Electrical Workers IBEW (Bergelectric Corp.)

National Labor Relations Board - Board Decisions

Jun 29, 1984

271 N.L.R.B. 25 (N.L.R.B. 1984)

ELECTRICAL WORKERS IBEW (BEROELECTRIC CORP.)
International Brotherhood of Electrical Workers;
Local Union No. 11 of the International Broth-
erhood of Electrical Workers and Bergelectric
Corp. Case 31-CB-4858
29 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 23 September 1983 Administrative Law
Judge Timothy D. Nelson issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and Electrical Workers IBEW
Local 11 (Respondent Local or the Local) and
Electrical Workers (Respondent International or
the International) each filed answering briefs.
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 as modified.
1. The judge found that the Local violated Sec-
tion 8(b)(1)(B) of the Act by fining supervisor-
members Curt Alexen Jr. and Luther Noble for
failing to perform picketing assignments, to the
extent that the Local imposed the fines for their
failure to picket on days they were scheduled to
work. He found the fines lawful, however, to the
extent that the Local imposed them for the supervi-
sors' failure to picket on days they were not sched-
uled to work, and he left to compliance proceed-
ings the determination of what portions of the fines
are lawful. The judge additionally found that the
Local violated Section 8(b)(1)(B) of the Act by
fining Noble for violating a rule against performing
work for a company declared "in difficulty with
the Union," based on his conclusion that the work
in issue was supervisory.'
The General Counsel excepts to the judge's fail-
ure to find that the entire fines levied for failing to
picket are unlawful. We agree.
Alexen is Bergelectric's project manager, and
Noble is its general superintendent; no party dis-
putes that they are supervisors as defined in Sec-
tion 2(11) of the Act. Both are members of Re-
spondent Local, which assigned them to picket
duty in June 1981,2 when it began a strike against
the employer-members of the Los Angeles County
Chapter of the National Electrical Contractors As-
sociation (NECA), including Bergelectric. The
Local assigned them to picket on various week-
' No party excepts to this finding.
2 All dates are in 1981 unless specified otherwise.
271 NLRB No. 2
days, when they were scheduled to work, and on
several weekend days, when they were not. They
each informed the Local that they would not
accept the picketing assignments because they were
members of Bergelectric's management. Nonethe-
less, the Local preferred internal union charges
against Noble and Alexen, conducted trials, 3 and
found them guilty of failing to report for picket
duty in violation of the Local's bylaws. The Local
fined Noble $180 and Alexen S1000. They appealed
these fines to the International unsuccessfully.
In American Broadcasting Cos. v. Writers Guild,
437 U.S. 411, 430 (1978), the Supreme Court stated,
as follows:
[I]n ruling upon a § 8(bXI)(B) charge growing
out of union discipline of a supervisory
member who elects to work during a strike
[the Board] may-indeed, it must-inquire
whether the sanction may adversely affect the
supervisor's performance of his collective-bar-
gaining or grievance-adjustment tasks and
thereby coerce or restrain the employer con-
trary to § 8(bXl)(B).
The Court held unlawful a union's discipline of su-
pervisor-members for crossing its picket line and
working during a strike, reasoning:4
([The employer could not be certain that a
fined [supervisor] would willingly answer the
employer's call to duty during a subsequent
work stoppage, particularly if it occurred in
the near future. For an employer in these cir-
cumstances to insure having satisfactory col-
lective-bargaining and grievance-adjustment
services would require a change in his repre-
sentative.
Noble and Alexen worked during the 1981 strike,
but the Local's sanctions would tend to encourage
them to picket and to refrain from working during
future work stoppages, thus depriving the Compa-
ny of its chosen supervisors. a Section 8(b)(1)(B) of
the Act, as interpreted in American Broadcasting
Cos., prohibits union disciplinary actions tending to
have such an effect. We conclude therefore that
the fines were unlawful.
' Noble attended his trial, but Alexen did not attend his.
4 Id. at 435.
' Noble's and Alexen's supervisory duties for Bergelectric include col-
lective-barsaining and grievance-adjustment functions. Thus, Noble rep-
resents the Company at meetinpgs with the Local's representatives or with
individual employees involving pay disputes and jurisdictional disputes.
Alexen also represents the Company in pay disputes. Moreover, the
judge correctly found, pursuant to the Board's "reservoir" doctrine, that
supervisory status alone is sufficient to invoke Sec. 8(bXXB)'s protec-
tions, regardless of whether the particular supervisor normally is required
to perform collective-bargaining or grievance-adjustment duties. Team-
sters Local 296 (Northwest Publications), 263 NLRB 778, 779 fn. 6 (1982).
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the circumstances of this case, however, we
need not decide whether a union violates the Act
by disciplining supervisor-members for refusing as-
signments to picket their employers at times when
they are not scheduled to work. Respondent Local
assigned picket duty to Noble and Alexen without
regard to their work schedules, and it fined them
each a lump sum for failing to perform their assign-
ments. These sums did not correspond to the
number of times the supervisors failed to picket;
Noble was fined $180 for failing to picket on 12 oc-
casions, including 9 workdays, while Alexen was
fined $1000 for failing to picket 4 times,6 including
3 workdays. The Local's trial board found them
guilty of "failing to report for picket duty" and, as
the judge noted, "the Local simply did not dis-
criminate" between times Noble and Alexen were
scheduled to work and times they were off duty.
As the Local failed to make any such distinction,
the entire fines are unlawful. The gravamen of the
violation is the Local's act of disciplining supervi-
sor-members Noble and Alexen without regard to
their work schedules, an act which tended to re-
strain or coerce Bergelectric in selecting its collec-
tive-bargaining or grievance-handling representa-
tives.
2. The judge absolved the International of liabil-
ity for the violations. He found that the Interna-
tional did not independently violate the Act. The
judge reasoned that the International merely proc-
essed the supervisor-members' appeals, a ministerial
function, and passed on the issues brought before
it, a judicial function. The judge further concluded
that, because the International did not itself disci-
pline Noble and Alexen or give the Local a right
which it did not already possess to do so, the Inter-
national was not responsible for the violations.
The General Counsel excepts, contending that
the International's approval of the Local's actions
renders it liable. We agree.
Pursuant to the procedure the International's
constitution sets forth, Noble and Alexen appealed
the Local trial board's disciplinary actions to the
International's vice president, S. R. McCann, by
letters dated 31 July and 21 December. They both
contended that their supervisory responsibilities
precluded them from picketing. Alexen stated, as
follows:
I have held the position of Project Manager
for four years with the expectancy and assur-
ances that it is a permanent position. Project
Managers are in the highest level of supervi-
8 The record does not clearly indicate the reasons for this discrepancy,
but the judge plausibly suggests it may have resulted from Alexen's fail-
ure to appear at his trial or because of the Local's additional $1000 fine
against Noble for performing supervisory work.
sion in the management hierarchy of Bergelec-
tric Corporation.
Noble asserted, as follows:
As General Field Superintendent for the firm
which employs me, I have responsibility for all
field operations for two offices covering three
jurisdictions; the overall supervision of em-
ployees including the adjustment of grievances
[sic] and disputes, material and equipment, in-
cluding completed projects and final inspec-
tions.
Regarding his fine for working for a company
"declared in difficulty with the union" Noble
stated, as follows:
On the date of my alleged violation, I was
acting in my capacity as General Field Super-
intendent in a reinspection of a completed
project in the company of a City Inspector.
On 4 June 1982 McCann sent essentially identical
letters to Noble and Alexen, stating, in pertinent
part:
This has been an extremely difficult appeal
and required an inordinate amount of time
conducting investigations. From the investiga-
tions my decision is as follows.
The decision of the Local Union 11 Trial
Board is sustained, thereby, denying your
appeal.
By letters dated 17 June 1982, Noble and Alexen
individually appealed to Charles H. Pillard, the In-
ternational's president, reiterating their prior asser-
tions and questioning the fairness of the Local's
disciplinary procedures. Pillard denied the appeals
10 November 1982. 7
In Iron Workers Local 46 (Cement League), 259
NLRB 70, 77 (1981), the Board found an interna-
tional liable for upholding on appeal a local union's
unlawful suspension of three foremen-members in
the following words: 8 "[B]y the International's
' Pillard's letters to Noble and Alexen stated:
As to your appeal to me from the International Vice President's
decision, I wish to advise that I have made a careful review of the
complete record before me and I find the charges to be of a most
serious nature. I have given consideration to your defense that you
consider yourself to be in management and therefore not subject to
charges.
The record before me is clear that your employer pays on all
fringes which are contained in the Collective-Bargaining Agreement.
Your pay scale on the report is at the journeymen rate consistent
with the agreement. The record is bare of any evidence submitted by
you or on your behalf which would show that you are a manage-
ment representative fir Bergelectric Corporation.
Both letters also stated that the applicants failed to appear at their trial
board hearings. In fact, Noble attended one of his hearings.
8 The international reduced the terms of the suspensions.
26
ELECTRICAL WORKERS IBEW (BERGELECTRIC CORP.)
giving its imprimatur to the appropriateness of 'sus-
pensions' as a disciplinary measure (albeit a re-
duced term), the acts and conduct of Local 46 vis-
a-vis the suspensions are also chargeable to said
International" The Board in turn relied on Brick-
layers (McCleskey Construction), 241 NLRB 898
(1979), in which a local fined a supervisor-member
for working for an employer that did not have a
contract with the local. At the local's request, the
international expelled the supervisor-member when
he failed to pay the fine. The Board found the fine
and expulsion unlawful and held responsible both
the local and the international, stating that the
international had a duty to investigate the fine and
that even the "slightest review" would have re-
vealed its impropriety.
Noble and Alexen emphatically contended at
every stage of the proceedings that they were su-
pervisors and that Noble performed only superviso-
ry work during the strike. The International did
not simply "rubber-stamp" the trial board's finding;
indeed Vice President McCann's letters stated that
the appeals "had required an inordinate amount of
time conducting investigations," and Pillard's letter
stated he had "made a careful review of the com-
plete record." Thus, the International investigated
and reviewed the fines, then ratified the Local's
action, although it had the opportunity and author-
ity to reverse it. We perceive no real distinction
between this case and Cement League and McCles-
key Construction, and we find that, because the
International approved the Local's unlawful con-
duct, it shares its liability.9
CONCLUSIONS OF LAW
1. By charging, trying, and fining supervisor-
members Luther Noble and Curt Alexen Jr. for
failing to perform picketing assignments without
regard to their work schedules and by charging,
trying, and fining Luther Noble for performing su-
pervisory work Respondent Local has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(b)(l)(B) and Section 2(6)
and (7) of the Act.
2. By ratifying Respondent Local's discipline of
supervisor-members Luther Noble and Curt Alexen
9 In deciding that the International did not violate the Act, the judge
relied on the Board and court opinions in Musicians (Don Glasser), 165
NLRB 798 (1967), enfd. sub nom. Don Glasser v. NLRB, 395 F.2d 401
(2d Cir. 1968). In that case the international processed and upheld two
members' appeals of unlawful union fines, and the Board found that the
international did not violate Sec. 8(b)(2) and (IXA) of the Act merely by
processing the appeals. Glasser, however, involved different sections of
the Act and is distinguishable from this case; the Board's specific holding
was that the international's ministerial action was not a union's affirma-
tive "attempt to cause" employers to discriminate against nonmember
employees. Furthermore, the international in Glasser sustained the appeals
while in this case the International denied them, placing its imprimatur
on the Local's misconduct
Jr. for failing to perform picketing assignments, and
by ratifying Respondent Local's discipline of
Luther Noble for performing supervisory work,
Respondent International has engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(b)(l)(B) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that Respondent Local and Re-
spondent International have engaged in certain
unfair labor practices, we shall order them to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent Local having unlawfully disciplined
Noble and Alexen, and Respondent International
having ratified this unlawful discipline, we shall re-
quire them to remove from their files all references
to the unlawful disciplinary actions and to notify
Noble and Alexen that they have done so and that
the discipline will not be used against them in any
way. We shall also order the Respondents to re-
scind the unlawful fines and jointly and severally
to make whole Noble and Alexen by refunding the
amounts of the fines they paid, plus interest as
computed in Florida Steel Corp., 231 NLRB 651
(1977).
ORDER
The National Labor Relations Board orders that
A. Respondent Local, Local Union No. 11 of the
International Brotherhood of Electrical Workers,
Los Angeles, California, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Charging, trying, and fining supervisor-mem-
bers for failing to perform picketing assignments
without regard to their work schedules or for per-
forming supervisory work during a strike.
(b) In any like or related manner restraining or
coercing Bergelectric Corp., or any other employ-
er, in the selection of its representatives for the
purposes of collective bargaining or grievance ad-
justment.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the disciplinary fines imposed on
Luther Noble and Curt Alexen Jr. for failing to
perform picketing assignments, and on Luther
Noble for performing supervisory work, and joint-
ly with Respondent International and severally
make whole Noble and Alexen by refunding the
amount of the fines that they paid, plus interest.
(b) Remove from its files any references to the
unlawful disciplinary actions and notify Noble and
Alexen in writing that it has done so and that it
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will not use the disciplinary fines against them in
any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all records necessary to analyze the amount of
its liability under the terms of this Order.
(d) Post at its meeting halls, offices, and hiring
halls in Los Angeles, California, copies of the at-
tached notice marked "Appendix A."10 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 31, after being signed by Re-
spondent Local's authorized representative, shall be
posted by the Respondent Local immediately upon
receipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by Respondent Local to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by Bergelec-
tric Corp., if willing, at all places where notices to
employees are customarily posted.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent Local has taken to comply.
B. Respondent International, International Broth-
erhood of Electrical Workers, Washington, D.C.,
its officers, agents, and representatives, shall
1. Cease and desist from
(a) Ratifying Local 11's discipline of supervisor-
members for failing to perform picketing assign-
ments without regard to their work schedules, or
for performing supervisory work during a strike.
(b) In any like or related manner restraining or
coercing Bergelectric Corp. or any other employer,
in the selection of its representatives for the pur-
poses of collective bargaining or grievance adjust-
ment.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the disciplinary fines imposed on
Luther Noble and Curt Alexen Jr. for failing to
perform picketing assigments, and on Luther Noble
for performing supervisory work, and jointly with
Respondent Local and severally make whole Noble
and Alexen by refunding the amounts of the fines
they paid, plus interest.
(b) Remove from its files any references to the
unlawful disciplinary actions and notify Noble and
Alexen in writing that it has done so and that it
Io 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
will not use the disciplinary fines against them in
any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all records necessary to analyze the amount of
its liability under the terms of this Order.
(d) Post at its offices in Washington, D.C., copies
of the attached notice marked "Appendix B." "
Copies of the notice, on forms provided by the Re-
gional Director for Region 31, after being signed
by Respondent International's authorized represent-
ative, shall be posted by the Respondent Interna-
tional immediately upon receipt and maintained for
60 consecutive days in conspicuous places includ-
ing all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent International to ensure that the notices
are not altered, defaced, or covered by any other
material.
(e) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by Bergelec-
tric Corp., if willing, at all places where notices to
employees are customarily posted.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent International has taken to
comply.
i See fn. 10, above.
APPENDIX A
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 charge, try, and fine our supervi-
sor-members for failing to perform picketing as-
signments without regard to their work schedules
or for performing supervisory work during a strike.
WE WILL NOT in any like or related manner re-
strain or coerce Bergelectric Corp., or any other
employer, in the selection of its representatives for
the purposes of collective bargaining or grievance
adjustment.
WE WILL rescind the disciplinary fines we im-
posed on Luther Noble and Curt Alexen Jr. for
failing to perform picketing assignments and on
Luther Noble for performing supervisory work and
WE WILL jointly with the International and several-
28
ELECTRICAL WORKERS IBEW (BERGELECTRIC CORP.)
ly make whole Noble and Alexen by refunding the
amounts of the fines that they paid, plus interest.
WE WILL remove from our files any references
to the unlawful disciplinary actions, and WE WILL
notify Luther Noble and Curt Alexen Jr. in writing
that we have done so and that we will not use the
disciplinary actions against them in any way.
LOCAL UNION No. 11 OF THE INTER-
NATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS
APPENDIX B
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 ratify Local 1 l's discipline of su-
pervisor-members for failing to perform picketing
assignments without regard to their work schedules
or for performing supervisory work during a strike.
WE WILL NOT in any like or related manner re-
strain or coerce Bergelectric Corp., or any other
employer, in the selection of its representatives for
the purposes of collective bargaining or grievance
adjustment.
WE WILL rescind the disciplinary fines we im-
posed on Luther Noble and Curt Alexen Jr. for
failing to perform picketing assignments, and on
Luther Noble for performing supervisory work and
WE WILL jointly with Local 11 and severally make
whole Noble and Alexen by refunding the amounts
of the fines that they paid, plus interest.
WE WILL remove from our files any references
to the unlawful disciplinary actions, and WE WILL
notify Luther Noble and Curt Alexen Jr. in writing
that we have done so and that we will not use the
disciplinary fines against them in any way.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge.
This unfair labor practice case arose when Bergelectric
Corp. (Company) filed charges on December 1, 1982,
against Respondents International Brotherhood of Elec-
trical Workers and Local Union No. 11, affiliated with
the same parent body (collectively, Respondents; respec-
tively, International and Local). The charges were inves-
tigated under the supervision of the Regional Director
for Region 31 of the National Labor Relations Board
(Board). On January 21, 1983, the Director issued a com-
plaint against the International and the Local alleging
violations of the Act.
The main thrust of the complaint is that Respondents
violated Section 8(b)(1)(B) of the National Labor Rela-
tions Act (Act) by the Local's act of imposing, and the
International's act of sustaining, internal disciplinary fines
against two of the Company's supervisory representa-
tives, Luther Noble and Curt Alexen Jr., thereby "re-
straining and coercing [the Company] in the selection
and retention of its representatives for the purposes of
collective bargaining of the adjustment of grievances."'
Respondents duly answered, putting key substantive
allegations into issue, and I heard the matter in trial at
Los Angeles, California, on May 24, 1983. The General
Counsel called two witnesses, Noble and Alexen. Re-
spondents rested after certain exhibits and stipulations of
fact were received. Timely and helpful post-trial briefs
were filed by each party.
The Issues
Trial developments, including amendments to the
pleadings and the entry into stipulations of fact by the
parties, leave no important facts in dispute.
The central issue is whether Section 8(b)(1)(B) was
violated when the Local admittedly fined its members
Noble and Alexen (both of whom, Respondents now
concede, are supervisors within the meaning of the Act) 2
for failing to perform picket assignments during a strike
called against certain employers including the Company.
In the individual case of Noble, the question is addition-
ally raised whether another fine levied against him by
the Local, ostensibly for Noble's doing "work" during
the strike, violates Section 8(b)(1)(B).
Also before me for resolution are Respondents'
common defensive contentions that Noble and Alexen
were not, in fact, "collective bargaining representatives"
or "grievance handlers" for the Company within the
meaning of Section 8(b)(1)(B); and, in any case that the
Company is estopped from charging a violation where it
has followed a practice of treating Noble and Alexen as
nonsupervisory bargaining unit personnel for purposes of
periodic contribrutions and associated reports it makes to
certain employee benefit trust funds.
In addition, the International contends that its involve-
ment in this case is limited to a denial of appeals by
Noble and Alexen from discipline imposed on them by
the Local and, therefore, that the International commit-
ted no violation of Section 8(b)(IXB).
On the foregoing, and noting at the outset that I found
the testimony of the General Counsel's two witnessses to
be sincere and credible, I make these
I The quoted portion of the complaint closely paraphrases key lan-
guage in Sec. 8(b)IXB) of the Act.
2 On brief (p. 5) Respondents' counsel states regarding Noble and
Alexen that "Respondents do not dispute either member's status as a Sec-
tion 2(11) supervisor ....
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
A. Background
The Company is a Los Angeles-based electrical con-
tractor3 which, with other members of the local chapter
of the National Electrical Contractors Association, un-
derwent an economic strike called by the Local in the
summer of 1981. 4 Curt Alexen Jr. is the Company's
project manager, and Luther Noble is its general superin-
tendent. Each possesses and exercises one or more of the
powers or attributes associated with "supervisory" status
as that term is defined in Section 2(11) of the Act. They
each perform different functions which have in common
that each man must spend at least 50 percent of his time
in the field, on the Company's construction jobsites. 5
They are each members of the Local and have been for
many years.
B. The Fines for Picketing No-Shows
Both Alexen and Noble received picket duty assign-
ment schedules from the Local in early June and each
made contact with a functionary or official of the Local
shortly after that to advise that he would not be able to
picket during the strike.6
The Local sent letters to both Alexen and Noble
shortly after they had failed to report for the picket duty
which had been assigned to them. The letters advised
them to appear at a stated time before a committee of the
Local and contained a warning that charges could be
filed against them. Alexen and Noble promptly replied in
writing, each signing in the name of "Bergelectric Cor-
poration," each contending in a general way that his cur-
3 The Company is a California corporation which annually purchases
and receives more than $50,000 in goods or services directly from suppli-
ers outside the State of California.
4 All dates below are in 1981, unless otherwise specified.
6 In the light of Respondents' concession that Alexen and Nobel are
statutory supervisors and my disposition below, the duties of those agents
of the Company need only be summarized.
As general superintendent, Noble is salaried. He spends a substantial
portion of his time overseeing the hiring and firing of electricians for the
Company's projects. This involves consultation with lower-level crew
foremen and supervisors and, when additional help is needed, Noble is
the company representative who normally makes contact with one of the
five district offices of the Local which serve as employee referral
sources. In addition, Noble oversees all payroll and related reports and is
the company official responsible for meeting with individual employees
or with their representatives from the Local to resolve disputes about al-
leged pay discrepancies. He has also represented the Company in meeting
from time to time with various representatives of the Local over such
matters as jurisdictional disputes between and among the various crafts
working on the Company's construction jobs.
As project manager, Alexen is salaried. He is principally responsible
for supervising scheduling and coordination of construction and approv-
ing related purchase orders. His involvement in personnel or labor rela-
tions matters is limited to the approval of recommendations from lower
levels of supervision that an employee or group of employees be laid off
or terminated. Like Noble, he may become involved in pay disputes and
has the power, after review of pertinent records, to authorize adjustments
in pay.
6 In Alexen's case, he telephoned Ralph Norrington, described by
Alexen as a business agent for the Local's "District 1," and stated that he
could not do picket duty because he was "management." In Noble's case,
he called a person whose name he did not recall on the "Excuse Commit-
tee" for "Unit 4" (the same entity as the "District 4" referred to in G.C.
Exh. 2, a printed picket schedule), but he did not then specify any reason
for declining the assignment.
rent duties stood as an obstacle to his performance of
picket duty.7
Internal union charges were nevertheless subsequently
instituted against both Noble and Alexen for failing to
perform assigned picket duty. In due course thereafter,
the Local informed them that trial proceedings would be
conducted on those charges and invited them to appear
to present evidence and arguments.
Alexen did not attend the trial proceeding. Noble at-
tended his separately scheduled trial on October 26. One
of the members of the trial board, Robert Stanford, had
been an employee working under Noble's supervision
during an earlier period and Noble had been directly re-
sponsible for his discharge. Noble limited his defense to
the statement that he "was in supervision and therefore
. . . had chosen to remain neutral as far as union activi-
ties...." Later, by letter to the Local dated November
18 (at a time when the trial board was still investigating
and had not reached a decision), Noble wrote that his
"responsibility as General Superintendent" at the Com-
pany was the reason he had not reported for scheduled
picket duty, explaining further that his "duties require
me to oversee projects in both Orange and Ventura
County." He also set forth in some detail what specific
tasks or functions he had actually performed on 9 of the
12 dates for which he was formally charged for failing to
picket.
In each case, the Local later notified Alexen and
Noble that he had been found guilty as charged by the
Local's trial board and that a fine was being levied
against him, roughly half of which was to be "held in
abeyance," pending the fulfillment of certain conditions.s
C. The Fine Against Noble for Work Done on June 15
In addition, a separate internal charge was filed against
Noble in June for a violation characterized by the charg-
ing individual as "Working on job" in violation of a
specified provision within the International constitution.
Noble wrote on June 22 that he had "not been performing work cov-
ered by the . . . agreement since 1964, therefore I have chosen to remain
neutral in all union activity. My duties here at Bergelectric Corporation
also require me to oversee projects both in Orange County as well Ven-
tura County."
Alexen wrote on June 19 that he had been "a project manager for four
. . .years. At present I am involved in many large projects in Orange
County and Los Angeles County on a full time basis." He followed that
with a letter on July 7 to the Local which stated: "As a member of man-
agement . .. I have been advised ... that I cannot be management one
day and picket myself the next day."
s The "full" fine imposed against Noble was $180; that against Alexen
was $1000, even though Alexen had been formally charged with only 4
picketing no-shows and Noble with 12. Standing alone, this may suggest
that Alexen received more severe punishment because of his failure to
appear at his trial (a provision within the Local's bylaws made it a sepa-
rate offense not to appear when officially requested to do so, although
this was not specifically referred to in the Local's notification to Alexen
of the disciplinary decision). On the other hand, the seeming discrepancy
in the fines may be related to the fact that, by the time Noble was disci-
plined for picketing no-shows, he had already been found guilty of sepa-
rate charges for working during the strike (as is set forth below) and had
been fined $1000 for that alleged offense, after failing to spear personally
before the Local's trial board.
9 The constitution makes it a punishable offense in the section invoked
against Noble for a member to be "Working for any individual or compa-
ny declared to be in difficulty with a L.U. or the IB.E.W. in accordance
with this Constitution."
30
ELECTRICAL WORKERS IBEW (BERGELECTRIC CORP.)
This arose out of an incident on June 15 when a member
of the Local, Sam Vukanovich,' ° saw Noble open a
hinged electrical service panel cover on one of the Com-
pany's construction sites by manually removing two
wing nut fasteners so that a building inspector could per-
form a required inspection of the installation before it
was activated. Noble did not respond to this charge nor
did he appear at the scheduled July 9 trial conducted by
the Local. He was subsequently found guilty of the
charged offense by the Local and a separate fine was
levied against him.
Both Alexen and Noble filed written appeals to the
International over the Local's disciplinary actions against
them. In connection with those appeals, each of them
submitted further written statements and arguments
which are unnecessary to detail. It suffices to character-
ize their correspondence on appeal from the Local's dis-
cipline for the picketing no-shows as being centrally
linked to the argument that they were each part of the
Company's "management" team and, therefore, that they
could not participate in picketing activity.
As to the separate discipline against Noble arising out
of his having been involved on June 15 in the opening of
a service panel cover, Noble stressed on appeal that in
doing this, he had been "acting in my capacity as a Gen-
eral Field Superintendent in the reinspection of a com-
pleted project in the company of a City Inspector."
The International denied all appeals. ''
I reserve any additional findings to the analysis in the
next section.
Analysis
A. General Principles
As noted above, Section 8(b)(1)(B) bans union restraint
and coercion of "an employer in the selection of his rep-
resentatives for the purpose of collective bargaining or
the adjustment of grievances." It is now established that
those bargaining and grievance-handling functions, some-
times called by the Board for shorthand purposes
"8(b)(l)(B) duties," need not literally be part of a compa-
ny representative's assigned or actual responsibilities in
order for 8(b)(1)(B) protections to come into play.
Rather, a company representative's supervisory status is
alone sufficient to insulate him from union pressure oth-
erwise proscribed by Section 8(b)(1)(B) without regard
to whether or not the supervisor is normally expected to
perform 8(b)(l)(B) duties. Teamsters Local 296 (Northwest
Publications), 263 NLRB 778, 779 fn. 6 (1982). The
theory underlying that view is that a supervisor is a "res-
ervoir" to be drawn on if need be to perform such
duties. Ibid.
Respondents argue vigorously that the reservoir doc-
trine is unsound and should not be applied here. But Re-
LO Vukanovich has served in the past for the Local as a "business ad-
ministrator" and, in that capacity, had dealt with Noble on matters relat-
ing to the Company's hiring needs.
11 In Noble's case, the November 10, 1982, letter by which the Inter-
national denied his appeals correctly observes that two separate viola-
tions by Noble are involved, but appears also to reflect confusion as to
what precisely had taken place at the local level. This does not affect any
question of substance in this case.
spondents concede and I have found that both Alexen
and Noble are statutory supervisors for the Company. In
the light of the Board's reaffirmance of the reservoir
doctrine in Northwest Publications, supra, I need not and
do not decide whether either Alexen or Noble actually
possessed or exercised 8(b)(1)(B) duties and authority.
The only question is whether, under the particular cir-
cumstances, the disciplinary action taken against them
may properly be viewed as unlawful "restraint" or "co-
ercion" within the meaning of Section 8(b)(1)(B).' 2
The Board restated generally applicable principles of
8(b)(l)(B) law in Plumbers Local 364 (West Coast Con-
tractors), 254 NLRB 1123 (1981). There the Board stated
(at 1125):
Section 8(b)(l)(B) prohibits both direct union pres-
sure-for example, strikes-to force replacement of
grievance representatives and indirect union pres-
sure-for example, union discipline of supervisor-
members-which may adversely effect the chosen
supervisors' performance of their representative
functions. American Broadcasting Companies v. Writ-
ers Guild of America, West, Inc., 437 U.S. 411
(1978); New Mexico District Council of Carpenters
and Joiners of America (A. S. Horner, Inc.), 177
NLRB 500, 502 (1965), enfd. 454 F.2d 1116 (10th
Cir. 1972); and Wisconsin River Valley District Coun-
cil of Carpenters (Skippy Enterprises, Inc.), 218
NLRB 1063, 1064 (1975), enfd. 532 F.2d 47 (7th
Cir. 1976).
It is also well settled that union discipline of su-
pervisor members who cross a picket line or other-
wise violate a union's no-work rule in order to per-
form their normal supervisory functions constitutes
indirect union pressure within the prohibition of
Section 8(b)(l)(B).' 3 In reaching this conclusion,
the Board and courts have recognized that the rea-
sonably foreseeable and intended effect of such dis-
cipline is that the supervisor-member will cease
working for the duration of the dispute, thereby de-
priving the employer of the grievance adjustment
services of his chosen representative. American
Broadcasting Companies supra at 433-437, fn. 36;
N.L.R.B. v. International Union of Operating Engi-
neers, Local Union No. 501, 580 F.2d 359, 360 (9th
'2 This decision might be truncated by noting here that Respondents'
concession as to the supervisory status of Noble and Alexen is accompa-
nied by the further concession (Br., p. 5) that "a holding that the 'reser-
voir doctrine' applies leads to the inescapable legal conclusion that the
fines are unlawful." The temptation merely to note this concession and to
bring this decision to a close is a strong one, but, in my view, it would be
unfair and injudicious to do so, since a judge is never bound to embrace
legal conclusions suggested by counsel which would not be supported by
a fair application of the law to the facts. As I discuss below, there are
wrinkles to this case which cannot be ignored except at the expense of
contributing to legal confusion. Moreover, in the light of other defensive
contentions raised by Respondents, it is not as obvious as it might at first
seem that Respondents would stipulate to the entry of judgment against
them if they were to lose on their argument that the reservoir doctrine is
unsound and should not be applied.
'3 Florida Power & Light Co. v. Electrical Workers IBEW Local 641, 417
U.S. 790 (1974), holding that Sec. 8(bXIXB) is not violated when a union
disciplines supervisor/members for performing rank-and-file work, as dis-
tinguished from "normal supervisory functions," during a strike.
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cir. 1978); A. S. Horner, supra, 502; and Skippy En-
terprises, supra, 218 NLRB 1064, enfd. 532 F.2d at
52-53. Such discipline is unlawful even where as
here the supervisor defies the union and continues
to work for the employer during the dispute; the
discipline is unlawful because the supervisor, having
been disciplined for working during a labor dispute,
may reasonably fear further discipline and, hence,
will be deterred from working during any future
disputes. The employer, in such circumstances, must
either replace the disciplined supervisor or risk loss
of his services during a future dispute; in either
event, the employer is coerced in the selection and
retention of his chosen grievance adjustment repre-
sentative. American Broadcasting Companies, supra,
433-437.
B. Legality of Fines for Picketing No-Shows
I take first the cases of the fines against Noble and
Alexen for failing to report for picket duty. Facially, at
least, these were not directed against those supervisors'
choices to continue performing their "normal superviso-
ry functions" during the strike and, to that extent, such
discipline does not clearly fall within the precedents.14 I
would nevertheless have little difficulty in concluding
that the Local's discipline directed against the two super-
visors for failing to participate in picketing of the Com-
pany during times when they were otherwise scheduled
to work would be little more than an indirect means of
accomplishing what the Local plainly could not have
sought to do by direct means, i.e., to use internal disci-
pline to discourage the Company's supervisors from
working as supervisors during the strike. Thus, to the
extent that the picket duty defaults for which Noble and
Alexen were fined occurred on dates when they were
scheduled to work for the Company, the fines would
appear to violate Section 8(b)(l)(B).
By parity of reasoning, however, it must be observed
that Section 8(b)(1)(B) is not obviously implicated by a
union fine levied against a supervisor/member for failing
to perform assigned picket duty which does not actually
conflict with the supervisor's work schedule. Put another
way, given the policies and underlying purposes which
Section 8(b)(l)(B) was designed to serve as summarized
above in West Coast Contractors, it is difficult to envision
how that latter kind of a disciplinary fine could tend to
"depriv[e] the employer of the grievance adjustment
services of his chosen representative."'
IS In Plumbers Local 195 (Jefferson Chemical), 237 NLRB 1099 (1978),
the Board adopted the recommendation of the administrative law judge
and dismissed an 8(bXIXB) complaint grounded on the union's imposition
of a fine against an alleged supervisor, Riley, for failing to perform picket
duty. The dismissal was based on a finding that Riley was not a supervi-
sor within the meaning of the Act. Accordingly, the Board did not reach
the question whether such a fine against a supervisor would violate Sec.
8(bXIXB).
15 Without acknowledging the distinctions now under discussion, the
General Counsel argues on brief, inter alia, that fines against supervisors
for failing to pull picket duty are violative because they "may cause them
[i.e., supervisors] to actively engage in picketing in the future against the
employer" (OCC. Br., p. 15). But this prospect, however potentially em-
barrassing or irritating to the employer, cannot be said to impair the em-
ployer's ability to use the 8(bXI)(B) services of his supervisors so long as
the picketing does not occur during times which conflict with the super-
Having so concluded, it becomes pertinent to observe
that this record does not clearly show that the fines
against Noble and Alexen were linked solely-or even at
all-to picketing no-shows on days when the supervisors
were scheduled to work for the Company. Indeed, close
study of the record reveals in each case that at least
some of the no-show incidents relied upon by the Local
took place on Saturdays.'6 This poses interesting prob-
lems, for the authorities cited earlier necessarily imply
that it is part of the prosecutor's prima facie burden to
show that a union's disciplinary action against a
supervisor/member somehow impaired the employer's
right to the services of his chosen 8(b)(l)(B) representa-
tive. 7 And it is at least arguable that such a burden is
not carried simply by showing that Noble and Alexen
were fined for not picketing on a variety of days which
included Saturdays.' s But in the absence of any defen-
sive contention that the Local's discipline was confined
to instances where Noble and Alexen failed to show up
for picket duty which did not conflict with their regular
supervisory work schedules, I conclude that the Local
simply did not discriminate between those instances and
instances where Noble's and Alexen's work and picket-
ing schedules were in conflict. And I thus do not find it
fatal to the General Counsel's prima facie case that it
was not shown in all instances that the Local's picketing
schedules conflicted with Noble's and Alexen's normal
work schedules. Rather, as is discussed below in the
Remedy section, these concerns have significance, if at
visor's work schedule for his employer. And it must be recalled further
that an employer who finds it offensive to have his striking employees
joined occasionally on the picket line by a member of his management
team may simply require the supervisor to relinquish his union member-
ship and to refrain from picketing. Florida Power & Light, supra, 417 U.S.
at 813. This will effectively remove any possibility of a "conflict of loyal-
ties" on the supervisor's part. And it is for this reason that the Florida
Power Court rejected the Board's arguments linked to concerns about su-
pervisory "loyalties" in general and held that Sec. 8(bXIXB) was not in-
tended by Congress to be "any part of the solution to the generalized
problem of supervisor-member conflict of loyalties." Ibid.
'6 In Alexen's case, he was fined for picketing no-shows on Saturday,
June 13, as well as for additional no-shows on subsequent weekdays, June
23, July 2, and July 13. In Noble's case, he was fined for no-shows on
Saturdays, June 20 and 27 and July 18, as well as for 9 additional week-
day no-shows.
17 E.g., Florida Power & Light, supra, 417 U.S. at 804-805, where the
Court stated:
Nowhere in the legislative history is there to be found any impli-
cation that Congress sought to extend protection to the employer
from union restraint or coercion when engaged in any activity other
than the selection of its representatives for the purposes of collective
bargaining and grievance adjustment. The conclusion is thus inescap-
able that a union's discipline of one of its members who is a supervi-
sory employee can constitute a violation of Section 8(bXIXB) only
when that discipline may adversely affect the supervisor's conduct in
performing the duties of, and acting in his capacity as, grievance ad-
juster or collective bargaining representative on behalf of the em-
ployer.
i8 I would further infer from this record that Saturday was not nor-
mally a scheduled workday-at least for the Company's rank-and-file em-
ployees. I draw this inference from Noble's testimony that in the first 9
months of 1981 it was especially difficult to retain employees because
other employers were "working Saturdays and Sundays which is at a
higher or double-time rate, so electricians were continually job hopping
at that time." And, it ought to be added, the same testimony (as well as
the kind of "common knowledge" of which I may properly take notice)
justifies the finding that Mondays through Fridays were normally sched-
uled workdays for the Company's electricians.
32
ELECTRICAL WORKERS IBEW (BERGELECTRIC CORP.)
all, in determining the extent to which the Local must
reimburse Noble and Alexen for the amounts they have
paid to date to the Local as disciplinary fines.
C. Legality of Noble's Fine for Working on June 15
At the outset, I note that the fine against Noble grow-
ing out of Vukanovich's charge does not expressly attack
Noble's activity as a,prohibited performance of rank-and-
file struck work. Rather, the underlying charge facially
attacks the mere fact that Noble was "working" for the
Company on the day in question. I nevertheless infer
that the real charge was, implicitly, that Noble was per-
forming nonsupervisory or "struck" work when he
manually removed 2 wing nuts so that a city inspector
could open a service panel. For, if the charge was in-
tended to attack Noble's having merely "worked" for
the Company on June 15, one might wonder why similar
charges were not filed against him on every day that he
performed more customary supervisory functions for the
Company during the strike. The General Counsel pro-
ceeds from the same factual assumption'9 and I deal no
further with that distraction.
Treating the Local's action against Noble as, in effect,
discipline for allegedly performing struck unit work nev-
ertheless does not affect my judgment that such disci-
pline was unlawful. If I were required to judge whether,
in fact, the work Noble did in connection with the in-
spection was rank-and-file unit work, I would rely on
Noble's undisputed testimony that, when a panel plate is
opened by a supervisor for purposes of an official inspec-
tion, that is a task traditionally performed by supervisory
officials,2 0 but when done in the course of installation of
the service, it is normally done by unit electricians.
Moreover, even if that tiny increment of work done by
Noble were properly characterizable as "unit" work, I
would find it to have been so closely connected to
Noble's performance of his official supervisory duties
that a fine levied against him for performing it would
necessarily impair his ability to perform supervisory
services for the Company, thus violating Section
8(b)( )(B).21
D. Respondents' Estoppel Defense
The parties stipulated and I find that from April 1982
to March 1983, the Company funished reports and pay-
ments to a benefit trust which is the creature of the perti-
nent labor agreement in which Noble and Alexen were
included and their earnings were set forth as if they were
hourly paid journeyman electricians. Respondents argue
that the Company (and Noble and Alexen) are thereby
19 G.C. br., p. 13, fn. 10.
20 More precisely, the burden of Noble's testimony here is that super-
visory officials do not normally become involved in routine inspections,
but where as here the initial inspection results are contested by the Com-
pany and a reinspection is being conducted at the Company's request, a
management official will normally become involved during the reinspec-
tion process.
21 As Respondents concede on brief (p. 4), for union discipline of a
supervisor/member for performing struck unit work to pass legal muster
under Sec. 8(bXIXB), the unit work performed must have been more
than "minimal." Columbia Typographical Union 101 (Washington Post), 242
NLRB 1079, 1080-1081 (1979). Noble's alleged "unit" work here was, at
best, minimal.
estopped in this proceeding from asserting that Section
8(b)(l)(B) was implicated by the complained-of discipli-
nary conduct. This defense may be disposed of summari-
ly.
The elements of estoppel, at least as the Board recog-
nizes them, are "(1) lack of knowledge and the means to
obtain knowledge . . . (2) good-faith reliance upon the
misleading conduct of the party to be estopped; and (3)
detriment or prejudice from such reliance." Oakland
Press Co., 266 NLRB 107-108 (1983). 22 Here, there are
ample facts found above to justify the conclusion that
important actors in the Local at least knew at all materi-
al times that Noble and Alexen were supervisory repre-
sentatives of the Company. And especially where the
stipulation relied on by Respondents encompasses a
period of time after the complained-of action by the
Local had occurred and relates only to possible infer-
ences which might be drawn from the Company's report
to a third party entity (a benefit trust), it is impossible to
conclude either that Respondents were, in fact, misled
about the status of Noble or Alexen, or that they were
without the means to obtain that knowledge, or that they
acted in detrimental reliance upon such inferences as
might be gleaned from the trust reports.
E. The Question of the International's Liability
Without citing authorities, the International claims in
substance that its mere denial of internal appeals from
"affirmative action" taken by the Local does not estab-
lish a violation of the Act. In these peculiar circum-
stances, where the record shows that it was the Local
which imposed the fines against Noble and Alexen and
the International's only role was in the processing of ap-
peals which were filed in accordance with the Interna-
tional's constitution, I agree that the International shares
no liability. For the International's role involved a com-
bination of ministerial and judicial functions limited
solely to review of the contentions made by the parties
on appeal and a comparison of those contentions with
the record, if any, made by appellants Noble and Alexen
at the trial board level.2 3
The features noted above persuade me that the Inter-
national's role in this case is not materially distinguish-
able from that played by the union international body in
Musicians (Don Glasser), 165 NLRB 798, 800-801 (1967),
" It must also be observed that the Board did not, in the cited case,
indicate any disposition to apply equitable principles of estoppel where to
do so would contravene the paramount commands of the Act. Ibid.
"s In denying both appeals, the International's president stated:
The record is bare of any evidence submitted by you or on your
behalf which would show that you are a management representative
of Bergelectric Corporation.
It would appear elementary to me that you would have attended
the trial board hearing at which time you would have been afforded
the opportunity of presenting your position on the charges, and then
meet the case of your accusor by evidence or argument. This you
failed to do.
Although it was not true, in the case of the picketing no-show discipline
against Noble, that he had failed to appear at the trial convenced to hear
the charge, this seems without significance when, by Noble's admission,
his only statement at the time was the conclusionary "position" which he
took that he was "in supervision and therefore ... had chosen to remain
neutral as far as union activities."
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affd. in pertinent part sub nom. Don Glasser v. NLRB,
395 F.2d 401 (2d Cir. 1968). There, the Board rejected
the contention that the Federation (the international
body) violated Section 8(b)(2) of the Act by its "process-
ing" of disciplinary charges against an employer-member
pursuant to Federation bylaws. The Board adopted the
reasoning that "the mere decisional act of processing and
finding merit . . . in a charge does not constitute an 'at-
tempt to cause' discrimination on the part of the deci-
sional body." Id. at 801. In affirming the Board in this
regard, the Second Circuit observed that:
The processing of charges is no more than a series
of ministerial steps taken in the office of the Secre-
tary of the Federation in order to prepare the
charges for decision by the Executive Board. Simi-
larly, in its consideration of charges against mem-
bers, the Executive Board, acting in a quasi-judicial
capacity, merely passes on the issues brought before
it for the purpose of determining whether the party
charged is guilty of a bylaw violation. There is no
Federation action directed at the employer until an
attempt is made to enforce a fine or other penalty
imposed pursuant to an Executive Board decision
sustaining a charge.2 4
The General Counsel does not address on brief exactly
what it is about the International's behavior in this case
which should render it liable for having sat in a "quasi-
judicial capacity" to hear the appeals of Noble and
Alexen from disciplinary action taken against them by
the Local. Neither does she contend that the Internation-
al's function involved anything more than "pass[ing] on
the issues brought before it for the purpose of determin-
ing whether the party charged is guilty of a bylaw viola-
tion." Indeed, unlike the "trial court" function of the
Federation in the cases just cited, the International's role
herein is more properly understood as that of an appel-
late body whose jurisdiction is not properly invoked
until an appeal is filed by a party aggrieved by action
taken at the Local level. The International's denial of
Noble's and Alexen's appeals did nothing in the way of
"imposition" of adverse action on those individuals, nor
did it give the Local the right to take action against
them which the Local did not already enjoy. To that
24 395 F.2d at 404-405.
extent, therefore, it would involve an even greater con-
ceptual leap to conclude that the International's behavior
in this case somehow had some independent tendency to
restrain or coerce the Company in the selection of its
8(b)(1)(B) agents.
Accordingly, I would dismiss the complaint insofar as
it challenges the International's conduct in denying
Noble's and Alexen's appeal.
Upon the foregoing, I reach these ultimate
CONCLUSIONS OF LAW
1. Respondents are each labor organizations within the
meaning of Section 2(5) of the Act.
2. The Board's jurisdiction is properly invoked in this
case by virtue of the Local's actions taken against super-
visory representatives of the Company, an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. To the extent that the Local took internal discipli-
nary action against Luther Noble and Curt Alexen Jr.
for failing to perform picketing assignments which con-
flicted with their normal supervisory work schedules,
and by the Local's action in disciplining Luther Noble
for performing supervisory work on June 15, 1981, the
Local has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(B) of the
Act.
4. The International did not violate the Act by proc-
essing, hearing, and denying the appeals of Noble and
Alexen from the unlawful discipline imposed upon them
by the Local.
THE REMEDY
Having found that the Local violated the Act in cer-
tain respects, I shall recommend that it be ordered to
cease and desist therefrom, that it post an appropriate re-
medial notice to members, and that it rescind and refund
to Noble and Alexen those portions of the disciplinary
fines which it levied against them in violation of Section
8(b)(1)(B), 25 with appropriate interest. 2 6
[Recommended Order omitted from publication.]
25 Whether, and if so how much, the Local would have lawfully fined
Nobel and Alexen for picketing no-shows on days when their picket as-
signments did not conflict with their supervisory work schedules is a
matter for the compliance process.
26 See Florida Steel Corp., 231 NLRB 651 (1977).
34