American Federation of Musicians, Local 76

National Labor Relations Board - Board Decisions

Mar 21, 1973

202 N.L.R.B. 620 (N.L.R.B. 1973)

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Federation of Musicians , Local 76,
AFL-CIO 1( Jimmy Wakely Show) and John C.
Wakely. Case 19-CB-1716
March 21, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On April 14, 1972, Administrative Law Judge2
George Christensen issued the attached Decision in
this proceeding. Thereafter, the Charging Party and
the General Counsel filed exceptions and the
General Counsel filed a supporting brief. Respon-
dent filed a brief in support of the Administrative
Law Judge's Decision and in answer to exceptions
filed by the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm only such of the
Administrative Law Judge's rulings, findings, and
conclusions as are consistent herewith and to adopt
his recommended Order.
The Administrative Law Judge found that John
Wakely was a supervisor and that he was not a
federation member at the time he received Respon-
dent's letter of July 20, 1971. He further found that
Respondent's letter and Business Agent Carraba's
accompanying remarks conveyed a threat that
Respondent would "cause charges" leading to fine or
expulsion or both unless John Wakely ceased
working for his father, Jimmy Wakely, and that such
threat constituted restraint or coercion but did not
violate Section 8(b)(1)(B), since its object was not to
coerce Jimmy Wakely into changing his designation
of John Wakely as his grievance representative or
affect his performance of any managerial duties. The
Administrative Law Judge found no violation on the
additional ground that John Wakely was not a
member on July 20, and that therefore Respondent
did not have the power to subject him to charges. We
would be inclined to reach a contrary interpretation
and application of Section 8(b)(1)(B).
The Board has held, with court approval, that
union disciplinary action need not be related to the
supervisor-member's performance of his supervisory
1 Hereinafter called Respondent
The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
3 International Brotherhood of Electrical Workers, AFL-CIO, and Local
134, International Brotherhood of Electrical Workers, AFL-CIO [Illinois Bell
functions in order to constitute coercion within the
proscription of Section 8(b)(1)(B).3 It is sufficient
that the discipline concern the relationship between
the employer and the Union, rather than that
between the Union and its supervisor-members. It is
also well established that, in determining whether an
8(b)(1)(B) violation has been committed, the answer
does not turn on whether the coercion succeeded or
failed.4 The test is whether it may reasonably be said
that the respondent's action meaningfully detracted
from the undivided loyalty owed by the supervisor to
his employer and if such action thereby interfered
with management's right to select its representative.
Accordingly, our interpretation would normally
require a finding here that since Respondent's
conduct had a tendency to impede the discharge of
John Wakely's supervisory duties, it thereby inter-
fered with Jimmy Wakely's right to select his
management representative and thus falls within the
prohibitions of Section 8(b)(1)(B).
We would not think such an interpretation of the
Act to be rendered vulnerable even if John Wakely
was not a member of the Federation at the time of
the threat. In Booster Lodge No. 405, International
Association of Machinists and Aerospace Workers,
AFL-CIO (The Boeing Company),5 this Board estab-
lished that a union violates Section 8(b)(1)(A) by
fining employees who have resigned from the union
before engaging in the conduct for which discipline
was imposed. The Boeing rationale would seem to
have a direct application in the instant case.
Accordingly, Board precedent would, at first blush,
seem to warrant a reversal of the ALJ, a finding of a
violation, and a remedial order, for it is true that
John Wakely, a supervisor, received the same letter
as did the four rank-and-file employees informing
the recipients that any union member who continued
to work for Jimmy Wakely would be subject to
charges for violation of the Union's bylaws and that
this could lead to expulsion from membership
and/or a fine not exceeding $100, and this was in
connection with the Union's dispute with the
employer.
In the circumstances here, however, the conduct
involved was so minimal and has been so substantial-
ly remedied by the Respondent's subsequent conduct
that the entire situation is one of little significance
and there is no real need for a Board remedy. In this
connection, it is not disputed that no action was
taken pursuant to the threat, and, in fact, the record
reveals that the Respondent in effect withdrew it.
Telephone Company] v NLRB, 85 LRRM 2582 (C A D C, Sept 1973),
affg and enfg as modified 192 NLRB No 17
4 Ibid
5 185 NLRB No 23, enfd in part and remanded in part 459 F 2d 1143
(CADC)
202 NLRB No. 80
AMERICAN FEDERATION OF MUSICIANS, LOCAL 76 621
Thus, as a result of the Respondent's letter and
threat, Bob Evans, one of the employees, had refused
to work for Jimmy Wakely' on July 21 but he
returned on July 22 and finished the engagement,
having been advised to do so by the Respondent on
instruction of its attorneys after they examined the
original charge in this case. The testimony does not
state directly that he communicated this particular
advice to either John Wakely or Jimmy Wakely, but
it does establish, without any question, that each
previous communication from, or conversation
between, Evans and any representative of the
Respondent was reported by him in detail to both
John and Jimmy Wakely. It therefore seems more
than reasonably inferable that when Evans returned
to work on July 22 he informed them, in accordance
with his seemingly uniform practice, of the reason for
his change of position in this instance.
In short, this case involves "one of those 'infinitesi-
mally small abstract grievances [that] must give way
to actual and existing legal problems if courts [and
the NLRB] are to dispose of their heavy calen-
dars.' "6 Patently, when viewed in the total factual
context, there remains little here of substance, and in
that respect this case is analogous to Columbia
Typographical Union No. 101, supra. Here, as there,
the Respondent rescinded its instruction to the
members long before the complaint was issued, there
is no suggestion that this action was taken because of
compulsion, or fear of the Board, and there is no
basis for concluding that this case is part of a pattern
of harassment against supervisors. Indeed, there is no
suggestion here that the action was even intended to
be directed against a supervisor. In our view,
therefore, the issue is so remote as to be, for all
practical purposes, moot, as it was found by the
court to be in the Columbia Typographical Union case.
But even if not entirely moot, it seems to us that the
alleged misconduct here is of such obviously limited
impact and significance that we ought not to find
that it rises to the level of constituting a violation of
our Act. The Board's rising case load and the
problems involved in handling it could be alleviated
if cases of this type were not processed. Comments
and suggestions to this effect have recently been
made by the Committee on Labor and Social
Security Legislation of the Bar Association of the
City of New York: 7
Screening out de minimis or isolated violations
6 N L R B v Columbia Typographical Union No 101 , International
Typographical Union of North America, AFL-CIO [The Evening Star
Newspaper Co and The Washington Daily News], 470 F 2d 1274 (C A D C,
11/10/72), denying enforcement of 193 NLRB No 167 And see the
comments of the court in Dallas Mailers Union, Local No 143 et at [Dow
Jones Co] v NLRB, 445 F 2d 730 (C A D C, 1971), enfg 181 NLRB 286
7 "Improved Enforcement of the National Labor Relations Act,"
Committee Report by The Committee on Labor and Social Security
The Board's load could be reduced without
countervailing disadvantages by screening out de
minimis or isolated violations. The fact that the
investigation of a charge reveals some minor
breaches of the Act should not necessarily call for
the issuance of a complaint. Just as a district
attorney has a measure of discretion and does not
prosecute all departures from the letter of the law,
so we believe the General Counsel should use the
power granted to him in Section 3(d) to refuse to
prosecute violations of minor or isolated charac-
ter that do not warrant exercise of the Board's
remedial powers.
... But with the ever-expanding caseload, it is
more important than ever that the Board be
permitted to husband its limited resources and
apply them where they have maximum impact in
effectuating the Act. Otherwise, time, energy and
manpower are dissipated in seeking to rectify
situations of no real moment while, backed up
behind them, significant violations remain un-
remedied.
It may be, as several courts have held, that once
the Board has found any violation, no matter how
isolated or trivial, it cannot refuse to issue a
remedial order because Section 10(c) supposedly
mandates a Board order through its use of the
words "shall issue." But whatever the law may
turn out to be in this respect, it certainly does not
bar the General Counsel from exercising the
discretion embraced in his statutorily-granted
"final authority" to refuse to issue a complaint if
he deems the violations to be isolated or of trivial
consequence. We urge that the Regional Direc-
tors be so instructed. [Footnotes omitted.]
It is true, as stated in the last-quoted paragraph,
that some courts have held that the Board may not
withhold issuance of a remedial order once a
violation is found.8 We are not here disposed to find
the quantum of misconduct sufficient to constitute a
violation. In this connection, we believe the courts
are coming to the view that violations having little or
no impact upon employee exercise of statutory rights
should not form the basis of either a proceeding or a
remedy under our Act.
One of the courts referred to by the New York City
Bar, the United States Court of Appeals for the
Legislation of the Association of the Bar of the City of New York, The
Record, 1972, p. 523 at 530
8 International Union, United Automobile, Aerospace and Agricultural
Implement Workers ofAmerica (UA W) [Omni Spectra, Inc] v N L R B, 427
F 2d 1330 (C A 6), International Woodworkers of America, AFL-CIO, Local
3-10 [Long Lake Lumber Company] v N L R B, 380 F 2d 628 (C A D C)
Cf Luxuray of New York, Division of Beaunit Corporation v N L R B, 447
F2d 112(CA 2)
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District of Columbia Circuit, by the language quoted
in this opinion, has recently indicated that proceed-
ing in cases involving "infinitesimally small abstract
grievances" is not mandatory. The full context of the
paragraph in which that statement appears is
relevant to this situation:
We are once again presented by the Board with
one of those "infinitesimally small abstract
grievances [that] must give way to actual and
existing legal problems if courts are to dispose of
their heavy calendars." Dallas Mailers Union,
Local No. 143 v. N. L. R. B., 144 U.S. App. D.C.
254, 257, 445 F.2d 730, 733 (1971). Moreover, it
would seem that the Board also "could very well
be spared the time consuming energy necessarily
exhausted in the determination of [this] type of
dispute . . . Id., 144 U.S. App. D.C. at 259, 445
F.2d at 735.
The court then reviewed the facts of that case and
concluded:
Under the circumstances, why the General
Counsel filed his charge and the Board persists in
this litigation is difficult to understand.
Accordingly, the court denied enforcement of the
Board's order.
In sum, in view of the increasing need for
expedition in the processing of cases, we have
concluded that we ought not expend the Board's
limited resources on matters which have little or no
meaning in effectuating the policies of this Act. Thus,
in this insubstantial case, we would find that the
conduct involved, although it may have been in
technical contravention of the statute as interpreted
by this Board, was nevertheless so insignificant and
so largely rendered meaningless by Respondent's
subsequent conduct that we will not utilize it as a
basis for either a finding of violation or a remedial
order. The complaint herein should be, and it hereby
is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Trial Examiner: On January 4,
1972, the Trial Examiner held a hearing at Seattle,
Washington to try issues raised by a complaint issued on
October 20, 1971 , 1 alleging that American Federation of
Musicians, Local 76, AFL-CIO,2 violated Section
8(b)(1)(B) of the National Labor Relations Act, as
amended (hereafter the Act), by a July 20 threat to bring
charges against and fine or expel John Wakely, an alleged
supervisor , if John continued to work for his father, Jimmy
Wakely, during the latter 's musical engagement at the
Wharf Restaurant in Seattle, Washington. Local 76 denied
any violation of the Act.
All parties appeared by counsel and were afforded full
opportunity to adduce evidence , to examine and cross-
examine witnesses , to argue, and to file briefs. Briefs were
filed by the General Counsel, the Charging Party, and
Local 76.
Based upon his review of the entire record , observation
of the witnesses , perusal of the briefs and research, the
Trial Examiner enters the following:
FINDINGS OF FACT
1. JURISDICTION
For many years Jimmy Wakely has sold a musical
package called the Jimmy Wakely Show (hereafter called
the Show) to restaurants, hotels, nightclubs, and various
organizations . He is the central performer , makes contracts
with those hiring his act , employs musicians and other
assistants , and controls the Show. The parties stipulated to
the inclusion and correctness of a new paragraph 2-A
within the complaint, providing that between September 1,
1970, and August 1, 1971, the Show grossed in excess of
$50,000 for work performed outside of California during
such period.3
Based upon the foregoing , the Trial Examiner finds and
concludes that Jimmy Wakely was an employer engaged in
commerce in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act at all times
pertinent hereto and it will effectuate the purposes of the
Act to assert jurisdiction herein.
it. LABOR ORGANIZATION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
The complaint alleges, the answer admits, and I find that
Local 76 was a labor organization within the meaning of
Section 2(5) of the Act at all times pertinent to this
proceeding.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
As noted heretofore , Jimmy Wakely has booked his
i The complaint was amended at the hearing to include an allegation of references omitting the year occurred in 1971
proper service upon Local 76 of a second amended charge filed by John 2 Hereafter called Local 76
Wakely on November 29, 1971, after issuance of the complaint The original 3 Jimmy Wakely's home and principal place of business at all pertinent
charge was filed on July 21, 1971, by John Wakely and the first amended times is in southern California, the Show was also performed during the
charge was filed by Jimmy Wakely on August 4, 1971 All further date 1970-71 period at various locations within the State of California
AMERICAN FEDERATION OF MUSICIANS, LOCAL 76 623
Show in various parts of the United States over many
years; within the past several years he has scheduled a
series of appearances in the Northwestern States on a
semiannual basis, including regular appearances in Seattle,
Washington, at the Wharf Restaurant. He has always been
the central performer and in recent years has been
accompanied vocally by his daughter, Linda, and vocally
and instrumentally by his son, John. Sometimes he hires
southern California musicians to accompany his family
group on tours and other times he hires local musicians in
the areas where he appears, either as part or the total
accompaniment.
B. Union Membership
Until early 1971, both Jimmy and John Wakely were
members of Local 47 of the American Federation of
Musicians , AFL-CIO. Jimmy Wakely's membership in
Local 47 was terminated by the Local on February 28
because of his refusal to pay $1,620 to three musicians he
discharged during a 1970 tour of the Northwestern States.4
On May 25, Local 47 notified John Wakely that his
membership would be terminated on June 30 if he did not
tender dues for the second quarter of 1971 (Apnl 1-June
30) by June 30. John Wakely did not tender such dues by
the date in question and his membership terminated on the
latter date.5
C. The Alleged Restraint and Coercion
Jimmy Wakely contracted with the Wharf Restaurant at
Seattle to put on his Show commencing July 19. For this
performance, he was accompanied by his son and
daughter, John and Linda, two musicians he brought up
from California, drummer Scott Norman and bass player
Stan Puls; and he hired a local piano player, Bob Evans,6
as his third sideman.
Representatives 7 of Local 76 warned Evans on July 19,
prior to the first performance of the Show at the Wharf,
that it might be a violation of the Federation's bylaws if he
worked in the Show if Jimmy Wakely was on the
Federation's National Defaulter List, and promised to
check this and advise Evans.
Prior to the commencement of the Show the following
day, July 20, Hoagy informed Evans that Jimmy Wakely
was on the list and that Local 76's business agent, Sal
Carraba, would be at the Wharf prior to the start of the
Show with a letter stating Local 76's position. Evans
informed both Jimmy and John Wakely of the foregoing
conversations
Carraba appeared at the Wharf at about 8:30 p.m. and
was introduced by Evans to Jimmy Wakely, John Wakely,
Scott Norman, and Stan Puls. Carraba presented identical
4 In 1970, Jimmy Wakely discharged musicians Donald Smith, John
Roslyn, and Billy Poteet during his spring tour of the Northwest, replacing
them with other musicians The three filed charges against Wakely within
the Union, seeking compensation for the monies they would have earned if
they had completed the tour Judgment was entered against Wakely and
upheld by the executive board of the international union on appeal Wakely
was directed to pay $540 to each of the three, with a further direction to his
local union (47) to terminate his membership if he did not pay the three by
February 28 Wakely did not make the payments and was duly terminated
5 The Trial Examiner discredits John Wakely's testimony that he was
"confused" concerning his membership status on July 19-20 He gave notice
letters on Local 76's stationery to Evans, John Wakely,
Norman, and Puls (and an identical copy to Linda Wakely
the following day) and verbally repeated its contents.
The letter read as follows:
This is to advise you that you are performing for Jimmy
Wakely who is on the A. F. of M. Defaulters List and
an expelled member. By performing with Jimmy
Wakely you are in violation of Article 10, Sections 7
and 11 of the Federation Bylaws.
Article 10, Section 7: "Whenever any person, persons,
organization or establishment is declared to be on the
National Unfair or Defaulter List by the Federation,
members cannot render services for or with such
person, persons, organization, or for or in, such
establishment. If members render services for any
person, persons, organization or establishment declared
Nationally Unfair or in Default by the Federation,
such action shall constitute grounds for such members'
expulsion from membership in the Federation and they
can only be reinstated under such conditions as may be
imposed upon them by the International Executive
Board."
Article 10, Section 11: "Any member who solicits from
or signifies his intention to accept an engagement with
an organization, booking agents or individuals who are
held as unfair or in default by the Federation of
Musicians, may be fined by the local in whose
jurisdiction he committed the offense or by the
International Executive Board a sum not exceeding
$100.00, or he be expelled from the Federation, or both.
If you continue to work with Jimmy Wakely you will
be subject to charges for violation of the above Bylaws.
Fraternally,
(signed) Winifred B.
Warming
Secretary-Treasurer
Jimmy Wakely asked John Wakely to read his letter
aloud.8 John did so, in the presence of Jimmy Wakely,
Evans, Norman, Puls, and Carraba. Asked to comment
thereafter, Carraba paraphrased the letter. Jimmy asked
those present what they were going to do. John Wakely
commented that no one was going to tell him he could not
work for his father. Norman and Puls stated they were
going to continue to work. Evans stated he was pulling out,
though he agreed (with Carraba's approval) to work that
evening, inasmuch as it was close to showtime.
Evans did not report for work the following evening
(July 21). On July 22, he returned to work and finished the
engagement-on the advice of Local 76's secretary-treasur-
on March 30 to Local 47 to the effect that he did not intend to pay dues
after March 31 , to which date he was paid up, and he acknowledged receipt
of notice from Local 47 on May 25 that his membership would be
suspended (suspension is synonomous to termination) on June 30 (dues are
due in quarterly installments , payable on or before the last day of each
quarter) unless he paid his dues for the second quarter by that date, which
he failed to do
6 Evans was employed by Wakely on previous tours of the Northwest.
He was at all times a member of Local 76
7 Norm Hoagy , president, and Lee Newman , vice president
8 Jimmy Wakely did not have his reading glasses with him
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er, who informed Evans she had been instructed to so
advise Evans by Local 76's attorneys after their examina-
tion of the original charge filed in this case on July 21.
Subsequent to their receipt and notice of Local 76's July
20 letter and Carraba's comments paraphrasing it, Jimmy
Wakely made no changes in John Wakely's duties and
John Wakely continued to perform his regular duties as he
had previous to receipt of the letter. No action has been
instituted by Local 76 since July 20 against Jimmy Wakely,
John Wakely, or any other person employed in the Show.
D. John Wakely's Supervisory Status
At times pertinent hereto, John Wakely was paid $100
per week more than his sister and the other musicians
employed in the Show. Since 1966, when he replaced
Jimmy Wakely's former second-in-command, John Wake-
ly has effectively recommended the hiring and firing of
side musicians employed in the Show, including the three
musicians fired during the 1970 spring tour of the Show in
the Northwest and the hiring of the current drummer, Scott
Norman; at all times since 1966 he has directed musical
rehearsals in the absence of Jimmy Wakely; during the
dance sets between the times the Show is on, Jimmy
Wakely remains off the stage and John Wakely chooses the
music to be played, sets the tempo, decides when to start
and stop, when to take breaks, etc.; John Wakely polices
the wearing apparel of the musicians, gives them cash
advances when requested, sets rehearsal dates and times
(and changes same at times on request by the musicians),
handles requests from the musicians to adjust spotlights,
etc.; he enforces Jimmy Wakely's rules regarding no
drinking or smoking on stage, etc. All three musicians
employed by Jimmy Wakely on the July tour (Norman,
Puls, and Evans) and John Wakely were advised that John
Wakely was in charge in Jimmy's absence or unavailability
and that Norman, Puls, and Evans were to carry out John's
instructions.9
E. Contentions of the Parties, Issues
1. The General Counsel
The General Counsel contends that on July 20, John
Wakely was employed by Jimmy Wakely as a supervisor
whose duties, inter aka, included the adjustment of
employee grievances; that the July 20 letter addressed by
Local 76 to John Wakely and read in Jimmy Wakely's
presence, plus Carraba's accompanying remarks para-
phrasing the letter, constituted a threat which restrained
and coerced Jimmy Wakely in his selection of John
Wakely as his representative for the purpose of adjusting
employee grievances and thereby violated Section
8(b)(1)(B) of the Act.
2. Local 76
Local 76 contests John Wakely's supervisory status,
disclaims knowledge' or notice thereof, contends that the
July 20 letter and Carraba' s remarks were neither a threat
nor "restraint" or "coercion" within the meaning of
Section 8(b)(l)(B) of the Act, argues that its sole object was
to inform those employees of Jimmy Wakely who were
members of an affiliate of the Federation that they would
be exposed to charges of violation of the Federation's
bylaws if they worked for Jimmy Wakely, and not to
"restrain" or "coerce" Jimmy Wakely in his selection of
supervisors to process employee grievances, claims the
record shows that Jimmy Wakely was not "restrained" or
"coerced" by the letter and remarks, and finally contends
that by virtue of the foregoing the complaint should be
dismissed.
3. The issues
The issues are:
a. Was John Wakely a supervisor and Jimmy Wakely's
representative for the purpose of processing employee
grievances on July 20.
b. Did Local 76's July 20 letter and Carraba's accom-
panying remarks constitute threats and "restraint" or
"coercion" within the meaning of Section 8(b)(1)(B) of the
Act.
c. Was Local 76's object, in directing the letter and
remarks to John and Jimmy Wakely, to restrain and/or
coerce Jimmy Wakely in his selection of John Wakely as
his representative for the purpose of adjusting employee
grievances.
d. Was Jimmy Wakely restrained and/or coerced in his
selection of John Wakely as his representative for the
purpose of processing employee grievances by the July 20
letter and Carraba's remarks.
F. Analysis and Conclusions
1. John Wakely's status
Section 2(11) of the Act defines as a supervisor any
individual with authority to hire, discharge, assign,
discipline, responsibly direct employees, or adjust employ-
ee grievances or effectively to recommend such action, so
long as he exercises independent and not merely routine or
clerical judgment.
The Trial Examiner has entered findings heretofore that
John Wakely effectively recommended several employee
firings and a hiring, assigned work to employees, directed
employees in their work, issued reprimands to them,
handled their requests and complaints, and received $100
per week more than the employees he directed. Several of
John Wakely's functions were exercised without the
presence of Jimmy Wakely, and required the exercise of
independent discretion or judgment. Both John Wakely
and the musicians employed by Jimmy Wakely on July 20
were clearly informed by Jimmy Wakely of John Wakely's
status as Jimmy's second-in-command.
Based upon such findings and considerations just
recited, the Trial Examiner finds and concludes that John
Wakely was a supervisor on July 20 with authority to
9 The foregoing findings are based on the undisputed testimony of the General Counsel's presentation of his case in chief on the ground the
Jimmy Wakely, John Wakely, and Bob Evans, Local 76 did not present any General Counsel failed to meet his burden of establishing by prima facie
evidence and moved to dismiss the complaint in its entirety at the close of evidence that any violation of Sec 8(b)(I)(B) of the Act occurred
AMERICAN FEDERATION OF MUSICIANS, LOCAL 76
adjust such employee complaints or grievances as they
arose.
2. Did Local 76's actions constitute "restraint or
coercion"
Section 8(b)(1)(B) of the Act states that it is an unfair
labor practice for a union to restrain or coerce an employer
in the selection of his representative for the purpose of
adjusting employee grievances.
Local 76 contends that Congress' deliberate failure to
carry over the words "interfere with" along with the words
"restrain or coerce" from Section 8(a)(1) of the Act when it
enacted Section 8(b)(1)(B) indicates Congressional intent
to refrain from making it unlawful for a union to attempt to
discriminate, as contrasted with an effective discriminatory
action. Local 76 further reasons that its obvious incapacity
to fine or expel John Wakely (due to his nonmembership
on July 20), its failure to file charges against him, and
consequent failure to even seek, much less accomplish, his
fining or expulsion from membership, coupled with its
revocation of its July 20 notice as evidenced by its July 21
advice to Evans to work for Jimmy Wakely, all evidence
conduct falling short of "restraint" or "coercion" as those
terms are utilized in Section 8(b)(1)(B) of the Act.
Several reported cases refute Local 76's argument. In the
cases of Bricklayers Local 7 (United Masonry, Inc.), 193
NLRB No. 72; Teamsters Local 663 (Continental Oil Co.),
193 NLRB No. 84; and Typographical Union No. 18
(Northwest Publications Co.), 172 NLRB 252, the Board
held that remarks and notice such as directed in this case
by Local 76 to John Wakely, as well as the subsequent
imposition of discipline on a supervisor-union member, for
carrying out employer policy to which the union was
opposed, constituted restraint or coercion of the employer.
The Board reasoned that both the threat and the act were
equally restraining and coercive of the employer in the
exercise of his right to sole and undivided control over his
supervisory representative 10 in his carrying out of employ-
er policy or orders vis-a-vis his employees.
The Trial Examiner therefore finds and concludes that
the letter delivered by Carraba to John Wakely on July 20
and Carraba's accompanying remarks conveyed a threat to
him that Local 76 would cause charges leading to fine or
expulsion or both unless he ceased working for Jimmy
Wakely and that such a threat constitutes restraint or
coercion as those terms are employed in Section 8(b)(1)(B)
of the Act.
3. Local 76's objective
The July 20 Local 76 letter was distributed by Carraba to
the three side musicians (Evans, Norman, and Puls) and
10 Reconciling and harmonizing Sec 8(b)(I)(B) with the Congressional
intent expressed by Sec 2(3)'s exclusion of supervisors from the Act's
coverage
11 See cases cited in Sec III, F,2, above, and Meat Cutters Local 81
(Safeway Stores, Inc), 185 NLRB 884, enfd 458 F 2d 794 (C A D C),
Dallas Mailers Union (Dow Jones Co ), 181 NLRB 286, enfd. 445 F 2d
730 (CAD C ),Sheet Metal Workers Local 49 (General Metal Products,
Inc), 178 NLRB 139, enfd 430 F 2d 1348 (C A 10), New Mexico
District Council of Carpenters (A S Horner Co), 177 NLRB 500, 176
NLRB No 105, enfd 454 F 2d I I i6(C A 10), Toledo Locals 15-P & 272,
Lithographers (Toledo Blade Co), 175 NLRB 1072, enfd 437 F 2d 55 (C A
6),
625
Linda and John Wakely. The record is devoid of any
evidence that Local 76 was ever reasonably apprised of
John Wakely's nonmembership in the Federation or his
supervisory and grievance representative status on July 20
or any time theretofore.
Local 76 argues that at the time Carraba distributed the
July 20 letter the Local believed all five simply to be
employees of Jimmy Wakely and its sole object was to
warn those who were members of the Federation of their
exposure to charge of violation of the Federation's bylaws
and possible fine or expulsion if they continued to work for
Jimmy Wakely, and that it did not intend to coerce or
restrain the latter in his selection of John Wakely as his
representative for adjusting any complaints or grievances
the three side musicians (and Linda) might have.
The General Counsel responds that motive or intent or
object is irrelevant and Local 76 must answer for the result
of its acts, whether intended or not.
While it is true that the Board and the courts in a
number of cases have held that threats to discipline a
supervisor-union member for carrying out orders or
policies dictated by his employer which the union opposes
and the actual levy of discipline therefore violate Section
8(b)(1)(B) of the Act,ii they have also held that no
violation occurs when the threat or disciplinary action is
not aimed at affecting the employer's selection of the
threatened or disciplined supervisor-union member as his
representative for grievance adjustment purposes or to
affect the supervisor-union member's exercise of his
function as a management representative in grievance
add ustment. i2
The General Counsel concedes in his brief that service of
the July 20 letter on, and Carraba's accompanying remarks
to, Evans, Puls, Norman, and Linda Wakely did not
violate Section 8(b)(1) of the Act, inasmuch as they were
employees within the meaning of the Act and the proviso
to Section 8(b)(1)(A) of the Act permits' union threat and
discipline of employee-union members for violation of its
bylaws; 13 in essence, he contends that Section 8(b)(1)(B)
was violated solely because John Wakely was a supervisor,
without regard to whether this was known to Local 76 or
whether Local 76 was trying to coerce Jimmy Wakely into
changing his designation of John Wakely as his grievance
adjustment representative or to coerce John Wakely (and,
indirectly, Jimmy Wakely) into desisting from carrying out
instructions or policies or orders as a management
representative.
The Trial Examiner concludes that Local 76's object or
motive in serving the July 20 letter on John Wakely and
making remarks through Carraba paraphrasing it to him
was to coerce Jimmy Wakely's employees, including John
Wakely, to cease working for Jimmy Wakely and thereby
12 Local & Sawmill Workers (Cheney Cal Lumber Co), 183 NLRB No
24, enfd 319 F 2d 375 (C A 9), Morand Bros Bev Co (Distillery Workers
Union, 91 NLRB 409, enfd 190 F 2d 576 (C A 7), Carpenters District
Council of Sabine Area (Miner-Dietrich Const Co), 195 NLRB No 28, Local
453, Bra of Painters, etc (Syd Gough & Sons, Inc), 183 NLRB No 24, Local
600, Iron Workers (Bay City Erection Co), 134 NLRB 301
11 The General Counsel's refusal to issue a complaint based on the
Charging Party's claim that the conduct described herein violated Sec
8(b)(I)(A) of the Act further precludes the Trial Examiner from entering
any findings thereon-see Sec 3(d) of the Act
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerce Jimmy Wakely into complying with the Federa-
tion's award against him, and not to coerce Jimmy Wakely
into changing his designation of John Wakely as his
grievance adjustment representative or to affect John
Wakely's performance of any managerial duties.
In the judgment of the Trial Examiner, the General
Counsel's theory of the case, if followed, would extend the
application of Section 8(b)(1)(B) of the Act beyond any
semblance of its original intent-to bar union strikes or
other forms of coercion aimed at forcing an employer to
change the person he designated to bargain collectively
and/or adjust grievances on his behalf.
The Trial Examiner therefore finds, in accord with the
cases cited in footnote 12, that since Local 76 did not have
as its object the coercion of Jimmy Wakely in his choice of
John Wakely as his grievance representative or to coerce
John Wakely in his performance of managerial duties,
Local 76 did not violate Section 8(b)(1)(B) of the Act by
serving the July 20 letter on John Wakely and Carraba's
remarks paraphrasing it.
4. Restraint or coercion
Local 76 contends that Jimmy Wakely's testimony that
he continued to assign the same duties to John Wakely
after hearing the contents of the July 20 letter and
Carraba's accompanying remarks proves that Jimmy
Wakely was not restrained or coerced in his selection of
John Wakely as his grievance and managerial representa-
tive.
Findings have been entered previously that John Wakely
was not a member of the Federation at the time he received
14 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and recommended Order herein shall, as
the letter and heard Carraba's remarks, a fact obviously
known to his father, Jimmy Wakely.
Clearly, then, both Jimmy and John Wakely knew at that
time of the emptiness of the threat, that Local 76 did not
have it within its power to subject John Wakely to charges
leading to possible fine or expulsion. With that knowledge,
and John's immediate rejoinder that no one could tell him
he couldn't work for his father, it is difficult to see how
Jimmy Wakely'was in any way "restrained" or "coerced."
On this added ground, the Trial Examiner finds and
concludes that no violation of Section 8(b)(1)(B) of the Act
occurred.
CONCLUSIONS OF LAW
1. At all pertinent times Jimmy Wakely was an
employer engaged in commerce in a business affecting
commerce and Local 76 was a labor organization within
the meaning of Section 2(2), (5), (6), and (7) of the Act.
2. Local 76 did not violate Section 8(b)(1)(B) of the Act
by presenting' John Wakely with a letter on July 20
notifying him that he might be charged with violation of
the bylaws of the Federation if he continued to work for
his father and by the remarks of its agent, Carraba,
paraphrasing the contents of that letter.
Upon the basis of the foregoing findings of fact,
conclusions of law and the entire record, and pursuant to
Section 10(c) of the Act, the Trial Examiner issues the
following recommended: 14
ORDER
The complaint shall be dismissed in its entirety.
provided in Sec 102 48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions , and Order, and all objections
thereto shall be deemed waived for all purposes