Elevator Constructors (Otis Elevator Co.)

National Labor Relations Board - Board Decisions

Mar 22, 2007

349 N.L.R.B. 583 (N.L.R.B. 2007)

ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.)
349 NLRB No. 55
583
International Union of Elevator Constructors and
Otis Elevator Company
International Union of Elevator Constructors, Local
18 and Otis Elevator Company. Cases 21–CB–
13923 and 21–CB–13925
March 22, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On January 25, 2006, Administrative Law Judge
Gregory Z. Meyerson issued the attached decision. The
Respondents, International Union of Elevator Construc-
tors and its Local Union, Local 18, filed exceptions and
supporting briefs, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
The judge found that the Respondents violated Section
8(b)(1)(A) of the Act by disciplining employee Scott
Congrove for engaging in protected activity. The judge
also found that the Respondents violated Section
8(b)(1)(B) by disciplining Supervisor Scott Cutler. We
agree that the Respondents violated Section 8(b)(1)(A)
by their discipline of Congrove.3 However, contrary to
the judge, and as explained below, we find that the Re-
spondents did not violate Section 8(b)(1)(B) by disciplin-
ing Cutler.
Facts
The Employer constructs and installs elevators and es-
calators. The Respondents have represented the Em-

1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the judge’s findings.
2 We shall modify the judge’s recommended Order to limit the post-
ing requirement to the Respondents’ Local and International headquar-
ters, see, e.g., John J. Hudson, Inc., 275 NLRB 874 fn. 2 (1985) (deny-
ing request for a broad notice posting where no evidence of repeated or
pervasive violations), and to conform to the violation found. We shall
also modify the notice to conform to the language of the Order.
3 In adopting that finding, we also rely on the fact that the parties’
Standard Agreement contained a no-strike clause.
We also agree with the judge’s findings, for the reasons set forth in
his decision, that the charge in this case was timely filed, and that de-
ferral of the case is not appropriate.
ployer’s employees since at least July 2002. The current
collective-bargaining agreement, called the Standard
Agreement, is in effect from July 9, 2002, to July 8,
2007.
On February 5, 2004, the Employer had a five-person
crew assigned to the Morongo Casino in Cabazon, Cali-
fornia, for the purpose of raising two escalators. The
crew included employee Congrove and mechanic-in-
charge Cutler. The crew was overseen by Jeffrey Gibas,
the Employer’s construction and modernization superin-
tendent. Although Gibas was charged with overseeing
the project, he was not on the site every day. Rather,
Cutler ran the day-to-day operations of the project. It is
undisputed that Cutler was a statutory supervisor and a
member of the Respondent Unions.
As the mechanic-in-charge, Cutler’s duties consisted
of assigning work to the mechanics, keeping track of
payroll, authorizing overtime, and keeping track of the
hours worked by the employees on the various crews.
Cutler informally resolved employee payroll disputes and
authorized “cartage” payments to employees who spent
their own money on the Employer’s business. Cutler did
not formally discipline employees, but reported instances
of misconduct to Gibas. When doing so, Cutler sent the
affected employees back to headquarters for Gibas to
determine the appropriate discipline. Cutler had no au-
thority to resolve formal grievances, which were handled
by Gibas.
Cutler ensured that all crews had the correct ratio of
mechanics and helpers required by the Standard Agree-
ment. Cutler was also responsible for ensuring that ma-
terials arriving on site did not violate the Standard
Agreement’s provisions regarding prefabricated parts.
For instance, if a prefabricated elevator was delivered
that violated the requirements of the Standard Agree-
ment, Cutler directed employees to disassemble the pre-
fabricated portion, and to remount and align the parts
properly.
On February 5, 2004,4 Cutler and his crew were
scheduled to raise two escalators. However, Cutler was
informed by the general contractor that the typical
method of raising escalators (i.e., hoisting the escalator
in place by using a pulley attached to the building steel)
was not possible, because the escalators were unusually
large and the steel could not support their weight. Cutler
telephoned Gibas and informed him of the problem. Gi-
bas, in turn, called the Employer’s tool shop to inquire as
to the availability of a gantry.5 Gibas was told that the
tool shop did not possess a gantry large enough to hoist

4 All dates hereafter refer to 2004, except where otherwise stated.
5 A gantry is an A-framed steel rigging used to hoist and hold in
place large escalators.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD584
the escalators. Gibas then inquired as to the availability
of outside companies with the equipment necessary to
complete the job, and was referred by the tool shop to an
outside contractor, Halbert Brothers. Gibas hired Halbert
Brothers to provide and set up the gantry.
Halbert Brothers’ employees, who were represented by
another union, the Ironworkers, arrived at the Morongo
site later that day. The Employer’s employees used fork-
lifts to remove the gantry parts from the truck, and Hal-
bert Brothers’ employees then assembled the gantry.
Construction of the gantry took 2 days. After the con-
struction was completed, the Employer’s employees used
the gantry to raise the escalators. Thereafter, Halbert
Brothers’ employees disassembled the gantry, and the
Employer’s employees then removed the gantry parts
and placed them onto the trucks.
A few days later, Respondent Local 18’s business
agent, John Holzer, came to inspect the Morongo site.
Upon inspecting the escalators, Holzer noticed that the
escalator contained a number of prefabricated parts, and
he informed Cutler that the use of those parts violated the
Standard Agreement. Cutler, in turn, informed Holzer
about the Employer’s use of the Ironworkers’ members
to hoist the escalators into place. Holzer told Cutler that
using a composite crew of Ironworkers and the Em-
ployer’s employees to construct the gantry was an addi-
tional violation of the Standard Agreement. Holzer then
called Gibas and informed him that the Employer had
violated the Standard Agreement by installing escalators
with prefabricated parts and by using a composite crew
to hoist the escalators into place. Holzer thereafter filed
a grievance against the Employer over this matter, which
the parties later settled.
On March 5, Respondent Local 18 initiated intraunion
disciplinary proceedings against each employee of the 5-
member crew at the Morongo site, including Cutler.6
The disciplinary charge described Cutler’s offense as
“work[ing] with a composite crew of Ironworkers and
Elevator Const[ructors] in rigging and [i]nstall of Escala-
tors,” whereby Cutler was alleged to have failed to abide
by the Standard Agreement’s provision governing work
jurisdiction and to have violated his oath as a union
member.
Respondent Local 18 ultimately found Cutler “guilty”
of the charges and fined him $4000. Cutler was ordered
to pay $1000 immediately, with the remaining $3000 to
be held in abeyance for a period of 5 years but payable in
the event of a subsequent conviction. Cutler appealed his

6 Although all five members of the Morongo crew were the subject
of the disciplinary proceedings, only Cutler and Congrove filed charges
with the Board.
fines to the Respondent International Union. In his ap-
peal, Cutler wrote:
What the E-Board does not understand is that my
boss Jeff Gibas instructed me to work with the certi-
fied gantry that the rigging company put together to
perform the work on the escalators, . . . which I did.
I could not control whether Otis hired a rigging
company or not. If my supervisor instructs me to do
something, if its [sic] safe I do it. If I don’t do what
my supervisor instructs me to do, there’s a chance I
could get fired.
The appeal was heard by the Respondent International
Union on November 8. By letter dated January 10, 2005,
the Respondent International Union denied Cutler’s ap-
peal and raised the portion of the fine that Cutler was
required to pay to $2000. The Respondent International
Union informed Cutler that he could further appeal his
discipline at the next meeting of the International Union,
but there is no evidence that Cutler did so.
The judge found that the Respondents violated Section
8(b)(1)(B) by disciplining Cutler. The judge first found
that Cutler, in addition to being a statutory supervisor,
was the Employer’s representative for the purposes of
collective bargaining and adjustment of grievances
within the meaning of Section 8(b)(1)(B). In so finding,
the judge relied on the evidence of Cutler’s authority to
resolve wage disputes and his involvement in the subcon-
tracting of the gantry work. In particular, the judge ob-
served that Union Representative Holzer, when he
learned of the potential contract violations relating to the
installation of the escalators, first approached Cutler to
voice his disapproval.
The judge rejected the Respondents’ argument that, to
find an 8(b)(1)(B) violation, the Board must find that the
supervisor-member was disciplined for conduct involv-
ing collective bargaining or grievance adjustment. In
rejecting this argument, the judge found inapplicable
Sheet Metal Workers Local 33 (Cabell Sheet Metal &
Roofing), 316 NLRB 504 fn. 1 (1995). Although ac-
knowledging that this requirement was stated in Cabell,
the judge stated that “other, more recent Board cases . . .
do not seem to have this requirement.”7 The judge fur-
ther found that, even assuming that the requirement ap-
plied, it was satisfied by evidence showing that Cutler
was disciplined for interpreting the contract to permit the
construction of the gantry by nonmembers. The judge
concluded, therefore, that the Respondents’ actions vio-
lated Section 8(b)(1)(B), because they would have an

7 See Elevator Constructors Local 1 (National Elevator Industry),
339 NLRB 977 (2003); Elevator Constructors Local 10 (Thyssen Gen-
eral Elevator Co.), 338 NLRB 701 (2002).
ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 585
adverse impact on Cutler’s future performance as a man-
agement representative and grievance adjuster.
The Respondents except to the judge’s findings regard-
ing Cutler on the grounds that he was not the Employer’s
representative for the purposes of collective bargaining
or grievance adjustment, and that, even if he was, he was
not engaged in those duties at the time of the incident for
which he was disciplined.
Contrary to the judge, and as explained below, we find
that the Respondents did not violate Section 8(b)(1)(B)
of the Act by their discipline of Cutler.
Discussion
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 adjustment of grievances.” That provision restricts a
union’s right to discipline members who exercise collec-
tive-bargaining or grievance-adjustment duties on behalf
of their employer. Not all such discipline is prohibited
under Section 8(b)(1)(B), however. The section prohib-
its only discipline that “may adversely affect [a] supervi-
sor’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 & Light Co.
v. Electrical Workers Local 641, 417 U.S. 790, 804–805
(1974). More particularly, discipline is prohibited “only
when an employer representative is disciplined for be-
havior that occurs while he or she is engaged in §
8(b)(1)(B) duties—that is, ‘collective bargaining or
grievance adjustment, or . . . any activities related
thereto.’” NLRB v. Electrical Workers Local 340 (Royal
Typewriter), 481 U.S. 573, 582 (1987) (ellipsis and em-
phasis in the original, citation omitted). The Board may
not, therefore, find a violation of Section 8(b)(1)(B)
when the employee-representative was not engaged in
the adjustment of grievances or collective bargaining
during the incident that led to the discipline. Cabell, su-
pra, 316 NLRB at 504 fn. 3.8
Accordingly, our determination of whether the Re-
spondents’ discipline of Cutler was unlawful requires us
to decide whether he was disciplined for engaging in

8 Cabell remains applicable precedent, and its holding is in accord
with the Supreme Court’s decisions on the scope of Sec. 8(b)(1)(B)
cited above. The cases that the judge suggested cast doubt on the con-
tinued viability of Cabell (see fn. 8, above) are not to the contrary. In
National Elevator Industry, 339 NLRB at 983, a supervisor-member
was disciplined for interpreting the collective-bargaining agreement’s
provisions governing safety and staffing; in Thyssen General Elevator,
338 NLRB at 702, a supervisor-member was disciplined for what the
Board expressly found to be grievance adjustment and contract inter-
pretation.
either collective bargaining or grievance adjustment. We
find that the evidence establishes that he was not.
Cutler was, it is undisputed, a statutory supervisor, and
he did, to a limited degree, engage in adjustment of mi-
nor grievances and contract interpretation. There is no
evidence, however, that Cutler’s discipline was in any
way related to his performance of those duties. Accord-
ing to the Respondent Local’s charges against him, Cut-
ler’s offending conduct was working with a composite
crew of members and nonmembers. The Union’s charge
made no reference, express or implied, to Cutler’s exer-
cise of any grievance-adjustment or collective-bargaining
duties. It is notable that Cutler’s alleged offense was
identical to that charged against rank-and-file employee
Congrove.
Nor, during the incident referenced in the charges, did
Cutler engage in grievance adjustment or collective bar-
gaining. Rather, his conduct consisted of working with
his fellow employees to unload the gantry materials and
put them into position for assembly, standing aside while
the contractor’s employees assembled the gantry, hoist-
ing the escalators using the gantry, and reloading the
gantry materials after they had been disassembled by the
contractor’s employees. At most, Cutler’s conduct con-
sisted of ordinary supervisory duties, and discipline for
those kinds of duties, as we have shown above, is insuf-
ficient to invoke Section 8(b)(1)(B). Because the Re-
spondents’ discipline of Cutler was unrelated to whatever
8(b)(1)(B) responsibilities he might have exercised at
other times, there has been no showing that his discipline
would foreseeably have an adverse effect on his future
performance of 8(b)(1)(B) activities.
Contrary to the judge and our dissenting colleague, the
evidence does not establish that Cutler was disciplined
because he interpreted the contract to permit the Em-
ployer to use a contractor employing nonmembers to
construct the gantry.9 The Unions’ charges against Cut-
ler made no such reference. Moreover, the evidence
shows plainly that it was Gibas, and not Cutler, who de-
cided to hire an outside contractor to bring in and assem-
ble the gantry. Although the record shows that Cutler
shared Gibas’ concern that Otis employees could not
assemble the gantry themselves, there is no evidence that

9 We also reject the judge’s inference that, because Holzer informed
Cutler that the use of prefabricated sections in the escalators might
violate the Standard Agreement, Cutler engaged in contract interpreta-
tion or grievance adjustment on the Employer’s behalf. Cutler’s role in
the conversation with Holzer, as described above, cannot fairly be
described as either. At most, Cutler listened to Holzer and supplied
some information. Following his discussion with Cutler, Holzer imme-
diately contacted Gibas and requested a meeting to discuss a possible
violation of the Standard Agreement. Reflecting his lack of responsi-
bilities in this regard, Cutler did not attend that meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD586
Cutler made any decision concerning the subcontracting
of the gantry assembly work, or even that he recom-
mended that decision. Cutler’s role in those events—as
he stated himself in his appeal of his fine—was merely to
pass along to Superintendent Gibas the general contrac-
tor’s view that the building steel was not strong enough
to hoist the escalators, and then to follow Gibas’ instruc-
tions by directing the Employer’s employees to assist in
the erection of the gantry. That conduct does not consti-
tute 8(b)(1)(B) activity.10
In sum, because Cutler was not disciplined by the Re-
spondents for engaging in contract interpretation or
grievance adjustment, the Respondents’ discipline of him
did not violate Section 8(b)(1)(B). We therefore reverse
the judge on that issue and dismiss that portion of the
complaint.
ORDER
The International Union of Elevator Constructors (the
Respondent International Union) and the International
Union of Elevator Constructors, Local 18 (the Respon-
dent Local 18) and collectively the Respondents, their
officers, agents, and representatives, shall
1. Cease and desist from
(a) Filing internal-union charges against, fining, or
otherwise disciplining union members because of actions
taken by them as employees in following the direction of
their employer to work with a composite crew in rigging
and installing escalators.

10 Elevator Constructors Local 36 (Montgomery Elevator Co.), 305
NLRB 53 (1991), relied on by the dissent, is not to the contrary. In that
case, the mechanic-in-charge was disciplined for deciding on his own
initiative to install an elevator with prefabricated parts, a decision made
in direct contravention of the applicable collective-bargaining agree-
ment. There was no contention that the mechanic-in-charge in Mont-
gomery Elevator was merely following the orders of his supervisor, as
is the case here.
Our colleague asserts that Florida Power & Light, supra, and Cabell,
supra, are factually distinguishable. As explained above, however, the
central holdings of those cases are directly applicable to the present
case. Here, as in Cabell and Florida Power & Light, a supervisor-
member was disciplined for activity that was not related to, and did not
impact, his 8(b)(1)(B) duties.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Dismiss the internal-union charges filed and re-
scind the fines levied against Scott Congrove, refund any
moneys he may have paid on account of the fines as-
sessed against him, and reimburse him for any costs in-
curred by him in defending himself at the internal-union
hearings, plus interest.
(b) Within 14 days from the date of the Board’s Order,
remove all records of the internal-union charges, result-
ing proceedings, and fines from Scott Congrove’s files
and, within 3 days thereafter, notify Congrove in writing
that these actions have been taken and that the charges,
resulting proceedings, and fines will not be used against
him in any way.
(c) Within 14 days after service by the Region, post at
its headquarters, located in Columbia, Maryland, and at
the headquarters of its local union office in Pasadena,
California, copies of the attached notice marked “Appen-
dix.”11 Copies of the notice, on forms provided by the
Regional Director for Region 21, after being signed by
the Respondents’ authorized representatives, shall be
posted by the Respondents and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted.12 Rea-
sonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by
any material.
(d) Within 14 days after service by the Region, the Re-
spondents shall duplicate and mail, at their own expense,
a signed copy of the notice to all their members who
were employed by Otis Elevator Company at the Mo-
rongo Casino jobsite, in Cabazon, California, at any time
on or after February 5, 2004.

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
12 Authorized representatives of both the Respondent International
Union and the Respondent Local 18 shall sign the notices to be posted
at those business offices.
ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 587
(e) Sign and return to the Regional Director sufficient
copies for posting by Otis Elevator Company, if willing,
at all places where notices to employees are customarily
posted.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at
testing to the steps that each of the Respondents have
taken to comply.
CHAIRMAN BATTISTA, dissenting in part.
I agree with my colleagues that the judge correctly
found that the Respondents violated Section 8(b)(1)(A)
of the Act by disciplining Scott Congrove for engaging
in protected activity.1 However, I also find, in agreement
with the judge, that the Respondents violated Section
8(b)(1)(B) of the Act by their discipline of Scott Cutler.
Contrary to my colleagues, I find that Cutler, the Em-
ployer’s representative for purposes of grievance adjust-
ment and contract interpretation, was disciplined for en-
gaging in that activity.
As mechanic-in-charge, Cutler is often the only mana-
gerial representative on the Employer’s jobsites. Cutler
adjusts hours, settles pay grievances with employees, and
handles disciplinary issues with employees.
Cutler was disciplined for his conduct regarding the
use of a composite crew in connection with the gantry.2
On February 5, 2004, Cutler was the only management
representative on the worksite. In that capacity, he initi-
ated the chain of events that led to the Employer’s use of
Ironworkers to assemble the gantry. Cutler made the
initial determination that the Employer’s own equipment
was insufficient to hoist the escalator. He told Jeffrey
Gibas of his determination and told Gibas to “order me a
crane or order me a gantry.” Although Gibas made the
choice as between a crane and a gantry, it was Cutler
who decided that the Employer’s own equipment was
insufficient. Thus, the decision to contract out the work,
or at least the effective recommendation to do so, was
made by Cutler.

1 In adopting this finding, however, I rely solely on the fact that the
parties’ Standard Agreement contained a no-strike clause. Thus, as the
judge found, Congrove was disciplined for refusing to engage in a work
stoppage prohibited by the Standard Agreement’s no-strike clause. As
noted by the judge, the discipline put Congrove in a “no-win” position
in which he faced either discipline by the Respondents or discipline—
and possibly discharge—by the Employer. Thus, Congrove was fol-
lowing a legitimate directive from his employer, i.e., not to violate the
no-strike provision of the contract, and was unlawfully disciplined for
doing so. See Communications Workers Local 13000 (Verizon Com-
munications, Inc.), 340 NLRB 18, 27–28 (2003).
2 Although Union Representative Holzer also complained about the
installation of a preassembled escalator, this was not the basis of the
Unions’ discipline of Cutler.
Further, once the Ironworkers arrived, Cutler ordered
the employees to cease working while the Ironworkers
assembled the gantry. There is no evidence that Gibas
advised Cutler to do so. Had Cutler disagreed with the
Ironworkers’ work on the site, he could have notified
Gibas of a potential problem, just as he did when he ini-
tially determined that a gantry was needed, and just as he
normally does when prefabricated equipment arrives on
the jobsite. However, Cutler did not do so, because, as
he testified at the hearing, “To be honest with you, I
didn’t think it would be a big deal. [Halbert Brothers] is
a Union company. I didn’t think that the [Respondents]
would be making a big deal about another Union com-
pany. That’s my own interpretation.” Thus, Cutler did
not object to the Ironworkers’ work on the jobsite be-
cause it was his view that this was permissible. As it
turned out, the Union had a contrary interpretation of the
contract. That is, Union Agent John Holzer later told
Cutler that his interpretation of the contract was wrong.
In short, Cutler was not simply a conduit for the carry-
ing out of a superior’s orders. He made his own deci-
sions. This involved the decision to direct his crew to
refrain from working while Ironworkers assembled and
disassembled the gantry.
Given these facts, I find that Cutler was engaged in
8(b)(1)(B) activity. Further, even if Cutler’s actions did
not involve 8(b)(1)(B) activity, it is clear that the Re-
spondents’ discipline of Cutler would have an adverse
impact on his future performance of contract interpreta-
tion and grievance adjustment on behalf of the Em-
ployer.3
The Union’s discipline of Cutler would influence his
conduct in the exercise of future 8(b)(1)(B) activity.
That is, particularly in light of the amount of the fine, it
is reasonable to believe that Cutler will “think twice”
before he again does anything in the future which might
raise the ire of the Union. As noted above, Cutler en-
gages in a number of 8(b)(1)(B) activities, including de-
cisions as to the handling of prefabricated parts and as to
how to direct employees. Knowing that a fine could be
imposed, Cutler would reasonably attempt to shield him-
self from discipline and fines by making supervisory
decisions in the interests of the Respondents, rather than
the Employer.

3 Thus, even if the discipline is not “directed at” the exercise of an
8(b)(1)(B) function, it can violate Sec. 8(b)(1)(B) if it has a foreseeable
adverse effect on future 8(b)(1)(B) exercises. See Elevator Construc-
tors (Thyssen General Elevator), 338 NLRB 701 (2002).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD588
This is precisely the type of chilling effect that Section
8(b)(1)(B) seeks to proscribe. For instance, in Elevator
Constructors Local 36 (Montgomery Elevator Co.), 305
NLRB 53 (1991), the Board adopted a judge’s finding of
a violation for disciplining a mechanic-in-charge who
directed that employees hoist an elevator with certain
preassembled parts attached, in possible violation of the
contract. The Board agreed with the judge’s finding that
the mechanic-in-charge was engaged in 8(b)(1)(B) con-
tract interpretation and that the union unlawfully disci-
plined him for performing his duties. The judge in
Montgomery Elevator found that the union’s discipline
would “compel the Employer’s foremen to take pro-
union positions in interpreting the collective-bargaining
agreement.” The judge concluded that “the purpose and
effect of the Respondent’s conduct literally and directly
contravened the statutory policy of allowing the Em-
ployer an unimpeded choice of representatives for collec-
tive bargaining and settlement of grievances.”
Here, Cutler was similarly performing his duties as
mechanic-in-charge by directing that the Employer’s
employees step aside while the Ironworkers assembled
the gantry. As in Montgomery Elevator, supra, the Re-
spondents’ discipline of Cutler would have a coercive
effect on how he performs his future duties as mechanic-
in-charge, and how he allocates tasks to the workers on
his crew. Therefore, the judge’s finding of a violation in
this instance is consistent with that precedent.
Permitting the Respondents to discipline Cutler in
these circumstances, is contrary to the intent and purpose
of Section 8(b)(1)(B). I would therefore find the viola-
tion.4

4 My colleagues rely on the Supreme Court’s decision in Florida
Power & Light Co. v. Electrical Workers Local 641, 417 U.S. 790
(1974). While the Court there conceded that Sec. 8(b)(1)(B) should
provide some leeway for unions to discipline their members, the Court
also acknowledged that Sec. 8(b)(1)(B) should not interfere with super-
visor-members’ ability to carry out their duties as representatives of
their employers. Id. at 806. In addition, I find that Florida Power &
Light is factually distinguishable because the supervisor-members there
were disciplined for refusing to cross a picket line, an action that did
not involve contract interpretation or grievance adjustment. By con-
trast, the Respondents here disciplined Cutler for his performance of his
duties as an 8(b)(1)(B) representative of the Employer.
Similarly, Sheet Metal Workers Local 33 (Cabell Sheet Metal &
Roofing), 316 NLRB 504 (1995), is clearly distinguishable on its facts.
In that case, the individual worked with the tools of the trade outside
the jurisdiction of his own local, and he did so under inferior terms and
conditions of employment. He also lied to the union about these mat-
ters. Although he was a supervisor and an 8(b)(1)(B) representative,
the discipline had nothing to do with those roles. The discipline con-
cerned only the misconduct set forth above.
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
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 on your behalf
with your employer
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, fine,
or otherwise discipline our union members because of
actions taken by them as employees in following the di-
rection of their employer to work with a composite crew
in rigging and installing escalators.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL dismiss the internal-union charges filed and
rescind the fines levied against Scott Congrove, refund
any moneys he may have paid on account of the fines
assessed against him, and reimburse him for any costs
incurred by him in defending himself at the internal-
union hearings, plus interest.
WE WILL, within 14 days of the date of the Board’s
Order, remove all records of the internal-union charges,
resulting proceedings, and fines from Scott Congrove’s
files and, WE WILL, within 3 days thereafter, notify Scott
Congrove in writing that these actions have been taken
and that the charges, resulting proceedings, and fines will
not be used against him in any way.
INTERNATIONAL UNION OF ELEVATOR
CONSTRUCTORS
INTERNATIONAL UNION OF ELEVATOR
CONSTRUCTORS, LOCAL 18
Steve L. Hernandez, Esq., for the General Counsel.
Keith R. Bolek, Esq., of Washington, D.C., for the Respondent
International Union.
J. David Sackman, Esq., of Los Angeles, California, for the
Respondent Local Union.
Johan W. E. Maitland, Esq., of Burlington, Vermont, for the
Charging Party.
ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 589
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Los Angeles, California, on
October 31 and November 1, 2005. Otis Elevator Company
(Otis, the Employer, or the Charging Party) filed an original, a
first amended, and a second amended unfair labor practice
charge in Case 21–CB–13923 on April 6, May 13, and June 29,
2005, respectively. Otis also filed an original, a first amended,
and a second amended unfair labor practice charge in Case 21–
CB–13925 on April 6, May 13, and June 29, 2005, respectively.
Based on those charges, as amended, the Regional Director for
Region 21 of the National Labor Relations Board (the Board)
issued a consolidated complaint on July 26, 2005. The com-
plaint alleges that the International Union of Elevator Construc-
tors (the International Union or the Respondent International
Union) and the International Union of Elevator Constructors,
Local 18 (the Local Union or the Respondent Local Union),
and collectively referred to as the Respondents, violated Sec-
tion 8(b)(1)(A) and (B) of the National Labor Relations Act
(the Act). The Respondents filed timely individual answers to
the complaint denying the commission of the alleged unfair
labor practices.
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based upon the record, my consideration
of the briefs filed by counsel for each party, and my observa-
tion of the demeanor of the witnesses, I now make the follow-
ing1
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the Respondents’ answers admit, and
I find that the Employer, a New Jersey corporation, with head-
quarters in Farmington, Connecticut, and a district office in
Pasadena, California, has been engaged in the manufacture,
installation, and maintenance of elevators and escalators
throughout the United States, including the State of California.
Further, I find that during the 12-month period ending May 5,
2005, the Employer, in the course and conduct of its business
operations, purchased and received at its California locations
goods valued in excess of $50,000 directly from points located
outside the State of California.
Accordingly, I conclude that Otis is now, and at all times
material herein has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.

1 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
II. ORGANIZATIONS
The complaint alleges, the Respondents’ answers admit, and
I find that at all times material, the Respondent International
Union and the Respondent Local Union have each been labor
organizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Dispute
The dispute in this matter had its genesis at the Morongo Ca-
sino in Cabazon, California, where the Employer was engaged
in the installation of elevators and escalators. The Employer’s
elevator constructors are represented by the Respondents. Dur-
ing the course of that construction project, the Employer sub-
contracted with another company for the construction of a
“gantry” to raise the escalators into position. However, the
Respondents consider the erection of the gantry and the raising
of the escalators to be work properly performed by those em-
ployees it represents under the terms of the collective-
bargaining agreement with the Employer. After learning that
the work of raising the escalators was actually performed in
part by employees other than the elevator constructors it repre-
sents, the Respondents filed a grievance against the Employer
under the terms of the collective-bargaining agreement, and
filed intraunion disciplinary charges against those of its mem-
bers who allegedly worked in a “composite crew” with the
employees of the subcontractor in raising the escalators.
Pursuant to the disciplinary process, the Respondent Local
Union fined its members Scott Congrove and Scott Cutler.
Following the appeals of Congrove and Cutler to the Respon-
dent International Union, the International Union denied their
appeals and increased the amount of their fines. Neither Con-
grove nor Cutler has further appealed their fines through the
Respondents’ internal disciplinary appeal process. The Em-
ployer settled the grievance filed by the Respondents by the
payment of an amount of money considered to be the equiva-
lent of the amount that would have been earned by the Em-
ployer’s elevator constructors had they assembled the gantry
and raised the escalators without the assistance of the subcon-
tractor’s employees.
It is the position of the General Counsel and the Charging
Party that by fining Congrove, the Respondents have attempted
to prevent him from performing his employment duties as di-
rected by the Employer. The complaint alleges this conduct as
restraining and coercing employees in the exercise of their Sec-
tion 7 rights in violation of Section 8(b)(1)(A) of the Act. The
General Counsel and the Charging Party contend that Cutler,
who held the position of mechanic in charge on the Morongo
project, was a supervisor, collective-bargaining representative,
and grievance adjuster of the Employer, as defined by the Act.
They further contend that the Respondents fined Cutler because
he interpreted the collective-bargaining agreement on behalf of
the Employer in a manner inconsistent with the Respondents’
interpretation of the agreement. It is alleged in the complaint
that this conduct restrained and coerced the Employer in the
selection of its collective-bargaining representative or griev-
ance adjuster in violation of Section 8(b)(1)(B) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD590
The Respondents deny that Cutler was the Employer’s repre-
sentative for the purpose of collective bargaining or adjustment
of grievances, and deny that they have unlawfully restrained or
coerced either the Employer or employees in violation of the
Act. It is the position of the Respondents that the Employer
violated the collective-bargaining agreement when it subcon-
tracted the work of assembling the gantry and raising the esca-
lators. Further, the Respondents argue that Cutler and Con-
grove, who were members of the Local Union and the Interna-
tional Union, had aided the Employer in its breach of the con-
tract by working in a composite crew to assemble the gantry
and raise the escalators. Under the terms of the contract, this
work was allegedly to be performed exclusively by elevator
constructors represented by the Respondents. According to the
Respondents, by their conduct, Cutler and Congrove were in
violation of their oath to the Local and International Union
taken at the time they became members, as well as having
failed to abide by the terms of the collective-bargaining agree-
ment. It is the position of the Respondents that their combined
action in disciplining Cutler and Congrove was proper and
lawful and specifically in conformity with the proviso found in
Section 8(b)(1)(A) of the Act, which reads “[t]hat this para-
graph shall not impair the right of a labor organization to pre-
scribe its own rules with respect to the acquisition or retention
of membership therein.”
At the commencement of the trial in this matter, each of the
Respondents filed a series of written motions seeking a dis-
missal of the unfair labor practice charges, or, in the alternative,
a deferral of those charges. The Respondent International Un-
ion filed four such motions captioned as follows: Motion (1)
To Dismiss for Failure to State a Claim; (2) To Dismiss for Bar
of the Statute of Limitations; (3) For Deferral to Pending Inter-
nal Union Discipline Proceedings; and (4) For Postarbitration
Deferral to Grievance Resolution. (R. Exh. 1.) The Respon-
dent Local Union also filed four similar motions essentially
entitled as follows: Motion (1) To Dismiss for Failure to State
a Claim of an Unfair Labor Practice Under Section of
8(b)(1)(A) of the Act; (2) To Dismiss for Failure to State a
Claim of an Unfair Labor Practice Under Section 8(b)(1)(B) of
the Act; (3) For Deferral to Pending Internal Union Discipline
Proceedings; and (4) For Postarbitration Deferral to Grievance
Resolution. (R. Exh. 2.)
Counsel for the General Counsel and counsel for the Charg-
ing Party responded orally to the Respondents’ motions, oppos-
ing each and every one. Upon reflection, I reserved ruling on
the Respondents’ motions until such time as I issue my decision
in this case. The General Counsel and the Charging Party were
advised to address the Respondents’ motions in their respective
posthearing briefs, with the Respondents’ given leave to sup-
plement their arguments in their posthearing briefs. Accord-
ingly, later in this decision I will rule on the Respondents’ mo-
tions.
B. The Facts
For the most part, the underlying facts in this case are not in
dispute. There was little conflict in the testimony of the various
witnesses. Further, at the commencement of the hearing, the
parties entered into a lengthy written “Stipulation of Facts,”
which stipulation2 was admitted into evidence as a joint exhibit
(Jt. Exh. 32) along with a series of attachments, also admitted
as joint exhibits (Jt. Exhs. 1–31).
As reflected in the stipulation, since at least July 9, 2002, the
Respondent International Union, for and on behalf of its local
unions, including the Respondent Local Union, has been recog-
nized by the Employer as the exclusive collective-bargaining
representative of its elevator constructors. This recognition has
been embodied in a collective-bargaining agreement, which by
its terms is effective from July 9, 2002, through July 8, 2007.
(Jt. Exh. 1.) Throughout the hearing, the parties referred to this
contract as the “standard agreement.”3
The Employer is a nationwide company engaged in the
manufacture, installation, repair, modernization, maintenance,
and servicing of elevators and escalators throughout the United
States. From about November 2003 through October 2004,
Otis installed 18 elevators and 2 escalators at the Morongo
Casino Hotel, located in Cabazon, California (the project).
Jeffrey Gibas is employed by Otis as a construction and
modernization superintendent. At the time of the events in
question, he was the person responsible for jobsite management
of all the Employer’s projects in the Los Angeles basin, ap-
proximately 20 to 30, including the Morongo project. Gibas
testified that the person who ran the Morongo project on a day-
to-day basis was Scott Cutler, the mechanic in charge. Gibas
was Cutler’s immediate supervisor.
According to Gibas’ testimony, during the construction on
the project, he was informed by Cutler that the project general
contractor, Perini Construction, had indicated that the escalator
hoisting could not be accomplished by using the steel from the
floor above. Frequently on a construction project, an escalator
is hoisted into place by using the building floor steel from the
floor above to hold the weight as the escalator is raised. How-
ever, in this instance, Perini informed Cutler that the building
floor steel would not hold the weight of the two escalators that
Otis needed to raise. Gibas and Cutler discussed the problem,
and Gibas contacted the Employer’s “tool shop” to determine
whether it had a “gantry” capable of “hoisting and rigging” a
10-ton weight. Gibas estimated the two escalators to weigh
approximately 16,000 to 17,000 pounds each.
A gantry is a bridge like framework, comprised of two steel
legs holding up a horizontal beam. Rigging is attached to the
escalator and to the beam, and the escalator is then hoisted into
position, with its weight temporarily held in place by the gan-
try. The actual hoisting is accomplished by means of a “chain
fall,” which in this case Gibas testified was “a hand driven pull
chain.”
Gibas testified that the Employer’s tool shop did not have a
gantry that could support the weight of the escalators that were
going into the Morongo project. Apparently smaller gantries
were available, but none capable of handling the weight re-

2 Due to inadvertence, the official transcript of this proceeding does
not reflect the admission into evidence of the “Stipulation of Facts” as a
separate numbered exhibit, specifically as Jt. Exh. 32.
3 The standard agreement specifies that the bargaining unit recog-
nized by the Employer includes all “Elevator Constructor Mechanics,
Elevator Constructor Helpers, and Elevator Constructor Apprentices.”
(Jt. Exh. 1.)
ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 591
quired. Upon further inquiry, Gibas was directed to a hoisting
and rigging company, Halbert Brothers. He contacted this
company, determined that they had the necessary equipment,
and ultimately subcontracted with them to place a gantry on the
project. He testified, “So I hired them to bring it down. They
stipulated that we pull it off the truck, get it into the building,
and fork it up to the second floor. Then they would build the
gantry and we’d be able to use the gantry.” When asked on
direct examination why the Otis employees did not build the
gantry themselves, Gibas responded, “Well safety—that’s not
our equipment. We didn’t want the responsibility or liability to
that.”
It is undisputed that the gantry arrived on the project on Feb-
ruary 5, 2004.4 The Halbert Brothers’ employees who accom-
panied the gantry were represented by the Ironworkers Union.
It was the testimony of Scott Cutler that when the gantry ar-
rived, the elevator constructors employed by Otis “took the
forklift and we took the materials off the truck and brought it
into the building, raised it up to the second level, which is the
mezzanine level, put it down, and then they [the Halbert Broth-
ers’ employees] took it from there and assembled the gantry.”
Cutler repeatedly made it clear in his testimony, which was
unchallenged by any other witness, that it was the elevator con-
structors employed by Otis who unloaded the gantry materials
from the truck, took them up to the second floor, and placed the
materials where the ironworkers could begin to assemble the
gantry.
However, the Halbert Brothers’ employees had provided the
wrong size horizontal beam and chain fall, used to hoist the
escalator into position, and so they had to replace the materials
with a larger beam and chain fall. It appears that the replace-
ment materials were not in place until the following day, Feb-
ruary 6. In any event, Cutler testified that the ironworkers ul-
timately assembled the gantry, which was Halbert Brothers’
equipment. Once the gantry was assembled, the elevator con-
structors rigged it to the first escalator and hoisted the escalator
into position. The process was then repeated for the second
escalator. After both escalators were in position in their respec-
tive “well ways,” the ironworkers disassembled the gantry. The
escalator constructors then moved the gantry materials to the
ground floor and into the truck. It was Cutler’s testimony that
the only role the ironworkers played in the process was to as-
semble and disassemble the gantry. This testimony was unre-
butted, and was supported by the testimony of Gibas, to the
extent that he was on the project site on February 6 when the
second of the two escalators was hoisted into place.
At the time of the events in question, the Employer’s eleva-
tor constructor crew on the Morongo project installing the esca-
lators was comprised of five employees, Scott Cutler, Scott
Congrove, Rob Ranier, Mark Braley, and Steve Bertsch. Scott
Congrove was at the time classified as a “temporary me-
chanic.”5 Congrove’s testimony also supports Cutler’s asser-

4 All dates hereafter are 2004, unless otherwise indicated.
5 According to Congrove, a temporary mechanic is an elevator con-
structor helper who has a “permit” from the Local Union to temporarily
work as an elevator constructor mechanic on a specific jobsite. The
permit must be renewed monthly. (Also see Jt. Exh. 1, art. X, par. 4.)
tion that only the elevator constructors employed by Otis were
involved in rigging the escalators, pulling the chain, and hoist-
ing the escalators into place. The ironworkers employed by
Halbert Brothers did not participate in this effort. However, as
the Otis employees were hoisting the first escalator into place,
the chain pull got tangled. In order to free the chain, an iron-
worker employed by Halbert Brothers walked out on the top of
the gantry and banged on the chain with a hammer, causing it to
become untangled. While this task was performed by an iron-
worker, Cutler justified the effort because the chain pull was
Halbert Brothers’ equipment, part of the gantry materials.
Cutler’s testimony emphasized that while the Ironworkers
were assembling and disassembling the gantry, the elevator
constructors watched them work and remained “on the clock.”
Thus, the elevator constructors were paid for this time, and, in
fact, they earned overtime on both February 5 and 6.
Cutler defends the decision not to use the elevator construc-
tors to assemble and dissemble the gantry on the basis of safety.
The gantry equipment was owned by Halbert Brothers and its
employees were most familiar with the equipment. It is undis-
puted that elevator constructors employed by Otis do regularly
hoist escalators into place on various projects under the terms
of the collective-bargaining agreement between the parties.
However, both Cutler and Gibas testified that typically these
involve loads much lighter than those being hoisted on the Mo-
rongo project. The Employer’s witnesses testified that its ele-
vator constructors had no experience with the assembly of a
gantry large enough to lift such excessive weight. The entire
operation was unusual, and necessitated because the general
contractor would not permit the Employer to hoist using the
building steel. The Employer argues that in such a circum-
stance, the only practical solution was to use a subcontractor
experienced in hoisting very heavy loads utilizing a large gan-
try.
John Holzer is a business agent employed by the Respondent
Local Union. Several days after the escalators were hoisted
into place at the Morongo project, Holzer came out to the pro-
ject on one of his periodic inspections. He testified that this
was his third trip to the jobsite, and one of the reasons he made
the trip was because he was of the impression that the escala-
tors had been installed. Holzer testified at length about prob-
lems the Respondents have had with Otis and other contractors
signatory to the standard agreement regarding the use of prefab-
ricated sections on those escalators installed by members of the
bargaining unit represented by the Respondents.
When he arrived at the project, Holzer went to the “well
ways,” saw that the two escalators had been hoisted into posi-
tion, and noticed that the installation had been completed using
certain prefabricated sections. Holzer believed these to consti-
tute violations of the standard agreement and he sought out
Cutler to complain. In the course of explaining to Cutler about
the prefabrication violations, Cutler mentioned to Holzer that it
had been necessary to use a subcontractor to assemble a gantry
in order to hoist the escalators. Further, Holzer testified that
Cutler told him that “everybody hoisted on it . . . everybody
took a pull on the chain.” Allegedly, Holzer asked Cutler spe-
cifically whether that included the ironworkers, and Cutler
answered in the affirmative. According to Holzer, he informed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD592
Cutler that allowing the ironworkers to perform elevator con-
structors’ work in a “composite crew” with the Otis employees
was a violation of the contract. He told Cutler that, “When it
comes down to rigging, it’s our work and we don’t give our
work away.”
Cutler testified that Holzer spoke with him about the alleged
contract violations for using prefabricated sections on the esca-
lators and how the violations could be remedied by removing
the prefabricated sections, and then reassembling them. Ac-
cording to Cutler, nothing else was discussed with Holzer. In
any event, as noted above, those employees present on the pro-
ject at the time the escalators were hoisted and who testified,
namely Cutler, Congrove, and Gibas, all testified that the iron-
workers did not perform any rigging or hoisting of the escala-
tors.
When he returned to his office, Holzer called Jeff Gibas.
Holzer testified that he informed Gibas that the contract had
been violated on the Morongo project by the Employer’s use of
prefabricated sections on the escalators.6 Also, he told Gibas
that Otis violated the contract by the use of “composite crews”
to perform the work of rigging and hoisting the escalators,
which was work performed under the standard agreement by
elevator constructors. Holzer informed Gibas that he intended
to pursue the matter, and requested that Gibas send him “time
tickets” for the project so that he could determine how much
work was lost by the Otis crew. Gibas testified that Holzer
called him complaining about the use of a composite crew on
the Morongo project, specifically the use of ironworkers to
perform the work of elevator constructors. According to Gibas,
he told Holzer that the work provided for under the terms of the
contract had been performed by elevator constructors, and not
by any other employees. The two men agreed to set up a meet-
ing to discuss this matter further.
Gibas and Holzer met approximately 1 week later to discuss
this matter. According to Gibas, Holzer told him that he had
been to the Morongo project and had spoken with Scott Cutler.
Holzer said that Cutler told him that the ironworkers had rigged
and hoisted the escalators. Gibas testified that he informed
Hozler that Holzer was mistaken. Gibas told Hozler that he had
been on the project the day the escalators were hoisted into
position, and he had not seen the ironworkers doing any such
work. Gibas informed Holzer that all the ironworkers had done
was to build the gantry, which was then used by the elevator
constructors. However, the two men continued to disagree.
Gibas provided Holzer with the time tickets that Holzer had
previously requested. The meeting apparently ended with Hol-
zer telling Gibas that the Local Union was going to file a griev-
ance against the Employer over the incident.
A grievance was ultimately filed by Holzer. There is some
confusion as to when the grievance was actually filed, with two
somewhat different grievance forms being admitted into evi-
dence. One form shows the grievance as having been filed on
February 20, 2004 (Jt. Exh. 29), and the other form shows as

6 Holzer testified that one reason why the escalators on the Morongo
project were so heavy and difficult to hoist was because they contained
extensive prefabricated sections, which materials would normally be
installed only after the escalators were raised into position.
date of filing March 22, 2004 (CP Exh. 1). Since no party has
taken the position that the grievance was filed untimely, I fail to
see the significance of the exact filing date.7 In any event, as
the grievance form with the filing date of February 20 is the
more complete, containing the signed resolution of the griev-
ance, I will assume it to be the more accurate document and
accept the filing date as reflected on that document.
The grievance alleges a violation of the collective-bargaining
agreement, specifically that the Employer’s use of a “rigging
outfit to setup all rigging and hoist two (2) escalators in the
well ways at the Morongo Casino Hotel” deprived the elevator
constructors of the work they were entitled to perform under
the terms of the contract. The remedy sought by the Respon-
dent Local Union was the payment into the Local Union’s “Re-
lief Fund” of an amount of money equal to the amount of
wages allegedly lost by the elevator constructors not perform-
ing the work of rigging and hoisting the escalators.8
Jeffrey Ricapito is the Employer’s senior labor relations
manager. He testified that after the Employer received a copy
of the Local Union’s written grievance, he arranged a meeting
to try and resolve the matter. According to Ricapito, he met at
the Local Union’s office with Holzer, Larry Sakamoto, a re-
gional director of the International Union, and Ernie Brown, a
vice president of the International Union and a member of its
executive board. However, the parties continued to disagree
and there was no resolution of the grievance at this meeting.
Ricapito testified that the Employer ultimately decided to
“resolve” the grievance, even though it did not believe that any
violation of the contract had occurred. According to Ricapito,
the Employer does not perform much escalator work, and the
issue in dispute was not worth the effort to arbitrate. It appears
from the grievance form that the resolution of the dispute con-
sisted of the Employer agreeing to pay the moneys the Local
Union contended were lost to the elevator constructors when
ironworkers allegedly performed the rigging and hoisting of the
two escalators at the Morongo project. The grievance form
indicates that the matter was resolved on March 29, 2005, by
Elizabeth Ceriello, who is the Employer’s labor relations man-
ager, and Lawrence Sakamoto. (Jt. Exh. 29.)
It was Ricapito’s contention that the Employer did not intend
for the resolution of this dispute to have any precedential value.
He testified that had the parties intention been to do so, that the
resolution would not have merely been set forth on the griev-
ance form, but, rather, on a separate settlement agreement. On
the other hand, Sakamoto, who signed off on the resolution on
behalf of the Respondents, testified that it was not unusual for
Otis to resolve a dispute with a notation on the grievance form
itself, without a separate settlement document, and the resolu-
tion to still have precedential value. According to Sakamoto,
where the Employer did not intend for this to be so, the Em-
ployer normally inserted either “nonadmission language” or

7 The Charging Party contends that it did not actually see the written
grievance until June 24, 2004, when Jeff Gibas received a copy of the
grievance bearing the filing date of March 22, 2004, sent from the
Local Union by certified mail. (CP Exh. 1.)
8 Of course, as testified by Scott Cutler, the elevator constructors lost
no wages on either February 5 or 6, as they remained “on the clock” as
the ironworkers assembled and later disassembled the gantry.
ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 593
“nonprecedent language” into a separate settlement document
or onto the grievance form itself. He noted that such was not
done in this case. Sakamoto and Ceriello had apparently not
met personally to resolve this matter, but had conferred and
come to their resolution over the telephone.
John Holzer filed intraunion charges against each of the five
elevator constructors employed by Otis at the Morongo project
on February 5 and 6, who comprised the crew installing the
escalators. At the time of the events in question, each man was
a member of the Respondent Local Union.9 The charges
against Cutler and Congrove are each dated March 5, and allege
two “punishable offenses” under article 18, section 1, of the
Respondent International’s constitution and bylaws. Specifi-
cally enumerated are parts (4) and (6) of the section, which
relate respectively to a failure or refusal to abide by the provi-
sions of the standard agreement, or the provisions of any local
union agreement; and a failure or refusal to abide by an oath
taken at the time an individual becomes a member of the Inter-
national Union or a local union. The “offense” listed on the
respective charges is that Cutler and Congrove worked with a
“composite crew” of ironworkers and elevator constructors in
rigging and installing two escalators at the Morongo jobsite. It
appears that this is alleged to be a violation of the standard
agreement, specifically article IV, paragraphs 1 and 2 (p. 5),
which deal with work jurisdiction. (Jt. Exhs. 2, 15.)
On about April 10, the Respondent Local Union held a hear-
ing on the intraunion charges filed against Cutler and Con-
grove. Jeff Gibas and Sam Goe, another Otis manager, were
present at the local union hall with the intention of speaking on
behalf of Cutler and Congrove at their hearings. However,
John Holzer objected to the presence of Gibas and Goe, as they
were not union members, and the Local Union executive board
requested that they leave. Following the departure of Gibas and
Goe, hearings were held for Cutler and Congrove, respectively.
Holzer questioned each man about the events that occurred at
the Morongo jobsite as it involved the work performed by the
ironworkers on February 5 and 6. Recordings were apparently
made of the hearings, which were then transcribed. The tran-
scripts were admitted into evidence as joint exhibits, although
the parties specifically declined to stipulate as to the accuracy
of the transcripts. (Jt. Exhs. 4, 17.) In any event, Cutler testi-
fied at the unfair labor practice proceeding that the transcript of
his union hearing appeared generally accurate.
The executive board of the Respondent Local Union found
Cutler and Congrove “guilty” of the charges brought against
them.10 Cutler was fined $2000 per offense for a total of
$4000, with $1000 due immediately and $3000 to be held in
abeyance for a period of 5 years and due and payable immedi-
ately upon conviction of any further offense against the Re-

9 As the unfair labor practices alleged in the complaint name only
Cutler and Congrove, no effort will be made to detail the chronology of
those intraunion charges brought against the other three members of the
crew. It is sufficient to note that the other three crew members were
found guilty of the charges, fined by the Local Union, and did not
thereafter appeal those fines.
10 Cutler and Congrove were each found guilty on “both charges”
brought against them by Holzer. The specific charges brought by Hol-
zer are set forth in detail above. (Jt. Exhs. 5, 18.)
spondents. Congrove was fined $600 per offense for a total of
$1200, with all but $200 to be held in abeyance for a period to
2 years and due and payable immediately upon conviction of
any further offense against the Respondents. (Jt. Exhs. 5, 18.)
Thereafter, the Respondent Local Union directed Cutler and
Congrove to be present at a membership meeting of the Local
Union where they, and the assembled membership, would be
advised of the decision of the executive board. A meeting of
the membership was subsequently held on May 12, at which
time the decisions on the charges against Cutler and Congrove
were read to the membership. (Jt. Exhs. 6, 19, 30.) It was the
unrebutted testimony of John Holzer that it is the regular pro-
cedure of the Local Union, as provided for in its constitution
and bylaws, to report the executive board’s decision regarding
the disciplining of union members at the next scheduled mem-
bership meeting. (Jt. Exh. 28, pp. 15–16.) This apparently was
the practice followed with the penalties issued to Cutler and
Congrove.
On May 13, Cutler and Congrove each received a letter from
a representative of the Local Union executive board informing
them of the decision on the charges in their individual cases and
advising each of them of their right to appeal the action of the
Local Union to the executive board of the International Union.
(Jt. Exhs. 7, 20.) By letters dated June 4, Cutler and Congrove
individually filed appeals with the International Union chal-
lenging the fines issued to them by the Local Union executive
board. (Jt. Exhs. 8, 21.) Following the International Union’s
receipt of Cutler’s and Congrove’s appeals, it directed the Lo-
cal Union to furnish certain information concerning the under-
lying issues in dispute, the procedural history of the charges,
the decision by the local executive board, and a justification of
that decision. The Local Union responded to the information
request by letters dated July 21, and submitted certain docu-
ments to the International Union. (Jt. Exhs. 10, 11, 23, 24.) By
separate letters dated August 16, the International Union in-
formed Cutler and Congrove that their individual appeals
would be heard by the executive board of the International
Union on November 8, in Waikoloa, Hawaii. (Jt. Exhs. 12, 25.)
In individual letters dated January 10, 2005, the International
Union informed the Local Union that the respective appeals by
Cutler and Congrove had been denied by the International Un-
ion executive board.11 Further, the letter referring to Cutler
indicated that the penalty against him had been modified by
raising the fine to be paid immediately from $1000 to $2000,
with the remaining $2000 to be held in abeyance for 5 years,
provided that no additional violations occurred. The letter re-
ferring to Congrove indicated that the penalty against him had
also been modified by raising the amount of the fine from $600
per offense to $2000 per offense, for a total of $4000, with
$2000 to be paid immediately and $2000 to be held in abeyance
for 5 years, provided that no additional violations occurred.
Copies of these letters from the International Union were also
sent to Cutler and Congrove, respectively. (Jt. Exhs. 13, 14,
26.)

11 The International Union executive board is referred to by the Re-
spondents as the general executive board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD594
John Holzer testified that Cutler and Congrove could have
further appealed their fines to the international convention,
which is held approximately every 5 years. The next conven-
tion is scheduled for September 2006. In order for such an
appeal to be timely, an aggrieved member must assert his ap-
peal right within 60 days of an adverse decision from the Inter-
national Union executive board. Neither Cutler nor Congrove
has filed an appeal to the international convention. Holzer
testified that he knows of only two members who have ever
filed an appeal to this level. Further, he indicated that Con-
grove has now paid his fine, but Cutler has not.
C. The Status of Scott Cutler
The parties strongly disagree as to the employment status of
Scott Cutler at the time the work in question was performed at
the Morongo project. It is the position of the General Counsel
and the Employer that Cutler functioned, at least in part, as
either a representative of the Employer for collective-bar-
gaining purposes, and/or as its grievance adjuster. The Re-
spondents dispute any such authority on the part of Cutler.
This issue is critical in determining whether the Respondents’
conduct in disciplining Cutler constituted a violation of Section
8(b)(1)(B) of the Act. Only if Cutler functioned in this capacity
could his fine by the Respondents be construed to unlawfully
restrain or coerce the Employer.
On the Morongo project, the Employer classified Cutler as
the mechanic in charge. Cutler testified that in early February
2004, at the time the escalators were installed, he was responsi-
ble for 7 to 10 crews of elevator constructors, with a total com-
position of 20 to 24 employees. According to Cutler, in his
capacity as mechanic in charge, he assigned work to the other
elevator constructors, authorized the performance of overtime
work, as long as it was not “too much,” and was “in charge of
the payroll” on the project. The authorization of overtime for a
week or two “would be no problem.” However, if more over-
time was needed, he would have to get authorization from his
superior. Regarding payroll, Cutler carried a journal with him
in which he recorded the hours worked by the men in the vari-
ous crews. Later, if there was a problem, dispute, or grievance
concerning the hours worked by a member of one of his crews,
Cutler was authorized to resolve it, adjusting the payroll re-
cords if necessary. In addition to payroll for the Employer’s
personnel, Cutler could authorize “cartage” reimbursement for
employees who expended personal money on company-related
business.12
It appears that Cutler assigned work on a regular basis to the
elevator mechanics, helpers, and temporary mechanics em-
ployed by Otis on the Morongo project. While the collective-
bargaining agreement provides that a helper normally work
under the direction of a mechanic,13 Cutler was directly respon-
sible for deciding what particular job tasks were performed by
which specific mechanics and helpers. Further, there are ap-
parently some jobs that helpers can perform without a mechanic

12 Cartage reimbursement as used by the Employer, would typically
involve an employee driving a personal vehicle on company business,
and subsequently being compensated for the expense.
13 The term “mechanic” is understood in the trade to be a journey-
man elevator constructor.
in attendance, and Cutler was responsible for making such as-
signments as well.
According to Cutler, the standard agreement between the
parties is fairly specific concerning the type of work that is
within the jurisdiction of the Respondents, and must be per-
formed by elevator constructors. However, he indicated there
is some work that may not be as clearly defined in the contract.
For example, he mentioned “prefabricated” sections of eleva-
tors or escalators, where a decision would need to be made
whether the contract required that the section be disassembled
and then reassembled by the elevator constructors. Cutler testi-
fied that as the mechanic in charge, he would make that deter-
mination himself, unless the matter involved was “something
big,” in which event he would need to consult with Gibas.
Cutler did not have the authority to formally discipline an
employee. However, it appears that he could informally, orally
reprimand an employee for poor work performance or other
inappropriate conduct. Further, he testified that he could have
an employee who was not performing properly removed from
the jobsite and relocated. He would do so by requesting of his
superior that the offending employee be removed. Similarly, if
he needed additional employees to complete the project or there
were too many employees on the job, he could request a per-
sonnel adjustment from his superior. Cutler believed that such
a request by him would likely be accepted from upper man-
agement. At the time of the Morongo project, Cutler’s imme-
diate supervisor was Jeffrey Gibas, the Employer’s construction
and modernization superintendent.
Cutler currently is a member of the Local Union. He has
been a member since 1981, except for a period in 2003, when
he became a superintendent. At that time he voluntarily with-
drew his union card. However, later that same year, 2003, his
employment status changed to that of a mechanic in charge, and
he had his union card reinstated. He has remained a union
member ever since, including in his present position of assistant
superintendent.
The parties stipulated that during the period Cutler served as
a superintendent, prior to February 2004, he was paid on a sal-
ary basis. However, when he worked on the Morongo project
as a mechanic in charge, he was paid on an hourly basis. Me-
chanics, including mechanics in charge, helpers, and appren-
tices are all paid on an hourly basis. Their respective wage
rates are set forth in the standard agreement. (Jt. Exh. 1.)
On cross-examination, Cutler acknowledged that as the me-
chanic in charge on the Morongo project, he was not on the
Employer’s collective-bargaining committee, had no formal
role in the grievance and arbitration procedure under the terms
of the standard agreement, and had no authority to settle griev-
ances filed under that agreement. Still, there appears to be no
doubt that Cutler could resolve informal “disputes,” such as a
complaint by a member of one of his crews that he had not been
paid for all the time worked. As noted above, Cutler had the
authority to resolve such an informal dispute directly with the
employee, without the involvement of his superiors.
Jeffrey Gibas testified that as the mechanic in charge on the
Morongo project, Cutler was responsible for the day-to-day
operation of the project, including its manpower needs. Ac-
cording to Gibas, Cutler was authorized to assign work to the
ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 595
employees, to decide on the priority of the work, to determine
whether overtime was needed, and to assign it as necessary.
Gibas spoke with Cutler an average of twice a week, and only
came out to the jobsite about once a month. Gibas considered
Cutler his “eyes on the jobsite.” Just as Cutler had testified,
Gibas indicated that payroll was a major responsibility, with
Cutler having the authority to resolve disputes over hours of
work directly with the involved employees.
During cross-examination, Gibas testified that the Respon-
dents come to him to resolve formal grievances at the first step
in the contract grievance and arbitration procedure. He ac-
knowledged that Cutler had no involvement in the formal
grievance procedure. While he indicated that Cutler could
respond to “oral grievances,” it appears that what he was refer-
ring to were informal, oral disputes, such as payroll discrepan-
cies. In this respect, his testimony corroborated that of Cutler.
Further, in support of Cutler, Gibas testified that Cutler was
authorized to give employees verbal warnings for inappropriate
conduct, but could not issue formal “performance letters” under
the terms of the standard agreement. However, according to
Gibas, he would accept a recommendation from Cutler that an
employee be disciplined. Also, Gibas testified that Cutler could
recommend that additional employees be hired for the project,
or if there were an excess, that employees be removed from the
job. He clearly left the impression that such a recommendation
from Cutler was likely to be adopted.
John Holzer testified that the Employer’s representative in
the Los Angeles area with whom he would first raise griev-
ances under the terms of the standard agreement was Jeffrey
Gibas. He contends that this is what he did in February 2004,
regarding the issue of ironworkers allegedly performing the
work of elevator constructors at the Morongo project. While he
claims that the oral step in the formal grievance procedure oc-
curred when he first raised this issue with Gibas, I found his
testimony in this regard very confusing and somewhat contra-
dictory. At first he testified that the oral step occurred on Feb-
ruary 20, apparently corresponding to the grievance form nota-
tion on Joint Exhibit 29, but then he said that the oral step oc-
curred on March 22, apparently corresponding to the grievance
form notation on Charging Party’s Exhibit 1. In any event, it
was clearly his testimony that the formal grievance procedure
was initiated by the Local Union at the oral step with the griev-
ance being brought to the attention of Gibas, whenever that
occurred.
In this regard, there is really very little difference in the tes-
timony of Gibas and Holzer. Both men agree that the formal
grievance procedure under the terms of the standard agreement
is initiated at the oral step with a grievance being brought to
Gibas’ attention by a representative of the Respondents.14

14 The standard agreement, art. XV, par. 2, indicates that the first
step in the grievance/arbitration procedure is the “Oral Step.” That
provision reads in part, “Any employee, local union, or the Employer
with a grievance . . . shall discuss the grievance with the designated
Employer Representative. . . . The Employer shall designate to each
local union the Employer’s Representative(s) for the purpose of re-
sponding to grievances at this step. If the grievance is initiated by an
employee, the Local Business Representative shall be present during
However, this does not diminish the position of the General
Counsel and the Employer that as the mechanic in charge on
the Morongo project, Cutler had the authority to directly re-
solve certain informal disputes that arose with employees on
the jobsite. The evidence in support of this contention remains
unrebutted by the Respondents.
Section 2(11) of the Act defines a supervisor as “any indi-
vidual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.” It is well estab-
lished that possession of even one of these enumerated powers
is sufficient to establish supervisory status. NLRB v. Edward
G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir. 1948), cert. de-
nied 355 U.S. 908 (1949).
In this regard, it is clear that Cutler was a supervisor as de-
fined in the Act when he served as the mechanic in charge on
the Morongo project. The evidence is unrebutted that he exer-
cised the authority to assign work to employees, to direct them
in that work, to award overtime, and to adjust employee griev-
ances. Such grievances included disputes as to wages earned
and whether certain work was covered by the collective-
bargaining agreement. Further, it is undisputed that Cutler also
had the authority to effectively recommend to his superior,
Jeffrey Gibas, the discipline of employees, as well as their
transfer to a different project.
However, Cutler’s supervisory status does not automatically
mean that he functioned as a representative of Otis for the pur-
poses of collective bargaining or the adjustment of grievances
under Section 8(b)(1)(B) of the Act. This issue will be ad-
dressed later in this decision.
D. The Fine Issued to Scott Congrove
The parties strongly disagree as to whether the discipline of
Congrove constituted a violation of Section 8(b)(1)(A) of the
Act. Preliminarily, it should be noted that it is the position of
the Respondents that the fines issued to the elevator construc-
tors who worked to raise the escalators on the Morongo project
were specifically the result of the failure of those individuals to
call the union hall and question the use of ironworkers on the
project. Counsels for both Respondents argue throughout their
respective posthearing briefs that the fines issued to Congrove,
Cutler, and the other constructors were for not contacting the
Local Union when the constructors learned that a subcontractor
crew of ironworkers was going to construct a gantry on the
project. The Respondents contend that the constructors were
not fined for actually working with the ironworkers. Local
Union Business Agent Holzer testified at some length that un-
ion members are repeatedly instructed to call the union hall any
time they have any questions about whether a signatory con-
tractor is violating the standard agreement. They are to be the
“eyes and ears” of the Local Union and immediately report any

the discussion.” The next step in the process is referred to as the “Writ-
ten Step One.” (Jt. Exh. 1.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD596
potential violation of the contract. The Respondents vigorously
argue that it was the failure of Congrove and Cutler to contact
the Local Union with a complaint about ironworkers allegedly
performing constructors work under the terms of the contract
which was the reason for their fines. They deny that the fines
were issued because the constructors followed the Employer’s
direction and worked with ironworkers.
The problem with the Respondents’ argument is that it is not
supported by the facts. As was set forth above, the fines issued
by the Respondents generated a considerable amount of paper-
work. Nowhere in those documents is there any mention of a
failure by the constructors to “call the union hall.” But, to the
contrary, there are references to the constructors working with
ironworkers. The charge that Holzer originally filed against
Congrove specifically states that the “offense” he committed
was “work[ing] with a composite crew of ironworkers and ele-
vator const[ructors] in rigging and install[ing] of 2 escalators at
Morongo Casino.” (Jt. Exh. 2.) Further, at the time of the
hearing before the Local Union executive board, Holzer’s
charges against Congrove were summarized in part as,
“[w]orking with a composite crew of ironworkers, and allowing
another trade to do our work.” (Jt. Exh. 4 (trial summary), p.
5.) Finally, an excerpt from the minutes of the Respondent
International’s executive board meeting lists the charges against
Congrove as being “one of the crew working hoisting escala-
tors, where ironworkers installed the gantry hoist.” (Jt. Exh. 14
(minutes of general executive board), p. 2.) Further, I credit the
testimony of Scott Cutler that when Holzer first confronted him
at the Morongo project about the hoisting of the escalators,
Holzer mentioned his concerns about a “composite crew,” and
actually explained to Cutler what this term meant. Holzer does
not dispute the substance of this conversation. Accordingly, I
conclude that Congrove and Cutler were charged with and
found guilty of working with ironworkers in raising the escala-
tors, which work was allegedly exclusively constructors’ work
under the terms of the standard agreement. I specifically reject
the Respondents’ contention that the constructors were disci-
plined for not calling the union hall.
The complaint alleges that the Respondents’ discipline of
Congrove constituted a violation of Section 8(b)(1)(A) of the
Act.15 According to the statute, the unlawful restraint or coer-
cion by the Unions must involve Congrove’s exercise of his
Section 7 rights. The Respondents’ essentially contend that
Congrove’s conduct did not involve Section 7 activity. Con-
grove’s conduct involved following his supervisor’s direction
in standing aside while the subcontractor’s ironworker employ-
ees assembled and later disassembled the gantry. At first
glance, it would seem that no Section 7 activity is involved.

15 It should be noted, that in his posthearing brief, counsel for the
General Counsel argues for the very first time that the fines issued to
Scott Cutler also constitute a violation of Sec. 8(b)(1)(A). There is no
such allegation in the complaint and the issue was neither raised nor
litigated at the hearing. According, I will not address this issue in de-
tail, as I do not believe the matter is properly before me. However, I
would simply add that as I have concluded that Cutler was a supervisor
as defined in the Act, any discipline issued against him by the Respon-
dent Unions could not constitute restraint or coercion of an “employee”
as specified in Sec. 8(b)(1)(A).
However, the Board and the courts have over time concluded
that an employee performing his work duties on behalf of his
employer is, in fact, engaged in Section 7 activity as that term
is applied in Section 8(b)(1)(A).
In Carpenters District Council of San Diego (Hopeman
Bros.), 272 NLRB 584 (1984), the Board adopted the findings
of its administrative law judge that a nonsupervisory leadman,
who reported a fellow employee for a violation of the em-
ployer’s code of conduct, and who was charged by his union
with defaming a union brother and fined, was engaged in Sec-
tion 7 activity. The judge acknowledged that the leadman was
not engaged in Section 7 activity under a very strict reading of
the statute, but concluded that “both the Board and the courts
have given a broader scope to Section 8(b)(1)(A).” For that
proposition, the judge cited Communication Workers Local
5795 (Western Electric Co.), 192 NLRB 556 (1971), and
Chemical Workers Local 604 (Essex International), 233 NLRB
1239 (1977) (Board adopted administrative law judge’s deci-
sion finding union’s fine and suspension of employee/member
for performing his work duties directly affects his employment
status and violates Section 8(b)(1)(A).)
As noted, in the Carpenters District Council case, the Board
adopted the judge’s decision finding that the union violated the
Act by fining the leadman and by threatening to suspend him
from membership because he performed his job duty and re-
ported a fellow employee for breaching a company rule. Fur-
ther, the judge concluded that the Supreme Court had estab-
lished that under the proviso to Section 8(b)(1)(A) of the Act, a
union’s discipline of a member for engaging in Section 7 activ-
ity would not violate the Act only where the discipline is (1)
geared to a legitimate union interest; (2) impairs no policy
imbedded in the labor laws; and (3) is reasonably enforced
against a union member who is free to leave the union. NLRB
v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967); Scofield v.
NLRB, 394 U.S. 423 (1969).16 However, the judge in the Car-
penters District Council case concluded, with the Board con-
curring, that the union rule in question was not geared to a le-
gitimate union interest, as its application would result in the
employee’s dereliction of duty, and could lead to his discharge,
which would obviously affect his employment relationship.
In a more recent case, the Board continued to find that an
employee’s conduct in following the requirements of his em-
ployment constituted Section 7 activity in the context of Sec-
tion 8(b)(1)(A) of the Act. The Board affirmed an administra-
tive law judge who found that a union’s punishment of a non-
supervisory leadman/union member for complying with his
employer’s instruction to report coworkers’ misconduct consti-
tuted a violation of the Act. The Board specifically stated that
the union’s attempt to discipline the leadman for following his
duty to report work infractions “affected his employment
status.” Teamsters Local 439 (University of the Pacific), 324
NLRB 1096 (1997), enfd. 175 F.3d 1173 (9th Cir. 1999). See
also Communications Workers Local 13000 (Verizon Commu-
nications), 340 NLRB 18 (2003) (union violates Sec.

16 The proviso reads as follows: “That this paragraph shall not impair
the right of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein.”
ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 597
8(b)(1)(A) when it requires employee-members to refuse to
work “mandatory” overtime).
Of particular significance was the judge’s conclusion in the
Teamsters Local 439 case that the leadman fined by the union
was engaged in traditional Section 7 activity when he made his
decision to report a fellow employee for misconduct. The
judge held that this involved the employee’s decision to “re-
frain” from engaging in “concerted activity,” which activity
would have been acting in concert with other employees in
objecting to the employer’s outstanding orders by ignoring
them. As Section 7 of the Act obviously gives employees both
the right to engage in protected concerted activities and “the
right to refrain from any or all such activities,” it is, in my
view, certainly logical that by refusing to join with other em-
ployees who wished to ignore the employer’s outstanding or-
ders, the leadman was refraining from such activities, consis-
tent with Section 7. As noted, the Board affirmed the adminis-
trative law judge’s decision.
There is no doubt that Congrove, who at the time was a tem-
porary mechanic, was merely following the directions of his
supervisor, Scott Cutler, when he “stood down” and observed
the subcontractor’s ironworker employees assemble and later
disassemble the gantry. To have done otherwise would have
constituted insubordination for which he could have been disci-
plined, perhaps even discharged. Apparently, the Respondents
expected him to have protested the assignment of work to the
ironworkers, refusing to participate in any further efforts to
raise the escalators using the gantry belonging to Halbert
Brothers. Despite the arguments of counsels for the Respon-
dents in their posthearing briefs, I view this situation as what is
commonly referred to as a “Hobson’s Choice.”17 Congrove
could either refuse the orders of his supervisor and risk dis-
charge, or ignore the desires of his Local Union and face being
fined or even expelled from the Local and International Union.
Following the precedent established by the Board, I conclude
that Congrove was engaged in Section 7 activity when he de-
cided to follow the direction of his supervisor and raise the
escalators using the gantry assembled and later disassembled by
the ironworkers employed by Halbert Brothers. To have done
otherwise would have potentially subjected him to discipline
affecting his employment status. Further, I believe that in not
refusing to raise the escalators with the subcontractor’s gantry,
Congrove was exercising his Section 7 right to refrain from
engaging in the concerted activity of objecting to the Em-
ployer’s outstanding orders.
I am unpersuaded by the Respondents’ argument that Con-
grove has remained with the Employer, currently as a mechanic
in charge, without any disciplinary action taken against him by
the Employer or threat of any such action. Certainly this does
not alter the fact that the Respondents’ conduct in fining Con-
grove restrained and coerced him in the exercise of his Section
7 rights, as the fine potentially affected his future employment
relationship with Otis. The next time he is faced with such a
“Hobson’s Choice,” Congrove may well side with the Local
Union, endangering his continued employment with Otis.

17 The phrase “Hobson’s Choice” refers to a choice between two un-
desirable options.
Finally, the Respondents argue that the Employer was the
force behind the filing of the appeals of the fines by Congrove
and Cutler, and, of course, the Employer was also the Charging
Party in this proceeding before the Agency. The Respondents
take the position that for that reason the complaint should be
dismissed. They argue that the Employer is trying to achieve
an aim through the unfair labor practice proceeding that it
failed to achieve at the bargaining table, namely a contractual
right to subcontract the assembly and use of gantries in rigging
and hoisting escalators. However, I find these arguments to be
totally without merit. There is absolutely no reason for the
undersigned to interpret the collective-bargaining agreement
and determine whether the Employer’s use of a subcontractor to
perform this work was in breach of the contract or not. Such
matters are not relevant to the issues before me. The Em-
ployer’s “motives” in bringing these charges to the Board, or its
assistance to Congrove and Cutler in appealing their fines, has
no bearing on the question of whether the Act has been violated
by the Unions’ conduct. These are not private rights being
vindicated by this proceeding, but, rather, public policy that is
at stake. It simply does not matter whether Otis stands before
the Agency with “clean hands” or not. What concerns the
Agency is whether Congrove and Cutler had their rights under
the Act violated by the Respondents’ attempt to discipline
them.18
Based on the above, I conclude that in the matter of Scott
Congrove, the Respondents’ conduct in fining19 him constitutes
a violation of Section 8(b)(1)(A) of the Act, as alleged in para-
graphs 7(a), (b), (d), and (e) and 10(a) and (b) of the complaint.
E. The Fine Issued to Scott Cutler
The complaint alleges that Cutler was fined by the Respon-
dent Unions in violation of Section 8(b)(1)(B) of the Act. As
noted earlier, I have concluded that as the mechanic in charge
on the Morongo project, Cutler was a supervisor as defined in
Section 2(11) of the Act. However, in order to find that the
Employer was unlawfully restrained or coerced by the Respon-
dents’ fines issued to Cutler, it must first be determined
whether Cutler was the Employer’s “representative for the pur-
poses of collective bargaining or the adjustment of grievance”
as set forth in Section 8(b)(1)(B).

18 Similarly, the argument of counsel for the Local Union that Otis
allegedly violated Sec. 8(a)(2) of the Act which, therefore, excuses the
Respondents’ conduct is devoid of any merit. So far as I am aware, no
such charge was filed by the Respondents against the Employer, and
there has certainly been no finding by the Board of any such violation.
Further, for the reasons that I expressed above, any unfair labor prac-
tices committed by the Employer would be irrelevant to the issues
before me.
19 In his posthearing brief, counsel for the Employer contends that
the Respondents also unlawfully punished Congrove by extending the
term of his union “probationary period.” The complaint does not allege
any such conduct by the Respondents, and I could find no reference to
an extension of his probationary period in any of the documents in
evidence related to Congrove’s discipline. Further, so far as I can
determine, the issue was not raised nor litigated at the hearing. Accord-
ingly, this allegation is not properly before me, and I make no finding
regarding it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD598
Simply exercising some supervisory authority is not suffi-
cient to find that an individual is a collective-bargaining repre-
sentative or grievance adjuster. The Supreme Court has held
that in order to establish a violation of Section 8(b)(1)(B), it
must be shown that the individual involved had the actual au-
thority to engage in grievance adjustment or collective-bar-
gaining activities on behalf of the Employer. NLRB v. Electri-
cal Workers Local 340, 481 U.S. 573 (1987) (Local 340). Prior
to the Local 340 case, the Board had taken the position that
Section 8(b)(1)(B) should be broadly construed to cover any
2(11) supervisor, because in the future such a supervisor could
become engaged in collective bargaining or grievance adjust-
ment. This theory was referred to as the “reservoir doctrine,”
as it created a pool or reservoir of potential authority to cover
any 2(11) supervisor. In the Local 340 case, the Court made it
clear that Section 8(b)(1)(B) prohibits union discipline of only
those supervisors who actually perform 8(b)(1)(B) duties. Id. at
586.
I believe that the record is clear that Cutler did, in fact, actu-
ally perform 8(b)(1)(B) duties during the period of time that he
was the mechanic in charge on the Morongo project. He was
the only supervisor present on the jobsite on a daily basis, re-
sponsible for up to 24 Otis employees. He was often a griev-
ance adjuster. Frequently, those grievances involved payment
issues, with employees disputing the amount they were paid.
Cutler was required to listen to the complaint, investigate its
validity, review payroll records, and resolve the dispute, in-
forming the involved employee as necessary. These grievances
were oral, and “informal” in the sense that they were not steps
in the grievance and arbitration procedure as set out in the stan-
dard agreement. Nevertheless, they were important to both the
employees, and presumably their Union, and to the Employer.
Further, if such disputes could not be resolved in an informal
way, they might very well become formally filed grievances
under the terms of the contract.
Also, Cutler sometimes handled complaints registered di-
rectly by the Local Union. It is highly significant to recall that
Local Union Business Agent Holzer first brought his concerns
about the gantry assembly to Cutler. It was during this discus-
sion with Cutler that he expressed his complaint about the Otis
constructors allegedly working in a “composite crew” with
ironworkers in violation of the standard agreement. This con-
versation may not have constituted a formal grievance under
the terms of the contract, but the substance of the dispute was
obviously of great concern to the Respondents, and resulted in
the filing of a formal grievance and the issuance of intraunion
fines. The Respondents make much of the fact that under the
terms of the standard agreement, the first step in the grievance
procedure is an oral complaint made not to Cutler, but to his
superior, Superintendent Gibas. Still, that does not detract from
the fact that Cutler was the Employer’s representative on the
jobsite, and the person with whom Holzer decided to first raise
his complaint about the gantry assembly. It is worth consider-
ing that had Cutler and Holzer been able to resolve their dispute
in this first conversation, the matter would have ended at that
point, making unnecessary all the subsequent actions by the
Unions and their ramifications.
As part of the process of adjusting grievances, Cutler was in-
volved on a regular basis in contract interpretation. Both Cutler
and Holzer testified about disputes that frequently arose regard-
ing the use of prefabricated materials. The standard agreement
provides a detailed explanation of what specific work an em-
ployer is permitted to have prefabricated and what work must
be done on a jobsite by the elevator constructors. Nevertheless,
disputes are apparently very common. It was the daily respon-
sibility of Cutler on the Morongo project to determine under the
terms of the contract what work could be prefabricated, and to
resolve any dispute with the Respondents. While Cutler indi-
cated that he would have to consult with Gibas on significant
prefabrication issues, he testified that, as the mechanic in
charge on the site, he was able to directly resolve such matters
with the Local Union when the dispute involved less significant
prefabrication issues. It is undisputed that during the specific
conversation with Holzer where the gantry assembly was dis-
cussed, Holzer also complained to Cutler about prefabrication
work on the escalators allegedly in violation of the contract.
It is significant to note that Cutler was involved in contract
interpretation over the very issue that ultimately led to the deci-
sion to use a subcontractor to assemble the gantry. Both Cutler
and Gibas testified that they discussed the need for a gantry to
raise the escalators, and although Gibas made the ultimate deci-
sion to use an outside subcontractor, he considered Cutler’s
opinion.20
Following the Supreme Court’s holding in Local 340, supra,
various decisions by the Board fully support the position that
Cutler, as the mechanic in charge on the Morongo project, per-
formed 8(b)(1)(B) duties. In Sheet Metal Workers Local 68
(DeMoss Co.), 298 NLRB 1000, 1003 (1990), the Board con-
cluded that adjusting grievances at a low level, before they
become formalized in the grievance arbitration procedure, con-
forms to the grievance adjustment requirements in Section
8(b)(1)(B). According to the Board, one of the purposes of that
section of the Act is to protect the employer’s interest in having
an individual of its own choosing to represent it in dealings
with the union that represents its employees. Id.
Significantly, in a number of cases, the Board has found ele-
vator constructor mechanics in charge, who possess many of
the same duties and responsibilities as Cutler, to be 8(b)(1)(B)
supervisors. In Elevator Constructors Local 1 (National Eleva-
tor Industry), 339 NLRB 977 (2003), the mechanic in charge
was the only employee available daily to resolve employee
disputes and problems, including payroll disputes, job assign-
ments, and overtime assignments. The Board concluded that
the fines issued to this individual violated Section 8(b)(1)(B) as
they would likely have an inhibiting effect on his future con-
duct as a supervisor, company representative, and grievance
adjuster. Similarly, in Elevator Constructors Local 36 (Mont-
gomery Elevator Co.), 305 NLRB 53 (1991), the Board held

20 Of course, the underlying dispute between the Unions and the
Employer involves the issue of whether Otis violated the standard
agreement in using the employees of a subcontractor to construct a
gantry on the project. However, as I have indicated, I believe that the
resolution of that dispute between the parties is irrelevant to the consid-
eration of the unfair labor practice charges before me.
ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 599
that a mechanic in charge was fined by his union because of the
way he interpreted the contract regarding the use of a crane.
According to the Board, the imposition of the fine would poten-
tially have an adverse effect upon his future performance as a
management representative and grievance adjuster. He was the
only supervisor on site to resolve issues of contract interpreta-
tion, such as work assignments and conflicts involving pay, and
interpersonal disputes. In finding a violation of Section
8(b)(1)(B), the Board was not dissuaded by the individuals lack
of participation in the collective-bargaining process or the for-
mal contract grievance procedure.
While the Respondents argue that the authority Cutler had to
resolve wage disputes was merely “ministerial,” the Board has
repeatedly found a mechanic in charge’s ability to deal with
compensation issues to be grievance adjustment, since compen-
sation is a critical term and condition of employment. Elevator
Constructors Local 10 (Thyssen General Elevator Co.), 338
NLRB 701, 702 (2002) (denial of wage claim constitutes griev-
ance adjustment within the meaning of Sec. 8(b)(1)(B)); Eleva-
tor Constructors Local 36, supra at 56 (resolving pay griev-
ances confers 8(b)(1)(B) status).
In his posthearing brief, counsel for the Respondent Interna-
tional Union agues that in order for there to be a violation of
Section 8(b)(1)(B), Cutler must have been directly engaged in
grievance adjustment or contract interpretation during the inci-
dent that led to his being fined by the Respondents. In support
of this proposition, he cites Sheet Metal Workers Local 33 (Ca-
bell Sheet Metal & Roofing), 316 NLRB 504 fn. 1 (1995).
While it appears that this case is correctly cited for the proposi-
tion alleged, other, more recent Board cases, as cited above, do
not seem to have this requirement. In any event, I am of the
view that Cutler was disciplined precisely because he inter-
preted the contract to permit the Employer to have the gantry
constructed by a subcontractor employing employees other than
elevator constructors. Therefore, he was directly engaged in
contract interpretation during the very incident that led to his
being disciplined.
Based on the above, I conclude that the fines imposed on
Scott Cutler by the Respondent Unions potentially had an ad-
verse impact upon his future performance as a management
representative and grievance adjuster. As such, the Unions
restrained and coerced Otis in the selection of its grievance
adjustment representative. Accordingly, I find that the Re-
spondent Unions violated Section 8(b)(1)(B) of the Act, as
alleged in paragraphs 9(a), (b), (d), and (e) and (11)(a) and (b)
of the complaint.
F. The Respondents’ Motions
As I noted above, at the commencement of the hearing in
this case, the Respondents filed a series of motions seeking the
dismissal of the unfair labor practice charges alleged in the
complaint, or, in the alternative, a deferral of these charges to
the contract grievance arbitration procedure and/or to the inter-
nal union appeal process available to union members who have
been disciplined. I reserved ruling on these motions to give the
parties the opportunity to fully address the issues in their post-
hearing briefs. I will now rule on the outstanding motions.
The Respondent International Union seeks a dismissal of the
complaint, as allegedly it fails to state a prima facie case under
either Section 8(b)(1)(A) or (B) of the Act. The Respondent
Local Union seeks a similar dismissal of that portion of the
complaint that alleges a violation of Section 8(b)(1)(A). Coun-
sel for the General Counsel and counsel for the Employer op-
pose said motions. As is reflected above, I have found the Re-
spondents to have violated both Section 8(b)(1)(A) and (B) of
the Act. Concomitant with such a finding, I deny the Respon-
dents’ motions to dismiss for a failure to state a prima facie
case.
The Respondent Local Union seeks a dismissal of the entire
complaint “by reason of the bar of the statute of limitations
under NLRA Section 10(b).” Section 10(b) of the Act states in
part, “[t]hat no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing
of the charge with the Board and service of a copy thereof upon
the person against whom such charge is made.” Counsel for
the Local Union contends that the original charge, which was
filed on April 6, 2005, was untimely as the complaint alleges
the Local Union fined Cutler and Congrove on about May 12,
2004, nearly a year before the charge was filed. May 12 was
the date on which the Local Union executive board’s decision
finding Cutler and Congrove guilty and fining them was an-
nounced to the union membership. It is the position of counsel
for the Local Union that following that event, no actions were
taken by the Respondent Local Union which could be deemed
unfair labor practices. Implicit in this argument is the conten-
tion that the Local Union was not responsible for any subse-
quent actions taken by the Respondent International Union
pursuant to Cutler’s and Congrove’s appeals, and that at that
point “the matter was out of their [the Local Union’s] hands.”
Both the General Counsel and the Charging Party oppose this
motion, with the Respondent International Union not address-
ing the issue.
The argument of counsel for the Local Union is contrary to
Board authority. “The Board has traditionally held that ‘a
charge concerning union discipline is not time-barred until 6
months after the imposition of the discipline becomes final,
regardless of when the disciplinary proceeding may have been
instituted.’” Sheet Metal Workers Local 75 (Owl Construc-
tors), 290 NLRB 381, 383 (1988). In that case, the Board con-
cluded that the statute of limitations on an 8(b)(1)(A) unlawful
fines claim did not begin until after the International union
affirmed the imposition of the fines by the local union. Id. at
384. In the matter at hand, the facts are very similar.
Following the issuance of their fines by the Local Union,
Cutler and Congrove appealed those fines to the Respondent
International Union in accordance with the constitution and by-
laws of both Unions. (Jt. Exh. 27, art. XVIII, sec. 11, p. 64,
and Jt. Exh. 28, art. 15, sec. 10, pp. 15–10.) The International
Union denied the appeals, increased the fines, and reported its
decisions to the Local Union by letters dated January 10, 2005,
with respective copies to Cutler and Congrove. (Jt. Exhs. 13,
26.) In my view, it is clear that the Respondents were acting in
concert regarding the discipline issued to Cutler and Congrove.
Their actions were not individual and distinct, as if in a vac-
uum. The fines that were issued by the Local Union were up-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD600
held and increased by the International Union. As such, the last
action which constituted an unfair labor practice was the Re-
spondent International Union’s notification to the Respondent
Local Union, with copies to Cutler and Congrove, of its denial
of the appeals and increase in the fines. Accordingly, the stat-
ute of limitations in Section 10(b) of the Act did not begin to
run until January 10, 2005, with respect to the charges against
both Respondents. Sheet Metal Workers Local 75, supra; Sheet
Metal Workers Local 33 (Cabell Sheet Metal), 316 NLRB 504
fn. 1 (1995); Operating Engineers Local 714 (Contractors
Foundation Drilling Co.), 262 NLRB 1161, 1164 (1982); Elec-
trical Workers Local 716 (Fiske Electric Co.), 203 NLRB 333,
336 (1973); Communications Workers Local 9511 (Pacific
Telephone & Telegraph Co.), 188 NLRB 433, 435 (1971).
As the Respondents continued to commit unfair labor prac-
tices against Cutler and Congrove through January 10, 2005,
the subsequent unfair labor practice charges, as alleged in the
complaint, were all timely filed within the period specified in
Section 10(b) of the Act.21 Accordingly, I deny the Respondent
Local Union’s motion to dismiss the complaint on the basis that
the charges were untimely filed.
Both Respondents move for a deferral of these proceedings
to the internal union discipline procedure, which they allege has
yet to be fully exhausted by Cutler and Congrove. Further, the
Respondents indicate a willingness to waive any time limits for
the filing of an appeal in order to exhaust the internal union
discipline procedure. Counsel for the General Counsel and
counsel for the Charging Party oppose any such deferral.
Following the adverse decision on the appeals by the Interna-
tional Union general executive board, there remains one more
step in the appeal procedure, namely an appeal to the interna-
tional union convention. (Jt. Exh. 27, International Union con-
stitution and bylaws, art. XVIII, secs. 10, 13.) Local Union
Business Agent Holzer testified that the International Union
convention is held approximately every 5 years, with the next
one scheduled for September 2006. Interestingly, he testified
that he knows of only two members who have ever filed ap-
peals of union discipline to the level of the International con-
vention.
Counsel for the Local Union contends, in essence, that it is
inconsistent of the General Counsel to take the position that
Section 10(b) of the Act does not begin to run until the last
action on the appeals by the International Union, while at the
same time refusing to defer these proceedings to the last step in
the internal union discipline appeal process. Counsel cites to
Collyer Insulated Wire, 192 NLRB 837 (1971); and United
Technologies Corp., 268 NLRB 557 (1984), for the proposition
that “the Board will normally defer to pending griev-
ance/arbitration procedures, under collective-bargaining agree-
ments.” While acknowledging that “there is admittedly scant
precedent of deferral in internal union proceedings,” counsel

21 The last charges filed, as alleged in the complaint, were amended
charges filed and served on the Respondents on June 29, 2005. This
date is less than 6 months following the commission of the last unfair
labor practice by the Respondents on January 10, 2005.
draws an analogy for such a deferral to the Board’s policy un-
der Collyer and United Technologies.22
To begin with, I see no inconsistency in the General Coun-
sel’s position. The statute “is what it is,” meaning that Section
10(b) of the Act establishes a statute of limitations for unfair
labor practices. The General Counsel is not at liberty to pick
and choose how to apply the statute. I have already concluded
that the General Counsel’s interpretation of Section 10(b) has
been correctly applied; and the unfair labor practice charges in
this case were timely filed, based on the last action by the In-
ternational Union executive board in denying the appeals and
increasing the fines. This does not establish that, therefore, the
General Counsel must defer these charges to the final step in
the internal union discipline appeal process. Any deferral by
the Board must stand on its own merits, which merits I find
sorely lacking in this instance.
In Collyer and United Technologies, supra, the Board estab-
lished a standard for deferring to neutral arbitration proceed-
ings. I see no evidence that this internal union discipline-
appeal process is at all neutral. As noted earlier, at the original
Local Union executive board hearing on the charges filed
against them, Cutler and Congrove were not permitted to call
witnesses, apparently because those witnesses were not union
members. Further, they had no real opportunity to appear and
testify in their own defense at the International Union executive
board hearing, which was held in the State of Hawaii.23 While
there is no verbatim record of the “hearing” held on the appeal
of the fines by the International Union executive board, the
undersigned certainly questions the impartiality and fairness of
a process which resulted not only in a denial of Cutler’s and
Congrove’s appeals, but significantly increased the discipline
each man received.
The very idea behind deferral is to afford the parties to a dis-
pute before the Board an opportunity to put into practice a
mechanism that they have previously agreed upon for a disin-
terested third party to resolve that dispute. The Respondents’
internal union discipline-appeal process is ill suited for such
deferral. Certainly, the Employer is not a party to such a proc-
ess, especially where its managers attempted to testify on be-
half of Cutler and Congrove, but were prevented from doing so
by officials of the Respondent Local Union. Further, I see
nothing about the process which would indicate that at any
stage there exists a “disinterested third party” who has the au-
thority to rule in favor of the appellants. To the contrary, as it
was the agents of the Respondents who both charged Cutler and
Congrove with offenses and who sat in judgment of them, they
can certainly not be considered unbiased.
I believe that it would be totally inappropriate for the Board
to abdicate its authority and defer this matter to the last step in a
process which I consider to be fundamentally unfair. This is
especially true where this final step is to an international union
convention held only once every 5 years, and where apparently
it is at best rare for appeals by members to be heard. Accord-

22 Counsel for the International Union adopts and incorporates coun-
sel for the Local Union’s arguments on this issue.
23 In all likelihood, the cost of travel to Hawaii for Cutler and Con-
grove would have been prohibitive.
ELEVATOR CONSTRUCTORS (OTIS ELEVATOR CO.) 601
ingly, I deny the Respondents’ motion to defer this proceeding
to the internal union discipline appeal process.
Finally, the Respondents move for deferral of this proceed-
ing to the grievance-arbitration procedure in the standard
agreement. They ask essentially that the resolution of the pre-
viously filed grievance regarding the issue of the gantry assem-
bly by employees other than elevator constructors be held as
conclusive of the issues before the Board.24 Counsel for the
General Counsel and counsel for the Charging Party oppose
these motions.
The Board will defer to an arbitrator’s decision where the
proceedings meet the following test: (1) the proceedings are fair
and regular; (2) all parties agree to be bound; (3) the contractual
and unfair labor practice issues are factually parallel; (4) the
arbitrator was presented generally with facts relevant to resolv-
ing the unfair labor practice allegation; and (5) the decision is
not clearly repugnant to the purpose and policies of the Act.
Spielberg Mfg. Co., 112 NLRB 1080 (1955); Olin Corp., 268
NLRB 573 (1984). Further, the Board has deferred to griev-
ance adjustments and grievance settlements short of arbitration.
Griffith-Hope Co., 275 NLRB 487, 488 (1985); Alpha Beta
Co., 273 NLRB 1546, 1547 (1985).
However, in my view, this matter is totally inappropriate for
any type of deferral, full or partial, to the grievance settlement
entered into between the Employer and the Respondents. Pre-
liminarily, it is entirely irrelevant to this case whether Otis vio-
lated the standard agreement or not. For a resolution of the
issues before the undersigned, it is not necessary to determine
whether Otis or the Respondent Unions were correct in their
respective interpretations of the contract. Assuming, for the
sake of argument, that the Respondents’ interpretation of the
contract was correct, such a finding would in no way serve to
exculpate the Respondents for having fined Congrove and Cut-
ler. Congrove was fined because he followed his supervisor’s
direction, and Cutler was fined for making a determination as
the Employer’s grievance adjuster that the gantry could be as-
sembled by employees other than elevator constructors and/or
for carrying out that determination. While the underlying in-
terpretation of the contract by the Employer may have been
incorrect, the Respondents’ actions in fining Congrove were
still a violation of Section 8(b)(1)(A) and in fining Cutler still a
violation of Section 8(b)(1)(B). The fines serve to unlawfully
restrain and coerce the Employer and employees regarding this
work dispute and potentially others in the future, regardless of
whether Otis violated the contract or not.25 It is for those rea-

24 Counsel for the Respondent International Union asks that the
Board “defer to the grievance resolution and find that the fines (and the
affirmance of the fines) were not unlawful because the discipline was
for the failure to abide by the Otis Agreement.” However, counsel for
the Respondent Local Union seeks a somewhat less encompassing
finding, acknowledging that “the grievance does not resolve the entire
charge,” and asking only that through the grievance resolution it “be
considered conclusively established that the activity in question was, in
fact, a violation of the collective bargaining agreement.”
25 It is at least worth noting that Otis continues to take the position
that its actions did not constitute a violation of the standard agreement.
The Employer’s senior labor relations manager, Jeffrey Ricapito, testi-
fied that Otis settled the grievance merely because it was not worth
sons that the Act has been violated by the actions of the Re-
spondents.
There are a number of additional reasons why the Board
should not defer this matter to the grievance settlement reached
between Otis and the Respondents. It was Congrove and Cutler
who were fined. They certainly did not agree to be bound by
the grievance settlement, even if the parties to the standard
agreement did. The unfair labor practices arise from the Re-
spondents’ processing of intraunion charges against Congrove
and Cutler for allegedly violating the Respondents’ constitution
and by-laws, while the grievance under the contract involved
the Employer and the Unions, totally different parties. Even
more significant, the unfair labor practice issues were not con-
sidered by the Employer and the Respondents in resolving the
grievance. The contract violations alleged by the Respondents
in the grievance do not even remotely parallel the unfair labor
practice issues in the case before me.
Accordingly, I conclude that it would be inappropriate to de-
fer any of the unfair labor practice issues before me to the
grievance-arbitration procedure in the standard agreement, or to
the resolution of the specific grievance filed by the Unions and
settled by the parties. I deny the Respondents’ motion to so
defer.
CONCLUSIONS OF LAW
1. The Employer, Otis Elevator Company, is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The International Union of Elevator Constructors (the Re-
spondent International Union) is a labor organization within the
meaning of Section 2(5) of the Act.
3. The International Union of Elevator Constructors, Local
18 (the Respondent Local Union) is a labor organization within
the meaning of Section 2(5) of the Act.
4. By the following acts and conduct the Respondent Local
Union has violated Section 8(b)(1)(A) of the Act:
Fining Scott Congrove because he followed the directions of
the Employer in performing his work duties in a manner the
Respondent Local Union asserted violated the collective-
bargaining agreement between the Respondents and the Em-
ployer.
5. By the following acts and conduct the Respondent Interna-
tional Union has violated Section 8(b)(1)(A) of the Act:
Denying Scott Congrove’s appeal of his fine and increasing
the amount of the fine imposed on him, because he followed
the directions of the Employer in performing his work duties in
a manner the Respondent International Union asserted violated
the collective-bargaining agreement between the Respondents
and the Employer.
6. By the following acts and conduct the Respondent Local
Union has violated Section 8(b)(1)(B) of the Act:
Fining Scott Cutler because he performed his duties on be-
half of the Employer by interpreting the collective-bargaining
agreement between the Respondents and the Employer in a

further efforts to contest the issue. However, he strongly denies that the
settlement of this particular grievance by the Employer serves as bind-
ing precedent in any similar future dispute.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD602
manner inconsistent with the Respondent Local Union’s inter-
pretation of the agreement.
7. By the following acts and conduct the Respondent Interna-
tional Union has violated Section 8(b)(1)(B) of the Act:
Denying Scott Cutler’s appeal of his fine and increasing the
amount of the fine imposed on him, because he performed his
duties on behalf of the Employer by interpreting the collective-
bargaining agreement between the Respondents and the Em-
ployer in a manner inconsistent with the Respondent Interna-
tional Union’s interpretation of the agreement.
8. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents engaged in certain unfair
labor practices, I find that they must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, including the posting of appropriate
remedial notices.
The Respondents having unlawfully fined Scott Cutler and
Scott Congrove, I recommend that they be ordered to rescind
those fines. Further, I shall recommend that the Respondents
be ordered to return to Cutler and Congrove any moneys paid
by either of them pursuant to the fines levied by the Respon-
dents. The Respondents shall also reimburse Cutler and Con-
grove for any costs incurred by either of them in defending
themselves at the internal union hearings. Interest shall be paid
on these moneys as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
It is further recommended that the Respondents remove from
their records all references to the unlawful discipline of Cutler
and Congrove, and to notify them in writing that this has been
done.
[Recommended Order omitted from publication.]