Independent Shoe Workers of Cincinnati, Ohio

INDEPENDENT SHOE WORKERS Independent Shoe Workers of Cincinnati . Ohio (The United States Shoe Corporation) and Boot and Shoe Workers Union, AFL-CIO-CLC. Case 9-CB-2287 January 15, 1974 DECISION AND ORDER BY MLMEERS FANNING, KENNEDY, AND PENELLO On July 31, 1973. Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in support of the Decision. Pursuant to the provisions of Section 3(h) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The central issue herein is whether the circum- stances of the instant case call for the application of the principles announced in the Board's Blackhawki and Visinet2 decisions. The Administrative Law Judge found that they did not apply. We disagree. As the Administrative Law Judge found, the Respondent and the Company are parties to a collective-bargaining agreement which is due to expire at the end of 1973. Toward the close of August 1972, the Charging Party began to organize the Company's employees. Thus, on August 30, 1972, the Charging Party's international representative, James Fowlkes, met with five company employees. Mary Margaret Elswick, one of the fined employee members herein, was in attendance at said meeting. In the course or' this meeting, Fowlkes told the employees in attendance that they would have to have approximately 50 percent of the employees sign authorization cards in order to petition the National Labor Relations Board, and, further, that if they received enough cards and filed such a petition they would have to file same from 90 days to 60 days before the expiration of the contract between Respondent and the Company. Thereafter, employ- ees Mary Margaret Elswick, James Elswick, and Carl Ray Hammons, the complainants herein, signed authorization cards and actively campaigned for the I International Molders' and Allred Workers Union, Local No 125, AFL-CIO (Blackhakk Tanning Co , Inc;, 178 NLRB 208. The principles of Blackhawk apply equally to conduct directed toward replacing the incumbent union with another union , such as in the instant case. Tri-Rivers 411 Charging Party, agressively soliciting other employ- ees to sign authorization cards. On October 3, 1972, Respondent sent each of the complainants an identical letter, which in sum advised the complainants that Respondent's execu- tive committee was aware that the complainants were "involved in activities to undermine" Respondent-, that on September 27, 1972, a majority of said committee had voted to suspend or fine the com- plainants because of such activities: and further that a hearing in the matter would be held on October 20, 1972. Said hearing was held and, as a result thereof, the complainants were fined as found by the Administrative Law Judge, because "they had engaged in rival union activities and not because they had harassed or had intimidated their co- workers." This finding would seem to compel a conclusion that Respondent violated Section 8(b)(1)(A) when it fined the complainants for their solicitation of cards on behalf of a rival union to support a petition to be filed with the Board for a certification election, as the Board so held in Visinet, supra. Yet the Administrative Law Judge concluded to the contrary for the reason that "the rival union activities in which the complainants were engaged were too far removed in time from the period when a petition under Section 9(c) could have been filed to call for the application of the principle of the Blackhawk and the Visinel cases." He rooted his conclusion in the fact that the complainants' activi- ties occurred in September 1972, when the existing collective-bargaining agreement had 1 year to run, and therefore any petition then filed would have been untimely. We disagree with this reasoning. First,' that the purpose of the rival union solicitors was to invoke the processes of the Board by means of petition is clear from the facts. The rival union's representative informed its adherents that a sufficient number of signed authorization cards were necessary to support a petition, and it was precisely that conduct for which the complainants were subse- quently fined by Respondent. Such activity is, of course, essential preliminary work attendant to the filing of a petition.3 Second, whether a petition filed in September 1972 would have been timely is not the dispositive question. Admittedly, the rival union representative discovered subsequent to his August 30 meeting with his supporters that a petition probably could not be filed for another year "and that it would be useless to continue at the pace we were going." However, by Marine Engineers Union (United States Steel Corporation), 189 NLRB 838. 2 Local Union No. 953, Textile Workers Union of America, AFL-CIO ( Visinet Mill, Bemis Company, Inc.), 189 NLRB 598. 9 Visinet, supra, at 604 208 NLRB No. 64 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then the complainants had already begun their drive to replace the incumbent Respondent with the rival union, for which Respondent fined them. Further- more, while it may have been early in the day to prepare to file, a petition, the cards then secured, and those acquired later in the course of the organizing effort, would be examined by the Board at the time of the filing of the petition, and found valid or not at that time under the Board's standards. Finally, there is no question but that the complainants intended their efforts to eventually result in the timely filing of a petition during the 90-to-60-day period prior to the expiration of the contract. Therefore, we find that by their organizing and soliciting efforts herein the complainants were engaging in preliminary work essential to the timely filing of a petition with the Board for a certification election. Visinet, supra. The mere fact that the complainants' exercise of their Section 7 rights may have been tactically premature is not a sufficient reason, in our view, to permit the Respondent Union to deny them their Section 7 right to invoke the Board's processes, by means of punitive fines. We therefore hold that Respondent violated Section 8(b)(1)(A) of the Act by fining the complainants herein for signing bargaining authorizations, and for soliciting fellow employees to sign bargaining author- izations, for a rival union to support the filing of a petition with the Board for a certification election. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations of the Employer, 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 of commerce. CONCLUSIONS OF LAW 1. By imposing fines against Mary Margaret Elswick, James Elswick, and Carl Ray Hammons because they had signed collective-bargaining au- thorizations and solicited fellow employees to sign collective-bargaining authorizations for a rival union to support a filing of a certification election petition with the Board, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 2. The aforesaid unfair labor practices are unfair 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Union has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirma- tive action which will effectuate the policies of the Act. To remedy the coercive effect of the fines assessed by Respondent, we shall order that Respondent Union rescind the fines assessed against the Elswicks and Hammons. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the Respondent, Inde- pendent Shoe Workers of Cincinnati, Ohio, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Assessing fines against its members for signing bargaining authorizations or for soliciting fellow employees to sign bargaining authorizations for a rival union to support the filing of a certification election petition with the Board. (b) In any like or related manner interfering with, 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 assessed against Mary Margaret Elswick, James Elswick, and Carl Ray Hammons for signing bargaining authorizations for, and for soliciting fellow employees to sign bargaining authorizations for, a rival union to support the filing of a certification election petition with the Board. (b) Post at Respondent's business offices and meeting halls copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail to the Regional Director for Region 9 sufficient copies of said notice, to be Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." INDEPENDENT SHOE WORKERS 413 furnished by him for posting by the Company , if it is willing at places where it customarily posts notices to its employees. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 3003, 550 Main Street , Cincinnati, Ohio 45202, Telephone 513-684-3686. DECISION STATEMENT OF THE CASE MEMBER FANNING, dissenting: I would dismiss the complaint for the reasons set forth in the dissent to International Molders' and Allied Workers Union, Local No. 125, AFL-CIO (Blackhawk Tanning Co., Inc.), 178 NLRB 208. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assess a fine against any members of our Union for signing collective- bargaining authorizations or soliciting employees to sign bargaining authorizations to support a petition to the National Labor Relations Board for a certification election petition for a rival union to be filed with the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with , restrain , or coerce you in the exercise of your rights guaranteed in Section 7 of the Act. WE WILL rescind the fines assessed against Mary Margaret Elswick, James Elswick, and Carl Ray Hammons for signing collective-bargaining authorizations or for soliciting fellow employees to sign bargaining authorizations for a rival union to support a petition for certification election petition to be filed with the Board. INDEPENDENT SHOE WORKERS OF CINCINNATI, OHIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- HERBERT SILBERMAN, Administrative Law Judge: A hearing was held in this proceeding on January 22, 1973, at which Respondent withdrew its answer subject to stated conditions. A decision thereafter was issued by the Administrative Law Judge on January 31, 1973 . General Counsel filed exceptions to the Decision which the Board sustained and the Board issued a Decision and Order Remanding Proceeding to Regional Director, reported at 203 NLRB No. 128, directing that the record be reopened and that a plenary hearing on the merits be conducted. A further hearing in the matter was held on June 26, 1973. Respondent in its answer admits the allegations of the complaint relating to the jurisdiction of the Board and relating to its status and the status of the Charging Party as labor organizations . Following the close of the hearing briefs were filed by General Counsel and the Respondent. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE ISSUES The complaint alleges, in substance, that the Respon- dent, which has a collective-bargaining agreement with The United States Shoe Corporation, on October 20, 1972, imposed a $50 fine on three of its members who are also employees of the Company , namely, Carl Ray Hammons, Mary Margaret Elswick, and James Elswick , because they had solicited support for the Charging Party with the object of displacing Respondent and substituting the Charging Party as their collective-bargaining representa- tive. The answer, in addition to denying the allegations of the complaint, alleges that the three persons named were fined because of harassment and intimidation of their fellow member-employees and because of their attempt to undermine the authority of the Respondent in its relation- ship with The United States Shoe Corporation. II. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent and the Company have had contractual relations for many years covering a unit of approximately 350 employees . Their most recent agreement is for a term of 3 years expiring at the end of 1973. Towards the close of August 1972 the Charging Party began to organize the Company's employees . On August 30, Charging Party's international representative, James Fowlkes, met with five company employees.' Authoriza- tion cards were distributed and the employees were asked to solicit their coworkers to sign such cards. On September ' The August 30, 1972, meeting appears to have been the only meeting of company employees held by the Charging Party 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 13, Fowlkes distributed handbills to the Company's employees at one of its Cincinnati plants. During the next 2 weeks, in particular, employees Mary Margaret Elswick, James Elswick and Carl Ray Hammons (the three are sometimes referred to below as the "complainants"), who are members of Respondent, actively campaigned for Charging Party and aggressively solicited other employees to sign authorization cards. At the end of September 1972, when Fowlkes obtained a copy of the agreement between the Respondent and the Company and realized that "we couldn't intervene until the latter part of '73," he advised the in-plant organizing committee to reduce the level of their activities pending "a full drive" at the end of 1973. On October 3, 1972, Respondent sent each of the complainants an identical letter which, in pertinent part, reads as follows: This letter is written to you as a member of the Independent Shoe Workers Union of Cincinnati, Ohio, at the request of its Executive Committee. It has come to the attention of union representatives that you are involved in activities to undermine the Independent Shoe Workers Union by reason of your using your place of employment and association with fellow union workers to encourage other members of the Independ- ent Shoe Workers Union to have the Independent Shoe Workers Union of Cincinnati, Ohio, decertified as the union representing the employees at the U. S. Shoe factory on Herald Avenue and/or the U. S. Shoe warehouse on Mosteller Road. The Constitution of the Independent Shoe Workers Union states that the Executive Committee may, upon a majority vote, suspend and/or fine members of the union for cause if they become "undesirable". On Wednesday, September 27, 1972, a majority of the Executive Committee voted to suspend or fine you because of the above alleged activities . Consequently, in conformance with the provisions of the Constitution and with due process of law, the Secretary has requested the undersigned , as General Counsel and in behalf of the Secretary, to notify you of the vote for suspension and/or fine, and state that pursuant to the Constitution, you will be afforded a hearing on the suspension and/or fine which hearing shall take place at 4:30 P.M. on Friday, October 20, 1972, at the basement meeting room of the First National Bank of Cincinnati building located at 4525 Montgomery Road, Norwood, Ohio. You are invited and urged to appear in your own behalf and with such other witnesses or counsel as you may deem necessary to aid in your defense. The hearing will be conducted by the Executive Committee. The hearing referred to in the October 3 letters was held as scheduled although none of the complainants appeared. Testimony was taken from two witnesses who are employ- ees of the Company, Flo Davis and Richard Bens. A transcript of their testimony was made. Insofar as is pertinent, Flo Davis testified as follows: Mr. Clark-Has Margaret Elswick ever been in contact with you? Flo Davis-She asked if I sign my card and said she would mail it for me. I said I would take care of my own signing and mailing. Mr. Clark-How often did James Elswick contact you? Flo Davis-About the first week. Every day he mentioned it. Mr. Clark-How about Carl Hammons? Flo Davis-How many times? I would say 10 times. Mr. Clark-Was this done while you were work- ing? Flo Davis-Yes. It was always while I was working. • s r s Mr. Clark-Did they ever make any statements to you regarding the company's relationship with the union? Flo Davis-He said, "I don't know whether you and Mary know how dirty companies can be. They will just do anything to you anyway. You were moved out here." I said, "We may be new here but not in the union." So he said, "If we would do that, sign the card, he would have the company unload the line for us." s s a s Mr. Clark-What was he indicating to you when he said he would unload the line?" Flo Davis-He would take them off the line and we girls would not have to do the work. Mr. Clark-Did they use forceful language to get you to sign the cards? Flo Davis-He kept asking me and I would not say whether or not I would sign. I felt if Ijust played along, things would be better. Carl came by on Monday morning two weeks ago and said he checked the cards and i hate to inform you your name was not on the list. I said, "Don't you think that is my business?" I did not want to tell him I had not signed because there might be trouble. Mr. Clark-You said you did not want to tell him you would not sign the cards because of some trouble? Flo Davis-We work close together and James Elswick didn't like it when I wouldn't sign the card so he does not speak to me. Mr. Clark-Is that how he showed it? Flo Davis-Yes. • i n i • Mr. Clark-Do you feel James Elswick and Carl Hammons were trying to intimidate and embarrass you into signing one of these cards? Flo Davis-I feel they were. Mr. Gantzger-When he indicated he would take the boxes off the conveyor, was he saying he would do this if you signed the card? Flo Davis-He said the men would do the unloading INDEPENDENT SHOE WORKERS 415 of the line more if we had another union in. We wouldn't have to do the hard work . The first week he really did ride me and Mary Mosey about signing the cards until we got a little bit smart with him and then he left us alone. Bobbie Harmon-What brought all this up in the first place? Did someone step on your toes? Flo Davis-No, it was the way things were going that I don't like and a lot more don't like . I asked that they leave me alone . They haven't bothered me since. Bens, to the extent pertinent here, testified: Mr. Clark-Can you tell us if any of these three people ever contacted you concerning joining some other union? Richard Bens-James Elswick and Margaret Els- wick. Mr. Clark-How many times did they contact you? Richard Bens-Quite a few. Mr. Clark-Every day? Richard Bens-Every day and more than twice a day. Mr. Clark-Did they do this while working? Richard Bens-Yes. Mr. Clark-Were they supposed to be working too? Richard Bens-Yes. Mr. Clark-Did they become a nuisance to you? Richard Bens-Yes. Mr. Clark-Did they try to intimidate or embar- rass you? Richard Bens-Yes. Following the hearing on October 25 , each of the complainants was sent a letter which, in relevant part, reads: For reasons known only to you, you or a representative in your behalf failed to appear at this hearing . Your not attending did not stop the hearing from taking place, and the Executive Committee of the Independent Shoe Workers Union heard evidence concerning your alleged harassment and intimidation of fellow union members and your attempt to undermine the authority and the influence of the union in its relationship with the company. Testimony concerning these allegations was presented and, as a result , I have been requested by the Executive Committee to inform you they have found you guilty as alleged, guilty of harassment and intimidation of fellow union members and guilty of trying to undermine the authority and influence of the union in its relationship with the company . As a result of this hearing, the Executive Committee has unani- mously fined you the sum of $50.00 which must be paid immediately. Despite the language of its two letters to the complain- ants, Respondent contends that the fines were levied only because they had harassed and intimidated fellow union members. However, the transcript of the October 20 hearing shows that the accusations relate to nothing more than persistence on the complainants' part in soliciting authorization cards for the Charging Party . Further, George Gantzer, who is president of Respondent and Chairman of its executive committee, testified: Q. Were there any discussions as to what constitut- ed the so-called harassment when the-the executive committee when they voted on this thing? A. Yes, sir. Q. What was that? A. Repeatedly going back to these people time and time again, and, like I say, making them some false promises and-That's all I have to say on that. Employees Flossie Davis, Mary Mosey, Clara Minton, Mary June Glass, Richard Bens, and Bobby Hammond, who were called as witnesses by Respondent , testified as to the alleged misconduct of the complainants . Their testimo- ny, in sum, amounts to no more than that the complainants may have been overly aggressive and persistent in soliciting on behalf of the Charging Party. I find, therefore, contrary to Respondent, that the complainants were fined because they had engaged in rival union activities and not because they had harassed or had intimidated their coworkers. The fines were not paid by the complainants and ultimately were rescinded by Respondent. Complainants were notified of the recision by letter, dated June 20, 1973, which, in relevant part, reads: On October 20, 1972, a $50.00 fine was imposed upon you by the Independent Shoe Workers of Cincinnati, Ohio, a union of which you were then and are presently a member. The fine was imposed because of alleged harassment and intimidation of fellow union members and because of your alleged attempt to undermine the authority of the union in its relationship with your employer, United States Shoe Corporation . The pur- pose of the fine was not the collecting of money but only to alleviate the alleged problem of harassment and intimidation. The Executive Committee of your union, which originally levied the fine, met yesterday and felt that the harassment and intimidation has ceased after the January 22 NLRB hearing ; consequently, the Execu- tive Committee unanimously voted to rescind the fine imposed upon you on October 20, 1972. As attorney for the union, I have been instructed to inform you of your union's actions. A copy of this letter will be posted on the union bulletin boards of the various plants of United States Shoe Corporation located in Cincinnati, Ohio. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Discussion "Section 8(b)(1)(A) was not intended to give the Board power to regulate internal union affairs."2 An employee who joins a unior submits himself to the obligations of union membership, enters into a binding agreement to obey the union's rules and, unless prohibited by public policy, impliedly consents to the imposition of discipline if he disobeys those rules, despite the literal "restraint" or "coercion" such discipline entails.3 "Congress did not propose any limitations with respect to the internal affairs of unions, aside from barring enforcement of a union's internal regulations to affect a member's employment status."4 Thus, Section 8(b)(l)(A) does not preclude the "imposition of disciplinary fines, with their consequent court enforcement, against members who violate the unions' constitutions and bylaws." 5 "The underlying basis for the holdings of Allis-Chalmers and Scofield was not that reasonable fines were noncoer- cive under the language of Section 8(b)(1)(A) of the Act, but was instead that those provisions were not intended by Congress to apply to the imposition by the union of fines not affecting the employer-employee relationship and not otherwise prohibited by the Act. The reason for this determination, in turn, was that Congress had not intended by enacting this section to regulate the internal affairs of unions to the extent that would he required in order to base unfair labor practice charges on the levying of such fines ... In Scofield we decided that Congress intended to distinguish between the external and the internal enforce- ment of union rules, and that therefore the Board would have authority to pass on those rules affecting an individual's employment status but not on his union membership status. 394 U.S. at 428-230."6 The Supreme Court, therefore, has drawn the line "between permissible and impermissib)e union action against members as follows: .. . Section 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 2 NLRB v Boeing Co et a!, 412 U.S 67 (1973) 3 N LR B v Boeing Co el al, supra. N LR B v Allis-Chalmers Co. 388 U S. 175, 182, 195 (1967) * Scofield, et al v. N 1_ R B, 394 U S 423, 428 (1969) 5 NLRB v Boeing Co et al, supra 6 NLRB v Boeing Co et al, supra r N L R. B v Granite Stale Joint Board fertile Workers Union of America, Local 1029, AFL-CIO, 409 U.S 213, 216 (1972) " N LR B v Granite State Joint Board, supra at 217 Accord - Booster Lodge No 405, International Association of Machinists and Aerospace Workers, AFL-CIO v NLRB , 412 U S. 84 (1973) 9 N L R B v Allis-Chalmers Mfg Co, 388 U S 175, In 37 Accord Union Starch & Refiring Co v N LR.B, 186 F 2d 1008 (C.A 7), cert denied 342 U.S 815 15 N L R B. v. Allis-Chalmers Mfg Co, 388 U S 175 11 Scofield v. N L R B, 394 U.S. 423 12 Communications Workers of America, APL-CIO, Local 6222 (South- western Bell Telephone Company), 200 NLRB No 109 13 American Newspaper Publishers Association v N L R B, 193 F.2d 782, 800-801 (C.A. 7), cert domed 344 U S 812. Don Glasser, et al v A 1_R B, 395 F.2d 401 (C A. 2, 1968). union members who are free to leave the union and escape the rule.-7 An employee who does not wish to submit himself to the potential of union discipline should not , in the first instance, loin the union, or having joined , should take advantage of an opportunity to resign . As the Supreme Court has pointed out: "[w]here a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct."" The presence of a union-security clause in a subsisting collective-bargaining agreement is not construed as imposing involuntary union membership upon employ- ees. "Under Section 8(a)(3) the extent of an employee's obligation under a union security agreement is `expressly limited to the payment of initiation fees and monthly dues . . . `Membership' as a condition of employment is whittled down to its financial core.' Labor Board v. General Motors Corp., 373 U.S. 734, 742."9 It follows, therefore, that a member who chooses not to resign has no equitable claim to exemption from lawful union discipline. As, in normal circumstances, union disciplinary action is not coercion within the meaning of Section 8(b)(1)(A) even though taken against a member for exercising a Section 7 right, unions have been exonerated of unfair labor practice charges by reason of the imposition of fines or other discipline upon members for crossing picket lines,10 for violating a union rule relating to production ceilings,11 for refusing to wear an emblem which they regarded as "morally repugnant and personally offensive," 12 and for working in a shop with nonmembers.13 Turning to the case at hand , as no contention is advanced that there was any irregularity in the imposition of the fines against the three complainants, Respondent's action did not contravene Section 8 (b)(1)(A) of the Act14 unless (1) it was for a reason which does not reflect a legitimate union interest, or (2) it impairs a policy Congress has imbedded in the labor laws.15 The first condition is not breached because Respondent has a legitimate interest in preserving its position as collective-bargaining representative and therefore has the 1 t There may be a question as to whether the fines constitute a violation of the so-called free speech provision of the Landrum-Griffin Act, Labor- Management Reporting and Disclosure Act, Section 101(a)(2), 29 U S C.A Section 411(a)(2) See Airline Maintenance Lodge 702, International Association of Machinists and Aerospace Workers v Loudermilk, 444 F 2d 719 (C A. 5), Ballas, etc v. McKiernan, 83 LRRM 2013 (N.Y, App Div., March 19, 1973) However that question was neither pleaded nor litigated in this proceeding Compare. Carpenters Local Union No 22, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Graziano Construction Company), 195 NLRB I 15 As was pointed out in Scofield v NLRB, 394 U.S 423, 430-431, where union discipline of members "was not carried out through means unacceptable in themselves, such as violence or employer discrimination was enforced solely through the internal technique of union fines. collected by threat of expulsion or judicial action . . [t]he inquiry must focus on the legitimacy of the union interest vindicated . . . and the extent to which any policy of the Act may be violated . INDEPENDENT SHOE WORKERS power "to protect against erosion its status ... through reasonable discipline of members ..." 16 Thus, the complained of conduct in this case would be an infringe- ment of Section 8(b)(l)(A) only if it contravenes some policy of the Act. The policy purported to have been violated falls within the principle of the Skura case.17 In Skura the Board held that a union that fines a member for filing unfair labor practice charges violates Section 8(b)(1)(A) of the Act. According to the Board, a fundamental policy of the Act includes unrestricted access to its processes and no private organization should be permitted to prevent or regulate access to the Board. The Skura principle has been affirmed in N.L R B. v. Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, 391 U.S. 418 (1968). The Court reasoned: "Section 8(b)(l)(A) assures a union freedom of self- regulation where its legitimate internal affairs are con- cerned. 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.. . The policy of keeping people `completely free from coercion,' id., against making complaints to the Board is . . . important in the functioning of the Act as an organic whole. . . A healthy interplay of the forces governed and protected by the Act means that there should be as great a freedom to ask the Board for relief as there is to petition any other department of government for a redress of grievances. Any coercion used to discourage, retard, or defeat that access is beyond the legitimate interests of a labor organization . That was the philosophy of the Board in the Skura case , Local 138, International Union of Operating Engineers, 148 NLRB 679 ; and we agree that the overriding public interests makes unimpeded access to the Board the only healthy alternative , except and unless plainly internal affairs of the union are involved." 18 As Skura represents an exception to the general proposition that "union disciplinary action is not covered by Section 8(b)(1)(A)," its principle is sparingly and discriminatingly applied . 19 Thus, a provision in a union constitution which only potentially may give rise to an 16 NLRB v Allis-Chalmers Mfg Co, 388 U S 175, 181 Accord Tawas Tube Products, Inc, 151 NLRB 46 (expulsion of a member who has filed a decertification petition with the Board was held not unlawful) Richard C Price v N LR B, 373 F 2d 443 (C A 9, 1967), cert denied 392 U.S 904 (suspension of a member for attempting to have union decertified) 17 Local 138, International Union of Operating Engineers, AFL-CIO (Charles S Skura), 148 NLRB 679 As will be discussed more fully below the principle of the Skura case is that the public interest in preserving for employees unimpeded access to the Board outweighs a union's right to discipline members for infractions of union rules There are other situations, not applicable here, where infractions of fundamental labor policy also have been held to override and outweigh the unions' right to discipline their members See, for instance, N LR B v. Local 751, Carpenters, 285 F 2d 633, 640-641 (C A 9, 1960) (threat of fine to compel members to refuse to handle product in violation of Section 8(b)(4) of the Act), Bricklayers and Masons Local No 2 (Robert L Willis, Masonary Contractor), 166 NLRB 117 (fine to compel refusal to cross picket line whose observance constituted secondary boycott), Local 12419, International Union of District 50, United Mine Workers of America (National Grinding Wheel Company, Inc), 176 NLRB 628 (fine to compel violation of no-strike clause), Carpenters, Local 22 (Graziano Const Co), 195 NLRB I (fine imposed because of members opposition to incumbent union officials in intra-union election) Cf Meat Cutters Local 81 v N LR B, 458 F.2d 794 (C A.D C, 1972) ( fine against supervisor-member for complying with employer's new policy, in violation of Section 8(b)(i)(B) of the Act) 18 See also Cannery Workers Union of the Pacific, affiliated with the 417 impairment of members' access to the Board has been held not unlawful. On the other hand, a present, effective threat that members will be subject to union discipline if they should file charges with the Board has been held to violate Section 8(b)(1)(A). Operative Plasterers' and Cement Ma- sons' International Association, etc. (Arthur G. McKee & Company), 189 NLRB 553.20 Extensions of Skura have been limited. Applying the Skura principle violations of Section 8(b)(1)(A) were found where a member was expelled for inducing a nonmember to file an unfair labor practice charge against the union,21 where fines were assessed against members for legal costs incurred in defending unfair labor practice charges filed by those members with the Board22 and for giving adverse testimony in an arbitration proceeding,23 and where the union refused to process a member's grievance unless she withdrew unfair labor practice charges against the employ- er.24 Of greater pertinence to the issues here, the Board has extended the Skura principle to cover union fines, but not expulsion,25 levied against members for activities directed toward filing petitions pursuant to Section 9(c) of the Act. The lead case is Blackhawk Tanning26 where the Board held that Section 8(b)(1)(A) prohibits "a union from penalizing a union member because he has sought to invoke the Board's processes" by filing or circulating a decertification petition. The respondent in that case was ordered to cease and desist from assessing fines against members or attempting to use the processes of the Board in order to decertify their bargaining representative.27 Relying on the Blackhawk case, in Tri-Rivers Marine Engineers Union (United States Steel Corporation), 189 NLRB 838, a violation of Section 8(b)(1)(A) was found where a member was fined for soliciting on behalf of a rival labor organization authorization cards which were used less than 3 weeks later to support a petition for a representation election filed with the Board by the rival organization. The Board observed that "there is no significant distinction between conduct directed toward decertifying a union and conduct directed toward replac- Seafarers International Union of North America, AFL-CIO (Van Camp Sea Food Co, Inc), 159 NLRB 843 i9 See Price v. N LR B, supra, and the Board decision, United Steelworkers of America, Local No 4028, AFL-CIO, 154 N LR B 692, 696 20 Accord Millwrights & Machinery Erectors, Local Union 1510, affiliated with the United Brotherhood of Carpenters & Joiners of America, AFL-CIO (Mulberry Construction & Welding Co), 152 NLRB 1374 21 Philadelphia Moving Picture Machine Operators' Union, Local No 307, I A TS E, 159 NLRB 1614 22 Houston Typographical Union No 87, International Typographical Union, AFL-CIO, (Houston Chronical Publishing Company), 158 NLRB 1018 23 Cannery Warehousemen, Food Processors, Drivers and Helpers Local Union No 788, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind, 190 NLRB 24 24 Association of Packers & Drivers Union (Guy's Foods, Inc ), 188 NLRB 608 2" Tawas Tube Products, Inc, 151 NLRB46, Pricey NLR.B, 373 F2d 443 (C A 9). cert denied 392 U S 904 28 International Molders' and Allied Workers Union, Local No 125, AFL-CIO (Blackhawk Tanning Co, Inc), 178 NLRB 208, enfd 442 F 2d 92 (C A 7, 1971) 27 Accord Automotive Salesmen 's Association (A S A) affiliated with SIUNA. AFL-CIO (Spitler-Demmer, Inc), 184 NLRB 608, United Lodge No 66, International Association of Machinists and Aerospace Workers, AFL-CIO (Smith-Lee Co., Inc), 182 NLRB 849 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the incumbent union with another union." In that case the Board ordered the respondent to cease and desist from assessing fines against its members for soliciting authoriza- tion cards in support of a petition filed with the Board by a rival union.28 In the cases above cited, which rely on Blackhawk as a precedent, the activities of the members for which they were fined were proximately related to petitions filed with the Board pursuant to 9(c) of the Act. There is one similar case, Visinet M111,29 where no petition was filed with the Board. In the Visinet case members were fined for rival union activities, which included execution and solicitation of authorization cards, that took place in the month of February 1970 and were intended to support a representa- tion petition to be filed with the Board between March 3 and April 3, 1970 (the 90-60 days period prior to the expiration of the incumbent union's contract). The fines were held unlawful because the members had been engaged "in essential preliminary work attendant on the timely filing of a petition with the Board for a certification election." The respondent union was ordered to cease and desist from assessing fines against its members "for soliciting fellow employees to sign bargaining authoriza- tions for a rival union to support the timely filing of a certification election petition with the Board." The lesson I draw from these cases is that Section 8(b)(1)(A) is not violated when a union disciplines members for engaging in dual or rival union activities subject, however, to one general exception. The exception arises when the members' rival union activities either resulted in the filing of a petition with the Board under Section 9(c) of the Act or were "essential preliminary work attendant on the timely filing" of such petition. In this case, however, the three complainants were not fined for 28 Accord: Printing Specialties and Paper Products' Union No. 481, International Printing Pressmen and Assistants' Union of North America, AFL-CIO (Westvaco Corporation. H & D Container Division), 183 NLRB 1271. seeking access to the Board or for any activity proximately related to using the Board's processes. When they were soliciting authorization cards on behalf of the Charging Party the existing contract between Respondent and the -Company had more than a year to run so that any petition then filed with the Board would have been untimely. Because of this circumstance the Charging Party deferred any intentions it may have had to seek recognition as the collective-bargaining representative of the Company's employees. Fowlkes testified that toward the end of September 1972, when he obtained a copy of the contract between the Respondent and the Company and learned that it would not expire for another year, he told the members of the in-plant organizing committee "that it would be useless to continue at the pace we were going .. . at the end of '73 when this contract expired [then] we would start a full drive." In my view, the rival union activities in which the complainants were engaged were too far removed in time from the period when a petition under Section 9(c) could have been filed to call for the application of the principle of the Blackhawk and the Visinet cases. Accordingly, I find that Respondent by fining the three complainants for their activities in support of the Charging Party has not violated Section 8(b)(l)(A) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW Respondent has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order omitted from publication.] 29 Local Union No 953, Textile Workers Union of America, AFL-CIO ( Visinet Mill, Bemis Company, Inc), 189 NLRB 598.