Cannery Workers Union (Van Camp Sea Food)

CANNERY WORKERS UNION (VAN CAMP SEA FOOD) 843 Cannery Workers Union of the Pacific, affiliated with the Sea- farers International Union of North America, AFL-CIO (Van Camp Sea Food Co., Inc.) and Thomas E. Ivey. Case 21-CB- 1942. June 01, 1966 DECISION AND ORDER Upon charges duly filed by Thomas E. Ivey, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint against Respondent dated Novem- ber 13, 1964. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served upon 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 expelling the Charging Party from membership because he had filed unfair labor practice charges with the Board. On November 18, 1964, Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. On January 29, 1965, all parties to this proceeding moved to trans- fer the proceeding directly to the Board. The parties agreed that the charge, complaint and notice of hearing, answer, Respondent's con- stitution and by-laws, the stipulation of facts, and the charges and dismissal letter in Cases 21-CA-4759 and 21-CB-1854, constituted the entire record in the case and that no oral testimony was necessary ,or desired by any of the parties. The parties further stipulated they waived a hearing before a Trial Examiner and the issuance of a Trial Examiner's Decision and Recommended Order, and desired to submit this case for findings of fact, conclusions of law, and order, directly to the Board. On February 8, 1965, the Board granted the parties' request to transfer the case to the Board and to file briefs. Thereafter, the General Counsel, the Respondent, and the Seafarers International Union of North America, AFL-CIO, amicus curiae, filed briefs.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. 1 The requests of Respondent and amicus curiae for oral argument are denied, as the record herein , including the briefs , adequately presents the issues and positions of the parties 159 NLRB No. 47. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the parties' stipulation and upon the entire record in this case, the Board makes the following : FINDINGS OF FACT I. JURISDICTION Respondent Union represents in collective bargaining employees of Van Camp Sea Food Company, Inc. Van Camp is engaged in southern California in the business of packing fish and allied prod- ucts. In the course and conduct of its business operations, Van Camp annually ships products valued in excess of $50,000 directly to cus- tomers located outside the State of California. We find that Van Camp is, and at all times material herein has been, an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is, 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 PRACTICE Thomas Ivey, the Charging Party, joined Respondent Union in 1950. On or about April 4, 1962, while a member of the Union, Ivey filed unfair labor practice charges against it alleging a violation of Section 8(b) (3) of the Act, and against Van Camp and five other employers in the southern California packing industry alleging viola- tions of Section 8(a) (1), (2), and (5) of the Act. In essence, the charges attacked a mutual consent modification, more than 60 days prior to the termination date, of the collective-bargaining agreement then in effect between Respondent and the employers, allegedly in violation of Section 8(d) (1) of the Act. The charges were dis- missed by the Regional Director for Region 21 on April 23, 1962, and no appeal was taken. On June 12, 1962, Ivey was charged by members of Respondent with violating certain provisions of Respondent's constitution and by-laws by filing the above-mentioned unfair labor practice charges without exhausting the internal remedies provided ' by Respondent's constitution, by interfering with and disrupting Respondent's estab- lished collective-bargaining relationship with the employers by filing the charges, and by making false, defamatory, and fraudulent state- ments concerning Respondent and its collective-bargaining activity. Thereafter, notice of the charges and a hearing was served upon Ivey. Ivey failed to appear at the scheduled hearing and was tried in absentia, in accordance with Respondent's constitution. Respondent's trial committee found Ivey guilty of all charges except the last, and CANNERY WORKERS UNION (VAN CAMP SEA FOOD) 845 recommended his expulsion. At a subsequent meeting of Respond- ent's membership, the trial committee's recommendations were accepted, and Ivey was expelled. No fine was levied against Ivey, and he is and has been at all material times employed by Van Camp. The General Counsel contends that this case is controlled by Local 138, International Union of Operating Engineers, AFL-CIO, (Charles S. Skura), 148 NLRB 679, in which the Board held that the respondent union there had violated Section 8(b) (1) (A) by fining Skura because he had failed to exhaust his internal union remedies prior to filing unfair labor practice charges against the union with the Board. Respondent and amicus curiae contend that the Skura case is not controlling on the facts herein and that Respondent did not violate the Act by expelling Ivey for filing charges with the Board. We find, for the reasons stated below and those set forth in Skura, that Respondent violated Section 8(b) (1) (A) by expelling Ivey from membership for filing unfair labor practice charges with the Board. In Skura, a unanimous Board held : Just as an employer violates the Act by resorting to restraint and coercion to restrict the right of an employee to file a charge, so too, does a labor organization infringe the rights of employ- ees under this law by resorting to unlawful means to prevent or restrict employees from filing charges. As such conduct by an employer violates Section 8(a) (1), so does a labor organization's use of restraint or coercion violate Section 8(b) (1) (A).2 The Board then stated that there could be "no doubt that a fine is by nature coercive, ...",3 citing Peerless Tool and Engineering Co., 111 NLRB 853, 857-858. Similarly, we think there can be no doubt that expulsion from union membership is "by nature" coercive. First, the Board's lan- guage in Peerless Tool, supra, relied upon to support the finding of coercion in Skura, described both fines and expulsion as coercive.4 Moreover, the Board already has indicated that a finding of coercion in this line of cases will not be limited to those instances where union members are fined. See, for example, Local 1367, International Longshoremen's Association, AFL-CIO (Galveston Maritime Asso- ciation), 148 NLRB 897, where the imposition of trusteeship by a 2 Skura, supra, 681-682. 3Id. at 682. * In that case, the Board then noted that such actions were generally permissible under the proviso to Section 8(b) (1) (A) although they were in fact coercive. The effect of, the proviso on the issues presented herein is discussed separately , infra. , See also in, this regard International Typographical Union, 86 NLRB 951, 956-957, affirmed as modified sub nom. American Newspaper Publishers Association v. N.L.R.B., 193 F.2d 782, 800-801 (C.A. 7). 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD district union over a constituent local in retaliation for the local's charges against the district was found to constitute unlawful coercion under Section 8(b) (1) (A). Finally, the coercive nature of expul- sion from membership was well summarized in the California case of Mitchell v. International Association of Machinists,5 in which it passage of a State "right-to-work" law which the union opposed. With respect to the coercive effects of expulsion, the court stated as follows : [I]t cannot be assumed that the only value in membership is job retention. Even though a member may keep his job when expelled, his expulsion causes him to suffer a detriment the appre- hension of which would no doubt have a coercive effect on the membership. First of all, it is not clear what his rights would be if he quit his job to seek another, at least in intrastate com- merce. Also, he has a financial stake in the strike fund, perhaps a pension fund, and other funds to which he has contributed. Further, he is denied the right to participate in his union "gov- ernment." Although the Union is required by the law to repre- sent him impartially, ... he has no voice in how that representa- tion is to be conducted. In addition, there are frequently social ramifications for a non-member working among members that cannot be overlooked. We find, therefore, that Ivey's expulsion constituted unlawful coercion under Section 8(b) (1) (A), unless protected by the proviso thereto.' We are unable to conclude that a reasonable reading of the proviso to Section 8(b) (1) (A) permits a valid distinction to be drawn between fines and expulsions meted out by a union to punish one of its members for filing charges with the Board. In Local P83, UAW (Wisconsin Motor Corporation), 145 NLRB 1097, 1101-02, the Board specifically rejected a distinction between those two modes of union discipline suggested by the General Counsel and Member Leedom's dissent therein, in terms of the scope of the proviso. Thereafter, in Skura, the Board unanimously distinguished Wisconsin Motor in view of the public interest in protecting access to the Board's proc- esses. What was said there is worthy of repetition, as those prin- ciples are equally applicable here : It is true that in Wisconsin Motor the Board held that the legislative history of Section 8(b) (1) (A) evidenced a congres- 5Mstohell v. International Association of Machinists, 16 Cal. Rept . 813, 815 ( California District Court of Appeal, 2d District , 1961). e The proviso to Section 8(b) (1) (A) states as follows: Provided, 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 me•nbership therein; . CANNERY WORKERS UNION (VAN CAMP SEA FOOD) 847 sional intent not to extend the protective provisions of Section 8(b) (1) (A) to the imposition of a fine to compel compliance with internal union rules and policies and that the proviso to Section 8(b) (1) (A) immunizes a union from Board remedial action with respect to the enforcement of internal union rules by means other than= job discrimination. There, unlike the instant case, the Board was dealing with a union rule which in the circumstances of that case did.not run counter to other recog- nized public policies and, therefore, was not beyond the com- petence of the union to adopt and enforce. In that case, the Board was of the opinion that the Act did not vest it with the authority to police the internal discipline of the union short of job discrimination. By the rule under consideration here, how- ever, Respondent attempted to regulate its members' access to the Board's processes. Considering the overriding public inter- est involved; it is our opinion that no private organization should be permitted to prevent or regulate access to the Board, and a rule requiring exhaustion of internal union remedies by means of which a union seeks to prevent or limit access to the Board's processes is beyond the lawful competency of a labor organization to enforce by coercive means.7 It would seem self-evident that, if fines and expulsions are to receive equal treatment under the proviso, as held in Wisconsin Motor, and if a union fine imposed "to prevent or limit access to the Board's processes" is not protected by the proviso in view of the "overriding public interest involved," as held in Skura, expulsion from union membership which is imposed to prevent or limit such access similarly falls outside the protection of the proviso. Our conclusion is fortified by the recent decision of the United States Court of Appeals for the District of Columbia Circuit in H. B. Roberts v. N.L.R.B., 330 F.2d 427, upholding the principles anounced in Skura and the companion case of Wellman-Lord Engi- neering, Inc., 148 NLRB 674. The court, accepting the Board's critical distinction between strictly "internal union affairs" and union action designed to restrict access to the Board's processes, stated as follows (350 F.2d at 429) : In other words, by filing a charge with the Board in this case Martin stepped beyond the internal affairs of the Union and into the public domain. The Act, in enabling the Board to inhibit the Union from penalizing him for doing so keeps open the channels created by Congress for the administration of a public law and policy. This is not, we agree with the Board, an inroad 7 Skura, supra, 682 S48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon those internal union affairs left by the Act and its policy to be administered solely by the Union.-' It cannot be denied that, by filing his charges, Ivey "stepped beyond the internal affairs of the Union and into the public domain" just as did Martin in the Roberts case. And, when Respondent expelled him for doing so, it lost its immunity under the proviso just as (lid the union in Roberts, for the proviso was never envisioned as extending to and shielding union conduct designed to frustrate the policies of an Act of Congress by obstructing the operations of the Federal agency entrusted by Congress with effectuation of those policies. Finally, although the Supreme Court has yet to pass directly upon the scope of the Board's authority to protect access to its processes against union restraint or coercion, the policy statement of Mr. Jus- tice Jackson, dissenting in Trailmobile Company v. Whirls, 331 U.S. 40, 69, seems pertinent : The courts cannot tolerate the expulsion of a member of a union, depriving him of his right to earn a living merely because he invokes the process of the courts to protect his rights-even if he does so mistakingly. The Labor Relations Act makes it an unfair labor practice by an employer "To discharge or otherwise discriminate against an employee because he has filed charges or given testimony" in proceedings under it. .. . Neither may a union use its own power over its members to by-pass the courts. [Citations omitted.] Although the Court decided the case, under another statute, the majority opinion indicated agreement with the above statement of Mr. Justice Jackson: "... if respondent has been unlawfully expelled, suspended or otherwise dealt with by the imion for asserting his legal rights, the law has provided remedies for such injuries...." 331 U.S. at 50. It would appear that the above views are equally applicable to the National Labor Relations Act, for administrative agencies, too, have the necessary authority to protect the integrity of their own processes. Respondent challenges the validity of the holding in Skura, supra, but urges alternatively that its action is lawful under the doctrine of Tawas Tube Products, Inc., 151 NLRB 46. In Tawas Tube, the Board held that a decertification petition filed by union members was a matter of "legitimate union concern," that the filing of the petition constituted an attack upon "the very existence of the union as an institution," and that the union was acting in a "defensive" manner 8 See also in this regard , Ryan v. International Brotherhood of Electrical Workers, 241 F. Supp. 489 (C.A. 7). CANNERY WORKERS UNION (VAN CAMP SEA FOOD) 849 in disciplining the members for filing the petition. In those circum- stances, the Board held that the policy grounds underlying the Skura decision were inapplicable and that a union could lawfully expel a member for filing such petition.° The arguments of Respondent misconceive essential differences in cases arising under Sections 8 and 9, respectively, of the Act, and the Board's functions with respect thereto. Where a charge has been filed asserting infringement of statutory rights in violation of Section 8 of the Act, such charge relates to events which have already occurred and sets it motion the Board's investigatory machinery to deter- mine whether (1) the charge is meritorious and warrants formal proceedings, including an adversary hearing in which the issues are fully litigated, with the matter ultimately adjudicated by the Board on the basis of the record developed at the hearing, or (2) the charge lacks merit and should be dismissed. In either case, the resolution of the matter proceeds from an objective appraisal of fixed events pre- cedmg the filing of the charge, and the determination is made by a public agency, the Board, or, on appeal, the courts. At no stage of the proccednng is there occasion for influencing or persuading employees to suppoi t a particular disposition of the matter. Neither their subjective views concerning the events involved in the charge nor their solidarity with their fellow union members can have any legitimate effect on the outcome. The Board here is concerned, not with their views, choices, or mutual support, but with the vindication of the public interest in securing obedience to the statute. There is, therefore, no justification for permitting the public policy of the Act to he circumvented through the imposition of disciplinary action against an employee for having filed a charge with the Board. These considerations are applicable to all charges filed under Section 8, including the situation before us. While proceedings under Section 9 of the Act are no less within the public domain, there are significant differences. Here, the Board is concerned Nt ith ascertaining the desires of the employees as to union represent at ton. The matter of union representation is resolved, not through any appraisal by the Board of alleged past events, but rather by the employees dientselyes through their votes in a Board- conducted election. _1t all stages of Section 9 proceedings up to the election itself, the employees are subject, and properly so, to vigorous and persuasive campaigning by the employer, the union(s), and fel- low employees. The outcome here is determined, not by past events already fixed, but by the influencing of employee views for the future 6 See also Pittsburgh-De8 Mome8 Steel Company ( United Steelworkers of America, Local No 40 2 8), 154 NLRB 692, wherein the Taxcas Tube doctrine was applied 2 4 3-0 8 4- G 7-v o f 15 9 -5 5 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD event of their expression in the election. In the fluid rather than fixed circumstances of a contest for support, the union and its adher- ents can perform their legitimate function effectively only if they are unified. To require them to tolerate an active opponent within their ranks would undermine their collective action and thereby tend to distort the results of the election. To permit the union and its members, to discipline the hostile members is therefore not incon- sistent with the purposes of_ the Act and impinges on no legitimate interests of others, as we decided in Tawas Tube. On the other hand, for a union to penalize a member 'for filing a charge directly infringes upon the proper, administration of the Act and therefore cannot be permitted, as we held in Skura. Contrary, to the assertions of the Respondent, therefore, we see no basis for.applying the Tawas Tube rationale to the facts of the instant case. Moreover, the mere fact that Ivey filed, inter alia, an 8 (a) (2) charge against his Employer is hardly sufficient to be considered an "attack [upon] the very existence of the union as an institution" as was found in Tawas.'° At best, the filing of such a charge is a far more indirect attack upon a union than is a decertification petition. Nor do we believe it would effectuate the policies of the Act for the Board to attempt to distinguish between charges filed under dif- ferent subsections of the Act, between different allegations under the same subsection, e.g., assistance versus domination, or between meri- torious charges and those lacking merit. With respect to the last, it is worthy of note that the court in Roberts, supra, afforded unions ample protection against a member's harassing conduct as a member, in those cases, where it can be shown that the filing of frivolous charges is part of a pattern of harassment of the union." Similarly, we reject the argument that Respondent's action in expelling Ivey was merely a proper attempt to protect the integrity of its collective- bargaining relationship with the cannery employers, thereby promot- ing industrial stability. Again, such an objective cannot be equated with the direct danger presented by a decertification petition, thus justifying an exception to the broad and valid policies announced by all Board members in Skura and adopted by the court in Roberts. For all of the foregoing reasons, we find that Respondent violated Section 8(b) (1) (A) by expelling Ivey from membership for filing unfair labor practice charges with the Board. CONCLUSIONS OF LAW 1. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 10 Tawas Tube Products, Inc., supra, 3. 21350 F.2d at 430. CANNERY WORKERS tTNION (VAN CAMP SEA' FOOD) 851 2. By expelling Thomas E. Ivey from membership because Ivey filed unfair labor practice ' charges with ' the Board or had failed to exhaust his internal union remedies prior to filing charges with the Board, Respondent engaged in and was engaging in unfair labor practices'within the meaning of Section 8(b) (1) (A ) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6)- and (7) of the Act. 4. The activities of Respondent found above to constitute unfair labor practices, occurring in connection with the operation of the companies involved herein, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States, and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. TIIE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It is essential , of course, that Ivey be reinstated to the full membership rights in Respondent which he would have enjoyed since August 27, 1962, the date on which he was unlawfully expelled from membership . Moreover, we shall order that he be reinstated upon his request, without requiring the payment of back dues to the union for the period of his expulsion, except for that portion of his dues which is shown at the compliance stage to be regularly allocable to the cost of insurance premiums, pension contributions , and other welfare benefits accruing to Respondent 's members, to the extent they can be reinstated retroactively to the date of Ivey's expulsion; to the extent that benefits such as life insurance, health, and medical insurance and benefits and the like cannot be made effective retro- actively for Ivey, Respondent shall be required to, reimburse Ivey with interest thereon at 6 percent per annum , for any expenses or losses suffered because of the absence of such benefits, less the propor- tion of Ivey's dues which would have been allocable to the payment of premiums for or other purchase of such benefits . To order the payment of all back dues for the period of expulsion would allow Respondent to be enriched by the virtue of its unfair labor practices, for Ivey has been deprived of the right to vote in union elections and for contract ratifications, to attend union meeting, and otherwise to participate in the affairs of his Union . ' These rights cannot be replaced, and if Respondent has lost the revenue represented by his dues for the period in question, that loss flows directly from its own 852 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD violation of -the Act. On the other hand, if we were not to require the payment of that portion of Ivey's dues which support-the cost of accrued benefits to which he is entitled, retroactively, during the period of his expulsion, Ivey would receive a windfall to that extent. We conclude, therefore, that through such a limited payment of back dues, we can most effectively remedy the violation committed and restore the situation which would have existed but for that violation. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the Respondent, Cannery Workers Union of the Pacific, affiliated with the Seafarers International Union of North America, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from : (a) Expelling employees from union membership, or otherwise disciplining them for filing unfair labor practice charges- with the Board, or for failing to exhaust their internal union remedies prior -to filing such charges with the Board, or otherwise participating or ,cooperating in Board proceedings. (b) In any like or related manner, restraining or coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon application, offer to Thomas E. Ivey immediate and full reinstatement to membership in Respondent,-without prejudice to any rights and privileges to which he would have become entitled as of, and since August 27, 1962, the date of his expulsion from member- ship, and reimburse him, together with 6 percent interest per annum, for any losses or expenses suffered because of the absence of certain benefits during the period of his expulsion, in accordance with the section of,this Decision, entitled "The Remedy." (b) Post at its business offices and meeting halls in Los Angeles, California, copies of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duty signed by the Union's representa- tive, be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily 12In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted-for the words "a Decision and Order" the words "a Decree df the;United States Court of Appeals, Enforcing an Order." CANNERY WORKERS UNION (VAN CAMP SEA FOOD) 853 posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material- (c) Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS 014' THE CANNERY WORKERS UNION OF THE PACIFIC, AFFILIATED WITII TIIE SEAFARERS INTERNATIONAL UNION OF NoRTII AMERICA, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT expel employees from membership in our organi- zation, or take other disciplinary action against them, because they file unfair labor practice charges with the National Labor Relations Board, or otherwise participate or cooperate in the proceedings of the Board. WTE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act WE WILL offer to Thomas L. Ivey, upon application, immediate and full reinstatement to membership in our organization with- out prejudice to any rights and privileges to which he may be entitled as of, and since, August 27, 1962, the date of his expul- sion from membership, and reimburse him with 6 percent interest thereon, for any losses or expenses suffered because of the absence of certain benefits during the period of his expulsion, in the manner required by a Decision and Order of the National Labor Relations Board. CANNERY WoIiKERS UNION OF TI LE PACIFIC, AFFIL - TATED WITH TILE SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other lnaterial. Member may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California 90014, Tele- phone 688-5204, if they have any question concerning this notice or compliance with its provisions.