H. B. Roberts, Bus. Mgr., Local 925, IUOE

National Labor Relations Board - Board Decisions

Aug 31, 1964

148 N.L.R.B. 674 (N.L.R.B. 1964)

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for the purpose of collective -bargaining or other mutual aid or pro-
tection , or to refrain from any or all such activities, except to the' extent that
such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3)
of the Act.
WE WILL make Levina McGinnis whole for any loss of pay she may have
suffered by reason of the fact that we discriminated against her. _
SAFEWAY STORES, INCORPORATED,
Employer.
Dated------------------- By--------------- --------------------
(Representative ) ' ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Information regarding the provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board, 609
Railway Exchange Building, 17th and Champa Streets, Denver, Colorado, Telephone'
No. Keystone 4-4151, Extension 513.
H. B. Roberts , Business Manager of Local 925, International
Union of Operating Engineers and Local 925, International
Union of Operating Engineers [Wellman -Lord Engineering,
Inc.] and Wallace J. Martin . Case No. 12-CB-605. August 31,
1964
DECISION AND ORDER
Upon charges duly filed by Wallace J. Martin, the General Coun-
sel of the National Labor Relations Board, by the Director for Region
12 on July 13, 1962, issued a complaint against Respondents, H. B.
Roberts, business manager of Local 925, International Union of Oper-
ating Engineers and Local 925, International Union of Operating
Engineers. Copies of the charges, the complaint, and notice of hear-
ing before a Trial Examiner were duly served upon Respondents and
the Charging Party. In substance the complaint alleged that Re-
spondents violated Section 8(b) (1) (A) of the Act by fining the
Charging Party because he had filed unfair labor practice charges
with the Board.
Respondents' answer admits the jurisdictional allegations of the
complaint and the factual allegations except that Respondents deny
that the Charging Party was a member of Respondent Union at the
time the complaint issued and that 'a fine was imposed against the
Charging Party because he had filed charges with the :Board. Re-
spondents assert, rather, that Martin was fined pursuant to Respond-
ent Union's bylaws because he failed to exhaust-his internal union
remedies prior to filing his charge with the Board. Respondents
denied, the commission of any unfair labor practices.
On August 17, 1962, all parties to this proceeding entered into a
stipulation of facts, and on the same date moved jointly to transfer
this proceeding directly to the Board, for findings of fact, conclusions
148 NLRB No. 81.
H. B. ROBERTS, BUS. MGR., LOCAL 925, IUOE 675
of law, and a Decision and Order. The parties waived their rights
to a hearing before a Trial Examiner and to the issuance of a Trial
Examiner's Decision. The Board granted the motion to transfer
the case to the Board. The General Counsel and Respondents filed
briefs. On July 9, 1964, the Board, pursuant to notice, heard oral
argument at Washington, D.C. Respondents and the General Coun-
sel appeared at the hearing by counsel and participated in the argu-
ment to the Board.'
The Board has considered the briefs, arguments, and the entire
record in this case, and based thereon makes the following :
FINDINGS OF FACT
1. JURISDICTION
Respondent Union represents in collective bargaining various of
its members and other persons employed by Wellman-Lord Engineer-
ing, Inc. Wellman-Lord is a Florida corporation which, during the
year immediately preceding the filing of the charges herein, performed
services in the course and conduct of its business valued in excess of
$50,000 outside the State of Florida. It was stipulated, and we find,
that Wellman-Lord is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Local 925, International Union of Operating Engi-
eners, is a labor organization within the meaning of Section 2(5) of
the Act, and Respondent H. B. Roberts is an agent of Respondent
Union acting in its behalf.
III. THE UNFAIR LABOR PRACTICES
Charging Party Martin joined Respondent Union in 1946. On or
about September 26, 1961, and again on or about October 19, 1961,
Martin while a member of the Union filed unfair labor practice charges
against the Union and Roberts as its agent alleging that Respondents
had caused or attempted to cause Wellman-Lord to discriminate
against him in violation of Section 8(b) (2) and (1) (A) of the Act.
The September charge was withdrawn by Martin prior to any action
by the Regional Director on the charge. The October charge was
withdrawn after the Regional Director advised Martin that an in-
vestigation failed to reveal sufficient evidence of a violation.
Following the withdrawal of the charges with the Board, Re-
spondent Roberts filed charges against Martin with Respondent Union
alleging that Martin had violated the constitution of the International
1 The American Federation of Labor and Congress of Industrial Organizations filed a
brief as ameous curiae and argued orally in support of Respondents ' position.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union of Operating Engineers and the bylaws of Respondent Union by
filing unfair labor practice charges with the Board prior to exhausting
his internal union remedies.2
Respondents did not indicate in the stipulation of facts, in briefs,
or in argument what form of relief or avenue of appeal was available
to Martin under the International's constitution or Respondent
Union's bylaws for the alleged discriminatory action taken against
him by Respondent Roberts.
At Martin's subsequent trial before the union membership, Roberts
made this statement to Martin and the members present :
I am going to promise you something. Every time a man goes to
the National Labor Relations Board from now on without conn-
ing to the proper channels . . . as soon as his case is dropped and
it is cleared up I am going to prefer more charges.
On January 5,1962, Martin was found guilty, fined $450, and placed
on probation•for 3 years.
'Respondents contend that the imposition of a fine upon a union mem-
ber *does hot constitute restraint and coercion within the meaning
of Section 8(b) (1) (A) of the Act, and, in any event, that the proviso
to Section 8(b) (1) (A) immunizes Respondents' conduct from the
Board's remedial powers. -
We find, for the reasons stated in our decision in Local 138, Inter-
national Union of Operating Engineers, AFL-CIO (Charles S.
Skura),' that Respondents violated Section 8 (b) (1) (A) by imposing a
fine on Martin for filing an unfair labor practice charge with the
Board, or for failing to exhaust his internal union remedies prior to
filing charges.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth above, have a close, intimate,
and substantial relation to trade, traffic , and commerce among and be-
tween the several States, and tend to lead to industrial strife burden-
ing and obstructing commerce.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor prac-
tices, we shall order Respondents to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
2 Article XII, section 5 , of Respondent Union's bylaws provides:
No member or officer of this Local Union shall resort to any court or agency outside
this Local Union or the International Union until he has exercised all his rights as
a-member and all forms of relief and avenues of appeals as provided by the Inter-
national Constitution or these By-Laws have been exhausted by him, unless other-
wise provided by statute.
3 145 NLRB 679.
H. B. ROBERTS , BUS. MGR.; LOCAL 925, IUOE 677
the Act. Since we have found that Respondents violated the Act by
fining Martin for filing an unfair labor practice charge or failing to
exhaust his internal union remedies prior to filing such charge , we shall
order Respondent Union to reimburse and make whole Martin 4 for
the amount of the fine unlawfully exacted from him, with interest at
6 percent per annum.5
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the meaning
of Section 2(5) of the Act, and Respondent Roberts is an agent of
Respondent Union acting in its behalf.
2. By imposing a fine against Wallace J. Martin because Martin
had filed unfair labor practice charges with the Board or had failed
to exhaust his internal union remedies prior to filing charges with the
Board, Respondents engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8(b) (1) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor" Relations Board hereby orders that
Respondent, Local 925, International Union of Operating Engineers,
its officers, agents, representatives, successors, and assigns, and Re-
spondent H. B. Roberts, its agent, shall :
1. Cease and desist from :
(a) Fining employees for filing unfair labor practice charges
with- the Board or failing to exhaust their internal union remedies
prior to filing such charges with the Board, or otherwise participating
or cooperating in Board proceedings.
(b) In any like or related manner restraining or coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds nec-
essary to effectuate the policies of the Act :
(a) Reimburse and make whole Wallace J. Martin for the amount
of the fine unlawfully exacted of him, with interest thereon at 6 per-
cent per annum, as set forth in "The Remedy" section of the Decision
(b) Post at Respondent Union's business offices and meeting halls
in Tampa, Florida, copies of the attached notice marked "Appendix."'
4 In accord with our usual policy, the reimbursement provisions of the remedy shall
apply to Respondent Union only and not to Respondent Roberts
B Isis Plumbing & Heating Co., 138 NLRB 716
The provisions of this paragraph shall not apply to Respondent Roberts
In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order " the wore "a
Decree of the United States Court of Appeals, Enforcing an Order "
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, to be furnished by the Regional Director for
Region 12, shall, after being duly signed by an official representative
of Respondent and by Respondent Roberts, be posted by the Respond-
ent Union immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its members are customarily
posted. Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 12, in writing, within
10 days from the date of this Decision and Order, what steps the
Respondents have taken to comply herewith.
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS,
REPRESENTATIVES, AND AGENTS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT fine employees for filing unfair labor practice
charges with the National Labor Relations Board or for failing to
exhaust their internal union remedies prior to filing such charges
with the Board, or otherwise participating or cooperating in
National Labor Relations Board proceedings.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of their rights guaranteed in Section
7 of the Act.
WE WILL reimburse and make whole Wallace J. Martin for the
amount of fine unlawfully exacted from him with interest thereon
at 6 percent per annum.
LOCAL 925, INTERNATIONAL UNION OF
OPERATING ENGINEERS,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
H. B. ROBERTS, BUSINESS MANAGER, LOCAL 925, INTER-
NATIONAL UNION OF OPERATING ENGINEERS,
Dated---------------- By-------------------------------------
(Business Manager)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
LOCAL 138, INT'L UNION OF OPERATING ENGINEERS 679
Employees may communicate directly with the Board's Regional
Office, 112 East Cass Street, Tampa 2, Florida, Telephone No.
223-2643, if they have any question concerning this notice or com-
pliance with its provisions.
Local 138, International Union of Operating Engineers, AFL-
CIO and Charles S. Skura . Case No. 2-CB-3505. August 31,
1964
DECISION AND ORDER
On May 1, 1963, Trial Examiner Benjamin B. Lipton issued his
Intermediate Report in the above-entitled proceeding finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, Respondent filed exceptions to the Inter-
mediate Report and a supporting brief. The General Counsel filed a
brief in support of the Intermediate Report, taking exception, how-
ever, to the Recommended Order. On July 9, 1964, the Board, pursu-
ant to notice, heard oral argument at Washington, D.C. Respondent
and the General Counsel appeared at the hearing by counsel and
participated in argument to the Board.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, the oral argument, and the
entire record in this case. The Board agrees with the Trial Examiner
that Respondent violated Section 8(b) (1) (A) of the Act, but for rea-
sons different from those relied upon by the Trial Examiner. There-
fore, the Board adopts the findings, conclusions, and recommendations
of the Trial Examiner only to the extent consistent herewith.
The facts of this case are largely undisputed and are set forth in
detail in the Intermediate Report. We shall restate them only to
the extent required by our discussion of the issues.
Charles S. Skura was one of six members of Respondent Union who
composed a so-called reform group which was opposed to the admin-
istration of Union President William DeKoning and Secretary
Verner Sofield. In previous years, members of the reform group had
filed unfair labor practice charges against Respondent, and had them-
selves been the subject of Board cases arising out of alleged discrimi-
nation against them because of their opposition to the Union's
administration.
i The American Federation of Labor and Congress of Industrial Organizations filed a
brief as amicus curiae and argued orally in support of Respondent's position.
148 NLRB No. 74.