Roofers Local 81 (Beck Roofing)

ROOFERS LOCAL 81 (BECK ROOFING) United Union of Roofers , Waterproofers and Allied Workers, Local No. 81, AFL-CIO and Beck Roofing Company, Inc. Case 32-CB-2556 May 26, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 17,, 1988, Administrative Law Judge Michael D. Stevenson issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross- exceptions and a brief in support of the administra- tive law judge's decision and in support of its cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings, and conclusions only to the extent consistent with this Decision and Order. The critical facts may be summarized as follows. On May 16, 1986,1 prior to the August 1 expiration of the collective-bargaining agreement between the Respondent and the Employer, and following sev- eral months of discussion among employee-mem- bers about whether to go nonunion after the expi- ration of the contract,2 the Employer held a meet- ing of unit employees on company time and on company property and announced that, in light of its financial condition, it would either have to go nonunion or go out of business.3 Employee Joseph Martinez decided during the meeting to leave the Union and, as a direct result of the Employer's advice, prepared a petition that he and other em- ployee members signed.4 Martinez left the petition on Merchant's secretary's desk, where it remained on public display from Friday, May 16, until Monday, May 19. On that Monday, Martinez ob- served the petition on the secretary's desk on re- porting to work, and then requested the secretary to mail the petition to the Respondent, which she did. The Respondent, pursuant to a union trial, sub- sequently fined Martinez, Adam Cervantes, Albert i All dates that follow are in 1986 2 As noted by the judge, the collective-bargaining relationship between the Employer and the Union ended on August 1 3 Carol Merchant, an office manager, conducted the meeting with Owner Charlie Beck present The judge found that "for purposes of her role on 16 May, Merchant was a manager under the Act [footnote omit- ted] a The petition, dated May 16, stated that "[w]e agree to do whatever is necessary to keep this company from going belly-up and to keep people working on a competitive bidding program which is in actuality going non-union. I therefore don't want the Union anymore " 285 Hill, and Steve Bussell $1500 each and assessed against each of them a $400 reinitiation fee for initi- ating and/or signing the petition. Bussell, unlike the others, was not notified about the fine and the reinitiation fee imposed on him. The judge found that the General Counsel had presented a prima facie case that the Union had violated Section 8(b)(1)(A) of the Act by imposing the disciplinary fine and the reinitiation fee on these employee members because they either initi- ated or supported the petition, which he character- ized as a "petition to repudiate the Union [footnote omitted]." The judge further found that through the conduct described above the petition "was tainted by employer coercion and involvement" and that the "employer [had] engaged in conduct calculated to erode employee support for the Union."5 The judge concluded that because of the Employer's involvement in the petition as de- scribed above, the employee-members' action in initiating and/or signing the petition was not pro- tected activity and thus their Section 7 rights were not affected by the Union's discipline. Accordingly, he dismissed the complaint. We agree with the judge that the General Coun- sel made out a prima facie case that the Union vio- lated Section 8(b)(1)(A) of the Act when it disci- plined the employees. We find, however, contrary to the judge, that employee-members were engaged in protected concerted activity when they initiated and/or signed the petition, notwithstanding the Employer's involvement in it. See Sheet Metal Workers Local 170 (Able Sheet Metal), 225 NLRB 1178, 1181 (1976). We disagree with the judge's conclusion that Able Sheet Metal is inapposite. There, employees were fined by the respondent union for returning to work during the course of a labor dispute. The employees had resigned from the union before returning to work but the re- spondent, inter alia, argued that no violation should be found in the fines because the employer had "initiated or implanted the suggestion" that led the striking employees to resign. In that case, the judge, whose decision was adopted by the Board, assumed arguendo that the employer did condition return to work on resignation from the union. He further indicated, however, that there was no showing that the employer had engaged in that conduct with the "intent of deliberately causing the [R]espondent to commit an unfair labor practice when it learned of those resignations." He found even more significant that there was no evidence that the employees were participants in any such scheme or that the respondent had acted on the S The General Counsel has not excepted to these findings 294 NLRB No. 20 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD belief that the employees had engaged in such a scheme. Noting that the respondent there did not file an unfair labor practice charge , the judge in Able Sheet Metal, quoting Communication Workers (Ohio Telephone), 120 NLRB 684, 687 (1958), enfd. 266 F.2d 823 (6th Cir. 1959), affd. as modified 362 U.S. 479 ( 1960), found that the union was not free to "restrain or coerce employees in the exercise of their statutory rights merely because the Company may also have engaged in misconduct ." 225 NLRB at 1181. In the instant case, as a direct result of the Em- ployer's initiative and advice, Martinez prepared a petition that he and other employees signed. Here, as in Able Sheet Metal, however, there is no show- ing that the Employer had engaged in that conduct with the intent of deliberately causing the Re- spondent to commit an unfair labor practice when it learned of the petition . Moreover, here, as in Able Sheet Metal, there is no evidence that the em- ployees were participants in any such scheme or that the Respondent had acted on the belief that the employees engaged in such a scheme . Thus, we also conclude here that the misconduct of the Em- ployer does not confer on the Respondent the free- dom to restrain or coerce employees in violation of Section 7 of the Act. Accordingly, we find, con- trary to the judge, that the Respondent violated Section 8(b)(1)(A) of the Act when it imposed a fine and reinitiation fee on these employees for their involvement in the petition . See generally Molders Local 125 (Blackhawk Tanning), 178 NLRB 208 (1969). The judge additionally found that employee Bus- sell was not coerced by the Respondent because, although he signed the petition, he did not testify at the union trial and the parties stipulated that he did not receive notification of any fine and/or rein- itiation fee imposed on him pursuant to the trial. Relying on Castaways Management. 285 NLRB 954 (1987), enfd. 131 LRRM 2142 (11th Cir. 1989), the judge found that [a]ction taken in contemplation of committing unfair labor practices is not, without more, itself an unfair labor practice . Instructions to perform unfair labor practices which are not disclosed to a member is [sic] not a violation of the Act. Contrary to the judge, we find that the Respond- ent's violation of Section 8(b)(1)(A) of the Act ex- tended to employee Bussell because the facts show that the Respondent had conducted a trial and im- posed a fine and reinitiation fee against him for his participation in the petition . Here, unlike the situa- tion in Castaways Management, 6 the Respondent did not merely contemplate committing an unfair labor practice but admittedly engaged in the con- duct alleged in the complaint and thus carried out the unlawful action.7 AMENDED CONCLUSIONS OF LAW Substitute the following for paragraph 3 of the judge's Conclusions of Law and add the following as paragraph 4. "3. By imposing fines and reinitiation fees on Joseph Martinez, Adam Cervantes, Albert Hill, and Steve Bussell because these employee -members ini- tiated and/or signed a petition stating they want to go nonunion, the Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act. "4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act." THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) of the Act, we shall order that it cease and desist, and that it take certain affirmative action to effectuate the policies of the Act. Ac- cordingly, we shall order the Respondent to re- scind the unlawfully imposed fines and reinitiation fees, remove any reference to them from its files and records, immediately notify the employees of such action, and reimburse them for any money 6 In Castaways Management, the Board found that the mere issuance of instructions to supervisors to perform unlawful actions is not a violation of the Act if these instructions are neither carried out nor disclosed to the employees Chairman Stephens did not participate in Castaway Manage- ment and notes that in light of his and former Member Babson 's separate opinion in Resistence Technology, 280 NLRB 1004 ( 1986), he reserves taking a position on the issue as presented in that case 7 We reject the Respondent 's argument in its cross-exceptions that its discipline did not violate Sec 8 (b)(1)(A) because the employee-members' petition did not invoke the processes of the Board In Blackhawk Tan- ning, supra, the Board found the union violated Sec 8(b)(1)(A) by fining a member who had filed a decertification petition with the Board That filing directly invoked the Board 's processes However, in subsequent cases, the Board has applied the reasoning of Blackhawk Tanning to cover decertification-like activity that is an initial step in access to the Board, even though no petition was filed with the Board See, e g, Ma- chinists Local 66 (Smith-Lee Co), 182 NLRB 849 (1970), Operating Engi- neers Local 965 (Elcon Pipeliners), 247 NLRB 203 (1980) Thus, we find the failure to file the petition here with the Board to be immaterial Moreover, we view the activities here as akin to others for which a union may not discipline members See, e g, Machinists Local 707 (United Tech- nologies), 276 NLRB 985 (1985) (8(b)(1)(A) violation to discipline em- ployees for intraunion activities in opposition to incumbent union leader- ship), Operating Engineers Local 400 (Hilde Construction), 225 NLRB 596 (1976) (8(b)(l)(A) violation to discipline employees for questioning the wisdom of a union's conduct as the employees ' bargaining representative and trying to redirect the union 's policies) ROOFERS LOCAL 81 (BECK ROOFING) that may have been collected , with interest as pre- scribed in New Horizons for the Retarded.8 ORDER The National Labor Relations Board orders that the Respondent, United Union of Roofers, Water- proofers and Allied Workers, Local No. 81, AFL- CIO, Hayward, California, its officers, agents, and representatives, shall 1. Cease and desist from (a) Imposing fines and reinitiation fees on Joseph Martinez, Adam Cervantes, Albert Hill, and Steve Bussell because these employee-members initiated and/or signed a petition stating that they want to go nonunion. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the fines and reinitiation fees levied against Joseph Martinez, Adam Cervantes, Albert Hill, and Steve Bussell because these employee- members initiated and/or signed a petition stating they want to go nonunion; remove any reference to the fines and fees from its files and records; im- mediately notify these employees of this action; and reimburse them for any portion of the fines or reinitiation fees that may have been collected, with interest. (b) Post at its business office and meetings halls copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Re- gional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 32 signed copies of the notices for posting by Beck Roofing Company, if the Company be willing, in places where notices to employees are customarily posted. Copies of the notice, to be furnished by the 8 283 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) B 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 " 287 Regional Director for Region 32, after being duly signed by Respondent's authorized representative, shall be returned forthwith to the Regional Direc- tor. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 impose fines and reinitiation fees on Joseph Martinez, Adam Cervantes, Albert Hill, and Steve Bussell because these employee-members initiated and/or signed a petition stating that they wanted to go nonunion. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the fines and reinitation fees levied against Joseph Martinez, Adam Cervantes, Albert Hill, Steve Bussell because these employee- members initiated and/or signed a petition stating they wanted to go nonunion; and WE WILL remove any reference to the financial fees from our files and records; and WE WILL immediately notify these employees of this action and reimburse them for any portion of the fines or reinitiation fees that we may have collected, with interest. UNITED UNION OF ROOFERS, WATER- PROOFERS AND ALLIED WORKERS, LOCAL No. 81, AFL-CIO Nancy Howard and Elaine Climpson, Esqs., for the Gener- al Counsel. David Rosenfeld, Esq., of San Francisco, California, for the Respondent Union. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at Oakland, California on 2 December 1987,1 pursuant to a Complaint and Notice of Hearing issued by the Regional Director for the Na- tional Labor Relations Board for Region 32 on 11 March 1987, and which is based on a charge filed by Beck Roofing Company, Inc. (Charging Party or Employer) i All dates herein refer to 1986 unless otherwise indicated 288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on 2 February 1987 and on first-amended charge filed on 11 February 1987. The complaint alleges that United Union of Roofers, Waterproofers and Allied Workers, Local No. 81, AFL-CIO (Respondent) has engaged in certain violations of Section 8(b)(1)(A) of the National Labor Relations Act, as amended (the Act). Issues Whether Respondent imposed fines and reinitiation fees on certain of its members because members engaged in conduct protected by Section 7 of the Act: signing a petition stating they no longer wanted to be represented by Respondent and engaging in related conduct' intended to lead to Respondent's decertification. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent.2 On the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent admits that at all times material, the Em- ployer, Beck Roofing Company, Inc.,-is a California cor- poration engaged in the roofing business, constructing and reconstructing roofs on a retail and non-retail basis and having an office and place of business located in Hayward, California. Respondent further admits that during the past year, in the course and conduct of the Employer's business, the Employer derived gross reve- nues in excess of $500,000. Respondent further admits that during the past year, in the course and conduct of the Employer's business, the Employer has purchased and received goods or services valued in excess of $5,000 from suppliers outside the State of California. Accord- ingly, I find, that the Employer is engaged in commerce and is a business affecting commerce' within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find , that it is a labor organi- zation within the meaning of Section 2(5) of the Act III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts For 30 years or longer , the Employer and Respondent have maintained a collective-bargaining relationship This relationship ended as of 1 August , when the last 2 Before the hearing began, the court reporter's recording equipment repeatedly malfunctioned This caused me in annoyance to reflect on some other recent personal experiences where the Board's contract court reporter had failed to provide satisfactory service (R p 3) Now, the of- ficial record of the General Counsel's Exhibits fails to contain Exhs 3, 4 and 5 which were admitted into evidence I cannot account for the miss- ing documents For purposes of deciding this case , I have used duplicate exhibits obtained from the General Counsel labor agreement expired. The Employer is now operat- ing non-union. Because the roofing business is seasonal, the number of unit employees employed by Beck Roofing Company varies from 10 employees in the slow summer months to 18 in the busy fall. Many unit employees are transients so turnover is high. Some, however, have been with the Employer for many years. Three of these long-term em- ployees, Joe Martinez, Adam Cervantes, and Albert Hill, all alleged to be discriminatees, testified at the hearing. A fourth alleged discriminatee, Steve Bussell, did not testi- fy The testimony of the three witnesses will be discussed below. Beck Roofing Company is owned by Charlie Beck. Other employees who work in the office include Sam Merchant, an estimator, his wife, Carol Merchant, office manager, and a secretary. None of these persons testified. Beginning in early 1986, the unit employees began peri- odic discussions as to whether they would continue to work under a collective-bargaining agreement after the current contract expired at the end of July. The series of employee conversation were like those which occurred each time the labor agreement was expiring. This time, however, different circumstances intervened. In early May, Carol Merchant was hired as office manager. Her exact status, hours and duties are unclear. Apparently, she is a part-time employee, without regular hours and possibly without regular duties. Sometimes unit employees would go several weeks without seeing her in the office or shop where they would spend a few minutes each day before going on their respective assign- ments. In terms of this case, Carol Merchant's primary role was to hold a 15-20 minute meeting at the shop for unit employees on Friday morning, 16 May.3 At this meeting attended by the owner Beck, Sam Merchant and most unit employees, Carol Merchant an- nounced that the purpose of the meeting was to discuss the financial condition of the Company. Merchant then reminded employees that the contract would be expiring soon and that the Company could not stay in business if it signed another contract. To prove her point, Merchant used charts reflecting the company losses. In light of the Company's condition, according to Merchant, only three options were available: Charlie Beck getting a job with another company as an estimator, or closing the doors al- together these two options were in fact a single option of having the company go out of business, or going non- union. Employees were very depressed by this information and the effect was immediate. Martinez, a 30-year em- ployee and union member, indicated at the meeting that he for one had made up his mind. He decided on the spot what he had been considering for some time prior to the meeting-to stay with the company. Put different- ly, he decided to leave the Union. After orally stating his decision, Martinez was advised by Merchant that he 9 The record contains evidence with respect to a second meeting hosted by Carol Merchant Apparently held about a week before the meeting of 16 May, this other meeting was technically limited to foremen only and was an attempt by management to increase production It has little or nothing to do with the issues presented by this case ROOFERS LOCAL 81 (BECK ROOFING) would need to put something in writing . As a direct result of Merchant's advise, Martinez wrote out a peti- tion ,which he then signed . The petition reads as follows: 5-16-86 We agree to do what ever is necessary to keep this company from going belly -up and to keep people working on a competitive bidding program which is in actuality . . . going non-union. I therefore don't want the Union anymore. Signed: [G.C. Exh. 3] After signing the petition , Martinez told the other em- ployees that anyone else who wanted to stay with the company should sign it . Then Martinez began his work- day. Other employees including Cervantes and Hill also signed the petition. 'On the following Monday, Martinez reported to work at the usual time and observed the petition on the secre- tary's desk, where he had left it the preceding Friday. Martinez then requested the secretary to mail the peti- tion to the Respondent, which she did. At a lunch meeting with a union official a few days later, Martinez referred to the petition by saying that something would be arriving in the mail for you. About a week after this, Respondent's business agent named Joseph Lagosh came to the shop and asked Martinez if he had sent the petition . When Martinez acknowledged sending the petition , Lagosh said this is why the Union is losing contractors and why so may nonunion contractors are entering the area . Lagosh then stated he was going to go after Martinez. On or about 1 August, Martinez received a letter from the Union. It reads as follows: Date : July 30, 1986 Dear Sir: You are hereby cited to appear before the Trial Board of Local No . 81 to answer charges prefered (sic) against you as specified below Your case will be heard August 12, 1986 8:00 P.M. in the Labor Temple, 8400 Enterprise Way, Oakland, California. Failure to appear may result in your being found guilty by default. /s/ Thomas J. Moretti Financial Secretary-Treasurer I, Joseph Lagosh, the undersigned, hereby charge Joseph Martinez, membership No. 98064, Local Union No. 81. (x) Constitution of the Brotherhood Article IX, Section 7.(2) & Section 7.(4) page 30 STATEMENT OF FACTS SUBSTANTIATING CHARGES Brother Martinez had decided to go Non-Union with his present employer Beck Roof Co. Also, Brother Martinez has convinced other Union mem- 289 bers in the Beck shop to go Non-Union along with him. Enclosed is a copy of the letter of facts which has been signed by brother Martinez and others. Address of accused: 3229 Keith Ave. Castro Valley, Ca. 94546 /s/ Joseph Lagosh Business Manager Local #81 Title and Organization 7-30-86 Date of signature [G.C. Exh. 4] On 12 August, Martinez attended the hearing referred to above. Martinez admitted at the hearing that he had decided to stay with the company, but he denied that he had attempted to convince anyone else to go non-union. Martinez called as his witness Sam Frankel , a former sal- aried employee of Beck's, who testified that Martinez had never attempted to convince anyone to go non- union. On 15 August, Martinez received from the Union, a letter containing the results of the board hearing. It reads as follows: August 14, 1986•• Mr. Joseph Martinez 3229 Keith Ave. Castro Valley, CA 94546 Dear Sir: On August 12, 1986 your case was heard by the Executive Board of Roofers Local Union No. 81. You were charged with violation of Article IX, Section 7, page 30, (2), (4) of the Constitution and By-Laws of the United Union of Roofers, Water- proofers and Allie Workers. You were found guilty as charged and assessed the sum of $1,500 .00 for the above violation. Please be aware of the fact that in any time that you wish to come back the initiation fee of $400 00 or the amount set at that time will be added to the amount specified above. You are also hereby notified that in accordance to Article 9, Section 2 of the International Constitu- tion and By-Laws, you have the right to appeal this decision by writing to the International office. If you so decide to appeal, then a check made payable to United Union of Roofers, Waterproofers and Allied Workers in the full amount of the assessment must accompany your appeal. The address is as follows. United Union of Roofers, Waterproofers and Allied Workers 1125 Seventeenth St. N.W. Washington, D.C. 20036 With kindest regards, I am Sincerely, /s/ Thomas J. Moretti THOMAS J. MORETTI Financial Secretary 290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Treasurer/Dispatcher [G.C. Exh. 5] The parties stipulated that Cervantes received from the Union two letters similar to those received by Marti- nez (G.C. Exhs. 6, 7). The "Statement of Facts Substan- tiating Charges" is slightly different- Brother Adam Cerventez [sic] had decided to go Non-Union because his employer has refused to ne- gotiate with Local #81 and his employer Beck Roofing Co. will be going Non-Union. Enclosed is the letter which was signed by Adam Cervantez [sic]. [G.C Exh 6] The parties further stipulated that Hill also received from the Union two letters similar to those received by Martinez : Again the "Statement of Facts Substantiating Charges" is slightly different- Brother Al Hill has decided to go Non-Union. En- closed is the letter which was signed by brother Hill who is going to work Non-Union with his em- ployer Beck Roof Co. [G.C. Exh. 8] During this entire period and for several years prior thereto, Martinez had been a working foreman working on various projects with the tools of the trade. Several weeks after Martinez prepared the petition, he was pro- moted to job superintendent.4 B. Analysis and Conclusions 1. What limitations, if any, exist on the Union's right to discipline its members? The General Counsel alleges that the Union violated Section 8(b)(1)(A) of the Act by disciplining its members as reflected in the facts portion of this decision. Section 8(b)(1)(A) is concerned with the rights of indi- vidual employees in their relations with labor organiza- tions. Pursuant to the dictates of this section , it is an unfair labor practice for a union to "restrain or coerce employees in the exercise of the rights guaranteed in Section 7 " Under Section 7, employees are guaranteed both the right to engage in concerted activities and the "right to refrain from any or all such activities . . . ."5 A union may fine or discipline a member so long as the fine or discipline is not imposed for the exercise of rights protected under Section 7. If the discipline does infringe on employee Section 7 rights, the imposition violates Section 8(b)(1)(A). On the other hand, Congress did intend for discipline to remain essentially an internal union matter by virtue of the proviso to Section 8(b)(1)(A), that the Section "shall not impair the right of a labor organization to prescribe its own rules with re- spect to the acquisition or retention of membership there- in . .. ." This proviso has been interpreted broadly by both the Board and the courts in cases where only union membership is at stake . Consequently , expulsion alone is not restraint or coercion under Section 8(b)(1)(A). Simi- 4 The record does not show how, if at all , Martinez 's job duties and/or his pay were affected by the change in job title 5 1 Morris, Developing Labor Law, 165 (2d Ed 1983) larly, subject to certain exceptions ". . . unions may sus- pend membership and impose fines for breaches of inter- nal union rules without restraining or coercing employ- ees within the meaning of the Act."6 In the instant case, members were fined $ 1500 and were subject to reinitiation fees of $400 for violations of the union constitution (G.C. Exh. 2), article IX, section 7, page 30, (2) (Violation of oath of loyalty to the Local Union and the International Union) and, (4) (Gross dis- loyalty or conduct unbecoming a member). Regardless of how the Union discipline is characterized, affected mem- bers were being disciplined for initiating or supporting a petition to repudiate the Union.7 In a long line of cases, the Board has held that fining members for such activities is a violation of Section 8(b)(1)(A). Local 125 (Blackhawk Tanning), 178 NLRB 208 (1969); 207 NLRB 795, 797 (1973); Gillian Candy Co., 282 NLRB 624 fn. 8 (1987) In explaining the basis for the above rules, the Board contrasts a disciplinary fine with expulsion from the Union, allowing the latter, as a proper form of union discipline: In short, where the union member is seeking to decertify the union, the Board has said that the public policy against permitting a union to penalize a member because he seeks the aid of the Board should give way to the union's right to self-defense. But when a union only fines a member because he has filed a decertification petition, the effect is not defensive and can only be punitive-to discourage members from seeking such access to the Board's processes; the union is not one whit better able to defend itself against decertification as a result of the fine. The dissident member could still campaign against the union while remaining a member and therefore be privy to its strategy and tactics.8 To apply these rules to the instant case, I turn to the record and find that both the disciplining fine and the re- initiation fee were imposed by the Union because its members either initiated or supported the petition. Ac- cordingly, the General Counsel has presented a prima facie case that the Union violated Section 8(b)(1)(A) of the Act.9 6 Id at 167 r In the context of this case , a more exact characterization of the infor- mal petition at issue is unnecessary See Guerdon Industries, 218 NLRB 658-659, 660 (1975), NLRB v Gallaro, 419 F 2d 97-99, 100 (2d Cir 1969) It is "unlawful for an employer to induce employees to sign any form of union-repudiating document " NLRB v Birming- ham Publishing Co, 262 F 2d 2, 7 (5th Or 1958) Accord NLRB v Sky Wolf Sales, 470 F 2d 827, 829 (9th Cir 1972) s Blackhawk Tanning Co, supra, 178 NLRB at 209 In making this finding, it is unnecessary to consider whether the Union also violated the Act when its official, Lagosh, who never testi- fied, threatened to go after Martinez for initiating the petition Lagosh made a similar threat to Hill Such threats are held by the Board to be illegal Transport Workers Local 514 (Zebco), 249 NLRB 1171 ( 1980), Electrical Workers IBEW Local 453 (National Electrical), 258 NLRB 1427 (1981) However, this conduct was not charged in the complaint, was not litigated, and as will become clear below , will make no difference in the ultimate outcome of the case ROOFERS LOCAL 81 (BECK ROOFING) 2. Is the employee petition tainted?10 In 'arguing that its members were not engaged in pro- tected concerted activities and could therefore be prop- erly disciplined, the Union argues that the petition in this case was tainted For guidance on this issue, I turn to the recent Board decision of Eastern States Optical Co., 275 NLRB 371, 372 (1985), where the Board stated relevant rules by which the petition in this case might be judged. . . . it is unlawful for an employer to initiate a de- certification petition,8 solicit signatures for the peti- tion," or lend more than minimal support and ap- proval to the securing of signatures and the filing of the petition. i 0 In addition, while an employer does not violate the Act by rendering what has been termed "ministerial aid," i i its actions must occur in a "situational context free of coercive conduct." 12 In short, the essential inquiry is whether "the prepa- ration, circulation, and signing of the petition con- stituted the free and uncoerced act of the employees concerned." KONO-TV-Mission Telecasting, 163 NLRB 1005, 1006 (1967) 8 Inter-Mountain Dairymen, 157 NLRB 1590, 1613 (1966) 8 D & H Mfg Co, 239 NLRB 393, 404 (1978) 10 Placke Toyota, Inc, 215 NLRB 395 (1974) 11 Times-Herald, Inc, 253 NLRB 524 (1980) 12 D & H Mfg Co, supra at 403 See also Weisser Optical Co., 274 NLRB 961 (1985), Briggs Plumbingware, Inc., 286 NLRB 1189 (1987). To ascertain whether the petition in this case was tainted, I again turn to the record. My inquiry begins with Carol Merchant, whose exact employment status cannot be ascertained from the record Despite her title as "office manager" and her duties with respect to con- vening employee meetings, the record does not show her to be a statutory supervisor. It is clear, however, that for purposes of her role on 16 May, Merchant was a "manag- er" under the Act. i i Her remarks could properly be im- puted to Beck, the owner of the company. In the alterna- tive, I note that Beck attended the meeting in question. His public presence and silent acquiescence in Mer- chant's remarks means that he ratified her statements. In either case, I find a holding out of Merchant to employ- ees as having apparent authority to make the remarks she did. Martinez and the others reacted accordingly when she concluded the meeting. It is unnecessary to reiterate Merchant's remarks. It suffices to say that, in effect, employees were told to either get rid of the Union or lose their jobs. After Mar- tinez publicly stated that he had made up his mind, Mer- chant advised him to put something in writing. All this proves that the petition in question was tainted by em- ployer coercion and involvement with said petition. Other factors also support this conclusion: the meeting was held on company time and on company property, to At p 8, fn 9, of her brief, the General Counsel appears to concede this point 11 A managerial employee is one who formulates and effectuates mana- gerial policies by expressing and making operative the decisions of their employer NLRB v Bell Aerospace Co, 416 U S 267, 288 (1974) 291 for a few days, the petition was allowed to remain on public display on the secretary 's desk for all to see who signed it-and who did not sign it; apparently , the peti- tion was mailed to the Union by a secretary whose im- mediate superior was Carol Merchant . In sum, I find that the employer engaged in conduct calculated to erode employee support for the Union . NLRB v. Deutsch Co., 445 F.2d 902, 906 (9th Cir. 1971), cert . denied 405 U.S. 988 (1972) 3 Does the fact that the employer tainted the petition and engaged in other coercive conduct constitute a defense to the otherwise unlawful union discipline? As Respondent Union acknowledged at hearing, the Board does not recognize a "clean-hands" defense (R. Exh. 78). In Teamsters Local 294 (Island Dock Lumber), 145 NLRB 484, 492 fn 9, enfd. 342 F.2d 18 (2d Cir. 1965), the Board explained the rule and the basis for it: The "clean hands" doctrine of equity does not operate against a charging party since proceedings such as this are not for the vindication of private rights but are brought in the public interest and to effectuate statutory policy. The question becomes, therefore, whether the Union can defend itself by asserting the unlawful conduct en- gaged in by the,Employer. To answer this question, I first assume without finding that union officials were aware of the meeting of 16 May and of Carol Merchant's role in it. I find no evidence, however, that Respondent Union relied on the facts and circumstances of that meet- ing as found herein, particularly as affects the employee petition, to justify the discipline in issue. Therefore, it could be argued that Respondent's defense is simply a posthoc rationalization. Cf. NLRB v. Cornell of Califor- nia, 577 F.2d 513, 518 (9th Cir. 1978). In reaching a decision on the ultimate issue, I reject not only the argument that Respondent's defense is doomed because it is tardy, but I reject the inquiry as well Instead, the logical question is whether the mem- bers were engaged in protected concerted activity when they prepared and signed the petition. Because of the Employer's involvement as found above, I find that the members' activities were not protected. In Communica- tions Workers Local 5795 (Western Electric), 192 NLRB 556, 557 (1971), the Board affirmed the administrative law judge's cogent statement of the law: It may be conceded that the Union's imposition of a $500 fine for an employee's report of another em- ployee's breach of a work rule would be coercive in that it would tend to discourage her and other em- ployees from such action in the future . The Act, however, does not simply render illegal all coercive acts of a union but only such coercive acts which infringe upon the rights of employees enumerated in Section 7 of the Act 292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Martinez, Cervantes, Hill, and Steve Bussell,' 2 did not decide freely and without coercion that they no longer desired the Union. Rather, they were manipulated by the Employer. Accordingly, their Section 7 rights were not affected by the Union discipline. Therefore, I will rec- ommend to the Board that this case be dismissed.' 3 12 Busse] ] signed the petition, but did not testify The parties stipulated that he did not receive notification of any fine, and/or reinitiation fee im- posed on him pursuant to the Union trial conducted on 12 August (R pp 8-9) 1 find, as to Bussell, no violation of the Act for an additional reason which does not affect the others Action taken in contemplation of com- mitting unfair labor practices is not, without more, itself an unfair labor practice Instructions to perform unfair labor practices which are not dis- closed to a member is not a violation of the Act In sum, I find Bussell was not coerced by Respondent See Castaways Management, 285 NLRB 954 (1987) 13I have read and considered the cases cited at pp 8-9 of General Counsel's brief, Sheet Metal Workers', Local Union No 170, AFL-CIO, 225 NLRB 1178 (1976), and Sunset Line & Twine Co, 79 NLRB 1487 (1948) These cases do not apply to the instant case as they do not deal CONCLUSIONS OF LAW 1. The Employer, Beck Roofing Company, Inc. is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in an industry affecting com- merce within the- meaning of Section 2(6) and (7) of the Act. 2. Respondent, United Union of Roofers, Water- proofers and Allied Workers, Local No. 81, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, United Union of Roofers, Water- proofers and Allied Workers, Local No. 81, AFL-CIO, has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] with the issue of whether employer involvement in employee activities can change protected concerted activities to unprotected activities