Steelworkers, Local 1114

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Steelworkers of America, AFL-CIO, and its affiliated Local 1114 and Harnischfeger Corpora- tion and Walter J. Zarski. Cases 30-CB-253-1 and 30-CB-253-2 December 7, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On November 20, 1969, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respondent Unions had not engaged in any violation of Section 8(b)(1)(A) or (3) of the Act and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and Charging Party filed exceptions and the Respondents filed cross-exceptions to the Decision and supporting briefs. The Respondents and Charg- ing Parties filed answering briefs. The Charging Parties also requested oral argument. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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, the exceptions, cross-excep- tions, and briefs, and the entire record in the case,t and hereby adopts the Trial Examiner's recommenda- tion that the complaint be dismissed in its entirety, but solely for the reason that Section 10(b) barred the issuance thereof.2 The charges herein were filed and served on the parties on February 18, 1969. The 10(b) cutoff date is therefore August 18, 1968. The complaint alleges as violative of Section 8(b)(1)(A) and (3) conduct of the Respondent International Union at its convention on August 19 through 23, 1968, affirming and adopting fines which had been levied by the Respondent Local Union on the complainants :n 1967; and admitted actions of the Respondent Local Union on November 28, 1968, and February 8, 1969, respectively, against certain of the complainants in threatening them with legal action, and instituting suit against one complain- ant, for failure to pay the fines thereafter. The relevant facts are that on June 5, 1967, the 10 complainants herein, who are members of the i The Charging Parties' request for oral argument is hereby denied, as the entire record in this case, including the exceptions, cross-exceptions, and briefs, adequately present the issues and positions of the parties 2 In view of our Decision herein that in the circumstances of this case Respondents, appeared at a hearing conducted by a trial board of the Local Union to determine whether, as charged, they had violated the International Union's constitution by (a) "slandering or willfully wronging a member of the international union" and/or (b) "deliberately engaging in conduct in violation of the responsibility of members toward the organization as an institution ." On July 6, 1967, the Local Union informed the complainants that they were found guilty and fined in varying amounts for violation of one or both of the foregoing constitution- al provisions. Pursuant to the provisions of the International Union's constitution, the 10 complain- ants appealed to the International Union's executive board, without any request that the trial board action be stayed. On May 15, 1968, following a hearing before and recommendation of the International Union's commission, the complainants were informed by the executive board that it was adopting the commission's recommendations . These recommenda- tions were to affirm the action of the trial board but to make the fines uniform in amount. Although the constitution provided for an appeal to the Interna- tional Union's convention, which was held on August 19 through 23, 1968, none of the complainants appealed to the convention. On November 8, 1968, the Local Union sent to five of the complainants who had not paid their fines and were still employed by the Company a letter reminding them of their failure to appeal the penalities to the International Union's convention, and requesting payment of the fines by November 23, 1968, in order to avoid legal action against them by the Local Union. Four of these five complainants paid their fines as requested in the letter between November 15 and 23, 1968, but one did not. The Respondent Local Union filed suit against this remaining complainant in the state court on February 8, 1969, to collect the fine from him. The record does not reveal the disposition of the suit or whether this complainant paid his fine. Thereafter, on February 18, 1969, the charges were filed and served on the parties in the instant case . On June 23, 1969, complaint issued herein. The General Counsel contended and the Trial Examiner agreed that Section 10(b) did not bar the complaint because the demand for payment of the fines and attempts to collect them by threat of suit, and suit, removed all doubt as to the Unions' intentions vis-a-vis the fines, and established coercion within the 10(b) period as to the above five complain- ants. It was the Trial Examiner's view that this conduct constituted continuing coercion until the the complaint was barred by Section 10(b), we find it unnecessary to reach, and therefore do not adopt, the findings, conclusions, and recommenda- tions of the Trial Examiner insofar as they relate to the merits of the 8(b)(l)(A) and (3) issues herein 187 NLRB No. 4 STEELWORKERS, LOCAL 1114 23 demand for money was either satisfied or abandoned. The General Counsel also contends that the imposi- tion of the fines was not final until the meeting of the International convention, within the 10(b) period, and thus all 10 complainants were coerced within that period. We do not agree with these contentions. As to the five complainants who so far as the record shows had either paid their fines or left the Company prior to the attempts of the Local Union to collect the fines, we hold that in the absence of any provision in the Unions' constitution or bylaws providing for automatic suspension of fines pending appeal, and because those employees failed to appeal to the International convention, the fines as to these five complainants became final before the 10(b) cutoff date. Cf. New Mexico District Council of Carpenters and Joiners of America (A.S. Horner, Inc.).3 The remaining five complainants likewise failed to appeal to the International convention, and it similarly cannot be said that the convention took any action as to them. The Local Union's conduct toward these members is comparable to that of the union involved in International Association of Machinists and Aerospace Workers, AFL-CIO (Union Carbide Corporation).4 In that case, as in the instant case, the members of the union engaged in alleged union misconduct, and the allegedly unlawful fines were imposed before the 10(b) period. All that occurred of significance within the limitation period were threats of suit, and suit, to collect the fines. As we did in that case, we shall dismiss this complaint because the claimed cause of action rests on pre-10(b) period conduct and it would be necessary to find that that conduct violated the Act in order to hold that the Respondents' post-10(b) activities were unlawful. This the Board is forbidden to do.5 Under these circumstances, we must dismiss the complaint. ORDER It is hereby ordered that the complaint herein be, and it hereby is dismissed in its entirety. 3 176 NLRB No. 105 4 180 NLRB No 135, reaffirmed upon reconsideration, 186 NLRB No. 138 5 Bryan Manufacturing Co, 362 U S 411 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly i The complaint also named as Respondent a District 32, apparently an intermediate body of the International Union, but the General Counsel agreed with the Respondents at the hearing that this District 32 was in no way involved in the case and should therefore be ignored in any further designated Trial Examiner at Milwaukee, Wisconsin, on August 12 and 13 , 1969, on complaint of the General Counsel against United Steelworkers of America, AFL-CIO, herein called the International Union Respon- dent, and its affiliated Local 1114 , herein called the Local Union Respondent.' The issue of the case is whether the Respondents violated Sections 8(b)(1)(A) and 8 (b)(3) of the Act by imposing internal union fines upon certain of its members and by instituting court action to enforce collection. Briefs were filed after the close of the hearing by all parties. Upon the entire record, and from my observation of the witnesses , I make the following: 2 FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Harnischfeger Corporation is a Wisconsin corporation with plants located in Milwaukee, West Allis, and Cudahy, Wisconsin, where it is engaged in the manufacture of industrial cranes, excavators, and related equipment. During the past year, a representative period, it purchased and received goods and materials transported in interstate commerce valued in excess of $50,000 from points outside the State of Wisconsin. I find that the employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED I find that United Steelworkers of America, AFL-CIO, and its affiliated Local No. 1114, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Picture of the Case The basic evidentiary facts upon which the entire complaint rests, established by documentary proof, are not in dispute. The documents were placed in the record at the start of the hearing by stipulation of the parties. The remainder of the hearing, when oral testimony was received, added little of substance to the whole case, and consisted largely of attempts to add color to and suggest interpretations of what are indisputable acts and written documents. On October 25, 1966, 14 employees, all members of the Respondents and all working in a single department of the Company's plant, quit work in the middle of a shift; they struck. One of the group was also a union steward; he left about 30 minutes before the rest. The Company discharged the other 13 as they were leaving the building. Hoping to have the men reinstated, the Union filed a grievance under the existing contract, and, the matter being urgent, the parties jumped quickly into the third stage of the procedure, where at two such meetings, on October 27 and October 31, proceedings Z Absent opposition, a motion by the Company to correct the transcript is hereby granted and the transcript is corrected accordingly 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company refused reinstatement on the ground the employees had struck in violation of the no-strike provision in the contract. It was agreed to go to arbitration. Within a few days the employees advised management representatives they wished to give a different version of the events. The Company agreed to hear them, arranged to take their written statements, and invited representatives of the Union to be present. On November 9 and 14, nine of the discharged employees gave statements to officials of the Company, before a stenographer; agents of the Union were present. The burden of their story was to implicate the steward in the strike and to shift the onus generally from themselves to him. With this, the third step grievance meeting was reconvened and the Company agreed to and did reinstate all 13 strikers. It also discharged the steward, on the ground of his conduct on the day of the strike. The Union then filed a grievance aimed at reinstating the steward, the Company was adamant, and contract arbitration followed. At an arbitration hearing in Decem- ber 1966, six of the employees testified before the arbitrator; essentially it was their separate statements that formed the body of evidence supporting the employer's position. The arbitrator ruled against the Union; the steward was finished. Later, internal union charges were filed against 11 of the employees involved in the strike, they were tried before a committee of members, 10 were found guilty and fines were imposed. Some paid in August, September, and November of 1967. Reminder letters were sent to others and one, Walter Zarski, was sued in the State Court on February 4, 1969, for collection of the fine. The charge against the Union was filed on February 18, 1969. B. What are the Issues? The ultimate allegation of the complaint is that by imposing these fines on 10 emnloyees as a group, Local 1114 first, and then the International Union by affirming the fines on appeal, violated Section 8(bXl)(A) because they restrained and coerced "employees in the exercise of the rights guaranteed in Section 7." It cannot, and it is not disputed that a money fine, backed by suit at law for collection, restrains and coerces the culprit involved. However, not every such internal fine imposed by a labor organization upon its members restrains and coerces within the meaning of Section 8(b)(1)(A) of this statute. Thus, a fine for crossing a legitimate union picket line, N.LR.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, or one for exceeding an agreed-upon production quota, Scofield v. N. L R B., 394 U.S. 423, do not so coerce. On the other hand, a fine for refusing to join a union strike in violation of an existing collective-bargaining agreement, Glaziers Local Union No. 1162 (Tusco Glass Co.), 177 NLRB No. 37, for filing unfair labor practice charges with the Board, Local 138, Interna- tional Union of Operating Engineers (Skura), 148 NLRB 679, or for filing a decertification petition seeking extinction of the union as bargaining agent, Local 125, International Molder's and Allied Workers Union, 178 NLRB No. 25, does coerce illegally and does violate Section 8(b)(1)(A).3 A minimum proposition dictated by these diversified preced- 3 The principle of the Skura case was expressly affirmed by the Supreme Court when it enforced the Board's further holding that it is also illegal to expel a member for filing charges with the Board. N L.R B v Industrial ents is that there can be no determination that a union fine in any given case is or is not unlawful unless there first be a clear and definitive finding as to precisely what conduct of the employee-member, what action which he chose to take, it was that the union, by its internal charge and fine procedures, sought to stop. And it seems equally clear, given the variety of things union members will do, that in this general area no single earlier decision will serve as determinative precedent for a fine aimed at curbing a different kind of behavior. Indeed, the General Counsel conceded at the hearing that the instant case is a novel one, that there is no precedent for finding these fines to have been illegal, whatever the Respondents purpose may have been in bringing the charges at all. Difficult as the ultimate question of law may be in this case, more elusive and vague is the answer to the necessary threshold question as to the reason for the fines. All of the parties equivocated throughout the hearing ; there was a deliberate multiple ambivalence, particularly on the part of the General Counsel, on this essential question. It starts with the complaint, which says the Union resented two things the employees did: "furnishing information to and cooperating with the Employer during the processing of a grievance," "and/or for testifying in an arbitration proceeding." At the start of the hearing the General Counsel phrased all of this differently: "No. 1, by meeting with the employer during a conference; No. 2, by giving a deposition at the request of the employer ; or [emphasis added] No. 3, by testifying when called by the employer in an arbitration hearing." As the hearing progressed the General Counsel added further descriptions of the asserted conduct by the employees which had offended the Union. One of these was that they had told the truth, in their direct appeals to the employer, in the signed depositions, or in their oral testimony to the arbitrator. He offered to prove, out of the mouths of the employees, that it was the steward who had egged them on to strike and whose discharge grievance was therefore justly rejected by the arbitrator. "I am merely asking you to make supplementary findings concerning the steward's encouragement of the walkout. That's part of my case here, and you can't make those findings based upon that transcript [the transcript of hearing before the arbitrator]." Now the conduct which the fine was intended to punish, became the act of telling the truth. Whether, with the Trial Examiner finding, as of necessity he must be privileged to do under such a theory, that the employees had not told the truth, this complaint should now be dismissed, the General Counsel avoided saying. From this, the General Counsel then said that the evil is seen in the fact "that they [the Union ] violated their duty of fair representation to these employees." Here the theory of illegality was completely shifted; it ceased to be a fine punishing direct dealing with the employer behind the union's back, as it were, or giving testimony before an arbitrator, or telling the truth. The alleged offense to the Union's sensibilities became, instead, the employees' Union of Marine & Shipbuilding Workers of America, AFL-CIO, 391 U S 418 STEELWORKERS , LOCAL 1114 demand that the Union represent them in the processing of the grievance. A copy of the initial charges placed against the employees was received in evidence . It refers only to general language in the union constitution about "slandering or willfully wronging" a union member, and conduct in violation of a member's responsibility to the Union "as an institution." The subsequent letter sent each employee to advise him of the decision and fine , after a trial by a three-man board, merely restates the general terms of the charge . And the report of the International Commission, a body of the International Union which considered the employees' appeal, speaks in no more definitive terms as to what the offense may have been. Asked at the hearing to state more exactly what it was that the employees had done for which they had been fined, counsel for the Respondents refused to do more than to refer to this general language from the International Commission report. The defense rests essentially on the assertion that the employees had undercut the legitimate bargaining agent by engaging in collateral bargaining with the employer and therefore could lawfully be fined, as permitted by the proviso to Section 8(b)(1)(A) of the Act: ". . . this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to acquisition or retention of membership therein." The first question to be decided, therefore, is the factual issue of determining what acts of the employees lay at the basis of the internal union charges and fines. There is a separate allegation in the complaint that by these union fines the Respondents also refused to bargain with the Company in violation of Section 8(b)(3) of the Act. This allegation will be better appreciated after resolution of the major issue of the case. C. The Pertinent Facts 1. The work stoppage In keeping with the current contract the 13 employees who quit work on October 25, 1966, were being paid at a rate lower than employees in other departments doing the same kind of work, and they were therefore disgruntled. One of them, Ralph Cartwright, had a few weeks earlier filed it grievance for this reason, but it had failed. To a man, about 7:30 in the evening, in midshift, each of them went to the nurse for a sick slip, and asked for a pass to go home. They were not ill. As they were leaving their foreman told them they would be discharged if they left. Harold McLaughlin, the steward, left work about half an hour before this, on the excuse, not true, that his wife was ill and needed him at home. This was a strike by the 13 men, and by McLaughlin as well. The strike was in violation of the contract, and the 13 men were that day discharged. 2. Meeting at the union hall that same evening By arrangement made before leaving the plant, all 14 proceeded to a bar to discuss the matter . They telephoned the then president of Local 1114, Fred Kelber, and agreed to meet him at the union hall later . From the tavern, or 25 taverns, everybody proceeded to the union hall , where there was talk with Kelber and with Fred Myers, the Local 1114 vice president who 5 days later assumed the presidency because Kelber changed jobs to become a staff representa- tive of the International Union. Kelber told them they had violated the agreement and that the best chance of prevailing upon the Company to take them back was if they offered to return immediately while he made an appeal to management . They refused to go back , and I credit Kelber's testimony that the discharged men continued their protest that the pay rates were wrong and the entire union membership should bring pressure on the Company . Before the meeting was over 11 of the men signed a grievance form addressed to the Company. It reads: Termination We the undersigned feel we were unjustly treated by being terminated for leaving the plant early due to illness & personal reasons, therefore we demand to be compensated for all wages lost due to termination. 3. The grievance of the discharged employees Two days later, on October 27, Kelber, Myers, and the steward, together with a Mr. Lusher, an International representative , all for the Union , met with three company representatives to consider the employees' grievance. Conceding the Company's position that the strike had been a contract violation, the Union asked that discipline be limited to the loss of interim earnings and the men be reinstated. The Company remained adamant and the parties agreed to meet again on October 31. They did so, with the same persons present . Each party held firm to its earlier position and it was agreed to go to arbitration. The same representatives met again on November 16. By this time nine of the employees had given written statements to the Company . Now the Company, on the ground that further investigation-the nine written state- ments, caused it to believe the men had been misled, agreed to reinstate the men on November 21, and to reduce the disciplinary action to loss of such interim earnings. The grievance was considered settled on this basis. 4. Union meetings of all stewards On November 1, 1966, 12 of the discharged employees signed a joint request for a general membership meeting. It reads as follows: We the undersigned request a special membership meeting at the earliest possible date, for the purpose of discussing our discharge cases . We also request the presence of the entire executive board. The general membership meeting requested by the discharged employees was never held. Instead , these people were heard at a regular monthly meeting of stewards, held on November 2. After other matters had been disposed of, there was much discussion of the October 25 walkout and the consequent discharges . Many views were expressed: the walkout had been illegal , there should be a general "walkout," there should be arbitration, etc. Steward 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McLaughlin gave his version of the events . According to the minutes of the meeting placed in evidence, Winfred Stolze, discharged, "informed the Executive Board that he had been approached indirectly as to exposing the leader of the alleged walkout with the indication that the rest of the men would be returned to their jobs." Jerry Matter, also discharged , acted as spokesman for the employees. A summary statement attached to the minutes of the meeting shows he said the following: 1. Men told to sign blank paper with understanding men will walk out together. 2. Steward also signed this paper that he was with men 100%. 3. This paper had no writing on it but was a verbal expression. 4. Men led to believe that they should say nothing to anybody including all Supervision. 5. Men led to believe that Whole Union was 100% behind walkout and that brother Fred Kelber was behind it. 6. Men told to go to nurse and report sick while Steward had excuse that his wife was sick. 7. Men told where to meet after walkout by Steward. 8. Men were not told individually they were violating contract, some were told in groups of 3 or 4. 9. Men were led to believe that they would be ineligible to attend Executive Board meeting. 10. Men went to nurse in groups of 2 or 3. 11. Reason for walkout-differences in pay rate to people doing samejob. 12. Superintendent Del Krause asked men in office to air problems. 13. Everybody has a gate pass. This was the first time there was any serious talk of McLaughlin being responsible for the decision of the other 13 to strike . Reference to his participation in the strike there had been, but the thought that the large group might not have misconducted themselves but for the activities of the steward was simply a new idea as far as the union officers and the membership as a whole were concerned. The refusal of the 13 to file charges against McLaughlin that night proves how tongue-in-cheek the entire attitude was. In the end a vote was taken and it was to press the discharge grievance to arbitration. In the corridor outside the hall a number of employees continued that discussion with Kelber. He told them in his opinion there was little chance the Union would prevail in the arbitration, and that judging by his experience the arbitration proceeding would take 4 months, if not more. 5. The employees turn to the Company During the questioning of witnesses at the hearing there appeared between the lines a subtle disagreement between the parties over the question whether it was the employees who first conceived the notion of telling the Company their stones, or whether it was the Company which took the initiative to draw them out. What difference definitive resolution of this matter would make in the ultimate contentions of the parties was not clear, for, as stated above, the lawyers equivocated as to their fundamental positions. For what it is worth, I find that although management representatives did nothing to discourage the employees from coming directly to them, the whole idea of giving statements directly to the Company was born in the minds of the 13 discharged persons as a group. The employees met twice as a group, once at the home of Winfred Stolze and once at the home of Lyle Bartel. All 13 were at Bartel's house and all but one or two at Stolze's. The dates of these gatherings are not clear on the record, but they did take place at about the time of the October 31 second meeting of the grievance committee and no later than the November 2 gathering of the stewards at the hall. Cartwright, the first employee witness, started by saying that at Stolze's house the men talked about their situation, and that at one point Stolze told them "his wife had heard from some representative in the company at the place where she worked, in a restaurant some place, he didn't state exactly who it was or what the place was, that the company didn't know actually what had taken place during the walkout." As Cartwright continued, his testimony became even less clear : ". . . we had tried to contact somebody from the company by telephone , I don't know who was talked to exactly , and they had said the company, whoever spoke from the company said we should go and tell our story to the Union , that was as far as the whole meeting had taken place." Stolze's wife was not called as a witness . Her husband, also called by the General Counsel , only added confusion to the whole story. "I came home from work, my wife said Mr. Losse [company vice president of industrial relations] had called; not Mr. Losse, she said someone called and said I was supposed to call Mr. Losse , which I did and I asked him what he wanted, and he then explained to me he got word some of the people would like to give their testimony, and I said, 'I don't know, if they ask I'll tell them what you said,' so I called Joe Till and told him what he said , and told him it was strictly up to the men, what they wanted to do about it." "... I don't know who left the message , I asked my wife about it, she still doesn't know , she said it could be anybody. I talked to her last night about it." Aside from this vacillation in his story, Stolze was not a credible witness, for he deliberately evaded questions and showed unmistakea- ble hostility to the General Counsel. Against these witnesses , the story as told by Losse, for the Company, was clear and direct . He said a message had reached his home for him to telephone Stolze , and that he did so on November 5, when Stolze spoke as follows: ".. . he said he would like to have the discharged employees meet with the company as soon as possible, because they felt they wanted to tell their side of the story." Losse agreed. It was between November 2 and 6 that the employees communicated with Losse. In consequence six of them met with him in the company office on November 7: Till, Pellowski, Dalberto, Cartwright, Matter, and Stolze. Present with the vice president of industrial relations were Harold Joy, director of labor relations , and Mr. Surmacz, vice president of manufacturing . Here, as Mr. Joy testified: "The employees started telling us what had happened the night of the walkout, just what the circumstances were, what the real facts were on the walkout , how they felt they had been led into it by their steward and therefore they felt they weren't entirely wrong and to blame for the whole STEELWORKERS, LOCAL 1114 thing." The end result was that arrangements were made to make written statements at the YMCA on November 9. I credit Losse . No reason was shown why the Company should wish to search for reason to change its twice -stated position to reject the 13-man grievance . There had been two earlier strikes in violation of the contract , and each time the Company had warned it would take drastic action . This is what it did . In contrast, the employees had not appeared at the grievance meetings ; their position had been defended by the union officers instead, including the steward himself. They were out of work and the indication was it would be months before an arbitration proceeding could possibly restore them to the job. They could only gain if a new story were told to the Company. On the 8th Losse called the union agents to advise them he would take statements from the employees and to invite them to be present . Three union agents appeared on the 9th, when six employees gave statements , and again on the 14th, when three more employees spoke to the Company. The statements are substantially consistent, although varying in detail ; they explain why the employees struck, how they planned to act in concert by deceiving the nurse, how they asked Steward McLaughlin for his opinion, how he did not discourage them but expressed assurance there would be success and no adverse developments , and how he joined by himself leaving 30 minutes before they did. 6. Discharge of the steward and his grievance H L. Joy, the director of labor relations, said McLaughlin was discharged the afternoon of November 14. Apparently this was after the second group of employee statements had been received . A grievance was filed on behalf of the steward and again the parties quickly jumped to the third stage of the grievance procedure. It will be recalled that the Company agreed to reinstate the 13 on November 16. Immediately thereafter, on the same day, the McLaughlin grievance was considered by the same representatives . The Company held firm and arbitration was set. On December 28 and 29, 1966, the arbitrator heard testimony ; six of the nine employees who had signed statements at the YMCA appeared as witnesses. In his decision, issued on March 18 , 1967, the arbitrator denied the grievance. He found in fact McLaughlin "was aware that a walkout was in the making ," "he failed to take steps to prevent the work stoppage or to keep his supervisor informed," and therefore deserved a severe penalty. The arbitrator expressly refused to find the steward had "initiated or incited" the strike. 7. The union charges and fines Of the 13 employees-exclusive of the steward-who struck, the complaint names 10 of them as having been unlawfully charged and fined within the Union. Eight of these had given statements to the Company in the YMCA: Stolze, Matter, Bruss, Cartwright, Kingsbury, Pellowski, Dalberto, and Zarski. The 9th man named in the complaint is Robert Alger; he did not give a statement , but he did testify in the arbitration . Joseph Till, the 10th man and last in the complaint, neither signed any statement nor gave any 27 testimony. And of the 10 only 6 appeared as witnesses at the arbitration proceeding. On May 16, 1967, "the steward body" of Local 1114 preferred charges against 11 employees, the 10 named in the complaint, plus Balsewicz. Balsewicz had signed a statement for the Company but did not appear before the arbitrator . Identical letters sent to each of these 10 , in part reading: The Steward Body of Local 1114 USA-AFL-CIO hereby prefers charges against you for violation of the following provisions of the Constitution of the United Steelworkers of America, Article XII, Section 1, (g) willfully wronging a member of the International Union, and (m) deliberately engaging in conduct in violation of the responsibility of members toward the organization as an institution. All the men appeared before a trial board of three members on June 5, 1967. Longhand minutes of the proceedings were made , and are now in evidence here. The trial committee found Balsewicz not guilty, Alger and Till guilty only under clause (m) of the charge, and the remaining eight guilty under both clauses (m) and (g). At a general membership meeting later one man was fined $25, three were fined $50, and the rest $100. There was an appeal to the International Union's International Commission, which heard the employees on January 24, 1968. Eight of the fined employees appeared in person and spoke. The Commission approved the fines as they stood and the employees were advised, on May 1, about the Commission's report and that the International Executive Board would review the action on May 8, where they would again have an opportunity to be heard. The Executive Board then also approved all of the fines as originally imposed. By this date-May 8, 1968-when the final step was taken within the Union to make imposition of the 10 fines a closed matter-3 of the employees had left the Company: Dalberto on February 16, 1967, Matter on April 14, 1967, and Kingsbury on January 1, 1968. Whether or not these men ever paid the fine, and whether or not they remained members of the Union after leaving this employment, the record does not show . Two paid their fines while still employed, but before November 1968: Alger on August 19, 1968 and Pellowski in September 1968. On November 8, 1968, the financial secretary of Local 1114 wrote to the remaining five to remind them of the final action concerning the fine and to demand payment as required by the Union's constitution . Four of the persons who received this dunning letter then proceeded to pay: Till on November 15, Bruss and Stolze on November 18, and Cartwright on November 22. This left Zarski, fined $100, the only delinquent. He received a letter from the Union's lawyer on December 28, 1968, demanding immediate payment by January 10 if he wished to avoid suit. On February 4, 1969, he was served with a summons and complaint in the State Court of Wisconsin. It does not appear that he ever paid the fine. The initial charge in this proceeding was filed on February 18, 1969. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Analysis 1. Section 10(b): 6-month limitation The Respondents ask for dismissal of the entire complaint on the ground that even assuming it was illegal to have imposed these fines, the unfair labor practices were completed with finality by May 8, 1968, when the Executive Board affirmed the International Commission, and that this was more than 6 months before the filing of the charge. For this defense the Union relies primarily upon Bryan Manufacturing Co., 362 U.S. 411. In essence, the contrary argument made in support of the complaint is that the major bite of any fine is the ultimate enforcement in collection proceedings, when all doubt as to imposition of the fine is ended, and the pay-or-else time has arrived. The position concedes, as it must, that even a determination that there be a fine brings a coercive effect to bear upon the accused, but goes on to theorize that the followup lawyer's claim particular act of his, and some other for having done something else. This letter, and then the suit at law, are akin to continuing coercion until the demand for money is either satisfied or abandoned. If this be a persuasive view, it follows that the five members who received the November 8 letter were subjected to direct illegal coercion within the 6-month period before February 18, 1969, to say nothing of Zarski, who was served with a summons and complaint in the very month of February. The employee whose discharge was considered in Bryan Manufacturing, refused to join the Union and lost his job for that reason. The Respondent Union had caused the discharge, and the basis for its action, vindicated in the Supreme Court, was a union security collective-bargaining agreement valid on its face as expressly permitted by the statute. The pressure for money, which the Respondents here put on five employees in November 1968 and again on Zarski the following February, had no such prima facie lawful warrant. I find no merit in the defense resting upon Section 10(b) of the Act.4 2. The principal issue As stated in the beginning, there can be no finding of a statutory violation in a union fine unless first the employee- member conduct said to have offended the Union be fixed -and proved. Some conduct by members is properly subject to internal fine, other is not. In this case the conduct must have been the same by all 10 involved. There is no allegation, nor was it even obliquely suggested throughout the proceeding, that some may have been fined for one reason and others for different reasons. Indeed, the prosecution took pains to stress the contention that all were treated alike by the Union, and that all must be viewed as having engaged in the same conduct deemed punishable by the trial board. Moreover, the documentary evidence received, upon which virtually the entire case rests, precludes any finding that one member may have been fined for one particular act of his, and some other for 4 See, Local 248, UAW (Allis Chalmers), 149 NLRB 67, 76. Compare, N.L.R.B v Local 269, IBEW, 357 F.2d 51 (C A 3), enfg., 149 NLRB 768 having done something else. This characterization of the record is conceded. The facts here stated show, among other things, that some of the men "cooperated" with the Company and others did not, that some gave written depositions and others did not, that some testified before the arbitrator and others did not. In his brief the General Counsel blurs these clear differences by saying "no valid distinction can be drawn between the three means by which they represented their position and account of the walkout . . . no rational distinction can be drawn relative to the stage at which each individual participated in the process." Notwithstanding this attempt to call all colors by one name, the fact is that starting with the complaint and ending with the brief, the General Counsel lists no less than six different forms of conduct as the behavior which the Union is supposed to have resented and which constituted the basis of the charges and fines. They are: (1) they [the employees] "cooperated" with the Company [presumably this refers to the group action in sending a delegation to the office on November 7 to inform the Company of what the employee group as a whole wanted to have presented to the future arbitration proceeding on the discharge grievance of all ]; (2) they "furnished information" to the Company [this is the matter of some giving and signing depositions on November 9 and 14]; (3) they testified before the arbitrator [6 of the 10 gave such testimony as company witnesses on December 28, 1966]; (4) in the course of the arbitration proceeding they urged a position at odds with that of the constituted union agents and officers; (5) they set their own personal interests against that of a union agent-should they stay fired or should McLaughlin be dismissed instead?-; and (6) they told the truth. a. Failure to prove a prima facie case I shall recommend dismissal of the complaint allegation that the union fines were in violation of Section 8(b)(1)(A) of the Act, for two separate and distinct reasons. The first is because the General Counsel has failed to state and to prove a cause of action that can be coherently and intelligibly appraised. The reason for the fine stated , as it is, variously, alternatively, inconsistently, in most forms concededly applicable only to some of the total group of 10 members and not to others , makes it impossible to give rational consideration to the legality of any fine here. The law as it stands makes unmistakable that unless the complaint, however articulated , presents a definitive and clear-cut assertion as to what the particular employee conduct said to be protected by the statute was, the logically second-place question-is the fine to curb such conduct illegal-cannot be reached. Unless, of course, it is to be presumed that because it was the Union that imposed the fine an unfair labor practice was committed.5 But generalities about public policy, subtle insinuations of dishonesty, unproved charges of ulterior motive, are not enough, and cannot serve as substitute for the primary burden upon the General Counsel to state and prove, at the start, the true reason for the fines . Brief comment upon the 8 Cf. Local 35 7, Teamsters v N L R. B, 365 U.S. 667. STEELWORKERS, LOCAL 1114 29 diversified, elusive and ever-shifting causes for the fines, under the multifaceted assertion advanced by the General Counsel, will suffice to illustrate why there can be no objective evaluation of the ultimate complaint allegation in this case. When a union member is fined for the fact, and clearly for the fact, that he appeared as a witness-before the arbitrator in a contract arbitration proceeding, an under- standable argument could be made that the situation is analogous to testifying in an NLRB proceeding. But this is not that case, because four of the men never appeared there, and the General Counsel insists no distinction can be made between the activities of some in the total group as against that of others. Some, but not all, went directly to the Company, after the regular contract grievance proceeding conferences, and told management a different story; they offered to give the Company signed statements at variance with the position that the Union had been urging in processing their grievance. The prosecution compares this conduct to that of a member filing a charge against his union with the Labor Board, and therefore urges the Skura case decision for a finding of illegality. And to facilitate this jump between an employee turning to the employer for vindication of his statutory union activities right and resort to the NLRB for enforcement of the law, the General Counsel blandly says the two steps are one and the same. Quite apart from the idea that an employer now fills the role of custodian of his employees' right to deal with him through a union-a contention that merits no answer at all-how does one discuss two such divergent concepts as though they were one and the same? Apples are not pears. The revolving riddle continues. Four hundred pages of testimony taken by the arbitrator 3 years ago tell the story of what happened during the wildcat strike of October 1966. He sustained the discharge of the steward but was careful to call nobody a liar; he deemed the steward guilty of omission, or acquiescence where he should have strained to protect the employees against their own folly. At the hearing here the General Counsel offered to have the witnesses retell the whole story of that night, and his purpose was, he said, to prove that as between McLaughlin and the employees later fined, the latter told the truth. He asked for an express finding by the Trial Examiner that the steward encouraged and was himself responsible for the strike, "and you [the Trial Examiner] can't make those findings based on that transcript [the testimony before the arbitrator]." The reason for the later union charges was, according to the brief, because the testimony of the employees was truthful. Does this mean that employees who lie at an arbitration hearing may be disciplined by the Union? More important, does it mean that under the rule of the Skura decision a member who files a false, or unprovable charge with the Board may be fined by his union, and that only the man who files one that later stands up is protected? Both these questions must be answered affirmatively, if the offer of proof as to who told the truth to the arbitrator has any relevance to the issue of this case. The General Counsel purposefully skirted these aspects of his case, with the result that there stand completely inconsistent factual assertions as to the true reason for the charges and the fines. There is more. Apparently without regard to any and all of the foregoing, the contention is then made that the offense really lay in the employees having taken a position, in the overall handling of their discharge grievance, that clashed with the arguments being made by the union agents. Every union member is said to have a right to insist that the union grievance committee represent him in his grievance on a basis acceptable to the member. Then comes still another reason for the fine, and it is that the events of October 25 endangered the positions of both the 13-man group and of the steward. Somebody had to suffer and the employees thought it right it should be McLaughlin, and not they. This fact of McLaughlin being a steward made the general membership particularly resentful of the unilateral action of the 13 in going directly to the Company. Under this view McLaughlin's status as a union agent becomes the critical element proving illegality in these fines. And again the General Counsel leaves unanswered the resultant embarrasing question: had McLaughlin not been a steward, but simply a 14th man who perhaps first inspired the others to strike and then ducked for cover, would the Union have been privileged, under the proviso of Section 8(b)(1)(A), to impose the fines and insist upon acceptance, by individual members, of the composite officer group judgment as to how to process the grievance? It may be that the prosecution's failure to choose any one of these many possible grounds for the fines, and to predicate the complaint on a definitive and understandable basis, resulted from the ambiguities, vagaries, inconsisten- cies, and generalities appearing throughout the many documents placed in evidence. In justice it must be said that it is virtually impossible to put the finger on a single act, common to all 10 of the persons covered in the complaint, as the basis of the union charges. Be that as it may, unlike inconsistent and alternative theories of law argued from a given set of basic factual assertions, an essential factual allegation cannot be pleaded as a multiple choice. Whatever the explanation, I find that the record does not prove a prima facie case in support of the complaint and shall therefore recommend dismissal. b. The reason for the union charges: Conclusion A reason for the fines there has to be and it must have been one applicable to all 10 of the men successfully charged. The language used by the Union and set out in the written charges placed in the hands of each member merely sets out general provisions from the constitution, language too all-embracing to permit specific findings. The strikers were treated as a group, when charged, when tried before the union committee, and when served with the penalty notices. This last, the final document, is worded the same in all 10 cases . Of particular interest is Joseph Till, who gave no written deposition to the Company and who did not appear at the arbitration hearing. There must be a common basis for joining him with the rest. On the record as made, the best source of information as to what this case is all about is the minutes of the internal union trial when the men were told why they had been charged, when their defense arguments were heard, and when the substance of the issues was discussed. The hearing was most informal, the notes sketchy, on occasion hardly legible, and very often rambling and out of context. One 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dung can be said with certainty: no single act by any one man, no particular conduct by any group of them, no isolated aspect of the total events which had occurred, stands out as of greater significance than any other. There were available in the room the depositions previously signed by the employees and the transcript of testimony taken before the arbitrator. These served to reveal all that had happened before. The fact that the written statements and the arbitration hearing testimony were used there is not sufficient reason for narrowing the basis of the charges to the mere fact of signing depositions and to testifying. The talk that went on covered all the preceding events. Fair appraisal of the evidence in its totality, and due regard for the logic required to consider the case as a single issue applicable to all 10 members fined, warrants the finding, which I make, that the charges were filed because, acting unilaterally and outside the contractually established grievance procedure, the men went directly to the employer to alter the course of the collective-bargaining process that was going on and to further their individual interests against those of the Union as an entity.6 By such conduct they undercut the statutory authority of the exclusive bargaining agent, and could properly be fined by the Union in keeping with the proviso to Section 8(b)(1)(A): ". . . this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." The complaint must therefore be dismissed. The realities are clear enough. Fourteen men struck, including McLaughlin. The Company discharged 13, but it could as well have dismissed McLaughlin also. Later that evening, first while drinking beer and later, at midnight, in discussion with the union officers, all of the men were still aroused and determined to close the whole plant. They rejected the sane advice of the officers to return immediate- ly to the Company and offer to resume working. It was only with the urgings of Kelber and Myers that they signed the formal, contract grievance form and agreed to have the Union attempt to get them not only their jobs but also what money they were losing while not working. And the Union promptly pressed the grievance, even jumping the prelimi- nary stages. The Company was tough; twice-on October 27 and 31-it condemned wildcat strikes and refused reinstatement. The Union's only choice was to go to arbitration and it prepared to do that. Vice President Kelber candidly told the discharged men their chances were slim and it would take some months in any event. Understandably they were unhappy; understandably they would seek to do something about their plight. And so, 2 days later, at the general steward meeting of November 2, they chose a spokesman-Gerald Matter-to implicate McLaughlin in the strike and to somehow make it appear the fault was his. With this, the Union asked did the men wish to prefer internal union charges against the steward; they refused to go that far. But they did, at the same time and in a day or two, assemble twice in the home of one or another of the group, to discuss what course to take. They decided to go to the 6 The processing of grievances during the life of a collective-bargaining agreement is a form of collective bargaining within the meaning of the Act Company in order, somehow or other, to get their jobs back. Losse, the company officer, when told the men wanted to see him about all this, said it was not necessary for all to come, it would be enough if they sent a representative member. Among those who went, on November 7, was Till. And they now described the events of the October 25 strike in a way that showed McLaughlin, for the least, to have been a striker himself. On hearing their stories, orally and then in writing, the Company took them back and fired McLaughlin. At the hearing in this proceeding, 3 years later, both the General Counsel and the Company insinuated, but did not directly avow, that McLaughlin caused the men to strike. He did not. The reason why the men struck is clear on the record; they struck because they felt they were underpaid; a specific grievance so claiming had been lost only days earlier. They talked to the steward about striking, and he did not attempt to dissuade them; he even cooperated and joined them. He was foxy and covered his departure more convincingly than they did. But it was not he who was responsible for the strike. Indeed later that evening the men continued to protest, at the union hall, that it was not right for others to be paid more than they and that everybody should quit to support their demand. Interwoven through the briefs supporting the complaint is the thought the Union preferred its steward over rank- and-file members, and therefore failed to represent all employees in the bargaining unit equitably. Presumably the Union could have avoided this charge only by offering McLaughlin as a sacrificial lamb in return for the jobs of 13 men. But all 14 were equal offenders under the current contract so far as the Company was concerned. A no less persuasive argument could be made that the Company had no adequate reason in the end to choose McLaughlin for punishment and go easy on the others who had shown as much contempt of prior warnings against wildcat strikes. No charge of ulterior motive was made against the Company, and I make no finding of improper conduct against it. But it is a possible speculation whether the Company may not itself have seized the moment to give vent to an union animus by striking only at the union agent. The further suggestion that Kelber, of the Union, sent the men to the Company to give statements endangering McLaughlin's job, is totally unwarranted on the evidence. Nor is there any significance in the fact the officers made no effort to prevent the giving of statements on November 9 and 14, or even the employee testimony of the arbitrator. The union agents were told they could come to the YMCA only as observers, and the action of the employee group remains from first to last purely a unilateral move bypassing the union hierarchy. And if the union member- ship, or its stewards who later filed the charges against these 10 men, waited until after McLaughlin's arbitration was decided, their patience adds no support to this complaint. The delay may have resulted from no more than a proper expectation that the calmer things remained until that question was decided, the better the chances McLaughlin, like the others before him, might have been restored to work. Bethlehem Steel, 89 NLRB 341 STEELWORKERS, LOCAL 1114 31 If there be such a thing as a purely internal union squabble, something that concerns no outsiders and that ought properly be left to the membership as a whole to resolve however they choose to live together, this is it. If there be a situation where the statute intended the Union to be free to "prescribe its own rules with respect to .. . membership . ..," clearly it must be when one group sets itself up to flaunt the regularly established procedures for running union affairs in an orderly fashion . No precedent to the contrary has been cited. To the extent that dicta in other decisions reach this subject it supports this view . "The employee may disagree with many of the union decisions but is bound by them. The majority-rule concept is today unquestionably at the center of our federal labor policy ." Allis Chalmers, supra. A persuasive analogy appears to the case of direct bargaining negotiations preceding a contract, where of necessity the union committee evaluates the interests of diverse categor- ies among the employees embraced within the single bargaining unit . A balancing of interests towards achieving overall benefit must be made . There will be those who feel the ultimate bargain was weighted too heavily, or unreasonably in favor of fellow members . But: "The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion." Ford Motor Co v. Huffman. It will not do for a litigant here after the event to characterize the position taken by the Union at the October grievance committee conferences as "technicalities," "perfunctory and restrictive," of "untenable nature," or "practically equivalent to a refusal to process the grievance at all." It may not have been much , in view of the obvious indefensibility of the wildcat strike , but the union representatives were doing the best they could in the circumstances . All 14 men had struck , but only 13 discharged . If in the judgment of the lawyers who wrote the briefs the Union lacked "good faith and honesty" because it did not put McLaughlin on the spot , theirs is only a personal opinion, and hardly determinative of the law. The reality that the 10 men-truly defectors from union ranks- made a shambles of the regular grievance procedure, is not altered by saying, as does the General Counsel's brief , that "Section 9(a) of the Act grants an individual employee the right to present his grievance directly to the employer." It is one thing for a discharged employee to go to the employer himself to handle his own affairs. It is quite another for him to file a contractual grievance through the union of which he is a member, and then, during the heat of the proceeding , insist that it be litigated as he, in disagreement with the officer body, sees fit, even to the extent of simultaneously dealing with company representatives behind the Union 's back. The fines imposed in this case were not directed against these men merely as employees of the Company, but rather as members of the Union . And it is with union membership that the proviso to Section 8(b)(1)(A) is concerned . That is why, in the Allis Chalmers case, the Supreme Court said: "Integral to this federal labor policy has been the power in the chosen union to protect against erosion its status under that policy through reasonable discipline of members who violate rules and regulations governing membership." 3. Section 8(b)(3) There is no merit in the further complaint allegation that the Respondent Unions refused to bargain with the Company in violation of Section 8(b)(3) of the Act. This charge rests upon the same story told above. The complaint details that the Union "deprived the Employer of pertinent evidence bearing upon the merits of a grievance " arising under the contract. The contention is explained in the brief as the counterpart to an employer's obligation, on demand, to furnish relevant information to a union, under Section 8(a)(5) of the Act, to enable it to bargain intelligently. To start with, the reason for the fine was to enforce a proper concern in any union that its members not derogate the duly constituted structure of its organization and not disrupt its lawful functioning as the representative of all employees in the bargaining unit . The purpose of the fine was not to conceal data, or to suppress evidence-as charged here . The analogy to Section 8(a)(5) of the Act is ill-taken in any event. The first element of any wage data case is that the union must demand company record information before it can be found that the refusal to furnish it was an unfair labor practice . There was no demand for anything here ; the Company filed no grievance, the Company wanted nothing of the Union. It had taught the employees a lesson-not to strike during the life of a contract-and it wanted that lesson to stick. Moreover, it is difficult to perceive how the Company could have asked for any information or evidence it knew nothing about. It was the Union that sought to get thejobs back for its members; it was the Union that wanted something. The real purport of the complaint on this point is that in the processing of a grievance , and, I suppose, at any stage in the collective-bargaining process , if there be a version of events, or any fact, that can favor the position of the employer, the law requires that the union volunteer it to the opposing side of the table . If this be a correct reading of the statute, it follows that any employer must bring to the bargaining table all those of its records that can conceiva- bly give support to a union's economic demands, regardless of whether the union asks for them , or even knows that they exist. In short, each side must be the helpmate of its opponent in the economic struggle of the collective- bargaining process. I do not read the statute, or the decisional precedents, in this fashion, and shall therefore dismiss the complaint in its entirety. In the day-to-day handling of grievances under a collective-bargaining agreement, the parties are best left to their own resources in the privacy of the conference room; it is by free and unhampered discussion that disagreements are settled and economic calm replaces industrial strife. It would be unhealthy, in the sense of frustrating freedom of movement by the negotiators , were the Government privileged to keep a sharp eye over the shoulder of each party to assure that they act and speak fairly, with open candor, and with a due regard for the interests of the opposition. An equally convincing argument might be made on this 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record that the refusal to bargain was committed by the Company. Regardless of whether it was Losse, vice president of industrial relations, who invited the employees to his office as a group, or, as really happened, it was the group of 13 acting in concert who came to him to save their skins, what happened on November 7 in the company office can fairly be described as direct dealing between employer and employees outside the knowledge of the exclusive bargaining agent and in derogation of its statutory agency authority. The employees were not interested in abstract justice or ultimate truth in any theoretical sense. They wanted their jobs back. And it would be unrealistic to say Losse did not know this and that he did not, between the words of the agreement to reduce the statements to writing, pretty much give them to understand all this would help them. There is no charge against the Company and this is an end to the matter. RECOMMENDATION For the foregoing reasons, and in consideration of the entire record, I recommend dismissal of the complaint.