Painters District Council No. 2

778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Painters District Council No. 2, affiliated with Inter- national Brotherhood of Painters and Allied Trades, AFL-CIO and Contracting Painters and Decorators Association, Inc., St. Louis Chapter No. 2. Case 14-CB-6473 3 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 30 September 1986 Administrative Law Judge Russell M. King Jr. issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief. The Respondent filed cross-excep- tions, a brief in support of the cross-exceptions, and an answering brief. 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, i and conclusions as modified herein and to adopt the recommended Order. The judge concluded that the Respondent did not violate Section 8(b)(3) and (1)(A) as alleged in the General Counsel's complaint. The General Counsel argues that in reaching this conclusion, the judge failed to consider all relevant evidence and all the arguments presented by the General Coun- sel in support of the complaint's allegations. In adopting the judge's conclusions, we make the fol- lowing further findings in light of certain of the General Counsel's arguments. After a 1985 strike by the Respondent's member- ship against the various employers of the Charging Party Association, certain members of the Re- spondent, pursuant to internal union charges filed by other members, were disciplined by the Re- ' The Respondent and the General Counsel except to certain factual errors. We find ment in certain of these exceptions Thus, the evidence does not support the judge's finding that union member Steve Sherrel at- tended the Union's trial board meeting on 6 February 1986 as a member of the board itself Moreover, there is no evidence that the Respondent needed the unanimous consent of its membership to waive the union members' right to file internal union charges Also, in fn 5 of his deci- sion, the judge inadvertently stated that the Association filed a motion to defer the case to arbitration The evidence established that the Respond- ent made that motion We find these errors are insufficient to affect the result herein Additionally, we grant the General Counsel's unopposed motion to correct the transcript In adopting the judge's conclusion that the Respondent did not violate the Act, we do not rely on his finding that a waiver by the Respondent of its members' rights to file internal union charges could itself have been the subject of a separate unfair labor practice charge against the Re- spondent Further, there is no evdience that Shatro made such a remark at the 20 December 1985 bargaining session We also do not rely on the judge's conclusion that the "General Counsel's theory in this case is ques- tionable, at best" or his finding that the "General Counsel fell far short" of the burden of proving a violation herein spondent for working during the strike for these struck employers. The General Counsel argues that prior to this action, the Respondent during negotia- tions had misled the Association's negotiators to believe that union officials would take no action against union members who had worked during the strike and that all internal union charges filed against such members would be "washed out." The General Counsel argues that this alleged "duplici- tous conduct" by the Respondent constituted bad- faith bargaining in contravention of Section 8(b)(3), and that the disciplining of members, contrary to an alleged amnesty agreement, violated Section 8(b)(1)(A). The judge found that the Respondent had agreed only that its business agents and busi- ness manager would not file internal union charges, or would withdraw charges that had been filed. But the judge also found that the Respondent had made it clear that its members themselves could file charges against other members and further that the Association's chief negotiator was aware of that fact. He thus found no bad-faith bargaining and no disciplining of members in contravention of an am- nesty agreement prohibiting such conduct. In her exceptions to the judge's conclusion that the Respondent did not engage in bad-faith bar- gaining, the General Counsel contends that the judge failed to consider the entirety of the Re- spondent-Association amnesty agreement. That agreement was reached at the 20 December 1985 meeting between the parties. As the judge noted, "the so-called amnesty agreement was not placed in the resulting contract but was discussed duri g the negotiations, and appears among the notes u, minutes resulting from such negotiating sessions." Those notes indicate that the Association's propos- al No. 6 read "Waiving of all fines and lawsuits be- tween contractors and the Union and rank-and- file." That proposal was discussed at the 20 De- cember meeting and the General Counsel relies on the following discussion taken from the minutes of that meeting as indicating that a blanket amnesty agreement was reached: BOB HERROLD [the Association's representa- tive]: We have got to agree to [item number] six. JOSEPH SHATRO [The Respondent's repre- sentative]: We agree, as employees of PDC #2 [the Respondent], won't file charged [sic] against employees. Any of the Agents who have filed charges will drop them. BOB HERROLD: How about members [sic] charges? JOE SHATRO: We have no control over that. It is their constitutional right. 286 NLRB No. 82 PAINTERS COUNCIL 2 (CONTRACTING PAINTERS) 779 BOB HERROLD: We can talk about five some [sic] other time. Joe Shatro: We will drop all Labor Board charges and we hope that you drop any pending lawsuits against people that have signed with us. If we are going to wash it out-let [sic] wash this out. Agreed. [Emphasis added.] The General Counsel accurately notes that the judge's decision makes no reference to Shatro's em- phasized comments, particularly the comment re- ferring to a "wash out." The General Counsel argues that by this comment there was a blanket amnesty agreement entered into by the Union. We do not agree. In context, and particularly because Shatro's immediately preceding comment indicated the Respondent had no control over its members filing of charges, it is clear the "wash out" com- ment referred only to the Respondent"s willingness to "drop all Labor Board Charges" and to its posi- tion that the Association should drop all pending lawsuits against the Respondent's members. And, as found by the judge, Herrold testified that when he left the 20 December negotiating session he knew that members of the Union could file charges against other members. Finally, that the term "wash out" was used in the 1982 negotiations, when all internal union charges filed against mem- bers who had worked during a 1982 strike were withdrawn pursuant to another amnesty agreement, does not establish that the use of the term in 1985 likewise created a blanket amnesty agreement. The General Counsel also excepts to the judge's failure to rule on the complaint's allegations that Steven Sherrel, James Krout, and Tom Cody were agents of the Respondent within the meaning of Section 2(13) of the Act. All three of these individ- uals were members of the Respondent and, as de- tailed by the judge, filed charges against other members for working during the strike. The Gener- al Counsel argues that if the three were agents of the Respondent, acting on behalf of the Respond- ent and its officials, then their role "in helping Re- spondent circumvent the amnesty agreement is beyond dispute" because they admittedly filed charges against other members. We find it unneces- sary to resolve their status under Section 2(13) be- cause the agreement not to file charges clearly did not cover them. As set forth above, Respondent representative Shatro at the 20 December meeting indicated: We agree, as employees of PDC #2 [the Re- spondent], won't file charged [sic] against em- ployees. Any of the Agents who have filed charges will drop them. It is clear that Shatro agreed only that "employees of [the Respondent]" would not file, or would drop, charges. In the context here the term "Agents" did not refer to those who might be agents of the Respondent within the meaning of Section 2(13) but to those "Agents" who were "employees" of the Respondent, i.e., Business Man- ager Shatro and the other business agents. Sherrel, Krout, and Cody were not shown to be employees of the Respondent and thus the agreement not to file charges against other members did not cover them.2 I The General Counsel further disputes the judge's conclusion that the aid and assistance given by the Respondent's business agents to Sherrel, Krout, and Cody in preferring their charges were "purely ad- ministrative." The General Counsel argues that the evidence shows that the business agents actually controlled the investigation of the incidents leading to the charges and the prosecution of those charges and that this further demonstrates the Respondent's intent to circumvent the amnesty agreement. The judge set forth in his decision the assistance various business agents gave to Sherrel, Krout, and Cody. We find it unnecessary to determine whether that assistance was "purely administrative," as the judge concluded, for the following reasons. With regard to the charges filed by Cody and Krout, these charges were filed during the early stages of the strike before the subject of amnesty was even dis- cussed by the parties. Although Sherrel's chargL was filed after the amnesty agreement was reached, the charge involved conduct which also occurred prior to the time the amnesty agreement was reached. Further, at the time Sherrel witnessed this conduct, he expressly indicated that he wished to file charges against the working members if for any reason the business agents could not do so. After the strike concluded and the amnesty agreement was reached, Sherrel merely was informed by a business agent that business agents could not file charges and answered affirmatively when he was asked whether he wished to pursue his previously stated intent to file charges. Considering the fore- going and the record as a whole, we conclude that the filing of the internal union charges was not done by "employees" of the Respondent in deroga- 2 We also find it unnecessary, contrary to the General Counsel's con- tention, to pass on the alleged agency status of those members of the Re- spondent's trial board who heard the internal union charges If charges were truly filed by members of the Respondent, in contrast to "employ- ees" of the Respondent, the agency status of the trial board members who heard the charges is irrelevant . Further, the alleged comments of Stan Brown, the presiding officer of the trial board, to member Dennis Ramsey that charges were brought against him by Sherrel "for the BA's [business agents]" does not establish that the Respondent's employees were the motivating force behind Sherrel' s charges 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion of the amnesty agreement and the evidence relied on by the General Counsel is insufficient to establish that the conduct of the business agents with respect to those charges constituted a circum- vention of the amnesty agreement reached. the briefs filed by the General Counsel and counsel for the Union, I make the following3 FINDINGS OF FACT 1. JURISDICTION AND THE LABOR ORGANIZATION ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Keltner W. Locke, Esq., for the General Counsel. James L Singer, Esq. (Schuchat, Cook & Werner), of St. Louis, Missouri, for the Respondent. Mark W. Weisman, Esq. (Suelthaus, Kaplan, Cunningham, Yates, Fitzsimmonds & Wright, P.C.), of St. Louis, Mis- souri, for the Charging Party. DECISION STATEMENT OF THE CASE RUSSELL M. KING JR., Administrative Law Judge. This case was heard by me in St. Louis, Missouri, on 5, 6, and 7 May 1986. The original charge was filed by Contracting Painters and Decorators Association, Inc., St. Louis Chapter No. 2 (the Association) on 6 February 1986, and an amended charge was filed by the Associa- tion on 19 February 1986. Based on the charge, as amended, a complaint was issued on 17 March 1986 by the Regional Director for Region 14 of the National Labor Relations Board (the Board) on behalf of the Board's General Counsel.' The complaint alleges that Painters District Council No. 2, affiliated with Interna- tional Brotherhood of Painters and Allied Trades, AFL- CIO (the Union) violated Section 8(b)(1)(A) and (3) of the Act by failing to comply with an agreement between the parties not to file internal union charges against em- ployees who worked during a strike by the Union. The Union denies that it made any such agreement with the Association that would have prevented union members from initiating charges against the employees, and the Union further defends on the ground that its charges against certain employees who worked during the strike were valid and legitimate.2 On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of i The term General Counsel, when used here, will normally refer to the attorney in the case acting on behalf of the General Counsel of the Board, through the Regional Director 2 The pertinent parts of the Act (29 U.S C 151 et seq) provide as fol- lows [Sec 8(b) ] It shall be an unfair labor practice for a labor organiza- tion or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 (3) to refuse to bargain collectively with an employer [Sec 7 ] Employees shall have the right to self-organization, to form, ,loin, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection The pleadings, admissions, and evidence in the case es- tablish the following jurisdictional facts. At all times ma- terial, the Association has been, and is, an organization composed of employers engaged in providing painting services in the construction industry, and exists for the purpose of representing its employer-members in negoti- ating and administering collective-bargaining agreements with labor organizations, including the Union. At all times material, The Painting Company (the Company), a member of the Association, and a Missouri corporation with an office and place of business in St. Louis, Missou- ri, has been engaged in the construction industry as a painting contractor. Also at all times material, the Com- pany and approximately 39 other painting contractors in the St. Louis, Missouri area have been, and are now, em- ployer-members of the Association. During the 12-month period ending 28 February 1986, the Company, in the course and conduct of its business operations described above, purchased and received at its St. Louis, Missouri facility, and at jobsites located within the State of Mis- souri, paint, abrasives, and other goods and materials valued in excess of $50,000 directly from points located outside the State of Missouri. Also during the 12-month period ending 28 February 1986, members of the Asso- ciation, in the course and conduct of their business oper- ations, purchased and received at their facilities and job- sites located within the State of Missouri paint, goods, and materials valued in excess of $50,000, shipped uirect- ly to their Missouri facilities and jobsites from points lo- cated outside the State of Missouri. Thus, I find, as alleged and admitted, that the Compa- ny and other members of the Association are now, and have been at all times material, employers engaged in the commerce within the meaning of Section 2(2), (6), and (7) of the Act. Also as alleged and admitted, I find that the Union, at all times material, has been a labor organization within the meaning of Section 2(5) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union (Painters District Council No. 2) is com- posed of six constituent local unions, which represent ap- proximately 2500 painting construction employees in the 2 The facts found here are based on the record as a whole and on my observation of the witnesses The credibility resolutions here have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of NLRB v Walton Mfg Co, 369 U S 404, 408 (1962) As to those testifying in contradiction of the findings has, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and un- worthy of belief All testimony and evidence, regardless of whether men- tioned or alluded to, has been reviewed and weighed in light of the entire record PAINTERS COUNCIL 2 (CONTRACTING PAINTERS) 781 St. Louis area. Only the District Council employs full- time business agents and a business manager and, among other things, the District Council negotiates and polices collective-bargaining agreements with the Association. The Association represents over 80 painting construction employers in the St. Louis area, and approximately 40 of these employers are actual members of the Association. The Association and the Union have had a collective- bargaining relationship for some 50 years, during which time there was only one strike that occurred in 1982, other than the strike that was involved in this case and that commenced on 1 December 1985 and lasted 23 days.4 The contract involved in this case expired at midnight on 30 November. The parties had negotiated but were unable to reach an agreement, and on 30 November, the Union held a series of meetings with the six locals, during which strike votes were taken. During these meetings, certain members expressed concern over whether the Union would be able to take disciplinary action against those members who worked during the strike. This concern arose by virtue of the fact that at the conclusion of negotiations during the 1982 strike, the Union had agreed that all charges against members who had worked during that strike would be withdrawn and no new charges would be filed by the Union. During the 1982 strike, charges had been filed against such employ- ees by either business agents or the business manager. During the 30 November strike vote meetings, Business Manager Joseph Shatro explained to those present that they, as union members, had a right to come forward and file charges if they wished. During the strike, certain jobsites were policed by union business agents, and on occasion union members would accompany these union officials when they checked various jobsites. This proce- dure resulted in the filing of some seven or eight charges against union members who actually worked during the strike. After the 30 November series of union meetings, and in subsequent negotiations before the strike ended, Shatro agreed that no "employee" of the Union, includ- ing himself and the business agents, would pursue charges against members who worked during the strike, but added that members had a right to file such charges if they wished, in accordance with the union constitution and bylaws. The General Counsel argues in this case that in effect, the Union waived its right to file and pursue charges against members who worked during the strike, and that the actual filing and pursuit of those charges was a viola- tion of Section 8(b)(1)(A) of the Act. The General Coun- sel further contends that the failure of the Union to adhere to its so-called amnesty agreement, to refrain from filing charges, was a violation of Section 8(b)(3) of the Act. The so-called amnesty agreement was not placed in the resulting contract but was discussed during the negotiations, and appears among the notes or minutes resulting from such negotiating sessions. The General Counsel's theory in this case is that the Union engaged in a secret scheme to subvert the amnesty agreement, and thus did not bargain in good faith, in violation of Section 4 All dates are in 1985 unless otherwise indicated 8(b)(3) of the Act. The Union claims that it made it clear to the Association that although business agents and the business manager would not prefer or pursue charges, members were free to file charges if they wished. During the strike, certain members rode with business agents in policing the jobsites where the various members were found working. The normal procedure was to return to the union hall and if the member desired to file charges, administrative and staff support were furnished to the member in preparing the charge in writing. An agreement was reached by the parties on 23 De- cember, and the new contract was entered into in late February (1986), retroactive to 1 December. Thereafter, certain members who worked during the strike were tried, convicted, and fined by the Union. As indicated earlier, the theory of the General Counsel's case assumes the existence of an amnesty agreement between the par- ties regarding the filing and pursuit of charges against employees that worked during the strike, and further as- sumes a secret scheme or plan on the part of the Union to in some way circumvent that agreement by arranging or obtaining actual members to pursue and file charges against those working employees. The Union claims no such plan and asserts that it informed the Association that members were at liberty to file charges, notwith- standing the fact that the Union agreed there would be no charges by business agents or other "employees" of the Union.5 B. The Significant Testimony and Evidence and Initial Conclusions Union member Steven Sherrel testified that when the strike began, he volunteered to ride with a business agent to check jobsites. Sherrel indicated that he initially got the impression, at the 30 November strike vote meeting he attended, that business agents could file charges against members who worked. On 14 December Sherrel related that he received a call from Business Agent Oswald Siegfried who asked him to ride out to check a jobsite. Soon thereafter, Siegfried picked Sherrel up, and also in the car was one "Mr. Smith." Sherrel testified that on arriving at the jobsite they found "some brothers, painters," working. Sherrel indicated that he recognized member Harlan Knapp as one of those working. Accord- ing to Sherrel, Smith copied down the names of all the members who were found working and, at Sherrel's re- quest, Smith gave him the list. Sherrel testified that soon after the strike ended Business Agent Siegfried informed him that business agents could not press charges against members who worked during the strike, and Siegfried 5 At the beginning of the hearing in this case, the Association filed a written motion to defer the entire case to arbitration under the new con- tract's gnevance-and-arbitration clauses At the time, both parties submit- ted legal authorities and conducted oral argument on the record On hearing the arguments and after reading and considering all authorities cited by counsel, I denied the motion However, I granted the Associa- tion leave to renew the motion in its postheanng brief, and both the As- sociation's brief and that of the General Counsel addressed the subject again After reconsidering the authorities cited during the hearing and ar- guments made on the records, and after considering all authorities and arguments cited in the respective briefs submitted here, I again deny the Association's motion to defer 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD then asked him if he would be willing to prefer the charges. Siegfried had already drafted the charges in his own handwriting and showed these charges to Sherrel, indicating that he would have them typed up. According to Sherrel, Siegfried later brought the typed charges to his house, and at that time he signed them. Sherrel relat- ed that these charges were heard by the Union' s trial board on 6 February 1986, which he attended as a member of the trial board itself. Sherrel testified that those members who were tried on 6 February 1986 were members Jorgovan, Ramsey, Hutchinson, and Knapp. Sherrel indicated that all those members charged were present except for Hutchinson, and basically their de- fense was that they were told by their employer, Bazon (of Bazon Painting), that the job or their working had been cleared with the Union. Sherrel related that this fact was denied by the Union. Sherrel added that at the time they discovered the four members working on 14 December, he volunteered to press charges if Siegfried and Smith were unable to. On cross-examination Sherrel was asked why he filed the charges against the four "brother members," and Sherrel replied it was because the Union was on strike, and that "they took an oath just like [he] did." Business Representative Oswald Siegfried testified that he belonged to the Union since 1951, and that during the 1982 strike, the Union agreed to withdraw any internal union charges that had been filed against members, adding that the only charges that had been filed during the 1982 strike were filed by business representatives. On 14 December, Siegfried related that he, Business Repre- sentative Jim Smith, and member Steve Sherrel drove out together to check a jobsite. Siegfried testified that at that time, he did not know that the Association was again seeking to have all charges dropped. Siegfried added that the matter was on an agenda discussed at a 13 December bargaining session, that was never reached. Siegfried testified that during the 1985 strike, members were concerned about whether charges could or would be filed against members who worked during the strike, contrary to what occurred during the 1982 strike. Thus, according to Siegfried, the Union had members ride with business agents in the event that the business agents would be prohibited from filing charges, or that if a "wash-out" would occur, the members themselves could be witnesses and could file the charges if they "prefer to do it." According to Siegfried, Sherrel rode with him on 14 December as a witness, and Sherrel also volunteered to file charges if Siegfried could not. Siegfried indicated that on their arrival at the jobsite on 14 December, they discovered four members from Bazon Painting working and he identified the four members as Jorgovan, Ramsey, Hutchinson, and Knapp. Siegfried related that he wrote the four names down on a piece of paper and gave them to Business Agent Smith, who in turn gave the list to member Sherrel who had ridden with them. As far as Siegfried was concerned, member Sherrel saw all four members at the jobsite on 14 December, and Siegfried related that he later prepared the charges for Sherrel's signature . Siegfried testified that some of the painting contractors had signed an interim agreement with the Union, thus permitting their employees to work, but that Bazon Painting had not been one of those contractors. 6 Union member James Krout testified that at the 30 November strike vote meeting the issue of members working during the strike was brought up from the floor, and that the members were "pretty emphatic" that they did not want immunity granted to those members who painted during the strike. Krout added that during the 1982 strike the business agents "patrolled everything" which had resulted in a "wash-out" at the end of the strike, and the members did not want this to happen again, and insisted on being able to patrol the jobsites with the business agents . Krout testified that he rode with business agents to check jobsites during the strike and that at times he checked jobsites even without a business agent being present and sometimes with member Tom Cody. Krout indicated that the first patrolling he did was with Business Agent Engle, together with Cody on the first day of the strike, during which time they found two members working. Krout added that charges were not filed against these two members because both indicated they had recently moved back to the area and had not received any notice regarding the strike vote meeting or that there was to be a strike. Krout indicated that they checked the union records and that in fact these two members had recently moved, and further noted that at the jobsite, when they were told that there was a strike, the two members immediately picked up their equipment and ceased work. Krout testified that on 3 December he patrolled a jobsite with Business Agent Engle and member Cody, and that they found members Brad Gremminger and John Beavers painting a house. Krout indicated that Gremminger and Beavers both stated they knew there was a strike, and Beavers indicat- ed that he needed the money and Gremminger stated, "We needed this job done so I came out." Krout testified that he filed charges against the two members about 9 6 Member Joseph Jorgovan testified that he in fact had worked on the job for a number of days where he and the three other members were caught working Jorgovan indicated that Bazon Painting had stated the job was cleared by the Union After the four members were found work- ing on 14 December, Jorgovan testified that they reported this fact back to Bazon Painting and were later told to continue working and , if con- fronted again, to say that they were working on a lease agreement for "Holly Coatings " Jorgovan further indicated that thereafter they were paid by Holly Coatings Jorgovan also testified that he later received a notice from the Union indicating that he had been fined, whereupon he called Bazon of Bazon Painting, who told him that the Union could not fine him and that the contract would not be signed unless they were granted amnesty Member Dennis Ramsey also testified that he worked at the jobsite on 14 December with Jorgovan and the other two members , after having been told by Bazon that the job was cleared with the Union Ramsey also related that there were no picket lines at the jobsites and, that if there had been , he would not have crossed the picket line Member Harlan Knapp also testified that he was working with the other three members on 14 December and that Bazon Painting had indi- cated the job was cleared with the Union Knapp further testified that the four of them had worked at least a week at the jobsite before being discovered by the Union , also adding that there were no pickets at the jobsite Knapp indicated that when caught by the Union, member Sherrel asked him why he was working, to which he replied, "Because of my bills " The evidence is undisputed in this case that no pickets appeared at any of the jobsites There is also no evidence in the case that in fact the job on 14 December had been cleared by the Union PAINTERS COUNCIL 2 (CONTRACTING PAINTERS) 783 December. Krout related another incident in the same residential area several days later, with Business Agent Engle and member Cody. On this occasion, Krout indi- cated that they discovered several paint trucks parked in front of a house, but that he filed no charges because he did not actually see a member painting inside the house. Krout testified that on 23 December there was a union meeting attended by several business agents, who indicat- ed to the members present that they (the business agents) had agreed with the contractors not to file any charges, but that if any member had seen other members working during the strike and wanted to file charges, that member was free to do so. However, Krout indicated that he filed charges against Gremminger and Beavers on his own on 9 December, and without any suggestion by any other individual or business agent. Krout added that he attended the trial of Gremminger and Beavers on 20 February 1986, and that neither member appeared at the trial. Union member Tom Cody also testified that he po- liced a jobsite with Business Agent Engle on 5 or 6 De- cember, and on arriving at the jobsite they saw a truck with the tailgate down and some taping buckets sitting on the end. Cody indicated that he and Engle both en- tered the building in separate doors and found evidence that people had been working there, adding that they left the building in time to see two individuals in the truck that was then driving away. Cody testified that they ob- tained the license number from the truck and traced it to member Donald Trentham. Cody related that on 9 De- cember he filed charges against Trentham, but that al- though Trentham did not appear for his trial, he was ac- quitted because he was not actually identified or seen at the jobsite. Union member John Beavers testified that he and Brad Gremminger worked on 3 December and were caught by Union Business Agent Jim Engle, together with two other union members. Beavers also testified that he at- tended the 23 December union meeting to vote on whether to return to work. According to Beavers, again a question came from the audience concerning what was going to happen to those members who worked during a strike, and a union business agent by the name of Irvin Keys indicated to the members that there was an "am- nesty clause, and [the business agents] couldn't do it that way, but they were going to go about it a different way ... [by having] individuals press charges against the members that were working."7 Beavers related that after he was caught working he contacted the owner of his painting company who told him that "he would probably pay the fine if it came down to that." During the 1985 negotiations, the chairman of the As- sociation's negotiating committee was Robert Herrold, who was president of The Painting Company. The min- utes of the 16 December negotiating session are repre- sented by six typed pages containing many proposals from both sides and a discussion of the same. On page 2 of those minutes, six numbered proposals of the Associa- tion are listed, and No. 6 reads as follows: "Waiving of all fines and lawsuits between contractors and the union 7 Keys did not testify in the case and rank-and-file." On the third page of the minutes there is an additional notation that the mediator who was present resubmitted these same six proposals at 4:10 p.m. in the negotiating session, including proposal No. 6 con- taining the so-called waiver provision. Although the re- actions to some proposals from both sides are discussed in these minutes, no discussion or disposition is found in minutes regarding proposal No . 6. There is no indication in the record that proposal No. 6 was actually discussed at the 16 December negotiating session. The proposal was only discussed at the 20 December session, but Her- rold testified that prior to the 20 December negotiating session, he had heard a rumor from one of the Associa- tion's committee members "That the union would possi- bly use rank-and-file to file the charges against the mem- bers that had been caught working." Herrold conceded that during the strike the Union was policing various jobsites, and he acknowledged that there was no picket- ing being conducted at these sites.8 The last and final actual negotiating session was held on 20 December, and during that session the Association's proposal No. 6 was discussed. The minutes of that session reflect that Her- rold brought up proposal No. 6 and Union Business Rep- resentative Joseph Shatro, who headed the Union's nego- tiating team, responded that "We agree, as employees of PDC #2, won't file charges against employees .. . . The agents who have filed charges will drop them." The minutes further reflect that Herrold thereafter asked Shatro about member charges, to which Shatro replied, "We have no control over that . . . [itl-is their constitu- tional right." Herrold was asked during this testimony how he interpreted that statement made by Shatro during the negotiating session , and he replied that "some- thing like that could be done." Herrold was also asked that when he left the 20 December negotiating session, whether he knew that members of the Union could file charges against other members, to which he replied, "Yes, I guess we did." The contract provisions were ac- tually finalized at a meeting of the parties on 23 Decem- ber, but it was not until late February that a final written contract was drafted and entered into. At that late Feb- ruary meeting, nothing was said by either party concern- ing a waiver or amnesty, and no such agreement ap- peared in the final draft. Herrold conceded during testi- mony that he also understood that the paid employees of the Union consisted of the business manager, business agents, and certain other clerical employees. Herrold fur- ther conceded in testimony that he, through two other painting contractors, had learned that internal union charges had been filed against members who worked during the strike, and that he gained this knowledge prior to final execution of the new contract in late Feb- ruary 1986. The contract was retroactive to 1 December 1985 and expired 31 August 1988. Joseph Shatro testified as the Union 's business manag- er. Shatro indicated that his understanding of the Union's 8 None of the five other members on the Association 's negotiating committee testified in the case Herrold did not actually attend the 13 December negotiating session when proposal No 6 was first made by the Contractors Association Also, there is no evidence that the proposal was discussed during that session (on 13 December) 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD constitution and bylaws allow members the right and freedom to file internal union charges against other union members, and that he is not at liberty to prevent any member from filing such charges.9 Shatro testified that strike votes were taken at individual meetings of each of the six locals and that he presided over all these meet- ings. Shatro indicated that the main issue of the members was their concern that some members had worked during the 1982 strike, and that they were "upset" that the agents were not able to file charges at that time. Ac- cording to Shatro, at the beginning of the 1982 strike he informed the members that they could, individually, file charges themselves against other members who worked during the strike, but that none came forward and did so. Shatro testified that at the 1985 meetings, he answered the membership's concern by informing them that they had a right to file charges, and that any member may appear at the Union's office and ride with agents when they inspect jobsites, but that it was up to them whether to file charges later. Shatro indicated that the six em- ployees who were actually tried by the Union's trial board were employed by one of two painting contrac- tors, both of which had not signed any interim agree- ment with the Union. According to Shatro, none of the six employees filed an appeal. Shatro testified that on at least one occasion, a business agent filed a charge against a member who worked, but that charges were later with- drawn. Shatro reiterated in his testimony that in his opin- ion, he made it clear at the 20 December negotiating ses- sion that members could file charges if they wished. Shatro testified he was never informed at any time that the Association or its member-contractors objected to the filing of charges by certain members, until the charge was actually filed with the Board in this case (6 Febru- ary 1986). C. Analysis In light of the testimony and evidence, the General Counsel's theory in this case is questionable, at best. First, the General Counsel argues that in a separate "am- nesty" agreement, the Union waived its right to prefer internal union charges against employees that worked during the strike. Second, the General Counsel alleges that the Union devised a plan or a secret scheme to cir- cumvent that so-called amnesty agreement, thus failing to bargain in good faith with the Association, in viola- tion of Section 8(b)(3) of the Act. Additionally, the Gen- eral Counsel alleges that notwithstanding the amnesty agreement, the Union prosecuted internal charges against employees who worked during the strike, in violation of Section 8(b)(1)(A) of the Act. I find initially that there was no such blanket amnesty agreement entered into by the Union. Unrebutted and corroborated testimony in the case reflects that of prime concern to the membership was the opportunity to prefer charges against members who worked during the strike. When these concerns were raised during the vari- ous strike vote meetings, amnesty had not yet been the subject of negotiations between the Union and the Asso- 9 The Union's constitution and bylaws were admitted into evidence in the case ciation. Although union employees (the business manager and business agents) of the Union had agreed to such an arrangement during the 1982 strike, no such agreement was certain at the time the strike votes were taken. In any event, the membership was assured that any individ- ual member could prefer charges if he wished, and the membership was invited to police jobsites with business agents during the strike for such purposes. The Associa- tion's amnesty proposal was first discussed by the parties at the negotiating session of 20 December. Robert Her- rold was the Association's chairman of its negotiating team, and was the only contractor-employer to testify in the case. Herrold, by his own testimony, admitted that prior to 20 December he had knowledge that union members themselves might file charges against those members who were caught working. During the 20 De- cember negotiating session the amnesty proposal was, for the first and last time, discussed between the parties. The Union's chief negotiator, business representative Joseph Shatro, expressed the Union's agreement that Shatro and their business agents would not file charges, or would withdraw charges that had been filed against members who worked during the strike. However, Shatro made it clear that it was the legal right to members themselves to file such charges, and thus reserved the lawful right of members to do so, if they desired. In fact, during Her- rold's testimony he was asked that when he left the 20 December negotiating session, whether he knew that members could file charges against other members, to which he replied, "Yes, I guess we did." Although the contract provisions were actually finalized in late De- cember, the final draft was not entered into until at least late February. During that period, Herrold (and the As- sociation) knew that jobsites had been checked and that internal union charges had in fact been filed by union members. Yet, Herrold or no other member of the Asso- ciation came forward to mention any amnesty agreement nor was there any insistence in the placement of such an agreement in the final contract. In this case, the General Counsel appears to also argue that because there was an amnesty agreement during the 1982 strike, and no charges were filed, under the circum- stances of the 1985 strike the Association was likewise at liberty to assume the same. I disagree. The Union, through Business Representative Shatro, knew full well that it was not authorized to waive the right of its mem- bers to file internal union charges without, at a minimum, obtaining the membership's unanimous consent. On the contrary, such a waiver could itself have been the sub- ject of a separate unfair labor practice against the Union. Shatro, in effect, pointed this out to the Association during the 20 December negotiating session. Although more were charged, only six members were convicted of working during the strike and ultimately disciplined by the Union. Those six worked for two member-contractors, both of whom were represented on the Association's negotiating committee. I conclude that these two contractors improperly assumed that with the end of the strike and with an agreed-on contract, all problems would disappear, as they did in 1982. As a result, they took a chance or a calculated risk in working PAINTERS COUNCIL 2 (CONTRACTING PAINTERS) 785 some employee-members during the strike. This was indeed unfortunate for those members who may have been given the honest impression that permission had been obtained from the Union for them to Work. Unfor- tunately, that possible wrong cannot be corrected in this decision, and it cannot in any way be concluded that the Union was guilty of any misconduct whatsoever . Lenien- cy, in that regard, would have been up to the Union and not a matter of disposition in this case. In this case, I find that the Association failed to heed or to take seriously what was plainly before it, charges by members against members . I find that the Union did nothing improper in this case and , conversely, properly pursued the desires and rights of its members . The aid and assistance given by business agents in preferring charges was purely administrative, and it could well be argued that the Union was duty bound to render such aid and assistance. The two contractors involved in working members during the strike could well have come forward during the negotiations and mentioned that fact and requested resolution of the issue prior to final contract terms. However, they did not , and one tends to question their intentions and motivations in this regard . The General Counsel in this case has the burden of proving the alleged violations of the Act by a prepon- derance of the evidence . I find that the General Counsel fell far short of this burden . I thus find that the Union did not violate Section 8(b)(3) and Section 8(b)(1)(A) of the Act as alleged in the complaint, and I shall thus rec- ommend that the complaint be dismissed. On the foregoing findings of fact and initial conclu- sions and on the entire record, I make the following CONCLUSIONS OF LAW 1. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Charging Association (the Employer) is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 3. The Respondent Union has not violated the Act as alleged in the amended complaint issued herein, and has not otherwise violated the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edlo ORDER It is recommended that the complaint be dismissed. 10 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