International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 479 (N.L.R.B. 1971)

INTL. BROTHERHOOD OF TEAMSTERS
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and-Helpers of America (Red Ball
Motor Freight , Inc.) ,and Dallas General Drivers,
Warehousemen and Helpers Local Union 745 and
Charles D. Shields , an Individual . Case 16-CB-539
June 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On January 15, 1971, Trial Examiner Jerry B. Stone
issued his Decision in this proceeding, finding that the
Respondents had engaged in and were engaging in cer-
tain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and Re-
spondents filed exceptions to the Trial Examiner's
Decision with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and briefs, and the entire
record' in the case,2 and hereby adopts the findings,
conclusions, and recommendations of the Trial Exam-
iner as modified below.
The Respondents' International constitution, in arti-
cle XIX, section 12(a), provides insofar as relevant here
that members having a grievance against the Union
must "exhaust all remedies provided for in this Consti-
tution and by the International Union before resorting
to any court, tribunal or agency ...." Section 12(b) of
that article further provides that should a member
without exhausting internal union remedies resort "to
a court of law" and lose his case against the Union he
shall be assessed by way of a fine all costs and expenses
incurred by the Union in defending against the suit.
The Trial Examiner concluded that the reference to a
"court of law" in section 12(b) also included resort to
this Board, that in consequence the provision in effect
requires exhaustion of internal remedies before resort
to this Board for adjudicating statutory rights and that,
therefore, the "existence of article XIX, section 12(a)
and 12(b) . . . " is violative of Section 8(b)(1)(A) of the
Act. He also found further support for his conclusion
in sections (6) and 9(a) of article XIX which in part
provide for disciplining members for violating any
' By stipulation the parties submitted this case to the Trial Examiner for
decision upon a record of agreed facts including exhibits.
' The Respondents' request for oral argument is denied because in our
opinion the record and exceptions and briefs adequately set forth the issues
and positions of the parties
191 NLRB No. 95
479
provision of the constitution . Even assuming the Trial
Examiner has properly construed the provision of the
International constitution , we, nevertheless , do not
agree that the mere presence of the contested provisions
in the constitution constitutes restraint and coercion
under Section 8(b)(l)(A) of the Act.'
We do, however, agree with the Trial Examiner that
the threat made at a union meeting by Piland, the
Local's secretary-treasurer, to sue certain union mem-
bers for union defense expenditures arising from law-
suits against the Union , referred in fact to charges filed
by those employees against the Union under the Act.
Consequently, whether or not the International consti-
tution actually sanctioned such a suit , we find as did the
Trial Examiner that the threat constituted unlawful
restraint and coercion and that the Respondents'
through Piland's remarks violated Section 8(b)(1)(A)
of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondents, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Dallas General
Drivers, Warehousemen and Helpers Local Union 745,
their officers, agents, and representatives, shall:
1. Cease and desist from threatening members who
are employees within the meaning of the Act with disci-
plinary reprisals or lawsuits because they have filed
charges under the Act with the Board.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at Local Union 745's offices and meeting
halls copies of the attached notice marked "Appen-
dix."6 Copies of said notice, on forms provided by the
I See OperativePlasterers'and Cement Masons'InternationalAssociation
ofthe United States and Canada and Cement Masons' Local Union No. 521
of the Operative Plasterers' and Cement Masons' International Association
ofthe United States and Canada (Arthur G. McKee & Company), 189 NLRB
No. 68; see also Local 703, International Hod Carriers Building and Com-
mon Laborers' Union, AFL-CIO, and its Agent Robert Wood (Kuhne,Sim-
mons Construction Co., Inc.), 150 NLRB 1614.
We agree with the Trial Examiner that the International Union, as well
as the Local Union, is chargeable with Piland's unlawful threat. At the
meeting at which Piland spoke there were present a vice president of the
International Union and, also, an International representative, both of
whom addressed the meeting and supported Piland's position on a "wild
cat" strike which occasioned the suits giving rise to Piland's threat. Further
neither the International vice president nor the representative raised any
objections to Piland's threat even though he had stated in effect that the suits
he intended to bring were authorized by the International's constitution.
However, as the dispute here is a local one, we shall provide only for local
posting of notices
6 Operative Plasterers' and Cement Masons', etc. (Arthur G. McKee &
Company), supra; also Local 138, International Union of Operating Engi-
neers, AFL-CIO (Charles S. Skura), 148 NLRB 679.
6 In the event that 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
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
(Cont.)
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for Region 16, after being duly
signed by its representatives, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Sign, as aforesaid, and mail sufficient copies of the
attached notice to the Regional Director for Region 16,
for posting, Red Ball Motor Freight, Inc., being will-
ing, at places where notices to company employees are
customarily posted. Such copies of the notice shall be
furnished the Respondents by said Regional Director.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply here-
with.
MEMBER BROWN, dissenting in part:
I agree that the mere existence of the constitutional
provisions does not constitute restraint and coercion
under Section 8(b)(1)(A). However, I cannot agree
with my colleagues that the comments of the Local's
secretary-treasurer, Piland, amounted to threats which
were coercive and unlawful under that Section of the
Act. In the context of the confusion of the union meet-
ing and the extensive discussion among the former Red
Ball employees, I find nothing threatening in Piland's
reference to suing a member for costs in connection
with suits against the Local lost by the member, under
his construction of provisions which are found herein
not to be unlawful. It must be remembered that this
was a heated union meeting, involving intense emo-
tional protests of the loss of jobs by employees who had
engaged in a wildcat strike in violation of their contract
and were threatening to extend this unlawful picketing
to other employers, although the Union had repre-
sented them in grievance proceedings in an unsuccess-
ful effort to secure their return. The remarks occurred
in the course of attempts to induce these protesting
members to adhere to their contractual obligations and
to accept the consequences of their past misconduct. In
any event, however, even if Piland's comments be con-
strued as a threat, I find no basis for holding the Inter-
national responsible for that conduct.
I would dismiss the complaint in its entirety.
of the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America and Dallas General Drivers, Warehousemen
and Helpers Local Union 745
WE WILL NOT threaten members who are em-
ployees within the meaning of the Act with disci-
plinary reprisals or lawsuits because they have
filed charges under the National Labor Relations
Act with the National Labor Relations Board.
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS,
CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF
AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
DALLAS GENERAL
DRIVERS,
WAREHOUSEMEN
AND HELPERS
LOCAL UNION 745
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must
anyone.
be defaced by
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 8A24, Federal Office Building , 819 Tay-
lor Street, Fort Worth, Texas 76102, Telephone 817-
334-2921.
TRIAL EXAMINER'S DECISION
JERRY B. STONE, Trial Examiner: This proceeding, under
Section 10(b) of the National Labor Relations Act, as
amended, was presented by the parties by stipulated record
of October 28, 1970.
INTL. BROTHERHOOD OF TEAMSTERS
The charge and amended charge were filed on May 25,
1970, and August 18, 1970. The complaint' in this matter was
issued on September 10, 1970, and alleged conduct violative
of Section 8(b)(1)(A) of the Act. The issues herein concern
whether (1) provisions in the International Union's constitu-
tion and (2) whether statements by Piland restrained and
coerced employees in the exercise of their right to file unfair
labor practice charges with the National Labor Relations
Board.
All parties were afforded full opportunity to participate in
the proceeding, and the General Counsel and Respondents
filed briefs which have been considered.'
Upon the entire record in the case, I hereby make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Red Ball Motor Freight, Inc., herein called the Employer,
is, and has been at all times material herein, a corporation
duly organized under and existing by virtue of the laws of the
State of Delaware, having its principal office and place of
business at Dallas, Texas, and is now, and has been at all
times material herein, continuously engaged in the business
of shipping and transporting of general freight and cargo
moving in interstate commerce.
The Employer in the conduct of its motor freight lines,
during the 12-month period preceding October 27, 1970,
which period is representative of all times material herein,
picked up, shipped, transported, and delivered commodities,
services for which were valued in excess of $50,000, to its
freight terminals in Texas from States of the United States
other than the State of Texas.
Based upon the foregoing, and as stipulated and conceded
by the Respondents, it is concluded and found that the Em-
ployer is now, and has been at all times material herein,
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Dallas General
Drivers, Warehousemen and Helpers Local Union 745 are
now, and have been at all times material herein, labor organi-
zations within the meaning of Section 2(5) of the Act. It is
so concluded and found.
The caption of this proceeding was corrected as indicated herein by
stipulation of the parties.
2 As indicated, the parties entered into a stipulation of facts, including
exhibits, and by stipulation submitted this matter for decision without hear-
ing. Such stipulation, executed on October 27 and 28, 1970, is hereby
approved, marked as TX Exh 1, and received into the record In the above-
referred to stipulations the parties agreed that the onginal and first amended
charges, the complaint and notice of hearing, and the answer be part of the
record herein. Accordingly, it is deemed (1) that true copies of the onginal
charge in 16-CB-539, dated May 25, 1970, be marked as TX Exh. 2A; (2)
that true copies of the amended charge dated August 18, 1970, be marked
as TX Exh. 2B; (3) that true copies of the complaint and notice of hearing
be marked as TX Exh. 2C; and (4) that true copies of the answer be marked
as TX Exh 2D, and that TX Exh 2A through 2D be received herewith into
the record in this matter The Regional Director issued an Order Referring
Stipulation to Trial Examiner on October 28, 1970 (hereby marked as TX
Exh. 2E) Thereafter the Respondent, by letter dated October 28, 1970,
requested a Trial Examiner ruling re time of briefs (hereby marked as TX
Exh. 2F), the General Counsel, by letter of October 29, 1970, opposed TX
Exh. 2F (such letter hereby marked as TX Exh 2G), and Trial Examiner
Schneider ruled on TX Exh. 2F on November 3, 1970 (such ruling hereby
marked as TX Exh. 2H) True copies of the above exhibits as marked are
hereby received into the record.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
481
The General Counsel's complaint alleges in effect that Re-
spondents restrained and coreced employees of the Employer
in the exercise of Section 7 rights (1) by maintaining in Re-
spondent International's constitution and bylaws (from on or
about February 16, 1970, to date) certain provisions desig-
nated as article XIX, section 12(a) and (b), and (2) by Piland,
an agent of Respondents, making an oral threat, on June 6,
1970, to invoke such provisions against members who were
employees or former employees of the Employer. The Gen-
eral Counsel alleges all and each of such provisions and acts
to be violative of Section 8(b)(1)(A).
The Respondents' answer denies that each and all of such
acts are violative of Section 8(b)(1)(A) of the Act and admits
the existence of the referred-to provisions in the constitution
and that Piland, an agent of Respondent Local, "advised"
members of the Local present at a local union meeting of the
provisions of the constitution (article XIX, section 12(a) and
(b).
B. The Provisions in the Constitution and
Bylaws of the International Union
1. The pleadings and the stipulation in this matter clearly
establish that the provisions in the International constitution
alleged to be violative of Section 8(b)(1)(A) of the Act have
been in effect at all times material hereto in such International
constitution.
The facts as stipulated clearly reveal that this referred-to
constitution has application to members of the International
Union who are employees of employers subject to the Na-
tional Labor Relations Board's jurisdiction.
A consideration of the constitution and bylaws of the Inter-
national Union in effect at all times material herein and Pi-
land's reference to provisions in such constitution at the June
7, 1970, Local union meeting, as revealed by the minutes of
such meeting and Respondents' answer, constitutes evidence
that Respondent Local 745 operated pursuant to such consti-
tution at all times material herein. It is so concluded and
found.
The facts as stipulated clearly reveal also that this referred-
to constitution has application to members of Respondent
Local who are employees of employers subject to the Na-
tional Labor Relations Board's jurisdiction.
Respondents contend that Section 10(b) of the Act prohib-
its findings of violative conduct against the International be-
cause said constitution and bylaws were adopted in June 1966
(outside the 10(b) period) and that proof otherwise of viola-
tive conduct has not been established within the 10(b) period.
I reject this contention since the complained-of conduct is the
admitted continued existence of such provisions during the
10(b) period.
Considering all of the foregoing, I find it proper, if the
provisions as alleged are violative, to hold both Respondents
liable for such conduct of continued existence in the constitu-
tion of such provisions.
2. As indicated there is no issue, and it is clearly established
that, at all times material herein, since February 16, 1970,
Respondent International's constitution and bylaws con-
tained the following provisions:
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE XIX
TRIALS AND APPEALS
* * * *
Exhaustion of Remedies
Section 12(a). Every member, officer, elected Business
Agent, Local Union, Joint Council or other subordinate
body against whom charges have been preferred and
disciplinary action taken as a result thereof, or against
whom adverse rulings or decisions have been rendered
or who claims to be aggrieved, shall be obliged to ex-
haust all remedies provided for in this Constitution and
by the International Union before resorting to any court,
tribunal or agency against the International Union, any
subordinate body or any officer or employee thereof.
The General Counsel contends that the foregoing provision
standing alone, or in connection with article XIX, Section
12(b), of the constitution, constitutes a violation of Section
8(b)(I)(A), or, in connection with other sections of the consti-
tution relating to charges against members, constitutes a vio-
lation of Section 8(b)(1)(A) of the Act.
The Respondents argue that an exhaustion of remedies
provision such as this has congressional and judicial ap-
proval. I reject this argument insofar as it is related to a
question of coercion or restraint upon an employee for the
filing of charges under the National Labor Relations Act.
The Supreme Court of the United States said in N.L.R.B.
v. Industrial Union of Marine & Shipbuilding Workers of
America, AFL-CIO [U.S. Lines Co.],, 391 U.S. 418, with
respect to such contention:
The Court of Appeals found support for its contrary
position in §, 101(a)((4) of the Labor-Management Re-
porting and Disclosure Act of 1959.' 73 Stat. 522, 29
U.S.C. § 411(a)(4). While that provision prohibits a
union from limiting the right of a member to institute an
action in any court or in a proceeding before any ad-
ministrative agency, it provides that a member "may be
required to exhaust reasonable hearing procedures" "not
to exceed a four-month lapse of time."
We conclude that "may be required" is not a grant of
authority to unions more firmly to police their members
but a statement of policy that the public tribunals whose
aid is invoked may in their discretion stay their hands for
four months, while the aggrieved person seeks relief
within the union. We read it, in other words, as installing
in this labor field a regime comparable to that which
prevails in other areas' of law before the federal courts,
which often stay their hands while a litigant seeks ad-
ministrative relief before the appropriate agency.'
Section 101(a)(4) provides: "No labor organization shall limit the right
of any member thereof to institute an action in any court or in a proceeding
before any administrative [sic] agency.. . or the right of any member of a
labor organization to appear as a witness in any judicial, administrative, or
legislative proceeding, or to petition any legislature to communicate with
any legislator; Provided, That any such member may be required to exhaust
reasonable hearing procedures (but not to exceed a four-month lapse of
time) within such organization, before instituting legal or administrative
proceedings.... "
' See Myers v. Bethlehem Shipbuilding Corp., 303 U.S 41; compare
Railroad Commission v. Pullman Co., 312 U.S. 496. The requirement of
exhaustion is a matter within the sound discretion of the courts See, e g.,
McCulloch v. SociedadNacional, 372 U S. 10, 16-17 And see, e.g., Leedom
v. Kyne 358 US 184, 188-189, California Commission v. United States,
355 U.S 534, 539-540 Exhaustion is not required when the administrative
remedies are inadequate. Greene v. United States, 376 U S. 149, McNeese
v. Board of Education, 373 U.S 668 See generally, 3 K. Davis, Administra-
tive Law Treatise § 20.07 (1958) When the complaint, as in the instant case,
We conclude that unions were authorized to have
hearing procedures for processing grievances of mem
bers, provided those procedures did not consume more
than four months of time; but that a court or agency
might consider whether a particular procedure was "rea-
sonable" and entertain the complaint even though those
procedures had not been "exhausted." We also con-
clude, for reasons stated earlier in this opinion, that
where the complaint or grievance does not concern an
internal union matter, but touches a part of the public
domain covered by the Act, failure to resort to any
intra-union grievance procedure is not grounds for ex-
pulsion from a union. We hold that the Board properly
entertained the complaint of Holder and that its order
should be enforced.
The Respondents contend that the General Counsel appar-
ently asserts the referred-to provision to be per se unlawful.
The Respondents further appear to contend that the General
Counsel is restricted to evidentiary proof of the provision
itself to establish its unlawfulness. I note that Respondents,
subsequent to the stipulated record, moved for the right to file
their brief after the time required for the General Counsel to
file his brief on the basis that the broad pleadings involved
made it difficult for Respondents to be apprised of General
Counsel's theory. Trial Examiner Schneider denied this mo-
tion but indicated leave for a similar motion for reply if
necessary after the parties had filed their briefs.
I do not construe the General Counsel's pleadings or brief
as limiting his theory of violation to a per se theory. The
pleadings clearly set forth that the act of having the referred-
to provision as a continuing part of the constitution con-
stituted violative conduct. Nor do I construe the pleadings as
limiting the evidence of violative conduct to the wording of
the provision itself.
The General Counsel contends that the existence of article
XIX, section 12(b), is violative of Section 8(b)(1)(A) of the
Act and has a bearing upon the establishment that article
XIX, section 12(a), is illegal. Thus the General Counsel con-
tends that the provision, herein set out, reveals in effect that
the obligation of members (employees) to exhaust remedies as
set forth is one of restraint and coercion.
Article XIX, Section 12(b), is herein set out:
(b). Where a member, officer, elected Business Agent,
Local Union, Joint Council or other subordinate body,
before or following exhaustion of all remedies provided
for within the International Union, resorts to a court of
law and loses his or its cause therein, all costs and ex-
penses incurred by the International Union shall be as-
sessed against such individual, Local Union, Joint Coun-
cil or other subordinate body, in the nature of a fine,
subject to all penalties applicable where fines remain
unpaid.
Where such court action is by an individual or by a Local
Union, Joint Council or other subordinate body against a
Local Union, Joint Council or other subordinate body, the
foregoing provision in respect to the payment of costs and
expenses shall be applicable in favor of the Local Union, Joint
Council or other subordinate body proceeded against in
court.
It is the General Counsel's contention in effect that article
XIX, section 12(b)'s reference to "court of law" encompasses
the filing of charges with the National Labor Relations Board
raises a matter that is in the public domain and beyond the internal affairs
of the union, the union's internal procedures are, previously explained,
plainly inadequate.
INTL. BROTHERHOOD OF TEAMSTERS
since the filing of such charges may constitute the means of
resort to the United States district court, as an example for
10(1) injunctions, or to the United States court of appeals for
enforcement or review of National Labor Relations Board's
decision. The Respondents contend that the usage of the
words "court of law" in article XIX, Section 12(b), as com-
pared to the words "court." "tribunal," and "agency" in
article XIX, section 12(a), reveals an intent that article XIX,
section 12(b), be not applicable to the filing of charges with
the National Labor Relations Board.
With respect to the foregoing, I note that Piland, secretary-
treasurer of Local 745, referred to these provisions on June
7, 1970, at the Local Union's meeting, specifically indicated
that these provisions were a part of the International Union's
constitution, and indicated an interpretation of said provi-
sions as including the right to enforce article XIX, section
12(b), because the employee-members had filed charges. I
note further that Respondent International Vice President
Miller and International Representative Dixon were present
at the time of this interpretation of the provisions of the
International constitution. Neither Miller nor Dixon con-
tradicted or otherwise made statements to reveal that Piland's
interpretation of the provision was erroneous. I am persuaded
that a reasonable reading of article XIX, section 12(a), reveals
that the terminology used was to clearly apprise the members
of restrictions upon their rights and that the terminology in
article XIX, section 12(b), was written in a broad legalistic
manner to cover the same restriction. Under such circum-
stances, I find the proper interpretation of the referred-to
provisions to be as contended by the General Counsel.
However, there are also certain other provisions in the
constitution that have a bearing upon the question of conduct
that restrains or coerces employee-members in the exercise of
Section 7 rights.
These specific provisions are:
Grounds for Charges Against Members, Officers and
Subordinate Bodies
Section 6.' The basis for charges against members,
officers, elected Business Agents, Local Unions, Joint
Councils or other subordinate bodies, for which he or it
shall stand trial, shall consist of but not be limited to the
following:
(1) Violation of any specific provision of the Constitution
or failure to perform any of the duties specified thereun-
der.
(2) Violation of the oath of loyalty to the Local Union
and the International Union.
(3) Embezzlement.
(4) Secession, or fostering the same.
(5) Abuse of fellow members and officers by written or
oral communication.
(6) Abuse of fellow members or officers in the meeting
hall.
(7) Filing charges in bad faith or out of malice.
(8) Any action which is disruptive of or interferes with
the performance or obligations of other members or Lo-
cal Unions under collective bargaining agreements.
Decision and Penalties
Section 9(a). Decision and penalties imposed upon
individual members, officers, elected Business Agents,
Local Unions, Joint Councils or other subordinate bod-
ies found guilty of charges may consist of reprimands,
fines, suspensions, expulsions, revocations, denial to
483
hold any office permanently or for a fixed period or
commands to do or perform, or refrain from doing or
performing, specified acts. If the penalty is by way of
fine, then the same must be paid pending an appeal, if
one is taken, unless the General President upon request
waives payment pending appeal. A Local Union ordered
to reinstate a member or perform an act other than the
payment of a fine must comply therewith as a condition
precedent to taking an appeal unless the General Presi-
dent or the General Executive Board suspends such or-
der pending the appeal. If the fine is against a member
or officer of a Local Union, assessed by the Local Union,
it shall be paid into the treasury of the Local Union. If
a fine is assessed against a Local Union by a Joint Coun-
cil, the payment shall be to the treasury of the Joint
Council.
Considering all of the foregoing, I conclude and find that
the existence of article XIX, section 12(a) and (b), in a consti-
tution governing obligations of members, insofar as it has
application to members who are employees of employers sub-
ject to the National Labor Relations Board's jurisdiction,
violative of Section 8(b)(1)(A) of the Act. The terms of the
stated provisions reveal in effect that it is obligatory upon
members to exhaust internal union procedures before resort-
ing to the use of the National Labor Relations Board's proce-
dures for adjudicating Section 7 statutory rights.
In addition to the fine referred to in article XIX, Section
12(b), relating to failure to exhaust union remedies, the con-
stitution's provisions relating to charges and the types of
discipline (that may be imposed upon a member for failure to
abide by that which he is obliged to do) reveal clearly that the
obligatory requirement in section 12(a) is one of real restraint
and coercion. Accordingly, I conclude and find that the con-
tinued existence, after February 16, 1970, to date, of article
XIX, section 12(a) and 12(b), in the International Union's
constitution governing it and Local 745, constitutes conduct
of restraint and coercion against members of both the Inter-
national and Local 745, who are employees of employers
subject to the National Labor Relations Board's jurisdiction.
Such conduct constitutes conduct, of both Respondent Inter-
national and Respondent Local 745, violative of Section
8(b)(1)(A) of the Act. It is so concluded and found.'
C. Threat of Enforcement of Exhaustion of
Remedies Provisions in Constitution
1. As indicated previously, the General Counsel's com-
plaint alleged in effect that Respondents, by Piland, orally
threatened on or about June 6, 1970, to invoke article XIX,
section 12(a) and (b), of the International constitution against
members who were employees or former employees of Red
Ball Motor Freight, Inc. The Respondents' answer in effect
denied that Piland was an agent of Respondent International,
denied that Piland made any threats, but admitted that Pi-
land advised members of the Local present of the referred-to
provisions in the International constitution.
2. The parties' stipulation of facts reveals the following
pertinent to the issues herein:
a. At all times material herein Respondent Local 745 and
Red Ball Motor Freight, Inc., have been parties to a contract.
This contract accorded the Employer certain specified rights
to discharge employees engaged in an unauthorized strike
after 24 hours of such unauthorized work stoppage.
' N.L.R.B. v. Industrial Union of Marine & Shipbuilding Workers of
America, AFL-CIO [U. S. Lines Co.], 391 U.S. 418 ; American Federation of
Musicians of the United States and Canada, AFL-CIO (Dan Glasser, Em-
ployer), 165 NLRB 798.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Certain of the Employer's employees , including some
members of the Respondents , engaged in an unauthorized
strike at the Dallas terminal of the Employer on May 6, 1970.
On May 9, 1970, the Employer , exercising its prerogative
under its contract , discharged certain of the employees who
had engaged in the unauthorized strike.
c. Some of the aforesaid discharged employees filed griev-
ances on May 10, 1970 , under the aforesaid contract alleging
that their discharges were not for good cause. These griev-
ances were promptly heard by the appropriate grievance
committee in accordance with the contractual procedures.
Some of the grievances were sustained and some were denied.
Charles D. Shields, the Charging Party, filed an unfair
labor practice charge in the instant case on May 25, 1970,
charging that Local 745 engaged in conduct violative of Sec-
tion 8(b)(1)(A) of the Act in that "Since on or about May 8,
1970 [the Local] restrained and coerced Charles D. Shields,
driver, and Tommy J. McHugh, checker, in the exercise of
rights guaranteed in Section 7 of the Act." J. D. Williams, an
individual , filed an unfair labor practice charge in Case 16-
CB-542 on June 1, 1970, charging that Local 745 engaged in
conduct violative of Section 8(b)(1)(A) of the Act in that
"Since on or about May 8, 1970 [the Local] restrained and
coerced the individuals noted in Attachments `A' and `B', in
the exercise of rights guaranteed in Section 7 of the Act."
he attachments were headed "Dischargees ' and "Em-
ployees Suspended" and listed the names of individuals there-
upon.)
Region 16 of the National Labor Relations Board investi-
gated all of said charges of unfair representation and found no
merit thereto . The Region, on August 31, 1970, dismissed
Case 16-CB-5424 and no appeal was taken from the dis-
missal . The charge in Case 16-CB-539, the instant case, was
amended on August 18, 1970 , to bring in the issue of restraint
and coercion by Respondents with respect to the provisions
in the constitution relating to the requirement of exhaustion
of remedies before seeking vindication of such rights through
the processes of the National Labor Relations Board. There
is no contention in this proceeding that Respondents have
unlawfully failed to represent employees of the Employer in
the handling of grievances related to the unauthorized strike
in May at the Employer 's site.
The issue is whether Respondents , by Piland, made threats
of enforcement of certain provisions in the International con-
stitution and thereby restrained or coerced employees in the
exercise of their Section 7 rights to file charges with the
National Labor Relations Board.
3. The facts relating specifically to whether Respondents,
by Piland, threatened members (employees) in violation of
Section 8(b)(1)(A) of the Act are essentially the facts of what
occurred at the June 7, 1970, Local union meeting. I have
reviewed the minutes of said meetings submitted by the par-
ties as to the facts which occurred at such meeting . Bearing
in mind the Respondents ' answer which admits Piland's ref-
erence to article XIX, section 12(a) and (b) of the Interna-
tional's constitution, I find it proper to set forth the relevant
facts to the issue involved herein as follows:
a. At the June 7, 1970, Local 745 union meeting were some
members who were former employees of Red Ball Motor
Freight, Inc., and who had been discharged as a result of the
unauthorized strike of May 6 , 1970. Among these members
who were former employees of Red Ball Motor Freight, Inc.,
were Culpepper , Stringer, and Myers . There was at least one
member who was a current employee of Red Ball Motor
Freight, Inc.
° The charge in Case 16-CB-542 had been amended to June 23, 1970,
to add a name or two to the attachments thereto.
b. The charges in Case 16-CB-539 and 16-CB-542 were
charges clearly within the ambit of Section 7 of the Act
inasmuch as they concerned their right to have collective-
bargaining representation.'
c. Article XIX, section 12(a) and 12(b), admitted in effect
by the Respondents to have been alluded to by Piland at such
meeting, concerns exhaustion of internal union remedies by
members before resorting to National Labor Relations
Board's processes , and the right of the Union to assess in the
nature of a fine the costs and expenses if in such resort the
member loses his cause.
Considering the minutes as a whole, I find that the refer-
ence to the question of exhaustion of remedies in connection
with the resort to courts, tribunals, agencies, or courts of law
by members is as set out.
I further find that at the June 7, 1970, Local union meeting
Piland made statements as indicated in the following excerpts
from minutes of said meeting:
He further advised that threats were made to extend the
picket lines to other freight lines in Dallas and even
picket the Local Union building and cause such a com-
motion in the regular meeting that a regular meeting
could not be held . Secretary Treasurer Piland further
explained that the Local Union was now being sued
throught the Labor Board in Fort Worth, Texas by
Charles D. Shields, Driver and Tommy McHugh,
checker, filed on date of May 25, 1970, and he asked that
the copy of the charges be attached to the minutes.
Another charge was filed on June 1, 1970 in the National
Labor Relations Board against Local Union 745, atten-
tion E. F. Johnson , Jr., and Secretary Treasurer Piland
requested the charges be recorded in the minutes and a
copy attached. It read: "Since on or about May 8, 1970,
and at all times thereafter, the above -named organiza-
tion, by its officers , agents, representatives and members,
restrained and coerced the individuals noted in Attach-
ments "A" and "B" in the exercise of rights guaranteed
in Section 7 of the Act-Bob Myers, B. T. Parker, W.
R. Walston, Frank A. Thomas, John E. Shelton, Jerry
D. Jones, Joe Colonna, Jr., R. G. Brukhart, B. L. Car-
penter, Gary Harwell, T. J. Gonzales, Mike Arriaga, Joe
Towery, Charles Alford Congers, L. J. McClung, J. D.
William , Ronald Wayne Dahl, Canny E. Whitworth,
Billy J . Hale, Joel J. Miller, James W. Cook, W. M.
Russell and Bobby B. Thompson."
Secretary Treasurer Piland then took back over the
meeting and advised the membership and the Executive
Board had directed him and it was his intention to follow
throught with their instructions that in his opinion allow
him under the International Constitution to sue the Red
Ball employees for whatever expenses were involved pro-
tecting the Local Union in the lawsuits that were filed
because the Local Union had tried to get the employees
to go back to work and if they had done this they would
not have been fired.
He further explained that he had been told there were
going to be charges filed through the Local Union office
against the Red Ball employees who had participated in
the strike and that if they were he would assure all that
they would be processed as all other charges had been.
5 Amalgamated Meat Cutters and Butcher Workmen of North America,
Amalgamated Food Employees Union Local 590, AFL-CIO (National Tea
Co.), 181 NLRB No. 116.
INTL. BROTHERHOOD OF TEAMSTERS
It further should be noted that Respondent International
Vice President Miller was present and spoke to the member-
ship as is revealed by the following excerpts from the minutes
of said meeting:
He then introduced International Vice President and
Southern Conference Director Murray W. Miller.
Brother Miller talked about the new contract that had
just been negotiated and about Red Ball involving the
wildcat strike, and that Brother Ralph Dixon has [sic]
very instrumental in getting Red Ball under contract
with the Teamsters Union. Brother Miller also advised
that if we expect the employers to live up to what they
agreed to do, then we, in turn, would have to live up to
what we agreed to do and then where as provided by the
contract there would be no slowdowns or wildcat strikes
during the life of the agreement and all problems that
could not be worked out between the Local Union and
management would be processed through the grievance
machinery.
International Representative Dixon was also present at
said meeting and spoke to the membership as is revealed by
the following excerpts from the minutes of said meeting.
Secretary Treasurer Piland then introduced Interna-
tional Representative and Secretary Treasurer of the
Southern Conference Ralph Dixon. Brother Dixon ex-
plained to the membership as he came into the meeting
some of the Red Ball employees who had been fired for
participating in the wildcat strike had been arrogant
with him saying he, as chairman for the Union, should
be very proud of himself as he took his seniority away
and he had explained to the members that he did not
take his seniority away, that he had taken his own senior-
ity by violating the contract and participating in wildcat
strikes.
Brother Dixon said he had sat for many days and lis-
tened to the Red Ball employees over and over again
plead guilty to their participation in the wildcat strikes
and at this point he could find no where where there was
any grievance other than they had hired a new terminal
manager, if this was a grievance, and he did not believe
so. He thanked the membership for their attention and
requested that they be very cautious as Brother M. W.
Miller had advised them in slowdowns and wildcat
strikes and he did encourage them to vote for whoever
was endorsed by the Texas Conference in the Senate
Race this fall.
d. It should be noted further that the constitution of the
International Union required certain agreements by the Local
Union with respect to its abidance with said constitution as
is revealed by the following excerpt from said constitution,
article VII, section 3:
I do further agree in behalf of Local Union (Joint
Council or other subordinate body) that it will abide by
the provisions of the International Constitution and
amendments thereto, all of which are incorporated
herein by reference.
By its Secretary-Treasurer
e. The General Counsel contends that the facts reveal that
Piland, on behalf of Respondents, threatened members who
were employees or former employees of Red Ball Motor
Freight, Inc., with enforcement of article XIX, section 12(a)
and (b). The Respondents contend that Piland is not an agent
of Respondent International, that Piland's expressions are
protected by "freedom of speech," that Piland's remarks are
ambiguous, and the Piland was merely trying to live up to the
Union's contractual obligations.
485
Considering the provisions of the constitution of the Inter-
national as set forth with respect to article XIX, section 12(a)
and 12(b), and article VII, section 3, I conclude that the
International Union had set forth certain obligations of mem-
bership and penalties thereto and required the Local to en-
force such provisions by requiring that costs and expenses
shall be assessed for violations of such obligations of member-
ship in the International Union under specified circum-
stances. The International Union by its constitution required
the Local Union to abide by said constitution. I conclude and
find therefrom that the Respondent International had con-
stituted Respondent Local as its agent for the enforcement of
such provision in the International constitution. The state-
ments made by Piland concerning the enforcement of such
provisions were consistent with such provisions themselves
and were within the range of agency authority as so conferred
by the International Union by its constitution. Further, under
the circumstances of the presence of International officers at
the time of such statements and in context with the written
provisions of the constitution, I find it clear that Piland acted
as an agent for the International when he made the state-
ments at the June 7, 1970, meeting concerning suits to recover
costs for suits against the Local.
The statements by Piland, in issue here, are not protected
by "free speech" inasmuch as such statements constituted a
threat of reprisal. Further, I do not find such statements to
be ambiguous inasmuch as they clearly referred to reprisals
against members who had filed charges with the National
Labor Relations Board. It is clear that Piland used the word
"sue" with reference to charges and also with reference to the
question of assessments . The only cases pending against the
Local filed by members were the charges filed with the Na-
tional Labor Relations Board. Under such circumstances the
meaning of Piland's statements was clear. Further, it is clear
that the assessment of fines for the filing of charges with the
National Labor Relations Board does not pertain to merely
trying to live up to the Union's contractual obligations.
Considering the facts, and the issue as narrowed by the
pleadings, I find that Piland's statements on June 7, 1970,
clearly were to the effect that article XIX, section 12(a) and
(b) of the International's constitution, would be enforced by
assessments of fines against members who were employees or
former employees of the Employer to recover the Union's
costs in defending against the charges filed by such members
under the National Labor Relations Act with the National
Labor Relations Board. Such conduct, by Piland, constitutes
conduct by Respondents violative of Section 8(b)(1)(A) of the
Act.' It is so concluded and found.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the Employer's opera-
tions described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
6 N.L.R.B. v. Industrial Union of Marine & Shipbuilding Workers of
America, AFL-CIO[U.S. Lines Co.], 391 U S 418; Local 138, International
Union of Operating Engineers. AFL-CIO (Charles S. Skura), 148 NLRB
679.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V THE REMEDY
Having found that the Respondents have engaged in unfair
labor practices, it will be recommended that Respondents
cease and desist therefrom and take certain affirmative action
toeffectuate the policies of the Act.
It has been found that the International constitution con-
tains illegal provisions which restrains and coerces members
(who are employees within the meaning of the National La-
bor Relations Act) in violation of Section 8(b)(1)(A) of the
Act. The continuation of illegal provisions, article XIX, sec-
tion 12(a) and (b), in the present status of such constitution
constitutes the continuation of conduct violative of Section
8(b)(1)(A) of the Act insofar as its effect on all members who
are employees within the meaning of the Act. The General
Counsel has not requested that such provisions be expunged
from the constitution. Nor am_I convinced that it is necessary
to expunge such provisions since other less drastic remedial
steps.can be utilized to correct the illegality and illegal effect
of such provisions. The General Counsel requests that a stan-
dard cease-and-desist order be issued plus a requirement that
Respondents "Notify their members, through publication in
at least three consecutive issues of Respondents' national
monthly magazine that Article XIX Section 12(a) and (b) of
the constitution will not be enforced against members Who
filed charges under the Act."
The letter request, in my opinion in a slightly modified
manner, is an appropriate remedial requirement. It will be
recommended that the Respondents take steps to ensure that
all members who are employees within the meaning of the
Act, now and in the future as long as article XIX, section
12(a) and (b), continue in the constitution as presently
worded, are advised that such provisions shall not be en-
forced against members, who are employees within the mean-
ing of the Act, who file charges under the National Labor
Relations Act with the National Labor Relations Board. Al-
though Respondents are not limited to the General Counsel's
suggestion of usage of Respondents' International monthly
publication in effectuating compliance with such remedial
provision, such publication may be so utilized for the sug-
gested 3 consecutive months for publication of such direc-
tions and instructions utilized to ensure such compliance.
Thus Respondents may through such publication, or other-
wise, advise and instruct all subordinate bodies, officers and
agents, and members of such advice and instructions, their
continuing effect, and the usage of such means as may be
necessary to ensure that members, now and in the future, who
are employees within the meaning of the Act, be advised that
article XIX, section 12(a) and (b), shall not be enforced
against such members who file charges under the National
Labor Relations Act with the National Labor Relations
Board.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Red Ball Motor Freight, Inc., the Employer, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Dallas General
Drivers, Warehousemen and Helpers Local Union 745, the
Respondents, are labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondents by restraining and coercing employees
within the meaning of the Act have engaged in conduct viola-
tive of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]