International Union Of Operating Engineers, Local 501, Afl-Cio (Golden Nugget Gambling Hall And Rooming House)

674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 501, AFL-CIO (Golden Nugget Gambling Hall and Rooming House) and R. Dean Rasmussen. Case 31-CB-5395 16 December 1987 DECISION' AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS On 12 June 1984 Administrative Law Judge Timothy` D. Nelson issued the attached decision. The Charging Party and the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed an opposing brief. 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,' and conclusions and to adopt the recommended Order. In adopting the findings and conclusions of the judge that the Respondent did not, as alleged, vio- late Section 8(b)(1)(B) of the Act through its impo- sition of a fine on its member R. Dean Rasmussen for the .work he performed for the Golden Nugget during a strike, we start from the proposition that a labor organization does not violate Section 8(b)(1)(B) when it disciplines a member for per- forming more than a minimal amount of bargaining unit work during a strike, even if that member is a representative of the employer for 'the purposes of collective bargaining or the' adjustment of griev- ances. That proposition was established in Florida Power Co. v. Electrical Workers IBEW Local 641, 417 U.S. 790 (1973), and was not overruled in American Broadcasting Cos. v. Writers Guild, 437 U.S. 411 (1982) (ABC).2 What ABC makes clear is ' The Union has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law„ judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The rule that more than a "minimal" amount of bargaining unit or struck work must be involved before a union can lawfully discipline a supervisor-member was applied by the Board in Columbia Typographical Union 101 (Washington Post), 242 NLRB 1079 (1979) The idea had first appeared in a somewhat different form in Wisconsin River Valley District Council of Carpenters (Skippy Enterprises), 218 NLRB 1063 (1975), enfd 532 F 2d 47 (7th Cir 1976), which held that the union respondent in that case violated Sec 8(b)(1)(B) by fining its supervisor-member for working for a struck contractor when ( 1) 30 percent of his work was bargaining unit work, (2) that was the same amount of bargaining unit work that he had performed before the strike, and (3) the remainder of his work was "supervisory " The Board concluded that the 70 percent of time spent in supervisory duties was not minimal 218 NLRB at 1064 In Washington Post, the Board overruled the implicit Skippy holding that only bargaining unit work that exceeds the amount normally performed by a supervisor- member will be considered in deciding whether a union has a lawful basis for discipline 242 NLRB at 1080 It also changed the focus from wheth- er supervisory duties were more than minimal to whether the bargaining unit work was more than minimal [bid that a union may not lawfully discipline a member for crossing a picket line to perform 8(b)(1)(B) functions. Unlike the circumstances in ABC, supra, 437 U.S. at 417, 426 fn. 23, in which the union trials, had not established that the disciplined members had performed "any work covered by the recently terminated [collective-bargaining agreements]," the record here shows that Rasmussen admitted in answer to a question put to him at the intraunion trial that he did in fact perform bargaining unit work behind the picket line. He did not claim at that trial that the bargaining unit work was so minimal as to be insignificant. Furthermore, the evidence at our own hearing - established that during the relevant period-the period from the commencement of the strike through the intraunion trial-Rasmussen performed bargaining unit work for approximately 210 hours, or' about 25 percent of the 840 hours he worked during that period. We regard this as a more than minimal amount of bar- gaining unit work.3 The judge found these two categories of evi- dence-Rasmussen's unqualified admission at the intraunion trial and the evidence of his perform- ance of bargaining unit work'adduced in the unfair labor practice hearing-to be independent grounds for concluding that the discipline did not violate Section 8(b)(1)(B). We need not decide whether either separately would suffice. At least when, as here, (1) a union member admits at his intraunion trial that he performed struck work and makes no claim that it was only minimal, and (2) the evi- dence before us shows that the disciplined member had,' in fact, performed more than a minimal amount of such work, disciplined imposed on the member for that conduct behind the picket line does not violate Section 8(b)(1)(B), notwithstanding that he may also perform 8(b)(1)(B) functions for the employer. We do not agree with our dissenting colleague that failing to find the Respondent's fine unlawful reflects a misreading of ABC or a failure to take adequate account of the facts, including the general nature of the constitutional provision that provided 3 Rasmussen's bargaining unit work was his work with "tools," and it included "training" that consisted of actually performing the work that he was training the relatively unskilled replacements to perform Because, as noted in fn 2, above, the Board in Skippy looked to see whether the nonbargaining unit work was minimal rather than whether the bargaining unit work was more than minimal , we do not read Skippy as necessarily holding that bargaining unit work that amounts to 30 percent or less of the supervisor-member's work during the strike is so minimal as to be beyond the union 's sanction We also note that , although more bargaining unit work was apparently involved in Washington Post, supra , than we have here, the Board there found itself unable to quantify the exact amount and concluded that exact quantification was unnecessary 242 NLRB at 1083 287 NLRB No. 68 OPERATING ENGINEERS LOCAL -501 (GOLDEN NUGGET) 675 the basis for the charges filed ` against Rasmussen. As to the general nature of the Respondent's con- stitutional provision, it is significant, first, that the complaint did not allege, nor does the General Counsel argue, that maintenance of the constitu- tional provisions is an unfair' labor practice. Fur- ther, we note that the union constitutional provi- sions that formed the basis for the fines deemed lawful by the Supreme Court in Florida Power, supra, 417 U.S. at 793, and the underlying provi- sions in other Board cases following Florida Power have been equally general and have not expressly differentiated between working behind a picket line and performing 8(b)(1)(B) functions behind a picket line. See, e.g., Carpenters Local 1959 (Aurora Modu- lar), 217 NLRB 508,, 510 (1975) (provisions prohib- ited "Causing Dissension" among union members, "[v]iolating the obligation," and "[w]orking behind a picket line").4 Regarding our colleague' s reliance on the gener- al allegations in the letter in which a fellow member of Rasmussen's brought the charge that re- sulted in the disciplinary proceeding against him, we note first that the letter was quite similar to the letter in Carpenters Local 1957 (Aurora Modular), supra, 217 NLRB at 510. Furthermore, it is impor- tant to recognize that a union often may have little direct information about what a member is doing behind a picket line, particularly if the work is per- formed-in areas to which members of the public would not have unimpeded access. Because the Employer was, to all appearances, carrying on its operations with relatively unskilled replacements, the Respondent had a sufficient basis to proceed on the charges against Rasmussen and inquire whether his work behind the picket line included the per- formance of bargaining unit work. Rasmussen was virtually the only individual from whom the Re- spondent, lacking the subpoena power that' aids our proceedings, could obtain the evidence. Because Rasmussen chose simply to admit doing bargaining unit work, the Respondent's subsequent imposition of- discipline cannot be faulted simply on the ground that the Respondent lacked more detailed evidence concerning his performance of bargaining unit work. Given the evidence of Rasmussen's performance of bargaining unit work and his admission in his union trial that he had performed such work, we cannot conclude that the sanction imposed on him by the Respondent will necessarily "adversely a Florida Power is distinguishable in that the unions there told supervi- sor-members at the outset of the strike that they would be disciplined for crossing picket lines to do bargaining unit work, but we note that no finding was made that the unions told the supervisor-members that only, crossing the lines to perform more than a minimal amount of bargaining unit work would be subject to discipline affect [Rasmussen's] performance of collective bar- gaining or grievance adjustment duties." NLRB v. Electrical Workers Local 340, 125 ^ LRRM 2305, 2309 (S.Ct. No. 85-1924, May 18, 1987), citing ABC, supra, 437 U.S.'at 430. We therefore find that the Respondent did not violate Section 8(b)(1)(B), and we adopt the judge's order dismissing the com- plaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I find that the Re- spondent Union violated Section 8(b)(1)(B) of the Act by instituting disciplinary proceedings against and fining Chief Engineer R. Dean Rasmussen. For the reasons stated below, I believe that the provi- sions of the union constitution and bylaws which Rasmussen was charged with violating and the conduct of the internal union disciplinary proceed-, ings against him evidence that the Respondent un- lawfully coerced the Employer in the selection of its representative for collective bargaining and grievance adjustment. At the time of the Board proceedings, Rasmus- sen, who all parties agree is a supervisor,' had been a member of the Respondent for more than 10 years., When the Respondent called an economic strike and began picketing the Employer's premises on 4 May, 1983,2 Rasmussen crossed the picket line and continued working. In the ensuing months of the strike, Rasmussen performed supervisory tasks and a disputed amount of bargaining unit work. Pursuant to a charge filed against Rasmussen by another member of the Respondent in August, an internal disciplinary trial was held on 28 November to determine whether he had violated three provi- sions of the local union bylaws and the Internation- al constitution.3 During the trial, Rasmussen was ' The chief engineer classification is expressly covered by the collec- tive-bargaining agreement between the Respondent and the Employer It is undisputed that Rasmussen 's duties include bargaining and grievance adjustment 2 All dates are in 1983 3 The Local's bylaws, art III(1), provides (c) No member shall engage in conduct discreditable to this Local Union (t) No Member shall work on a job where a strike is called or refuse to come off when notified by the authorized Business Repre- sentative or Officer of the Local Union The International constitution provides in pertinent part "Any member working contrary to a declared strike or the rules established by the Local Union by reason of a lockout shall, upon trial and conviction thereof, be subject to a fine of not less than Twenty-five ($25 00) Dollars, or expulsion, or both " 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD asked and admitted that he had crossed and contin- ued to cross the picket line and was doing bargain- ing unit work. However, the amount of struck work performed by Rasmussen was never clarified in that proceeding. A vote was called and Rasmus- sen was found guilty and later fined: One Thousand Dollars ($1000.00), plus One Hundred Dollars (100.00) per day for every- day you have worked and continue to work behind the picket line at the Golden Nugget. [Emphasis added.] Section 8(b)(1)(B) of the Act prohibits a labor organization, from restraining or coercing an em- ployer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. It is well settled that labor organiza- tion conduct which tends to coerce supervisors in the performance of such tasks can affect their will- ingness to perform those tasks and the manner in which they carry out related responsibilities, and that such conduct therefore violates the. Act.4 In my view, the Respondent has acted in an un- lawful manner by enforcing the enumerated provi- sions of its International constitution and by local bylaws.against Rasmussen in the fashion shown by these facts.5 The charge filed against Rasmussen, the minutes from the disciplinary trial, the mem- bers' vote, and the 13 December letter notifying Rasmussen of the decision to fine him all indicate that disciplinary proceedings were instituted to de- termine whether Rasmussen violated article XXIV(7)(e) of the International constitution and article III(l)(c) and (t) of the local bylaws. Those provisions make no distinction between rank-and- file employees and supervisors. They refer, without regard to status, to members' conduct. In particu- lar, the cited provision of the constitution makes punishable "[a]ny member['s] working" in contra- vention of a sanctioned strike, and article III(1)(t) of the bylaws states that "no member shall work on a job where a strike is called . . . ." Both pro- scribe a union member's working without regard to the type or amount of work performed. In effect, ° See Florida Power Co v Electrical Workers Local 641, 417 U S 790 (1974) 5 See American Broadcasting Cos Y Writers Guild, 437 U S 411 (1978), in which the Court affirmed the Board's finding that the union violated Sec 8(b)(1)(B) by formulating , effectuating, and enforcing strike rules which prohibited all members from crossing a picket line established by the union at any entrance of struck premises regardless of the capacity in which they were working In that case, the guild disciplined "hyphen- ates," that is, unit members whose duties entailed supervisory tasks, in- cluding the adjustment of grievances, for 'crossing the picket line, and did so without regard for the fact that the hyphenates performed only non- unit work during the strike The Court found significant the administra- tive law judge's "observ[ation that] respondent, 'for the most part pro- fessed little or no interest in what kind of work was done during the strike' by the hyphenates who chose to work " 437 U S at 417 the provisions outlaw any work by any members during a strike, including supervisors engaged in supervisory tasks during a strike. The invocation of disciplinary proceedings against supervisors pursu- ant to such provisions tends to coerce employers and their supervisors in the performance of collec- tive bargaining and grievance adjustment tasks and should,be found violative of Section 8(b)(1)(B) of the Act. Moreover, there is scant 'evidence that the Re- spondent made a meaningful, attempt at any stage in the disciplinary proceedings to apply restrictive- ly the cited provisions in the constitution and bylaws so that they could have been considered in an otherwise lawful manner-i.e., so as solely to proscribe a supervisor/member from performing during a strike more than a minimal amount of bar- gaining unit work. The original intraunion charge filed against Rasmussen alleged a violation of the sections of the Union's constitution and bylaws cited above and contained the conclusionary alle- gation that the member filing the charge has "per- sonal knowledge that R. Dean Rasmussen crossed sanctioned locked-out picket lines or sanctioned picket lines and/or performed bargaining unit work." At his disciplinary trial, the witnesses who testified against him stated that they had seen him working behind the picket line, but provided no specification concerning the type of work he per- formed. After Rasmussen interjected himself into the disciplinary hearing to explain why he consid- ered it necessary to remain behind the picket line, he was asked if he was still working behind the picket line. After he answered affirmatively, he was asked if he was performing bargaining unit work, and he again responded affirmatively. No further inquiry was made, and no instructions were given the members present who were then asked to vote on whether Rasmussen should be disciplined. The members voted to find Rasmussen guilty of the charges filed against him. From the above, it appears that the disciplinary charges never specified that it was Rasmussen's performance of bargaining unit work which was the critical aspect of the allegations made against him. On the contrary, it appears that the charges and the imposition of discipline may have been based solely on the fact that he was seen working in some capacity behind the picket lines. This is further corroborated by the fact that the actual fine imposed against him was to be calculated merely on the number of days Rasmussen "worked and [would] continue to work behind the picket line," without regard to his duties performed. Although a brief inquiry was made about Rasmussen's perform- ance of bargaining unit work, no inquiry was made OPERATING ENGINEERS LOCAL 501 (GOLDEN NUGGET) to establish during which periods of the strike Ras- mussen performed bargaining unit work (other than as of the date of the disciplinary hearing) or the extent to which such work may have been per- formed. The evidence revealed at the disciplinary proceeding is fully consistent with a factual finding that at the time of the disciplinary proceeding Ras- mussen was performing only a minimal amount of bargaining unit work, conduct for which Rasmus- sen could not lawfully be disciplined by the Union. Thus, even assuming that the constitution and bylaws provisions may be restrictively applied in an otherwise lawful manner, the Respondent's blan- ket enforcement of them without regard to the amount of bargaining unit work performed is in derogation of the Act.6 The majority has failed to examine the facts as presented at the intraunion proceedings. Having concluded that the Respondent violated the Act under the circumstances, I find it unneces- sary to consider whether Rasmussen in fact per- formed more than a minimal amount of bargaining unit work at any time during the strike. According- ly, I would reverse the judge's dismissal of the complaint and issue an appropriate remedial order. 6 In American Broadcasting Cos, supra, the Court affirmed the Board's finding that both the promulgation of strike rules prohibiting all members from crossing the picket line and its charging, trying, and disciplining su- pervisors for violating the rules to be unlawful The fact that the union in that case formulated its rules in anticipation of the strike, whereas the Re- spondent's constitution and bylaws, it may be assumed, were in place long before the strike, does not diminish the applicability of that case to the instant one The importance that the Court attached to the union's enforcement of the rules without regard for the type of work performed by supervisor-members is made quite clear by its repeated reference to this fact in its decision The majority chooses to overlook this aspect of the Court's decision and blinds themselves to the Respondent's enforce- ment of the constitution and bylaws and implementation of discipline against Rasmussen in circumstances which evidence that it had little or no interest in what kind of work he did during the strike Richard Zuniga, Esq., for the General Counsel. Gordon K. Hubel, Esq, of Los Angeles, California, for Respondent Local 501 Denise M. Blommel, Legal Consultant, of Las Vegas, Nevada, for Charging Party R. Dean Rasmussen DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge. I heard this case in trial at Las Vegas, Nevada, on March 27, 1984. It arose when R. Dean Rasmussen, an individ- ual (Rasmussen) filed an unfair labor practice charge on December 7, 1983,1 against International Union of Oper- ating Engineers Local 501, AFL-CIO (Respondent). Following an administrative investigation, the Regional Director for Region 31 of the National Labor Relations i All dates are in 1983 unless otherwise specified 677 Board (the Board) issued a complaint and notice of hear- ing against Respondent on January 31, 1984. Respondent answered. The complaint alleged in substance that Rasmussen, a member of Respondent, is a statutory supervisor and col- lective-bargaining agent for Golden Nugget Gambling Hall and Rooming House (Golden Nugget) and that Re- spondent unlawfully "restrained and coerced" Golden Nugget in the selection of its collective-bargaining repre- sentative by imposing an internal disciplinary fine against Rasmussen. It is alleged that Respondent imposed the fine "because Rasmussen crossed Respondent's picket line to perform his supervisorial and managerial func- tions" which functions are insulated from union disci- pline by Section 8(b)(1)(B) of the National Labor Rela- tions Act (the Act). All parties were represented at the trial and each filed timely posttrial briefs that I have fully considered. On the entire record2 in this case, from my observa- tion of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDING OF FACTS 1. MATTERS NOT IN ISSUE; PRINCIPAL DEFENSES; AND THE CENTRAL ISSUES Respondent admits that Golden Nugget's operations affected interstate commerce and that the Board's juris- diction is therefore properly invoked. Respondent also stipulated that Rasmussen's customary job for Golden Nugget is supervisory within the meaning of Section 2(11) of the Act and that, in his supervisory capacity, he also exercised grievance-adjustment functions within the meaning of Section 8(b)(1)(B). Respondent admitted that it imposed disciplinary fines against Rasmussen, but it denied that the disciplinary action was directed against Rasmussen's performance of supervisory or grievance- handling functions. Rather, Respondent maintained that Rasmussen was disciplined solely because he performed rank-and-file bargaining unit work during a strike. Re- spondent thus contends that its actions were lawful under the doctrine established in Florida Power Co. v. Electrical Workers IBEW Local 641, 417 U.S. 790 (1974), in which the Supreme Court held that Section 8(b)(1)(B) is not violated when a union disciplines supervisor-mem- bers for performing rank-and-file work, as distinguished from normal supervisory functions, during a strike. Moreover, Respondent argued that Rasmussen cannot be heard to claim that he was coerced in the exercise of insulated "8(b)(1)(B) functions" by the Union's discipli- nary action because Rasmussen admitted during internal union trial proceedings that he was "still working behind the picket line . . . [and was] performing bargaining-unit work." 2 Unless otherwise stated, findings below derive from the undisputed testimony of Rasmussen, the General Counsel's only witness, and from authentic records received in evidence by stipulation However, for rea- sons discussed within, I do not adopt Rasmussen's testimony in its entire- ty, even when it is not directly contradicted 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Against this, factual/legal background, the main issues are: 1. To what extent was Respondent privileged in its im- position of discipline by the fact that Rasmussen admit- ted at the union trial that he, was doing bargaining unit work behind the picket -line? If this undisputed fact does not dispositively alter the conventional analysis, then the remaining issues are: 2. Did Rasmussen, in fact, perform struck bargaining unit work? 3. If so, was it more than "minimal"? II. UNFAIR LABOR PRACTICES A. Introduction Golden Nugget is a Las Vegas gaming and hotel es- tablishment.3 During the period April 2, 1980-April 1, 1983, Respondent and Golden Nugget were parties to a master labor agreement (also covering other Las Vegas hotels and casinos) in which Respondent was recognized as the bargaining agent for persons doing "engineer" work. For our purposes, these are persons who maintain and repair the hotel's and casino's, various electrical, plumbing, and other mechanical systems, including guest room appliances. Rasmussen, a member of Respondent for more than 10 years, is the "Chief Engineer" for Golden Nugget, a job classification which is expressly covered by the labor agreement. Rasmussen is in charge of approximately 55 employees employed throughout the hotel, including painters, laborers, and carpenters (who are not covered by,Respondent's labor agreement). There were 16 nonsu- pervisory engineers before the strike who were covered by that agreement Rasmussen is directly responsible to the director of maintenance and construction. He is sala- ried and enjoys stock options and other prerequisites and benefits not available to other engineer unit employees. As the parties have stipulated, his normal function is a supervisory one which also includes responsibility for re- sponding to employee grievances. B. The Strike at Golden Nugget,, an Overview of Rasmussen Shifted Duties and Responsibilities On May 4, following the expiration of the most recent master labor agreement, Respondent called a strike and began picketing at Golden Nugget. The 16 nonsuperviso- ry engineers in the contract unit,joined the strike; Ras- mussen did not. , Anticipating the strike and that his engineer crew would take their tools with them, Rasmussen had brought several tool sets in advance and had concealed them within the hotel premises. Clearly, he did not hope immediately to be working with experienced striker re- placements who might be expected to own the requisite tools. And, indeed, the initial group of replacements on hand when the strike started was a group of 10 "labor- ers" from within the hotel' who has been reassigned for 3 Golden Nugget, a Nevada corporation, annually derives gross reve- nues in excess of $500,000 and annually purchases and receives goods and services valued in excess of $10,000 directly from suppliers outside Nevada this purpose although, they possessed 'no relevant experi- ence. As Rasmussen acknowledged, "none of the labor- ers had ever worked with the tools of the trade prior to the strike " When the strike was in its second week, Rasmussen began hiring additional,' "outside" replacements and con- tinued to 'do so incrementally in the weeks and months that followed 4 The record is not entirely clear whether even these outside 'replacements possessed any significant training and experience in hotel maintenance operations. I infer that they did not come to the job with such skills from the few characterizations Rasmussen made on that subject and from the fact that, even at the' time of the trial, with 25 employees then on hand doing "engineer" work, Rasmussen was still not satisfied with the engi- neering department compared to prestrike periods. One of Respondent's defensive contentions is that Ras-, mussen took over rank-and-file duties once the strike began. And one of the principal factors which Respond- ent , relied on as tending to prove this (apart from Ras- mussen's "admission" of the same during internal union trial, discussed, infra) is that ,the ongoing maintenance and repair work could not have been performed by the inexperienced laborers and, therefore, it must have been . done by Rasmussen himself There are additional circumstantial facts which argu- ably tend to reinforce that inference Thus, before the strike, Rasmussen routinely worked 5 days a week on a standard 6:30 a.m -3:30 p.m. shift, although remaining "on call" during his time away from the hotel.5 Once the strike began, however, Rasmussen "never left the build- ing for, a month-and-a-half." Thus, it is an arguable infer- ence that Rasmussen was required-at least for the first approximately 45-day period of the strike-to remain on hand in part to take, care of matters, which he had in prestrike days left to the "senior watch engineers" who were entrusted with general oversight of maintenance operations on the swing and graveyard shifts.6 In addi- tion, Rasmussen admits that he carried his own tools at, times while on duty during the first 1-1/2 months of the strike-a practice which began with his carrying a "tool bag" 12 hours a day in the early days' and which then "tapered down" in the ensuing 1-1/2 months before he finally took his tools back to his home. Despite all of, these -appearances suggesting that Ras- mussen was performing some regular amount. of rank- and-file, work during at least the first month or .two of the strike, Rasmussen generally denied in his trial testi- mony that such was the case. He admitted only having spent about an hour on one occasion changing a gas " Exactly when and in what numbers this periodic augmentation of the replacement complement occurred is not discernible from the record 5 The record does not show with any particularity how much this on call status actually impinged on Rasmussen 's off-duty time before the strike, although it suggests that he was occasionally called about various problems and was sometimes required to come into the hotel to deal with them Whether such problems arose within the engineer unit, or , else- where, is also not specified e There is no indication on this record that such watch engineers pos- sessed supervisory authority and, because these classifications were part of the contractual unit and the incumbents all joined the strike , I would find that they were statutory employees OPERATING ENGINEERS LOCAL 501 (GOLDEN NUGGET) 679 valve in the hotel kitchen and about 20 minutes on an- other occasion jimmying a guest room lock to enable a guest to remove luggage and meet a flight deadline. Ras- mussen did not specify-and the record does not other- wise show-precisely when Rasmussen did these jobs. Questions obviously remain How, first of all, did Ras- mussen get the engineer work done if the initial striker replacements were utterly unfamiliar with the work and the later replacements, hired piecemeal, still left some- thing to be desired? The examination of Rasmussen at trial focused on these questions, but Rasmussen's testimo- ny is not always illuminating. Essentially, however, Ras- mussen maintains that be conducted crash "training" courses, and went along with his trainees, when neces- sary, to "talk" them through any tasks that they did not already know how to do I deal below with some of the details of Rasmussen's accounts in this regard, but it is worth noting at the outset that the details are more than normally difficult to pin down. The problem is mostly of Rasmussen's own making; for he gave different accounts at different times bearing on the questions whether, when, and how much bargaining unit work he actually performed. First, in this regard, are the statements he made during union trial proceedings as I set forth next. C. The Internal Disciplinary Proceedings On August 12, internal union disciplinary proceedings were commenced against Rasmussen by the filing of a charge by a member of Respondent that Rasmussen had "crossed sanctioned locked-out picket lines or sanctioned picket lines and/or performed bargaining unit work." This was followed by a notice to Rasmussen from Re- spondent dated August 26 stating that Rasmussen had been so charged and requesting that he file an "answer, defense, or plea" by a specified deadline. . The record did not disclose whether Rasmussen re- sponded within the deadline specified in Respondent's August 26 letter, but it is clear that Respondent issued another letter to him on September 30, advising him that a "pretrial hearing" would take place on October 20, at which time he could furnish "any evidence or witnesses [he] wish[ed]." Rasmussen attended that October 20 hearing without witnesses and made a verbal presenta- tion which stressed that he was salaried, that he would be vulnerable to discharge if he did not work during the strike, that Respondent could neither protect him from such discipline nor find him a comparable job elsewhere, and that considerations of "safety" (the need to keep fire control equipment working) required that he work during the strike That October 20 hearing did not resolve the matter. On November 14, Respondent wrote to Rasmussen that a trial on the charges would occur on November 28 and that he should bring with him "any written statements, evidence or witnesses" which he might wish to present. At the November 28 trial, Rasmussen interrupted the testimony of certain member witnesses who said they had seen him working behind the picket line. Acknowl- edging that this was true, Rasmussen spelled out his de- fense. This is his complete description of that proceed- ing, with emphasis added. A. Yes. Jack Pepera stated that he had seen me behind the picket line, and I believe Jim Franklin also said something to the effect that he had seen me. And at that time I think I interrupted and submit- ted that I did work behind the picket lines, and then I was allowed to proceed with my explanation, at which time I stated how important it is that some- body does stay in a building that can keep the build- inn safe, how I felt about that, and how as a-when a person first comes in the Union as a Journeyman, then progresses as an Assistant Chief, and then on into a Chief Engineer, and then up the ladder till you become more and more management and less and less employee, and that this transition takes place and that the obligation, actually, shifts some- what. Q. And did you explain what your duties as Chief Engineer were? A. Only that I felt the safety of the building was my responsibility and the safety of everyone in the building, and it was also my responsibility to make sure the building was still standing . Should the strike ever be settled, they'd have someplace to go back to work. Q. Did anyone ask you any questions? A. No. At that time I started walking back to my seat, and Mr. Fox, Ed Fox, asked me if I was still working behind the picket line. And I said, "Yes. " And he said, "Are you performing bargaining-unit work?" And I said, "Yes. " And I sat down, and the vote was taken. Q. And what were the results of the vote? A. Later I was found guilty by less than three- fourths of the members, and I was fined $1,000 plus $100 a day for every day I worked behind the picket line. On December 13, Respondent gave written notice to Rasmussen of the trial body's decision. He was also ad- vised by that letter of his right to appeal Respondent's action to the general executive board of Respondent's International body. The record does not indicate wheth- er Rasmussen pursued his right of appeal. D. Rasmussen's Pretrial Written Statements as Compared with his Trial Testimony Rasmussen next went on record about his activities during the strike in a sworn statement prepared by his own legal representative and signed on December 6, 1983, shortly before he filed the instant charge There, he said, inter aha: I worked with "the tools" (doing bargaining unit work) about 15 minutes per day before the strike. During the first week of the strike, I worked 12 hours per day with the tools The second week was 2 hours per day with the tools. Since the third week of the strike I have not worked with the tools. 680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD •I note here the obvious discrepancy between Rasmus- sen's insistence at the trial before me that he only spent a total of 80 minutes doing bargaining unit work and the December 8 admissions just quoted. Clearly, if Rasmus- sen himself defines the expression "working with the tools" as "doing bargaining unit work," it follows from his quoted admissions that he spent 84 hours in the first week of the strike and 14 hours in the second week per- forming bargaining unit tasks.7 By contrast, his Decem- ber 6 statement cannot be taken as fully reliablein the claim that he has not worked with the tools "since the third week of the strike" in the light of his admission at this trial that his "carrying a tool bag" did not "taper down" to nil until a point 6 weeks into the strike 8 Efforts were made by the General Counsel and the Charging Party's representative, to elicit from Rasmussen certain estimates about the "percentage" of time he spent during the strike in either "carrying" or "handling" tools. These were followed by attempts to get Rasmus- sen to compare those 'percentages with his typical pre- strike practices Although the subject was worked over rather thoroughly, Rasmussen's various responses tended to be impressionistic,' occasionally inconsistent, and gen- erally, unhelpful. Thus, Rasmussen estimated that during the strike, he actually "handled" tools "probably five percent . . . maybe ten percent" of the total times when he "carried a tool bag" (the latter number of instances never, having been defined with any real precision) He was then invited by the General Counsel to identify how often he "carried or wore a tool bag" before the strike. His answers here were more confusing, relying on char- acterizations such as "occasionally" and "very seldom," but adding that he might do so for "12 straight hours" if his carpenters were "behind on a project," but "probably 15 minutes a week . . . not very often" if,the carpenters were "caught up." It is evident here, however, that he was describing his performance of "carpenter"-not "en- gineer" work during prestrike periods. There is thus a certain "apples and oranges" problem with such com- parisons. And, in any case, Rasmussen almost immediate- ly seemed to contradict his earlier estimates when he said that he "handled" tools before the strike "probably 15 minutes a day, I would say"-an estimate which is diffi- cult to reconcile with his trial testimony that he only "carried' a tool bag" "probably 15 minutes a week" during typical periods before the strike. ' It `appears, although it is not entirely clear 'from his testimony at this trial, that Rasmussen would 'now ex- plain away his quoted pretrial statements about the amount of time he spent working "with the tools" during the strike as merely referring to the amount of time he Because Rasmussen was admittedly continuously inside the Golden Nugget for the first 6 weeks of the strike, I infer here that "per day" contemplates each consecutive day that he was at the Golden Nugget in the first and second weeks of the strike and that 7 is therefore the appro- priate multiplier 8 Rasmussen's December 6 statement was offered by Respondent for its impeachment value on those and related points Its contents are inad- missible hearsay except as to admissions contained there The same is true of the "supplemental affidavit" to the Board which he made on Decem- ber 21, which was introduced by the General Counsel only for the stated purpose of rebutting the inference of "recent fabrication " See generally Fed R Evid 801(d)(1)(B) Cf 801(d)(2) -carried" tools while involved in "training" functions. Thus he testified that in the early weeks of the strike, at least, he was almost totally occupied in "training" and that about "50 percent" of his "training" involved assist- ance on "job calls." But there is a considerable amount of inconsistency on these points-both within his various statements on the witness stand, and between and among those statements and his pretrial statements. Neither does his trial testimony on the subject of "training" always distinguish between time spent in conducting "training courses" and time spent accompanying replacement engi- neers on specific job calls where, he says, he "trained" them by telling them what to do to get the job done There is no dispute that Rasmussen did, in fact, con- duct "training courses" for groups of striker replace- ments, beginning immediately with training in some of the more frequently recurring demands of hotel mainte- nance life, keeping toilet and other guest room plumbing and electrical systems operational To provide this train- ing, he reserved some vacant guest rooms for class work and taught the replacements how to tear down and reas- semble faucets, drains, and electrical outlets and, inciden- tially, how to spot defective parts and to replace them. This training process occupied what Rasmussen charac- terized as an "exorbitant" amount of his time throughout the first-month of the strike. It is evident, however, as Rasmussen acknowledged, that these training courses did not fully qualify the re- placement engineers to respond to every job call Ac- cordingly, as he admitted, he would, on an "on-call" basis, accompany new crew members on particular tasks, carrying his' own tool bag perhaps, but "ma[king] it a point not to touch the tools" himself. This is not consist- ent, however, with his admission that he might hand a tool from his own bag to the working "engineer," and would instruct him, step-by-step, in how to accomplish the given 'task And, "if they were struggling . . . I might hold a nut for them, or something like that, let's say [but] . . . very rarely " It is also 'evident, despite Rasmussen's equivocations, that his admittedly close and direct involvement during the strike in the "training" of new personnel in the per- formance of routine maintenance tasks was not part of Rasmussen's normal function before the strike As he ad- mitted, maintenance plumbers "from the Union" normal- ly came equipped to do these jobs, and his prestrike training role was far more limited, consisting of occa- sional group familiarization sessions in, for example, a new fire control system panel, or in one-on-one orienta- tions on unusually complex tasks which he'was accus- tomed to do himself (there being no contractual prohibi- tion against his doing unit work). As he further admitted, his job was far more "administrative" before the strike and much "informal" training was done simply by his as- signing of an engineer skilled in, say, electrical work, to accompany a plumbing specialist on a plumbing job (or vice-versa); in short, a kind of cross-training so that each engineer would become more versatile, without requiring Rasmussen's direct involvement. I do not conclude that Rasmussen was always con- sciously shading the truth in his various and mostly un- OPERATING ENGINEERS LOCAL 501 (GOLDEN NUGGET) successful attempts to provide a clearer picture on some of the points at issue. These are admittedly matters which are difficult to recall perfectly months after the fact But considering the importance of these details to the question whether he was performing struck unit work to any substantial degree, I find it at least puzzling that the General Counsel and the Charging Party's rep- resentatives questioning went well beyond the area de- limited by precedent (see Analysis section, infra) and ne- glected more pertinent matters; e.g.. How much time did Rasmussen spend during the strike working with tools in connection with "engineer" work and how did that com- pare with his similar activities in connection with engi- neer work before the strike?9 As I have noted, it is scarcely relevant that Rasmussen may have performed "carpenter" work before the strike and the introduction of that evidence may therefore be viewed as an attempt to obscure the issue. And where there is circumstantial evidence suggesting that Rasmussen was obliged to become intimately involved in the execution of routine engineer tasks after the strike began, and had not been accustomed to such involvement before the strike. I do not regard many of his comparisons and estimates as having any real probative worth. It is my ultimate judgment that Rasmussen and the General Counsel are now straining either to blur impor- tant distinctions or to create unimportant ones when it comes to the matter of Rasmussen's "training" functions and his use of tools during the strike. Rasmussen's trial performance is therefore of limited value in judging whether Rasmussen was in fact "guilty" of doing bar- gaining unit work during the strike. i 0 Admittedly, the resolution of this final question is as much a matter of legal judgment as it is one of finding facts And I there- fore defer to the Analysis my ultimate conclusions in this regard. III. ANALYSIS, ULTIMATE FINDINGS, AND CONCLUSIONS THEREFOR A. General Legal Setting There are some established principles in this legal area that will come recurrently into play. I begin with the words of the Supreme Court in its landmark decision in Florida Power, supra, in which the Court restated the ap- plicable legal test under Section 8(b)(1)(B), rejecting, in the process, certain evolving tendencies which the Court perceived from some of the Board's earlier attempts to apply that section (417 U S. at 804): Nowhere in the legislative history is there to be found any implication that Congress sought to s This does not imply that a supervisor is immune from discipline by his union for doing the same amount of unit work during a strike that he did in prestrike periods See Analysis 10 The Union called one witness, James Sedlick, to dispute Rasmus- sen's claim about how much "informal" training Rasmussen was accus- tomed to do himself-as opposed to relying on unit engineers to infor- mally train one another-during the prestrike periods I find more credi- ble Sedlick's testimony that such informal training was normally accom- plished without Rasmussen's direct involvement, but I do not rely on Sedlick's specific percentage estimates in this regard, he was not in a good position to make such judgments 681 extend protection to the employer from union re- straint or coercion when engaged in any activity other than the selection of its representatives for the purposes of collective bargaining and grievance ad- justment The conclusion is thus inescapable that a union's discipline of one of its members who is a su- pervisory employee can constitute a violation of § 8(b)(1)(B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective [bargaining representative] on behalf of the employer. I I Of more direct pertinence to this case are these passag- es from the Board's decision in Columbia Typographical Union 101 (Washington Post), 242 NLRB 1079, 1080-1081 (1979), a case decided after Florida Power and American Broadcasting Cos., supra, in which the Board stated (em- phasis added). ... we set forth the standard which we deem appli- cable, in our construction of Section 8(b)(1)(B), for those situations where union discipline results after a supervisor-member's performance during an em- ployer-union dispute of both regular supervisory duties and rank-and-file struck work. In these situations, to determine whether Section 8(b)(1)(B) has been violated , the only relevant in- quiry is what did the supervisor-member do during the employer-union dispute. When a supervisor- member has performed a more than minimal amount of rank-and-file work during the period of the em- ployer-union dispute, subsequent union discipline for performing such work cannot give rise to a vio- lation of Section 8(b)(1)(B). A supervisor-member will not be immune from union discipline because the amount of rank-and-file work he performs during the dispute does not increase . Thus, it is ir- relevant whether the disciplined supervisor-member has performed rank-and-file work, in either the same or different proportion, than before the employer-union dispute. However, where the known facts indicate that the supervisor-member has performed a more than minimal amount of rank-and-file work during the employer-union dispute, we must decline to draw an inference that the supervisor will be coerced in the performance of his collective-bargaining tasks or grievance-adjustment tasks. A union has a legiti- mate interest in enforcing the obligations of its members to adhere to the union rules. Where the union has disciplined a supervisor-member after that member has crossed a picket line to perform rank- and-file work contrary to union rules, it does not follow that the reasonably foreseeable effect of the 11 Subsequently, in American Broadcasting Cos v Writers Guild, 437 U S 411, the Court held that the Board did not exceed its authority by finding an 8(b)(1)(B) violation where a union had fined supervisory per- sonnel who had performed solely supervisory functions during the union's strike 682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union's discipline of the supervisor-member is to di- minish his ability to perform his 8(b)(l)(B) duties. Rather, it must be inferred, and the probabilities in- dicate, that the union discipline will serve to affect adversely and to deter the supervisor-member's willingness to perform rank-and-file struck work during -an employer-union dispute. The General Counsel and the Charging Party refer frequently to Wisconsin River Valley District Council of Carpenters (Skippy Enterprises), 211 NLRB 222 (1974) (original case), reconsidered in light of Florida Power at 218 NLRB 1063 (1975) (finding violation on narrowed rationale), enfd. 532 F.2d 47 (7th Cir. 1976). Briefly, on reconsideration in Skippy Enterprises, the Board (Mem- bers Fanning and Penello dissenting) found an 8(b)( 1)(B) violation where the union disciplined a supervisor who had worked during a labor dispute, spending 70 percent of his time doing supervisory work and 30 percent of his time in the performance of normal bargaining unit work. The Board noted that the finee's duties and responsibil- ities did not change during the strike (the respective per- centages of supervisory and unit work being typical of his prestrike activities). The Board also found that 70 percent of his work as a supervisor "was not a minimal amount of time spent in supervisory , functions." Id. 218 NLRB at 1064. These factors caused the Board to find that the union's discipline would have necessary effect of inducing the finee to quit his work, "thus depriving the Employer of the services of its selected representative for purposes of collective bargaining or the adjustment of grievances." Ibid. The General Counsel and the Charging Party contend on brief that Skippy Enterprises is still good law insofar as it suggests, (a) that as long as a supervisor's performance of unit work does not increase during a strike, he will not be vulnerable to union discipline ; and/or (b) a super- visor may spend as much as 30 percent of his time during a strike doing bargaining unit work without being vulnerable to union discipline. Although these conclu- sions about Skippy's significance, standing alone, are not unreasonable, the fact is that both are no longer warrant- ed in the light of the quoted passages, supra, from the Board's later restatement in Washington Post. As to (a), above, the Washington Post Board said that "it is irrele- vant whether the disciplined supervisor-member has per- formed rank-and-file work in either the same or different proportion, than before the . . . dispute." As to (b), above, the test posited by the Washington Post Board is whether the supervisor/member has performed a "more than minimal" amount of unit work during a strike. Accordingly, Washington Post effectively overruled Skippy Enterprises on the dual points at issue.12 I thus find it irrelevant here that Rasmussen may have spent "15 minutes per day" (or per week, or whatever the case may have,been, depending on which of Rasmussen's ac- 12 The overruling was done here sub silentio , but it was indirectly noted that this was its effect by Member Penello (242 NLRB at 1080 In 4, see also Member Jenkins' partial dissent (Id at 1085 fn 21)), implicitly recognizing the same thing I note, as well , that the Court in American Broadcasting Cos, supra, expressly refrained from passing on these aspects of Skippy Id 437 U S at 426 fn 23 counts is relied on) in "carrying" or "handling" or "working with" the tools before the strike. This did not convert his similar activities during the strike to a "su- pervisory" function, or render them immune from union discipline. If Skippy Enterprises, supra, retains any viability at all, it would appear to be in certain dicta contained in the decision of the administrative law judge in the original, pre-Florida Power case, in which he said (211 NLRB at 227): r Respondent's good faith is not involved, for the test of restraint and coercion under Section, 8(b)(1)(B) turns not on the union's motive, but on whether the union engaged in conduct which . . . tends to re- strain or coerce employees within the intent of that section. Had` it not been for the Board's recent decision in Op- erating Engineers Local 501 (Peterson Mfg.), 269 NLRB 685 (1984), I would have concluded that the quoted dicta was unreliable, because it was part of an overall holding linked to an analysis that could not pass muster under Florida Power (see 211 NLRB at 227). But the same dicta was relied on by the administrative law fudge in Peterson Mfg. (supra, 269 NLRB at 689 fn. 5), whose decision was adopted by the Board . I am therefore required to treat that language as still retaining some vitality, despite the fact that the original opinion in Skippy is largely out- moded. B Application of the Law to the Facts I am persuaded that the application of the principles cited above, especially those set forth in Washington Post, supra, to these unique facts requires that the complaint be dismissed . I am moved by alternative considerations in reaching this result 1. Principal rationale Primarily, in agreement with Respondent, I conclude that Rasmussen cannot credibly maintain that he was co- erced in exercising supervisory or grievance-handling duties13 by Respondent's discipline under circumstances in which Rasmussen unqualifiedly admitted in the union trial that he was "still working behind the picket line [and was] performing bargaining unit work." By Rasmus- sen's own account, his admission was unattended by any explanatory or extenuating clarifications; and' the mem- bership's vote of "guilty" followed immediately on the heels of his admission . In these circumstances, it would be irrational for Rasmussen to conclude that he was 13 There being no dispute that Rasmussen is a supervisor with griev- ance-handling functions , I need not rely on the "reservoir" doctrine to determine, as I do, that Rasmussen was a "collective bargaining repre- sentative" of Golden Nugget within the meaning of Sec 8(b)(1)(B) Cf Teamsters Local 296 (Northwest Publications), 263 NLRB 778 fn 4 (1982) (reaffirming "reservoir" theory) But cf Operating Engineers Local 926 1, Jones, 460 U S 669, 679 (1983) ("of course, not every supervisor is a 'rep- resentative for the purpose of collective bargaining or the adjustment of grievances' for purposes of Section 8(b)(1)(B)," citing Florida Power, supra, 417 U S at 811 fn 21) OPERATING ENGINEERS LOCAL 501 (GOLDEN NUGGET) being disciplined for anything other than that which he admitted to shortly before the "guilty" vote. It may thus be said here, as in Washington Post, supra, that "it does not follow that the reasonably foreseeable effect of the union's discipline is to diminish [Ras- mussen's] ability to perform his 8(b)(1)(B) duties. Rather, it must be inferred, and the probabilities indicate, that the union discipline will serve to affect adversely and to deter [Rasmussen's] willingness to perform rank-and-file struck work during an employer-union dispute." (242 NLRB at 1081.) In short, when Rasmussen told the trial body that he was still doing bargaining unit work, the only lesson which he might reasonably be expected to learn from Respondent's discipline is that he should refrain from doing struck work if he wished to avoid future disci- pline. Thus, nothing in that disciplinary action would tend to influence Rasmussen to refrain from performing normal supervisory and grievance-handling functions during a strike and the discipline was therefore a legally innocuous exercise of Respondent's rights under the pro- viso to Section 8(b)(1) to make and enforce legitimate in- ternal rules binding on all those who choose to be its members. Washington Post, supra, and see Scofield v. NLRB, 394 U.S. 423, 430 (1969) The "dilemma" about which Rasmussen complained at the pretrial hearing, i.e., that Respondent could fire him if he did not stay on the job, is either a false one or it is one of his own (or that of his employer's) making. This is because Rasmussen had the option of resigning from membership if he felt compelled to stay on the job and perform struck work. NLRB v. Textile Workers Local 1029 (Granite State Joint Board), 409 U.S. 213, 217 (1972). Alternatively, his employer could have required him to resign from membership if it feared that his on- the-job activities during the strike might render him vul- nerable to union discipline. Florida Power, supra, 417 U.S. at 813.14 It deserves emphasis that the foregoing analysis does not focus on the question whether Respondent (here, Re- spondent's members who participated in the disciplinary vote) actually believed in good faith that Rasmussen was guilty of doing struck work As the General Counsel and the Charging Party both have emphasized, such inquiries into a union's good faith are not relevant under Section 8(b)(1)(B) Skippy Enterprises, supra; Peterson Mfg., supra.15 Rather, this analysis focuses on the reasonably foreseeable effect of Respondent's discipline on Rasmus- sen's ability to exercise 8(b)(1)(B) duties under circum- stances where, before the disciplinary vote was taken, he 14 In American Broadcasting Cos, supra, the Court deemed it signifi- cant that, unlike here, the union in that case had a "known policy not to permit a member to resign during a strike and for six months thereafter " 437 U S at 436 is It is nevertheless remarkable that the Charging Party equivocates on this point-in effect seeks to have it both ways-when his representative argues elsewhere on brief that Respondent was not, in fact, moved by a 11 'good faith' reliance upon Rasmussen's 'admission "' The evidence which Respondent points to in this regard is not persuasive and the more obvious inference from the timing of the vote to discipline, i e, immedi- ately after Rasmussen 's admission, is that the discipline was , in fact, moti- vated by that admission But the point here is that a union 's good faith is not a permissible subject for inquiry under the cited authorities 683 had induced Respondent's members into believing that he was guilty of doing bargaining unit work. Neither does the foregoing analysis rely on principles of equitable estoppel for the result reached. The extent to which such estoppel notions are applicable in judging alleged violations of the Act is at least unclear and is one on which the Board and at least one reviewing circuit appeared to be in disagreement. Cf. Teamsters Local 372 v. NLRB, 682 F 2d 116, 118 (D C. Cir. 1982) (remanding for consideration of equitable estoppel issue), and Oak- land Press Co., 266 NLRB 107 (1983) (deciding on remand alternatively that estoppel considerations should not apply when result would be unit inclusion of statuto- ry supervisors and that, in any case, the estoppel tests were not met).16 Admittedly, this analysis is at least superficially vulner- able to the criticism that it does not focus only on the actual facts of Rasmussen's activities during the strike and, to that extent, it can be claimed that the analysis ig- nores the Board's admonition in Washington Post, supra, that "the only relevant inquiry is what did the supervi- sor-member do during the employer-union dispute." Responding to that potential criticism, I submit that these facts bring into relief the inadequacy of that state- ment as a proper test, standing alone, for disposing of al- leged 8(b)(1)(B) violations. For to place controlling em- phasis on what Rasmussen actually did during the strike under circumstances where he made no effort himself to inform Respondent's trial board of those facts is to ignore a principle of more fundamental significance; that is, the paramount instruction of the Court in Florida Power, supra, that "a union's discipline of one of its mem- bers who is a supervisory employee can constitute a vio- lation . . . only when that discipline may adversely affect the supervisor's conduct in performing the duties of and acting in his capacity as, grievance adjuster or collective [bargaining representative] on behalf of the employer." [Em- phasis added; 417 U.S. at 804-805.] 17 At bottom, regardless of the actual facts of Rasmus- sen's behavior during the strike, it is difficult, if not im- possible, on this record to discern how Respondent's dis- ciplinary action might reasonably tend to have such an adverse "carry-over" effect on Rasmussen's performance of 8(b)(1)(B) functions. The discipline was clearly not fa- cially directed against Rasmussen's performance of those 16 If there is room in 8(b)(1)(B) proceedings for the doctrine of equita- ble estoppel , this case would appear to present compelling grounds for its application Thus, as the Board recognized in the cited Oakland Press case, a party claiming equitable estoppel must show "(1) lack of knowl- edge and the means to obtain knowledge of the true facts [circumstances present here where Respondent's members were not in a position to know or independently learn any details about Rasmussen's daily on-the- job activities during the strike], (2) good faith reliance on the misleading conduct of the party to be estopped [the disciplinary vote was taken im- mediately after Rasmussen 's admissions], and (3 ) detriment or prejudice from such reliance [Respondent has been placed in legal jeopardy by this complaint for its actions against Rasmussen taken in reliance on his ad- missions] " (266 NLRB at 107-108 ) 11 This is not a criticism of Washington Post analysis, indeed the Board fully acknowledged therein the controlling (and narrowing) impact of Florida Power on 8(b)(1)(B) cases of this type 242 NLRB at 1079, 1080 Rather, it is a criticism of attempts such as those made herein by the General Counsel and the Charging Party to overemphasize that "only relevant inquiry" language and to strip it from context 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD normal grievance-adjustment functions; indeed, Rasmus- sen acknowledged that he has had no opportunity to handle any grievance during the strike. And, for all the reasons noted previously, Rasmussen could not reason- ably have interpreted Respondent's discipline as being di- rected against anything other than his admitted, continu-' ing performance of "bargaining unit work" during the strike. Any other approach in these circumstances would place on Respondent the burden of learning by some in- dependent means that Rasmussen's admission `should not be taken at face value.18 Accordingly, in the absences of any plausible basis for concluding that Respondent's disciplinary action tended to impair Rasmussen's performance of 8(b)(1)(B) duties, I would dismiss this complaint. 2. Secondary rationale Alternatively, if Rasmussen's admissions are truly beside the point, and if I were to focus solely on whether Rasmussen did, in fact, perform unit work "more than minimal[ly]," I would infer that he did so, resolving doubts against him where his testimony is vague and where it was ultimately in the prosecution's interest to show with greater clarity (if such was the case) that Ras- mussen was not, in fact, guilty of the offense to which he seemingly admitted at the union trial. It is necessary to make clear at the outset my belief that the proper temporal focus for an analysis of Rasmus- sen's activities, is the period from the start of the strike to the time when the union trial proceedings were conduct- ed. If there were "changed circumstances" in the period following the "guilty" vote by Respondent's members that might affect the continuing appropriateness of the disciplinary action taken earlier, it seems only reasonable to hold that it was Rasmussen's duty to bring them to Respondent's, attention. Otherwise, consistent with prior discussion, it would be irrational to infer that Rasmussen would • be chilled in the ongoing performance of 8(b)(1)(B) duties by union. disciplinary action that de- rived from an entirely different "record " Moreover, to focus on any period beyond the point when discipline was imposed would carry to seemingly absurd lengths the already dubious notion that Respondent had some in- dependent "duty to investigate" Rasmussen's conduct beyond that which Rasmussen himself chose to disclose on that subject. For, under that view, Respondent should have made inquiries of Rasmussen on a daily basis after the initial imposition of discipline to make sure that Ras- is This, incidentally, is essentially the position taken by the General Counsel and the Charging Party on brief-that Respondent had a "duty" to investigate the truthfulness of Rasmussen 's admission (the Charging Party's term) Those parties do not, however, suggest any means by which Respondent might have discharged that "duty", and it is difficult to envision just what the Union might have done where its members were on strike and there were thus no inhouse informants which it might resort to in an effort to learn the details of Rasmussen 's activities Per- haps the General Counsel and the Charging Party intend here that Re- spondent's agents should have cross-examined Rasmussen at the Union's trial proceedings to make sure that he was not unwittingly hanging him- self by his own admissions If so, this would reflect a novel allocation of burdens and I would remain unpersuaded mussen had not, in the meantime, conformed his behavior to Respondent's internal rules.19 Accordingly, in subsequent discussion, I do not ad- dress the extent to which Rasmussen's performance of unit work may have changed after the point when he was found guilty by Respondent's members. And, neces- sarily, ' I do not decide whether Rasmussen's representa- tive is correct on briefu,either in her underlying factual premises or in her ultimate calculations about the per- centage of unit work which Rasmussen performed com- pared to this total time he spent in supervisory activities from the start of the strike to the point when this case was tried.20 Addressing now Rasmussen's activities during the period in question, I start by noting what seems to me to be obvious from a review of the record. Rasmussen's view of what constitutes "bargaining unit work" has un- dergone a considerable evolution from the point on No- vember 28 when he told Respondent's members in the union trial that he was still performing bargaining unit work (indeed, even from, the point on December 6 when his first formal statement on the subject was recorded by his legal representative in which he acknowledged that he "worked with `the tools' (doing bargaining unit work)" on a regular and recurring basis during the first 2 weeks of the strike). I have earlier recorded my disinclination to place reli- ance on^ Rasmussen's often vague (and to some extent in- consistent, "shifting, or irrelevant) estimates about the "percentage" of time he spent in performing various ac- tivities before and during the strike I conclude that the record's vagueness will simply not permit a strict mathe- matical calculation of the total amount of time he spent on bargaining unit work in the period from May 4 to November 28. ' What is clear, however, is that Rasmussen was some- how getting bargaining unit work done, and that he was accomplishing this during the period focused on even while the "engineer" crew available to him was seriously lacking in necessary skills. As suggested earlier, this fact alone warrants a presumption that Rasmussen was 're- quired to play an unprecedented role in the accomplish- ment of unit tasks. And this presumption is only en- hanced by his various admissions prior to this trial, in substance, that even as of November 28, he was still per- forming "bargaining unit" work and that, during the first 2 weeks of-the strike, he "worked with `the tools' (doing bargaining unit work)" totalling at least 98 hours These considerations alone justify the conclusion that his per- 19 It may be noted as well that Rasmussen was specifically on notice of his right to appeal the imposition of discipline and that, so far as this record shows, he did riot use that opportunity-not even to seek to modify the nature of the discipline based on a claim of changed circum- stances 20 The Charging Party's representative starts by noting that Rasmussen worked a total of "2198 hours" during the entire period She then adopts for argument's sake the record evidence which suggests that Rasmussen may have done bargaining unit work totaling "124 083 hours as a rank and file employee from May 4 [1983] to March 27, 1984" From this, she concludes that Rasmussen 's performance of unit work was "minimal" considered against the total backdrop of his activities during those rough- ly I1 months OPERATING ENGINEERS LOCAL 501 (GOLDEN NUGGET) 685 formance of unit work was more than "minimal," within the meaning of Washington Post, supra 2 i Neither do I accept the dual explanations implicit in Rasmussen's testimony (and now made explicit in the General Counsel's and the Charging Party's briefs); i.e, that Rasmussen was merely performing training functions when he worked with the tools and that such training was an exercise of a supervisory function. As the Board noted in Washington Post, 242 NLRB at 1083 In. 15, "the training of new employees" is "not necessarily disposi- tive of the issue of supervisory status, inasmuch as [this duty] is often associated with either `leadmen' or supervi- sory personnel." And there, the Board found that "the work labeled as `training' herein had-at least during the strike-an object of producing rank-and-file work . . . [T]herefore, while `training,' the supervisor-members were directing their efforts, at least in part, towards pro- ducing a work product that absent the strike would have resulted from rank-and-file production work . ." Ibid This caused the Board to conclude in that case that "where senior journeymen had long performed a training function and that function was part of their normal duties, the supervisors-members' performance of this function during the strike constituted the performance of rank-and-file work." Ibid. Similarly, here it is clear that much of the work de- scribed by Rasmussen under the general heading of train- ing involved the taking over of work which before the strike would have been done by unit journeymen, and was, therefore, "struck work." Specifically, when Ras- mussen was required literally to follow an unskilled "trainee" to a routine job call and to "talk" him through a particular task, he was doing work which in the past he had left to journeymen in the bargaining unit.22 As in Washington Post, supra, this record will not permit me to "quantify the exact amount" (id. at 1083) of that kind of "training" done by Rasmussen (from his testimony, 50 21 It was never made clear whether the 2 unit tasks that he admitted to at the trial which themselves required 80 minutes' work were done during the initial 2-week period covered by Rasmussen's December 6 ad- mission or, alternatively, whether that work took place at a later date and should therefore be added to the totals just mentioned Although doubts on this score are properly resolved against Rasmussen , as the party with knowledge, such an adverse inference would not influence my ultimate judgment in this regard The principal definition of " minimal" is "Small- est in amount or degree " The American Heritage Dictionary (2d ed 1982), Houghton Mifflin Co , Boston On brief the Charging Party regularly and properly substitutes the legal notion of de minimis for the Washington Post's term, "minimal " Clearly, 98 hours spent on unit work is more than minimal and the extra 80 minutes under discussion thus is not needed to tip the balance Even if 98 hours is itself a suspect figure, I would con- clude that Rasmussen's admitted performance of "on-call assistance" (or "training") to the replacement engineers on a regular basis during a sub- stantial period exceeded minimal propositions And see discussion in main text, next 22 As noted in the Findings section , supra, Rasmussen admitted that training of "apprentices" in prestrike days was normally done by nonsu- pervisory journeymen percent of the totality of his "training" activities). But the record's imprecision on that point is chargeable against the General Counsel and Rasmussen, as the par- ties with knowledge and an interest in disclosing the same if such amounts of work were no more than "mini- mal." Moreover, in these particular "job call" instances, it strains the term to call what Rasmussen did mere train- ing. More realistically , it was Rasmussen's own judg- ment, skills (and sometimes, the contents of his own tool bag) which accounted for the completion of those jobs. The "trainee" in those instances was little more than a mechanical extension of Rasmussen, himself In those cir- cumstances, it seems therefore more in accord with reali- ty to say that Rasmussen did that work. In summary, therefore, Rasmussen clearly accom- plished either directly, or through a contrived process of extension, considerable amounts of unit work-far more than his limited concession at trial, i.e., that he only spent a total of 80 minutes in such activities throughout the strike.23 I need not-and could not-on this record determine exactly how much such work Rasmussen did. It is enough to note that the record will support the con- clusion that he did more than de minimis amounts of such work. I would thus dismiss the complaint on this alternative ground as well CONCLUSIONS OF LAW 1. Golden Nugget is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Board's jurisdiction is properly invoked 4. Respondent's disciplinary action against Rasmussen did not tend to restrain or coerce Golden Nugget in the selection of its representatives for the purposes of collec- tive bargaining or the adjustment of grievances, accord- ingly, the complaint must be dismissed On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed24 ORDER The complaint is dismissed in its entirety. 23 I do not decide whether Rasmussen's "classroom "-as opposed to "job-call"-training of the inexperienced laborers-turned -engineers was struck unit work under the Board 's Washington Post analysis, supra 24 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