Intl. Union of Operating Engineers, Local 450

INTL. UNION OF OPERATING ENGINEERS, LOCAL 450 International Union of Operating Engineers, Local Union No. 450, AFL-CIO and Schneider Con- struction Company. Case 23-CB-1352 March 7, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 15, 1973, and November 14, 1973, Administrative Law Judge Sydney S. Asher issued the attached Decision and Supplemental Decision, respectively, in this proceeding. Thereafter, Respon- dent filed exceptions and a supporting brief, and the Charging Party filed a brief in answer to Respon- dent'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 his 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, International Union of Operating Engineers, Local No. 450, AFL-CIO, Houston, Texas, its officers, agents and representa- tives, shall take the action set forth in the said recommended Order. 1 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. DECISION SYDNEY S. ASHER, Administrative Law Judge: On November 2, 1972, Schneider Construction Company, Houston, Texas, herein called the Company, filed charges against International Union of Operating Engineers, Local No. 450, Houston, Texas, herein called the Respondent. Based on these charges the General Counsel, on January 10, 1972, issued a complaint alleging that on or about i The Respondent's admission in this respect was made at a preheanng conference. Through inadvertence this admission does not appear in the record. Nevertheless, as the admission was made in my presence. I deem it just as effective as if it had been made on the record. 463 September 28, 1972, the Respondent fined B. F. Simmons, a foreman, because he continued to work for the Company during a strike by members of the Respondent on March 8, 1972. It is alleged that this conduct violated Section 8(b)(1)(B) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq. ), herein called the Act. The Respondent filed an answer denying that B. F. Simmons had been a foreman on March 8, 1972, admitting that Simmons had been fined by the Respondent, denying that Simmons had been fined because he continued to work for the Company during the strike of the Respon- dent's members, and denying the commission of any unfair labor practices. Upon due notice, a hearing was held before me on March 6, 1973, at Houston, Texas. All parties were represented and participated fully in the hearing. After the close of the hearing, all parties filed briefs, which have been carefully considered. Upon the entire record, and from my observations of the witnesses, I make the following: FINDINGS OF FACT A. Preliminary Matters The complaint alleges, the Respondent admits,' and it is found that the Company is, and at all material times has been, a Texas corporation with its principal office and place of business in Houston, Texas. The Company is a general contractor for commercial construction. During the 12 months preceding January 10, 1973, the Company purchased goods valued at more than $50,000, which were shipped directly to its jobsite in Houston, Texas, from sources outside the State of Texas. It is therefore found that the Company is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards. The complaint further alleges, and the Respondent in its answer admits, that the Respondent is, and at all material times has been, a labor organization within the meaning of the Act. B. The Setting At all material times the Company was engaged, as general contractor, in the construction of buildings at 1233 West Loop South, 1333 West Loop South, and 1433 West Loop South, in Houston, Texas. The general superintend- ent of the project was Richard C. Rochester. Operating engineers were among the workers employed on this project. The Company and the Respondent had entered into a collective-bargaining agreement which, at all material times, governed the working conditions of the operating engineers. Certain pertinent provisions of this contract will be set forth hereafter. C. Assumed Facts2 On March 7, 1972, Rochester discharged a rank-and-file 2 1 have recommended below that the Board should not decide this matter on the merits, but rather should defer to the grievance-arbitration machinery set up by the parties themselves. The ultimate findings of fact, therefore, should be left to the arbitrator. In this posture of the case, I have (Continued) 209 NLRB No. 71 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operating engineer, M. L. ("Shorty") Jackson, a member of the Respondent. Jackson reported his discharge to Robert L. ("Sonny") Johnson, the Respondent's business agent. Johnson protested the discharge to Rochester that same day. No satisfactory adjustment of the dispute was reached that day. That night Rochester, in a telephone conversa- tion, reduced Marvin Lamb, operating engineer foreman on the project, to a rank-and-file employee. On the following day, March 8,3 at the start of the workday, a number of operating engineers employed by the Company (including the Respondent's steward on the project) went on strike 4 B. F. Simmons, a rank-and-file operating engineer employed on the project and a member of the Respondent, did not join the strikers. Early in the workday Rochester appointed Simmons operating engineer foreman on the project, in Lamb's place. Approximately a half hour after he became foreman, Simmons had a conversation on the jobsite with M. F. McNamara, a rank- and-file operating engineer on the project and a member of the Respondent. Shortly after this conversation McNamar- a went to the Respondent's union hall and signed and filed charges against Simmons which read, in pertinent part: 1, M. F. McNamara, Register No. 875476, wish to file charges on Brother B. F. Simmons. Register No. 1246211, under Article 23, Subdivision 7, Section e, for working without a steward and slandering his Brother members on the Schneider Construction job, 1333 W. Loop South, Houston, Texas, on this date.' Simmons was notified of these charges, was tried on these charges before the Respondent's membership, found guilty as charged, and fined. He appealed the finding. The appeal is pending and Simmons as yet has not paid the fine. At all material times he has remained a member of the Respondent in good standing. D. Contentions of the Parties The parties appear to espouse divergent views of the facts. The General Counsel, supported by the Company, maintains that the facts are as set forth above. He also seems to deny that Simmons was, in fact, guilty of any slander.6 From this he argues that Simmons was punished by the Respondent for refusing to strike on March 8, when he was already a supervisor. The Respondent, conversely, contends that Simmons was not promoted to supervisor until May 9, after he had refused to strike and that therefore the Respondent had a right to discipline him as a assumed a set of facts most favorable to the General Counsel 's case and have-without deciding credibility of specific witnesses-set forth the versions elicited by the General Counsel, even where contradicted by the versions elicited by the Respondent 3 All dates hereafter refer to the year 1972. unless otherwise indicated. 4 There is apparently no contention that the Respondent was responsible for, or called, this strike Nor is the legality of the strike in issue. 5 Article XXIII. subdiv. 7, Sec. (e) of the constitution of the Respon- dent's international reads, in pertinent part Any officer or member of a Local Union who becomes an habitual drunkard , who wrongs a fellow member or defrauds him, who commits an offense discreditable to the International Union or its subdivisions, who creates dissension among the members , who destroys the interest and harmony of the Local Union. who seeks to dissolve any Local Union or separate it from the general organisation ; who wilfully rank-and-file employee. In any event, the Respondent seems to take the position that he was fined in substantial part for slandering his fellow members, and that the fact that he worked during a strike was merely incidental. The parties differ as to another aspect of this matter. The Respondent argues in its brief that "the questions raised by the complaint are all resolvable under the grievance and arbitration machinery of the collective-bargaining agree- ment." These provisions, in pertinent part, are as follows: ARTICLE V Grievance Procedure It is agreed that all disputes, other than those pertaining to jurisdictional disputes, that may arise on any job covered by this Agreement shall be handled in the following manner without any person permitting or causing the grievance to cause a work stoppage or interfere in any way with the progress and prosecution of the work .. . (a) A Joint Board of Interpretation composed of two (2) members from the Union and two (2) members appointed by the representatives of the Contractors shall be named within twenty-four (24) hours after a registered letter or telegram requesting the establish- ment of such a Board has been received by either party from the other, and to whom such dispute shall be referred within twenty-four (24) hours after the members of the Board are named. The Board shall make its decision within ninety-six (96) hours after it is named, and the decision of the Board shall be final and binding on all parties to the dispute. (b) In the event of the failure of the Joint Board of Interpretation to arrive at a solution within the time limits set forth above, the Board, or any member of the Board, shall immediately request the Federal Media- tion and Conciliation Service to submit a list of five (5) arbitrators to the Board. Within forty-eight (48) hours after receipt of these five (5) names by the Board, the Union representatives on the Board shall strike two (2) names and the Contractor representatives on the Board shall strike two (2) names, and the person whose name then remains shall be immediately asked to serve as Arbitrator in the dispute. The decision of the Arbitrator shall be final and binding on all parties to the dispute, slanders or libels an officer of [sic ] member of the Organization, who violates the trade rules of the locality in which he is working. who fraudulently receives, misapplies, converts or embezzles the funds of any subdivision of the International Union of [sic ] the monies of any member entrusted to him, who violates his obligation or any section of the Constitution, Rules, Edicts and Ritual of the International Union; who divulges the password to anyone except the officer authorized to receive the same , who is guilty of insubordination ; or who refuses to acknowledge or perform the lawful command of those authorized within the International Union to issue the same, may be disciplined or, upon trial therefor and conviction thereof, be fined, suspended or expelled from his Local Union 6 Simmons admitted calling McNamara a "snowbird," but nothing more On the other hand. McNamara testified at Simmon 's union trial that Simmons had called the other union members "a bunch of bastards " INTL. UNION OF OPERATING ENGINEERS, LOCAL 450 and his fees and expenses shall be borne equally by the Contractors and the Union. (c) In the event of the failure of either party to name two (2) members to the Board, as required in paragraph (a) above, or to strike two names from the list submitted by the Federal Mediation & Conciliation Service, as required in paragraph (b) above, an Arbitrator to decide the dispute shall, on petition of either party, be appointed by the District Court of the United States for the Southern District of Texas, Houston Division, whose decision shall be final and binding on all parties to the dispute. An addendum entitled "Working Conditions" contains the following provisions: Section 15. - Foreman, Assistant and Engineer Ratio (a) When as many as four (4) Operating Engineers are employed on any one (1) job. one (1) shall be a Foreman .. . (d) It shall be understood that the Foreman shall not be under the supervision of anyone except the project manager and field superintendent. * (f) The Foreman . . . shall direct the work of the men under him in the performance of their routine duties .. . In support of this contention the Respondent cites Houston Mailers Union No. 36 (Houston Chronicle Publishing Company), 199 NLRB 804. The General Counsel and the Company argue against deferral and urge the Board to decide the case on the merits. The General Counsel contends that Houston Mailers is distinguishable. The Company in its brief refers to the Respondent's "afterthought argument" and resists submission of this dispute to arbitral proceedings. E. Conclusions In Houston Mailers, as here, the collective-bargaining contract "contained a detailed grievance and arbitration procedure." In Houston Mailers, as here, "the contract state[s] that all work is under the foreman's direction." In Houston Mailers the contract included this specific prohi- bition: "The Union or its representatives shall not discipline the foreman for carrying out the instructions of the [employer]." A majority of the Board decided to defer the matter to the grievance-arbitration machinery which the parties themselves had established. The General Counsel and the Company point out, however, that the instant contract does not contain a specific prohibition of union discipline of foremen. The Respondent counters by r Hercules Motor Corporation, 136 NLRB 1648 , Collyer Insulated Wire, A Gulf and Western Si stems Co, 192 NLRB 837; Houston Mailers Union No 36 (Houston Chronicle Publishing Company), 199 NLRB 804, and Baltimore Typographical Union No. I?, International Typographical Union, AFL-CIO 465 contending that the instant contract, while not prohibiting such action in precise language, does so by inference. The issue is whether the wording of the instant contract ("the Foreman shall not be under the supervision of anyone except the project manager and field superintend- ent") can reasonably be read as a commitment by the Respondent to refrain from punishing a foreman who follows his superior's orders. In my opinion, this is an arguable interpretation. Contract interpretation is a func- tion which arbitrators normally perform. And in the light of the sweeping scope of the grievance-arbitration clause in the instant contract, I deem it appropriate for an arbitrator to decide herein whether the quoted clause here is the substantial equivalent of the clause in the Houston Mailers contract and, if so, whether the Respondent's fining of Simmons violated that contract provision. In sum, I consider this the kind of dispute which should be determined under the contract. I therefore recommend that the Board defer this case to the arbitral process provided for by the parties themselves.? Upon the basis of the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Schneider Construction Company is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local Union No. 450, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. At all material times there has been in full force and effect a collective-bargaining agreement between the Respondent and the Company which commits the parties to settle all disputes between them through the grievance and arbitration procedure contained therein. 4. It is appropriate and proper that the issues in this case, as set forth in the pleadings, be resolved through the grievance and arbitration machinery contained in the above-described contract. THE REMEDY The Respondent's contention that the Board defer to arbitration has been found meritorious. I therefore recommend that the complaint be dismissed. However, the Board should retain jurisdiction for the purposes of entertaining an appropriate and timely motion for further consideration upon a proper showing that (a) the dispute has not, with reasonable promptness after the issuance of a Board decision, either been resolved by amicable settle- ment in the grievance procedure or submitted to arbitra- tion, (b) the grievance or arbitration procedure has reached a result repugnant to the Act, or (c) the decision of the arbitrator is not wholly dispositive of the issues in this proceeding. (`The A S. Abel! Company), 201 NLRB 120. See also Deferral to Arbitration-Temperance or Abstinence ', remarks of Chairman Miller, N.L.R B., before Ga. Bar Assn, 87 Daily L. Rep.. D-l (May 4, 1973). 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of law, SUPPLEMENTAL FINDINGS OF FACT and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The complaint herein is dismissed in its entirety; provided, however, that jurisdiction of this proceeding is retained for the limited purpose indicated in the section of this Decision entitled "The Remedy." 9 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 SUPPLEMENTAL DECISION SYDNEY S. ASHER, Administrative Law Judge: On May 15, 1973, I issued my Decision in the above-entitled case, concluding that the Board should defer the matter to arbitration and that the complaint should be dismissed in its entirety. Thereafter the Company and the Respondent filed with the Board exceptions and supporting briefs, and the Company later filed a motion to reopen the record. On September 6, 1973, the Board issued its order reopening the record and directing that a further hearing be held before me "for the purpose of receiving evidence concerning the allegations of the complaint." The Regional Director was directed to arrange such further hearing and authorized to issue notice thereof. Accordingly, on September 19, 1973, the Regional Director issued a notice of hearing. Thereafter, on October 15, 1973, the parties filed with me joint motion to receive certain documentary evidence, close the record, and set a date for the filing of supplemental briefs. To this were attached two letters dated after the close of the hearing. The parties stipulated that these letters could be received in evidence. They further requested that no further hearing be held and that upon receipt of the letters referred to above the record in this case be closed. Accordingly, on October 15, 1973, I revoked the notice of hearing issued by the Regional Director on September 19, 1973, and notified all parties that no further hearing would be held. On October 16, 1973, in accordance with the joint request of all parties, the above-described letters were received in evidence, and as so augmented the record herein was closed. Thereafter, the Company and the Respondent filed supplemental briefs, which have been carefully considered.' From the entire record, and from my observation of the witnesses, I make the following: I In its brief the Respondent moves that I reconsider my ruling denying its motion to correct the transcript For reasons stated in my earlier ruling, the motion to reconsider is denied 2 The finding that this telephone conversation took place on the night of March 7 is based on Rochester's testimony. Lamb placed the event as having occurred on the afternoon of March 8. 1 credit Rochester's version as the more accurate 3 All dates hereafter refer to the year 1972, unless otherwise indicated. A. Sequence of Events On March 7, 1972, the Company discharged a rank-and- file operating engineer, M. L. ("Shorty") Jackson, a member of the Respondent. Jackson reported his discharge to Robert L. ("Sonny") Johnson, the Respondent's business agent. Johnson protested the discharge to Richard C. Rochester, the general superintendent of the project, that same day. No satisfactory adjustment of the dispute was reached that day. That night Rochester, in a telephone conversation, reduced Marvin Lamb, operating engineer foreman on the project, to a rank-and-file employee.2 On the following day, March 8,3 at the start of the workday, a number of operating engineers employed by the Company (including the Respondent's steward on the project) went on strike.4 B. F. Simmons, a member of the Respondent, and a rank-and-file operating engineer on the project, did not join the strikers. Early in the workday Rochester appointed Simmons operating engineer foreman on the project, in Lamb's stead, and placed the words "Operating Engineers' Foreman" on Simmons' hat. Ap- proximately half an hour after he became foreman, Simmons, wearing the hat bearing that inscription, had a conversation on the jobsite with M. F. McNamara, a rank- -and-file operating engineer on the project and a member of the Respondent.5 Shortly after this conversation McNa- mara stopped working, leaving Simmons as the only operating engineer not on strike. McNamara then went to the Respondent's union hall and filed charges against Simmons which read, in pertinent part: I, M. F. McNamara, Register No. 875476, wish to file charges on Brother B. F. Simmons, Register No. 1246211, under Article 23, Subdivision 7, Section e, for working without a steward and slandering his Brother members on the Schneider Construction job, 1333 W. Loop South, Houston, Texas, on this dates Simmons (who had operated the rig at the jobsite the rest of the day) was later notified of these charges, was tried on these charges before the Respondent's membership, found guilty as charged, and fined $600 with $300 being suspended. The Respondent notified Simmons that "The fine of $300 must be paid in full before we can accept any further dues." Simmons appealed the finding to the Respondent's International. After the close of the hearing herein, the International's general executive board "sus- tained the action of Local 450 in finding Brother Simmons guilty of violating its working rules; set aside that protion [sic ] of the verdict which related to alleged slander of fellow' members; and reduced the penalty to a fine of $100." Thereafter Simmons was notified that the Respon- ' There is no contention that the Respondent was responsible for, or called, this strike. Nor is the legality of the strike in issue S Simmons admitted that he referred to McNamara as a "snowbird" but denied McNamara's accusation that he (Simmons) called McNamara a "snowbird son of a bitch" or cursed the Respondent 's officers. I deem it unnecessary to resolve this conflict. 8 [See In. 5 of ongmal Decision.] INTL.. UNION OF OPERATING ENGINEERS , LOCAL 450 dent would refuse to accept further dues from him "until your fine is paid in full." B. The Status of Simmons The General Counsel and the Company contend that Simmons was already a supervisor at the time he and McNamara conferred on the jobsite on March 8. They point to the testimony of Simmons and Rochester that, about a half-hour previous to this Simmons-McNamara conversation, Rochester had informed Simmons of his promotion and given him lettering on his hat indicating his foreman's rank. Simmons further testified that he was wearing this hat during his talk that day with McNamara. McNamara's contrary testimony is not credited. In its supplemental brief, the Respondent argues: the Company could have produced records which would have shed much light on the matter. If the Company had produced the records of its timekeeper or the timekeeper himself, there could be a conclusive showing of exactly when Simmons became a foreman .... The Company produced no such evidence to show at what date Simmons' promotion became effective. This leads the Union to the assumption that as of March 8 Simmons was still carried by the timekeeper as a rank and file employee. This argument lacks ment.7 The records are not necessarily conclusive to contradict the testimony of Rochester and Simmons because, in view of the strike, the timekeeper may not have been immediately advised as to the change of status of Lamb and Simmons. Moreover, the issue here is not when the timekeeper recorded foreman's pay for Simmons, but rather when Simmons' new authority as foreman became effective. I conclude that it became effective on the morning of March 8, before Simmons talked to McNamara. The Respondent further defends on the ground that, because "there was no one for him to supervise" that day, Simmons could not have "performed any duties of a supervisor on March 8." 1 do not agree. The test of supervisory status is not whether the necessary authority has actually been exercised, but merely whether it has been conferred. Rochester testified: Q. Could Mr. Simmons in his capacity as job foreman hire operating engineers? T The Respondent produced check stubs of Lamb showing that his rate of pay was $6 63 for the period ending March 8 but dropped to $6.25 for the period ending March 15, the next pay period The Respondent in its supplemental brief states "The Union produced the previous foreman's pay checks for the period in question showing that his rate of pay on March 8 was that of a foreman " I do not agree that the check stubs show this indeed, as Lamb did not work at all on March 8. what pay he might have received if he had worked that day is hypothetical. 8 Toledo Locals Not 15-P and 272, of the Lithographers and Photoengrav- ers International Union, AFL-CIO (The Toledo Blade Company, Inc), 175 NLRB 1072; Dallas .hailers Union, Local No 143 (Dow Jones Company, Inc), 181 NLRB 286, Meat Cutters Union Local 81 (Safeway Stores, Inc.), 185 NLRB 884; Passaic, Morris, Sussex & Bergen Counties Newspaper Printing Pressmen's Union No. 60 (Passaic Daily News), 190 NLRB 268; San Francisco Typographical Union No 21, International Typographical Union, AFL-CIO (California Newspapers, Inc), 192 NLRB 523. New York Typographical Union No. 6, International Typographical Union, AFL-CIO 467 A. Yes. Q. Could he also, as job foreman, discharge operating engineers? A. Yes, sir. Q. Do you know if Mr. Simmons had the authority to discuss grievances? A. No, sir, as far as I remember, we didn't have any grievances to amount to anything. Q. I am not asking you whether you had them. I am asking you if he could discuss grievances. A. Yes, sir. Q. He had that authority? A. That's right. JUDGE ASHER: I take it all these questions about his having that authority is after he was appointed? MR. ERwIN: Yes, sir, after he was appointed supervisor, job foreman. On the record before me I find that on the morning of March 8 Rochester effectively cloaked Simmons with supervisory authority described in Section 2(11) of the Act, and that Simmons thereby became a supervisor within the meaning of that Section. C. The Reason for the Fine The Respondent also defends on the ground that it "did not violate the Act by disciplining him [Simmons] for the offense for which he was charged," because "in order for a union to violate Section 8(b)(1)(B) of the Act the reason for which the supervisor is fined must relate to his duties as a supervisor," and further that the "offenses charged against Simmons had nothing to do with his status as a supervisor ... [they] were offenses which could have been commit- ted by any union member with the same import." The fact remains, however, that Simmons was disciplined (at least in substantial part) "for working without a steward" at a time when he was a supervisor. This is equivalent to saying that he was fined because he, a supervisor, worked during a strike. It is well established that such conduct by a union constitutes interference with the employer's right to select his representatives for the purposes of collective bargaining or the adjustment of grievances and thereby violates Section 8(b)(1)(B) of the Act.8 Here, the Respondent's pressure on Simmons, the Company's supervisor, tended to inhibit him and impair his effectiveness as a loyal supervisor in maintaining the Company's interests. I conclude that the Respondent's actions toward Simmons- (Dally Racing Form), 206 NLRB No 83, International Brotherhood of Electrical Workers, AFL-CIO (Illinois Bell Telephone Company), 192 NLRB 85; and International Brotherhood of Electrical Workers System Council U-4 (Florida Power & Light Company), 193 NLRB 30. 1 am aware that the latter two decisions were refused enforcement by the Court of Appeals for the District of Columbia sitting en lane, 83 LRRM 2582. However, I am required "to apply established Board precedent which the Board or the Supreme Court has not reversed." Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768. 772-773. Novak Logging Company, 119 NLRB 1573, 1575-56; and Scherrer and Davisson Logging Company, 119 NLRB 1587, 1589 i therefore follow the Board's decisions in the lllinots Bell Telephone and Florida Power & Light cases rather than the decision of the court which refused to enforce them. Moreover, the Tenth Circuit contrary to the District Circuit has agreed with the Board in this respect. N L R B v New Mexico District Council of Carpenters and loinersofAmericaA S HORNER, Inc, 454 F 2d 1116 (CA. 10, 1972) 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -both the fine itself and the later refusal to accept dues until the fine was paid-violated Section 8(b)(1)(B) of the Act. On the basis of the foregoing findings of fact and the entire record herein, I make the following: SUPPLEMENTAL CONCLUSIONS OF LAW Delete Conclusions of Law 3 and 4 of my original Decision and substitute therefor the following: 3. B. F. Simmons has been, since the morning of March 8, 1972, a supervisor of the Company, within the meaning of Section 2(11) of the Act. 4. By fining B. F. Simmons and refusing to accept his dues until the fine has been paid, thereby restraining and coercing the Company in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 5. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent violated Section 8(b)(1)(B) of the Act, it will be recommended that the Respondent cease and desist from restraining or coercing the Company in the manner found herein. Additionally, the coercive effect herein found can be removed only if the Respondent is required to rescind its fine against B. F. Simmons, to expunge from its records all reference thereto, and to make Simmons whole for any loss he may have suffered by reason of the Respondent's above-described action .9 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER io International Union of Operating Engineers, Local Union No. 450, AFL-CIO, Houston , Texas, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing Schneider Construction Company in its selection of representatives for the purposes of collective bargaining or the adjustment of grievances. (b) Attempting to enforce or collect the fine levied on Supervisor B. F. Simmons , or otherwise disciplining him, because he performed work for the above -named Compa- ny on March 8, 1972. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Rescind the fine it levied against Supervisor B. F. Simmons and its notification that it would not accept dues from him until the fine has been paid , and expunge from its records all references thereto. (b) Make Supervisor B. F. Simmons whole for any loss he may have suffered by reason of the fine levied against him. (c) Notify B. F. Simmons and Schneider Construction Company, in writing, that all references to the fine levied against B. F. Simmons have been expunged from the Respondent's records. (d) Post at its business offices and union halls in Houston, Texas, copies of the attached notice marked "Appendix." i i Copies of such notice, on forms provided by the Regional Director for Region 23, after being signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to members are customarily displayed, and shall be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Cause copies of such notice, to be furnished as described above, to be signed by the Respondent's representative and promptly returned to the said Regional Director for posting by Schneider Construction Company, should said Company be willing to do so. (f) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 9 In its supplemental brief the Company, pointing out that the Respondent has refused to accept dues from Simmons until the illegal fine has been paid, requests that the remedy include "the full reinstatement of Simmons' standing in the Union ." I believe the Order hereafter recommend- ed is sufficient to attain that result IU See In. 8 of original decision ii 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 WE WILL NOT restrain or coerce Schneider Construc- tion Company in its selection of representatives for the purposes of collective bargaining or the adjustment of grievances. WE WILL NOT attempt to enforce or collect the fine levied on Supervisor B. F. Simmons, or otherwise discipline him, because he performed work for the above-named company on March 8, 1972. WE WILL rescind the fine levied against Supervisor B. F. Simmons and our notification that WE WILL not accept dues from him until the fine is paid, and WILL make him whole for any loss he may have suffered by reason of such actions and will remove from our records all references to such fine. INTL. UNION OF OPERATING ENGINEERS, LOCAL 450 469 Dated By INTERNATIONAL UNION OF OPERATING ENGINEERS, LocAL UNION No. 450, AFL-CIO (Labor Organization) (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 compliance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296.