Marine and Shipbuilding Workers Local 22

MARINE AND SHIPBUILDING WORKERS LOCAL 22 1065 Industrial Union of Marine and Shipbuilding Workers of Amer- ica, AFL-CIO, and Local 22, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO (United States Lines Company) and Edwin D. Holder. Case 2-CB-4148. June 23, 1966 DECISION AND ORDER . On November 22, 1965, Trial Examiner Thomas N. Kessel issued his Decision in the above-entitled proceeding finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondents and the Gen- eral Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the modifications noted herein., [The Board adopted the Trial Examiner's Recommended Order with the following modifications:' [1. Delete from paragraph 1(a) of the Trial Examiner's Recom- mended Order, and from the first paragraph of the Appendix attached to the Trial Examiner's Decision the last line beginning with the words, "without first exhausting ...." [2. Substitute for paragraph 2(a) the following: ["(a) Upon request, reinstate Edwin D. Holder to membership in their organizations without requiring payment of back clues 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 Respondents' members ; to the extent that bene- IIn this connection and for a detailed discussion of the issues presented by this cafe, see the recently issued case of Cannery Workers Union of the Pacific ( Van Camp Sea Food Co., Inc ), 159 NLRB 843 159 NLRB No. 95. 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fits such as life insurance, health, and medical insurance and benefits and the like cannot be made retroactively for Holder , Respondents shall reimburse Holder for any expenses or losses , with interest thereon at 6 percent per annum, suffered as a result of the absence of such benefits, less the proportion of Holder's dues which would have been allocable to the payment of premiums for or other purchase of such benefits." [3. Substitute for the second indented paragraph of the attached "Appendix " the following : [WE WILL reinstate Edwin D. Holder, upon application, to membership in our organizations without loss of any status as a member because of our expulsion of Holder from membership, and WE WILL reimburse him, with interest thereon, for any losses or expenses suffered because of the absence of certain benefits during the period of his expulsion in accordance with a Decision and Order of the National Labor Relations Board. TRIAL EXAMINER'S DECISION ON MOTION FOR JUDGMENT ON THE PLEADINGS STATEMENT OF THE CASE Upon a charge filed October 28, 1964, by Edwin D. Holder, an individual, against Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, herein called IUMSWA, and Local 22, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, herein called Local 22, the Gen- eral Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 2, issued his complaint, dated December 30, 1964, alleging violation by each of the aforenamed Respondents of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. The Respondents jointly filed an answer admitting the factual allegations of the complaint but denying that their conduct complained of was violative of the Act. The answer defensively asserts certain additional facts. On February 4, 1965, the General Counsel filed a motion to strike portions of the answer and for entry of judgment on the pleadings. The motion contended, in effect, that no litigable issue of fact was raised by the answer requiring a hear- ing for the taking of evidence and that the Respondents' liability in the case is established by the admissions contained in the answer. The motion, together with the General Counsel's supporting memorandum, was referred for ruling to Trial Examiner Reeves R. Hilton On February 25, 1964, Trial Examiner Hilton issued and caused to be served on the Respondents an order requiring them to show cause why the motion should not be granted. The Respondents were specifically directed to note in their response "whether there were any genuine.issues of fact open for decision and, if so, clearly identifying and stating such issues." On March 2, 1965, Trial Examiner Hilton received a reply to this order from the Respondents in which they admitted "there are no genuine issues of fact in this case" but stated their objection to the granting of the motion. On March 12, 1965, Trial Examiner Hilton informed the parties that in view of the Respondents' admissions that there were in this case no genuine issues of fact to be tried there was consequently no hearing required before issuance of his decision in the case on the merits. He thereupon ordered the hearing date, previously scheduled, to be vacated and further ordered that the proceeding be submitted for decision on the pleadings and afforded the parties opportunity to file briefs. Subsequently Trial Examiner Hilton received from the General Coun- sel a supplemental memorandum in behalf of the motion and from the Respond- ents a brief opposing the motion and a letter answering the General Counsel's supplemental memorandum. MARINE AND SHIPBUILDING WORKERS LOCAL 22 1067 Trial Examiner Hilton died before issuance of his decision in the case. There- after, the Board, pursuant to provisions of the Administrative Procedures Act and its own Rules and Regulations, requested the Chief Trial Examiner to designate another Trial Examiner in the proceeding in place of Trial Examiner Hilton. On October 12, 1965, Trial Examiner Thomas N. Kessel received such designation. On the basis of the record before me, including the rulings by Trial Examiner Hilton, I make the following: FINDINGS OF FACT 1. COMMERCE FACTS The complaint alleges and the answer admits that United States Lines Company, herein called U.S. Lines, is a New Jersey corporation maintaining a principal office and place of business in New York City where it has been engaged in operating ocean going vessels in domestic and foreign commerce. During the year preced- ing issuance of the complaint U.S. Lines performed services valued in excess of $100,000 for various enterprises located in States other than New York. I find from the foregoing facts that U.S. Lines is engaged in interstate commerce within the meaning of the Act and that the Act's purposes will be effectuated by the Board's assertion of jurisdiction in this case over its operations. II. THE LABOR ORGANIZATIONS INVOLVED IUMSWA and Local 22 are labor organizations within the meaning of the Act. IUMSWA is the parent International of Local 22. III. THE UNFAIR LABOR PRACTICES The Respondents' alleged violation of Section 8(b) (1) (A) is based on their expulsion from membership in their organizations of Charging Party Holder because he had filed an unfair labor practice charge against Local 22 with the Board's Regional Office. The answer admits the essential facts pleaded by the complaint but denies that these facts constitute unlawful conduct. These are the facts, in addition to those above stated, established by the pleadings: (a) Local 22 has at all times material been recognized by U.S. Lines as the collective-bargaining representative of a unit of its painters. (b) At all times material Holder was employed by U.S. Lines within the fore- going unit. (c) At all times material and until June 9, 1964, Holder was a member of both Local 22 and IUMSWA. , (d) On February 28, 1964, Holder filed an unfair labor practice charge against Local 22 with the Board's Second Regional Office in Case 2-CB-3959 alleging that Local 22 had violated Section 8 (b) (1) (A) and (2) of the Act by causing U.S. Lines to discriminate against him because he had engaged in certain pro- tected activity with respect to his employment by U.S. Lines. The answer expressly admits the facts related in the foregoing paragraph but defensively pleads certain other facts which the General Counsel has moved to strike as irrelevant. These are the assertions in the answer: . the unfair labor practice charge in Case 2-CB-3959 was filed by Holder only after he had previously filed with Local 22 charges accusing the presi- dent of Local 22 of violating certain provisions of the IUMSWA constitution and said charges had resulted in a finding that the president was innocent of said charges. The unfair practice charge filed by Holder in Case No. 2-CB- 3959 was based on the same facts as those on which his charges against Local 22's president had been based. (e) On or about April 29, 1964, Holder was notified by letter from Local 22's president that on May 13, 1964, a hearing would be held before Local 22's Trial Board to determine whether there was merit to charges brought against Holder that he had violated Local 22's bylaws and the IUMSWA constitution by filing the unfair practice charge in Case 2-CB-3959. The answer expressly admits this allegation but defensively pleads certain other facts which the General Counsel has also moved to strike as irrelevant. The answer quotes the provisions of the IUMSWA constitution, binding on Local 22, pertaining to procedures for expulsion of members, .and the constitutional provision compelling members aggrieved by any action of IUMSWA, its constituent locals 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or officers, to exhaust all remedies and appeals provided by the constitution before resorting to any outside court or tribunal. The answer asserts Holder violated the foregoing constitutional provision by the filing of a charge in Case 2-CB-3959 and attributes this action to his dissatisfaction with the finding by Local 22 that its president was innocent of the charges Holder had preferred against him. (f) On or about June 8, 1964, at a membership meeting, Local 22 announced through its executive board that it had found Holder guilty of the foregoing charges of violation of the Respondent's bylaws and constitution and thereupon Local 22 expelled him from membership in the Respondents. (g) On or about June 19, 1964, Holder appealed the foregoing decision by Local 22 to the General Executive Board of IUMSWA and on or about October 7, 1964, that board denied Holder's appeal and upheld and confirmed his expulsion from membership in the Respondents. The General Counsel relies upon the Board's decisions in Local 138, International Union of Operating Engineers (Charles S. Skura), 148 NLRB 679, Local 925, International Union of Operating Engineers [Wellman-Lord Engineering, Inc.,] 148 NLRB 671 and Tawas Tube Products, Inc., 151 NLRB 46, to support the contention that the Respondents violated Section 8(b)(1)(A) of the Act by Holder's expulsion from membership. The Respondents contend that the facts of the instant case are distinguishable from those in Skura, supra, and Wellman- Lord, supra, and that the Board's holdings in those cases are not here applicable. The Respondents further argue that the Board incorrectly decided Skura and that its holding should not therefore here be applied. Concerning Tawas Tube, supra, the Respondents contend that the Board's holding therein supports the defense rather than the General Counsel's case. In Skura a member (Skura) of the union involved in the case had filed an unfair labor practice charge with the Board's Regional Office against the union claiming its discriminatory refusal to refer him to available employment. The Regional Director thereafter notified Skura of his decision not to issue a complaint based on the charge, whereupon Skura withdrew the charge. Subsequently charges were preferred against Skura by the union's official claiming that he had violated the union's bylaws when he filed the unfair labor practice charge. These bylaws, like the bylaws in the instant case, compelled aggrieved members to exhaust all means provided by the constitution of the union's parent International before resorting to "any civil or other action." Although notified, Skura did not appear before the union's grievance committee for the hearing on the charge against him, was tried in absentia, was found guilty of violating the foregoing constitutional provision and was fined $200. His subsequent tender of union dues was refused because the union's bylaws forbade acceptance of dues from members who had fines outstanding. The Board held that the union had violated Section 8 (b) (1) (A) of the Act by fining Skura in the foregoing circumstances . It declared that the Act confers on any person the right to file an unfair labor practice charge, that a fine is by nature coercive, and, hence, that the union's imposition of the fine against Skura for filing a charge with the Board was violative of his statutory rights. The Board concluded that the union had violated the Act by its conduct notwithstanding the union's rule prohibiting aggrieved members from resorting to external procedures before exhausting internal union means for remedy of grievances. Wellman-Lord was a companion case and was issued by the Board on the same day with its decision in Skura. The Wellman-Lord facts are essentially like those of Skura and the holdings in both cases are identical. The Tawas Tube decision was issued by the Board in the context of a representa- tion proceeding. An issue in the case involved the union's expulsion from mem- bership of two members one of whom had filed a petition to decertify the union as collective-bargaining representative of the employees of the employer in the case. The other employee had with the first supported the decertification cause. While the election in the decertification proceeding was pending, these employees were notified by the union's president that they were to be tried by the union for violation of a provision of the parent International's constitution creating the offense of advocating or attempting to bring about the withdrawal from the International Union of any Local Union or any member or group of members. The two employees were thereafter tried by a committee of their union's mem- bers and were expelled for their activities. The issue resulting from this action MARINE AND SHIPBUILDING WORKERS LOCAL 22 1069 was whether the election in the decertification proceeding should be set aside on the ground that the expulsions restrained or coerced unit employees . The Regional Director concluded that under Skura the Union's conduct was an unfair labor practice and that the election should be set aside. The Board disagreed. The Board construed the proviso to Section 8(b)(1)(A ) 1 of the Act to exclude the foregoing union conduct from the proscriptions of that section. The expul- sions were regarded by the Board as "appropriate union disciplinary action under the circumstances." Noting that Skura was not a controlling precedent , the Board emphasized that it had , in deciding the Skura case, "limited the scope of union disciplinary action generally allowable under the terms of Section 8(b)(1)(A)'s proviso because of the importance of safeguarding prompt and unimpeded access to the Board's processes by employees complaining of union infringement of their statutory rights. We held that in light of this overriding policy it was beyond the competence of the Union to enforce its rule by coercive means and thus deter employees from resorting to Board processes in such circumstances." It is clear that the Tawas Tube decision does not disturb the Board 's Skura holding. Union discipline which coerces members is still unlawful when adminis- tered to punish employees who file unfair labor practice charges with the Board seeking redress of their grievances against a union or its officials, and it is immate- rial to this holding that the charges were filed with the Board in contravention of the union's constitutional or by-law provisions compelling exhaustion of internal union procedures before resort to the Board's processes . Application of these governing Board principles to the facts of the instant case compels the conclusion that by the expulsion of Holder for membership because he had filed unfair labor practice charges against Local 22 with the Board's Regional Office in Case 2-CB- 3959 the Respondents violated Section 8(b)(1)(A ) of the Act. In reaching the foregoing conclusion I accord no merit to the contention in the Respondents' letter answering the General Counsel's supplemental memorandum that the Board 's Tawas Tube holding should be construed to mean that an expul- sion from membership, unlike the imposition of a fine, has no coercive effect upon employees in the exercise of statutory rights. There is no support in Tawas Tube, or in logic, for this generalization . Although the Board in Tawas Tube regarded the expulsion of employees who were seeking the union 's decertification as an ineffective deterrent against resorting to the Board 's processes, it said this while underscoring the fact that "loss of membership was of no significance" to these employees . This is not true in Holder's case. There is no indication that continua- tion of his membership in the Respondents meant nothing to him . To the contrary, this very proceeding, initiated by Holder's filing of unfair labor practice charges against the Respondents for his explusion , shows positively that his membership was significant to him. Further, I have no doubt that, if, as the Board said in Skura, "a fine is by nature coercive ," an expulsion from membership even more effectively coerces employees . The ultimate penalty associated with the imposition of a fine is loss of membership in the union which may be avoided by payment of the fine. Expulsion from membership leaves no room for grace. The ultimate pen- alty, with loss of benefits inherent in union membership including a voice in the democratic decisions of the organization materially affecting the welfare of mem- bers, is immediate and final. Having concluded from the facts established by the pleadings that the Respond- ents have violated Section 8 (b) (1) (A ) of the Act, the General Counsel's motion for judgment on the pleadings is granted . There is, accordingly , no need to pass on the General Counsel 's motion to strike portions of the Respondents ' answer. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , occurring in con- nection with the operations of U. S . Lines, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. i The proviso states that the language of Section 8(b) (1) (A) "shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices viola- tive of Section 8(b)(1)(A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing finding of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United States Lines Company is an employer within the meaning of Section .2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, and Local 22, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By expelling Edwin D. Holder from membership in their organizations because Holder had filed unfair labor practice charges with the Board without first exhaust- ing his internal union remedies, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, I recommend that Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, and Local 22, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Expelling employees from membership in their organizations because they have filed unfair labor practice charges with the Board against them or their officials without first exhausting their internal union remedies. (b) In any like or related manner restraining or coercing employees in the exer- cise of the rights guaranteed employees in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Reinstate to membership in their organizations Edwin D. Holder without any loss of status as a member resulting from his expulsion. (b) Post at their business offices and at all other places where notices to mem- bers are customarily posted, in conspicuous places, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 2, shall, after being duly signed by official representatives of the Respondents, be posted by the Respondents immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writing, within 20 days from the receipt of this Decision, what steps they have taken to comply therewith.3 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be subbtituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 2, in writing, within 10 days from the receipt of this Order, what steps the Respondents have taken to comply herewith. S. E. NICHOLS-DOVER, INC. 1071 APPENDIX NOTICE TO ALL MEMBERS OF INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO AND LOCAL 22, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO (UNITED STATES LINES COMPANY) Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT expel employees from membership in our organizations because they have filed unfair labor practice charges with the National Labor Relations Board against us or our officials without first exhausting their internal union remedies. WE WILL reinstate Edwin D. Holder to membership in our organizations without loss of any status as a member because of our expulsion of Holder from membership. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the National Labor Rela- tions Act. INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated -------------------- By------------------------------------------- (Representative) (Title) LOCAL 22, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO (UNITED STATES LINES COMPANY), 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 material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fifth Floor Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone 751-5500. S. E. Nichols-Dover, Inc. and Retail Store Employees Union Local #692, Retail Clerks International Union , AFL-CIO. Case 5-CA-3314. June 23,1966 DECISION AND ORDER On May 5, 1966, Trial Examiner Harold X. Summers issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed a memorandum except- ing to the Trial Examiner's Decision. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has 159 NLRB No. 114.