Shipbuilders Local 9 (Todd Pacific)

SHIPBUILDERS LOCAL 9 (TODD PACIFIC) Industrial Union of Marine and Shipbuilding Work- ers of America, Local No. 9, AFL-CIO (Todd Pacific Shipyards) and John R. Bencomo. Case 21-CB-8886 26 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 31 October 1985 Administrative Law Judge Richard J. Boyce issued the attached decision. The General Counsel filed limited exceptions and a sup- porting brief. The Respondent subsequently filed a brief in support of the judge's decision and in answer to the General Counsel's limited exceptions. 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 record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified below and to adopt the recommended Order as modified. The General Counsel has excepted to the judge's failure to find that the Respondent caused Charg- ing Party John Bencomo's resignation from his leadman position in violation of Section 8(b)(1)(A) and (2) of the Act. We find merit in the exception. This case has evolved from an altercation on 10 April 19841 between Bencomo and Ray Brimm, both employees of Todd Pacific Shipyards. Al- though Bencomo did not occupy a supervisory po- sition with the Employer, it was a part of his job as a shipfitter leadman to ensure that other employees moved in a timely fashion from one ship to another pursuant to reassignments of manpower. In the course of carrying out that function on 10 April, Bencomo told Brimm, who had been reassigned, to finish his conversation with Denzil Rubens, an al- ternate shop steward for the Respondent, and to proceed expeditiously from the USS Crommelin to the USS Kurtz. Bencomo and Brimm then engaged in a heated argument punctuated by the exchange of obscenities and threats. After the argument, Brimm complained to Rubens about Bencomo. From that point forward Bencomo's relationship with the Respondent dete- riorated, as did his employment situation. On the morning following the argument, Brimm, Steward Victor Ramirez, and Alternate Stewards Rubens and Clyde Flowers met with their general foreman Robert Kennerson and two other foremen of Todd. During this meeting, the Respondent's representa- ' All dates are in 1984 unless otherwise stated 617 tives first made mention of transferring Bencomo to another ship and stated also that they wanted him "busted back to a mechanic." They indicated that it was their feeling that Bencomo was not "justified to be a leadman." Also, on 11 April, David Donnelly, the Respondent's business agent, had a telephone conversation with Kennerson about the Bencomo situation. Donnelly discussed the various options open to Kennerson, including the transfer of Bencomo to another ship, transfer to another shift, or a transfer as well as a demotion from leadman. Shortly after 11 April, Kennerson went on vaca- tion. Starting 14 or 15 April Donnelly had a series of conversations with Foreman Robert Korta. These conversations also concerned the Respond- ent's suggested options for resolution of the Ben- como matter, including removing Bencomo from his leadman position. Also during this time, Rubens told Acting Supervisor Chuck Kempton that "they" were going "to get" Bencomo, "to get his lead hat," and "to write a grievance against him." On 23 April, when Kennerson returned from va- cation, Donnelly called him and said that he "would like for [Kennerson] to break him [Ben- como] back from a leadman and also to transfer him to another ship." Donnelly also indicated to Kennerson that no grievance would be filed by Re- spondent Todd Pacific in the event that Bencomo was reduced back from leadman. On 24 April, in order to, as Kennerson put it, "cool off the situation until both sides could talk it over," Bencomo was transferred from the USS Crommelin to the USS Gary. That same day, after having been told of his transfer by the Employer, Bencomo went to the offices of the Respondent and had a conference with Donnelly, at which time he expressed his frustration at not having been af- forded an opportunity to present his side of the story. Although Bencomo already had been trans- ferred from his original work station, Donnelly still indicated that internal union charges would be pressed against him, stating that "they were after [his] hat also." On 25 April, Bencomo's first day at his new job on the USS Gary, he had a further conversation with Steward Ramirez, who confirmed that charges would still be filed. Bencomo questioned Ramirez as to what the Respondent wanted. In reply, Ramirez stated, "[W]e want your leadman hat taken away from you and we want you off the Crommelin." He added, "When a kid misbehaves we punish him." That same day, Rubens boasted to Kempton about having "a good case on" Bencomo and stated that "if they had to, they would go for his job." 279 NLRB No. 87 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bencomo acceded on 25 April to the Respond- ent's frequently expressed desire by informing the Employer that he wished to relinquish his leadman position because he "couldn't give . . . 100% as a leadman" due to "the union harassment." An inter- nal union charge was nevertheless filed against him on 9 May. In the absence of exceptions, it is now undis- puted that the Respondent's agents violated Section 8(b)(2) and (1)(A) by causing or attempting to cause Todd Pacific to transfer Bencomo to another ship and by attempting to cause Todd Pacific to demote him from the shipfitter leadman position. Similarly undisputed are the judge's findings that the Respondent's agents also independently violat- ed Section 8(a)(1)(A) when, inter alia, they told Bencomo or fellow employee Kempton that they were going to cause Bencomo's transfer and demo- tion and they were going to file internal union charges against him. In spite of these findings, the judge further found after a brief discussion2 that Bencomo's relinquishment of his leadman position was a voluntary uncoerced act for which the Re- spondent was not liable. In accord with the Gener- al Counsel's exceptions, we disagree with the judge. It is clear from the aforementioned summary of events that the Respondent's unlawful retaliatory pressure on Todd Pacific and on Bencomo contin- ued unabated even after Bencomo's transfer off the USS Crommelin. Such continued coercion was consistent with the repeatedly stated purpose of the Respondent's agents not only to effect Bencomo's transfer, but also to deprive him of his leadman po- sition. In light of such unrelenting pressure, which undisputedly motivated Bencomo to resign his po- sition, we find that the resignation was not a truly voluntary act. It was instead a demotion construc- tively caused by the Respondent's unlawful coer- cion. Consequently, we conclude that the Respond- ent violated Section 8(b)(2) and (1)(A) by causing Bencomo to resign his leadman position. REMEDY Having found that the Respondent has engaged in an additional unfair labor practice in violation of Section 8(b)(2) and (1)(A) of the Act, we shall order the Respondent to make John R. Bencomo whole for any loss of earnings and other benefits suffered as a result of causing Bencomo to resign his leadman position on 25 August 1984. 2 See judge's decision at fn 23 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Industrial Union of Marine and Ship- building Workers of America, Local 9, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Make John R. Bencomo whole for any loss of wages or other benefits he may have suffered as a result of the Respondent 's causing Todd Pacific Shipyards to transfer him off the USS Crommelin and causing Bencomo to resign his position as lead- man with the Employer." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT cause or attempt to cause Todd Pacific Shipyards to transfer, change the shift of, or demote any employee because of actions proper- ly taken by that employee in the performance of his (or her) job. WE WILL NOT tell an employee or his (or her) coworkers, in substance, that we are going to cause that employee's transfer and demotion or that we are going to bring an internal union charge against him (or her), nor will we actually bring such a charge against him (or her), because of actions properly taken by that employee in the perform- ance of his (or her) job. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make John R. Bencomo whole, with interest, for any loss of wages and benefits he may have suffered as a result of our causing Todd Pacif- ic Shipyards to transfer him off the USS Cromme- lin, and our causing him to give up his job as a leadman. WE WILL dismiss the internal union charge filed against Bencomo on 9 May 1984, rescind any pen- alties that may have been imposed on him as a result of that proceeding, remove from our files any reference to that charge, and notify Bencomo in writing that these actions have been taken and SHIPBUILDERS LOCAL 9 (TODD PACIFIC) that the charge and resulting proceeding will never be used against him in any way. WE WILL notify Todd Pacific Shipyards in writ- ing, providing a copy to Bencomo, that we have no objection to Bencomo's being a leadman on the USS Crommelin or anywhere else, on any shift. INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMER- ICA, LOCAL No. 9, AFL-CIO Neil Warheit, Esq., for the General Counsel Margo A. Feinberg, Esq. (Schwartz, Steinsapir, Dorhmann & Sommers), of Los Angeles, California, for the Re- spondent. John R. Bencomo, for himself DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was heard in Los Angeles, California, on 23 Octo- ber and 13 December 1984 and 22 January 1985 i The charge was filed by John R. Bencomo, acting for him- self, on 29 May 1984. The complaint issued on 13 July, was amended during the trial, and alleges that Industrial Union of Marine and Shipbuilding Workers of America, Local No. 9, AFL-CIO (Respondent) violated Section 8(b)(2)-and derivatively Section 8(b)(1)(A)-of the Na- tional Labor Relations Act in April 1984 by attempting to cause Bencomo's employer, Todd Pacific Shipyards (Todd), to transfer and demote him, and by causing his transfer; and that it further violated Section 8(b)(1)(A) in four particulars in April and May 2 As is concluded below, after an examination of rele- vant evidence and applicable legal authority, Respondent violated the Act substantially as alleged, and in two re- spects not alleged. 1. JURISDICTION Todd manufactures and repairs ships in San Pedro, California. The parties agree that its purchases and sales meet the Board 's jurisdictional standards, and that it is an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. I This manner of setting forth dates comports with current Board prac- tice 2 A union violates Sec 8(b)(2) by "caus[mgl or attempt[ing] to cause an employer to discriminate against an employee in violation of Sec 8(a)(3) Sec 8(a)(3) in turn forbids employers from "discriminat[ing] in regard to hire or tenure of employment to encourage or discourage mem- bership in any labor organization " A union violates Sec 8(b)(1)(A) by "restrain[ing] or coerc[ing] employees in the exercise of the rights guaranteed in Sec 7" of the Act Sec 7 bestows on employees "the right to self-organization , to form , join, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," together with "the right to refrain from any or all such activities" except as qualified by a valid union-security agreement iI. LABOR ORGANIZATION 619 The parties agree that Respondent is a labor organiza- tion within Section 2(5) of the Act. 111. THE ALLEGED MISCONDUCT A. Evidence 1. Precipitating incident On 10 April 1984, three of Todd's employees on the USS Crommelin were reassigned to another ship, the USS Kurtz. The three were in a bargaining unit repre- sented by Respondent. They were told of the change by Chuck Kempton, an acting supervisor, at the 7:30 a.m. start of their shift. Bencomo was a shipfitter leadman on the Crommelin at the time. This is a nonsupervisory position in the bar- gaining unit . About 8: 15 a.m., on April 10, Bencomo saw the three reassigned employees talking with Denzil Rubens, an alternate shop steward for Respondent, on the fantail of the Crommelin. He assumed that they "were discussing the transfer," which he regarded as union business. Bencomo told the transferees that "45 minutes had passed on [that] they were . . to leave the ship," and directed Rubens to "go back to work." He also stated that "this wasn't the time for union business," or words to that effect. The last hour of the shift-from 3 to 4 p m.-is the accepted time for the discussion of union matters. Two of the reassigned employees promptly picked up their tools and left the ship. The other, Ray Brimm, did not, instead engaging Bencomo in "an exchange of words." Bencomo testified that Brimm "poked [him] in the chest with his finger," acused him of being "the reason" for the transfer, and announced that, "first chance he got, he was going to fuck with" Bencomo. Bencomo asked, so he related, if Brimm "want[ed] to fuck with [him] right now"; Brimm answered that "it's not worth it or something of that nature" and began to walk away; and Bencomo declared, "Well, if you change your mind, I'm out in the parking lot after 4 o'clock every day."3 Bencomo testified that 15 minutes would have been a "reasonable" time for Brimm and the other two to gather their tools and leave the USS Crommelin He was corroborated by Robert Kennerson, general foreman, by Robert Korta, ways and outfitting foreman under Ken- nerson,4 and by Kempton. Kennerson and Korta both testified that a leadman would be "derelict in his duties" were he not to speak to those taking excessive time to comply with a reassignment. 2 The 11 April meeting with Kennerson Following the Bencomo-Brimm altercation, Brimm told Rubens that he wanted "something done about it"; and, the next day, 11 April, Rubens raised the matter with Victor Ramirez, the steward for whom he was the a The record does not contain Brimm's version He did not testify 4 Korta qualified that, if an employee "has to get tools from somebody else, [he] would stay anywhere from a half hour to 45 minutes " 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alternate. Ramirez told him "to get together with the other guys . . . and we will go out and talk to Kenner- son about this "5 A meeting in Kennerson's office followed. Accompa- nying Stewards Ramirez and Rubens were steward Clyde Flowers and employees Brimm and David Beards- ley Present for management, in addition to Kennerson, were Korta and a foreman by the name of Dyson Ben- como, unaware of the meeting, did not attend The meet- ing lasted about 30 minutes, with Rubens and Flowers doing most of the talking. They purported to describe the Bencomo-Brimm incident, although neither had wit- nessed it, and complained that Bencomo not only had "threatened" Brimm, but had "harassed" others on the USS Crommelin. Brimm also gave an account of the inci- dent. Rubens, Flowers, and Ramirez repeated "off and on" throughout the meeting, according to Kennerson, that they wanted Bencomo "busted back to a mechanic [from leadman] and transferred off to another ship." Korta tes- tified that Rubens' and Flowers' "main demand" was that Bencomo be "taken off" the USS Crommelin, but that they also "felt that he wasn't justified to be a lead- man." Rubens admittedly made "a statement in there that [he did] not believe the man [Bencomo] should be a lead- man." He insisted, however, that he expressed this senti- ment "not as a union opinion," but as his personal opin- ion-"my feelings as a person." Flowers conceded that he called on Kennerson to "do something about" Ben- como, but denied that he proposed "any sort of remedy," such as transferring him off the USS Crommelin or re- moving his leadman's "hat." Ramirez testified that, al- though he said little during the meeting, he "suggested" to Kennerson in its immediate aftermath that Todd "do something with" Bencomo-"educate the man, slap his hand, take his hat." By all accounts, the meeting ended with Kennerson saying, in substance, that he would have to investigate the matter from both sides before making a decision. None of the stewards obtained Bencomo's version of the incident before the meeting, or tried to secure his presence. Rubens testified that, although he thought it "very important" to hear Bencomo's side, it was unavail- able "because he wasn't present" in the shipyard after the incident. Similarly, Ramirez testified that he had been "anxious" to get Bencomo's story, but could not be- cause Bencomo "wasn't around." Ramirez implied, how- ever, that he never sought Bencomo out, testifying, "[H]e knows where I am." Flowers, too, testified that Bencomo "was not available to speak to." He added that the meeting was held anyway "because it was a very se- rious situation and . . . we all wanted something done about it right then." Bencomo testified that he believed he "was there all day" on the first day after the incident. 5 Ramirez also told Rubens that "he was going to have to handle it because [Ramirez] was coming in and out of the yard going to the doctor, getting ready to be operated on " 3. Ensuing conversations On 11 April, sometime after the meeting, Ramirez asked Kennerson, "if he had spoken to Bencomo" yet. To Kennerson's reply that he had not, Ramirez stated, "[W]ell, I will give you a couple of days. . . . I will be back to see you." On 11 April, as well, Respondent's business agent, David Donnelly, called Kennerson, having learned about the Bencomo-Brimm incident from Ramirez. Kennerson stated that he "didn't have any course of action in mind at that time," Donnelly recounted, whereupon they "got into a short discussion of, if it [the allegations against Bencomo] were true, what were the alternatives or op- tions [Kennerson] had." Donnelly testified that he made no recommendations, but "just gave" Kennerson "things he could do"-"either transfer the man to another ship, transfer the man to another shift, [or] transfer the man and reduce him from leadman." At conversation's end, Donnelly said he would "get back with" Kennerson. Kennerson went on vacation the next day, not to return until 23 April. In his absence, Donnelly had three conversations with Korta, at 2-day intervals starting on 14 or 15 April. The first two were by telephone, initiated by Donnelly; the last, during a chance meeting in the shipyard. Korta testified that, in the first conversation, Donnelly asked what Todd "was going to do about taking Mr Bencomo off the ship [and] about reducing him from a leadman to a mechanic." Korta "was not too solid on what was going to be done," as Donnelly re- called. Donnelly testified that he demanded nothing in this exchange. In the second conversation, Donnelly ad- mittedly "laid out . . . the options again that [he] had previously talked about with Mr. Kennerson," but averred once more that he "made no demands on the company." Korta responded that "the final decision" was Kennerson's; and that, pending his return, Donnelly should direct his questions to Krause in Todd's personnel office. During the meeting in the yard, according to Korta, Donnelly "wanted to know what [Korta] was going to do about Mr. Bencomo," repeating that he "wanted him broke back from a leadman to a mechanic." Korta asser- tedly answered that Bencomo had been "a good lead- man" and that he had no "justification to break the man back " Korta added, as he recalled, that if he were to demote Bencomo, Bencomo would be "the first one to file a grievance against [him], for not having just cause." Donnelly rejoined, according to Korta, that Todd need not "worry about" that; that Respondent would "take care of" it Donnelly concededly asked Korta, in their shipyard encounter, what "was going on" and what were they "going to do about Bencomo," but denied demanding action. Kempton testified that, in this general time frame, Rubens, told him that "they" were "going out to get" Bencomo, that they were "going to write a grievance against him"; and that they were "going to get his lead hat." As previously stated, Kempton was then an acting supervisor. Regularly a shipfitter leadman, like Bencomo, SHIPBUILDERS LOCAL 9 (TODD PACIFIC) 621 on the USS Crommelin, he was filling in for Bill Evans, a quarterman. Evans was out with an injury. Kennerson testified that, on his return from vacation on 23 April, Donnelly called him "first thing in the morning." Donnelly declared, according to Kennerson, that Respondent "couldn't stand for a leadman to treat his employees the way" Bencomo had treated Brimm, and that he "would like for [Kennerson] to break him back from a leadman and also to transfer him to another ship." Kennerson testified that he responded, much as Korta assertedly had, "[N]ow, Dave, if I went and broke back Mr Bencomo, the first thing your shop stewards would do would be to grieve it"; and that Donnelly laughingly assured, "No, we wouldn't." With that, ac- cording to Kennerson, Donnelly "again mentioned trans- ferring Bencomo off the ship and breaking him back from leadman"; and Kennerson said he would have "to investigate the case" and then "get back with" Donnelly The next day, 24 April, Kennerson caused Bencomo to be transferred, as a leadman, to the USS Gary. Kenner- son testified that, "if not for the union's request," this would not have happened; and that his purpose was "to cool off the situation until both sides could talk it over " Later on 24 April, Bencomo asked Kennerson why he had been transferred. Kennerson told him that Donnelly and the shop steward "wanted him broken back from a leadman, and also transferred to another ship"; and that the transfer was intended "to temporarily cool off the whole situation" until it could be "straightened out." Bencomo rejoined that his "side of the story" was "just exactly the opposite" of that being told by his detractors, and Kennerson suggested that he "go over to the union" about it, "since the union was the one pushing his demo- tion." With that, Bencomo took the rest of the day off, ena- bling him to see Donnelly at the union hall. Recounting their exchange, Bencomo testified that Donnelly said he had "fucked up" by threatening Brimm, and that Don- nelly was being made to "come and get" Bencomo as a result. Bencomo protested, as he recalled, that Brimm "had threatened" him; that Rubens "had turned the whole situation around to make it look" otherwise; and that nobody had heard his "side" of the story Donnelly said, "I'm listening," according to Bencomo, whereupon Bencomo told his version. Bencomo testified that Donnelly was impressed, picking up a sheet of paper and saying. "That's not what it says here. . . . We've got witnesses, and . there will be internal-union charges filed against you." Bencomo assertedly said, "they had already transferred [him] off the Crommelin," prompting Donnelly to state "they were after [his] hat also." Bencomo testified that Donnelly then asked if he would be "willing to apologize" to Brimm; and that, first saying he had "no reason to apologize . . . because [he] hadn't done anything wrong," he said he would. Donnel- ly responded, per Bencomo, that he would talk to the shop stewards that evening to "see if he could kill the matter" that way, and that he would "get back to" Ben- como. Donnelly's account of Bencomo's visit was more sum- mary. He testified that Bencomo complained of being "harassed" by Respondent "into giving up his hat," even though Brimm had threatened him; that he, Donnelly, denied that accusation, explaining that "the union doesn't act that way"; that he acknowledged, when asked by Bencomo, that he knew about "the trial-board charges" against Bencomo; and that he "might have made a sug- gestion" that Bencomo apologize to Brimm in the "possi- bility that everything could be squared away about the trial-board charges." The apology never materialized, nor did further com- munication between Donnelly and Bencomo. Bencomo reported to his new assignment on 25 April; and, that same day, he and Ramirez had a conversation. In it, synthesizing the generally consistent testimony of the two, Bencomo said, "I hear you are taking me to the trial board." Ramirez answered, "[Y]es, the guys are filing trial-board charges against you." Bencomo object- ed that no one had asked for his "side of the story," and Ramirez shot back: "[W]e don't have to . . [W]e've got all kinds of witnesses. We're out in the yard trying to get signatures and some type of petition." Bencomo asked, "[W]hat is it that the union wants?" Ramirez re- plied, "[W]e want your leadman hat taken away from you and we want you off the Crommelin." He added, "[W]hen a kid misbehaves, we punish him." Bencomo of- fered, "[T]he leadman thing is no problem; I'll give that up " Ramirez testified that, when he said that Respondent wanted Bencomo's hat taken away, he was talking "off the top of [his] head" that he "really didn't mean it," and was "just being sarcastic." Bencomo presently spoke with Kennerson and Korta, reporting his "run-in" with Ramirez and offering to "give up [his] hat," explaining that he "couldn't give . . . 100 percent as a leadman" because of "the union harass- ment," Bencomo also requested that he be transferred "to another shift to get away from these people," and that he be given "a few days off" Kennerson, after stressing that it was not the Company's wish to demote him, agreed to reduce him to mechanic, to grant him a 2- week leave-of-absence, and to assign him a different shift on his return. Ramirez and Bencomo had another conversation, later on 25 April. In it, according to Bencomo, Ramirez said that it was "not enough" that Bencomo had relinquished his leadman's hat and that internal union charges still would be lodged against him. Bencomo testified that Ra- mirez added, "[J]ust like a little kid; if he does something wrong, you got to spank him, spank him on the hand." Ramirez' version of this conversation is quite different. He testified that he asked Bencomo why he had someone else tell Ramirez that he had given up his hat; that Ben- como answered that he "didn't want to see [Ramirez] laugh [him]self off the ship into the water"; that Ramirez asked, "[D]o you see me laughing now"; and that "that was the end of that." About 25 April, as well, according to Kempton, Rubens boasted that they had "a good case on" Ben- como; that they were "going to take Johnny all the way"; that, "if they had to, they would go for his job," although he wanted to avoid that; and that he could 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "find dirt in anybody's sheets." Rubens denied telling Kempton that he was "going to get Mr. Bencomo's job," otherwise failing to address this conversation in his testi- mony. 4. Internal union charge against Bencomo An internal union charge was filed against Bencomo on 9 May. Rubens signed as the "accuser," and he and three others were named as members filing. The docu- ment alleged that Bencomo had violated his "oath of membership" by "threatening bodily harm to Ray Brimm and harassment of other workers," elaborating, "Under the oath of membership you do not threaten or harass your brother union members." A hearing before a trial board, comprised of five shop stewards, was held on 15 August. Six members testified in support of the charge, and Bencomo testified in his de- fense. Bencomo was told, on arriving for the hearing, that a member named O'Connor had been assigned to help in the defense. Bencomo testified that he did not know O'Connor, and that they were able to confer for only about 5 minutes before the hearing began. The trial board issued its report in early September, recommending to Respondent's executive board that Bencomo be found "guilty of both threatening bodily harm and harassing other workers." Bencomo received a copy of the report on 5 September, together with a letter stating that the recommendation would be considered by the executive board on 22 September, at which time "the actual decision will be made as to guilt or innocence, and any penalty to be imposed." The letter further stated that Bencomo had "a right to appear . . at this meeting and to make a statement." Bencomo did not attend the executive board meeting; and, to the time of trial, the board had imposed no penal- ty against him. Rubens testified that he filed the charge "after advice from Mr. Ramirez," who explained to him "what to do and what not to do." Rubens denied soliciting others to join in the charge, testifying that they "asked [him] what to do and [he] consulted with Mr. Ramirez," who ad- vised him to "file under the oath." It was Ramirez' idea, he testified, to "combine all these into one charge." Ramirez' testimony corresponded with Rubens' that he recommended that Rubens "take Mr. Bencomo to the trial board"; and Donnelly testified that, when "ques- tioned" by Rubens concerning "what steps could a member of the union take against a fellow member who had maligned him or offended him or injured him in any way," he answered, "Bring trial-board charges." Ramirez concededly recommended the filing of a charge without knowing Bencomo's version of his alter- cation with Brimm. Asked how Bencomo had violated the oath of membership, Ramirez testified: One, on Mr. Brimm, he cursed him out, accused him of speaking union business at whatever time it was in the morning , and it was how he put his hands on Mr Brimm. B. Conclusions and Reasons 1. Section 8(b)(2) and (1)(A) The complaint alleges in substance that Respondent violated Section 8(b)(2)-and derivatively Section 8(b)(1)(A)-by the conduct of its agents on three occa- sions: by stewards Rubens, Ramirez, and Flowers during the meeting in Kennerson's office the day after the Ben- como-Bnmm incident; by Business Agent Donnelly during his chance meeting with Korta in the shipyard several days later; and by Donnely in his telephone con- versation with Kennerson on 23 April. Evaluating the evidence, I find as fact that Rubens, Ramirez, and Flowers expressed their desire to Kenner- son during the 11 April meeting that Bencomo be "busted back" from leadman to mechanic and transferred off the USS Crommelin;6 that Donnelly told Korta during their meeting in the yard that he wanted Ben- como "broke back from a leadman to a mechanic"; 7 and that Donnely said in his 23 April telephone conversation with Kennerson that he "would like for [Kennerson] to break [Bencomo] back from a leadman and also to trans- fer him to another ship."8 I also find as fact, based on Donnelly's testimony, that he "gave" Kennerson certain "alternatives or options" during a telephone conversation shortly after the 11 April meeting-either transfer the man to another ship [or] another shift, [or] transfer the man and reduce him from leadman"; and that he spoke to Korta in a similar vein in at least one of their later telephone exchanges. Finally, I find as fact, crediting Kennerson's altogether convincing and plausible testimony, that he transferred Bencomo off the USS Crommelin "to cool off the situa- tion" in the fact of "the union's request." A union violates Section 8(b)(2)-and, derivatively, Section 8(b)(1)(A)-when it causes or attempts to cause an employer to discharge or otherwise impair the job status of an employee, unless it can prove "that this action was necessary to the effective performance of its function of representing its constituency." Electrical Workers IBEW Local 11 (Anco Contractors), 273 NLRB 183 (1984).9 The burden of justification is on the union because: 6 Kennerson, corroborated in significant detail by Korta, is credited that the three stewards voiced this sentiment "off and on" throughout the meeting Both evinced palpable competence and sincerity Moreover, the three stewards lent a certain credence to Kennerson 's and Korta's ac- counts, Rubens admittedly commenting that he did not believe Bencomo should be a leadman, Flowers concededly calling for Kennerson to "do something about" Bencomo, and Ramirez acknowledging that he suggest- ed-albeit in the immediate aftermath of the meeting-that Todd "edu- cate the man, slap his hand, take his hat " ' Korta is credited that Donnelly so spoke As noted in the preceding footnote, he was a witness of "palpable competence and sincerity " Don- nelly's testimony, on the other hand, often was flawed by what seemed to be a studied superficiality and lack of directness, beyond which he admit- tedly asked Korta what Todd was "going to do about Bencomo " 8 Kennerson's rendition of this conversation , uncontradicted by Don- nelly, was detailed, internally consistent , and otherwise convincing 9 See also Operating Engineers Local 478 (Stone & Webster), 271 NLRB 1736 fn 2 (1984), Boilermakers Local 40 (Envirotech Corp), 266 NLRB 432, 433 (1983), Operating Engineers Local 18, 204 NLRB 681 (1973) SHIPBUILDERS LOCAL 9 (TODD PACIFIC) [B]y such conduct a union demonstrates its power to affect the employee's livelihood in so dramatic a way as to encourage union membership among the employees. [ 10] The first legal issue thus raised is whether the several above remarks by Respondent's agents about demoting and/or transferring Bencomo satisfy the "cause or at- tempt to cause" language of Section 8(b)(2). They plainly do, even supposing that they were not in the form of ex- plicit demands . Quoting from Carpenters (Glacier Park), 126 NLRB 889, 897-898 (1960): An express demand or request is not essential to a violation of Section 8(b)(2) . . . . It suffices if any pressure or inducement is used by the union to in- fluence the employer.[ 1 I] The question then becomes whether Respondent has met its burden of justification. It argues in its brief that its actions were "to effectuate the terms of the [collec- tive-bargaining] contract and to protect its members from future threats and harassment from an employee who had overextended his role as leadman." How effec- tuation of the contract enters in cannot be divined, how- ever, for no part of the contract is evidence.12 And, al- though Respondent perhaps was genuinely concerned about protecting its members as claimed, it has failed to demonstrate the appropriateness of its pressing for Ben- como's demotion and transfer in response to that con- cern. Indeed, the weight of evidence is all to the con- trary. Thus, the precipitating incident arose from Benco- mo's fulfilling, not exceeding, his assigned role as lead- man. Moreover, the impetus for the incident came from Brimm, when, defying Bencomo in the performance of his duties, he poked him in the chest with his finger, ac- cused him of being behind the transfer, and said he was "going to fuck with" him at the "first chance."13 Final- ly, while Bencomo's riposte was inelegant, it was not dis- proportionate to Brimm's provocation, was a reasonable defense in the circumstances of his standing as a lead- man, was by its terms an offer or invitation rather than a threat, and likely was not all that remarkable in the milieu of the shipyard. In short, the several attempts by Respondent's agents to cause Bencomo 's demotion and transfer sought to punish him for properly serving in and reasonably de- fending his role as leadman. Each of those attempts and the actual causation of Bencomo's transfer, therefore, necessarily was without legal justification, 14 and so vio- lated Section 8(b)(2) and (1)(A) 15 10 Boilermakers Local 40 (Envirotech Corp.), 266 NLRB 432, 433 (1983) 11 See also Bricklayers Local 6 (Key Waterproofing), 268 NLRB 879, 883 (1984); Theatrical Stage Employees Local 665 (Columbia Picture), 268 NLRB 570, 572 (1984) iS In its brief, Respondent argues from certain provisions assertedly in the contract, which it has attached to the brief as Appendix A The Gen- eral Counsel has moved to strike Appendix A and all references to it from Respondent's brief The motion hereby is granted Is Bencomo's uncontradicted account of the incident is credited 14 See Carpenters (Hopeman Bros), 272 NLRB 584 (1984), Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977) 15 Although the complaint contains no allegations concerning Donnel- ly's telephone conversation with Kennerson after the I1 April meeting or 623 2. Independent Section 8(b)(1)(A) The complaint alleges in substance that Respondent further violated Section 8(b)(l)(A), independently of Sec- tion 8(b)(2), by the conduct of its agents in four in- stances: by Rubens during a conversation with Kempton about a week after the Bencomo-Bnmm incident; by Ra- mirez during a conversation with Bencomo on 25 April; by Rubens' filing of the internal union charge against Bencomo on 9 May ; and by Rubens during a conversa- tion with an unnamed employee sometime during the first 2 weeks in May. Weighing the evidence, I find as fact Rubens told Kempton , perhaps a week after the Bencomo -Brimm in- cident, that "they" were "going to write a grievance against" Bencomo and were "going to get his lead hat"; 16 that Ramirez advised Bencomo on 25 April that trial board charges were going to be filed against him, that Respondent wanted him "off the Crommelin" and his "leadman hat taken away ;" 1 7 and, later, that the sur- render of his leadman's hat was "not enough" to avoid the charges, 18 and that Rubens, with guidance and coun- sel from Ramirez and Donnelly , filed a charge against Bencomo on 9 May. The record contains no evidence that Rubens spoke to any employee in May about unspecified reprisals against Bencomo . I find as fact, however, that Rubens told Kempton about 25 April that they had "a good case on" Bencomo, that they were "going to take [him] all the way," and that , "if they had to they would go for his job."1s Carpenters (Hopeman Bros.), 272 NLRB 584 (1984); Chemical Workers Local 604 (Essex International), 233 NLRB 1239 ( 1977), address the legality of union conduct against employee-members who , in the line of duty, re- ported coworkers' on-the-job misconduct or derelictions to management . In Hopeman Bros., the union had fined the employee and threatened him with suspension from membership . In Essex International, the union had brought internal union charges against the employee and found him guilty, beyond which its steward had told the employee that he "was after " his job, that he would break the employee's neck, and the employee was "low- down." The Board held in both cases that the internal union disciplinary measures violated Section 8(b)(1)(A), in Hopeman Bros. that the threat of suspension was an additional violation, and in Essex International that the steward 's abusive utterances also were improper. As earlier observed, Respondent 's "several attempts ... to cause Bencomo's demotion and transfer sought to punish him for properly serving in and reasonably de- fending his role as leadman ." The same is true of the 9 his two later telephone conversations with Korta, those incidents were sufficiently addressed by Donnelly in his testimony to warrant the finding of violations 16 Kempton, uncontradicted, is credited that Rubens made these com- ments 19 As previously noted, the testimony of Bencomo and Ramirez about this conversation was generally consistent 18 Bencomo is credited concerning this conversation He was more convincing than Ramirez in both demeanor and testimonial content 11 Kempton, largely uncontradicted, is credited regarding this ex- change 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May filing of the internal union charge against Bencomo, and of Ramirez' remarks to Bencomo in their two con- versations on 25 April-that trial board charges were going to be filed against him, that Respondent wanted him "off the Crommelin" and his "leadman hat taken away," and that the surrender of his hat was "not enough" to abort the charges. The conclusion therefore is inescapable, under Hopeman Bros. and Essex Interna- tional, that Respondent violated Section 8(b)(1)(A) in each instance.20 That leaves Rubens' remarks to Kempton-that they were "going to write a grievance against" Bencomo and "get his lead hat," that they had "a good case on" him and were "going to take [him] all the way," and that, "if they had to, they would go for his job." These state- ments also violated Section 8(b)(1)(A), the theory being that they carried a signal to employee-members other than Bencomo that Respondent would take similar meas- ures against them should it deem their performance of job duties to conflict with the obligations of member- ship.21 CONCLUSIONS OF LAW Respondent attempted to cause Todd to transfer and demote Bencomo, and did cause his transfer, thereby violating Section 8(b)(2) and (1)(A) in each of the fol- lowing instances: 1. In the meeting on 11 April 1984, when stewards Rubens, Ramirez, and Flowers expressed to General Foreman Kennerson their desire that Bencomo be "busted back" from leadman to mechanic and transferred off the Crommelin. 2. During a telephone conversation on 11 April, when business agent Donnelly "gave" Kennerson certain "al- ternatives or options"-"either transfer the man [Ben- como] to another ship [or] another shift, [or] transfer the man and reduce him from leadman." 3. During one and perhaps two telephone conversa- tions in mid-April, when Donnelly spoke to Foreman Korta about the "alternatives or options" he previously had raised with Kennerson. 4. During a chance meeting in the shipyard in mid- April, when Donnelly told Korta that he wanted Ben- como "broke back from leadman to mechanic." 5. During a telephone conversation on 23 April, when Donnelly told Kennerson that he "would like for [Ken- nerson] to break [Bencomo] back from a leadman and . .. to transfer him to another ship." Respondent further violated Section 8(b)(1)(A) as fol- lows: 211 Certain of Donnelly's 24 April remarks to Bencomo perhaps were improper, too The complaint does not include such an allegation, how- ever, and the record leaves in doubt whether the issue was sufficiently litigated to permit a definitive determination For those reasons, and be- cause a finding of a violation would be cumulative, not enhancing the remedy, the issue is left open 21 Cf ITO Corp, 246 NLRB 810, 812 (1979), Hod Carriers Local 300 (Dessert Pipeline), 145 NLRB 1674, 1678 (1964), Carpenters Local 1070 (B W Horn), 137 NLRB 439, 442 (1962) That Kempton happened to be fill- ing in for an injured supervisor at the time does not exonerate Respond- ent, for he customarily occupied a nonsupervisory position in the bar- gaining unit Cf U.S Steel Corp, 188 NLRB 309 (1971) I In mid-April when Rubens told Kempton that they were "going to write a grievance against" Bencomo and "get his lead hat." 2. On 25 April when Rubens told Kempton that they had "a good case on" Bencomo, that they were "going to take [him] all the way," and that, "if they had to, they would go for his ,lob." 3. On 25 April when Ramirez informed Bencomo that trial board charges were going to be filed against him and that Respondent wanted him "off the Crommelin" and his "leadman hat taken away", and, later, when he told Bencomo that it was "not enough" that he had re- linquished his leadman's hat. 4 On 9 May when Rubens filed an internal union charge against Bencomo. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed22 ORDER The Respondent, Industrial Union of Marine and Ship- building Workers of America, Local No. 9, AFL-CIO, San Pedro, California, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Causing or attempting to cause Todd Pacific Ship- yards to transfer, change the shift of, or demote any em- ployee because of actions properly taken by that employ- ee in the performance of his (or her) job. (b) Telling an employee or his (or her) coworkers, in substance, that it is going to cause that employee's trans- fer and demotion and to bring an internal union charge against liim (or her), or bringing such a charge against him (or her), because of actions properly taken by that employee in the performance of his (or her) job. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make John R. Bencomo whole for any loss of wages or other rights and benefits he may have suffered as a result of Respondent's causing Todd Pacific Ship- yards to transfer him off the USS Crommehn.23 22 All outstanding motions inconsistent with this recommended Order hereby are denied If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and rec- ommended Order shall, as provided in Sec 102 48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes 22 Interest on lost wages, if any, shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) Inasmuch as Bencomo relinquished his lead- man's position voluntarily , and requested a leave of absence and assign- ment to another shift, Respondent shall not be required to make him whole in those respects Analogizing to the constructive-discharge cases, the pressures inflicted on Bencomo by Respondent's misconduct, while doubtless considerable, did not create a situation "so difficult or unpleas- ant as to force him" to take those steps See Crystal Princeton Refining Co, 222 NLRB 1068, 1069 (1976) As noted in Central Casket Co, 225 NLRB 362, 363 (1976), the Act provides an "appropriate and direct remedy" for most infringements of Sec 7 rights without need for em- ployees to resort to self-help of this character , and the infringements in- flicted on Bencomo are in that category SHIPBUILDERS LOCAL 9 (TODD PACIFIC) 625 (b) Dismiss the internal union charge filed against Ben- como on 9 May 1984, rescind any penalties that may have been imposed on him as a result of that proceeding, expunge from its files any reference to that charge, and notify Bencomo in writing that these actions have been taken and that the charge and resulting proceeding will never be used against him in any way. (c) Notify Todd Pacific Shipyards in writing , provid- ing a copy to Bencomo, that it has no objection to Ben- como's being a leadman on the USS Crommelin or any- where else, on any shift. (d) Post at its offices and meeting halls copies of the attached notice marked "Appendix." 24 Copies of the 24 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 Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " notice, on forms provided by the Regional Director for Region 21 , after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Furnish the Regional Director with sufficient signed copies of the notice to enable it to be posted by Todd Pacific Shipyards, should the Company choose to do so. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.