Carpenters & Joiners, Local 1620

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters and Joiners of America , Local 1620 (David M. Fisher Construction Company ) and Charles R. Carlson. Cases 27-CB-753 and 27-CC-500 January 3, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On August 15, 1973, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed limited exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order.3 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, Carpenters and Joiners of America, Local 1620, Rock Springs, Wyoming, its officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order, substituting the attached notice for that of the Administrative Law Judge. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to 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 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 While we agree with the Administrative Law Judge's finding that Respondent violated Sec 8(b)(4)(ixii)(B) by fining those members who continued to work after the walkout, we find ment in Respondent's exception to the Administrative Law Judge's consideration of the alleged refusal to refer member to Fisher Although the charge herein was filed within 6 months of the fining of the members, there is no evidence in the record that Respondent refused to refer carpenters to Fisher within the 6 months preceding the filing of the original charge Accordingly, we are precluded by Sec. 10(b) of the Act from considering whether the alleged refusal to refer violated Sec 8(b)(4)(i)(ii)(B), and we shall not adopt this finding of the Administrative Law Judge 3 The General Counsel filed limited exceptions to the failure of the Administrative Law Judge to include in the notice to employees and members the affirmative action designed to effectuate the policies of the Act recommended in pars. 2(a), (b), and (c) of his recommended Order Since the requested modification conforms with our customary practice, we find ment to the General Counsel's exceptions and have therefore substituted the attached notice for the notice recommended by the Administrative Law Judge APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To all members of Carpenters and - Joiners of America, Local 1620 To all employees of Fisher Construction Company J. E. Acoustics Corporation Following a hearing during which all parties were given an opportunity to present evidence and argument, it has been determined that Carpenters and Joiners of America, Local 1620, violated the law by committing certain unfair labor practices. In order to remedy such conduct we are required to post this notice. Carpenters and Joiners of America, Local 1620, intends to comply with this requirement and to abide by the following: WE WILL NOT restrain and coerce the employer in the selection of its representatives for the purposes of collective bargaining or the adjust- ment of grievances. WE WILL NOT fine or threaten loss of member- ship to employees, or supervisors, of Fisher Construction Company, because they persist in their desires to render services for the Fisher Construction Company, an employer with whom this Union has no labor disputes. WE WILL NOT in any manner prohibited by Section 8(b)(4)(i) or (ii)(B) of the National Labor Relations Act threaten, coerce, or restrain Fisher Construction Company, or any other person engaged in commerce or in an industry affecting commerce, where, in either case, an object thereof is to force or require the named employer, or any other person, to cease using, handling, or other- wise dealing in the product or services made available by J. E. Acoustics Corporation, or to cease doing business with that firm. WE WILL NOT in any manner prohibited by Section 8(b)(4)(i) or (u)(B) of the National Labor Relations Act induce or encourage any individual employed by Fisher Construction Company, or by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal, in the course of his employment, to use, manufacture, process, transport, or other- wise handle or work on any goods, articles, materials, or commodities, or to refuse to perform any other services, where an object thereof is to force or require the named employer, or any other person, to cease using, handling, or otherwise dealing in the products or services made available 208 NLRB No. 27 CARPENTERS & JOINERS, LOCAL 1620 95 by J. E. Acoustics, or to cease doing business with that firm. WE WILL withdraw and rescind the fines levied against George Pickard, Charles Carlson, Cecil Swift, and Thomas Moore. WE WILL correct all pertinent records relating to the aforesaid fines and threatened loss of membership by expunging all references thereto from the Respondent's records and we will advise the International Union of Carpenters and Joiners of America of such action. WE WILL notify George Pickard, Charles Carlson, Cecil Swift, and Thomas Moore, in writing, that the fines against them have been rescinded and that all entries, including any communications to the International Union, have been expunged from the records of the Union. CARPENTERS AND JOINERS OF AMERICA, LOCAL 1620 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, U.S. Custom House, Room 260, 721 19th Street, Denver, Colorado 80202, Telephone 303-837-3551. restrained or coerced the employer in the selection of his representatives in violation of Section 8(b)(1)(B); and (3) whether this same alleged misconduct by the Respondent was also violative of Section 8(b)(4)(i) and (ii)(B) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Union, I make the following: FINDINGS OF FACT 1. JURISDICTION The Fisher Construction Company (herein Fisher) is now and at all times material herein has been a corporation duly organized under and existing by the virtues of the laws of the State of Wyoming and maintains an office and place of business at Rock Springs, Wyoming. In the course and conduct of its business operations in the State of Wyoming, Fisher annually purchases and receives goods and materials valued in excess of $50,0D0 directly from points and places outside the State of Wyoming. J. E. Acoustics (herein Acoustics) is a Wyoming corporation engaged in the business of interior finishing and in the course and conduct of its business operations in the State of Wyoming annually purchases and receives goods and materials valued in excess of $50,000 directly from points and places outside the State of Wyoming. The Respondent's answer admits and I herewith find that both Fisher and Acoustics are now and at all times material herein have been employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent's answer admits and I herewith find that now, and at all times material herein, the Carpenters and Joiners of America, Local 1620, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was tried at Rock Springs, Wyoming, on May 17 and 18, 1973.1 The original charge in Case 27-CB-753 was dated February 17, 1973, and filed February 20, 1973, complaint issued on March 29, 1973. An amended charge in Case 27-CB-753 dated March 31, 1973, was filed on April 2, 1973, and the charge in Case 27-CC-500 was dated March 31, 1973, and filed on April 2, 1973. On April 13, 1973, there was issued an order consolidating cases, and an amended complaint and notice of hearing. The primary issues are whether the Respondent Union (1) unlawfully restrained or coerced employees in the exercise of their Section 7 rights in violation of Section 8(b)(l)(A); or (2) 1 The relevant events herein occurred in 1972 and all dates hereinafter will be in the year 1972 unless otherwise indicated 2 It was not fully explained, nor was it necessarily relevant to this dispute, but one might conclude that Fisher became a signatory to the labor agreement with the Respondent about the time the Rock Springs job was undertaken, which was probably its first major construction job in A. Background Events Fisher at all times material herein was the general contractor engaged in building a Holiday Inn at Rock Springs, Wyoming. Fisher and Respondent were signato- ries to a collective-bargaining agreement. The agreement covered the period from July 16, 1970, throughuJuly 15, 1973 although Fisher did not become a signatory until May 15 (see G.C. Exh. 4).2 The interior finishing of the Holiday Inn project was subcontracted to Acoustics. Acoustics was not a signatory to the then current labor agreement between the Wyoming State Council of Carpenters and the Wyoming Contractor's Association, Inc. (G. C. Exh. 4), although it appears that it had been signatory to the prior agreement (see Resp. Exh. B).3 Work was begun on the Holiday Inn on May 16, and progressed without serious incident until August 9. Wyoming 3 Respondent's answer alleged that Acoustics was a "party" to the then current agreement, but had refused to sign the agreement resulting in a threatened filing of unfair labor practice charges by Respondent against Acoustics Whether there was or was not a contract between Respondent and Acoustics is immaterial to a resolution of this dispute, but Respondent's (Continued) 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Acoustics' employees first appeared on the job August 7-their necessary materials having been placed on the job a few days earlier. On the following day Willis Meeks, business representative for the Respondent, ap- peared on the job and was involved in a discussion with George Pickard, at that time general foreman for Fisher, Oliver Eccleman, foreman for Acoustics, Henry Meeks, the Respondent's on-the-job steward, and Grant Taylor, a plumber. At that time Mr. Willis Meeks announced that he was going to shut the job down. According to Pickard- whose testimony I credit in preference to Willis Meeks wherever they differ-the conversation was brief and pungent. Derogatory and uncomplimentary remarks were made by Willis Meeks to Eccleman and about Acoustics and Mr. Eye, the president of Acoustics. Pickard suggested Willis Meeks should talk to Mr. Eye, but Meeks was only interested in a signed agreement. Willis Meeks left the jobsite and everybody went back to work-angry, but with nothing settled. Later in the day on August 8, Mr. Eye called Willis Meeks and offered to hire some men through the Respondent local, but Willis Meeks reiterated his position that only a signed agreement could settle their differences. On the morning of August 9, at a time when all the carpenters working for Fisher were gathered around the shed where their tools were kept, Henry Meeks, the job steward, announced: "I am quitting, and I think that most of these men here will quit also; I am quitting right now and I want you to mail me my check; and I said it loud enough that everyone could hear it and then I left." There was contrary testimony as to whether the other carpenters said they too were quitting and I have grave doubts that term was used. According to Pickard, Meeks merely announced in a loud voice that he "couldn't work with a scab contractor and he wasn't going to work." In any event all the carpenters employed by Fisher except Swift, Carlson, Fedrizzi, and Pickard immediately followed Henry Meeks' example and left thejob. Swift, Carlson, and Fedrizzi followed very shortly thereafter, arriving at the union hall between 9 and 9:30 a.m. and there found the other "Fisher carpenters" engaged in conversation with Willis Meeks. Superior Lumber Company was involved in building an elementary school in Green River, Wyoming, which was only 15 miles away from Rock Springs, and Acoustics was a subcontractor on that job. Carlson asked if the carpenters working for Superior Lumber Company were going to come off the job also. According to Swift and Carlson, Willis Meeks responded that the Superior Lumber Compa- ny carpenters should be told what happened in Rock Springs and that they were going to be asked to come off the job, too. Henry Meeks, Donald Meeks, and Roger and Bruce Reed went to the Superior Lumber Company job and that afternoon several of the Superior carpenters walked off the job although they returned to work the following morning. (However, Mr. Eye testified that minor incidents of point of view lends credence to the allegation in the complaint (par VI, a) that "at all times since August 8, 1972, Respondent has been engaged in a labor dispute with Acoustics." 4 Pars A thru I, section 46, beginning at p. 45 of the constitution and laws of the United Brotherhood of Carpenters and Joiners of America (G.C. harassment, such as roughing up a finished taping job, continued on the Green River school project and it was finally necessary to assign the Superior Lumber Company carpenters to finish the work.) Pickard-whose status for Fisher changed from general foreman to that of superintendent on August 9-went to the union hall in the afternoon of August 9 to advise Willis Meeks that Mr. Eye had agreed to hire a percentage, or ratio, of carpenters from the Respondent local. Willis Meeks responded that the whole organization would have to sign up. At this time Pickard asked to have the carpenters return to work for Fisher, but received a negative response. Some time during this afternoon visit to the Union, George Pickard asked for and obtained a clearance card. According to Pickard, he was asked by Willis Meeks what he was going to do and Pickard responded by saying that he did not know. Pickard testified that he talked to Willis Meeks again by telephone on August 10 and I1 requesting carpenters for the Fisher job, but to no avail. These telephone conversa- tions were verified by Swift who had reported to the Fisher job on August 10 to inquire what was happening, and who returned to work on August 11. On August 11, Swift obtained a clearance card from the Union,4 after advising Willis Meeks that he intended to go to Colorado to work. Swift returned to work for Fisher in Rock Springs on August I1 as a carpenter foreman and worked there until August 25 when he was moved to Colorado by Fisher as the superintendent in charge of building a Best Western Motel. Carlson had gone to Nebraska shortly following the "walk off." Upon learning from a fellow carpenter that the Superior Lumber Company carpenters had gone back to work, he called Pickard to ascertain the status of the Holiday Inn job in Rock Springs. Pickard informed Carlson that the Union was still refusing to refer men to the job, but that Fisher was offering him (Carlson) a salaried position if he wanted it. Carlson responded that he would "be back to work Monday morning." Carlson returned to Wyoming and obtained his clearance card from Willis Meeks on August 14, telling him in response to a question, that he did not know where he was going. Carlson then went to work for Fisher in Rock Springs as a carpenter foreman and continued in that capacity until April 11, 1973. On August 15 Pickard, Swift, and Carlson each received notices from the Union that charges were being preferred against them and each was invited to appear at the union meeting on August 17 (see G.C. Exh. 9(a), 10(a), and 1 l (a)). On the same day the notices were dated, Pickard, Swift, and Carlson went to the union hall where they were handed a copy of the charges, a copy of the general agreement, the bylaws, and the constitution. George Pickard was informed by Willis Meeks, that if he would quit his job the charges against him would be dropped, but Exh 5) set forth in detail the use and purpose of a clearance card. In brief, it is obtained by a member when he moves from one geographical jurisdiction of the Union to another and it is the means of transferring membership CARPENTERS & JOINERS, LOCAL 1620 that the charges against Swift and Carlson would stick regardless of what they did.5 Donald Meeks and Henry Meeks were in the union hall at the time and there was an exchange of comments about being disloyal to the Union. Carlson again raised a question about the carpenters on the Superior Lumber Company job at Green River being allowed to continue working, but the testimony was vague and veiled as to Willis Meeks' response and I can only conclude that Carlson never received a satisfactory answer. B. Nature of Charges Against Pickard, Swift, and Carlson Pickard was charged with violating section 26, paragraph H, and section 24, paragraph C (G.C. Exh. 2, p. 3), of the Carpenters' Local Union No. 1620 bylaws and trade rules (G.C. Exh. 6); and section 7, paragraphs A and B, constitution and laws of the United Brotherhood of Carpenters and Joiners of America (G.C. Exh. 5). These sections read as follows: Stewards Section 24. (C) In no event shall men work without a steward. Foreman Section 26. (H) Under no conditions shall any carpenter, foreman, or superintendent assign work specified in Trade Autonomy of the United Brother- hood, as set forth in the Constitution and Laws of the United Brotherhood, to other than members of the Brotherhood. Trade Autonomy A Section 7. The trade autonomy of the United Brotherhood of Carpenters and Joiners of America consists of the milling, fashioning, joining, assembling, erection, fastening and dismantling all materials of wood, plastic, metal, fiber, cork and composition, and all other substitute materials. The handling, cleaning, erecting, installing and dismantling of machinery, equipment and all materials used by members of the Brotherhood. B. Our claim of jurisdiction, therefore, extends over the following divisions and subdivisions of the trade: Carpenters and Joiners; Millwrights; Pile Driv- ers, Bridge, Dock and Wharf Carpenters, Divers, Underpinners, Timbermen and Core Drillers; Ship- wrights, Boat Builders, Ship Carpenters, Joiners and Caulkers; Cabinet Makers, Bench Hands, Stair Build- ers, Millmen; Wood and Resilient Floor Layers, and Finishers; Carpet Layers; Shinglers; Siders; Insulators; Acoustic and Dry Wall Applicators; Shorers and House Movers; Loggers, Lumber and Sawmill Work- 5 There is a conflict in the testimony on whether this statement was made by Willis Meeks or Henry Meeks. On the basis of the credited testimony of Pickard, Swift, and Carlson, I attribute this remark to Willis Meeks. 6 The exhibits admitted as evidence did not include an October 20th letter addressed to Swift. However, the November 27 letter addressed to Swift made reference to the October 20th letter and the $1,000 fine. I The sections of the contract and the bylaws which Moore is charged 97 ers; Furniture Workers, Reed and Rattan Workers; Shingle Weavers; Casket and Coffin Makers; Box Makers, Railroad Carpenters and Car Builders, regard- less of material used; and all those engaged in the operation of woodworking or other machinery required in the fashioning, milling or manufacturing of products used in the trade, or engaged as helpers to any of the above divisions or subdivisions, and the handling, erecting and installing material on any of the above divisions or subdivisions; burning, welding, rigging and the use of any instrument or tool for layout work, incidental to the trade. When the term "carpenter and joiner" is used, it shall mean all the subdivisions of the trade. Carlson and Swift were each charged with violating section 24, paragraph C, of the local bylaws and trade rules (p. 2 and 4 of G.C. Exh. 2). This alleged violation was also charged against Pickard and the language of the referenced section is set out above. Pickard, Swift, and Carlson elected to ignore the charges and were tried in absentia by Respondent on October 6 (G.C. Exh. 2). By letter dated October 20 each was notified that he had been found guilty and was fined $1,000. (See G.C. Exh. 9b and I 1 e.) By letter dated November 27 each man was notified that he had until December 31 to pay the fine or his name would be stricken from the membership. (See G.C. Exh. 9c, lob and I If) 6 None of the three-Pick- ard, Swift, or Carlson-has paid the fine. C. Nature of Charges Against Thomas Moore Thomas Moore, a carpenter-member of Respondent, was not involved in the earlier incidents heretofore related. Moore was employed by Bechtel Corporation at the Jim Bridger project, just outside Rock Springs, until November 21. Moore was recruited by Fisher to become a supervisor. On November 21 before going to work for Fisher he went to the union hall and sought an honorary withdrawal on the basis that he was "going to take over and supervise with a construction firm." At the direction of Willis Meeks, Moore later made his request in writing (see letter dated November 25 from Moore to Respondent which is a part of G.C. Exh. 3). Moore worked for Fisher in Rock Springs as a supervisor-trainee until March 1973 when he was transferred to Trinidad, Colorado, where he has continu- ously remained employed as a general superintendent involved in building another Holiday Inn. Moore never received his withdrawal card and on December 14 was charged with violating section 5, pars. (b) and (h) of the then current labor management agreement (G.C. Exh. 4 at pp. 4 and 5), and section 20, paragraph B, and section 24, paragraph C of the Respon- dent's bylaws and trade rules (G.C. Exh. 6).7 Moore elected to ignore the charges and was tried and found guilty in absentia. He was notified by letter dated with having violated are as follows: section 5, paragraph b (of article ill.). "All individuals desiring employment shall register at the Union by appearing personally and shall indicate name, address, telephone number, and type of work desired, social security account number, and qualifica- tions (h) Each individual, upon being referred, shall receive a referral slip to be transmitted to the employer representative at the jobsite " Bylaws and Trade Rules. Section 20, paragraph B: "Members shall comply with any (Continued) 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 7, 1973, that he had been fined $1,000 (G.C. Exh. 8a) and later notified on March 7, 1973, that unless the fine was paid by April 7, 1973, his name would be stricken from the membership (G.C. Exh. 8b). Ili. ANALYSIS A. Respondent's Contentions Respondent argues that the Section 8(b)(4)(i) and (ii)(B)8 allegations of the complaint should be dismissed because the charge was filed April 2, 1973, which was more than 6 months after the August 9 "walk off" and also more than 6 months after the union charges were filed against Pickard, Swift, and Carlson thus barred by Section 10(b) of the Act.9 The April 2, 1973, charge, however, grew out of the identical set of circumstances applicable to the original charge. While it wai necessary to issue a new complaint and then an order consolidating the cases, rather than an amended complaint, this was purely an administrative matter stemming from the agency's internal procedure of categorizing or labeling cases.1° An amended complaint alleging additional violations of the Act which may have occurred more than 6 months before the issuance of said complaint, but which is directly related to the same circumstances giving rise to the original charge, is not barred by Section 10(b), provided the original charge was timely. See N.L.R.B. v. Dinion Coil Company, Inc., 201 F.2d 484 (C.A. 2, 1952). There the court said: A complaint, as distinguished from a charge, need not be filed and served within the six months, and may therefore be amended after the six months . If a charge was filed and served within six months after the violations alleged in the charge , the complaint (or amended complaint), although filed after the six months, may allege violation not alleged in the charge if (a) they are closely related to the violations named in the charge and (b) occurred within six months before the filing of the charge. [Emphasis supplied.](( Respondent also contends the original charge was untimely, because the "walk off" and the union charges against Pickard , Swift, and Carlson occurred more than 6 months before the charge was filed . However, the original and all conditions of current contracts." section 24, paragraph C•"In no event shall men work without a steward." 8 This section reads as follows . "It shall be an unfair labor practice for a labor organization or its agents . to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a stoke or a refusal in the course of his employment to use, manufacture , process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (u) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce , where in either case an object thereof is . (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, . 9 The relevant portion of Section 10(b) reads as follows "Provided, that no complaint shall issue based upon any unfair labor practice occurring more than six months poor to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, . " charge was timely filed because it alleged the act of fining, as being the unfair labor practice. The charge and the complaint alleged the fine to have been assessed October 19 and this conforms to the documentary proof received at the hearing. The original charge, filed and served February 20, 1973, was well within 6 months of the alleged proscribed conduct and is in conformance with Section 10(b) of the Act. In Allis-Chalmers Manufacturing Compa- ny, 149 N LRB 67, affd. 388 U.S. 175, Trial Examiner Harold Summers disposed of this same argument therein raised by Respondent with these words: "Where, as here, imple- menting action is taken within the 6-month period, Section 10(c) (sic] does not bar the proceeding." (Cf. Local Lodge 1424, International Association of Machinists [Bryan Manu- facturing Co.], 362 U.S. 411.) This statement was adopted by the Board without comment. (See fn . 12, p. 76 of the Board decision). Also see International Brotherhood of Electrical Workers, Local 716, 203 NLRB No. 52. Respondent contends that the refusal by the employees (members) to provide services for Fisher was without its knowledge or approval and Respondent cannot be held responsible for the individual desires of the employees not to perform their skills for a particular employer. While this is an accurate statement of the law, the premise does not, in my opinion, comport with the facts. I credit the testimony of Pickard relating to Willis Meeks' statement and conduct on August 8 on which occasion he appeared at the Fisher jobsite and announced he was going to shut the job down unless Acoustics signed an agreement with Respondent. Willis Meeks is the business representative of Respondent and admitted to being an agent of Respondent in the answer filed herein. Furthermore Willis Meeks' announced course of conduct, insofar as the Fisher job was concerned, reached fruition the following morning when his brother, Henry Meeks, the steward on the job, announced in a voice loud enough to be heard by all the other carpenters, "I am quitting, and I think that most of these men here will quit also; I am quitting right now and I want you to mail me my check." 12 This is one type of inducement leadership by an agent 13 of the Union which the Act proscribes when, as occurred here, it results in services being withheld from an employer with whom the Union has no dispute, with an object of forcing or requiring that employer to cease doing business with another employer. 10 Secondary boycott-type cases are numbered with a CC or CE designation while the more frequent situations of an alleged violation by a company or a union toward an employee or member are designated with either CA (for companies) or a CB (for unions) numbering sequence I I This early decision has been consistently followed by the Board with approval of the courts, and numerous case citations, both old and new, may be found in the Labor Relations Digest and index, section 36 053 published by the Bureau of National Affairs 12 While this quote is from Henry Meeks' own testimony and certainly amounted to inducement and encouragement to the other employees to cease providing services, the other versions of Henry Meeks' statement on this particular occasion attribute to him remarks about working with scabs These comments coming from the union steward might be fairly characterized as verbal threats or coercion tending to restrain other union members in their course of conduct. 13 For recent cases holding that union stewards are agents of the Union, see International Brotherhood of Electrical Workers, Local 640 (Brown Wholesale Electrical Co), 190 NLRB 456, and Glaziers & Glassworkers, Local 513 (Linclay Corp), 191 NLRB 461. CARPENTERS & JOINERS, LOCAL 1620 Clearly, this background evidence is indicative of Respondent's real desire to have Acoustics removed from the job by putting pressure on the general contractor- Fisher. This conclusion is amply supported by Respondent's continued refusal to refer carpenters to Fisher in spite of Pickard's thrice repeated request for carpenters following the "walk off" on August 9. There is no proof in the record that Respondent had a quarrel with Fisher before the "walk off." Willis Meeks so testified. Yet the evidence is overwhelming that Respondent did have a serious labor dispute with Acoustics. Respondent argues that the union proceedings (including the fining and threatened loss of membership unless the fine was timely paid) were internal union proceedings concerning its own rules with respect to retention of union membership as permitted by the proviso to Section 8(b)(1)(A). The soundness of this argument turns on the purpose or motivation behind the fine. Willis Meeks has been the business representative of Respondent for the past 10 years and-albeit the questions posed and Meeks' answers are somewhat confusing-there is nothing in the testimony to indicate that heretofore any member has been fined in an amount greater than $50 during Meeks' 10-year term as business representative. In this instance-although the charges against each of the four men involved were somewhat different-each man was fined exactly the same amount, $1,000. This is a sum 20 times greater than any fine assessed during the prior 10-year period. And for what reason? While Respondent would have one believe the men were fined because of violating internal union rules relating to their membership obligations, I find these excuses to be a weak coverup; a pretext in an effort to hide the real reasons. Respondent had no argument with Fisher, but it was determined to prevent Acoustics from doing business in its geographical jurisdiction unless, or until, Acoustics became signatory to the statewide agreement (G.C. Exh. 4). Pickard, Swift, Carlson, and Moore wanted to work for Fisher and refused to go along with Willis Meeks' plan to violate the Act. When each man persisted in his desires and rights to earn a living for himself and family in a manner wholly within the concepts of good unionism, but contrary to Willis Meeks' desires, reasons were contrived to place severe and undue pressure on each of these individuals. Not only was the fine so excessive in amount in relationship to prior fines as to bear no fair relationship to the legitimate purposes to be served, but the threatened loss of membership could result in economic strangula- tions. The Supreme Court has made it clear in N.L.R.B. v. Boeing Co., 412 U.S. 67 (1973), that reasonableness of the fine is not the criteria for a violation of Section 8(b)(1)(A) of the Act. This admoni- tion I have studiously observed, but the severity of the fine-particularly as it relates to past practice-may be considered as part of the total picture in ascertaining the reason or purpose for the fine. In Local 138, International Union of Operating Engineers (Charles S. Skura), 148 NLRB 679, the Board makes it crystally clear that it is the 99 reason for the fine rather than the severity which makes the action of the union unlawful. In this instance, I am convinced from all the evidence that Respondent's reason for the fine was in furtherance of its illegal course of conduct (enmeshing a neutral employer in a quarrel not his own) and therefore violative of Section 8(b)(1)(A). In the Boeing decision, supra, the Court said at 73: The underlying basis for the holding of Allis- Chalmers . . . was not that reasonable fines were noncoercive under the language of Section 8(b)(l)(A) of the Act, but was instead that those provisions were not intended by Congress to apply to the imposition by the union of fines not affecting the employer-employee relationship and not otherwise prohibited by the Act. The fines in this dispute were for the purpose of affecting the employer-employee relationship and were in further- ance of a course of conduct on the part of the Respondent that is proscribed by the Act. Respondent has argued that the complaint should be dismissed because the union members involved herein have not exhausted available internal union procedures. This argument is misplaced and is not applicable to government proceedings in an unfair labor practice case. The Board said in the Skura case, supra: "While the validity of rules requiring exhaustion of internal union remedies has generally been recognized by the courts, the effect of such rules is to create a defense which may be utilized by a labor organization in an action brought against it by a member. The rule is enforced in appropriate circumstances by the tribunal, by requiring that the complaining member exhaust his internal remedies before the tribunal will consider the merits of the case." (The footnote then cited Detroy v. American Guild of Variety Artist, 286 F.2d 75 (C.A. 2), cert. denied 366 U.S. 929). Denying the Respondent Union's contentions, which were identical to those made herein, the Board proceeded to find an 8(b)(1)(A) violation of the Act. Respondent's argument that there were no grievances pending or in process between Respondent and Fisher, and thus there can be no violation of Section 8(bxl)(B), misconstrues the reach of the particular section. The purpose of Section 8(b)(1)(B) is to permit the employer the unfettered choice of his supervisors who have the authority to handle grievances, those management representatives who under normal circumstances would be expected to present to the rank-and-file employees the viewpoint of management when participating in the solution of employ- ee-employer problems. It is not necessary that an actual grievance be pending. In Oakland Mailers 14 the Board held illegal, union actions which "were designed to change the [employer's] representatives from persons representing the viewpoint of management to persons responsive or subservient to [the union's] will." In reaching the conclu- sion that the union's imposition of discipline on supervisors because of the manner in which they interpreted and applied the collective-bargaining agreement violated Sec- tion 8(b)(1)(B), the Board noted; 14 San Francisco-Oakland Mailers' Union No. 18 (Northwest Publications, Inc.), 172 NLRB 2173. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In enacting Section 8(b)(I)(B) Congress sought to prevent the very evil involved herein-union interfer- ence with an employer's control over its own represent- atives. That [the union] may have sought the substitu- tion of attitudes rather than persons, and may have exerted its pressures upon the [employer] by indirect rather than direct means, cannot alter the ultimate fact that pressure was exerted here for the purpose of interfering with the [employer's] control over its representatives. Realistically, the employer would have to replace its foreman or face de facto nonrepresenta- tion by them. The District of Columbia Circuit Court of Appeals while disagreeing with the Board's holding in two recent cases where the Respondent Unions had been found in violation of Section 8(b)(1)(B) because of fining union member- supervisors who performed rank-and-file work during a strike period nevertheless went on to say, "Thus, there is unanimous agreement on this court that Section 8(b)(1)(B) prohibits union discipline of supervisory personnel for acts performed by them in the course of their supervisory and managerial duties." 15 There was never a contention made, nor would the evidence have supported such an argument, that the supervisors were actually performing struck work. As has been heretofore indicated, the real purpose of the Union's conduct was to force or bring about the resigna- tion of Fisher's supervisory personnel.16 B. Summary Summarizing the above comments relating to Respon- dent's contentions and my analysis of the applicable law, I am of the opinion that Respondent has violated Section 8(b)(l)(A) of the Act by fining employees Swift and Carlson because the real purpose or real reason for these fines was not the enforcement of internal union procedures relating to the retention of membership therein, but was in furtherance of an illegal course of conduct promoted and fostered by its business agent,Willis Meeks, which conduct restrained and coerced union members in the exercise of their Section 7 rights. Respondent's fining of Pickard and Moore I find to be a violation of Section 8(b)(1)(B). Respondent's course of conduct in refusing to refer carpenters to the Fisher job and in fining members who insisted upon their right to perform services for Fisher, with whom Respondent had no labor dispute, amounted to coercion, restraint, inducement, and encouragement of individuals employed by a person engaged in commerce to strike, or to refuse to perform services, with an object of forcing or requiring that person to cease doing business 15 International Brotherhood of Electrical Workers, AFL-CIO, and Local 134 v. N L R B., 71 LC § 13,892, and International Brotherhood of Electrical Workers, Locals 641, 622, 759, 820, and 1263 v N.L.R B, 487 F.2d 1143, both cases decided June 29, 1973 by the District of Columbia Circuit Court of Appeals, en bane Cf N L R B v. Local 2150, International Brotherhood of Electrical Workers, (Wisconsin Electric Power Co), 486 F 2d 602 (C A 7, 1973), wherein the Board was affirmed. 16 The evidence seems clear that each of the fined individuals, Pickard, Swift, Carlson, and Moore, were supervisors within the meaning of Section 2(11) of the Act. However, the evidence is not crystally clear as to the authority of Swift and Carlson to adjust grievances at the time the fines with another person, which conduct I find to be in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of the employers described in section I, above, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found Respondent to have engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 2. David M. Fisher Construction Company is an employer within the meaning of Section 2(2) of the Act. The David M. Fisher Construction Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The J. E. Acoustics Corporation is an employer within the meaning of Section 2(2) of the Act. J. E. Acoustics Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4. Supervisors George Pickard and Thomas Moore are, each of them is, and at all times material have been, supervisors within the meaning of Section 2(11) of the Act and are representatives of the employer for the purposes, among others, of adjusting grievances within the meaning of Section 8(b)(1)(B) of the Act. 5. By fining the aforementioned supervisors and by threatening them with loss of union membership, Respon- dent restrained and coerced the employer in the selection and retention of its representatives for the purpose of collective bargaining or the adjustment of grievances, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 6. By fining and by threatening the loss of membership unless said fines were paid the Respondent restrained and were assessed against each of these individuals Pickard was at all times the superintendent of the Fisher job and Moore was at all times a supervisor trainee who very shortly became the superintendent of a construction job in Trinidad, Colorado. The 8( b)(1)(B) violations found herein, therefore, are confined to the conduct of Respondent as it was directed toward Pickard and Moore. The 8(b)(1)(A) violations found herein are based upon the conduct of the Respondent as it was directed toward Swift and Carlson whose status as lower-level supervisors was not apt to involve them in the solution of employer-employee grievances . Within the craft type unions, this is not an uncommon occurrence and their status is more nearly akin to that of a leadman rather than a true supervisor CARPENTERS & JOINERS, LOCAL 1620 coerced Charles Carlson and Cecil Swift in the exercise of rights guaranteed in Section 7 of the Act, and thereby violated Section 8(b)(1)(A) of the Act. 7. By fining members Pickard, Carlson, Swift, and Moore and by threatening loss of membership to these individuals unless said fines were paid within a specified period of time, Respondent has induced or encouraged individuals employed by a person engaged in commerce or in an industry affecting commerce to engage in, a strike or refusal to perform services; and by coercing or restraining a person engaged in commerce or in an industry affecting commerce with an object of forcing or requiring said person, Fisher Construction Company, to cease doing business with another person, J. E. Acoustics, Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERI7 Respondent, Carpenters and Joiners of America, Local 1620, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Engaging in or inducing or encouraging any individual employed by Fisher Construction Company, or by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment, to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to refuse to perform any other services where an object thereof is to force or require Fisher Construction Company, or any other person, to cease using, handling, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with J. E. Acoustics Corporation. (b) Threats, coercion, or restraint directed toward the employees of Fisher Construction Company, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or to require Fisher Construction Company, or any other person, to cease using, handling, or otherwise dealing in the products or services made available by J. E. Acoustics Corporation, or to cease doing business with that business enterprise. (c) Fining members and threatening loss of membership unless said fines are paid within a specified period of time because said members persist in their lawful right to 11 In the event no exceptions are filed as provided in Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, of 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 101 continue working for an employer with whom the Union has no labor dispute. (d) Fining member supervisors and threatening loss of union membership unless said fines are paid within a specified period of time because the supervisors have persisted in their right to render services for an employer with whom the Union has no labor dispute. (e) In any like or related manner restraining or coercing its members in their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withdraw and rescind the fines levied against George Pickard, Charles Carlson, Cecil Swift, and Thomas Moore. (b) Correct all pertinent records relating to the aforesaid fines and threatened loss of membership by expunging all references thereto from the Respondent's records; advise the International Union of Carpenters and Joiners of America of its action. (c) Notify George Pickard, Charles Carlson, Cecil Swift, and Thomas Moore, in writing, that the fines against them have been rescinded and that all entries including any communications to the International Union, have been expunged from the records of the Union. (d) Following receipt of the attached notice marked "Appendix," read it in a loud and clear voice at two successive regular meetings in order to familarize the members with the contents thereof. (e) Post in conspicuous places at its offices and meeting halls and other places where notices to its members are customarily posted, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 27, shall, after being duly signed by an authorized representative of Carpenters and Joiners of America, Local 1620, be posted 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. (f) Sign and mail sufficient copies of the said notice to the Regional Director for the 27th Region for posting by Fisher Construction Company and J. E. Acoustics, these companies being willing, at all locations where notices to employees are customarily posted. (g) Notify the Regional Director for the 27th Region, in writing, within 20 days from the receipt of this Decision and recommended Order as to what steps Respondent has taken to comply herewith. To the extent that the allegations of the complaint have not been found to constitute violations of the Act, it is recommended that they be dismissed. 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."