Glaziers Local 1162, Painters

GLAZIERS LOCAL 1162, PAINTERS Glaziers Local Union No. 1162, affiliated with the Brotherhood of Painters, Decorators, Paperhangers, Glaziers and Glassworkers of America, AFL-CIO and Tusco Glass, Inc. and Stark Glass, Inc. Case 8-CB-1329 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On May 20, 1969, Trial Examiner David S. Davidson issued his Decision in the above-entitled proceeding, 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 exceptions to the Trial Examiner's Decision and a supporting brief. 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 and brief, and the entire record in this case and hereby adopts the findings, conclusions and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent , Glaziers Local Union No . 1162, affiliated with the Brotherhood of Painters, Decorators, Paperhangers, Glaziers and Glassworkers of America , AFL-CIO, Akron, Ohio, its officers, agents, and representatives , shall take the action set forth in the Trial Examiner's Recommended Order. 'We note that the Trial Examiner's Decision in National Grinding Wheel Company, Inc. Case 3 -CB-1068 referred to by the Trial Examiner in the instant case has been adopted by the Board . See 176 NLRB No. 89. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: Pursuant to a charge filed on November 13, 1968, by Tusco Glass, Inc. and Stark Glass, Inc., against Glaziers Local Union No. 1162, affiliated with the Brotherhood of Painters, Decorators, Paperhangers, Glaziers and Glassworkers of 393 America, AFL-CIO, hereinafter referred to as the Union, a complaint issued on January 31, 1969. The complaint alleges that the Union violated Section 8(b)(1)(A) by threatening to fine and fining two employees of Tusco and Stark for refusing to follow an instruction of the Union's business representative to leave their jobs at a time when both employers were parties to contracts with the Union containing a no-strike clause. By its answer the Union denies the commission of any unfair labor practices. A hearing was held before me on March 12, 1969, at Akron, Ohio. At the close of the hearing the parties were given leave to file briefs which have been received from the General Counsel and Respondent Union. Upon the entire record in the case, including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Tusco Glass, Inc., and Stark Glass, Inc., referred to herein as Tusco and Stark, are Ohio corporations, engaged at their respective locations in Dover and Massillon , Ohio, in glazing contracting work and in the fabrication of glass and metal products. Each annually receives at its place of business materials valued in excess of $50,000 directly from sources located outside the State of Ohio. I find that Tusco and Stark are employers engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE FACTS A. The Contracts Between the Parties On May 29, 1967, Respondent Union entered into an agreement with the Glazing Contractors Association of Akron and Canton to continue in effect through April 30, 1970.' At the time the contract was executed, existing Akron area wage rates were higher than Canton area rates. In view of this differential a rider was attached to the agreement establishing a separate scale of wage rates for journeymen glaziers in the Canton area and providing for a gradual increase in Canton rates over the term of the agreement in order to bring them up to the level of Akron rates by the end of its term. The rider provided that it was to apply to work performed by the Canton contractors "within the jurisdiction of same as outlined by Glaziers, Local Union 1162." In November 1967, Stark and Tusco, which were not then members of the Association, entered into separate contracts with the Union identical to the Association agreement and rider.' The basic agreement between the Union and the charging parties contained the following provisions: ARTICLE X Members of the Union will not work for any Employer that has not signed this Agreement or one similar as 'Separate agreements were executed covering outside glaziers and inside glass workers, respectively. The agreement covering the outside glaziers is the only one here involved. 'Stark later became a member of the Association, but Tusco did not. 177 NLRB No. 37 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approved by the International Brotherhood of Painters, Decorators and Paperhangers of America , AFL-CIO, or any Employer who does not live up to the provisions contained herein. ARTICLE XII In the event, during the term of this Agreement, there shall be any controversy or dispute, as to the meaning or application of the provisions of this Agreement, there shall be no suspension of work but all differences shall be adjusted by a Committee consisting of one (1) representative of the Company and one (1) representative of the Union , who shall, if they are unable to reach conclusion themselves , select an impartial third party . The decision of the majority of this Arbitration Committee shall be binding upon both parties . The cost of the Arbitration Committee , if any, shall be borne equally by both parties. The foregoing shall not apply in the event of default of fringe benefit payments (as specifically outlined in Article IV, Section c). B. The Question Arising Over Wooster Wage Rates In the fall of 1967, Stark performed glazing work on three construction jobs in the Wooster , Ohio, area. Two of these jobs were at Wooster College and the third was at a school in or near Wooster . In March 1968, Union Business Representative George Sokolovits informed Lombardi, general manager of Stark, that four of Stark's employees had complained to him that they had been paid the rates applicable to Canton area work on jobs in Wooster, Ohio, on which they believed the higher Akron rates were applicable . At that time Lombardi questioned Sokolovits as to the jurisdictional line which separated the Akron rate area from the Canton rate area, and Lombardi asked Sokolovits for a letter defining the line. Sokolovits told Lombardi that he believed that Akron rates applied to all of Wayne County , in which Wooster is located. Between March and September, Sokolovits raised the matter with Lombardi on several other occasions. According to Sokolovits soon after his first conversation with Lombardi about the claim , he learned that the dividing line between the two rate areas was U.S. Route 30, with all glazing work north of route 30 falling in the Akron area and work south of route 30 falling in the Canton area . He testified that he informed Lombardi of the correct dividing line shortly thereafter. However, Sokolovits conceded that he continued to refuse to comply with Lombardi's requests for a written statement describing the dividing line. Thereafter, according to Sokolovits, he ascertained that two of the three jobs in the Wooster area on which Stark's employees had worked were north of route 30, and he pressed for payment of the difference between Akron rates and Canton rates to four employees for work they had performed on those two jobs. Lombardi conceded that Sokolovits told him that route 30 was the dividing line, but testified that Sokolovits later told him he was not certain what the line was . Lombardi also testified that Sokolovits pressed him to pay the Akron rate on all three jobs despite the fact that two of the jobs fell in the Canton area as defined by Sokolovits. According to Lombardi he remained uncertain as to which rate applied to the work in question because of the lack of a written jurisdictional statement from the Union. However, Lombardi also testified that by September he told Sokolovits that there had been a clerical error and that he would pay Akron rates for the work in question. He conceded that he had no dispute or controversy with Sokolovits at that time , and he testified that all that remained was for him to check the pay records for the period in question, compute the amounts due, and make the payments. He also testified that he started to check the records in July and that he told Sokolovits that when the check was completed, he would make the payments. Lombardi's testimony that there remained confusion over the dividing line between the two jurisdictions and the jobs to which the Akron rate applied is not consistent with his testimony as to the posture of the matter by the beginning of September . Accordingly, I have credited Sokolovits as to what he had told Lombardi with respect to the dividing line and the Union's claim, and I find that by the beginning of September, as Lombardi conceded, he had agreed to pay the Union's claim after the records were checked and the amounts computed.' C. The Work Stoppage On September 8, Lombardi telephoned Sokolovits and told him that because of a material shortage, he lacked work for four outside glaziers. Sokolovits said that there was a need for outside glaziers in the Akron area and that he would find temporary employment for them. On September 9 the four employees who were entitled to backpay for the Wooster work started to work temporarily for other employers on referral by Sokolovits. A fifth outside glazier employed by Stark , Robert Wuske, was temporarily assigned to work for Tusco, of which Lombardi was vice president and former manager. Shortly before September 16, after learning that Stark could again utilize the four glaziers who had taken other temporary work, Lombardi asked Sokolovits to return the men to their jobs with Stark on Monday , September 16. Lombardi said he would contact their employers and see if he could get them back on short notice. On Friday, September 13, Lombardi contacted each of the four employees by telephone and told them he had work for them the following Monday. Each was noncommittal and indicated concern over giving notice to their interim employers and being contacted by Sokolovits. The four employees did not return to work on September 16, and Lombardi again contacted Sokolovits, reminding him of the terms they had agreed to in temporarily reassigning the men .' Lombardi asked why the men had not returned , and Sokolovits replied that they would not be returned until they were paid their backpay.' Lombardi expressed the view that the contract provided procedures to follow other than a work stoppage or walkout. Sokolovits did not respond. 'I also reject the General Counsel's contention that Lombardi's concession that he had no dispute or controversy with Sokolovits should be construed as a limited concession that he did not resist paying what he properly owed but remained in doubt as to the extent of his liability because of uncertainty over the dividing line. 'According to Lombardi, Sokolovits had agreed to get the men back on I or 2 days' notice Lombardi testified that when he reminded Sokolovits of this, Sokolovits told Lombardi that Sokolovits' word meant nothing and he would not return the men. 'Lombardi placed this conversation on September 23, although it GLAZIERS LOCAL 1162, PAINTERS The four employees did not return to work that week, and they refused delivery of registered letters mailed them by Stark. On September 27 and 28 Sokolovits requested all outside glaziers employed by Stark and Tusco to stop working for Stark and Tusco as of Monday, September 30, and to take jobs with other employers on that date. It is conceded that this request was made in support of the Union's request for payment of the Akron rate on the Wooster work performed the previous year. On September 27, Sokolovits went to the premises of Tusco where Elmer Negley and Robert Doty were working as outside glaziers for Tusco. Sokolovits sought their support in the wage dispute at Massillon, with evident reference to Stark , and asked them to leave their jobs and take other jobs . Initially, both Negley and Doty stated that they would not leave their jobs . Sokolovits said he would get their support one way or another and that he would have them before the union trial board . Doty then decided to comply, but Negley refused and continued to report for work thereafter.' Also on September 27, Sokolovits visited Stark's premises and told several employees , including Robert Wuske,' that he would have to pull them off the job until the wage dispute over the Wooster jobs was settled.' Sokolovits told them he would call them at their homes and tell them where to report for work the following Monday. The next morning, Sokolovits telephoned Wuske and told him to report to Kent, Ohio, to work on Monday. Wuske replied that he had a job at Stark and would not leave. Sokolovits replied that he would have to take a different route and go before the Executive Board. Wuske indicated that whatever happened would happen. He continued to report for work at Stark . He was the only outside glazier who did so until sometime in October.9 In late September , Lombardi advised his labor relations counsel, Edward Kaminski, that the glaziers employed by Stark and Tusco were on strike, and Kaminski arranged to meet with Sokolovits. During an extended discussion , Kaminski repeated Stark's request for a written statement of the boundary line between the Akron and Canton jurisdiction. He urged Sokolovits to put the men back to work and settle the matter through the contractual grievance procedure. Sokolovits took the position that the men wanted the money paid before they would return to work. Sokolovits and Kaminski reached a tentative agreement pursuant to which the men would return to work and file appears in context that it occurred on September 16. According to Lombardi, Sokolovits also conditioned their return on Stark 's agreement to provide for dues checkoff. Lombardi conceded that a dispute over the application of the check -off provisions of the Association agreement to Stark was settled by an agreement signed on September 20. Sokolovits testified that in August, Lombardi had asked to arbitrate the checkoff dispute, and that Stark signed the checkoff agreement in August, while Tusco signed it in September . It is not necessary to resolve the conflicts in testimony relating to the dues checkoff as there is no indication that it remained an issue by September 27 when Sokolovits asked the employees of Stark and Tusco to report to other employers. 'There was one inside glazier employed by Tusco who was not asked to leave his job. 'Wuske had been an outside glazier for Stark for about I year. Before that he had been shop superintendent for I I years. 'According to Wuske, two of the employees to whom Sokolovits spoke were inside glaziers. A third and Wuske were outside glaziers. 'According to Wuske one of the inside glaziers employed by Stark left his job and the others did not . There is no evidence that any additional pressures were placed on the inside glaziers after Sokolovits' September 27 visit. 395 a grievance while Respondent would withdraw a prior charge that had been filed. The following day Kaminski called Sokolovits to tell him that the companies had agreed to withdraw the charge, but Sokolovits stated that he could not put the men back until they were paid. Kaminski then advised his clients to compute the backpay and make out the checks so that work could be resumed . On October 7 or 8 Kaminski advised Sokolovits that the checks were being made out. Sokolovits then notified the glaziers to return to their jobs. On October 10, the outside glaziers at Stark returned to work and the full complement returned at Tusco by October 23. D. The Charges Against Negley and Wuske In the latter part of October, Negley and Wuske were sent copies of Union charges filed against them by Sokolovits charging them with violations of enumerated sections of the constitution of the Union's parent Brotherhood and of the Union's bylaws." The explanation set forth in the charges against Negley was:" On September 27th, 1968, Brother Elmer Negley did wilfully interfere with the orders of the Business Representative of Glaziers & Glassworkers, Local 1162 to perform his duties to protect eight (8) brother members of Glaziers & Glassworkers, Local 1162. The charge gave notice of a hearing before a Trial Board on November 16, 1968. The Trial Board hearing was held as scheduled. Both Negley and Wuske appeared, pleaded not guilty, and were tried together, apparently with their consent. Their testimony and the nonverbatim minutes of the hearing prepared by the Trial Board secretary from a tape recording of the trial, since erased, establish that the violations charged against the two men were based on their refusal to stop work for Tusco and Stark when requested by Sokolovits. At the conclusion of the trial, the Trial Board determined that both men were guilty and imposed a fine of $100 on each of them to be paid by November 30, 1968. Neither Negley nor Wuske has paid the fine. E. Concluding Findings The evidence establishes that on September 27 Respondent caused the employees of Stark and Tusco to engage in a concerted work stoppage because of Stark's failure to pay four employees the Akron rate for work they had performed in Wooster. Although it appears that the four employees with backpay claims were then working for other employers as a result of Respondent's work shortage earlier in September, there was more than a simple refusal by the four employees to return to their jobs with Stark until paid. Business Representative Sokolovits asked other outside glaziers to take other employment and brought charges against the two who refused to do so. The occurrence of the work stoppage, its "The charges against both were the same except that the charge against Negley enumerated two sections that were not included in the charge against Wuske. One of the additional violations charged against Negley stemmed from a statement about the Union attnbuted to him by Sokolovits at the time Sokolovits asked him to leave work The minutes of the trial indicate the Negley was found not guilty with respect to the portion of the charge against him based on the statement. Another violation was apparently based upon Negley's notifying the companies of the charges against him. Negley was found guilty of that charge. "The explanation in the charge against Wuske was identical except as to name and date. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause, and the Union's responsibility for it are all clear. It is also clear from the trial minutes and the testimony of Negley and Wuske that the charges against them which resulted in their fines were based upon their refusal to leave work, as asked by Sokolovits, to join in the work stoppage of Tusco and Stark employees. The General Counsel contends that the work stoppage was in violation of article XII of the agreements between Respondent and the companies and was therefore unprotected. Accordingly, the General Counsel contends that this case is distinguishable from N.L.R.B. v. Allis-Chalmers, 388 U.S. 175, and that the fines imposed by the Union on Negley and Wuske violated Section 8(b)(l)(A) of the Act. Respondent contends on the other hand that the fines were purely an internal union matter over which the Board has no jurisdiction and that in any event Article X of its agreements with the companies freed it to withhold the services of its members from the companies so that the Allis-Chalmers decision controls this case.12 1. The application of the no-strike clause Articles X and XII of the agreement between the Union and the companies are set forth above in their entirety." The critical portion of article XII provides that in the event of "any controversy or dispute, as to the meaning or application of the provisions of this Agreement, there shall be no suspension of work but all differences shall be adjusted" by a committee of representatives of the parties and an impartial third party, if required. Article X on the other hand provides that union members will not work for any employer that has not signed the agreement, or a similar agreement approved by the Brotherhood "or any Employer who does not live up to the provisions contained herein." The General Counsel contends that there was a dispute between the parties within the meaning of article XII over the payment for the Wooster jobs which required its submission to the grievance procedure. Respondent contends, however, that as Lombardi had conceded liability but failed to make payment, there was no dispute or controversy within the meaning of article XII and that Stark and Tusco were employers who failed to live up to the provisions of the agreement within the meaning of article X for whom Union members will not work. As I have found, before the work stoppage occurred Lombardi had agreed to pay Akron rates for the Wooster work in accord with the Union's claim, and all that "Respondent contends further that no violation should be found because Negley and Wuske failed to file appeals within the Union in accord with the procedures established in the Brotherhood ' s constitution. Negley conceded that he did not file an appeal but explained that he had requested necessary appeal papers which had never been furnished him. Wuske was not questioned about an appeal. It appears from Negley's testimony and sec 275(c) and 289 of the Brotherhood Constitution that the Union's failure to present Negley and Wuske with a written decision may have prevented their compliance with the appeal procedures of the constitution In any event, what is involved in this proceeding is the enforcement of public rights and not the internal rights of a member vis-a -vis his union, so that exhaustion of internal union appeals is not required before the Board's processes may be invoked Local 138 International Union of Operating Engineers, AFL-CIO (Charles S. Skura), 148 NLRB 679, 684. "Respondent appears to contend that the interpretation of its contract is a matter for the courts over which the Board lacks jurisdiction. However, it is settled that where the interpretation of an agreement is required in order to determine whether unfair labor practices have occurred, the Board has the power to interpret the agreement . N L R.B v C & C Plywood Corp.. 385 U.S 421, Mastro Plastics Corp v. N.L R B., 350 U S 270 remained was to check Stark's records, compute the amounts due, and make payment. The initial question to be answered is whether at this point the Union's claim for back wages gave rise to a "controversy or dispute, as to the meaning or application" of the provisions of the agreement within the meaning of article XII. Although Lombardi conceded that there was no "dispute" or "controversy" between him and Sokolovits, his concession does not dispose of the question. Lombardi did not concede that he interpreted article XII as inapplicable, and there remained unsettled the question of the amounts due and when they were to be paid even though he conceded liability for back wages. The Union's obligation to refrain from work stoppages established by article XII is directly tied to the obligation of the parties to submit controversies or disputes to arbitration. If the unsettled issues between the parties at the time of the work stoppage were arbitrable under the agreement, then under the terms of article XII the Union was obligated to pursue arbitration to settle the issues and was not free to engage in a work stoppage. In construing agreements to arbitrate in labor agreements, the Supreme Court has said: "[T]o be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery or arbitration, the judicial inquiry under Section 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage."" The Court also stated, "In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad." 's This approach to the interpretation of agreements to arbitrate was found to be dictated by the federal policy reflected in national labor laws "to promote industrial stabilization through the collective bargaining agreement" which is fully achieved "when the agreement contains both an arbitration provision for all unresolved grievances and an absolute prohibitation of strikes, the arbitration agreement being the `quid pro quo' for the agreement not to strike."" Following this approach the Supreme Court rejected the so-called Cutler-Hammer doctrine" that "If the meaning of the provision of the contract sought to be arbitrated is beyond dispute, there cannot be anything to arbitrate and the contract cannot be said to provide for arbitration."" Here the Respondent Union argues that its grievance was so clearly meritorious in view of Lombardi's concession that there was no dispute or controversy and the Union was free to strike . However, assuming the merit of its claim , its argument in this respect appears no "United Steelworkers of America v Warrior and Gulf Navigation Co, 363 US 574, 582-583. "363 U.S. at 584-585. 11363 U.S. at 578 and fn 4. "International Association of Machinists v Cutler-Hammer, Inc, 271 App. Div 917, affd. 297 N Y. 519. "United Steelworkers of America v American Manufacturing Co, 363 US 564, 567 GLAZIERS LOCAL 1162, PAINTERS different in kind from that rejected in The American Manufacturing Company case. Just as "The processing of even frivolous claims may have therepeutic values which those who are not a part of the plant environment may be quite unaware,"" so also the processing of a meritorious claim through the grievance and arbitration procedure may have similar effect. While an argument can be made that in the circumstances of this case at the time the work stoppage occurred Respondent's position was the same as if it had an arbitration award with which Stark failed or refused to comply, it cannot be said that the construction of article XII which the Union urges is free of doubt, that the evidence of a purpose to exclude the Union's claim for back wages from the arbitration provision was "most forceful," or that the arbitration clause is not susceptible to an interpretation that covered the Union's claim. As set forth, even after Lombardi's concession of liability, it remained for Stark to check its records, compute the amounts due, and pay them. Although there was no dispute over liability, and thus it may be said that there was no dispute or controversy over the meaning of the agreement, there was at the very least a controversy over application of the agreement. Far from exhibiting a purpose to exclude this controversy from the arbitration agreement, the last paragraph of article XII indicates a contrary conclusion. That paragraph states a purpose to exclude from the grievance and arbitration provisions defaults of fringe benefit payments, referring to article IV, Section c of the agreement. Article IV, section c, expressly states the right of the Union to declare the agreement terminated on 5 days written notice in the event of a nonpayment of health, welfare, and vacation contributions to Union funds. It permits the Union to strike in the event of such nonpayment without liability for damages after 5 days' notice of termination has been given. Having specifically provided for the suspension of the grievance procedure in the event of default of payment of fringe benefits, it may be concluded that the parties intended no similar exclusion for other defaults. Even if one were to interpret the last paragraph of article IV as extending to defaults in wage payments, there is no evidence that any written notice of intent to terminate was given by the Union, so as to bring its provisions into play. There remains for consideration the impact of article X. While the full scope and intent of this article is far from clear, the question here is what is meant by "an employer who fails to live up to the provisions" of the agreement, which in turn leads to the question of by whom or how it is to be determined whether an employer has failed to live up to the provisions of the agreement. If that determination is independent of article XII, then the Union would have the option or perhaps even the duty to withhold the services of its members whenever it was certain the agreement had been violated without first resorting to the grievance and arbitration provisions of the agreement. In view of the mandatory language of article XII, a more plausible reading of article X requires that the determination of whether the employer has failed to live up to the provisions of the agreement is to be made pursuant to article XII before the Union is free to strike. Thus, if there is a controversy or dispute as to the meaning or application of the Agreement, the Union is free to strike under article X only after a determination by the majority of the Arbitration Committee provided in "363 U.S. at 568. 397 article XII and a refusal by the employer to accept the determination of the Arbitration Committee as binding. So construed, article X does not free the Union to strike, if as here, article XII applies and its procedures were not exhausted. While other constructions of Article X can be argued, I can find in it no clearer exclusion of the Union's claim from its no-strike obligation than appears in article XII. Accordingly, I conclude that the Union's back wage claim gave rise to a dispute or controversy within the meaning of article XII at the time the work stoppage occurred. As the Union caused a suspension of work over its claim for back wages, without first exhausting the grievance and arbitration procedures, the Union violated its obligation under article XII to refrain from a suspension of work.20 2. The fines In N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, the Supreme Court held that Section 8(b)(1)(A) was not violated when a union threatened and imposed fines against members who crossed a picket line and went to work during authorized strikes against their employer. There the strikes were in support of demands for new agreements, and there was no contention that the union had violated any contractual obligation by striking. Although there is language in the principal opinion of the Court which may be broadly read to support the position of Respondent in this case, it is clear that in Allis-Chalmers the Court was concerned only with internal union discipline which restrained or coerced employees to join in "authorized" and "lawful" concerted activity. 31 Subsequently, in N.L.R.B. v. Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, 391 U.S. 418, the Court considered the expulsion of a union member for filing a charge with the Board alleging that the union had violated the Act. The principal issue in that case was whether the union violated Section 8(b)(1)(A) by disciplining an employee for failure to exhaust all the remedies available to him within the union before he filed charges with the Board. However, the Court indicated therein its agreement with the Board that an expulsion based on the filing charges with the Board violated Section 8(b)(1)(A). The Court stated "Section 8(b)(1)(A) assures a union freedom of self-regulation where its legitimate internal affairs are concerned. But where a union rule penalizes a member for filing an unfair labor practice charge with the Board other considerations of public policy come into play."" Finding a public policy in keeping persons free of any coercion against making complaints to the Board important to the functioning of the Act as a whole, the Court agreed that "overriding public interest"" made "In all of the above, I have considered the obligation of the Union to Stark and Tusco as the same. Although it can be argued that the work stoppage at Tusco, where Negley was employed, raises a different issue from the work stoppage at Stark , neither counsel for the General Counsel nor Respondent in their briefs have separated the work stoppages at the two locations for purposes of argument . There is some evidence to indicate a close relationship between Tusco and Stark, and it appears from the minutes of the union trial of Negley and Wuske that the Union acted on the belief that both corporations stood in the same position. In these circumstances, I have treated the work stoppage as if it were a single work stoppage against a single employer for purposes of decision in this case. "388 U.S at 176-177. 11391 U.S. at 424. "Ibld 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unimpeded access to the Board the only alternative , except and unless plainly internal affairs of the union were involved . As the charges that the employee filed with the Board went beyond the internal affairs of the Union, the Court concluded that the expulsion of the employee based on his filing of the charges violated Section 8(b)(1)(A). Allis-Chalmers and Marine & Shipbuilding Workers left open the question of what constitutes "legitimate internal" union affairs and whether other public interests may be deemed to override the right of a union to impose discipline in the conduct of its internal affairs without violating Section 8(b)(1)(A). More recently in Scofield et al v. N.L.R. B., 89 S.Ct. 1154, the Court sustained the right of a union , without violating Section 8(b)(1)(A), to fine union members for violating union rules against drawing more than a "ceiling" rate for their production under an incentive pay system . There after reviewing Allis-Chalmers and Marine & Shipbuilding Workers, the Court stated:" Under this dual approach, Sec. 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule. Applying this view of Section 8(b)(1) to the case before it the Court focused its inquiry "on the legitimacy of the union interest vindicated by the rule and the extent to which any policy of the Act may be violated by the union-imposed production ceiling."" Before concluding that no impairment of statutory policy was shown, the Court first satisfied itself that enforcement of the union rule did not impede collective bargaining , did not violate the contract between the union and the employer, did not result in featherbedding, induced no discrimination by the employer against any class of employees, and represented no dereliction by the union of its duty of fair representation. Both the statement of the Court's view and the scope of its inquiry in Scofield support the contention that the policy of protecting the right of employees to file charges against restraint is not the only policy which may override a union' s right to enforce its internal rules under Section 8(b)(1)(A). Even before the Supreme Court decided Scofield, in Local 12419, International Union of District 50, United Mine Workers of America (National Grinding Wheel Company, Inc.),=6 Trial Examiner A. Norman Somers concluded that the considerations of public policy which outweigh a union's right to impose internal union discipline were not limited to those before the Court in Marine & Shipbuilding Workers. The opinion of the Court in Scofield supports that conclusion which I also reach herein. Here the policy which must be weighed against the right of the Union to impose internal discipline concerns adherence to the terms of a collective-bargaining agreement. As Trial Examiner Somers observed in his decision in National Grinding Wheel the policy of encouraging adherence to collective-bargaining agreements has been implicit in the preamble of the Act from its inception and was voiced in the reports of both houses of Congress." Early in the administration of the Act, the "89 S.Ct. at 1158. "89 S.Ct. at 1158. "Case 3-CB-1068, decided July 30, 1968, and now pending before the Board Supreme Court gave force to the policy in holding that a violation of a collective bargaining is not a protected activity and that employees may lawfully be discharged for its repudiation." In 1947, when the Act was amended, Congress demonstrated further interest in providing for the enforcement of collective-bargaining agreements by adding Section 203(d) and Section 301 and "promoting collective bargaining that ended with agreements not to strike."2' The finding of a federal policy reflected in the national labor laws "to promote industrial stabilization through the collective bargaining agreement" led the Supreme Court to conclude that Section 301 is not merely procedural but requires the fashioning of a body of federal substantive law for the enforcement of collective-bargaining agreements," that an agreement to arbitrate is to be construed in favor of arbitration if there is doubt as to its coverage," and that an agreement not to strike is to be implied coextensive with an agreement to arbitrate, even where the parties to a contract have not explicitly agreed to ban strikes." In this case, the fines were based not simply upon a refusal to violate an agreement but on a refusal to violate the no-strike clause of an agreement. If policy favoring enforcement of agreements were not deemed to override the right of a union to impose discipline upon its members, the Union would remain free through the imposition of fines to coerce otherwise unwilling employees to join in strikes in breach of contract, making more complete the disruption of the employers' business, subjecting the employers to greater economic pressure at a time when the employers had contracted to be free of them, and exposing the unwilling employees to the possibility of discipline by the union if they resisted joining in the violation of the agreement or of discipline by the employer if they did not. Like Trial Examiner Somers in National Grinding Wheel, supra, I conclude that the public policy in favor of enforcement of collective-bargaining agreements overrides and outweighs the Union 's right to discipline its members for violating rules enforced to compel their participation in a strike in breach of contract, and it would "impair ... policy Congress has imbedded in the labor laws" to hold in this case that Section 8(b)(l)(A) does not reach the discipline imposed on Negley and Wuske. Accordingly, I find that Respondent violated Section 8(b)(1)(A) by imposing fines on Elmer Negley and Robert Wuske because they failed to heed the request of Sokolovits to leave their jobs with Tusco and Stark and report to other employers in support of Respondent's efforts to compel payment of the back wages to Stark's employees. 3. The threats The complaint also alleges that Respondent violated Section 8(b)(1)(A) by Sokolovits' threat to Negley and "H Rep No 1147, 74th Cong. 1st Sess. p. 20, S Rep No. 753, 74th Cong., 1st Sess. p. 13. "N.L R B. v. The Sands Manufacturing Company. 306 U S 332. "Textile Workers Union of America v Lincoln Mills of Alabama. 353 U.S. 448, 453. "Textile Workers Union of America v. Lincoln Mills of Alabama, supra "United Steelworkers of America v. Warrior A Gulf Navigation Company, supra, United Steelworkers of America v American Manufacturing Company, supra "Local 174, Teamsters, etc. v Lucas Flour, 369 U.S 95 GLAZIERS LOCAL 1162, PAINTERS Wuske that he would bring charges against them if they failed to heed his request . The evidence shows that on September 27 and 28 when Negley and Wuske indicated to Sokolovits their intention to remain on their jobs, Sokolovits told Negley that he would get his support one way or another and that he would have him before the Union Trial Board. Sokolovits told Wuske that he would have to take a different route and go before the Executive Board . Both statements by Sokolovits signalled his intention to institute disciplinary action against Negley and Wuske if they failed to leave their jobs and constituted threats of disciplinary action . As I have found that the disciplinary action subsequently taken violated Section 8(b)(1)(A) of the Act, I also find that the threats to take such action violated Section 8(b)(l)(A) of the Act." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the employers 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 commerce and the free flow thereof. V. THE REMEDY Having found that Respondent Union has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent Union violated the Act by fining Elmer Negley and Robert Wuske because of their refusal to join in a strike in violation of its contracts with Stark and Tusco, I shall also recommend that Respondent Union be ordered to rescind the fines imposed on them , notify them of the recission of the fines, and reimburse and make them whole for the amount of the fines they may have paid with interest at 6 percent per annum." Upon the basis of the above findings of fact and the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Glaziers Local Union No. 1162, affiliated with the Brotherhood of Painters, Decorators, Paperhangers, Glaziers, and Glassworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Tusco Glass, Inc., and Stark Glass, Inc., are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By threatening to fine and fining employees for refusing to join in a work stoppage called by Respondent in violation of its agreements with the charging parties, Respondent restrained and coerced employees of the charging parties in the exercise of their rights guaranteed "Red Ball Motor Freight, Inc., 157 NLRB 1237, enfd . 379 F.2d 137 (C A.D.C.); St. Louis Offset Printing Union, AFL-CIO, et al (Mendle Press, Inc), 130 NLRB 324; United Furniture Workers of America, Local 309, CIO, et al (Smith Cabinet Manufacturering Company, Inc.), 81 NLRB 886. "Local /38, International Union of Operating Engineers, AFL-CIO, (Charles S. Skura), supra. 399 by Section 7 of the Act and has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10(c) of the Act, I hereby recommend that Respondent, Glaziers Local Union No. 1162, affiliated with the Brotherhood of Painters, Decorators, Paperhangers, Glaziers, and Glassworkers of America, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Assessing fines against , otherwise disciplining, or threatening to discipline members for failing or refusing to provisions of any agreement between Respondent and participate in a work stoppage in violation of the no-strike Stark Glass, Inc. or Tusco Glass, Inc. ' (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Rescind the fines imposed on Elmer Negley and Robert Wuske for having failed or refused to join in the work stoppage of the employees of Stark Glass, Inc. and Tusco Glass, Inc., which occurred during September and October 1968, and inform each of them by letter that the fines have been rescinded. (b) Reimburse and make each of the above-named persons whole for the amount of the fine he may have paid as set forth in the section of the Decision above, entitled "The Remedy." (c) Post at its offices and meeting halls copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent labor organization to insure that said notices are not altered, defaced, or covered by other material. (d) Mail signed copies of said Appendix to the Regional Director for Region 8 for posting by Stark Glass, Inc. and Tusco Glass, Inc., if said employers are willing, at all locations where notices to their employees are customarily posted. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith." "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 substituted 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 said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL MEMBERS OF GLAZIERS LOCAL UNION No. 1162, AFFILIATED WITH THE BROTHERHOOD OF PAINTERS, DECORATORS, PAPERHANGERS, GLAZIERS, AND GLASSWORKERS OF AMERICA, AFL-CIO 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 Relations Act, as amended, we hereby notify you that: WE WILL NOT assess fines , against, otherwise discipline, or threaten to discipline our members for failing or refusing to participate in a work stoppage in violation of the no-strike provisions of any agreement we have with Stark Glass, Inc., or Tusco Glass, Inc. WE WILL rescind the fines imposed on Elmer Negley and Robert Wuske for having failed or refused to join in the work stoppage of the employees of Stark Glass, Inc., and Tusco Glass, Inc., which occurred during September and October 1968. WE WILL make Elmer Negley and Robert Wuske whole for the amount of the fine either of them may have paid because of his failure or refusal to participate in said work stoppage. WE WILL NOT in any like or related manner restrain or coerce our members in the exercise of their rights guaranteed in Section 7 of the Act. Dated By GLAZIERS LOCAL UNION No. 1162, AFFILIATED WITH THE BROTHERHOOD OF PAINTERS, DECORATORS, PAPERHANGERS, GLAZIERS AND GLASS WORKERS OF AMERICA, AFL-CIO (Labor Organization) (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, 1695 Federal Office Building, 1240 East 9th Street , Cleveland, Ohio 44199, Telephone 216-522-3715.