Local 138, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Aug 31, 1964

148 N.L.R.B. 679 (N.L.R.B. 1964)

LOCAL 138, INT'L UNION OF OPERATING ENGINEERS 679
Employees may communicate directly with the Board's Regional
Office, 112 East Cass Street, Tampa 2, Florida, Telephone No.
223-2643, if they have any question concerning this notice or com-
pliance with its provisions.
Local 138, International Union of Operating Engineers, AFL-
CIO and Charles S. Skura . Case No. 2-CB-3505. August 31,
1964
DECISION AND ORDER
On May 1, 1963, Trial Examiner Benjamin B. Lipton issued his
Intermediate Report in the above-entitled proceeding finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, Respondent filed exceptions to the Inter-
mediate Report and a supporting brief. The General Counsel filed a
brief in support of the Intermediate Report, taking exception, how-
ever, to the Recommended Order. On July 9, 1964, the Board, pursu-
ant to notice, heard oral argument at Washington, D.C. Respondent
and the General Counsel appeared at the hearing by counsel and
participated in argument to the Board.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, the oral argument, and the
entire record in this case. The Board agrees with the Trial Examiner
that Respondent violated Section 8(b) (1) (A) of the Act, but for rea-
sons different from those relied upon by the Trial Examiner. There-
fore, the Board adopts the findings, conclusions, and recommendations
of the Trial Examiner only to the extent consistent herewith.
The facts of this case are largely undisputed and are set forth in
detail in the Intermediate Report. We shall restate them only to
the extent required by our discussion of the issues.
Charles S. Skura was one of six members of Respondent Union who
composed a so-called reform group which was opposed to the admin-
istration of Union President William DeKoning and Secretary
Verner Sofield. In previous years, members of the reform group had
filed unfair labor practice charges against Respondent, and had them-
selves been the subject of Board cases arising out of alleged discrimi-
nation against them because of their opposition to the Union's
administration.
I The American Federation of Labor and Congress of Industrial Organizations filed a
brief as amticus curiae and argued orally in support of Respondent ' s position
148 NLRB No 74.
,680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'On February 13, 1962, Skura filed an ' unfair labor practice charge
against Respondent claiming that Respondent had discriminatorily re-
fused to refer him to available employment. Skura later withdrew the
charge when the Regional Director advised 'him that a complaint
would not issue.
In accordance with standard procedures, the Regional Director noti-
fied Respondent of his decision not to issue complaint and the with-
drawal of Skura's charge. When Sofield received the Regional Di-
rector's letter he personally prepared and delivered a letter to James
Caples, Respondent's recording secretary and chairman of the griev-
ance committee. In the letter, Sofield charged Skura with violating
section 9 of article VIII of Respondent's bylaws.2 Sofield requested
that the grievance committee call Skura before it to answer the charge.
The grievance committee subsequently notified Skura by mail of the
date set for the hearing on Sofield's complaint and advised Skura
to appear. Skura did not respond to the notice and the hearing was
postponed. When, after notice, Skura did not appear a second time, he
was tried in absentia and found guilty of violating Respondent's con-
stitution and bylaws by failing to exhaust his internal union remedies
prior to filing charges with the Board. The committee fined
Skura $200.
When Skura later attempted to pay his dues, his tender was refused
on the ground that Respondent's bylaws proscribed the acceptance of
dues from members who had fines outstanding. 'Skura then filed the
instant charge.'
The complaint alleged and the General Counsel contends that the
imposition of a fine for the filing of an unfair labor practice charge
constitutes coercion and restraint within the meaning of Section
2 Section 9 of article VIII provides
Any member who considers he has a just grievance against the Local Union must
first exhaust every means provided for in the Constitution of the International
Union of Operating Engineers before resorting to any civil or other action
However, the only provision of the International's constitution which may be construed
as authorizing a complaint against a union official for a discriminatory refusal to refer is
section 1 of article XVI which provides as follows
any Local Union , subdivision or member thereof engaging in conduct that
would interfere with the performance by the International Union or any of its sub-
ordinate bodies of their legal or contractual obligations , may be tried by the General
Executive Board upon charges filed with it, and upon conviction may be disciplined
or expelled as the General Executive Board may determine
Whether this provision was intended to authorize a member's complaint against his local
for a discriminatory refusal to refer was not made clear by Respondent Nor did Re-
spondent indicate during the hearing or in its brief what procedures were available to
Skura to process his complaint under the International constitution
3 Shortly thereafter, Skura had a conversation with Caples who persuaded him to ap-
pear before the grievance committee A new hearing was arranged and the committee
revoked its previous action . Skura pleaded guilty to Sofield ' s charge The committee
fined Skura $100 which he immediately paid He then tendered his dues which were
accepted with the payment of the fine Skura considered himself out of the reform group.
LOCAL 138, INT'L UNION OF OPERATING ENGINEERS 681
8(b) (1) (A) of the Act. Respondent contends, however, that Skura
was fined not for filing charges but for failure to exhaust his internal
union remedies, and that the imposition by Respondent of a rule requir-
ing exhaustion of internal union remedies and its enforcement by
means of a fine is a reasonable and lawful exercise of a union's right
to administer its internal affairs. Respondent further asserts that the
proviso to Section 8(b) (1) (A) 4 and the first proviso to Section
101 (a) (4) of the Labor-Management Reporting and Disclosure Act
of 1959 5 immunized the action taken against Skura. Thus, the ques-
tion before the Board is whether Respondent's conduct was beyond
the reach of Section 8(b) (1) (A) of the Act and the Board's power to
prevent the use of coercion in order to restrain employees who invoke
the processes of the Board.
Section 10 of the Act grants to the Board exclusive authority to pre-
vent and remedy unfair labor practices and, in furtherance of the
exercise of the Board's authority, confers upon any person the right to
file an unfair labor practice charge.' The right to file charges is in-
dispensable to the administration of the Act since the Board cannot
initiate its own processes and no unfair labor practice complaint can
issue in the absence of a valid charge.'
It is well settled that an employer who discriminates against an em-
ployee because he has filed charges under the Act violates not only
Section 8(a) (4) but also Section 8(a) (1).11 Not only does the Board
have the authority to protect employees who participate in the Board's
processes, but it has been held that the Board has an affirmative duty
to exercise that authority to its outermost limits to protect such
employees.9
Just as an employer violates the Act by resorting to restraint and
coercion to restrict the right of an employee to file a charge, so too, does
a labor organization infringe the rights of employees under this law
by resorting to unlawful means to prevent or restrict employees from
4 Section 8(b)(1)(A) provides:
It shall be an unfair labor practice for a labor organization or its agents-
(1) to restrain or coerce (A) employees in the exercise of the rights guaran-
teed 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 . .
5 Section 101(a) (4) of the Labor-Management Reporting and Disclosure Act of 1959 is
set forth infra
B Also see, the National Labor Relations Board, Rules and Regulations, Series 8, as
amended , Section 1029 -
Hercules Powder Company v N.L R.B., 297 F 2d 424, 433 (CA 5).
See Pacific Intermountain Express Company, 110 NLRB 96 , 108-109, enfd 228 F. 2d
170 (C.A. 8) ; Gibbs Corporation, 131 NLRB 955, enfd. 308 F. 2d 247 (CA. 5). Also
see Eugen Pedersen v. N.L R B. (Modern Linen d Laundry Service, Inc ), 234 F. 2d 417
(C A. 2)
' See Pedei sen v N L R B, supra
,682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filing charges. As such conduct by an employer violates Section
8(a) (1), so does a labor organization's use of restraint or coercion
violate Section 8(b) (1) (A).10 `
There can be no doubt that a fine is by nature coercive," and that
the imposition of a fine by a labor organization upon a member who
files charges with the Board does restrain and coerce that member
in the exercise of his right to file charges. The 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 is imposed allegedly
to enforce that internal policy. Thus, we find that the fine imposed
upon Skura herein is in clear conflict with Section 8(b) (1) (A) of the
Act and a violation of that section unless immunized by the proviso to
Section 8(b) (1) (A) or some other Federal policy.
It is true that in Wisconsin Motor 12 the Board held that the legisla-
tive history of Section 8(b) (1) (A) evidenced a congressional,intent
not to extend the protective provisions of Section 8(b) (1) (A) to the
imposition of a fine to compel compliance with internal union rules
and policies and that the proviso to Section 8(b) (1) (A) immunizes
a union from Board remedial action with respect to the enforcement
of internal union rules by means other than job discrimination. There,
unlike the instant case, the Board was dealing with a union rule which
in the circumstances of that case did not run counter to other rec-
ognized public policies and, therefore, was not beyond the competence
of the union to adopt and enforce. In that case the Board was of the
opinion that the Act did not vest it with authority to police the internal
discipline of the union short of job discrimination.13 By the rule under
consideration here, however, Respondent attempted to regulate its
members' access to the Board's processes. Considering the overriding
public interest involved, it is our opinion that no private organization
should be permitted to prevent or regulate access to the Board, and a
rule requiring exhaustion of internal union remedies by means of
which a union seeks to prevent or limit access to the Board's processes
is beyond the lawful competency of a labor organization to enforce
by coercive means. While the validity of rules requiring exhaustion of
internal union remedies has generally been recognized by the courts,
the effect of such rules is to create a defense which may be utilized
by a labor organization in an action brought against it by a member.
10 International Ladies' Garment Workers' Union , AFL-CIO ( Bernhard -Altmann Texas
Corp.) v. N L.R.B , 366 U.S 731, 737-738.
"Peerless Tool and Engineering Co, 111 NLRB 853, 857-858; Minneapolis Star and
Tribune Company, 109 NLRB 727
12145 NLRB 1097.
13 When it rule similar to that in Wisconsin Motor, supra , was enforced by means of
threatening job discrimination , the Union 's conduct was held to violate Section 8(b) (1) (A).
Associated Home Builders of Greater East Bay, 145 NLRB 1775
LOCAL 138, INT'L UNION OF OPERATING ENGINEERS 683
The rule is enforced in appropriate circumstances by the tribunal,
by requiring that the complaining•member'exhaust his internal reme-
dies before the tribunal will consider the merits of the case.14
Nor do we find merit in Respondent's claim that Section 101 (a) (4)
authorizes the imposition of a fine to compel members to exhaust their
internal union remedies. Quite the contrary, we think it is clear that
the express language of Section 101 (a) (4) in conjunction with Section
609 of the Labor-Management Reporting and Disclosure Act outlaws
the use of internal union discipline for that purpose. Thus, Section
101(a)(4) provides:
(4) PROTECTION OF THE RIGHT To SuE.-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 agency,
irrespective of whether or not the labor organization or its officers
are named as defendants or respondents in such action or proceed-
ing, or the right of any member of a labor organization to appear
as a witness in any judicial, administrative, or legislative proceed-
ing, or to petition any legislature or 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 in-
stituting legal or administrative proceedings against such organi-
zations or any officer thereof. . . .
By enacting Section 101 (a) (4) and Section 609, Congress established
a Federal policy consistent with the views of recognized scholars in
the field that union rules which would deny access to the courts are
contrary to public policy and void. Thus, Professor Cox has pointed
out that "no private organization should be permitted to restrict any
person's access to courts of justice" and that union rules which seek
to compel a member by means of discipline to exhaust his internal
union remedies "should be void as against public policy." 15
In Professor Cox's Section 101(a) (4) in its original form was
plainly intended to outlaw union rules disciplining members for bring-
ing suit against the union. While conceding that some ambiguity was
introduced into the law by the later amendments, he nevertheless urged
that the section should be interpreted as preserving the fundamental
purpose to protect union members from retaliation for bringing suit.
He points out that the section is entitled "Protection of the Right To
Sue" and that it restricts union efforts to prevent suits by members.
He argues that it would be anomalous if the proviso relating to exhaus-
14Detroy v American Guild of Variety Artiste, 286 F 2d 75 (C.A. 2), cert. denied
366 U S. 929
15A. Cox, "Law and the National Labor Policy," U of C. Monograph, Series 5, pp
103-105 (1960). Cf. Sheridan v Carjienters, 191 F. Supp 351, 355.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion were to be viewed as conferring a right to punish members who
failed to exhaust, in light of the intent of the section generally, to pre-
vent a union from restricting by coercion the right to sue . He suggests
that the proviso relating to exhaustion should not be construed as con-
ferring upon unions the right to enforce by discipline rules requiring
exhaustion (a power which Cox apparently feels that unions did not
enjoy prior to the enactment of Section 101 (a) (4) ), but as an attempt
to preserve in limited form the preexisting rule of judicial administra-
tion, which only the courts may apply by dismissing a hasty suit.
Thus, Cox concludes that Section 101 (a) (4) should be viewed as out-
lawing union rules which couple an exhaustion requirement with a
provision for discipline for failing to exhaust. We are in complete
agreement with these views.
Finally, we do not believe that we must reach a different result merely
because it is possible that Skura may have had an alternative forum for
seeking relief from the unlawfully imposed fine. As indicated earlier
in this decision, the right of access to the Board derives from Section 10
of the Act. Skura's charge involved the assertion of right over which
the Board has exclusive jurisdiction. Congress has empowered the
Board to protect employees who file charges. Under these circum-
stances, we believe that we must assume the duty to protect Skura's
rights under the Act when called upon to do so.
Accordingly, we find that Respondent violated Section 8(b) (1) (A)
of the Act by fining Skura because he failed to exhaust his internal
union remedies prior to filing charges with the Board.16
THE REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices, we will order that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Since
tine have found that Respondent violated the Act by fining Skura for
ie The Trial Examiner found that Respondent's asserted reason for the fine was a pretext
and .that in fact Skura was fined as an act of "ietahation and coercion to discourage
Skura and others from resorting to the Board " Our finding goes beyond such pretextual
grounds For even if , as Respondent contends , Skura was fined for failing to exhaust
his internal union remedies-prior to filing his charge with the Board , in our view Respond-
ent nonetheless violated the Act we find it unnecessary to reach the question, as did
the Trial Examiner , whether it would have been futile for Skura to seek to obtain in-
ternal union relief or whether the Union's procedures were adequate for such purposes.
But, we note that under the circumstances it was not unreasonable for the Trial Exam-
iner to conclude on the basis of the whole record that it would have been futile for Skura
to press his claim of discrimination within the Union, and that the Union 's internal
procedures were neither clear nor adequate . See Detroy v American Gwcld of Variety
Attests, supra
we also agree with the Trial Examiner that by fining Skura for filing an 8(b) (2)
charge Respondent impaired Skura's rights as an employee Section 8(b)(2) is an em-
ployee' s guarantee against Job discrimination by a union . Only by filing a charge can
an employee avail himself of the protection of that section Plainly, it must follow,
therefore , that the right to file an 8 ( h) (2) charge is itself an incident of employment
status. .
LOCAL 138, INT'L UNION OF OPERATING ENGINEERS 685
filing an unfair labor practice charge or failing to exhaust his internal'
union remedies prior to filing a charge, we' will order Respondent to'
reimburse and make whole Skura for the amount of the fine unlawfully
exacted from him, with interest at 6 percent per annum.l'.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby, orders that the
Respondent, Local 138, International Union of Operating Engineers,
AFL-CIO, its officers, agents, representatives, successors, and assigns,
shall :
1. Cease and desist from :
(a) Fining employees for filing unfair labor practice charges with
the Board or failing to exhaust their internal union remedies prior to
filing charges with the Board, or otherwise participating or cooperat-
ing in Board proceedings.
(b) In any like or related manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds neces-
sary to effectuate the policies of the Act :
(a) Reimburse and make whole Charles S. Skura for the amount of
the fine unlawfully exacted from him, with interest thereon at 6 per-
cent per annum, as set forth in the section of the decision entitled
"The Remedy."
(b) Post at its offices, in conspicuous places, and at all other places
where notices to members are customarily posted, copies of the attached
notice marked "Appendix." "$ Copies of this notice, to be furnished
by the Regional Director for Region 2, shall, after being duly signed by
an official representative of Respondent, be posted immediately upon
receipt thereof and maintained for a period of 60 consecutive days
thereafter. Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 2, in writing, within
10 days from the date of receipt of this Decision and Order, what
steps the Respondent has taken to comply herewith.
MEMBER LEEDOM, concurring :
I agree with my colleagues that the Respondent violated Section
8 (b) (1) (A) of- the Act by fining Skura because he filed a charge
with the Board prior to exhausting his internal union remedies. The
majority position in this case insofar as it holds that a fine imposed
17Isis Plumbing & Heating Co ., 138 NLRB 716
is In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order " the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by a labor organization, to compel compliance with a union rule, re-
strains and coerces within the meaning of Section 8(b) (1) (A) seems
to me to coincide with my dissenting views in Local 283, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
UAW-AFL-CIO (Wisconsin Motor Corporation), 145 NLRB 1097.
I also agree with the conclusion of the majority, for essentially the
reasons stated, that there is no merit to the Respondent's other as-
serted defenses. However, starting as I do with the view, expressed
in my dissent in the Wisconsin Motor case, that the proviso to Section
8 (b) (1) (A) afforded no defense to the conduct there in issue, I deem
it unnecessary to comment here on my colleagues ' reasons for distin-
guishing that case from this case for purposes of applying that
proviso.
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS , AGENTS, _
AND REPRESENTATIVES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify. you that:,
WE WILL NOT fine employees for filing unfair labor practice
charges with the National Labor Relations Board or for failing
to exhaust their internal union remedies prior to filing charges
with the Board, or otherwise participating or cooperating in Na-
tional Labor Relations Board proceedings.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of their rights guaranteed in Section 7
of the Act.
WE WILL reimburse and make whole Charles S. Skura for the
amount of the fine unlawfully exacted from him with interest
thereon at 6 percent per annum.
LOCAL 138, INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York,.
New York, Telephone No. Plaza 1-5500, if they have any question
concerning this notice or compliance with its provisions.
LOCAL 138, INT'L UNION OF OPERATING ENGINEERS 687
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, heard before Trial Examiner Benjamin B. Lipton in New York,
New York, on November 26, 1962, involves allegations by the General Counsel
that Respondent violated Section 8(b)(1)(A) of the Act.' All parties were repre-
sented and participated in the proceeding. The General Counsel and Respondent
argued orally upon the record, and each submitted a brief to the Trial Examiner
which has been given due consideration . - Respondent 's motion to dismiss is disposed
of in accordance with the findings below.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent represents in collective bargaining various of its members and other
persons employed by numerous employers engaged in the building and construc-
tion industry in the State of New York, including the Building Trades Employers
Association of Long Island, Inc., herein called BTEA.2 It was stipulated, and I
find, that the aforesaid employers 'are engaged in commerce within the meaning of
the Act 3
H. THE LABOR ORGANIZATION INVOLVED
- Local 138, International Union of Operating Engineers, AFL-CIO, herein called
Respondent, Local 138, -or the Union, is a labor organization-within the meaning
of the Act. -
III. THE UNFAIR LABOR PRACTICES
A. Issue
The-General Counsel contends,, in substance, that.Charles,S. Skura; a member of
Respondent Local 138 and one of a' "reform group"- opposed to, Respondent's cur-
rent administration, was tried, found guilty, and,fined .$200-by Respondent because
he had filed with-the Board an unfair; labor practice charge alleging that Respondent
had unlawfully refused to refer him .for employment through its- exclusive hiring
hall, and, that Respondent -thereby, restrained and coerced employees in violation
of Section 8(b)(1)(A). in' defense, Respondent; argued ' at the hearing essentially
that Skura was not fined for filing the charge with the Board,-but for violating Re-
spondent's constitution and bylaws in failing to_ exhaust his internal union remedies
before going to the Board; that Respondent, took no action against Skura until his
prior charge had been dismissed by the General Counsel;- and that therefore Re-
spondent did not punish Skura for, or inhibit him from, invoking the Board's proc-
esses. In its brief, Respondent merely pleads in its justification a provision in title I
(captioned "Bill of Rights of Members of Labor Organizations") of the Labor-
Management Reporting and Disclosure Act of 1959, viz:
Sec. 101(a)(4) PROTECTION OF THE RIGHT To SUE.-No labor organization
shall limit the right of any member thereof to institute an action in any court,
or xn a proceeding before any administrative agency, irrespective of whether
or not the labor organization or its officers are named as defendants or respond-
ents in such action or proceeding, or the right of any member of a labor orga-
nization to appear as a witness in any judicial, administrative, or legislative
proceeding, or to petition any legislature or to communicate with any legislator;
Provided, That any such member may be required to exhaust reasonable hear-
1 On July 5, 1962, the charge herein was filed and served upon Respondent, and on
October 4, 1962, the complaint was issued by the General Counsel.
2 In J. J. Hagerty, Inc., 139 NLRB 633, the Board found, inter aria, that the Building
Trades Employers Association of Long Island, Inc., consists of approximately 115 em-
ployers engaged in the building and construction industry 'in Long Island, New York;
that in the course of a year the employer members of BTEA made interstate purchases
in excess of $500,000, that BTEA negotiates and administers collective-bargaining agree-
ments for its members . and that it has exclusive hiring' contracts and arrangements with
Respondent Local'138
3 The Board has asserted jurisdiction over Respondent in prior cases, e g, J. J. Hagerty,
Inc, ibid.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing procedures (but not Vo exceed a four-month lapse of time ) within such
organization , before instituting legal or administrative proceedings against such
organizations or any officer thereof . . . . [ Emphasis supplied.]
B. Background; Respondent's history of unfair labor practices
The parties stipulated that Charles S. Skura has been a member of a so -called
reform group composed of approximately 6 union members , of about 2 ,000 mem-
bers in the local, who had consistently filed charges with the Board against the
administration of Respondent.
Official notice is taken of prior Board cases involving unfair labor practices
committed by Respondent .4
1. In Nassau and Suffolk Contractors' Association, et al., 18 NLRB 174 (Sep-
tember 1956 ),5 the Board found that Local 138 and the employers involved were
unlawfully maintaining and enforcing a closed -shop contract, requiring that the
employers "shall employ . . . only such workmen [as] are members in good stand-
ing of the Union."
2. In A. Cestone Company, 118 NLRB 669 (July 1957),6 the Board found that
Local 138 was responsible for a discriminatory refusal to hire a member (Nagle) of
the reform group because he had been a leader of _ a movement to oust Secretary
Verner V . Sofield and President William C . DeKoning of Respondent for malfeasance
in of6ce.7
3. In Local 138, International Union of Operating Engineers, AFL-CIO, et al.
(Nassau and Suffolk Contractors' Association, Inc.), 123 NLRB 1393 (June 1958),8
the Board found , inter alia, that : ( a) Respondent continued in effect the identical
closed-shop contract found unlawful in 118 NLRB 174 , and that it has in this re-
spect been in continuing violation of the Act ; (b) Respondent operated an exclusive
hiring hall with the purpose of implementing the unlawful closed -shop condition;
(c) several members of the reform group were repeatedly threatened by Respond-
ent's President DeKoning and Secretary Sofield that they would not get jobs if they
continued fighting the union administration and filing unfair labor practice charges
with the Board ; (d) Respondent through its hiring hall unlawfully denied members
of the reform group equal access to available jobs; 6 (e) Respondent was responsible
for threats of physical harm to a member of the reform group , thereby effecting
his constructive discharge ; and (f) Respondent caused work stoppages to force the
unlawful discharge and transfer of various members of the reform group.10
4. In J . J. Hagerty, Inc ., et al., 139 NLRB 633 (October 1962 ), the Board found,
inter alia, that ( a) the union-security contracts between Respondent and BTEA
and some 200 other unaffiliated employers unlawfully provide that the employer
will, upon notice from Respondent , discharge any employee who is in violation of
4 E g, N L R R v Reed h Prince Manufacturing Company, 205 F. 2d 131, 139 (C A 1),
cert. denied 346 U S. 887; 1Vix Corporation, 140 NLRB 924, Intermediate Report.
5 Enforced by a consent decree issued by the Court of Appeals for the Second Circuit,
dated May 12, 1958
e Enfd sub nom . Local 138, International Union of Operating Engineer8, AFL-CIO,
254 F. 2d 958 (C.A 2).
7 The character of the reform group, and Respondent's attitude toward it in 1956, is
described in Respondent's brief to the Board in that case, quoted at 118 NLRB 670, foot-
note 5: " . a dissident group within the union which had carried on a running fight
with the union's administrative officers. The activities of . . [the] group included three
civil actions in the Supreme Court of Nassau County against the Union . . one criminal
action against several members of the union, at least one of whom was and still is a
union official . . four proceedings before the National Labor Relations Board, two of
which were dismissed, and two still pending including this proceeding. In addition to the
above activities members of the group have made radio broadcasts , and given interviews
to the press concerning matters which are, by the I U 0 E. constitution, confidential. All
of the above activities have violated the union constitution, and have been carried on to
constantly harass the union officers . . . .
8Enfd. in material part, 293 F 2d 187 (C.A 2).
0In arriving at this finding, the Board considered among other factors that, in 1956,
several of the reformers were expelled from the union and barred from using its facilities,
including the hiring hall, for a period of 5 years
10 Charles S Skura, the Charging Party herein, was identified as one of the reform
group, at 123 NLRB 1393, 1398, footnote 14, although he was not among those found to
have been discriminated against in that case
LOCAL 138, INT,L UNION OF OPERATING ENGINEERS 689
runion rules,ll and that preferential treatment would be , given . union members in
regard to physical examinations , shifts, sand payment of wages;- ,(b)-,Respondent
>operated a discriminatory hiring and,.referral - system, giving preference to union
members over nonmembers ; (c) Respondent made unlawful , threatsto certain 'mem-
bers of the reform ,group , not to refer them through its hiring hall; 13 '(d) and Re-
spondent discriminatorily denied referral to four members of the reform group
because of their opposition ' to Respondent's current administration and their filing
-unfair labor ' practice ,charges with the-Board : In its remedy , .the Board noted with
-particular concern that , despite its past orders and the enforcement of the court
• of ' appeals , Respondent has continued and repeated the same unlawful conduct,
,e.g., operating ' a discriminatory hiring and referral system and discriminating in job
referrals against members of the reform group. As part of its` order, therefore;
-the Board invoked "special remedial measures" by ordering, with appropriate
detail, that Respondent set up a nondiscriminatory hiring and referral system in
.conjunction with the Board's Regional Director and subject to his supervision and
- -.approval.
C. Relevant )facts in the present record
Skura is an operating engineer , an employee under the Act, and as noted, one
of the union members - of Respondent in the reform group . Respondent operates
a'hiring hall from which it furnishes applicants for employment to the employers
,described ,in section I, above . On February 13, 1962 , 13 Skura ' fled a charge with
the Board asserting that Respondent violated the Act by refusing to refer him for
employment through its hiring hall. -
By letter dated March 8 , the General Counsel notified the parties -that a complaint
would not issue on Skura 's charge . On Sunday , March 11 , at Respondent 's offices,
-Verner V. Sofield , recording-corresponding secretary of Respondent , personally typed
.and handed a letter to James A. Caples, administrator of Respondent's pension fund
..and "chairman of the grievance board;" stating as follows: 14
Mr. JAMES CAPiES,
Chairman,
Grievance Committee.
MARCH 11, 1962.
DEAR SIR AND BROTHER : Please be informed that Charles Skura has violated
Section 9, of Article VIII , of the By-Laws of this Local Union.15
We request that you call Charles Skura before the Grievance Committee in
'order that he can be heard regarding this violation.
Fraternally yours, i -
(S) VERNER V. SOFIELD,
.. ,Secretary.
-Thereafter , 1Skura received the following • letter, - „ ,
- MARCH 12, 1962.
CHARLES , SKURA, r•' - f730 Charter Court..
Uniondale, L.I., N.Y.
DEAR SIR & BROTHER : You are hereby instructed to appear before a meeting of
the GRIEVANCE- COMMITTEE ofthis Local,,Union on Wednesday , March 12,
• r u :7 '
1The contract clause stated ,: "-In:case any .employee.becomes ,ineligible under the rules
of the Union and the.employer 'is notified , then , the, employer shall promptly discharge such
-employee.' ,
12 For example, Respondent ' s President DeKoning told one reformer , "Well if you stop
all this . . . mess you have been causing, and all the trouble , running to the Senate, that
goddamn NLRB ; to the radio and television and the papers What the hell have any of
them done for you? I am still here ; I am the boss . . . If you all sit back and shut
up, ,everything will go all right. You will have no trouble finding work. Otherwise, we'll
,keep you out ' of work as long'as we want." -
13 All dates are in the year 1962 , unless `otherwise specified.
'- Caples testified that this was the only letter he received from Sofield "that day." The
date of March 11 on the letter plainly shows an erasure, which was not explained Caples
repeatedly answered that he did not "recall " whether , between February and Apu1, he
-had received any other letter on the suliject from ''Sofield
15Article VIII, section 9 of the bylaws , provides that.
Any member who considers he has a just grievance against the Local Union must
first exhaust every means provided for in the Constitution of the International Union
of Operating Engineers before resorting to any civ i l or other action
760-577-65-vol. 148-45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1962, at 8: 00 P.M ., at this Local Union's Headquarters, withsreference to a
complaint lodged against you by a member of this 'Local Union. Failure to
appear will result in further procedure against you.
Very truly yours,
-(S) CHARLES BORTZFIELD,
`Secretary, Grievance Committee.
Skura made no appearance before the grievance committee on March 21, and
thereafter he received notice of a rescheduled meeting for April 18.
On April 18, the grievance committee met without the presence of Skura. As
substantially supported in the testimony, the minutes of the meeting ;suliitted by
the grievance committee to the executive board indicate, in pertinent part:''
To: Executive Board
Local 138, 138A & 138B
Nassau & Suffolk Counties
FROM: Grievance Committee
SUBJECT: Minutes of Committee Meeting Held April 18, 1962
A letter was read from Bro. Verner V. Sofield, Recording-Corresponding
Secretary, Local 138, in behalf of the Executive Board of Local 138, 138A &
138B, International Union of Operating Engineers. In this letter, a complaint
was made against Bro. Charles Skura, Book #242154, for violation of Sec. 9,
Article VIII of the By-Laws of this Local Union as follows: on about Feb. 13,
1962, Bro. Charles Skura did file with the National Labor Relations Board a
complaint against this Local Union claiming the Union practiced discrimination
in a job assignment. In summary, the complaint against Bro. Skura is that he
failed to exhaust every possible means provided for in the Constitution of the
International Union of Operating Engineers before resorting to any other action
in reference to a grievance that he believes just.
After a lengthy study and deliberation, a motion was made, seconded and
carried that Bro. Charles Skura be found guilty as charged. A second motion
was made, seconded and carried that Bro. Skura be fined $200.
Respectfully submitted,
(S) CHARLES BORTZFIELD,
Secretary, Grievance Committee.
Skura then received the following letter:
APRIL 26, 1962.
CHARLES S. SKURA, Union reg. #242154,
730
_
Charter Street,
Uniondale, L.I., N.Y.
DEAR SIR AND BROTHER ; On April 18, 1962 at 8:00 P.M. the Grievance Com-
mittee of Local 138, 138A, 138B International Union of Operating Engineers
sat in session to hear a complaint made against you by Brother Verner V.
Sofield for violation of Sec. 9 of ARTICLE VIII, of the By-Laws,of this Local
Union.
The fact that you failed to appear at that time, and also on March 21, 1962,
after having been duly notified, resulted in your case being heard in absentia.
After carefully reviewing the complaint, and there being no contradicting
testimony or statement from your-self or other witnesses , the committee had
no alternative but to deem you guilty of the aforementioned violation and'
assess a Fine of Two Hundred Dollars ($200.00).
Fraternally yours,
(S) James A. Caples,
JAMES A. CAPLES,
Chairman, Grievance Committee.
Skura did not pay the fine. Some weeks later,,he went to the office of Local 138
to look for work and at the same time tendered his dues. He was told that his
dues would not be accepted until the fine was paid, in accordance with instructions
issued in his presence by Respondent's treasurer, James Duffy. Thereafter, he
mailed to Respondent his dues book together with a check for his dues payment.
On July 3, he filed the instant charge with the Board.16
ie Skura had not formally sought an internal union remedy before filing his charge with
the Board
LOCAL 138, INT'L UNION OF OPERATING ENGINEERS 691
The following letter was received in due course by Skura from Edward X Revere,
who is also a member of Respondent's executive board
JULY 10, 1962
Mr CHARLES SKURA,
730 Charter Court,
Uniondale, New York
DEAR SIR AND BROTHER -We are in receipt of your dues book, together with
a check in the amount of thirty dollars ($30 00), in payment of your dues
The International Constitution states as follows -ARTICLE XXIII, Sub 7,
Section (f) All fines legally levied or imposed shall be charged by the Finan-
cial Secretary against the member from whom due and must be paid by the
member involved to the Financial Secretary within thirty (30) days
Wherever a fine is imposed upon a member his sentence shall automatically
be read to incorporate the following provisions Members thirty (30) days in
arrears in the payment of fines shall be denied voice and vote in their Local
Union and thereafter until the fine is paid no dues owed by such members
can be received or accepted by the Local Union Members (60) days in arrears
in the payment of fines shall be removed from committees, barred from meet-
ings and suspended from membership Members ninety (90) days in arrears
shall be removed from office Members six (6) months in arrears shall be
expelled from membership
The By-Laws of this Local Union also state, under Section 9
Any member who considers he has a just grievance against the Local Union
must first exhaust every means provided for in the Constitution of the Interna-
tional Union of Operating Engineers before resorting to any civil or other action,
Enclosed herewith, please find your dues book, together with returned check
Fraternally yours,
(S) EDWARD X REVERE,
Financial Secretary
Eric -2
A week or two later, in the course of a telephone conversation, Skura agreed to
an offer of Caples, grievance committee chairman, to arrange a meeting for Skura
to appear and be heard before the executive board or the grievance committee On
August 3, following receipt of a letter from Respondent requesting his appearance,
Skura came before the executive board and had discussion with President DeKoning
and other members of the board On August 15, the grievance committee met with
Skura in attendance As substantially supported by the testimony, the minutes sub-
mitted to the executive board reflect the following action of the grievance committee
TO Executive Board
Local 138, 138A & 138B
Nassau & Suffolk Counties
FROM Grievance Committee
SUBJECT Minutes of Committee Meeting Held August 15, 1962
Chairman Caples addressed the Committee and informed them of the findings
of the Executive Board in regard to the case against Bro Charles Skura,
Book #242154
A motion was made and seconded to rescind the previous action of the
Grievance Committee in regard to the case of Bro Charles Skura Motion
carried
Bro Charles Skura appeared before the Committee and the complaint against
them was explained both to him and to the new members The original com-
plaint (failure to appeal his case through the Union before going to the
N L R B ) has already been explained in detail in previous minutes Bro
Charles Skura pleaded guilty A motion was made and seconded to fine Bro.
Skura $100 Motion defeated
A motion was then made to suspend all fines against Bro Charles Skura and
directed him to go before the Executive Board and apologize for his actions
This motion withdrawn
Motion was then made and seconded to fine Bro Charles Skura $100 and
directed him to apologize to the Executive Board for his past actions against the
Union Carried
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bro Charles Skura was informed of the findings of the Committee by the
Chairman and advised of his rights 17
Respectfully submitted,
CHARLES BORTZFIELD,
Secretary, Grievance Committee
Skura mailed to Respondent the $100 fine together with his dues, which Respond-
ent now accepted A few weeks later, Skura again appeared before Respondent's
executive board, made his apologies, and stated he will not cause Respondent any
more trouble Skura testified that after he "made amends" he considered himself
out of the reform group 18
Certain provisions in Respondent's bylaws and constitution,19 in addition to those
already indicated above, may be considered as relevant to the issues
By-Laws
Art VIII, Sec 2
All members shall be in good standing in order to work or obtain any bene-
fits or the services from the Local Union
Art VIII, Sec 5
Fines and assessments imposed on members must, in all cases, be paid within
(30) days after due trial The Financial Secretary cannot and shall not collect
dues until all outstanding fines and assessments against a member have been
paid
Constitution
Art XVII, Sec 4
No suit or other action at law or equity shall be brought in any court and no
proceeding shall be initiated before any administrative agency by any member,
officer or subdivision of the International Union of Operating Engineers until
and unless all rights, remedies and reasonable provisions for hearing, trial
and appeal within the Organization shall have been properly followed and ex-
hausted by the member, officer or subdivision complaining This provision
shall only require resort to internal remedies for a period not exceeding four
(4) months Any member violating this provision, shall, in addition to the
penalties prescribed in the Constitution and Ritual, be subject to a fine equal
to the full amount of the costs incurred in the defense of any such action by
the Union, together with such costs additional as the court may fix or assess
against said member
* * * * * * *
Art XXIII, Subdiv 7, Sec (c)
No member shall be in good standing unless he has paid all current dues to
the Local Union as evidence by his dues book stamps
The evidence adduced by Respondent is not materially at variance with that of
the General Counsel Certain additional testimony elicited by Respondent from
its witnesses concerns the functions of the grievance committee and the internal
union procedures in handling complaints and disciplinary action against members,
as was involved in the union trial of Skura The purpose of such testimony was not
made clear by Respondent In substantial respects, the testimony was sketchy, un-
documented, and not related to the trial procedures outlined in Respondent's con-
stitution and bylaws , in evidence In its brief , no analysis or contentions are made
by Respondent concerning this evidence
19 Caples testified he orally informed Skura, after the committee action, that it was going
to be "the recommendation of the committee to the executive board that he be fined $100
and to appear before the executive board and apologize for his action in bringing discredit
to the local union" He said he also told Skura that if he way not satisfied with the
recommendation of the grievance committee, he could iippeal to the executive board, and
in turn to the full membership, and the International
19 It is noted that Respondent's Secretirv Sofield the union complainant igiinst Sl.ura,
did not specify in his letter of March 11, supra, the manner in which Slur t allegedly i io
lated union rules, and he did not appear at the grief ance committee meetings nor other-
wise submit any evidence in support of his charge against Skura while not decisive of
the issues herein, it does not appeir that the procedure followed by Respondent in its
disciplinary trial of Skura comported in general with the provisions and trial procedures
outlined in Respondent's constitution, article VIII, subdii 7, sec (d), (1), et seq , and
bylaws, article VIII, sec 1
19 The constitution of Respondent Local 138 is, in effect, that of the International
LOCAL 138, INT'L UNION OF OPERATING ENGINEERS 693
It was testified, among othei things , 'that 'the' grievance committee has no power to
impose fines, that it was appointed merely to hear complaihts and, make recom-
mendations to the executive board , and 'that the ''executive 'board acts upon the
recommendations and reports to - the membership att the ' regular :meetings of the
local. Respondent 's witnesses failed to show, despite the General Counsel 's efforts,
whether the action of the grievance committee oh April 18 in levying a fine of $200
-against Skura was approved by the executive board or by the membership. How-
ever, Secretary Sofield , a member of the 'executive ' board , testified that the griev-
ance committee report of August 15 rescinding its prior action and imposing a
new fine of $100 was accepted by the executive board at its meeting early in Sep-
tember, and that the minutes thereof were read , without 'objection, at the regular
membership meeting held at the end of 'October. '
At the hearing, Respondent argued ' that the $200 fine imposed ' on Aril 18 was
effectively rescinded and nullified on August 15, and that the new fine of $100 could
-have had no coercive effect ' upon Skura because he willingly subjected himself to the
union jurisdiction and was satisfied with the result . The contention is rejected as
devoid of merit and, indeed , verging on the frivolous . If the April 18 fine was
illegally coercive , Respondent could not by such a retroactive device remove its
coercive impact; and the essential effect of Respondent 's August 15 ' action, which
was no more than a continuation of the earlier proceeding against Skura, was merely
to'reduce the amount ' of the fine . Nor is there any question , for purposes of this
case, that Skura was in fact and effect levied a fine of $200 on April 18, for which
action Respondent is fully responsible . The finality of the $200 fine, with its im-
mediate ramifications , was pointedly brought home ' to Skura in the April 26 letter
from Caples , in Respondent's refusal to accept his dues at the union hall, and in
the July' 10 letter from an executive board member, Revere , returning his proffered
dues, all as related above.'
Respondent also appears 'to contend , as a factor in its defense , that Respondent's
disciplinary action against Skura was not initiated until after Skura's earlier charge
had been dismissed by the General Counsel. But the merit or lack thereof in
Skura's formal ' charge with the Board is wholly immaterial 20 If, as will be con-
sidered infra , it was unlawfully coercive for Respondent to impose the fine against
Skura relating to his filing of an unfair labor practice charge, the effects upon Skura
and other employees of reprisal and inhibiting future filing of charges would be the
same, irrespective of the merits of the charge or the currency of the Board
proceeding.al
'D. Concluding findings'
1. Relying upon article 9, section 2, of its bylaws and -upon the proviso to sec-
tion 101 ( a)(4) of the Landrum-Griffin Act, Respondent insistently takes the posi-
tion that it did not fine Skura because he filed an unfair labor practice charge, but
because he violated Respondent 's rules in failing to exhaust internal union remedies
before going to the Board . However , in light of all the evidence , as described,
I am unable to accept Respondent's posture of the case as reflecting its actual motive.
The internal trial procedures of Respondent , such as may exist , have never been
invoked by a member seeking to remedy his individual complaint against the local
itself. I do not believe that Respondent could, even assuming that it would, pro-
vide reasonable hearing procedures for consideration of the type of discrimination
complaint which Skura had against Respondent . If his charge of discrimination
were meritorious , it could not be expected that Skura would obtain from Respondent
an adequate remedy, as would be afforded by the Board . Skura was a member
of the reform group . Respondent 's intense hostility toward this group, displayed'in
various forms of discrimination , threats, and other reprisals, has been amply demon-
strated in four prior unfair labor practice cases, finally moving the Board 'to take
"special remedial measures ." An avowed objective of Respondent was to punish
the reformers for filing charges with the Board . The union proceeding against
Skura leading to the imposition of the fine was initiated by Secretary Sofield, who
was personally in the forefront of Respondent 's unlawful efforts to halt the'activities
of the reform group. Considering in addition the hasty drafting of Sofield 's letter
of March 11 , following the General Counsel 's dismissal of Skura's prior charge, and
the loose procedures surrounding Skura's trial. I am convinced that Respondent engi-
neered the trial against Skura within the local under the color and subterfuge of in-
20 The General Counsel ' s refusal to Issue' a complaint 'on the charge is in any case not
a disposition on the merit
21 Under Respondent ' s theory herein , Skura would again be subject to a fine or ,other
discipline for filing the instant charge
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
yoking a union rule requiring exhaustion of internal remedies . Respondent's real
purpose , I find , was to take the reprisal against ,Skura , as one of the reformers, for
the filing of yet another unfair labor practice charge against Respondent and to
deter the reform group from "running to the Board" in the future 22
2. Section 8(b) (1) (A) prohibits a labor organization from restraining or coercing
employees in the exercise of the rights guaranteed under the Act, with the significant
proviso, however, "That this paragraph shall not impair the right of a labor organiza-
tion to prescribe its own rules with respect to the acquisition or retention of
membership therein."
The proviso to Section 8(b) (1) (A) has generally been construed by the-Board
and the courts as exempting from the application of the Act a union's control over its
internal affairs in its right to adopt and enforce by appropriate means, including
disciplinary action, the rules governing its own membership.23 Thus, it has been
recognized that the Labor Management Relations Act (as now distinguished from
Titles I to VI of the Landrum-Griffin Act of 1959) does not enter the field of pro-
tecting individuals in their character as union members,24 but only in their rights as
employees.
211 would reach the same result in the case even if Respondent's reason for fining Skura
was his failure to exhaust the internal union procedures of Respondent before filing his
charge with the Board The exhaustion-of-remedies doctrine has long existed in courts,
inter alma, in connection with common law suit, by members against their unions How-
ever, there are numerous exceptions to it, application, principally on equitable grounds.
When the doctrine is applied, the member's action against his union is dismissed as pre-
mature for failure first to exhaust internal procedures Recognition of the exhaustion
doctrine is reflected. in section 101 (a) (4),, quoted siipra, on which Respondent relies,
The language- expressly` encompasses administrative proceedings, which is inclusive of
Board proceedings, as shown in the legislative history. So far as appears from research,
exhaustion of internal remedies has thus far never been required by the Board in any of
its cases (See Cox, "Labor Reform Act of 1959," 58 Mich. L Rev. 819, 840, April
1960; and remarks of Representative McCormack, 2 Leg. Hist LMRDA 1666 ) Section
101(a) (4) is part of a "bill of rights" for union members enacted in 1959 and clearly
was not intended to restrict existing rights and remedies of members vis-a-vis their labor
organizations' As the legislative history plainly reveals, it was the purpose of the
proviso to section 101 (a) (4) to leave the doctrine of exhaustion of remedies as it then
existed, with its many qualifications, and merely to limit the time for "exhaustion" to a
maximum of 4 months Representative, Griffin, a sponsor of the legislation, stated that
the proviso to section 101(a) (4) "'was 'not intended to limit in any way the right of a
union member . . . to file unfair labor practice charges against a union, or the right of
the NLRB to entertain such charges, even though the 4 months may not have elapsed "
(2 Leg. Hist. LMRDA 1811(3) ; and to the same effect, see statement of then Senator
Kennedy, at 2 Leg. Hist. LMRDA 1432(3) ) Representative Griffin also indicated that
"by use of the phrase `reasonable hearing procedures' in the proviso, it should be clear
that no obligation is imposed to exhaust procedures where it would obviously be futile or
would place an undue burden on the union member" (2 Leg Hist'LMRDA 1811(3).)
Section 603(a) of the same enactment states that "except as explicitly provided to the
contrary, nothing in this Act shall take away any right or bar any remedy to which mem-
bers of a labor organization are entitled under . . other Federal law . .11
The legislative intent is clearly indicated that union members have- the right to file
charges with the Board without regard to the 4-month limitation period Nothing in the
Landrum-Griffin Act, as can be reasonably construed, entitles it union with impunity to
impose a fine against a member for failing to exhaust union procedures before filing a
charge with the Board The imposition of such a fine would necessarily have a restrain-
ing effect on filing of such charges by union members Wrongfully imposed, the fine is
tantamount to coercion for filing the charges. For a number of reasons, including Re-
spondent's indicated animus, it would have been futile for Skura to seek an internal union
remedy before filing his charge. Concerning the type of complaint which Skura had
against Respondent-discrimination In its hiring hall-the exhaustion doctrine would not,
in my opinion, have applicability In a Board proceeding. Moreover, it is apparent that
the "reasonable hearing procedures" specified in the 101(a)(4) proviso would and could
not be made available by Respondent. (For a construction of the proviso to section
101(a) (4), see Detroy v. American Guild of Variety Artists, 286 F. 2d 75 (C.A. 2), cert.
denied 366 U S. 929)
28 E g., International Typographical Union (American Newspaper Publishers. Assoala-
tion), 86 NLRB 951, enfd. 193 F. 2d 782, cert. denied 344 U.S. 812; National Maritime
Union, et al . (The Texas Company), 78 NLRB 971, enfd. 175 F. 2d 686 (C.A. 2), cert.
denied 338 U S 954, Minneapolis Star R Tribune Company, 109 NLRB 727
24lnternational Association of Machinists, et al v Gonzales, 356 U S 617 (1958).
LOCAL 138, INT'L UNION OF OPERATING ENGINEERS 695
Therefore, the essential issue posed is whether , in the circumstances of this case,
Respondent is immune from the sanctions of the Act for disciplining Skura with
a fine because he had filed an unfair labor practice charge against Respondent. As
concerns the right of employees to file charges, to testify, and otherwise to participate
in Board processes , it is firmly established that the Act affords protection in the
exercise of such right against coercion and interference by employers and union 25
The more difficult question is whether a fine is in a privileged category because it
assumes the form of an internal union procedure and is characteristically a levy
against a union member. The answer, in my opinion , is that a fine has no absolute
immunity under the Act, and that the question must turn , under the facts of each
case , on.whetherdhe individual who is fined has been affected in his employment status
or in his statutory rights as an employee.
Skura came to the ' Board , as he and others similarly situated are encouraged to do
in the public interest, to invoke the protective processes of the Federal law.26 For
this conduct , Skura has been penalized by Respondent in the form of a union fine,
but nonetheless an act of retaliation and coercion to discourage Skura and others
from resorting to the Board . It needs no elaboration that the Board has a peculiar
and overriding concern to safeguard its processes , as a basic matter of public policy.
Unless there is a clear congressional mandate to the contrary , the Board must utilize
every resource at its command to protect from reprisal persons who thus rely upon
its facilities to seek vindication of their statutory rights.27 I do not find such a clear
mandate in the proviso to Section &(b) (1) (A). The meaning of this proviso should
be interpreted in the light of the purpose of the Act as a whole and to promote its
successful administration.28 The statutory purpose is reflected in Section 8(a)(4),
wherein employees are accorded protection against discharge by employers for filing
charges or giving testimony under the Act. And Congress clearly intended to impose
on unions` the same restrictions which were imposed upon employers regarding
employees' rights.29
Accordingly, I would construe the Section 8(b) (1) (A) proviso, on balance, as
subordinate to the rights of employees to file charges with the Board , as broadly
protected in Section 7, and to the Board 's inherent power to safeguard its processes.
My conception of the law is that Skura had filed his unfair labor practice charge
against Respondent in the status of an employee within the meaning of the Act,
rather than as a union member , and therefore the fine levied by Respondent in reprisal
materially affected Skura in his rights as an employee , thereby removing the ap-
plicability of the proviso to Section 8 (b) (1) (A).
As a member of the reform group, Skura has been exposed to numerous threats by
Respondent of job discrimination for his "reform" activities and for filing charges
with the Board , and Respondent has repeatedly practiced discrimination against
members of this group as well as against nonmembers of the Union. For filing
charges, Skura was disciplined by Respondent, and upon his failure to pay the im-
posed fine , his tender of regular dues was refused . Under Respondent 's constitu-
tion and bylaws, a member's failure to pay an outstanding fine precludes acceptance
of his dues, with the consequent effect that he immediately loses his good standing
in ,the Union and, after 6 months, he is expelled . It is also specifically provided in
Respondent 's laws that a member must be yin good standing in order to work and ob-
tain any benefits from Respondent . Under contracts with hundreds of employers in
the area ,.,Respondent operates an exclusive hiring hall from which members obtain
their work referrals.
25E g , Hilton Credit Corporation, 137 NLRB 56; Shipioi ecking, Inc, 136 NLRB 1518;
M. Eskin t& Son , 135 NLRB 666; Local 'Union No 450, International Union of Operating
Engineers, AFL-CIO ( Tellepsen Construetson Co.), 122 NLRB 564, enfd. In material
part , 281 F 2d 313 ( C.A 5) ; Local 294, International Brotherhood of Teamsters
( Valetta Motor Trucking Co.), 116 NLRB 1842; Textile Workers Union of America, et al.
(Personal Products Corporation), 108 NLRB 743
21 "Clearly inherent in employees statutory rights is the right to seek their vindication
in Board proceedings." Better Monkey Grip Company, 115 NLRB 1170; Hilton Credit
Corporation , 137 NLRB 56
xr Cf. Eugen Pedersen v. N.L.R B. ( Modern Linen t& Laundry Service, Inc ), 234 F. 2d
417 (C.A. 2)
28Mastro Plastics Corp., et al . v. N.L R.B., 350 U.S. 270, 285 ; Universal Camera
Corporation v. N L.R B., 340 U.S 474, 479 ; N.L.R B. v Greensboro Coca Cola Bottling
Company, 180 F 2d 840 . (CA. 4).
28International Ladies' Garment Workers' Union, AFL-CIO v. N.L.'R.B. and Bernhard-
Altmann Texas Corp., 366 U.S. 731, 738.
696 DECISIONS OF NATIONAL LABOR RELATIONS` BOARD'
-' In M. A. Roberts & Co.,30-the Board'held that a union violated Section 8(b) (1) (A)'
by threatening disciplinary action- 'against, certain members for' having -filed unfair
labor practice charges against the union. ' It was inferred that * the -union's threat
reasonably carried with it the threat of loss of union membership, which, under
the hiring arrangements in effect,, could readily -lead' to loss of opportunities for"
employment through the union. - In Buie Building 'Materials Co -31 a' union- agent's
threat to a member that he would lose his 'good standing in the union-if he gave -a
statement to Board-agents violated Sectionr'8(b)('1)(A). In view of the evidence
showing that the ilnion'$ declared policy `was- to exclude nonmembers from 'work
'and that the union wielded the power to enforce this policy, it&was held that the union
agent had'conveyed a clear warning that the lOss-of union status would result, in loss of
future job opportunities. In Roadway Express, Inc.,32 -the union threatened and took
reprisal against employees for exercising the privilege of questioning the wisdom of
"the union as their bargaining representative. Among other things, the union deprived
a member of his union book where the union's bylaws required all members to-carry
their books with then at- all times while working. This was- held to be a form of
coercion against the member designed to affect his employment,, in violation of Sec-
•tion-8(b)(1)(A)• " 1
In light of the foregoing precedents, and numerous others on the same principle,33
I reach .the conclusion that the fine which Respondent, imposed, upon Skura for filing
charges with- the Board was intended as an implementation of Respondent's threats
of employment discrimination against members' of the reform "group, ,and that' Re-
spondent's disciplinary action reasonably carried the"•threat to Skura of -loss of good
standing and, membership in the Union, which, by, reason of Respondent's bylaws
and its operation- of an exclusive hiring hall,'' directly placed in'" jeopardy.-Skura's
opportunities ,for' employment. Accordingly, I' find that Respondent violated, Sec-
tion 8 (b) (1") (A) of the Act, as alleged.
IV. THE EFFECT OF THE UNFAIR 'LABOR ' PRACTICES UPON COMMERCE
The activities of-Respondent set forth in section III, above, occurring iii' onnection•
with' the operation of the employers described in' section. 1, above,, have a close,
intimate, and,substantial relation, 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. , • ' { - , ,
V. ,THE REMEDY, - , - • ,
Having found that Respondent has engaged in certain'unfair labor practices, I will
recommend that it cease and desist therefrom, and' that it take certain "affirmative
11action designed to effectuate the policies of the Act.
and,
It has been found that Respondent unlawfully restrained and coerced- Skura by im-
posing ,beenfi e upon him for filing charges with the' Board. It will- therefore be
recommended that Respondent reimburse and make whole Skura for the amount of
the fine unlawfully exacted from'him, with interest at 6 percent per annum in ac-
cordance with established policy.34 ' ' '
As the unfair labor practices committed by the Respondent herein was a_continua-
reviously made bytion and implementation of unlawful' threats and discriminations previously-
Respondent in reprisal against members of the reform group, of which Skura
was one, and in view of Respondent's demonstrated proclivity to, violate-basic pro-
visions of the Act, it will be recommended that a broad cease-and-desist order again,
be issued against Respondent.35
30 Local 1,01 , International Brotherhood of Boilermakers etc ' (M. A. Roberts & Co ),
126 NLRB 832, 834
"'International Association of Bridge, Structural & Ornamental Iron Workers, AFL-
CIO, Local Union No. 84 (Buie Building Materials Co ), 112 NLRB'1059
82108 NLRB 874. "
ss Bordas • & Co, at al, 125 NLRB 1335; United Stone and Allied Products Workers of'
America, Local No 24. AFL-CIO (Gibsonburg Lime Products Co ), 121 NLRB 914 • Fox
Midwest Amusement Corp. et al, 98 NLRB 699 Spector Freight System Inc. at al.,
123 NLRB 43, enfd 273 F 2d 272 (C A 8) And see Local 553. International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America ( Miranda Fuel
Company, Inc), 140 NLRB 181
a4 Isis Plumbing & Heating Co ., 138 NLRB 716 ; Seafarers International Union of
North America, Great Lakes District, AFL-CIO , 138 NLRB 1142.
85 N.L.R.B. v. Express Publishing Co., 312 U. S.. 426 ; N.L.R.B. v. Entwistle Mfg. Co.,
120 F. 2d 532 (CA. 4).
SCHREIBER TRUCKING COMPANY, INC. 697
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAw
1. Respondent is a labor organization within the meaning of Section 2(5) of the
.Act.
2. By imposing a fine against Charles S. Skura, in the circumstances of this case,
because he had filed an unfair labor practice charge with the Board , Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication.]
Schreiber Trucking Company , Inc. and International Associa-
tion of Machinists , Automotive Mechanics Lodge 1060, AFL-
CIO and International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local 30, Party to the
Contract. Case No. 6-CA-0831. August 31, 1964
DECISION AND ORDER
On June 5, 1964, Trial Examiner Louis Libbin issued his Decision
in the above-entitled proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Decision. Thereafter,
the Respondent and the Party to the Contract filed exceptions to the
Decision, and supporting briefs, while the General Counsel filed cross-
exceptions to the failure of the. Trial Examiner to recommend certain
remedial action, together with a brief in answer to the Respondent's