Ewell and McCann were returned to the Jena job by Elmer while Local 361 sent at least four sheet metalworkmen to England as requested. Four of these men were paid off and discharged on May 11, the day they reported as requested for work. During the following week or 10 days, Local 361 sup- plied L & Co. with approximately 15 sheet metalworkers. L & Co.'s part of the Jena project was thereafter completed on or about June 1 by Ewell and McCann without further trouble between L & Co. and Local 361 at Jena. There was, however, trouble between L & Co. and Local 361 at England where, on May 28, L & Co. paid off all the Local 361 employees without any indication as to when, if ever, they might be recalled. L & Co. took this action on the day when building inspectors conducted an investigation of the building construction at the request of a Louisiana con- gressman who had been alerted to alleged deficiencies in the construction by a member of Local 361. Anthony promptly filed another grievance against L & Co. claiming that L & Co. had locked out its Local 361 employees and had failed to pay contributions to the health and welfare fund for the District 101 men who had been employed at Jena. This grievance was heard by the joint board which decided that the charge of lockout was unjustified but upheld the grievance as to the nonpayment of the contractually re- quired contributions. Thereafter, Local 361 collected these contractual contributions by legal action. Since then relations between L & Co. and Local 361 have been more peaceful, possibly due to the completion of both the Jena and the England jobs. At the time of the hearing L & Co. had no sheet metalwork in progress. On July 17 the following charge over the signature of O. S. Anthony was filed with Local 361 against Elmer: In accordance with the Constitution of the Sheet Metal Workers' International Association, charges are being ' This statement is the only purported corroboration of Earl's claim that Local 361 had failed to furnish L & Co with men It is also the first written request by L & Co for men since February 9 SHEET METAL WORKERS, LOCAL 361 361 placed against Brother Elmer Langston, membership # 339041, for violation of Article 17, Sec. (c). Article 17, Sec. (e) Article 17, Sec. 1 (f) and Article 17, Sec. I (m). Statement of Fact.- Bro. Elmer Langston Membership #339041, did slan- der the Sheet Metal Workers' Union Local #361. He stated in public that the entire Local was nothing but a bunch of drunks. Article 17, Sec. 1 (c). Bro. Elmer Langston did and is still breaking down working conditions. Bro. Elmer Langston did defy the Business Manager by fireing (sic) Sheet Metal Workers' sent to the job before they had a chance to prove them- selves. Bro. Elmer Langston did discharge one man without pay. Article 17, Sec. 1 (e). Bro Elmer Langston was a party to and knowingly agreed to work with and encourage the Company to hire Employee's of Allied Federations of Unions Local 101. Bro. Elmer Langston membership #339041 was and still is Foreman, with the right to hire and fire Em- ployee's. The above Employee's were hired and placed to work at Jena, Louisiana. Bro. Elmer Langston stated they were members in good standing of the Union, but after checking they were members of Local # 101, Allied Federation of Union Local # 101. Article 17, Sec. 1 (f). Bro. Elmer Langston's conduct during the time we had trouble with The Langston and Company was not in favor of the Union. This made the Local Union look sick in the eyes of the public Article 17, Sec. 1(m). On October 16, a hearing on these charges was held before the duly constituted trial committee of Local 361. After a hearing which Elmer attended, the trial committee found Elmer guilty as charged and recommended that he be ex- pelled from the Union for life and fined $2,500. At a regular meeting, Local 361 voted to affirm the decision of the trial committee. On December 4, Elmer appealed this decision to the International Union. At the time of the instant hearing this appeal was still pending. B. Conclusions The gravamen of General Counsel's complaint against Lo- cal 361 is set forth in paragraphs 8 and 9 thereof. The allega- tions of paragraph 8, together with its conclusionary para- graph 10, clearly allege the elements necessary for a violation of Section 8(b)(1)(B) of the Act by Respondent." The allegations in paragraph 9, together with its conclu- sionary paragraph 11 alleging that paragraph 9 states viola- tions of Section 8(b)(1)(A) and (2) of the Act, however are something else again. Whether the pleading of paragraph 9 applies only to Elmer or, on the other hand, is intended to encompass Lloyd and Gauthier and/or even theoretical fu- ture employees, neither the pleading nor the brief of General Counsel makes clear. I acknowledge that the allegations of paragraph 9 confuse me. General Counsel's brief had done nothing to clear up this confusion. Paragraph 9 of the complaint reads as follows: Commencing on or about October 16, 1970 and continu- ing to date, Respondent, by trying, fining, and expelling Elmer C. Langston from membership in Respondent because he "was a party to, and knowingly agreed to work with and encourage the company to hire em- Section 8(b)(1)(B) reads as follows Section 8(b) it shall be an unfair labor practice for a labor organization or its agents-(1) to restrain or coerce (B) an employer in the selec- tion of his representatives for the purposes of collective bargaining or the adjustment of grievances, ployees of Allied Federation of Union, Local No. 101,"" thereby attempted to cause, and is attempting to cause, the Company to discriminate against employees because of their non-membership in Respondent and in violation of Section 8(a)(3) of the Act. Despite the obtuse phraseology of paragraph 9 of the com- plaint, for our purposes here paragraph 9 can be rapidly disposed of for the simple reason that , no matter how inter- preted, this paragraph is both factually and legally incorrect on the facts as disclosed by the testimony herein. As far as Section 8(b)(2) of the Act is concerned, the evi- dence produced here conclusively shows that Local 361 never "caused or attempted to cause" L & Co. to discriminate against employees because of their nonmembership in Re- spondent and in violation of Section 8(a)(3) of the Act as required by that section of the Act. First, Elmer was an admitted supervisor to whom Section 8(a)(3) does not apply so that there could be no violation of Section 8(a)(3) even if the Union had caused L & Co. to discharge him, which the Union did not do or attempt to do.i" Second, under the as- sumption that paragraph 9 involved Lloyd and Gauthier, in addition to Elmer, the evidence here proves conclusively that Local 361 did not protest the hiring of these two District 101 men. The evidence proves that both were hired and working on the Jena project long before Local 361 even knew about it. The April 28 protest of Local 361 to L & Co. over the continued employment of these two individuals came long after the 8 days provided in the existing union-security clause of the contract for these men to have applied for membership in Local 361 and thus provides both Local 361 and L & Co. with a perfect defense to any charge of a violation of Section 8(a)(3) of the Act. Last, as to any possible future employees, that amounts to pure unadulterated speculation . Hence I must, and hereby do, dismiss paragraph 9 of the complaint as regards any possible violation of Section 8(b)(2) of the Act. In addition the evidence presented here is clear that neither Lloyd nor Gauthier ever applied for membership in Local 361 in accordance with the existing union-security clause of the agreement between L & Co. and Local 361 and, hence, Local 361 could neither have denied nor terminated the member- ship of either individual in violation of Section 8(b)(2) of the Act. Nor were either representatives of L & Co. for bargain- ing or adjustment of grievances. Thus, Lloyd and Gauthier are effectively eliminated from any further consideration un- der the allegations of the complaint here. That leaves Elmer alone for further consideration. Of course, General Counsel here proved a prima facie case of violation of Section 8(b)(1)(B) when he proved that: 1. Elmer was a supervisor with authority to hire and fire and to adjust on-the-job grievances, and 2. Local 361 brought charges of "dual unionism" against Elmer, tried and convicted him thereof and expelled him from union membership with a fine therefor, together with 3. The Board's oft applied presumption that a union by charging, trying, expelling, and fining a supervisor , who hap- pens also to be a union member, for violation of such super- visor's union membership obligation," necessarily deprives his employer of his right to the undivided loyalty of that " The quoted material is an exact partial quotation from the charges filed by Anthony against Elmer on July 17 " It is true that Earl testified, and Anthony denied, that, in two conversa- tions with Earl, Anthony suggested that Elmer be replaced allegedly be- cause the men "would not work with him " On the pure credibility issue between the two, I have to credit Anthony's denial as he was a believable witness whereas Earl was unbelievable, unless corroborated Earl's credibil- ity was shattered by his own testimony as will be discussed hereinafter " See Houston Typographical Union No. 87, 182 NLRB No 91, and cases there cited. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisor as the employer's representative for the adjust- ment of grievances by reason of such trial and penalty. Thus, superficially at least, by such proof General Counsel has proved by a prima facie case that Local 361 violated Section 8(b)(1)(B). There is, however, more to this case. Over continuing and strenuous objections of General Counsel and L & Co.'s attor- ney, I permitted the Union to develop evidence on the ques- tion of the Union's charge of "dual unionism" against Elmer. On February 9, in the Parrish of East Baton Rouge, Louisi- ana, articles of incorporation of a corporation named "Me- chanical Manpower, Inc.," (herein M.M.) were signed by its sole incorporator, one Ronald M. Jones, an attorney but otherwise unidentified in this record. The stated object and purpose of this corporation was "to engage, either for its own account or the account of others, as either agent or principal, in any lawful activity ... " No officers or directors were named therein. By letter this same February 9, Earl wrote Local 361 in pertinent as follows: It is anticipated that in about a week or two, we will need a qualified journeyman sheetmetal worker to properly exe- cute the work that we will have on hand at that time. Please accept this as our formal request that he [Jack Harrison] be made available to us when and if it materi- alizes that we need him. This was the last request for men by L & Co. to Local 361 until its telegram to Local 361 dated May 1. On March 2, M.M. filed its "Amended Initial Report" which listed M.M.'s location and P.O. address as a post office box number in Alexandria, Louisiana, and the names of two "registered agents" and one director of the corporation. One of these named registered agents as well as the sole director of M.M. was Lloyd R. Langston, the 35-year-old son of Earl, the stockholder and director of L & Co. as well as a member of District 101 who, with Gauthier, did sheet metalwork in the Jena job from at least April 1 to May 4. Long, arduous cross-examination of Earl, a most reluctant, evasive, confused, and confusing witness about affairs of M.M., allegedly because he was "not affiliated with it," devel- oped other aspects of M.M.'s existence and activities. Earl "would not deny" that he participated in the meetings leading to the incorporation of M.M. He maintained that Lloyd and Gauthier were employees of M.M. while working at Jena- and not employees of L & Co.-and that Elmer, as the super- intendent of the sheet metal department of L & Co., had no authority at all at the Jena project from February 18 to May 8. Originally Earl testified that M.M. merely supplied the manpower for the Jena project between April 1 and May 8, that L & Co. did not "hire" the two men and, indeed, had no superintendent or timekeeper on that project between those dates but merely paid M.M. the wages of Lloyd and Gauthier plus a 10 percent commission. Earl was then asked if L & Co. "subcontracted" the Jena job to M.M. which Earl answered "you might define it as a subcontract, it is conceivably defined as that."14 Then Earl acknowledged that the arrangement between L & Co. and M.M. was an oral, day-to-day arrange- ment whereby M.M. supplied the men whom Earl admitted he knew to be District 101 members. Whatever the actual arrangements between L & Co. and M.M. for the work at Jena may have been, they resulted from Earl's request for manpower to the "local representative" of M.M., Earl's " At this point the L & Co attorney offered to stipulate "that there is a subcontract to" M M This offer was declined phraseology, who turned out to be one J. C. Gassiott who also happened to be "very distantly related," Earl's phrase, to Earl, to wit, a nephew, who was also simultaneously em- ployed by L & Co. as an estimator. The above facts make it quite clear that the whole Lang- ston family at L & Co. (except Elmer) became engaged on or before February 9 in a surreptitious, clandestine scheme whose purpose quite obviously was to supplant Local 361 as the recognized bargaining agent of the employees of L & Co. at Jena if not at all L & Co. jobs, to eliminate the existing contractual relationship between L & Co. and Local 361 at Jena, at least, and to replace Local 361 as such bargaining agent with District 101, if necessary. Further, Earl admitted that L & Co. had never informed the general contractor on the Jena job that L & Co. had nothing further to do with the Jena project." Furthermore, it is noteworthy that Earl's excuse for having to make a deal with M.M. was to keep L & Co. "out of hot water" by preventing the general contractor on the Jena job from be- coming restive over the absence of sheet metalworkers on that job. These facts remove the last vestiges of Section 8(b)(1)(A) from this case because it is clear that, if anyone was attempt- ing "to restrain or coerce employees in the exercise of the ri ghts guaranteed in Section 7," it was L & Co. and not Local 361. As for Elmer's participation in this scheme, the following occurred during the cross-examination of Earl: Q. (By Mr. Peters) Prior to April 1, 1970, did you ever discuss Mechanical Manpower, Incorporated with El- mer Langston? A. Not that I remember, no. Q. If you had, do you think you would remember it Mr. Langston? A. I could possibly remember it, yes. Q. Did you ever discuss Manpower, Mechanical Man- power, Incorporated and their furnishing you with man- power after April 1, 1970 with Mr. Elmer Langston? A. No. Q. Then may I take it that your answer is that you have never discussed Mechanical Manpower and their furnishing of labor with Mr. Elmer Langston? A. You can take it that way if you want to, yes. TRIAL EXAMINER: Now wait a minute. Please, Mr. Langston, I wish that you would give us the facts, so that we won't have to assume, speculate. If you could give us the facts, we would get out of here much faster. THE WITNESS: Thank you sir. Your Honor, I will try to do better. TRIAL EXAMINER: Thank you, I appreciate it. I real- ize that there are many things that you probably have forgotten or don't recollect but I think some of these matters I think you should recollect and if you could help us along, it would speed this thing up considerably. MR ROBERTSON: Your Honor, may I make a state- ment, that there is a tradition in this part of the world, part of the country, to use the term, "I don't recall it" and it usually means no. I think Mr. Langston is engag- ing in that and I am sure a lot of this he doesn't remem- ber, this has been quite some time and I think Mr. Lang- " This was corroborated by the superintendent for the general contractor at Jena when he told representatives of Local 361 that the sheet metalwork on that project was being done by employees of L & Co. and that the general contractor was holding L & Co responsible for the sheet metalwork on that project. It was further corroborated by the speed with which L & Co was able to get rid of M.M. and the District 101 men on May 4 after Local 361 filed its grievance with the joint board on April 29 SHEET METAL WORKERS , LOCAL 361 ston is being very candid with this Trial [Examiner] and I hope the Trial Examiner doesn't have any other im- pression. TRIAL EXAMINER: No, but I did not realize, I do not recall as to the tradition as you have just suggested. I am not a Louisianan. MR PETERS: I have never heard that before in my life. I have been in this state longer than he has. TRIAL EXAMINER: Up North, it is sometimes used to prevaricate a little bit and I hope and expect that that will not happen down here but I am glad you called the colloquialism to my attention." So, according to Earl, he had no conversation with Elmer about the scheme for hiring temporary District 101 help from M.M. "to try to keep us out of hot water with the contractor in Jena." The facts would seem logically to point to the contrary. With so many members of the Langston family actively involved in the M.M. arrangement, it seems almost incon- ceivable that Elmer, the superintendent of the sheet metal department and, therefore, the L & Co. official most directly concerned with the performance of the sheet metalwork as well as the hiring at the Jena project, would not even be consulted or notified about M.M. or District 101 at Jena. After all for 15 years Elmer had had exclusive charge of all hiring and firing of employees on L & Co. sheet metal pro- jects. This is particularly so as the facts show that Gauthier was in and out of the L & Co. and sheet metal shop during this period. But, at least, that was Earl's testimony. Yet it was Superintendent Elmer who took the first overt step, after the signing of the M.M. incorporation papers, towards the accomplishment of the scheme when on Febru- ary 18, 9 days after the M.M. incorporation papers were signed, he brought the Local 361 sheet metal employees from the Jena project and put them to work at England, thereby leaving the Jena project free and clear for the introduction of M.M. and its District 101 "employees" on, according to Earl, "about April 1."" Of course this timing may have been pure coincidence. Actually, whether or not Earl consulted with Elmer on this matter is relatively unimportant to a decision here because it is doubtful that on July 17, when he filed the charges against Elmer, Business Agent Anthony knew about M.M. and the part it played. But Anthony did know that L & Co. had had two District 101 workmen employed at Jena far beyond the 8 days permit- ted under the existing union-security clause in the L & Co. contract without their having applied for membership in Lo- cal 361 as required and that Elmer had told him that he, Elmer, had checked the union cards of these two employees at Jena and found that they were members of Local 361 "in good standing." In addition, Anthony and Local 361 knew also that for the past 15 years Elmer had been, and still was, the sheet metal department superintendent in charge of all L & Co. sheet metal contracts who did all the hiring and firing of employees as well as settling all on-the-job grievances on behalf of L & Co.'' There was no claim made that Local 361 '° From carefully listening to Earl's testimony plus an equally careful reading of the transcript of his testimon3,, I am convinced that, even assum- ing Earl had heard of this alleged Louisianan colloquialism, he was not, during his testimony, making use of that colloquialism even if it "usually" meant "no " " Perhaps there was no sheet metalwork to be done at Jena between February 18 and April 1, although this appears doubtful in view of Earl's testimony about trying to keep "out of hot water" at Jena with the contrac- tor ° In its answer Respondent denied that Elmer had authority to bargain and adjust "grievances" for and on behalf of L & Co It became obvious from 363 was ever told that Elmer's authority at Jena had been removed. Consequently, as of July 17, Anthony and Local 361 had good cause to believe that, as sheet metal department superin- tendent, Elmer had hired and deliberately retained District 101 members, Lloyd and Gauthier, far beyond the time limits set in the existing collective-bargaining agreement between L & Co. and Local 361 and that Elmer was doing this in an effort to displace Local 361 at Jena with the more favored L & Co. union, District 101. In other words, Local 361 could reasonably believe that Elmer was attempting to get rid of Local 361 despite its contract with L & Co. and replace it surreptitiously with District 101. In short, the evidence here proves that the proverbial reasonable man, based on the facts then known to Local 361, had good cause to believe that Elmer, with or without L & Co.'s participation, was busily engaged in activities favoring District 101 which amounted to unfair labor practices in violation of Section 8(a)(2) and (1) of the Act as well as in violation of the terms of the existing collective-bargaining agreement. If Elmer's actions were not violative of Section 8(a)(2) of the Act, at least it appeared that he was deliberately engaged, or had engaged, in making a "sweetheart deal" with District 101, the hated rival of Local 361. It must be pointed out here that, as the L & Co. attorney noted at the hearing, the grievances growing out of contract interpretation and/or enforcement filed by Local 361 relating to Jena as well as those filed relating to England against L & Co., had all been settled or otherwise disposed of prior to the time that Anthony filed his charges of "dual unionism" against Elmer on July 17. These charges against Elmer, con- trary to the contention of the General Counsel, had nothing to do with contract interpretation or enforcement, as these had all been settled with L & Co. by Local 361 under the contract grievance procedure, as pointed out above. The dual unionism issue against Elmer, as a union member, had not been settled thereby and had nothing to do with either con- tract interpretation or enforcement. The grievances filed against Elmer were exclusively a matter of internal union concern relating, without exception, to the relationship be- tween the Union and one of its members. Surely a union need not harbor a known "fifth columnist" in its membership while he commits unfair labor practices against it merely because that "fifth columnist" happens to be a supervisor for some company." The above-cited Kingston Cake case is of interest here. In that case an officer of Union A refused to sign the then required non-Communist oath for the purposes of keeping Union A from appearing on a representation election ballot against Union B, which the officer of Union A personally favored. The Board decided in that case that, after Union A had expelled its officer for this failure and then demanded and secured his discharge under a union-security clause, this con- stituted "some ground other than" the failure to tend to the regular dues and initiation fees and thus that the union had thereby violated Section 8(b)(2). The Third Circuit Court of Appeals reversed in a split decision despite the restrictive language of that section. In the Philadelphia Typographical Union No. 2 case, 189 NLRB No. 105, the Board itself has apparently reversed its decision in the Kingston Cake case by finding that, despite the restrictive phraseology of Section 8(b)(2), the Respondent in the evidence that Respondent's denial referred to grievances filed by Local 361 with the joint board where Elmer had never appeared on behalf of L & Co and had no reference to Elmer's authority to handle on-the-job grievances for L & Co 19 N.L.R.B. v Kingston Cake Co Inc., 206 F 2d 604 (C A 3, 1953). 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that case committed no violation of the Act when it interfered with a member's priority (seniority) thereby causing his dis- missal from employment when that union's action was based upon and caused by its members ' embezzlement of some $30,000 of union funds. The actions of some union members thus become so dishonest or dishonorable as to require an extension of the restrictive language of the statute. So here, as in Kingston Cake and as in Philadelphia Typo- graphical No. 2, the fine and expulsion of Elmer from union membership-although not affecting his employment in any way-was based upon and caused by the Union 's reasonable belief that Elmer was engaged in dual unionism against his own union, if not amounting to unfair labor practices under the Act, or was aiding and abetting his employer in commit- ting acts against his own union and in favor of another union amounting to violations of Section 8(a)(2) of the Act. Under the circumstances present here it would be incon- gruous, at the very least, for a Board Trial Examiner to find Local 361 guilty of having violated the 8(b) part of this Act for having fired and expelled Elmer from membership therein because of actions taken by him for and on behalf of his employer which the Union, as a reasonable person, could and did believe in good faith and for good cause constituted unfair labor practices against it, his own Union, in violation of the 8(a) part of the same Act. Such a finding here would in effect amount to rewarding Elmer for committing or attempting to commit unfair labor practices against his Union. This is par- ticularly so in the light of the fact that Local 361 has not in any way attempted to interfere with Elmer's employment which is a condition precedent to a violation of Section 8(b)(2) of the Act. Finally as to Section 8(b)(1)(B) i.e., "to restrain and coerce . (B) an employer in the selection of his representatives for collective bargaining or adjustment of grievances ." No em- ployer has a vested right in having his supervisors be, or remain, members of a union. Unlike the Houston Typograph- ical Union No. 87 case, above cited, there is in the instant matter no contractual provision in the collective -bargaining agreement requiring supervisors to be or remain members of the contracting union. Unlike the Houston case Elmer's re- tention of membership in Local 361 was his own voluntary choice and for his own personal benefit . It was not maintained in order to remain superintendent for L & Co . Hence the action of Local 361 in expelling and fining Elmer because he committed and/or attempted to commit unfair labor prac- tices against his own union for and on behalf of his employer could not in any way coerce or restrain that employer in his selection or retention of Elmer as his representative for collec- tive bargaining or for the adjustment of grievances. In fact, logically the loss of his union membership would tend to make Elmer even more loyal to his employer, if possible, and more attentive to the employer's interest. Ewell's own testimony confirms this observation when Earl testified as follows: TRIAL EXAMINER : Well, let's do it this way. I under- stand that Elmer is not on the payroll of Langston & Company now. THE WITNESS : At this particular time, yes. TRIAL EXAMINER : When you get some sheet metal work, will the company reemploy Elmer as a superinten- dent? THE WITNESS : That is correct . He will be the superin- tendent as long as we have sheet metal work. In addition, the above-quoted testimony appears to rebut the presumption, mentioned heretofore, allegedly arising from the fining or expelling of a supervisor by a union. In Local Union No. 2150 (Western Electric Power Com- pany), 192 NLRB No. 16, the Board considered a question somewhat akin to that in the instant case and there said: The Trial Examiner concluded that the fining of the supervisors for crossing a picket line and doing struck work violated Section 8 (b)(1)(B) of the Act. He reasoned that whenever the dispute can be characterized as a dispute between the employer and the Union rather than between the Union and its members, any union discipli. nary action against a supervisor who may act on behalf of the employer in grievance adjustment is violative of Section 8(b)(1)(B) of the Act. We agree. In the instant matter the dispute or activities resulting in the expulsion and fine of Elmer cannot be characterized as "between the employer and the Union" but instead was solely a dispute "between the Union and its members." Hence Local 361 had the right under the proviso of Section 8(b)(1), to wit, "provided, that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; ... ," to fine or suspend Elmer on the good-faith belief that he was committing or attempting to commit unfair labor practices against his own union and thereby engaging in "dual union- ism." CONCLUSIONS OF LAW 1 Langston & Co., Inc. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers International Association, Local Union No. 361, is a labor organization within the meaning of Section 2(5) of the Act. 3. Local 361 has not engaged in any of the unfair labor practices alleged in the complaint. [Recommended Order omitted from publication.]