Rochester Musicians Assn. Local 66

ROCHESTER MUSICIANS ASSN . LOCAL 66 647 Rochester Musicians Association Local 66 affiliated with the American Federation of Musicians (Civic Music Association) and Dr. Samuel Jones. Case 3-CB-1939 November 29, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On August 22, 1973, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief in opposition to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. 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 Respondent, Rochester Musicians Association Local 66 affiliated with the American Federation of Musicians, Rochester, New York, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. case. I reserved ruling on the General Counsel's motion and will dispose of it in this Decision. Pursuant to due _ notice, a trial was conducted in Rochester, New York, on July 10, 1973. All parties were represented by counsel and were afforded full opportunity to be heard, to present oral and written evidence and to examine and cross-examine witnesses. However, by agree- ment of all parties, no oral testimony was presented. Rather, the matter was submitted on the basis of the pleadings, statements of counsel, and documentary eviden- ce received on agreement of the parties. Since the hearing, the Charging Party has filed a brief and Respondent a letter-memorandum. The General Counsel stands on the arguments and authorities set forth in his motion to strike Respondent's affirmative defenses. Upon the entire record, together with careful considera- tion of the brief and memorandum, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS The complaint alleges, the answer, as amended at the hearing, admits, and I find that: A. Respondent is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. B. The Rochester Civic Music Association, Inc., a New York corporation, with its place of business in Rochester, New York, is the managing agent for the Rochester Philharmonic Orchestra. During the past year, a represent- ative period, the Association had gross revenues in excess of $1 million, excluding contributions which because of limitation by the grantor are not available for use for operating expenses. The Association annually receives in excess of $50,000 from points directly outside the State of New York. The Association is and was at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act .2 (Hereafter the Orchestra will be referred to as the employer.) IT. THE UNFAIR LABOR PRACTICES DECISION JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed by Dr. Samuel Jones on August 28, 1972, against Rochester Musicians Association Local 66 affiliated with the American Federation of Musicians (Respondent), a complaint was issued on May 17, 1973 (amended on June 26, 1973), alleging that Respondent violated Section 8(b)(1)(B) of the Act by disciplining Jones for affecting the employment of five musicians. In its answer, Respondent asserted affirmative defenses based on Section 10(b) of the Act' and the doctrine of "res judcata." The General Counsel thereupon moved to strike Respon- dent's affirmative defenses and that motion was referred to me as the Administrative Law Judge assigned to hear the i National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151, et seq.). 2 In its answer to the complaint Respondent denied the legal conclusion that the Association was an "employer" within the purview of the Act. However, at no time has Respondent contended or attempted to establish A. The Issues In January 1972,3 Dr. Jones, as conductor of the Rochester Philharmonic Orchestra, recommended that the contracts of four musicians in the Orchestra not be renewed and that a fifth musician be placed on probation. As a member of the Respondent Union, Jones was thereupon brought up on charges before Respondent's executive board. In August, the executive board found Jones guilty of the charges and imposed a fine of $1,000 and a 6 months' suspension from union membership. Thereafter the fine was reduced to $250 and the suspension from membership was rescinded. The `complaint alleges that the bringing of intraunion charges and the imposition of penalties against Jones were that the Association is not an employer within the Board's statutory jurisdiction. Its position, apparently, is that, under the circumstances presented, the Board should not exercise its jurisdiction in this case. 3 Except as otherwise noted, all dates herein are in 1972. 207 NLRB No. 110 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violative of Section 8(b)(1)(B) of the Act. Respondent's primary contentions are that the Union's conduct is time- barred under Section 10(b) and the present complaint was precluded by the General Counsel's dismissal of a prior charge arising out of the same course of conduct by Respondent. Respondent maintains that the present complaint is rendered impermissible by application of the doctrines of "entrapment" or "estoppel," based on the Board's prior refusal to assert jurisdiction over symphony orchestras, including the Rochester Orchestra specifically. On the substantive side, Respondent contends that, while Jones was concededly a statutory supervisor, the General Counsel has failed to establish that he was entitled to the protection of Section 8(b)(1)(B). Additionally, in its posttrial memorandum Respondent apparently contends that the present complaint should be dismissed under the "de minimis" principle. B. The Facts On February 24 Respondent addressed a letter to Jones setting forth five numbered charges which allegedly had "been lodged with the Board of Directors against" Jones. He was "required" to appear before the Board on March 6, when a hearing would be held. Jones received this letter on February 28. Jones appeared before the executive board on March 6, when he was presented with further charges. At his request, the hearing was then postponed. On March 20 Jones filed with the Board a charge alleging that Respondent's bringing of intraunion charges against him violated Section 8(b)(1)(B) of the Act. Case 3-CB-1828. Under date of March 23, the Regional Director refused to issue a complaint on the ground that "the effect on interstate commerce" of operating a symphony orchestra "is too remote to warrant assertion of the Board's jurisdiction." On August 9, the General Counsel, through the Office of Appeals, affirmed the Regional Director's action on the authority of an Advisory Opinion issued by the Board on July 31, in response to a petition filed by the Orchestra in April. Rochester Civic Music Association, 198 NLRB No. 75. On August 19 the Board had published in the Federal Register a notice of a rulemaking proceeding for considera- tion of the promulgation of a proposed rule for the Board's exercise of jurisdiction over symphony orchestras meeting certain monetary standards. 37 Fed. Reg. 16813. On either August 21 or 24,4 Jones was tried in absentia by Respondent's executive board. He was found guilty and a fine of $1,000 and a 6 months' suspension from union membership were imposed. In the present proceeding no question is presented as to the regularity and fairness of the procedure before the Union's executive board. Additional- ly, at the present hearing the General Counsel said that, while he believed it to be "immaterial," he "would not dispute" the statement by Respondent's counsel that the Union's executive board proceeded with its trial of Jones in reliance on the Board's having declined to assert jurisdic- tion over the Orchestra. Counsel for the Charging Party did not indicate a position on that concession. By stressing the August 19 notice of proposed rulemaking, the Orches- tra appears to dissent from the General Counsel's conces- sion. The complaint alleges, and the answer admits, that the present charge was "filed by Dr. Jones on August 28, 1972, and served on Respondent on or about August 28 , 1972." However, the record establishes somewhat different timing. The charge was prepared in Rochester, New York, and apparently mailed to the Board on August 23, the date it bears. A copy was served personally on Respondent in Rochester on August 24. The original was received by the Board's Regional Office in Buffalo on August 28. On September 11 the Board served the charge on Respondent, which received it on September 12. On October 16 the Union's executive board, on its own motion, reconsidered the matter and thereupon rescinded Jones' suspension from membership and reduced the fine from $1,000 to $250. In a letter dated October 27 the Union advised Jones of this latest action and notified him that it was "mandatory" that he pay the $250 fine within 10 days or suffer "the sanction of suspension from member- ship." On March 2, 1973, the Board issued a rule, effective as of March 7, 1973, assuming jurisdiction over symphony orchestras meeting certain monetary standards. 29 CFR Sec. 103.2. The rule is expressly stated to be applicable to Board proceedings then pending and to all those instituted in the future. The present complaint was issued on May 17, 1973. C. Analysis and Conclusions 1. The motion to strike affirmative defenses As previously noted, the General Counsel moved to strike Respondent's two affirmative defenses which con- tended that the present complaint was barred under Section 10(b) of the Act and under the principle of "res judicata" or some related doctrine. Whether or not these defenses are legally or factually correct , it cannot be said that they are sham or otherwise improper . Accordingly, I shall deny the General Counsel's motion to strike. Delta-Macon Brick & Tile Co., 196 NLRB 48.5 2. Section 10(b) The " first alleged unfair labor practice is the Union's action in bringing Jones up on charges. The complaint as .filed alleged that such action occurred "[o]n or about February 24, 1972." As previously noted, Jones received notice of the intraunion charges on February 28. It would appear, therefore, that the limitation period would begin on February 28, rather than February 24. Cf. Teamsters Local No. 200 (State Sand and Gravel Co.), 155 NLRB 273, 274; Russell-Newman Manufacturing Company, 167 NLRB 1112, 1115, enfd. 406 F.2d 1280 (C.A. 5, 1969). In any event, the relevant paragraph of the complaint was later amended to add the words "and on or about March 6, 1972." It was on that date when Jones appeared 4 The record is somewhat confused as to which of these dates is correct summary judgment and, indeed, did not accede to my recommendation that However, this detail is not crucial the parties waive decision by me and stipulate the record directly to the 5 It may also be noted that the General Counsel did not move for Board ROCHESTER MUSICIANS ASSN. LOCAL 66 649 before Respondent's executive board pursuant to the original notice, that the charges against him were reassert- ed and additional charges were added. Also as previously noted, although the complaint alleges that the charge was "served on Respondent on or about August 28, 1972," it was in effect stipulated at the present hearing that Jones' counsel made personal service on Respondent in Rochester on August 24, the day after the charge was prepared and mailed to the Board's Regional Office in Buffalo. Although the Board did not actually receive the charge until August 28, the service on Respondent on August 24 appears to satisfy the Board's Rules and the Board's subsequent "service" on Respon- dent on September 11 is surplusage.6 Thus, with Jones' having received the original intraunion charges on February 28, and the charge having been filed and served on Respondent by August 28, the present complaint was not barred under Section 10(b) of the Act to the extent that it alleged the bringing of intraunion charges against Jones.7 The foregoing discussion may be largely academic since, in any event, the complaint also alleges misconduct occurring clearly within the 6 months immediately preced- ing the filing of the complaint; namely the executive board's trial and decision in August and its reconsideration and reaffirmation of the guilty finding on October 16. Although there is insufficient evidence to determine when the executive board's action would become legally "final," certainly that could not have happened before August 21, when it was taken. It may well not have occurred until October 27, 1972, when Respondent sent Jones a letter summarizing the union proceedings, includ- ing the review on October 16. The October 27 letter concluded by notifying Jones that it was "mandatory that [he ] pay this fine within ten days from the date on receipt by [him] of this notice," upon penalty of "the sanction of suspension from membership." It has been definitively established that a charge concerning union discipline is not time-barred until 6 months after the imposition of the discipline becomes final, regardless of when the disciplinary proceeding may have been instituted. N.L.R.B. v. New Mexico District Council of Carpenters (A.S. Horner, Inc.), 454 F.2d 1116, enfg. 176 NLRB 797, 799, and 177 NLRB 500; International Brotherhood of Electrical Workers, Local 716 (Fisk Electric Co.), 203 NLRB No. 52.8 Accordingly, I find and conclude that the present complaint is not barred under Section 10(b) of the Act. 3. The prior charge as a bar Respondent contends that the Board's dismissal of Jones' prior charge (Case 3-CB-1838) on jurisdictional grounds precludes the present complaint. Variously re- ferred to as "res judicata," "estoppel" (either equitable or by judgment), and "entrapment," Respondent's argument is, in essence, that it would be inequitable to hold that it violated the Act by action taken after, and in reliance on, official assurance that the Board was not asserting or exercising jurisdiction over the Orchestra.9 As a matter of first impression, Respondent's argument has considerable appeal. Indeed, at one time the Board fully accepted that position and eloquently articulated the equitable considerations underlying it. John Almeida, d/bla Almeida Bus Service, 99 NLRB 498. However, the Board later expressly overruled the Almeida line of cases and at least equally eloquently set forth the rationale for rejecting the contention. Siemons Mailing Service, 122 NLRB 81, 2485; Mitchell Concrete Products Co., Inc., 137 NLRB 509, 512. These later decisions are the present law and are binding on me in this case. The Board has consistently declined to permit reopening and reconsideration of complaints previously disposed of under former jurisdictional standards.10 This ruling has expressly been held applicable to prevent reactivation of a charge on which the Regional Director has refused to issue a complaint on jurisdictional grounds. Wausau Building and Construction Trades Council (Heiser Ready Mix Company), 123 NLRB 1484. On the other hand, it is equally well established that the Board may and does apply changed jurisdictional stand- ards retroactively, i.e., to factual situations occurring before the change in standards but brought to the Board in cases pending at the time of the change or instituted thereafter. See Charleston Transit Co., 123 NLRB 1296, fn. 1, citing Optical Workers' Union Local 24859 [Rogers Bros. Wholesalers] v. N.L.R.B., 227 F.2d 687, 691 (C.A. 5), cert. denied 351 U.S. 963. As said in Charleston Transit: 6 Section 102.14 of the Board's Rules and Regulations reads: Upon the filing of a charge, the charging party shall be responsible for the timely and proper service of a copy thereof upon the person against whom such charge is made The regional director will, as a matter of course, cause a copy of such charge to be served on the person against whom the charge is made, but he shall not be deemed to assume responsibility for such service. Although this language apparently contemplates service after filing is complete, i.e. after the document has been received (Sec. 102.114(b) of the Regulations), it would be overly technical to hold that personal service was ineffective because made before filing by mail was completed by receipt- See Sec. 102 121: "The rules and regulations . . - shall be liberally construed to effectuate the purposes and provisions of the act." The' purpose of giving Respondent notice of the charge was effectuated on August 24, 1972. 7 Further, the reaffirmation and extension of the charges on March 6, 1972, as alleged in an amendment to the complaint made in June 1973, were clearly within the 10(b) period 8 The Board has held that the 10(b)-6-month-linutarion period begins when the fine becomes final and is not revived or extended by the Union's threat to institute suit or by the institution of suit for collection Communications Workers of America and its Local 5550 (American Telephone & Telegraph Co), 187 NLRB 553, Communications Workers, Local 9511 (Pacific Telephone & Telegraph Co), 188 NLRB 433; International Association of Machinists and Aerospace Workers; Local 598 (Union Carbide Corporation), 180 NLRB 875, and 186 NLRB 890. The Court of Appeals for the Fourth Circuit, however, reversed this ruling and held that threats to sue and suits for the collection of fines within the 6-month period were sufficient to warrant a complaint Shumate (Union Carbide Corp) v N.L.R.B, 452 F.2d 717 (1971) It is unnecessary to accept the Fourth Circuit's decision in order to hold that the complaint in the present case is not time-barred 9 That Respondent acted "in reliance" on the Board's failure to assert jurisdiction over symphony orchestras is assumed even though the trial was held and the initial penalties imposed after the Board had published a proposed rule for the assertion of such jurisdiction. io In this regard, a distinction has been made between complaint and representation cases. Yellow Cab Company of California, 93 NLRB 766, In 4. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A dismissal in an earlier proceeding on jurisdictional grounds does not preclude the Board from asserting jurisdiction in a new proceeding under its present jurisdictional standards. See Yellow Cab Company of California 93 NLRB 766. In this connection, the Board makes no distinction between complaint and representation cases. Siemons Mailing Service, supra, 123 NLRB at 84. Apparently the Board has never specifically decided whether a charge alleging the same conduct as that in a previously dismissed charge would constitute a permissible "new" charge under Charleston Transit or an attempt to reactivate a dismissed charge, impermissible under Heiser Ready Mix. But the rationale in other decisions tends to support the view that the second charge is a permissible "new" charge, with the 10(b) limitations period computed from the date of its filing. The Board's primary reason for prohibiting reactivation of dismissed charges is to prevent the injustice to respondents and the administrative burden to the Board inherent in litigation of "old cases." Heiser Ready Mix, supra, 123 NLRB at 1485. The Court of Appeals for the Sixth Circuit has apparently so read the Board's rulings, saying in N.L.R.B. v. The Electric Furnace Co., 327 F.2d 373, 375: ... The Board has held that a withdrawn charge cannot support allegations of unfair labor practices, and to allow its reinstatement would circumvent the meaning of § 10(b).... Thus after the [original ] complaint had been withdrawn and dismissed, it could not be reactivated after the statutory six-month period of limitations had expired. It appears implied that a dismissal case could be "reacti- vated" during the 6-month limitations period. Thus, I conclude that even if the two charges filed by Jones covered the same matter, dismissal of the first would not preclude proceedings on the second, with litigation restricted to unfair labor practices allegedly committed within the immediately preceding 6 months. Cf. N.L.RB. v. Hod Carriers' Building & General Laborers' Union of America, Local No. 652 [Earl C. Worley], 351 F.2d 151, 155 (C.A. 9, 1965). This result comports with accepted common law princi- ples, under which it is generally held that dismissal of an action on jurisdictional grounds, without consideration of the substantive merits, does not preclude a subsequent action on the same cause of action in a forum of competent jurisdiction. As said in Ross M. Madden, Reg. Dir. v. Hon. J. Sam Perry, 264 F.2d 169, 175 (C.A. 7, 1959), cert. denied 360 U.S. 931, to equate a jurisdictional dismissal to a decision on the merits "would obviously be unjust. It would make the rule a means of entrapment of the plantiff." See lB Moore's Federal Practice (2d Ed. Par. 0.405[5]. Finally, it should be noted that the two charges filed by Jones do not cover the same matters, either legally or factually. The first charge alleged the original bringing of intraunion charges in February; the second concerned subsequent matters, starting with the "trial" and imposi- tion of penalties in August. That these are legally distinct is clearly established by the Board's rulings under Section 10(b), cited in II, C,2 above." Accordingly, I find that the present complaint was not barred under any administrative analogy to or adaptation of judicial concepts of res judicator estoppel, or sinular principles. 4. The substantive violation The only substantive factual issue potentially in dispute was the status of Jones as the Orchestra's "representative for the purpose of collective bargaining or the adjustment of grievances," within the purview of Section 8(b)(1)(B). After Respondent admitted that Jones was a "supervisor" within the meaning of Section 2(11) of the Act, I stated that I would exclude any evidence the parties might offer as to whether he had or exercised the authority to adjust grievances since the Board has held unequivocally that '(a]ll persons who are `supervisors' within the meaning of Section 2(11) of the Act are employers"representatives for the purposes of collective bargaining or the adjustment of grievances' within the purview of Section 8(b)(1)(B) of the Act." The Newspaper Guild Erie Newspaper Guild, Local 187 (Times Publishing Company), 196 NLRB 1121, reaf- firmed in Operating Engineers, Local 501 (Anheuser Busch, Inc.), 199 NLRB 551; United Brotherhood of Carpenters and Joiners of America, Local Union 751 (Imperial Cabinet Shop), 204 NLRB No. 154; Patternmakers Association of Detroit Pattern Makers' League of North America (Automo- tive Pattern Company), 203 NLRB No. 166. The courts have not uniformly approved the Board's broad construction of Section 8(b)(l)(B). For example, in Meat Cutters Local 81 v. N.L.R.B. [Safeway Stores], 458 F.2d 794, the District of Columbia Circuit observed that the person fined was "in addition to being one of the Company's representatives for the adjustment of griev- ances within the meaning of Section 8(b)(1)(B ), a 'supervi- sor' within the meaning of Section 2(11)." (p. 796, fn. 4). After having thus pointed up the difference in the two classes, the court sustained the Board's finding of a violation of Section 8(b)(1)(B) on the clear condition that: The rule here applied by the Board only affects union discipline which is imposed upon a member, who has responsibilities as a representative of his employer in administering the collective bargaining agreement or the adjustment of employee grievances, because he has performed duties as a management representative... . [458 F.2d at 799, fn. 12] Subsequently the District of Columbia Circuit refused to enforce Board findings that unions violated Section 8(b)(l)(B) by fining supervisors for having performed rank-and-file work during strikes. Interna- tional Brotherhood of Electrical Workers v. N.L.R.B. (Florida Power & Light Co.), 83 LRRM 2582 1973. In both cases covered by the court's opinion it had been found that the supervisors involved participated for management in the adjustment of grievances. Interna- tional Brotherhood of Electrical Workers, and Local 134 i i This conclusion, of course, is not altered by the fact that either of the entered the controversy pursuant to a formal charge, it may allege whatever two charges would have supported a complaint alleging, and the litigation it finds to be part of that controversy." N.LR.B. v. Kohler Co., 220 F.2d 3, 7 of, Respondent's entire course of conduct, since 'Is ]o long as the Board (C.A. 7), quoted in Fremont Hotel, Inc., 162 NLRB 820, 821. ROCHESTER MUSICIANS ASSN. LOCAL 66 651 (Illinois Bell Telephone Company), 192 NLRB 85, fn. 5; International Brotherhood of Electrical Workers System Council U-4 (Florida Power & Light Company), 193 NLRB 30, 33. The basis for the court's decision was that the union fines -were imposed for conduct performed outside the scope of the members' superviso- ry functions. While the court repeated the quoted caveat from the Safeway case, it is not clear from the later opinion whether the court would have sustained a fine against a statutory, supervisor for performing supervisory functions if he did not represent manage- ment in collective bargaining or in the adjustment of grievances. Like the District of Columbia Circuit, the Ninth Circuit has held that a union may lawfully fine a supervisor for performing rank-and-file work during a strike. N.L R.B. v. International Typographical Union Local 21, California Newspapers, 486 F.2d 1347 (1971). However, in the California Newspapers case the court sustained a Board holding that the union violated Section 8(b)(1)(B) by fining a member because he fired an employee. Although the court and the Board appear to have considered only the "supervisory" status of the persons involved, it had been found specifically that they had authority to adjust grievances. 192 NLRB 523; 193 NLRB 310, 322, 323. The Seventh Circuit, expressly disagreeing with the District of Columbia Circuit, has held that a union may not fine management,representatives for performing rank- and-file work during a strike. N.L R.B. v. International Brotherhood of Electrical Workers, Local 2150 [Wisconsin Electric Power Co.], 486 F.2d 602, (1973). However, that decision is not authority on the delineation of the management representatives protected by Section 8(b)(1)(B) because it was there found as a fact that "the concededly statutory supervisors [involved] possessed the authority to adjust grievances," within the express scope of Section 8(b)(l)(B). 192 NLRB 77. In any event, whatever the views of the courts of appeals are, under Board decisions, by which I am bound, a union violates Section 8(b)(1)(B) by disciplining any supervisor for work-related action taken by him. It is admitted that Jones was a supervisor. It is further clear, under the terms of the collective-bargaining agreement in the record, that he was properly acting in his capacity as conductor in recommending the discharge of four musicians and the probation of a fifth. Accordingly, I find and conclude that Respondent violated Section 8(b)(1)(B) by taking discipli- nary measures against Jones-12 CONCLUSIONS OF LAW 1. Rochester Civic Music Association, Inc., is an 12 It might be held on the basis of the collective-bargaining agreement alone that Jones was a representative of management "in administering the collective-bargaining agreement" within the scope of the District of Columbia Circuit's holding in Safeway Stores, supra, 458 F.2d at 798, In. 12. 13 While this Decision was in the process of final typing, a letter was received from the Charging Party's counsel and then, the next day, a rejoinder from Respondent's counsel. Both letters, like Respondent's counsel's original letter-memorandum, improperly contain statements of alleged facts not appearing on the record. Additionally, they contain unseemly and unprofessional remarks. Although I have read these letters, I employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By disciplining Dr. Samuel Jones, conductor of the Rochester Philharmonic Orchestra, for having recom- mended that four musicians be discharged and that one musician be placed on probation, Respondent Union coerced and restrained the Employer in the selection of its representatives for the purposes of collective bargaining and the adjustment of grievances and thereby engaged in unfair labor practices within the meaning of Section 8(b)(l)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY The admitted facts in the present case present a classic example of the grossest form of coercion against which the statutory provision was directed. That the conductor of a symphony orchestra must be accorded considerable freedom to exercise his artistic and professional judgment as to the competence of orchestra members is clearly recognized in the collective-bargaining agreement. For the Union to prefer charges and impose severe penalties for the conductor's performance of his duties manifestly interferes with the right of management to a conductor of artistic integrity uncompromised by any actual or potential conflicts. The possibility of expulsion or suspension from union membership, creating a serious threat to a musician's economic survival, would of necessity constitute a serious threat of a substantial conflict of interest. In its posttrial letter-memorandum, Respondent asserts that Jones "has not suffered" by reason of the Union's action because he "has in fact obtained employment elsewhere" and his "fine was paid apparently by someone other than Dr. Jones." If we assume the truth of these factual representations,13 and if we further assume that Jones' change of position was his free choice, uninfluenced by his difficulty with Respondent Union, the gravity of the violation here found is not mitigated. As the 'Board recently said in American Federation of Musicians Local 76 (John C. Wakely), 202 NLRB 620.14 ... 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. The test is whether it may reasonably be said that the respondent's action mean- ingfully detracted from the undivided loyalty owed by the supervisor to his employer and if such action have given them no consideration in reaching this Decision . In no sense are they to be considered part of the record in this proceeding. Cf Sec. 102.45(b) of the Board's Regulations: The filing of such documents is not permitted and is to be strongly discouraged. 14 Respondent cites the Wakely decision in support of its contention that no order is warranted in the present case. However, the two cases are totally different. In Wakely, the respondent union had voluntarily withdrawn its violative threat and, as said by the Board, "there [was] no suggestion that the action . . was even intended to be directed against a supervisor " 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereby interfered with management's right to select its representative [footnote omitted]. The fact that Respondent 'eventually (after the charge was filed) rescinded the suspension from membership and substantially reduced the fine does not obviate the need for a remedial order. Indeed, the mere bringing of the intraunion charges, without the imposition of any penal- ties, warrants the issuance of a remedial order. Internation- al Brotherhood of Electrical Workers, Local 2150 (Wisconsin Electric Power Co.), supra, 192 NLRB 111, fn. 3, enfd. 486 F.2d 602; Sheet Metal Workers' International Association, Local 71 (H.J. Otten Company), 193 NLRB 23, 26-27. And if it is a fact, as stated in Respondent's posttrial memorandum, that Jones' fine has been paid, vindication of the statutory policy requires that the amount so paid be refunded, with interest at 6 percent per annum, The Newspaper Guild (Times Publishing Co.), supra, 196 NLRB 1121. This conclusion as to the proper remedial action is not altered by the alleged fact that somebody other than Jones paid the fine.15 Nor is the result here reached affected by the fact, emphasized by Respondent, that the Employer did not file a charge against Respondent and did not formally appear in the present proceeding. Jones' charge was sufficient to set the administrative machinery in motion. Once the proceeding was instituted, vindication of the public interest was possible and necessary.16 N.L.R.B. v. Indiana & Michigan Electric Company, 318 U.S. 9, 17-18. Accordingly, I reject Respondent's contention that the unfair labor practice here found is so unsubstantial as not to warrant issuance of an order. I shall, therefore, recommend issuance of an order customary in such cases, including refund, with interest, of any amount of the fine paid by or on behalf of Jones. The Charging Party recommends a remedial order somewhat stronger than the usual one in such cases. The Charging Party's brief says: ... [I ]n light of the notoriety given the disciplin- ing of Dr. Jones by Respondent and in light of fact that appearances as a guest conductor in various parts of the country are an integral part of Dr. Jones' occupation as a conductor in conjunction with other symphony orchestras, it is requested that Respondent be ordered to also publish such notice in the monthly official journal of the American Federation of Musi- cians, The International Musician. Although there is no record evidence of any "notoriety" given the Union's conduct in this case, I can take official notice of the peripatetic nature of a symphony orchestra conductor's career. Because of this, I believe it appropriate that reasonable steps be taken to inform interested persons generally that Jones is not persona non grata with Respondent. Such "interested persons" would obviously include members of other locals of the American Federa- tion of Musicians, even though Rochester Musicians Association Local 66 is the only respondent in the present proceeding. Accordingly, I shall adopt the Charging Party's suggestion and order Respondent to have the notice published in The International Musician, even if that can be accomplished only through a paid advertisement. Cf. Local Union No. 3 Interantional Brotherhood of Electrical Workers (Diesel Construction), 205 NLRB No. 51. Finally, although I deem Respondent's conduct to be seriously coercive, I shall not recommend a broad cease- and-desist order in view of the fact that, as discussed herein, Respondent took its violative action at a time when it reasonably believed it was not subject to the Board's jurisdiction. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 Respondent Rochester Musicians Association Local 66, affiliated with the American Federation of Musicians, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing the Rochester Civic Music Association, Inc., in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances by trying or disciplining such representatives. (b) In any like or related manner restraining or coercing the Rochester Civic Music Association, Inc., in the selection of its representatives for the purpose of collective bargaining or the adjustment or grievances. 2. Take the following affirmative action necessary to effectuate'the policies of the Act: (a) Expunge all record of the disciplinary proceedings and action taken against Dr. Samuel Jones. (b) Rescind any and all fines levied against Dr. Samuel Jones and refund to him any money paid to Respondent by or on behalf of Dr. Samuel Jones as a result of any such fine, together with interest at the rate of 6 percent per annum. (c) Notify Dr. Samuel Jones, in writing, that it has taken the aforesaid remedial action and will in the future comply with the cease-and-desist provisions of this Order. (d) Cause to be published the complete text of the attached notice marked "Appendix" in a conspicuous place in the official monthly journal of the American Federation of Musicians, The International Musician, and post copies of said notice in conspicuous places in its business offices, meeting place and all places where notices to members are customarily posted. Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by Respondent's representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. 15 It may be a reasonable conjecture that the fine was paid by the Employer, which was perhaps most threatened and adversely affected by the Union's conduct. 16 It may be noted that the Employer had previously sought and obtained an advisory opinion from the Board concerning the jurisdictional issue. 17 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. ROCHESTER MUSICIANS ASSN. LOCAL 66 653 (e) Mail to the Regional Director for Region 3 signed copies of said notice for posting by the Rochester Civic Music Association, Inc.,if willing, in places where notices to employees are customarily posted. Copies of said notices, on forms furnished by the Regional Director for Region 3, shall, after being duly signed by a representative of Respon- dent, be forthwith returned to the Regional Director. (f) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.18 IT IS FURTHER ORDERED that the General Counsel's motion to strike affirmative defenses to Respondent's answer is denied. 18 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to carry out the order of the Board and abide by the following: WE WILL NOT bring charges, try, fine, or otherwise discipline the conductor or other supervisory employ- ees of the Rochester Philharmonic Orchestra or the Rochester Civic Music Association, Inc., for conduct or acts performed by them in the course of their employment. WE WILL NOT in any like or related manner restrain or coerce the Rochester Philharmonic Orchestra or the Rochester Civic Music Association, Inc., in the selection of their representatives for the purpose of collective bargaining or the adjustment of grievances. WE WILL expunge from our records all references to any charges, trials, fines, or other disciplinary action against Dr. Samuel Jones for personnel action taken or recommended by him as conductor of the Rochester Philharmonic Orchestra. WE WILL rescind any fines levied against Dr. Samuel Jones for personnel action taken or recommended by him as conductor of the Rochester Philharmonic Orchestra, and WE WILL refund to him (with interest at the rate of 6 percent per annum) any money that may have been paid to us by him or on his behalf as a result of any such fine. ROCHESTER MUSICIANS ASSOCIATION LOCAL 66 AFFILIATED WITH THE AMERICAN FEDERATION OF MUSICIANS (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions' may be directed to the Board's Office, 9th Floor, Federal Building, 111 W. Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.