United Steelworkers of America, Local No. 4028

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon these facts, we find insufficient basis for concluding that the Employer's action in holding group meetings constituted an isolation of a few from among the many at a locus of managerial authority in order to create an aura of special treatment directed to individ- uals, as distinguished from employees as a whole, so as to bring their conduct within the prohibition of the General Shoe doctrine. There- fore, contrary to the Regional Director, we hereby overrule this objection.' Accordingly, as the objections have been overruled, and as the six challenges which have been overruled pursuant to the Regional Director's Supplemental Decision, as modified herein, constitute a number sufficient to affect the election results, we shall direct the Regional Director to open and count such challenged ballots and to proceed further in accord with the Rules and Regulations. The case is hereby remanded to the Regional Director. DIRECTION [The Board directed that the Regional Director for Region 10 shall, within 10 days from the date of this Decision, open and count the challenged ballots of David E. Mynatt, Delores Coram, Carol Weaver, Lawrence L. Simpson, John H. Waggoner, and Raymond S. Mayes, and serve upon the parties a revised tally of ballots. In the event that the revised tally of ballots shows that the results are determinative, the Regional Director shall issue the appropriate certification. In the event that the revised tally of ballots shows that no choice received a majority of valid votes cast, the Regional Director shall conduct a runoff election in accordance with the Board's Rules and Regulations.] 9 Assuming, without deciding, that the Employer's attorney made the remarks attributed to him concerning the plant cafeteria, we do not view such remarks as having sufficient impact upon the employees' freedom of choice to warrant setting aside the election. United Steelworkers of America, Local No. 4028, AFL-CIO (Pittsburgh-Des Moines Steel Company ) and Richard C. Price. Case No. ?O-CB-1231. August 25,1965 DECISION AND ORDER Upon charges duly filed by Richard C. Price, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 20, on November 5, 1964, issued a complaint against the Respondent, United Steelworkers of America, Local No. 4028, AFL-CIO. Copies of the charge, the complaint, and notice 154 NLRB No. 54. UNITED STEELWORKERS OF AMERICA, LOCAL NO. 4028 693 of hearing before a Trial Examiner were duly served upon the Respondent and the Charging Party. In substance, the complaint alleged that the Respondent violated Section 8(b) (1) (A) of the National Labor Relations Act, as amended, by fining the Charging Party and suspending him from membership in the Respondent because the Charging Party had filed petitions with the National Labor Relations Board "pertaining to the Respondent's representa- tion" of a unit of employees of the Pittsburgh-Des Moines Steel Company. The Respondent filed its answer on November 19, 1964, denying the commission of any unfair labor practice. It admits the jurisdic- tional allegations of the complaint, and that it took certain action, including the suspension and fine of the Charging Party, but alleges that such action was taken pursuant to the constitution of the United Steelworkers of America, hereinafter referred to as the Steelworkers. The Respondent further alleges as a defense that the Charging Party had failed to exhaust his administrative remedies under its constitu- tion. On December 18, 1964, the Respondent amended its answer and alleged that on November 23, 1964, a committee of the Steelworkers acting under the provisions of its constitution withdrew the fine im- posed on the Charging Party. On January 26, 1965, all parties to this proceeding entered into a stipulation of facts, and on the same date moved jointly to transfer this proceeding on stipulated record directly to the Board for find- ings of fact, conclusions of law, and a Decision and Order. The parties waived their rights to a hearing before a Trial Examiner and to the issuance of a Trial Examiner's Decision. The parties further agreed that the stipulation of facts and the exhibits attached thereto constituted the entire record in the case, and that no oral testimony is necessary or desired by the parties. By an order dated February 8, 1965, the Board approved the stipulation and ordered the proceed- ing transferred to, and continued before, the Board for the purpose of making findings of fact and conclusions of law and for the issu- ance of a Decision and Order. The Board further directed that briefs be submitted not later than February 24, 1965. Thereafter the Respondent and the General Counsel filed briefs. The Board has considered the briefs and the entire record in this case, and based thereon makes the following : FINDINGS OF FACT I. JURISDICTION The Employer, Pittsburgh-Des Moines Steel Company, is a Penn- sylvania corporation engaged in the manufacture and distribution of 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fabricated steel products, with its principal office located at Pitts- burgh, Pennsylvania, and facilities in various States, including the plant involved herein, located at Santa Clara, California. The Em- ployer, in the course and conduct of its business, annually purchases and receives goods and materials directly from suppliers outside the State of California valued in excess of $50,000 and annually sells goods and materials directly to customers outside the State of Cali- fornia valued in excess of $50,000. The parties stipulated, and we find, that Pittsburgh-Des Moines Steel Company, during all times material herein, has been, and is now, an employer within the meaning of Section 2(2) of the Act, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED The Respondent, United Steelworkers of America, Local No. 4028, AFL-CIO, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Employer and,the Steelworkers, with which the Respondent is affiliated, have been parties to a number of collective-bargaining agreements covering employees at the Employer's Santa Clara, Cali- fornia, plant. One such contract entered in+o by the Employer and the Steelworkers on behalf of the Respondent was effective from September- 1, 1962, to September 1, 1964, and contained a lawful union-security clause.' - The Charging Party, Richard C. Price, has been an employee of the Employer since 1951, and a dues paying member of the Respond- ent from 1951 until June 10, 1964.2 Price was at all relevant times subject to the union-security provision of the 1962 contract between the Employer and the Steelworkers. - On April 15, 1964, Price filed a petition with the Regional Director for Region 20 (Case No. 20-UD-60) seeking an election to withdraw authority to enter into a union-shop agreement from the Steelworkers. Thereafter, as Price actually had intended to Sila a 'The clause provided "All eligible employees who after September 1, 1962, became members of the Union and all employees hired after that date , upon completion of their probationary period ( thirty ( 30) days), as a condition of continued employment shall pay initiation fees and Union dues until September 1, 1964. . . . 2 There was , however, a 2-year period not here material , during which Price served in the Army. - UNITED STEELWORKERS OF AMERICA, LOCAL NO. 4028 695 decertification petition, he submitted a request to withdraw the petition in Case No. 20-UD-60. This request was approved by the Regional Director on April 24, 1964, and on June 3, 1964, Price filed with the Regional Director a petition (Case No. 20-RD-384) seeking to decertify the Steelworkers as the bargaining representative of the employees of the Employer. On May 13, 1964, three employees of the Employer, who were also members of the Respondent, filed charges with the Respondent alleging that Price, by filing the petition in Case No. 20-UD-60, had violated article XII, section 1(d), of the Steelworkers' International constitution.' Price appeared before the Respondent's trial committee on June 1, 1964, and was found guilty of violating the Steelworkers' constitu- tion as charged. The trial committee recommended to the general membership of the Respondent that Price be (1) suspended from membership and precluded from attending meetings for 5 years; (2) fined $500 plus costs of the hearing; and (3) suspended from mem- bership completely pending payment of the fine. On June 3, 1964, the findings and recommendations of the trial committee were approved and accepted by the Respondent's membership. There- after Price appealed the action taken against him to the Steel- workers International executive board, which on November 23, 1964, withdrew the fine, but left in full force and effect Price's suspension from membership. Although under the Steelworkers' constitution Price was entitled to appeal the decision of the executive board to the regular International convention, he took no such action and the time to file the appeal has expired. The General Counsel, relying particularly on the Board's Decision in Local 138, International Union of Operating £ngin6ers, AFL- CIO (Charles S. Slcura), 148 NLRB 679, contends that, by taking the above action against Price because he filed petitions with the Board, the Respondent restrained and coerced him in the exercise of the rights guaranteed by Section 7, in violation of Section 8(b) (1) (A) of the Act. In Skura; the Board held that a union violated Section 8(b) (1) (A) by imposing a fine on an employee for filing unfair labor practice charges with the Board against the union BArticle XII, section 1 ( d), of the constitution provides: Any member may be penalized for committing any one or more of the following offenses: . . . ( d) advocating or attempting to bring about the withdrawal from the International Union of any Local Union or any member or group of mem- bers ; . Article XII, section 2 , of the constitution provides: Any member convicted of any one or more of the above offenses may be fined, sus- pended, or expelled. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without first exhausting the available internal union remedies. The Board there concluded that, in view of the overriding public interest involved in preserving the right of an employee to file unfair labor practice charges, the proviso to Section 8(b) (1) (A) which permits a union "to prescribe its own rules with respect to the acquisition or retention of membership" had no application in a situation where a union attempted to regulate the exercise of this right by fining a member because he had filed a charge. However, more recently, in Tawas Tube Products, Inc., 151 NLRB 46, the Board took note of the fundamental distinction between union disciplinary action aimed at the filing of charges seeking redress for asserted infringement of statutory rights, as in Skura, and union disciplinary action aimed at defending itself from conduct which seeks to undermine its very existence. In the latter circumstances present in the Tawas Tube case, the Board considered a disciplinary expulsion which did not affect job interests as permissible action which did not constitute in- terference with the election process; it noted in that connection that the decision in Skura represented an exception to the general princi- ple that union disciplinary action is not covered by Section 8(b) (1) (A). Consequently, the Board considered in the Tawas Tube case that the Skura holding was inapplicable and that an elec- tion should not be set aside because the union expelled a member during the election campaign for filing a petition seeking the decer- tification of the union and actively supporting the decertification cause. We believe that the reasoning in Tawas Tube is equally applicable in the instant case.4 Accordingly, we find that by the above conduct the Respondent did not violate Section 8(b) (1) (A) of the Act. 'CONCLUSIONS OF LAW 1. Pittsburgh-Des Moines Steel Company is engaged in commerce within the meaning of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not committed unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. [The Board dismissed the complaint.] 'Although the Respondent also imposed a fine on Price , this fine was, as noted, later wtihdrawn by the International executive board following an appeal by Price from the action of the Respondent. As Price was therefore never obligated to pay a fine, we see no warrant for concluding that the initial levy of the fine ever became an operative factor in this case.