Electrical •Workers Ibew Local 340 (Hulse Electric)

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local Union 340, AFL-CIO and Hulse Electric and May-Han Electric, d/b/a M & M Electric and Clint McCubbin, Inc. and Rex Moore Elec- trical Company and Amos J. Walker, Inc. and Peters Electric Co. Cases 20-CB-5397, 20-CB- 5441, 20-CB-5459, 20-CB-5490, 20-CB-5502, 20-CB-5504, 20-CB-5593, 20-CB-5651, 20- CB-5509, and 20-CB-5541 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 28 March 1983 Administrative Law Judge Jay R. Pollack issued the attached decision. The Charging Parties and the Respondent filed excep- tions and supporting briefs, and the Charging Par- ties filed a brief in answer to the Respondent's ex- ceptions. The National Labor Relations Board has delegat- ed 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,2 and conclusions 3 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law The Charging Parties excepted to the Judge's alleged failure to find that the charges in Cases 20-CB-5459 and 20-CB-5502 were filed by the National Electrical Contractors Association (NECA) on behalf of the named employers The formal documents. reveal that NECA filed the charges The complaints in those cases, however, state that Clint McCub- bin, Inc and Rex Moore Electrical Company were the Charging Parties At the hearing the discrepancy was addressed, but no motion was made to amend the pertinent complaints At this stage in the proceeding, we find it unnecessary to amend the complaints because the charges were filed on behalf of the named employers, and the interests of NECA were fully represented by counsel for the Charging Parties 2 In affirming the Judge's conclusion that the Respondent's action had a representational purpose, we find it unnecessary to rely on his finding that the Respondent was bound by statements of various pickets See fn 27 of the Judge's decision 3 Chairman Dotson and Member Dennis agree with the Judge that the fines imposed against Dale Pettit, Don Verga, and Doyle McDaniel vio- lated Sec 8(b)(1)(A) See Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984) In agreeing with his colleagues that these fines violated Sec 8(b)(1)(A), Member Zimmerman relies on the fact that the fines were for conduct which occurred after the employees had effective- ly resigned their membership We find no ment in the Respondent's contention that the principles of Typographical Union 101 (Washington Post), 242 NLRB 1079 (1979), are applicable in the circumstances of this case See Electrical Workers IBEW Local 340 (Royal Electric), 271 NLRB 995 fn 5 (1984) In agreeing with his colleagues that the Respondent's fines against the union members who were supervisors of employees with whom the Respondent had an ongo- ing labor dispute violated Sec 8(b)(1)(B), Member Zimmerman relies solely on the adoption of the judge's conclusion that the fines were de- signed to deprive the employees of their supervisors judge and orders that the Respondent, International Brotherhood of Electrical Workers, Local Union 340, AFL-CIO, Sacramento, California, its officers, agents, and representatives, shall take the action set forth in. the Order. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge I heard these consolidated cases in trial at Sacramento, Califor- nia, on June 29 through July 12, 1982, and at San Fran- cisco, California, on August 20, 1982. Thereafter, the record was reopened for one further day of trial on Jan- uary 10, 1983. The cases arose as follows: Hulse Electric (Hulse) filed charges in Case 20-CB-5397 on August 17, 1981, against International Brotherhood of Electrical Workers, Local Union 340, AFL-CIO (Respondent or the Union). On October 15, May-Han Electric, d/b/a M & M Electric (M & M) filed charges in Case 20-CB- 5441 against the Union. On October 30, the Acting Re- gional Director for Region 20 of the National Labor Re- lations Board (the Board) issued a complaint and notice of hearing against Respondent in Case 20-CB-5397 (the Hulse case). Clint McCubbin, Inc. (McCubbin) filed a charge against the Union in Case 20-CB-5459 on No- vember 13. On November 30, the Acting Regional Di- rector issued a complaint and notice of hearing against Respondent m Case 20-CB-5441 (the M & M case). On December 1, the Acting Regional Director issued an order consolidating Cases 20-CB-5397 and 20-CB-5441 for purposes of hearing On December 16, the Acting Regional Director issued a complaint against Respondent in Case 20-CB-5459 (the McCubbin case) and that same date ordered the McCubbin case to be consolidated for purposes of hearing with the Hulse and M & M cases On December 17, Rex Moore Electrical Company (Rex Moore) filed a charge against the Union in Case 20-CB- 5490 and thereafter Rex Moore filed the charges in Cases 20-CB-5502 and 20-CB-5504 on January 12 and 14, 1982, respectively. Amos J. Walker, Inc (Walker) filed the charge in Case 20-CB-5509 against the Union on January 21, 1982. On January 29, the Acting Regional - Director issued a consolidated complaint in Cases 20- CB-5490 and 20-CB-5502 (the first two Rex Moore cases) and that same date issued an order consolidating those two cases for trial with the three outstanding com- plaints. On February 22, the Regional Director issued a complaint in Case 20-CB-5504 (the third Rex Moore case) and that same date issued an order consolidating that case for trial with the outstanding complaints in the five prior cases. On February 26, the Regional Director issued a complaint in Case 20-CB-5509 (the Amos Walker case) and that same date issued an order consoli- dating that case for trial with the preceding six cases. Peters Electric Co (Peters) filed a charge in Case 20- CB-554l against the Union on March 2. Thereafter, on April 29, the Regional Director issued a complaint against the Union and an order consolidating that case with the preceding seven cases. On May 21, Rex Moore filed the charge in Case 20-CB-5593. On June 11, 1982, 273 NLRB No. 67 ELECTRICAL •WORKERS IBEW LOCAL 340 (HULSE ELECTRIC) 429 the Acting Regional Director issued amendments to the outstanding complaints in Cases 20-CB-5502 and 20- CB-5504 (the second and third Rex Moore cases) and issued a complaint in Case 20-CB-5593 (the fourth Rex Moore case) That same date the Acting Regional Direc- tor issued an order consolidating all nine cases for trial. On June 17, the Regional Director issued a consolidated complaint against the Union in CaseS' 20-CC-2499 and _20-CC-2504 and an order consolidating those' cases with the preceding nine cases for purposes of trial.' As men- tioned earlier, the consolidated trial closed on August 20, 1982. Thereafter, on September 1, 'Rex Moore filed a charge in Case 20-CB-5651 and pursuant thereto on Oc- tober 21 the Regional Director issued a complaint and notice of hearing. That same date, the General Counsel filed a motion to reopen the record and to consolidate Case 20-CB-5651 with the previously litigated nine cases On November 15, having received no opposition to the General Counsel's motion, I issued an order grant- ing the motion. 2 As mentioned earlier, the record was reopened on January 10, 1983, for the purpose of taking evidence in Case 20-CB-5651.3 The Issues The principal questions presented for decision are: 1. Whether Respondent violated Section 8(b)(1)(A) of the Act when it levied fines against employees Dale - Pettit (Hulse), Don Verga (Peters), and Doyle McDaniel (Peters) for having worked for -nOnsignatory employers 2. Whether Robert flogan_(McCubbin), Curtis Watson (M & M), John Reese .(Amos Walker), Gary Wheeler (Rex Moore), Ted Barlow (Rex Moore), Don Sutton (Rex Moore), Robert Slack (Rex Moore), and Francisco Orden (Rex Moore) were supervisors within the meaning of Section 2(11) of the Act and representatives of their employers for the purposes of collective bargaining or the adjustment of grievances within the meaning of Sec- tion 8(b)(1)(B). 3. Whether Respondent violated Section 8(b)(1)(B) of the Act by fining Hogan, Watson, Reese, Wheeler, Barlow, Sutton, Bailey, Zicarelli, Slack, and Orden. All parties were given full opportunity to appear, to introduce relevant evidence, to examine and cross-exam- ine 'witnesses, to argue orally, and to file briefs. Based on the entire record, and from my observation of the de- meanor of the witnesses and after due consideration of the briefs filed on behalf of the parties, I make the fol- lowing 1 On August 20, 1982, at hearing, Respondent and the General Counsel reached agreement on a formal settlement disposing of all the allegations in Cases 20-CC-2499 and 20-CC-2504 On September 17, 1982, I Issued an order approving the settlement stipulation over the objections of the Charging Party, Rex Moore On October 20, the Board issued a Decision and Order approving the settlement stipulation and providing for an order consistent with the settlement On January 5, 1983, I issued an order denying the General Counsel's motion to consolidate the complaint against Respondent in Case 20-CB- 5717 with the instant consolidated cases Case 20-CB-5717 was filed by an employer that was not involved in the instant hearing 3 References hereinafter to the complaint refer to all nine complaints viewed as a whole FINDINGS OF FACT AND CONCLUSIONS I. JURISDICTION The parties stipulated that during 1981 Hulse, Peters, Rex Moore, McCubbin, Amos Walker, and M & M, all elecirical contractors doing- business in the greater 'Sacra- mento, California' area, have each purchased and re- ceived goods and materials valued in excess of $50,000 directly from Companies located outside the State of California. Accordingly, I find Hulse, Peters, Rex Moore, McCubbm, Amos, Walker, and M & M, at all times material herein, have each been an employer en- gaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Respondent has been, at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A Background National Electrical Contractors Association, Inc., Sac- ramento Valley Chapter (NECA) is an association of em- ployers engaged in electrical contracting which has as one of its ,purposes the representation of its employer- members in negotiating and administering collective-bar- gaining agreements with various labor organizations. Re- spondent and NECA had a collective-bargaining rela- tionship for approximately 40 years The last collective- bargaining agreement between Respondent and NECA expired May 31, 1981. On June 11, 1981, Respondent commenced a strike against the employers in the NECA multiemployer bargaining group, including Rex Moore, McCubbin, Peters, Amos Walker, and M & M. 4 On Sep- tember 15, the Union sent NECA a disclaimer of interest which provided: On behalf of Local Union 340, IBEW, this letter shall serve as, and constitute a disclaimer of interest by IBEVV Local Union 340 in representing, for pur- poses of collective bargaining or any other purpose, the employees of the multi-bargaining unit previous- ly established and consisting of the employees of the employer-members of the Sacramento Valley Chap- ter, of the National Electrical Contractors Associa- tion, Inc., and other employers who have, from time to time, agreed to become part of the multi- employer bargaining unit. This disclaimer covers the employees covered by the Inside Wireman's Agreement, the Line Agreement, and the Material Handler's Agreement, and is intended to disclaim interest as to the multi-employer bargaining units or unit previously created by these three separate labor 'contracts.. 4 At the time the strike commenced, there were approximately 55 em- ployers in the NECA bargaining unit 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 25, the Union filed 17 representation pe- titions in individual employer units for 17 employers, for- merly in the NECA bargaining unit, including Peters and M & M. The Regional Director administratively dis- missed the ,17 petitions on the basis that the appropriate bargaining unit was the multiemployer unit 6 On August 12, 1982, the Board directed a hearing , on the issue of the continued existence or viability of , the multiemployer unit. The Board Order is reported as Arden Electric, 263 NLRB 318 (1982). The hearing in .the re.presentation cases closed on February , 28, 1983, and the decision in that case is now pending before the Board During the strike, employee Dale Pettit was fined for working for Hulse on June 18, 1981. All the other, fines occurred after the Union's disclaimer of September 15. The complaint alleges that Pettit, Don Verga, and Doyle McDaniel were fined in violation of Section 8(b)(1)(A) on the ground that they had effectively resigned their union membership prior to the conduct for which they were fined. The complaint alleges that the fines 'of Ted Barlow, Gary Wheeler, Don' Sutton, Tim Bailey, Robert Slack, Dale Zicarelli, Francisco Orden, Curtis Watson, Rober Hogan, and John Reese violated Section 8(b)(1)(B) on the theory that all were natural and poten- tial representatives of their employers for the purposes of collective bargaining and the adjustment of grievances. With respect to the 8(b)(1)(A) allegations, Respondent contends that the employees had not effectively resigned from union membership .prior to engaging in the conduct for which they were fined. With respect to the 8(b)(1)(B) allegations, Respondent contends that the alleged super- visors did not possess the authority to bark= c011ective- ly or to adjust grievances and, further that no violation could be found because the Union had previously' dis- claimed interest in representing the employees in the NECA multiemployer bargaining unit. B. Employee Dale Pettit Dale Pettit had been a member of IBEW Local Union 180 (a sister local of Respondent) in Vallejo, California, since approximately 1966. On June 16, 1981, Pettit had his wife, Valerie, type a letter to Local 180 stating that Pettit wished to resign his membership effective that same date. Valerie Pettit sent the letter by certified mail to Local 180 on June 16. On June 17, the Postal Service attempted to deliver the letter but' was unable to do so. That same date a notice was left at Local 180's offices and on June 19 an official of Local 180 picked up Pettit's letter at the post office. On June 18, Pettit was working for Hulse, a company against which the Union was on strike. 6 On that date, Al 5 On October 1, NECA signed a collective-bargaining agreement with the National Association of Independent Unions (NAIU), which agree- ment purported to cover the electncian employees of the employers pre- viously involved in the negotiations between NECA and Respondent 6 Hulse was not a member of the NECA multiemployer bargaining unit but had signed a "me-too" agreement binding it to the terms and conditions of the NECA-Union 1978-81 bargaining agreement While some "me-too" employers signed intenm agreements with the Union, Hulse signed no agreement after the expiration of the 1978-1981 contract Romitti, a business representative for Respondent, visited . the .Hulse jobsite. Pettit told Romitti that he no longer belonged to 'the IBEW. Roma' _answered that he was "sorry to hear it." Shortly thereafter, Romitti filed in- traunion charges against Pettit, the substance of which provides: , - • The alleged violation 6c,curred on 6-18-81 at. ap- proximately 11:30 a.m., at Sycamore West Apart- itients; Covell and Sjicambre and Alvarado Ave., Davis, CalifOrnia. . The alleged violation occurred as follows: On enter- ing the second cluster of apartments , fronting-Alva- rado Ave. I observed Brother Petit [sic] installing electrical wall boxes. ,Upon further conversation I requested seeing his Union receipt and he stated he was not a 'member of the IBEW anymore. Upon re- turning to Local Union 340's office I received infor- mation to the contrary in that he is still a member of Local 180, IBEW. I also 'stated to Brother Petit that at this time Hulse Electric is not, signatory to Local Union 340's agreement. Because of these vio- lations, I feel Brother Petit has wronged the mem- bers of Local Union 340, IBEW. On July 27, the Union's trial board conducted a meet- ing on the 'charges brought against Pettit by Romitti. Pettit did, not attend the trial board meeting and was found in violation of the Union's bylaws and the IBEW's constitution Pettit was fined a total of $12,020. The Union sent Pettit a letter on October -7 notifying him of the trial board's decision and fine. k C Employees Don Verga, and Doyle McDaniel Don Verga had been a member of IBEW Local Union 234 in Castroville, California, since 1976. In November 1981, Verga called Ralph Gaines, a business agent for Local 234, and told Gaines that he -had a job offer from Peters in Sacramento Gaines invited Verga to talk about the matter that evening. Verga went to Gaines' home to talk about the job offer from Peters. Verga mentioned that the shop had a new union. 7 Gaines said that he had . heard about the situation and suggested that, Verga re- consider accepting the offer. Verga ,,answered that, he had been trying to get to the Sacramento area and that this job was a chance to do so. Verga then asked Gaines about obtaining a withdrawal from Local 234. Gaines said that Verga was not eligible for a withdrawal be- cause Verga was still working in the trade. Verga then asked about quitting and Gaines said that Verga could not just quit. Finally, Gaines said that the only way Verga could get out of the' Union was to quit paying dues Verga then ask'e,d if his dues payments for Novem- . ber and December could be returned and Gaines an- swered no. Verga did not pay any further dues-to Local 234 or to the IBEW: Verga did not send a letter of resignation to Local 234. However, he sent a' letter in November and again in , • 7 The new .union was the NAIU which had signed a collective-bar- gaining agreement with NECA about October 1 ELECTRICAL WORKERS IBEW LOCAL 340 (HULSE ELECTRIC) 431 January 1982 resigning from his position as vice presi- dent of Local 234 Verga testified that he resigned as vice president in writing because the "book" (the consti- tution and bylaws) required him to do so He further tes- tified that, when he heard that his November resignation was not mentioned at the union meeting or to' his em- ployer, he sent another resignation in January. Doyle McDaniel had been a member of Respondent since approximately 1951. In December 1981, McDaniel called Lee Frith, Respondent's business manager, and told Frith that he had to return to work after the first of the year. McDaniel asked what he had to do "in case I wanted to go to work as a plumber, electrician, a carpen- ter or ditchdigger, whatever I had to find a job—that I had to do so that I wouldn't cause any problems with the Union or anyone else." Frith told McDaniel to send in a letter of withdrawal McDaniel then wrote Frith seeking to withdraw his union card effective January 6, 1982. On January 12, Frith wrote McDaniel acknowl- edging receipt of McDaniel's -withdrawal letter. Frith sent two withdrawal forms to McDaniel: (1) a 'form enti- tled "honorary withdrawal" which provided, inter aim, that McDaniel forfeit 30 years of pension credits and his life insurance policy; and (2) a form entitled "participa- tory withdrawal" which provided, inter alia, that the em- ployee was no longer working in the electrical trade and would reactivate his membership in the Union if he re- turned to the electrical trade 8 McDaniel did not fill out either form or respond to Frith's letter in any other manner McDaniel testified that he did not sign the hon- orary withdrawal because he did not wish to forfeit his pension' and did not sign the participatory withdrawal because, as he was still working in the electrical trade, the form did not apply to him. On January 19, 1982, Chuck Cake, a business agent for Respondent, visited the Peters jobsite where Verga and McDaniel were working. Cake first spotted Verga on the job and said, "I' can't believe that you're up here." Verga and McDaniel then spoke with Cake McDaniel asked Cake why the Union was bothering them when employ- ees for other contractors, such as Foss Electnc, 9 were working without interference from the Union. Cake said that the Foss situation was different and that Frith was working with Foss Electric. Cake said that he would have to cite both Verga and McDaniel. Cake said that, if the employees could get their boss, Dave Rubins, to sign an agreement, the intraunion charges would be dropped. Verga said that he would see what he could do. Later that same day, Cake again asked McDaniel to talk to Rubins about signing a contract. Cake said he would drop the charges if Rubins signed a contract. Cake filed intraunion charges against both Verga and McDaniel for working for Peters on January 19. A trial board meeting on the charges against McDaniel was held on April 2, 1982 Before the trial, McDaniel spoke with 8 Both the honorary and participatory withdrawals were not available to an employee who wished to continue working in the trade 9 The Union had agreed with Foss Electric that' Fossemployees, rep- resented by the Union, could return to work about September 28, 1981 About February 12, 1982, Foss Electnc signed a collective-bargaining agreement with the Union Prior to October 1981, Foss Electric had been - party to the NECA-Union negotiations Cake. Cake had been unsuccessful in attempting to get Rubins to sign a contract" and told McDaniel that the Union would continue to process -the charges. At the trial board meeting, McDaniel pleaded not guilty to all the charges on the ground that he was no longer a union member. A trial board member said that McDaniel could it& withdraw but had to resign. McDaniel argued that Frith had never mentioned resignation and that he thought he had done . everything 'necessary to free him- self from the Union.' The trial board meeting on the charges against Verga was held on April 5. Just prior to seeing the trial board, Verga told Cake that Rubins would not talk about a con- tract until the charges against yerga and McDaniel were dropped Cake again said that, if Rubins would sign a contract, the charges against Verga and McDaniel would be _dropped. At the trial board meeting, Verga told the board members about his conversation with Gaines and that it was his belief that he had resigned from union membership. - - On April 12, the Union's trial board found both Verga and McDaniel guilty of performing bargaining unit work for Peters. McDaniel was fined $11,604 and Verga was fined $l9,287'20. However, on June 15, the fines against both McDaniel and Verga were rescinded by the trial board on the ground that the. trial board hearings were untimely. The Union concedes that its constitution places no re- strictions on a member's ability to resign. However, Frith testified that it is the Union's policy that a written resignation is read at the next regular union meeting and that the resignation becomes effective the last-day of the month in which the meeting was held, provided that the member's dues are paid through the month the resigna- tion is submitted, the member is not indebted to the Union, and there are no pending charges in the Union against the member. According to Frith, the Union en- forces this policy by letter to each individual who wants to resign. However, McDaniel, the only member of Re- spondent involved in this aspect of the case, did not re- ceive such a letter. Verga and Pettit were members of other locals and there is no evidence of any restrictions on their ability to resign". D. Conclusions Regarding 8(b)(1)(A) Issues It is well sealed that Section 7 of the Act guarantees to employees the right to resign from a labor organiza- tion. Marlin Rockwell Corp. , 114- NLRB 553, 561L562 (1955). Section 8(b)(1)(A) protects such rights by making it an unfair labor practice fol a labor organization "to re- strain or coerce . . employees in , the exercise of the rights guaranteed in Section 7." The right of a union to firie..an employee for violating a union rule and, therefore, escape the prohibition of Section 8(b)(1)(A) is dependent upon whether the em- '9 Rubins, the owner of Peters, testified that, in late January or early February, Cake attempted to have him sign a contract with the Union Rubins told Cake that Peters was'i member of NECA and was not free to'sign with the Union Cake insisted that Rubins could sign but Rubins refused to do so 432 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD ployee has lawfully resigned his. union membership. As the Supreme Court stated in Granite State " Where a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor prac- tice when it seeks enforcement of fines for that con- duct. That is to say, when there i a lawful dissolu- •tion of a union-member, relaticin, the union his no more control over the former' member than it has over the man in the street. See also Machinists Local -405 v. NLRB, 412 -U.S. 84 (1973). Where a union's constitution and bylaws are 'silent as to resignation, a member is free to resign at will.. Granite State, supra; Scofield v: NLRB, 394 US. 423 (1969); Elec- trical Workers IBEW- Local 66 (HoustOn Lighting); . 262 NLRB 483 (1982). Inherent in the union-member--fela- tionship is a duty on the part of the union to inform members of any constitutional limitations placed'On'their statutory right to resign union. membership. Teamsters Local 439 (Loomis Courier), 237 NLRB 220, 223 (1978). The legality of the instant fines depends primarily upon two issues: (1) whether the individuals •effectively resigned their memberships in the Union, -and- (2) wheth- er they were fined for postresignation conduct • .- 1. The fine of Dale Pettit , 7, It is undisputed that Pettit sent a letter of resignation on June • 16 ' to Respondent's sister local -in' Vallejo. On June 17; unable to deliver the, letter, the Postal Service left a notice of attempted delivery. On • June.:19, an offi- cial of Local 180 picked, up the letter. Pettit was fined for conduct which occurred on June 18. Thus, the issue is when did Pettit's resignation become effective. The Board has held that, when a letter of resignation is mailed to a union; the resignation is not. effective until it is received '-by the union. Communications Workers Local 6135 (Southwestern Bell), 188 NLRB 971 (1971); Broadcast Employees NA BET Local 531 .(Skateboard Prod- ucts), 245 NLRB 638,' 645 (1979). 12 There is. no case dealing directly with the question of whether actual re- ceipt is required. However, the Board has applied a pre- sumption of receipt in cases where there was no evi- dence of actual receipt. See, e:g , Hendricks-Miller Typo- graphic Co., 240 NLRB 1082, 1098 (1979); Auto Workers Local 1384 (Ex-Cell-0 Corp.), 219 NLRB 729, (1975); Ma- chinists District 99 (General Electric), 194 NLRB 938, 944-945 (1972). In Hendricks-Miller, .sus pra, :the Board held that the resignation,letter was effective . updn receipt notwithstanding 'thatthe ithio,n agent never saw the fetter and was unable to locate it for the. unfair labOr practice hearing In the present case, no presumption of delivery is required as the record reveals aeliverj, On' June 17 " NLRB v Textile Workers Local 1029, Granite State Joint Board, 409 US 213, 217 (1972) - 12 In cases where the resignationas mailed to the union, the resignation is effective at the close of business on the date of receipt American Nurses' Assn, 250 NLRB 1324, 1329 (1980) However,. where -personal delivery was made, the Board found-the resignation to be effective imme- diately Skateboard Products, supra The fact that Local -180 did not pick up the letter until June 19 should not affect Pettit's rights. It appears no different than' if Local 180 chose not to read the letter until June 19: Moreover, there 'is no evidence as to what date' Local 180-considered the effective date of Pettit's resignation. 13 Under these circumstances, I find that Pet- tit's resignation was effective as of the close of business on June 17. Since Pettit was fined for conduct which took place on June 18, it appears that the entire fine levied against him was based on postresignation conduct. Accordingly, I find' that by such conduct Respondent violated Section 8(b)(1)(A). 2. The fine of Dow Verga • , It, is undisputed that ,Verga told Ralph Gaines of Local 234 that he wished to gun that union. Gaines said Verga Could quit by simply nOfpaying dues Verga paid no fur- ther dues Verga's letters, of November 1981 and January 1982, stated , that he wished to resign as union vice presi- dent. Those letters made no mention of resigning from union membership. Absent lawful restrictions to the contrary, in order for an employee to effectively resign from membership, it is only necessary that he "clearly indicate that he no longer wishes to be bound by the union." Houston Lighting, supra; Distillery Workers Local 80 (Capitol-Husting), 235 NLRB 1264 (1978)., Thus, the Board has held oral resig- nations to be effective. See, e g., Carpenters Local 1233 (Polk Construction), 231 NLRB 756, 761 (1977); Commu- nications Workers Local 1127 (New York Telephone), 208 NLRB 258, 262-263. (1974). Further, martful demands to withdraw" from- the union, have been found by the Board to be sufficient on the ground that they clearly conveyed the intent to resign. Capitol-Husting, supra. See also Polk Construction, supra at 758-761 In. this case, Verga clearly indicated his intent to quit and acted consistently with Gaines' instruction that the only way to quit was to stop paying dues. While Verga's resignation from union office is misleading, there is no evidence to contradict Verga's testimony that the book required a written resignation of union office. There is no contention that a written resignation from member- ship was required. Further, neither Gaines nor any other official of Local 234 testified that Verga did not resign membership in Local 234 prior to January 19, 1982, Ac- cordingly, I find that Verga. effectively resigned from Local 234 in November 1981, and in any event no later than December' 1981, the last month for which he had paid dues. Accordingly, Respondent's fine of Verga for his postresignation conduct of January -1982 violates Sec- tion 8(b)(1)(A) of the Act. . 3 The-fine of Doyle McDaniel In De'cember' 1981, McDaniel called Frith and asked what he had to do to go back to work without having 13 The General Counsel apparently concedes Respondent's authority to fine members of sister locals The General Counsel's allegations are based on the contention that the members had effectively resigned their union membership pnor to engaging in the conduct for which they were fined ELECTRICAL WORKERS IBEW LOCAL 340 (HULSE ELECTRIC) 433 any problems with the Union. Frith told McDaniel to send in a letter of withdrawal. About January 6, 1982, McDaniel followed Frith's instructions. However, on January 12, Fnth wrote McDaniel acknowledging re- ceipt of the withdrawal letter but enclosing two different withdrawal forms, neither of which satisfied McDaniel's needs. McDaniel took no further action to resign or withdraw from the Union and was fined for work on January 17 for Peters. As mentioned earlier, a union has a duty to inform its members of any constitutional limitations placed upon their statutory right to resign union membership McDaniel asked Frith what he had to do so that he could work without any union problems. Frith told McDaniel that he only had to withdraw and McDaniel followed those instructions. Frith made no mention of resignation and, accordingly, McDaniel did not use the word resignation. However, McDaniel clearly indicated to Frith his intention to be free of the Union's restric- tions. There was no need for McDaniel to fill out any further form, Respondent's defense appears to be that McDaniel mentioned withdrawal but not resignation. However, McDaniel clearly indicated his intention to be free of union discipline Frith had a duty to notify McDaniel of the restrictions on withdrawals. Instead, Frith contribut- ed to McDaniel's inartful attempt at resignation." Frith never denied McDaniel's testimony that McDaniel indi- cated a desire to go back to work without union restric- tion. Under the authorities cited above, McDarnel's con- versation with Frith would constitute a sufficient oral resignation. In any event, McDaniel's letter of withdraw- al complied with Frith's instructions as to what McDan- iel had to do to free himself from the Union's rules. Frith and Respondent cannot now contend otherwise Thus, I find that McDaniel had effectively resigned from the Union prior to the conduct on January 19 for which he as fined. Accordingly, I find that Respondent violated Section 8(b)(1)(A) by fining McDaniel for postresigna- tion conduct Although the fines of Verga and McDaniel were re- scinded in June 1982, I find that the violation of the Act has not been repudiated. The fines were rescinded on the ground that the trial board's action was untimely How- ever, the Union took no action which would minimize the threat to the employees that the Union sought to re- strict their postresignation conduct. It is the threat that is the core of cases involving postresignation discipline. See Electrical Workers IBEW Local 2131 (Rucker Co.), 217 NLRB 46, 47 (1975), Typographical Union 18 (Northwest Publications), 172 NLRB 2173 (1968). E. Curtis Watson, Superintendent for M & M 1. Supervisory status Curtis Watson has been employed by M & M since May 1979. In the fall of 1981, Watson was employed by M & M as a superintendent. M & 'M specializes in under- 14 There is no contention that Fnth explained Respondent's restriction on resignation, i e, that resignations were effective on the last day of the month of the union meeting at which the resignation was read ground electrical work, i.e., traffic signals, street lighting, tennis courts, and ball parks Approximately 65 percent of M & M's electrical work is traffic light- work. Watson is the superintendent responsible for all of M & M's traf- fic light jobsites. Each project has a foreman who re- ports to Watson. Watson determines the foreman for each job and the size of the work crew. His duties in- clude transferring men from site to site, including non- traffic light jobs. Watson transfers employees due to changes in the workload and has also transferred em- ployees due to personality problems between workmen and the foremen on jobsites. On at least one occasion Watson fired an employee. Watson's recommendations for promotions of journeymen electricians to foremen are followed by Ross Price, general superintendent in charge of field operations, as a matter of course. Finally, Watson testified that he resolved at least two complaints by union business agents . one involving work jurisdiction and the other involving hiring procedures. Based on the foregoing facts, I find that Curtis Watson is now, and has been at all times material herein, a super- visor of M & M within the meaning of Section 2(11) of the Act. I further find that Watson was a representative of M & M for the purposes of collective bargaining or the adjustment of grievances within the meaning of Sec- tion 8(b)(1)(B) of the Act. See Painters District Council 36 (Brown & Co.), 259 NLRB 808, 810 (1981). 2. The union discipline Watson has been a member of a sister local of Re- spondent for approximately 30 years. Watson did not work for M & M during the strike but returned to M & M on September 21, after the Union's disclaimer letter." On September 24, two union members observed Watson on an M & M jobsite helping some laborers with certain work which the laborers were having trouble perform- ing That same date the two members filed an intraunion charge with Respondent alleging that Watson was "working for an employer who has been on strike for 15 Weeks [Watson] was working with five (5) laborers." Approximately 1 week later, M & M and the Union agreed that M & M's union workers could return to work.' 6 On November 2, Respondent's trial board conducted a trial on the charge brought against Watson. Watson ex- plained that on the date in question he was acting in a supervisory capacity. He further argued that he was helping the Union by showing the futility of having la- borers do the electrical work and that he was attempting to convince M & M to sign an agreement. At least one of the board members argued that M & M would not have held out so long without Watson's help. In addi- tion, Watson presented a letter from M & M contending is Prior to the disclaimer letter, M & M had been party to the NECA- Union multiemployer bargaining IS On September 25, the Union filed a representation petition seeking to represent M & M's employees in a single employer unit As mentioned earlier, the Union filed 16 other representation petitions on that date About September 28, the Union agreed that M & M's electrician employ- ees could return to work About February 12, 1982, Respondent and M & M signed a collective-bargaining agreement 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the fine was invalid and stating that Watson "works in a supervisory position with authonty to hire and fire, promote and discipline employees." There was no men- tion at the trial of the Union's September •15 disclaimer. By letter dated November 4, Watson was notified that he had been found guilty of the charges against him and was fined $3,921.60 ($2000 of which was suspended on condition that no similar violations occur for a period of 5 years). F Robert Hogan, Estimator for McCubbin 1. Supervisory status Robert Hogan has been employed as an estimator by McCubbin for approximately 7 years. Hogan does ap- proximately 99 percent of all the estimating for McCub- bin's construction contracting. As estimator, Hogan has full responsibility for doing a complete "take-off' on a proposed job, i e., estimating how much material, labor, and time would be needed to accomplish the proposed job. Once McCubbin is awarded a job, Hogan is respon- sible for ordering material, scheduling the job, coordinat- ing with the general 'contractor, and going over the plans for the electrical work with the general contractor, owner, and/or government agency: Once a job is begun, Hogan is responsible for overseeing the progress of the job, ordering materials, scheduling, and billing.' Hogan usually spends 1 day a week visiting jobsites and the other 4 days working in the office. Hogan and Clint McCubbin, president of the Compa- ny, jointly determine who will be foreman for a job. The foreman has the authority to adjust minor disputes on the job, deal with safety problems, and send employees home due to inclement weather. However, if the foremen have any problems in these areas, they call Hogan or Clint McCubbin The foremen determine how many men are needed for their crew and relay this information to Hogan. Hogan and Clint McCubbin then fill the fore- men's needs. Hogan approves foremen's requests to lay off and/or transfer employees to other jobsites. Hogan hires employees, usually in consultation with McCubbin, and fires employees. Finally, Hogan has dealt with union officials concerning working conditions on McCubbin jobsites and on at least one occasion, after consultation with Clint McCubbin, resolved a union grievance by agreeing to pay certain moneys claimed by a sister local of Respondent. Based on the foregoing facts, I find that Robert Hogan is now, and ha's been at all times material herein, a super- visor of McCubbin within the meaning of Section 2(11) of the Act. I further find that Hogan was a natural and potential representative of McCubbin for the purposes of collective bargaining or the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act." 17 The fact that Clint McCubbin has final authority on matters involv- ing collective bargaining and the adjustment of grievances does not change the result herein Ultimate authonty cannot be a prerequisite to supervisory or representative status, since in every corporation ultimate authority is vested in the board of directors Cf Bentley Hedges Travel Service, 263 NLRB 1408, 1412 (1982) (a case involving managerial status) 2. The union discipline Hogan joined Respondent in March 1951. In approxi- mately 1976, the Union notified Hogan that he was a member of management and could no longer participate in the Union's health and welfare, pension, and vaCation programs. Thereafter, Hogan was covered by McCub- bin's health and retirement plans for its nonunion person- nel. However, in order to continue teaching for the Joint Apprentice Training Committee, he continued to pay dues to the Union. Hogan paid dues but not working as- sessments paid by full members. Thus, Hogan remained an "inactive" member of the Union. On September 25, 1981, Robert Gately, a member of the Union, observed Hogan working with prints and a ruler on one of McCubbin's jobsites and filed charges with the Union against Hogan. Hogan had been measur- ing the wiring on that jobsite because it was a state job and McCubbin was paid by the linear foot for work completed. Hogan has not worked with the tools of the trade for over 20 years. On one occasion in October, he was spotted by a union member showing nonunion em- ployees how to properly bend pipes. On November 2, the Union held a trial board meeting on the charges against Hogan. Hogan attended the trial board meeting and pleaded- not guilty to the charges against him. Hogan explained to the trial board that in 1976 the Union had notified him that he was part of management and could not partici- pate in the Union's benefit plans He said that he had been an inactive member since 1976 Hogan explained that he was not doing electrical work but was measuring for billing purposes on the date that he was cited. He further explained that he was not bending pipe as a workman but was teaching employees of McCubbin how to bend pipe One of the trial board members, Gary Pe- terson, suggested that McCubbin could hire back Re- spondent's members. Hogan said he did not know how that could be. done and Peterson said that the Union could file a petition as it did with Collins Electric and that McCubbin could have the same deal as Collins Elec- tric.' Notwithstanding the Union's disclaimer of Sep- tember 15, the trial board asserted that the Union was on stnke against McCubbin. By letter dated November 5, Hogan was informed that he was found guilty and fined $2000 ($1000 of which was suspended on the condition that no similar violations occur for a period of 5 years). G. John Reese, Project Superintendent for Walker 1. Supervisory status John Reese has been employed by Walker for approxi- mately 14 years. Reese has been project superintendent since October. 1981. Prior to that time, Reese was a fore- man. As project superintendent, Reese reports to either 18 The Union filed a petition seeking to represent Collins Electric's employees on September 25 Shortly thereafter, Collins Electric's union employees returned to work Collins Electnc signed an agreement with the Union in February 1982 However, no petition was filed for McCub- bin's employees and McCubbin honored the October I, NECA-NAIU multiemployer bargaining agreement ELECTRICAL WORKERS MEW LOCAL 340 (HULSE ELECTRIC) 435 Amos Walker, president, or Ray Roberts, estimator and designer. Reese did not work for Walker during the Union's strike from June until September 1981. In October, he was hired by Amos Walker as a project superintend- ent." Amos Walker gave Reese the authority to hire and fire employees and the overall responsibility for jobs under his supervision. In October, Reese was given the responsibility for approximately five jobs then in progress. Each job had its own foreman. Once Walker is awarded a job, Reese has the responsi- bility of determining the material, equipment, and labor requirements of the job. He decides how many employ- ees will be needed and chooses the job foreman. Once the job is begun, Reese continues to work with the gen- eral contractor and the foreman to monitor material, equipment, and labor requirements., Reese, rather than the foremen, authorizes overtime and transfers and/or, lays off workers. The foremen notify Reese of changes in labor requirements and Reese hires, transfers, or lays off employees to ,meet those requirements. Reese has the au- thority to discipline and to discharge employees, which authority he has exercised on several occasions. Person- nel and safety. problems on the jobsites are usually han- dled by the foremen. However, if the foremen cannot re- solve the problems, Reese called in "like a fireman" to "put out the fires." Reese was involved in one grievance by the NAIU concerning an employee who had been fired by Reese. Reese met with an NAIU official to give his side of the story. That dispute has not been resolved at the time of the instant hearing. Reese testified that he performs journeyman's work approximately 20 percent of the time. Richard Earl, a member of Respondent who filed the intraunion charges against Reese, testified that Reese spent 50 percent of his time performing journeyman electrician's work on a cer- tain job in Sacramento. However, Earl admitted that he only observed Reese for brief periods and that the two men rarely worked in the same. area. 2° Accordingly, I credit Reese's testimony that he performed such work only 20 percent of the time. Based on the foregoing facts, I find that John Reese is now, and has been at all times material herein, a supervi- sor of Walker within the meaning of Section 2(11) of the Act. I further find that since October 1 Reese has been a natural and potential representative of Walker for the purposes of collective bargaining or the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. The fact that Reese performs journeyman elec- trician's work approximately 20 percent of the time does not detract from his representative - status. See Carpenters (Sktppy Enterprises), 211 NLRB 222, 225-226 (1974), enfd. 532 F 2d 47, 53 (7th Cir. 1976). 19 Reese did not return to work kn. Walker until after the Union's dis- claimer Walker had been party to the NECA-Union negotiations and after the disclaimer Walker became party to the NECA-NAIU agreement of October 1 20 Earl was employed by another contractor on the same Jobsite _ 2. The union discipline As mentioned earlier, Richard Earl filed clia'rges , against Reese which provided, inter alia: During the morning of 10/23/81 I observed John Reese installing and performing electrical work for Amos Walker Electric. With these actions I feel he has violated his contract and oath to the IBEW and has wronged other members. The trial board meeting was held on December 7, 1981, but Reese did not attend. Business Agent Cake stated at the trial board meeting that Reese had told Cake that Reese was a journeyman and not a foreman. At the instant hearing, Cake testified that, as far as Cake and the Union were concerned, all foremen and superin- tendents continued to be journeymen By letter dated December 9, Reese was notified that he had been found guilty of all charges and fined $5000. H. The Superintendents and Foremen of Rex Moore- 1. The supervisory hierarchy Rex Moore had been party to the NECA-Union col- lective-bargaining -agreement. In June 1981, when the Union commenced its strike, Rex Moore continued its 'Sacramento operations with replacement employees.21 After the strike, Rex Moore's business increased. The combination of the hiring of strike replacements and the increased number of worksites caused Rex Moore to es- tablish 'a new chain of command for the supervision of its construction projects The president and general manager of Rex Moore is Steven Moore. Under Steven Moore's supervision are Rodney Weckworth, vice president for construction and engineering, and two superintendents, Gary Wheeler and Ted Barlow. After the strike, Wheeler and Barlow were each promoted from foreman to superintendent. Wheeler and Barlow have responsibility for all the Company's construction jobs and maintenance jobs, including au- thority over the job foremen and electrical workers. Generally, Wheeler has authority over in-town projects and maintenance contracts and Barlow has authority -on out-of-town projects. However, to even out the work- load, Barlow has some in-town projects. Combined, Barlow and Wheeler have the responsibility of 50-60 jobs. In November 1981, Rex Moore set up a new organiza- tional structure to deal with the 'supervision problems -created by the Increase in its business and the change in its employee complement. 22 On December 2, Steven Moore held a meeting of the Company's managerial and supervisorial personnel, including Barlow and Wheeler and all its current and "potential" foremen. The two su- perintendents and all of the foremen and potential fore- men were given written job descriptions Steven Moore " Rex Moore's out-of-town jobs continued under . IBEW agreements with various sister locals of Respondent , " In October, after the signing of the NECA-NAIU agreement, Rex Moore adopted that agreement and its stnke replacements became NAIU members 436 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD informed the foremen that problems and grievances should be funneled through the superintendents. Wheeler and Barlow told the foremen that . foremen were to handle as many problems as possible on the job and only bring the larger, more difficult problems to the superin- tendents. Don Sutton, Tim Bailey, and Dale Zicarelli, foremen at issue in this case, were present at the meeting Francisco Orden and Robert Slack were not hired until February and March 1982, respectively. Wheeler and Barlow are responsible for every aspect of every Rex Moore project, including both construction and - maintenance jobs. Wheeler and Barlow decide which one of them will be superintendent for the job and they jointly choose the foreman When a project is first begun, Wheeler, Barlow, Moore, Weckworth, the esti- mator, and the foreman meet for a prejob conference. At the conference, a prejob agenda is developed, a copy of which is given to the foreman and the superintendent Next the superintendent and foreman will go to the job- site and discuss the plans and the material, equipment, and manpower needs. They will also discuss scheduling with the general contractor's representatives. Wheeler and Barlow visit jobsites approximately once .a week. On such occasions, the superintendent takes a "job walk" with'the foreman to check on the progress of the job, including the quality of work, amount of work, materials, and any deviations from the plans. The super- intendent and foreman fill out a project inspection check- list for each visit which covers, in detail, every aspect of the project, including labor costs and personnel prob- lems. Every other Friday, the checklist for each job is reviewed by Barlow, Wheeler, Weckworth, and Steven Moore at their production meeting. Wheeler has similar duties with regard to the Compa- ny's three , large maintenance contracts. However, less su- pervision of the foreman is required on maintenance jobs because of the direct day-to-day contact between the foreman and the management of the facility As indicated earlier, if personnel problems arise on the job, the responsibility falls to the foreman. If the foreman cannot resolve the dispute then he will go to the superin- tendent for a resolution. Wheeler and Barlow have the authority to discharge, lay off, and transfer employees Wheeler and Barlow have the responsibility of dealing with unions on the job about contract disputes or other grievances.. On Barlow's out-of-town jobs, he has been involved in several disputes with sister locals of Re- spondent. In general, all. of Rex Moore's supervisors have the same authority However, certain foremen are permitted more discretion based on the superintendent's confidence in that foreman. On the Company's construction jobs, the foremen have the day-to-day responsibility of run- . Tung the jobs. The foremen request the number of men needed on, the job. The superintendents then transfer men from other jobs or hire new employees. The super- intendents attempt to transfer men to other jobs and, if there is no place for transfer, they have employees laid -off. However, it is the foremen who choose which em- ployees to transfer or lay off. The foremen can also re- quest employees by name or by skill. The foremen have the authority to fire employees on the spot for miscon- duct. Moreover, the foremen have responsibility for the safety on their jobs and conduct safety meetings with their crews. The foremen have the authority to grant time off and recommend employees for promotions or raises. Finally, the foremen have the authority to deal with union representatives concerning problems on the job; however, if the resolution of the problem involves a lot of money, the problem is referred to the superintend- ent. 2. Gary Wheeler and Ted Barlow As mentioned earlier, Wheeler and Barlow are super- intendents who, combined, have 50-60 jobs under their supervision. Their duties include the supervision of fore- men. They are involved in the resolution of job problems which cannot be resolved by their foremen, including labor-management disputes. There can be no doubt that Wheeler and Barlow are supervisors within the meaning of Section 2(11) of the Act and employer representatives for purposes of collective bargaining and the adjustment of grievances within the meaning of Section 8(b)(1)(B). Barlow has been employed by Rex Moore for approxi- mately 13 years. At the time of the strike, he was em- ployed as a foreman. In October, Barlow was rehired as a superintendent. Charges were filed against Barlow for working on December 10, 1981, for Rex Moore. The charge alleged: Theodore Barlow has been a member of the IBEW for 23 years and has not terminated his contract with the IBEW. He has not furthered the purposes of the IBEW and has sacrificed its interest in the following manner—working for a contractor who is not signatory to an IBEW agreement with Local Union 340. Barlow has wronged the other members of the IBEW by causing economic harm On February 1, 1982, the Union's trial board held a meeting on the charge against Barlow but Barlow did not attend At the trial board meeting it was mentioned that Barlow was not the foreman on the job but was overseeing the foreman. There was no discussion of the Union's disclaimer of September 15 By letter dated Feb- ruary 9, Barlow was notified that he had been found guilty and fined $2978 Respondent's business agent Romitn filed the charges against Wheeler for working for an employer "who is no longer signatory to an IBEW agreement with Local 340." On January 18, 1982, the Union's trial board met to consider the charges against Wheeler but Wheeler did not attend the meeting. The trial board discussion re- vealed that on that date Wheeler crossed a union picket line to visit the job 23 It was further discussed that prior to the strike Wheeler had been a foreman. By letter dated February 4, Wheeler was notified that he had been found guilty and fined $6500. 2 3 The Union was picketing Rex Moore with picket signs alleging that Rex Moore did not pay prevailing wages ELECTRICAL WORKERS IBEW LOCAL 340 (HULSE ELECTRIC) • 437 3. Francisco Orden Francisco Orden first went to work for Rex Moore in 1971. In 1974, he became a foreman and continued to work as a foreman until the strike in June 1981. In Feb- ruary 1982, Orden was rehired by Steven Moore, Weck- worth, Wheeler, and Barlow as a foreman , Orden ac- cepted the job on condition that he would 'not be re- quired to work with the tools of the trade. On his return to Rex Moore, Orden first became fore- man for a job under the supervision of Barlow Orden had from five to seven men working under his supervi- sion. Because Orden was not 'familiar with- the men then working for Rex Moore, Barlow helped Orden choose the men to be hired for this job. Orden determined the number of men needed and ordered the materials for the job. Orden did not fire any employes on this job but did lay off one employee due to a lack of work In March 1982, Orden became foreman of a warehouse job at which he supervised a crew of five or six employ- ees. Three employees were transferred to this job from Orden's former job and Orden-hired an additional two or three employees. Four weeks later, Orden was trans- ferred to another jobsite for Rex Moore. In May 1982, Orden became a project manager. Orden hired Tim Bailey to be foreman over a crew of 7 to 10 men on one aspect of the job. Orden requested a crew of employees that had previously worked with Bailey on another job- site. This crew was transferred over a period of time from other Rex Moore jobsites Thereafter, Orden hired an additional foreman. Initially, Orden ,reported directly to Wheeler for this job. However, due to the press of work, after a period of approximately 1 month, Orden began to skip Wheeler and report directly to Steven Moore Orden would show the foremen in detail what work he wanted done and the priority of work. The foremen would then lay out the work for their crews. The direct supervision of the workmen was left to the foremen. The foremen had the_ respOnsibility of adjusting minor problems on the job, such as personality conflicts. If , the foremen could not, resolve such problems, they would be brought to Orden On one occasion, after an employee - had a personality conflict with two different foremen, Orden fired the employee. On another occa- sion, Orden fired an employee who had been given two warnings by Bailey Orden testified that neither he nor his foremen had any responsibility regarding' Rex Moore's collective-bargaining agreement. About June 4, 1982; Charles Lux, a member of Re- spondent, filed a charge against Orden for "working for an employer who is no longer signatory to an IBEW agreement with Local Union 340." On July 19, a trial board meeting was held on these charges, but Orden did not attend. By letter dated July 26, Orden was notified that he had been fined $10,108.. 4. Tim Bailey, Don Sutton; Robert Slack, and Dale Zicarelli Tim Bailey was hired by Rex Moore in August 1981 as a general foreman. As general foreman, Bailey in- structed his crew on what. was expected of them on a daily basis. Bailey kept a record of each workman's time and a job journal. Bailey was also responsible for order- ing the materials on the job. Bailey worked closely with the -engineers on the jobsite , , Based on the workload, Bailey would call Wheeler for additional workmen. When the workload eased, Bailey would call Wheeler to find out whether men should be transferred to other jobs or laid off. On at least 'one occasion' , Bailey resolved a complaint from two employees by assigning the employ- ees to a different area of the jobsite. Bailey recommend- ed employees for raises: Bailey had two employees trans- ferred to another jobsite because they were not capable of performing_ certain work Bailey authorized overtime and also sent men home early because of inclement weather. On February 24, 1982, Cake filed charges against Bailey for working on February 24 "for an employer who is no longer signatory to an IBEW agreement with Local Union 340." Bailey did not attend the Union's trial board meeting of April 26. By 'letter dated May 4, Bailey was notified that he had been fined $9604 for "perform- ing bargaining unit work while employed by Rex Moore Electric." Don Sutton was hired by We'ckworth in October 1981 as a foreman for an office building jobsite. Although Sutton had a smaller crew than most foremen, there was testimony that Sutton had the same authority as the other foremen. In addition, there was testimony that Sutton made various changes in the plans for his jobs. On several occasions, Sutton called Wheeler to have par- ticular employees transferred or laid off. Sutton terminat- ed one employee. On one occasion, employees under Sutton's supervisiori .coMplained about a safety problem. Sutton went to the general contractor's superintendent and had the problem taken care of. About April 8, 1982, Cake filed charges against Sutton for "working for an employer who is no longer .signato- ry to an IBEW agreement with Local Union 340." On May 17, the trial board held a meeting on these charges but Sutton did not attend. On May 26, Sutton was noti- fied that he was fined $10,640 for "performing bargain- ing unit work while employed by Rex Moore Electric." Robert Slack began working for Rex Moore in March 1982 as a foreman Slack was hired by Wheeler to be a foreman on a job in downtown Sacramento Wheeler hired the crew for the job. Slack's crew varied in size from 5 to 11 workrnen. Slack had the authority to assign work and transfer and discipline workmen, including dis- charge. On this particular_ job, Dan Strain was also a foreman for a separate work crew. Slack and Strain _transferred men between their crews depending on the press of work. The job walks were done by Wheeler with the two foremen, Slack, and Strain. On April 8, Cake filed intraunion charges against Slack for "working for an employer who is no longer signatory to an IBEW agreement with Local Union 340." On May 17, the Union's trial board held a meeting on these charges. Slack attended the meeting and was questioned about his work for Rex Moore. Slack denied that he was a foreman and told the trial board members 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was not training other employees. 24 During the meeting Cake said "if, Rex Moore couldn't get ,qualified people maybe Rex. Moore wouldn't be in the position that he's in right now and maybe he could be coming back knocking at our door." On May 26, Slack was noti- fied that he 'is found 'guilty of "performing bargaining unit work while employed by Rex Moore Electric" and fined $10,640. Dale Zicarelli did not- testify at the instant hearing. Zi- carelli was a foreman for Rex Moore at a maintenance jobsite known as the Almond- Growers' facility. The evi- dence indicates that Zicarelli had the same authority as the other Rex Moore foremen. Zicarelli reported' to Wheeler on that job but worked closely with the facili- ty's engineers. Zicarelli had the authority to • determine the number of mew needed and to direct the crew in its work Zicarelli laid off and transferred employees. Fur- ther, Zicarelli recommended employees for promotion and raises. • - On December' 22, .Cake filed an intraunion charge against Zicarelli for working at the Almond Growers' fa- cility for Rex Moore. The trial board meeting was held on February t, 1982, but Zicarelli did not attend. The trial board members noted that Zicarelli had an honorary withdrawal. from another IBEW local. - February 9, the Union notified Zicarelli that he had been found guilty of "performing bargaining unit' work` while' em- ployed by -Rex Moore Electric Company" and fined $3000. ' I. Conclusions Regarding the Foremen of Rex Moore As mentioned earlier, Wheeler and Barlow, the super- intendents, are supervisors within the meaning of Section 2(11) of the ACt and- emp1Oyer 'representatives for pur- poses of collective bargaining 'and, the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act The issue is chiSer With regard to the foremen. Section 2(11) of the Act states: -' . , . - The term, "supervisor" means-any- individual having authority in the interest of the ,employer, to hire, transfer, .suspend, layoff, recall, promote, discharge, assign, reward, or discipline-other employees, or re- sponsibly to direct them, or. to adjust their griev- ances, 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 judg- ment. , The Of any one of the authbrities specified in Section 2(11) is sufficient to place an employee in the supervisory class. Qhio Power Co. - v. NLRB, 176 F.2d 24 Slack testified that he lied about‘ being a foreman in the hope that the trial board would lessen his fine The fact that , Respondent did not know that Slack was a foreman appears irrelevant' in view of the Board cases holding that such lack ofknowledge is not a defense to an 8(b)(1)(B) violation See e g, SkipPy Enterprises, 211 NLRB at 227 See also Brown C o, supra at 811 Moreover, the evidence shows that in this case the Union considered all supenntendents and foremen to be Journeymen eleetncians and that the Union was mit concerned with the rePresentititive status of any of 'the individuals See American Broadcast- ing Co v Writers Guild, 473 US 411, 420-421 (1978) 385, 387 (6th Cir. 1949), cert. denied 338 U.S. 899 (1949); Fair Lady, Inc., 211 NLRB 189 (1974). On- the other hind, the legislative history of Section 2(11) indicates that Congress intentionally distinguished between ,"straw bosses, leadmen, set-up men, and other , minor supervisory employees, on the one hand, and the 'supervisor vested with such genuine management prerog- atives as the right to hire or fire, discipline, or make ef- fective recommendations with respect to such action. Thus, a leadman or straw boss may give minor orders or directives or supervise the work of others, but he is not necessarily a part of management and a 'supervisor' within the ,Act.". 263 NLRB 380, 385 (1982), citing NLRB v. Doctor's Hospital of Modesto, 489 F.2d 772, 776 (9th Cir. 1973). The, critical issue herein is whether the foremen exercised -independent judgment in performing supervisory duties in the interest of their .employer. , The Rex Moore foremen physically- lay out the work for their crews and assign employees to various tasks. The foremen .transfer or lay off employees when the workload- requires such action. While the superintendent determines whether transfer or layoff is required, it is.the foreman who determines which employees will remain with the job' and which will be transferred or laid off. The foremen have the authority to discipline employees, including transfer, layoff, and discharge. The foremen ef- fectively recommend pay increases and promotion. The foremen resolve such employee problems as safety, per- sonality conflicts, requests for different assignments, and requests for time off. Superintendents Wheeler and Barlow have approximately 30 jobs each and, therefore, visit the jobs only once a Week. At all other times, the foreman is the responsible Rex Moore official , on the job- site. Thus, the foreman represents Rex Moore in dealing with the general Contractor on the jobsite and in dealing with the employees. Only if the foreman cannot resolve problems on the job are the matters brought to the atten- tion of the superintendent. Thus, the record reveals that Foremen Bailey, Sutton, Slack, and Zicarelli possessed and exercised authority 'sufficient to find them to be su- pervisors within the meaning of the Act. Further, I find that the exercise of such authority required independent judgment and was not merely routine or clerical.25 . Orden, as project manager, had two foremen working under him, each supervising a crew of electricians. As I have found the foremen to be supervisors, it follows that their supervisor, Orden; must have possessed supervisory authority. The facts bear this out; Orden hired a foreman and transferred another foreman. Moreover, Orden fired two employees after the foreman's warnings went un- 25 While there is some evidentiary conflict as to the amount of manual work performed by certain of the foremen, I find It unnecessary to re- solve this conflict The fact that working foremen perform manual work as well as direct others does not detract from their statutory supervisory sditus E.E.E. Go, 171 NLRB 982 (1968), Penco Enterprises, 201 NLRB 29, 31 (1973) This is not a case where the normal amount of manual work performed by the supervisors mcrea;ed dunng the course of a strike See Polk Con- struction, supra at 761-762 Here, by sending its disclaimer letter of Sep- tember 15, the Union ended its stnke against the employers The job duties of the foremen at issue were established after the strike had ended ELECTRICAL WORKERS IBEW LOCAL 340 (HULSE ELECTRIC) 439 heeded. Accordingly, I find Orden to be a supervisor within the meaning of the Act. Respondent contends that none of the supervisors herein engaged in collective bargaining or the adjustment of grievances and, therefore, are not covered by Section 8(b)(1)(B) However, under the Board's "reservoir doc- trine," the Board interprets the term "representative for the purpose of collective bargaining or the adjustment of grievance" broadly so as to include all individuals who are supervisors within the meaning of ,Section 2(11) on the ground that such individuals from the logical "reser- voir" from which the employer is likely to select his rep- resentatives for collective bargaining or grievance adjust- ment. See, e.g., Lithographers & Photo-Engravers Local 15-P (Toledo Blade), 175 NLRB 1072 (1969), enfd: 437 F.2d 55 (6th Cir. 1971) Recently, in Teamsters Local 296 (Northwest Publications), 263 NLRB 778, 779 fn 6 (1982), the Board reaffirmed its adherence to the reservoir doc- trine and its position that all sup'ervisors within the meaning of Section 2(11) are representatives within the intent of Section 8(b)(1)(B). Even without resort to the reservior doctrine, the evi- dence establishes that the foremen herein adjusted griev- ances The foremen granted employees time off to attend to personal business, resolved personality conflicts, re- solved personal complaints concerning job assignments, and resolved complaints concerning job safety. The Board has broadly interpreted .the term grievances as used in both Section 2(11) and Section 8(b)(1)(B) so as to include not only contractual grievances but also personal grievances Typographical Union 529 (Hour Publishing), 241 NLRB 310, 315 (1979); Toledo Blade, supra. J. The Bargaining Relationship As mentioned earlier, the Union had a longstanding collective-bargaining relationship with NECA. Except for Hulse, which had signed a "me-too" agreement, all the companies involved herein were party to the NECA- Union negotiations of 1981. The 1978-1981 agreement expired on May 31, 1981. On June 10, the Union com- menced a strike against NECA and its employer-mem- bers and some of the "me-too" contractors, including Hulse. The strike was in progress on September 15 when the Union sent its disclaimer letter. On September 16, NECA sent a telegram accepting the disclaimer. On September 25, the Union filed 17 representation petitions seeking to represent the employees of 17 NECA employer-mem- bers, including M & M and Peters. On October 1, NECA signed a collective-bargaining agreement with the NAIU. Seven of the employers involved in the represen- tation cases reached agreement with the Union permit- ting the employees to return to work about October 1. Thereafter, these seven employers signed separate collec- tive-bargaining agreements with the Union in February 1982. M & M is the only employer involved herein that reached agreement with the Union Peters, Rex Moore, McCubbin, and Amos Walker have adopted the NECA- NAIU collective-bargaining agreement. Between the Union's disclaimer of September 15 and NECA's execution of a collective-bargaining agreement with the NAIU on October 1, the.IBEW, the Union's parent organization, attempting to bring NECA and the Union back together again. On September 24, the Union's - attorney wrote the, IBEW's vice president for the geographic area which includes, Sacramento concern- ing the disclaimer. The attorney's letter contains, inter alia, the following passage which sheds light on the Union's disclaimer: - In late August and early September, Business Man- ager- Frith asked me for advice concerning the le- gality of and procedures 'for disclaiming. interest in the multi-employer bargaining unit represented, by- NECA. He asked me what impact a disclaimer would have on the NECA members and whether a disclaimer would free those NECA members who Frith felt wanted to bargain in good faith with Local 340. I understood then and now understand that the NECA negotiation committee and Board of Directors was and is dominated by employers who want to go ruin-union. Those NECA members who really, wanted a fair contract' and wanted to bargain in good faith had been kept out Of the negotiations and [Were] ignorant of the progress' of negotiations. However, these same employers had signed , a Power of Attorney with NECA to represent them and up to this point had not chosen to attempt- to break away from the multi-employer :unit and re- quest individual bargaining. Brother Frith also Anquired whether NECA could foster an RD election petition or file an RM election petition in an attempt to oust Local 340 from its position as. bargaining representative. As you know, those NECA contractors who had shown. their true colors at the bargaining table had hired scab replacements during the strike. In fact, NECA had already placed the newspaper ad for strike replacements before the strike was called and before impasse had been reached in negotiations. I advised Brother Frith that a disclaimer of inter- est was legally possible, but would have to extend to, the whole multi-employer bargaining unit. I ad- vised him that a disclaimer would cause a halt to his, strike and prohibit him from demanding further bar- gaining with NECA on a multi-employer basis. Therefore, with this history of bad faith bargain- ing, lawsuits and NLRB charges, Brother Frith pre- sented the matter of a disclaimer to the membership for its consideration. Although I was not asked to express an opinion as to the wisdom of disclaiming interest, it is-my opinion that it Was a' realistic move to make considering the tactics employed by.NECA and the possibility that the disclaimer would prompt the good contractors into action. I further advised Brother Frith that the disclaim- er would permit the individual employers to grant recognition to Local 340 on an individual basis and to bargain on a single employer basis. However, I explained that the, disclaimer would not have the effect of voiding the Power of Attorney Should any employer wish to bargain individually with Local 34-0, it would still-have to use NECA as its 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agent. Whether 'NECK would reftise to act on behalf of any eniployer on this basis (and Whether the employer' itself wOuld seize this refusal as an opportunity' to hreak tliePiiwer of' Attorney) were matters for specillation: . On December 29, the Regional Director ' administra- tively dismissed the Union's 17 representation petitions. On September 12, 1082, the Bdard reversed the Regional Director and Ordered that d'hearing he held limited to the issue of the continuing 'exiiterice or viability of the NECA multieMployer bargaining unit which the Region- al Director had administratively found to be a bar to the 17 petitions. The consolidated representation hearing was consolidated with -an unfair labor practice case, Grason Electric, Case 20-CA-16872. that :consolidated hearing cloed on February 28; 1983;_ and the unfair labor prac- tice case is now Pending before m' e -for decision. 26 In Grason Elect,iè, the 'UniOn charged,' inter that the collective-bargaining agreement Aietween NECA and NAIU violated' Section 8(a)(2) of the Act.- The General •Couniel and the ,Chaiging Patties intro- duced evidence showing that notwithstanding its dis- claimer the Union picketed Rex •Moore' allegedly for rep- resentational purposes. As no case 'alleging a violation of Section 8(b)(7) , of the Act, is before 'me, I , make. no find- ings regarding he Union's ,,purpose . in picketing Rex Moore. However, I note that certain 'statements made by union picket's are relevant' to the instant case. 27 In June 1982, a uniOn picket, at a picket' line established .by the Union on a Rex Moore jobsite, told Wheeler that the Union hoped that "everything would 'get back together, all the small contractors and stuff would try to go back to the IBEW and eventually Rex Moore and the' bigger contractors would try to éome baek." In July, a 'picket, on 'a union picket line at a - Rex Moore jobsite; told Wore that he "hoped it [the picketing] Would be over as soon as thing got all back togethei.".. ' - K. Conclusions Regarding 8(b)(1)(B) Violations Section 8(b)(1)(B) of the ,Act provides that "[It shall be 'an unfair labor practice, for a labor organization . . . to restrain or coerce . . employer in 'the selection of his representatives for the purposes Of collective bargain- ing or the adjustment of . grievances." The applicable 26 The representation cases were transferred to the ,Board in Washing- ton, DC, on February 28, 1983, and are now pending before the Board for decision 27 Respondent contends that 'it is not bound by statements of pickets on the ground that pickets are.not officers or agents of the Union How- ever, common law principles of agency, govern the question_of whether a picket was acting as an agent of a union A finding of agency may be based on evidence that the individial "wag acting with the knowledge and acquiescence of the' union -and Iliat ■he' had implied authonty to do what he did" NLRB v Teamsters Local -135, 267 F 2d 8,70, • 873 (7th Cir 1959), NLRB v Teamsters, Local 182, 228 F 2d .83, 84 (2d, Cir 1955) Thus, I find that the statements of the pickets within the authonzed time and space of the picket line in` -furtherance of the Union's objectives are within the implied scope %of their authdrity and imputable to the Union Similarly, I find that the statements' of a picket during a telephone con- versation to the home of Steven Moore ,are not, absent other evidence, within the scope of the picket's agency, and therefore not imputable to the Union , principles of law are set forth in Plumbers Local 364 (West Coast Contractors), 254 NLRB 1123, 1125 (1980:29 Section 8(b)(1)(B) prohibits both direct union pres- sure—for example, stnkes—to force replacement of gnevance representatives and indirect union pres- sure—for example, union discipline of supervisor- members—which may adversely affect the chosen supervisors' performance of their representative 'functions American Broadcasting Companies v. Writ- ers Guild of America, West, Inc., 437 U.S. 411 (1978); New Mexico District of Carpenters and Joiners of America (A. S. Homer, Inc.), 177 NLRB 500, 502 (1969), enfd. 454 F.2d 1116 (10th Cir. 1972); and Wisconsin River Valley District Council of the _United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 218 NLRB 1063, 1064 (1975), enfd. 532 F.2d 47 (7th Cir. 1976) It is also well settled that union discipline of su- pervisor-members who cross a picket line or other- wise violate a union's no-work rule in order to per- form their normal supervisory functions constitutes indirect union pressure within the prohibition of Section 8(b)(1)(B). In reaching this, conclusion, the Board and courts have recognized that the reason- ably foreseeable and intended effect of such disci- _pline is that the supervisor-member will cease work- ing for the duration of the dispute, thereby depriv- ing the employer of the grievance adjustment serv- ices of his chosen representative. American Broad-. casting Companies, supra at 433-437, fn. 36, 1V.L.R.B. v. International Union of Operating Engi- neers, Local Union No. 501, AFL-CIO, 580 F.2d 359, 360 (9th Cir. 1978), A. S. Homer, supra at 502; and [Skippy Enterprises, 532 F.2d at 52-53.] Such discipline is unlawful even where, as here, the su- pervisor defies the union and continues to work for the employer during the dispute; the discipline is, unlawful because the supervisor, having been disci- plined for working during a labor dispute, may rea- sonably fear further discipline and, hence, will be deterred from working during any future disputes The employer, in such circumstances, must either replace the disciplined supervisor or risk loss of his services, during a future dispute; in either event, the employer is coerced in the selection and retention' of his chosen grievance adjustment representative American Broadcasting Companies, supra at 433-437. In light of the foregoing principles Respondent's disci- pline of the instant 10 supervisors because they worked for nonsignatory employers would appear to restrain and coerce the instant four employers in the selection and re- tention of their grievance adjustment representatives. Respondent, relying on the decision of the United States Court of Appeals for the Ninth Circuit in the Chewelah Contractors case, 29 argues that no violation of 28 See also Painters District Council 36 (Brown & Go), 259 NLRB 808, 810-811 (1981) 29 NLRB v Electrical Workers IBEW Local 73. '621 F 2d 1035 (9th Cir 1980), denying enf of 231 NLRB 809 (1977) ELECTRICAL WORKERS IBEW LOCAL 340 (HULSE ELECTRIC) 441 Section 8(b)(1)(B) can be found because the Union did not have a collective-bargaining agreement or a collec- tive-bargaining relationship with any of the employers at the time the supervisors engaged in the conduct for which they were fined In Chewelah Contractors, the court, in refusing to en- force the Board's finding of a violation of Section 8(b)(1)(B), stated that the purposes of the section were to prevent unions from forcing employers into or out of multiemployer bargaining units and to guarantee that an employer's bargaining representative would be complete- ly faithful to the employer's desires. The court noted that, in any decision involving Section 8(b)(1)(B) that had come to its attention, the charged union had been the bargaining representative of the complaining compa- ny's employees. ,However, the charged union in Chewe- lak Contractors neither represented the company's em- ployees nor demonstrated a desire to represent the em- ployees. The court reasoned that the union had no incen- tive to influence the company's choice of representative or affect the member's loyalty to the company. Thus, the court held that a union does not violate Section 8(b)(1)(B) by disciplining 'a member, even though that member is also the bargaining representative of an em- ployer, if the union neither represents nor shows an intent to represent the employer's employees. In Plumbers Local 364 (West Coast Contractors), supra at 1126-27, the Board concluded that the Ninth Circuit's decision in Chewelah was in conflict with a long line of Board cases, and that the Board's position appeared to have the support of the United States Supreme Court and the opinions of other circuit courts: [In American Broadcasting Companies, Inc. v. Writers Guild of America, West, Inc., 'supra, the Supreme Court affirmed the Board's finding that the union (which represented writers in the film industry) vio- lated Section 8(b)(1)(B) by threatening to discipline and by disciplining various supervisors—including directors—who worked during the writers' Strike. It was undisputed that the directors—who supervised other employees and adjusted other employees' grievances—never dealt with writers and did not adjust writers' grievances. In the Supreme Court, the union argued that the threats and discipline di- rected toward the directors could not possibly affect their adjustment of writers' grievances and that therefore the union's actions regarding the di- rectors had not violated Section 8(b)(1)(B). 437 U.S. at 437, fn. 37. The Supreme Conn explicitly reject- ed the union's contention, noting that "directors . . . had [grievance] adjustment duties with respect to other employees" and finding that the union's sanctions made the directors "less than completely reliable and effective employer representatives for the duration of the strike, and less likely to perform any supervisory task during future strikes." Id. The Court then concluded: "A union may no more interfere with the employer's choice of a grievance representative with respect to employees represent- ed by other unions than with respect to those em- ployees whom it itself represents." 437 U.S. at 438, fn. 37. . . The Union involved Writeri Guild did, of course, .represent the employer's' writing employees and, thus, had a bargaining relationship with the co- erced employer. However, the Supreme Court also made clear that 'its rationale applied -equally in cir- cumstances where the union did .no't represent the employees of the 'Coerced employer. Thus, the SU- preme Court endOrsed the Board's decision in A. S. Horner, Inc , 7 finding an 8(b)"(1)(B) violation where the respondent union_ did 'not repre'sent the employ- ees of the coerced2employer. Referring with ap- proval to a D.C: Circuit' s opinions 'discussing Homer, the Supreme Court stated (437 U.S. at 436, fn 36): The 'ED C. tirCuit]- noted its agreement with [Horner] here a' union' member worked as a su- pervisor for, a company which had no contract with the union. . . . A fine ,imposed in these cir- ., , cumstances violated [Section 8(b)(1)(B)] because compliance by the ,supervisor with the union's de- mands ivould have required his leaving his job and thus have the effect of depriving the Compa- ny of the services of its, selected representative for the purposes of collective ,bargaining or the adjustment of grievances.. . The [D.C. Circuit] said that _Horner thus "falls close to the original rationale .of § 8(b)(1)(B) which was to permit the employer to keep-the bargaining representative of his own. choosing." 159 U.S. App. D.C., at 284, fn. 19, 487 F.2d at 1155, fn. 19. -; Furthermore, in addition to the Supreme .Court's decision in Writers Guild and the Tenth' Circuit's de- cision enforcing the Board's order in A. S. Horner, at. least two other courts of appeals have approved Board findings of 8(b)(1)(B) violations where the re- spondent union had no -bargaining relationship with the employer involved. See International Organiza- tion of Masters, Mates and Pilots International Marine Division, ILA, AFL-CIO; and Union De Trabajadores De Muelles' Y Ramas Anexas,' Local 140 [Marine & Marketing International Corp.] v. N.L.R.B., 486 F.2d 1271, 1274 (D.C. Cir. 1973), cert. denied 416 U.S. 956 (1974); . International Organization of Masters, Mates and Pilots Marine Division, International Long- shoremen's Association, AFL-CIO v. N.L.R.B., 539 F.2d 554, 559-560 (5th Cir. 4976), cert. denied 434 U.S. 828 (1977). Both the D.C. Circuit and the Fifth Circuit decisions were cited' With approval by the Supreme Court in Writers Guild, 437 U.S at 438, fn. 37. ' 7 New Mexico District Council of Carpenters (A S Homer, Inc), 177 NLRB 500 (1969), enfd 454 F 2d 1116, 1118 (10th Cir 1972) a International Brotherhood of Electrical Workers, Local 134, International Brotherhood of Electrical Workers, AFL-CIO [Florida Power & Light Co] v NLRB, 487 F 2d 1143, 1155, fn 19 (1973) affd 417 US 790 (1974) 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Even assuming that the rationale -of Chewelah should be applied to the present case, a violation of the Act would still .be found. In Chewelah the court found that, since the union did not. represent Chewelah's employees nor demonstrate a desire to represent the employees, the union had no incentive to either influence Chewelah's choice of bargaining representative or affect the supervi- sors' loyalty to Chewelah. In this case the union evi- denced reasons to influence the employers' choice of bar- gaining representative and to affect the supervisors' loy- alty to their employers — - While the Union diselaimed interest in representing employees in the NECA bargaining unit, it sought repre- sentation in single employer units of 17 NECA-represent- ed employers. Statements at the trial board meetings and on the picket line reveal an intention to have the em- ployers come back to Respondent. At the trial board Meetings conducted on the charges against Verga, McDaniel, Slack, Watson, and Hogan the board members spoke as if the Union were still on strike against the employers. _There were requests that Peters, M & M, and McCubbin sign agreements with the Union. There was a di-senssion that Rex Moore would have to come back to - the Union if it could not get trained elec- tricians. Further, union pickets, at picket lines established at Rex Moore jobsites, made -statements indicating that the Union was 'attempting to get the contractors, includ- ing Rex Moore, back together with the Union. Finally, the letter of the Union's attorney, quoted above, indicat- ed that the Union's disclaimer was a tactic designed to "prompt the good 'contractors into action" and "permit the individual employers to grant -recognition to Local 340 on an individual basis and to bargain on a single em- ployer basis:" -It appears-that the Union and the Employers assumed that the replacements needed' more training and supervi- sion than the members of Respondent-whom they re- placed. Thus, the Union intended to withhold supervi- sion from the Employers in order to force the Employ- ers to come back to the, Union. The- Union would then be in a position to bargain with the Employers on an in- dividual basis rather than on a NECA multiemployer basis. Thus Chewelah is distinguishable because the Union continued to desire to represent the employees of the Employers, albeit not in the multiemployer unit. More importantly, one of the -.Union's purposes was to force the Employers out of multiemployer bargaining and into bargaining onn-a single employer basis. A union's attempt to force an employer 'to resign from -a multiemployer bargaining association was recognized 'as an 8(b)(1)(B) violation by the court in Chewelah, 621 F.2d at 1036, citing Roofers Local 36 (Roofing Contractors), 172 NLRB 2248 (1968). Thus, even under the rationale of Chewelah, Respondent's fining of the supervisors as part of a course of conduct designed to cause the "good" employer-mem- bers of NECA to abandon multiemployer bargaining and to bargain on a single employer basis is a violation of Section 8(b)(1)(B) of the Act. _ 'CONCLUSIONS OF LAW ' 1. Respondent is a labor organization within the mean- ing of Section 2(5)_ and Section 8(b) of the Act. - 2. Hulse, Peters, Rex' Moore, McCubbin, Amos Walker, and M & M are employers engaged in com- merce nnd in business affecting commerce within the meaning of Section 2(6) and (7) of the Aet 3. By imposing fines on employees Dale Pettit, Don Verga, and Doyle McDaniel,' who had effectively re- signed from union membership, for their , postresignation conduct, Respondent restrained and coerced employees in the exercise of the rights -guaranteed them in Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act 4 Robert Hogan (McCubbin), Curtis Watsbn (M & M), John Reese (Amos Walker), 'Gary Wheeler (Rex Mobre), Ted Barlow (Rex Moore), Don Sutton (Rex Moore), Tim Bailey (Rex Moore), Dale Zicarelli (Rex Moore), Robert Slack (Rex Moore), and Francisco Orden (Rex Moore), at all times material, were supervi- sors for their respective employers within the meaning of Section 2(11) of the Act and .employer representatives within the meaning of Section 8(b)(1)(B) of the Act. 5. By preferring charges ' against Hogan, Watson, Reese, Wheeler, Barlow, Sutton, Bailey, Zicarelli, Slack, and Orden, and imposing fines against them, Respondent restrained and coerced the above-named Employers in the selection and retention of their representatives for the purposes of collective bargaining and the adjustment of grievances, and thereby has engaged in, and is engaging in, unfair labor practices , within the meaning of Section 8(b)(1)(B) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respodnent has engaged in unfair labor practices, I shall recommend that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3° ORDER The Respondent, International Brotherhood of Electri- cal Workers, Local Union 340, AFL-CIO, Sacramento, California, its officers, agents, and representatives, shall 1. Cease and desist from (a) Bringing charges against or imposing fines upon employees who have resigned from and are no longer members of Respondent or its sister locals because of postresignation conduct protected by Section 7 of the Act. 30 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations,' the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses ELECTRICAL WORKERS IBEW LOCAL 340 -(HULSE -ELECTRIC) 443 (b) In any like or related -manner restraining or coerc- ing employees in the exercise of the rights guaranteed' them in Section 7 of the Act. (c) Restraining or coercing May-Han Electric, d/b/a M & M Electric, Clint McCubbin, Inc., Rex Moore Electric Company, or Amos J. Walker, Inc. in the selec- tion of their representatives for purposes of collective bargaining or the adjustment of gneyances by preferring charges, holding a trial, fining, or otherwise disciplining any such representative performing supervisory, manage- rial, or grievance-adjustment functions for these Employ:, ers. (d) In any like or related manner restraining or coerc- ing M & M, McCubbin, Rex Moore, or Amos Walker in the selection of their representatives for the purpose of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Rescind and expunge from its records all discipli- nary actions taken against 'Pettit, Verga, and McDaniel because of their postresignation conduct and notify Pettit, Verga, and McDaniel, in writing, that the fines levied against them have been rescinded and that all records of disciplinary actions against them have' been expunged. (b) Rescind and expunge from its records all discipli- nary actions taken against Hogan, Watson,. Reese, Wheeler, Barlow, Sutton, Bailey, Zicarelli, Slack, and Orden, including the fines, because of their working as supervisors and employer representatives, and notify Hogan, Watson, Reese, Wheeler, Barlow, Sutton, Bailey, Zicarelli, Slack, and Orden; in writing, that the fines levied against them have been rescinded 'and that all records of disciplinary actions against them have been expunged. (c) Post at its business office and meeting halls copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by Respondent to . ensure that the notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director signed copies of the notice for posting by the Employers, if those Companies are willing, in places where notices to employees are customarily posted. Copies of the notice to be furnished by the Regional Director, after being signed by Re- 31 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 Judgment of the United States Court of Appeals Enforcmg.an Order of the Nation- al Labor Relations Board" • spondent's authorized representative, shall -be returned forthwith to the Regional Director. (e) Notify the Regional 'Director in' writing' within 20 days from the date of this Order what steps Respbndent has taken to'comply. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United_States.Government WE WILL NOT bring ,charges against or impose fines upon employees , who have resigned from and are no longer members of International Brotherhood of Electri- cal Workers, Local Union 340, AFL-CIO, or its sister locals, because of postresignation, conduct protected by Section 7 of the Act. - WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of, the rights guaranteed them in Section , 7 of the Act. • WE WILL NOT restrain or coerce May-Han 'Electric, d/b/a ,M & M Electric, Clint McCubbin, Inc., Rex Moore, Electric Company,- or _Amos J. Walker, Inc. _in the selection of their representatives for purposes of col- lective bargaining or the, adjustment of grievances by preferring charges, holding ,a trial, , fining, or otherwise disciplining any such representative performing supervi- sory, managerial, or grievance, adjustment functions for these Employers. • , WE WILL NOT in any like or related manner restrain or coerce ,M , & M, McCubbin, Rex Moore, or Amos Walker, in the selection of their representatives for the purpose of collective bargaining- or the adjustment of grievances. , WE WILL rescind or expunge from our records all dis- ciplinary actions taken against Dale •Pettit, .Don Verga, and Doyle McDaniel because of their postresignation conduct and notify Pettit, 'Verga, and McDaniel, in writ- ing, that the 'fines levied against them have been rescind- ed and that all records of disciplinary actions against them have been expunged. WE WILL rescind and expunge from our records all disciplinary actions taken against Robert Hogan, Curtis Watson,' John Reese, Gary Wheeler, Ted Barlow, Don Sutton, Tim Bailey, bile ,Zicarelli, Robert Slack, and Francisco Orden, including the fines, because of their working as supervisors , and , employer representatives, and notify Hogan, Watson, Reese, , Wheeler, BarloW, Sutton, Bailey, Zicarelli, Slack, and Orden, in writing, that the fines levied .against them have been rescinded and that all fecOrds of disciplinary actions against them have been expunged. „ , - INTERNATIONAL' BROTHERHOOD OF ELEC- TRICAL, WORKERS, LOCAL UNION 340, AFL-CIO