Local No. 18, Operating Engineers

LOCAL NO. 18, OPERATING ENGINEERS Charles Rutherford, President, Local No. 18, Interna- tional Union of Operating Engineers , AFL-CIO and William C. Brewer, Business Representative Local No. 18, International Union of Operating Engineers, AFL-CIO and Paul M. Knott, Business Representa- tive, Local No. 18, International Union of Operating Engineers, AFL-CIO and Local No. 18, Internation- al Union of Operating Engineers, AFL-CIO and B. D. Morgan & Company, Inc., and Mecco, Inc. Local No. 18, International Union of Operating Engi- neers, AFL-CIO, and its Agents Paul M. Knott and Broten Collins, Business Representatives and B. D. Morgan & Company, Inc., and Mecco, Inc. Local No. 18, International Union of Operating Engi- neers, AFL-CIO and Charles Rutherford, President, Local No. 18, International Union of Operating En- gineers, AFL-CIO and William C. Brewer, Business Representative, Local No. 18, International Union of Operating Engineers, AFL-CIO and Paul M. Knott, Business Representative, Local No. 18, International Union of Operating Engineers, AFL-CIO and B. D. Morgan & Company, Inc., and Mecco, Inc. Cases 9-CC-654-1, -3, -4, and -7 and 9-CC-702, 9- CB-2147-1, -2, -4, and -5 August 13, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On April 30, 1973, Administrative Law Judge Rob- ert E. Mullin issued the attached Decision in this pro- ceeding. Thereafter, the Respondent Union filed exceptions and a supporting 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 Administrative Law Judge's Decision in light of the exceptions and brief and has decided to affirm the Administrative Law Judge's rulings, findings,' and conclusions,' and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondents, Local No. 18, International Union of Operating Engineers , AFL-CIO, Cleveland, Ohio, and its agents, Charles Rutherford , William C. Brewer, Broten Collins , Paul M . Knott, and all other 487 officers, agents, and representatives, shall take the ac- tion set forth in the said recommended Order. i The Respondent, in effect, 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (CA 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We hereby correct the following inadvertent factual errors of the Admin- istrative Law Judge which in no way affect his Decision nor our adoption thereof Paul M Knott is Respondent's business representative rather than business manager , in 14 should be deleted as Collins did refer to a conversa- tion with Perry, and the fourth sentence of Par 10 of sec. III B(2) of the Decision should be changed to reflect the fact that Collins testified that he told Stayton that "Mecco was nonunion He's no good with us," but did not testify that he said as instructed by Knott "we usually hit them where we find them " DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: These cases were heard in Cincinnati, Ohio, on February 21 and 22, 1973, pursuant to charges duly filed and served,' and upon an amended consolidated complaint issued on Janu- ary 22, 1973. The complaint presents questions as to wheth- er the Respondents violated Section 8(b)(1)(A) and 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended (the Act). In their answer the Respondents admitted certain facts with respect to the jurisdictional as- pects of the cases, but they denied all allegations that they had committed any unfair labor practices. The complaint alleges, and the answer admits, that on about January 31, 1972, Respondents Rutherford, Brewer, Knott and Local 18 and the Charging Parties entered into an informal settlement agreement in Cases 9-CC-654- 1,-3,-4, and -7, providing that the said Respondents would not induce or encourage individuals employed by certain named employers to refuse in the course of their employ- ment to perform services for their employers or for any others in an industry affecting commerce with an object of forcing or requiring any person to cease doing business with the Charging Parties, and further that the said Respondents would not threaten, coerce, or restrain certain named em- ployers or any others engaged in an industry affecting com- merce with an object of forcing or requiring any such person to cease doing business with the Charging Parties. This settlement agreement was approved by the Regional Direc- tor about February 9, 1972. In an order dated December 18, 1972, the Acting Regional Director withdrew approval of, and vacated and set aside, the settlement agreement because of further conduct by the Respondents that was allegedly violative of Section 8(b)(4)(i) and (ii)(B) of the Act. At the hearing, all parties were represented by counsel i All charges were filed in 1972. The following were filed on January 6• Cases 9-CC-654-1,-3,-4, and -7 The following were filed on February 11: Cases 9-CB-2147-1,-2,-4, and -5 The charge in Case 9-CC-702 was filed on November 21 205 NLRB No. 75 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and were given full opportunity to examine and cross-exam- ine witnesses. At the conclusion of the hearing, the parties waived oral argument and on April 16, 1973, they submitted briefs. Motions to dismiss, offered by the Respondents at the conclusion of the hearing, are disposed of as appears later in this decision.' Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, I make the following. FINDINGS OF FACT I THE EMPLOYERS INVOLVED B. D. Morgan & Company, Inc., herein called Morgan, and Mecco , Inc., herein called Mecco, are Ohio corpora- tions. Both firms have common officers who are members of the same family. Each is engaged in contract engineering. In addition, Mecco is also engaged in the rental of heavy construction equipment and the supply of sand, gravel, and ready-mixed concrete which is sold and shipped to custom- ers from its location in Middletown , Ohio. In the year prior to the issuance of the complaint , a representative period, each of the foregoing employers purchased goods valued in excess of $50,000 from firms located outside the State of Ohio, which goods were shipped directly in interstate com- merce to their respective locations in Middletown, Ohio. Upon the foregoing facts, the Respondents concede, and I find, that Morgan and Mecco are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE RESPONDENTS INVOLVED Coombs is an issue in this case. From about 1960 and until 1970, Mecco had a succession of collective-bargaining agreements with the Respondent Local 18. However, the Union has never been certified as the exclusive bargaining agent for the Mecco employees. After the expiration of their contract in June 1970, Mecco did not resume contractual relations with the Respondent Union. However, its employees, Jimmie R. Perry, Dillard Graham, and C. T. Taulbee, who are involved in these proceedings, continued to pay their dues and retain their membership in Local 18 until they were expelled by the latter in the spring of 1972. That action by the Union is one of the issues herein. David T. Morgan, president of Mecco, Inc., and first vice president of B. D. Morgan & Company, testified that, be- tween the time when Mecco's contract with Local 18 ex- pired in June 1970 and the start of the Hill's job late in December 1971, his men had been put off jobs many times because of the activity of Local 18. This was conceded by counsel for the Respondents. However, prior to the Hill's job, no sites were picketed by the Respondent Union where Mecco employees were at work. In the fall of 1972, the Charging Parties entered into a subcontract with Triasco Corporation, herein called Trias- co, a contractor engaged in the building and construction industry, to perform certain grading work for Triasco at the Rink's Department Store site in Hamilton, Ohio. The gener- al contractor at the latter site was B. G. Danis Company, herein called Danis. Triasco, as a subcontractor under Dan- is, had a contract to install an asphalt parking lot at the Rink's location. Whether the Respondents had a labor dis- pute with Triasco is an issue in this case. The Respondents concede, however, that they have had a continuing labor dispute with the Charging Parties. Local No. 18, International Union of Operating Engi- neers, AFL-CIO, herein called Union or Local 18, is a labor organization within the meaning of Section 2(5) of the Act. Charles Rutherford is the president, and William C. Brewer, Broten Collins, and Paul M. Knott are business representa- tives for the aforesaid Union. The Respondents concede, and I find, that Rutherford , Brewer, Collins, and Knott are agents for the Respondent Union. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background In the latter part of 1971 and early in 1972, Baker & Coombs, Inc., herein called Baker & Coombs, a general contractor in the building and construction industry, was engaged in the construction of Hill's Department Store in Middletown, Ohio. In connection with this project, Baker & Coombs entered into a contract with the Charging Parties to perform certain grading and footing work. The Respon- dents acknowledge that at all times material herein they have been engaged in a labor dispute with the Charging Parties and that picketing occurred at the Hill's site . Wheth- er the Respondents had a labor dispute with Baker & B. The Facts 1. Hill's Department Store Work on this project was scheduled to begin about No- vember 1971. William Guess, superintendent for Baker & Coombs, testified that early in November or December 1971, the general contractor held what Guess described as a "prejob" conference with the building trades unions in- volved. At this meeting, attended by representatives of the plumbers, carpenters, painters, and other crafts, the Re- spondent Union was represented by Paul M. Knott and William C. Brewer, both business representatives. Accord- ing to Guess, at the end of the meeting, Business Agent Knott told those present that the Operating Engineers were having trouble with Morgan. Guess testified that as Knott was about to leave the meeting he declared that Morgan was an "unfair contractor" and that "whatever the business agents decided on . . he would go along with them 100 percent . . [because] Morgan is unfair.. . " 3 According to Guess, on January 3, 1972,4 Business Agent Brewer came to the Hill jobsite. Guess testified that Brewer inquired as to whether Morgan and Mecco employees were 3 The quotation is from Guess' credible and uncontradicted testimony 2 A motion to dismiss as to the Respondent Earl A Erwin was granted at 4 All dates hereinafter in this decision are for the year 1972, unless specifi- the hearing cally noted otherwise LOCAL NO. 18, OPERATING ENGINEERS on the job and, when he (Guess) answered in the affirma- tive, Brewer asked that Guess have them leave because they were unfair . Guess responded that he had no authority to order them off the premises. Brewer thereupon left the scene for a short while and then returned in the company of one Louis, a business representative for the Laborers Union. According to Guess, Louis cursed him, described Baker & Coombs as "a scabbing bunch of so-and so's," and told him that there were members of the Laborers on the job. Thereafter, in concluding their conversation, both Louis and Brewer stated that if the Mecco employees were permit- ted to remain at work they (the Unions) would have to establish a picket line. Before leaving, Brewer also talked with Mike Marusic, superintendent for Amrel 5 Construction Company, another subcontractor on the location. Guess testified that, in his presence and while he remained at the scene, Brewer told Marusic and the Amrel employees that the Operating Engi- neers considered Mecco unfair and that, if the employees of the latter remained on the site, the job would be picketed. Before leaving the scene, Brewer took the names of all oper- ating engineers then working for Amrel. The next morning, Brewer and several other representa- tives of Local 18 arrived at the entrances to the Hill con- struction site and began picketing with signs which read: "Mecco operating nonunion Unfair to Operating Engineers Local 18." There were only two entrances to the project, about 600 feet apart. Brewer stationed pickets at each gate. The picketing continued for about 10 days and until Mecco concluded its work on the contract. Brewer was present on the picket line every day. On January 4, Guess arrived at the scene shortly after the picketing began. When he questioned Brewer as to the rea- son for the picket line, the latter's only response was that "The sign speaks for itself." 6 About this same time, David Morgan came to the site. Morgan sought to engage Brewer in conversation, told him that he had tried to negotiate with Local 18, and was willing to negotiate right then if Brewer would do so. Brewer, however, declined to engage in any conversation and merely repeated what he had told Guess, namely, "The sign speaks for itself." At the time, Mecco had two operators and Morgan had three laborers, all of them engaged in digging and pouring footings for the foundations. These employees were at the entrance waiting to report for work when David Morgan arrived. Morgan testified that he told his employees that the picketing was informational only, that it was not legal, and that the men could go to work if they wished to do so. All the employees of the Charging Parties thereupon proceeded to begin work, including Dillard Graham, operator of a backhoe, and Jimmie Perry, operator of a front-end loader, both of whom were working for Mecco.7 There were two other subcontractors with employees on the job at this time. They were Amrel, heretofore men- ' This name is also spelled "A-r-m-r-e-l" in the transcript 6 The quotation is from the credible, uncontradicted testimony of Guess 7 Graham was a replacement for employee C B Taulbee, who did not report for work on January 4 because of illness Taulbee returned to work the following day, however, and remained on the Hill's job until Mecco's contract was completed 489 tioned, and Olinger and Son, the latter being a masonry contractor. On the morning that the picketing began, em- ployees of both Amrel and Olinger arrived at the entrance, but on seeing the pickets did not report for work and re- mained away from the job until the picket line was removed several days later. Brewer questioned Perry and Graham, the only Mecco employees on duty that day. The testimony of both the latter as to their conversations with Brewer was credible and undenied. According to Perry, as he was getting ready to operate a front-end loader, Business Agent Brewer asked him whether he had a union card. Perry responded in the affirmative but explained that he did not then have it on his person. About this same time Graham arrived. Brewer ques- tioned Graham as to his name and the equipment he was going to operate. Graham and Perry both crossed the picket line after talking with David Morgan and after he had given them his opinion that the picket line had been established illegally. Graham, however, remained on the job for only a short while. Because of rain and bad weather he was unable to operate his backhoe for more than a few minutes and thereafter went home. Although he remained at the site for a couple of hours awaiting better weather he estimated that he only worked about 10 minutes that day. This was the only time that Graham worked on the Hill's job. On January 7, David Morgan telephoned Business Agent Paul Knott to inquire as to why the Union had established the picket lines. According to Morgan, Knott told him, "It's the same old problem, you're not signatory to our contract, and not paying into our fringe benefit program for the Operating Engineers." Morgan then inquired as to whether Knott would sit down and negotiate with him, but the latter indicated that although he might meet with Morgan he would not alter any provisions in the current agreement which the Respondent Union had with builders in the Day- ton area .8 Knott then criticized Morgan for allegedly keep- ing men from working on the Hill job and Morgan replied, "Well, an informational picket doesn't keep them from working." According to Morgan, Knott then commented, "What makes you think it's an informational picket? .. . It's a strike banner." Morgan testified that Knott concluded the conversation with the statement, "I guess you know that we're going to file charges against your men that crossed the banner line." Knott did not take the stand at the hearing in the instant case. Morgan's testimony was credible and un- contradicted. It is, therefore, found to be a substantially accurate account of the exchange between Knott and Mor- gan on this occasion. Later that morning, Morgan was at the jobsite when Knott, Brewer, and Ron Mihalovich, all business agents for the Respondent Union, arrived. The three union representa- tives contacted employee Perry who was then at work. Knott questioned Perry as to whether he was going to honor the Union's picket sign or "banner." Morgan, who was present at the time, asked Knott what kind of a picket sign was being used and the business agent told him that it was a "strike banner." 9 Perry told Brewer that he would remain on the job until the Mecco superintendent told him to leave. 8 Morgan's testimony as to this conversation was credible , uncontradicted and undemed 9 The term quoted is from the testimony of Perry and David Morgan. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, Knott motioned to C. B. Taulbee, the other Mecco employee then at work. Taulbee stopped his ma- chine and reported to the business agent. When he did so, Knott asked Taulbee if he was going to honor the union picket line and the employee replied in the negative. After Taulbee made this response, Business Agent Knott told him, "Taulbee . . . I guess you know that there will be charges filed against you." 10 The Mecco and Morgan employees remained on the job until their phase of the work was completed, about 10 days after the picketing began. All of the Amrel and Olinger employees remained off the site during the picketing and did not return until the pickets were removed. As noted earlier, in February all parties to the present case entered into a settlement agreement which the Region- al Director approved on February 9. Thereafter, there were no further incidents until October. To the testimony as to that phase of the case we will now turn. 2. Rink's Department Store In the fall of 1972, B. G. Danis Company, as the general contractor, was engaged in certain construction work in Hamilton, Ohio, hereinafter known as the Rink's Depart- ment Store project. Triasco was a subcontractor that was responsible for the completion of an asphalt parking lot. In order to finish one phase of this work, Triasco rented a front-end loader from Mecco and at the same time agreed that this equipment would be operated by a Mecco employ- ee. Tnasco had a foreman, two operating engineers who were members of Local 18, and two laborers. At the time, however, Tnasco did not have a contract with the Respon- dent Union. Danis also had employees who were operating engineers and members of Local 18. As will be found elsewhere in this Decision, during the spring of 1972, and after a series of proceedings conducted by Local 18, that union expelled from membership and fined Perry, Graham, and Taulbee, the three Mecco em- ployees involved in this case. One of the business agents who participated in these trials was Broten Collins. Early on the morning of October 9, Mecco employee Jimmie Perry arrived at the Rink's jobsite with a Mecco front-end loader and reported to the Triasco foreman for his work assignment on the parking lot. About 9:30 a.m. Busi- ness Agent Collins appeared on the job and witnessed the Mecco equipment and operator at work. Collins testified that he knew that Mecco had filed unfair labor practice charges against Local 18 and that Mecco was "nonunion." He immediately contacted his superior, Business Agent Knott, and informed him that Mecco was on the job. Knott ordered that he tell Charles Slayton, president of Triasco, "that Mecco [is] a nonunion company and that we usually hit them where we find them." In a telephone call to the Tnasco office, Collins was unable to reach Stayton, but talked with Richard Smith, another Triasco official. Ac- 10 This last quotation is from the testimony of Taulbee The findings in the above paragraph are based on the mutually corroborative testimony of Da- vid Morgan, Jimmie Perry, and C B Taulbee They were credible witnesses and their testimony was uncontradicted and undemed None of the three business agents listed above took the stand cording to Collins, he told Smith that Mecco was a nonun- ion contractor and asked that Slayton contact him. Stayton testified that Smith contacted him immediately via two-wa radio to tell him there was "trouble" on the Rink's job.' After his telephone conversation with Smith, Collins re- turned to the jobsite and conferred with several Danis em- ployees who were involved in the operation of a crane and a backhoe. When Collins approached, the Danis employees ceased operation of these two pieces of equipment. They did not resume operations until about 30 minutes later when Collins finally left the scene. A few minutes after Collins began his conversation with the Danis employees, Stayton arrived and thereupon engaged in a discussion with Collins. Stayton testified that Collins informed him that the Mec- co employee operating the loader was not a member of Local 18, that, in fact, the Union had suspended the opera- tor from membership and that he (Collins) wanted Triasco to replace the operator with a member of Local 18. Collins went on to demand that Slayton secure not only another operator but another piece of rental equipment. Slayton then asked if the Union would let him finish out the day with the Mecco operator and equipment provided he se- cured a union replacement by the next morning. Collins' response was that he would have to telephone Business Representative Knott, who was his superior. After leaving Stayton, Collins sought out Perry and asked him when he was "going to get right with the Union." 12 Perry gave a noncommittal response and Collins then left him to make another telephone call to Knott. A short while thereafter Loos, Triasco's job superintendent, questioned Perry as to whether he had a union card. This was the first time Loos had asked such a question. Perry explained that he had a card, but that the Union had expelled him. Loos then told Perry that Triasco was going to have to let him go, but that Stayton was trying to get approval from the Union so that Perry could at least finish out the day. In the meantime Slayton went to Robert Predmore, su- perintendent for Danis and told him of the dilemma which he faced. Stayton credibly testified that Predmore admon- ished him that there could be no delays on the job and that "under no circumstances could B. G. Danis afford a work stoppage even of short duration." After Slayton concluded his conversation with Predmore, and reappeared on the parking lot, Collins returned from his telephone call to Knott. According to Stayton, Collins told him that if Stay- ton would give his word that the Mecco operator and equip- ment would be replaced the next day by a union contractor and a member of Local 18, the Respondent Union would permit Tnasco to finish out the day with Perry and the Mecco loader. Stayton agreed to these conditions. Stayton's testimony as to his conversation with Collins and the activities of the business agent on the jobsite was telling evidence as to the effect which Collins' presence had on the contractors at the construction site that morning. Thus, on cross-examination by counsel for the Respon- dents, Stayton was asked the following questions and gave the answers which appear below: Q. He [Collins] never used the word "work stop- The quotation in this sentence is from the credible testimony of Stayton 12 The quotation is from Perry's testimony LOCAL NO. 18, OPERATING ENGINEERS 491 page" at all, did he? A. Normally a union man doesn't have to. If you're in the business as a contractor you have this in the back of your mind at all times... . Q. You had it in your mind? A. I had it in mind [that] if we didn't get it corrected there was a possibility that we would have a work stop- page. From the time when Collins first appeared on the scene and had a brief conversation with the Danis employees near their crane and front-end loader, these employees watched as Slayton and Collins carried on their discussions." Ac- cording to Slayton, these employees were "pretty well standing around observing what we were doing." Although Stayton conceded that he did not know whether these em- ployees were engaged in a work stoppage, he testified that he knew that "there was no work being performed ... by these 3, 4 or 5 men.. .. " He further testified that during the approximately 30 minutes that elapsed between the first and second time that Collins talked with them that "if I had been paying them I would have been a little worried because they weren't performing much physical work." The foregoing findings are based on the mutually corro- borative testimony of Stayton and Perry which was credible and uncontradicted. These findings are also supported in large measure by the testimony of Collins, insofar as he testified as to the substance of his conversation with Stay- ton.14 On the other hand, Collins testified that he talked with only one Danis employee that morning, a union member named Julian Tackett who inquired as to certain union retirement benefits. Collins denied that he talked with any other Danis employees, or that he talked with any of them about the Union's difficulties with Mecco. Collins' denials in this regard were not convincing. In view of all the circum- stances here, most particularly the fact that as soon as Col- lins discovered that Mecco was represented on the job he contacted Knott and was thereupon directed to inform Tnasco that Mecco was nonunion and that "we usually hit them where we find them," as well as the fact that Collins promptly brought this message to Stayton with the addition- al information that Perry, the Mecco operator, had been suspended from membership and that the Union was de- manding that the operator on the job be a member in good standing, it seems most unlikely that Collins gave no hint of these developments to the union employees of Danis who were observing the proceedings close at hand as Collins talked with Perry and Stayton. Moreover, this conclusion is supported by certain testimony which Slayton gave as to Collins' remarks just after Stayton assured him that Mecco's operator and equipment would be forced to leave the jobsite and be replaced the following morning by a union operator and loader. According to Stayton, at this point in their conversation and with reference to the Danis employees 13 Stayton testified, "These people [the Danis operators] were watching the proceedings that we had going on in the parking lot . . 14 While on the stand, Collins never referred to his conversation with Perry who had stopped work and were observing them, Collins stated that . . . to eliminate any other problems . . . he should probably . . . go over and talk to the Danis Operating Engineers . . . and explain what had tran- spired and the agreement that we had reached. And he went over and talked to these 3 or 4 men that were over around the Danis' equipment. After Collins spoke to the Danis employees they resumed work. The following morning Triasco replaced Perry and the Mecco equipment with a front-end loader and operator supplied by a Cincinnati firm that had a contract with Local 18. Stayton testified that if it had not been for the conversa- tions with Collins on October 9 there was no reason why the job in question would not have been completed by Mecco. On October 10, David Morgan telephoned Business Agent Knott to inquire as to what the problem was on the Rink's job. Knott replied that it was "The same old prob- lem, you're not union, working on a union job." Morgan protested that he didn't think Knott could describe Perry as nonunion in view of the unfair labor practice charges arising out of his expulsion. Knott's reply, in effect, was that this was immaterial since the Mecco operators were working for a contractor that was not signatory to the union agreement. Morgan protested that the damage had been done and con- cluded the conversation. In view of the foregoing findings, I conclude that, during the time that Collins was on the job that morning and when he talked with the Danis employees, he informed them of the Union's problems with Mecco whereupon they stopped work. Thereafter, and as a result of this work stoppage, when Stayton assured Collins that Triasco would capitulate and replace Mecco with a union contractor, Collins felt impelled to tell Stayton that he would talk with the Danis Operating Engineers "and explain what had transpired and the agreement that we had reached" in order "to eliminate any other problems" (emphasis supplied.) It is my conclusion that the "other problems" which Collins sought to forestall at this point was a continuation of the work stoppage which the Danis employees began after they had heard from Col- lins that Mecco was a nonunion contractor and that the Mecco operator was a suspended member of Local 18. C. Concluding Findings as to the Alleged Violations of Section 8(b)(4)(i) and (ii)(B) 1. The Hill's job On this record it is clear that whereas the Respondent Union had a continuing labor dispute with Morgan and Mecco, it had no primary dispute with Baker and Coombs or with any of the other contractors engaged at the Hill's site. At the time of the prejob conference with representatives of the building trades unions, Guess, job superintendent for Baker & Coombs, learned that the Union was having trou- ble with Morgan and had labeled the latter an unfair con- tractor. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 3, 1972, Business Agent Brewer arrived at the Hill's job and demanded that Guess remove Mecco from the site. Later that day, and in the presence of Louis, a business agent for the Laborers', Brewer warned Guess that if the Mecco employees were not removed the job would be picketed. Immediately thereafter, and still in the presence and hearing of Guess, Brewer told Amrel's employees that Mecco was unfair and that if Mecco continued to work on the job the site would be picketed. When Marusic, the Am- rel superintendent came up, Brewer repeated this warning about the prospect of a picket line on the job. On January 4, the Respondent Union's pickets arrived and positioned themselves at both entrances to the project. With the exception of those working for Morgan and Mec- co, all other employees, including those of Amrel and Oling- er remained off the job until Morgan and Mecco completed their phase of the work, at which time the pickets were withdrawn. On January 7, when David Morgan spoke to Business Agent Knott, the latter told him that the employer's prob- lem was that "you're not signatory to our contract, and not paying into our fringe benefit program for the Operating Engineers." Thus, it is clear that an object of the threat to picket and the actual picketing was to force Morgan and Mecco to recognize and bargain with Local 18 as the repre- sentative of those employees in the classification of operat- ing engineer . During this same conversation Knott revealed the Union's secondary objective when he criticized Morgan for not capitulating to the Union's demands and thus caus- ing the Union to keep a strike "banner" on the Hill'sjob and forcing the employees of other subcontractors to stay away from work In view of Business Agent Brewer's threats to Guess and Marusic, as well as the inducement of the Amrel employees to cease work, the secondary objectives of Local 18 are well established on this record. It is my conclusion that by this conduct the Union was attempting: (1) to force Baker & Coombs to cease doing business with Mecco and Morgan; (2) to force Amrel and Olinger to cease doing business with Baker & Coombs so as to force a cessation of business with Mecco and Morgan; and (3) to force Mecco to recognize and bargain with the Union as the representative of its operating engineers, even though Local 18 had not been certified as their representative under Section 9 of the Act. By attempting to enmesh neutral and secondary employers into disputes not their own, the Respondent Union, as well as Respondents Knott and Brewer, violated Section 8(b)(4)(i) and (ii)(B) of the Act. Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. N.L.R.B., 278 F.2d 282, 285 (C.A.D.C., 1960); Local Union No. 180, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (B & K Dry Wall Systems, Inc.), 181 NLRB 94, 95, enfd. 462 F.2d 1321, 1323 (C.A. 9, 1972); Plumbers Union of Nassau County, Local 457 United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, AFL-CIO (Bomat Plumbing and Heating), 131 NLRB 1243, 1247-48, enfd. 299 F.2d 497, 501 (C.A. 2, 1962); Local 825, Interna- tional Union of Operating Engineers, AFL-CIO (American Dredging Company), 168 NLRB 193, 194-195.15 is The Board has stated that "The key consideration" in an 8(b)(4)(B) case 2. The Rink's fob The conduct of Collins on this jobsite on the morning of October 9 constituted an implied threat against Triasco which had as its object forcing the latter to cease doing business with Mecco. Collins' activity and his conversation with Stayton impliedly carried this threat and caused Stay- ton to communicate it to Predmore, Danis' superintendent, who immediately informed Slayton that, at that time, Danis could not afford a work stoppage of any kind. Stayton, knowledgeable in the problems of labor relations in the construction business, had reason to fear that, if Triasco did not replace Mecco in accordance with the Union's demand, in all likelihood there would be a work stoppage. Here again, the Union's primary dispute was with Mecco solely, and not with either Triasco or Danis. When Collins first arrived on the job, he informed Smith, a Triasco official, of the Union's displeasure on finding Mecco on the job. Then he talked with the Danis employees who promptly quit what they were doing. Thereafter, as the Danis employees stood around and watched, Collins and Slayton discussed the Union's demand that Triasco get Per- ry and the Mecco equipment off the job and secure a union operator and equipment as replacements. Only after Collins returned to the Danis employees and told them of Triasco's capitulation and of the agreement, whereby Mecco would be removed from thejob at the end of the day, did the Danis employees resume their work. Notwithstanding the fact that Collins made no direct threat of a work stoppage, Collins plainly conveyed this prospect in his conversation with Stayton. With the latter having been cautioned by the superintendent for the general contractor that no construction delays could be tolerated, Stayton, experienced in the field, had reason to assume that, in view of Collins' demand, unless he removed Mecco's equipment and operator, Perry, the job would be brought to a halt. In similar cases the Board has found unlawful sec- ondary activity. In United Brotherhood of Carpenters & Join- ers of America, Local Union No. 2067, AFL-CIO (Batterman Construction Company), 166 NLRB 532, 534, 537 (1967), the union's agents told the neutral employer that he would have "problems" if he did not cease doing business with the nonunion employer and that if he did not cease the union would have to "do something about it." In Iron Workers Local Union No. 167, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Tayloe Glass Company), 180 NLRB 201, 202-203 the union claimed certain work of other employees. When a business agent inquired about the problem and was dissatisfied with the answer, he told the employer he was not going to go "off half cocked on this deal and he wanted to know what he was going to be doing when he did it." When the contractor "is whether the pressured employer is truly the primary with whom the union had its dispute or whether the pressured employer was a neutral to the dispute " Local Union No 438, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Filling Industry of the United States and Canada, AFL-CIO (George Koch Sons, Inc), 201 NLRB No 7 On the basis of the record here , and in view of the above findings , Mecco was the primary employer, whereas Baker & Coombs, Amrel, and Olinger, the pressured employers , were neutrals to the dispute between the Respondents and Mecco LOCAL NO. 18, OPERATING ENGINEERS 493 asked what the business agent had in mind, the latter re- plied, "I think you have been around long enough to know." The Board found the foregoing statements to be unlawful and in violation of Section 8(b)(4)(ii)(B) of the Act. So here, in view of the evidence set forth above, I conclude and find that the Respondent Union and Collins threatened Triasco with a work stoppage with the object of forcing Triasco to cease doing business with Mecco and that by such conduct the Respondents violated Section 8(b)(4)(ii)(B) of the Act. The circumstantial evidence as to the behavior of the Danis employees between the first and last time that Collins spoke to them establishes, and I find, that they were en- gaged in a work stoppage that was induced and encouraged by the Respondent Union and Business Agent Collins. They were at work before he arrived; after he spoke to them they stopped what they were doing, observed Collins and Stay- ton during the exchange in which the business agent secured from Triasco's official a commitment to oust Mecco's oper- ator and equipment, and thereafter they returned to work only after Collins explained to them the agreement which had been reached with Triasco. From Stayton's testimony it appears that Collins felt compelled to give this explana- tion at this point "to eliminate any other problems.... . To me, the only fair construction of Collins' action was that at the time he considered it necessary to speak to the Danis operating engineers in order to get them back to work. In view of the whole congeries of events that occurred on this occasion it is my conclusion that the Respondent Union and Collins, as its agent, induced and encouraged the Danis employees to engage in a work stoppage for an unlawful secondary objective and that by this conduct the Respon- dents violated Section 8(b)(4)(i)(B). Truck Drivers and Help- ers Local Union No 728, aff/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, et al. (Overnite Transportation Company), 133 NLRB 62, 71, enfd. 332 F.3d 693, 697 (C.A. 5, 1964). Furthermore, this conduct on the part of the Respondent violated the terms of the settlement agreement in Case 9- CC-654-1, et al, and justified the subsequent order of De- cember 18, 1972, whereby the Acting Regional Director vacated the aforesaid settlement. D. The Alleged Violations of Section 8(b)(1)(A) 1. The facts Dillard Graham, employed by Mecco in 1965, joined the Union in 1967. Jimmie R. Perry, employed by Mecco in 1968, joined Local 18 that same year. C. B. Taulbee, em- ployed by Mecco in 1962, joined the Respondent Union in 1964. All were heavy equipment operators and worked con- tinuously for Mecco from the time of their first hire. On April 10, 1972, the Respondent Union fined each of the three above-named members and expelled them from Local 18. The Respondent Union acknowledged at the hearing in the instant case that at the time of their expulsion Graham, Perry, and Taulbee were members of Local 18 in good standing and had not resigned. The parties also stipu- lated that at the time of the hearing the fines levied against these three individuals have not been paid and that the Union has not sued to collect them. The General Counsel contends that by the course of con- duct which eventuated in the assessment of these penalties the Respondent Union and its agents Knott and Brewer violated Section 8(b)(1)(A) of the Act. These allegations are denied by the Respondent in their entirety. Subsequent to June 1970, when the Respondent Union's collective-bargaining agreement with Mecco expired, and January 1972, when Mecco was at work on the Hill job, Respondent's business agents often contacted the Mecco employees and sought to persuade them to quit work for Mecco. Employee Perry testified that, during this period of approximately 19 months, business agents for Local 18 sought him out on from 8 to 10 different locations where he was at work and there reminded him of the fact that Mecco was operating nonunion and not paying fees to the Union's fringe benefit program. Employee Taulbee testified to the same effect. During these visitations, the Respondent Union's busi- ness agent frequently talked with the superintendent of the general contractor. When this occurred the general contrac- tor sometimes asked Mecco to leave the job. Employee Graham testified that during the summer of 1971, when working on a public library project in Oxford, Ohio, Busi- ness Agent Knott visited the site and, after talking with the job superintendent, Knott told him " . . . you can finish unloading these trucks and [thereafter] you won't be back any more." 16 David Morgan testified that during this peri- od his men were put off jobs many times because of these activities by Local 18. As found earlier, after the expiration of the Union's agreement with Mecco, Graham, Perry, and Taulbee con- tinued to pay their dues and retain their membership in Local 18. Notwithstanding the fact that they continued working for an employer who did not have a contract with the Respondent Union, no charges were ever filed against any of them until January 1972, when they crossed the Respondent's picket line at the Hill's Department Store Job. 7 As found earlier herein, on or about January 4, 1972, the Respondent established an illegal picket line at the Hill's site. On January 5, when Business Agent Brewer was on the picket line he questioned Perry as to whether Perry had a union card and similarly interrogated Graham. On January 7, Business Agents Brewer and Knott asked Perry, who was then at work, if he was going to honor the picket line and at that time Brewer described the picket sign as "a strike banner." Later that morning and after Taulbee stated that he would continue to work, notwithstanding the presence of the picket line, Knott told the employee that he should realize that "we're going to file charges against you." Earlier that same morning, and during the course of a discussion with David Morgan, Knott described the picket sign as a "strike banner" and told Morgan that the Respondent Union was "going to file charges against your men that crossed the banner line." In separate charges, all dated January 24, each of the 6 The quotation is from Graham's testimony i7 Paul Martin, another Mecco employee throughout this period , was sus- pended from Local 18, on December 31, 1971, for nonpayment of dues. His suspension is not involved in the present case 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three Mecco employees was accused of having violated an authorized picket line, having refused to comply with a request from union representatives that he honor the picket line, having violated the Union's working rules by negotiat- ing individual agreements with his employer, and having violated his obligations as a union member . The charge against Taulbee is set out below: January 5th thru January 11th, C B. Taulbee violated an authorized picket line of Local 18 by going through the line and operating equipment behind the picket line. Taulbee has violated our working rules by negoti- ating individual agreement with the B. D. Morgan Co.-Mecco, Inc. The working conditions and wages were not in accordance with our current Building Agreement. When approached by the District #4 Rep- resentatives who requested that he support his Union by honoring the picket line, he refused to cease work. He has worked many months for the Mecco, Inc., on non-union work , and I feel that he violated his obliga- tions as a Union member. Mecco Inc. was a subcontractor under Baker & Coombs and refused to conform with the terms of the Building Agreement , particularly Paragraph 105 which deals with subcontractors . All Crafts left thejob imme- diately following the placing of the picket sign. The Mecco employees continued to work. With only slight modifications , the charges against Graham and Perry were substantially the same as the one against Taulbee which is set out above . The three employees were given until February 19 to file an answer. David Morgan provided assistance to the three accused in responding to the Union 's allegations and, in due course, each of the three members answered the charges in the following language: There has been no violations of any Constitution, by- laws or working rules of the International or Local Union. The picket line mentioned in the charge was an unlawful secondary picket line as found by the NLRB in Case 9-CC-654- 1-7, and it is unlawful and unfair labor practice for the Union to initiate and process charges against me for crossing and working behind such a picket line. At no time was I asked to support the Union or honor the picket line. Mecco , Inc. was not a subcontractor under Baker & Coombs as alleged in the charge. of the members present , Brossee B. Jones,18 questioned Per- ry as to whether he had gone to work behind the picket line and Perry conceded that he had. Another member asked him if he would cross another picket line and Perry an- swered that if it was a legal picket line he would not cross it. Rutherford then asked Perry if he wanted an immediate vote on the charge against him, or whether he would prefer to go to trial. Perry told him that he would prefer a trial. Those present were then polled on whether to drop the charges or to go to trial and a majority voted that Perry should stand trial. Perry testified that after the last vote was announced, Rutherford informed him, "You'll not get off with anything because I have the last word." 19 Subsequent to this meeting, and via letter and telegram, Rutherford notified Perry, Graham, and Taulbee that, pur- suant to the pretrial proceeding, they would be tried at a regular membership meeting on April 10. Of the three accused union members, only Taulbee at- tended the trial on the latter date. About 200 people were present. Taulbee testified that Rutherford presided and that after the opening of the meeting, he asked Taulbee if he wanted anyone to represent him. Taulbee elected to con- duct his own defense. Rutherford testified that at the outset of the meeting and before any testimony was taken he an- nounced to those present that part of the charges relating to crossing a picket line or working behind a picket line had been dismissed .20 Other than to say that this action was taken upon advice of counsel, no reason was given for the dismissal. According to Taulbee, four witnesses were called to testi- fy against him. Taulbee testified that the first witness stated that he had seen Taulbee crossing a picket line during the strike in 1969-70. A second witness, however, upon being questioned could not recall having seen Taulbee crossing any picket lines during that strike. The third and fourth witnesses testified that they had seen Taulbee working be- hind the picket line at Hill's shopping center. Taulbee, on the other hand, had not seen either of the two witnesses who testified about his crossing the picket line at the Hill's job- site. Although some of those present asked Taulbee a few questions about his working conditions at Mecco, no other witnesses were called to testify about any other matters. Rutherford testified that during the trial he refused to permit any questioning of the witnesses as to whether the accused had worked behind a picket line. On the other hand, Rutherford conceded that, during the presentation of the case aganst Taulbee, counsel for those members who had filed the charges endeavored to elicit testimony about Taulbee's having crossed a picket line. At the hearing in the instant case there was no testimony as to the Union 's trial In a letter dated March 7, Business Representative Knott notified them that on March 14 a pretrial hearing on the charges against them would be held at the Union's head- quarters in Dayton. Perry was the only one of the accused who appeared for the pretrial proceeding , which was held at the union hall as scheduled. On this occasion, Charles Rutherford, president of Local 18, presided. After the meeting opened, Rutherford read the charges against Perry, Graham, and Taulbee. One 19 The charges against each of the three employees were signed by individ- ual members of Local 18 Thus, the charge against Perry was signed by Jones, the one against Graham by Noah William Romme, and the one against Taulbee by Tim C Ream None of the Mecco employees knew the person who filed the charges against him Nor was there any evidence that Jones, Romme , or Ream observed the alleged violations of the Union 's bylaws or had any personal knowledge of the facts i9 The foregoing findings are based on the credible testimony of Perry, none of which was denied or contradicted by Rutherford when the latter was on the stand. 20 Rutherford's testimony in this connection was corroborated by Taulbee LOCAL NO. 18, OPERATING ENGINEERS other than that given by Taulbee and Rutherford. After a study of their testimony and from observance of their de- meanor while on the stand, it is my conclusion that, not- withstanding Rutherford's protestations that he cut off any references to Taulbee's observance or nonobservance of the Union's picketing, it appears that the only testimony offered at the trial related to whether Taulbee had crossed any picket lines and particularly whether he had crossed the picket line at the Hill's job. Taulbee testified that, after the four witnesses spoke against him, he himself was permitted to say only a few words. He gave Rutherford a typewritten statement which Morgan had helped him prepare, but Rutherford did not read it to the members present or make any oral comment on the arguments presented therein. As a result the member- ship was unaware of its contents.Z" At the hearing in the instant case, Rutherford conceded that he did not read the prepared statement which Taulbee presented to him and that, in fact, without reading it over, he thereafter handed it back to Taulbee. After Taulbee finished, Rutherford announced that a vote would be taken on the question of Taulbee's guilt or innocence. According to Taulbee, before the vote Ruther- ford announced that "this would be one trial that he would be 100% found guilty." 22 After the balloting Rutherford announced that Taulbee had been found guilty. At this point Taulbee stated that he had been thinking about requesting a withdrawal card. Rutherford's response was, "Well . .. we will help you out. You have been found guilty of violating the bylaws and we will fine you $100 and . . . expel you from the union." In separate letters, dated April 13, 1972, Rutherford noti- fied Taulbee, Graham, and Perry as to the results of the trial. These letters, all of which were identical, read in rele- vant part, as follows: The charge that you worked behind an authorized picket line was dismissed. Upon the charge that you worked for many months for Mecco, Inc. under nonunion conditions and wages un- der an agreement that you individually negotiated, you were found guilty. The guilty vote was registered by 97% of the more than 200 members present . Therefore, under the applicable provisions of the Constitution of the International Union of Operating Engineers and the By-Laws of Lo- cal Union 18 , a penalty of $ 100.00 fine and expulsion from the Local Union was assessed by the President. 21 In this statement Taulbee asserted that the entire procedure whereby he was being tried was improper because it violated both Taft-Hartley and Landrum-Griffin Act, because he had not been given sufficient notice to prepare adequately for the trial, and because Rutherford had prejudged the case 22 Rutherford denied having made this comment This denial, however, was far from persuasive Upon a consideration of the record and the demea- nor of these witnesses, I conclude and find that Rutherford made the com- ment which Taulbee attributed to him 495 The testimony of both Taulbee and Rutherford related only to evidence offered against Taulbee at the trial. The record is silent as to whether testimony was given as to the charges against Graham and Perry, neither of whom ap- peared at the trial. Whether, in effect, a default judgment was rendered against them in their absence does not appear from the record. In any event, each of the latter two individ- uals received a letter from Rutherford that was the same as the letter sent to Taulbee, the relevant portion of which is quoted above. The Respondent Union contends that the three members were fined and expelled for reasons other than their having worked behind the picket line at the Hill's job. It is true that, at the outset of Taulbee's trial, Rutherford told the members present that he was dismissing the charge that the accused had worked behind a picket line. Notwithstanding this ac- tion by the president of Local 18, the background and cir- cumstances of the trial must be considered. As found earlier, from June 1970, when Mecco's contract with the Respondent Union expired, until January 1972, representatives of Local 18 contacted the Mecco employees on many jobsites and criticized them for working for a nonunion employer. Also, as found above, not infrequently, when Mecco was a subcontractor, the Respondent Union was able to prevail on the general contractor to remove Mecco's equipment and operators. Notwithstanding these efforts on the part of the Respondent's business agents to bring pressure on Mecco, no union charges were ever filed against Mecco's employees until January 1972. It is significant that this last development came after Lo- cal 18 established a picket line at the Hill's job and Graham, Perry, and Taulbee crossed this line to report for work. This picketing, found earlier herein to have been illegal and a violation of Section 8(b)(4), was described by Business Agents Knott and Brewer as a strike picket. On January 7, Business Agent Knott told David Morgan, "I guess you know we're going to file charges against your men that crossed the banner line." That same day, after Knott failed to dissuade Taulbee from crossing the line and working, the business agent threatened "Taulbee . . . I guess you know that there will be charges filed against you." Thereafter, on January 24, charges were filed against the three Mecco employees. Principal among the charges was the allegation that each of them had worked behind the picket line at the Hill's job. On March 14, at the pretrial proceedings conducted under Rutherford's leadership at the Union's hall in Dayton, Perry, the only accused member to appear, was questioned as to whether he had, in fact, worked behind the picket line at the Hill's site. Subsequent to this meeting, Rutherford notified Perry, Graham, and Taulbee that the Union's District Advisory Board had voted to sustain all charges against them and that a formal trial would be held. At the trial on April 10, Rutherford announced that on the advice of counsel he was dismissing the charge about working behind a picket line. Notwithstanding this an- nouncement, it is evident from Taulbee's credible testimony that all four witnesses called against him discussed the charge that Taulbee had worked behind a picket line. On February 11, Mecco and Morgan filed the unfair labor practice charges against the Respondents wherein 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they alleged that the Respondents were violating Section 8(b)(1)(A), inter aka, by threatening disciplinary action against Mecco's employees for having worked behind a picket line that was established in violation of Section 8(b)(4). At the hearing in the instant case, Rutherford was asked whether it was with these charges in mind that, at the Union's trial on April 10, he announced that the allegation about working behind a picket line would be dismissed. Rutherford denied that before the trial he had heard of the unfair labor practice charges and, when asked as to how long it takes before he normally hears about such matters as an unfair labor practice charge, he testified "sometimes it's a matter of months." This response was incredible. To me it is inconceivable that Rutherford, as the president of the Respondent Union, would not have been well aware at the time of Taulbee's trial of the charges filed on February II against Local 18, as well as Knott, Brewer, and him personally. 2. Concluding findings In the light of the background set forth above, most par- ticularly the fact that notwithstanding Mecco's nonunion status for over 18 months, no charges were filed against Graham, Perry, and Taulbee because they were working without a contract; the fact that shortly after the illegal picket line was established at the Hill's job, Business Agents Knott and Brewer informed David Morgan that his employ- ees would have charges filed against them for having crossed the line, and Knott personally delivered a similar threat to Taulbee; the fact that at the pretrial hearing on March 14, Perry, the only one of the three accused to ap- pear, was questioned about his having worked behind the line at Hill's, and at the conclusion of that proceeding, President Rutherford predicted, "You'll not get off with anything because I have the last word;" and the fact that at the formal trial on April 10 although Rutherford asserted that the membership would not consider the charge about working behind a picket line, all the witnesses against Taul- bee discussed the matter in their testimony, it is my conclu- sion that a reason, if not the only reason, for the penalty assessed against Taulbee, Graham, and Perry was that they had worked behind the picket line which Local 18 had established at the Hill's job. In his brief, counsel for the Respondents argues that the three employees were expelled from the Union and fined because they worked for a nonunion employer, received substandard wages and working conditions, and undertook private employment agreements with Mecco. It is, indeed, true that these allegations were among the charges which the Union made against them. Whereas Graham, Perry, and Taulbee obviously worked for a nonunion employer, re- ceived wages below the union scale, and did not work under a collective-bargaining agreement, the evidence in this re- cord fails to prove that they were expelled from Local 18 for those reasons. Instead, on the findings set forth above, it is evident, from the sequence of events which preceded their trial and the testimony which was presented to the union membership at the trial, that they were found guilty on testimony that related only to their having crossed the Union's picket line at the Hill's job. The Union's present argument that there were other reasons for their expulsion is comparable to the situation in an 8(a)(3) case where the Board finds that, notwithstanding an employee's inefficien- cy which may have given his employer cause for discharging him on many prior occasions, "the moving cause" 23 for the dismissal at the time in question was the fact that the em- ployee had spearheaded a drive to organize the plant. So here, despite the fact that, at various times prior to the picketing at the Hill's job, the Respondent Union might have expelled Graham, Perry, and Taulbee for the reasons which its counsel asserts, the fact is that the Union did not do so. On the facts found above, I conclude that the reason offered by the Union for its action is a pretext and that the "moving cause" for the expulsion and the fines of these three employee-members was their having crossed the pick- et line at the Hill's job. Carpenters Local Union No. 22, United Brotherhood of Carpenters and Joiners of America AFL-CIO (Graziano Construction Company) (Bernard Shan- ley), 195 NLRB 1. Section 8(b)(1)(A) provides that it is an unfair labor prac- tice for a union, or its agents, to restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. The latter section assures that employees shall have the right, inter aka, to bargain collectively through representa- tives of their own choosing, and to engage in other concert- ed activities for the purposes of collective bargaining or other mutual aid or protection. That same section also guar- antees the employees the right to refrain from any and all such activities. At the same time, the proviso to Section 8(b)(1)(A) as- sures that a labor organization shall have the right to pre- scribe its own rules with respect to the acquisition or retention of membership. This latter right has been upheld in N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175 (1967), where the Court was concerned only with inter- nal union discipline which forced employees to join an au- thorized and lawful concerted activity. On the other hand, the Supreme Court subsequently held that a union violated Section 8(b)(1)(A) when, in the guise of enforcing its own rules, the union penalized a member for filing charges against it with the Board. N.L.R.B. v. Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, 391 U.S. 418, 425-428 (1968); Local 138, International Union of Operating Engineers, AFL-CIO (Charles S. Skura), 148 NLRB 679, 682-683. In line with these cases, the Board also has held that internal union discipline against a member who refused to join a union-sponsored strike was violative of Section 8(b)(1)(A) when the agreement between the union and the employer contained a no-strike clause. Glazi- ers Local Union No. 1162, affiliated with the Brotherhood of Painters, Decorators, Paperhangers, Glaziers and Glasswork- ers of America, AFL-CIO (Tusco Glass, Inc.), 177 NLRB 393, 397-399; Local 12419, International Union of District 50, United Mine Workers of America (National Grinding Wheel Company), 176 NLRB 628, 630-632. In this case, where, as has been found, the Union's picket line at the Hill's job was illegal, it would have been unpro- 23 "A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause " N L R B v Solo Cup Company, 237 F 2d 521, 525 (C A. 8, 1956) LOCAL NO. 18, OPERATING ENGINEERS tected concerted activity for Graham, Perry, and Taulbee to have honored such picketing. By so doing, they would have forfeited their Section 7 rights by engaging in conduct not protected by that section. It would appear that, in fulfill- ment of the statutory guarantee in Section 7, employees should have an unrestricted right to refrain from engaging in activities which are illegal and in violation of Section 8(b)(4)(B) of the Act, and further, that to permit a union to fine and expel its members for refusing to participate in such unlawful activity restrains and coerces such members and deprives them of their statutory right to refrain from engag- ing in unprotected concerted activities. Two recent decisions of the Board provide significant guidance. In Communications Workers of America, AFL- CIO, Local 1170 (Rochester Telephone Corporation), 194 NLRB 872, the respondent union violated Section 8(b)(3) by enforcing a rule that prohibited unit employees from accepting temporary assignments to supervisory positions. Because the union brought charges against an employee for having violated the ban, the Board found that the union also violated Section 8(b)(1)(A). In so finding, the Board held that the union's action constituted restraint and coercion because the charges against the employee did not arise out of violation of a lawful union rule dealing with purely inter- nal union matters but resulted from a union effort to en- force conduct found violative of Section 8(d) and 8(b)(3) of the Act. In Cannery Warehousemen, Food Processors, Drivers and Helpers Local Union 788 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. (Marston Ball), 190 NLRB 24, the union tried and fined an employee-member who had given testimony adverse to the union's position during a grievance proceeding under a contract arbitration clause. The Board held that this action by the union impaired the integrity of the arbitration clause in the collective-bargaining agree- ment, thereby violating Section 8(d) and 8(b)(3) of the Act, and that by fining the employee-member the union re- strained and coerced that employee in violation of Section 8(b)(1)(A). To allow the Respondent Union in the instant case to penalize members for refusing to participate in a violation of Section 8(b)(4)(B) would accord an incentive to unions and members to violate the statute. In the light of the deci- sions cited above, it does not appear that the Union may, by the disciplinary proceeding used against the three em- ployee-members here involved, seek to induce conduct found to be in violation of Section 8(b)(4)(B). It would seem that where the expulsions and fines are a penalty to compel employee conduct in violation of the statutory prohibition against secondary boycott activity, the Respondent Union's claim of immunity based on the internal character of the discipline is overcome by its conflict with the Act's basic statutory policies. Consequently, on the basis of the facts set forth earlier, and more particularly the finding that the pick- et line at the Hill's project was established in violation of Section 8(b)(4)(B) of the Act, I now conclude that the Re- spondents violated Section 8(b)(1)(A) by the following con- duct: (1) the threat of Business Agent Knott, voiced to employee Taulbee on January 7, that intraunion charges would be filed against him for having crossed the picket line; (2) the Respondents' filing of intraunion charges 497 against Graham, Perry, and Taulbee alleging that they had crossed an authorized picket line; and (3) the action of the Respondents in fining Graham, Perry, and Taulbee and expelling them from membership in Local 18 for having worked behind the aforesaid picket line. CONCLUSIONS OF LAW 1. Mecco and Morgan are persons engaged in commerce within the meaning of Sections 2(6) and 8(b)(4) of the Act. 2. The Respondent Union is a labor organization within the meaning of Sections 2(5) and 8(b)(4) of the Act, and at all times material the Respondents Rutherford, Collins, Brewer, and Knott were agents of Local 18 within the mean- ing of Section 2(13) of the Act. 3. The activities of the Respondent Union and its agents, as set forth above, occurring in connection with the opera- tions of Mecco and Morgan and other employers, as de- scribed above, have a close, intimate and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 4. The action of the Acting Regional Director on Decem- ber 18, 1972, in vacating the settlement agreement previous- ly approved by the Regional Director on February 9, 1972, was well founded. Pioneer Natural Gas Company, 158 NLRB 1067, 1068. 5. By picketing at the Hill's Department Store job, there- by inducing and encouraging employees of Baker & Coombs, Amrel, and Olinger & Son to engage in strikes or refusals in the course of their employment to perform serv- ices, with an object of forcing said employers and persons to cease doing business with Mecco, and with each other, and with the further object of forcing and requiring Mecco to recognize and bargain with the Respondent Union al- though it has not been certified as the collective-bargaining agent for the employees of Mecco, the Respondents have engaged, and are engaging, in unfair labor practices affect- ing commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Act. 6. By inducing and encouraging employees of B. G. Danis Company to engage in a strike or refusal in the course of their employment to perform services, and by threaten- ing, coercing, and restraining Triasco, with an object of forcing Triasco to cease doing business with Mecco, or of forcing Mecco to recognize or bargain with the Respondent Union although it has not been certified as the collective- bargaining agent for the employees of Mecco, the Respon- dents have engaged, and are engaging, in unfair labor prac- tices affecting commerce within the meaning of Section 8(b)(4)(i) and (u)(B) and Section 2(6) and (7) of the Act. 7. After establishing a picket line in violation of Section 8(b)(4) of the Act, the Respondents violated Section 8(b)(1)(A) by threatening members of Local 18 that intraun- ion charges would be filed against them for having crossed the picket line, by filing such charges and thereafter fining and expelling members for working behind such a picket line. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondents have engaged in un- fair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) and 8(b)(1)(A) of the Act, it will be recommended that they be ordered to cease and desist therefrom and to take certain affirmative action designed to remedy the un- fair labor practices and otherwise effectuate the policies of the Act. Since it has been found that the action of the Respondent Union in fining and expelling from membership Dillard Graham, Jimmy R. Perry, and C. B Taulbee was discrimi- natorily motivated, it will be recommended that the Re- spondent Union be required to rescind such order or action, and that it be required to refund to the aforesaid members any fines collected pursuant to such order, with interest thereon at 6 percent per annum. Bricklayers and Masons Local No. 2, affiliated with Bricklayers, Masons and Plas- terers' International Union of America, AFL-CIO (Weidman Metal Masters), 166 NLRB 117; Local 252, Sheet Metal Workers' International Association, AFL-CIO (S. L. Miller, Inc.), 166 NLRB 262, 264. In accordance with Cannery Workers Union of the Pacific, affiliated with the Seafarers International Union of North America, AFL-CIO (Van Camp Sea Food Co., Inc.), 159 NLRB 843, 851-852, enfd. 396 F.2d 955 (C.A. 9, 1968), it will be recommended that the Respon- dent Union be required to reinstate Graham, Perry, and Taulbee, upon their request, without requiring the payment of back dues to the Union for the period of their expulsion, except for that portion of their dues which is shown at the compliance stage to be regularly allocable to the cost of insurance premiums, pension contributions, and other wel- fare benefits accruing to the Respondent Union's members, to the extent they can be reinstated retroactively to the date of their expulsion; to the extent that benefits such as life insurance, health, and medical insurance and benefits, and the like cannot be made effective retroactively for them, the Respondent Union shall be required to reimburse the afore- said three members with interest thereon at 6 percent per annum for any expenses or losses suffered because of the absence of such benefits, less the portion of the dues which would have been allocable to the payment of premiums for, or other purchase of, such benefits.24 Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, the Adminis- trative Law Judge hereby issues the following recommend- ed:25 24 In their brief the Charging Parties also urge that, because employee- member Graham would have worked at the Rink's job but for the action of the Respondents , he should be awarded backpay with interest In view of a recent decision of the Board , this request must be denied Union de Tronquis- tas de Puerto Rico, Local 901, affihada a la International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Lock Joint Pipe & Co of Puerto Rico), 202 NLRB No 43 25 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 ORDER Local No. 18, International Union of Operating Engi- neers, AFL-CIO, and its agents Charles Rutherford, Wil- liam C. Brewer, Broten Collins, Paul M. Knott, and all other officers, agents, and representatives, shall: 1. Cease and desist from: (a) Inducing or encouraging individuals employed by Baker & Coombs, Amrel Construction Company, Olinger & Son, B . G. Danis Company, Triasco Corporation, or by any of their contractors except Mecco, Inc., and B. D. Morgan & Company, Inc., to engage in strikes or refusals in the course of their employment to process, transport, or other- wise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require their respective employers to cease doing business with Mecco or Morgan, or with each other, or to force or require Mecco to recognize or bargain with the aforesaid labor organization unless such labor or- ganization has been certified as the representative of such employees under the provisions of Section 9 of the Act. (b) In any other manner threatening, restraining, or coercing Baker & Coombs, Triasco Corporation, B. G. Danis Company, or any of their contractors, except Mecco, Inc., or B. D. Morgan & Company, Inc., with an object of forcing or requiring Baker & Coombs, Triasco, or Danis, or any of their contractors to cease doing business with Mecco or Morgan, or with each other. (c) Expelling employees from union membership, or otherwise disciplining them for refusing to support unlawful secondary picketing (d) In any like or related manner, restraining or coercing employees in the exercise of the rights guararnteed in Sec- tion 7 of the Act. 2. Take the following affirmative action, hereby found necessary to effectuate the policies of the Act: (a) Rescind all disciplinary action taken against Dillard Graham, Jimmie R. Perry, and C. B. Taulbee, and refund to the aforesaid members any fines collected pursuant to such action with interest thereon at 6 percent per annum. (b) Upon application, offer to Dillard Graham, Jimmie R. Perry, and C. B. Taulbee, immediate and full reinstate- ment to membership in the Respondent Union without prej- udice to any rights and privileges to which they would have become entitled as of, and since April 10, 1972, the date of their expulsion from membership, and reimburse them, to- gether with 6 percent interest per annum, for any losses or expenses suffered because of the absence of certain benefits during the period of their expulsion, in accordance with the section of this decision entitled "The Remedy." (c) Post at its offices and meeting halls, and at all places where notices to members are customarily iosted, copies of the attached notice marked "Appendix." 26 Copies of said notice on forms provided by the Regional Director for Re- gion 9, after being duly signed by the Respondents' author- ized representatives, shall be posted by the Respondents 26 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " LOCAL NO. 18, OPERATING ENGINEERS immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the said Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (d) Mail signed copies of the notice to the Regional Di- rector for Region 9, for posting by Baker & Coombs, Amrel Construction Company, Olinger & Son, Triasco Corpora- tion, B. G. Danis Company, or any of their contractors including Mecco, Inc., and B. D. Morgan & Company, Inc., said employers or persons being willing, at all locations where notices to their employees are customarily posted. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, nor will our officers, business represen- tatives, business agents, or anyone acting for us, what- ever his title may be, engage in, or induce or encourage any individual employed by Baker & Coombs, Amrel Construction Company, Olinger & Sons, Triasco Cor- poration, B. G. Danis Company, or any other person engaged in commerce or in an industry affecting com- merce, to perform any services, where an object thereof is to force or require Baker & Coombs, Amrel, Olinger, Triasco, B. G. Danis, or any other person, to cease doing business with Mecco, Inc., or B. D. Morgan & Company, Inc. WE WILL NOT threaten, coerce, or restrain Triasco Corporation, B. G. Danis Company, or any other per- son engaged in commerce or in an industry affecting commerce, where an object thereof is to force or re- quire Triasco Corporation, B. G. Danis Company, B. D. Morgan & Company, Inc., or to force Mecco, Inc., to recognize or bargain with a labor organization as the representatives of its employees unless such la- bor organization has been certified as the representa- tive of such employees under the provisions of Section 499 9 of the Act. WE WILL NOT expel employees from membership in our organization, or take other disciplinary action against them, because of their refusal to support unlaw- ful secondary picketing. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act. WE WILL offer Dillard Graham, Jimmie R. Perry, and C. B. Taulbee, upon application, immediate and full reinstatement to membership in our organization with- out prejudice to any rights and privileges to which they may be entitled as of, and since April 10, 1972, the date of their expulsion from membership, and reimburse them with 6-percent interest thereon for any losses or expenses suffered because of the absence of certain benefits during the period of their expulsion. INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO (Labor Organization) Dated By (Representative) (Title) Dated By Charles Rutherford, President Dated By William C. Brewer, Business Representative Dated By Paul M. Knott, Business Representative Dated By Broten Collins, Business Representative 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 direct- ed to the Board Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513- 684-3686.