Independent Metal Workers Union, Local No. 1

National Labor Relations Board - Board Decisions

Jul 1, 1964

147 N.L.R.B. 1573 (N.L.R.B. 1964)

N
INDEPENDENT METAL WORKERS UNION, LOCAL NO. 1 1573,
been shown to have been so intolerable from the physical , mental , or financial
aspect, that La Fleur had no alternative but to quit after 1 day B0 He could have
continued to work in the A Room unless it reached an intolerable point and could
have sought reinstatement, through the Act, to his former job in the main dining
room and with reimbursement for the difference in his earnings . Since La Fleur
elected to quit before a point of intolerability was reached , I believe, while recogniz-
ing this right to quit on the facts of the case and while recognizing the Employer's
basic responsibility for such action , that the limitation on backpay , heretofore men-
tioned , is appropriate in the circumstances of this case.61
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of the Act and is engaged in
interstate commerce.
2. The Union is a labor organization within the meaning of the Act.
3. Respondent , as found hereinabove in section III, has violated Section 8(a)(1)
of the Act.
4. Respondent , as found hereinabove in section III, has discriminated against
Wilbur La Fleur in violation of Section 8(a) (1) and ( 3) of the Act.
[Recommended Order omitted from publication.]
60 Situations of the "intolerable type" described merit no limitation on the basis of
the backpay computation Although "intolerability " need not necessarily be so extreme,
the following is an example of a situation where the discriminatee has no choice but to
quit forthwith * A 55-year-old clerk weighing 125 pounds is discriminatorily transferred
to a warehouse j ob where he is to lift 100-pound bags from a conveyor and load them on
racks above shoulder level for 8 hours a day.
61 It is unnecessary to define precisely what a point of intolerability would have been.
Perhaps if La Fleur had worked a week or 10 days and if his earnings in the A Room
for that period were $10 or $15 per day less than those of his former job , the point of
intolerability would have been reached . If instead of being transferred to the A Room
La Fleur had been made a dishwasher or garbage man that might well have been without
more a point of intolerability In the circumstances herein.
Backpay is to include Interest at 6 percent and is to be computed in accordance with
the principle of F. TV. Woolworth Company, 90 NLRB 289
Independent Metal Workers Union , Local No. 1 and Independent
Metal Workers Union , Local No. 2 and Hughes Tool Com-
pany, Party of Interest
Hughes Tool Company and United Steelworkers of America,
AFL-CIO , Petitioner and Independent Metal Workers Union,
Locals Nos. 1 and 2. Cases Nos. 23-CB-429 and 23-RC-1758.
o July 1, 1964
DECISION AND ORDER, AND ORDER RESCINDING
CERTIFICATION
On February 26, 1963, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent has engaged in unfair labor practices and recommending
that it cease and desist therefrom and that it take certain affirmative
action, as set forth in the attached Intermediate Report. In Case No.
23-RC-1758, consolidated by the Board with the unfair labor practice
case, the Trial Examiner recommended that the joint certification
147 NLRB No. 166.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued to Independent Metal Workers Union, Locals Nos. 1 and 2, be
rescinded. Exceptions and briefs have been filed by Independent
Metal Workers Union, Local No. 1, also known herein as Respondent,
and by Independent Metal Workers Union, Local No. 2, the Charg-
ing Party. Amicus curiae briefs have been filed by the United States
Department of Justice, the American Civil Liberties Union, and the
United Automoblie, Aerospace and Agricultural Implement Workers
of America, AFL-CIO, contending that the Respondent committed
unfair labor practices.
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 and briefs, and the entire record in
the case, and adopts the findings, conclusions, and recommendations
of the Trial Examiner with the additional comments noted herein.'
With respect to the unfair labor practice case, we agree with the
Trial Examiner for the reasons stated by him that Local No. 1, by its
failure to entertain in any fashion or to consider the grievance filed
by an employee in the bargaining unit, Ivory Davis, and by its out-
right rejection of Davis' grievance for reasons of race, violated Sec-
tion 8(b) (1) (A), 8(b) (2), and 8(b) (3) of the Act. We further
agree with the Trial Examiner, contrary to the Charging Party's con-
tention, that the validity of the racially discriminatory contracts be-
tween Local No. 1 and the Company was not placed in issue by the
complaint in the unfair labor practice case. Similarly, racial segrega-
tion in union membership was not placed in issue in that case. This
conclusion is not to be construed, however, as a disagreement on our
part with the contentions of the Charging Party that the negotiation
of racially discriminatory terms or conditions of employment by a
statutory bargaining representative violates Section 8(b) of the Act'
and that racial segregation in membership, when engaged in by such
a representative, cannot be countenanced by a Federal agency 3 and
may violate Section 8(b) 4 We would be content to terminate our
discussion of the unfair labor practice case at this point and to rely, °
as we do, upon the Trial Examiner's treatment of the issues, but the
separate opinion of Chairman McCulloch and Member Fanning, in
which they disagree with us at length, necessitates additional com-
ments in this majority opinion.
1 The requests of the Charging Party and the Department of Justice for oral argument
are hereby denied , as the record and briefs adequately present the issues and the posi-
tions of the parties
S Cf. Steele v. Louisville and N.R Co., 323 U.S. 192 ; Tunstall v . Brotherhood of Loco-
motive Firemen, 323 U S . 210; Brotherhood of Railroad Trainmen v Howard, 343 U.S. 768.
3 Brown v Board of Education, 347 U.S 483 ; Bolling v. Sharpe, 347 U . S. 497; Shelley
v. Kraemer, 334 U.S. 1; Hurd v. Hodge, 334 U S. 24.
1 See footnote 7 in the Intermediate Report.
INDEPENDENT METAL WORKERS UNION, LOCAL NO. 1 1575
0
With respect to the Section 8(b) (1) (A) 'violation, the separate
opinion relies upon cases which were advanced by the General Coun-
sel for consideration by the Trial Examiner. The latter's discussion
of the subject in his Intermediate Report casts much doubt upon the
applicability of the cases. Moreover, as we understand the separate
opinion, our colleagues would find an 8(b) (1) (A) violation only be-
cause the Negro employee, Ivory Davis, who is a member of the
Negro local of Independent Metal Workers Union, is not a member
of Local No. 1, the Respondent. In other words, our colleagues ap-
pear to say that, in another factual context, when a statutory bar-
gaining representative does not practice segregation or other racial
restrictions in membership, such representative may refuse, on racial
grounds as distinguished from nonmembership grounds, to consider
a meritorious grievance of a Negro in the bargaining unit, seeking
by such refusal to keep Negro employees in inferior jobs, and that
such refusal does not violate Section 8(b) (1) (A). We cannot con-
cur in our colleagues' view of the law. We rely instead upon the
Trial Examiner's reasoning in finding a violation of Section
8(b) (1) (A).
The separate opinion utilizes this case as an opportunity to re-
iterate and enlarge the dissenters' views in Local 553, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (Miranda Fuel Company, Inc.), 140 NLRB 181. We
need not detail the bases of our disagreement. We note only a few
facts. When the Supreme Court enunciated the duty of fair repre-
sentation in Steele and Tunstall, supra, which were Railway Labor
Act cases, the Court emphasized in each case the lack of an adminis-
trative remedy as a reason for holding that Federal courts constitute
a forum for relief from breaches of the duty. In this connection,
it should be noted that provisions of the Railway Labor Act which
are substantially identical to certain unfair labor practice provisions
of the National Labor Relations Act are enforcible by the Federal
courts, not by an administrative agency. When the Labor Board, in
recognition of the Steele and Tunstall doctrines, held that under the
Wagner Act statutory bargaining representatives owe to their con-
stituents a duty to represent fairly, the Board's holding necessarily
was confined to representation proceedings because the Board had no
power to issue an order against a labor organization. After enact-
ment of the Taft-Hartley Act, however, an administrative remedy
became available in our view and in the view of various legal scholars
whose works appear in articles cited in the separate opinion and in
the Intermediate Report,5 as well as in briefs amici in this case and be-
5 See, in particular, Sovern, "The NLRA and Racial Discrimination," 62 Col. L Rev
563; Sovern, "Race Discrimination and the NLRA: The Brave New World of Miranda,"
New York University Sixteenth Annual Report on Labor (1963) ; Cox, "The Duty of Fair
Representation," 2 Villa L. Rev. 151. See also, Blumrosen, "The Worker and Three
Phases of Unionism etc," 61 Mich. L. Re-. 1435
1576 DECISIONS OFo NATIONAL LABOR RELATIONS BOARD
fore the court of appeals in N.L.R.B. v. Miranda Fuel Co., 326 F. 2d
172 (C.A. 2). Moreover, a majority of the panel of the court which
decided that case expressly refrained from determining whether a
breach of the duty of fair representation violates Section 8 (b) (1) (A),
and the Supreme Court said recently that the question is open,
Humphrey v. Moore, 375 U.S. 335, 344,6 as indeed our dissenting
.colleagues concede.
If our 8(b) (1) (A) theory is unsound, as our colleagues asserr,, it
follows that no 8(b) (1) (A) violation has been found in this case be-
cause we cannot concur in our colleagues' 8(b) (1) (A) theory. Con-
sequently, we address ourselves to our colleagues' assertions concern-
ing the 8(b) (2) and (3) violations found by the Trial Examiner.
Our colleagues contend that those violations are not properly before us
procedurally and, in any event, that there have been no such violations
^on the lnerits. We disagree on both counts. Our colleagues' discussion
of the procedural question reflects a misunderstanding of the grounds
on which the Trial Examiner concluded that there was no procedural
barrier to the resolution of the 8 (b) (2) and (3) issues. The reference
to the Charging Party's motion to amend the complaint by alleging a
violation of Section 8(b) (2) on a set of facts not recited in the com-
plaint (the negotiation of racially discriminatory contracts) and the
references to the Respondent's assertions that the issue had not been
alleged or litigated, that the Respondent had been unprepared to de-
fend on the issue, and that the Respondent possessed material evidence
which it had not offered, are in our view irrelevant. This is so be-
cause the Trial Examiner denied the Charging Party's motion, and
we have affirmed his ruling. The procedural question, as ably set forth
by the Trial Examiner at the hearing and in his Intermediate Report,
is whether, when facts have been alleged and fully litigated, the Board
is precluded from finding violations of Section 8 (b) (2) and (3) merely
because the General Counsel chose not to allege as a legal conclusion
that the pleaded and litigated facts violate those sections of the Act.
The American Newspaper Publishers Association case cited by our
colleagues and the Trial Examiner clearly supports the latter's deter-
6 Syres v Oil Workers International Union , 350 U S 892 , which is discussed in foot-
note 24 of the separate opinion, is of little independent weight on the issue here. The
Supreme Court , in its per cursani opinion , cited Railway Labor Act cases only, thereby in-
dicating the Steele and Tunstall principles invalidating racially based representation are
equally applicable under this Act. Judge Rives, dissenting in the court of appeals, also
cited such cases for the proposition that "[t]here are no adequate remedies available to
appellants under the National Labor Relations Act or through the Board," 223 F. 2d at
747. Neither Court appears to have been confronted with the question whether, under
Taft-Hartley, the right to fair representation is inherent in Section 7 and whether , there-
fore , an administrative remedy had become available See Blumrosen , supra, footnote 5,
at page 1504, where the author, citing Syres, comments that "[t]he duty [of fair repre-
sentation], however, was carried over into the NLRA without a full examination of
NLRB's power to enforce it."
INDEPENDENT METAL WORKERS UNION, LOCAL NO. 1 1577'
mination. Moreover, the recent Frito Company case 7 contains the
following pertinent paragraph :
It is now settled that the General Counsel's decision to investi-
gate a charge or issue a complaint is unreviewable by the Board.
However, once the decision has been made to issue a complaint and
to prosecute it, the General Counsel has embarked upon the judicial
process which is reserved to the Board. If the General Counsel
can control this process, then the General Counsel can indeed
usurp the Board's responsibility for establishing policy under the
Act by simply withholding from the Board any issue which might
precipitate a meaningful policy decision not in accord with the
views of the General Counsel.
We conclude that the Trial Examiner properly considered whether
the conduct of the Respondent set forth in the complaint violated
Section 8(b) (2) and (3).8 We conclude also, for the reasons given by
the Trial Examiner, that he correctly found violations of those sec-
tions of the Act.
Turning to the representation case, we join the separate opinion of
our colleagues in holding that the Pioneer Bus doctrine s requires
that the certification issued jointly to Locals Nos. 1 and 2 on Octo-
ber 18, 1961, be rescinded because the certified organizations executed
contracts based on race and administered the contracts so as to per-
petuate racial discrimination in employment. The separate opinion
fails, however, to treat two issues which are of crucial importance to-
day. First, the separate opinion disregards certain constitutional
limitations upon the Board's powers. Second, the separate opinion
fails to join in overturning an outmoded and fallacious doctrine which
the Board established long ago. Specifically, we hold that the Board
cannot validly render aid under Section 9 of the Act to a labor organi-
zation which discriminates racially when acting as a statutory bargain-
ing representative. Cf. Shelley v. Kraemer, 334 U.S. 1; Hurd v.
Hodge, 334 U.S. 24; Bolling v. Sharpe, 347 U.S. 497. We hold too, in
agreement with the Trial Examiner, that the certification should be
rescinded because Locals Nos. 1 and 2 discriminated on the basis of
race in determining eligibility for full and equal membership, and
segregated their members on the basis of race. In the light of the
Supreme Court decisions cited herein and others to which the Board
adverted in Pioneer Bus, we hereby expressly overrule such cases as
Atlanta Oak Flooring Company, 62 NLRB 973; Laru.s d Brother
7 The Fri to Company , Western Division v. N.L R B , 330 F. 2d 458 (CA. 9)
8 Although it was not essential in our view that the Trial Examiner notify the parties
at the hearing that he might decide whether the conduct alleged and litigated violated
Section 8 ( b) (2) and ( 3), we note, as does the separate opinion , that the Trial Examiner
did so notify the parties and that , additionally , he invited them to brief the points. See
also Frank B. Smith d /b/a Little Lump Coal Co , 144 NLRB 1499
0 Pioneer Bus Company , Inc, 140 NLRB 54.
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Inc., 62 NLRB 1075; and other cases epitomized by the
language of the Board's Tenth Annual Report, quoted by the Trial
Examiner at footnote 9, insofar as such cases hold that unions which
exclude employees from membership on racial grounds, or which
classify or segregate members on racial grounds, may obtain or re-
tain certified status under the Act.
We are not confronted at this time, as we were in Pioneer Bus, with a
new petition for certification, and thus we have no present occasion for
prescribing a notice such as that recommended by the Trial Examiner
as a condition for certification. We intimate no disapproval of that
recommendation, however, and we shall entertain it if occasion to do
'so should arise. We also commend it to the consideration of the
Regional Director in the event that he should be called upon to issue
a certification of representatives at this plant.
ORDER
The certification of October 18, 1961, in Case No. 23-RC-1758 is
hereby rescinded.
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner in Case No. 23-CB-429 and orders that
the Respondent, Independent Metal Workers Union, Local No. 1, its
officers, agents, representatives, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order.
CHAIRMAN MCCULLOCH and MEMBER FANNING, concurring in part
and dissenting in part :
During the relevant period, Independent Metal Workers Union,
herein called the Independent, consisted of two locals : Local 1 com-
prised of white employees of Hughes Tool Company, herein called the
Company; Local 2 of Negro employees. The constitution of the In-
dependent provides that each local shall have "complete, final and
exclusive authority" to handle and negotiate with the Company all
"matters of every kind and character" pertaining to its members and
other employees of like color for whom it is the bargaining agent.
In 1959, following an election, the Board jointly certified Locals 1
and 2 as bargaining representatives of the Company's production and
maintenance employees. Thereafter Locals 1 and 2 negotiated with
the Company a collective-bargaining contract effective to September
1961 and from year to year thereafter unless terminated. This agree-
ment, presumably like its predecessors, designated certain jobs as
available only to white employees, and others to Negro employees.
The jobs for Negro employees were inferior to those for white em-
ployees. On October'18, 1961, following another election, Locals 1
INDEPENDENT METAL WORKERS UNION, LOCAL NO. 1 1579
and 2 were again certified as joint bargaining representatives of em-
ployees in the appropriate unit. In the fall of that year the 1959
contract was opened for renegotiation. The two locals were unable to
agree on a proposal advanced by Local 2 for the elimination of racial
discrimination.
On December 18, 1961, Local 1 and the Company signed a new agree-
ment "amending and extending" the 1959 contract. Local 2 refused
to sign. In spite of this, and over Local 2's protest, the Company put
the new contract into effect immediately. Simultaneously, Local 1
and the Company agreed to enlarge the number of apprenticeships
in the plant. These apprenticeships, under the terms of the contract,
were available only to white employees. When the apprenticeships
were opened for bids, Ivory Davis, a Negro employee member of Local
2, bid for one of the apprenticeships. His bid was rejected by the
Company because he was not eligible for the apprenticeship under
the terms of the 1959 or 1961 collective-bargaining contracts. Davis
then wrote the president of Local 1 asking that Local 1 represent him
in processing a grievance in this matter. Local 1's president did not
reply.
On May 27, 1962, Davis filed an unfair labor practice charge alleg-
ing that Local 1's failure to process his grievance violated Section
8(b) (1) (A) of the Act. On August 31, 1962, the General Counsel
issued a complaint to this effect. In its answer to the complaint, Re-
spondent Local 1 defended its refusal to process Davis' grievance on
the grounds that: (1) there was no merit in the grievance in view of
the contract provisions; (2) the constitutional provision referred to
above precluded it from processing a grievance on behalf of a mem-
ber of Local 2; and (3) in the past the Company had refused to permit
the two locals jointly to process grievances which were applicable only
to members of one of the locals.
On October 24, 1962, Local 2 filed a motion to rescind the certifica-
tion issued to Locals 1 and 2 upon the grounds that the practice of
Local 1 in discriminating against Negroes and the existence of seg-
regated locals rendered the certification invalid.
For the purposes of convenience, the two cases, one to rescind the
certification, the other alleging unfair labor practices, have been con-
solidated in a single proceeding.
We join with the majority members in adopting the Trial Exam-
iner's recommendation for the rescission of the certification. However,
we do so because of the discriminatory contract negotiated by the
certified unions and the employer.10 We find it unnecessary at this
time to pass on the other grounds relied upon by the Trial Examiner
in making his recommendation.
10 Pioneer Bus Company , Inc, 140 NLRB 54.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also join with the majority in holding that Respondent violated
Section 8 ( b) (1) (A), but we rest this conclusion on a ground different
from that of the majority . We do not agree with the majority that
Respondent violated Section 8 ( b) (2) and (3).
I.
The complaint in the unfair labor practice case did not allege that
either the collective-bargaining contracts negotiated with the Com-
pany or the establishment of segregated locals violated the Act. It
alleged only that Respondent Local 1 had restrained and coerced
employees in violation of Section 8(b) (1) (A ) by refusing to process
Ivory Davis' grievance. It did not allege that by this or other con-
duct Respondent Local 1 had also violated Section 8 ( b) (2) and (3).
This was not an oversight , but the result of a deliberate choice of
theory by the General Counsel, as is evident from the following:
In his opening statement, the General Counsel said that the "para-
mount issue" is "whether or not a certified union violated Section
8 (b) (1) . . . by refusing to process , because of his race, the grievance
of a Negro employee in the appropriate unit." At this point, the Trial
Examiner interrupted with the statement :
You make no contention in your complaint , I have heard no
amendments offered, that this violates any section of this Act other
than 8(b) (1) (A),, Specifically I have heard no contention that
this violates Section 8 ( b) (2), no contention that it violates Sec-
tion 8 ( b) (3), is that correct?
The General Counsel replied, "That's correct , Mr. Trial Examiner."
The Trial Examiner continued :
And if in the judgment of this Trial Examiner or reviewing
authorities this conduct might violate some other section of the
Act, it is nonetheless outside the scope of this proceeding, and
therefore it's unnecessary to consider or to reach any question as
to whether the conduct of this labor organization violated any
section of this Act except 8(b) (1) (A), is that the position of the
General Counsel?
The General Counsel replied :
Yes, sir. The only allegation that we now have before the Trial
Examiner is the matter of violation of Section 8(b) (1) (A) of the
Act.
The Trial Examiner added:
I believe there is some authority, not judicial authority, nor even
Labor Board authority, I mean commentator authority, com-
mentary in the law reviews, I believe one by the present Solicitor
INDEPENDENT METAL WORKERS UNION, LOCAL NO. 1 1581
General, that suggests this conduct might violate some other
section of the Act, but notwithstanding that, General Counsel
makes no allegation here other than a violation of Section 8(b)
(1) (A), and that is the only issue that General Counsel wishes to
have passed on in this proceeding, is that correct?
Again the General Counsel answered in the affirmative.
At no time did the General Counsel change his position or move to
amend the complaint to allege violations of Section 8 (b) (2) or
8(b) (3). At the close of the case, the Trial Examiner granted the
General Counsel's motion to conform the pleadings to the proof, but
only as to "such insubstantial matters as the spelling of names and
dates and in no respects material to the issues."
At the close, the attorney for the Charging Party also moved to
amend the complaint to allege, on the basis of the evidence adduced,
that Respondent Local 1 had violated 8 (b) (1) (A) and (2) "in that it
has negotiated contracts and agreements with the Employer which
discriminated because of membership or lack of membership in the
Union and because of race." Respondent's attorney strenuously ob-
jected. He stated that the issues raised by the proposed amendment
had not been fully litigated, that if the proposed amendment had been
included in the complaint "there is a good deal of additional evidence
that I would have put on in connection with this matter . . . . And
there would be a good many things that we could bring into this
record that would be very germane to that question if it had been an
issue. And we would have wanted to be prepared on it. And I think
common fairness would have demanded that we have notice of it and
be given an opportunity to meet it." General Counsel said he did not
join in the motion, but did not oppose it. The Trial Examiner denied
the motion "in so far as it constitutes a motion by the Charging Party
to amend the complaint" as beyond the province of the Charging
Party. The Trial Examiner did state, however, that it might well be
his duty to find additional violations of the Act in line with cases
which indicate that where an issue is "thoroughly litigated the mere
fact that the violation proved may be somewhat different from that
alleged in the comnlaint . . . does not amount . . . to a denial of due
process." He also suggested that the parties might brief the merits
and the procedural point of due process.
Notwithstanding that the General Counsel in his complaint and by
his statements at the hearing indicated clearly that the only issue in
the case involved an alleged violation of Section 8(b) (1) (A), the
Trial Examiner found violations of Section 8 (b) (2) and 8 (b) (3).
We believe that these latter findings of the Trial Examiner's are im-
permissible and violated accepted judicial standards of fairness and
due process.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The purpose of a complaint is to "notify the adverse party of the
claims that are to be adjudicated so that'he may prepare his case, and
to set a standard of relevance which shall govern the proceedings at
the hearing." 11 Was Respondent apprised or should it reasonably
have been apprised by the complaint or statements at the hearing that
issues of 8(b) (2) and 8(b) (3) violations were involved in the case?
Certainly the complaint contained no such allegations, and at the
hearing the General Counsel insisted, despite the prodding of the
Trial Examiner, that he was only trying an 8 (b) (1) (A) case. Were
issues of 8(b) (2) and 8(b) (3) violations nevertheless fully litigated
at the hearing? There is absolutely no evidence of this. In fact,
when, at the close of the hearing, counsel for the Charging Party
moved to amend the complaint to allege a violation of Section 8 (b) (2)
(he did not seek also to add an 8(b) (3) allegation), counsel for Re-
spondent objected specifically on the ground that the issue had not
been litigated, that if he had been timely informed that his client had
been charged with an 8(b) (2) violation he would have introduced ad-
ditional evidence, and that he had not had time to prepare himself
on this issue.
The questions of whether a union's nonfulfillment of its duty of fair
representation violates any section of the Act, 8(b) (1) (A), (2), or
(3), are novel and present great difficulties, as articles in the law re-
views attest.'2 It would therefore seem particularly important that
the General Counsel specify clearly and in good time the precise sec-
tions of the Act a respondent is charged with violating by failing in
its duty of fair representation and the theory of his case, so that the
respondent may properly prepare its defense and brief and argue the
difficult points of law involved. Respondent Union was given no such
opportunity on the 8(b) (2) and (3) aspects of the case. It seems to
us that in these circumstances "it would derogate elemental concepts
of procedural due process" 13 to adopt the Trial Examiner's findings
of violation of Section 8 (b) (2) and 8 (b) (3), regardless of what we
would hold if the issueshad been properly raised.l4
The Trial Examiner relied on two cases to justify his findings of
8(b) (2) and (3) violations despite the omissions of the complaint.
u Charles T . Douds , Reg. Dir. v. International Longshoremen's Association, Independent,
at al. (