Transportation Workers Local 525 (Johnson Controls)

402 317 NLRB No. 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 We agree with the judge that no issue concerning Communica- tions Workers of America v. Beck, 487 U.S. 735 (1988), was raised or litigated in this case. 2 In adopting the judge’s conclusions, we specifically affirm his in- terpretation of Boilermakers (Kaiser Cement Corp.), 312 NLRB 218 (1993). 1 All dates hereinafter are 1994, unless otherwise indicated. 2 The union-security clause involved provides for the discharge of an employee upon the Union’s request when the employee has not paid the legally required agency fees or union dues. The lawfulness of the clause is not at issue. 3 The parties stipulated the expulsion by the Union was lawful. 4 No Communications Workers of America v. Beck, 487 U.S. 735 (1988), issue was raised or litigated in this case. Transportation Workers Union of America, AFL– CIO and its Local 525 (Johnson Controls World Services, Inc.) and Douglas J. Nelson. Case 12–CB–3801 May 12, 1995 DECISION AND ORDER BY MEMBERS BROWNING, COHEN, AND TRUESDALE On February 21, 1995, Administrative Law Judge William N. Cates issued the attached decision. The General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Michael Maiman, Esq., for the General Counsel. Joseph Egan Jr., Esq. (Egan, Levy & Swicia, P.A.), of Or- lando, Florida, for the Union. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This is an unfair labor practice prosecution brought by the National Labor Relations Board’s (Board) General Counsel acting through the Acting Regional Director for Region 12 in the form of a complaint and notice of hearing (complaint) issued on June 30, 1994,1 against the Transportation Workers Union of America, AFL–CIO and its Local 525 (Union). The com- plaint is based upon an unfair labor practice charge filed by Douglas J. Nelson, an individual (Nelson), on February 17. I heard the case on November 7. The case involves the scope of the Union’s authority to enforce the discharge provisions in the union-security clause outlined in its collective-bargaining agreement with Johnson Controls World Services, Inc. (Company). More specifically, it is alleged Local Union President Eddie Hill (President Hill) threaten Nelson with application of the discharge provi- sions of the union-security clause2 should Nelson cease pay- ing dues or agency fees when Nelson had previously been expelled3 from the Union for circulating a petition seeking authorization from employees for another labor organization (Aero Space Maintenance Workers Union) at a time during which a petition could lawfully have been filed with the Board with such activity allegedly being protected by Section 7 of the National Labor Relations Act (Act). If as counsel for the General Counsel (Government) asserts the Union committed an unfair labor practice, a second issue is whether President Hill acted as an agent of the International Union in the actions he took herein. I will, as more fully explained, conclude the Union did not violate the Act in any manner alleged in the complaint. Accordingly, I need not reach the second issue. FINDINGS OF FACT I. JURISDICTION The Company is a corporation with an office and place of business at Eastern Space and Missile Center, Cape Canav- eral Air Force Station, Florida, where it is engaged in the business of providing ground support services for the United States Air Force. During the year preceding issuance of the complaint, a representative period, the Company provided services in excess of $50,000 to the United States Air Force pursuant to a service contract with the United States Govern- ment. The complaint alleges, the evidence establishes, and I find the Company is, and has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The record establishes that at all times material, the Inter- national Union and its Local 525 have been and are labor or- ganizations within the meaning of Section 2(5) of the Act. III. THE FACTS The Union and Company are parties to a collective-bar- gaining agreement that contains a union-security clause that provides for the discharge of an employee upon the Union’s request, when that employee has not paid or tendered pay- ment of representation fees or initiation fees and membership dues.4 The facts surrounding the allegations are for the most part undisputed. Any conflicts will be addressed as they arise. Nelson began working for the Company on August 25, 1975, and became a member of the Union approximately 90 days later. He remained a member of the Union until, he as- serts, he was expelled from membership in September 1992. During the time Nelson was a member of the Union he held the offices of shop steward, executive board member, vice president, and president. 403 TRANSPORTATION WORKERS LOCAL 525 (JOHNSON CONTROLS) 5 Nelson held himself out to be and signed documents as vice president of the Aero Space Maintenance Workers Union. Nelson was also a member of the Union herein at the same time. 6 The Union stipulated at trial that these events occurred during a time in which a petition could have been properly filed with the Board. 7 Hill and Nelson have remained friends since they met in the early 1980s. 8 Pertinent parts of Hill’s letter states: ‘‘I, Eddie O. Hill, do hereby file charges against Douglas J. Nelson.’’ The charges are as follows: D) Advocating or attempting to bring about the withdrawal from the International Union or any Local Union, or any member or group of members. F) Working in the interest of or accepting membership in any organization dual to the International Union. 9 Pertinent parts of Nelson’s letter follows: Since I have been expelled from membership in the Transport Workers Union by action of the Local Executive Board and no longer have any rights as a Union Member or any say in the affairs of the Union or will have at any time in the future, I feel that paying union dues to an organization that I have been ex- pelled from is improper. I have spoken to the National Labor Relations Board about this matter and have been advised that being forced to pay Union Dues as a condition of employment after being expelled from the Union would constitute an Unfair Labor Practice on the part of the Union. 10 Communications Workers v. Beck, supra. 11 Hill testified sending letters such as the one to Nelson was con- sistent with the Union’s standard policy. 12 Nelson explained the collective-bargaining agreement called for an International Union representative to send such a letter and that part of the letter was to remind the delinquent member that he/she had 15 days to pay up or the International Union would seek his/her discharge. 13 Hill said the conversation was nonconfrontational. On or about August 17, 1992, Nelson signed (as did sev- eral other employees) and circulated a petition seeking au- thorization from employees for representation by another (Aero Space Maintenance Workers Union) labor organiza- tion.5 No petition was, however, filed with the Board.6 Short- ly after starting his presidency, President Hill became aware there was a movement trying to form a separate labor organi- zation even though he was not immediately aware Nelson was involved.7 On or about August 28, 1992, President Hill informed Nel- son in writing he had filed intraunion charges against Nelson for his activities related to the petition for the rival labor or- ganization.8 According to President Hill, Nelson was ulti- mately expelled from membership in the Union because of his above-referenced activities. In December 1992, Nelson wrote President Hill9 express- ing a belief he was no longer responsible for payment of union dues inasmuch as he had been expelled from the Union. Nelson testified President Hill thereafter sent him a memorandum outlining the procedure for becoming a Beck10 objector and expressed the hope this would take care of the matter. The record is somewhat unclear regarding what took place immediately thereafter; however, Nelson continued to pay union dues until December 1993, at which time he ceased doing so. Thereafter President Hill wrote Nelson the following let- ter:11 February 4, 1994 Douglas J. Nelson 12712 Forestedge Circle Orlando, Florida 32828 Dear Mr. Nelson: As a nonmember, you are entitled to pay full dues or, in the alternative, you are required to pay agency fees. You have paid nothing to the Local for the months of December 1993, January, and February, 1994. You are thus delinquent in the amount of $94.83 (31.61 per month) for agency fees. Please take care of this arrearage immediately. In the future, if you wish to hand pay, the amount of $31.61 is due by the first of each month. If you wish to use check-off, the regular dues amount will be de- ducted but you will be eligible for a rebate at the end of the year. Sincerely, /s/Eddie O. Hill Eddie O. Hill, President TWU-Local 525, AFL–CIO Nelson testified he telephoned President Hill on February 8, because he had questions regarding his status with the Local Union. Nelson asked President Hill why he sent the February 4 letter instead of the International Union as called for in the collective-bargaining agreement.12 According to Nelson, Hill said it was because of their past friendship. Nel- son testified he next asked Hill how long his expulsion was for and Hill said he didn’t know. Nelson asked Hill as there was no date on the expulsion order was it safe to assume the expulsion was forever. According to Nelson, Hill said he guessed so. Nelson asked President Hill a number of ques- tions regarding his rights related to attending union meetings, running for office, nominating candidates for office, attend- ing union functions, or participating in collective bargaining. Nelson testified Hill said he could not do or participate in any of these activities. Nelson asked President Hill about whether if ‘‘in the future he fail[ed] to remit union dues, would the union seek [his] termination under the Agency Shop Clause.’’ Nelson testified Hill said yes and they ended their telephone conversation. President Hill acknowledged he probably did not recall the telephone conversation in question as well as Nelson did. Hill said Nelson ‘‘questioned’’ him on his expulsion and wanted to know if it was forever. Hill testified he told Nel- son he simply didn’t know. According to Hill, Nelson kept asking questions along the lines of could his expulsion be forever, and Hill responded he guessed so.13 President Hill testified Nelson asked what would happen if he didn’t pay any dues. Hill told Nelson, ‘‘Doug let’s don’t do that. You’d force me to enforce what’s in the contract.’’ President Hill testified the Union never at any time sought Nelson’s discharge. Nelson testified that since his expulsion he has not made any attempts to be reinstated to member- ship. Nelson explained, ‘‘[i]f I thought it would be well re- ceived, I would’’ Nelson has, at least as of the trial herein, continued to pay union dues and has remained gainfully em- ployed by the Company. President Hill and Nelson both appeared to be testifying truthfully to the best of their recollection. Although their tes- 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD timony regarding their February 8 conversation may seem to conflict somewhat; any conflicts are not material and do not impact the outcome herein. To the extent that it is helpful, I find Nelson’s recollection of the conversation to be better than President Hill’s. Hill appears to acknowledge as much. IV. DISCUSSION, ANALYSIS, AND CONCLUSIONS Counsel for the General Counsel argues it is clear Nelson was permanently expelled from membership in the Union be- cause he attempted to oust the Union herein as the collective- bargaining representative of certain employees of the Com- pany and replace it with a rival labor organization. Counsel for the General Counsel urges Nelson’s activities are pro- tected by Section 7 of the Act. Counsel for the General Counsel argues the Board has consistently held a union may not lawfully invoke the union-security clause of its contract against an employee whose full union membership has been significantly impaired due to the exercise of Section 7 rights. Although counsel for the General Counsel cites a number of cases in support of his position he relies primarily on two cases, namely, Steelworkers Local 4186 (McGraw Edison), 181 NLRB 992 (1990), and Communications Workers Local 9509 (Pacific Telephone), 193 NLRB 83 (1971). Counsel for the General Counsel states that although the Board has made it clear in these (and like) cases, it finds no fault with inter- nal union discipline imposed for engaging in rival union or protected decertification activities, it does find unlawful the invocation of a union-security clause where membership has been impaired for the exercise of Section 7 rights. Counsel for the General Counsel summarizes his position by stating that under McGraw Edison and Pacific Telephone Nelson’s membership status was lawfully impaired, but he argues the Union violated Section 8(b)(l)(A) of the Act by threatening to enforce a union-security clause against him. Finally, coun- sel for the General Counsel argues, at length, that the Board’s decision in Boilermakers (Kaiser Cement Corp.), 312 NLRB 218 (1993), does not require a contrary result than that which he advocates. Counsel for the General Coun- sel acknowledges that the Board in Kaiser found no violation of the Act where union members were disciplined—barred from holding union office or attending union meetings for fixed numbers of years—because they circulated petitions de- signed to remove substantial numbers of positions from the bargaining unit. Counsel for General Counsel urges two dis- tinguishing factors between Kaiser and McGraw Edison, first he urges the disciplined individuals in Kaiser remained mem- bers of the union (albeit with substantially impaired rights) and that the judge in Kaiser found no nexus between one of the four individuals’ decertification activities and the dis- cipline imposed. Counsel for the Union argues the Union’s conduct herein is fully consistent with and controlled by the Board’s deci- sion in Kaiser. Counsel for the Union contends the Board in Kaiser acknowledged the distinctions drawn by the trial judge in Kaiser between the protected/unprotected nature of the conduct giving rise to the union discipline but found making such a distinction unnecessary. Counsel for the Union argues that in Kaiser the Board focused on whether the discipline was lawful and not whether the conduct caus- ing the discipline was protected or unprotected. The Union contends by doing so the Board in Kaiser necessarily re- jected any suggestion in McGraw Edison that the protected/- unprotected nature of the conduct given rise to the discipline was dispositive. Counsel for the Union asserts such a conclu- sion is inescapable because the conduct at issue in Kaiser— circulating a petition seeking to have the union removed so employees could bargain directly with the employer—clearly was protected. Counsel for the Union argues that Kaiser overruled McGraw Edison sub silentio and that the complaint herein must be dismissed. A review of certain portions of the Act is helpful at this point. The Union is charged with having violated Section 8(b)(1)(A) of the Act, which provides: (b) It shall be an unfair labor practice for a labor or- ganization or its agents— (1) to restrain or coerce (A) employees in the exer- cise of the rights guaranteed in Section 7 [Section 157 of this title]: Provided, That this paragraph shall not im- pair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; Section 7 (§ 157.) reads as follows: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor origination as a condition of employ- ment as authorized in section 8(a)(3) [section 158(a)(3) of this title]. Section 8 (§ 158.) (a)(3)(B) provides: It shall be an unfair labor practice for an employer— (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor orga- nization: . . . Provided further, That no employer shall justify any discrimination against an employee for non- membership in a labor organization . . . (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the ini- tiation fees uniformly required as a condition of acquir- ing or retaining membership; The two primary cases (McGraw Edison and Pacific Tele- phone) that counsel for the General Counsel relies on in sup- port of a finding of a violation initially seem persuasive. In Pacific Telephone two individuals (Lavers and Coupar) were expelled from membership in the Communications Workers of America, Local 9509 (CWA) because of their ac- tivities related to distributing literature and membership cards for the Independent Organization of Pacific Employees for the purpose of obtaining signatures to decertify CWA as bar- gaining agent for certain Pacific Telephone employees. CWA expelled Lavers and Coupar pursuant to its constitution, which provides for the fining, suspension, or expulsion of any member found guilty at a union trial of willfully support- ing or assisting any persons, groups of persons, or organiza- 405 TRANSPORTATION WORKERS LOCAL 525 (JOHNSON CONTROLS) tions in any act or activities for the purpose of seeking or obtaining the decertification or replacement of CWA as col- lective-bargaining representative. After being expelled Lavers and Coupar refused to pay union dues to CWA. CWA then demanded that Pacific Telephone discharge Lavers and Coupar pursuant to its valid collective-bargaining agreement, which, under specified conditions, makes the payment of periodic dues a condition of employment. The Board citing McGraw Edison found CWA in violation of Section 8(b)(1)(A) of the Act. Briefly summarized the Board in McGraw Edison found an 8(b)(1)(A) violation of the Act when the union insisted that an employee pay union dues on a penalty of discharge under a valid union-security agreement, during a period when his membership rights in the union had been significantly impaired by disciplinary sanctions imposed as a result of his filing a decertification petition. More specifically, in McGraw Edison employee Arnold Blaine filed with the Board a petition seeking decertification of the incumbent union. After the union was redesignated by a majority in an election the union initiated disciplinary proceedings against Blaine and he was initially expelled from the union. Blaine appealed and his membership was reinstated, but the union suspended his right to attend union meetings for a period in excess of 1 year and indefinitely suspended him from hold- ing union office. Thereafter Blaine refused to pay union dues and the union threatened to invoke the union-security clause against him. Blaine thereafter paid dues to the union. The Board viewed McGraw Edison as placing in issue its policy of providing unimpeded access to its procedures and rem- edies. The Board citing NLRB v. Marine & Shipbuilders, 391 U.S. 418, 425 (1968), noted that any coercion used to dis- courage or defeat access to the Board is beyond the legiti- mate interest of a labor organization. The Board noted it was not confronted in McGraw Edison with a situation in which a union disciplined a member because the member filed a de- certification petition simply by fining, expelling, or suspend- ing the member. The Board acknowledged a reduction in membership rights standing alone does not necessarily vio- late the Act. The Board stated, however, that for the union to insist upon Blaine’s continued payment of dues during pe- riods when his rights as a member were significantly reduced constituted a continuing form of coercion attempting to oper- ate as a ‘‘serious restraint’’ upon access to its processes. Specifically the Board concluded: The Union’s insistence upon Blaine’s payment of dues, on pain of discharge, cannot be considered as dis- associated from the suspension of membership rights resulting from his decertification activity. We see no justification, either in the proviso to Section 8(b)(1)(A) or in considerations of a labor organization’s need for self preservation, for the steps taken against Blaine. The threat to enforce the union-security clause while con- tinuing the sanctions against Blaine was hardly nec- essary to preserve the Union’s existence as an institu- tion, nor could it be viewed as a noncoercive form of internal discipline which would have no discouraging effect upon a member’s decision to invoke the Board’s representation procedures. It is for these reasons that we affirm the Trial Exam- iner’s finding that a labor organization violates Section 8(b)(1)(A) by invoking, or threatening to invoke, a law- ful union-security clause to enforce payment of dues by a member whose membership has been significantly impaired because he filed a decertification petition.6 6 As our decision in this case is based on the coercive steps taken as a result of filing a decertification petition, we need not pass upon whether a labor organization violates Section 8(b)(1)(A) through en- forcement of a union security clause against a member whose member- ship was impaired for reasons unrelated to seeking access to Board de- certification processes. In two other cases cited by counsel for the General Coun- sel the Board found violations of the Act where labor organi- zations sought payment of dues from suspended members under threats to seek their discharge pursuant to valid union- security provisions contained in collective-bargaining agree- ments. In Dillingham Tug & Barge Corp., 278 NLRB 83 (1986), the Board adopted Judge James M. Kennedy’s find- ing a violation of Section 8(b)(1)(A) of the Act in which the union suspended employee/union member Francis Keane’s membership for 15 years and fined him $863 as a result of his activities on behalf of a rival labor organization. Judge Kennedy wrote: Furthermore, it is clear that the expulsion and fine lev- ied against him were based on his action in supporting the rival union. That, of course, is an activity protected by Section 7 of the Act. Respondent Union has, there- fore, deprived Keane of the rights attendant full mem- bership in the Union. Thus, when Respondent Union suspended him it simultaneously stripped him of any obligation to pay union dues. Section 8(a)(3)(B), as in- corporated by Section 8(b)(2), states that it is unlawful to discharge or cause the discharge of an employee on union security grounds if that employee has been de- nied union membership for reasons other than his fail- ure to tender periodic dues. Clearly that is the case here. Respondent Union suspended Keane because of his rival union activity. By that very act it denied him membership on grounds other than a failure to pay peri- odic dues. He was, therefore, not obligated to pay any dues whatsoever while membership was denied him. In Telephone Traffic Union, 241 NLRB 826 (1979), the Board affirmed Judge George Norman’s finding the union unlawfully threatened Louise Neunder with discharge pursu- ant to the agency-shop provisions of the governing collec- tive-bargaining agreement unless she paid dues during a pe- riod in which she had been suspended from membership in the union for supporting the organizational efforts of a rival union. The Board in Telephone Traffic Union made it ex- pressly clear the union’s actions violated Section 8(b)(1)(A) of the Act even though Neunder was suspended because she exercised her Section 7 rights to support a rival union rather than to file a decertification petition. Looking only at the above-referenced cases I am persuaded counsel for the General Counsel established a violation of Section 8(b)(1)(A) of the Act. The Board in the cases out- lined above has made it clear a union may not invoke a union-security clause of a collective-bargaining agreement against an employee whose full union membership has been significantly impaired due to the exercise of Section 7 rights. 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Turning to the instant facts I first note the Company and Union are parties to a collective-bargaining agreement with a valid union-security clause that provides for the discharge of an employee upon the Union’s request if the employee does not pay the required agency fees. In August 1992, Nel- son, a longtime employee and union office holder, signed and circulated a petition seeking to have a rival labor organi- zation designated as the collective-bargaining representative for certain employees who were at the time (and continue to be) represented by the Union herein. On or about August 28, 1992, the Union (through President Hill) brought intraunion charges against Nelson because of his activities on behalf of the rival labor organization and thereafter expelled him from the Union. Nelson inquired and was told his expulsion could last forever. Nelson stopped paying dues to the Union in De- cember 1993 and on or about February 4, 1994, was notified by the Union of his delinquency and asked to bring his dues current. On or about February 8 Nelson asked President Hill if in the future he failed to remit union dues would the Union seek his termination pursuant to the parties agency- shop clause in their collective-bargaining agreement. Hill re- sponded in the affirmative. Without specifically setting forth the elements of a viola- tion drawn from the cases outlined earlier it is clear counsel for the General Counsel established a prima facie violation of the Act. This, however, does not resolve the matter. Next I turn to an examination of the case relied upon by the Union in support of its contention the complaint must be dismissed. The Union argues the Board in Kaiser sub silentio overruled the cases relied on by counsel for the General Counsel and further urges that counsel for the General Coun- sel is wrong when he argues Kaiser does not require a con- trary finding to that advocated by counsel for the General Counsel. In Kaiser the Board looked at whether the union violated Section 8(b)(1)(A) of the Act by threatening four dissident employee members with enforcement of the union-security clause if they discontinued paying membership dues after the union had substantially impaired their membership rights. The Board in Kaiser concluded the union did not violate the Act. In Kaiser the union disciplined four members for their activities which if successful would have eliminated all or a substantial part of the bargaining unit. One of the four was charged with bargaining with the company in order to dis- band the union and have the jobs converted into salaried po- sitions. Two of the others were charged with aiding and abet- ting the activities of the first member and the fourth member was charged with circulating a petition seeking to eliminate the bargaining unit altogether. All four were found guilty as charged and all were barred from holding union offices and from attending union meetings except for meetings at which a contract directly affecting them was to be voted upon. The barrings ranged from 2 to 5 years. The one dissident that had been serving as local union president was suspended from of- fice. The four wrote the international union president claim- ing the union had ‘‘in effect’’ suspended them from union membership and as such they were not required to pay union dues. The international union president responded that they had not been suspended from membership and they had an obligation to continue to pay dues. The four in Kaiser in- quired of the international union president what penalties would be imposed if they ceased paying union dues. The international union president responded that if they failed to pay dues the union would inform the employer and the four ‘‘would no longer be allowed to work at the plant.’’ In Kai- ser Judge Michael D. Stevenson made an overall finding, which the Board affirmed, that the union had the right to protect itself against the alleged discriminatees activities which would have resulted in the erosion or the elimination of the bargaining unit it represented. Judge Stevenson con- cluded the General Counsel did not establish a prima facie case that the discipline violated Section 8(b)(1)(A) of the Act. Judge Stevenson also concluded, with Board approval, the Union did not violate the Act by threatening to invoke the union-security clause of its collective-bargaining agree- ment because the alleged discriminatees were attempting to change either half or all of the bargaining unit jobs into sala- ried and/or supervisory positions. Judge Stevenson concluded the union had a legitimate union interest in preventing the erosion of its status as collective-bargaining representative. Although the Board in Kaiser noted ‘‘[Judge Stevenson] stressed that [Kaiser] is distinguishable from Local 4186, United Steel Workers of America (McGraw Edison Co.), 181 NLRB 992 (1970), in that the Board there found that the union had unlawfully threatened to invoke the union security clause against a member whose membership it had signifi- cantly impaired because of the employee’s protected conduct in filing a decertification petition’’ it also noted: The judge also rejected the General Counsel’s alternate contention that even if the activities for which the Re- spondent disciplined the alleged discriminatees were not protected, the Respondent had so significantly reduced their membership rights that it could not lawfully en- force the union- security clause against these employ- ees. The General Counsel’s argument, in the judge’s view, presented the Respondent with the ‘‘Hobson’s choice’’ of either forgoing its right to discipline mem- bers under the proviso to Section 8(b)(1)(A) (thereby rendering the proviso to Section 8(b)(1)(A) a nullity) or relinquishing its right to enforce the provisions of a valid union security clause (thereby ultimately self-de- structing without the dues of disciplined members). The judge concluded that the General Counsel’s position, if implemented, would induce any members who are un- willing to pay dues in the first place for financial or philosophical reasons to subject themselves to union discipline ‘‘so they would be ‘‘punished’’ by not hav- ing to pay union dues, although they would continue their employment.’’ For these reasons, the judge dis- missed the complaint. The Board in Kaiser found two actions involved, ‘‘(1) the Union’s internal discipline of certain employees, which dis- cipline impaired their membership in the Union; and (2) the enforcement of a union security clause against those employ- ees, notwithstanding the fact that their membership was im- paired.’’ The Board continued ‘‘[t]hese two matters are ana- lytically distinct, although in a given case they may be relat- ed.’’ The Board pointed out ‘‘[I]f discipline is wholly inter- nal, i.e., if it does not itself affect the employment relation- ship the Union may be able to impose the discipline even if it is aimed at a Section 7 right.’’ The Board noted some ex- amples but then observed: 407 TRANSPORTATION WORKERS LOCAL 525 (JOHNSON CONTROLS) 14 If not exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. To be sure, there are limitations on the Union’s right to impose discipline on members. One of these limita- tions is that the employee-members must be free to re- sign their membership and thereby escape the rule.6 That is, employees have a right to resign from the union. If they resign prior to engaging in the Section 7 conduct deemed offensive by the union (e.g., crossing a picket line), the union cannot discipline them. If they have opted for continued membership, they cannot be heard to complain if the union enforces the rules of membership. 6 Scofield v. NLRB, 394 U.S. 423 (1969). The Board noted a second exception: There is another important exception to the general rule concerning a union’s right to impose internal discipline on members. If the union’s rule impairs a policy that Congress has embedded in the labor laws, the union may not enforce the rule, even against a member. Of Course, as we have seen, the mere fact that the dis- cipline is in reprisal for a Section 7 right is not suffi- cient to condemn the discipline. See Allis-Chalmers. However, if the Section 7 right is the fundamental one of seeking access to the Board, the discipline in reprisal therefor may be unlawful.7 Thus, for example, if the employee files a petition or a charge with the Board, the union cannot fine him for that action.8 7 The Sec. 7 right of seeking access to the Board is fundamental in the sense that all others are dependent on it. If the employee cannot come to the Board, he cannot vindicate any of his rights. 8 See NLRB v. Marine & Shipbuilding Workers, 391 U.S. 418 (1968); Molders Local 125 (Blackhawk Tanning Co.), 178 NLRB 208 (1969). Does, as the Union contend, Kaiser control the instant case warranting dismissal of the complaint or is, as counsel for General Counsel contends, Kaiser distinguishable? First, I note Nelson was a member of the Union at the time he engaged in the conduct the Union found offensive. There is no showing he could not have resigned his member- ship and escaped the discipline. Nelson’s conduct of signing, circulating, and seeking to have others sign a petition to des- ignate a rival labor organization as bargaining representative of certain employees of his employer was conduct designed to oust the Union herein from its role as collective-bargain- ing representative of the employees in question. Nelson was not only trying to oust the Union herein he was trying to have a rival labor organization installed that he was the vice president of. Nelson was defeated in his bid to again serve as president of the Union herein. The parties stipulated, and the record evidence supports the stipulation, that the Union legally imposed discipline on Nelson. Having concluded, as outlined above, that the discipline was lawful the next issue under the analytical framework of Kaiser is whether the Union could threaten to enforce its contractual union-security clause against Nelson. There is somewhat limited guidance on this point in Kaiser. In that regard, the Board in Kaiser held, ‘‘[b]ecause the Respond- ent’s discipline of these members did not violate the Act, the members continued, as unit employees, to be required under the union-security agreement to satisfy the sole obligation a union may enforce under a union-security provision: ‘the ten- dering of uniform initiation fees (if any) and dues.’’’ (Foot- note omitted.) Obviously the first requirement outlined above has been satisfied, namely that the discipline did not violate the Act. A critical question arises with respect to the remain- der of the quote ‘‘the members continued, as unit employees, to be required under the union-security agreement to satisfy the sole obligation a union may enforce. . . .’’ ‘‘Did the Board intend the operative word in this part of the quotation to be ‘‘members’’? The overall tenor of the Kaiser decision persuades me it did not. The Board’s main concern was whether the discipline was legally imposed. The Board’s lengthy inclusion in Kaiser of Judge Stevenson’s discussion of the ‘‘Hobson’s choice’’ situation a union is placed in per- suades me the Board did not intend for a union in a factual situation such as the one herein to have to chose between its right to discipline a member under the proviso to Section 8(b)(1)(A) of the Act and its right to enforce the provisions of a valid union-security clause. Nelson’s conduct was di- rected toward the destruction of the Union that rejected him as its president and have the collective-bargaining representa- tive replaced with a rival labor organization of which he was an officer, namely vice president. Kaiser makes it clear a union may protect its position in such situations. It is obvious, as pointed out by counsel for the General Counsel, the Board was well aware of McGraw Edison and related cases when it decided Kaiser and it did not avail itself of the opportunity to expressly overrule these earlier decisions. I am, persuaded in agreement with counsel for the Union, however, that the Board overruled sub silentio all prior contrary cases when it decided Kaiser. In light of all the above, I conclude the Union did not vio- late Section 8(b)(1)(A) of the Act by threatening to invoke the union-security clause against Nelson if he ceased paying dues after the Union disciplined him. Accordingly, I shall dismiss the instant complaint. CONCLUSIONS OF LAW 1. Johnson Controls World Services, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Transportation Workers Union of America, AFL–CIO and its Local 525 are labor organizations within the meaning of Section 2(5) of the Act. 3. The Union has not engaged in the unfair labor practices alleged in the complaint. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended14 ORDER The complaint is dismissed in its entirety.