Wisconsin River Valley District Council

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO and rSkippy Enterprises, Inc. Case 30-CB-626 June 7, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 26, 1974, Administrative Law Judge Arthur Leff issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief to the 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 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, Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Wausau, Wisconsin, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE ARTHUR LEFF, Administrative Law Judge: Upon a charge filed August 20, 1973, by Skippy Enterprises, Inc., the General Counsel of the National Labor Relations Board, by the Acting Regional Director of Region 30, issued a complaint, dated November 14, 1973, against the labor organization named above, Respondent herein, alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) and Section 2(6) and (7) of the National Labor Relations Act by conduct hereinafter specified. Respondent filed an answer in which it denied the commission of the alleged unfair labor practices and asserted by way of an affirma- tive defense that the complaint's alleged unfair labor practices are time-barred by the limitations proviso of Section 10(b) of the Act. A hearing was held at Wisconsin Rapids, Wisconsin, on January 3, 1974. Briefs were filed by the General Counsel, by Respondent, and by the Charging Party on January 30, 1974. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS 1. COMMERCE Skippy Enterprises, Inc. (Employer), a Wisconsin corpo- ration with its principal office located at Stevens Point, Wisconsin, is engaged in the building and construction industry. During 1973 , a representative period, the Em- ployer's indirect purchases of goods and materials emanat- ing outside the State of Wisconsin were of a value in excess of $50,000. Respondent admits, and it is found, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent, Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues This case is concerned with an alleged 8(b)(1)(B) violation. More specifically, Respondent is charged with violating that section of the Act by instituting internal union disciplinary proceedings against Raymond Schulist for failing to comply with a "no contract-no work" order of Respondent, by levying a fine of $1,300 against Schulist for that union offense, and by thereafter instituting a state court action against Schulist to collect that fine. Schulist is alleged at the times material herein to have been employed by the Employer as a construction superintendent. Res- pondent admits taking the disciplinary action stated in the complaint. It disputes, however, that Schulist was em- ployed in a superintendent's capacity and was a represent- ative of the Employer within the meaning of Section 8(b)(1)(A). It further asserts that, even if Schulist did occupy a supervisory position, it cannot be held to have violated Section 8(b)(1)(B), both because it had no knowledge of Schulist's supervisory status at the time the disciplinary action was taken, and because the union offense for which Schulist was fined was related solely to work he performed as a carpenter and had nothing whatever to do with his performance of supervisory duties. In addition, Respondent pleads affirmatively that the Board "lacks jurisdiction" over the alleged unfair labor practices because the fine was levied on September 30, 1972, and the charge herein was not filed until August 20, 1973, more than 6 months later. The complaint anticipates the 10(b) defense, alleging as a response thereto that Schulist was not made aware of the fine until June 22, 1973, when the state court collection action was filed. It is the General Counsel's position that the 10(b) limitations period did not begin to run until knowledge of the union disciplinary action was brought home to Schulist. 211 NLRB No. 40 WISCONSIN RIVER VALLEY DISTRICT COUNCIL 223 B. Chronology of Events For some years prior to 1972, the Employer was either a party to, or had agreed to be bound by, collective- bargaining agreements negotiated by Respondent with area building contractors covering their carpenter employ- ees. The last contract to which the Employer had agreed to be bound was for a term that expired in April 1971. Thereafter, apparently in January 1972, a new contract was negotiated by Respondent with a negotiating committee for area contractors, but a substantial number of contrac- tors, the Employer among them, who had previously been signatories to contracts with Respondent, refused to become parties to the newly negotiated agreement. As a result, the constituent locals of the Respondent Council adopted a "no contract-no work" resolution, and, on February 21, 1972, issued a notice to all their members prohibiting such members from performing work for any building contractor that did not have an executed collective-bargaining contract with Respondent. It is undisputed that Raymond Schulist, then a member of one of Respondent's constituent locals, was given notice of Respondent's "no contract-no work" order. At the time of the issuance of the "no contract-no work" order, Schulist was working for Respondent at a large construction project at Stevens Point, Wisconsin, known as the Madison View Apartments project. Although Schuhst was then an hourly rated employee who was being compensated at the regular scale for journeyman carpen- ters, it is the position of the General Counsel and the Charging Party, which I find in the subsection below to be supported, that Schulist had been vested with sufficiently substantial authority by the Employer to place him in the category of a supervisor within the meaning of the Act. It is not disputed by the General Counsel and the Charging Party, however, that in addition to his supervisory duties, Schulist, both before and after the "no contract-no work" order became effective, spent a substantial portion of his working time at the project performing manual work as a carpenter. When Schulist received notice of Respondent's "no contract-no work" order, he discussed the order with Chester Skippy, the Employer's president and sole owner. Skippy told Schulist that it was up to him (Schulist) to determine whether or not to comply with the order, that Schulist could do as he pleased, but that if Skippy were in Schulist's shoes and occupied a position as "superintend- ent" on the job he would continue to work. Schulist, acting on that advice, decided not to comply with the "no contract-no work" order and thereafter continued to perform his previous functions on the job, not only those of a supervisory nature, but those of a carpenter journeyman as well. Prior to the issuance of the "no contract-no work" order, Edwin F. Kiyek, Respondent's business representative, had visited the Madison View Apartments construction project on a number of occasions and had observed Schulist performing work at that project of a kind customarily performed by journeyman carpenters. After the effective date of the order, Kiyek again visited that project where he observed Schulist performing journeyman carpenter work in apparent disregard of that order. The Union had never been informed by either the Employer or Schulist that Schulist had been delegated supervisory responsibilities, and Kiyek, as appears from his credited testimony, had no independent knowledge of that fact. Kiyek assumed from the fact that the Employer continued to make contrib- utions for Schuhst in Respondent's health and welfare fund that Schulist, both before and after the "no contract-no work" order, remained in the category of a union member journeyman carpenter. On May 5, 1972, Kiyek filed a complaint with the Union that Schulist was violating Respondent's "no contract-no work" order by continuing to work for the Employer notwithstanding the Employer's failure to sign Respon- dent's current working agreement. Based on Kiyek's complaint, Respondent issued a summons for Schulist to appear before Respondent's executive board on May 26, 1972. It is not clear whether this summons was actually served on Schulist; Schulist testified that he could not recall receiving it, and Respondent offered no independent proof at the hearing to establish service of that summons. The record does clearly establish, however, and this is admitted by the General Counsel, that subsequently, on September 15, 1972, a further summons issued by Respon- dent was served on Schulist calling on him to appear before Respondent's trial committee to defend charges against him that he had violated Respondent's "no contract-no work" order. Schulist chose to ignore that summons and did not appear at the scheduled hearing before the trial committee. On September 30, 1972, a trial of Schulist was conducted by Respondent's trial commit- tee; Schulist was found guilty, as charged, of violating Respondent's "no contract-no work" order by performing work for the Employer while that order was in effect; and a fine of $1,300 was levied against him for that union offense. On or about June 22, 1973, Respondent instituted a lawsuit against Schulist in the Circuit Court of Portage County, Wisconsin, for the collection of the $1,300 fine. It is undisputed that no prior notice of the actual imposition of the fine had been given by Respondent to Schulist or the Employer, and that Schulist and the Employer learned of the fine for the first time when the summons and complaint was served on Schulist in the state court action. Shortly after the institution of the state court collection action, Schulist and Skippy in separate letters addressed to Respondent's attorney protested the disciplinary action taken by Respondent, asserting, inter alia, that Schulist had been employed as a supervisor and therefore was not properly subject to discipline by Respondent. As appears from Kiyek's testimony, this was the first notice given the Respondent that Schulist's position with the Employer was claimed to be a supervisory one. Counsel for Schulist, responding to the complaint, also asserted, in part, that the fine levied against Schulist was unlawful under the Act because he had been employed as a supervisor, and requested in effect that the state court collection action be withdrawn for that reason. In response, counsel for Respondent advised Schulist's counsel, under date of July 20, 1973, that "the position of the union is that [Schulist] was non-supervisory but that even if he were [a supervisor] the recent decisions in the 9th C.A. and the C.A.D.C. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorize the -imposed fines." Respondent declined to withdraw the state court action it instituted to collect the -fine.-On Aug et-2O, 1973, the Employer filed the 8(b)(l)(B) unfair labor practice charge giving rise to this proceeding. C. As to Sehulist's Supervisory Status 1. The testimony Respondent called no witnesses of its own on the issue of Schulist's supervisory status, and the evidence in the record relating to it is confined to testimony given by Schulist and by Chester Skippy, the Employer's president and sole owner. The following appears from their mutually corrobo- rated and uncontradicted testimony. Schulist has been in the Employer's employ since 1967. Prior to March 1971, his regular work duties had been those of a nonsupervisory journeyman carpenter, but he had on several occasions been entrusted by Skippy to run small jobs for the Employer. Richard Blenker had been employed by the Employer as its job superintendent and had supervised the Employer's larger jobs. In March 1971, the Employer began work on the Madison View Apartments construction project at Stevens Point, Wisconsin. This was the largest job the Employer had ever undertaken. That project, which was being erected at a total cost of $1.2 million, was spread over a large area, two city blocks long and one city block wide, and consisted of 14 buildings, including 13 apartment buildings containing from 14 to 20 apartments each. Under the contract awarded the Employer-at the price of $600,000-the Employer was to do the carpentry, masonry, and concrete work on the project and also perform the on- site duties of a general contractor. The Employer's part of the work required its use of carpenters, bricklayers, cement finishers, laborers, and an operating engineer. When work on the project began, Skippy assigned Blenker to the job as the Employer's project superintend- ent. About 2 weeks later, however, Blenker had a disagreement with Skippy and quit. Skippy then asked Schulist to take Blenker's,place as superintendent. Skippy told Schulist that he wanted Schulist primarily to run the carpentry end of the job, but that he also expected Schulist, with his (Skippy's) help, to act as job superintendent and assume full managerial responsibility over all aspects of the Employer's work on the project. Skippy explained that he did not know when other work would call him away from the project, and that he therefore wanted to place Schulist in a position of full command so that Schulist alone could run the job should Skippy's absence become necessary. Schulist's "promotion" to the station of "job superin- tendent" did not carry with it an immediate raise in pay. Skippy told Schulist that he intended eventually to put him on a salary, but that he was not in a financial position to do so at that time. Thereafter, at all times material herein, Schulist continued to work as an hourly rated employee, receiving the journeyman carpenter's rate of pay, the same as that of other journeyman carpenters on the job. This held true until some time in the fall of 1972, when Schulist, then serving as a job superintendent for the Employer on another work project, was first placed on a salary and also given a vehicle, the latter apparently regarded as a perquisite of superintendent status. The project had basically two construction stages: the roughing in stage and the finishing stage. The first stage consisted of the excavation, the laying of the foundation, and the laying out and construction of the framework and partitions of the buildings. That stage took from March 1971 to September 1971. During that stage, the Employer had 18 to 25 employees working on the project. The second stage consisted of all the other work required to make the buildings ready for occupancy. That stage started in September 1971 and was completed in May 1972. During the latter stage the Employer had a reduced complement of 8 to 10 employees working at the project. During the roughing in period, Skippy was personally present at the project site about 90 percent of the working time.' The employees engaged in the roughing in work were divided into two crews, simultaneously working on separate buildings. Schulist controlled the work of one of the crews; and Jim Guzman the work of the other.2 Schulist during this period spent about 90 percent of his time physically working with the tools of his trade, e.g., hammer and saw, performing layout and other work of a kind that is generally classified as journeymen carpenter work. During this period, Schulist also assigned work to employees on his crew, instructed them on layouts, inspected the work done by them, saw to it that improper work was corrected, attended along with Skippy confer- ences with the architect or owner when they came to the job, and made arrangements with representatives of other subcontractors on the job, such as the plumbing, heating, and electrical subcontractors, to have their work coordinat- ed with the roughing in work being performed by the Employer. During the finishing stage, Schulist was most often the only one present at the jobsite with authority to direct the work operations of the Employer's employees. Between October 1971 and January 1972, Skippy, who was by then involved with other jobs, was present at the Madison View Apartments worksite only about 30 or 40 percent of the time, and, from January 1972 to March of that year, when work was concluded, only about 10 percent of the time. During the latter period,3 Skippy usually came to the project site for about a half hour before the start of the workday, and on some days also stopped by briefly in the afternoon, to confer with Schulist about the progress being made and to find out whether Schulist needed any materials; there were some days when Skippy did not come to the project site at all. Skippy left the details of directing the work of the 8 or 10 men then on the job entirely to Schulist, who, without consulting Skippy, and based on his own judgment of what individual employees were most capable of doing, made the specific work assignments to I Skippy while on the jobsite spent much of has time personally handled the payroll, and did the estimating work . When he was engaged in performing work tasks, such as operating the bulldozing equipment, work at the office, which was about I day a week, Schulist directed the work unloading materials with the forklift, helping with the layout work, and of his crew. working along with the roughing in crews. 3 It was during this period that Schulist engaged in the conduct found by 2 Guzman also served as the Employer's material expediter on the job, Respondent to have been in violation of its "no contract-no work" rule. WISCONSIN RIVER VALLEY DISTRICT COUNCIL 225 the employees and also checked on their performance. During the finishing stage of construction, Schulist spent most of his time on supervisory activities, working with the tools of his trade only when he was caught up with his supervisory duties; this amounted to only 30 percent of his time. Concerning Schulist's exercise of supervisory authority in specific respects-in addition to his assignment and direction of work, which have already been covered-the General Counsel's witnesses testified to the following effect: Although Skippy himself did all the hiring, Schulist on some occasions interviewedjob applicants at the project in Skippy's absence. Several employees working at the project were hired by Skippy on Schulist's recommenda- tion. Several employees working at the project were discharged by Skippy on the recommendation of Schulist who had found fault with the quality of their work performance. When it became necessary to reduce the work force at the end of the roughing in stage, Skippy consulted with Schulist, and, relying on Schulist's greater familiarity with the abilities of the men acquired from Schulist's experience in working more closely with them, followed "generally" Schulist's recommendations as to who should be selected for layoff. On a number of occasions, usually involving cement finishing work, Schu- list, as he was authorized to do, assigned overtime work to employees without consulting Skippy. Schulist also could, and did, grant employees' requests for time off to attend to personal business. And, when inclement weather precluded scheduled work operations, Schulist also could, and did, decide on his own whether to assign employees to other work or send them home. 2. Findings Accepting at face value the above-summarized testimony of Schulist and Skippy, which stands on this record uncontradicted, there is clearly more than enough to support a finding that Schulist occupied the status of a 2(11) supervisor. Respondent urges, however, that the testimony of these witnesses should be ruled insufficient for two reasons. It contends, first, that, as both Schulist and Skippy have a direct interest in the outcome of this case, no probative weight may be given to their "self- serving" testimony because of the absence of corroborating testimony by disinterested witnesses. It contends, secondly, that, as the complaint specifically alleges that Schulist occupied the status of a "superintendent," not merely that of a supervisor, and as "the theme of the General Counsel's case" was that Schulist was "the man who was running this $1,200,000 job," the burden was on the General Counsel, if he would support his complaint, to prove no less, and that this the General Counsel failed to do by credible evidence. Respondent's first contention is clearly without sub- stance. There is no principle of law applicable to Board proceedings that requires the testimony of interested witnesses to be ignored or rejected simply because of the absence of corroboration. Moreover, Respondent has shown no reason why the same disinterested witnesses who it says must have been available to the General Counsel ("employees, subcontractors, material men, architects") could not also have been available to it. As for Respon- dent's second contention, the testimony of the General Counsel's witnesses did impress me as overdrawn in attempting to portray Schulist as the one who was primarily charged with responsibility for running the Madison View Apartments project on behalf of the Employer, and was therefore vested with the full range of authority normally associated with a job superintendent's position. This is particularly so insofar as that testimony related to the roughing in stage during which Skippy made it his business to be personally present at the project 90 percent of the time. But neither the General Counsel's failure to establish convincingly that Schulist actually occupied the position of a "job superintendent," in the sense in which that term is usually understood, nor the complaint's inaccurate characterization of Schulist's posi- tion as such, may properly be regarded as dispositive of the issue of Schulist's supervisory status. That issue must be determined not on the basis of the job title held, or on its propriety, but by application of the standards defined in Section 2(11) of the Act. Nor does the overstatement by the General Counsel's witnesses in that one respect necessarily require, for that reason alone, rejection of their testimony in all other respects. On the entire record, I find nothing inherently implausi- ble in, and no adequate basis for discrediting, the uncontroverted testimony of the General Counsel's wit- nesses relating to the specific respects in which Schulist actually exercised attributes of supervisory authority .4 Based upon the testimony I find plausible, I am satisfied, and find, that in directing the work of the crew he controlled during the roughing in stage of the job, and, even more so, in directing the 8 or 10 employees who remained on the project for the finishing work, Schulist was called upon to, and did, exercise authority of sufficiently substantial responsibility to place him in the category of a 2(11) supervisor, for that reason without more. My conclusion that Schulist's status was indeed that of a statutory supervisor, rather than simply that of a straw boss or leadman as'Respondent contends, is buttressed by the further testimony I find plausible evidencing the effective weight that has been given Schulist's recommen- dations concerning the hiring, firing, and layoff selection of employees and the authority he has exercised with respect to the assignment of overtime work and the granting of employees' requests for time off. Accordingly, I find that at all times material herein, Schulist was a supervisor within the meaning of Section 2(11) of the Act. D. As to Schulist's Status as an Employer Representative Within the Purview of Section 8(b)(1)(B) Under prevailing Board law, it is unnecessary to go beyond the finding that Schulist was a 2(11) supervisor to support the further finding that he was also an employer 4 Respondent's cross-exanunation of Schuhst and Skippy was focused the job as a whole, and left virtually unchallenged the witnesses' specific almost exclusively on an effort to impeach their testimony that Schulist was testimony relating to Schulist's actual exercise of authority. a "job superintendent" charged with the primary responsibility for running 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative within the ambit of Section 8(b)(1)(B). The Board in earlier cases has made it clear that the reference in that section to "r;.epresentatives for the purposes of collective bargaining or the adjustment of grievances" must be broadly construed in line with what has come to be known as the "reservoir doctrine." That doctrine, which was first enunciated in the . Toledo Blade case,5 has since been crystalized into what now appears to be an estab- lished Board principle that All persons who are "supervisors" within the meaning of the Act are employer "representatives for the purposes of collective bargaining or the adjustment of grievances" within the purview of Section 8(b)(1)(B) of the Act. See Operating Rngineers, Local No. 501 (Anheuser Busch, Inc.), 1991siLRB 5-5-1 ; Tom-Newspaper Guild,, (Times Publishing Company), 196 NLRB 1121 , enforce- ment denied 489 F.2d 416 (C.A. 3, 1973). Under the principle last stated, it is unnecessary to show that the supervisor involved had ever actually represented the employer in collective bargaining or in the adjustment of grievances, or, if not, to show that he was vested at least with theoretical power to be such a representative, or even to show that he occupied the kind of position which made it likely that he would be cast in such a representative role should certain types of grievances arise. The conclusion that a statutory supervisor is also an 8(b)(1)(B) employer representative within the intent of Section 8(b)(1XB) is considered to be an automatic one.6 In the instant case, there is no need to rely solely on the principle quoted above. For this record also supplies an evidentiary basis for finding Schulist to be an employer representative for the adjustment of grievances. Thus, both Schulist and Skippy testified that Schulist was specifically authorized to resolve employee grievances when necessary. Their generalized testimony to that effect is specifically supported by Schulist's testimony, credited in this respect, citing two instances in which he actually participated in the resolution of employee grievances. One involved a com- plaint directed to him by employees during the roughing in stage of the project about the insufficiency of toilet facilities. Schulist satisfied that complaint, without first consulting Skippy, by directing two of the members of his crew to join hint in erecting an additional outhouse on the project. The other involved an employee's complaint to Schulist that he had been shortchanged on his paycheck. Schulist, after determining from his personal work records that the complaint was a meritorious one, took up the matter with the person who handled the Employer's payroll records, and the employee's complaint was satisfied when the employee's payroll record was found to be in error. The particular nature of the supervisory position Schulist occupied during the period when he was found by Respondent to have violated its "no contract-no work" rule is an additional factor that must be accorded significance. It will be recalled that during that period Skippy was absent from the jobsite 90 percent of the time, visiting the site to confer with Schulist for only brief periods, usually before the employees started work. As the supervisor delegated the authority and responsibility to direct employees in their work, and the highest manage- ment representative having direct contact with the employ- ees at the jobsite, Schulist was the employer representative to whom the employees would naturally be expected to look for the adjustment in the first instance of their on-the- job complaints, should any arise. And from this, I find, it is reasonable to infer that authority to handle and if possible to settle such grievances must have been a corollary incident to Schulist's authority to direct work. Such an inference is, of course, consistent with, and tends to support, the generalized direct testimony of the General Counsel's witnesses as to Schulist's grievance adjustment authority. Accordingly, I find that Schulist at the times material herein was a representative of the Employer for the purposes of collective bargaining and the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. E. As to Respondent's 10(b) Defense Before reaching the question whether Respondent's conduct vis-a-vis Schulist amounted to unlawful restraint and coercion within the meaning of Section 8(b)(1)(B), it is necessary to pass on Respondent's 10(b) defense. As noted above, the complaint alleges that each of the following actions of Respondent constituted, separately, a violation of that section : (1) issuing the internal union complaint against Schulist and summoning him to appear before Respondent's trial committee on September 30, 1972, to defend himself against charges that he had violated Respondent's "no contract-no work" order; (2) levying the fine of $1,300 against Schulist on September 30, 1972, for violation of that order; and (3) instituting an action against Schulist in the state court on or about June 22, 1973, to collect the $1,300 fine. As the charge herein was not filed until August 20, 1973, it is Respondent's position that no consideration may now be given to the alleged violations that are based on the conduct referred to in items (1) and (2), above, which occurred well outside the 6-month limitation period of Section 10(b). Although the conduct referred to in item (3) did occur within the 6-month period, it is Respondent's position that its action to collect the fine cannot be found unlawful because such a finding would have to rest on a finding that the fine itself is an unfair labor practice, and the latter finding, it says, is precluded in this case by Section 10(b).7 5 Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo- Engravers International -Union (The Toledo Blade Company, Inc.), 175 NLRB 1072, enfd. 437 F.2d 55 (C.A. 6, 1971 ). See also, e.g., InternationalAssn. of Heat & Frost Insulators, (Cork Insulating Company of Wisconsin, Inc.), 189 NLRB 854; Detroit Newspaper Printing Pressmen's Union No. 13 (The Detroit Free Press), 192 NLRB 106. 6 The Board's position in this respect was disapproved by the Third Circuit Court of Appeals in Erie Newspaper Guild v. N.LR.B, 489 F2d 416, but is apparently still adhered to by the Board. 7 Board precedent supports Respondent's reasoning as to the interdepen- dence of such findings where Sec. 10(b) is involved. See International Association of Machinists (Union Carbide Co.), 180 NLRB 875. The court in WISCONSIN RIVER VALLEY DISTRICT COUNCIL 227 I find merit in Respondent's 10(b) defense only as it applies to Respondent's conduct referred to in item (1), above, but not in its asserted application to Respondent's actions in levying the fine and in thereafter instituting action to enforce its collection. The evidence in this record is undisputed that, although the fine was levied by the Union's trial committee on September 30, 1972, Respon- dent did not notify Schulist of the fine, and neither Schulist nor the Employer became aware of it, until about June 22, 1973, when Respondent instituted action against Schulist in the state court to collect the fine. The Board has held in analogous circumstances that the 6-month limitations period prescribed by Section 10(b) does not begin to run on an alleged unfair labor practice until the person adversely affected is put on notice, actually or construc- tively, of the act constituting it. Alabaster Lime Company, Inc., 194 NLRB 1116, 1118; L. C. Cassidy & Son, Inc., 185 NLRB 920, 926.8 I find no substance in Respondent's argument that Schulist, having been notified of the union trial, has no standing now to disclaim notice of its outcome. The law is clear that a union has a fiduciary duty to notify a member of any adverse action it takes against him before that action becomes binding on the member. Teamsters Local Union No. 122 (Busch & Co.), 203 NLRB No. 157; Progressive Mine Workers (Peabody Coal Co.), 173 NLRB 1237. Moreover, as a supervisor, Schulist had no duty to respond to the union charges against him; indeed the Board has held it to be a violation of Section 8(b)(1)(B) for a union to fine a supervisor for not doing so. San Francisco-Oakland Mailers Union (Northwest Publications, Inc.), 172 NLRB 2173; Sheet Metal Workers (H. J. Otten Company), 193 NLRB 23, 26. Accordingly, save in the limited respect noted above, I reject Respondent's 10(b) defense. F. As to the Alleged Unlawful Restraint and Coercion; Analysis and Concluding Findings The basic principles of law that must guide decision on the issue of whether Respondent's conduct in fining Schulist and in thereafter instituting action to collect the fine constituted unlawful restraint and coercion within the meaning of Section 8(b)(1)(B) are clearly defined by established Board precedent. The Board holds that any internal union discipline that is directed against an employer's representative, and is designed or has a reasonable tendency to dilute the representative's fidelity to management's interests, is as much within the intended scope of the 8(b)(1)(B) prohibition as is a union's coercive pressures directly against an employer aimed at forcing changes in the identity of management representatives. To constitute restraint and coercion under Section 8(b)(1)(B), as the Board construes that section, it is not essential that the discipline imposed on the supervisor-member be linked to his performance of supervisory or managerial functions; it is enough that the discipline is related in some manner to an underlying dispute between the employer on the one hand and the union on the other .9 Union discipline of a supervisor-member is viewed by the Board as falling outside the proscription of Section 8(b)(1)(B) only where the union offense occasioning the discipline involves a matter purely of internal union administration, unrelated, either directly or indirectly, to any dispute between the union and the employer, or to the supervisor's relationship and fidelity to his employer. 10 In the case at hand, there can be no doubt that the umon offense for which Schulist was disciplined-working for the Employer in disregard of Respondent's "no contract- no work" order-concerned more than a matter of purely internal union administration. It was directly related to an underlying labor dispute between Respondent and Schu- list's employer arising from the latter's unwillingness to become a signatory to Respondent's area contract. Contra- ry to Respondent's contention, it is immaterial under Board law that the fine imposed on Schulist had nothing to do with his performance of supervisory functions, but was bottomed entirely upon his continuing to work for the Employer with the tools of his trade. The Board in analogous circumstances has repeatedly and consistently rejected like contentions, holding that umon disciplinary action taken against a supervisor-member need not be related to the performance of his supervisory functions to constitute restraint and coercion within the proscription of Section 8(b)(l)(B).1i The only question remaining is whether Respondent's lack of knowledge of Schulist's supervisory status when it levied the fine against him constitutes a defense to its otherwise unlawful conduct. I hold that it does not. Respondent's good faith is not involved, for the test of restraint and coercion under Section 8(b)(1)(B) turns not on the union's motive, but on whether the union engaged in conduct which, it can be reasonably said, tends to restrain or coerce employers within the intent of that section. Nor is there anything in the language of Section 8(b)(1)(B) that prescribes scienter as an element of that unfair labor practice.12 In its inhibitory impact upon Schulist and the Employer, the coercion inherent in Respondent's conduct in levying and in thereafter seeking to collect the fine was not less because Respondent was unaware of Schulist's supervisory status when it levied the fine, and in theory might not have taken that action otherwise.13 Even if it be assumed that Respondent would the cited case reversed the Board and held that a suit to collect a fine, which but for Sec 10(b) would have been found unlawful, was independently violative of the Act. Shumate v NLRB, 452 F.2d 717 (CA 4,197 1) On remand, however, the Board, although adopting the court's position for purposes of that case, made clear that it was not thereby acquiescing in the court's view of the law 196 NLRB 785 But cf Local 1101 Communications Workers (New York Telephone Co), 208 NLRB No 32 8 See, also, N L, R B v Shawnee Industries, Inc, 333 F 2d 221, 224 (C A 10, 1964) 9 See, e g, New Mexico District Council (S S Horner Co), 176 NLRB 797, enfd 454 F 2d 1116 (C A 10, 1972), Local No 2150, IBEW (Wisconsin Electric Power Co), 192 NLRB 77, enfd 486 F2d 602 (C.A 7, 1973), IBEW, Local 134 (Illinois Bell Company), 192 NLRB 85, reversed and remanded 487 F 2d 1143 (C A D.C., 1973), cert granted January 1, 1974. 10 See, e.g., Local 453, Brotherhood of Painters, 183 NLRB 187 11 See, e.g, cases cited in fn 9, supra 12 Cf Intl Ladies' Garment Workers' Union, AFL-CIO [Bernhard- Altmann] v NLRB , 366 U.S 731, 738-739 (1961) 13 Actually, the probability is that Respondent would have acted no differently had it known Kiyek, who filed the charges against Schulist leading to the fine, left no doubt in his testimony that the only criterion with which he was concerned was whether Schulist worked with the tools of the (Continued) 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not have taken the action it did but for its mistaken belief that Schulist's work for the Employer was exclusively that of a journeyman carpenter. I think it evident that in a situation such as thi-, the Union should be held legally chargeable for and be required to remedy the conse- quences of its mistake. Although Section 8(b)(1)(B) is framed in terms of restraint and coercion of an employer, it has been interpreted in practical effect as also shielding a supervisor from union discipline for conduct connected with his employment relationship. Here, as a result of Respondent's mistake, Schulist has been penalized by Respondent in the amount of $1,300 for engaging in conduct that the Board holds is immune under the Act from union discipline. While Respondent's attitude in imposing the fine might not be otherwise censurable, it is only just and proper that, as between Respondent who made the mistake and Schulist who was the victim of it, the perpetrator should bear the onus of its own error. This conclusion, while giving Schulist the protection assured by the Act, imposes no particular hardship on Respondent, as the unfair labor practice determination to which it leads will require Respondent by way of remedy simply to refrain from conduct the law condemns and to relinquish its claim to a fine which under the law it could not have rightfully imposed. Accordingly, on all the evidence and for the reasons that have been stated, I conclude and find that Respondent engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b)(1)(B) and 2(6) and (7) of the Act by fining Schulist for failing to comply with its "no contract-no work" order, and by thereafter instituting action against Schulist in an attempt to collect the fine. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(l)(B) of the Act, it will be recommended that Respondent be ordered to cease and desist therefrom, and from like and related conduct, and that it take certain affirmative action which I find necessary to effectuate the policies of the Act, including the rescission of its action in fining Schulist, the expunging of all records thereof in its files, and the posting of appropriate notices. Upon the foregoing findings of fact and conclusions, and the entire record, I issue the following recommended: ORDER 14 Respondent, Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, agents, and representa- tives, shall: carpenters' trade, if Schuhst did, he was not a supervisor , according to Kiyek's definition of that term 14 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, 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 1. Cease and desist from: (a) Restraining or coercing Skippy Enterprises, Inc., in the selection of representatives for the purposes of collective bargaining or the adjustment of grievances by fining, otherwise disciplining, or attempting by any means to collect or enforce any fine or discipline imposed against any such representative, including Raymond Schulist for failing to comply with a "no contract-no work" order, or similar order of Respondent, or for working for Skippy Enterprises, Inc., while Respondent is engaged in a labor dispute with that Employer. (b) Engaging in any like or related conduct constituting such restraint and coercion. 2. Take the following affirmative action designed to effectuate the purposes of the Act: (a) Rescind and expunge all records of the fine levied against Raymond Schulrst on September 30, 1972, because he had worked for Skippy Enterprises, Inc., in violation of a "no contract-no work" order of Respondent. (b) Advise Raymond Schulist in writing that the said fine has been rescinded and that the records of such fine have been expunged. (c) Post at its business office and meeting hall copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms provided by the Regional Director for Region 30, after being signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish the Regional Director for Region 30 signed copies of said notice for posting by Skippy Enterprises, Inc, if willing, in places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 15 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce Skippy Enterprises, Inc., in the selection of representatives for the purpose of collective bargaining or the adjustment of grievances by fining, otherwise disciplining, or attempting in any manner to collect or enforce any fine or discipline heretofore imposed against any such representative, including Raymond Schulist, for failing to comply with a "no contract-no work" order, or similar order, or for working for Skippy Enterprises, Inc., during a time when we are engaged in a labor dispute with that employer. WISCONSIN RIVER VALLEY DISTRICT COUNCIL WE WILL NOT engage in any like or related conduct constituting such restraint or coercion. WE WILL rescind and expunge all records of the fine levied by us against Raymond Schulist on September 30, 1972, because he had worked for Skippy Enterpris- es, Inc., in violation of our "no contract-no work" order. WISCONSIN RIVER VALLEY DISTRICT COUNCIL OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO (Labor Organization) Dated By 229 (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, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, 'Wisconsin 53203, Telephone 414- 224-3861.