Elevator Constructors Local 10 (Thyssen General Elevator Co.)

National Labor Relations Board - Board Decisions

Nov 22, 2002

338 N.L.R.B. 701 (N.L.R.B. 2002)

ELEVATOR CONSTRUCTORS LOCAL 10 (THYSSEN GENERAL ELEVATOR CO.) 701
Local No. 10, International Union of Elevator Con-
structors, AFL–CIO (Thyssen General Elevator
Company) and National Elevator Industry, Inc.
Case 5–CB–8986
November 22, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On November 20, 2000, Administrative Law Judge
Richard A. Scully issued the attached decision. The Re-
spondent filed exceptions, the General Counsel and the
Charging Party filed briefs in opposition, and the Re-
spondent filed a reply brief.
This case presents issues involving Section 8(b)(1)(B)
of the Act, which proscribes union coercion of an em-
ployer in the selection of its representatives for the pur-
pose of collective bargaining or the adjustment of griev-
ances. The complaint alleges that the Respondent, Inter-
national Union of Elevator Constructors (IUEC), Local
No. 10, violated Section 8(b)(1)(B) by fining member
Horace Stillman Jr., for characterizing another member
as “nothing but trouble” and recommending that the
member be removed from a jobsite supervised by Still-
man.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order as modified below in the “Amended Remedy”
section.
The pertinent facts are not in dispute. Stillman has
been a member of the Union for 30 years. For approxi-
mately 16 years, Thyssen Elevator (the Employer) em-
ployed Stillman as a mechanic-in-charge (MIC). From
January 11 to July 30, 1999, Stillman worked as the MIC
at a construction site in Wilkes-Barre, Pennsylvania,
where Local 84 had jurisdiction. Stillman was the only
daily supervisor at the jobsite, supervising four to eight
employees.
The record shows—and, notably, our dissenting col-
league agrees—that Stillman’s daily responsibilities were
such as to render him an 8(b)(1)(B) representative of the
Employer. Specifically, Stillman’s daily activities in-
volved addressing and resolving numerous employee
problems and complaints, including those pertaining to
wage rates, expenses, work hours, length of breaks, poor
work performance, and safety issues. Resolution of these
issues necessarily involved interpretation of pertinent
contract provisions. Stillman, as the Employer’s only
daily representative on the project, also resolved em-
ployee grievances, albeit at an informal level before such
complaints became subject to the formal grievance pro-
cedure.
This case arises from a wage dispute concerning em-
ployee Joe Gibson. Gibson, who previously worked for
the Employer at a Connecticut jobsite, arrived at the
Wilkes-Barre project in February or March 1999. A dis-
pute arose between Gibson and Stillman regarding Gib-
son’s wage rate. Gibson contended that he had been
promised a higher rate than the regular Local 84 contrac-
tual rate. Stillman recommended to Ken Gough, the pro-
ject’s construction superintendent, that the Employer pay
Gibson the latter rate, and his recommendation was fol-
lowed.
After determining Gibson’s wage rate, Stillman no-
ticed that Gibson continually complained about his pay
and that his complaints significantly slowed and ham-
pered his work. Consequently, Stillman addressed the
matter in a conversation with Ken Gough. During that
conversation, Stillman told Gough that Gibson was
“nothing but trouble” and recommended Gibson’s re-
moval from the project. Gough followed this recom-
mendation, and Gibson was terminated.1 Stillman in-
formed Local 84 Business Representative August Why-
meyer about Gibson’s termination.
Following Gibson’s termination, Whymeyer filed in-
ternal union charges against Stillman. The charges ac-
cused Stillman of violating the IUEC constitution by
“wronging another member” because he had told a supe-
rior at Thyssen that Gibson was “nothing but trouble”
and had sought Gibson’s removal from the job. At
Stillman’s request, a trial was held before the Respon-
dent’s trial board. The trial board found that Stillman
had violated the constitution, imposed a $1900 fine, and
lifted the suspension of the $1400 balance on another
fine that had been imposed on Stillman for a past viola-
tion. Stillman appealed to the IUEC general executive
board, which upheld the trial board’s decision. The
judge determined that the Respondent’s disciplinary ac-
tion against Stillman violated Section 8(b)(1)(B). We
agree with the judge.
Section 8(b)(1)(B) provides that “[i]t shall be an unfair
labor practice for a labor organization or its agents . . . to
restrain or coerce . . . an employer in the selection of his
representatives for the purposes of collective bargaining
or the adjustment of grievances.” The conduct pro-
scribed by Section 8(b)(1)(B) includes union discipline
of a supervisor-member which may “adversely affect”
the manner in which the supervisor-member performs
collective bargaining, grievance adjustment, or related
activities on behalf of an employer. San Francisco-

1 There is no allegation that this termination was unlawful.
338 NLRB No. 83
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 702
Oakland Mailers’ Local 18 (Northwest Publications),
172 NLRB 2173 (1968). However, Section 8(b)(1)(B)
does not proscribe all union discipline of supervisor-
members for their conduct when representing the inter-
ests of their employers. As explained in Florida Power
& Light Co. v. Electrical Workers IBEW Local 641, “a
union’s discipline of one of its members who is a super-
visory employee can constitute a violation of Section
8(b)(1)(B) only when that discipline may adversely af-
fect the supervisor’s conduct in performing the duties of,
and acting in his capacity as, grievance adjuster or col-
lective bargainer on behalf of the employer.” 417 U.S.
790, 804–805 (1974). Thus, Section 8(b)(1)(B) prohibits
union discipline of supervisor-members only when: (1)
the supervisor-member being disciplined is a “represen-
tative[s] for the purposes of collective bargaining or the
adjustment of grievances” and (2) the union’s sanction
may have a foreseeable adverse effect on the future per-
formance of 8(b)(1)(B) activities by the supervisor-
member.
In the case at hand, the judge found and our dissenting
colleague agrees that Stillman was an 8(b)(1)(B) repre-
sentative of the Employer. The remaining question is
whether the Respondent’s discipline had a foreseeable
adverse effect on his future performance of 8(b)(1)(B)
activities. For the reasons set forth below, we find that it
did.
The record reflects that the Union’s discipline of
Stillman was inextricably intertwined with Stillman’s
denial of Gibson’s wage claim. Specifically, after Still-
man denied Gibson’s request for a higher wage, Gibson
continued to submit his timesheets at that rejected rate.
Gibson then routinely stopped working in order to com-
plain about Stillman’s denial of the higher rate. Gibson
said that “If I’m going to get half the pay, I’m going to
do half the work.” Thus, Stillman recommended Gib-
son’s discharge because Gibson refused to accept the
contractual wage rate, and his persistent determination to
receive a higher rate significantly hampered his job per-
formance.
As found by the judge, Stillman’s denial of Gibson’s
wage claim constituted grievance adjustment within the
meaning of Section 8(b)(1)(B). It also involved the re-
lated activity of contract interpretation. Stillman testified
that the Local 84 collective-bargaining agreement with
the Employer governed wage rates. Gibson claimed a
higher rate than was provided for in the agreement.
Stillman recommended that Gibson be paid the contrac-
tual rate.
Our dissenting colleague notes that the record fails to
show that Gibson relied on a specific contractual provi-
sion in claiming the higher wage rate. From this she
concludes that the resolution of his wage claim did not
involve contract interpretation. We disagree. While
Gibson may not have relied on a contractual provision in
claiming a higher rate, Stillman necessarily interpreted
and relied upon pertinent provisions in the Local 84 col-
lective-bargaining agreement in denying Gibson’s claim.
As noted above, Stillman testified that the collective-
bargaining agreement between the Employer and Local
84 determined the wage rate that Gibson was entitled to
receive. He testified further, “I told [Gibson] that he
agreed to take a Local 84 rate and that’s what he would
get paid.” Further, even if Stillman was not interpreting
the contract, he was at least denying Gibson’s grievance
concerning his wage claim.
Thus, Stillman was engaged in 8(b)(1)(B) duties when
he denied Gibson’s wage claim. And, as we have shown
above, that denial was inextricably intertwined with Gib-
son’s misconduct, the discharge of Gibson, and the Re-
spondent’s discipline of Stillman. In light of this causal
connection, we find that Stillman would reasonably fear
that denying similar grievances in the future would lead
to the same causal chain of events, i.e., misconduct by
the employee, punishment therefore, and resultant union
discipline. If the Respondent’s discipline were allowed
to stand, Stillman might be induced to forgo adherence to
the Employer’s interpretation of the collective-bargaining
agreement in response to grievances like Gibson’s. For,
by doing so, he would avoid employee disruptions, the
need to discharge, and union discipline. Hence, the dis-
cipline had the foreseeable consequence of weakening
Stillman’s backbone vis-à-vis employee grievances.
Our dissenting colleague disagrees with the foregoing
analysis. She contends that there is no causal connection
between the denial of Gibson’s grievance and the Re-
spondent’s discipline of Stillman. Contrary to our col-
league, the record amply demonstrates that the two
events are linked. Gibson revealed the connection when
he remarked to his fellow employees, “If I’m going to
get half the pay, I’m going to do half the work.” There-
fore, Respondent’s discipline of Stillman did not merely
follow chronologically his denial of Gibson’s grievance,
as characterized by our colleague. Rather, none of the
steps in the chain of events, beginning with Gibson’s
misconduct and ending with the Union’s discipline of
Stillman, would have occurred but for Stillman’s denial
of Gibson’s grievance. The conclusion is thus inescap-
able that the Respondent’s discipline of Stillman and
Stillman’s denial of Gibson’s grievance are causally
connected.2

2 Accordingly, our colleague errs in stating that our approach has no
limiting principle. In the absence of a clear causal connection between
the Respondent’s discipline and Stillman’s performance of 8(b)(1)(B)
ELEVATOR CONSTRUCTORS LOCAL 10 (THYSSEN GENERAL ELEVATOR CO.) 703
In its exceptions, the Respondent contends that, inas-
much as its discipline of Stillman was directed at his rec-
ommendation to discharge Gibson and not at Stillman’s
denial of Gibson’s wage claim, the discipline could not
have a foreseeable adverse affect on Stillman’s future
performance of 8(b)(1)(B) duties. Relying on language
in NLRB v. Electrical Workers IBEW Local 340 (Royal
Electric), the Respondent asserts that union discipline of
a supervisor-member is unlawful only when the disci-
pline is “directed at” the supervisor’s performance of
8(b)(1)(B) activities.3 In that case the Court considered
whether a union’s discipline of supervisors who have
never performed covered functions for the employer may
violate Section 8(b)(1)(B) because the supervisors are
part of a reservoir of employees from which the employ-
ers could select future representatives to perform
8(b)(1)(B) duties. The Court rejected the “reservoir doc-
trine,” holding that union discipline of a supervisor-
member violates Section 8(b)(1)(B) only if the member
is actually engaged in collective bargaining, grievance
adjustment, or a closely related activity, such as contract
interpretation. The Court reasoned that union discipline
could not have a foreseeable adverse effect on a supervi-
sor’s future performance of covered functions if the per-
formance of those functions is merely hypothetical.
However, the Court simply did not have before it the
issue which we have before us now—whether union dis-
cipline of a supervisor-member who is actually engaged
in collective bargaining, grievance adjustment, or a
closely related activity on behalf of the employer can
violate Section 8(b)(1)(B) even though the discipline is
not “directed at” the supervisor-member’s performance
of those functions.4 Accordingly, the Court’s pro-
nouncements on this issue are not binding judicial prece-
dent. And, while we adhere carefully to the words of the
Court, we cannot say that the quoted passage clearly in-
dicates that the Court intended that union discipline of a
supervisor-member can never violate Section 8(b)(1)(B)
if the discipline is not “directed at” the supervisor-
member’s performance of 8(b)(1)(B) duties. For, as the
Court has repeatedly stated, it is the foreseeable adverse

functions, we would not find that the Respondent’s discipline had a
foreseeable adverse effect on Stillman’s future performance of those
functions.
3 The Supreme Court does not use the words “directed at.” See 481
U.S. 573, 582 (1987) “an adverse effect on future Sec. 8(b)(1)(B) ac-
tivities exists only when an employer representative is disciplined for
behavior that occurs while he or she is engaged in Section 8(b)(1)(B)
duties.”
4 For the purposes of the following analysis, we assume arguendo
that the Union’s discipline of Stillman was “directed at” his discharge
of Gibson. However, as discussed above, we do not believe that the
discharge can be separated from the denial of Gibson’s wage claim.
effect of union discipline on a supervisor-member’s fu-
ture performance of covered functions on behalf of the
employer that is the critical factor in determining
whether the discipline violates Section 8(b)(1)(B).5 In
our view, the Respondent’s discipline of Stillman, al-
though not directed at his performance of covered func-
tions, had a foreseeable adverse effect on his future per-
formance of those functions.
Thus, as discussed above, Stillman was engaged in
8(b)(1)(B) duties when he denied Gibson’s wage claim.
And, as also discussed above, that denial was inextrica-
bly intertwined with Gibson’s misconduct, the discharge
of Gibson, and the Respondent’s discipline of Stillman.
If, as we have shown, these events were inextricably in-
tertwined, Stillman would reasonably fear that adherence
to the Employer’s interpretation of the collective-
bargaining agreement when faced with employee griev-
ances like Gibson’s would produce the same causal chain
of events involved herein, i.e., misconduct by the em-
ployee, punishment therefore, and resultant union disci-
pline. Therefore, we agree with the judge that the Re-
spondent’s discipline deprived the Employer of the un-
coerced representation of its interests in dealing with the
Union in collective bargaining, grievance adjustment,
and related activities. Accordingly, the Respondent re-
strained and coerced the Employer in the selection of its
representatives within the meaning of Section 8(b)(1)(B).
AMENDED REMEDY
The Respondent excepts to the judge’s award of ex-
penses to member Horace F. Stillman Jr., arguing that,
because Stillman is a third-party witness, he is not enti-
tled to such an award. We reject this contention, and we
agree with the judge that an award to Stillman for ex-
penses incurred in defending against the Respondent’s
disciplinary charge is proper. The instant case is distin-
guishable from Operating Engineers Local 478 (Stone &
Webster Engineering Corp.), 283 NLRB 734 (1987). In
that case, the Board denied the General Counsel’s re-
quest that the union be ordered to reimburse the
8(b)(1)(B) representative for expenses incurred during
the Board proceeding concerning the 8(b)(1)(B) allega-
tion. Here, we award expenses to Stillman for costs that
he incurred in defending himself at the Union’s discipli-
nary hearing. This award renders Stillman whole for any
harm suffered in defending against the unlawful charges.
In short, this award places Stillman in the place he would
have been absent the Respondent’s 8(b)(1)(B) violation.
5 Florida Power & Light, supra at 804–805; American Broadcasting
Cos. v. Writers Guild West, Inc., 437 U.S. 411, 429 (1978); and Royal
Electric, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 704
The remedy also includes a reimbursement to Stillman
of any part of the fine that he may have paid. When fin-
ing Stillman, the Respondent not only imposed a fine for
the alleged violation, but it also lifted the suspension of
another fine that Stillman previously had received for a
past violation. The reimbursement to Stillman requires a
return to the status quo that existed prior to the imposi-
tion of the latest fine, i.e., the other fine will return to its
suspended status.
ORDER
The National Labor Relations Board orders that the
Respondent, Local No. 10, International Union of Eleva-
tor Constructors, AFL–CIO, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
“(c) Return to suspended status the $1400 fine against
Horace Stillman that had been unsuspended.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER LIEBMAN, dissenting.
The Supreme Court has made it clear that a union does
not violate Section 8(b)(1)(B) of the Act by fining a
member for actions taken as a supervisor, as opposed to
actions taken as one of the employer’s “representatives
for the purposes of collective bargaining or the adjust-
ment of grievances” (in the words of the statute). See
NLRB v. Electrical Workers IBEW Local 340 (Royal
Electric), 481 U.S. 573 (1987); Florida Power & Light
Co. v. Electrical Workers IBEW Local 641, 417 U.S. 790
(1974). Here, the Union fined a supervisor-member for
recommending that a fellow member be discharged. In
my view, while the supervisor’s conduct amounted to the
exercise of supervisory authority under Section 2(11) of
the Act, it fell outside the much narrower scope of Sec-
tion 8(b)(1)(B). The majority’s decision, which finds a
violation, represents the sort of expansive application of
Section 8(b)(1)(B) that the courts have rightly criticized.
See, e.g., NLRB v. Sheet Metal Workers Local 104, 64
F.3d 465, 467–470 (9th Cir. 1995).
Factual Background
The facts in this case are not in serious dispute. Horace
Stillman has been a member of the Union for 30 years,
and for the last 16 years he also worked as a foreman for
the Employer, most recently as a foreman at the Em-
ployer’s Veteran’s Administration hospital jobsite in
Wilkes-Barre, Pennsylvania. As further detailed in the
judge’s decision, Stillman had sufficient range of respon-
sibilities while serving as foreman to be both a statutory
supervisor and an 8(b)(1)(B) representative. However,
the majority errs in finding that the internal union disci-
pline at issue had anything to do with Stillman’s exercise
of these 8(b)(1)(B) responsibilities.
The case turns on Stillman’s recommendation to Con-
struction Superintendent Ken Gough, that mechanic Joe
Gibson, a union member, be removed from the Wilkes-
Barre project. Gibson had been transferred from a jobsite
in Connecticut, and he came to the Wilkes-Barre project
claiming that he had been promised a higher wage rate
than what was being earned by other employees covered
by the local agreement with Elevator Constructors Local
84, which applied to the Wilkes-Barre project. The re-
cord does not clarify who purportedly promised Gibson
the higher wage rate, or on what basis Gibson thought he
was owed the higher rate. Stillman refused to give Gib-
son more than the Local 84 wage rate, and his recom-
mendation to ignore Gibson’s request for a higher rate
was upheld by Construction Superintendent Gough.
There is no indication that Local 84 took any position on
Gibson’s wage claim, or even was aware of it.
Gibson continued to complain about his wage rate be-
ing too low, and Stillman observed that his pace of work
was less than that of his fellow employees. The judge
found that “Gibson constantly complained about his
wage rate to the extent that he was disruptive and his low
production was adversely affecting work on the project.”
Stillman tried to get Gibson to stop complaining and to
do his work, but was unsuccessful. Stillman then told
Gough that Gibson “was nothing but trouble” and rec-
ommended that he be taken off the Wilkes-Barre project.
Gibson was laid off, after being at the Wilkes-Barre pro-
ject for 2 weeks.
Local 84 Business Representative August Whymeyer
brought internal union charges against Stillman, which
ultimately were considered by the Respondent, Elevator
Constructors Local 10, Supervisor Stillman’s home Lo-
cal. As clarified at the internal disciplinary hearing, the
allegations considered by that panel were that Stillman
had informed Gough that Gibson “was nothing but trou-
ble and to get him off the job.” Stillman admitted at the
disciplinary hearing that he had recommended to Gough
that Gibson be removed from the job both because of his
wage complaints and because of his slow production.
Stillman clarified that Gibson not only worked slowly,
but that he also would stop working, and that he would
interfere with the work of his coworkers when he would
complain that he was owed more than the Local 84
wages. One witness, presented by Whymeyer, testified
that Gibson had remarked, “If I’m going to get half the
pay, I’m going to do half the work.” Following the hear-
ing, Respondent Local 10 imposed internal union disci-
pline on Stillman on the basis that he had violated the
ELEVATOR CONSTRUCTORS LOCAL 10 (THYSSEN GENERAL ELEVATOR CO.) 705
Union’s constitution by harming a fellow union member.
The Respondent imposed fines on Stillman, which were
upheld on appeal to the International Union.
Analysis
The basic principles that control this case are straight-
forward: As the Supreme Court has held, “a union’s
discipline of one of its members who is a supervisory
employee can constitute a violation of Section 8(b)(1)(B)
only when that discipline may adversely affect the super-
visor’s conduct in performing the duties of, and acting in
his capacity as, grievance adjuster or collective bargainer
on behalf of the employer.” Florida Power, supra at
804–805. In turn, a union may discipline a supervisor-
member for “acts or omissions that occur while the su-
pervisor-member is engaged in supervisory activities
other than Section 8(b)(1)(B) activities.” Royal Electric,
supra, 481 U.S. at 585 fn. 8 (emphasis in original). Fi-
nally, in defining the scope of 8(b)(1)(B) activities, the
Board has held that the statutory reference to “collective
bargaining” includes the function of contract interpreta-
tion1 and that the reference to “adjustment of grievances”
includes the informal adjustment of disputes before they
reach a formalized grievance process.2
Here, the judge concluded, and my colleagues agree,
that the Respondent’s actions taken against Stillman
“arose from and were inextricably intertwined” with his
actions while acting as an 8(b)(1)(B) representative in
three respects. I disagree on each point.
First, the judge mistakenly characterized Stillman’s ac-
tions as amounting to contract interpretation (and thus
collective bargaining). The judge found that “Stillman
first determined that Gibson was not entitled to the wage
rate he was claiming under a provision of the Standard
Agreement.” As a factual matter, however, the record
fails to show that Gibson relied on a contractual provi-
sion in seeking the higher wage rate. The standard
agreement made part of the record is silent on specific
wage rates, which apparently were addressed by the vari-
ous local agreements negotiated with local unions, but
which were not entered into evidence. The standard
agreement also contains no provision regarding workers
in one geographic area being covered by wage rates ne-
gotiated for another geographic area. At no time did the

t 805.
1 See San Francisco-Oakland Mailers’ Union No. 18 (Northwest
Publications), 172 NLRB 2173 (1968). The Supreme Court has
characterized this doctrine as being at best “within the outer limits” of
the coverage of this statutory provision. Royal Electric, supra, 481
U.S. at 584, quoting Florida Power, supra, 417 U.S. a
2 See Sheet Metal Workers Local 68 (DeMoss Co.), 298 NLRB
1000, 1003 (1990). But cf. Royal Electric, supra, 481 U.S. at 589 fn.
12 (casting doubt on, but not passing on, consistency between “Board’s
broad definition of grievance—and hence of ‘grievance adjustment’”
and “narrow purpose and scope of § 8(b)(1)(B).”)
Respondent Union, or Local 84, ever provide any support
for Gibson’s claim that he was owed a higher rate for
working at the Wilkes-Barre, Pennsylvania jobsite. On
the present record, the wage dispute initiated by Gibson
has been shown to be no more than an individual’s per-
sonal complaint, based on some private expectation, and
not one that had anything to do with contract interpreta-
tion. The majority contends that Stillman engaged in
contract interpretation because he refused to apply the
contract beyond its terms. But while Stillman may have
acted consistent with the agreement, there is no evidence
that he relied on it, much less that he interpreted it—and,
of course, no evidence that Gibson or the Union ever
disputed Stillman’s action by invoking the agreement.
Second, the judge found that Stillman was involved in
the disposition of Gibson’s informal grievance concern-
ing his wage rate. Although I agree that under Board
precedent, Stillman’s denial of Gibson’s initial request to
receive higher wages arguably can be characterized as a
form of grievance adjustment, the actual disposition of
Gibson’s complaint has no direct bearing on why Still-
man was disciplined by the Respondent Union. The Un-
ion charged Stillman not with denying Gibson’s informal
wage complaint, but with discharging him. And the rea-
son for Stillman’s recommendation that Gibson be dis-
charged was not Gibson’s substantive claim that he
should be paid more than his fellow employees were
paid. Rather, it was Gibson’s insufficient productivity
and his disruptive behavior based on his constant com-
plaints to his colleagues. The judge erred in finding that
the union fines were “designed to and were likely to
compel [Stillman] . . . to accept [the Union’s] position
with respect to grievances.” In fact, Local 84 and Re-
spondent Local 10 never took a position on Gibson’s
individual wage complaint. Accordingly, there is no ba-
sis for finding Stillman’s grievance adjustment responsi-
bilities under Section 8(b)(1)(B) were likely to have been
adversely affected.
The majority argues that because Gibson’s poor job
performance apparently was caused by his dissatisfaction
with his wages, Stillman’s denial of Gibson’s request for
higher wages was “inextricably intertwined” with Gib-
son’s discharge. But this argument simply does not fol-
low. There is no evidence that the Union’s discipline
was directed at Stillman’s denial of the wage claim. The
Union never endorsed the claim, and there is no apparent
reason why it would have done so, since Gibson seem-
ingly sought special treatment with no basis in the collec-
tive-bargaining agreement. That Gibson reacted to the
denial of his wage claim by engaging in misconduct by
no means entails a causal connection between the two.
Gibson himself chose that exaggerated response to Still-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 706
man’s denial of his wage claim. Thus, there is no “inex-
tricable” link between the denial of the wage claim and
the discharge. The majority focuses on the wrong causal
connection: the relevant inquiry is whether the Union’s
discipline will predictably have an adverse effect on
Stillman’s future exercise of 8(b)(1)(B) authority—e.g.,
the future denial of a wage claim. That the misconduct
followed the denial of the wage claim is irrelevant to this
analysis. Although Stillman might in the future hesitate
to discharge an employee, he could not reasonably hesi-
tate to deny a wage claim, for fear that by doing so he
might provoke an employee to engage in dischargeable
misconduct and thereby invite on himself union disci-
pline. That connection is too attenuated.
Finally, the judge reasoned that Stillman’s action to-
ward Gibson involved his representation of the Em-
ployer’s interests when Gibson’s reaction proved disrup-
tive. I agree—but this rationale implicates nothing more
than the core role of a supervisor who has recommended
the discharge of an employee for a performance-based
reason. To hold otherwise is to resurrect the Board’s old
“reservoir doctrine,” rejected by the Supreme Court in
Florida Power, which reasoned that all supervisors are
protected by Section 8(b)(1)(B), because they constitute
a “reservoir” of potential employer representatives.
The point of Gibson’s discharge was to remove an un-
productive worker, not to vindicate the Employer’s deci-
sion on a wage matter that was of no apparent interest to
anyone but Gibson. The effort to describe the routine
exercise of supervisory authority as something more il-
lustrates my point here: that the majority’s approach has
no limiting principle. Provided a supervisor also has
8(b)(1)(B) responsibilities, there seems to be no way to
distinguish between his discharge of those responsibili-
ties and the performance of his ordinary supervisory du-
ties. Every action of the supervisor can be formulated in
terms of his 8(b)(1)(B) duties, immunizing him from
union discipline. This truly is the “reservoir” doctrine.
I recognize that the discipline of Stillman was directed
at the performance of his normal supervisory responsi-
bilities. But this conflicting-loyalties dilemma, recog-
nized by the Court in both Florida Power and Royal
Electric, is inherent whenever a supervisor remains a
union member. The Court made clear that Congress did
not intend Section 8(b)(1)(B) to address this situation. As
the Court in Florida Power underscored, an employer is
“at liberty to demand absolute loyalty from his supervi-
sory personnel by insisting . . . that they neither partici-
pate in, nor retain membership in, a labor organization.”
417 U.S. at 812. See Parker-Robb Chevrolet, 262 NLRB
402 (1982) (noting that supervisors have not been cov-
ered by protections of the Act since 1947, when they
were excluded from the definition of statutory employ-
ees).3
In his concurring opinion in Royal Electric, Justice
Scalia described the Board’s approach to Section
8(b)(1)(B) as a series of apparently reasonable steps lead-
ing to a result never contemplated by Congress. 481
U.S. at 598. The majority’s decision unfortunately sug-
gests that the Board has again traveled too far. Accord-
ingly, I dissent.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT file internal union charges against, levy
fines against, or otherwise discipline Horace Stillman or
any other representative of Thyssen General Elevator
Company for actions taken while acting in the capacity
of an 8(b)(1)(B) representative for the purpose of collec-
tive bargaining or adjustment of grievances.
WE WILL NOT in any like or related manner restrain or
coerce Thyssen General Elevator Company in the selec-
tion of its 8(b)(1)(B) representative for the purpose of
collective bargaining or adjustment of grievances.
WE WILL, within 14 days of the Board’s Order, rescind
the internal union charges and the fine levied against
Horace Stillman, return to suspended status the $1400
fine against Stillman that had been unsuspended, remove
all references to the charges and fine from our files, and
within 3 days thereafter notify him and the Employer in
writing that this has been done and that the charges and
fine will not be used against him in any way.

3 For the reasons stated, Sec. 8(b)(1)(B) is not implicated here. Nor
would Sec. 8(b)(1)(A) apply, even if Stillman were a covered em-
ployee. The Respondent’s discipline of Stillman clearly related to a
legitimate union objective: preventing members from inflicting harm on
fellow members by causing them to lose their jobs. See, e.g., Commu-
nications Workers Local 5795 (Western Electric Co.), 192 NLRB 556,
557 (1971).
ELEVATOR CONSTRUCTORS LOCAL 10 (THYSSEN GENERAL ELEVATOR CO.) 707
WE WILL, within 14 days of the Board’s Order, refund
to Horace Stillman any of the fine levied against him that
has been paid and WE WILL reimburse him for any ex-
penses that he has incurred in defending against the
charges, with interest.

LOCAL 10, INTERNATIONAL UNION OF ELEVA-
TOR CONSTRUCTORS, AFL–CIO

John S. Ferrer, Esq., for the General Counsel.
Robert Matisoff, Esq. and R. Richard Hopp, Esq., of Washing-
ton, D.C., for the Respondent.
Charles O. Strahley, Esq., of Teaneck, New Jersey, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. Upon a
charge filed on November 16, 1999, by the National Elevator
Industry, Inc., the Regional Director for Region 5 of the Na-
tional Labor Relations Board (the Board) issued a complaint on
March 31, 2000, alleging that Local 10, International Union of
Elevator Constructors (IUEC), AFL–CIO, had violated Section
8(b)(1)(B) of the National Labor Relations Act (the Act). The
Respondent filed a timely answer denying that it had committed
any violation of the Act.
A hearing was held in Washington, D.C. on August 22,
2000, at which all parties were given a full opportunity to ex-
amine and cross-examine witnesses and to present other evi-
dence and argument. Briefs submitted on behalf of the General
Counsel and the Respondent have been given due considera-
tion. Upon the entire record, and from my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer in this matter, Thyssen General Elevator
Company, is a Delaware corporation with an office and place of
business in Linthicum, Maryland, engaged in the construction
and maintenance of elevator systems for various customers,
including the U.S. Veterans Administration (VA) in Wilkes-
Barre, Pennsylvania. Annually, in conducting its business op-
erations, Thyssen performs services valued in excess of
$50,000 in States other than the Commonwealth of Pennsyl-
vania. At all times material, Thyssen has been an employer-
member of the Charging Party to which it has delegated author-
ity to negotiate and administer collective-bargaining agree-
ments with various labor organizations, including the Respon-
dent. The Respondent admits, and I find, that at all time mate-
rial Thyssen has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find, that all times material it
has been a labor organization within the meaning of Section
2(5) of the Act with an office in Camp Springs, Maryland.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Horace F. Stillman Jr., has been a member of the Respondent
for over 30 years. He has been employed by Thyssen and its
predecessor for about 16 years as a mechanic-in-charge (MIC),
which is the equivalent of a foreman. He was assigned to work
on a project involving the installation of six elevators in an
addition being built at a VA hospital in Wilkes-Barre, Pennsyl-
vania, from January 11 to July 30, 1999.1 The project was lo-
cated within the geographic jurisdiction of IUEC Local 84. The
terms of employment of elevator mechanics on the project were
governed by the standard collective-bargaining agreement to
which Thyssen and the Respondent were signatories (the stan-
dard agreement) and employees’ expenses were covered by a
local agreement with Local 84 (the local agreement). The gen-
eral contractor on the project was Bell Construction.
Stillman was the subject of internal union disciplinary
charges filed by Local 84 Business Representative August
Whymeyer. Whymeyer accused Stillman of violating the IUEC
constitution by “wronging another member” because he told a
superior at Thyssen that employee Joe Gibson was “nothing but
trouble” and sought to have him removed from the VA job.
After Stillman expressed doubt that he would get a fair hearing
before Local 84, the charges were referred by it to the executive
board of Local 10, Stillman’s home Local, which held a trial
that Stillman attended on June 7. The trial board found that
Stillman had violated the IUEC constitution, imposed a fine of
$1900, and directed him to appear at its August meeting for a
reprimand. It also lifted the suspension of the $1400 balance
on another fine that had been imposed on Stillman following a
May 4, 1998 trial on other charges against him. Stillman ap-
pealed to the IUEC general executive board, which upheld the
trial board’s decision.
B. Other Facts
The evidence shows that Stillman was an experienced fore-
man who was brought to the VA hospital project as the MIC to
run a difficult job that was behind schedule. While there, he
supervised a single shift with a crew of four to eight employees
who usually worked in two-man teams consisting of a me-
chanic and a helper. Stillman was the only supervisor at the
site on a daily basis. Ken Gough from the Employer’s Balti-
more office was the construction superintendent for the job and
visited the jobsite one or two times a week for about 15 to 30
minutes at a time. Gough reported to Martin Walker, the con-
struction manager who had asked Stillman to take over the MIC
position on the project. Walker visited the jobsite every couple
of months, spending from 1 to 2 hours there. Stillman also
spoke by telephone with both Gough and Walker a couple of
times a week.
Stillman made the daily job assignments for all Thyssen em-
ployees and changed their assignments if he found it necessary.
He determined the number of employees needed on the job at a
given time and recommended that the work force be increased
or reduced accordingly. When he was not present at the work-

1 All dates are in 1999, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 708
site and the standard agreement required the presence of an
MIC because of the number of employees working, he ap-
pointed an acting MIC to serve in his absence. Stillman was
Thyssen’s representative at the general contractor’s weekly
progress meetings and in dealing with the VA inspector as-
signed to oversee installation of the elevators. He was respon-
sible for interpreting the sales contract and specifications, for
seeing that they had all of the necessary equipment for install-
ing the elevators, for laying out work, and for resolving prob-
lems arising with the other trades on the job.
Stillman credibly testified that when he arrived at the VA
project there were problems with Thyssen’s employees arriving
late in the morning and taking more than the allotted time for
lunch. He informed them that they had to be punctual and, if
they were not, their paid time would start when they showed
up. He also told them that they were entitled to no more than
30 minutes for lunch. The following week, Whymeyer came to
the jobsite and expressed his disagreement with Stillman’s
position on these issues. After speaking with Stillman, Why-
meyer talked to the employees, there were no further problems,
and no grievances were filed. Stillman had authority to have
employees work overtime and to grant them time off. He also
worked out an arrangement whereby the employees agreed to
forego the coffee breaks provided for in the standard agreement
and to take no more than 30 minutes for lunch in return for
receiving 2-1/2 hours off with pay each Friday.
Stillman was responsible for collecting the timesheets on
which the employees recorded their hours and expenses each
week. He reviewed them for accuracy and submitted them for
Gough’s approval. All of the timesheets he determined were
accurate were paid accordingly. If he found any discrepancies,
he went to the employees involved and attempted to resolve
them. If no agreement was reached, he made a recommenda-
tion to Gough as to how it should be handled. He described an
instance involving a mechanic, Glenn Elder, who submitted a
claim for expenses under the local agreement that Stillman
considered abnormally high. When Elder refused to change the
expense claim, Stillman recommended to Gough that the addi-
tional expenses not be paid and his recommendation was fol-
lowed. In another instance, helper David Luethe made a claim
for cartage expenses (for carrying company supplies in his per-
sonal vehicle) that Stillman considered too high. Stillman
talked to Luethe about it and he agreed to accept the lesser
amount. Stillman testified that he had authority to give em-
ployees verbal discipline and to recommend their promotion or
removal from the project. He recommended to Gough that
Elder and mechanic Hugh Herb be removed from the VA job
because their work was unsatisfactory and that helper Charles
Majaika be elevated to temporary mechanic status while on the
VA project. His recommendations were followed.
In February or March, mechanic Joe Gibson came to work at
the VA job. Gibson had previously been working for Thyssen
at a jobsite in Connecticut. Within a day or two, Stillman dis-
covered that Gibson was claiming an hourly rate that was con-
siderably higher than was paid in the Local 84 area. When
Stillman questioned him about it, Gibson said that he had been
promised the higher rate. Stillman told him that he would re-
ceive the Local 84 wage rate and that he could either take it or
leave the job. When Gibson refused to change the wage rate he
was claiming on his timesheet, Stillman spoke with Gough and
recommended that he be paid at the Local 84 rate. His recom-
mendation was followed and Gibson was paid at the lower rate.
Stillman testified that he had to consult the standard agree-
ment in the course of his duties and described an instance in
March or April in which a question arose over the use of a fork-
lift to unload a truck. Stillman called Whymeyer to confirm
that the standard agreement permitted the use of the forklift
under the circumstances and they agreed that it did. Around the
same time period Whymeyer told Stillman that he was guilty of
safety violations and would be brought up on charges. He
complained that an elevator “run button,” a device used to op-
erate the elevator during construction, did not have a stop
switch and that Stillman had improperly loaded the weight-
frame that balances the elevator car. It does not appear that any
grievances were filed in connection with Whymeyer’s allega-
tions, but he repeated those allegations during Stillman’s union
trial.
Stillman testified that after Gibson was denied the higher
wage rate he had claimed, he continued to claim it and con-
stantly complained about that fact that his claim had been de-
nied. Stillman observed that Gibson’s pace of work was slower
than that of other employees performing the same tasks and on
one occasion found him picking up his tools 45 minutes before
the scheduled end of the shift. A helper who was assigned to
work with Gibson complained that every time Stillman left
their area Gibson would stop work and complain to other em-
ployees about his not getting the higher wage rate to which he
felt entitled. Stillman spoke to Gibson about his wage rate and
about his pace of work, but it did not improve. As a result,
Stillman spoke with Gough, telling him that Gibson “was noth-
ing but trouble” and recommending that he be taken off the VA
project. Gibson was removed from the project after only 2
weeks. At about the same time, Stillman encountered Why-
meyer on the jobsite and informed him that he had recom-
mended that Gibson be removed and asked his approval to have
Majaika made a temporary mechanic. Once Gibson was re-
moved from the project, Whymeyer filed the charges against
Stillman. As noted above, after an internal union trial, Stillman
was found guilty of the charge and was fined $1900.
C. Contentions of the Parties
Section 8(b)(1)(B) of the Act makes it unlawful for a labor
organization to restrain or coerce an employer in the selection
of its “representatives for the purposes of collective bargaining
or the adjustment of grievances.” The complaint alleges that
Stillman was a supervisor and an 8(b)(1)(B) representative of
Thyssen and that the Respondent violated the Act by fining him
because of his performance of certain supervisory and/or man-
agement functions. The Respondent contends that Stillman was
not an 8(b)(1)(B) representative, that he was not disciplined for
the exercise of 8(b)(1)(B) duties, and there is no evidence that
the disciplinary action against Stillman has adversely affected
his future performance of such duties on behalf of the em-
ployer.
ELEVATOR CONSTRUCTORS LOCAL 10 (THYSSEN GENERAL ELEVATOR CO.) 709
D. Analysis and Conclusions
There can be little doubt but that Stillman was a supervisor
within the meaning of Section 2(11) of the Act while he was
employed as MIC on the VA project and I so find. The evi-
dence establishes that although Stillman regularly did bargain-
ing unit work on the VA project, he was the only representative
acting in the interest of Thyssen on the project on a day-to-day
basis and that he continually used independent judgment in
assigning and responsibly directing the activities of its work
force on the project. He had authority to issue verbal discipline
and the responsibility to verify and approve employees’ time-
sheets and claims for expenses. He also effectively recom-
mended to the Employer the addition and reduction of the
number of workers on the project as the work progressed as
well as the removal from the project of specific employees
whose work he found inadequate and the promotion of another
from helper to mechanic. The Respondent contends that
whether or not Stillman was a statutory supervisor is irrelevant.
While it is not determinative on the issue of 8(b)(1)(B) status, it
is obviously a factor that must be considered.
In NLRB v. Electrical Workers IBEW Local 340,2 the Su-
preme Court rejected the “reservoir doctrine”—that all statutory
supervisors constitute a reservoir of potential collective-
bargaining agents or grievance adjusters—and held that the
mere fact that the subject of internal union discipline is a super-
visor does not necessarily subject his employer to 8(b)(1)(B)
restraint or coercion. Discipline of a supervisor-member is
prohibited by Section 8(b)(1)(B) only when that member actu-
ally performs 8(b)(1)(B) activities such as collective bargain-
ing, grievance adjustment, or some other closely related activity
(e.g., contract interpretation). If the supervisor plays no part in
those processes, union discipline cannot have a contemporane-
ous effect on the employer’s rights protected by Section
8(b)(1)(B). Consequently, it must be determined whether
Stillman possessed and exercised the kinds of authority speci-
fied in Section 8(b)(1)(B). Sheet Metal Workers Local 68
(DeMoss Co.), 298 NLRB 1000, 1003 (1990).
There is no evidence that Stillman ever served as a represen-
tative of the Employer in collective-bargaining negotiations and
he testified that he had no role in negotiating the standard
agreement or the local agreement. However, there is substan-
tial evidence that he was regularly engaged in grievance ad-
justment and contract interpretation. It is true that Stillman was
not designated by Thyssen as its representative to respond to
grievances at the oral step of the grievance procedure, as pro-
vided for in article 15, paragraph 2, of the standard agreement.
However, he need not have been involved in the formal con-
tractual grievance procedure in order to have served as a griev-
ance adjuster. Elevator Constructors Local 36 (Montgomery
Elevator), 305 NLRB 53, 55 (1991); Steelworkers Local 1013
(USX Corp.), 301 NLRB 1207, 1210 (1991); and Sheet Metal
Workers Local 68 (DeMoss), supra at 1003.
The evidence establishes that while acting on behalf of the
Employer on a day-to-day basis, Stillman dealt with, and in
many cases resolved, a number of problems and complaints
raised by the employees and/or their union representative, in-

2 481 U.S. 573 (1987).
cluding, wage rates, expenses, work hours, length of breaks and
lunch periods, poor work performance, and safety issues. All
of these matters were directly related to the standard agreement
and/or the local agreement governing the terms of employment
of Thyssen employees on the VA project. Immediately after
his arrival at the VA project, which was behind schedule, Still-
man addressed problems concerning the employees’ lack of
punctuality in beginning their workday and taking 40 to 60
minutes for their lunch breaks. He made it clear that they had
to begin work on time and could take only 30 minutes for
lunch. This resulted in Whymeyer coming to the jobsite to
object, but he apparently accepted Stillman’s decisions as no
grievances were filed. It was Stillman who worked out the
arrangement whereby Thyssen employees got 2-1/2 hours off
with pay each Friday in return for giving up their coffee breaks
as a means of expediting work on the project. Stillman also
dealt with Whymeyer about the latter’s safety complaints and
concerning the use of a forklift. His resolution of disputes over
wage rates and expenses necessarily involved interpretation of
the pertinent contract provisions. The fact the Stillman re-
solved these incipient grievances at a fairly low level—before
they became either memorable or subject to the formalities of
the formal grievance procedure—does not mean that he was not
resolving grievances within the meaning of Section 8(b)(1)(B).
Sheet Metal Workers Local 68 (DeMoss), supra at 1003.
The Respondent contends that Stillman was not a grievance
adjuster because he did no more than resolve “routine” com-
plaints about work assignments and “coffee break” complaints
which did not rise to the level of grievance adjustment within
the meaning of Section 8(b)(1)(B), citing the Board’s decision
Longshoremen ILA (Marine Transport), 301 NLRB 527, 528
(1991). There, the Board held that second and third mates
aboard vessels did no more than resolve routine supervisory
problems. It noted, however, that there was generally always a
master or chief mate aboard the vessel to adjust grievances and,
distinguishing Operating Engineers Local 101 (St. Louis
Bridge), 297 NLRB 485 (1989), it pointed out that the disputes
the second and third mates resolved did not involve employees’
wages and hours. Here, Stillman was generally the only repre-
sentative of the Employer on the project on a daily basis and he
did resolve problems involving employees’ wages, expenses,
and hours of work, to an even greater extent than the MIC in-
volved in Elevator Constructors Local 36 (Montgomery Eleva-
tor), supra, whom the Board found to be an employer represen-
tative within the meaning of Section 8(b)(1)(B).3. Conse-
quently, I find that at all times material Stillman was an
8(b)(1)(B) representative of Thyssen.
The Respondent also contends that the charges filed against
Stillman do not relate to contract interpretation and/or griev-
3 The Respondent’s contention that Montgomery Elevator, supra,
was wrongly decided is not persuasive. Nor is its argument that the
administrative law judge’s decision in Elevator Constructors Local 5
(Montgomery Kone, Inc.), JD–113–96, which held that the MIC in that
case was not an 8(b)(1)(B) representative, was correct and should be
followed. No exceptions were filed with the Board in that case and it
has no precedential value. See Watsonville Register-Pajaronian, 327
NLRB 957, 959 fn. 4 (1999); Colgate-Palmolive Co., 323 NLRB 515,
515 fn. 1 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 710
ance adjustment on his part. I do not agree. There can be little
doubt but that the actions which led to the charges against
Stillman were directly related to the exercise of his 8(b)(1)(B)
duties on behalf of the Employer. Stillman first determined that
Gibson was not entitled to the wage rate he was claiming under
a provision of the standard agreement and recommended that he
not be paid at that rate. After the Employer followed that rec-
ommendation, Gibson constantly complained about his wage
rate to the extent that he was disruptive and his low production
was adversely affecting work on the project. When Stillman’s
efforts to get Gibson to stop complaining and do his work
proved unsuccessful, he told his superior that Gibson was
“nothing but trouble,” and recommended that Gibson be re-
moved from the project and that he be replaced by elevating
one of the helpers to the position of temporary mechanic. After
Stillman told Whymeyer that he had done this, the charges were
filed against him. Stillman’s actions vis-à-vis Gibson, which
led to the charges against him, involved contract interpretation,
his disposition of Gibson’s informal grievance claim concern-
ing his wage rate, and his representation of the Employer’s
interests when Gibson’s adverse reaction to the action on his
grievance proved disruptive. Consequently, I find that the un-
ion charges and disciplinary action against Stillman arose from
and were inextricably intertwined with his actions while acting
as an 8(b)(1)(B) representative of the Employer.
The remaining question is whether under the circumstances
presented here the disciplinary action the Respondent took
against Stillman restrained or coerced the Employer in the se-
lection of its 8(b)(1)(B) representatives. The Respondent argues
that there was no evidence presented to establish that the
disciplinary action it took against Stillman affected his
8(b)(1)(B) duties. The Board has always applied an objective
standard in determining the coercive effect of unlawful actions.
Applying an objective standard here, I find that imposing a
substantial fine on a supervisor-member for actions taken in the
course of his supervisory and 8(b)(1)(B) responsibilities were
designed to and were likely to compel him to abide by the
Union’s interpretation of the applicable labor agreements and to
accept its position with respect to grievances. This deprived the
Employer of uncoerced representation of its interests in dealing
with the union representing it employees and violated Section
8(b)(1)(B). Elevator Constructors Local 36 (Montgomery Ele-
vator), supra; Steelworkers Local 1013 (USX Corp.), supra; and
Sheet Metal Workers Local 68 (DeMoss), supra.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent violated Section
8(b)(1)(B) of the Act by filing charges against and fining the
Employer’s representative for actions taken in connection with
contract interpretation and grievance adjustment, I shall rec-
ommend that it be ordered to refund any moneys Horace Still-
man may have paid as a result of the unlawful fine as well as
any out-of-pocket expenses he may have incurred in defending
against the internal union charges, plus interest computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). The Respondent argues that Stillman is
not a party to this proceeding and is not entitled to a “make
whole” remedy because none of his rights were alleged to have
been violated, only those of the Employer. I do not agree. The
means of coercion employed here was to penalize Stillman for
his actions while serving as the Employer’s 8(b)(1)(B) repre-
sentative in order to compel him to favor the union’s position in
such matters. If that penalty is not fully removed by restoring
Stillman to the status quo ante, the coercion remains. As long
as Stillman remains under coercion, the Employer is being
restrained in its choice of its 8(b)(1)(B) representative. Accord-
ingly, in order to fully remedy the violation of the Employer’s
rights found herein, Stillman must be made whole. This in-
cludes refunding any part of the fine that he may have paid and
reimbursing him for any expenses incurred in defending against
the unlawful charges. See Elevator Constructors Local 36
(Montgomery Elevator), supra at 57; and Electrical Workers
IBEW Local 113 (Pride Electric), 283 NLRB 39, 42 (1987).
CONCLUSIONS OF LAW
1. Thyssen General Elevator Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 10, International Union of Elevator Constructors,
AFL–CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Horace Stillman was, at all times material, a supervisor
within the meaning of Section 2(11) of the Act and a represen-
tative of Thyssen General Elevator Company within the mean-
ing of Section 8(b)(1)(B) of the Act.
4. By filing charges and levying a fine against Horace Still-
man for actions taken while acting in his capacity as an
8(b)(1)(B) representative of the Employer, the Respondent has
coerced and restrained the Employer in the selection of its rep-
resentatives for the purpose of adjustment of grievances in vio-
lation of Section 8(b)(1)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Local 10, International Union of Elevator
Constructors, AFL–CIO, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Filing internal union charges against, fining, or otherwise
disciplining Horace Stillman or any other representative of the
Employer for actions taken while acting in the capacity of an
8(b)(1)(B) representative of the Employer.

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ELEVATOR CONSTRUCTORS LOCAL 10 (THYSSEN GENERAL ELEVATOR CO.) 711
(b) In any like or related manner restraining or coercing the
Employer in the selection of its representatives for the purpose
of collective bargaining or adjustment of grievances.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of this Order, rescind the internal union
charges and the fine levied against Horace Stillman, remove all
references to the charges and fine from its files, and within 3
days thereafter notify him and the Employer in writing that this
has been done and that the charges and fine will not be used
against him in any way.
(b) If any part of the fine levied against Horace Stillman has
been paid, within 14 days refund to him the entire amount paid
and reimburse him for any expenses he has incurred in defend-
ing against these charges, with interest as set forth in the rem-
edy section of this decision.
(c) Within 14 days after service by the Region, post at its un-
ion office in Camp Springs, Maryland, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on forms

5 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-
provided by the Regional Director for Region 5, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material.
(d) Sign and return to the Regional Director sufficient copies
of the notice for posting by Thyssen General Elevator Com-
pany, if willing, at all places where notices to employees are
customarily posted.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”