International Association Of Bridge, Structural And Ornamental Iron Workers (Walker Construction Co.)

National Labor Relations Board - Board Decisions

Dec 13, 1985

277 N.L.R.B. 1071 (N.L.R.B. 1985)

IRON WORKERS (WALKER CONSTRUCTION)
International Association of Bridge, Structural and
Ornamental Iron Workers (Walker Construction
Company) and James W. Stevens . Case 16-CB-
2255
13 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND DENNIS
On 8 June 1984 Administrative Law Judge Wil-
liam N. . Cates issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent did not
violate Section 8(b)(1)(A) of the Act by disciplin-
ing Local President Stevens for filing charges with
the Board against the Respondent. He found the
act to be a legitimate exercise of internal union dis-
cipline. We disagree.
The facts are fully set forth by the judge. In
brief, Stevens was president of Local 263 of the
International Association of Bridge, Structural and
Ornamental Iron Workers. The International, the
Respondent here, entered into a collective-bargain-
ing agreement between the North Texas Contrac-
tors Association and the Iron Workers District
Council, of which Local 263 is a member. Stevens
objected to the contract and filed an unfair labor
practice charge against the International, naming
Local 263 as the Charging Party.
The Regional Director for Region 16 dismissed
the complaint, but the International filed internal
charges against Stevens for, inter alia, misuse of his
office. An internal union hearing resulted in a find-
ing that he violated the International's constitution
and his oath of office. As a separate matter, he was
also found guilty of fraudulent misrepresentation.'
Stevens was fined, removed from office, and sus-
pended from membership.
The complaint alleges that the discipline violated
Section 8(b)(1)(A) of the Act. The Respodnent
contends that it was a legitimate exercise of inter-
nal union discipline warranted by Steven's alleged-
ly unauthorized act.
' We agree with the judge's finding that it is unnecessary to pass on
the implications of this alleged fraudulent misrepresentation
1071
The judge first considered the Respondent's con-
tention that Stevens had misused his office by
acting without authority from the membership or
the executive board . Although Stevens told each of
the members of the executive board beforehand
that he intended to file charges , he did not seek
their explicit permission , and accordingly the judge
found that he did not have their authorization.
Moreover , the judge interpreted the International's
constitution and the Local's bylaws as requiring ex-
plicit approval from the membership for Stevens to
act. In this regard , the judge determined that the
membership 's vote of disapproval of the collective-
bargaining agreement did not constitute authoriza-
tion to file charges.
The judge further determined , however , that the
Respondent 's discipline of Stevens was a legitimate
internal union matter unprotected by public policy
consideration . In this regard , he relied on the test
set forth in Buffalo Newspaper Guild Local 26 (Buf-
falo Courier), 265 NLRB 382 ( 1982).2 Moreover,
because the Respondent maintained throughout
that Stevens was not disciplined for filing Board
charges, but for acting without authorization, the
judge found the policy of preserving access to the
Board was not harmed.
In Operating Engineers Local 138 (Charles S.
Skura), 148 NLRB 679 ( 1964), referred to with ap-
proval by the Supreme Court in NLRB v. Marine
& Shipbuilding Workers, 391 U.S. 418 ( 1968), the
Board considered a factual situation almost identi-
cal to the instant one . There, employee Skura filed
an unfair labor practice charge against the union al-
leging it had discriminatorily refused to refer him
to available employment . The union fined Skura,
contending that the fine was not for filing charges
but for failing to exhaust his internal union reme-
dies. The union argued, inter alia, that the disci-
pline was a legitimate exercise of its right to admin-
ister its internal affairs. The Board rejected the
union's arguments by concluding that a union's re-
striction of employee access to the Board is analo-
gous to unlawful coercion by an employer under
Section 8(a)(4).
Consistent with the analogy to Section 8(a)(4),
the Board in Skura found that since the right to file
charges is indispensable to the administration of the
Act, protection of that right must be strictly safe-
guarded . And "not only does the Board have the
power to protect employees who participate in the
2 The test in Buffalo Newspaper Guild would allow a union to enforce
disciplinary action against a member for rule violations when its enforce-
ment meets four tests . Thus the union rule must be properly adopted, re-
flect a legitimate union interest, not impair any policy Congress has im-
bedded in the labor laws , and be reasonably enforced against members
who are free to leave the union and escape the rule.
277 NLRB No. 99
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's processes, but it has been held that the
Board has an affirmative duty to exercise its au-
thority to its outermost limits to protect such em-
ployees." Id at 681. In this regard the Board con-
cluded that the union's institutional interests cannot
be given the same status as the statutory right of
access to the Board. Moreover, this policy of pre-
serving unimpeded access requires that "[n]o pri-
vate organization should be permitted to prevent or
regulate access to the Board." Skura, supra at 682.3
Turning to the question of whether the union's dis-
ciplining of Skura was unlawfully coercive, the
Board determined that the discipline had the effect
of restraining Skura's access to the Board. The
Board noted that "[t]he union's conduct is no less
coercive where the filing of the charge is alleged
to be in conflict with an internal union rule or
policy and the fine imposed allegedly to enforce
that internal policy." Skura, supra at 682.
Clearly, the instant case is thoroughly analogous
to Skura. Stevens, like Skura, filed an unfair labor
practice charge against the Union. And the Union
here disciplined Stevens, arguing that its decision
to do so was an internal union affair. We conclude,
as the Board did in Skura, that the Union here was
not entitled even to protect its legitimate institu-
tional interests, to restrain an employee's access to
the Board, and that the actions taken by the Re-
spondent here were coercive within the meaning of
the Act.
We note, moreover, that Respondent's disciplin-
ing of Stevens because he filed charges with the
Board is not rendered lawful because it may also
have been motivated by a legitimate reason such as
Stevens' alleged fraudulent misrepresentations.
Unlike 8(a)(3) violations which hinge on motiva-
tion, the violation alleged here turns on the coer-
cive nature of the Respondent's conduct. While
motivation may be a factor to be considered in
cases of this nature, neither the alleged fraudulent
misrepresentations nor any other asserted internal
union considerations raised by the Respondent here
can prevail in the face of "the overriding public in-
terest" in "unimpeded access to the Board."4
Additionally, we conclude, contrary to the
judge, that because the union conduct conflicts
3 This sentiment was echoed recently in the Board decision in Machin-
ists Local 1414 (Neufeld Porsche Audi), 270 NLRB 1330 (1984) There the
Board concluded that a union may not lawfully restrict the right of its
members to resign from membership during a strike. In so doing the
Board stated emphathicaly, "any effort to equate the institutional interests
of a union with the statutory rights of employees is inappropriate " Id at
1334. See also H. B. Roberts Y. NLRB, 350 F.2d 427 (D C. Cir 1964),
enfg 148 NLRB 674 (1964), where based on facts similar to those here it
was found that by filing a charge with the Board, the employee "stepped
beyond the internal affairs of the union and into the public domain " Id.
at 429.
4 NLRB v. Marine & Shipbuilding Workers, supra at 424
with this policy of preserving access to the Board
it does not satisfy the test in Buffalo Newspaper
Guild, supra. As noted earlier, one prong of that
test requires that for conduct to be deemed inter-
nal, it must not run contrary to any policy Con-
gress has imbedded in the labor laws. The evidence
establishes that the discipline was an attempt to
deny Stevens' access to the procedures of the
Board. It therefore runs contrary to the established
policy of fostering unimpeded access, for once a
charge has been filed, "it is not merely the private
right of the parties which are involved in the dis-
pute, but the enforcement of public law and the as-
sertion of the public interest thereof."5
Finally, we cannot agree with the judge's reli-
ance on the Union's contention that Stevens was
not restricted by the Union's conduct because he
was free to file charges as an individual. In this
regard, the fact that the discipline was directed at
the president may increase the chilling effect on
other employees, contributing to its coerciveness.
Thus, in Auto Workers Local 212 (Chrysler Corp.),
257 NLRB 637 (1981), enfd. 640 F.2d 82 (6th Cir.
1982), the Board found a union's disciplining a
union officer to be a "two-edged sword." The
Board stated it is "too speculative to contend that
other unit members might distinguish the discipline
meted out to [the union officer] on the basis that he
is a union officer and they are not . . . . For an-
other union member might just as reasonably view
the fact that Respondent meted out discipline to an
officer for filing charges with the Board as indicat-
ing the fact that Respondent would be even less
hesitant to impose discipline on rank-and-file mem-
bers for such charges." Id. at 637.
In light of all the foregoing, we conclude that
the Respondent violated Section 8(b)(1)(A) of the
Act in disciplining Stevens.
CONCLUSIONS OF LAW
1. Walker Construction Company is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Respondent, International Association of
Bridge, Structural and Ornamental Iron Workers,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By disciplining Stevens for filing charges with
the Board, the Respondent has restrained or co-
erced an employee in the exercise of his rights
guaranteed under the Act and thereby has engaged
in unfair labor practices affecting commerce within
the meaning of Section 8(b)(1)(A) of the Act.
5 General Services, 229 NLRB 940 (1977)
IRON WORKERS (WALKER CONSTRUCTION)
4. The above-described unfair labor practice is
an unfair labor practice affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies
of the Act. We shall order the Respondent to rein-
state Stevens as president of Local 263 and remove
all sanctions against him. In the event Stevens paid
the fine unlawfully imposed on him, we also order
the Respondent to reimburse and make him whole
for the amount unlawfully exacted from him with
interest, as provided in F. W. Woolworth Co., 90
NLRB 289 (1950).
ORDER
The National Labor Relations Board orders that
the Respondent, International Association of
Bridge, Structural and Ornamental Iron Workers,
Washington, D.C., its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Disciplining employees for filing unfair labor
practices charges with the Board or otherwise par-
ticipating in or cooperating in Board proceedings.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Reinstate Stevens as president of Local 263
and remove all sanctions agaisnt him.
(b) In the event Stevens paid the fine unlawfully
imposed on him, make him whole for the amount
exacted from him, with interest thereon as set forth
in the remedy section of the decision.
(c) Post at its offices copies of the attached
notice marked "Appendix."s Copies of the notice,
on forms provided by the Regional Director for
Region 16, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any
other material.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
1073
(d) Notify the Employer, Walker Construction
Company, by mailing to the employees a ' copy of
the attached notice marked "Appendix," that, its
policy found herein to be violative of the Act will
be given no further force or effect.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
MEMBER DENNIS, concurring.
I agree, for the reasons below, that the Respond-
ent International violated Section 8(b)(1)(A) of the
Act by disciplining Local President James Stevens.
As the majority opinion emphasizes, a strong
public interest protects free access to the Board's
processes.' The right of access, however, is not ab-
solute, as the majority suggests; union discipline
imposed because of the unauthorized filing of
unfair labor practice charges in the union's name is
not necessarily unlawful. A union has a legitimate
interest in controlling the conduct of its officers
and agents and maintaining a unified leadership and
consistent policy in dealing with employers. The
Board must consider such interests in addition to
the need for free access to the Board in determin-
ing whether discipline for unauthorized filing of
unfair labor practice charges violates Section
8(b)(1)(A).
In this case it is necessary to decide the Re-
spondent's motivation in imposing discipline on
Stevens. Did it discipline him to further its legiti-
mate interest of policing an officer's unauthorized
conduct or misrepresentations, as it contends, or
for the purpose of retaliating against him for filing
unfair labor practice charges againts it? Applying a
Wright Line2 analysis to resolve the motivation
question, 3 I conclude that the General Counsel has
established an 8(b)(1)(A) violation.
In reaching this conclusion, I consider it impor-
tant that the Local's constitution and bylaws do
not prohibit the president from filing unfair labor
practice charges on behalf of the Local; before
filing charges Stevens consulted each member of
the Local's executive board and explained his in-
tention to file charges; and Steven's action was
consistent with the membership's view expressed at
the Local's 4 January 1983 meeting. Most signifi-
cantly, the Local, which had the primary interest
in controlling its president's conduct, did not pro-
test Steven's action. The Respondent International,
which the unfair labor practice charges attacked,
i Sec . 8(a)(4) of the Act, NLRB v Marine & Shipbuilding Workers, 391
U.S 418 ( 1968).
2 Wright Line, 251 NLRB 1083 (1980).
8 See Plasterers Local 121 (Associated Building Contractors), 264 NLRB
192 (1982).
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the organization that instituted internal union
procedure against Stevens and imposed discipline
upon him . These circumstances convince me that
the Respondent unlawfully disciplined Stevens, co-
ercing him and other employee members.4
4 A different result might be warranted where, for example, a union's
constitution required a membership vote to authorize filing a charge with
the Board on ,behalf of the union, and a union officer, in defiance of the
requirement and contrary to the membership's wishes, filed an unfair
labor practice charge against an employer, thereby damaging relations
between the union and the employer. In such circumstances the union's
legitimate interest in defending itself and its members against the errant
officer might well justify the action.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discipline employees for filing
unfair labor practice charges with the National
Labor Relations Board or otherwise participating
in or cooperating in National Labor Relations
Board proceedings.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL reinstate James W. Stevens as presi-
dent of Local 263 and remove all sanctions against
him. In the event Stevens paid the fine unlawfully
imposed on him, we will make him whole for the
amount exacted from him, with interest.
INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNA-
MENTAL IRON WORKERS
Janine Lee Bruton, Esq., for the General Counsel.
Victor Van Bourg, Esq. and Paul Supton, Esq., of San
Francisco, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. The
trial in this case, held on March 20, 1984, is based on an
unfair labor practice charge filed on November 7, 1983,
by James W. Stevens, an individual, against International
Association of Bridge, Structural and Ornamental Iron
Workers (Respondent). A complaint and notice of hear-
ing issued December 15, 1983, and an amendment to the
complaint issued on March 9, 1984, by the General
Counsel of the National Labor Relations Board (Board)
alleging that Respondent violated Section 8(b)(1)(A) of
the National Labor Relations Act, by removing Stevens
from the office of the president of Local Union No. 263
of the Respondent; by filing intraunion charges against
Stevens; by conducting a hearing on those intraunion
charges; by assessing a fine against Stevens, prohibiting
him for being a candidate for office in any local or repre-
senting any local of the Respondent for 4 years, and pro-
hibiting Stevens from attending any meetings of any
local of the Respondent for 4 years because he filed
charges against Respondent with the Board on Decem-
ber 14, 1982, and March 10, 1983. Respondent filed
timely answers to the complaint and the amendment to
the complaint in which it denied the commission of any
unfair labor practices.
All parties were given full opportunity to participate,
to produce relevant evidence, to examine and cross-ex-
amine witnesses, t to argue orally, 2 and to file briefs.
Briefs filed on behalf of the General Counsel and Re-
spondent have been carefully considered.
On the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Walker Construction Company is a Texas corporation
with facilities in Fort Worth and Dallas, Texas, where it
is engaged in the general contracting business. During
the preceding issuance of the complaint, a representative
period, Walker Construction purchased goods and mate-
rials valued in excess of $50,000 directly from points out-
side the State of Texas. The parties stipulated, the record
establishes, and I find that Walker Construction is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
The evidence establishes, the parties stipulated, and I
find that Walker Construction is, and has been at all
times material, an employer-member of the North Texas
Contractors Association (NTCA).
The Respondent admits and I find that NTCA is an
organization composed of employers engaged in the con-
struction industry and which exists for the purpose, inter
aha, of representing its employer-members in negotiating
and administering collective-bargaining agreements with
various labor organizations including some labor organi-
zations affiliated with the Respondent. During the year
preceding issuance of the complaint, a representative
period, various members of NTCA, singularly and joint-
ly, provided services valued in excess of $50,000 directly
to customers located outside the State of Texas. I find
NTCA, as well as its employer-members, is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
i The General Counsel presented three witnesses in support of the
complaint allegations The Respondent rested without calling any wit-
nesses
Only the Respondent engaged in oral argument at the conclusion of
the trial
IRON WORKERS (WALKER CONSTRUCTION) 1075
II. RESPONDENT 'S STATUS AS A LABOR
ORGANIZATION
The Respondent, International Association of Bridge,
Structural and Ornamental Iron Workers, is admittedly a
labor organization within the meaning of Section 2(5) of
the Act.
It is - clear from the above job descriptions and from
actual exercise of such duties by certain of those occupy-
ing the positions set forth above that they each are now
and at all material times herein have been agents of the
Respondent within the meaning of the Act and I so
find.5 See, e.g., Auto Workers Local 212, 257 NLRB 637
at 638 fn. 5 (1981).
III. THE AGENCY STATUS ISSUE
The General Counsel alleges at paragraph 6 of the
complaint that Respondent General3 President John H.
Lyons; General Vice President Joseph W. Merritt; Gen-
eral Secretary Juel D. Drake; General Treasurer John T.
Traylor; General Organizer James Martin; and Business
Manager Charlie B. Lowery are agents of the Respond-
ent acting in its behalf and are now, and have been at all
times material herein, agents of the Respondent within
the meaning of Section 2(13) of the Act.4 The Respond-
ent denied the above-named individuals were agents of
the Respondent within the meaning of the Act.
The Respondent's constitution states the general presi-
dent shall "exercise a general supervision over the affairs
of the International Association, its officers and organiz-
ers, and assign them to their respective duties . . . pre-
side at all . . . meetings of the International Association
or subordinate bodies . . . suspend any officer of the
International Association, or any of its chartered bodies
. .. investigate, personally, through the General Auditor
and/or International Respresentative, the affairs of Local
Unions and the administrations of all General and Local
Officers." (G.C. Exh. 12, art. IX, secs. 1, 2, 3, 13, and
18.)
The Respondent's constitution states in part as follows
regarding the general vice president: "The General
President shall assign to any of the General Vice Presi-
dents any particular duty to assist the General President
which in the General President's judgment they are best
able to perform in the interests of the Association."
(G.C. Exh. 12, art. XI, sec. 1.)
The Respondent's constitution states the general secre-
tary "shall receive, consider and attend to all official cor-
respondence and to devote the time of the General Sec-
retary to the interests of the International Associa-
tion. . . . safely keep all important papers. . . . be the
official correspondent." (G.C. Exh. 12, art. X, secs. 1, 4,
and 9.)
According to the Respondent's contitution the general
treasurer shall "receive all monies due the International
Association. . . . keep adequate and true accounts and
records of all funds. . . . disbursements and withdraw-
als. . . . shall be made on the signature of the General
Treasurer only . ..." (G.C. Exh. 12, art. X-A, secs. 1,
4, and 6.)
The Respondent's constitution states: "General Orga-
nizers shall perform the duties assigned to them by the
General President." (G.C. Exh. 12, art. XI-A, sec. 1.)
3 The term "general" denotes International organization level
4 Sec. 2(13) of the Act states, "In determining whether any person is
acting as an `agent' of another person so as to make such other person
responsible for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall not be
controlling."
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidences
Stevens has been an ironworker for approximately 12
years. At the time of the trial, he had last been employed
in his trade in November 1983. During 1983 Stevens
worked for seven employers in the construction industry,
one of which was Walker Construction.7
Stevens has been a member of Local Union No. 264,
Fort Worth, Texas (Local 263), of the Respondent for 12
years. He has held two positions with the Local. He
served in an appointed position as delegate to the Tar-
rant County (Texas) Central Labor Council and in July
1982 was elected president of Local 263.8 At all times
during Steven's term as president there was a collective-
bargaining agreement in effect between NTCA and the
Iron Workers' District Council of the State of Texas
(District Council) for and on behalf of Local 263 and
Local Union No. 481, Dallas, Texas (Local 481), of the
Respondent (G.C. Exhs. 7 and 8)..
Steven testified he was asked by Local 263 Business
Manager Lowery to attend a meeting in Dallas, Texas,
on December 10, 1982. Those present at the meeting
were members of a promotional group composed of rep-
resentatives from labor and management covered by the
collective-bargaining agreement referred to above. Ste-
vens stated that each person present was asked to proof-
read a copy of an agreement entitled "Stipulation Agree-
ment Under the Top Hand Program" (Top Hand Agree-
ment) which had been entered into between NTCA and
the District Council for and on behalf of Local 263 and
Local 481. Stevens stated he had no knowledge of the
agreement prior to December 10, 1982. According to
Stevens, the Top Hand Agreement had been negotiated
between representatives of NTCA and Local 263 Busi-
ness Manager Lowery, Local 481 Business Manager Jen-
kins, and District Council President Williamson.
Thereafter Stevens received comments from members
of Local 263 regarding the Top Hand Agreement. On
December 11, 1982, Stevens who was not working at the
time went to various sites where members of the -execu-
tive board of Local 263 were working and spoke with
them about the Top Hand Agreement. Stevens stated:
5 Business Manager Charlie B. Lowery's status will be alluded to else-
where in this decision
8 The facts as outlined are taken primarily from the testimony of Ste-
vens (the Respondent presented no witnesses ) and from certain trial' ex-
hibits I credit the portions of Steven's testimony that are set forth herein
' The parties stipulated that Stevens was not a supervisor within the
meaning of Sec 2(11) of the Act with regard to his employment with the
seven employers
8 The office of president is a nonpaid position However, the dues and
assessments of the president are paid by Local 263.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I told them that I was going to file unfair labor
practices against the International because I felt like
that they were trying to force a contract in the
middle of a contract that was already in existence.
Stevens stated that those he spoke with were Matt Gra-
vette, Frank Henderson, Charlie Rains, Ronnie Allen,
Scotty Wimberly, and Thomas Martin. Stevens stated
each, with the exception of Ronnie Allen, told him, "If I
felt like I could stop it, I should try to and that they
were in accord with it."
Thereafter on December 14, 1982, Stevens signed a
Board charge in Case 16-CB-2072 against the Respond-
ent naming Local 263 as the Charging Party. The basis
of the charge was as follows:
On or about December 10, 1982, and continuously
thereafter, it, a labor organization, by its officers,
agents and representatives, restrained and coerced
and is restraining and coercing its Local Union No.
263 in the exercise of its rights guaranteed in Sec-
tion 7 of the said Act by entering into a stipulation
agreement with the North Texas Contractors Asso-
ciation thereby changing the collective bargaining
agreement already in effect between its Local No.
263 and the North Texas Contractors Association.
[G.C. Exh. 14a.]
The charge was received by the Respondent on Decem-
ber 17, 1982 (G.C. Exh. 14c). Thereafter at some date
unspecified on this record,9 Stevens signed a withdrawal
of the charge in Case 16-CB-2072.
A regular membership meeting of Local 263, was held
January 4, 1983. At the meeting Local 263 Business
Manager Lowery read the Top Hand Agreement to
those members present at the meeting. Stevens gave a
copy of the Top Hand Agreement to each member who
was present at the meeting. According to Stevens, the
members had "a heated discussion" after the reading of
the Top Hand Agreement and one member asked Busi-
ness Manager Lowery if this was the law and if there
was anything he could do about it. Lowery stated he had
signed it and' it was binding. Lowery also commented,
"Now, I understand that Brother Stevens has Board
charges, and I understand that he withdrew them, but he
has his own opinion." Stevens testified a standing vote
was taken to see who was in favor of the Agreement.
According to Stevens, the vote was 90-to-6 in opposition
to the Top Hand Agreement. Local 263 member J.D.
Smith asked Stevens if he needed a motion to refile the
Board charges. Stevens testified he responded to Smith
by stating, "I told him, no, I didn't need the authority
because the bylaws and the necessary documents that I
had prevailed me the right to come to the NLRB to stop
a bad contract."
Stevens attended a meeting of Local 263's executive
board on March 7, 1983. A letter signed by General
President Lyons was presented to the executive board at
the meeting. In the letter Lyons had given his approval
to the Top Hand Agreement.
9 It appears the charge was withdrawn prior to January 4, 1983
Thereafter on March 10, 1983, Stevens signed a
second Board charge (Case 16-CB-2125) against the Re-
spondent naming Local 263 as the Charging Party. The
basis of the March 10 charge was identical to that in the
earlier filed charge in Case 16-CB-2027.10 Subsequently
the charge in Case 16-CB-2125 was dismissed by the Re-
gional Director f o r Region 16 of the Board. i i
General Organizer Martin had delivered a letter to
Stevens on July 6, 1983, dated June 29, 1983, from Gen-
eral President Lyons. In the letter Stevens was informed
that he was being suspended and removed from any
office or official position in Local 263 pending an investi-
gation of accusations against him. The letter in pertinent
part stated:
Information has been received by this office that
you have misused the title of President of Local
Union No. 263, Fort Worth, Texas and have mis-
used your office in connection with accusations
made against individuals and this International As-
sociation. For these and other reasons which have
been brought to the attention of this office, it has
been determined that effective immediately upon
delivery of'this letter, you are suspended and re-
moved from the office of President of Local Union
No. 263, Fort Worth, Texas... .
Specifically, any individual has the right to file
charges and make accusations against this Interna-
tional Association but may not purport to do so in
his official capacity or on behalf of the Local Union
unless authorized by the description of his office or
by appropriate and lawful action of the member-
ship. We are making this statement so that you may
not misconstrue the scope of our investigation.
[G.C. Exh. 16.]
Stevens testified he asked General Organizer Martin
for a bill of particulars on the charges.
Thereafter on August 15, 1983, Stevens met with Gen-
eral Organizer Martin at the Hyatt Regency Hotel in
Fort Worth, Texas. Acting Local 263 Vice Pesident
Matt Gravette was present for the Respondent at the
meeting between Martin and Stevens. Stevens had fellow
members Jerry Hensarling and J.D. Smith present with
him at the meeting. Martin told Stevens in the meeting
that he had been appointed by General President Lyons
to investigate Stevens' duties and activities as president
of Local 263. Martin told Stevens he was the first one
that ever had filed Board charges against General Presi-
dent Lyons. Stevens stated Martin asked him by what
authority or why he had filed the charges. Stevens told
Martin that he "had taken the action upon [himself]
under the authority granted to [him] by the bylaws and
the duties of the president in the constitution."
In a letter to General President Lyons dated Septem-
ber 9, 1983, General Organizer Martin preferred charges
against Stevens. The charges were:
10 The basis of the earlier charge is set forth in full elsewhere in this
decision,
I 1 The date of the dismissal action is not reflected in the record.
IRON WORKERS (WALKER CONSTRUCTION)
These charges are preferred pursuant to Article
XIX, Section 10, of the Constitution of this Interna-
tional Association of Bridge, Structural and Orna-
mental Ironworkers for the commission of the fol-
lowing offenses:
I charge that James W. Stevens. Membership No.
777557, has violated Article II, Section 5; Article
XIX, Section 10, Paragraphs 2, 4, 7, 10, as well
as Article XXVI, Section 18 , entitled "Obligation
of Members" and Article XXVI, Section 19, enti-
tled "Obligation of Officers" and all other appli-
cable sections of the Constitution of this Interna-
tional Association.
1. On December 14, 1982, James W. Stevens, as
President of the Local Union, filed National
Labor Relations Board Charges for the Intenia-
tional Association of Bridge, Structural and Orna-
mental Ironworkes Local Union No. 263 against
the International Association of Bridge, Structural
and Ornamental Ironworkers through their repre-
sentative, General President John H. Lyons, Case
No. 16-CB-2072. James W. Stevens took his
action without any authorization from the Consti-
tution of this International Association nor did he
have the authority of either the Executive Board
or the membership of Local Union No. 263. This
charge is not brought against Brother Stevens for
filing a charge with the National Labor Relations
Board since he has the lawful right to do so. It is
brought because he misused the title of his office
and did so without authority from the Union and
against the Constitution. He misused his title as
President by giving the impression he was filing a
charge in his official capacity as President of the
Union.
2. On March 10, 1983, James W. Stevens, as Presi-
dent of the Local Union, filed National Labor Re-
lations Board Charges for the International Asso-
ciation of Bridge, Structural and Ornamental Iron-
workers Local Union No. 263 against the Interna-
tional Association of Bridge, Structural and Orna-
mental Ironworkers through their representative,
General President John H. Lyons, Case No. 16-
CB-2125. James W. Stevens took this action with-
out any authorization from the Constitution of this
International Association nor did he have the au-
thority of either the Executive Board or the mem-
bership of Local Union No. 264. This charge is
not brought against Brother Stevens for filing a
charge with the National Labor Relations Board
since he has the lawful right to do so. It is
brought because he misused the title of his office
and did so without authority from the Union and
against the Constitution. He misused his title as
President by giving the impression that he was
filing a charge in his official capacity as President
of the Union.
3. During the period James Stevens was serving as
President of Local Union No. 263, Fort Worth,
Texas, he used the letterhead of Campbell Con-
1077
struction Company of 905 Samuels Avenue, Fort
Worth, Texas, a company by which he was never
employed. Using that Company's letterhead
Brother Stevens corresponded with several of the
Business Managers of the Texas Local Unions,
some of who were: Gene A. Allen, the Business
Manager of Local Union No. 125, Beaumont,
Texas; George R. Gibson, the Business Agent of
Local Union No. 775, El Paso, Texas; Roy Lee
Chmer, the Business Agent of Local Union No.
408, Amarillo, Texas; and Carl E. Crawford, the
Business Agent of Local Union No. 789, Midland,
Texas, respectively. In his correspondence Broth-
er Stevens fraudulently identified himself as Su-
perintendent of Campbell Construction Company.
It should be noted that Campbell Construction
Company has a collective bargaining agreement
with Local Union No. 263, Fort Worth, Texas.
By his action he exposed Local Union No. 263 to
potential legal liability for fraudulent misuse of
their letterhead. In the letters, Brother Stevens ad-
vised each of the respective Business Agents
named above, that Campbell Construction Compa-
ny was bidding some work in the Local Union
area . He then asked, allegedly on behalf of Camp-
bell Construction Company, whether the stipula-
tion which he attached to each letter would be
used. Through this fraudulent device and others,
he attempted to obtain confidential information
from other affiliated Local Unions of this Interna-
tional Association.
These charges are being preferred since by these
and other acts, Brother Stevens has violated the
Constitution of this International Association and
his oath of office. In my judgment the offenses enu-
merated in the charges are of such a nature that
they have seriously affected the employment rights
of the members of this International Association. In
addition, they have not only hindered the local
union from carrying out its legal contractual obliga-
tions but have also restricted the local union's abili-
ty to conduct its day to day business. I, therefore,
respectively request that a trial be conducted in ac-
cordance with the provisions of the Constitution of
this International Association as expeditiously as
possible. [G.C. Exh. 19.]
General President Lyons notified Stevens in a letter
dated September 26, 1983, that charges had been pre-
ferred against him by General Organizer Martin. Lyons
also informed Stevens in the letter that a hearing would
be conducted on the charges before General Vice Presi-
dent Joseph W. Merritt on October 26, 1983, in Fort
Worth, Texas. [R. Exh. 1 attachment, prosecution Exh.
2.]
A hearing was conducted by General Vice President
Merrit on October 26, 1983. Stevens was present at the
hearing and he was represented by members Hensarling
and Smith (R. Exh. 1).
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The general executive board of the Respondent met12
on January 23, 1984 , for the purpose of reviewing the
record of the October 16 , 1983 hearing involving the al-
legations against Stevens . The general executive board's
finding were in pertinent part as follows:
During the discussion and review of the charges,
the recommendation of the hearing officer and the
evidence set forth in the transcript of the trial, the
members of the General Executive Board unani-
mously agreed that the evidence proved beyond
any doubt that Brother Stevens had committed the
acts as charged and by doing so had violated his ob-
ligation as a member , his obligation as an officer
and other applicable sections of the Constitution of
this International Association . The General Execu-
tive Board noted that Brother Stevens engaged in
personal conduct using his elected office to pursue
his own goals without knowledge or approval of
the membership and without authority of the Con-
stitution and By-Laws.
During its deliberations, the General Executive
Board . . . noted that Brother Stevens has an abso-
lute right to file unfair labor practice charges as an
individual against the International Union, the
Local Union or any other entity . However, he did
not file charges as an individual , but rather in the
name of the Local Union using his official office to
commence such litigation in the name of and on
behalf of the Local Union . The General Executive
Board further noted the transcript of the trial clear-
ly establishes that Brother Stevens filed the charges
in the name of and on behalf of the Local Union
without either possessing the necessary constitution-
al authority or having the approval of the member-
ship.
After careful consideration and deliberation, the
General Executive Board found Brother Stevens
guilty of all the charges as specified. . . . [R. Exh.
6.]
In a letter dated January 25, 1984, General President
Lyons notified Stevens that the general executive board
of the Respondent had found him guilty on all charges
and had imposed sentence on him . The sentence, as set
forth in the letter was as follows:
That you, the accused , JAMES W. STEVENS,
Membership No. 777557.
1. Be fined the sum of $2,000.00. $1,800.00 of the
$2,000 . 00 fine is suspended and shall be wholly ex-
punged from your record if you are not found
guilty of a violation of the International Constitu-
tion of the International Association or any Local
Union's By-Laws for twenty-four (24) months.
The remaining $200.00 of the $2,000.00 fine
should be paid to the General Treasurer of this
International Association forthwith.
12 Those present at the meeting were General President Lyons, Gener-
al Secretary Drake , and General Treasurer Traylor.
2. Be prohibited from being a candidate for office in
any Local Union of the International Association
or the International Association and from repre-
senting any Local Union in the International As-
sociation or the International Association for a
period of four (4) years.
3. Be prohibited from attending any meetings of any
Local Union of the International Association or
the International Association for a period of four
(4) years. [R. Exh. 5.]
Although the facts surrounding Campbell Construction
Company's existence and Steven's involvement therewith
are available in the record, I find it unnecessary in decid-
ing the instant case to address or consider Steven's alleg-
edly fraudulent activities on behalf of the Campbell Con-
struction Company.
B. Positions of the Parties
I shall set forth a brief summary of the positions of the
parties. I have considered all contentions , arguments, and
positions of the parties whether discussed herein or not.
1. General Counsel's position
The General Counsel contends that any individual has
the right to seek assistance from the Board and be pro-
tected against coercion or retaliation for doing so. She
asserts Section 8(b)(1)(A) of the Act makes it unlawful
for a union to coerce employees in their right to file
unfair labor practice charges with the Board. She states
it is without question that Respondent removed Stevens
from office for having filed charges with the Board
against the Respondent and in doing so Respondent vio-
lated Section 8(b)(1)(A) of the Act. The General Counsel
asserts that Stevens' suspension and removal from office
is doubly coercive in that it not only impacts on him but
it also discourages others from a willingness to seek
access to the Board.
The General Counsel contends that Respondent's posi-
tion that it removed Stevens from office, not because he
filed charges with the Board but because he filed the
charges in the name of the Local and without authority
to be untenable. The General Counsel argues that the
Respondent 's position is nothing more than a distinction
without a difference. The General Counsel acknowledges
a union has freedom of self-regulation where legitimate
internal union affairs are concerned, but she asserts that
where the issue is access to the Board that the overriding
public interest of unimpeded access to the Board comes
into play and precludes a union from penalizing one of
its members for filing unfair labor practice charges with
the Board. The General Counsel contends that when Ste-
vens filed charges with the Board, he stepped beyond
the internal affairs of the union and into the public
domain, and that when Respondent removed him from
office for filing the charges it violated the Act and lost
any immunity it might have had under the proviso to
Section 8(b)(1)(A) of the Act.
The General Counsel contends that not only is the Re-
spondent's position legally untenable, but it is also factu-
ally untenable. The General Counsel asserts that the Re-
IRON WORKERS (WALKER CONSTRUCTION) 1079
spondent's constitution states a local president shall sign
all necessary legal documents of the local and as such
she argues Stevens was authorized to sign the charges he
filed with the Board particularly since the constitution
did not specifically prohibit him from doing so. She as-
serts Stevens had the support of a majority of Local
263's executive board before he filed the charges with
the Board. She likewise asserts that the 90-to-6 member-
ship vote against the Top Hand Agreement indicated im-
plicit support by the membership for Stevens filing
charges with the Board. She thus contends that Steven's
actions were authorized by both the executive board and
the membership of Local 264. The General Counsel con-
tends that both legally and factually she has established
the violations of the Act alleged in the complaint.
2. Respondent's position
The Respondent contends its actions agaist Stevens
were based on his unauthorized filing of unfair labor
practice charges in the name of Local 263. Respondent
argues Stevens acted without constitutional authorization
or local membership approval. The Respondent readily
acknowledges it could not legally have taken any action
against Stevens if he had filed the charges he did as an
individual against the Respondent or any other entity.
The Respondent argues a labor organization may protect
itself and secure the integrity of its role as collective-bar-
gaining representative of employees by disciplining offi-
cials who act beyond their authority to the detriment of
that role. Respondent argues that Steven's conduct-pre-
tending to be acting for and on behalf of Local 263 by
filing unfair labor practice charges seeking to have the
recently entered into Top Hand Agreement set aside-
had potential and actual detriment to the Respondent
and was in derogation of its relationship with its contrac-
tual employers. The Respondent asserts it must be free to
act in its own defense as it did and that such defensive
conduct on its part is guaranteed by the proviso to Sec-
tion 8(b)(l)(A) of the Act.
The Respondent's position in summary form is that
Stevens filed charges with the Board on behalf of Local
263 without authorization from the Local and Respond-
ent's conduct toward Stevens was a "plainly internal"
matter and that the proscriptions of Section 8(b)(1)(A) of
the Act do not guarantee access to the Board where
such clearly internal affairs of a union are involved.
C. Analysis and Conclusions
The record establishes that during 1983 Stevens
worked in his trade as an ironworker for at least seven
contractors, one of which was Walker Construction. The
parties stipulated that Stevens did not have or exercise
any supervisory authority within the meaning of Section
2(11) of the Act with regard to his employment with
these seven contractors. I conclude and find that Stevens
was an employee within the meaning of the Act at all
times material.' a
I shall first address the issue of whether Stevens had
authorization to file the charges he did with the Board
on behalf of Local 263 from either the executive board
or the membership of the local. I am persuaded the facts
do not establish that he had authorization from either.
The evidence establishes Stevens went to each of the ex-
ecutive board members at their place of work on Decem-
ber 11, 1982, and "told them [he ] was going to file unfair
labor practices against the International ." Stevens did not
ask their permission or seek their approval to file charges
on behalf of Local 263 but rather told each what he was
going to do. Stevens did not call any special meeting of
the executive board to consider the matter of his filing
charges on behalf of Local 263. It is of no consequence
that each of the executive board members except one
told Stevens that "if [he] felt. like [he] could stop it [Top
Hand Agreement], [he] should try to and that they were
in accord with it." Their response may well have indicat-
ed their desire to have relief from the Top Hand Agree-
ment but their responses did not in my opinion amount
to an ` express authorization for Stevens to file Board
charges on behalf of Local 263 against the Respondent
even if the executive board could , without membership
approval, validly grant such authorization.
The facts likewise establish that Stevens did not have
or obtain authorization from the, membership of Local
263 to file the charges he did on their behalf . The Janu-
ary 4, 1983 vote of 90-to-6 against the Top Hand Agree-
ment was not authorization for Stevens to file charges on
behalf of Local 263 against the Respondent . In fact, Ste-
vens precluded the matter of authorization to file charges
from being voted on by the membership of Local 263 by
telling the individual who raised the matter that he did
not need such authority because the bylaws and neces-
sary documents authorized him to file such charges.
Thus Stevens, by his own actions, foreclosed Local 263
from voting on the matter and it would be speculation
on my part to conclude that, because those present voted
their disapproval of the Top Hand Agreement , that they
would want to or authorized Local 263 to take legal
action against the Respondent.
Having found that Stevens did not have authorization
from Local 263's executive board and/or membership, I
shall now examine to see if the Respondent 's constitution
or Local 263's bylaws authorized Stevens to take the
action he did on behalf of the Local.
The bylaws of Local 263 state in part as follows:
The duties of the local union officers shall be those
as provided for in Article XXVI of the Internation-
al Constitution. [G.C. Exh. 13, art . III, sec. 3(B).]
The President shall, in accordance with the applica-
ble provisions of the International Constitution, ap-
point all committees , and shall act as ex-officio
member of all such committees. [G.C. Exh . 13, art.
IX.]
13 I find it unnecessary to address the issue of what impact, if any, Ste-
ven's status with Campbell Construction Co might have on the instant
case.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The bylaws indicate that the local president is a
member of the local 's negotiating committee . 14 There is
no express authorization in Local 263 's bylaws for the
filing of charges with the Board . Thereafter , if authoriza-
tion is to be found it must be found in the Respondent's
constitution which is referenced in Local 263's bylaws.
However, before turning to the Respondent 's constitu-
tion to ascertain if the description of the duties for a
local president authorized the filing of charges with the
Board , it is important to note and examine other provi-
sions of Local 263's bylaws which shed light on the
powers of the local president and on what requirements
Local 263 had with respect to authorization for action of
any nature on its behalf. For example the bylaws state
that the funds of Local 263 are for the protection, assist-
ance, and relief of its members and shall not be expended
except by membership approval. (G.C. Exh. 13, art. II,
sec. 4.) The bylaws indicate that at Local 263 meetings a
member may only speak once on a subject matter- and
then only for 5 minutes until all have spoken and that
member will not be allowed the floor more than twice
except by consent of the Local. (G.C. Exh. 13, art, I,
sec. 1(c)(3).) Article II, section 8 of Local 263's bylaws
states:
No individual member shall solicit other local
unions for donations or sell tickets for any purpose
whatsoever in the name of this Local Union except
by approval of the Local Union in regular meeting.
Proposed amendments to the local 's bylaws must be by
a majority vote for all members present at the third con-
secutive meeting on the matter and then the proposed
amendments are forwarded to the International. (G.C.
Exh. 13, art. XI.) The bylaws as a whole indicate that no
action can to be taken or obligations made in the name
of Local 263 without explicit membership approval.
The Respondent 's constitution at article XXVI, section
2, "Duties of President" states as follows:
The President shall be in the President's official
place at all regular and special meetings and call the
meeting to order. The President shall fill vacancies
caused by absence or otherwise. All such vacancies
shall be filled within sixty (60) days following the
effective date of the official vacancy. The President
shall see that all fines are duly paid and penalties
enforced. The President shall appoint all commit-
tees, except otherwise provided for, and shall act as
an ex-officio member of all committees . The Presi-
dent shall sign all necessary legal and financial doc-
uments of the Local Union and orders on the Treas-
urer. While occupying the chair, the President shall
take no part in debate, except by consent of the ma-
jority of the members present. The President shall
enforce this Constitution.
14 It is noted that the collective -bargaining agreement in question as
well as the Top Hand Agreement were both negotiated by the District
Council (not Local 263) for and on behalf of Local 263 and Local 481
A local president is also a member of the local execu-
tive committee. The duties of a local executive commit-
tee member are, in part , as follows:
Par. 1. The Executive Committee shall consist of
the President, Recording Secretary and five (5)
members to be elected from the body, outside of
salaried officers . The General Executive Board
may,, upon request of a Local Union, grant permis-
sion to allow the Business Agent of the Local
Union to become a member of the Executive Com-
mittee. The duties of the Executive Committee shall
be advisory and deliberative . They, shall meet at
least once in every month and shall consider all
matters referred to them by the organization, or
brought to their attention by members of the Local,
and be subject to the call of the President to adjust
all labor troubles appertaining to the Local Union
and enforce the rules and agreements adopted by
the Local Union ; assume control and have supervi-
sion of all affairs of the Local Union in conformity
with the International Constitution. The President
shall have the right to call a special meeting of the
Executive Committee if the President deems it nec-
essary , [G.C. Exh. 12, art . XXVI, sec. 11, par. 1.]
Although the above -referenced portions of the Respond-
ent's constitution states that a local president signs all
necessary legal and financial documents , it does not state
or indicate that he, acting alone, may authorize legal ac-
tions or financial expenditures . There is no explicit au-
thorization in the description of a president 's duties for a
local president acting on his own to file charges with the
Board or to take any other legal action without the ap-
proval of the local membership. Although the Respond-
ent's constitution and Local 263 's bylaws do not contain
a prohibition against the local president filing Board
charges on behalf of the Local, both of those documents
(constitution and bylaws) taken together support a con-
clusion that any such action by the local president on
behalf of the local would have to be by authorization of
the local membership at a membership meeting. I am
persuaded and find that neither the Respondent 's consti-
tution nor Local 263 's bylaws authorized Stevens to take
the action he did of filing charges with the Board against
the Respondent in the name of Local 263.
The fact that Stevens did not have the authorization
from Local 263's executive board or membership nor the
fact that neither the Respondent's constitution or the
local's bylaws granted him such authority does not dis-
pose of the instant case . The issue becomes whether the
Respondent could lawfully discipline Stevens pursuant to
the proviso to Section 8(b)(1)(A) of the Act" or wheth-
er an overriding public policy favoring unimpeded access,
to the Board's processes would preclude the Respondent
from lawfully disciplining him.
is Sec. 8(b)(l)(A) of the Act provides "It shall be an unfair labor
practice for a labor organization of its agents-(1) to restrain or coerce
(A) employees in the exercise of rights guaranteed in Section 7. 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 "
IRON WORKERS, (WALKER CONSTRUCTION)
The Supreme Court in NLRB v. Shipbuilders, 391 U.S.
418, 424 (1968), addressed the issue of whether a union
violated Section 8(b)(1)(A) of the Act by expelling a
member for filing a charge with the Board without first
having exhausted all intraunion procedures available to
the members. With respect to Section 8(b)(1)(A) of the
Act the Supreme Court held:
Thus § 8(bXl)(A) assures a. union freedom of self-
regulation where its legitimate internal affairs are
concerned . But where a union rule penalizes a
member for filing an unfair labor practice charge
with the Board, other considerations of pubic policy
come into play.
A proceeding by the Board is not to adju-
dicate private rights but to effectuate a public
policy. The Board cannot initiate its own proceed-
ings; implementation of the Act is dependent "upon
the initiative of individual persons." Nash v. Florida
Industrial Comm'n, 389 U.S. 235, 238. The policy of
keeping people "completely free from coercion,"
ibid., against making complaints to the Board is
therefore important in the functioning of the Act as
an organic whole. . . . A healthy interplay of the
forces governed and protected by the Act means
that there should be as great a freedom to ask the
Board for relief as there is to petition any other de-
partment of government for a redress of grievances.
Any coercion used to discourage, retard, or defeat
that access is beyond the legitimate interests of a
labor organization. That was the philosophy of the
Board in the Skura case, Local 138, International
Union of Operating Engineers, 148 NLRB 679; and
we agree that the overriding public interest makes
unimpeded access to the Board the only healthy al-
ternative, except and unless plainly internal affairs
of the union are involved.
The Supreme Court further held "the proviso in §
8(b)(1)(A) that unions may design their own rules re-
specting `the acquisition or retention of membership' is
not so broad as to give the union power to penalize a
member who invokes the protection of the Act for a
matter that is in the public domain and beyond the inter-
nal affairs of a union," ibid. at 425.
The question in the instant case becomes one of
whether Steven's unauthorized actions were protected
by public policy considerations or whether the Respond-
ent could, as it actually did, discipline him for affairs
plainly internal to the union.'s The General Counsel as-
serts Auto Workers Local 212 (Chrysler Corp.), 257 NLRB
637 (1981), is virtually identical to the instant case and is
controlling. The Board in Local 212 held the union had
violated Section 8(b)(1)(A) of the Act by removing one
Melvin Nance from his position as chairman of its fair
employment practices committee because he filed
16 The Respondent concedes it could not lawfully have disciplined
Stevens had he filed charges as an individual instead of in the name of
Local 263 . In fact , the Respondent , at all stages of its actions involving
Stevens, informed him of his right to file charges with the Board as an
individual
1081
charges with the Board against the union. The Board
stated:
Respondent 's contention is that, inasmuch as
Nance's removal did not affect his employment
status or cause him to suffer any loss of seniority,
money, or union membership , the removal was an
internal union affair not subject to the prohibitions
of Section 8(b)(1)(A).
However, the removal was motivated by Nance's
having filed a Board charge. The Administrative
Law Judge so found and Respondent concedes as
much. To that extent the discipline implicates a
policy imbedded in Federal labor law, "the policy
of keeping people `completely free from coercion'
. .. against making complaints to the Board."
NLRB- v. Industrial Union of Marine_& Shipbuilding
Workers of America and its Local 22 [United States
Lines Co.], 391 U.S. 418, 424 (1968). "Any coercion
used to discourage , retard , or defeat that access is
beyond the legitimate interests of a labor organiza-
tion." Id.
Therefore, simply because the discipline imposed
here, as Respondent alleges, results in no loss of se-
niority , money, or membership does not dictate the
conclusion that the discipline was a plainly internal
union affair left unregulated by Section 8(b)(1)(A)
by virtue of the proviso to it. While losses of senior-
ity, money, or membership may be relevant to the
inquiry into whether or not the discipline indeed
was "coercive," the absence of such particular ef-
fects does not negate a finding that the discipline
here was coercive. Patently, Nance was coerced.
That Respondent openly would remove him from
office because he filed a charge with the Board is
likely to have an adverse impact upon his willing-
ness to seek access to the Board in the future. The
removal is further likely to indicate to other unit
employees that the exercise of their right to file
charges against Respondent might result in union
sanctions. Given the importance of the policy favor-
ing unfettered employee access to the Board, it is
too speculative to contend that other unit members
might distinguish the discipline meted out to Nance
on the basis that he is a union officer and they are
not. In any event, that would appear to be two-
edged . For another unit member might just as rea-
sonably view the fact that Respondent meted out
discipline to an officer for filing charges with the
Board as indicating the fact that Respondent would
be even less hesitant to impose discipline to rank-
and-file members for filing such charges.
Although we recognize the important interests
served by a union being able to fill its offices and
internal committee memberships with individuals it
believes best will serve the union and its member-
ship, prohibiting a union from removing an officer
because he or she has filed a charge with the Board
hardly undermines that interest to any substantial
degree.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 212 is distinguishable from the instant case in that
the charging party in that case was an individual. Fur-
thermore, the motivation for disciplining Stevens in the
instant case, unlike Local 212, was not because he filed
charges with the Baord, but because he filed charges
with the Board without authorization from the local on
whose behalf he filed the charges. There can be no ques-
tion but that the action the Respondent took against Ste-
vens was coercive but it was not unlawful coercion. I
reject the General Counsel's argument that to distinguish
between an individual filing a charge and the same indi-
vidual signing a charge on behalf of a local union is to
make an untenable distinction without a difference.
Clearly the Respondent could not have lawfully disci-
plined Stevens had he filed the charges he did with the
Board in his own name; however, the Respondent had
and still has a legitimate interest in who files Board
charges in the name of its local. In the instant case the
Respondent did not attempt to regulate its member's
access to the Board; it only called into question a mem-
ber's filing charges with the Board on behalf of one of its
locals without authorization from that local. I find Re-
spondent's discipline of Stevens to be a "plainly internal"
matter. The Respondent not only did not impede Ste-
ven's access to the Board but its actions are not reason-
ably likely to have any chilling effect on others because
the Respondent made it clear throughout its proceedings
involving Stevens that any individual, as an individual,
could and had the right to lawfully file charges with the
Board against the Respondent. The Board approved
Judge Robert C. Batson's holding in Buffalo Newspaper
Guild Local 26, 265 NLRB 382, 384 (1982), that a union
did not violate Section 8(b)(1)(A) of the Act when it ex-
pelled and fine a member because he filed EEOC
charges in his official capacity as grievance chairman
without proper authorization. The instant case involves a
like situation where the individual signing the charges on
behalf of the union was doing so without authorization
from the union and, as such, the individual may be law-
fully subjected to discipline for his unauthorized actions.
As Judge Batson noted in Buffalo Newspaper Guild,
supra, citing Scofield v. NLRB, 394 U.S. 423 (1969), a
union may enforce disciplinary action against a member
for rule violations where its enforcement meets four
tests. All four tests were met by the Respondent in the
instant case. The first test is whether-the rule in question
was properly adopted. I agree with the Respondent that
there has been no showing in the instant case that the
Respondent's constitution or Local 263's bylaws were
improperly adopted. Therefore, in my opinion, the rule
gleaned from those documents that actions taken on
behalf of the local must be done with membership or ex-
ecutive committee approval was properly adopted. The
second test is that the rule must reflect a legitimate union
interest. It is clear in the instant case that the Respondent
had and continues to have a legitimate interest in prohib-
iting interferences with its administering of its collective-
bargaining agreements. The third test states the rule must
not impair any policy Congress has imbedded in the
labor laws. As fully set forth elsewhere in this decision,
the rule enforced by the Respondent herein did not in
any manner impair an individual's access to the Board
where the individual was acting as an individual. The
final test is that the rule be reasonably enforced against
members who are free to leave the union and escape the
rule. Stevens could have left Local 263 without any
impact on his employment rights and he could have filed
the charges he did as an individual.
Considering all the foregoing, I find that Stevens' con-
duct is the type of conduct for which a union member
may be removed from the office of local president, pro-
hibited from attending local union meetings , prohibited
from being a candidate for office, or representing any
local for a specified number of years, and be fined. Ac-
cordingly, I find Respondent did not violate Section
8(b)(1)(A) of the Act when it filed intraunion charges
against Stevens, conducted a hearing involving him,
found him guilty, and imposed sentence on him.
CONCLUSIONS OF LAW
1. Walker Construction Company and the North Texas
Contractors Association and its members are individually
and collectively engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Respondent, International Association of
Bridge, Structural and Ornamental Iron Workers, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent did not violate Section 8(b)(1)(A) of the
Act by filing Intraunion charges against James W. Ste-
vens and thereafter conducting a hearing involving those
charges which resulted in a finding of guilt and imposing
of a sentence on him.
4. Respondent has engaged in no unfair labor practices
violative of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed17
ORDER
The complaint is dismissed.
17 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses