Roofers Local 81 (Beck Roofing)

National Labor Relations Board - Board Decisions

May 26, 1989

294 N.L.R.B. 285 (N.L.R.B. 1989)

ROOFERS LOCAL 81 (BECK ROOFING)
United Union of Roofers , Waterproofers and Allied
Workers , Local No. 81, AFL-CIO and Beck
Roofing Company, Inc. Case 32-CB-2556
May 26, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 17,, 1988, Administrative Law
Judge Michael D. Stevenson issued the attached
decision. The General Counsel filed exceptions and
a supporting brief, and the Respondent filed cross-
exceptions and a brief in support of the administra-
tive law judge's decision and in support of its
cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, findings, and conclusions only to the extent
consistent with this Decision and Order.
The critical facts may be summarized as follows.
On May 16, 1986,1 prior to the August 1 expiration
of the collective-bargaining agreement between the
Respondent and the Employer, and following sev-
eral months of discussion among employee-mem-
bers about whether to go nonunion after the expi-
ration of the contract,2 the Employer held a meet-
ing of unit employees on company time and on
company property and announced that, in light of
its financial condition, it would either have to go
nonunion or go out of business.3 Employee Joseph
Martinez decided during the meeting to leave the
Union and, as a direct result of the Employer's
advice, prepared a petition that he and other em-
ployee members signed.4 Martinez left the petition
on Merchant's secretary's desk, where it remained
on public display from Friday, May 16, until
Monday, May 19. On that Monday, Martinez ob-
served the petition on the secretary's desk on re-
porting to work, and then requested the secretary
to mail the petition to the Respondent, which she
did. The Respondent, pursuant to a union trial, sub-
sequently fined Martinez, Adam Cervantes, Albert
i All dates that follow are in 1986
2 As noted by the judge, the collective-bargaining relationship between
the Employer and the Union ended on August 1
3 Carol Merchant, an office manager, conducted the meeting with
Owner Charlie Beck present The judge found that "for purposes of her
role on 16 May, Merchant was a manager under the Act [footnote omit-
ted]
a The petition, dated May 16, stated that "[w]e agree to do whatever is
necessary to keep this company from going belly-up and to keep people
working on a competitive bidding program which is in actuality
going non-union. I therefore don't want the Union anymore "
285
Hill, and Steve Bussell $1500 each and assessed
against each of them a $400 reinitiation fee for initi-
ating and/or signing the petition. Bussell, unlike
the others, was not notified about the fine and the
reinitiation fee imposed on him.
The judge found that the General Counsel had
presented a prima facie case that the Union had
violated Section 8(b)(1)(A) of the Act by imposing
the disciplinary fine and the reinitiation fee on
these employee members because they either initi-
ated or supported the petition, which he character-
ized as a "petition to repudiate the Union [footnote
omitted]." The judge further found that through
the conduct described above the petition "was
tainted by employer coercion and involvement"
and that the "employer [had] engaged in conduct
calculated to erode employee support for the
Union."5 The judge concluded that because of the
Employer's involvement in the petition as de-
scribed above, the employee-members' action in
initiating and/or signing the petition was not pro-
tected activity and thus their Section 7 rights were
not affected by the Union's discipline. Accordingly,
he dismissed the complaint.
We agree with the judge that the General Coun-
sel made out a prima facie case that the Union vio-
lated Section 8(b)(1)(A) of the Act when it disci-
plined the employees. We find, however, contrary
to the judge, that employee-members were engaged
in protected concerted activity when they initiated
and/or signed the petition, notwithstanding the
Employer's involvement in it. See Sheet Metal
Workers Local 170 (Able Sheet Metal), 225 NLRB
1178, 1181 (1976). We disagree with the judge's
conclusion that Able Sheet Metal is inapposite.
There, employees were fined by the respondent
union for returning to work during the course of a
labor dispute. The employees had resigned from
the union before returning to work but the re-
spondent, inter alia, argued that no violation should
be found in the fines because the employer had
"initiated or implanted the suggestion" that led the
striking employees to resign. In that case, the
judge, whose decision was adopted by the Board,
assumed arguendo that the employer did condition
return to work on resignation from the union. He
further indicated, however, that there was no
showing that the employer had engaged in that
conduct with the "intent of deliberately causing the
[R]espondent to commit an unfair labor practice
when it learned of those resignations." He found
even more significant that there was no evidence
that the employees were participants in any such
scheme or that the respondent had acted on the
S The General Counsel has not excepted to these findings
294 NLRB No. 20
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
belief that the employees had engaged in such a
scheme . Noting that the respondent there did not
file an unfair labor practice charge , the judge in
Able Sheet Metal , quoting Communication Workers
(Ohio Telephone), 120 NLRB 684, 687 (1958), enfd.
266 F.2d 823 (6th Cir. 1959), affd. as modified 362
U.S. 479 ( 1960), found that the union was not free
to "restrain or coerce employees in the exercise of
their statutory rights merely because the Company
may also have engaged in misconduct ." 225 NLRB
at 1181.
In the instant case, as a direct result of the Em-
ployer 's initiative and advice , Martinez prepared a
petition that he and other employees signed. Here,
as in Able Sheet Metal, however, there is no show-
ing that the Employer had engaged in that conduct
with the intent of deliberately causing the Re-
spondent to commit an unfair labor practice when
it learned of the petition . Moreover , here, as in
Able Sheet Metal, there is no evidence that the em-
ployees were participants in any such scheme or
that the Respondent had acted on the belief that
the employees engaged in such a scheme . Thus, we
also conclude here that the misconduct of the Em-
ployer does not confer on the Respondent the free-
dom to restrain or coerce employees in violation of
Section 7 of the Act. Accordingly, we find, con-
trary to the judge, that the Respondent violated
Section 8(b)(1)(A) of the Act when it imposed a
fine and reinitiation fee on these employees for
their involvement in the petition . See generally
Molders Local 125 (Blackhawk Tanning), 178
NLRB 208 (1969).
The judge additionally found that employee Bus-
sell was not coerced by the Respondent because,
although he signed the petition, he did not testify
at the union trial and the parties stipulated that he
did not receive notification of any fine and/or rein-
itiation fee imposed on him pursuant to the trial.
Relying on Castaways Management . 285 NLRB 954
(1987), enfd. 131 LRRM 2142 (11th Cir. 1989), the
judge found that
[a]ction taken in contemplation of committing
unfair labor practices is not , without more,
itself an unfair labor practice . Instructions to
perform unfair labor practices which are not
disclosed to a member is [sic] not a violation
of the Act.
Contrary to the judge, we find that the Respond-
ent's violation of Section 8(b)(1)(A) of the Act ex-
tended to employee Bussell because the facts show
that the Respondent had conducted a trial and im-
posed a fine and reinitiation fee against him for his
participation in the petition . Here , unlike the situa-
tion in Castaways Management, 6 the Respondent
did not merely contemplate committing an unfair
labor practice but admittedly engaged in the con-
duct alleged in the complaint and thus carried out
the unlawful action.7
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 3 of the
judge 's Conclusions of Law and add the following
as paragraph 4.
"3. By imposing fines and reinitiation fees on
Joseph Martinez, Adam Cervantes, Albert Hill, and
Steve Bussell because these employee -members ini-
tiated and/or signed a petition stating they want to
go nonunion , the Respondent has engaged in unfair
labor practices in violation of Section 8(b)(1)(A) of
the Act.
"4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2 (6) and (7) of the Act."
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) of the Act, we shall order that it
cease and desist , and that it take certain affirmative
action to effectuate the policies of the Act. Ac-
cordingly , we shall order the Respondent to re-
scind the unlawfully imposed fines and reinitiation
fees, remove any reference to them from its files
and records , immediately notify the employees of
such action , and reimburse them for any money
6 In Castaways Management , the Board found that the mere issuance of
instructions to supervisors to perform unlawful actions is not a violation
of the Act if these instructions are neither carried out nor disclosed to the
employees Chairman Stephens did not participate in Castaway Manage-
ment and notes that in light of his and former Member Babson 's separate
opinion in Resistence Technology, 280 NLRB 1004 ( 1986), he reserves
taking a position on the issue as presented in that case
7 We reject the Respondent 's argument in its cross-exceptions that its
discipline did not violate Sec 8 (b)(1)(A) because the employee -members'
petition did not invoke the processes of the Board In Blackhawk Tan-
ning , supra, the Board found the union violated Sec 8(b)(1)(A) by fining
a member who had filed a decertification petition with the Board That
filing directly invoked the Board 's processes However, in subsequent
cases , the Board has applied the reasoning of Blackhawk Tanning to
cover decertification-like activity that is an initial step in access to the
Board, even though no petition was filed with the Board See, e g, Ma-
chinists Local 66 (Smith-Lee Co), 182 NLRB 849 (1970), Operating Engi-
neers Local 965 (Elcon Pipeliners), 247 NLRB 203 (1980) Thus, we find
the failure to file the petition here with the Board to be immaterial
Moreover , we view the activities here as akin to others for which a union
may not discipline members See , e g, Machinists Local 707 (United Tech-
nologies), 276 NLRB 985 ( 1985) (8(b)(1)(A) violation to discipline em-
ployees for intraunion activities in opposition to incumbent union leader-
ship), Operating Engineers Local 400 (Hilde Construction), 225 NLRB 596
(1976) (8(b)(l)(A) violation to discipline employees for questioning the
wisdom of a union's conduct as the employees ' bargaining representative
and trying to redirect the union 's policies)
ROOFERS LOCAL 81 (BECK ROOFING)
that may have been collected , with interest as pre-
scribed in New Horizons for the Retarded.8
ORDER
The National Labor Relations Board orders that
the Respondent, United Union of Roofers, Water-
proofers and Allied Workers, Local No. 81, AFL-
CIO, Hayward, California, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Imposing fines and reinitiation fees on Joseph
Martinez, Adam Cervantes, Albert Hill, and Steve
Bussell because these employee-members initiated
and/or signed a petition stating that they want to
go nonunion.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the fines and reinitiation fees levied
against Joseph Martinez, Adam Cervantes, Albert
Hill, and Steve Bussell because these employee-
members initiated and/or signed a petition stating
they want to go nonunion; remove any reference
to the fines and fees from its files and records; im-
mediately notify these employees of this action;
and reimburse them for any portion of the fines or
reinitiation fees that may have been collected, with
interest.
(b) Post at its business office and meetings halls
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the Re-
gional Director for Region 32, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees and members are cus-
tomarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for Region 32
signed copies of the notices for posting by Beck
Roofing Company, if the Company be willing, in
places where notices to employees are customarily
posted. Copies of the notice, to be furnished by the
8 283 NLRB 1173 (1987) Interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
B If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
287
Regional Director for Region 32, after being duly
signed by Respondent's authorized representative,
shall be returned forthwith to the Regional Direc-
tor.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT impose fines and reinitiation fees
on Joseph Martinez, Adam Cervantes, Albert Hill,
and Steve Bussell because these employee-members
initiated and/or signed a petition stating that they
wanted to go nonunion.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the fines and reinitation fees
levied against Joseph Martinez, Adam Cervantes,
Albert Hill, Steve Bussell because these employee-
members initiated and/or signed a petition stating
they wanted to go nonunion; and WE WILL remove
any reference to the financial fees from our files
and records; and WE WILL immediately notify
these employees of this action and reimburse them
for any portion of the fines or reinitiation fees that
we may have collected, with interest.
UNITED UNION OF ROOFERS , WATER-
PROOFERS AND ALLIED WORKERS,
LOCAL No. 81, AFL-CIO
Nancy Howard and Elaine Climpson, Esqs., for the Gener-
al Counsel.
David Rosenfeld, Esq., of San Francisco, California, for
the Respondent Union.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Oakland, California on
2 December 1987,1 pursuant to a Complaint and Notice
of Hearing issued by the Regional Director for the Na-
tional Labor Relations Board for Region 32 on 11 March
1987, and which is based on a charge filed by Beck
Roofing Company, Inc. (Charging Party or Employer)
i All dates herein refer to 1986 unless otherwise indicated
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on 2 February 1987 and on first-amended charge filed on
11 February 1987. The complaint alleges that United
Union of Roofers, Waterproofers and Allied Workers,
Local No. 81, AFL-CIO (Respondent) has engaged in
certain violations of Section 8(b)(1)(A) of the National
Labor Relations Act, as amended (the Act).
Issues
Whether Respondent imposed fines and reinitiation
fees on certain of its members because members engaged
in conduct protected by Section 7 of the Act: signing a
petition stating they no longer wanted to be represented
by Respondent and engaging in related conduct' intended
to lead to Respondent's decertification.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.2
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits that at all times material, the Em-
ployer, Beck Roofing Company, Inc.,-is a California cor-
poration engaged in the roofing business, constructing
and reconstructing roofs on a retail and non-retail basis
and having an office and place of business located in
Hayward, California. Respondent further admits that
during the past year, in the course and conduct of the
Employer's business, the Employer derived gross reve-
nues in excess of $500,000. Respondent further admits
that during the past year, in the course and conduct of
the Employer's business, the Employer has purchased
and received goods or services valued in excess of $5,000
from suppliers outside the State of California. Accord-
ingly, I find, that the Employer is engaged in commerce
and is a business affecting commerce' within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , that it is a labor organi-
zation within the meaning of Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For 30 years or longer , the Employer and Respondent
have maintained a collective-bargaining relationship
This relationship ended as of 1 August , when the last
2 Before the hearing began, the court reporter's recording equipment
repeatedly malfunctioned This caused me in annoyance to reflect on
some other recent personal experiences where the Board's contract court
reporter had failed to provide satisfactory service (R p 3) Now, the of-
ficial record of the General Counsel's Exhibits fails to contain Exhs 3, 4
and 5 which were admitted into evidence I cannot account for the miss-
ing documents For purposes of deciding this case , I have used duplicate
exhibits obtained from the General Counsel
labor agreement expired. The Employer is now operat-
ing non-union.
Because the roofing business is seasonal, the number of
unit employees employed by Beck Roofing Company
varies from 10 employees in the slow summer months to
18 in the busy fall. Many unit employees are transients so
turnover is high. Some, however, have been with the
Employer for many years. Three of these long-term em-
ployees, Joe Martinez, Adam Cervantes, and Albert Hill,
all alleged to be discriminatees, testified at the hearing. A
fourth alleged discriminatee, Steve Bussell, did not testi-
fy The testimony of the three witnesses will be discussed
below.
Beck Roofing Company is owned by Charlie Beck.
Other employees who work in the office include Sam
Merchant, an estimator, his wife, Carol Merchant, office
manager, and a secretary. None of these persons testified.
Beginning in early 1986, the unit employees began peri-
odic discussions as to whether they would continue to
work under a collective-bargaining agreement after the
current contract expired at the end of July. The series of
employee conversation were like those which occurred
each time the labor agreement was expiring. This time,
however, different circumstances intervened.
In early May, Carol Merchant was hired as office
manager. Her exact status, hours and duties are unclear.
Apparently, she is a part-time employee, without regular
hours and possibly without regular duties. Sometimes
unit employees would go several weeks without seeing
her in the office or shop where they would spend a few
minutes each day before going on their respective assign-
ments. In terms of this case, Carol Merchant's primary
role was to hold a 15-20 minute meeting at the shop for
unit employees on Friday morning, 16 May.3
At this meeting attended by the owner Beck, Sam
Merchant and most unit employees, Carol Merchant an-
nounced that the purpose of the meeting was to discuss
the financial condition of the Company. Merchant then
reminded employees that the contract would be expiring
soon and that the Company could not stay in business if
it signed another contract. To prove her point, Merchant
used charts reflecting the company losses. In light of the
Company's condition, according to Merchant, only three
options were available: Charlie Beck getting a job with
another company as an estimator, or closing the doors al-
together these two options were in fact a single option of
having the company go out of business, or going non-
union.
Employees were very depressed by this information
and the effect was immediate. Martinez, a 30-year em-
ployee and union member, indicated at the meeting that
he for one had made up his mind. He decided on the
spot what he had been considering for some time prior
to the meeting-to stay with the company. Put different-
ly, he decided to leave the Union. After orally stating his
decision, Martinez was advised by Merchant that he
9 The record contains evidence with respect to a second meeting
hosted by Carol Merchant Apparently held about a week before the
meeting of 16 May, this other meeting was technically limited to foremen
only and was an attempt by management to increase production It has
little or nothing to do with the issues presented by this case
ROOFERS LOCAL 81 (BECK ROOFING)
would need to put something in writing . As a direct
result of Merchant 's advise, Martinez wrote out a peti-
tion ,which he then signed . The petition reads as follows:
5-16-86
We agree to do what ever is necessary to keep this
company from going belly -up and to keep people
working on a competitive bidding program which is
in actuality . . . going non-union . I therefore don't
want the Union anymore.
Signed: [G.C. Exh. 3]
After signing the petition , Martinez told the other em-
ployees that anyone else who wanted to stay with the
company should sign it . Then Martinez began his work-
day. Other employees including Cervantes and Hill also
signed the petition.
'On the following Monday, Martinez reported to work
at the usual time and observed the petition on the secre-
tary's desk, where he had left it the preceding Friday.
Martinez then requested the secretary to mail the peti-
tion to the Respondent , which she did.
At a lunch meeting with a union official a few days
later , Martinez referred to the petition by saying that
something would be arriving in the mail for you. About
a week after this, Respondent 's business agent named
Joseph Lagosh came to the shop and asked Martinez if
he had sent the petition . When Martinez acknowledged
sending the petition , Lagosh said this is why the Union is
losing contractors and why so may nonunion contractors
are entering the area . Lagosh then stated he was going
to go after Martinez.
On or about 1 August , Martinez received a letter from
the Union . It reads as follows:
Date : July 30, 1986
Dear Sir:
You are hereby cited to appear before the Trial
Board of Local No . 81 to answer charges prefered
(sic) against you as specified below
Your case will be heard August 12, 1986 8:00
P.M. in the Labor Temple, 8400 Enterprise Way,
Oakland , California.
Failure to appear may result in your being found
guilty by default.
/s/ Thomas J. Moretti
Financial Secretary -Treasurer
I, Joseph Lagosh , the undersigned , hereby charge
Joseph Martinez , membership No. 98064, Local
Union No. 81.
(x) Constitution of the Brotherhood Article IX,
Section 7.(2) & Section 7.(4) page 30
STATEMENT OF FACTS SUBSTANTIATING
CHARGES
Brother Martinez had decided to go Non-Union
with his present employer Beck Roof Co. Also,
Brother Martinez has convinced other Union mem-
289
bers in the Beck shop to go Non-Union along with
him. Enclosed is a copy of the letter of facts which
has been signed by brother Martinez and others.
Address of accused:
3229 Keith Ave.
Castro Valley, Ca. 94546
/s/ Joseph Lagosh
Business Manager Local #81
Title and Organization
7-30-86
Date of signature
[G.C. Exh. 4]
On 12 August , Martinez attended the hearing referred
to above. Martinez admitted at the hearing that he had
decided to stay with the company, but he denied that he
had attempted to convince anyone else to go non-union.
Martinez called as his witness Sam Frankel , a former sal-
aried employee of Beck 's, who testified that Martinez
had never attempted to convince anyone to go non-
union.
On 15 August , Martinez received from the Union, a
letter containing the results of the board hearing . It reads
as follows:
August 14, 1986••
Mr. Joseph Martinez
3229 Keith Ave.
Castro Valley, CA 94546
Dear Sir:
On August 12, 1986 your case was heard by the
Executive Board of Roofers Local Union No. 81.
You were charged with violation of Article IX,
Section 7, page 30, (2), (4) of the Constitution and
By-Laws of the United Union of Roofers, Water-
proofers and Allie Workers. You were found guilty
as charged and assessed the sum of $1,500 .00 for the
above violation . Please be aware of the fact that in
any time that you wish to come back the initiation
fee of $400 00 or the amount set at that time will be
added to the amount specified above.
You are also hereby notified that in accordance
to Article 9, Section 2 of the International Constitu-
tion and By -Laws, you have the right to appeal this
decision by writing to the International office. If
you so decide to appeal, then a check made payable
to United Union of Roofers, Waterproofers and
Allied Workers in the full amount of the assessment
must accompany your appeal.
The address is as follows.
United Union of Roofers,
Waterproofers and Allied Workers
1125 Seventeenth St. N.W.
Washington , D.C. 20036
With kindest regards, I am
Sincerely,
/s/ Thomas J. Moretti
THOMAS J. MORETTI
Financial Secretary
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Treasurer/Dispatcher
[G.C. Exh. 5]
The parties stipulated that Cervantes received from
the Union two letters similar to those received by Marti-
nez (G.C. Exhs. 6, 7). The "Statement of Facts Substan-
tiating Charges" is slightly different-
Brother Adam Cerventez [sic] had decided to go
Non-Union because his employer has refused to ne-
gotiate with Local #81 and his employer Beck
Roofing Co. will be going Non-Union. Enclosed is
the letter which was signed by Adam Cervantez
[sic]. [G.C Exh 6]
The parties further stipulated that Hill also received
from the Union two letters similar to those received by
Martinez : Again the "Statement of Facts Substantiating
Charges" is slightly different-
Brother Al Hill has decided to go Non-Union. En-
closed is the letter which was signed by brother
Hill who is going to work Non-Union with his em-
ployer Beck Roof Co. [G.C. Exh. 8]
During this entire period and for several years prior
thereto, Martinez had been a working foreman working
on various projects with the tools of the trade. Several
weeks after Martinez prepared the petition, he was pro-
moted to job superintendent.4
B. Analysis and Conclusions
1. What limitations, if any, exist on the Union's
right to discipline its members?
The General Counsel alleges that the Union violated
Section 8(b)(1)(A) of the Act by disciplining its members
as reflected in the facts portion of this decision.
Section 8(b)(1)(A) is concerned with the rights of indi-
vidual employees in their relations with labor organiza-
tions. Pursuant to the dictates of this section , it is an
unfair labor practice for a union to "restrain or coerce
employees in the exercise of the rights guaranteed in
Section 7 " Under Section 7, employees are guaranteed
both the right to engage in concerted activities and the
"right to refrain from any or all such activities . . . ."5
A union may fine or discipline a member so long as
the fine or discipline is not imposed for the exercise of
rights protected under Section 7. If the discipline does
infringe on employee Section 7 rights, the imposition
violates Section 8(b)(1)(A). On the other hand, Congress
did intend for discipline to remain essentially an internal
union matter by virtue of the proviso to Section
8(b)(1)(A), that the Section "shall not impair the right of
a labor organization to prescribe its own rules with re-
spect to the acquisition or retention of membership there-
in . .. ." This proviso has been interpreted broadly by
both the Board and the courts in cases where only union
membership is at stake . Consequently , expulsion alone is
not restraint or coercion under Section 8(b)(1)(A). Simi-
4 The record does not show how, if at all , Martinez 's job duties and/or
his pay were affected by the change in job title
5 1 Morris, Developing Labor Law, 165 (2d Ed 1983)
larly, subject to certain exceptions ". . . unions may sus-
pend membership and impose fines for breaches of inter-
nal union rules without restraining or coercing employ-
ees within the meaning of the Act."6
In the instant case, members were fined $ 1500 and
were subject to reinitiation fees of $400 for violations of
the union constitution (G.C. Exh. 2), article IX, section
7, page 30, (2) (Violation of oath of loyalty to the Local
Union and the International Union) and, (4) (Gross dis-
loyalty or conduct unbecoming a member). Regardless of
how the Union discipline is characterized, affected mem-
bers were being disciplined for initiating or supporting a
petition to repudiate the Union.7
In a long line of cases, the Board has held that fining
members for such activities is a violation of Section
8(b)(1)(A). Local 125 (Blackhawk Tanning), 178 NLRB
208 (1969); 207 NLRB 795, 797 (1973); Gillian Candy
Co., 282 NLRB 624 fn. 8 (1987) In explaining the basis
for the above rules, the Board contrasts a disciplinary
fine with expulsion from the Union, allowing the latter,
as a proper form of union discipline:
In short, where the union member is seeking to
decertify the union, the Board has said that the
public policy against permitting a union to penalize
a member because he seeks the aid of the Board
should give way to the union's right to self-defense.
But when a union only fines a member because he
has filed a decertification petition, the effect is not
defensive and can only be punitive-to discourage
members from seeking such access to the Board's
processes; the union is not one whit better able to
defend itself against decertification as a result of the
fine. The dissident member could still campaign
against the union while remaining a member and
therefore be privy to its strategy and tactics.8
To apply these rules to the instant case, I turn to the
record and find that both the disciplining fine and the re-
initiation fee were imposed by the Union because its
members either initiated or supported the petition. Ac-
cordingly, the General Counsel has presented a prima
facie case that the Union violated Section 8(b)(1)(A) of
the Act.9
6 Id at 167
r In the context of this case , a more exact characterization of the infor-
mal petition at issue is unnecessary See Guerdon Industries , 218 NLRB
658-659, 660 (1975), NLRB v Gallaro, 419 F 2d 97-99, 100 (2d Cir
1969) It is "unlawful for an employer to induce employees to sign
any form of union-repudiating document " NLRB v Birming-
ham Publishing Co, 262 F 2d 2, 7 (5th Or 1958) Accord NLRB v Sky
Wolf Sales, 470 F 2d 827, 829 (9th Cir 1972)
s Blackhawk Tanning Co, supra, 178 NLRB at 209
In making this finding, it is unnecessary to consider whether the
Union also violated the Act when its official, Lagosh, who never testi-
fied, threatened to go after Martinez for initiating the petition Lagosh
made a similar threat to Hill Such threats are held by the Board to be
illegal Transport Workers Local 514 (Zebco), 249 NLRB 1171 ( 1980),
Electrical Workers IBEW Local 453 (National Electrical), 258 NLRB 1427
(1981) However , this conduct was not charged in the complaint, was not
litigated, and as will become clear below , will make no difference in the
ultimate outcome of the case
ROOFERS LOCAL 81 (BECK ROOFING)
2. Is the employee petition tainted?10
In 'arguing that its members were not engaged in pro-
tected concerted activities and could therefore be prop-
erly disciplined, the Union argues that the petition in this
case was tainted For guidance on this issue, I turn to the
recent Board decision of Eastern States Optical Co., 275
NLRB 371, 372 (1985), where the Board stated relevant
rules by which the petition in this case might be judged.
. . . it is unlawful for an employer to initiate a de-
certification petition,8 solicit signatures for the peti-
tion," or lend more than minimal support and ap-
proval to the securing of signatures and the filing of
the petition. i 0 In addition, while an employer does
not violate the Act by rendering what has been
termed "ministerial aid," i i its actions must occur in
a "situational context free of coercive conduct." 12
In short, the essential inquiry is whether "the prepa-
ration, circulation, and signing of the petition con-
stituted the free and uncoerced act of the employees
concerned." KONO-TV-Mission Telecasting, 163
NLRB 1005, 1006 (1967)
8 Inter-Mountain Dairymen, 157 NLRB 1590, 1613 (1966)
8 D & H Mfg Co, 239 NLRB 393, 404 (1978)
10 Placke Toyota, Inc, 215 NLRB 395 (1974)
11 Times-Herald, Inc, 253 NLRB 524 (1980)
12 D & H Mfg Co, supra at 403
See also Weisser Optical Co., 274 NLRB 961 (1985),
Briggs Plumbingware, Inc., 286 NLRB 1189 (1987).
To ascertain whether the petition in this case was
tainted, I again turn to the record. My inquiry begins
with Carol Merchant, whose exact employment status
cannot be ascertained from the record Despite her title
as "office manager" and her duties with respect to con-
vening employee meetings, the record does not show her
to be a statutory supervisor. It is clear, however, that for
purposes of her role on 16 May, Merchant was a "manag-
er" under the Act. i i Her remarks could properly be im-
puted to Beck, the owner of the company. In the alterna-
tive, I note that Beck attended the meeting in question.
His public presence and silent acquiescence in Mer-
chant's remarks means that he ratified her statements. In
either case, I find a holding out of Merchant to employ-
ees as having apparent authority to make the remarks she
did. Martinez and the others reacted accordingly when
she concluded the meeting.
It is unnecessary to reiterate Merchant's remarks. It
suffices to say that, in effect, employees were told to
either get rid of the Union or lose their jobs. After Mar-
tinez publicly stated that he had made up his mind, Mer-
chant advised him to put something in writing. All this
proves that the petition in question was tainted by em-
ployer coercion and involvement with said petition.
Other factors also support this conclusion: the meeting
was held on company time and on company property,
to At p 8, fn 9, of her brief, the General Counsel appears to concede
this point
11 A managerial employee is one who formulates and effectuates mana-
gerial policies by expressing and making operative the decisions of their
employer NLRB v Bell Aerospace Co, 416 U S 267, 288 (1974)
291
for a few days, the petition was allowed to remain on
public display on the secretary 's desk for all to see who
signed it-and who did not sign it; apparently , the peti-
tion was mailed to the Union by a secretary whose im-
mediate superior was Carol Merchant . In sum , I find that
the employer engaged in conduct calculated to erode
employee support for the Union . NLRB v. Deutsch Co.,
445 F . 2d 902 , 906 (9th Cir . 1971), cert . denied 405 U.S.
988 (1972)
3 Does the fact that the employer tainted the
petition and engaged in other coercive conduct
constitute a defense to the otherwise unlawful union
discipline?
As Respondent Union acknowledged at hearing, the
Board does not recognize a "clean-hands" defense (R.
Exh. 78). In Teamsters Local 294 (Island Dock Lumber),
145 NLRB 484, 492 fn 9, enfd. 342 F.2d 18 (2d Cir.
1965), the Board explained the rule and the basis for it:
The "clean hands" doctrine of equity does not
operate against a charging party since proceedings
such as this are not for the vindication of private
rights but are brought in the public interest and to
effectuate statutory policy.
The question becomes, therefore, whether the Union
can defend itself by asserting the unlawful conduct en-
gaged in by the,Employer. To answer this question, I
first assume without finding that union officials were
aware of the meeting of 16 May and of Carol Merchant's
role in it. I find no evidence, however, that Respondent
Union relied on the facts and circumstances of that meet-
ing as found herein, particularly as affects the employee
petition, to justify the discipline in issue. Therefore, it
could be argued that Respondent's defense is simply a
posthoc rationalization. Cf. NLRB v. Cornell of Califor-
nia, 577 F.2d 513, 518 (9th Cir. 1978).
In reaching a decision on the ultimate issue, I reject
not only the argument that Respondent's defense is
doomed because it is tardy, but I reject the inquiry as
well Instead, the logical question is whether the mem-
bers were engaged in protected concerted activity when
they prepared and signed the petition. Because of the
Employer's involvement as found above, I find that the
members' activities were not protected. In Communica-
tions Workers Local 5795 (Western Electric), 192 NLRB
556, 557 (1971), the Board affirmed the administrative
law judge's cogent statement of the law:
It may be conceded that the Union's imposition of a
$500 fine for an employee's report of another em-
ployee's breach of a work rule would be coercive in
that it would tend to discourage her and other em-
ployees from such action in the future . The Act,
however , does not simply render illegal all coercive
acts of a union but only such coercive acts which
infringe upon the rights of employees enumerated in
Section 7 of the Act
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Martinez, Cervantes, Hill, and Steve Bussell,' 2 did not
decide freely and without coercion that they no longer
desired the Union. Rather, they were manipulated by the
Employer. Accordingly, their Section 7 rights were not
affected by the Union discipline. Therefore, I will rec-
ommend to the Board that this case be dismissed.' 3
12 Busse] ] signed the petition, but did not testify The parties stipulated
that he did not receive notification of any fine, and/or reinitiation fee im-
posed on him pursuant to the Union trial conducted on 12 August (R pp
8-9) 1 find, as to Bussell, no violation of the Act for an additional reason
which does not affect the others Action taken in contemplation of com-
mitting unfair labor practices is not, without more, itself an unfair labor
practice Instructions to perform unfair labor practices which are not dis-
closed to a member is not a violation of the Act In sum , I find Bussell
was not coerced by Respondent See Castaways Management, 285 NLRB
954 (1987)
13I have read and considered the cases cited at pp 8-9 of General
Counsel's brief, Sheet Metal Workers', Local Union No 170, AFL-CIO,
225 NLRB 1178 (1976), and Sunset Line & Twine Co, 79 NLRB 1487
(1948) These cases do not apply to the instant case as they do not deal
CONCLUSIONS OF LAW
1. The Employer, Beck Roofing Company, Inc. is an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and in an industry affecting com-
merce within the- meaning of Section 2(6) and (7) of the
Act.
2. Respondent, United Union of Roofers, Water-
proofers and Allied Workers, Local No. 81, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent, United Union of Roofers, Water-
proofers and Allied Workers, Local No. 81, AFL-CIO,
has not engaged in the unfair labor practices alleged in
the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]
with the issue of whether employer involvement in employee activities
can change protected concerted activities to unprotected activities