Operating Engineers Local 400

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers Local 400, AFL-CIO (Hilde Construction Company) and Duwain Campbell, Darrell Blatter, and Jack Burk- land, individuals, through their attorney, Donald C. Robinson. Case 19-CB-2304 June 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On December 23, 1975, Administrative Law Judge William J. Pannier III, issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, the General Counsel filed a memorandum in support of the Decision, and the Charging Parties filed an answering brief to ex- ceptions and a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, International Union of Operating Engineers Local 400, AFL-CIO, Great Falls, Montana, its officers, agents, and representa- tives, shall take the action set forth in the said recom- mended Order. CHAIRMAN MURPHY, dissenting: Contrary to my colleagues, I would find that the Respondent did not violate the Act by fining the Charging Parties herein. As more fully set forth by the Administrative Law Judge, the Respondent was engaged in renegotiating the contract with Associated General Contractors of America and other employers, including Hilde Con- struction Co. A strike vote was held throughout the State which resulted in an overwhelming vote in fa- vor of a strike. The Charging Parties were dissatisfied ments and newspaper advertisements, although the Union's constitution and bylaws provided for meet- ings only on call by authorized union officials. As described by the Administrative Law Judge, the "open discussion" degenerated into a shouting and name-calling contest. As a result of their activity in calling that meeting, the Charging Parties were fined by the Respondent. The Administrative Law Judge found, and my col- leagues agree, that the Respondent thereby violated Section 8(b)(1)(A) of the Act, viewing this as a situa- tion in which the members merely were questioning Respondent's wisdom and attempting to redirect its policies. While that may have been their objective, I cannot agree that the conduct of the Charging Parties was such as to preclude internal reaction and discipline by the Respondent. Clearly a labor organization, as the representative of the employees, must determine its best bargaining strategy and posture. Once the question was submitted to the employees and they overwhelmingly endorsed a strike, the bargaining representative unquestionably was entitled to pre- sent, publicly at least, a unified front, and Respon- dent could, under the proviso to Section 8(b)(1)(A), require this as a condition of membership so long as there was no interference with any member's em- ployment.' But the Charging Parties publicly under- mined Respondent's bargaining position by their conduct in advertising widely-had they engaged solely in internal activities perhaps I would find that a different conclusion would be warranted. But that need not be considered, since it did not occur. Thus, contrary to the Administrative Law Judge's finding, as adopted by my colleagues, I find that the Respon- dent here was acting in furtherance of a legitimate union mterest.2 In sum, I find that the Respondent was exercising its undisputed right under the proviso to Section 8(b)(1)(A) of the Act to discipline its members for undermining its bargaining position and its represen- tation of the interests of the majority of the employ- ees in the unit. Hence I would dismiss the complaint herein. 1 N L R B v Allis-Chalmers Manufacturing Co, 388 U S 175, 180 (1967) 2 Scofield, et al v N L R B, 394 U S 423 (1969) DECISION STATEMENT OF THE CASE with the procedure and the result of the vote, and WILLIAM J. PANNIER III, Administrative Law Judge: This they convened a special meeting of their fellow em- matter was heard by me in Great Falls, Montana, on Sep- ployees of Hilde by means of radio spot announce- tember 30 and October 1, 1975. On May 28, 1975, the Re- 225 NLRB No. 77 OPERATING ENGINEERS LOCAL 400 597 gional Director for Region 19 issued a complaint and no- tice of hearing, based on an unfair labor practice charge filed on August 16, 1974,1 and alleging violations of Sec- tion 8(b)(1)(A) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et. seq., herein called the Act. All parties have been afforded full opportunity to ap- pear, to introduce evidence , to examine and cross -examine witnesses, and to file briefs. Based upon the entire record, upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT A. Jurisdiction At all times material herein, Hilde Construction Compa- ny, herein called the Employer, has been a Montana corpo- ration, with its business office located at 3810 Seventh Ave- nue North, Great Falls, Montana, and has been engaged in the business of heavy and highway construction. During the past 12 months, a representative period, the Employer has performed services valued in excess of $50,000 for cus- tomers located outside the State of Montana and during that same period has purchased and received goods and materials valued in excess of $50,000 directly from sources located outside the State of Montana. Therefore, I find, as admitted in the answer, that at all times material, the Employer has been an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. B. The Labor Organization Involved At all times material herein, International Union of Op- erating Engineers Local 400, AFL-CIO, herein called Re- spondent, has been a labor organization within the mean- ing of Section 2(5) of the Act. C. Issues 1. Whether the Charging Parties' conduct in convening an "open discussion" for members of Respondent enjoys protection under the Act and, if so, whether, in the circum- stances, Respondent violated Section 8(b)(1)(A) by threat- ening to discipline and by disciplining the Charging Parties for conducting such a meeting? 2. Whether the complaint, if otherwise supported by evi- dence sufficient to establish a violation, must be dismissed because the Charging Parties failed to make an effort to "exhaust reasonable hearing procedures" established by Respondent or because the Employer financed, encour- aged, or participated in the filing of the charge? D. The Events Though disputes exist concerning several matters, for the most part, these disputes involve collateral issues and the principal relevant facts are undisputed. 1 Unless otherwise stated, all dates occurred in 1974 Respondent, whose jurisdiction encompasses the entire State of Montana except for a few northwestern counties, maintains its headquarters in Helena and is subdivided into five districts of which one, District 3, is centered in Great Falls. Respondent has collective-bargaining rela- tions with a number of employers, including those engaged in heavy, principally highway, construction, who, along with the Employer, have become members of Montana Contractors Association, Inc., a chapter of the Associated General Contractors of America, herein called the Associa- tion, and who have thereby become members of a mul- tiemployer bargaining association , statewide in scope. On April 30, following a full day's negotiations at Helena, the then existing collective-bargaining contract between Re- spondent and the Association expired without agreement being reached on the terms for a new contract. According- ly, on May 2, Respondent convened district meetings of its members in the unit covered by the now expired contract for the purpose of reviewing the status of negotiations and for the added purpose of conducting an election on wheth- er a strike should be commenced. The approximate results of that election were 1,000 employees favoring a strike and 44 employees opposed, with the results in the Great Falls district being approximately 125 to 27 in favor of striking. At least one of the dissenting voters in the Great Falls district was sufficiently dissatisfied to pursue the matter further. Thus, during the days following the May 2 strike vote, Duwain Campbell, one of the Charging Parties in this matter and at that time a crusher mechanic employed by the Employer, discussed the May 2 meeting with members, including the other two Charging Parties, Darrell Blatter and Jack Burkland. Campbell testified that those employ- ees with whom he spoke agreed that another strike vote should be taken because of Respondent's asserted failure to permit Campbell to address the group during the May 2 meeting, because of Respondents asserted misrepresenta- tions during the May 2 meeting of the Association's last proposal, and because of Respondent's asserted failure to follow past practice of further pursuing negotiations with- out resorting to a strike.' Accordingly, Campbell, Blatter, and Burkland decided to, as Campbell testified, "get to- gether at a public place where anybody could come, where people would feel free to speak up, whatever they had in their mind." The steps taken by Campbell to arrange for this meeting are important, for a significant segment of Respondent's 2 Several points should be noted in connection with these accusations First, it is not effectively denied that during the meeting, Campbell had had his hand raised for 10 minutes in an unsuccessful effort to obtain recogni- tion and that despite later agreement by Respondent's vice president, Vin- cent Bosh, to permit Campbell to address the group following the election, Campbell was never recognized Second, not only did Bosh deny having misrepresented any of the proposals or counterproposals during the course of the May 2 meeting , but he also advanced an explanation to show that some of Campbell's assertions concerning such misrepresentations were er- roneous However, though Campbell had based his assertions solely upon what he had heard during the May 2 meeting and had not been attending either Respondent's previous meetings or the negotiating meetings, Respon- dent did not contend , nor would the evidence support a contention, that Campbell had been acting in bad faith to deliberately or maliciously distort the substance of the bargaining proposals Finally, it appears that Campbell's motive, at least in part, in pursuing the course which he fol- lowed, was that he believed that he would not benefit personally from the improvements which Respondent sought to achieve through the strike. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defense rests upon the contention that, by his conduct, Campbell misrepresented that the meeting was to be one sponsored by Respondent. The record discloses that on May 13, Campbell contacted personnel of the Great Falls civic center to arrange for a room in which to conduct the meeting. Prior to construction of an addition to the labor temple, Respondent had regularly conducted its own meet- ings in the civic center and thereafter it had continued to conduct meetings in the civic center on an occasional basis, although there is no evidence concerning the frequency with which this was done. Campbell testified that he had told the woman with whom he had spoken "that we wanted to have an open discussion amongst some interested mem- bers of Local 400, and I told them the approximate size of the room we would like to have... " When the woman had inquired as to the reason for seeking to reserve a room, Campbell testified that "I said to discuss Union proposals, contract proposals, and see if we could come up with some different views and get some things straightened out that we were left in the dark on." Campbell was assigned a room for the night of May 14 and, while he did not leave his name, he did provide his telephone number to the wom- an with whom he had spoken. Campbell next contacted Rhyf Morgan Berryman, then program director and announcer for radio station KMON, which airs a public service program entitled "Community Bulletin Board." 3 Campbell testified that he had told Ber- ryman that "we would like to have a spot on the public announcement concerning an open discussion, that all in- terested members of Local 400 were urged to attend, the time and the place." He further testified that he had never implied to Berryman that he was an official of Respondent. Berryman corroborated Campbell in this regard, testifying that Campbell had identified himself as a member of Re- spondent and had said that he "wished to call an open discussion for all interested members who wished to be- come more familiar with the provisions of the contract as proposed" since "he was not happy with the press releases and with the information being given to the union mem- bership and that he would like to have an open discussion with the members-or any interested members who would like to discuss it." According to Berryman, the words used in the announcement were those provided by Campbell and, as used on the air, the announcement read, in sub- stance: "All interested members of Operating Enginners, Local 400, are urged to attend an open discussion," fol- lowed by the time and place of the meeting." 3 KMON owner Al Donahue testified that it had been station policy to confine announcements on the "Community Bulletin Board" to those spon- sored or placed by organizations, to the exclusion of those placed by indi- viduals However, Donohue conceded that this had not been a written poli- cy, that the organizations did not have to be formal-that announcements by a group of concerned citizens "more than likely would qualify" for broadcast, and that there had not been much screening of the sponsorship of such announcements There is no evidence that Campbell or the other Charging Parties were aware of any restriction on announcements placed with the "Community Bulletin Board " It might be appropriate at this point to note that Respondent was not the only labor organization involved in negotiations with employers in the Great Falls area during May Thus, both the Carpenters and Laborers were involved in strikes arising from negotiations and, additionally, the Team- sters, while not striking, was also engaged in negotiations, albeit of summary Campbell next contacted the Great Falls Tribune, the main newspaper of general circulation in Cascade County, where he spoke with advertising department employee Nancy Tuss. He conceded that he had not identified him- self to Tuss, but testified that he had not implied that he was an official of Respondent and had said only that he was a member of Respondent. Campbell further testified that he had told Tuss simply that he wanted to place an advertisement. Asked if she had requested Campbell's name, Tuss testified: Yes, I did, and he says, "Well, do I have to give you my name?" and I said, "Well, you know, we require names," and he said, "Well, it is for the Operating Engineers," and so I typed that in, and we require addresses, and I says, "What's the address?" And he says, "Well, I don't know." Well I had just in the re- cent day taken some ads, I think, from-I don't know who from but from Helena, and I says, "Well, is this out of the Helena office?" And he says, "Yes." So I put down Helena as the address, and then he gave me the ad. Later, however, Tuss conceded that Campbell had not said anything that would have led her to believe that he was an official of Respondent. The classified order on which Tuss typed the advertise- ment placed by Campbell was introduced and, consistent with Tuss' testimony, the blank for the customer's name has been completed "Operating Engineers Local 400" and on the blank following "CITY" appears the word " Helena." The advertisement itself, as typed by Tuss, reads: "LOCAL 400 OPERATING ENGINEERS There will be open discussion Tues. May 14th, 8 p m. Civic & Center Council Chambers, 2nd floor South side." Campbell testified that he had dictated the substance of the advertisement to Tuss, who had been typing it as he dictated it, and that after this had been completed, she had only read it back to him and had not shown him what she had typed. Tuss, however, denied hav- ing read the advertisement back to Campbell and testified that she only read back ads to customers when they were placed by telephone. She further testified that normal pro- cedure for customers who come to the newspaper to place ads has been to give them the carbon of the copy to take to the cashier for payment and that she had followed this procedure in Campbell's case. She did, however, acknowl- edge that she had been the author of the heading "LOCAL 400 OPERATING ENGINEERS," since it has been the paper's policy to place a heading, categorizing each meeting by the identify- ing characteristic of the group, above the substance of each advertisement After Campbell's announcement had been read two or three times on May 13 on the "Community Bulletin Board," members and officials of Respondent had heard it and Respondent began receiving inquiries about the meet- ing. Thus, Respondent notified both KMON and the Great Falls Tribune that it was not conducting a meeting and that any meeting being conducted was not an official meet- nature Additionally, Bosh conceded that Respondent's members did refer to themselves as "operators," "heavy equipment operators," and "operating engineers " OPERATING ENGINEERS LOCAL 400 599 ing of Respondent. Based upon this information, KMON ceased announcing the meeting and the newspaper with- drew Campbell's advertisement from the following morning's paper. Upon learning this, Campbell, possibly joined by Blatter and Burkland, began telephoning mem- bers to advise them of the meeting and, also, Campbell began calling employers for whom Respondent's members worked in an effort to obtain the names and telephone numbers of members whom he could contact. Though Re- spondent contends that the meeting was misleading in that its members believed that it was sponsoring the meeting, it called but one member as a witness. That member, Richard Moltzan, an employee of Western Signs Corporation, testi- fied that on May 14 a secretary for Western had called him and had said that the Employer had called a union meeting for 8 p.m. that evening at the civic center. The secretary was not called as a witness by Respondent. Moreover, Re- spondent represented that it was not contending that the Employer had sponsored this meeting and, indeed, al- though such a contention was advanced in Respondent's unfair labor practice charges in Cases 10-CA-7095 and 10-CA-7297, the Regional Director for Region 19 refused to issue a complaint on the basis of those charges. In addition, on May 15, KRTV television reporter Mary Elizabeth Stewart, during the course of her regular rounds, learned from a secretary in the civic center clerk's office that members of Respondent were to conduct a meeting that night and she was given the name of Campbell as the person to contact regarding the purpose of the meeting. Stewart testified that when she then contacted Campbell to inquire about the meeting, "he said the meeting was being called as an unofficial gathering of Operating Engineers members to try and speed up negotiations." She further testified that Campbell had not said that he was an official of Respondent and that she had not believed him to be one.5 It serves little purpose to detail the events of the May 14 meeting. Suffice to say that many members were confused as to the sponsorship of the meeting when they arrived that evening and that the "open discussion" hardly turned out to be a reasoned debate on the merits of the proposals made during the negotiations. Rather, it degenerated into a shouting and name-calling contest, with most of the mem- bers opposing the position of Campbell, Blatter, and Burk- land, who were sitting at the front table chairing the meet- ing, and with many members accusing them of being agents of the Employer and of attempting to undermine Respondent's position as bargaining representative. Addi- tionally, part of the hostility was generated when either Campbell or Burkland requested that all officials of Re- spondent leave and when Respondent's business agent, Jack Ball, declined to do so. On the following evening, May 15, Respondent's regular monthly meeting was con- ducted and when the subject of the "open discussion" was raised, the majority of the members voted to direct Camp- 5 Significantly, Respondent, itself, took steps to publicize the fact that it was not sponsoring the "open discussion " Thus, whenever a member in- quired of an official of Respondent about the meeting, that member was advised that Respondent was not conducting the meeting In addition, on May 14, Respondent's business manager, Kenneth Kaighn , issued a news release disavowing any responsibility for the meeting bell to attend the next bargaining session, on May 16, at Helena, purportedly so that he could become more familiar with the substance of the proposals and counterproposals being made. There is no dispute concerning the pertinent facts which followed these mid-May meetings. On May 22, Respon- dent's president, George Gordon, authored a letter, sent to each of the Charging Parties, stating, inter aka: "This is a formal request for you to appear at the Executive Board Meeting to answer questions concerning the International Constitution and Local 400 By-Laws." This meeting was conducted on June 1 in Helena and when he appeared before the executive board, Campbell was asked if he pleaded guilty or not guilty to the charge of having held a meeting. When Campbell pleaded not guilty, he was told that there would later be a trial in his local area. Subse- quently, the Charging Parties were advised that they were to appear for trial on July 17 at the Great Falls labor tem- ple. Campbell's June 24 letter from Gordon, which appears to duplicate similar letters received by Blatter and Burk- land, states the charges to be: ". . . violation of the Inter- national Constitution, Article XVI, Section 4, page 61 as well as Article XXIII, Sub Division [sic] 7, Section (e), Page 100." 6 On July 17, the Charging Parties stood trial and each was fined $400, with the additional penalty of mandatory attendance at the next six regular meetings being imposed.' Campbell paid the fine, under protest, in January 1975, but he did not attempt to appeal this decision through intra- union channels, though he had been told that he had the right to do so. Under article XVII, section l(a), a member "may appeal to the General Executive Board from the adoption of any action by said Local Union, or from any decision rendered by the General President." Under article XVII, section 2, a member may "appeal from the decision of the General Executive Board to the General Convention." 8 6 Art XVI, sec 4, entitled "Penalty for Communism , Disruption, Radi- calism, Etc ," reads Any member who shall be guilty of belonging to the Communist Party or who shall subscribe to the principles of communism or similar doc- trines, or who shall engage in, advocate, approve or support the use of subversive tactics, force or violence, radicalism or disruption, revolu- tionary or similar means designed or used to overthrow, destroy, nullify or otherwise render ineffectual the established order of the Govern- ment or this organization shall forthwith be expelled from membership or otherwise disciplined as the circumstances may require , which action may be taken and penalty imposed by either the Local Union of which the guilty party is a member or by the General President [Emphasis supplied ] Art XXIII, sec 7(e), entitled "Other Causes for Fines, Suspensions or Ex- pulsion," reads, in pertinent part Any officer or member of a Local Union who becomes an habitual drunkard, who wrongs a fellow member or defrauds him, who commits an offense discreditable to the International Union or its subdivisions, who creates dissension among the members, who destroys the interest and harmony of the Local Union . may be disciplined or, upon trial there- for and conviction thereof, be fined, suspended or expelled from his Local Union (Emphasis supplied ] 7 Campbell testified that as he worked nights for 9 months each year, this penalty would require that he miss work on at least some of those evenings to attend the six required meetings 8 Art XVII, sec 4, entitled "All Court Actions Superseded," provides in relevant part Continued 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Explication of Respondent's precise reasons for spec- ifying the two constitution sections listed in the June 24 letter was advanced by Business Manager Kenneth Kaighn who ultimately testified: "If they called the meeting and didn't use the local union's name, why, this is fine. We have got no objection to this. Our objection is to them using the local union's name, Local 400 of the Operating Engineers." In support of this Kaighn testified that, under Respondent's constitution and bylaws, only the president, business manager, or deputies appointed by the business manager are authorized to call meetings of Respondent .9 However, asked if there was any prohibition in the consti- tution and bylaws against members calling meetings, Kaighn responded only: "If I am given time enough to research the constitution and by-laws, I am sure we can come up with one. ..." However, he never did so. Kaighn further pointed out that the specific charges were rooted in the italicized sections of the two provisions reproduced in footnote 6, supra. In testifying with regard to the charge of "radicalism or disruption," Kaighn claimed that Respondent had been referring to the manner in which the May 14 meeting had been conducted: The radicalism or disruption which they were charged under stemmed from the calling of the meet- ing, the way it was conducted. It was near a riot dur- ing the meeting. They could not or did not control the members that attended. I think that their own person- al-the people that called the meeting were in danger of being harmed bodily. There was shouting. It was just near a riot. Moreover, Kaighn noted, with regard to this same provi- sion of Respondent's constitution, that the May 14 meeting had impaired Respondent's effectiveness in negotiations with the Association. Well, for instance, when we went back into negotia- tions there were some contractors that threw it at us. They said, "Oh, I hear that you have got a hell of a No suit or other action at law or equity shall be brought in any court and no proceeding shall be initiated before any administrative agency by any member, officer or subdivision of the International Union of Operating Engineers until and unless all rights , remedies and reason- able provisions for hearing, trial and appeal within the Organization shall have been properly followed and exhausted by the member, offi- cer or subdivision complaining This provision shall only require resort to internal remedies for a period not exceeding four (4) months 9 To support this assertion, Kaighn pointed to one section of Respondent's constitution and to one in its bylaws With regard to the former, article XXIII, sec 10(c), entitled "Special Meetings," provides Special meetings shall be called when ordered by the President or by a majority of the following officers Vice President, Recording-Corre- sponding Secretary, Financial Secretary, and Treasurer, or upon writ- ten request of one-third of the members of the Local Union in good standing Art XV, sec 2, of Respondent's bylaws states The Local Union Business Manager may, in person or through his deputy, call a special meeting of those members of the Local Union covered by any particular collective bargaining or other agreement with an employer as that term is defined in the Labor-Management Rela- tions Act, 1947, as amended, for the purpose of considering and acting upon wages, rates of pay, hours of labor and other conditions of em- ployment affecting them and all other members may be excluded from such meetings bunch of members against you." I think it hurt us in negotiation after they conducted this meeting. It really disrupted our session. The final facet of this matter involves the circumstances under which the instant charge came to be filed.10 When he learned of the Union's penalty, Campbell decided to ob- tain counsel and fight it. After first inquiring of the Employer's bookkeeper, who promised to ascertain the identity of a good attorney but never did so, Campbell then approached the Employer's owner, Dave Hilde, to make the same request. Hilde suggested the Associations's attor- ney, Donald C. Robinson, whose office is in Butte, and offered to permit Campbell to "ride along" to Butte on the following day when Hilde was scheduled to drive to Di- vide, which is 25 miles further from Great Falls than Butte. Campbell accepted the offer and on the following day, the two men first journeyed to the Divide site and, on the re- turn trip to Great Falls, stopped in Butte, where they were joined by Robert Blossom, who had followed them from the Divide site, where he worked, so that he could speak with Robinson concerning a fine which Respondent had imposed upon him in an incident separate from the one involved in the instant matter.ll In Hilde's presence, both men discussed their problems with Robinson and both re- tained Robinson as their counsel,12 although, of course, on separate bases. Although Campbell did not reimburse the Employer for Hilde's trip to Butte, he had taken the day off and was not compensated by Respondent for that day. Moreover, it is the Charging Parties who are responsible for paying Robinson's fee. No financial support, payment of money or promise of payment has been made to the Charging Parties by the Employer or by the Association. ANALYSIS A. Whether the Charging Parties' Conduct in Convening an "open discussion "for Members of Respondent Enjoys Protection Under the Act and, If So, Whether, in the Circumstances, Respondent Violated Section 8(b)(1)(A) of the Act by Threatening To Discipline and by Disciplining the Charging Parties for Conducting Such a Meeting This dispute turns entirely upon the right of the Charg- ing Parties to be free from disciplinary action because they convened a meeting of other members . Respondent con- tends that they had no right to schedule and attempt to 10 In Case 19-CA-7297, filed by Respondent, the Regional Director for Region 19 refused to issue a complaint on the basis of Respondent 's allega- tion that "the Employer violated 8(a)(1) and (2) by assisting members of the Union in procuring legal counsel to oppose internal Union fines levied against them and by sponsoring the May 14, 1974 employee meeting." " Blossom's brother is the Employer's vice president 12 In a "Memorandum of Facts In Support of Charges," Robinson refers to the Charging Parties both as "employees" and as "foreman or supervi- sors" However, Respondent has not asserted that the Charging Parties, or any of them, were supervisors within the meaning of Sec 2(11) of the Act at the time of these events Accordingly, and as titles are not "determinative of supervisory status," Orr Iron, Inc, 207 NLRB 863 (1973), In 2, enfd 508 F 2d 1305 (C A 7, 1975), 1 am not treating such statements in the memoran- dum as admissions of supervisory status and find that , at all times material, the Charging Parties were employees within the meaning of Sec 2 (3) of the Act OPERATING ENGINEERS LOCAL 400 601 conduct such a meeting. It, therefore, moves that the com- plaint be dismissed for failure to state a cause of action cognizable under the Act. The Charging Parties' principal purpose for holding the meeting was to review the proposals and counterproposals which had been generated by Respondent's negotiations with the Association and, additionally, to ascertain if other members shared their view that there should be a redirec- tion in Respondent's bargaining strategy, principally and most immediately through the vehicle of a second strike vote. Accordingly, the Charging Parties were questioning the wisdom of Respondent's conduct as their bargaining representative. This they have a right to do under Section 7 of the Act. "We do not believe that the intent or purpose of the amended Act is to foreclose employees from question- ing the wisdom of their representatives or from taking such steps as they deem necessary to align their union with their position." Nu-Car Carriers, Inc., 88 NLRB 75, 76, enfd. 189 F.2d 756, 760 (C.A. 3, 1951), cert. denied 342 U.S. 919 (1951). Where a labor organization restrains and coerces employees in the exercise of that right to question their representative, it violates Section 8(b)(1)(A) of the Act. Roadway Express, Inc., 108 NLRB 874, 875 (1954), enfd. 227 F.2d 439 (C.A. 10, 1955). The imposition of a fine is inherently coercive within the meaning of Section 8(b)(1)(A) of the Act. N.L R.B. v. International Molders and Allied Workers Union, Local No. 125, AFL-CIO [Black- hawk Tanning Co.], 442 F.2d 92, 94 (C.A. 7, 1971). Conse- quently, where a labor organization fines a member for questioning its wisdom and for attempting to redirect its policies, such conduct violates Section 8(b)(1)(A) of the Act. Respondent argues, however, that in the posture in which the instant case arises, no violation of Section 8(b)(I)(A) can be found, for it would be contrary to the Act to invalidate a labor organization's rule proscribing meetings such as that conducted on May 14. This conten- tion is predicated upon two subsidiary arguments ad- vanced by Respondent. First, Respondent argues that since the purpose of the Act is to promote industrial stability through the collective-bargaining process and since majon- ty rule is the necessary foundation for employees' bargain- ing rights under federal law, it must follow that Respon- dent "had a right, even a duty" to penalize the Charging Parties for the vehicle which they chose-the May 14 meet- ing-to achieve their goal, inasmuch as, in conducting the meeting, the Charging Parties were attempting "to thwart the will of the majority by the calling of the unauthorized meeting." Second, argues Respondent, the matter of a la- bor organization's discipline of a member is an internal affair and, as such, is beyond the reach of the Board's au- thority by virtue of the proviso to Section 8(b)(1)(A).13 Such a contention and such subsidiary arguments are not without infirmities. First, Respondent has no rule prohibiting members from conducting informal or unofficial meetings. Only article XXIII, section 10(c), of Respondent's constitution and arti- 13 "Provided, that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein cle XV, section 2, of Respondent's bylaws have been point- ed to as support for Respondent's argument that unofficial meetings, such as conducted by the Charging Parties, are prohibited. Yet, examination of those two sections (quoted in fn. 9, supra) shows that they merely specify procedures for Respondent to convene "special meetings." Neither section proscribes unofficial meetings of Respondent's members. Nor do articles XVI and XXIII, under which the Charging Parties were disciplined, prohibit members from holding such meetings. Further, while on the first day of the hearing Business Manager Kaighn asserted that he could locate such a proscription "given time enough to re- search the constitution and by-laws," that promise has not been fulfilled-notwithstanding the fact that the hearing continued into a second day and the further fact that Re- spondent has filed a most thorough brief in this matter. Nor has my independent review of Respondent's constitu- tion and bylaws disclosed the existence of a provision pro- hibiting members from conducting unofficial meetings. Therefore, it can hardly be found that the discipline in this case was imposed for violation of a valid internal rule of Respondent. Beyond this factual matter of the existence of a rule pro- hibiting Respondent's members from participating in unof- ficial meetings lies the ultimate question of whether labor organizations may impose a blanket prohibition against such meetings. As stated above, Section 7 protects the right of employees to question "the wisdom of their representa- tive" and to take "such steps as they deem necessary to align their union with their position." Nu-Car Carriers, su- pra. Quite clearly this is a meaningless right if labor organi- zations are permitted to restrict or prohibit the vehicle, i.e., meetings and assemblies of employees, for its exercise. Re- spondent is, of course, correct when it argues that the prin- ciple of majority rule is central to the policy, set forth in Section 1 of the Act, of "encouraging the practice and pro- cedure of collective bargaining...." See N.L.R.B. v. Al- hs-Chalmers Manufacturing Company, 388 U.S. 175, 180 (1967). However, the principle of majority rule is not unbri- dled. "In vesting the representatives of the majority with this broad power Congress did not, of course, authorize a tyranny of the majority over minority interests." Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 54 (1975). Rather, a representative is free to promulgate a rule restricting minority activity only so long as that rule "reflects a legitimate union interest, impairs no policy Congress has embedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule." Scofield v. NL.R.B., 394 U.S. 423, 430 (1969). It can hardly be main- tained with any degree of persuasion that a rule prohibiting members from meeting to attempt to generate support for a redirection in their representative's negotiating strategy is one which either reflects a legitimate union interest or which impairs no policy Congress has embedded in the labor laws. Indeed, with respect to those policies embedded in the labor laws, Congress "undertook in the 1959 Landrum- Griffin amendments, 73 Stat. 519, to assure that minority voices are heard as they are in the functioning of a democratic institution." Emporium Capwell, supra. The 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court's reference to a "democratic institution" is most apt, for included in the 1959 amendments was Title I , bearing the subchapter heading of "Bill of Rights of Members of Labor Organizations." Section 101(a)(2) of that subchapter provides: 4 (2) Freedom of speech and assembly.Every mem- ber of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions,- and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, sub- ject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce rea- sonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations. [Emphasis supplied.] In enacting this provision, Congress "was chiefly con- cerned with enabling members to confer outside regular meetings for the purpose of discussing union affairs with- out fear of reprisal by union officials." Navarro v. Gannon, 385 F.2d 512, 517 (C.A. 2, 1967), cert. denied 390 U.S. 989 (1968). "The LMRDA of 1959 was designed to protect the rights of union members to discuss freely and criticize the management of their unions and the conduct of their offi- cers." Salzhandler v. Caputo, 316 F.2d 445, 448-449 (C.A. 2, 1963), cert. denied 375 U.S. 946 (1963). See also Grand Lodge of International Association of Machinists v. King, 335 F.2d 340, 344 (C.A. 9, 1964), cert. denied 379 U.S. 920 (1964). Moreover, the rights guaranteed by this provision encompass the right of a member to meet with other mem- bers regarding dissatisfaction with the manner in which their bargaining representative is handling negotiations for settlement of a strike. Kuebler v. Cleveland Lithographers & Photoengravers Union Local 24-P, 473 F.2d 359 (C.A. 6, 1973). These rights are, of course, subject to some re- striction for the purposes specified in the proviso. But such restrictions may not be so stringent as to completely abro- gate the rights guaranteed. Consequently, Respondent can- not invoke the principle of majority rule to deprive the Charging Parties of their right to meet for the purpose of "questioning the wisdom of their representative" and to seek to take "such steps as they deem necessary to align their union with their position." Nor can Respondent raise the proviso to Section 8(b)(1)(A) as a shield against the exercise of the Board's authority in this matter. It is, of course, correct, as a gener- al proposition, that in enacting Section 8(b)(1)(A), ". . . Congress did not propose any limitations with respect to the internal regulations to affect a member's employment status." Allis-Chalmers, supra, 388 U.S. at 195. However, in determining whether a rule promulgated by a labor organi- zation is valid, "if the rule invades or frustrates an overrid- 14 Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat 522, 29 U S C sec 411 (a)(2) ing policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating Sec. 8(b)(1)." Scofield, supra, 394 U.S. at 429. In such circumstances, the rule ceases to affect only matters internal to the labor orga- nization. Thus, a violation of Section 8(b)(1)(A) has been found where a labor organization restrains and coerces members "in the exercise of their privilege to question the wisdom of their Union as their representative...." Road- way Express, supra. Moreover, as "the Board is charged with considering the full panoply of congressional labor policies in determining the legality of a union fine ," it has found violations of Section 8(b)(1)(A) where unions have disciplined members for exercising rights guaranteed them under the LMRDA. Carpenters Local Union 22, United Brotherhood of Carpenters and Joiners of America, AFL- CIO (Graziano Construction Company), 195 NLRB 1, 2 (1972); see also The Buffalo Newspaper Guild, Local 26, American Newspaper Guild, AFL-CIO-CLC (Buffalo Couri- er-Express, Inc.), 220 NLRB 79 (1975). Therefore, not only did no rule exist prohibiting Respondent's members from convening unofficial meet- ings, but even had such a rule existed, Respondent's disci- plinary action against the Charging Parties would violate Section 8(b)(1)(A) both because it restrained and coerced them in their Section 7 right to question the wisdom of their representative and to pursue a course designed to align their representative with their position and, also, be- cause it restrained and coerced them in the exercise of rights guaranteed them by the LMRDA. Respondent, however, makes several additional argu- ments which, in effect, are directed to the circumstances surrounding the meeting which the Charging Parties ar- ranged. First, Respondent challenges Campbell's motiva- tion for his conduct by pointing to certain testimony indi- cating that much of his dissatisfaction arose from his view that he, personally, would derive minimal, if any, benefit from the improvements in terms and conditions of employ- ment sought by Respondent, although those improvements might be beneficial to other employees in the unit. Howev- er, most concerted activity is conducted by employees who have a personal stake in the correction of the condition which led them to engage in that activity. To strip them of protection for that reason alone would clearly be repug- nant to the purposes and policies of the Act. Rather, the focal point for inquiry in this type of case is the nature of the activity in which employees engage. Indeed, Respon- dent imposed disciplinary measures upon the Charging Parties because of the nature of their activity-for what they did; not for what any of them may have thought. Thus, their subjective motivation need not be evaluated so long as their activities enjoy protection under the Act. Ev- erhart Steel Construction Company, Inc., 214 NLRB 509 (1974). Second, Respondent argues that its disciplinary action was proper because the Charging Parties' conduct had the effect of misleading other members into the belief that the May 14 meeting was being sponsored by Respondent. It is, of course, true that the Charging Parties made efforts to publicize the meeting. However, statements made during the course of protected activity lose their protection only if it is shown that they were "deliberately or maliciously OPERATING ENGINEERS LOCAL 400 603 false." See Owens-Corning Fiberglas Corporation v. N.L.R.B., 407 F.2d 1357, 1365 (C.A. 4, 1969); Texaco, Inc. v. N.L.R.B., 462 F.2d 812, 814-815 (C.A. 3, 1972). Thus, Respondent's argument poses the issue of whether the Charging Parties acted in a manner constituting a deliber- ate or malicious effort to mislead other members into be- lieving that the meeting was to be conducted under Respondent's sponsorship. Campbell, the leading propo- nent on this effort, appeared sufficiently perceptive to have appreciated that such a falsehood would have extremely short-term value to the Charging Parties' objective of gen- erating support to effect a change in Respondent's official bargaining position-such a falsehood might lead members to attend but their anger and revulsion at being deceived when they learned, as they quickly would, that the meeting was not being sponsored by Respondent would undoubt- edly lead many, if not most, of them to oppose the Charg- ing Parties' effort. Consequently, the Charging Parties had no motive for misrepresenting that the meeting was being called by Respondent. Moreover, the Charging Parties' conduct does not dis- close evidence sufficient to conclude that they were delib- erately or maliciously attempting to portray the meeting as being one which Respondent was convening. While Camp- bell chose to hold it at the civic center, where Respondent had once regularly held meetings, there is no evidence that he selected this site in an effort to mislead outsiders regard- ing the meeting's sponsorship and, in addition, the expla- nation which he advanced to the inquiring civic center offi- cials ("we wanted to have an open discussion amongst some interested members of Local 400" in order "to dis- cuss Union proposals, contract proposals, and see if we could come up with some different views.") hardly depicts the meeting as one that Respondent would be interested in conducting. Similarly, in speaking both with Berryman of KMON and with Stewart of KRTV, Campbell 's comments made it evident that it was not Respondent who was ar- ranging for the meeting. Thus, Berryman was told by Campbell that "he was not happy with the press releases and with the information being given to the union mem- bership and that he would like to have an open discussion with the members. .." And, Campbell told Stewart spe- cifically that the meeting was an "unofficial gathering." Further, the wording of the "Community Bulletin Board" announcement does not represent the meeting as one being convened by Respondent, although it does invite Respondent's members to attend. 15 Only the testimony of Tribune advertising department employee Tuss appears to have linked Campbell's efforts to arrange this meeting with Respondent. She testified that 15 In resolving this issue, I attach no weight to Donahue's testimony re- garding the nature of "Community Bulletin Board" announcements It was apparent that this policy was both informal and flexible-it did not pre- clude dissident members of a group from having their appeals to other members of their group aired on the program Moreover, there is no evi- dence that the Charging Parties were aware of any restrictions on announce- ments broadcast on the program Thus, the evidence does not support an inference that by utilizing the "Community Bulletin Board," on which an- nouncements were confined to organizations, Campbell demonstrated that he had been attempting to portray the meeting as one which was sponsored by an organization, i e , Respondent her renewed request for Campbell's name had led him to reply "Well, it is for the Operating Engineers" and, further, that when she had asked if it was "out of the Helena of- fice," he had responded in the affirmative. This inter- change does make it appear that Campbell was portraying the meeting as one sponsored by Respondent and such an inference is buttressed by the use of Respondent's name and address in the customer blanks on the carbon of the copy given to Campbell, as well as by the title "LOCAL 400 OPERATING ENGINEERS" appearing above the message in the advertisement. Yet, such a misrepresentatior by Campbell would be clearly contrary to all of his other conduct in this matter. At no other time did he even infer to any other witness that the meeting was one sponsored by Respon- dent. As found above, such a misrepresentation would be at odds with his motivation in seeking to hold the meeting. Furthermore, at no point did Respondent produce any member to testify that Campbell, or the other two Charg- ing Parties, had said that Respondent was conducting the meeting. In fact, the only employee called as a witness by Respondent gave hearsay testimony concerning what a secretary had said to him about the meeting. Even this hearsay testimony does not attribute sponsorship of the meeting to Respondent, for that employee, Moltzan, testi- fied that the secretary has said that the Employer was the party who was calling the meeting. In these circumstances, Tuss' testimony concerning what Campbell said and did on May 13 is so divorced from his words and acts on other occasions as to warrant closer inspection of her testimony. Tuss impressed me as being sincere, but not altogether knowledgeable in the area of labor-management relations. This unfamiliarity may have produced confusion based on the dual use of the term "operating engineer"-that is, both to denote the organization which is Respondent and, also, to denote, as Bosh acknowledged, the employees who performed a specific type of work and who were members of Respondent. When the term is written, it is, of course, easy to distinguish the intended meaning through the use of initial capitals when referring to Respondent. Spoken, however, the distinction is not so easily discerned and a listener must rely on the context to discern whether the speaker is referring to the organization or to its members. Bearing this distinction in mind, we now turn to Tuss' testi- mony concerning her conversation with Campbell on May 13. As illustrated by the fact that he did not leave his name at the civic center and by the further fact that he was reluc- tant to give his name when first requested to do so by Tuss, Campbell did not want to be identified, personally, on May 13 in connection with the meeting. This reluctance undoubtedly prevailed when Tuss again asked for his name and Campbell's response ("Well, it is for the Operating Engineers") can be construed as a further attempt at avoid- ance by substituting, as an answer, the identity of the audi- ence to whom his advertisement was to be directed- "Well, it is for the operating engineers." Such a conclusion is not undermined by his agreement with Tuss ' suggestion that the address was Helena. There were two locals of Respondent's International body in Montana. Apparently only the local headquartered in Helena (Respondent) was involved in the particular negotiations with Respondent 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which concerned the Charging Parties. As the unit was broad in scope, Campbell was attempting to reach all members affected by the negotiations; not simply those in Great Falls where the Tribune is published Viewed in this light, there is no misrepresentation in Campbell's com- ments to Tuss-he was attempting, through his advertise- ment, to reach all operating engineers in all districts of the Helena local. Neither the customer blanks on the classified order nor the title Tuss placed on the advertisement would diminish this construction of the conversation. So apparently insig- nificant was receipt of the classified order to Campbell that he had no recollection of having received it. His concern on May 13 had, of course, been with placing his advertise- ment and with paying for it. All else was ancillary and superfluous. Thus, it would not have been unreasonable for him to simply ignore all other facets of the transaction once his purpose, publication of his message, had been ac- complished. Moreover, there is nothing in the heading which Tuss prepared that indicated that a reasonable per- son, upon reading that heading, would necessarily be led automatically to conclude that the message was sponsored by Respondent. It is equally reasonable to conclude, as I believe Campbell did, that the heading reflects the audi- ence to whom the message is directed-operating engineers who are members of Respondent. In these circumstances, though the events and words could reasonably have meant that the transaction was being sponsored by Respondent, there is nothing which mandates that this is the only con- struction that can be placed upon the events at the Tri- bune. Nor is there anything which precludes an equally valid inference, consistent with Campbell's other conduct on May 13 and 14, that Campbell was speaking with refer- ence to the audience to whom his appeal was directed while Tuss understood him to mean the sponsor on whose behalf the advertisement was being placed and who was conducting the meeting. Even, however, if it were found that for some unexplain- able reason, Campbell suddenly had decided to shift direc- tion and to misrepresent to Tuss the sponsorship of the meeting, his activity would still be protected. The issue is whether the Charging Parties deliberately misled other members into believing that Respondent had called the meeting. The advertisement was never published and there is no evidence that Tuss ever communicated the substance of her conversation with Campbell to any member of Re- spondent. There is no evidence that Campbell, Blatter, or Burkland ever made statements similar to those made by Tuss to any other person, including Respondent's other members. Nor is there evidence that these three Charging Parties could reasonably foresee that their publication of the meeting would be misconstrued and that members might conclude that it was Respondent which was conven- ing the meeting. The Charging Parties are employees-not lawyers or semanticists. Other crafts were simultaneously engaged in negotiations. Two of those other crafts were also engaged in a strike. Respondent's members admittedly used the term "operating engineers" to describe them- selves. Respondent is not the only Operating Engineers lo- cal in Montana. In these circumstances, it is difficult to conceive of any other manner in which the Charging Par- ties could reasonably have phrased their announcements to reach the intended listeners in a simple and economical manner. Nor is it reasonable or realistic to conclude that they could have foreseen that their appeal would generate a dual interpretation and that members would construe it as one made by Respondent. Therefore, I find that the announcements which reached Respondent's members were not deliberately or maliciously intended to portray the meeting as one being convened by Respondent. Any confusion which resulted was simply an inadvertant effect of efforts to reach a specific audience, employing a com- monly used descriptive phrase. Respondent's third argument to support its contention that the circumstances of this case justify its disciplinary action is based upon the effect which that meeting had upon subsequent negotiations in which the Association ad- vanced the May 14 meeting as a weapon to challenge the depth of employee support for Respondent's bargaining position. However, there is no evidence that the Charging Parties intended such a result and the Regional Director for Region 19 refused to proceed on Respondent's charge that there was employer sponsorship of the meeting. There is, accordingly, no evidence showing any direct relation- ship between the Association and the Charging Parties' meeting. It is, of course, clear that a labor organization "has a legitimate interest in presenting a united front on ... issues and in not seeing its strength dissipated and its stature denigrated by subgroups within the unit...." Em- porium Capwell, supra, 420 U.S. at 70. Thus, the Act does not protect minority groups of employees who attempt "to usurp the functions" of their bargaining representative. Dazey Corporation, 106 NLRB 553, 554 (1953); see also Farmers Union Cooperative Marketing Association, 145 NLRB 1 (1963). Here, however, the Charging Parties' ob- jective was to ascertain if there was support for their posi- tion and then to work through Respondent's procedures, by means of a second strike vote, in an effort to make their position the official position of Respondent. There is no evidence that any of the Charging Parties intended to use the May 14 meeting as a vehicle for usurping the functions of Respondent or as a basis for attempting to deal directly either with the Association or the Employer. Their appeal was directed exclusively to other employees and, so far as the record discloses, ceased when it became evident that there was no significant support for their position. That the Association saw fit to seize upon that meeting is no more, accordingly, than an unintended effect of the exercise of rights guaranteed by the Act. It cannot serve to divest the Charging Parties of rights to which they are entitled. Finally, Respondent asserts that it was justified in dis- ciplining the Charging Parties due to the manner in which the meeting was conducted and the unrest created by the Charging Parties' efforts to advance a view contrary to that of the majority of Respondent's members. This reason for Respondent's disciplinary action is reflected by the two provisions in Respondent's constitution under which the discipline was imposed (see In. 6 supra, italicized sections). Undoubtedly the Charging Parties' views were not popular and they may not have been based upon as much informa- OPERATING ENGINEERS LOCAL 400 605 tion as studious attendance at Respondent' s meetings would have provided. Yet, the purpose for protecting as- sembly and expression of minority views under the Act is to assure that those views can be heard and, if persuasive, that they can become the views of the majority. Thus, in referring to LMRDA, Section 101(a)(2), the Supereme Court has pointed out that its purpose is "to assure that minority voices are heard as they are in the functioning of a democratic institution." Emporium Capwell, supra. Of course, not all of the rights in the bill of rights of members of labor organizations can be equated to those provided by the Constitution. Yet, the right to express dissenting views free of discipline because of their unpopularity and be- cause of the rancor which they engender in other members can be applied in a fashion which, at least, parallels that of a democratic institution . That being so, Respondent's argu- ment that it had the right to discipline the Charging Parties because of the dissension which their views created is best answered by the admonition in Terminiello v. Chicago, 337 U.S. 1, 4 (1949): [A] function of free speech under our system of gov- ernment is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and pre- conceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech . . . is . . . protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest... . Here there has been no showing of such great unrest that there was danger of a riot. Kaighn made that assertion, but he had not attended the meeting and there was no evidence to support his assertion that the unrest had reached that level. Indeed, had there been a riot, I doubt that Respon- dent would be the proper organization to impose discipline for such conduct or that the Charging Parties should be the persons disciplined for the hostile actions of those who dis- agreed with their views. Similarly, discipline cannot be just- ified for the Charging Parties' efforts to exclude Respondent's officials from the meeting, since they had the right, free of surveillance, to attempt to achieve support for their views on Respondent's bargaining strategy. See The E. W. Buschmar Company, Incorporated, 153 NLRB 699, 711 (1965). Therefore, I find that Respondent did violate Section 8(b)(1)(A) by directing the Charging Parties to appear be- fore the executive board, by informing them that they were to stand trial, by directing them to appear for trial on July 17, and by finding them guilty and disciplining them for conducting a meeting to question the wisdom of their bar- gaining representative and to attempt to engender support to persuade Respondent to change its bargaining strategy. Accordingly, I deny Respondent's motion to dismiss the complaint for failure to state a cause of action cognizable under the Act. B Whether the Complaint must be Dismissed Because the Charging Parties Failed to make an Effort to "exhaust reasonable hearing procedures " Established by Respondent or Because the Employer Financed, Encouraged, or Participated in the Filing of the Charge Respondent argues that as the Charging Parties seek to invoke LMRDA, Section 101(a)(2) to support their charge in this matter, so also are they subject to the restrictions which Congress has imposed upon persons seeking relief under that provision. In this respect, Respondent points to two provisos in LMRDA, Section 101(a)(4), 73 Stat. 522, 29 U.S.C. Sec. 411(a)(4), which it contends mandate dis- missal of the complaint: Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to ex- ceed a four-month lapse of time) within such organiza- tion, before instituting legal or administrative proceed- ings against such organizations or any officer thereof: And provided further, That no interested employer or employer association shall directly or indirectly fi- nance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition. The first point to be made with respect to Respondent's contentions based upon these provisos is that I have found a violation of Section 8(b)(1)(A) on two theories-first, that the Charging Parties enjoyed the right to conduct the May 14 meeting under Section 7 of the Act, Roadway Ex- press, Inc., supra, and second, that they enjoyed the right to have such a meeting under LMRDA, Section 101(a)(2) as protected by the Act. Even, therefore, should these two provisos be fully applicable to bar the Charging Parties from proceeding under the second theory, they would not operate to preclude them from relief under the theory of Roadway Express. Second, while article XVII, section 4, of Respondent's constitution restricts the right of members to resort to the Board's processes without first resorting to internal reme- dies for a 4-month period, Section 10(a) of the Act provides specifically that the Board's power to prevent unfair labor practices "shall not be affected by any other means of ad- justment or prevention that has been or may be established by agreement, law, or otherwise." Thus, Respondent may not invoke its own constitution to restrict the Charging Parties' access to the Board. Though the Board has formu- lated a doctrine of deferral under certain circumstances in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), that doctrine is not applicable here as there has been no showing that the issue of Respon- dent's discipline of members is cognizable under its con- tract with the Association, Joseph T. Ryerson & Sons, Inc., 199 NLRB 461, 462 (1972); Reapp Typographic Service Inc., 204 NLRB 792, fn. 2 (1973), or that Respondent' s agree- ment with the Association provides for arbitration which is binding upon all parties. See United Steelworkers of Ameri- ca, AFL-CIO and its Local No. 4454 (Continental Can Com- pany, Inc.), 202 NLRB 652, 654 (1973); Tulsa-Whisenhunt Funeral Homes, Inc., 195 NLRB 106, fn. 1 (1973). Beyond 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this, the first proviso in LMRDA, Section 101(a)(4) cannot be invoked to preclude the Board from considering a viola- tion predicated on LMRDA, Section 101(a)(2). Such a re- sult has been foreclosed in N.L.R.B. v. Industrial Union of Marine & Ship Workers, 391 U.S. 418, 426 (1968): second proviso to LMRDA, Section 101 (a)(4) was de- signed to prevent Therefore, I deny Respondent's motion to dismiss the complaint under the provisos to LMRDA, Section 101(a)(4). We conclude that "may be required" is not a grant of authority to unions more firmly to police their members but a statement of policy that the public tri- bunals whose aid is invoked may in their discretion stay their hands for four months, while the aggrieved person seeks relief within the union. As stated above, the Board has not adopted a policy of deferral for exhaustion of internal remedies in these situa- tions. Consequently, the first proviso of LMRDA, Section 101(a)(4) may not be invoked, notwithstanding a labor or- ganization's provision for internal review of disciplinary action, to preclude resort to the Board's processes where disciplinary action violates Section 8(b)(1)(A). Finally, LMRDA, Section 603(b), 29 U.S.C. Sec. 523(b) provides: "Nothing contained in titles I ... of this Act, shall be construed to . . . affect the rights of any person under the National Labor Relations Act." Consequently, even if the Employer had financed, encouraged, or partici- pated in the filing of the charge in this matter, no motion to dismiss could be granted on the basis of the second proviso to LMRDA, Section 101 (a)(4). Adamszewski v. Local Lodge 1487, 1AM, 496 F.2d 777, 784-785 (C.A. 7, 1974), cert de- nied 419 U.S. 997 (1974). Beyond this, the purpose of this proviso is "to protect unions from harassing litigation and illegal management interference with their internal dis- putes with dissident workers" UA W v. National Right to Work, 366 F.Supp. 46 (D.D.C., 1973). Here, Hilde did nothing more than respond to an employee's inquiry re- garding reputable counsel, offer to permit that employee to ride along on a business trip which would take Hilde to the vicinity of the attorney's office, and wait while that em- ployee conferred with the attorney. At no point is there any evidence that Hilde encouraged Campbell to select Rob- inson as counsel or to ride to Butte to meet with Robinson. One might question the propriety of Hilde's and Blossom's presence during Campbell's conference with Robinson, but there is no evidence that Hilde or Blossom acted in a man- ner that would constitute encouragement or that they par- ticipated in the conference concerning Campbell's problem to any degree. Indeed, it appears that Hilde's presence was occasioned by no more than his need to wait for Campbell to complete his discussion so that he could drive Campbell back to Great Falls. Quite clearly, it would not be reason- able to have required Hilde to abandon Campbell in Butte late in the afternoon. Beyond these acts, for the most part simple courtesies, there is no evidence that the Employer had any contact with the processing of the charge in the instant case. Nor is it likely that such evidence would exist for this matter was fully investigated in Case 19-CA-7297. Consequently, I find that Hilde's simple amenities , de minimis in impact, do not constitute the type of conduct rising to the stature of "harassing litigation and illegal management interference with . . . internal disputes with dissident workers" that the THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the Employer's operations described in section A, above, have a close , intimate, and substantial relationship to trade , traffic, and commerce among the sev- eral States and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. International Union of Operating Engineers Local 400, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 2. Hilde Construction Company is an employer within the meaning of Section 2(2) of the Act, engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 3. By directing Duwain Campbell, Darrell Blatter, and Jack Burkland to appear before its executive board; by informing these three employees that they were to stand trial; by directing them to appear for trial on July 17 and by finding them guilty and disciplining them for conduct- ing a meeting to question the wisdom of their bargaining representative and to attempt to engender support to per- suade Respondent to change its bargaining strategy; Re- spondent has restrained and coerced Campbell, Blatter, and Burkland in the exercise of rights guaranteed in Sec- tion 7 of the Act, in violation of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in and is engag- ing in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it shall take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully fined Duwain Campbell, Darrell Blatter, and Jack Burkland $400 each because of their protected concerted activity, I shall recom- mend that Respondent rescind those fines, that all refer- ences and other evidence in Respondent's records and files relating to the proceeding against them be expunged, and that they be reimbursed for any sums paid toward said fines with interest thereon at the rate of 6 percent per an- num from the time said sums were paid. Carpenters Local Union No 22, supra In addition, the General Counsel has requested that such other relief as is just and proper be OPERATING ENGINEERS LOCAL 400 607 granted. Campbell, at least, was directed, as part of the unlawfully motivated disciplinary action imposed, to at- tend the next six regular meetings conducted by Respon- dent. This had the possible effect of precluding him from working on those six occasions and, consequently, possibly depreived him of earnings. Accordingly, I shall recom- mend that Campbell, as well as Blatter and Burkland, if they too were subjected to a similar penalty for which com- pliance caused them to lose earnings by having to miss work, be made whole for any loss of earnings suffered by reason of Respondent's unlawfully motivated conduct of requiring that work be missed to attend meetings, with the backpay to be computed on a quarterly basis, making de- ductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Com- pany, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9, 1963). Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: tice, on forms provided by the Regional Director for Re- gion 19, after being duly signed by Respondent's author- ized representative, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Forward signed copies of said notice to Regional Di- rector for Region 19 for posting by employer-members of Montana Contractors Association, Inc., a chapter of the Associated General Contractors of America, whose em- ployees are represented by Respondent and whose opera- tions are encompassed by the heavy construction contract with Respondent, if willing, at their construction sites in the State of Montana, at locations where notices to em- ployees are customarily posted. (e) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ORDER 16 Respondent, International Union of Operating Engi- neers Local 400, AFL-CIO, Great Falls Montana, its offi- cers, agents, and representatives, shall: 1. Cease and desist from: (a) Directing members to appear before its executive board, informing members that they are to stand trial, di- recting members to appear for trial, and finding members guilty and disciplining them because of their lawful activi- ties in questioning the wisdom of their bargaining represen- tative and in attempting to engender support to persuade their bargaining representative to change its bargaining strategy. (b) In any like or related manner restraining and coerc- ing members in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Revoke and rescind the fines levied upon Duwain Campbell, Darrell Blatter, and Jack Burkland because of their activities of questioning the wisdom of their bargain- ing representative and of attempting to engender support to persuade their bargaining representative to change its bargaining strategy and reimburse them in the manner set forth in the section hereinabove entitled "The Remedy." (b) Completely expunge and excise from its records all reference and other evidence in its files to fines, mandatory attendance at meetings, and threats to impose fines and mandatory attendance at meetings for Duwain Campbell, Darrell Blatter, and Jack Burkland because of their activity in questioning the wisdom of the bargaining representative and in attempting to engender support to persuade their bargaining representative to change its bargaining strategy and notify each of them, in writing, of such action. (c) Post at its Helena, Montana, and at any office which it may maintain at Great Falls, Montana, copies of the attached notice marked "Appendix." 11 Copies of the no- 16 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 17 In the event that the Board's 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT direct you to appear before our execu- tive board, inform you that you are to stand trial, di- rect you to appear for trial or find you guilty and dis- cipline you because you question our wisdom or because you attempt to seek support from other mem- bers to persuade us to change our bargaining strategy. WE WILL NOT fine or threaten to fine you or direct you to miss work to attend our meetings because you question our wisdom or because you attempt to seek support from other members to persuade us to change our bargaining strategy. WE WILL revoke and rescind all fines levied upon Duwain Campbell, Darrell Blatter, and Jack Burkland because they questioned our wisdom and attempted to gain support of other members to persuade us to change our bargaining strategy. WE WILL reimburse Duwain Campbell, Darrell Blat- ter, and Jack Burkland for any sums paid toward fines levied upon them and for any loss of pay which they sustained due to our direction that they attend our 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings because they questioned our wisdom and at- tempted to gain support of other members to persuade us to change our bargaining strategy , with interest at the rate of 6 percent per annum from the dates when said fines were paid and when said losses of pay oc- curred. WE WILL completely expunge and excise from our records all reference and other evidence in our files to fines, mandatory attendance at meetings , and threats to impose fines and mandatory attendance at meetings for Duwain Campbell, Darrel Blatter, and Jack Burk- land because they questioned our wisdom and at- tempted to gain support of other members to persuade us to change our bargaining strategy, and will notify them, in writing, that such action has been taken. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 400, AFL-CIO