Elevator Constructors Local 8

EIEVAATOR (CONSIRUCTORS LOCAL 8 International Union of Elevator Constructors Local Union No. 8, AFL-CIO (San Francisco Elevator Co.) and James Finney. Case 20-CB 4581 June 26, 1979 DECISION AND ORDER BY MIMBIERS JNKINS, MtRPIIY, ANI) TRIESID)AIF On November 7, 1978, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter. Respondent filed exceptions and a brief, and the General Counsel filed cross-ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brietfs and finds merit in certain of Respondent Union's ex- ceptions. Accordingly, the Board has decided to af- firm the rulings, findings, and conclusions of the Ad- ministrative aw Judge to the extent that they are consistent herewith' and to adopt his recommended Order. as modified herein. The Administrative Law Judge found that Respon- dent Union was motivated by Finney's past intra- union activities and his opposition to Respondent's business manager when it fined James Finney and expelled him from the office of executive board mem- ber and prohibited him from holding office in the Union for 1 year. Respondent contends, inter alia., that there is insufficient evidence to establish that it was so motivated when it took action against Finney. We agree. On September 17, 1976,2 Finney attended a union meeting accompanied by employee Harold Neto. Jr. During the meeting, which lasted approximately I- 1/2 hours, two members of the Union, Louis Younger and Andy Japay. became noisy and disruptive and the warden, Leo Vallindras, told them that the meet- ing would stop and not continue "until you two drunks get out of here." Both men agreed to leave after Vallindras told them he would give them attend- ance cards, after the meeting. After the meeting had concluded Finney and Japay had a conversation during which Japay told him of I We agree with the finding of the Administratie Law Judge that Respon- dent violated Sec. l(b)( I (A) by maintaining art. Xi, sec 3. ol Its ctonstlution and bylaws. which. in essence. provides that all fines and assessnments have to be paid by members before dues All dates herein are 1976 unless otherwse noted. Attendance cards were used b the I[nlon as an ncentive to encourage members to attend meetings by allowving them a $9 credit toward their due, Vallindras' subsequent refusal to give Japay an at- tendance card. Finney then approached Vallindras and asked him why he refused to give Japay a card. Vallindras told him that Japay threatened to cut him with a knife. Finney then reminded Vallindras of an- other occasion when a disruptive member had been asked to leave the meeting and Vallindras later gave him an attendance card. Finney stated Japay was en- titled to similar treatment. Vallindras continued in his refusal to give Finney a card for Japay. Finney went to the back of the meeting hall and told Japay of Vallindras' refusal and offered to give Japa the amount of the rebate so they could all go home. Japay accepted the offer. Meanwhile, Younger and Vallindras apparently had a fight inside the meet- ing hall, because upon Finney's return he could see that both men were bleeding, and three or Iour mem- hers where holding Younger. Vallindras then said to Finney. "Look what you did now." By letter dated September 23 Bsiness Manager Elector Rueda filed intraunion charges against Fin- ney. The letter charged Finney with violating section 1(16), article XIX. of the constitution and blawvs by "attempting to over-ride the Warden's decision, not to issue an attendance certification, in an abusive and aggressive manner and by so doing he engaged and unduly impeded the Warden in the performance of his duties." Rueda also requested that a hearing offi- cer be appointed to hear the charges, since the major- ity of Local 8's executive board were disqualified.4 A hearing was held on October 6, and the hearing panel found Finney guilty of all charges. The panel assessed Finney with a fine of $2.000 $500 payable before receipt of the next quarterly card, with $1,500 suspended for 3 ears and ordered that he he re- moved from office immediately and precluded from ever holding an office in the Local again. Finney ap- pealed the decision to the International executive board. The appeal was denied, and the hearing panel's de- cision was affirmed except that the fine was reduced to $1,000-$400 due and payable, with $600 sus- pended for 2 years. The period Finney was prohibited from holding office was reduced to I year. The Administrative Law Judge, in finding that Re- spondent Union violated Section 8(b)(1 )(A) of the Act by fining Finney and expelling him from office. concluded that Respondent Union utilized the intra- union charges "as a pretext to disguise the true moti- vation for the Union's reprisal." The Administrative Law Judge concluded that Finney was actuallN disci- plined because of his past intraunion activities and his opposition to Rueda. The thrust of the finding is that 4 It should he noted hat allhough Rueda. wai present at the Septembehr 17 meeting, he only stayed tor the first 15 mnriute and a.pp.lrentlI did not ,ritness the .Ihbos.e-des rlied e ents 243 NLRB No. 10 53 DE[('ISIONS OF NATIONAL LABOR REI.ATIONS BOARD Rueda was in reality seeking to punish Finney be- cause Finney had opposed Rueda and because a friend and ally of Finney's may have thwarted Rueda in his efforts to obtain union office. Finney's union activities and his opposition to Rue- da are fully spelled out by the Administrative Law Judge. Briefly, they can be summarized as follows: Finney. as noted above, had been a member of the Union's executive board during the period 1945 47. He resumed that position in 1968 and held it continu- ously thereafter until the events at issue herein. There is no indication that Finney's activities in connection with the executive board position created any par- ticular problem for Rueda which was likely to cause resentment. In 1968 and 1969 Finney unsuccessfully opposed Rueda for the position of business manager. Otherwise, Finney had only two confrontations of note with Rueda, one in the mid-1960's or late 1960's and the other in 1975 or 1976. During both of these Finney called Rueda a liar. As to the activities of Finney's friend, it was stipu- lated that Finney was a close personal friend of Torn Fitzgerald. Fitzgerald had served as both president and business agent of Respondent. Fitzgerald became regional business director for the International Union, and he also held the position of secretary-trea- surer of the International for 7 or 8 years prior to his retirement in 1973.5 Fitzgerald died in 1976. In the first of the two conversations during which Finney called Rueda a liar (the one occurring in the mid- 1960's or later 1960's), Fitzgerald was also present and also referred to Rueda as a liar. During the late 1960's Fitzgerald expressed to Finney the belief that Rueda was a liar and could not be trusted. Fitzgerald also told Finney that he had advised Wayne Wil- liams, the president of the International at the time, not to put Rueda into any position at the Interna- tional level because Williams could not believe Rue- da. There is nothing to indicate that Rueda was aware of Fitzgerald's comments or of Fitzgerald's op- position to him for union office. Sometime during this same time period, Rueda sought, and failed to obtain, the position of regional business agent of the Interna- tional. There is no indication as to why he was not appointed. Boiled down to their essence, the facts here demon- strate that Finney had on two occasions almost a dec- ade ago opposed Rueda for union office and on two occasions engaged in a somewhat heated conversa- tion with him. Finney's friend Fitzgerald distrusted Rueda and more than a decade before had expressed that distrust and perhaps was in a position to effec- Finney described the office of secretary-treasurer as the second highest office in the International. tively express opposition to Rueda's movement up the union ladder (with no indication that he actually did so but with perhaps the totally unconfirmed possibil- ity that Rueda may have thought he did so). Thus, most of the events cited in support of the pretext ar- gument occurred many years before. Only the one conversation in which Finney called Rueda a liar, taking place in 1975 or 1976. could be said to be rela- tively current. Even that confrontation is relatively minor in an area where opinions are frequently ex- pressed in very strong language. We conclude that events cited by the General Counsel raise at most a suspicion that Rueda may have had reason to want to take action against Finne3 in retaliation for Finney's past activities but are insufficient to establish that the disciplinary action taken against Finney was in fact so motivated.6 The General Counsel also argues that Respondent violated Section 8(b)( )(A) in that Finney has a pro- tected right to freely and fully state his views and opinions as to the manner in which Respondent con- ducts its business, and that Respondent's discipline of Finney was in part motivated by his exercise of those rights.' The difficulty with General Counsel's position is that Finney was not disciplined because of' the views he was expressing but rather because of the manner in which he expressed them. Thus, Respon- dent's hearing panel concluded that Finney, "in an abusive and aggressive manner," did attempt to over- ride the warden's decision to not issue an attendance card. Respondent obviously concluded that Finney's actions interfered in an improper way with the war- den's right to maintain discipline at its meetings and his actions in seeking to do so. Whether or not we agree with that determination is of no moment. Re- spondent has a right to maintain order and discipline in its meetings and the conduct of its affairs. Its ac- tions in doing so here are not such that it can be said to have acted outside its legitimate area of interest and in such a way as to impair any overriding policy of labor law. General Counsel further contends that Respondent breached the duty of fair representation. The duty of fair representation stems from a union's exclusive rep- resentative status for the employees of the employer.' Ihe General Counsel also cites the makeup of the hearing panel in sup- port of' his theory of the case. The record is barren of any eidence that the hearing officer or any of the panel members bore any ill will toward Finney or owed any particular allegiance to Rueda. General ('ounsel also asserts that Younger was treated differently from Finney in that he was allowed to resume lull membership without paying back dues, and Respondent col- lected money to pa? his fine from a strike committee dealing with a strike at the employer of Younger. These actions are not indicative of arbitrary realt- ment of Finney, because they were motivated by the Ulnion's attempt to reach a collective-bargaining agreement with Younger's employer. Further. there s no indication that Japay received treatment similar to that accorded Younger. rhe Administrative Law Judge did not discuss this contenton. M Mirandua Fuel C(ompan, Inc. 140 NlRB 181 at 184 1962) 54 ELEVATOR CONSTRUCTORS LOCAL 8 This duty is relevant only at such times as the union is acting in this representative capacity or otherwise af- fects the members' employment status. Here Respon- dent's actions against Finney were unrelated to any representation of Finney vis-a-vis any employer. Nor did Respondent seek to affect his status as an em- ployee. Therefore we find its conduct could not con- stitute a violation of the duty of fair representation. We therefore find that Respondent did not act un- lawfully in fining and removing Finney from office. Accordingly, we dismiss these allegations of the com- plaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that Respondent Union, International Union of Elevator Constructors Local Union No. 8, AFL-CIO. San Francisco, California. its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. as so modified: I. Substitute the following fior paragraphs (a)(I) and (2): "(a) Restraining and coercing employees and members in the exercise of rights guaranteed in Sec- tion 7 of the Act by maintaining the portion of article Xl. section 3, of its constitution and bylaws which provides: 'All fines imposed or assessments levied shall be charged by the Secretary-Treasurer to the member and shall stand and be payable before dues.'" 2. Delete paragraphs 2(b) and (c) and reletter the remaining paragraphs accordingly. 3. Substitute the attached notice for the Adminis- trative Law Judge's notice marked "Appendix A." APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF fliE NATIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government WE WILL NOT restrain and coerce employees and members in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act by maintaining the portion of article XI, section 3, of our constitution and bylaws which pro- vides: "All fines imposed or assessments levied shall be charged by the Secretary-Treasurer to the member and shall stand and be payable be- fore dues." WE WIl.l NOTr in any like or related manner restrain or coerce our members in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act as amended. Wt winiL cease maintaining and rescind the portion of article XI, section 3. of our constitu- tion and bylaws quoted above. INTERNATIONAL UNION OF EI.VAIOR CON- SlRt(cIORS LO(CAL UNI)ON No. 8. AFI C10 I)ECISION Ro(;ER B. HIMFis, Administrative l.aw Judge: The un- fair labor practice charge in this case was filed on January 10. 1978. by James Finney. The Regional Director for Region 20 of the National La- bor Relations Board, herein called the Board, who wAs act- ing on behalf of the General Counsel of the Board, issued on June 8. 1978. a complaint and notice of hearing against International Union of Elevator Constructors local Itnion No. 8. A:L CIO. herein called Respondent. The General Counsel's complaint alleges that Respon- dent has engaged in unflair labor practices within the mean- ing of Section 8(b)( I)(A) of the National l.abor Relations Act, herein called the Act. Specifically. the General Coun- sel contends that Respondent has violated Seclion 8(b)(l)(A) of the Act by: (I) since on or about Julk 10. 1977. maintaining the following provision in its constitution and bylaws. "All fines imposed or assessments levied shall he charged hby the Secretary-Treasurer to the member and shall stand and he paiable betore dues": (2) since on or about November 21. 1977. fining James Finney and expel- ling Finney from elective office in order to deprive Finney and other members of Respondent of the right to partici- pate tullv and freely in the internal affairs of Respondent. Respondent filed an answer to the General (ounsel's com- plaint and denied the commission of the alleged unfair la- hor practices. The hearing was held before me on August 22. 1978. at San Francisco, California. Both counsel for the General Counsel and the attorney for Respondent filed briefs hb the due date of September 26. 1978. I am not unmindful of the fact that there are a substan- tial number of clerical errors in the transcript of the pro- ceedings. However. the numerous errors appear to be easily recognizable and inconsequential. Since the errors lack true significance in resolving the issues presented herein. I shall not order that a detailed correction of the record be made in these circumstances. FINI)IN(GS 01 FA( r I. JtRISDI(IION San Francisco Elevator Co. has been, at all times mate- rial herein. a California corporation with its principal place of business located in San Francisco. California. where it has been engaged in the business of installing and servicing elevators. 55 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD During the year preceding the issuance of the General Counsel's complaint, San Francisco Elevator Co. per- formed services valued in excess of $50,000 for various cus- tomers, each of whom meet the Board's direct standards for the assertion of jurisdiction. Upon the foregoing facts, and the entire record herein, I find that San Francisco Elevator Co. has been, at all times material herein, an employer engaged in commerce and in a business affecting commerce, within the meaning of Section 2(6) and (7) of the Act. nI. TilE LABOR OR(iANIZAI ION INVOI.VII) It was admitted in the pleadings that Respondent has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Based upon the pleadings, and the entire record in this case. I find that fact to be so. IM[. TlE A.1.t E(El) UNFAIR I.AB)R IPRA(C l( ES A. The Witnesses In alphabetical order, the following two persons ap- peared as witnesses at the trial in this proceeding: James Finney is the Charging Party in this case. For 10 years Finney has been an employee of the San Francisco Elevator Co., where he has performed service and repair work. Finney has been a member of Respondent since 1941. He held the elective office of executive board member on two occasions during the period 1945 47 and during the period 1968 76. On two occasions Finney was also a candi- date for the office of business manager of Respondent, in the years 1968 and 1969. Finney stated that he ran against Hector Rueda, who is the business manager of Respondent. According to Finney, Hector Rueda has been the business manager of Respondent for 10 years, and, for the past 2 or 3 years, Rueda has also been the fifth vice president of the International Union. Harold J. Nelo, Jr.. is an employee of the Columbia Ele- vator Company, where he has held a service and repair position for about 6 years. Neto has been a member of Respondent for approximately 11 years. The findings of fact throughout this Decision will be based upon the uncontradicted testimony given by Finney and Neto. There are some minor variations between some portions of the testimony related by Finney and some por- tions of the testimony given by Neto. However, those minor variations are insignificant and not truly meaningful in re- solving the issues presented in this case. By way of illustra- tion, Neto recalled that at the September 17, 1976. union meeting the warden, Leo Vallindras, asked both Neto and Finney for their union cards as they entered the hall, and both of them showed Vallindras their union cards. Neto said that he then jokingly asked Vallindras to see his card. Finney recalled thit brief event as they entered the union hall somewhat differently. Finney's recollection was that Neto was the one who first asked to see Vallindras' card, and then Vallindras asked to see Neto's card. This is merely an example of a minor variation between the two witnesses, and one that is insignificant to the issues in this case. Notwithstanding some other minor differences, I found the testimony of Finney and Neto to be believable, and I have credited their versions, which were not disputed by any other witnesses. In addition, I have also relied upon a substantial amount of documentary evidence introduced at the hearing in mak- ing certain findings of fact herein. B. The Background Events At the outset, it should be stated, for the benefit of those persons who were not present at the hearing, that some of the background events to be related in this section occurred many years ago. ('ounsel for the General ('ounsel sought to introduce evidence on these matters which, in his view, re- veal a "history of animosity" of long duration by Business Manager Rueda toward Finney and his friend Tom Fitz- gerald. In addition to the General Counsel's problem of having a witness relate long past conversations, there are some hear- say considerations. The attorney for Respondent timely made objections to much of this background testimony on several grounds, and therefore much of this testimony came in over his objections, which are preserved on the record. Nevertheless, there were also other points to be consid- ered regarding these background matters. Fitzgerald died in 1976. and thus he was a "declarant unavailable" within the meaning of' Rule 804, subdivision (al(4), of' the Federal Rules of Evidence. At the hearing it appeared to me that Rule 804, subdivision (hb(5), was applicable to this situ- ation. Naturally, testimony from any person who attributes statements to a deceased person must he carefully scruti- nized for reasons which are obvious, since the possibility of' confrontation and contradiction b the declarant is elimi- nated. See, for example. Ilaen & Jaeger Funeral Home, 95 NLRB 1034. 1043, fn. 9 (1951). enfd. N.I.R.B. v. 41ice B. Haz- et al., d///a liacnl d Jaeger Funeral Iome, 203 F.2d 807 (9th ('ir. 1953). Furthermore, a potential witness (Jim orman) to a much later conversation, occurring in 1975 or 1976. was described by inney as being over 75 years old and in such ill health as to preclude him from being a witness at the trial. However, none of these background events are alleged by counsel for the General ounsel to be unfair labor prac- tices. Moreover, they fall outside the statutory 10(b) period. Instead, counsel for the General Counsel has made it clear that his contention is that these matters shed light on the matters which he does allege in the General Counsel's com- plaint to be unfair labor practices. See Local Lodge No. 1424, Internationul Association of Machini.vlsts, A FL ( 10 [Bryan Manuficturing Co.] v. N.L.R.B., 362 U.S. 411 (1960). I. Tom Fitzgerald It was stipulated that Finney and Tom Fitzgerald were close personal friends. According to Finney, he had known Fitzgerald since 1941. Finney said that Fitzgerald was the president of Respondent for many years and that Fitzgerald had also held the office of business agent of Respondent. Fitzgerald became a regional business director for the Inter- 56 ELEVAO()R (ONS' IU(I'ORS l.O('AI. 8 national Union, and he also held the position of secretary- treasurer of' the International Union t)r 7 or 8 ears prior to his retirement in 1973. Finne' described the office of secre- tary-treasurer of the International Union as being the sec- ond highest office in the International. Finney said that Fitzgerald was the one who got linney his job with San Francisco Elevator ('o. Fitzgerald died in 1976. 2. ('onversation in mid-1960's or late 19 60's Sometime in the mid-1960's or late 1960's there was a conversation between Fitzgerald and Rueda at which Fin- ney was present. The conversation took place at the [)el Webb Townhouse in San Francisco. During the course of the conversation Fitzgerald accused Rueda of telling him a story which was not true. Fitzgerald referred to Rueda as a liar. Rueda told Fitzgerald that Fin- ney was a witness to the matter which Rueda had related. Finney then said to Rueda, "lector, you have been a liar all your life, you just can't help it." 3. Conversation in mid-1960's at the union hall James P. Sharpe is listed on General ('ounsel's Exhibit 17 as being one of the ftour hearing panel members at the tr ial of Finney on intraunion charges. Sharpe was also a former president of Respondent. Sometime in the mid-1960's there was a conversation be- tween Sharpe and Fitzgerald at the union hall, which, at that point in time, was located at 17th and Potrero. Finney was present during most of the conversation, but he could not recall at the trial all that was said. He did recall that Sharpe had told Fitzgerald in that conversation that Sharpe had asked Nick Dillis if Finney had been on the strike com- mittee. Sharpe said that Dillis told him that he did not think so. Finney did not recall the rest of the conversation, but he pointed out that Sharpe and Fitzgerald also talked later on. However, he did not know what they said to each other. 4. Conversation in 1960's regarding Johnny Dowd Johnny Dowd was a regional business agent of the Inter- national. He died sometime during the 1960's. Shortly after Dowd's death there was a meeting of about 15 persons at the union hall. Finney said that Rueda, who was the business agent of Respondent at that time, was present at the meeting. Finney also described those present as being former presidents or officers of Respondent. During the course of the meeting Finney recalled that Sharpe stated that Johnny Dowd was dead and said. "Tx) bad that bitch Fitzgerald didn't go with him." Finney also recalled that Rueda solicited the support of those present for sending a letter to the International Union saying that Rueda should be given Dowd's appointive job. At the hearing Finney pointed out that Fitzgerald was in office in the International at the time and that Rueda was not appointed to Dowd's former position. In fact, based upon Finney's reading of copies of the union journal and his conversations with Fitzgerald, Finney said that Rueda was not advanced to any appointive office in the Union during the time that Fitzgerald held an International office. 5. onversation in klate 1960's During the late 196)'s Fitzgerald and Finnes had a con- versation concerning Rueda at the )el Webb ltownhouse in San Francisco. During that conversation Fitzgerald expressed his belief to Finney that Rueda was a liar and could not be trusted. Fitzgerald also told Finnes that Fitzgerald had advised Wayne Williams. the president of the International linion at that time, not to put Rueda into an' position at the International lesel. because Williams could not believe Rueda. 6. onversation in 1975 ror 1976 Sometime in either 1975 or 1976 there was a consersation among Rueda. Finne. and Jim (orman on a Sundas in front of St. Patrick's ( hurch on Mission Street in San Fran- cisco. According to Finney. (Gorman approached Rueda and said it was bad that the's had to have guns under the seats of' their automobiles in order to answer calls at night or to go into certain neighborhoods, at night. iorman told Rueda that im Duggan. who was a serviceman for the )tis Eleva- tor Company. had gone to the police department about get- ting a permit to carry a gun under the seat of his car at night. Gorman stated that Duggan had been attacked two or three times. here was mention of getting a letter trom the Otis Elevator Company in order to get such a permit from the police department. Finney recalled that Rueda said that he did not know anything about it. Finney also told Rueda about a person who had told hint what had to he done in order to get a permit to carry a gun in a car. Rueda told Finney that it was the first he had heard of it, whereupon Filnne called Rueda a liar and walked away. 7. Conversations in July 1976 Alexander Graham is listed on General ('ounsel's Ex- hibit 17 as being the hearing officer at the trial of Finney on intraunion charges. At a convention in Kansas ('it in July 1976. Graham on two occasions asked Finnes where Rueda was because they and their wives were going to dinner. In addition. Finne said that he observed both Graham and Rueda talking to- gether and drinking together in the hospitality room. C. The Union Meeting on September 17. 1976 There was a union meeting of Respondent at the Del Webb Townhouse in San Francisco on September 17, 1976. Finney attended that meeting accompanied by Harold Neto, Jr. They arrived at the meetingplace prior to the time that the meeting began. During a brief conversation with the warden. Leo Vallin- dras, with regard to union cards, Vallindras volunteered to Neto that Vallindras was thirsts because he had been drinking a lot of gin. The meeting lasted for 1-1/2 2 hours. Rueda was at the meeting only for about the first 15 minutes. After the meet- I)lI('ISIONS ()1: NA I()NAI. I.ABOR RII.AHO()NS BOARKI) ing had started, two union members. Iouis Younger and Andy Japay, came into the meeting. They sat in the row in front of the row where linney and Neto were sitting. Youn- ger and Japay talked during the meeting. Vallindras came over to them and told them that the meeting would stop and would not continue "until you two drunks get out of here." Younger and Japay asked Vallindras for attendance cards, and Vallindras told them that if they would go out- side and come back after the meeting was over, he would give them cards. Younger and Japay then left the meeting. At the hearing Neto explained the signilicance of an at- tendance card. Neto said that such a card was used ;IS a $9 credit toward a member's union dues. Neto said that the attendance card was used as an incentive by Respondent to encourage its members to attend union meetings. After the union meeting was over there was a conversa- tion between inney and Japay at the entrance to the hall. Neto was also present. Japay informed inney that Vallin- dras had stamped his union card, but Vallindras refused to give Japay an attendance card. Japay showed his card to Finney, and at that point Ed 'Irujillo the vice president. pulled the card out of Finney's hand. Finney admonished Trujillo not to do that. Finney then proceeded toward the front of the hall. where he asked Vallindras why he did not give an attend- ance card to Japay. Vallindras responded that Japay "pulled a knife on me, he was going to cut my guts out." Finney said that he knew nothing about that, and inney turned and began walking out of the hall. Vallindras lol- lowed Finney and asked what was the matter with Japay whom Vallindras had known for 10 or 15 years when they worked for the Otis Elevator C'ompany. Vallindras also asked what had happened to Japay since he had left Otis. Finney replied that he did not know and explained that he did not meet him that often. Finney also told Vallindras that either at the previous meeting or the one before that, there was a member who had come into the hall while drinking beer. Finney said that the member was "noisey" and that Vallindras had put him out of the meeting, but in the next 10 minutes or so the member returned to the hall, and "he was noisier than he ever was." Finney reminded Vallindras that Vallindras had given that person a card, and he should also give Japay a card. Finney next walked toward the end of the hall, where he spoke with Japay once again. Finney returned Japay's union card to him and also informed him that Vallindras would not give Japay an attendance card. They then pro- ceeded about 15 or 20 feet away from the meeting hall and out onto a patio where a swimming pool is located. Finney offered to give Japay the amount of the rebate and let them all go home. Japay agreed to that. About that time Finney looked through the door to the hall and observed that three or four members were holding Younger. He heard Vallindras say, "Look what you did now." Finney described Vallindras as having a small streak of blood on him and said that Younger also was cut, but Finney said that he did not see what had taken place. During cross-examination by the attorney for Respon- dent, Finney acknowledged that he was not responsible for attendance at the union meeting and that it was the war- den's responsibility. However. Finney stated, "But I would have to hear this at an executive board meeting, why he didn't give him a card." Nevertheless, Finney acknowl- edged that, at that point in time. it was not Finney's respon- sihilit). A copy of the minutes of Respondent's meeting held on September 17. 1976, was introduced into evidence as (Gen- eral Counsel Exhibit 10. he minutes indicate that they were submitted by Harry Weisenburger, recording secre- tary. In pertinent part the minutes state: At this time the meeting was disrupted by Brothers I ouis Younger and Andy Japay. Warden eo Vallin- dras assisted by President Robert Wilson and several other brothers, persuaded Brothers Younger and Japay to leave the meeting. ).I 7'e Intrnion ( uiarges By letter dated September 23. 1976, on Respondent's let- terhead, Business Manager Rueda tiled the charges set forth below against Finney. 'The document was introduced into evidence as (ieneral ('ounsel Exhibit 11. It provides: September 23, 1976 John .. Russell, General Secretary-Treasurer International Union of Elevator Constructors 12 S. 12th St.. Suite 1515 Philadelphia, PA 98107 D)ear Sir and Brother: The undersigned member of t'ocal 8 files the follow- ing charges under Article XIX, Section 1(16). of our International Constitution and By-Laws. Brother James Finney, 239 Bosworth Street, San F:rancisco alifornia 94112, member of Local 8, Int. =50710, is hereby charged with violating Section 1(16). Article XIX of our International Constitution and By-laws. To wit, attempting to over-ride the Warden's deci- sion, not to issue an attendance certificate, in an abu- sive and aggressive manner and by so doing he en- gaged and unduly impeded the Warden in the performance of his duties. I will present as witnesses Brothers Robert Wilson, Local 8, Int. #66895 William Lee. Local 8, Int. #57615: Harry Weisenburger, Local 8, Int. #50745, and no less than three other witnesses to corroborate their testimony, whose names I omit, not to overbur- den these charges. Inasmuch as a majority of the executive officers are disqualified from acting on these charges, I am filing them under Section 7 and respectfully request that a hearing officer or officers be appointed to hear these charges instead of Local 8's Executive Board. Respectfully and fraternally, /s/ Hector E. Rueda Hector E. Rueda Business Manager 58 IVA I O()R ('()NS'IRI ("I ()RS lOCA()('. Finney received a letter from Respondent which notified him of a hearing on the charges. Finney attended the hear- ing, which was held on or about October 9. 1976 at the Bay View Towers, located at 22d and Mission in San rancisco. During cross-examination bh the attorney for Respon- dent. Finney acknowledged that he testified at the hearing and that he was given a chance to explain hlls position. Finney contended that the three persons who testified against him at the hearing did not tell the truth. lie said they were Ed Irujillo Ileo Vallindras, and Bob Wilson. A transcript of what was said at the hearing pertaining to tile charges against Finney was introduced into evidence as Re- spondent Exhibit I. Finney identified the hearing officer as being Alexander Graham. and he identified James Sharpe as being one of the Itur hearing panel members. A copy of the "Hearing Panel Report Re Irial of Brolher James Finney" was introduced into evidence as General Counsel Exhibit 17. It states: Charges were preferred against Brother James I n- ney, Int. 50710, alleging a violation of Article XIX. Section 1(16) of the Constitution and By-laws of the I.IJ.E.C., in that said Brother James Finney was ac- cused of attempting, in an abusive and aggressive man- ner, to override the Warden's decision not to issue an attendance certificate, and by so doing he engaged and unduly impeded the Warden in the performance of his duties. The charges were referred to a lHearing Panel ap- pointed by General President Treadway. he charges were duly served on Brother James Finney and a hear- ing on the charges was held before the Hearing Panel on Saturday. October 9, 1976. Brother James Finney entered a plea of not guilty. After considering all of the testimony of the wit- nesses, the statements of the accused and the charging party, the Hearing Panel concludes and finds the fol- lowing facts: I. That Brother James Finney, in an abusive and ag- gressive manner, did attempt to override the War- den's decision to not issue an attendance certificate, and in so doing did impede the Warden in the per- formance of his duties. 2. That by such conduct, Brother Finney violated Ar- ticle XIX. Section 1(16) of the Constitution and By- Laws of the I.U.E.C. and is guilty as charged. The Hearing Panel, therefore, has concluded and de- cided that Brother James Finney be assessed a fine of two thousand ($2,000.00), $500 payable before receipt of next quarterly card, $1500.00 suspended for three years, and that he be removed from office immediately and be denied ever holding office in Local 8. I. U.E.C. The Recording Secretary is directed to notify Brother Finney of the membership meeting at which the Hearing Panel will report its decision. HEARING PANEL MEMBERS: James P. Sharpe Local #8 Adrian A. Vinci Local 8 IFred . H;aler .ocal =8 George F. Borbo l.ocal =8 HEARING OFI(C1R: Alexander (irahamin Regional Director Fiinnce appealed the decision of the hearing panel to the executive board of the International I nion. Ihe executi e hoard of the International nion met in (Colorado Springs. (Colorado. and considered I:inney's appeal. Finney said that he sent a letter regarding the matter. hut that he did not travel fromn Saln Francisco to (Colorado Springs becaluse of linancial considerations. A copy of the letter from the general secretar -treasurer of' the Inlternatilonal nion. John N. Russell, to Butsiness Manager Rueda was introduced into evidence as (ieneral Counsel IExhibit 13. Ihe letter sets Iorth the decision of the general executive board ofl the Internaltionai l niion with regard to Flinne_'s appeal. In pertinent part it stites: Mr. Hector E. Rueda Business Mgr.. ocal 8 P. 0. Box 40159 San rancisco. (Cal. 941 110 Re: Appeal of James Finney l)ear Sir and Brother: Brother James Finney was charged with violating Article XIX. Section I. subsection 16 of the Interna- tional Constitution by attempting to override the War- den's decision not to issue an attendance certificate. in an abusive and aggressive manner and bh) so doing he engaged and unduly impeded the Warden in the per- formance of his duties. The charges were specific as to the time, date and place. After a hearing before a panel under a Hearing Officer, Brother Finney was found guilty and the penalty imposed was a $2000 fine with $15()( suspended ltor three years. and that he he re- moved from office immediately and he denied ever holding office in L.ocal 8. Brother Finney filed a timely written appeal. Al- though given notice and an opportunity. Brother Fin- ney did not appear before the General Executive Board. Business Representative Weisenburger did ap- pear on behalf of Local 8. Vice President Hector E. Rueda disqualified himself from participation in this case. After due consideration. the following decision, by motion duly made and seconded, was unanimously adopted by the General Executive Board: DECISION The General Executive Board finds that Brother Finney was timely served with written specific charges, given an opportunity to prepare a defense and a full and fair hearing. The Board finds there was substantial evidence supporting the Hearing Panel's finding of guilt. The Board further finds that although this is a serious offense, particularly in view of the fact that Brother Finney is an officer of L.ocal DE('CISIONS OF NA'I()ONAL ILABOR RI-.AlIONS BOARK) 8, it was a first offense and therefore a modification of the penalty imposed is in order. Accordingly, it is the decision of' the General Execu- tive Board that the appeal of Brother James Finney is denied but that the penalty he modified to a fine of $1000 with $600 suspended for two years. If' a like offense should occur within the two years, the total fine will he due and payable. Further, that Brother Finney be removed from office immediately and be prohibited from holding office for one year. To the extent that the Hearing Panel's decision is inconsis- tent with this decision of the General Executive Board, it shall be modified to conform. Fraternally yours, /s/ John N. Russell John N. Russell General Secretary-Treasurer E. The Letter Dated November 21, 1977 Finney received a letter dated November 21. 1977, from Business Manager Rueda. The letter was on Respondent's letterhead, and a copy of that document was introduced into evidence as General Counsel Exhibit 15. In pertinent part, it states: November 21, 1977 James Finney 207 Bosworth Street San Francisco, California 94112 Dear Sir and Brother: The International office has notified us that your ap- peal on charges and penalties filed by Local 8 has been denied. The General Executive Board modified the penalty and reduced your fine to $1,000.00, $400.00 due and payable now and $600.00 suspended for two years and immediate removal from office. Article XI, Section 3 of' Local 8's By-Laws states that all fines imposed ... shall stand and be payable before dues. Your next quarter dues are due and payable De- cember 31, 1977. Fraternally, /s/ Hector E. Rueda Hector E. Rueda Business Manager The letter noted above makes reference to article XI, sec- tion 3, of Respondent's bylaws. A copy of the constitution and bylaws of Respondent was introduced into evidence as General Counsel Exhibit 6. The section referred to in the letter is found on page 41 of that document. That section provides as follows: Sec. 3. All fines imposed or assessments levied shall be charged by the Secretary-Treasurer to the member and shall stand and be payable before dues. Any member whose personal check for dues is not honored by the bank due to lack of' funds shall be considered delin- quent in dues and fined accordingly. Personal check payments for any reason will not be accepted by the Union from any member who has tendered two bad checks in any one given year. A check is considered bad when it is returned by the bank due to the mem- ber's own indiscretion and no fault of the bank. A copy of' certain amendments to Respondent's bylaws, which were effective on April 16, 1976. was introduced into evidence as General Counsel Exhibit 7. An addition to arti- cle XI, section 3, appears on page 9 of that document. It provides: Add to Section 3. ANY MEMBER WHO HAS BELN FINED) OR AS- SESSED ANY SUM OF MONEY AND HAS EX- HAUSTED THE APPEALS PROCESS AVAIL.- ABLE TO HIM UNDER THE C(ONSTITUTION AND BY-LAWS OF THIS UNION, SHALL BE LIABLE F OR COURT C'OSTS ANI) ATT'IORNE'YS FEES SPENT BY THE UNION I- THE LOCAI. IS REQUIRED TO FILE SUIT OR INCUR ANY OTHER LEGAL EXPENSE TO C('OLLEC'T SUCH SUMS. F. Subsequent Events A copy of the minutes of' Respondent's meeting held on December 16, 1977. was introduced into evidence as Gen- eral Counsel Exhibit 14. The document indicates that the minutes were submitted by Recording Secretary Weisen- burger. In pertinent part, the minutes state: President Wilson reported on decision of Interna- tional Executive Board regarding James Finney. Re- duced fine to $1.(X)0 $600 suspended for 2 years and removal from office, unable to run for office for one year. I.ouis Younger and Andy Japay, fines reduced to $500 $300 suspended for two years. As a member of Respondent's executive board, Finney had received $25 for each meeting that he attended. Since he was no longer a member of the Respondent's executive board, he no longer received that compensation. Finney acknowledged during cross-examination by the attorney for Respondent that he had not paid the fine. Fin- ney also acknowledged that he had paid his dues to Re- spondent on the following dates: December 1977, March 1978, May 1978, and September 1978. He further acknowl- edged that Respondent had accepted his payment of his dues. In addition to the foregoing, Finney acknowledged to the attorney for Respondent during cross-examination that Re- spondent had not told Finney that his union dues were going to be credited against his fine. Finney said that Re- spondent has not taken any action to collect the fine, and he further acknowledged that no one has ever told him that Respondent was going to take any action against him be- cause Finney had not paid the fine. Finally, Finney further h( EI.VAI)R ('ONS[RIUCTORS L.()('A 8 acknowledged that no one had said that he as going to have a problem on his job because he had not paid his fine. As noted earlier. Finney is an employee of the San Fran- cisco Elevator ('o. A copy of' the collective-bargaining agreement between Respondent and the San Francisco Ele- vator Co., which was effective from March 24. 1972. to July 8, 1977. was introduced into evidence as General Counsel Exhibit 8. That collective-bargaining agreement did contain a union-security clause. See article III of' General Counsel Exhibit 8. A copy of the collective-bargaining agreement between Respondent and the San Francisco Elevator Co., which has effective dates of July 9. 1977, to July 8 1982. was intro- duced into evidence as General Counsel Exhibit 9. That collective-bargaining agreement also contains a union-secu- rity clause. See article Ill. "Membership Requirements." of General Counsel Exhibit 9. Finney stated that from 1941, when Finney became a member of Respondent, to the time of the hearing in this proceeding, on August 22, 1978, no one other than Business Manager Rueda had filed charges against him, nor had any discipline been imposed on him other than the subject mat- ter of this proceeding. Harold Neto is a member of Respondent's strike commit- tee. Neto said that the Bay Cities Elevator Company had refused to renew its contract with Respondent. As a result, there was a strike against Bay Cities Elevator Company. and the strike lasted several months. At a meeting of Re- spondent's strike committee about 1-1/2 to 2 weeks prior to the hearing in this proceeding, Business Manager Rueda announced a settlement of that strike. A majority of the strike committee voted to approve the settlement. As a part of the settlement agreement. Bay Cities Elevator Company agreed to sign a new collective-bargaining agreement. Re- spondent undertook to try to find a way to pay Younger's fine. As noted earlier with regard to the meeting on Septem- ber 17, 1976, Younger had previously been a member of Respondent. Younger was to rejoin Respondent. and the other employee of Bay Cities Elevator Company was to become a new member of Respondent. In addition, Youn- ger was to be given a mechanic's card. According to Neto. Business Manager Rueda told the strike committee that they could not just drop the charges against Younger and that the fine would have to be paid because it had already gone through the International Union. Rueda also told the committee that Respondent could not pay the cost of the fine, so he asked the strike committee how much they would commit themselves to col- lecting from other members to pay for Louis Younger's fine. Neto said that various members of the committee com- mitted themselves to amounts of $20, $25. and $30 in order to pay Younger's $200 fine. G. Conclusions Counsel for the General Counsel urges, inter alia, that: "Finney expressed an opinion contrary to that of another union officer concerning an incident at a union meeting. and Finney ran for elective office against Respondent's pre- sent business manager, Hector Rueda. Retaliation for such participation in internal union affairs violates Section X(h)( I )(A) of the Act because it frustrates federal labor poli- cies and fails to reflect any legitimate union interest." With regard to article XI, section 3. of Respondent's con- stitution and bylaws. counsel tor the General Counsel ar- gues: "[T']he maintenance of this provision constitutes a continued threat to Finney's and other employees' emplo- ment and thus violates Section 8(b)( I )(A) of the Act. Whether there was a demand for Finney's discharge is im- material. A union may not lawfully threaten to do that which is unlawful. The violation is inherent in the implicit threats to Finney's employment set forth in Respondent's letter (G.C. Ex. 15) and in the continued maintenance of that provision." Among other cases which are cited in his brief, counsel for the General Counsel urges that applicable to the issues presented in this case is the Board's rationale and holding in (';rlpenters Local lUnion o. 22. United Brotherholod of ('Carpentersv od Joiners o'.A4neri'a. .4 FL CIO ( Wi/lian (ra- ziano, d /h/a Graziano C(olstruction Comprany), 195 NlRB I (1972). The foregoing is, of' course, only a partial mention of the points raised by the General Counsel. For a complete state- ment of his position and the cases on which he relies, see the brief filed by the counsel l'or the General Counsel. The attorney for Respondent argues that the Board's de- cision in Carpentcrs Local L'nion No. 22. supra. is distin- guishable from the present case, but in any event, "Respon- dent contends that Carpenters Local 22 was rongfully decided and has not been subsequently followed by the Board. Indeed, there appears to be no subsequent reported Board case in which it has lollowed precisely the doctrine enunciated in the Local 22 case." The attorney for Respondent further urges: "The record is abundantly clear that Mr. Finney was charged with dis- turbing the meeting by interfering with another officer in the performance of his constitutional duties. Mr. Finney's interference was partially the cause of the subsequent vio- lence which erupted. It is therefore clear on this record that the Union was completely justified in imposing internal dis- cipline upon Mr. Finney. To some the discipline may seem harsh. but to others it reflects the Union's own concern in maintaining a spirit of a democratic Union meeting." In Respondent's view, the Board does not have jurisdic- tion over the matters raised by the General Counsel's com- plaint in this proceeding. The attorney for Respondent ar- gues. inter alia:. "It is, however, clear that the l.abor- Management Reporting and Disclosure Act of 1959 was not enacted for the purpose of permitting the National l.a- bor Relations Board to enforce its provisions. In this case the allegation is that the internal union discipline was im- posed in retaliation for either Mr. Finney running as Busi- ness Manager in the late 60's, or because of his remark in accusing Mr. Rueda of being a liar. In either case. there is an assertion of a violation of 29 USC §411 by the Union." For a more complete statement of' Respondent's argu- ment and the cases which it relies upon, see the brief filed by the attorney for Respondent. In Carpenters Local Union No. 22, t95 NLRB at 1-2, the Board held as follows: It is by now well settled that although Section 8(b)(l)(A) "leaves a union free to enforce a properly I)('ISI()NS ()01 NA I I()NAI I A(OR RI A I IO)NS I(OARI) adopled lle which reflCls i legilllnllle t,iton inltrest"'' ind "iilpairs n policy ( ongress has iteddcd l the ;ahor laws."' it tdoes nol Ipermil enlfrcmlcell. hs line or expulsion. of a rule which invadles or Irustratecs all (overriding policy of the labor laws.... "' Cases decided to date. holding that union enilrcenenn t of a rule h fining a member violates Section 8(b)( I )( A of the Act. have involved the protection o1 iport;lant plicies em- hodied in the Act itself, such ats the righl o lemploy ees to gain access to tile processes ol the Board to seek to remedy union conduct violative o' the Act. or the right of employees who sought i(t ohserve contractual responsihilities to protection against union eirlts to punish them for refusing to breach such responsibil- ities.' The policies which the Union's conduct here seeks to frustrate are embodied in the Labor-Manage- ment Reporting and Disclosure Act of 1959. rather than specifically in the National abor Relations Act. This difference does not, however. impel a differcnt conclusion. As the above-quoted language from the Supreme Court's decision in Sco/icld implies. the Board is charged with considering the full panoply of congres- sional lhbor policies in determining the legality )of a union fine2 IHere the Union, in the guise of' enforcing internal discipline, has sought to deprive its members of the right. as guaranteed by the l.abor-Management Reporting and Disclosure Act. to participate ully and freely in the internal affairs of Itheirl own union. A fine for that purpose not only in our opinion alils to reflect a legitimate union interest but rather in fact impairs a policy that Congress has imbedded in the labor laws. For these reasons. we conclude that the Respondent Union's conduct in fining Shanley because of his intra- union activity violated Section 8(h)( )(A) of the Act. I Sco*ield v. N. R.B.. 394 lU.S 423. 430. 2 Id at 429. N. L. RB. v. Induorial Union ol Marine & Shiphidtng WortA ir, iO Amteroa. AFI. ('10 391 U.S. 418. See alus l.,nal I , Inirtioril,mi Inion of Operaling Engineerv. AFt (1O. 148 Nl RR 679. I.local 12419. Inrernainnalul Uni,, ol riricr 30.l Untled Mine WorkA ers oa America (Natioinal (;rinding Wheel (ompotartl. In ). 176 N. R B No. 89. Tenamer Lo(al 66.i. a/ InternaitoaIl r,herhroofd ,c Teancr ers, etr. ('ontinental Oil (ompaanrJ. 193 NLRB No. 84. ( '1: Souhern Steam thip (ompanun v. V R B.. 316 U.S. 31; compare I.,aul 1976. Utied Broherhl d / ('arpeniern. el. Sand Duvor d Pwo ( o./ v. N L. .B. 357 lI.S. 93 We are not unmindlul o the act that the Department of Lalbr. and not this Agency. is directly charged with the administration of the requirements of the Landrum-Griffin Act. We traditlionall) re- spect this differentiation. See. e.g.. Desnrr Palace. In,. /hll (soar' Palac. 194 Nl.RB 140. n. 5. In this area. however. as we understand it. we have been specilfically charged by the Supreme (ourt with the duty of determining the overall legitimacy of union interests. and must there- lore take into account ull Federal policies and not limit urselves t, those emhboied in our own Act. Administrative Law Judge William J. Pannier III applied the Board's decision in Carpenter. L.ocal Union No. 22, among other Board precedents and court precedents. in his decision in International Union tofOperating Fngineclr. Lo.ca 4(X). A FL (10 (Hilde ('onstrucion (Cmnoplv). 225 NRB 596 (1976). Administrative Law Judge Pannier's findings and conclusions in that case were adopted by a majority of the Board panel. Certain members ol' the union in that case held a meeting for the purpose of reviewing the proposals iuid cutlilerp-roposals durinIg the ultll'S negotia;tions with tile emploer assciation iand cwre quesllonilg lthe wisdol m oI' the union's condluct ias their bargainillg representative. 1uor a full appreciation (of Admilnistrative I aw Judge Pan- niter's analysis in that case, see 225 N .RB at 6(X1) 606. In part, ihe stated. at 602: Nor cali Respondent raise the proviso t Section X(hb)()(A) its a shield against the exercise of the Board's authority in this ntmtter. It is. of course cor- rect. ats a general propositin. that in enacting Section 8()( I (A) "...( ongress did not propose an) limita- tions with respect t the internall regulations to aflect a member's employment status." Al/tl-('halners. sulpra. 388 U.S. at 195. However, in determining whether a rule promulgated by a labor organization is valid. "il' the rule invades or frustrates an overriding policy of the labor laws the rule mav not he enflorced. even by fine or expulsion. without violating Sec. (b)(1)." Sco- licll. ,stpra, 394 U.S. at 429. In such circumstances. the rule ceases to afiect only matters internal to the lathor organilation. Thus. a violation of' Section 8(b)(l)(A) has been foiund where a labor rganization restrains and coerces members "in the exercise oFl their privilege to question the wisdom of' their Union as their repre- sentative ." .Roada Ex pre.ss. supra. Moreover. as "the Board is charged with considering the ull pano- ply of congressional labor policies in determining the legality of' a union fine." it has tound violations of Sec- tion 8(h) IH (A) where unions have disciplined members lor exercising rights guaranteed them under the I.MRDA. (rplenlcrs Iocal UnEion 22. United Brother- hoi,td o, Calipentlers eort Joiners of',4 merica. AFL ('10 ((;raltil) (onsvlruci tIon (ompany). 195 N RB 1 2 (1972): see also Th(e B/lfi/o Nwspapcer (uild. Local 26. A,er,,ic(an Newu.spaper (;il. L CIO ('LC (Bufjllo (ourier-Expres. Iln.). 220 NLRB 79 (1975). Therelfore not only did no rule exist prohibiting Re- spondent's members from convening unofficial meet- ings. hut even had such a rule existed. Respondent's disciplinary action against the Charging Parties would violate Section 8(b)( )(A) both because it restrained and coerced them in their Section 7 right to question the wisdom of their representative and to pursue a course designed to align their representative with their position and. also, because it restrained and coerced them in the exercise of rights guaranteed them by the IMRDA. The Board distinguished its decision in Carpenters Local L,nion No. 22 when the Board was presented with the ques- tion of "determining the structural validity of trust funds under section 302(cX5)." Sheet Metal Workers' Inllerra- liotnal ,A .ocia/ion and Edlard J. (arlougIh. President (('n- Itrel Floridl Shcctmietal ('onlraltor.s .ssomciolie,. ll(.) 234 NILRB 1238 (1978). Nevertheless, while the Board distin- guished its earlier decision in Carpetlcr.s local Unnion o. 22. the Board also pointed out. "To recognize distinguish- ing flactors between the cases relied on by the Administra- live Law Judge and the instant case. however. is not to disparage the principle that at times we find it necessary to take cognizance of statutes other than the one we are charged with enforcing in order to accommodate diverse o2 I I:V I () R ()NSI RI ( I()RS I ()( Al 8 slatulors plrplses in a;1 Innller liI is intllaIIlls sipprleI\ of each." In the inst;ant c;te. Iilllne w; as relli)edl (ro I his pos- 1 lion as a mnlenher of Respondent's exccti'Ve board as well as lined. In a recenlt case. decided on August 2 1978. the Board had occasion to pass oil the questlIOn ot ~lether tilhe removal fIr)om otice by a iunion o)l' a salct'ls C)IiIlniliee chair- man violated Section 8(b)( l )(A) of the' Acl. See .S'h1ano. Ilncorporat. 2.37 NRB 1355 (1978). In that case the Board held. al 1355 56: he issue Is one of balancing the emploe cc's Sectlion 7 right to engage in internal union at;lairs against ilthe legitimac: of the union interest at stake in the particu- lar case. hus. in (arpltcrs Local ' non \¥o. 22. United Brotherhood o/( 'ar)'nter'v and Joiners ol 4m tier- icra. AI. (/0 (4 ¥llieam Graziano. il'/l I ('0ra:uolo ColLslrluction ( ompat'). 195 NI. RB I ( 1972). the union had no legitimate interest in finlling a member r op- posing the incullhent union ofticers. so the balan;nce was properly struck in favor of tile emlploee a1id the violation was found. Simil arly . in clcleral l lm-i'nt l Tral.sportiOll ('or/io(tlilt. 227 NIlRB 1695 (1977). the Board flund an 8(b)( I A) violation vhlcre the union removed the steward roml ofiice hecaLuseC he iled an unftir lahbor practice charge with the Board. I here. the union had no legitimate interest in delea ling cm- plohvee access to the Board. See. generall. Scot /lcl eI aL. v. N.L. R.B., 394 li.S. 423, 428 43() ( 190). Here, however. the Union does have a legtilimlae in- terest in placing in offices such as chairman of the safety committee those people it considers can best serve he Union and its membership. Retention of a plant safety commnittee chairman who is hostile to or in disagreement with the leadership may be undesirable or ineffective foir a host of valid reasons. I hat this may add up to union hostility toward having a dissident in such positions. and make his dismissal a reprisal. as it did here. does not alter the case. The union is legiti- matelv entitled to hostility or displeasure toward dissi- dence in such positions where teamwork, loyalt,. and cooperation are necessary to enable the union to ad- minister the contract and carry out its side of the rela- tionship with the employer. In the circumstances of this case, the Ulnion's interest outweighs the interest of Ligashesky in retaining his office and. therefore. we do not find a violation in his removal from office or in the March 8 statement to Ligashesky informing him that his removal was caused by his support for Sadlowski.4 The Union's interest in this case is limited to seeing that Ligashesky was removed from office as safety committee chairman, but does not extend to generally threatening him with reprisals for his intraunion activi- ties. Therefore. in agreement with the Administrative Law Judge, we find that Roach's June statement to Ligashesky was violative of Section 8(hH I )(A) of the Act. 'See New York (iv Taxi Drivers Union. l.oeal 30l6, AFI. <10 (Taxi Maintenance Corp.). 231 NLRB 965 (1977.j where the Board found no, 8(bXItA) violation when the union threatened to remove an employee from the position of shop chairman because she had published an article cnitical of the Union's handling of a grieslnce. Inl ;1;IIlllg te BIrd's decisioin l 1I Sh,i,oti',. It ceil t inle Illt there i, a logical diellrence hb cln ithe otlice o1 plant s.l ct mnlllllllltee chairmanl. knllch a;la in1\l'C'ed I1n .S''IIllgf, ;1alld executive hoard nlcinller. i.hlch was the of- fice }innes had held. I lie dectriptive title,, l the I t posi- tions ndlicalte that the former position I i ol ed l ithi pre- senting a union's position t I anagenlclnt. It oulld seenl to he in that context that tile factors of "lt;ini ork. v;lt. and cooperation"' uwere fournd t he ncessarl t enable the union in that case to adlllinister the contllact land carr out its relationship ith the employer. In contrast, the position of executi e board menber does not suggest that ithe mem- her woiuld he adminlistering the contract or carr ing out a union's relationship uith an emploer. Iloweser. it should he noted here. in fairitess to all parties. that ile explicit dtlies ailld responslbilities of an; cxecutlit e board menlber were not explored lt the hearing in this proceeding which coincltlded a cew d;is prior to the issne Ol the BBoard's S.iilln'i ldecision. Nevertheless, is indicated it Iqppear t} he logical to drau ;i distinction hetweenl the t, diltierent positionIs. With the Board precedenlt and court prcedenlts noled or relerred to a;ho e in mind. I concluide that Respondent has tiolated Sectiton 8(h( I)( S) of1 the Act h: (11 Since oin or abhout July i(). 1977. maintaining article XI, section 3. of Its constittion anld hb laws alid (2) on or about No\ emhber 2 1I. 1977. tining Iinnev anid expelling Finnie,. oim the offtlice of' executive board member. lust s the Board found in (ar- feiclr.s l.'ooiU! loln No. 22. s l)ra. th1at the respolldent union therein uilized intraiion charges 'ais a prctex to disguise the true nlotilition for the I nion's reprisal." I con- clude that Respondent in this prceeding utilized the ents which occurred at the union meeting on Septenier 17. 1976. ts at pretext tor fillt intraunion charges against F:in- ney, which ultilillcles led to his being iined and expelled f'rom unlitn otliec I conclude that a preponderance o' the evidence intrtduced at the hearing reveals thiat the trute mo- tisaltion for the actions talken against FIinney uere based upon Fiine's iitraunion acie ities. his past runining or union office in opposIition to the person who is the incum- bent business manager. and the animosity of long duration regarding iiraunion matters between Finnes and Business Manager Rueda. The unctntradicted and credited testi- mony of Finney is persuasive and convincing ol' the torego- ing. It is clear from General Counsel Exhibit 11 that the intraunion charges against Finney were initiated bh Busi- ness Manager Reuda. hese charges set nl motion a series of events which led to Finney's being ined and expelled trom his office of executive board member. While it is clear from General Counsel xhibit II that a majorit oft Re- spondent's executive officers telt they were disqualified from acting on the charges and that the International Union was requested to appoint a hearing officer to hear the charges. I conclude that Respondent cannot avoid its responsibility fir the ultimate actions taiken against Finney by asserting that the International !nion took the action rather than the Local Union. In this connection. it should he noted that the hearing panel report regardinig the trial of Finnes. which was introduced into eidence as eneral (Counsel Exhibit 17. indicates on its face that the tour hear- (63 I)t-(ISIONS ()1: NAII()NAI. ABOR Rl.AIIONS BOARI) ing panel members were rom Respondent Local Iinion. although the hearing officer was not. More significantly. however, the counsel for the General Counsel points to the letter dated November 21. 1977, from Business Manager Rueda to Finney. That document has been set forth previously in pertinent part and was intro- duced into evidence as General Counsel Exhibit 15. That letter from Respondent brings Respondent's actions against Finney within the Section 0(hb) period of the filing of the unfair labor practice charge by Finne, and it is the culmi- nation of Respondent's action which Respondent had ear- lier initiated against inneN. As indicated above. I find, in accordance with the Board's decision in (Carpener.s Local Union No. 22, .upra, that Respondent's charges against Fin- ney were made on a pretextual basis "to disguise the true motivation for the Union's reprisal." I have considered the fact that Respondent has been ac- cepting the union dues tendered by Finney after his receipt of Respondent's letter dated November 21. 1977, and that the Respondent has not taken any action at this time affect- ing Finney's employment with the San Francisco Elevator Co. Nevertheless, counsel for the General Counsel persua- sively points out that the General Counsel is not contending that there has been a violation of Section 8(b)(2), but. in- stead, the General Counsel is only alleging a iolation of Section 8(b)(1)(A). Thus, the fact that the Respondent has made no attempt to affect Finney's employment status would be more relevant to a contention that Respondent had violated Section 8(b)(2) of the Act. While there is no evidence that Respondent has imple- mented the literal provisions of article XI, section 3, of its constitution and bylaws, Business Manager Rueda specifi- cally referred in his letter to Finney to those provisions that all fines shall stand and be payable before dues, and at that time Finney's next union dues were due and payable on December 31. 1977. Not to be overlooked is the fact that there is a union-security clause in the current collective- bargaining agreement between Respondent and Finney's employer, San Francisco Elevator Co. Considering the fore- going, I conclude that the maintenance of article XI, sec- tion 3, in Respondent's constitution and bylaws since on or about July 10, 1977, has restrained or coerced employees, including Finney, in the exercise of the rights guaranteed them in Section 7, and, therefore, Respondent's mainte- nance of such provisions has violated Section 8(b)( I)4A) of the Act. In view of the foregoing, I find that it is unnecessary to reach an additional theory urged by the General Counsel that Respondent had breached its duty of fair representa- tion with regard to its actions against Finney. See Miranda Fuel CompanyL. 140 NLRB 181 (1962). Furthermore, consistent with the foregoing conclusions, I shall hereby deny Respondent's motion to dismiss the Gen- eral Counsel's complaint, and I shall also deny Respon- dent's request that it be awarded reasonable attorney fees incurred as a result of the General Counsel's complaint alle- gations. CON(CIt.lSIONS OF LAW 1. San Francisco Elevator Co. is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- Ing of Section 2(5) of the Act. 3. Respondent has restrained and coerced employees and members in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in unfair labor prac- tices within the meaning of Section 8(b)(l)(A) of the Act: (I) By maintaining since on or about July 10, 1977. the portion of article XI, section 3. of its constitution and by- laws which provides, "All fines imposed or assessments lev- ied shall be charged by the Secretary-Treasurer to the mem- ber and shall stand and be payable before dues." (2) On or about November 21. 1977, by fining James Finney and expelling him from the office of executive board member and prohibiting him from holding office in the Union for I year because of Finney's past intraunion activi- ties and his opposition to Respondent's business manager. 4. The unfair labor practices set forth above affect com- merce within the meaning of Section 2(6) and (7) of' the Act. TiF RIMIrI)Y Since I have found that Respondent has engaged in un- fair labor practices within the meaning of Section 8(b)(1)(A) of the Act, I shall recommend to the Board that Respondent be ordered to cease and desist from engaging in those unfair labor practices. I shall also recommend to the Board that Respondent take certain affirmative action in order to effectuate the policies of the Act. Such action will include reimbursement of Finney for his loss of money which Finney would have been paid by Respondent for attending executive board meetings, but for Respondent's removal of Finney from his position as executive board member. Finney is entitled to appropriate interest on his loss of money attributable to the Respondent's unfair labor practices in accordance with the Board's decisions in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). and Ilorida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact and conclusions of law and the entire record in this proceeding and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER' Respondent. International Union of Elevator Construc- tors Local Union No. 8, AFL-CIO. San Francisco, Califor- nia, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining and coercing employees and members in the exercise of rights guaranteed in Section 7 of the Act: ( I) By maintaining the portion of article XI, section 3, of its constitution and bylaws which provides, "All fines im- posed or assessments levied shall be charged by the Secre- In the event no exceptions are filed as provided by Sec. 10246 oi the Board's Rules and Regulations. the findings. conclusions and recommended Order herein shall. as provided in Sec. 102.48 of the Board's Rules and Regulations, be adopted by the Board and shall become its findings, conclu- sions, and Order, and all objections thereto shall be deemed waived for all purposes 64 I [ MII-t)R ()ONS1Rt ('I)RS AI tary-Tlieatsurer to the memhter and shall sland md e ipa - ahle hefore dues. (2) B fining lames Finne, and e\pelling him rom the office of exectilive hoard menmber and prohibillmeg hl I ronm holding office in the Inion or I ear hcause of line 's past intraunion activities anlld his opposilionll to espon- dent's business manager (h) In ay like or related manner restrainllnlg or coercing members in the exercise of the rights guara;nteed them n Section 7 of' the Act. 2. Take the tfl'lowing aftirnimative action. hich is deemed necessars in order to e'ectlate the policies of' the Act: (a) C'ease maintaining and rescind the porion of article Xl. section 3, of' its constitution and bhs la's which provides. "All fines imposed or assessments levied shall he chiarged bh the Secretary-reasurer to the meimber and shall stalid and be payable beftore dues." (b) Revoke and rescind ( I ) I he tille lev ied against lJames Finney. (2) the expulsion of Finne fronl the office of' ex- ecutive board member, and (3) the prohibition against in- ney's holding office in the Union for I vear and completely expunge from its records all reference to the foregoing. (c) Reimburse James Finney tfor his loss of miones s, hich Finne) would have been paid by Respondent tor alltrdilg executive hoard meetings, but tor the Respondent's removal of Finney from his position as executise hoard member. with appropriate interest on such mones as set tforth in the section entitled "The Remcds." (d) Preserve and, upon request. make available to agents of the Board tfor examination and copying the records of the dates of the meetings of' he Respondent's eecutise bh(;lrd. the amolllun of the pillelits mlad;ie to eecutive hboald Illembers, and other records nlecessar, to compute tile aiOtll u11t Of1 IL nbtIIrseTlln1lt to ilillne\ due linder the terms of i is ()rdter. (el Postl a its San IFranlcisco. C(alifornia. offtices and Illeeting places for memlbers copies o' the atiltched notice malrked ' \ppIendix A. ." lie Regional Director tor Region 20 ill pros ide copies of tile notice to Respondent. Al'ter Respondent's representatise has signed those copies. Re- spondent shall post tile notices imnlediatels after receicing them. Respondent shall mnaintain such notices or period Ofl 6() cnsecutise dai!s after the have been posted ill ton- spictrous plaices including all of the places hcre Respon- lellt ctslo ,lllll posts notices to its members. Respondent sh;ll also take re;sonable steps to insure thlat the notices are not altered. defaced, or covered bh ;an other matllerial dur- Ing Ihe postlig period (t Furnish lo the Regional )lirector or Region 2(1 signed copies of the noltlce or piosting hb Saln rancisco lFlealtor ('o.. it that elployer is willing to dii so At all t the locations where notices to that employer's ellploees are customarily posted. (g) WVithin 20 days fron the date of this Order. rite a letter to the Regional l)irector for Region 2() and tell her what the Respondent has done to complys ith this Order. :In he \cnr that Ihi, ()rder is enlorced hb Judgmcnl ol I triled States Court 1 A '5ppci. Ihe uord, In the notlce readlilg "P-ted bx ()rderl I the N.tilUl.i I hbtl Relilllont Board" 'h.all reiad "'' sled Ptlrstl.llt i . Jutdgment 1 the nitedl Sil.e (our! f ppeals Entircing in Order the Ntnnial I ahor Relu.in. Boaird- 6,