International Brotherhood Of Electrical Workers, Local 77

516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local 77 and Bruce-Cadet, Inc. Case 19-CB- 6077 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On September 14, 1987, Administrative Law Judge Richard J. Boyce issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-ex- ceptions and a reply 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, and conclusions only to the extent consistent with this Decision and Order. The charge filed in this case by the Employer, Bruce-Cadet, Inc., on March 16, 1987,1 alleges that the Respondent, International Brotherhood of Electrical Workers, Local 77, violated Section 8(b)(1)(B) of the Act by commencing disciplinary proceedings against supervisors Dennis Dallas and James Reinkens "because said individuals directed the work of employees dispatched by Local 112 at the request of the [Employer] on work which had been claimed by both Local 112 and Local 77, as those individuals were instructed to do by the [Em- ployer's president], who had made the decision to have the work done by Local 112 personnel." The judge, applying the Supreme Court's recent decision in NLRB v. Electrical Workers Local 340, 107 S.Ct. 2002 (1987), found that there could be no 8(b)(1)(B) violation, because he concluded that the Respondent neither had a collective-bargaining re- lationship with the Employer nor aspired to one. We disagree with the judge and for the following reasons find that the Respondent violated Section 8(b)(1)(B) of the Act. Bruce-Cadet is an electrical contractor working as a subcontractor on the Hanford Nuclear Reser- vation in the State of Washington. Bruce-Cadet is party to the Site Stabilization Agreement, an agree- ment between the International Unions of Building Trades and construction contractors at the Hanford site, which governs the terms and conditions of employment for all construction work at the site. Bruce-Cadet employs members of Electrical Workers Local 112, a sister local of the Respond- i All dates refer to 1987 unless otherwise specified ent, to do electrical work at the Hanford site. Local 112 is party to the Site Stabilization Agree- ment, pursuant to its membership in the National Trades Council. Local 112's jurisdiction is confined to inside or wireman's work. The Respondent, whose jurisdiction encompasses outside or line- man's work, is not party to the Site Stabilization Agreement. George Elgin, Local 112's business manager, tes- tified that the Site Stabilization Agreement caused problems between the Respondent and Local 112 regarding jurisdiction . Elgin testified that the prob- lem was primarily a result of the fact that the Re- spondent was not party to the Agreement and therefore there was no method for settling a juris- dictional dispute with the Employer.2 Rather, the matter had to be resolved internally within the IBEW between the Respondent and Local 112. As a result, an informal agreement was reached that if Bruce-Cadet needed outside linemen, members of the Respondent would be cleared to work through Local 112.3 This informal agreement was in place at the time the events transpired that led to the dis- ciplinary charges being filed against Dallas and Reinkens. Dennis Dallas and James Reinkens have been foremen for Bruce-Cadet for several years and are indisputably supervisors under Section 2(11) of the Act. As foremen, their duties include purchasing material, ordering men from the union hall, han- dling field disputes such as straightening out wage questions, dealing with jurisdictional problems, and, in general, handling everything in the field. Dallas 2 The Site Stabilization Agreement provides. JURISDICTIONAL DISPUTES Section 1 The parties hereto agree that all jurisdictional disputes over division of work with crafts affiliated with the Building and Construction Trades Department, AFL-CIO, will be assigned and settled in accordance with the procedural rules and regulations of the Impartial Jurisdictional Disputes Board under the Plan for Settle- ment of Jurisdictional Disputes in the Construction Industry , effec- tive June 1, 1977 or any successor plan. All signatory contractors agree to be stipulated to the procedures of the Impartial Jurisdiction- al Disputes Board for work performed under this AGREEMENT. Section 2 In the event of any dispute as to Jurisdiction of work covered by the terms of this AGREEMENT being claimed by UNIONS other than those affiliated with the Budding and Construc- tion Trades Department , AFL-CIO, then such disputes shall be re- ferred to the International Unions involved, for determination by whatever procedure they may adopt and work shall proceed as as- signed by the individual EMPLOYER until such determination by the International Unions Any given jurisdictional determination shall be implemented immediately by the individual EMPLOYER in- volved 2 The parties stipulated that Bruce-Cadet obtains linemen under the un- derstanding "sporadically " Elgin testified that he knew of at least two and possibly more times that it may have happened Elgin further testi. fied that the agreement is still in place and that within the 2-month period prior to the hearing the Respondent's members have been dis- patched through Local 112's hiring hall to Bruce-Cadet for the purpose of performing electrical work 289 NLRB No. 65 ELECTRICAL WORKERS IBEW LOCAL 77 (BRUCE-CADET) and Reinkens both testified that they had the re- sponsibility of determining whether work should be done by members of the Respondent or members of Local 112. Although a grievance has never arisen under Bruce-Cadet's labor agreement, first- level responsibility for resolution of the grievance would lie with the foremen. Bruce Mackebon, owner of Bruce-Cadet, testified, however, that he would have final authority to resolve any issues in- volving money. Along with their foremen responsi- bilities, Dallas and Reinkens both work with tools on the job as well.4 Both men are members of Local 112. On February 2 the Respondent filed disciplinary charges against Dallas and Reinkens, alleging that they violated certain provisions of the parent Inter- national's constitution.5 The charges alleged that Dallas and Reinkens violated the Respondent's ju- risdiction and "did knowingly and repeatedly do work that belonged to Local #77," thus causing economic harm to the Respondent's members. After trial on May 12, which neither Dallas nor Reinkens attended, the Respondent informed them that they had been found guilty and were being fined $2000 each, with $1800 suspended, and placed on 2 years' probation. The charges against Dallas and Reinkens stemmed from a dispute concerning linework in the 100-D, 200-E, and 300 areas of the Hanford site. According to the Respondent's business agent, Frank LaFaire, after hearing that outdoor work was being done on the Hanford site he visited the site and "noticed they had two ladders up a pole . . . and observed that there was a wire on the ground that they had just pulled out." LaFaire tes- tified that such work is lineman's work, stating that "All wood-pole construction is ours, whether it's low voltage or high voltage." LaFaire stated that the charges against Dallas and Reinkens were also based on reports by other members of the Re- spondent that the two men were performing work that belonged to members of the Respondent. Dallas and Reinkens both testified about the scope of their duties and the nature of the work; however, neither man was specifically asked if he engaged in the work that LaFaire allegedly wit- nessed . Dallas described the work at the 300 area as an electrical upgrade of the emergency system and the 200-E job as a rerouting of a high-voltage line, the routing of a low-voltage line, and the re- hooking of a low-voltage line. Dallas testified that he determined that Local 112 members could do the low-voltage work, but that he obtained linemen 4 Pursuant to the Site Stabilization Agreement, it is within the Em- ployer's discretion to allow foremen to work with tools on the job 5 The International's constitution was not offered into evidence 517 to do the high-voltage work. Dallas stated that while he was not certain whether the Respondent traditionally claimed the low-voltage work, Local 112 had done that type of work in the past. Local 112's business representative, Elgin, testi- fied that after LaFaire observed the pole work being done at the worksite, LaFaire spoke to him about Bruce-Cadet's failure to use linemen to set poles. On learning of the problem, Elgin contacted Bruce Mackebon, and resolved the problem by per- suading Mackebon that linemen should do the work. It is the General Counsel's contention that the Respondent violated Section 8(b)(1)(B) by disci- plining Dallas and Reinkens for their role in inter- preting the informal agreement between the parties and assigning the work to employees represented by Local 112 rather than the Respondent." The Respondent contends, on the other hand, that there can be no 8(b)(1)(B) violation here as it does not have a collective-bargaining agreement with Bruce- Cadet. Furthermore, the Respondent asserts that it did not bring disciplinary action against Dallas and Reinkens because of their 8(b)(1)(B) activities, but because they violated the International's constitu- tion by performing work that belonged to the Re- spondent. Before addressing the parties' contentions, a brief overview of the development of the law under Section 8(b)(1)(B) is in order. Section 8(b)(1)(B) of the NLRA provides: It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce . . . (B) an em- ployer in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances . . . . Originally, the Board construed Section 8(b)(1)(B) as prohibiting only union pressure ap- plied directly to an employer forcing the employer to select a certain representative. The Board, how- ever, expanded its interpretation of Section 8(b)(1)(B) in San Francisco-Oakland Mailers' Local 18 (Northwest Publications), 172 NLRB 2173 (1968), by finding that a union violates Section 8(b)(1)(B) when it disciplines an employer-representative for the manner in which the representative performs 6 The General Counsel also asserts that the Respondent selectively en- forced its constitution by disciplining only Dallas and Reinkens for per- forming work that allegedly belonged to members of the Respondent when it was aware that other employees of Bruce-Cadet were performing the same work We find no ment in the General Counsel's assertion as we agree with the judge that the General Counsel failed to show that the Respondent had knowledge of other employees doing the work in ques- tion Absent knowledge of other individuals performing the work, there can be no selective enforcement. 518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8(b)(1)(B) duties. The Board reasoned that when a union attempts to compel an employer's foremen to take prounion positions in interpreting the collec- tive-bargaining agreement it interferes with the em- ployer's control over its representatives. As a result, the employer is faced with having to replace its foremen "or face de facto nonrepresentation by them." Id. at 2173. The Board's decision in Oak- land Mailers significantly expanded the scope of Section 8(b)(1)(B) by recognizing indirect coercion of the employer's selection of a representative and by recognizing that contract interpretation duties are so closely related to collective-bargaining duties as to make them also 8 (b)(1)(B) activities. In Florida Power & Light v. Electrical Workers Local 641, 417 U.S. 790 (1974), the Supreme Court assumed, "without deciding," that Oakland Mailers fell within the "outer limits" of an appropriate test for 8(b)(1)(B) coercion where union discipline of a supervisor-member is concerned-namely, whether "that discipline may adversely affect the supervi- sor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or col- lective bargainer on behalf of the employer." 417 U.S. at 804-805.7 Subsequently, in American Broad- casting Co. v. Writers Guild, 437 U.S. 411 (1978), the Court embraced the Oakland Mailers indirect coercion test that it had accepted only arguendo in Florida Power. 437 U.S. at 429-430. More recently, in NLRB v. Electrical Workers Local 340, supra, the Supreme Court declined to uphold the Board's finding that a union violates Section 8(b)(1)(B) by discipling supervisor-mem- bers merely for working for an employer who has no collective-bargaining agreement with the union; but it did not retreat from its acceptance of Oak- land Mailers. Thus, while rejecting the view that a union violates Section 8(b)(1)(B) through discipline of members that merely restricts the pool of super- visors from which an employer might choose a representative for the purposes of grievance adjust- ment or collective bargaining, the Court agreed that union discipline of a member is prohibited under Section 8(b)(1)(B) "when that member is en- gaged in § 8(b)(1)(B) activities-that is collective bargaining, grievance adjustment, or some other closely related activity (e.g., contract interpreta- tion, as in Oakland Mailers)." 107 S.Ct. at 2010. The Court thereby rejected the Board's "reservoir The Court declined to uphold the Board's order in that case because it concluded that disciplining supervisors solely for crossing picket lines to perform rank-and-fde work during a strike did not interfere with an employer's control over his supervisors' performance of 8(bx1)(B) func- tions, i.e., collective bargaining or grievance adjustment or related activi- ties doctrine,"8 which did not require that a disciplined supervisor actually have the authority to engage in 8(b)(1)(B) functions on behalf of the allegedly co- erced employer. The Court also held that a critical element of an 8(b)(1)(B) violation is the existence of a collective-bargaining relationship-either actual or prospective-between the union-respond- ent and the employer that is allegedly coerced in its choice of 8(b)(1)(B) representatives. In the ab- sence of such a bargaining relationship, the Court concluded, the possibility that union discipline of supervisor-members would coerce the employer is "too attenuated to form the basis of an unfair labor practice charge." 107 S.Ct. at 2012. Applying Electrical Workers Local 340 to the facts of this case, the judge below dismissed the complaint, reasoning that [a] bargaining relationship is lacking, the record contains no substantial evidence that Respondent aspired to one at relevant times, the reservoir doctrine is no more, and the status of Dallas and Reinkens otherwise as 8(b)(1)(B) grievance adjusters is shaky in light of the Court's observations ... . We disagree with the judge's application of Electri- cal Workers Local 340 to the facts before us. As the Supreme Court concluded, a benchmark requirement for finding an 8(b)(1)(B) violation is that the union either have a collective-bargaining relationship with the employer or be seeking to es- tablish one. Admittedly, there is no signed collec- tive-bargaining agreement between Bruce-Cadet and the Respondent; however, a closer look at the facts reveals that there is a relationship between the two parties sufficient to satisfy the Electrical Workers Local 340 requirement. Here, both the Re- spondent's sister local, Local 112, and the parent International union are signatories to a collective- bargaining agreement with Bruce-Cadet. That agreement specifically provides that when jurisdic- tional disputes arise involving unions not party to the Site Stabilization Agreement, the dispute shall be submitted to the appropriate International union for resolution and, once the dispute is resolved, the s This doctrine was first developed in Toledo Lithographers Locals 15-P and 272 (Toledo Blade Co.), 175 NLRB 1072 ( 1969), enfd. 437 F.2d 55 (6th Cyr 1971) Although the Court in Florida Power, supra, 417 U S at 811 fn. 21, commented on the difference between those who are merely supervisors within the meaning of Sec 2(11) of the Act and those who possess authority to engage in 8(bXl )(B) functions, it did not directly pass on the "reservoir doctrine", but the Court in Electrical Workers Local 340 squarely rejected it. 107 S Ct. at 2010. Our decision in this case in no way rests on the "reservoir doctrine" because, as we explain below, Supervi- sors Dallas and Remkens not only possessed authority to engage in a form of collective bargammg-i.e , contract interpretation and administra- tion on behalf of the Employer-they were actually disciplined by the Respondent for their performance of this function. ELECTRICAL WORKERS IBEW LOCAL 77 (BRUCE-CADET) employer shall abide by that resolution. That is ex- actly what happened here. A jurisdictional dispute arose concerning the electrical linework for Bruce- Cadet. Local 112's members, who were employed by Bruce-Cadet, had an interest in performing the work, as did the Respondent's members, who, pur- suant to their jurisdiction granted by the Interna- tional, had jurisdiction of all outside linework in that geographic area . Because the Respondent was not party to the collective-bargaining agreement, the dispute was submitted to the International for resolution. The International, along with the Re- spondent and Local 112, resolved the situation, in an informal agreement , by deciding Local 112 would refer members of the Respondent to Bruce- Cadet to do linework. Bruce-Cadet willingly ac- cepted this resolution as directed to do so by the Site Stabilization Agreement. Thus, by creating this arrangement, the parties established a relationship between the Respondent and Bruce-Cadet for the purposes of enabling the Respondent's members to do linework for Bruce-Cadet. The Respondent argues that the informal agree- ment does not rise to the level of a collective-bar- gaining agreement and that therefore there can be no 8(b)(1)(B) violation. We find it unnecessary to determine whether the informal agreement, by itself, would rise to the level of a collective-bar- gaining agreement enforceable in law, as it is ap- parent that the parties abided by the informal agreement, as directed to under the Site Stabiliza- tion Agreement, and, by doing so, established a collective-bargaining relationship whereby the Re- spondent's members were able to perform linework for Bruce-Cadet. Having determined that a collective-bargaining relationship existed between the parties, we now turn to the question of whether Dallas and Rein- kens were disciplined for their activities in carrying out 8(bXl)(B) contract interpretation duties or, as claimed by the Respondent, for performing work belonging to the Respondent . For the reasons set forth below, we find that they were fined for car- rying out 8(b)(1)(B) duties. The Respondent claims that it fined Dallas and Reinkens for performing work that belonged to the Respondent. At the time that Dallas and Reinkens were fined, however, the Respondent had no claim to Bruce-Cadet work except as granted through the informal agreement and the Site Stabilization Agreement. These agreements, however, did not specifically state who was entitled to do the work. Consequently, it was necessary to interpret the agreements to determine whether the work per- formed by Dallas and Reinkens belonged to the Respondent or to Local 112. Dallas and Reinkens, 519 in carrying out their responsibilities, interpreted the agreements and determined that the work in ques- tion could be done by members of Local 112. Having so determined, they proceeded to do the work. Under the circumstances, we find that Dallas and Reinkens were fined because they determined that the work in question belonged to Local 112 and, pursuant to that determination, assigned the work to members of Local 112. The Respondent was ac- tively pursuing the work; Dallas and Reinkens had the authority to determine, on their employer's behalf, who should perform the work; Dallas and Reinkens made that decision, adverse to the inter- ests of the Respondent; and they were subsequently fined by the Respondent. The Respondent's asser- tion that Dallas and Reinkens were fined only for doing work belonging to the Respondent ignores the context in which the discipline was imposed.9 Consequently, we find that Dallas and Reinkens were fined for their role in interpreting the infor- mal agreement and the Site Stabilization Agree- ment in determing that the work in question be- longed to members of Local 112. 10 Because, as in Oakland Mailers, that discipline constituted a direct punishment for the manner in which Dallas and Reinkens carried out 8(b)(1)(B) duties for Bruce- Cadet, we find that the Respondent violated Sec- tion 8(b)(1)(B) by imposing that discipline, and we order the Respondent to take action set forth in our Order, below." ORDER The National Labor Relations Board orders that the Respondent, International Brotherhood of Electrical Workers, Local 77, Seattle, Washington, its officers, agents, and representatives, shall 1. Cease and desist from (a) Fining, placing on probation, or otherwise disciplining Dennis Dallas and James Reinkens, or 9 We do not question the Respondent's belief that the work Dallas and Reinkens were performing belonged to its members; however, as the agreements had to be interpreted to determine who was entitled to the work, the Respondent was not free to impose its position on the Employ- er by fining the Employer's representatives The fact that subsequent to the incidents that gave rise to Dallas and Reinkens being fined, the Re- spondent, Local 112, and Bruce-Cadet reached an understanding that members of the Respondent were entitled to do the pole work , does not support the Respondent's claim that Dallas and Reikens were fined for doing work belonging to the Respondent 's members. Indeed, the subse- quent understanding supports the conclusion that the agreements had to be interpreted to determine which Local was entitled to the work. 10 In light of our finding that Dallas and Reinkens were fined for per- forming contract interpretation duties, we find it unnecessary to pass on their status as 8(bXl)(B) grievance adjusters. 11 The General Counsel's request for a visitatorial clause is denied as the circumstances of this case do not "demonstrate a likelihood that [the] [R]espondent will fail to cooperate or otherwise evade compliance." See Cherokee Marine Terminal, 287 NLRB 1080 (1988). 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD any other representative of Bruce-Cadet, Inc., for their performance of 8(b)(1)(B) duties. (b) In any like or related manner restraining or coercing Bruce-Cadet, Inc. in the selection and re- tention of its representatives for the purposes of collective bargaining or the adjustment of griev- ances. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the fines levied against Dennis Dallas and James Reinkens. (b) Refund to Dennis Dallas and James Reinkens any moneys held on account of the fines assessed against them with interest to be computed in the manner prescribed in New Horizons for the Retard- ed.12 (c) Restore Dennis Dallas and James Reinkens to membership in good standing and remove all records of the fines against Dallas and Reinkens and their probation from its files. (d) Post at its offices and meeting halls and other places where notices to its members are customari- ly posted copies of the attached notice marked "Appendix."13 Copies of the notice, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 12 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 13 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fine, place on probation, or other- wise discipline Dennis Dallas and James Reinkens, or any other representative of Bruce-Cadet, Inc., for their performance of 8(b)(1)(B) duties. WE WILL NOT in any like or related manner re- strain or coerce Bruce-Cadet, Inc. in the selection and retention of its representatives for the purposes of collective bargaining or the adjustment of griev- ances. WE WILL rescind the fines levied against Dennis Dallas and James Reinkens. WE WILL refund to Dennis Dallas and James Reinkens any moneys held on account of the fines assessed against them, with interest. WE WILL restore Dennis Dallas and James Rein- kens to membership in good standing and remove all records of the fines against them. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS , LOCAL 77 S. Nia Renei Cottrell, Esq., for the General Counsel. Richard Robblee, Esq. (Hafer, Price, Rinehart & Schwerin), of Seattle, Washington, for the Respondent. Bruce Mackebon, of Kennewick, Washington, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was tried in Kennewick, Washington, on 25 June 1987.1 The charge was filed by Bruce-Cadet, Inc., on 16 March 1987. The complaint, issued on 22 April , alleges that International Brotherhood of Electrical Workers, Local 77 (Respondent) violated Section 8(b)(1)(B) of the National Labor Relations Act (Act) about 19 February 1987 by: Fil[ing] charges against [Dennis] Dallas and [James] Reinkens because said individuals performed super- visory functions for Bruce-Cadet, which does not have a collective-bargaining relationship with [Re- spondent] and does not employ members of [Re- spondent].2 I. JURISDICTION AND LABOR ORGANIZATION Bruce-Cadet is an electrical contractor in Kennewick. The parties agree and I find that it is an employer en- gaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. The parties also agree and I find that Respondent is a labor organization within Section 2(5) of the Act. I This manner of setting forth dates conforms with the wishes of the Board 2 Sec 8(b)(1)(B) provides "It shall be an unfair labor practice for a labor organization , to restrain or coerce an employer in the se- lection of his representatives for the purposes of collective bargaining or the adjustment of grievances " ELECTRICAL WORKERS IBEW LOCAL 77 (BRUCE-CADET) 521 IL THE ALLEGED MISCONDUCT A. Facts Dallas and Reinkens have been foremen for Bruce- Cadet for several years. They indisputably are supervi- sors for purposes of the Act. Bruce-Cadet is party to a labor agreement with a sister local of Respondent, Electrical Workers Local 112. Local 112's jurisdiction is confined to inside or wire- men's work. As the complaint acknowledges, Bruce- Cadet does not have a bargaining relationship with Re- spondent, whose jurisdiction encompasses outside or line- men's work. Dallas and Reinkens accordingly belong to Local 112, but not Respondent. Much of Bruce-Cadet's work is as a subcontractor on the Hanford Nuclear Reservation in the Tn-Cities area of Washington.3 It and Local 112, but not Respondent, are among several contractors and labor organizations subject to a Site Stabilization Agreement, so called, which dictates terms and conditions of employment for construction work at Hanford.4 Local 112's business manager, George Elgin, testified that this agreement "created considerable problems in jurisdiction" between Respondent and his local; and that the two locals and Bruce-Cadet consequently fashioned an informal under- standing whereby Respondent provides linemen through Local 112's hiring hall when Bruce-Cadet needs outside electricians at Hanford.5 On 2 February 1987, Respondent's business agent, Frank LaFaire, preferred two disciplinary charges against Dallas and one against Reinkens, alleging that they had violated article XXVII, section I, subsections 1 and 7, of the parent International's constitution since Oc- tober 1986. The constitution is not in evidence. One of the charges against Dallas elaborated: Brother Dallas repeatedly violated Local 77's juris- diction, setting poles, cable splicing, terminations, etc. He was told on several occasions that he was doing our work but did not cooperate with us. I talked to Local #112 business manager and to the owner of the company both with negative results. The other charge against Dallas and that against Rein- kens was identical, alleging that each, "along with" the other, "did knowingly and repeatedly do work that be- longed to Local #77," thus causing "economic harm to our members." By letters dated 19 February, Respondent's recording secretary informed Dallas and Reinkens of the charges and that they were to appear before Respondent's trial board in Seattle on 17 March to answer them. The let- 3 The Tn-Cities consist of Richland, Kennewick , and Pasco * The agreement, entered into on 10 September 1984, runs from year to year, renewing automatically absent timely notice to the contrary Sig- natory parties are J A Jones Construction Services Company, Morrison- Knudsen Company, and Building & Construction Trades, AFL-CIO 5 Previous to this understanding, apparently reached in 1985 , Bruce- Cadet had denied Respondent's request that they enter into a labor agree- ment covering outside work The parties stipulated that Bruce-Cadet ob- tains linemen under the understanding "sporadically", and Elgin testified, "I know of at least twice, and I believe three times, and it may have been more " ters depicted the allegedly violated constitutional provi- sions as follows: Article XXVII, Sec. 1, subsection (1): Violation of any provision of this Constitution and the rules herein, or the bylaws, working agreements, or rules of a L.U. local union. Subsection (7): Wronging a member of the IBEW by any act or acts (other than the expression of views or opinions) causing him physical or econom- ic harm. Respondent later acceded to the requests of Dallas and Reinkens that the proceeding be moved to the Tri-Cities, and the trial board convened in Kennewick on 12 May. Neither Dallas nor Reinkens attended. Respondent subse- quently informed them that they had been found guilty as charged and were being fined $2000 each, with $1800 suspended, and placed on 2 years' probation. The conduct for which Dallas and Reinkens ostensibly were charged took place in the 100-D, 200-E, and 300 areas at Hanford. The three projects ran from about Oc- tober 1986 to February 1987, and Dallas and Reinkens worked with the tools on all.6 One involved pulling new conductors up poles and hooking up disconnects, another dealt with setting several poles and rerouting a high line, and the other consisted of upgrading an emergency elec- trical system. LaFaire testified that, having heard that Dallas and an- other wireman (not Reinkens) were doing linemen's work, he visited one of the sites on 2 February and "no- ticed they had two ladders up a pole." He continued: I drove up there and observed the wire [on the] ground that they had just pulled out. They had two ladders up a pole that they had just pulled this wire out. It was disconnected by the line crew at Rock- well, and they pulled the wire from the pole to the switch house. LaFaire added that this is linemen's work, explaining, "All wood-pole construction is ours, whether it's low voltage or high voltage." LaFaire did not cite an instance in which he saw Rein- kens encroach on Respondent's jurisdiction, and conced- ed that some of the conduct underlying his charges "was reported by other people." He denied that the charges were prompted in any way by Dallas' or Reinkens' per- formance of supervisory duties. Asked, then, why he preferred charges against only them, he replied (in seem- ing contradiction of his testimony elsewhere that he saw and heard about Dallas and another wireman in flagrante delicto) that he "didn't witness any other employees doing it" and that "they were the only two that were in- volved with [seen by] the witnesses." The record does not conclusively establish whether Dallas and Reinkens in fact violated Respondent's juris- diction. Neither denied doing so, however, and the evi- 6 The agreement between Bruce-Cadet and Local 112 permits a super- visor to work with the tools as long as the crew under him does not exceed five employees Apparently all the projects in question qualified 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dence overall raises a respectable likelihood that they did. Local 112's Elgin testified that LaFaire spoke to him in December 1986 or January 1987 about Bruce-Cadet's failure to use linemen to set poles in the 100-D area; and that he consequently prevailed upon Dallas, Reinkens, and Bruce-Cadet's owner/general manager, Bruce Mack- ebon, to have linemen complete the work. Regarding Dallas' and Reinkens' duties as foremen, Mackebon testified: "They purchase material; they order men from the union; they handle any . . . field disputes." Asked what he meant by field disputes, Mackebon re- plied: I remember one recent situation where a man said he was not being paid the proper amount, so they [Dallas or Reinkens] called the office and got it straightened out so that everybody is happy. Mackebon added that Dallas and Reinkens deal with jurisdictional problems "right on the spot," and in gener- al "handle everything in the field except what [he] would call top-level management functions."7 Mackebon testified that, while a grievance has never arisen under Bruce-Cadet's labor agreement, first-level responsibility for resolution would lie with Dallas and Reinkens should it happen. Mackebon would take over should they not settle the matter, he went on, and "final authority would rest with" him in any case "if it involved money." B. Conclusion After the present complaint issued, but before trial, the Supreme Court markedly narrowed the scope of Section 8(b)(1)(B) with its decision in NLRB v. Electrical Workers IBEW Local 340.8 Previous to that decision, the Board had taken the view that "persons who are supervisors within the mean- ing of the Act are employer representatives within the meaning of Section 8(b)(1)(B)" even if not "actually vested with authority to act for [their] employer in col- lective bargaining or the adjustment of grievances."9 It reasoned that "such individuals form the logical 'reser- voir' from which the employer is likely to select his rep- resentatives for collective bargaining or grievance adjust- ment."' o A union consequently violated 8(b)(1)(B), under prior Board law, when it visited disciplinary sanctions on a su- pervisor-member "unless the offense occasioning the dis- cipline involved a matter purely of internal union admin- istration, unrelated, either directly or indirectly, to any dispute between the union and the employer," or unless the "supervisor-member [was] disciplined after he [had] engaged in more than a minimal amount of rank-and-file work during a strike."" By matters of internal union ad- 7 Regarding jurisdictional problems, Reinkens described an instance in which he and representatives of Local 112 and a general contractor "hammered out a deal" to stop the general contractor's use of carpenters on electrical work. 8 107 S.Ct 2002 (1987) 9 Electrical Workers IBEW Local 113 (Pride Electric), 283 NLRB 39, 41 (1987), and cases there cited 10 Ibid l i Ibid ministration, the Board contemplated such as "failing to pay . . . union dues or . . . disturbing a union meet- ing."12 Further, the Board read the word "grievances" in 8(b)(1)(B), and in the Section 2(11) definition of supervi- sors, to embrace employee grievances unrelated to col- lective bargaining.' 3 This meant, the so-called reservoir doctrine aside, that a supervisor who dealt with employ- ee complaints or problems relating to wage rates, job as- signments, time off, etc., was an 8(b)(1)(B) grievance ad- juster.'4 These several principles applied regardless of the exist- ence of a collective-bargaining relationship.' 5 Were they still intact, I would have little difficulty concluding that Respondent violated Section 8(b)(1)(B) as alleged. Dallas and Reinkens, as supervisors, would be deemed griev- ance adjusters by virtue of the reservoir doctrine; and Respondent's actions against them did not involve mat- ters "purely of internal union administration," nor did they have anything to do with the performance of rank- and-file work during a strike. Even without the reservoir doctrine, this same result would have obtained, for Dallas and Reinkens in fact were authorized to adjust certain grievances-having to do with wage rates, for in- stance-thus satisfying the Board's definition of griev- ance adjusters, regardless. In NLRB v. Electrical Workers IBEW Local 340, how- ever, the Supreme Court declared:' 6 We conclude that discipline of a supervisor-member is prohibited under § 8(b)(1)(B) only when that member is engaged in § 8(b)(1)(B) activities-that is, collective bargaining, grievance adjustment, or some other closely related activity . . . . [A] super- visor cannot be disciplined for acts or omissions that occur during performance of Sec. 8(b)(1)(B) duties if he or she has none. We therefore reject the NLRB's "reservoir doctrine." [Emphasis added.]'7 The Court continued, overriding the Board in another critical respect:' 8 12 Ibid 18 Ibid 14 Ibid 16 Ibid 16 At 107 S Ct 2010 17 Moreover, although not passing on the Board's definition of 8(b)(l)(B) grievances, the Court suggested (at 107 S.Ct 2012 fn 12) that it is overbroad The NLRB held in the alternative that because [the supervisor- member] did adjust personal grievances-as opposed to contract grievances-he qualified as a § 8(b)(1)(B) supervisor, even without application of the reservoir doctrine [W]e need not decide whether the Board's broad definition of grievance-and hence of "grievance adjustment"-is consistent with the narrow purpose and scope of § 8(bXl)(B) We observe, however, that in Florida Power the Court said that grievance adjustment is a "particular and explicit- ly stated activity" 417 US at 803. Other sections of the Act similarly suggest a narrow meaning See also Com- ment, Union Discipline of Supervisor-Members, 1976 Wis L Rev at 879 ("[I]n Florida Power the Supreme Court appears to have defined both [collective bargaining and grievance adjustment] very narrow- ly ") 18 At 107 S Ct 2012 ELECTRICAL WORKERS IBEW LOCAL 77 (BRUCE-CADET) We find that the absence of a collective-bargaining relationship between the union and the employer, like the absence of § 8(b)(l)(B) responsibilities in a disciplined supervisor-member, makes the possibility that the Union's discipline of [supervisor-members] will coerce [their employers] too attenuated to form the basis of an unfair labor practice charge. The Court concluded: t e [U]nion discipline directed at supervisor -members without § 8(b)(1)(B) duties, working for employers with whom the union neither has nor seeks a collec- tive-bargaining relationship, cannot and does not ad- versely affect the performance of § 8(b)(l)(B) duties. Consequently, such union action does not coerce the employer in its selection of § 8(b)(1)(B) representatives. The unqualified tenor of these passages seemingly dic- tates open-and-shut dismissal of the present complaint. A bargaining relationship is lacking,2 ° the record contains no substantial evidence that Respondent aspired to one at relevant times,21 the reservoir doctrine is no more, and the status of Dallas and Reinkens otherwise as 8(b)(1)(B) grievance adjusters is shaky in light of the Court's obser- vations reported above in footnote 17. But, to dismiss at this point would be premature, for the Court articulated one exception to the requirement of an extant or sought-after bargaining relationship, and hinted at another:22 Direct coercion of an employer's selection of a § 8(b)(1)(B) representative would always be a § 8(b)(1)(B) violation, whether or not the union has or seeks a bargaining relationship with an employer. This case does not present the question whether in- direct coercion of an employer in its selection of a representative through a union's selective enforce- ment of a facially uniform rule would constitute a violation of § 8(b)(l )(B) without regard to whether the union has a bargaining relationship with the em- ployer. The Court of Appeals has suggested that it 19 At 107 S Ct. 2015. 20 I am unpersuaded that the informal and sporadically applicable ju- risdictional understanding among Respondent, Bruce-Cadet, and Local 112 satisfies this requirement. More specifically, I fail to see that it en- larges the potential for abuse of the type Sec 8(bXl)(B) was enacted to prevent See the Court's discussion at 107 S.Ct 2013-2015 s' The most that can be said, on the present record , is that Respondent was seeking to enforce the jurisdictional understanding . Inasmuch as the understanding itself does not give rise to the requisite relationship be- tween Respondent and Bruce-Cadet (see preceding footnote), Respond- ent's strivings to enforce it can hardly be construed as for the larger pur- pose of seeking such a relationship 22 At 107 S.Ct. 2012 fn. 13. 523 might. See NLRB v. International Brotherhood of Electrical Workers, 714 F.2d at 872 ("The case may be different if there is evidence that the union's actual purpose in enforcing its bylaw was to inter- fere with the employer's selection."). By "direct coercion," the Court presumably had in mind activities against an employer qua employer, such as picketing. The conduct in issue plainly is not of that character. The question becomes, then, whether Respondent's ac- tions against Dallas and Reinkens betray selective en- forcement of the International constitution against super- visor-members for the purpose of interfering indirectly with Bruce-Cadet's choice of 8(b)(1)(B) representa- tives.23 I conclude, on the record before me, that they do not. LaFaire's professed belief that Dallas and Rein- kens had violated Respondent's jurisdiction probably was accurate; and, even if not, was not so flimsily based as to bespeak pretext. Further, although LaFaire initiated no action against the nonsupervisory wireman he apparently saw teaming with Dallas on certain of the disputed work, and weakened his credibility by testifying first that he did, then that he did not, see or hear about anyone but Dallas and Reinkens doing such work, those argu- able instances of disparate treatment and dissimulation are too isolated and otherwise inconclusive to satisfy the General Counsel's burden of proving selective enforce- ment calculated to interfere with Bruce-Cadet's choice of representatives. Summarizing, Respondent's actions against Dallas and Reinkens did not adversely affect their performance of 8(b)(1)(B) duties, if any, and so could not have coerced Bruce-Cadet in its selection of representatives to perform those duties, because (a) Respondent neither had nor sought a bargaining relationship with Bruce -Cadet at rel- evant times, and (b) given that deficiency and indulging, arguendo, the assumption stated above in footnote 23, the General Counsel has not met her burden of proving that Respondent selectively enforced its constitution against Dallas and Reinkens to interfere with Bruce- Cadet's freedom of choice. The complaint therefore lacks merit. CONCLUSION OF LAW Respondent did not violate the Act as alleged.24 [Recommended Order for dismissal omitted from pub- lication.] za Assuming for argument that selective enforcement against supervi- sor-members would be improper, bargaining relationship or not. 24 In light of this result and the underlying rationale , I need not ad- dress whether Dallas' and Reinkens' duties made them 8 (bXIXB) griev- ance adjusters