Elevator Constructors (Otis Elevator Co.)

ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 349 NLRB No. 55 583 International Union of Elevator Constructors and Otis Elevator Company International Union of Elevator Constructors, Local 18 and Otis Elevator Company. Cases 21–CB– 13923 and 21–CB–13925 March 22, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On January 25, 2006, Administrative Law Judge Gregory Z. Meyerson issued the attached decision. The Respondents, International Union of Elevator Construc- tors and its Local Union, Local 18, filed exceptions and supporting briefs, and the General Counsel filed an an- swering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Or- der.2 The judge found that the Respondents violated Section 8(b)(1)(A) of the Act by disciplining employee Scott Congrove for engaging in protected activity. The judge also found that the Respondents violated Section 8(b)(1)(B) by disciplining Supervisor Scott Cutler. We agree that the Respondents violated Section 8(b)(1)(A) by their discipline of Congrove.3 However, contrary to the judge, and as explained below, we find that the Re- spondents did not violate Section 8(b)(1)(B) by disciplin- ing Cutler. Facts The Employer constructs and installs elevators and es- calators. The Respondents have represented the Em- 1 The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the judge’s findings. 2 We shall modify the judge’s recommended Order to limit the post- ing requirement to the Respondents’ Local and International headquar- ters, see, e.g., John J. Hudson, Inc., 275 NLRB 874 fn. 2 (1985) (deny- ing request for a broad notice posting where no evidence of repeated or pervasive violations), and to conform to the violation found. We shall also modify the notice to conform to the language of the Order. 3 In adopting that finding, we also rely on the fact that the parties’ Standard Agreement contained a no-strike clause. We also agree with the judge’s findings, for the reasons set forth in his decision, that the charge in this case was timely filed, and that de- ferral of the case is not appropriate. ployer’s employees since at least July 2002. The current collective-bargaining agreement, called the Standard Agreement, is in effect from July 9, 2002, to July 8, 2007. On February 5, 2004, the Employer had a five-person crew assigned to the Morongo Casino in Cabazon, Cali- fornia, for the purpose of raising two escalators. The crew included employee Congrove and mechanic-in- charge Cutler. The crew was overseen by Jeffrey Gibas, the Employer’s construction and modernization superin- tendent. Although Gibas was charged with overseeing the project, he was not on the site every day. Rather, Cutler ran the day-to-day operations of the project. It is undisputed that Cutler was a statutory supervisor and a member of the Respondent Unions. As the mechanic-in-charge, Cutler’s duties consisted of assigning work to the mechanics, keeping track of payroll, authorizing overtime, and keeping track of the hours worked by the employees on the various crews. Cutler informally resolved employee payroll disputes and authorized “cartage” payments to employees who spent their own money on the Employer’s business. Cutler did not formally discipline employees, but reported instances of misconduct to Gibas. When doing so, Cutler sent the affected employees back to headquarters for Gibas to determine the appropriate discipline. Cutler had no au- thority to resolve formal grievances, which were handled by Gibas. Cutler ensured that all crews had the correct ratio of mechanics and helpers required by the Standard Agree- ment. Cutler was also responsible for ensuring that ma- terials arriving on site did not violate the Standard Agreement’s provisions regarding prefabricated parts. For instance, if a prefabricated elevator was delivered that violated the requirements of the Standard Agree- ment, Cutler directed employees to disassemble the pre- fabricated portion, and to remount and align the parts properly. On February 5, 2004,4 Cutler and his crew were scheduled to raise two escalators. However, Cutler was informed by the general contractor that the typical method of raising escalators (i.e., hoisting the escalator in place by using a pulley attached to the building steel) was not possible, because the escalators were unusually large and the steel could not support their weight. Cutler telephoned Gibas and informed him of the problem. Gi- bas, in turn, called the Employer’s tool shop to inquire as to the availability of a gantry.5 Gibas was told that the tool shop did not possess a gantry large enough to hoist 4 All dates hereafter refer to 2004, except where otherwise stated. 5 A gantry is an A-framed steel rigging used to hoist and hold in place large escalators. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 584 the escalators. Gibas then inquired as to the availability of outside companies with the equipment necessary to complete the job, and was referred by the tool shop to an outside contractor, Halbert Brothers. Gibas hired Halbert Brothers to provide and set up the gantry. Halbert Brothers’ employees, who were represented by another union, the Ironworkers, arrived at the Morongo site later that day. The Employer’s employees used fork- lifts to remove the gantry parts from the truck, and Hal- bert Brothers’ employees then assembled the gantry. Construction of the gantry took 2 days. After the con- struction was completed, the Employer’s employees used the gantry to raise the escalators. Thereafter, Halbert Brothers’ employees disassembled the gantry, and the Employer’s employees then removed the gantry parts and placed them onto the trucks. A few days later, Respondent Local 18’s business agent, John Holzer, came to inspect the Morongo site. Upon inspecting the escalators, Holzer noticed that the escalator contained a number of prefabricated parts, and he informed Cutler that the use of those parts violated the Standard Agreement. Cutler, in turn, informed Holzer about the Employer’s use of the Ironworkers’ members to hoist the escalators into place. Holzer told Cutler that using a composite crew of Ironworkers and the Em- ployer’s employees to construct the gantry was an addi- tional violation of the Standard Agreement. Holzer then called Gibas and informed him that the Employer had violated the Standard Agreement by installing escalators with prefabricated parts and by using a composite crew to hoist the escalators into place. Holzer thereafter filed a grievance against the Employer over this matter, which the parties later settled. On March 5, Respondent Local 18 initiated intraunion disciplinary proceedings against each employee of the 5- member crew at the Morongo site, including Cutler.6 The disciplinary charge described Cutler’s offense as “work[ing] with a composite crew of Ironworkers and Elevator Const[ructors] in rigging and [i]nstall of Escala- tors,” whereby Cutler was alleged to have failed to abide by the Standard Agreement’s provision governing work jurisdiction and to have violated his oath as a union member. Respondent Local 18 ultimately found Cutler “guilty” of the charges and fined him $4000. Cutler was ordered to pay $1000 immediately, with the remaining $3000 to be held in abeyance for a period of 5 years but payable in the event of a subsequent conviction. Cutler appealed his 6 Although all five members of the Morongo crew were the subject of the disciplinary proceedings, only Cutler and Congrove filed charges with the Board. fines to the Respondent International Union. In his ap- peal, Cutler wrote: What the E-Board does not understand is that my boss Jeff Gibas instructed me to work with the certi- fied gantry that the rigging company put together to perform the work on the escalators, . . . which I did. I could not control whether Otis hired a rigging company or not. If my supervisor instructs me to do something, if its [sic] safe I do it. If I don’t do what my supervisor instructs me to do, there’s a chance I could get fired. The appeal was heard by the Respondent International Union on November 8. By letter dated January 10, 2005, the Respondent International Union denied Cutler’s ap- peal and raised the portion of the fine that Cutler was required to pay to $2000. The Respondent International Union informed Cutler that he could further appeal his discipline at the next meeting of the International Union, but there is no evidence that Cutler did so. The judge found that the Respondents violated Section 8(b)(1)(B) by disciplining Cutler. The judge first found that Cutler, in addition to being a statutory supervisor, was the Employer’s representative for the purposes of collective bargaining and adjustment of grievances within the meaning of Section 8(b)(1)(B). In so finding, the judge relied on the evidence of Cutler’s authority to resolve wage disputes and his involvement in the subcon- tracting of the gantry work. In particular, the judge ob- served that Union Representative Holzer, when he learned of the potential contract violations relating to the installation of the escalators, first approached Cutler to voice his disapproval. The judge rejected the Respondents’ argument that, to find an 8(b)(1)(B) violation, the Board must find that the supervisor-member was disciplined for conduct involv- ing collective bargaining or grievance adjustment. In rejecting this argument, the judge found inapplicable Sheet Metal Workers Local 33 (Cabell Sheet Metal & Roofing), 316 NLRB 504 fn. 1 (1995). Although ac- knowledging that this requirement was stated in Cabell, the judge stated that “other, more recent Board cases . . . do not seem to have this requirement.”7 The judge fur- ther found that, even assuming that the requirement ap- plied, it was satisfied by evidence showing that Cutler was disciplined for interpreting the contract to permit the construction of the gantry by nonmembers. The judge concluded, therefore, that the Respondents’ actions vio- lated Section 8(b)(1)(B), because they would have an 7 See Elevator Constructors Local 1 (National Elevator Industry), 339 NLRB 977 (2003); Elevator Constructors Local 10 (Thyssen Gen- eral Elevator Co.), 338 NLRB 701 (2002). ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 585 adverse impact on Cutler’s future performance as a man- agement representative and grievance adjuster. The Respondents except to the judge’s findings regard- ing Cutler on the grounds that he was not the Employer’s representative for the purposes of collective bargaining or grievance adjustment, and that, even if he was, he was not engaged in those duties at the time of the incident for which he was disciplined. Contrary to the judge, and as explained below, we find that the Respondents did not violate Section 8(b)(1)(B) of the Act by their discipline of Cutler. Discussion Section 8(b)(1)(B) provides that “[i]t shall be an unfair labor practice for a labor organization or its agents . . . to restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or adjustment of grievances.” That provision restricts a union’s right to discipline members who exercise collec- tive-bargaining or grievance-adjustment duties on behalf of their employer. Not all such discipline is prohibited under Section 8(b)(1)(B), however. The section prohib- its only discipline that “may adversely affect [a] supervi- sor’s conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer.” Florida Power & Light Co. v. Electrical Workers Local 641, 417 U.S. 790, 804–805 (1974). More particularly, discipline is prohibited “only when an employer representative is disciplined for be- havior that occurs while he or she is engaged in § 8(b)(1)(B) duties—that is, ‘collective bargaining or grievance adjustment, or . . . any activities related thereto.’” NLRB v. Electrical Workers Local 340 (Royal Typewriter), 481 U.S. 573, 582 (1987) (ellipsis and em- phasis in the original, citation omitted). The Board may not, therefore, find a violation of Section 8(b)(1)(B) when the employee-representative was not engaged in the adjustment of grievances or collective bargaining during the incident that led to the discipline. Cabell, su- pra, 316 NLRB at 504 fn. 3.8 Accordingly, our determination of whether the Re- spondents’ discipline of Cutler was unlawful requires us to decide whether he was disciplined for engaging in 8 Cabell remains applicable precedent, and its holding is in accord with the Supreme Court’s decisions on the scope of Sec. 8(b)(1)(B) cited above. The cases that the judge suggested cast doubt on the con- tinued viability of Cabell (see fn. 8, above) are not to the contrary. In National Elevator Industry, 339 NLRB at 983, a supervisor-member was disciplined for interpreting the collective-bargaining agreement’s provisions governing safety and staffing; in Thyssen General Elevator, 338 NLRB at 702, a supervisor-member was disciplined for what the Board expressly found to be grievance adjustment and contract inter- pretation. either collective bargaining or grievance adjustment. We find that the evidence establishes that he was not. Cutler was, it is undisputed, a statutory supervisor, and he did, to a limited degree, engage in adjustment of mi- nor grievances and contract interpretation. There is no evidence, however, that Cutler’s discipline was in any way related to his performance of those duties. Accord- ing to the Respondent Local’s charges against him, Cut- ler’s offending conduct was working with a composite crew of members and nonmembers. The Union’s charge made no reference, express or implied, to Cutler’s exer- cise of any grievance-adjustment or collective-bargaining duties. It is notable that Cutler’s alleged offense was identical to that charged against rank-and-file employee Congrove. Nor, during the incident referenced in the charges, did Cutler engage in grievance adjustment or collective bar- gaining. Rather, his conduct consisted of working with his fellow employees to unload the gantry materials and put them into position for assembly, standing aside while the contractor’s employees assembled the gantry, hoist- ing the escalators using the gantry, and reloading the gantry materials after they had been disassembled by the contractor’s employees. At most, Cutler’s conduct con- sisted of ordinary supervisory duties, and discipline for those kinds of duties, as we have shown above, is insuf- ficient to invoke Section 8(b)(1)(B). Because the Re- spondents’ discipline of Cutler was unrelated to whatever 8(b)(1)(B) responsibilities he might have exercised at other times, there has been no showing that his discipline would foreseeably have an adverse effect on his future performance of 8(b)(1)(B) activities. Contrary to the judge and our dissenting colleague, the evidence does not establish that Cutler was disciplined because he interpreted the contract to permit the Em- ployer to use a contractor employing nonmembers to construct the gantry.9 The Unions’ charges against Cut- ler made no such reference. Moreover, the evidence shows plainly that it was Gibas, and not Cutler, who de- cided to hire an outside contractor to bring in and assem- ble the gantry. Although the record shows that Cutler shared Gibas’ concern that Otis employees could not assemble the gantry themselves, there is no evidence that 9 We also reject the judge’s inference that, because Holzer informed Cutler that the use of prefabricated sections in the escalators might violate the Standard Agreement, Cutler engaged in contract interpreta- tion or grievance adjustment on the Employer’s behalf. Cutler’s role in the conversation with Holzer, as described above, cannot fairly be described as either. At most, Cutler listened to Holzer and supplied some information. Following his discussion with Cutler, Holzer imme- diately contacted Gibas and requested a meeting to discuss a possible violation of the Standard Agreement. Reflecting his lack of responsi- bilities in this regard, Cutler did not attend that meeting. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 586 Cutler made any decision concerning the subcontracting of the gantry assembly work, or even that he recom- mended that decision. Cutler’s role in those events—as he stated himself in his appeal of his fine—was merely to pass along to Superintendent Gibas the general contrac- tor’s view that the building steel was not strong enough to hoist the escalators, and then to follow Gibas’ instruc- tions by directing the Employer’s employees to assist in the erection of the gantry. That conduct does not consti- tute 8(b)(1)(B) activity.10 In sum, because Cutler was not disciplined by the Re- spondents for engaging in contract interpretation or grievance adjustment, the Respondents’ discipline of him did not violate Section 8(b)(1)(B). We therefore reverse the judge on that issue and dismiss that portion of the complaint. ORDER The International Union of Elevator Constructors (the Respondent International Union) and the International Union of Elevator Constructors, Local 18 (the Respon- dent Local 18) and collectively the Respondents, their officers, agents, and representatives, shall 1. Cease and desist from (a) Filing internal-union charges against, fining, or otherwise disciplining union members because of actions taken by them as employees in following the direction of their employer to work with a composite crew in rigging and installing escalators. 10 Elevator Constructors Local 36 (Montgomery Elevator Co.), 305 NLRB 53 (1991), relied on by the dissent, is not to the contrary. In that case, the mechanic-in-charge was disciplined for deciding on his own initiative to install an elevator with prefabricated parts, a decision made in direct contravention of the applicable collective-bargaining agree- ment. There was no contention that the mechanic-in-charge in Mont- gomery Elevator was merely following the orders of his supervisor, as is the case here. Our colleague asserts that Florida Power & Light, supra, and Cabell, supra, are factually distinguishable. As explained above, however, the central holdings of those cases are directly applicable to the present case. Here, as in Cabell and Florida Power & Light, a supervisor- member was disciplined for activity that was not related to, and did not impact, his 8(b)(1)(B) duties. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Dismiss the internal-union charges filed and re- scind the fines levied against Scott Congrove, refund any moneys he may have paid on account of the fines as- sessed against him, and reimburse him for any costs in- curred by him in defending himself at the internal-union hearings, plus interest. (b) Within 14 days from the date of the Board’s Order, remove all records of the internal-union charges, result- ing proceedings, and fines from Scott Congrove’s files and, within 3 days thereafter, notify Congrove in writing that these actions have been taken and that the charges, resulting proceedings, and fines will not be used against him in any way. (c) Within 14 days after service by the Region, post at its headquarters, located in Columbia, Maryland, and at the headquarters of its local union office in Pasadena, California, copies of the attached notice marked “Appen- dix.”11 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondents’ authorized representatives, shall be posted by the Respondents and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted.12 Rea- sonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any material. (d) Within 14 days after service by the Region, the Re- spondents shall duplicate and mail, at their own expense, a signed copy of the notice to all their members who were employed by Otis Elevator Company at the Mo- rongo Casino jobsite, in Cabazon, California, at any time on or after February 5, 2004. 11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 12 Authorized representatives of both the Respondent International Union and the Respondent Local 18 shall sign the notices to be posted at those business offices. ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 587 (e) Sign and return to the Regional Director sufficient copies for posting by Otis Elevator Company, if willing, at all places where notices to employees are customarily posted. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at testing to the steps that each of the Respondents have taken to comply. CHAIRMAN BATTISTA, dissenting in part. I agree with my colleagues that the judge correctly found that the Respondents violated Section 8(b)(1)(A) of the Act by disciplining Scott Congrove for engaging in protected activity.1 However, I also find, in agreement with the judge, that the Respondents violated Section 8(b)(1)(B) of the Act by their discipline of Scott Cutler. Contrary to my colleagues, I find that Cutler, the Em- ployer’s representative for purposes of grievance adjust- ment and contract interpretation, was disciplined for en- gaging in that activity. As mechanic-in-charge, Cutler is often the only mana- gerial representative on the Employer’s jobsites. Cutler adjusts hours, settles pay grievances with employees, and handles disciplinary issues with employees. Cutler was disciplined for his conduct regarding the use of a composite crew in connection with the gantry.2 On February 5, 2004, Cutler was the only management representative on the worksite. In that capacity, he initi- ated the chain of events that led to the Employer’s use of Ironworkers to assemble the gantry. Cutler made the initial determination that the Employer’s own equipment was insufficient to hoist the escalator. He told Jeffrey Gibas of his determination and told Gibas to “order me a crane or order me a gantry.” Although Gibas made the choice as between a crane and a gantry, it was Cutler who decided that the Employer’s own equipment was insufficient. Thus, the decision to contract out the work, or at least the effective recommendation to do so, was made by Cutler. 1 In adopting this finding, however, I rely solely on the fact that the parties’ Standard Agreement contained a no-strike clause. Thus, as the judge found, Congrove was disciplined for refusing to engage in a work stoppage prohibited by the Standard Agreement’s no-strike clause. As noted by the judge, the discipline put Congrove in a “no-win” position in which he faced either discipline by the Respondents or discipline— and possibly discharge—by the Employer. Thus, Congrove was fol- lowing a legitimate directive from his employer, i.e., not to violate the no-strike provision of the contract, and was unlawfully disciplined for doing so. See Communications Workers Local 13000 (Verizon Com- munications, Inc.), 340 NLRB 18, 27–28 (2003). 2 Although Union Representative Holzer also complained about the installation of a preassembled escalator, this was not the basis of the Unions’ discipline of Cutler. Further, once the Ironworkers arrived, Cutler ordered the employees to cease working while the Ironworkers assembled the gantry. There is no evidence that Gibas advised Cutler to do so. Had Cutler disagreed with the Ironworkers’ work on the site, he could have notified Gibas of a potential problem, just as he did when he ini- tially determined that a gantry was needed, and just as he normally does when prefabricated equipment arrives on the jobsite. However, Cutler did not do so, because, as he testified at the hearing, “To be honest with you, I didn’t think it would be a big deal. [Halbert Brothers] is a Union company. I didn’t think that the [Respondents] would be making a big deal about another Union com- pany. That’s my own interpretation.” Thus, Cutler did not object to the Ironworkers’ work on the jobsite be- cause it was his view that this was permissible. As it turned out, the Union had a contrary interpretation of the contract. That is, Union Agent John Holzer later told Cutler that his interpretation of the contract was wrong. In short, Cutler was not simply a conduit for the carry- ing out of a superior’s orders. He made his own deci- sions. This involved the decision to direct his crew to refrain from working while Ironworkers assembled and disassembled the gantry. Given these facts, I find that Cutler was engaged in 8(b)(1)(B) activity. Further, even if Cutler’s actions did not involve 8(b)(1)(B) activity, it is clear that the Re- spondents’ discipline of Cutler would have an adverse impact on his future performance of contract interpreta- tion and grievance adjustment on behalf of the Em- ployer.3 The Union’s discipline of Cutler would influence his conduct in the exercise of future 8(b)(1)(B) activity. That is, particularly in light of the amount of the fine, it is reasonable to believe that Cutler will “think twice” before he again does anything in the future which might raise the ire of the Union. As noted above, Cutler en- gages in a number of 8(b)(1)(B) activities, including de- cisions as to the handling of prefabricated parts and as to how to direct employees. Knowing that a fine could be imposed, Cutler would reasonably attempt to shield him- self from discipline and fines by making supervisory decisions in the interests of the Respondents, rather than the Employer. 3 Thus, even if the discipline is not “directed at” the exercise of an 8(b)(1)(B) function, it can violate Sec. 8(b)(1)(B) if it has a foreseeable adverse effect on future 8(b)(1)(B) exercises. See Elevator Construc- tors (Thyssen General Elevator), 338 NLRB 701 (2002). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 588 This is precisely the type of chilling effect that Section 8(b)(1)(B) seeks to proscribe. For instance, in Elevator Constructors Local 36 (Montgomery Elevator Co.), 305 NLRB 53 (1991), the Board adopted a judge’s finding of a violation for disciplining a mechanic-in-charge who directed that employees hoist an elevator with certain preassembled parts attached, in possible violation of the contract. The Board agreed with the judge’s finding that the mechanic-in-charge was engaged in 8(b)(1)(B) con- tract interpretation and that the union unlawfully disci- plined him for performing his duties. The judge in Montgomery Elevator found that the union’s discipline would “compel the Employer’s foremen to take pro- union positions in interpreting the collective-bargaining agreement.” The judge concluded that “the purpose and effect of the Respondent’s conduct literally and directly contravened the statutory policy of allowing the Em- ployer an unimpeded choice of representatives for collec- tive bargaining and settlement of grievances.” Here, Cutler was similarly performing his duties as mechanic-in-charge by directing that the Employer’s employees step aside while the Ironworkers assembled the gantry. As in Montgomery Elevator, supra, the Re- spondents’ discipline of Cutler would have a coercive effect on how he performs his future duties as mechanic- in-charge, and how he allocates tasks to the workers on his crew. Therefore, the judge’s finding of a violation in this instance is consistent with that precedent. Permitting the Respondents to discipline Cutler in these circumstances, is contrary to the intent and purpose of Section 8(b)(1)(B). I would therefore find the viola- tion.4 4 My colleagues rely on the Supreme Court’s decision in Florida Power & Light Co. v. Electrical Workers Local 641, 417 U.S. 790 (1974). While the Court there conceded that Sec. 8(b)(1)(B) should provide some leeway for unions to discipline their members, the Court also acknowledged that Sec. 8(b)(1)(B) should not interfere with super- visor-members’ ability to carry out their duties as representatives of their employers. Id. at 806. In addition, I find that Florida Power & Light is factually distinguishable because the supervisor-members there were disciplined for refusing to cross a picket line, an action that did not involve contract interpretation or grievance adjustment. By con- trast, the Respondents here disciplined Cutler for his performance of his duties as an 8(b)(1)(B) representative of the Employer. Similarly, Sheet Metal Workers Local 33 (Cabell Sheet Metal & Roofing), 316 NLRB 504 (1995), is clearly distinguishable on its facts. In that case, the individual worked with the tools of the trade outside the jurisdiction of his own local, and he did so under inferior terms and conditions of employment. He also lied to the union about these mat- ters. Although he was a supervisor and an 8(b)(1)(B) representative, the discipline had nothing to do with those roles. The discipline con- cerned only the misconduct set forth above. APPENDIX NOTICE TO MEMBERS AND EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT file internal-union charges against, fine, or otherwise discipline our union members because of actions taken by them as employees in following the di- rection of their employer to work with a composite crew in rigging and installing escalators. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL dismiss the internal-union charges filed and rescind the fines levied against Scott Congrove, refund any moneys he may have paid on account of the fines assessed against him, and reimburse him for any costs incurred by him in defending himself at the internal- union hearings, plus interest. WE WILL, within 14 days of the date of the Board’s Order, remove all records of the internal-union charges, resulting proceedings, and fines from Scott Congrove’s files and, WE WILL, within 3 days thereafter, notify Scott Congrove in writing that these actions have been taken and that the charges, resulting proceedings, and fines will not be used against him in any way. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, LOCAL 18 Steve L. Hernandez, Esq., for the General Counsel. Keith R. Bolek, Esq., of Washington, D.C., for the Respondent International Union. J. David Sackman, Esq., of Los Angeles, California, for the Respondent Local Union. Johan W. E. Maitland, Esq., of Burlington, Vermont, for the Charging Party. ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 589 DECISION STATEMENT OF THE CASE GREGORY Z. MEYERSON, Administrative Law Judge. Pursu- ant to notice, I heard this case in Los Angeles, California, on October 31 and November 1, 2005. Otis Elevator Company (Otis, the Employer, or the Charging Party) filed an original, a first amended, and a second amended unfair labor practice charge in Case 21–CB–13923 on April 6, May 13, and June 29, 2005, respectively. Otis also filed an original, a first amended, and a second amended unfair labor practice charge in Case 21– CB–13925 on April 6, May 13, and June 29, 2005, respectively. Based on those charges, as amended, the Regional Director for Region 21 of the National Labor Relations Board (the Board) issued a consolidated complaint on July 26, 2005. The com- plaint alleges that the International Union of Elevator Construc- tors (the International Union or the Respondent International Union) and the International Union of Elevator Constructors, Local 18 (the Local Union or the Respondent Local Union), and collectively referred to as the Respondents, violated Sec- tion 8(b)(1)(A) and (B) of the National Labor Relations Act (the Act). The Respondents filed timely individual answers to the complaint denying the commission of the alleged unfair labor practices. All parties appeared at the hearing, and I provided them with the full opportunity to participate, to introduce relevant evi- dence, to examine and cross-examine witnesses, and to argue orally and file briefs. Based upon the record, my consideration of the briefs filed by counsel for each party, and my observa- tion of the demeanor of the witnesses, I now make the follow- ing1 FINDINGS OF FACT I. JURISDICTION The complaint alleges, the Respondents’ answers admit, and I find that the Employer, a New Jersey corporation, with head- quarters in Farmington, Connecticut, and a district office in Pasadena, California, has been engaged in the manufacture, installation, and maintenance of elevators and escalators throughout the United States, including the State of California. Further, I find that during the 12-month period ending May 5, 2005, the Employer, in the course and conduct of its business operations, purchased and received at its California locations goods valued in excess of $50,000 directly from points located outside the State of California. Accordingly, I conclude that Otis is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1 The credibility resolutions made in this decision are based on a re- view of the testimonial record and exhibits, with consideration given for reasonable probability and the demeanor of the witnesses. See NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses have testified in contradiction to the findings herein, I have discredited their testimony, as either being in conflict with credited documentary or testimonial evidence, or because it was inherently incredible and un- worthy of belief. II. ORGANIZATIONS The complaint alleges, the Respondents’ answers admit, and I find that at all times material, the Respondent International Union and the Respondent Local Union have each been labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Dispute The dispute in this matter had its genesis at the Morongo Ca- sino in Cabazon, California, where the Employer was engaged in the installation of elevators and escalators. The Employer’s elevator constructors are represented by the Respondents. Dur- ing the course of that construction project, the Employer sub- contracted with another company for the construction of a “gantry” to raise the escalators into position. However, the Respondents consider the erection of the gantry and the raising of the escalators to be work properly performed by those em- ployees it represents under the terms of the collective- bargaining agreement with the Employer. After learning that the work of raising the escalators was actually performed in part by employees other than the elevator constructors it repre- sents, the Respondents filed a grievance against the Employer under the terms of the collective-bargaining agreement, and filed intraunion disciplinary charges against those of its mem- bers who allegedly worked in a “composite crew” with the employees of the subcontractor in raising the escalators. Pursuant to the disciplinary process, the Respondent Local Union fined its members Scott Congrove and Scott Cutler. Following the appeals of Congrove and Cutler to the Respon- dent International Union, the International Union denied their appeals and increased the amount of their fines. Neither Con- grove nor Cutler has further appealed their fines through the Respondents’ internal disciplinary appeal process. The Em- ployer settled the grievance filed by the Respondents by the payment of an amount of money considered to be the equiva- lent of the amount that would have been earned by the Em- ployer’s elevator constructors had they assembled the gantry and raised the escalators without the assistance of the subcon- tractor’s employees. It is the position of the General Counsel and the Charging Party that by fining Congrove, the Respondents have attempted to prevent him from performing his employment duties as di- rected by the Employer. The complaint alleges this conduct as restraining and coercing employees in the exercise of their Sec- tion 7 rights in violation of Section 8(b)(1)(A) of the Act. The General Counsel and the Charging Party contend that Cutler, who held the position of mechanic in charge on the Morongo project, was a supervisor, collective-bargaining representative, and grievance adjuster of the Employer, as defined by the Act. They further contend that the Respondents fined Cutler because he interpreted the collective-bargaining agreement on behalf of the Employer in a manner inconsistent with the Respondents’ interpretation of the agreement. It is alleged in the complaint that this conduct restrained and coerced the Employer in the selection of its collective-bargaining representative or griev- ance adjuster in violation of Section 8(b)(1)(B) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 590 The Respondents deny that Cutler was the Employer’s repre- sentative for the purpose of collective bargaining or adjustment of grievances, and deny that they have unlawfully restrained or coerced either the Employer or employees in violation of the Act. It is the position of the Respondents that the Employer violated the collective-bargaining agreement when it subcon- tracted the work of assembling the gantry and raising the esca- lators. Further, the Respondents argue that Cutler and Con- grove, who were members of the Local Union and the Interna- tional Union, had aided the Employer in its breach of the con- tract by working in a composite crew to assemble the gantry and raise the escalators. Under the terms of the contract, this work was allegedly to be performed exclusively by elevator constructors represented by the Respondents. According to the Respondents, by their conduct, Cutler and Congrove were in violation of their oath to the Local and International Union taken at the time they became members, as well as having failed to abide by the terms of the collective-bargaining agree- ment. It is the position of the Respondents that their combined action in disciplining Cutler and Congrove was proper and lawful and specifically in conformity with the proviso found in Section 8(b)(1)(A) of the Act, which reads “[t]hat this para- graph shall not impair the right of a labor organization to pre- scribe its own rules with respect to the acquisition or retention of membership therein.” At the commencement of the trial in this matter, each of the Respondents filed a series of written motions seeking a dis- missal of the unfair labor practice charges, or, in the alternative, a deferral of those charges. The Respondent International Un- ion filed four such motions captioned as follows: Motion (1) To Dismiss for Failure to State a Claim; (2) To Dismiss for Bar of the Statute of Limitations; (3) For Deferral to Pending Inter- nal Union Discipline Proceedings; and (4) For Postarbitration Deferral to Grievance Resolution. (R. Exh. 1.) The Respon- dent Local Union also filed four similar motions essentially entitled as follows: Motion (1) To Dismiss for Failure to State a Claim of an Unfair Labor Practice Under Section of 8(b)(1)(A) of the Act; (2) To Dismiss for Failure to State a Claim of an Unfair Labor Practice Under Section 8(b)(1)(B) of the Act; (3) For Deferral to Pending Internal Union Discipline Proceedings; and (4) For Postarbitration Deferral to Grievance Resolution. (R. Exh. 2.) Counsel for the General Counsel and counsel for the Charg- ing Party responded orally to the Respondents’ motions, oppos- ing each and every one. Upon reflection, I reserved ruling on the Respondents’ motions until such time as I issue my decision in this case. The General Counsel and the Charging Party were advised to address the Respondents’ motions in their respective posthearing briefs, with the Respondents’ given leave to sup- plement their arguments in their posthearing briefs. Accord- ingly, later in this decision I will rule on the Respondents’ mo- tions. B. The Facts For the most part, the underlying facts in this case are not in dispute. There was little conflict in the testimony of the various witnesses. Further, at the commencement of the hearing, the parties entered into a lengthy written “Stipulation of Facts,” which stipulation2 was admitted into evidence as a joint exhibit (Jt. Exh. 32) along with a series of attachments, also admitted as joint exhibits (Jt. Exhs. 1–31). As reflected in the stipulation, since at least July 9, 2002, the Respondent International Union, for and on behalf of its local unions, including the Respondent Local Union, has been recog- nized by the Employer as the exclusive collective-bargaining representative of its elevator constructors. This recognition has been embodied in a collective-bargaining agreement, which by its terms is effective from July 9, 2002, through July 8, 2007. (Jt. Exh. 1.) Throughout the hearing, the parties referred to this contract as the “standard agreement.”3 The Employer is a nationwide company engaged in the manufacture, installation, repair, modernization, maintenance, and servicing of elevators and escalators throughout the United States. From about November 2003 through October 2004, Otis installed 18 elevators and 2 escalators at the Morongo Casino Hotel, located in Cabazon, California (the project). Jeffrey Gibas is employed by Otis as a construction and modernization superintendent. At the time of the events in question, he was the person responsible for jobsite management of all the Employer’s projects in the Los Angeles basin, ap- proximately 20 to 30, including the Morongo project. Gibas testified that the person who ran the Morongo project on a day- to-day basis was Scott Cutler, the mechanic in charge. Gibas was Cutler’s immediate supervisor. According to Gibas’ testimony, during the construction on the project, he was informed by Cutler that the project general contractor, Perini Construction, had indicated that the escalator hoisting could not be accomplished by using the steel from the floor above. Frequently on a construction project, an escalator is hoisted into place by using the building floor steel from the floor above to hold the weight as the escalator is raised. How- ever, in this instance, Perini informed Cutler that the building floor steel would not hold the weight of the two escalators that Otis needed to raise. Gibas and Cutler discussed the problem, and Gibas contacted the Employer’s “tool shop” to determine whether it had a “gantry” capable of “hoisting and rigging” a 10-ton weight. Gibas estimated the two escalators to weigh approximately 16,000 to 17,000 pounds each. A gantry is a bridge like framework, comprised of two steel legs holding up a horizontal beam. Rigging is attached to the escalator and to the beam, and the escalator is then hoisted into position, with its weight temporarily held in place by the gan- try. The actual hoisting is accomplished by means of a “chain fall,” which in this case Gibas testified was “a hand driven pull chain.” Gibas testified that the Employer’s tool shop did not have a gantry that could support the weight of the escalators that were going into the Morongo project. Apparently smaller gantries were available, but none capable of handling the weight re- 2 Due to inadvertence, the official transcript of this proceeding does not reflect the admission into evidence of the “Stipulation of Facts” as a separate numbered exhibit, specifically as Jt. Exh. 32. 3 The standard agreement specifies that the bargaining unit recog- nized by the Employer includes all “Elevator Constructor Mechanics, Elevator Constructor Helpers, and Elevator Constructor Apprentices.” (Jt. Exh. 1.) ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 591 quired. Upon further inquiry, Gibas was directed to a hoisting and rigging company, Halbert Brothers. He contacted this company, determined that they had the necessary equipment, and ultimately subcontracted with them to place a gantry on the project. He testified, “So I hired them to bring it down. They stipulated that we pull it off the truck, get it into the building, and fork it up to the second floor. Then they would build the gantry and we’d be able to use the gantry.” When asked on direct examination why the Otis employees did not build the gantry themselves, Gibas responded, “Well safety—that’s not our equipment. We didn’t want the responsibility or liability to that.” It is undisputed that the gantry arrived on the project on Feb- ruary 5, 2004.4 The Halbert Brothers’ employees who accom- panied the gantry were represented by the Ironworkers Union. It was the testimony of Scott Cutler that when the gantry ar- rived, the elevator constructors employed by Otis “took the forklift and we took the materials off the truck and brought it into the building, raised it up to the second level, which is the mezzanine level, put it down, and then they [the Halbert Broth- ers’ employees] took it from there and assembled the gantry.” Cutler repeatedly made it clear in his testimony, which was unchallenged by any other witness, that it was the elevator con- structors employed by Otis who unloaded the gantry materials from the truck, took them up to the second floor, and placed the materials where the ironworkers could begin to assemble the gantry. However, the Halbert Brothers’ employees had provided the wrong size horizontal beam and chain fall, used to hoist the escalator into position, and so they had to replace the materials with a larger beam and chain fall. It appears that the replace- ment materials were not in place until the following day, Feb- ruary 6. In any event, Cutler testified that the ironworkers ul- timately assembled the gantry, which was Halbert Brothers’ equipment. Once the gantry was assembled, the elevator con- structors rigged it to the first escalator and hoisted the escalator into position. The process was then repeated for the second escalator. After both escalators were in position in their respec- tive “well ways,” the ironworkers disassembled the gantry. The escalator constructors then moved the gantry materials to the ground floor and into the truck. It was Cutler’s testimony that the only role the ironworkers played in the process was to as- semble and disassemble the gantry. This testimony was unre- butted, and was supported by the testimony of Gibas, to the extent that he was on the project site on February 6 when the second of the two escalators was hoisted into place. At the time of the events in question, the Employer’s eleva- tor constructor crew on the Morongo project installing the esca- lators was comprised of five employees, Scott Cutler, Scott Congrove, Rob Ranier, Mark Braley, and Steve Bertsch. Scott Congrove was at the time classified as a “temporary me- chanic.”5 Congrove’s testimony also supports Cutler’s asser- 4 All dates hereafter are 2004, unless otherwise indicated. 5 According to Congrove, a temporary mechanic is an elevator con- structor helper who has a “permit” from the Local Union to temporarily work as an elevator constructor mechanic on a specific jobsite. The permit must be renewed monthly. (Also see Jt. Exh. 1, art. X, par. 4.) tion that only the elevator constructors employed by Otis were involved in rigging the escalators, pulling the chain, and hoist- ing the escalators into place. The ironworkers employed by Halbert Brothers did not participate in this effort. However, as the Otis employees were hoisting the first escalator into place, the chain pull got tangled. In order to free the chain, an iron- worker employed by Halbert Brothers walked out on the top of the gantry and banged on the chain with a hammer, causing it to become untangled. While this task was performed by an iron- worker, Cutler justified the effort because the chain pull was Halbert Brothers’ equipment, part of the gantry materials. Cutler’s testimony emphasized that while the Ironworkers were assembling and disassembling the gantry, the elevator constructors watched them work and remained “on the clock.” Thus, the elevator constructors were paid for this time, and, in fact, they earned overtime on both February 5 and 6. Cutler defends the decision not to use the elevator construc- tors to assemble and dissemble the gantry on the basis of safety. The gantry equipment was owned by Halbert Brothers and its employees were most familiar with the equipment. It is undis- puted that elevator constructors employed by Otis do regularly hoist escalators into place on various projects under the terms of the collective-bargaining agreement between the parties. However, both Cutler and Gibas testified that typically these involve loads much lighter than those being hoisted on the Mo- rongo project. The Employer’s witnesses testified that its ele- vator constructors had no experience with the assembly of a gantry large enough to lift such excessive weight. The entire operation was unusual, and necessitated because the general contractor would not permit the Employer to hoist using the building steel. The Employer argues that in such a circum- stance, the only practical solution was to use a subcontractor experienced in hoisting very heavy loads utilizing a large gan- try. John Holzer is a business agent employed by the Respondent Local Union. Several days after the escalators were hoisted into place at the Morongo project, Holzer came out to the pro- ject on one of his periodic inspections. He testified that this was his third trip to the jobsite, and one of the reasons he made the trip was because he was of the impression that the escala- tors had been installed. Holzer testified at length about prob- lems the Respondents have had with Otis and other contractors signatory to the standard agreement regarding the use of prefab- ricated sections on those escalators installed by members of the bargaining unit represented by the Respondents. When he arrived at the project, Holzer went to the “well ways,” saw that the two escalators had been hoisted into posi- tion, and noticed that the installation had been completed using certain prefabricated sections. Holzer believed these to consti- tute violations of the standard agreement and he sought out Cutler to complain. In the course of explaining to Cutler about the prefabrication violations, Cutler mentioned to Holzer that it had been necessary to use a subcontractor to assemble a gantry in order to hoist the escalators. Further, Holzer testified that Cutler told him that “everybody hoisted on it . . . everybody took a pull on the chain.” Allegedly, Holzer asked Cutler spe- cifically whether that included the ironworkers, and Cutler answered in the affirmative. According to Holzer, he informed DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 592 Cutler that allowing the ironworkers to perform elevator con- structors’ work in a “composite crew” with the Otis employees was a violation of the contract. He told Cutler that, “When it comes down to rigging, it’s our work and we don’t give our work away.” Cutler testified that Holzer spoke with him about the alleged contract violations for using prefabricated sections on the esca- lators and how the violations could be remedied by removing the prefabricated sections, and then reassembling them. Ac- cording to Cutler, nothing else was discussed with Holzer. In any event, as noted above, those employees present on the pro- ject at the time the escalators were hoisted and who testified, namely Cutler, Congrove, and Gibas, all testified that the iron- workers did not perform any rigging or hoisting of the escala- tors. When he returned to his office, Holzer called Jeff Gibas. Holzer testified that he informed Gibas that the contract had been violated on the Morongo project by the Employer’s use of prefabricated sections on the escalators.6 Also, he told Gibas that Otis violated the contract by the use of “composite crews” to perform the work of rigging and hoisting the escalators, which was work performed under the standard agreement by elevator constructors. Holzer informed Gibas that he intended to pursue the matter, and requested that Gibas send him “time tickets” for the project so that he could determine how much work was lost by the Otis crew. Gibas testified that Holzer called him complaining about the use of a composite crew on the Morongo project, specifically the use of ironworkers to perform the work of elevator constructors. According to Gibas, he told Holzer that the work provided for under the terms of the contract had been performed by elevator constructors, and not by any other employees. The two men agreed to set up a meet- ing to discuss this matter further. Gibas and Holzer met approximately 1 week later to discuss this matter. According to Gibas, Holzer told him that he had been to the Morongo project and had spoken with Scott Cutler. Holzer said that Cutler told him that the ironworkers had rigged and hoisted the escalators. Gibas testified that he informed Hozler that Holzer was mistaken. Gibas told Hozler that he had been on the project the day the escalators were hoisted into position, and he had not seen the ironworkers doing any such work. Gibas informed Holzer that all the ironworkers had done was to build the gantry, which was then used by the elevator constructors. However, the two men continued to disagree. Gibas provided Holzer with the time tickets that Holzer had previously requested. The meeting apparently ended with Hol- zer telling Gibas that the Local Union was going to file a griev- ance against the Employer over the incident. A grievance was ultimately filed by Holzer. There is some confusion as to when the grievance was actually filed, with two somewhat different grievance forms being admitted into evi- dence. One form shows the grievance as having been filed on February 20, 2004 (Jt. Exh. 29), and the other form shows as 6 Holzer testified that one reason why the escalators on the Morongo project were so heavy and difficult to hoist was because they contained extensive prefabricated sections, which materials would normally be installed only after the escalators were raised into position. date of filing March 22, 2004 (CP Exh. 1). Since no party has taken the position that the grievance was filed untimely, I fail to see the significance of the exact filing date.7 In any event, as the grievance form with the filing date of February 20 is the more complete, containing the signed resolution of the griev- ance, I will assume it to be the more accurate document and accept the filing date as reflected on that document. The grievance alleges a violation of the collective-bargaining agreement, specifically that the Employer’s use of a “rigging outfit to setup all rigging and hoist two (2) escalators in the well ways at the Morongo Casino Hotel” deprived the elevator constructors of the work they were entitled to perform under the terms of the contract. The remedy sought by the Respon- dent Local Union was the payment into the Local Union’s “Re- lief Fund” of an amount of money equal to the amount of wages allegedly lost by the elevator constructors not perform- ing the work of rigging and hoisting the escalators.8 Jeffrey Ricapito is the Employer’s senior labor relations manager. He testified that after the Employer received a copy of the Local Union’s written grievance, he arranged a meeting to try and resolve the matter. According to Ricapito, he met at the Local Union’s office with Holzer, Larry Sakamoto, a re- gional director of the International Union, and Ernie Brown, a vice president of the International Union and a member of its executive board. However, the parties continued to disagree and there was no resolution of the grievance at this meeting. Ricapito testified that the Employer ultimately decided to “resolve” the grievance, even though it did not believe that any violation of the contract had occurred. According to Ricapito, the Employer does not perform much escalator work, and the issue in dispute was not worth the effort to arbitrate. It appears from the grievance form that the resolution of the dispute con- sisted of the Employer agreeing to pay the moneys the Local Union contended were lost to the elevator constructors when ironworkers allegedly performed the rigging and hoisting of the two escalators at the Morongo project. The grievance form indicates that the matter was resolved on March 29, 2005, by Elizabeth Ceriello, who is the Employer’s labor relations man- ager, and Lawrence Sakamoto. (Jt. Exh. 29.) It was Ricapito’s contention that the Employer did not intend for the resolution of this dispute to have any precedential value. He testified that had the parties intention been to do so, that the resolution would not have merely been set forth on the griev- ance form, but, rather, on a separate settlement agreement. On the other hand, Sakamoto, who signed off on the resolution on behalf of the Respondents, testified that it was not unusual for Otis to resolve a dispute with a notation on the grievance form itself, without a separate settlement document, and the resolu- tion to still have precedential value. According to Sakamoto, where the Employer did not intend for this to be so, the Em- ployer normally inserted either “nonadmission language” or 7 The Charging Party contends that it did not actually see the written grievance until June 24, 2004, when Jeff Gibas received a copy of the grievance bearing the filing date of March 22, 2004, sent from the Local Union by certified mail. (CP Exh. 1.) 8 Of course, as testified by Scott Cutler, the elevator constructors lost no wages on either February 5 or 6, as they remained “on the clock” as the ironworkers assembled and later disassembled the gantry. ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 593 “nonprecedent language” into a separate settlement document or onto the grievance form itself. He noted that such was not done in this case. Sakamoto and Ceriello had apparently not met personally to resolve this matter, but had conferred and come to their resolution over the telephone. John Holzer filed intraunion charges against each of the five elevator constructors employed by Otis at the Morongo project on February 5 and 6, who comprised the crew installing the escalators. At the time of the events in question, each man was a member of the Respondent Local Union.9 The charges against Cutler and Congrove are each dated March 5, and allege two “punishable offenses” under article 18, section 1, of the Respondent International’s constitution and bylaws. Specifi- cally enumerated are parts (4) and (6) of the section, which relate respectively to a failure or refusal to abide by the provi- sions of the standard agreement, or the provisions of any local union agreement; and a failure or refusal to abide by an oath taken at the time an individual becomes a member of the Inter- national Union or a local union. The “offense” listed on the respective charges is that Cutler and Congrove worked with a “composite crew” of ironworkers and elevator constructors in rigging and installing two escalators at the Morongo jobsite. It appears that this is alleged to be a violation of the standard agreement, specifically article IV, paragraphs 1 and 2 (p. 5), which deal with work jurisdiction. (Jt. Exhs. 2, 15.) On about April 10, the Respondent Local Union held a hear- ing on the intraunion charges filed against Cutler and Con- grove. Jeff Gibas and Sam Goe, another Otis manager, were present at the local union hall with the intention of speaking on behalf of Cutler and Congrove at their hearings. However, John Holzer objected to the presence of Gibas and Goe, as they were not union members, and the Local Union executive board requested that they leave. Following the departure of Gibas and Goe, hearings were held for Cutler and Congrove, respectively. Holzer questioned each man about the events that occurred at the Morongo jobsite as it involved the work performed by the ironworkers on February 5 and 6. Recordings were apparently made of the hearings, which were then transcribed. The tran- scripts were admitted into evidence as joint exhibits, although the parties specifically declined to stipulate as to the accuracy of the transcripts. (Jt. Exhs. 4, 17.) In any event, Cutler testi- fied at the unfair labor practice proceeding that the transcript of his union hearing appeared generally accurate. The executive board of the Respondent Local Union found Cutler and Congrove “guilty” of the charges brought against them.10 Cutler was fined $2000 per offense for a total of $4000, with $1000 due immediately and $3000 to be held in abeyance for a period of 5 years and due and payable immedi- ately upon conviction of any further offense against the Re- 9 As the unfair labor practices alleged in the complaint name only Cutler and Congrove, no effort will be made to detail the chronology of those intraunion charges brought against the other three members of the crew. It is sufficient to note that the other three crew members were found guilty of the charges, fined by the Local Union, and did not thereafter appeal those fines. 10 Cutler and Congrove were each found guilty on “both charges” brought against them by Holzer. The specific charges brought by Hol- zer are set forth in detail above. (Jt. Exhs. 5, 18.) spondents. Congrove was fined $600 per offense for a total of $1200, with all but $200 to be held in abeyance for a period to 2 years and due and payable immediately upon conviction of any further offense against the Respondents. (Jt. Exhs. 5, 18.) Thereafter, the Respondent Local Union directed Cutler and Congrove to be present at a membership meeting of the Local Union where they, and the assembled membership, would be advised of the decision of the executive board. A meeting of the membership was subsequently held on May 12, at which time the decisions on the charges against Cutler and Congrove were read to the membership. (Jt. Exhs. 6, 19, 30.) It was the unrebutted testimony of John Holzer that it is the regular pro- cedure of the Local Union, as provided for in its constitution and bylaws, to report the executive board’s decision regarding the disciplining of union members at the next scheduled mem- bership meeting. (Jt. Exh. 28, pp. 15–16.) This apparently was the practice followed with the penalties issued to Cutler and Congrove. On May 13, Cutler and Congrove each received a letter from a representative of the Local Union executive board informing them of the decision on the charges in their individual cases and advising each of them of their right to appeal the action of the Local Union to the executive board of the International Union. (Jt. Exhs. 7, 20.) By letters dated June 4, Cutler and Congrove individually filed appeals with the International Union chal- lenging the fines issued to them by the Local Union executive board. (Jt. Exhs. 8, 21.) Following the International Union’s receipt of Cutler’s and Congrove’s appeals, it directed the Lo- cal Union to furnish certain information concerning the under- lying issues in dispute, the procedural history of the charges, the decision by the local executive board, and a justification of that decision. The Local Union responded to the information request by letters dated July 21, and submitted certain docu- ments to the International Union. (Jt. Exhs. 10, 11, 23, 24.) By separate letters dated August 16, the International Union in- formed Cutler and Congrove that their individual appeals would be heard by the executive board of the International Union on November 8, in Waikoloa, Hawaii. (Jt. Exhs. 12, 25.) In individual letters dated January 10, 2005, the International Union informed the Local Union that the respective appeals by Cutler and Congrove had been denied by the International Un- ion executive board.11 Further, the letter referring to Cutler indicated that the penalty against him had been modified by raising the fine to be paid immediately from $1000 to $2000, with the remaining $2000 to be held in abeyance for 5 years, provided that no additional violations occurred. The letter re- ferring to Congrove indicated that the penalty against him had also been modified by raising the amount of the fine from $600 per offense to $2000 per offense, for a total of $4000, with $2000 to be paid immediately and $2000 to be held in abeyance for 5 years, provided that no additional violations occurred. Copies of these letters from the International Union were also sent to Cutler and Congrove, respectively. (Jt. Exhs. 13, 14, 26.) 11 The International Union executive board is referred to by the Re- spondents as the general executive board. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 594 John Holzer testified that Cutler and Congrove could have further appealed their fines to the international convention, which is held approximately every 5 years. The next conven- tion is scheduled for September 2006. In order for such an appeal to be timely, an aggrieved member must assert his ap- peal right within 60 days of an adverse decision from the Inter- national Union executive board. Neither Cutler nor Congrove has filed an appeal to the international convention. Holzer testified that he knows of only two members who have ever filed an appeal to this level. Further, he indicated that Con- grove has now paid his fine, but Cutler has not. C. The Status of Scott Cutler The parties strongly disagree as to the employment status of Scott Cutler at the time the work in question was performed at the Morongo project. It is the position of the General Counsel and the Employer that Cutler functioned, at least in part, as either a representative of the Employer for collective-bar- gaining purposes, and/or as its grievance adjuster. The Re- spondents dispute any such authority on the part of Cutler. This issue is critical in determining whether the Respondents’ conduct in disciplining Cutler constituted a violation of Section 8(b)(1)(B) of the Act. Only if Cutler functioned in this capacity could his fine by the Respondents be construed to unlawfully restrain or coerce the Employer. On the Morongo project, the Employer classified Cutler as the mechanic in charge. Cutler testified that in early February 2004, at the time the escalators were installed, he was responsi- ble for 7 to 10 crews of elevator constructors, with a total com- position of 20 to 24 employees. According to Cutler, in his capacity as mechanic in charge, he assigned work to the other elevator constructors, authorized the performance of overtime work, as long as it was not “too much,” and was “in charge of the payroll” on the project. The authorization of overtime for a week or two “would be no problem.” However, if more over- time was needed, he would have to get authorization from his superior. Regarding payroll, Cutler carried a journal with him in which he recorded the hours worked by the men in the vari- ous crews. Later, if there was a problem, dispute, or grievance concerning the hours worked by a member of one of his crews, Cutler was authorized to resolve it, adjusting the payroll re- cords if necessary. In addition to payroll for the Employer’s personnel, Cutler could authorize “cartage” reimbursement for employees who expended personal money on company-related business.12 It appears that Cutler assigned work on a regular basis to the elevator mechanics, helpers, and temporary mechanics em- ployed by Otis on the Morongo project. While the collective- bargaining agreement provides that a helper normally work under the direction of a mechanic,13 Cutler was directly respon- sible for deciding what particular job tasks were performed by which specific mechanics and helpers. Further, there are ap- parently some jobs that helpers can perform without a mechanic 12 Cartage reimbursement as used by the Employer, would typically involve an employee driving a personal vehicle on company business, and subsequently being compensated for the expense. 13 The term “mechanic” is understood in the trade to be a journey- man elevator constructor. in attendance, and Cutler was responsible for making such as- signments as well. According to Cutler, the standard agreement between the parties is fairly specific concerning the type of work that is within the jurisdiction of the Respondents, and must be per- formed by elevator constructors. However, he indicated there is some work that may not be as clearly defined in the contract. For example, he mentioned “prefabricated” sections of eleva- tors or escalators, where a decision would need to be made whether the contract required that the section be disassembled and then reassembled by the elevator constructors. Cutler testi- fied that as the mechanic in charge, he would make that deter- mination himself, unless the matter involved was “something big,” in which event he would need to consult with Gibas. Cutler did not have the authority to formally discipline an employee. However, it appears that he could informally, orally reprimand an employee for poor work performance or other inappropriate conduct. Further, he testified that he could have an employee who was not performing properly removed from the jobsite and relocated. He would do so by requesting of his superior that the offending employee be removed. Similarly, if he needed additional employees to complete the project or there were too many employees on the job, he could request a per- sonnel adjustment from his superior. Cutler believed that such a request by him would likely be accepted from upper man- agement. At the time of the Morongo project, Cutler’s imme- diate supervisor was Jeffrey Gibas, the Employer’s construction and modernization superintendent. Cutler currently is a member of the Local Union. He has been a member since 1981, except for a period in 2003, when he became a superintendent. At that time he voluntarily with- drew his union card. However, later that same year, 2003, his employment status changed to that of a mechanic in charge, and he had his union card reinstated. He has remained a union member ever since, including in his present position of assistant superintendent. The parties stipulated that during the period Cutler served as a superintendent, prior to February 2004, he was paid on a sal- ary basis. However, when he worked on the Morongo project as a mechanic in charge, he was paid on an hourly basis. Me- chanics, including mechanics in charge, helpers, and appren- tices are all paid on an hourly basis. Their respective wage rates are set forth in the standard agreement. (Jt. Exh. 1.) On cross-examination, Cutler acknowledged that as the me- chanic in charge on the Morongo project, he was not on the Employer’s collective-bargaining committee, had no formal role in the grievance and arbitration procedure under the terms of the standard agreement, and had no authority to settle griev- ances filed under that agreement. Still, there appears to be no doubt that Cutler could resolve informal “disputes,” such as a complaint by a member of one of his crews that he had not been paid for all the time worked. As noted above, Cutler had the authority to resolve such an informal dispute directly with the employee, without the involvement of his superiors. Jeffrey Gibas testified that as the mechanic in charge on the Morongo project, Cutler was responsible for the day-to-day operation of the project, including its manpower needs. Ac- cording to Gibas, Cutler was authorized to assign work to the ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 595 employees, to decide on the priority of the work, to determine whether overtime was needed, and to assign it as necessary. Gibas spoke with Cutler an average of twice a week, and only came out to the jobsite about once a month. Gibas considered Cutler his “eyes on the jobsite.” Just as Cutler had testified, Gibas indicated that payroll was a major responsibility, with Cutler having the authority to resolve disputes over hours of work directly with the involved employees. During cross-examination, Gibas testified that the Respon- dents come to him to resolve formal grievances at the first step in the contract grievance and arbitration procedure. He ac- knowledged that Cutler had no involvement in the formal grievance procedure. While he indicated that Cutler could respond to “oral grievances,” it appears that what he was refer- ring to were informal, oral disputes, such as payroll discrepan- cies. In this respect, his testimony corroborated that of Cutler. Further, in support of Cutler, Gibas testified that Cutler was authorized to give employees verbal warnings for inappropriate conduct, but could not issue formal “performance letters” under the terms of the standard agreement. However, according to Gibas, he would accept a recommendation from Cutler that an employee be disciplined. Also, Gibas testified that Cutler could recommend that additional employees be hired for the project, or if there were an excess, that employees be removed from the job. He clearly left the impression that such a recommendation from Cutler was likely to be adopted. John Holzer testified that the Employer’s representative in the Los Angeles area with whom he would first raise griev- ances under the terms of the standard agreement was Jeffrey Gibas. He contends that this is what he did in February 2004, regarding the issue of ironworkers allegedly performing the work of elevator constructors at the Morongo project. While he claims that the oral step in the formal grievance procedure oc- curred when he first raised this issue with Gibas, I found his testimony in this regard very confusing and somewhat contra- dictory. At first he testified that the oral step occurred on Feb- ruary 20, apparently corresponding to the grievance form nota- tion on Joint Exhibit 29, but then he said that the oral step oc- curred on March 22, apparently corresponding to the grievance form notation on Charging Party’s Exhibit 1. In any event, it was clearly his testimony that the formal grievance procedure was initiated by the Local Union at the oral step with the griev- ance being brought to the attention of Gibas, whenever that occurred. In this regard, there is really very little difference in the tes- timony of Gibas and Holzer. Both men agree that the formal grievance procedure under the terms of the standard agreement is initiated at the oral step with a grievance being brought to Gibas’ attention by a representative of the Respondents.14 14 The standard agreement, art. XV, par. 2, indicates that the first step in the grievance/arbitration procedure is the “Oral Step.” That provision reads in part, “Any employee, local union, or the Employer with a grievance . . . shall discuss the grievance with the designated Employer Representative. . . . The Employer shall designate to each local union the Employer’s Representative(s) for the purpose of re- sponding to grievances at this step. If the grievance is initiated by an employee, the Local Business Representative shall be present during However, this does not diminish the position of the General Counsel and the Employer that as the mechanic in charge on the Morongo project, Cutler had the authority to directly re- solve certain informal disputes that arose with employees on the jobsite. The evidence in support of this contention remains unrebutted by the Respondents. Section 2(11) of the Act defines a supervisor as “any indi- vidual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” It is well estab- lished that possession of even one of these enumerated powers is sufficient to establish supervisory status. NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir. 1948), cert. de- nied 355 U.S. 908 (1949). In this regard, it is clear that Cutler was a supervisor as de- fined in the Act when he served as the mechanic in charge on the Morongo project. The evidence is unrebutted that he exer- cised the authority to assign work to employees, to direct them in that work, to award overtime, and to adjust employee griev- ances. Such grievances included disputes as to wages earned and whether certain work was covered by the collective- bargaining agreement. Further, it is undisputed that Cutler also had the authority to effectively recommend to his superior, Jeffrey Gibas, the discipline of employees, as well as their transfer to a different project. However, Cutler’s supervisory status does not automatically mean that he functioned as a representative of Otis for the pur- poses of collective bargaining or the adjustment of grievances under Section 8(b)(1)(B) of the Act. This issue will be ad- dressed later in this decision. D. The Fine Issued to Scott Congrove The parties strongly disagree as to whether the discipline of Congrove constituted a violation of Section 8(b)(1)(A) of the Act. Preliminarily, it should be noted that it is the position of the Respondents that the fines issued to the elevator construc- tors who worked to raise the escalators on the Morongo project were specifically the result of the failure of those individuals to call the union hall and question the use of ironworkers on the project. Counsels for both Respondents argue throughout their respective posthearing briefs that the fines issued to Congrove, Cutler, and the other constructors were for not contacting the Local Union when the constructors learned that a subcontractor crew of ironworkers was going to construct a gantry on the project. The Respondents contend that the constructors were not fined for actually working with the ironworkers. Local Union Business Agent Holzer testified at some length that un- ion members are repeatedly instructed to call the union hall any time they have any questions about whether a signatory con- tractor is violating the standard agreement. They are to be the “eyes and ears” of the Local Union and immediately report any the discussion.” The next step in the process is referred to as the “Writ- ten Step One.” (Jt. Exh. 1.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596 potential violation of the contract. The Respondents vigorously argue that it was the failure of Congrove and Cutler to contact the Local Union with a complaint about ironworkers allegedly performing constructors work under the terms of the contract which was the reason for their fines. They deny that the fines were issued because the constructors followed the Employer’s direction and worked with ironworkers. The problem with the Respondents’ argument is that it is not supported by the facts. As was set forth above, the fines issued by the Respondents generated a considerable amount of paper- work. Nowhere in those documents is there any mention of a failure by the constructors to “call the union hall.” But, to the contrary, there are references to the constructors working with ironworkers. The charge that Holzer originally filed against Congrove specifically states that the “offense” he committed was “work[ing] with a composite crew of ironworkers and ele- vator const[ructors] in rigging and install[ing] of 2 escalators at Morongo Casino.” (Jt. Exh. 2.) Further, at the time of the hearing before the Local Union executive board, Holzer’s charges against Congrove were summarized in part as, “[w]orking with a composite crew of ironworkers, and allowing another trade to do our work.” (Jt. Exh. 4 (trial summary), p. 5.) Finally, an excerpt from the minutes of the Respondent International’s executive board meeting lists the charges against Congrove as being “one of the crew working hoisting escala- tors, where ironworkers installed the gantry hoist.” (Jt. Exh. 14 (minutes of general executive board), p. 2.) Further, I credit the testimony of Scott Cutler that when Holzer first confronted him at the Morongo project about the hoisting of the escalators, Holzer mentioned his concerns about a “composite crew,” and actually explained to Cutler what this term meant. Holzer does not dispute the substance of this conversation. Accordingly, I conclude that Congrove and Cutler were charged with and found guilty of working with ironworkers in raising the escala- tors, which work was allegedly exclusively constructors’ work under the terms of the standard agreement. I specifically reject the Respondents’ contention that the constructors were disci- plined for not calling the union hall. The complaint alleges that the Respondents’ discipline of Congrove constituted a violation of Section 8(b)(1)(A) of the Act.15 According to the statute, the unlawful restraint or coer- cion by the Unions must involve Congrove’s exercise of his Section 7 rights. The Respondents’ essentially contend that Congrove’s conduct did not involve Section 7 activity. Con- grove’s conduct involved following his supervisor’s direction in standing aside while the subcontractor’s ironworker employ- ees assembled and later disassembled the gantry. At first glance, it would seem that no Section 7 activity is involved. 15 It should be noted, that in his posthearing brief, counsel for the General Counsel argues for the very first time that the fines issued to Scott Cutler also constitute a violation of Sec. 8(b)(1)(A). There is no such allegation in the complaint and the issue was neither raised nor litigated at the hearing. According, I will not address this issue in de- tail, as I do not believe the matter is properly before me. However, I would simply add that as I have concluded that Cutler was a supervisor as defined in the Act, any discipline issued against him by the Respon- dent Unions could not constitute restraint or coercion of an “employee” as specified in Sec. 8(b)(1)(A). However, the Board and the courts have over time concluded that an employee performing his work duties on behalf of his employer is, in fact, engaged in Section 7 activity as that term is applied in Section 8(b)(1)(A). In Carpenters District Council of San Diego (Hopeman Bros.), 272 NLRB 584 (1984), the Board adopted the findings of its administrative law judge that a nonsupervisory leadman, who reported a fellow employee for a violation of the em- ployer’s code of conduct, and who was charged by his union with defaming a union brother and fined, was engaged in Sec- tion 7 activity. The judge acknowledged that the leadman was not engaged in Section 7 activity under a very strict reading of the statute, but concluded that “both the Board and the courts have given a broader scope to Section 8(b)(1)(A).” For that proposition, the judge cited Communication Workers Local 5795 (Western Electric Co.), 192 NLRB 556 (1971), and Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977) (Board adopted administrative law judge’s deci- sion finding union’s fine and suspension of employee/member for performing his work duties directly affects his employment status and violates Section 8(b)(1)(A).) As noted, in the Carpenters District Council case, the Board adopted the judge’s decision finding that the union violated the Act by fining the leadman and by threatening to suspend him from membership because he performed his job duty and re- ported a fellow employee for breaching a company rule. Fur- ther, the judge concluded that the Supreme Court had estab- lished that under the proviso to Section 8(b)(1)(A) of the Act, a union’s discipline of a member for engaging in Section 7 activ- ity would not violate the Act only where the discipline is (1) geared to a legitimate union interest; (2) impairs no policy imbedded in the labor laws; and (3) is reasonably enforced against a union member who is free to leave the union. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967); Scofield v. NLRB, 394 U.S. 423 (1969).16 However, the judge in the Car- penters District Council case concluded, with the Board con- curring, that the union rule in question was not geared to a le- gitimate union interest, as its application would result in the employee’s dereliction of duty, and could lead to his discharge, which would obviously affect his employment relationship. In a more recent case, the Board continued to find that an employee’s conduct in following the requirements of his em- ployment constituted Section 7 activity in the context of Sec- tion 8(b)(1)(A) of the Act. The Board affirmed an administra- tive law judge who found that a union’s punishment of a non- supervisory leadman/union member for complying with his employer’s instruction to report coworkers’ misconduct consti- tuted a violation of the Act. The Board specifically stated that the union’s attempt to discipline the leadman for following his duty to report work infractions “affected his employment status.” Teamsters Local 439 (University of the Pacific), 324 NLRB 1096 (1997), enfd. 175 F.3d 1173 (9th Cir. 1999). See also Communications Workers Local 13000 (Verizon Commu- nications), 340 NLRB 18 (2003) (union violates Sec. 16 The proviso reads as follows: “That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 597 8(b)(1)(A) when it requires employee-members to refuse to work “mandatory” overtime). Of particular significance was the judge’s conclusion in the Teamsters Local 439 case that the leadman fined by the union was engaged in traditional Section 7 activity when he made his decision to report a fellow employee for misconduct. The judge held that this involved the employee’s decision to “re- frain” from engaging in “concerted activity,” which activity would have been acting in concert with other employees in objecting to the employer’s outstanding orders by ignoring them. As Section 7 of the Act obviously gives employees both the right to engage in protected concerted activities and “the right to refrain from any or all such activities,” it is, in my view, certainly logical that by refusing to join with other em- ployees who wished to ignore the employer’s outstanding or- ders, the leadman was refraining from such activities, consis- tent with Section 7. As noted, the Board affirmed the adminis- trative law judge’s decision. There is no doubt that Congrove, who at the time was a tem- porary mechanic, was merely following the directions of his supervisor, Scott Cutler, when he “stood down” and observed the subcontractor’s ironworker employees assemble and later disassemble the gantry. To have done otherwise would have constituted insubordination for which he could have been disci- plined, perhaps even discharged. Apparently, the Respondents expected him to have protested the assignment of work to the ironworkers, refusing to participate in any further efforts to raise the escalators using the gantry belonging to Halbert Brothers. Despite the arguments of counsels for the Respon- dents in their posthearing briefs, I view this situation as what is commonly referred to as a “Hobson’s Choice.”17 Congrove could either refuse the orders of his supervisor and risk dis- charge, or ignore the desires of his Local Union and face being fined or even expelled from the Local and International Union. Following the precedent established by the Board, I conclude that Congrove was engaged in Section 7 activity when he de- cided to follow the direction of his supervisor and raise the escalators using the gantry assembled and later disassembled by the ironworkers employed by Halbert Brothers. To have done otherwise would have potentially subjected him to discipline affecting his employment status. Further, I believe that in not refusing to raise the escalators with the subcontractor’s gantry, Congrove was exercising his Section 7 right to refrain from engaging in the concerted activity of objecting to the Em- ployer’s outstanding orders. I am unpersuaded by the Respondents’ argument that Con- grove has remained with the Employer, currently as a mechanic in charge, without any disciplinary action taken against him by the Employer or threat of any such action. Certainly this does not alter the fact that the Respondents’ conduct in fining Con- grove restrained and coerced him in the exercise of his Section 7 rights, as the fine potentially affected his future employment relationship with Otis. The next time he is faced with such a “Hobson’s Choice,” Congrove may well side with the Local Union, endangering his continued employment with Otis. 17 The phrase “Hobson’s Choice” refers to a choice between two un- desirable options. Finally, the Respondents argue that the Employer was the force behind the filing of the appeals of the fines by Congrove and Cutler, and, of course, the Employer was also the Charging Party in this proceeding before the Agency. The Respondents take the position that for that reason the complaint should be dismissed. They argue that the Employer is trying to achieve an aim through the unfair labor practice proceeding that it failed to achieve at the bargaining table, namely a contractual right to subcontract the assembly and use of gantries in rigging and hoisting escalators. However, I find these arguments to be totally without merit. There is absolutely no reason for the undersigned to interpret the collective-bargaining agreement and determine whether the Employer’s use of a subcontractor to perform this work was in breach of the contract or not. Such matters are not relevant to the issues before me. The Em- ployer’s “motives” in bringing these charges to the Board, or its assistance to Congrove and Cutler in appealing their fines, has no bearing on the question of whether the Act has been violated by the Unions’ conduct. These are not private rights being vindicated by this proceeding, but, rather, public policy that is at stake. It simply does not matter whether Otis stands before the Agency with “clean hands” or not. What concerns the Agency is whether Congrove and Cutler had their rights under the Act violated by the Respondents’ attempt to discipline them.18 Based on the above, I conclude that in the matter of Scott Congrove, the Respondents’ conduct in fining19 him constitutes a violation of Section 8(b)(1)(A) of the Act, as alleged in para- graphs 7(a), (b), (d), and (e) and 10(a) and (b) of the complaint. E. The Fine Issued to Scott Cutler The complaint alleges that Cutler was fined by the Respon- dent Unions in violation of Section 8(b)(1)(B) of the Act. As noted earlier, I have concluded that as the mechanic in charge on the Morongo project, Cutler was a supervisor as defined in Section 2(11) of the Act. However, in order to find that the Employer was unlawfully restrained or coerced by the Respon- dents’ fines issued to Cutler, it must first be determined whether Cutler was the Employer’s “representative for the pur- poses of collective bargaining or the adjustment of grievance” as set forth in Section 8(b)(1)(B). 18 Similarly, the argument of counsel for the Local Union that Otis allegedly violated Sec. 8(a)(2) of the Act which, therefore, excuses the Respondents’ conduct is devoid of any merit. So far as I am aware, no such charge was filed by the Respondents against the Employer, and there has certainly been no finding by the Board of any such violation. Further, for the reasons that I expressed above, any unfair labor prac- tices committed by the Employer would be irrelevant to the issues before me. 19 In his posthearing brief, counsel for the Employer contends that the Respondents also unlawfully punished Congrove by extending the term of his union “probationary period.” The complaint does not allege any such conduct by the Respondents, and I could find no reference to an extension of his probationary period in any of the documents in evidence related to Congrove’s discipline. Further, so far as I can determine, the issue was not raised nor litigated at the hearing. Accord- ingly, this allegation is not properly before me, and I make no finding regarding it. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598 Simply exercising some supervisory authority is not suffi- cient to find that an individual is a collective-bargaining repre- sentative or grievance adjuster. The Supreme Court has held that in order to establish a violation of Section 8(b)(1)(B), it must be shown that the individual involved had the actual au- thority to engage in grievance adjustment or collective-bar- gaining activities on behalf of the Employer. NLRB v. Electri- cal Workers Local 340, 481 U.S. 573 (1987) (Local 340). Prior to the Local 340 case, the Board had taken the position that Section 8(b)(1)(B) should be broadly construed to cover any 2(11) supervisor, because in the future such a supervisor could become engaged in collective bargaining or grievance adjust- ment. This theory was referred to as the “reservoir doctrine,” as it created a pool or reservoir of potential authority to cover any 2(11) supervisor. In the Local 340 case, the Court made it clear that Section 8(b)(1)(B) prohibits union discipline of only those supervisors who actually perform 8(b)(1)(B) duties. Id. at 586. I believe that the record is clear that Cutler did, in fact, actu- ally perform 8(b)(1)(B) duties during the period of time that he was the mechanic in charge on the Morongo project. He was the only supervisor present on the jobsite on a daily basis, re- sponsible for up to 24 Otis employees. He was often a griev- ance adjuster. Frequently, those grievances involved payment issues, with employees disputing the amount they were paid. Cutler was required to listen to the complaint, investigate its validity, review payroll records, and resolve the dispute, in- forming the involved employee as necessary. These grievances were oral, and “informal” in the sense that they were not steps in the grievance and arbitration procedure as set out in the stan- dard agreement. Nevertheless, they were important to both the employees, and presumably their Union, and to the Employer. Further, if such disputes could not be resolved in an informal way, they might very well become formally filed grievances under the terms of the contract. Also, Cutler sometimes handled complaints registered di- rectly by the Local Union. It is highly significant to recall that Local Union Business Agent Holzer first brought his concerns about the gantry assembly to Cutler. It was during this discus- sion with Cutler that he expressed his complaint about the Otis constructors allegedly working in a “composite crew” with ironworkers in violation of the standard agreement. This con- versation may not have constituted a formal grievance under the terms of the contract, but the substance of the dispute was obviously of great concern to the Respondents, and resulted in the filing of a formal grievance and the issuance of intraunion fines. The Respondents make much of the fact that under the terms of the standard agreement, the first step in the grievance procedure is an oral complaint made not to Cutler, but to his superior, Superintendent Gibas. Still, that does not detract from the fact that Cutler was the Employer’s representative on the jobsite, and the person with whom Holzer decided to first raise his complaint about the gantry assembly. It is worth consider- ing that had Cutler and Holzer been able to resolve their dispute in this first conversation, the matter would have ended at that point, making unnecessary all the subsequent actions by the Unions and their ramifications. As part of the process of adjusting grievances, Cutler was in- volved on a regular basis in contract interpretation. Both Cutler and Holzer testified about disputes that frequently arose regard- ing the use of prefabricated materials. The standard agreement provides a detailed explanation of what specific work an em- ployer is permitted to have prefabricated and what work must be done on a jobsite by the elevator constructors. Nevertheless, disputes are apparently very common. It was the daily respon- sibility of Cutler on the Morongo project to determine under the terms of the contract what work could be prefabricated, and to resolve any dispute with the Respondents. While Cutler indi- cated that he would have to consult with Gibas on significant prefabrication issues, he testified that, as the mechanic in charge on the site, he was able to directly resolve such matters with the Local Union when the dispute involved less significant prefabrication issues. It is undisputed that during the specific conversation with Holzer where the gantry assembly was dis- cussed, Holzer also complained to Cutler about prefabrication work on the escalators allegedly in violation of the contract. It is significant to note that Cutler was involved in contract interpretation over the very issue that ultimately led to the deci- sion to use a subcontractor to assemble the gantry. Both Cutler and Gibas testified that they discussed the need for a gantry to raise the escalators, and although Gibas made the ultimate deci- sion to use an outside subcontractor, he considered Cutler’s opinion.20 Following the Supreme Court’s holding in Local 340, supra, various decisions by the Board fully support the position that Cutler, as the mechanic in charge on the Morongo project, per- formed 8(b)(1)(B) duties. In Sheet Metal Workers Local 68 (DeMoss Co.), 298 NLRB 1000, 1003 (1990), the Board con- cluded that adjusting grievances at a low level, before they become formalized in the grievance arbitration procedure, con- forms to the grievance adjustment requirements in Section 8(b)(1)(B). According to the Board, one of the purposes of that section of the Act is to protect the employer’s interest in having an individual of its own choosing to represent it in dealings with the union that represents its employees. Id. Significantly, in a number of cases, the Board has found ele- vator constructor mechanics in charge, who possess many of the same duties and responsibilities as Cutler, to be 8(b)(1)(B) supervisors. In Elevator Constructors Local 1 (National Eleva- tor Industry), 339 NLRB 977 (2003), the mechanic in charge was the only employee available daily to resolve employee disputes and problems, including payroll disputes, job assign- ments, and overtime assignments. The Board concluded that the fines issued to this individual violated Section 8(b)(1)(B) as they would likely have an inhibiting effect on his future con- duct as a supervisor, company representative, and grievance adjuster. Similarly, in Elevator Constructors Local 36 (Mont- gomery Elevator Co.), 305 NLRB 53 (1991), the Board held 20 Of course, the underlying dispute between the Unions and the Employer involves the issue of whether Otis violated the standard agreement in using the employees of a subcontractor to construct a gantry on the project. However, as I have indicated, I believe that the resolution of that dispute between the parties is irrelevant to the consid- eration of the unfair labor practice charges before me. ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 599 that a mechanic in charge was fined by his union because of the way he interpreted the contract regarding the use of a crane. According to the Board, the imposition of the fine would poten- tially have an adverse effect upon his future performance as a management representative and grievance adjuster. He was the only supervisor on site to resolve issues of contract interpreta- tion, such as work assignments and conflicts involving pay, and interpersonal disputes. In finding a violation of Section 8(b)(1)(B), the Board was not dissuaded by the individuals lack of participation in the collective-bargaining process or the for- mal contract grievance procedure. While the Respondents argue that the authority Cutler had to resolve wage disputes was merely “ministerial,” the Board has repeatedly found a mechanic in charge’s ability to deal with compensation issues to be grievance adjustment, since compen- sation is a critical term and condition of employment. Elevator Constructors Local 10 (Thyssen General Elevator Co.), 338 NLRB 701, 702 (2002) (denial of wage claim constitutes griev- ance adjustment within the meaning of Sec. 8(b)(1)(B)); Eleva- tor Constructors Local 36, supra at 56 (resolving pay griev- ances confers 8(b)(1)(B) status). In his posthearing brief, counsel for the Respondent Interna- tional Union agues that in order for there to be a violation of Section 8(b)(1)(B), Cutler must have been directly engaged in grievance adjustment or contract interpretation during the inci- dent that led to his being fined by the Respondents. In support of this proposition, he cites Sheet Metal Workers Local 33 (Ca- bell Sheet Metal & Roofing), 316 NLRB 504 fn. 1 (1995). While it appears that this case is correctly cited for the proposi- tion alleged, other, more recent Board cases, as cited above, do not seem to have this requirement. In any event, I am of the view that Cutler was disciplined precisely because he inter- preted the contract to permit the Employer to have the gantry constructed by a subcontractor employing employees other than elevator constructors. Therefore, he was directly engaged in contract interpretation during the very incident that led to his being disciplined. Based on the above, I conclude that the fines imposed on Scott Cutler by the Respondent Unions potentially had an ad- verse impact upon his future performance as a management representative and grievance adjuster. As such, the Unions restrained and coerced Otis in the selection of its grievance adjustment representative. Accordingly, I find that the Re- spondent Unions violated Section 8(b)(1)(B) of the Act, as alleged in paragraphs 9(a), (b), (d), and (e) and (11)(a) and (b) of the complaint. F. The Respondents’ Motions As I noted above, at the commencement of the hearing in this case, the Respondents filed a series of motions seeking the dismissal of the unfair labor practice charges alleged in the complaint, or, in the alternative, a deferral of these charges to the contract grievance arbitration procedure and/or to the inter- nal union appeal process available to union members who have been disciplined. I reserved ruling on these motions to give the parties the opportunity to fully address the issues in their post- hearing briefs. I will now rule on the outstanding motions. The Respondent International Union seeks a dismissal of the complaint, as allegedly it fails to state a prima facie case under either Section 8(b)(1)(A) or (B) of the Act. The Respondent Local Union seeks a similar dismissal of that portion of the complaint that alleges a violation of Section 8(b)(1)(A). Coun- sel for the General Counsel and counsel for the Employer op- pose said motions. As is reflected above, I have found the Re- spondents to have violated both Section 8(b)(1)(A) and (B) of the Act. Concomitant with such a finding, I deny the Respon- dents’ motions to dismiss for a failure to state a prima facie case. The Respondent Local Union seeks a dismissal of the entire complaint “by reason of the bar of the statute of limitations under NLRA Section 10(b).” Section 10(b) of the Act states in part, “[t]hat no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and service of a copy thereof upon the person against whom such charge is made.” Counsel for the Local Union contends that the original charge, which was filed on April 6, 2005, was untimely as the complaint alleges the Local Union fined Cutler and Congrove on about May 12, 2004, nearly a year before the charge was filed. May 12 was the date on which the Local Union executive board’s decision finding Cutler and Congrove guilty and fining them was an- nounced to the union membership. It is the position of counsel for the Local Union that following that event, no actions were taken by the Respondent Local Union which could be deemed unfair labor practices. Implicit in this argument is the conten- tion that the Local Union was not responsible for any subse- quent actions taken by the Respondent International Union pursuant to Cutler’s and Congrove’s appeals, and that at that point “the matter was out of their [the Local Union’s] hands.” Both the General Counsel and the Charging Party oppose this motion, with the Respondent International Union not address- ing the issue. The argument of counsel for the Local Union is contrary to Board authority. “The Board has traditionally held that ‘a charge concerning union discipline is not time-barred until 6 months after the imposition of the discipline becomes final, regardless of when the disciplinary proceeding may have been instituted.’” Sheet Metal Workers Local 75 (Owl Construc- tors), 290 NLRB 381, 383 (1988). In that case, the Board con- cluded that the statute of limitations on an 8(b)(1)(A) unlawful fines claim did not begin until after the International union affirmed the imposition of the fines by the local union. Id. at 384. In the matter at hand, the facts are very similar. Following the issuance of their fines by the Local Union, Cutler and Congrove appealed those fines to the Respondent International Union in accordance with the constitution and by- laws of both Unions. (Jt. Exh. 27, art. XVIII, sec. 11, p. 64, and Jt. Exh. 28, art. 15, sec. 10, pp. 15–10.) The International Union denied the appeals, increased the fines, and reported its decisions to the Local Union by letters dated January 10, 2005, with respective copies to Cutler and Congrove. (Jt. Exhs. 13, 26.) In my view, it is clear that the Respondents were acting in concert regarding the discipline issued to Cutler and Congrove. Their actions were not individual and distinct, as if in a vac- uum. The fines that were issued by the Local Union were up- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600 held and increased by the International Union. As such, the last action which constituted an unfair labor practice was the Re- spondent International Union’s notification to the Respondent Local Union, with copies to Cutler and Congrove, of its denial of the appeals and increase in the fines. Accordingly, the stat- ute of limitations in Section 10(b) of the Act did not begin to run until January 10, 2005, with respect to the charges against both Respondents. Sheet Metal Workers Local 75, supra; Sheet Metal Workers Local 33 (Cabell Sheet Metal), 316 NLRB 504 fn. 1 (1995); Operating Engineers Local 714 (Contractors Foundation Drilling Co.), 262 NLRB 1161, 1164 (1982); Elec- trical Workers Local 716 (Fiske Electric Co.), 203 NLRB 333, 336 (1973); Communications Workers Local 9511 (Pacific Telephone & Telegraph Co.), 188 NLRB 433, 435 (1971). As the Respondents continued to commit unfair labor prac- tices against Cutler and Congrove through January 10, 2005, the subsequent unfair labor practice charges, as alleged in the complaint, were all timely filed within the period specified in Section 10(b) of the Act.21 Accordingly, I deny the Respondent Local Union’s motion to dismiss the complaint on the basis that the charges were untimely filed. Both Respondents move for a deferral of these proceedings to the internal union discipline procedure, which they allege has yet to be fully exhausted by Cutler and Congrove. Further, the Respondents indicate a willingness to waive any time limits for the filing of an appeal in order to exhaust the internal union discipline procedure. Counsel for the General Counsel and counsel for the Charging Party oppose any such deferral. Following the adverse decision on the appeals by the Interna- tional Union general executive board, there remains one more step in the appeal procedure, namely an appeal to the interna- tional union convention. (Jt. Exh. 27, International Union con- stitution and bylaws, art. XVIII, secs. 10, 13.) Local Union Business Agent Holzer testified that the International Union convention is held approximately every 5 years, with the next one scheduled for September 2006. Interestingly, he testified that he knows of only two members who have ever filed ap- peals of union discipline to the level of the International con- vention. Counsel for the Local Union contends, in essence, that it is inconsistent of the General Counsel to take the position that Section 10(b) of the Act does not begin to run until the last action on the appeals by the International Union, while at the same time refusing to defer these proceedings to the last step in the internal union discipline appeal process. Counsel cites to Collyer Insulated Wire, 192 NLRB 837 (1971); and United Technologies Corp., 268 NLRB 557 (1984), for the proposition that “the Board will normally defer to pending griev- ance/arbitration procedures, under collective-bargaining agree- ments.” While acknowledging that “there is admittedly scant precedent of deferral in internal union proceedings,” counsel 21 The last charges filed, as alleged in the complaint, were amended charges filed and served on the Respondents on June 29, 2005. This date is less than 6 months following the commission of the last unfair labor practice by the Respondents on January 10, 2005. draws an analogy for such a deferral to the Board’s policy un- der Collyer and United Technologies.22 To begin with, I see no inconsistency in the General Coun- sel’s position. The statute “is what it is,” meaning that Section 10(b) of the Act establishes a statute of limitations for unfair labor practices. The General Counsel is not at liberty to pick and choose how to apply the statute. I have already concluded that the General Counsel’s interpretation of Section 10(b) has been correctly applied; and the unfair labor practice charges in this case were timely filed, based on the last action by the In- ternational Union executive board in denying the appeals and increasing the fines. This does not establish that, therefore, the General Counsel must defer these charges to the final step in the internal union discipline appeal process. Any deferral by the Board must stand on its own merits, which merits I find sorely lacking in this instance. In Collyer and United Technologies, supra, the Board estab- lished a standard for deferring to neutral arbitration proceed- ings. I see no evidence that this internal union discipline- appeal process is at all neutral. As noted earlier, at the original Local Union executive board hearing on the charges filed against them, Cutler and Congrove were not permitted to call witnesses, apparently because those witnesses were not union members. Further, they had no real opportunity to appear and testify in their own defense at the International Union executive board hearing, which was held in the State of Hawaii.23 While there is no verbatim record of the “hearing” held on the appeal of the fines by the International Union executive board, the undersigned certainly questions the impartiality and fairness of a process which resulted not only in a denial of Cutler’s and Congrove’s appeals, but significantly increased the discipline each man received. The very idea behind deferral is to afford the parties to a dis- pute before the Board an opportunity to put into practice a mechanism that they have previously agreed upon for a disin- terested third party to resolve that dispute. The Respondents’ internal union discipline-appeal process is ill suited for such deferral. Certainly, the Employer is not a party to such a proc- ess, especially where its managers attempted to testify on be- half of Cutler and Congrove, but were prevented from doing so by officials of the Respondent Local Union. Further, I see nothing about the process which would indicate that at any stage there exists a “disinterested third party” who has the au- thority to rule in favor of the appellants. To the contrary, as it was the agents of the Respondents who both charged Cutler and Congrove with offenses and who sat in judgment of them, they can certainly not be considered unbiased. I believe that it would be totally inappropriate for the Board to abdicate its authority and defer this matter to the last step in a process which I consider to be fundamentally unfair. This is especially true where this final step is to an international union convention held only once every 5 years, and where apparently it is at best rare for appeals by members to be heard. Accord- 22 Counsel for the International Union adopts and incorporates coun- sel for the Local Union’s arguments on this issue. 23 In all likelihood, the cost of travel to Hawaii for Cutler and Con- grove would have been prohibitive. ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 601 ingly, I deny the Respondents’ motion to defer this proceeding to the internal union discipline appeal process. Finally, the Respondents move for deferral of this proceed- ing to the grievance-arbitration procedure in the standard agreement. They ask essentially that the resolution of the pre- viously filed grievance regarding the issue of the gantry assem- bly by employees other than elevator constructors be held as conclusive of the issues before the Board.24 Counsel for the General Counsel and counsel for the Charging Party oppose these motions. The Board will defer to an arbitrator’s decision where the proceedings meet the following test: (1) the proceedings are fair and regular; (2) all parties agree to be bound; (3) the contractual and unfair labor practice issues are factually parallel; (4) the arbitrator was presented generally with facts relevant to resolv- ing the unfair labor practice allegation; and (5) the decision is not clearly repugnant to the purpose and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955); Olin Corp., 268 NLRB 573 (1984). Further, the Board has deferred to griev- ance adjustments and grievance settlements short of arbitration. Griffith-Hope Co., 275 NLRB 487, 488 (1985); Alpha Beta Co., 273 NLRB 1546, 1547 (1985). However, in my view, this matter is totally inappropriate for any type of deferral, full or partial, to the grievance settlement entered into between the Employer and the Respondents. Pre- liminarily, it is entirely irrelevant to this case whether Otis vio- lated the standard agreement or not. For a resolution of the issues before the undersigned, it is not necessary to determine whether Otis or the Respondent Unions were correct in their respective interpretations of the contract. Assuming, for the sake of argument, that the Respondents’ interpretation of the contract was correct, such a finding would in no way serve to exculpate the Respondents for having fined Congrove and Cut- ler. Congrove was fined because he followed his supervisor’s direction, and Cutler was fined for making a determination as the Employer’s grievance adjuster that the gantry could be as- sembled by employees other than elevator constructors and/or for carrying out that determination. While the underlying in- terpretation of the contract by the Employer may have been incorrect, the Respondents’ actions in fining Congrove were still a violation of Section 8(b)(1)(A) and in fining Cutler still a violation of Section 8(b)(1)(B). The fines serve to unlawfully restrain and coerce the Employer and employees regarding this work dispute and potentially others in the future, regardless of whether Otis violated the contract or not.25 It is for those rea- 24 Counsel for the Respondent International Union asks that the Board “defer to the grievance resolution and find that the fines (and the affirmance of the fines) were not unlawful because the discipline was for the failure to abide by the Otis Agreement.” However, counsel for the Respondent Local Union seeks a somewhat less encompassing finding, acknowledging that “the grievance does not resolve the entire charge,” and asking only that through the grievance resolution it “be considered conclusively established that the activity in question was, in fact, a violation of the collective bargaining agreement.” 25 It is at least worth noting that Otis continues to take the position that its actions did not constitute a violation of the standard agreement. The Employer’s senior labor relations manager, Jeffrey Ricapito, testi- fied that Otis settled the grievance merely because it was not worth sons that the Act has been violated by the actions of the Re- spondents. There are a number of additional reasons why the Board should not defer this matter to the grievance settlement reached between Otis and the Respondents. It was Congrove and Cutler who were fined. They certainly did not agree to be bound by the grievance settlement, even if the parties to the standard agreement did. The unfair labor practices arise from the Re- spondents’ processing of intraunion charges against Congrove and Cutler for allegedly violating the Respondents’ constitution and by-laws, while the grievance under the contract involved the Employer and the Unions, totally different parties. Even more significant, the unfair labor practice issues were not con- sidered by the Employer and the Respondents in resolving the grievance. The contract violations alleged by the Respondents in the grievance do not even remotely parallel the unfair labor practice issues in the case before me. Accordingly, I conclude that it would be inappropriate to de- fer any of the unfair labor practice issues before me to the grievance-arbitration procedure in the standard agreement, or to the resolution of the specific grievance filed by the Unions and settled by the parties. I deny the Respondents’ motion to so defer. CONCLUSIONS OF LAW 1. The Employer, Otis Elevator Company, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The International Union of Elevator Constructors (the Re- spondent International Union) is a labor organization within the meaning of Section 2(5) of the Act. 3. The International Union of Elevator Constructors, Local 18 (the Respondent Local Union) is a labor organization within the meaning of Section 2(5) of the Act. 4. By the following acts and conduct the Respondent Local Union has violated Section 8(b)(1)(A) of the Act: Fining Scott Congrove because he followed the directions of the Employer in performing his work duties in a manner the Respondent Local Union asserted violated the collective- bargaining agreement between the Respondents and the Em- ployer. 5. By the following acts and conduct the Respondent Interna- tional Union has violated Section 8(b)(1)(A) of the Act: Denying Scott Congrove’s appeal of his fine and increasing the amount of the fine imposed on him, because he followed the directions of the Employer in performing his work duties in a manner the Respondent International Union asserted violated the collective-bargaining agreement between the Respondents and the Employer. 6. By the following acts and conduct the Respondent Local Union has violated Section 8(b)(1)(B) of the Act: Fining Scott Cutler because he performed his duties on be- half of the Employer by interpreting the collective-bargaining agreement between the Respondents and the Employer in a further efforts to contest the issue. However, he strongly denies that the settlement of this particular grievance by the Employer serves as bind- ing precedent in any similar future dispute. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602 manner inconsistent with the Respondent Local Union’s inter- pretation of the agreement. 7. By the following acts and conduct the Respondent Interna- tional Union has violated Section 8(b)(1)(B) of the Act: Denying Scott Cutler’s appeal of his fine and increasing the amount of the fine imposed on him, because he performed his duties on behalf of the Employer by interpreting the collective- bargaining agreement between the Respondents and the Em- ployer in a manner inconsistent with the Respondent Interna- tional Union’s interpretation of the agreement. 8. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents engaged in certain unfair labor practices, I find that they must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act, including the posting of appropriate remedial notices. The Respondents having unlawfully fined Scott Cutler and Scott Congrove, I recommend that they be ordered to rescind those fines. Further, I shall recommend that the Respondents be ordered to return to Cutler and Congrove any moneys paid by either of them pursuant to the fines levied by the Respon- dents. The Respondents shall also reimburse Cutler and Con- grove for any costs incurred by either of them in defending themselves at the internal union hearings. Interest shall be paid on these moneys as computed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). It is further recommended that the Respondents remove from their records all references to the unlawful discipline of Cutler and Congrove, and to notify them in writing that this has been done. [Recommended Order omitted from publication.]