American Federation of Musicians, Local 76

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Federation of Musicians, Local 76, AFL-CIO 1( Jimmy Wakely Show) and John C. Wakely. Case 19-CB-1716 March 21, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On April 14, 1972, Administrative Law Judge2 George Christensen issued the attached Decision in this proceeding. Thereafter, the Charging Party and the General Counsel filed exceptions and the General Counsel filed a supporting brief. Respon- dent filed a brief in support of the Administrative Law Judge's Decision and in answer to exceptions filed by the General Counsel. 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 only such of the Administrative Law Judge's rulings, findings, and conclusions as are consistent herewith and to adopt his recommended Order. The Administrative Law Judge found that John Wakely was a supervisor and that he was not a federation member at the time he received Respon- dent's letter of July 20, 1971. He further found that Respondent's letter and Business Agent Carraba's accompanying remarks conveyed a threat that Respondent would "cause charges" leading to fine or expulsion or both unless John Wakely ceased working for his father, Jimmy Wakely, and that such threat constituted restraint or coercion but did not violate Section 8(b)(1)(B), since its object was not to coerce Jimmy Wakely into changing his designation of John Wakely as his grievance representative or affect his performance of any managerial duties. The Administrative Law Judge found no violation on the additional ground that John Wakely was not a member on July 20, and that therefore Respondent did not have the power to subject him to charges. We would be inclined to reach a contrary interpretation and application of Section 8(b)(1)(B). The Board has held, with court approval, that union disciplinary action need not be related to the supervisor-member's performance of his supervisory 1 Hereinafter called Respondent The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 3 International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, International Brotherhood of Electrical Workers, AFL-CIO [Illinois Bell functions in order to constitute coercion within the proscription of Section 8(b)(1)(B).3 It is sufficient that the discipline concern the relationship between the employer and the Union, rather than that between the Union and its supervisor-members. It is also well established that, in determining whether an 8(b)(1)(B) violation has been committed, the answer does not turn on whether the coercion succeeded or failed.4 The test is whether it may reasonably be said that the respondent's action meaningfully detracted from the undivided loyalty owed by the supervisor to his employer and if such action thereby interfered with management's right to select its representative. Accordingly, our interpretation would normally require a finding here that since Respondent's conduct had a tendency to impede the discharge of John Wakely's supervisory duties, it thereby inter- fered with Jimmy Wakely's right to select his management representative and thus falls within the prohibitions of Section 8(b)(1)(B). We would not think such an interpretation of the Act to be rendered vulnerable even if John Wakely was not a member of the Federation at the time of the threat. In Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Company),5 this Board estab- lished that a union violates Section 8(b)(1)(A) by fining employees who have resigned from the union before engaging in the conduct for which discipline was imposed. The Boeing rationale would seem to have a direct application in the instant case. Accordingly, Board precedent would, at first blush, seem to warrant a reversal of the ALJ, a finding of a violation, and a remedial order, for it is true that John Wakely, a supervisor, received the same letter as did the four rank-and-file employees informing the recipients that any union member who continued to work for Jimmy Wakely would be subject to charges for violation of the Union's bylaws and that this could lead to expulsion from membership and/or a fine not exceeding $100, and this was in connection with the Union's dispute with the employer. In the circumstances here, however, the conduct involved was so minimal and has been so substantial- ly remedied by the Respondent's subsequent conduct that the entire situation is one of little significance and there is no real need for a Board remedy. In this connection, it is not disputed that no action was taken pursuant to the threat, and, in fact, the record reveals that the Respondent in effect withdrew it. Telephone Company] v NLRB, 85 LRRM 2582 (C A D C, Sept 1973), affg and enfg as modified 192 NLRB No 17 4 Ibid 5 185 NLRB No 23, enfd in part and remanded in part 459 F 2d 1143 (CADC) 202 NLRB No. 80 AMERICAN FEDERATION OF MUSICIANS, LOCAL 76 621 Thus, as a result of the Respondent's letter and threat, Bob Evans, one of the employees, had refused to work for Jimmy Wakely' on July 21 but he returned on July 22 and finished the engagement, having been advised to do so by the Respondent on instruction of its attorneys after they examined the original charge in this case. The testimony does not state directly that he communicated this particular advice to either John Wakely or Jimmy Wakely, but it does establish, without any question, that each previous communication from, or conversation between, Evans and any representative of the Respondent was reported by him in detail to both John and Jimmy Wakely. It therefore seems more than reasonably inferable that when Evans returned to work on July 22 he informed them, in accordance with his seemingly uniform practice, of the reason for his change of position in this instance. In short, this case involves "one of those 'infinitesi- mally small abstract grievances [that] must give way to actual and existing legal problems if courts [and the NLRB] are to dispose of their heavy calen- dars.' "6 Patently, when viewed in the total factual context, there remains little here of substance, and in that respect this case is analogous to Columbia Typographical Union No. 101, supra. Here, as there, the Respondent rescinded its instruction to the members long before the complaint was issued, there is no suggestion that this action was taken because of compulsion, or fear of the Board, and there is no basis for concluding that this case is part of a pattern of harassment against supervisors. Indeed, there is no suggestion here that the action was even intended to be directed against a supervisor. In our view, therefore, the issue is so remote as to be, for all practical purposes, moot, as it was found by the court to be in the Columbia Typographical Union case. But even if not entirely moot, it seems to us that the alleged misconduct here is of such obviously limited impact and significance that we ought not to find that it rises to the level of constituting a violation of our Act. The Board's rising case load and the problems involved in handling it could be alleviated if cases of this type were not processed. Comments and suggestions to this effect have recently been made by the Committee on Labor and Social Security Legislation of the Bar Association of the City of New York: 7 Screening out de minimis or isolated violations 6 N L R B v Columbia Typographical Union No 101, International Typographical Union of North America, AFL-CIO [The Evening Star Newspaper Co and The Washington Daily News], 470 F 2d 1274 (C A D C, 11/10/72), denying enforcement of 193 NLRB No 167 And see the comments of the court in Dallas Mailers Union, Local No 143 et at [Dow Jones Co] v NLRB, 445 F 2d 730 (C A D C, 1971), enfg 181 NLRB 286 7 "Improved Enforcement of the National Labor Relations Act," Committee Report by The Committee on Labor and Social Security The Board's load could be reduced without countervailing disadvantages by screening out de minimis or isolated violations. The fact that the investigation of a charge reveals some minor breaches of the Act should not necessarily call for the issuance of a complaint. Just as a district attorney has a measure of discretion and does not prosecute all departures from the letter of the law, so we believe the General Counsel should use the power granted to him in Section 3(d) to refuse to prosecute violations of minor or isolated charac- ter that do not warrant exercise of the Board's remedial powers. ... But with the ever-expanding caseload, it is more important than ever that the Board be permitted to husband its limited resources and apply them where they have maximum impact in effectuating the Act. Otherwise, time, energy and manpower are dissipated in seeking to rectify situations of no real moment while, backed up behind them, significant violations remain un- remedied. It may be, as several courts have held, that once the Board has found any violation, no matter how isolated or trivial, it cannot refuse to issue a remedial order because Section 10(c) supposedly mandates a Board order through its use of the words "shall issue." But whatever the law may turn out to be in this respect, it certainly does not bar the General Counsel from exercising the discretion embraced in his statutorily-granted "final authority" to refuse to issue a complaint if he deems the violations to be isolated or of trivial consequence. We urge that the Regional Direc- tors be so instructed. [Footnotes omitted.] It is true, as stated in the last-quoted paragraph, that some courts have held that the Board may not withhold issuance of a remedial order once a violation is found.8 We are not here disposed to find the quantum of misconduct sufficient to constitute a violation. In this connection, we believe the courts are coming to the view that violations having little or no impact upon employee exercise of statutory rights should not form the basis of either a proceeding or a remedy under our Act. One of the courts referred to by the New York City Bar, the United States Court of Appeals for the Legislation of the Association of the Bar of the City of New York, The Record, 1972, p. 523 at 530 8 International Union, United Automobile, Aerospace and Agricultural Implement Workers ofAmerica (UA W) [Omni Spectra, Inc] v N L R B, 427 F 2d 1330 (C A 6), International Woodworkers of America, AFL-CIO, Local 3-10 [Long Lake Lumber Company] v N L R B, 380 F 2d 628 (C A D C) Cf Luxuray of New York, Division of Beaunit Corporation v N L R B, 447 F2d 112(CA 2) 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District of Columbia Circuit, by the language quoted in this opinion, has recently indicated that proceed- ing in cases involving "infinitesimally small abstract grievances" is not mandatory. The full context of the paragraph in which that statement appears is relevant to this situation: We are once again presented by the Board with one of those "infinitesimally small abstract grievances [that] must give way to actual and existing legal problems if courts are to dispose of their heavy calendars." Dallas Mailers Union, Local No. 143 v. N. L. R. B., 144 U.S. App. D.C. 254, 257, 445 F.2d 730, 733 (1971). Moreover, it would seem that the Board also "could very well be spared the time consuming energy necessarily exhausted in the determination of [this] type of dispute . . . Id., 144 U.S. App. D.C. at 259, 445 F.2d at 735. The court then reviewed the facts of that case and concluded: Under the circumstances, why the General Counsel filed his charge and the Board persists in this litigation is difficult to understand. Accordingly, the court denied enforcement of the Board's order. In sum, in view of the increasing need for expedition in the processing of cases, we have concluded that we ought not expend the Board's limited resources on matters which have little or no meaning in effectuating the policies of this Act. Thus, in this insubstantial case, we would find that the conduct involved, although it may have been in technical contravention of the statute as interpreted by this Board, was nevertheless so insignificant and so largely rendered meaningless by Respondent's subsequent conduct that we will not utilize it as a basis for either a finding of violation or a remedial order. The complaint herein should be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Trial Examiner: On January 4, 1972, the Trial Examiner held a hearing at Seattle, Washington to try issues raised by a complaint issued on October 20, 1971 , 1 alleging that American Federation of Musicians, Local 76, AFL-CIO,2 violated Section 8(b)(1)(B) of the National Labor Relations Act, as amended (hereafter the Act), by a July 20 threat to bring charges against and fine or expel John Wakely, an alleged supervisor, if John continued to work for his father, Jimmy Wakely, during the latter's musical engagement at the Wharf Restaurant in Seattle, Washington. Local 76 denied any violation of the Act. All parties appeared by counsel and were afforded full opportunity to adduce evidence , to examine and cross- examine witnesses, to argue, and to file briefs. Briefs were filed by the General Counsel, the Charging Party, and Local 76. Based upon his review of the entire record , observation of the witnesses, perusal of the briefs and research, the Trial Examiner enters the following: FINDINGS OF FACT 1. JURISDICTION For many years Jimmy Wakely has sold a musical package called the Jimmy Wakely Show (hereafter called the Show) to restaurants, hotels, nightclubs, and various organizations . He is the central performer, makes contracts with those hiring his act , employs musicians and other assistants, and controls the Show. The parties stipulated to the inclusion and correctness of a new paragraph 2-A within the complaint, providing that between September 1, 1970, and August 1, 1971, the Show grossed in excess of $50,000 for work performed outside of California during such period.3 Based upon the foregoing , the Trial Examiner finds and concludes that Jimmy Wakely was an employer engaged in commerce in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act at all times pertinent hereto and it will effectuate the purposes of the Act to assert jurisdiction herein. it. LABOR ORGANIZATION 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 and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. The complaint alleges, the answer admits, and I find that Local 76 was a labor organization within the meaning of Section 2(5) of the Act at all times pertinent to this proceeding. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Background As noted heretofore, Jimmy Wakely has booked his i The complaint was amended at the hearing to include an allegation of references omitting the year occurred in 1971 proper service upon Local 76 of a second amended charge filed by John 2 Hereafter called Local 76 Wakely on November 29, 1971, after issuance of the complaint The original 3 Jimmy Wakely's home and principal place of business at all pertinent charge was filed on July 21, 1971, by John Wakely and the first amended times is in southern California, the Show was also performed during the charge was filed by Jimmy Wakely on August 4, 1971 All further date 1970-71 period at various locations within the State of California AMERICAN FEDERATION OF MUSICIANS, LOCAL 76 623 Show in various parts of the United States over many years; within the past several years he has scheduled a series of appearances in the Northwestern States on a semiannual basis, including regular appearances in Seattle, Washington, at the Wharf Restaurant. He has always been the central performer and in recent years has been accompanied vocally by his daughter, Linda, and vocally and instrumentally by his son, John. Sometimes he hires southern California musicians to accompany his family group on tours and other times he hires local musicians in the areas where he appears, either as part or the total accompaniment. B. Union Membership Until early 1971, both Jimmy and John Wakely were members of Local 47 of the American Federation of Musicians, AFL-CIO. Jimmy Wakely's membership in Local 47 was terminated by the Local on February 28 because of his refusal to pay $1,620 to three musicians he discharged during a 1970 tour of the Northwestern States.4 On May 25, Local 47 notified John Wakely that his membership would be terminated on June 30 if he did not tender dues for the second quarter of 1971 (Apnl 1-June 30) by June 30. John Wakely did not tender such dues by the date in question and his membership terminated on the latter date.5 C. The Alleged Restraint and Coercion Jimmy Wakely contracted with the Wharf Restaurant at Seattle to put on his Show commencing July 19. For this performance, he was accompanied by his son and daughter, John and Linda, two musicians he brought up from California, drummer Scott Norman and bass player Stan Puls; and he hired a local piano player, Bob Evans,6 as his third sideman. Representatives 7 of Local 76 warned Evans on July 19, prior to the first performance of the Show at the Wharf, that it might be a violation of the Federation's bylaws if he worked in the Show if Jimmy Wakely was on the Federation's National Defaulter List, and promised to check this and advise Evans. Prior to the commencement of the Show the following day, July 20, Hoagy informed Evans that Jimmy Wakely was on the list and that Local 76's business agent, Sal Carraba, would be at the Wharf prior to the start of the Show with a letter stating Local 76's position. Evans informed both Jimmy and John Wakely of the foregoing conversations Carraba appeared at the Wharf at about 8:30 p.m. and was introduced by Evans to Jimmy Wakely, John Wakely, Scott Norman, and Stan Puls. Carraba presented identical 4 In 1970, Jimmy Wakely discharged musicians Donald Smith, John Roslyn, and Billy Poteet during his spring tour of the Northwest, replacing them with other musicians The three filed charges against Wakely within the Union, seeking compensation for the monies they would have earned if they had completed the tour Judgment was entered against Wakely and upheld by the executive board of the international union on appeal Wakely was directed to pay $540 to each of the three, with a further direction to his local union (47) to terminate his membership if he did not pay the three by February 28 Wakely did not make the payments and was duly terminated 5 The Trial Examiner discredits John Wakely's testimony that he was "confused" concerning his membership status on July 19-20 He gave notice letters on Local 76's stationery to Evans, John Wakely, Norman, and Puls (and an identical copy to Linda Wakely the following day) and verbally repeated its contents. The letter read as follows: This is to advise you that you are performing for Jimmy Wakely who is on the A. F. of M. Defaulters List and an expelled member. By performing with Jimmy Wakely you are in violation of Article 10, Sections 7 and 11 of the Federation Bylaws. Article 10, Section 7: "Whenever any person, persons, organization or establishment is declared to be on the National Unfair or Defaulter List by the Federation, members cannot render services for or with such person, persons, organization, or for or in, such establishment. If members render services for any person, persons, organization or establishment declared Nationally Unfair or in Default by the Federation, such action shall constitute grounds for such members' expulsion from membership in the Federation and they can only be reinstated under such conditions as may be imposed upon them by the International Executive Board." Article 10, Section 11: "Any member who solicits from or signifies his intention to accept an engagement with an organization, booking agents or individuals who are held as unfair or in default by the Federation of Musicians, may be fined by the local in whose jurisdiction he committed the offense or by the International Executive Board a sum not exceeding $100.00, or he be expelled from the Federation, or both. If you continue to work with Jimmy Wakely you will be subject to charges for violation of the above Bylaws. Fraternally, (signed) Winifred B. Warming Secretary-Treasurer Jimmy Wakely asked John Wakely to read his letter aloud.8 John did so, in the presence of Jimmy Wakely, Evans, Norman, Puls, and Carraba. Asked to comment thereafter, Carraba paraphrased the letter. Jimmy asked those present what they were going to do. John Wakely commented that no one was going to tell him he could not work for his father. Norman and Puls stated they were going to continue to work. Evans stated he was pulling out, though he agreed (with Carraba's approval) to work that evening, inasmuch as it was close to showtime. Evans did not report for work the following evening (July 21). On July 22, he returned to work and finished the engagement-on the advice of Local 76's secretary-treasur- on March 30 to Local 47 to the effect that he did not intend to pay dues after March 31 , to which date he was paid up, and he acknowledged receipt of notice from Local 47 on May 25 that his membership would be suspended (suspension is synonomous to termination) on June 30 (dues are due in quarterly installments, payable on or before the last day of each quarter) unless he paid his dues for the second quarter by that date, which he failed to do 6 Evans was employed by Wakely on previous tours of the Northwest. He was at all times a member of Local 76 7 Norm Hoagy, president, and Lee Newman , vice president 8 Jimmy Wakely did not have his reading glasses with him 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er, who informed Evans she had been instructed to so advise Evans by Local 76's attorneys after their examina- tion of the original charge filed in this case on July 21. Subsequent to their receipt and notice of Local 76's July 20 letter and Carraba's comments paraphrasing it, Jimmy Wakely made no changes in John Wakely's duties and John Wakely continued to perform his regular duties as he had previous to receipt of the letter. No action has been instituted by Local 76 since July 20 against Jimmy Wakely, John Wakely, or any other person employed in the Show. D. John Wakely's Supervisory Status At times pertinent hereto, John Wakely was paid $100 per week more than his sister and the other musicians employed in the Show. Since 1966, when he replaced Jimmy Wakely's former second-in-command, John Wake- ly has effectively recommended the hiring and firing of side musicians employed in the Show, including the three musicians fired during the 1970 spring tour of the Show in the Northwest and the hiring of the current drummer, Scott Norman; at all times since 1966 he has directed musical rehearsals in the absence of Jimmy Wakely; during the dance sets between the times the Show is on, Jimmy Wakely remains off the stage and John Wakely chooses the music to be played, sets the tempo, decides when to start and stop, when to take breaks, etc.; John Wakely polices the wearing apparel of the musicians, gives them cash advances when requested, sets rehearsal dates and times (and changes same at times on request by the musicians), handles requests from the musicians to adjust spotlights, etc.; he enforces Jimmy Wakely's rules regarding no drinking or smoking on stage, etc. All three musicians employed by Jimmy Wakely on the July tour (Norman, Puls, and Evans) and John Wakely were advised that John Wakely was in charge in Jimmy's absence or unavailability and that Norman, Puls, and Evans were to carry out John's instructions.9 E. Contentions of the Parties, Issues 1. The General Counsel The General Counsel contends that on July 20, John Wakely was employed by Jimmy Wakely as a supervisor whose duties, inter aka, included the adjustment of employee grievances; that the July 20 letter addressed by Local 76 to John Wakely and read in Jimmy Wakely's presence, plus Carraba's accompanying remarks para- phrasing the letter, constituted a threat which restrained and coerced Jimmy Wakely in his selection of John Wakely as his representative for the purpose of adjusting employee grievances and thereby violated Section 8(b)(1)(B) of the Act. 2. Local 76 Local 76 contests John Wakely's supervisory status, disclaims knowledge' or notice thereof, contends that the July 20 letter and Carraba's remarks were neither a threat nor "restraint" or "coercion" within the meaning of Section 8(b)(l)(B) of the Act, argues that its sole object was to inform those employees of Jimmy Wakely who were members of an affiliate of the Federation that they would be exposed to charges of violation of the Federation's bylaws if they worked for Jimmy Wakely, and not to "restrain" or "coerce" Jimmy Wakely in his selection of supervisors to process employee grievances, claims the record shows that Jimmy Wakely was not "restrained" or "coerced" by the letter and remarks, and finally contends that by virtue of the foregoing the complaint should be dismissed. 3. The issues The issues are: a. Was John Wakely a supervisor and Jimmy Wakely's representative for the purpose of processing employee grievances on July 20. b. Did Local 76's July 20 letter and Carraba's accom- panying remarks constitute threats and "restraint" or "coercion" within the meaning of Section 8(b)(1)(B) of the Act. c. Was Local 76's object, in directing the letter and remarks to John and Jimmy Wakely, to restrain and/or coerce Jimmy Wakely in his selection of John Wakely as his representative for the purpose of adjusting employee grievances. d. Was Jimmy Wakely restrained and/or coerced in his selection of John Wakely as his representative for the purpose of processing employee grievances by the July 20 letter and Carraba's remarks. F. Analysis and Conclusions 1. John Wakely's status Section 2(11) of the Act defines as a supervisor any individual with authority to hire, discharge, assign, discipline, responsibly direct employees, or adjust employ- ee grievances or effectively to recommend such action, so long as he exercises independent and not merely routine or clerical judgment. The Trial Examiner has entered findings heretofore that John Wakely effectively recommended several employee firings and a hiring, assigned work to employees, directed employees in their work, issued reprimands to them, handled their requests and complaints, and received $100 per week more than the employees he directed. Several of John Wakely's functions were exercised without the presence of Jimmy Wakely, and required the exercise of independent discretion or judgment. Both John Wakely and the musicians employed by Jimmy Wakely on July 20 were clearly informed by Jimmy Wakely of John Wakely's status as Jimmy's second-in-command. Based upon such findings and considerations just recited, the Trial Examiner finds and concludes that John Wakely was a supervisor on July 20 with authority to 9 The foregoing findings are based on the undisputed testimony of the General Counsel's presentation of his case in chief on the ground the Jimmy Wakely, John Wakely, and Bob Evans, Local 76 did not present any General Counsel failed to meet his burden of establishing by prima facie evidence and moved to dismiss the complaint in its entirety at the close of evidence that any violation of Sec 8(b)(I)(B) of the Act occurred AMERICAN FEDERATION OF MUSICIANS, LOCAL 76 adjust such employee complaints or grievances as they arose. 2. Did Local 76's actions constitute "restraint or coercion" Section 8(b)(1)(B) of the Act states that it is an unfair labor practice for a union to restrain or coerce an employer in the selection of his representative for the purpose of adjusting employee grievances. Local 76 contends that Congress' deliberate failure to carry over the words "interfere with" along with the words "restrain or coerce" from Section 8(a)(1) of the Act when it enacted Section 8(b)(1)(B) indicates Congressional intent to refrain from making it unlawful for a union to attempt to discriminate, as contrasted with an effective discriminatory action. Local 76 further reasons that its obvious incapacity to fine or expel John Wakely (due to his nonmembership on July 20), its failure to file charges against him, and consequent failure to even seek, much less accomplish, his fining or expulsion from membership, coupled with its revocation of its July 20 notice as evidenced by its July 21 advice to Evans to work for Jimmy Wakely, all evidence conduct falling short of "restraint" or "coercion" as those terms are utilized in Section 8(b)(1)(B) of the Act. Several reported cases refute Local 76's argument. In the cases of Bricklayers Local 7 (United Masonry, Inc.), 193 NLRB No. 72; Teamsters Local 663 (Continental Oil Co.), 193 NLRB No. 84; and Typographical Union No. 18 (Northwest Publications Co.), 172 NLRB 252, the Board held that remarks and notice such as directed in this case by Local 76 to John Wakely, as well as the subsequent imposition of discipline on a supervisor-union member, for carrying out employer policy to which the union was opposed, constituted restraint or coercion of the employer. The Board reasoned that both the threat and the act were equally restraining and coercive of the employer in the exercise of his right to sole and undivided control over his supervisory representative 10 in his carrying out of employ- er policy or orders vis-a-vis his employees. The Trial Examiner therefore finds and concludes that the letter delivered by Carraba to John Wakely on July 20 and Carraba's accompanying remarks conveyed a threat to him that Local 76 would cause charges leading to fine or expulsion or both unless he ceased working for Jimmy Wakely and that such a threat constitutes restraint or coercion as those terms are employed in Section 8(b)(1)(B) of the Act. 3. Local 76's objective The July 20 Local 76 letter was distributed by Carraba to the three side musicians (Evans, Norman, and Puls) and 10 Reconciling and harmonizing Sec 8(b)(I)(B) with the Congressional intent expressed by Sec 2(3)'s exclusion of supervisors from the Act's coverage 11 See cases cited in Sec III, F,2, above, and Meat Cutters Local 81 (Safeway Stores, Inc), 185 NLRB 884, enfd 458 F 2d 794 (C A D C), Dallas Mailers Union (Dow Jones Co ), 181 NLRB 286, enfd. 445 F 2d 730 (CAD C ),Sheet Metal Workers Local 49 (General Metal Products, Inc), 178 NLRB 139, enfd 430 F 2d 1348 (C A 10), New Mexico District Council of Carpenters (A S Horner Co), 177 NLRB 500, 176 NLRB No 105, enfd 454 F 2d I I i6(C A 10), Toledo Locals 15-P & 272, Lithographers (Toledo Blade Co), 175 NLRB 1072, enfd 437 F 2d 55 (C A 6), 625 Linda and John Wakely. The record is devoid of any evidence that Local 76 was ever reasonably apprised of John Wakely's nonmembership in the Federation or his supervisory and grievance representative status on July 20 or any time theretofore. Local 76 argues that at the time Carraba distributed the July 20 letter the Local believed all five simply to be employees of Jimmy Wakely and its sole object was to warn those who were members of the Federation of their exposure to charge of violation of the Federation's bylaws and possible fine or expulsion if they continued to work for Jimmy Wakely, and that it did not intend to coerce or restrain the latter in his selection of John Wakely as his representative for adjusting any complaints or grievances the three side musicians (and Linda) might have. The General Counsel responds that motive or intent or object is irrelevant and Local 76 must answer for the result of its acts, whether intended or not. While it is true that the Board and the courts in a number of cases have held that threats to discipline a supervisor-union member for carrying out orders or policies dictated by his employer which the union opposes and the actual levy of discipline therefore violate Section 8(b)(1)(B) of the Act,ii they have also held that no violation occurs when the threat or disciplinary action is not aimed at affecting the employer's selection of the threatened or disciplined supervisor-union member as his representative for grievance adjustment purposes or to affect the supervisor-union member's exercise of his function as a management representative in grievance add ustment. i2 The General Counsel concedes in his brief that service of the July 20 letter on, and Carraba's accompanying remarks to, Evans, Puls, Norman, and Linda Wakely did not violate Section 8(b)(1) of the Act, inasmuch as they were employees within the meaning of the Act and the proviso to Section 8(b)(1)(A) of the Act permits' union threat and discipline of employee-union members for violation of its bylaws; 13 in essence, he contends that Section 8(b)(1)(B) was violated solely because John Wakely was a supervisor, without regard to whether this was known to Local 76 or whether Local 76 was trying to coerce Jimmy Wakely into changing his designation of John Wakely as his grievance adjustment representative or to coerce John Wakely (and, indirectly, Jimmy Wakely) into desisting from carrying out instructions or policies or orders as a management representative. The Trial Examiner concludes that Local 76's object or motive in serving the July 20 letter on John Wakely and making remarks through Carraba paraphrasing it to him was to coerce Jimmy Wakely's employees, including John Wakely, to cease working for Jimmy Wakely and thereby 12 Local & Sawmill Workers (Cheney Cal Lumber Co), 183 NLRB No 24, enfd 319 F 2d 375 (C A 9), Morand Bros Bev Co (Distillery Workers Union, 91 NLRB 409, enfd 190 F 2d 576 (C A 7), Carpenters District Council of Sabine Area (Miner-Dietrich Const Co), 195 NLRB No 28, Local 453, Bra of Painters, etc (Syd Gough & Sons, Inc), 183 NLRB No 24, Local 600, Iron Workers (Bay City Erection Co), 134 NLRB 301 11 The General Counsel's refusal to issue a complaint based on the Charging Party's claim that the conduct described herein violated Sec 8(b)(I)(A) of the Act further precludes the Trial Examiner from entering any findings thereon-see Sec 3(d) of the Act 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerce Jimmy Wakely into complying with the Federa- tion's award against him, and not to coerce Jimmy Wakely into changing his designation of John Wakely as his grievance adjustment representative or to affect John Wakely's performance of any managerial duties. In the judgment of the Trial Examiner, the General Counsel's theory of the case, if followed, would extend the application of Section 8(b)(1)(B) of the Act beyond any semblance of its original intent-to bar union strikes or other forms of coercion aimed at forcing an employer to change the person he designated to bargain collectively and/or adjust grievances on his behalf. The Trial Examiner therefore finds, in accord with the cases cited in footnote 12, that since Local 76 did not have as its object the coercion of Jimmy Wakely in his choice of John Wakely as his grievance representative or to coerce John Wakely in his performance of managerial duties, Local 76 did not violate Section 8(b)(1)(B) of the Act by serving the July 20 letter on John Wakely and Carraba's remarks paraphrasing it. 4. Restraint or coercion Local 76 contends that Jimmy Wakely's testimony that he continued to assign the same duties to John Wakely after hearing the contents of the July 20 letter and Carraba's accompanying remarks proves that Jimmy Wakely was not restrained or coerced in his selection of John Wakely as his grievance and managerial representa- tive. Findings have been entered previously that John Wakely was not a member of the Federation at the time he received 14 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, recommendations, and recommended Order herein shall, as the letter and heard Carraba's remarks, a fact obviously known to his father, Jimmy Wakely. Clearly, then, both Jimmy and John Wakely knew at that time of the emptiness of the threat, that Local 76 did not have it within its power to subject John Wakely to charges leading to possible fine or expulsion. With that knowledge, and John's immediate rejoinder that no one could tell him he couldn't work for his father, it is difficult to see how Jimmy Wakely'was in any way "restrained" or "coerced." On this added ground, the Trial Examiner finds and concludes that no violation of Section 8(b)(1)(B) of the Act occurred. CONCLUSIONS OF LAW 1. At all pertinent times Jimmy Wakely was an employer engaged in commerce in a business affecting commerce and Local 76 was a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act. 2. Local 76 did not violate Section 8(b)(1)(B) of the Act by presenting' John Wakely with a letter on July 20 notifying him that he might be charged with violation of the bylaws of the Federation if he continued to work for his father and by the remarks of its agent, Carraba, paraphrasing the contents of that letter. Upon the basis of the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner issues the following recommended: 14 ORDER The complaint shall be dismissed in its entirety. 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