Carpenters Local 14 (Robert L. Guyler Co.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Local Union No. 14, AFL-CIO and Robert L. Guyler Co. Case 23-CB-1943 January 11, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On May 26, 1977, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, to modify her remedy to include interest as set forth in Florida Steel Corporation, 231 NLRB 651 (1977),2 and to adopt her recommended Order as modified herein. 3 Our dissenting colleague asserts that the Adminis- trative Law Judge failed to support her finding that the Union's conduct in summoning Moreno to appear before its executive committee was "manifest- ly coercive." The Administrative Law Judge's Deci- sion, however, clearly shows that she predicated this conclusion on credibility resolutions and record facts which are consistent with her inference that the summons was issued because of Moreno's "refusal to assist in Respondent's campaign to organize Guyler's employees and obtain collective-bargaining agree- ments." Our dissenting colleague further argues that the Administrative Law Judge improperly found that Respondent expelled Moreno from union member- ship and that such expulsion was unlawful, because such conduct neither was alleged nor proven. Inas- much as the record shows, and the Administrative Law Judge found, that the Union augmented its "manifestly coercive" summons by leveling an un- lawful fine against Moreno because he rejected the summons, and then unlawfully threatened to expel him unless he paid the fine within a time specified, I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wail Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 2 The Administrative Law Judge specified interest to be paid at 6 234 NLRB No. 20 which Moreno refused to do, the Administrative Law Judge's inference that the Union carried out its expulsion threat not only is reasonable and logical, but also is based on undisputed facts which were fully litigated at the hearing. Finally, our dissenting colleague contends that the Administrative Law Judge's recommended Order is defective because it unconditionally directs the Union to "reinstate and/or retain" Moreno and, therefore, contravenes the Administrative Law Judge's statement in the Remedy section of her Decision that she would order Moreno's reinstate- ment "if" he had been expelled. This is not a material variance. Moreover, the Administrative Law Judge's order to "reinstate and/or retain" Moreno both adequately covers the situation and is consistent with her inferences and 8(a)(1) findings and, therefore, is appropriate. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, United Brotherhood of Carpenters and Joiners of America, Local Union No. 14, AFL-CIO, San Antonio, Texas, its officers, agents, and representa- tives, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraphs l(a) and (b): "(a) Restraining or coercing Robert L. Guyler Co. in the selection of its representatives for the purposes of collective bargaining or the adjustment of griev- ances. "(b) Requiring Ralph E. Moreno to appear before our executive committee, or preferring charges against, or trying, or fining, or disciplining by expulsion or threat of expulsion from union member- ship, or otherwise jeopardizing the union member- ship of, Ralph E. Moreno or any other representative of Robert L. Guyler Co. for acts performed during the course of his or their duties as representative of Robert L. Guyler Co." 2. Insert the following as paragraph l(c): "(c) In any other manner restraining or coercing Robert L. Guyler Co. in the selection of its represen- percent; however, interest will be calculated according to the "adjusted prime rate" used by the U.S. Internal Revenue Service for interest on tax payments. See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 3 Inasmuch as the record does not show that Respondent has a proclivity for engaging in similar unlawful conduct against employers generally, we will delete the Administrative Law Judge's broad injunction in her Order and notice covering "any other employer." 186 CARPENTERS, LOCAL NO. 14 tatives for the purposes of collective bargaining or the adjustment of grievances." 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER MURPHY, dissenting in part: I do not agree with my colleagues that Respondent violated Section 8(b)(1)(B) by summoning Moreno before its executive committee, fining him for not appearing there, and expelling him. The Administrative Law Judge states that the summons to appear was "manifestly coercive" with- out setting forth any reason why that was so. Not every such direction to appear is necessarily coercive, or if coercive is not necessarily unlawfully so, as she apparently would find. Therefore, it is not sufficient for the Administrative Law Judge to state the conclusion without more 4 -and, given the supervi- sor's voluntary membership in the labor organiza- tion, there can be nothing inherently or unlawfully coercive in the direction here. That being so, the fine for not complying with a directive-which is not shown to have been unlawful-could not, itself, be unlawful. And, finally, there is no allegation or showing that Moreno was in fact expelled or that the Union thereby violated the Act, nor do I find any evidence supporting an inference that an expulsion followed. Accordingly, the General Counsel has failed both to allege a violation of the Act by such expulsion and to establish the vital fact that any expulsion occurred-assuming, arguendo, that if the expulsion took place it would have been violative of the Act. But even apart from the above,5 the Order which my colleagues adopt is defective. The Administrative Law Judge states that her recommended Order would be conditional, i.e., that if Moreno was expelled from membership he should be reinstated upon payment of regular dues. However, the Order which my colleagues have adopted contains no conditional language of any kind-instead, it directs unequivocally that Respondent cease and desist from expelling any employer representative from member- ship and that it reinstate and/or retain Moreno as a member in good standing upon payment of dues. What is conditional about this Order to reinstate him to membership? And, further, it unconditionally directs that he be retained as a member, apparently for all time in the future and despite any cause he might later give to the Union. What is the basis for such an order? Furthermore, the "Notice to Members" does not conform to the Order but in fact far exceeds its provisions. I find no justification for this. While some of the details set forth in the notice are contained within the Conclusions of Law, it is the Board's practice to follow the language of the Order, not the said conclusions, in notifying employees or members of the action to be taken. In sum, the entire decision of my colleagues relative to the summons and fine of Moreno for not appearing before the executive committee is based upon inference built on inference-which is entirely too attenuated to support their conclusions. Accord- ingly, I would affirm the finding of a violation only by the act of fining Moreno for not complying with the Union's wishes in his performance of his supervi- sory duties. But I would dismiss the complaint insofar as it alleges any other violations of the Act. 4 See Funkhouser Mils. Division of The Ruberoid Company, 132 NLRB 245 (1961). 5 I do agree that Respondent violated Sec. 8(bX)(IB) of the Act by fining Job Superintendent Moreno for failing to comply with the Union's wishes in the performance of his supervisory duties. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present evidence and state their positions, it has been determined that we violated the National Labor Relations Act and we have been ordered to post this notice. We intend to abide by the following. WE WILL NOT require Ralph E. Moreno to appear before our executive committee, nor WILL WE prefer charges against, try, fine, or otherwise discipline him or any other representative of Robert L. Guyler Co. for conduct or acts per- formed by him in the course of supervisory employment or on behalf of his employer. WE WILL NOT directly or indirectly terminate or put in jeopardy the union membership of Ralph E. Moreno, or any other representative of Robert L. Guyler Co., for conduct or acts performed by him in the course of his supervisory employment or on behalf of his employer. WE WILL NOT in any other manner restrain or coerce Robert L. Guyler Co. in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances. WE WILL expunge from our records all refer- ences to any summons to Ralph E. Moreno to appear before our executive committee, at meet- ings or before a trial committee, and to any charges, fines or other disciplinary action against Ralph E. Moreno for any acts performed or conduct engaged in by him on behalf of Robert L. Guyler Co. since April 4, 1976. 187 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL rescind any fine levied against Ralph E. Moreno directly or indirectly for action taken by him as a supervisor for Robert L. Guyler Co. and WE WILL refund to him (with interest) any money that may have been paid to us by him or on his behalf as a result of any such fine. WE WILL assure Ralph E. Moreno full union membership, with all the rights and privileges thereof, upon his tender of regular membership dues and fees. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 14, AFL-CIO DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu- ant to a charge filed on October 13, 1976, by Robert L. Guyler Co. (herein Guyler or the Company), a complaint was issued against United Brotherhood of Carpenters and Joiners of America, Local Union No. 14, AFL-CIO (herein Respondent or the Union), on December 1, 1976, alleging that Respondent violated Section 8(bX IX)(B) of the Act1 by disciplining Ralph E. Moreno,2 a member of Respondent and a job superintendent for Guyler, "because ... Moreno refused to aid Respondent in convincing [Guyler] to sign a collective bargaining agreement with Respon- dent." Pursuant to due notice, this case came to hearing before me in San Antonio, Texas, on February 7, 1977. The parties were all represented by counsel and were afforded full opportunity to present oral and written evidence and to examine and cross-examine witnesses. The parties waived oral argument and briefs have been filed on behalf of the General Counsel and Respondent. Upon the entire record, together with careful observation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT Robert L. Guyler Co., a corporation with offices and place of business in San Antonio, Texas, is engaged in the business of renovating buildings for United States Govern- ment entities. During the past year, a representative period, Guyler purchased in excess of $50,000 worth of goods and materials which were shipped directly to Guyler from suppliers outside Texas. Guyler 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. I National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, etseq. 2 He is so identified in the complaint, although the transcript shows his name as "Rafael V. Moreno." Respondent is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. The Unfair Labor Practices A. The Facts Guyler had collective-bargaining agreements with Re- spondent from 1951 until around 1965, when the Company became nonunion. In September 1975 the Union started an organizing campaign at Guyler's residential restoration project at Fort Sam Houston. Ralph R. Moreno was job superintendent at that project. Moreno began his employ- ment with Guyler as a carpenter around 1951 or 1952. About 3 years later he became a carpenter foreman and then, around 1961, he became ajob superintendent. He has been a member of Respondent since around 1948. Moreno testified that his job as superintendent "is to run the jobs." He hires and fires all foremen, carpenters, and laborers. Respondent admits that Moreno is a supervisor. Moreno testified that problems sometimes arise among the employees. His method of handling such problems is to talk to the employees involved, "[a]nd if they can't work together, sometimes I separate them. And if [an employee] can't get along with the rest of them, I just let him go." Moreno has not participated in any contract negotiations on behalf of Guyler. However, as indicated above, during most of his tenure as a job superintendent there has been no bargaining relationship between Guyler and the Union. In the course of his organizational efforts in 1975, Richard R. Arispe, Respondent's organizer for residential construction employees, visited Guyler's Sam Houston project on several occasions. According to Respondent, on or about September 28, 1975, Moreno threatened that he would have the military police escort Arispe off the premises if he ever again attempted to solicit employees on behalf of the Union on the premises. On December 12, 1975, Moreno was ordered to appear before Respondent's executive committee on December 16. The peremptory summons did not indicate the reason therefor or the matter or matters to be discussed. However, Arispe testified that the reason was Moreno's threat to have Arispe removed from the Sam Houston project if he again tried to speak to employees there. Moreno appeared at the executive committee as ordered. He testified that at that meeting the executive committee urged him to help the Union organize the employees at the project and to persuade Guyler to sign a collective-bargain- ing agreement covering the project. Moreno refused, saying he would not get involved in any such activity. Arispe denied Moreno's testimony. According to Arispe, the executive committee asked Moreno to sign a statement, to be filed with the Department of Labor, reflecting the fact that Guyler was actually paying more than the prevailing wage rates on residential construction in the area. Such statement would be of assistance to the Union in raising prevailing wage rates.3 3 Arispe testified that Moreno took the form and said he would talk to his superiors about it. Eventually Moreno reported that a company representative he had spoken to "didn't have any objection to signing the 188 CARPENTERS, LOCAL NO. 14 When asked to explain the delay of over 2 months in calling Moreno before the executive committee for More- no's alleged threat, Arispe said that the threat "didn't really hurt" him because he knew that Moreno could not "put the MP's" on him. Arispe testified that thereafter Moreno "harassed" or "intimidated" the employees and it was then that Arispe "decided to just call him and talk to him and try to make him refrain from doing so." There was no evidence of any "intimidation" or "harassment" of em- ployees by Moreno. Arispe also conceded that the threat about the military police escort was not discussed at the executive committee on December 16. Additionally, there is no evidence of any mention of any alleged "intimida- tion" or "harassment" of employees by Moreno. In January 1976, Moreno became ill and did not return to work at all until some time in July, after having had open heart surgery. On March 12, 1976, during Moreno's absence, Respondent was certified as the collective-bar- gaining representative of Guyler's employees at the Sam Houston project. Upon his return to work in July 1976, Moreno became job superintendent of Guyler's project at Lackland Air Force Base. Moreno testified that for a considerable period after returning he did not perform his full duties as job superintendent. On August 4, 1976, he was ordered to appear before Respondent's executive committee on Au- gust 10. When he did not appear as ordered, charges were preferred against him "for failing to appear before the Executive Committee after being summoned." On Septem- ber 9, 1976, a copy of the charges were sent to him with a notice to "be present at the meeting" on October 5,4 "at which time a trial Committee will be selected." Moreno's lawyer thereafter communicated with the Union, advising that Moreno was still not fully recovered from his serious illness and it was therefore inadvisable for him to appear before the trial committee. The lawyer requested a copy of the Union's constitution and laws, which had been cited in the September 9 notice. In response to that letter, Respon- dent's counsel stated, inter alia: "We understand that [Moreno] is, and has been working full time so it would seem that he was able to appear before the Committee." He added that the executive committee would "give proper consideration" to "a letter from [Moreno's] doctor stating he was unable to appear on October 5." Respondent's counsel further stated that "it is the policy of the union not to distribute [its constitution and laws] to persons who are not members." He further stated that Moreno, as a union member, "can obtain copies by going to the union office and requesting them." Under date of September 28, a physician certified that Moreno was still under his care. And, on October 1, the physician "certiflied] that it [was] inadvisable for Mr. Moreno to attend the proceedings." Respondent has not denied a statement in a subsequent letter by Moreno's lawyer that the doctor's certificate was "made available" to R'spondent's recording secretary. payment evidence form." Although the record does not disclose, it is reasonable to assume that Guyler did sign the form. This fact, however, is immaterial to the present case. 4 Although the notice does not so state, apparently this was a union membership meeting. I One cannot resist noting that the letter was signed "Fraternally yours." Moreno did not attend the October 5 meeting, where- upon, on October 7, he was "notified to appear before the Trial Committee" on October 12. He did not appear. Presumably the "Trial Committee" met and then made "findings." On November 3, the Union addressed the following letter to Moreno: You are hereby notified the findings of the Trial Committee was [sic] read to the membership on November 2, 1976 and you were fined $300.00. The above said fine must be paid within thirty (30) days to entitle you to any privileges, rights or donations and must be paid within sixty (60) days or you [sic name will be stricken from the records.5 Thereafter, in November and December Respondent returned Moreno's payments of monthly dues "because we cannot accept any dues until your fine is paid in full." On December 15, 1976, Moreno was notified that at the end of that month he would owe 3 months' dues and therefore owed an "assessment" of an unspecified amount. Although there is no direct evidence to this effect, it must be inferred that Moreno's name has since been "stricken from the [membership] records," in accordance with the November 2 notice. At the hearing, Respondent sought to introduce into evidence a charge filed by the Union against Guyler and a letter relative thereto by the Board's Regional Director, dated October 26, 1976. Respondent's counsel said that the charge was being offered, not to establish unfair labor practices by the Company, but to support Respondent's "main defense"; namely, that it summoned Moreno before the executive committee "not to interfere with his duties as a representative of the employer, but to discuss with him what [Respondent] consider[s] to be his actions in viola- tion of these individuals' right to join or not join" the Union. Counsel then said that the purpose of introducing the Board's letter was "merely showing the disposition that was made of these charges and that there is some merit to the Union's position." In objecting to receipt of the documents on the grounds of relevancy, counsel for the General Counsel stated that the charge was "completely disconnected from Ralph Moreno in any way, and there has been no evidence or testimony to connect him with that charge. In fact, at this particular time he was sick. He wasn't even functioning or working." I rejected the exhibits, not on the ground of relevancy, but because of the absence of any witness in a position to testify concerning the filing of the charge. 6 A charge filed by the Union against Guyler could be relevant, if at all, only as objective evidence of Respondent's belief that Moreno was engaging in unfair labor practices on behalf of the Company. The mere fact that a charge had been filed, without more, would have no tendency to establish either that Moreno had been guilty of any misconduct or that 6 I said: "1 am going to reject them on the offer as made now. That does not mean that they would be inadmissible if presented through relevant-I mean a witness competent to testify to them and be subject to cross examination. ... In short, I cannot just take a charge as necessarily good faith. There could be all sorts of reasons for filing a charge. So, as of the moment, they are rejected." 189 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent in good faith believed that he had been. Respondent never attempted to introduce the documents through a competent witness. Accordingly, I hereby reaf- firm my ruling rejecting the exhibits offered directly by counsel rather than through a witness able to testify concerning the reasons for and the circumstances sur- rounding the filing of the charge.7 B. Discussion and Conclusions Respondent concedes that Moreno was a supervisor. However, it disputes the claim that he was a statutory representative within the purview of Section 8(b)(IXB) of the Act. The evidence, however, is undisputed that, as job superintendent, he resolved problems arising among the employees under his supervision. This is sufficient to establish that he was Guyler's representative for the purpose of adjusting disputes. Rochester Musicians Associa- tion, Local 66 affiliated with the American Federation of Musicians (Civic Music Association), 223 NLRB 720 (1976).8 Respondent next contends that "the only time it cannot lawfully fine a supervisor is when it fines him for something he does in his capacity as either management's bargaining agent, or its agent for adjustment of grievances." However, the Board has unequivocally rejected this contention. See Rochester Musicians Assn., supra, 223 NLRB at 721, and cases cited: "[T]he Board's rule can be stated as being that Section 8(bXIXB) prohibits union discipline of a supervi- sor-member for performing any significant or substantial supervisory function." Respondent maintains that Moreno was called before the Union's executive committee in August 1976 because of reports that he had "harassed" and "intimidated" employ- ees not to support the Union. Otherwise put, Respondent apparently maintains that Moreno was called up because of alleged unfair labor practices committed by him on behalf of Guyler. If Respondent had proved that Moreno had been thus guilty, or, as Respondent maintains, that Respondent reasonably believed that to be the fact, it would not follow that Respondent was at liberty to impose union discipline therefor. In Sheet Metal Workers' Interna- tional Association, Local Union No. 361 (Langston & Co.), 195 NLRB 355 (1972), enfd. 477 F.2d 675 (C.A. 5, 1973), it was held that a union violated Section 8(bXI)(1)(B) by fining a supervisor-member for discharging union members, allegedly in violation of Section 8(a)(3) and by encouraging the employer to hire members of a rival union. The Board found the union violation without undertaking to decide whether the supervisor had in fact violated the Act on behalf of the employer. In enforcing the Board's order, the court said (477 F.2d at 677): 7 It might be added that if, as counsel for the General Counsel stated, the charge was unrelated to any conduct by Moreno, Respondent's offering it in evidence might tend to support the General Counsel's basic contention that Respondent was attempting to use Moreno's union membership as a tool for influencing Guyler's conduct generally. I It probably cannot be said that Moreno was a representative for the purpose of collective bargaining. At the time here involved Guyler and Respondent did not have any collective-bargaining relationship. However, on the General Counsel's view of the facts, as testified to by Moreno, Respondent was attempting to persuade Moreno to advise Guyler to sign a union contract. On this view of the facts, Respondent was seeking to have Local 361's good faith is immaterial to the issue now before this court. This conclusion is reinforced by the existence of legal remedies for any unfair labor prac- tices committed by the employer through its superviso- ry personnel. As the Board pointed out, "[a] union faced with such concerns is not without remedies ... 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." The implied corollary of this reasoning is that Local 361's disciplinary measures cannot be justified as a supposedly necessary self-help tactic. The only circumstances in which union discipline of a supervisor member is permissible is when the discipline concerns a purely internal union matter, and such is not the case here .... [T]he firing and expulsion of [the supervisor-member] were based upon the acts which he carried out in his capacity as superintendent of the sheet metal crew. The Board properly found that this was done to retaliate against him for the performance of duties indigenous to his position as a management representative of the Company, and hence amounted to coercion of the employer in contravention of the provisions of section 8(bXl)(B). [Citations omitted.] As noted above, the Board's view has not changed in any relevant respect since the subsequent Supreme Court decision in Florida Power & Light Co. v. I.B.E. W., 417 U.S. 790 (1974). It was manifestly coercive for Respondent to order Moreno to appear before its executive committee to account for his conduct on behalf of his employer. That being so, Moreno could properly refuse to appear and it was thus improper for Respondent to require that he "stand trial" for his refusal. A fortiori it was coercive to fine him for his failure to appear. While the foregoing discussion disposes of the allegations of the complaint, it is perhaps appropriate to resolve the factual dispute between the parties. As previously set forth, Respondent maintains that Moreno was summoned before the executive committee because he had allegedly coerced employees. Arispe testified that he had received such reports from two employees. However, as Respondent was expressly advised at the present hearing, such testimony was pure hearsay and could not be taken as evidence that Moreno had engaged in any misconduct.9 While the summons of Moreno to appear before the executive committee'in December 1975 antedated the 10(b) cutoff date and has not been alleged as violative of the Act, it is relevant background to the events here involved. It will Moreno become a collective-bargaining representative of Guyler. Cf. Rochester Musicians Assn., supra, 223 NLRB 720, in which the Board held that "a consultant in bargaining matters ... qualifies... as a representa- tive for collective-bargaining purposes within the meaning of Section 8(bX IXB)." 9 Nor is any weight given to Arispe's testimony that the unnamed employees declined to testify for fear of losing their jobs. As Respondent should, and undoubtedly does, know, the Board stands ready to protect employees' statutory rights through enforcing the Act, including Sec. 8(aX4). Subpenas are available to all parties. 190 CARPENTERS, LOCAL NO. 14 be recalled that, although Arispe maintained that that summons was based on Moreno's alleged threat to have Arispe removed from the premises by the military police, that threat was not even mentioned when Moreno did appear before the executive committee. It should be noted that even that alleged threat by Moreno was made in the course of his duties as superintendent. Moreno's alleged threat, if actually made, would appear to be perfectly lawful, since union representatives have no protected right to solicit on employers' property. N. LR.B. v. The Babcock & Wilcox Co., 351 U.S. 105 (1965). Respondent could not have had any contractual right to solicit on Guyler's premises. Additionally, the several months' delay between the alleged threat and the summons before the executive committee casts considerable doubt on the claim that the executive committee was interested solely in discussing that threat. Thus, Respondent's own version of the earlier incident establishes its propensity to use internal union discipline as an instrument for influencing Moreno's conduct as a supervisor and representative of the Employ- er. It does not appear whether the Union's peremptory actions against Moreno were in accord with its constitution and laws.10 And it is not necessary at this point to determine whether the Union's procedures met standards of due process and fair play. But there can be no gainsaying that they were high-handed and bespoke an adversary and hostile approach inconsistent with any desire or intention to conduct a reasonable factfinding investigation. On all the evidence, together with careful observation of the demeanor of the witnesses, I discredit Arispe's testimo- ny that Moreno was called before the executive committee in August 1976 for the purpose of looking into any employee complaints of harassment or intimidation by Moreno. The record as a whole requires the inference that the Union's actions in August 1976 and thereafter were motivated, as they had been in December 1975, by Moreno's refusal to assist in Respondent's campaign to organize Guyler's employees and obtain collective-bargain- ing agreements. A word may be said about Respondent's contention that Section 8(bXIXB) "does not permit [a supervisor] to sabotage his own organization" and, "If discipline of union members, for such reasons, interferes with their loyalty to their employer, the later [sic] has a way of avoiding such loss. He can hire non-union supervisors." The short answer to Respondent's argument is that a basic purpose of Section 8(b)(1)(B), as interpreted by the Board and the courts, is to prevent putting employers to such a choice. Under the Act, employers may, if they choose, restrict supervisory positions to nonunion persons; but employers may, if they choose, permit supervisors to be union members. In many industries and localities, particularly in the building trades, it might be very difficult for employers to secure experienced, competent persons as supervisors if they conditioned such employment on nonmembership in any union. The real cost of relinquishing union member- 10 Respondent refused to furnish a copy to Moreno's attorney. " The record does not show whether Respondent actually went through the final formality of striking Moreno from the membership lists. However, ship may well be prohibitive to long-time members of a trade who are offered supervisory positions, either tempo- rary or permanent. Under the Act, a union may not utilize its internal procedures to compel a supervisor to choose between losing his membership and disloyalty to the employer whom he serves. Accordingly, for the foregoing reasons, I find and conclude that, as alleged in the complaint, Respondent has violated Section 8(bXIX)(B) of the Act by summoning Moreno before its executive committee on August 4, 1976; finding him guilty on November 2, 1976, of failing to appear before the committee; and fining him $300 on November 3, 1976, for said failure to appear. The remaining question concerns Respondent's subse- quent refusal to accept Moreno's membership dues until he paid the $300 fine, the inevitable result of such refusal to accept dues being termination of Moreno's union member- ship. As said in Sheet Metal Workers' International Associa- tion, Local Union No. 361 (Langston & Co.), supra, 195 NLRB at 356: It is clear from our prior decisions that union fines predicated upon a member's conduct and action as a supervisor violate Section 8(bX)(XB) of the Act.... Similarly, the expulsion of a supervisor from a union, based upon the same conduct, violates the proscrip- tions of Section 8(bX IX)(B). The inevitable effect of Respondent's refusal of Moreno's membership dues was expulsion from the Union. Since refusal of the dues was based upon nonpayment of the unlawfully imposed fine, the refusal was itself violative of Section 8(bX IXB) of the Act. The only possible problem concerning the foregoing holding lies in the fact that the refusal of membership dues, with resultant expulsion," was not alleged as violative in the complaint. However, the matter was litigated without objection. Respondent's notices returning dues payments in November and December 1976 and the warning of being stricken from the membership records are in evidence. They clearly establish the violation. Accordingly, in view of the evident fact that the expulsion from membership is intimately related to, and an inevitable result of, the violations specifically alleged and hereinabove found, it is found that the later action is violative of the Act. CONCLUSIONS OF LAW I. Robert L. Guyler Co. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Ralph E. Moreno is a supervisor within the meaning of Section 2(11) of the Act and a representative of the employer for the purposes of adjusting grievances or collective bargaining, within the purview of Section 8(bXIXB) of the Act. as previously noted, Respondent notified Moreno that expulsion would ensue from his failure to pay the illegally imposed fine. 191 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By requiring Ralph E. Moreno to appear before its executive committee and then fining him for failure to appear, with eventual expulsion from union membership for failure to pay the fine levied, Respondent coerced and restrained the Employer in the selection of its representa- tives for the purposes of collective bargaining or the adjustment of grievances and thereby engaged in unfair labor practices within the meaning of Section 8(b)(l)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Because Respondent's course of conduct was so flagrantly violative of the Act, and so patently hostile and arbitrary, issuance of a broad cease- and-desist order will be recommended. Affirmatively, it will be recommended that Respondent be required to rescind all action taken against Moreno and expunge from its records any and all reference to any such action. Additionally, the recommended Order will require that, if Moreno has been expelled from membership, he be fully reinstated upon payment of regular membership dues (without any interest or penalties for late payment). Since it is possible that Moreno may have paid all or a part of the fine unlawfully imposed, Respondent will be required to refund any such payment, with interest at the rate of 6 percent per annum. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 The Respondent, United Brotherhood of Carpenters and Joiners of America, Local Union No. 14, AFL-CIO, its officers, agents, and representatives, shall: I. Cease and desist from: 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Restraining or coercing Robert L. Guyler Co., or any other employer, in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances in any manner by disciplining such representa- tives or expelling them from membership. (b) In any other manner restraining or coercing Robert L. Guyler Co., or any other employer, in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Expunge all record of the disciplinary action or proceedings (including all orders or summonses to appear) taken against Ralph E. Moreno. (b) Rescind any and all fines levied against Ralph E. Moreno and refund to him any money that may have been paid to Respondent as a result of any such fine, together with interest at the rate of 6 percent per annum. (c) Notify Ralph E. Moreno and Robert L. Guyler Co. that it has taken the aforesaid remedial action and that it will in the future comply with the cease-and-desist provi- sions of this Order. (e) Reinstate and/or retain Ralph E. Moreno as a member of Respondent in good standing upon Moreno's tender of regular membership dues, including any amounts due for past periods. (f) Post at its offices and meeting halls copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, including all places where Respondent customarily posts notices to its mem- bers. Reasonable steps shall be taken by Respondent to assure that said notices are not altered, defaced, or covered by any other material. (g) Furnish signed copies of the notice to the Regional Director for Region 23 for posting by Robert L. Guyler Co., said employer being willing, at all locations where notices to employees are customarily posted. (h) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 13 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 192