Office Employees Local 251 (Sandia National Laboratories)

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1417 (N.L.R.B. 2000)

OFFICE EMPLOYEES LOCAL 251 (SANDIA NATIONAL LABORATORIES) 1417
Office and Professional Employees International Un-
ion, Local 251, AFL–CIO (Sandia Corporation
d/b/a Sandia National Laboratories) and Mary
Ann Mitchell-Carr and Mildred G. Smith.
Cases 28–CB–3902, 28–CB–3902–2, and 28–CB–
3924
August 25, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, HURTGEN, AND BRAME
On August 23, 1994, Administrative Law Judge James
M. Kennedy issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions, as modified below, and to adopt
the recommended Order.
This case presents the issue of whether the Respondent
violated Section 8(b)(1)(A) of the Act when it imposed in-
ternal union discipline against its members, including
elected officers, for opposing the policies of the Respon-
dent’s president. For the reasons discussed below, we find
that the Respondent did not violate Section 8(b)(1)(A).
I. FACTS
In February 1991, the Respondent held an internal un-
ion election in which William McLendon was elected
president. Charging Party Mary Ann Mitchell-Carr was
elected vice president; Charging Party Mildred Smith
was elected secretary-treasurer; and members Robert
Vaughan and Bernardino Herrera were elected to trustee
positions. Beginning in 1992, secretary-treasurer Smith
had numerous arguments with McLendon regarding the
finances of the Union and “where the monies were being
spent.” Mitchell-Carr had similar problems with
McLendon, particularly his handling of the disbursement
of a $58,000 check from the International Union, which
McLendon caused to be endorsed directly to a law firm
in settlement of a lawsuit against the Respondent.
On February 1, 1993,1 the Respondent’s executive
board directed McLendon to gather certain information
concerning the disbursement of the $58,000 check. On
February 4, McLendon and Mitchell-Carr were re-elected
as president and vice president, respectively, and
Vaughan was re-elected to a trustee position. Mitchell-
Carr testified that on February 5, she congratulated
McLendon on his election and told him that she felt they
could work together but that she didn’t “want to be held
responsible for monies that cannot be accounted for.”2
According to Mitchell-Carr, McLendon replied that “[i]f I
go down, you’re going down with me.” Mitchell-Carr
responded that, in that case, she would seek legal counsel.

1 All dates hereinafter are in 1993 unless stated.
2 McLendon did not testify.
On February 10 the Respondent’s executive board
passed a motion by Mitchell-Carr and Herrera to request
an investigation or audit of the Respondent’s financial
records by the Department of Labor. At a general mem-
bership meeting on February 11 the membership ap-
proved the motion. The membership also approved a
motion by Herrera establishing that the Respondent’s
president make no financial commitments without the
approval of the executive board.3
On March 10 Mitchell-Carr presented to the Respon-
dent’s executive board a petition to impeach McLendon.
The signatures of Mitchell-Carr, Vaughn, Smith, and
Herrera were near the top of the petition’s signature list.
The gravamen of the petition was that McLendon had not
adequately explained the circumstances pertaining to the
disposition of the $58,000 check.4
On April 7 McLendon presented to the executive
board his own petition to impeach Mitchell-Carr. This
petition alleged that Mitchell-Carr had improperly called
special membership and executive board meetings con-
trary to the provisions of the Union’s constitution and
bylaws; had made unauthorized expenditures for the spe-
cial board meetings; had improperly publicized matters
pertaining to the settlement underlying the $58,000
check; and had slandered McLendon and others. Shortly
thereafter, impeachment and disciplinary petitions alleg-
ing similar misconduct against Smith, Vaughn, and
Herrera were presented to the executive board.
On April 27 the Respondent’s trial board voted to remove
Mitchell-Carr from the office of vice president and to expel
her permanently from the Union. Thereafter, the trial board
voted to remove Vaughn from the elected office of trustee
and to suspend his membership for 5 years, to suspend
Herrera from membership for 5 years, and to expel Smith
permanently from the Union. Mitchell-Carr, Vaughn,
Herrerra, and Smith are employed by Sandia National Labo-
ratories, with which the Respondent has a collective-
bargaining relationship, but there is no contention that the
internal disciplinary action taken against them by the Re-
spondent affected their employment with Sandia.
II. THE JUDGE’S DECISION
The judge dismissed the complaint. Although he
found that McLendon’s petition to impeach Mitchell-
Carr was “transparently in retaliation” for the Mitchell-
Carr faction’s petition to impeach him, he concluded that
the activities engaged in by these individuals did not per-
3 According to the uncontradicted testimony of the Respondent’s secre-
tary-treasurer, Patricia Tafoya, an audit by the Department of Labor ulti-
mately revealed no irregularities by McLendon or by the Respondent.
4 The petition also mentioned allegations that McLendon had cir-
cumvented the collective-bargaining agreement with respect to job
bidding, had created a hostile environment for some elected officials,
had intimidated members and acted unprofessionally, and had inter-
fered with the Union’s election process.
331 NLRB No. 193
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1418
tain to employee mutual aid or protection under Section 7.5
The judge also found that Section 8(b)(1)(A) did not reach
the union membership issues because the employer-
employee relationship was not affected by the Union’s dis-
cipline. He concluded that the Board lacks subject matter
jurisdiction over the dispute because it relates exclusively to
rights of union members under the Labor Management Re-
porting and Disclosure Act (LMRDA).
The General Counsel excepts to the judge’s findings.
He argues that the expulsions and suspensions from
membership and the removals from union office violated
Section 8(b)(1)(A).6 The General Counsel relies on
Board precedent, which, he argues, holds that efforts by a
union member to change union policies or to engage in
politics against incumbent union officers are protected
under Section 7 of the Act. Teamsters Local 186 (Asso-
ciated General Contractor), 313 NLRB 1234 (1994).
Further, he argues that internal union discipline imposed
in retaliation for a member’s intraunion activities in op-
position to the incumbent leadership violates 8(b)(1)(A)
because it does not reflect a legitimate union interest and
impairs a policy which Congress imbedded in the labor
laws, e.g., the right guaranteed by the LMRDA to par-
ticipate fully and freely in internal union affairs. Car-
penters Local 22 (Graziano Construction Co.), 195
NLRB 1 (1972); and Teamsters Local 579 (Janesville
Auto Transport), 310 NLRB 975 (1993), enf. denied 145
LRRM 2200 (7th Cir. 1994). For remedial purposes, the
General Counsel seeks restoration of the status quo ante,
including restoration of membership rights and rein-
statement of elected officers to union office for the re-
mainder of their terms.
The Respondent opposes the General Counsel’s excep-
tions and argues that the judge correctly found that the
complaint should be dismissed for lack of subject matter
jurisdicton. The Respondent claims that the dispute re-

5 Our dissenting colleague states that the asserted reasons for the dis-
cipline at issue were “pretextual.” Although the judge found that
McLendon’s petition was in retaliation for Mitchell-Carr’s petition
against him, the judge did not find that the reasons set forth in
McLendon’s petition were pretextual. As to the substantive reasons set
forth in the petitions against the Mitchell-Carr faction, the judge stated
that some accusations were “petty,” “suspect,” and possibly “im-
proper.” However, the parties did not litigate in detail the merits of the
accusations contained in any of the petitions and the judge made no
definitive factual findings on the merits, including the accusations by
Mitchell-Carr against McLendon, nor do we. Indeed, most of the mat-
ters addressed at the hearing in this case concerned alleged procedural
deficiencies in the intraunion hearings, which the judge noted were
conducted in absentia. Without addressing or deciding whether the
Respondent met LMRDA procedural due process requirements, we
note that members of the Mitchell-Carr faction were given advance
notice of the intraunion hearings and, after unsuccessfully seeking
extensions of time, elected not to attend.
6 In addition to the expulsions and suspensions, the complaint makes
reference to other acts related to the removal from office, e.g., the de-
nial of access to the Respondent’s premises and to personal items at the
Respondent’s premises, and removal from appointed office. The Gen-
eral Counsel does not refer to these matters in his brief or contend that
they raise any issue distinct from the expulsions and suspensions.
lates exclusively to internal union affairs, i.e., the rights
of union members under the LMRDA, and not to the
rights set forth in Section 7 of the Act.
III. DISCUSSION
A. Overview
The dispute in this case is essentially an intraunion fac-
tional quarrel over intraunion policies and politics. As dis-
cussed above, the Respondent’s two highest ranking elected
officers, shortly after their reelection, each filed impeach-
ment petitions against one another, and others. The initial
impeachment petition, filed by Vice President Mitchell-
Carr, followed on the heels of remarks by President
McLendon that Mitchell-Carr might be equally responsible
for any alleged financial improprieties arising during their
previous incumbency together, i.e., “if I go down, you’re
going down with me.” After Mitchell-Carr filed her im-
peachment petition, McLendon did the same.
What is of critical significance in our judgment is that
the only sanctions visited on the Charging Parties by the
victorious intraunion faction were internal union sanc-
tions, such as removal from union office and suspension
or expulsion from union membership. The relationship
between the Charging Parties and their Employer, San-
dia, was wholly unaffected by the discipline. Nor are
any policies specific to the National Labor Relations Act
implicated by the union discipline at issue.
This case has been brought before us under the Act
only because, as the General Counsel points out, there is
currently decisional precedent that supports the notion
that a union may violate Section 8(b)(1)(A)7 even when
its conduct has no meaningful connection to the em-
ployment relationship and the union discipline impacts
union members solely in their capacity as members, and
not as employees. We have re-examined that precedent
in light of the plain language of Section 8(b)(1)(A) and
its proviso, its legislative history, the seminal Board
cases, and the Supreme Court cases pertaining to union
discipline of its members.
On the basis of our re-examination we have concluded
that Section 8(b)(1)(A) does not proscribe the wholly
intraunion conduct and discipline in this case. Instead, as
detailed below, we find that Section 8(b)(1)(A)’s proper
scope, in union discipline cases, is to proscribe union
conduct against union members that impacts on the em-
ployment relationship, impairs access to the Board’s
processes, pertains to unacceptable methods of union
coercion, such as physical violence in organizational or
strike contexts, or otherwise impairs policies imbedded
7 Sec. 8(b)(1)(A) provides that:
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 guaranteed in section 7 [of this title]: Provided, That this
paragraph shall not impair the right of a labor organization to pre-
scribe its own rules with respect to the acquisition or retention of
membership therein.
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1419
in the Act. Consistent with our holding, we shall over-
rule several cases in which the Board has found viola-
tions of Section 8(b)(1)(A) even in the absence of any
meaningful correlation to the employment relationship
and the policies of the Act, including Carpenters Local
22 (Graziano Construction), 195 NLRB 1 (1972). As we
demonstrate below, the position that we adopt here
represents a return to the law as it was before Graziano
Construction expanded the reach of Section 8(b)(1)(A)
and made the Board a forum for vindicating policies that
Congress intended to be enforced through the procedures
of the Landrum Griffin Act.
B. The Early Board Cases
In 1947 Congress passed the Taft-Hartley amendments
to the National Labor Relations Act. In a series of early
cases interpreting the scope of “restraint or coercion”
under Section 8(b)(1)(A) and its proviso, the Board
found that the legislative history of the amendments
called for a narrow construction directed to actual or
threatened economic reprisals and physical violence by
unions. National Maritime Union (Texas Co.), 78 NLRB
971 (1948), enfd. 175 F.2d 686 (2d Cir. 1949). In Typo-
graphical Union (American Newspaper Publishers
Assn.), 86 NLRB 951, 956, (1949), enfd. 193 F.2d 782
(7th Cir. 1951), affd. on other grounds 345 U.S. 100
(1953), the Board summarized the early cases as follows:
In the National Maritime Union case, the first of the se-
ries, we decided on the basis of the legislative history
there cited, that, although Congress used the generic
term “restraint and coercion” on this section, the legis-
lative scheme envisaged a narrow construction of the
terms. We held its proscriptions were limited to situa-
tions involving actual or threatened economic reprisals
and physical violence by unions or their agents against
specific individuals or groups of individuals in an effort
to compel them to join a union or to cooperate in a un-
ion’s strike activities. [Footnotes omitted.]
Thereafter, in Teamsters Local 823 (Roadway Express,
Inc.), 108 NLRB 874 (1954), the Board considered the
application of Section 8(b)(1)(A) to acts of reprisal
against “dissident” employees who had requested that
their International union investigate the propriety of cer-
tain activities of their local union. The local union
threatened a loss of employment and the removal of em-
ployees’ “union book” which was required to be kept by
employees while working, physically assaulted an em-
ployee, and ultimately caused the discharge of two em-
ployees, because of their complaint to the International
union about the local union. The Board found that the
union’s course of conduct against these “dissident” em-
ployees violated Section 8(b)(1)(A) and (2).
The Board’s construction of Section 8(b)(1)(A) in
these early cases faithfully reflected Congress’ purpose,
in enacting that section, to regulate the use of threats and
violence by unions in the employment context. As Sena-
tor Taft and the other supporters explained, the impetus
for their proposal to add Federal regulation in an area
previously left to the states was the evidence before the
committee that unions had used threats and violence as
an organizing tool and in conjunction with strikes:
The committee heard many instances of union coercion
of employees such as that brought about by threats of
reprisal against employees and their families in the
course of organizing campaigns; also direct interfer-
ence by mass picketing and other violence. Some of
these acts are illegal under State law, but we see no rea-
son why they should not also constitute unfair labor
practices to be investigated by the National Labor Rela-
tions Board, and at least deprive the violators of any
protection furnished by the Wagner Act.
S. Rep. No 105, 80th Cong., 1st Sess. 50 (1947), 1 Leg.
Hist. 456; and NLRB v. Teamsters Local 639 (Curtis Bros.),
362 U.S. 274, 285–286 (1960).
Explaining the scope of the proposed amendment,
Senator Taft sounded what the Supreme Court in Curtis
Bros. later described as “the central theme” of the de-
bate—“the use of repressive tactics bordering on vio-
lence or involving particularized threats of economic
reprisal.” 362 U.S. at 287–288. Senator Taft stated:
The effect of the pending amendment is that the Board
may call the union before them, exactly as it has called
the employer, and say, “Here are the rules of the game.
You must cease and desist from coercing and restrain-
ing the employees who want to work from going to
work and earning the money which they are entitled to
earn.” The Board may say, “You can persuade them;
you can put up signs; you can conduct any form of
propaganda you want to in order to persuade them, but
you cannot, by threat of force or threat of economic re-
prisal, prevent them from exercising their right to
work.” As I see it, that is the effect of the amendment.
93. Cong. Rec. 4436 (1947), 2 Leg. Hist. 1206; Curtis
Bros., 362 U.S. at 287–288.
Both of the key sponsors of the final legislation
stressed that a principal aim of the new section was to
outlaw union intimidation of nonstriking employees.
Representative Hartley stated,
This bill, contrary to reports that have gone out—and
the Senate conferees agreed with us on this—does pro-
hibit mass picketing and the use of violence in the con-
duct of a strike. On that provision we accepted the
Senate language, which does restrict intimidation and
coercion.
93 Cong. Rec. 6383 (1947), 1 Leg. Hist. 882.
By 1954, in Minneapolis Star & Tribune Co., 108
NLRB 727, 729, 738 (1954), the Board noted that it was
now “well established” that Section 8(b)(1)(A) and its
proviso precluded interference with the internal affairs of
a labor organization in the absence of an effect on em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1420
ployment. The Board’s treatment of two somewhat simi-
lar cases 10 years later in 1964 is instructive with respect
to the reach of Section 8(b)(1)(A) in the employment
context. In Wisconsin Motor Corp., 145 NLRB 1097
(1964),8 the Board held that fines to enforce production
ceilings did not violate Section 8(b)(1)(A) because the
enforcement of the rule was restricted to the status of a
member, as a member, rather than as an employee. But,
in American Home Builders of the Greater East Bay, 145
NLRB 1775 (1964), the Board found an 8(b)(1)(A)
violation when a rule similar to that in Wisconsin Motor
Corp. was enforced by threats of loss of employment. In
short, there can be no dispute that the Board, in the early
cases, consistently distinguished between, on the one
hand, internal union enforcement and, on the other, ex-
ternal enforcement, impacting the employment relation-
ship. Indeed, the Board viewed this distinction as a cen-
tral tenet of Section 8(b)(1)(A) and its proviso.
To the limited extent that the Board, prior to Graziano
Construction, held that internal union discipline fell
within the reach of Section 8(b)(1)(A), it did so only in
narrowly defined circumstances, namely, where that dis-
cipline impaired fundamental policies of the Act itself.
Thus, for example, in Operating Engineers Local 138
(Charles S. Skura), 148 NLRB 679 (1964), the Board
held that fining a member for filing unfair labor practice
charges without first exhausting internal union remedies
violated Section 8(b)(1)(A) because it was an attempt to
regulate its members’ access to the Board’s processes.
(The Board also noted that by fining a union member for
filing an 8(b)(2) charge, the union impaired his rights as
an employee and that the right to file such a charge was
itself an incident of employment status. 148 NLRB at
684 fn. 16.) Thereafter, in Mine Workers Local 12419
(National Grinding Wheel Co.), 176 NLRB 628 (1969),
the Board found that a union had violated Section
8(b)(1)(A) by fining employees in order to compel con-
duct in violation of a contractual no-strike obligation.
Similarly, in Molders Local 125 (Blackhawk Tanning
Co.,), 178 NLRB 208 (1969), the Board held that a union
fine imposed against an employee who had filed a decer-
tification petition violated Section 8(b)(1)(A) because it
interfered with the statutory right to invoke the Board’s
election process.9 And in Seafarers (Spitler-Demmer,
Inc.), 184 NLRB 608 (1970), the Board held that union
discipline against an employee for giving testimony
damaging to the union in an unfair labor practice pro-
ceeding violated Section 8(b)(1)(A).

8 The Wisconsin Motor Corp. case subsequently reached the Supreme
Court as Scofield v. NLRB, 394 U.S. 423 (1969), discussed infra.
9 The Board distinguished between the fine imposed for filing the decerti-
fication petition in Blackhawk Tanning and the expulsion from membership
for filing a similar petition in Tawas Tube Products, 151 NLRB 46 (1965).
In the latter case, the Board found that the expulsion was lawful because
retention of membership would have allowed the employee to remain privy
to union strategy and tactics in opposition to the petition.
As this history shows, the Board’s consistent interpreta-
tion of Section 8(b)(1)(A) for the first 25 years following its
enactment was that it did not reach internal union discipline
that affected only the union member’s status as a member
and did not impair policies imbedded in the Act itself. It
was not until 1972, in the Graziano case, supra, that the
Board for the first time ventured into new territory by pro-
scribing under 8(b)(1)(A) union discipline that bore no
meaningful connection to coercion that interfered with the
employer-employee relationship or to coercion that other-
wise impaired fundamental policies of the NLRA.
C. Graziano Construction
In Graziano, a union was found to have violated the Act
for disciplining a union member—on what the Board found
were pretextual charges of violating certain internal union
rules—in order to retaliate against him for having protested
against alleged irregularities in the union’s election proce-
dures for the selection of delegates to the international un-
ion’s convention. There was no indication that the disci-
pline in any way affected the member’s employment or
opportunities for employment with any employer. Never-
theless, the Board found a violation of Section 8(b)(1)(A) on
grounds that the discipline sought to deprive the member of
a right guaranteed him under the LMRDA to participate
fully and fairly in the internal affairs of his union.
In so finding, the Board acknowledged that “[t]he poli-
cies which the Union’s conduct [sought] to frustrate are
embodied in the Labor Management Reporting and Dis-
closure Act of 1959 rather than specifically in the Na-
tional Labor Relations Act.” 195 NLRB at 2. It also
noted that it was “not unmindful of the fact that the De-
partment of Labor, and not this agency, is directly
charged with the administration of the Landrum-Griffin
Act.” Id. at fn. 5. However, citing language in Scofield
v. NLRB, 394 U.S. 423 (1969), stating that a union does
not violate the Act by enforcing a properly adopted rule
that reflects a legitimate union interest and “impairs no
policy Congress has imbedded in the labor laws,” the
Board said it viewed itself as charged with considering
“the full panoply of congressional labor policies” in deter-
mining the legality of a union fine. “In this area,” the Board
stated, “[A]s we understand it, we have been specifically
charged by the Supreme Court with the duty of determining
the overall legitimacy of union interests, and must therefore
take into account all federal policies and not limit ourselves
to those embodied in our own Act.” Id.
With this broad statement, the Board abandoned its
earlier narrow construction of Section 8(b)(1)(A) insofar
as it applies to internal discipline imposed by a union
against a member and entered the domain of regulating
intraunion matters that neither impact the employment
relationship nor impair policy interests arising under the
Act. By no means, however, did the Supreme Court’s
decision in Scofield compel the Board’s finding in
Graziano. To the contrary, as discussed below, the Su-
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1421
preme Court, in a consistent line of decisions that in-
cludes Scofield, has expressly embraced the Board’s
original, narrow construction of Section 8(b)(1)(A) and
rejected the notion that either Section 8(b)(1)(A) or the
LMRDA gives the Board the broad power to regulate the
internal affairs of unions that it has asserted in Graziano
and subsequent cases.
D. The Supreme Court Cases
The question of whether Section 8(b)(1)(A) of the Act
reaches conduct by a union against members in their ca-
pacity as members was first addressed by the Supreme
Court in Machinists v. Gonzalez, 356 U.S. 617 (1958), in
which the Court was considering whether a State court
action seeking restoration of membership by a union
member who claimed that he was illegally expelled from
membership in his union was preempted by the NLRA.
Rejecting claims that to allow the State court suit to pro-
ceed might create conflicts between Board enforcement
of Federal policy under the NLRA and the assertion of
State power, the Court noted that “the protection of union
members in their rights as members from arbitrary con-
duct by unions and union officers has not been under-
taken by Federal law, and indeed the assertion of any
such power has been expressly denied [in the proviso to
Section 8(b)(1) of the Act].” 356 U.S. at 620. Thus, the
Court said, “[T]he State court should not be prevented
from exercising its jurisdiction.”
The year after the decision in Gonzalez, Congress en-
acted the LMRDA, which for the first time established
Federal protections for union members in their rights as
members. Yet in NLRB v. Allis-Chalmers Mfg. Co., 388
U.S. 175 (1967), the Supreme Court reiterated that Sec-
tion 8(b)(1)(A) did not reach union discipline of mem-
bers affecting only their status as members. Upholding a
union’s right to fine members who crossed a picket line and
went to work during an authorized strike, the Court specifi-
cally noted that “Congress did not propose any limitations
with respect to the internal affairs of unions, aside from
barring enforcement of a union’s internal regulations to
affect a member’s employment status.” 395 U.S. at 195.
The Court thus embraced the view of the Board, as set forth
in Minneapolis Star & Tribune Co., supra, that Section
8(b)(1)(A) reaches only the external enforcement of union
rules, impacting the employment relationship, and not their
purely internal enforcement.
Two years later, in NLRB v. Shipbuilders, 391 U.S.
418 (1968), the Court also embraced the Board’s view
that union discipline may run afoul of Section 8(b)(1)(A)
when it interferes with an important policy promoted by
the Act. In the decision under review in that case, the
Board had applied its earlier decision in Skura, supra, to
find a violation of Section 8(b)(1)(A) by a union which
had expelled a member for filing an unfair labor practice
charge with the Board before first exhausting internal
union remedies. The member had initially filed intraun-
ion charges with his local alleging that the local president
had wrongfully caused his employer to discriminate
against him because of certain protected activity he had
engaged in. But when the local union ruled against him
on the charge, instead of pursuing the internal union ap-
peals procedure that was available to him, the member
had filed a charge with the Board alleging that the local
union president’s actions had violated his rights under
the Act. The union then tried and expelled him for vio-
lating a union constitutional provision requiring that
members aggrieved by actions of their local unions first
exhaust all appeals within the union before resorting to
the courts or other tribunals.
In upholding the Board’s determination that the expul-
sion violated Section 8(b)(1)(A), the Court agreed with
the Board that union rules requiring exhaustion of inter-
nal remedies under such circumstances were contrary to
the policy of the Act to keep employees free from coer-
cion when making complaints to the Board about per-
ceived encroachments of their statutory rights as em-
ployees. While emphasizing that Section 8(b)(1)(A) as-
sures a union the freedom of self-regulation where its
legitimate internal affairs are concerned, 391 U.S. at 424,
the Court noted that in the case at issue, the charging
party’s complaint against the union “implicated not only the
union but the employer,” and that the employer “might also
have been made a party and comprehensive and coordinated
remedies provided.” Id. at 425. Under those circumstances,
where the internal union procedures were “plainly inade-
quate to deal with all phases of the complex problems con-
cerning employer, union, and union member,” id. the Un-
ion’s interest in enforcing its exhaustion requirement was
outweighed by the statutory interest in maintaining unim-
peded access to Board processes. Id.
In sum, the Court concluded, “when the complaint or
grievance does not concern an internal matter, but touches a
part of the public domain covered by the Act, failure to re-
sort to any intraunion grievance procedure is not ground for
expulsion from a union.” Id. at 438. Rather, “the overriding
public interest makes unimpeded access to the Board the
only healthy alternative, except and unless plainly internal
affairs of the union are involved.” Id. at 424.
The Supreme Court next considered the lawfulness of
internal union discipline under Section 8(b)(1)(A) in
Scofield v. NLRB, supra, in which it reviewed the
Board’s decision in Wisconsin Motor Corp., supra, and
affirmed the Board’s finding that the union’s enforce-
ment through fines and suspensions of an internal rule
imposing production ceilings on its members did not
violate Section 8(b)(1)(A). The Court first noted that, in
Allis-Chalmers, it had “essentially accepted” the Board’s
longstanding position, dating from Minneapolis Star &
Tribune, supra, that Section 8(b)(1)(A) is to be narrowly
construed so as not to reach internal union discipline
unless such discipline affects a member’s employment
status. The Court then observed that in Shipbuilders, it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1422
had also agreed with the Board that Section 8(b)(1)(A)
prohibits unions from enforcing rules that invade or frus-
trate an overriding statutory policy. “Under this dual
approach,” the Court then stated in summary, “Section
8(b)(1)(A) leaves a union free to enforce a properly
adopted rule which reflects a legitimate union interest,
impairs no policy Congress has imbedded in the labor
laws, and is reasonably enforced against union members
who are free to leave the union and escape the rule.”
As our dissenting colleague notes, the quoted passage—
cited by the Board in Graziano as a mandate to expand the
reach of Section 8(b)(1)((A) to cover matters regulated
under the LMRDA—speaks of policies reflected in “the
labor laws.” It is clear, however, from any fair reading
of the decision in its entirety that the statutory policies to
which it was referring are those set forth in the Act.
Thus, not only did the Court at other points in the deci-
sion specifically describe the relevant inquiry as whether
the union rule violates a policy of “the Act,”10 but in con-
sidering the legality of the production ceilings at issue,
the Court examined only policy interests arising under
the NLRA—specifically, whether the rule impeded the
collective-bargaining process (described by the Court as
“a process nurtured in many ways by the Act, id. at 432);
whether the rule ran afoul of the anti-featherbedding pro-
visions of Section 8(b)(6) of the Act; whether the rule
induced the employer to discriminate against any class of
employees; and whether the rule was a dereliction by the
union of its duty of fair representation. At no point did
the court purport to analyze whether the rule at issue im-
paired policies promoted by any other statute such as the
LMRDA. Indeed, while the decision does make mention
of the LMRDA, it does so only to make the point that the
LMRDA “did not purport to overturn or modify the
Board’s interpretation of 8(b)(1)(A).” Id. at 429.
As we have shown, the Board’s interpretation of Sec-
tion 8(b)(1)(A) at that time was a narrow one which dis-
tinguished between internal and external enforcement of
union rules and which asked whether the discipline vio-
lated fundamental policies of the National Labor Rela-
tions Act itself. Narrow construction was specifically
embraced by the Court. Thus, no reasonable reading can
interpret the decision in Scofield as a directive to the
Board to expand its interpretation of Section 8(b)(1)(A)
to reach the purely internal enforcement of union rules
having no impact on the employment relationship. To
the contrary, as stated by the Court in its subsequent de-
cision in NLRB v. Boeing Corp., 412 U.S. 67, 72 (1973):
“The underlying basis for the holdings of Allis-Chalmers
and Scofield was . . . that [the provisions of 8(b)(1)(A)]
were not intended by Congress to apply to the imposition

10 See the Court’s statement that the inquiry must focus on “the extent to
which any policy of the Act may be violated by the union-imposed produc-
tion ceiling,” id. at 431, and its conclusion that because it is “impossible to
say that [the ceiling] contravened any policy of the Act,” it is finding no
violation of Sec. 8(b)(1)(A). Id. at 436.
by the union of fines not affecting the employer-
employee relationship and not otherwise prohibited by
the Act.”
The issue in Boeing was whether the Board is author-
ized to pass on the “reasonableness” of union fines in
deciding whether union discipline violates Section
8(b)(1)(A). Yet again, the Court reaffirmed the Board’s
narrow construction of Section 8(b)(1)(A), noting that
previously, in Scofield, “we decided that Congress in-
tended to distinguish between the external and the inter-
nal enforcement of union rules, and that therefore the
Board would have authority to pass on those rules affect-
ing an individual’s employment status but not on his un-
ion membership status.” Id. at 73–74. The Court then
clarified that, although it had held in Scofield that en-
forcement of union rules by “reasonable” fines does not
violate 8(b)(1)(A), its use of the adjective “reasonable”
was only dicta in that case and was not meant to suggest
that imposition of an “unreasonable” fine would be an
unfair labor practice. Affirming the Board’s determina-
tion that it lacked authority under Section 8(b)(1)(A) to
pass on the reasonableness of the amount of the fine, the
Court emphasized that inquiry by the Board into the
“multiplicity of factors . . . bearing on the issue of rea-
sonableness would necessarily lead the Board to a sub-
stantial involvement in strictly internal union affairs,”
and that “to the extent that the Board was required to
examine into such questions as union’s motivation for
imposing a fine it would be delving into internal union
affairs in a manner which we have previously held Con-
gress did not intend.” Id. at 74.
Graziano, of course, involved precisely the kind of in-
quiry into the union’s motivation for imposing a fine that
the Court held in Boeing is beyond the Board’s authority.
And as subsequent decisions demonstrate, it has indeed
led the Board to “delv[e] into internal union affairs” in a
manner which the Court has held that Congress did not
intend. In undertaking to enforce policies that Congress
entrusted to the Department of Labor and the courts,
moreover, the Board has substituted the Act’s procedures
for the procedures Congress worked out in making the
legislative compromises necessary to secure the passage
of the Landrum Griffin Act. The substantive rights at
issue in Graziano were principally those provided for in
Title IV of the Landrum Griffin Act, 29 U.S.C. § 481,
which, in relevant part, ensures fair election procedures
and the right to support the candidate of one’s choice
without retaliation. Section 402 of Title IV, 29 U.S.C. §
482, prescribes the procedures for enforcing those rights.
The decision to prosecute such claims is to be made by
the Department of Labor, on the initiative of a union
member, and the forum for such prosecutions is the fed-
eral district courts. Graziano supplants the procedures
chosen by Congress for the enforcement of Title IV in
important ways: under Section 10(b) of the Act, “any
person,” whether or not a union member, may initiate pro-
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1423
ceedings; under Section 3(d) of the Act, the Board’s General
Counsel, not the Secretary of Labor, decides whether the
private party’s claim warrants prosecution; and under Sec-
tion 10(c) of the Act, the Board and its administrative law
judges hear such claims, not federal district courts. By al-
lowing Section 8(b)(1)(A) to be used to enforce rights pro-
vided for in Title I of the LMRDA, the Graziano line of
cases also contravenes the deliberate decision made by
Congress, in enacting the LMRDA, that only aggrieved
individuals, and not the government, would have the right to
enforce the rights guaranteed to union members by Title I of
the LMRDA.11
E. Post Graziano Board Decisions
One recent example demonstrating the reach of Graziano
is Laborers Local 652 (Southern California Contractors’
Assn.), 319 NLRB 694 (1995). In that case, the Board, pur-
suant to Graziano, considered under Section 8(b)(1)(A) a
union’s application of its internal rules of decorum during a
membership meeting held at a union hall. A dissident fac-
tion and an opposing group supportive of the incumbent
union leadership had long been at odds, to the extent that the
former group customarily sat on the right side of the union
hall during membership meetings, the latter group custom-
arily sat on the left side of the union hall, and other mem-
bers stood in the back of the room. At one meeting, the
union president ordered the ejection of several members of
the dissident group because of their allegedly disruptive
behavior. Thereafter, these members were charged with
breaching the union’s rules of decorum and, as punishment,
two members ultimately were suspended from attending the
next union membership meeting.
The Board found that the charges against members of
the dissident faction were discriminatory because deco-
rum at the membership meetings was commonly disrup-
tive, marked by members speaking out of turn, uttering
insults, and interrupting other speakers. Because the
union president’s attempt to maintain decorum was dis-
parately enforced and he failed to give the alleged of-
fenders “repeated warnings,” the Board found that the
internal union charges violated Section 8(b)(1)(A).
Nothing whatsoever in Southern California Contractors
Assn. pertained to the members’ status as employees or
impaired any policy specific to the Act. On the contrary,
the conduct at issue was entirely an intraunion matter
having to do with rules of behavior and decorum within

11 As originally introduced in the Senate, Title I of the LMRDA empow-
ered the Secretary of Labor to seek injunctive and other relief in Federal
district court to enforce union members’ free speech rights. In large part
because of other Senators’ concerns, however, the bill was amended to
provide for suits by individual members in Federal district court. Senator
Kuchel, who offered the amendment, explained it as being in the “interest of
justice” and it received widespread support from Senators who “wished to
limit federal interference with the internal affairs of labor unions.” Team-
sters Local 82 v. Crowley, 467 U.S. 526, 537–538 and fn. 12 (1984), quot-
ing 105 Cong. Rec. 6720, 6726 (1959).
the union hall, and the discipline imposed concerned
only attendance at subsequent intraunion meetings.
Moreover, the procedural assumptions underlying
Southern California Contractors Assn. were even more
extraordinary than those of Graziano, because the right at
issue—the right to meet with other members and “to ex-
press any views, arguments, or opinions,” as provided in
Title I of the Landrum Griffin Act, 29 U.S.C. § 411(a)(2)—
is one for which Congress deliberately refrained from estab-
lishing any administrative enforcement mechanism. In-
stead, Section 102 of Title I provides only that aggrieved
persons may initiate proceedings in Federal district court.
See Boilermakers v. Hardeman, 401 U.S. 233, 239 (1969)
(in enacting Title I, Congress explicitly referred claims “not
to the NLRB but to the federal district courts”).12
The expansive reach of Graziano is perhaps best illus-
trated by Teamsters Local 579 (Janesville Auto Transport),
310 NLRB 975 (1993), enf. denied 145 LRRM 220 (7th
Cir. 1994). In Janesville, a union entered into an endorse-
ment arrangement with a private third-party vendor. The
vendor then furnished discounts to union members and re-
tirees which enabled them to receive reduced rates on vision
care products and services. The discounts were promotional
in origin and were wholly unrelated to collective bargaining.
Several union members objected to this arrangement and
wrote a letter to the vendor declaring that they would never
patronize the vendor’s business. In response, the union re-
moved the names of the objecting members from mailing
lists that pertained to similar “special” noncontractual bene-
fit programs.
The Board found that the union violated Section
8(b)(1)(A) because the removal from the mailing lists
“retaliated” against the objecting members. It so found
even though the matter had nothing to do with the em-
ployment relationship, had nothing to do with the kind of
“coercion” envisioned in the passage of Section
8(b)(1)(A, impaired no policy arising under the Act, and
was in every respect simply an intraunion dispute. The
long-held “narrow construction” of Section 8(b)(1)(A),
repeatedly endorsed by the Supreme Court, now had
been widened to the extent that the Board was now effec-
tively regulating intraunion disputes concerning vision
care vendors and regulating discipline that took the form
of removing members from mailing lists pertaining to
discounts from such vendors.13
12 Although Sec. 102 is not exclusive, in the sense that the next section,
Sec. 103 of Title I, 29 U.S.C. § 413, provides for the retention of existing
rights, employees had no preexisting right to bring such disputes before the
Board. See Machinists v. Gonzalez, supra, 356 U.S. at 620, where, prior to
the enactment of the LMRDA, the Supreme Court recognized that Sec.
8(b)(1)(A) of the Act afforded no protection against a union’s arbitrary
treatment of union members in their capacity as members.
13 See also Laborers Local 324 (AGC of California), 318 NLRB 589
(1995), enf. denied in relevant part 123 F.3d 1176 (9th Cir. 1997), in which
the Board found that a union violated 8(b)(1)(A) by enacting an internal rule
designed to preclude the distribution of dissident union literature in the
union’s offices and hallways.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1424
F. The Present Case in Light of Graziano
We conclude that the present case raises a factual sce-
nario beyond the reach of Section 8(b)(1)(A). Here, as
noted above, we are presented with an intraunion dispute
between two rival union factions which both include high
level elected officers, each of whom, in turn, filed in-
traunion impeachment petitions against the other. As
with the dispute over a vision care provider in Janesville,
the dispute over who shall attend the union’s interna-
tional convention in Graziano, and the dispute over de-
corum at a union meeting in Southern California Con-
tractors Assn., the instant case neither impacts the par-
ticipants’ relationship with their employer nor impairs a
policy of the Act. Accordingly, we find that the Respon-
dent did not violate Section 8(b)(1)(A).
The Respondent’s conduct simply does not fit within
the scope of conduct that is properly addressed by Sec-
tion 8(b)(1)(A). First, Section 8(b)(1)(A) does, of course,
proscribe unacceptable methods of union coercion in the
employment context, such as threats of loss of employment
or physical violence to force a dissenting employee to join a
union during an organizational campaign or to participate in
a strike—conduct that was at the core of the adoption of
Section 8(b)(1)(A) in the first instance. See Typographical
Union (American Newspaper Publishers Assn.), 86 NLRB
951, 955–957 (1949); and National Maritime Union (Texas
Co.), 78 NLRB 971 (1948). See also Steelworkers Local
1397 (U.S. Steel Corp.), 240 NLRB 248 (1979) (union vio-
lated Sec. 8(b)(1)(A) by threatening to cause discharge of
employees).
Second, Section 8(b)(1)(A) proscribes conduct against
union members that directly impedes access to the
Board’s processes. Thus, as in Shipbuilders, supra, 391
U.S. 418 (1968), a union may not enforce rules that un-
duly hamper the ability of its members to bring a matter
to the Board for consideration.
Third, the proscriptions of Section 8(b)(1)(A) apply when
intraunion discipline clashes directly with statutory policy
interests and prohibitions incorporated in the Act. See, e.g.,
National Grinding Wheel, supra, 176 NLRB 628 (1969);
Blackhawk Tanning Co., supra, 178 NLRB 208 (1969); and
Plumbers (Hanson Plumbing), 277 NLRB 1231 (1985).
Accordingly, our decisions in Graziano, Janesville
Transport, AGC of California, and Southern California
Contractors Assn., supra, are overruled to the extent they
are inconsistent with our decision today.
Our dissenting colleague contends that the Respon-
dent’s discipline here contravenes a policy of the Act:
that the discipline interferes with the Section 7 right to
concertedly oppose the policies of union officials. We
disagree. Our colleague overlooks that the right to con-
certedly oppose the policies of union officials is pro-
tected by Section 7 if that activity is “for the purpose of
collective bargaining or other mutual aid or protec-
tion. . . .” That protection is broad but not unlimited and it
assumes that the activity bears some relation to the employ-
ees’ interests as employees. Eastex, Inc. v. NLRB, 437 U.S.
556, 567–568 (1978); Firestone Steel Products Co., 244
NLRB 826, 827 (1979); Trover Clinic, 280 NLRB 6 (1986);
and Southern California Gas Co., 321 NLRB 551, 555–557
(1996). Furthermore, union restraint and coercion of Sec-
tion 7 rights is regulated under Section 8(b)(1)(A), and, as
discussed above, the central theme of both the Supreme
Court’s 8(b)(1)(A) decisions and of Board’s 8(b)(1)(A)
cases prior to Graziano is that that section was not enacted
to regulate the relationship between unions and their mem-
bers unless there was some nexus with the employer-
employee relationship and a violation of the rights and obli-
gations of employees under the Act. Prior to Graziano, our
decisions applying Sections 7 and 8(b)(1)(A) to concerted
activity in opposition to the policies of union officials were
consistent with these limitations.
For example, in Nu-Car Carriers, 88 NLRB 75, 76–77
(1950), enfd. 187 F.2d 298 (7th Cir. 1951), where the
Board found that Section 7 encompassed the right of
employees to influence policies of a union, it did so be-
cause the employees sought to convince their union to
pursue changes in working conditions. In that case, an
employer discriminated against several employees by
affecting their job tenure. The Board found that the em-
ployer violated Section 8(a)(1) because the employer’s
conduct specifically interfered with employees’ condi-
tions of employment and their right of self-organization.
Thereafter, in Roadway Express, supra, the Section 7
principles of Nu-Car Carriers were applied to a union pur-
suant to Section 8(b)(1)(A). Importantly, the prohibited
union conduct there was linked directly to employees’ terms
of employment, or to threats of violence pertaining to the
employment context, and not, as in the present case, to
wholly intraunion affairs. Thus, the Section 7 foundation of
Roadway Express is precisely what Congress intended to
reach when it passed Section 8(b)(1)(A): union violence and
union conduct affecting job tenure.
Similarly, in Operating Engineers Local 400 (Hilde
Construction Co.), 225 NLRB 596, 600–602 (1976),
enfd. mem. 561 F.2d 1021 (D.C. Cir. 1977), relied on by
our dissenting colleague, the principles of Nu-Car Carri-
ers and Roadway Express were applied to a union that
disciplined certain of its members for convening a meet-
ing of member employees for the purpose of redirecting
the bargaining strategy of their representative. Id. at 601.
The employees’ activity in that case was thus directly
related to the process by which the terms and conditions
of their employment would be settled for the term of a
contract and there was a clear nexus to the employer-
employee relationship. Moreover, although the judge
made reference to Graziano and the policy of the
LMRDA to protect the rights of union members to meet
freely and to criticize the management of their unions, id.
at 601–602, that discussion was unnecessary to the deci-
sion, which rested squarely on the Section 7 right of em-
ployees to question the wisdom of their bargaining repre-
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1425
sentative “and to take ‘such steps as they deem necessary
to align their union with their position.’” Id. at 601
(quoting Nu-Car Carriers, supra at 76).
It is a quantum leap from these seminal cases to the
factual scenario arising in the present case which, in con-
trast, bears no meaningful connection to the employment
relationship or the policies of the Act. Although the dis-
sent notes that one of the matters raised in Mitchell-
Carr’s impeachment petition against McLendon is that he
allegedly “circumvented” the collective-bargaining
agreement, it is evident that the predominant issue under-
lying the dispute concerned the disposition of the
$58,000 settlement check, and not a collective-
bargaining matter. Indeed, counsel for the General
Counsel fails to even mention this matter in his brief and
concedes that the dispute was “primarily caused” by the
handling of the check and the selection of legal counsel
concerning the settlement. Further, nothing concerning
the alleged circumvention of a contract was discussed in
the February executive board and membership meetings
preceding the petition against McLendon. Accordingly,
the present case is factually distinguishable from Hilde
Construction Co., supra, cited by the dissent, in which
the “principal purpose” of the objecting members was to
review bargaining strategy and conduct a new strike
vote. 225 NLRB at 601.14
Our dissenting colleague also contends that the Re-
spondent’s conduct had a potential effect on the em-
ployment relationship because members of the Mitchell-
Carr faction were seeking to alter the nature of the Un-
ion’s dealings with the employer by protesting
McLendon’s handling of the settlement check. But, this
is tantamount to declaring that any intraunion quarrel
over a matter potentially subject to the union’s represen-
tational interests, no matter how attenuated, is an im-
pairment of the employment relationship itself and, as
such, must trigger the proscriptions of Section
8(b)(1)(A). We decline to take such an approach,
which in our judgment would unduly expand Section
8(b)(1)(A) to enmesh the Board in intraunion disputes
that have only a speculative impact on the employer-
employee relationship and do not significantly implicate
the rights and duties established by the Act.
In short, while we reaffirm the principle that Section 7
encompasses the right of employees to concertedly oppose
the policies of their union, we reject our dissenting col-
league’s insistence that Section 8(b)(1)(A) will proscribe
virtually each and every form of intraunion discipline per-
taining to virtually any form of intraunion dispute without

14 Similarly distinguishable is Teamsters Local 610 (Browning-Ferris In-
dustries), 264 NLRB 886, 905 (1982), where the union discipline found to
have violated Sec. 8(b)(1)(A) sanctioned an employee for attempting to
persuade employees to vote to accept employer’s last contract offer. The
union conduct there had a direct and immediate relationship to employment
and to the right to engage in concerted activity for the purpose of collective
bargaining and mutual aid and protection.
regard to the employment context or the policies of this
Act.15
Finally, we note that there is, of course, a forum for re-
solving purely intraunion quarrels concerning the propriety
of intraunion decision making. That forum is a cause of
action under the LMRDA.16 Congress gave to the federal
district courts, not to the Board, authority to hear and de-
cide suits brought by union members to enforce rights
under the LMRDA and that is the appropriate forum for
the Charging Parties in this case to pursue their complaints
against the Respondent. In Salzhandler v. Caputo, 316
F.2d 445 (2d Cir. 1963), cert. denied 375 U.S. 946 (1963),
the Second Circuit held that Section 101(a)(2) of the
LMRDA protects accusations against union officials of
improper financial transactions even when such accusa-
tions may constitute defamation. The court directed that
the union be enjoined from imposing discipline and that
damages be considered by the district court. Accordingly,
it appears that the Mitchell-Carr faction could have pur-
sued remedies under the LMRDA.
Our dissenting colleague argues that it is significantly
less expensive and burdensome for an individual union
member to file a charge with the Board than it is to file
an action in Federal district court. As we have stated,
however, it was Congress, and not the Board, that de-
cided that individuals, and not the Government, should
15 Our dissenting colleague, at sec. II,B of his opinion, relies on court de-
cisions of the Ninth Circuit and the D.C. Circuit to support his interpretation
of Sec. 8(b)(1)(A). The cases cited, however, all pertain to policies specifi-
cally arising under the National Labor Relations Act, such as discipline for
refusing to engage in impermissible work stoppages or in support of illegal
picketing, or to union conduct affecting employees’ actual employment.
Accordingly, they are distinguishable from the present case. On the other
hand, the Seventh Circuit has considered factual scenarios similar to the
present case and found no violation of Sec. 8(b)(1)(A) in each instance. See
NLRB v. Operations Engineers Local 139, 796 F.2d 985 (7th Cir. 1986) (no
violation for disciplining dissident member where Union’s action did not
impair employer-employee relationship); see also Teamsters Local 579
(Janesville Auto Transport) v. NLRB, 145 LRRM 220 (7th Cir. 1993).
The dissent also contends that our interpretation of Sec. 8(b)(1)(A) is
contrary to the Board’s treatment of Sec. 8(a)(1) issues that might also be
considered a violation (by employers) of other Federal statutes. The issue,
however, is not whether certain conduct might happen to violate another
statute, but rather, as in Graziano, and the present case, the reach of Sec.
8(b)(1)(A) when the alleged unfair labor practice turns entirely on the inter-
pretation of another statute. As discussed above, we disagree with our
dissenting colleague’s contention that a violation could be sustained in this
case solely by reference to the policies of the Act.
16 Sec. 101(a)(2) of the LMRDA provides:
Every member of any labor organization shall have the right to
meet and assemble freely with other members; and to express any
views, arguments, or opinions; and to express at meetings of the
labor organization his views, upon candidates in an election of the
labor organization or upon any business properly before the meet-
ing, subject to the organization’s established and reasonable rules
pertaining to the conduct of meetings. Provided, that nothing
herein shall be construed to impair the right of a labor organization
to adopt and enforce reasonable rules as to the responsibility of
every member toward the organization as an institution and to his
refraining from conduct that would interfere with its performance
of its legal or contractual obligations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1426
be required to initiate their own proceedings to enforce
the rights secured by Title I.17
We note finally that when the Board injects itself into
matters regulated under the LMRDA it is not only acting
in contravention of Congress’s decision to confer juris-
diction over LMRDA claims on the Secretary of Labor
and the Federal district courts, rather than the Board, but
it is also creating the very real risk that its interpretations
of the requirements of the LMRDA will conflict with
those of the Secretary and the courts, as occurred in the
case of Iron Workers (Walker Construction Co.), 285
NLRB 770 (1987), modifying 277 NLRB 1071 (1985).
In Walker Construction, the Board initially ordered the
reinstatement of an elected union officer to his former
elected position, but in response to the urging of the so-
licitor of the Department of Labor, the Board modified
its original order because of conflict with the LMRDA.
For all these reasons, we shall no longer proscribe in-
traunion discipline under Section 8(b)(1)(A) which in-
volves a purely intraunion dispute, and does not interfere
with the employee-employer relationship, or contravene
a policy of the National Labor Relations Act. For all the
foregoing reasons, we find that the Respondent did not
violate the Act.
ORDER
The order of the administrative law judge is adopted
and the complaint is dismissed.

MEMBER HURTGEN, concurring.
This case involves a union’s intraunion discipline of
employee-members because of their intraunion activities.
I agree with the result reached by my colleagues (i.e.,
dismissal of complaint), but I do so on somewhat differ-
ent grounds.
I agree with my colleagues’ distinction between exter-
nal and internal discipline. The former affects the em-
ployee’s terms and conditions of employment (e.g., re-
moving an employee from an exclusive hiring hall list).
If the union imposes such discipline in reprisal for Sec-
tion 7 activity, Section 8(b)(1)(A) may be violated. By
contrast, internal discipline affects the employee only
vis-a-vis the union (e.g., expulsion and suspension). The
legality of such conduct is regulated by the Scofield test.1
In that case, the Supreme Court said:
Under this dual approach, § 8(b)(1) leaves a union
free to enforce a properly adopted rule which reflects a
legitimate union interest, impairs no policy Congress
has imbedded in the labor laws, and is reasonably en-
forced against union members who are free to leave the
union and escape the rule. [394 U.S. at 430].
The cases are consistent with this approach. In Pattern
Makers League v. NLRB, 473 U.S. 95 (1985), the em-
ployees were not free “to leave the union and escape the

17

See fn. 12, supra.
1 Scofield v. NLRB, 394 U.S. 423 (1969).
rule,” i.e., the union prevented them from doing so.
Thus, the fines imposed on these employees were unlaw-
ful. Similarly, in NLRB v. Shipbuilders, 391 U.S. 418
(1968), the union disciplined an employee because he
filed a charge with the Board. Such conduct is plainly
contrary to the Congressional policy of guaranteeing free
access to the Board. In Scofield terms, the conduct “im-
paired [a] policy Congress has imbedded in the labor
laws.” 394 U.S. at 430.
It should be noted that Scofield instructs the Board to
consider policies “imbedded in the labor laws,” not sim-
ply those imbedded in the NLRA. Thus, if a union disci-
plines a member for speaking out against union policy,
such conduct may violate Section 8(b)(1)(A). That is,
the act of speaking out is protected by Section 7 and it is
contrary to policies imbedded in the LMRDA. Thus, the
discipline coerces a Section 7 right and it is contrary to
the Scofield proviso.
The three cases overruled by my colleagues2 fall
within this principle. In each of these, the union’s con-
duct was coercive of a Section 7 right and contrary to
LMRDA principles. Accordingly, violations were found.
I believe that these cases are consistent with Scofield.
My colleagues acknowledge the Scofield principle that a
union may not impair a policy that “Congress has imbedded
in the labor laws.” (Emphasis added.) However, they say
that this includes only policies that Congress has imbedded
in the NLRA. In my view, the Court’s sentence simply can-
not be read as my colleagues read it. Surely, the NLRA is
not the only labor law passed by the Congress. For exam-
ple, in this case, the Union’s conduct transgressed a Section
7 right and ran afoul of the LMRDA. Thus, I conclude that
the instant case is cognizable under Section 8(b)(1)(A), as
construed in Scofield.
However, as a matter of comity, efficiency, and econ-
omy, I do not think it prudent to have two tribunals plow-
ing the same ground. Where, as here, the underlying
dispute is wholly intraunion, and the discipline is wholly
internal and nonmonetary, I believe that the LMRDA
should be the primary means of enforcement. Thus, ab-
sent some indication that the discipline herein was not
cognizable under that statute, I would leave the parties to
the processes of that statute. Accordingly, I would dis-
miss the complaint.3
I do not disagree with the legal thrust of the dissent.
As discussed above, the threshold inquiry in this case is
whether the Union’s conduct restrained or coerced a Sec-
tion 7 right. Like the dissent, I conclude that it did. Sec-
2 Carpenters Local 22 (Graziano Construction Co.), 195 NLRB 1
(1972); Teamsters Local 579 (Janesville Auto Transport), 310 NLRB 975
(1993), enf. denied 145 LRRM 2200 (7th Cir. 1994); Laborers Local 324
(AGC of California) 318 NLRB 589 (1995), enf. denied in relevant part 123
F.3d 1176 (9th Cir. 1997).
3 As a matter of fairness, I would entertain a motion for reconsideration
based on an assertion that the conduct herein was not cognizable under the
LMRDA.
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1427
tion 7 embraces the right to protest the policies and prac-
tices of the officers of the exclusive bargaining represen-
tative.
The next inquiry is whether the Union’s retaliatory
conduct transgressed one or more of the Scofield princi-
ples. In this regard, I agree with the dissent that the poli-
cies “imbedded in the labor laws” include the NLRA and
the LMRDA. In the instant case, both policies were
transgressed.
In light of the above, the Board has the power to adju-
dicate Respondent’s conduct as unlawful under Section
8(b)(1)(A). However (and this is where I part company
with the dissent), there is no requirement that the Board
must do so. In other contexts, the Board has chosen to
withhold its processes and allow other tribunals to pro-
ceed.4 In the instant case, the employee directed his ac-
tions solely within the Union. That is, the Charging
Party’s protests concerned the actions of Union President
William McLendon, and these protests included the
Charging Party’s efforts to impeach McLendon. These
protests and efforts were based on McLendon’s alleged
mishandling of union funds. Although the impeachment
petition also mentioned an alleged circumvention of the
collective-bargaining agreement, this matter was not
spelled out and was not the principal thrust of the peti-
tion. Thus, any relationship between the Charging
Party’s actions and the working conditions of his Em-
ployer (Sandia) was, at most, attenuated. Further, the
Union’s retaliatory conduct was wholly internal. In sum,
at both ends, i.e., the employee’s activity and the Union’s
response, this is an intraunion case. In these circum-
stances, I would opt to have these cases litigated in court
under the LMRDA.5
The dissent also asserts that acceptance of the Scofield
principle means that the Board must entertain the case
and find the violation. I disagree. Acceptance of
Scofield simply means that the Board could find a viola-
tion. But Scofield does not compel the Board to entertain
the case and find the violation. The situation is no dif-
ferent from a meritorious 8(a)(3) or (5) case. The Board
can find the violation and enter a remedial order. But,
the Board is not compelled to do so. The Board can, and
often does, choose to defer such cases under Collyer.
The dissent also suggests that Collyer is to be confined
to “disputes between a union and employer,” i.e., a case
cannot be deferred under Collyer if the Charging Party is
an individual who asserts individual statutory rights.
Based on this premise, the dissent argues that the Board
must entertain the instant case because the Charging

4 See Collyer Insulated Wire, 192 NLRB 837 (1971). See also the
Board’s discretionary jurisdictional limits. Siemons Mailing Service, 122
NLRB 81 (1958). The Board does not, and should not, entertain every
possible case in which it has statutory jurisdiction.
5 If the activity were not intraunion (e.g., if the employee protested the
application of a union-security clause) or if the discipline affected employee
status, I would have a different view.
Party is an individual who is asserting an individual
statutory right. The problem with the argument is that
the first premise is wrong. The Board, with court ap-
proval, defers cases, even if the charging party is an indi-
vidual asserting an individual right.6
Of course, I recognize that Collyer is grounded in the
salutary principle of grievance arbitration. However, comity
and judicial economy are equally salutary principles. As
discussed above, those principles are operative here.
I also recognize that, under Collyer, the Board does not
completely yield jurisdiction. The Board retains the author-
ity to give a limited review of the arbitral award to assure
that it is not repugnant to statutory rights.7 However, in
cases like the instant situation, I am confident that a Federal
district court would not render an opinion that is repugnant
to statutory rights. And, if it did, I am confident that a fed-
eral appellate court would correct the error.
Finally, the dissenter quarrels with my citation to
Siemons. He correctly notes that the Board, in that case,
expanded its discretionary jurisdiction. The dissent has
missed the point. The essential point, confirmed in
Siemons, is that the Board has discretion to decline juris-
diction. That is the principle that I apply here.8

MEMBER BRAME, dissenting.
I.
A. Introduction
In this case, the Union removed two elected officers
from office and expelled or suspended them from mem-
bership, along with two others, in retaliation for their
challenging another officer’s handling of union funds
and administration of the collective-bargaining agree-
ment. Under the National Labor Relations Act (the
NLRA or the Act), unions are given powers akin to those
of a government with regard to their members and bar-
gaining unit employees.1 With these powers must come
accountability, and the Act provides for such by its grant
of rights to individual employees in Section 72 and by
making it an unfair labor practice in Section 8 for either
6 Consolidated Freightways, 288 NLRB 1252 (1988), affd. sub nom.
Hammontree v. NLRB, 894 F.2d 438 (D.C. Cir. 1990).
7 Spielberg Mfg., 112 NLRB 1080 (1955).
8 Contrary to the dissent, my approach is not ad hoc. It applies to that
class of cases, cognizable under the LMDA, where the underlying dispute is
wholly intraunion and the discipline is wholly internal.
1 For a more detailed explanation of the extent of unions’ power over
members and bargaining-unit employees, see infra, fn. 135.
2 Sec. 7 of the National Labor Relations Act provides:
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, and shall also have the right to refrain from any or all of such ac-
tivities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in 8(a)(3) of this title.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1428
an employer or a union to disturb those Section 7 rights.3
Congress has vested in the Board the authority and re-
sponsibility to explicate and protect those Section 7
rights against encroachment by both employers and un-
ions. Today, in rejecting a long line of Supreme Court,
court of appeals, and Board precedent and in refusing to
find a violation of Section 8(b)(1)(A) on the part of the
Union, the Board abdicates that responsibility and aban-
dons those individual employees. The Board’s new read-
ing of the Act applies a completely different standard to
union conduct under Section 8(b)(1)(A) than it applies to
employer conduct under Section 8(a)(1). When properly
and equitably applied, Section 8(b)(1)(A) demands a
finding that the Union here violated the Act and tram-
meled on the Section 7 rights of its individual members.
Section 8(b)(1)(A) makes it an unfair labor practice for
a union to “restrain or coerce” employees in the exercise
of their Section 7 rights. During the course of its
elucidation of 8(b)(1)(A) analysis, the Supreme Court, in
Scofield v. NLRB,4 explained that that section “leaves a
union free to enforce a properly adopted rule which re-
flects a legitimate union interest, impairs no policy Con-
gress has imbedded in the labor laws, and is reasonably
enforced against union members who are free to leave
the union and escape the rule.”5 Since that time, the
Board has applied the Supreme Court’s analysis consis-
tently, finding that union rules calling for the discipline
of members for challenging and speaking out against
incumbent union administrations reflect no legitimate
union interests and impair labor-law policies found in
both the National Labor Relations Act itself and the La-
bor-Management Reporting and Disclosure Act (LMRDA)6
and are therefore violative of Section 8(b)(1)(A). In this
regard, such union conduct impairs NLRA policies found
in Section 7, which guarantees union members the right
“to protest and to question the wisdom of their bargaining
representative and to persuade others or take such steps
as they deem necessary to align their union with their
position.”7 In addition, this type of union conduct also
impairs the LMRDA policy of free expression.8
3 The relevant portion of Sec. 8(a)(1) of the National Labor Relations Act
provides:
It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7 of this title
The relevant portion of Sec. 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 guaranteed in section 7 of this title: Provided, That this para-
graph shall not impair the right of a labor organization to prescribe
its own rules with respect to the acquisition or retention of member-
ship therein.
4 394 U.S. 423 (1969).
5 Id. at 430.
6 29 U.S.C.§ 411, et seq.
7 Roadway Express, Inc., 108 NLRB 874, 875 fn. 3 (1954), enfd. 227
F.2d 439 (10th Cir. 1955) (citing Nu-Car Carriers, Inc., 88 NLRB 75, 76–
B. The Facts and Findings
The Charging Parties, Mary Ann Mitchell-Carr and
Mildred G. Smith, and members Robert Vaughan and
Bernardino Herrera are former officials of the Respon-
dent Union. Mitchell-Carr had served as vice president,
and Smith had served as secretary-treasurer; both
Vaughan and Herrera were trustees. On February 4,
1993, Mitchell-Carr and Vaughan were reelected to their
positions as vice president and trustee for terms to run
through March 1996.9
The events leading up to the disciplinary action taken
by the Union occurred during this same time period. On
February 1, 1993,10 apparently after Mitchell-Carr had
expressed her concern regarding Union President William
McLendon’s possible mishandling of certain funds, the
Respondent Union’s executive board directed McLendon
to gather information regarding the disbursement of a
specific check. Subsequently, at a regular executive
board meeting on February 10, the board voted on a mo-
tion made by Smith and Herrera, to have the United
States Department of Labor conduct an audit of the Re-
spondent Union’s financial records. The next day, at a
general membership meeting, the membership approved
the motion.
At a March 10 executive board meeting, Mitchell-Carr
presented the board with a petition to impeach Union
President McLendon on charges of misconduct. The
charges included, among other things, the mishandling of
funds that had led to Mitchell-Carr’s original call for an
audit, circumventing the collective-bargaining agreement
with the Employer, Sandia Corporation, and intimidating
members. Among the first signatures on the petition were
Mitchell-Carr’s, Vaughan’s, Smith’s, and Herrera’s, a
group that became known as “the Mitchell-Carr faction.”
Shortly thereafter and, as found by the administrative
law judge, “transparently in retaliation,” McLendon, at
an executive board meeting on April 7, presented a peti-
tion calling for the impeachment of Mitchell-Carr on the
ground that she improperly called special membership
and executive board meetings. This impeachment peti-

77 (1952), enfd. 189 F.2d 756 (3d Cir. 1951), cert. denied 342 U.S. 919
(1952)).
8 Sec. 101(a)(2) of the LMRDA provides:
Every member of any labor organization shall have the right to meet
and assemble freely with other members; and to express any views,
arguments, or opinions; and to express at meetings of the labor or-
ganization his views, upon candidates in an election of the labor or-
ganization or upon any business properly before the meeting, subject
to the organization’s established and reasonable rules pertaining to the
conduct of meetings, Provided, that nothing herein shall be construed
to impair the right of a labor organization to adopt and enforce reason-
able rules as to the responsibility of every member toward the organi-
zation as an institution and to his refraining from conduct that would
interfere with its performance of its legal or contractual obligations.
[29 U.S.C. Sec. 411(a)(2).]
9 Smith and Herrera did not run for reelection, and therefore, their terms
were set to end in March 1993.
10 All dates refer to 1993 unless otherwise stated.
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1429
tion stated additional grounds, which the judge described
as “a veritable laundry list of alleged infractions, some
quite petty.” Petitions for the impeachment of Vaughan,
Smith, and Herrera then followed.
On April 27 the Union’s trial board voted to remove
Mitchell-Carr from her elected office of vice president
and to expel her permanently from the Union. Then, on
May 26, the trial board voted to remove Vaughn from his
elected office of trustee and to suspend his membership
for 5 years, to suspend Herrera’s membership for 5 years,
and to expel Smith permanently.11 The Union never did
act on the petition to impeach President McLendon.
The General Counsel asserted that the Union violated
Section 8(b)(1)(A) when it disciplined the four members
of the Mitchell-Carr faction in retaliation for their oppo-
sition to McLendon’s policies and alleged misconduct.
The judge refused to find an 8(b)(1)(A) violation and
instead found that the Board has no subject-matter juris-
diction over these issues.
The judge initially expressed doubt that the four indi-
viduals at issue here were in fact “employees” within the
meaning of Section 8(b)(1)(A). He noted that, although
they were clearly employees of Sandia Corporation, the
events at issue involved an internal union dispute unre-
lated to that employment. Additionally, the judge found
that the dissident activities of Mitchell-Carr and the other
three employees were not protected by Section 7 be-
cause, as stated by the judge, “Section 7 is aimed at the
mutual interests of employees in their capacity as em-
ployees, not in their capacity as union officers or mem-
bers.”12 The judge also found that the Union’s conduct

11 The judge noted that “[t]he General Counsel did adduce evidence . . .
that may give rise to the conclusion that these trials were caused and con-
ducted in a fundamentally unfair and irregular manner. At the very least
they were conducted in absentia.”
12 These findings of the judge are clearly incorrect. As noted supra and
as explained infra, dissident activities by union members are clearly pro-
tected by Sec. 7. See, e.g., Mobil Exploration & Producing v. NLRB, No.
97-60789 (5th Cir. Dec. 23, 1999), slip op. at 6 (“The Board correctly relied
on the well settled principle that Section 7 encompasses the right of employ-
ees to oppose the policies and actions of their incumbent union leadership
and to seek to persuade other employees to take steps to align the union with
these opposing views.”); Laborers Local 324 v. NLRB, 123 F.3d 1176, 1178
(9th Cir. 1997) (“The Sec. 7 rights have long been understood to include the
right of employees to be critical of the union and its management.”); La-
borers Local 324 (AGC of California), 318 NLRB 589 (1995), enf. granted
in part and denied in part 123 F.3d 1176 (9th Cir. 1997) (“The Board has
long held that Sec. 7 guarantees employees the right to criticize their bar-
gaining representative or to persuade others to take such steps as they deem
necessary to align their union with their position.”); Teamsters Local 186
(Associated General Contractors), 313 NLRB 1232, 1234–1235 (1994)
(affirming administrative law judge’s decision, which stated that “[f]or
many years the Board has ruled efforts by a union member/employee to
attempt to change current policies of the union which represents him or to
politically oppose an incumbent officer of that union are the exercise of
rights guaranteed by Sec. 7 of the Act.”) (footnote omitted); East Texas
Motor Freight, 262 NLRB 868, 871 (1982) (“It has long been held that Sec.
7 guarantees to employees the right to question the wisdom of their repre-
sentative or to take steps to align their union with their position.”) (footnote
omitted); Steelworkers Local 1397, 240 NLRB 848, 849 (1979) (“That an
employee’s right to engage in intraunion activities in opposition to the in-
in the present case fell within the proviso to Section
8(b)(1)(A) insulating certain internal union matters from
the effects of that section.13 Finally, the judge deter-
mined that the only remedy available to the employees
here was under the LMRDA, a statute that places juris-
diction in the United States District Courts.
My colleagues affirm the judge’s decision with their
own explication. They adopt a much more narrow read-
ing of Section 8(b)(1)(A) than that traditionally applied
by the Board and the United States Supreme Court.
They emphasize the difference between external and
internal enforcement of union rules, the former involving
discipline that impacts the employee’s employment rela-
tionship, and assert that Section 8(b)(1)(A) does not pro-
hibit discipline falling into the latter category. My col-
leagues acknowledge, however, that “unacceptable meth-
ods of union coercion in the employment context, such as
threats of loss of employment or physical violence to
force a dissenting employee to join a union during an
organizational campaign or to participate in a strike” and
conduct “that directly impedes access to the Board’s
processes” may be proscribed by Section 8(b)(1)(A),
although it would appear that such cases need not impact
an employee’s employment relationship. Additionally,
my colleagues recognize one other situation in which
Section 8(b)(1)(A) may proscribe union conduct, al-
though they again attempt to limit the applicability of
that section to instances where the employment relation-
ship is directly affected. In this regard, they state that
“the proscriptions of Section 8(b)(1)(A) apply when in-
tra-union discipline clashes directly with statutory policy
interests and prohibitions incorporated in the Act.” In
such a situation, my colleagues aver that the underlying
activity “bear[] some relation to the employees’ interests
as employees.” And they assert that, under Section
8(b)(1)(A), there must be “some nexus with the em-
ployer-employee relationship and a violation of the rights
and obligations of employees under the Act.”
With regard to the instant case, my colleagues find that
the Union did not violate Section 8(b)(1)(A) because it
“neither impacts the participants’ relationship with their

cumbent leadership of his union is concerted activity protected by Section 7
is, of course, elementary.”); Operating Engineers Local 400 (Hilde Con-
struction Co.), 225 NLRB 596, 600 (1976), affd. mem. 561 F.2d 1021 (D.C.
Cir. 1977) (affirming the administrative law judge’s findings, including that
union members “have a right . . . under Section 7” to “[question] the wisdom
of [the union’s] conduct as their bargaining representative”); Roadway
Express, 108 NLRB at 875 fn. 3 (“The privilege to protest and to question
the wisdom of their bargaining representative and to persuade others or take
such steps as they deem necessary to align their union with their position is
inherent in the employee’s right to self-organization as guaranteed by Sec-
tion 7 of the Act.”); Nu-Car Carriers, 88 NLRB at 76 (stating that “inherent
in th[e] right [to self-organization] is the privilege of protest and persuasion
of others”).
13 The proviso to Sec. 8(b)(1)(A) states: “[T]his paragraph shall not im-
pair the right of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein.” [29 U.S.C. Sec.
158.]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1430
employer nor impairs a policy of the National Labor Re-
lations Act.” Rather, my colleagues find that the conduct
at issue centers around what is “essentially an intraunion
factional quarrel over intra-union policies and politics.”
According to my colleagues, this type of conduct is not
covered by Section 8(b)(1)(A). They assert instead that
the Federal courts are the only proper forum and the
LMRDA the only applicable law.
In narrowing the Section 8(b)(1)(A) analysis, my col-
leagues explicitly overrule several Board cases that
would bear directly on the conduct at issue here and
would clearly call for a different result, including Car-
penters Local 22 (Graziano Construction),14 Teamsters
Local 579 (Janesville Auto Transport);15 Laborers Local
324 (AGC of California);16 and Laborers, Local 652
(Southern California Contractors’ Assn.).17 As ex-
plained below, however, these cases, along with other
Board precedent, follow the Supreme Court’s 8(b)(1)(A)
analysis, which, properly applied, requires that the Board
find a violation in the instant case.
II.
A. The Supreme Court Cases
In order fully to understand the application of Section
8(b)(1)(A) in the context of this case, it is important to be
familiar with how the 8(b)(1)(A) analysis has developed
in the Supreme Court, the lower Federal courts, and the
Board. Therefore, this section offers a brief examination
and explanation of that law.
In 1967, the Supreme Court made its first major pro-
nouncements regarding 8(b)(1)(A) analysis in NLRB v.
Allis-Chalmers Mfg. Co.18 In that case, the union had
imposed fines on members who had crossed the union’s
picket line to return to work during an economic strike of
their employer.19 The Court held that the union had not
committed an unfair labor practice either by imposing the
fines or by seeking their enforcement in court. In the
course of its decision, the Court emphasized both the fact
that unions need to be able to discipline their members
for violations of union rules in order to maintain their
status as bargaining representatives and the fact that a
union’s power is “particularly vital” when it is engaged
in a strike as was the case in Allis-Chalmers.20 The
Court explained that a decision that Section 8(b)(1)(A)
impinged upon a union’s ability to strike in the situation
at issue would hit at the very core of a union’s arsenal of
economic weapons.21 The Court was unwilling to attrib-
ute such an intent to Congress.22

14 195 NLRB 1 (1972).
15 310 NLRB 975 (1993), enf. denied 145 LRRM 2200 (7th Cir. 1993).
16 318 NLRB 589.
17 319 NLRB 694 (1995).
18 388 U.S. 175 (1967).
19 Id. at 176.
20 Id. at 181.
21 In the course of its opinion, the Allis-Chalmers Court specifically em-
phasized the importance to unions of the ability to engage in economic
The Allis-Chalmers Court went on to explain that Section
8(b)(1)(A) did not interfere in the internal affairs of unions
in a manner that would forbid the conduct at issue there:
What legislative materials there are dealing with
§ 8(b)(1)(A) contain not a single word referring to
the application of its prohibitions to traditional inter-
nal union discipline in general, or disciplinary fines
in particular. On the contrary there are a number of
assurances by its sponsors that the section was not
meant to regulate in internal affairs of unions.23
The Court, however, explicitly refused to decide whether
Section 8(b)(1)(A) might forbid certain other “internal”
union conduct:
In the present case the procedures followed for calling
the strikes and disciplining the recalcitrant members
fully comported with [the procedural requirements in-
stituted by the 1959 amendments], and were in every
way fair and democratic. Whether § 8(b)(1)(A) pro-
scribes arbitrary imposition of fines, or punishment for
disobedience of a fiat of a union leader, are matters not
presented by this case, and upon which we express no
view.24
Thus, although Allis-Chalmers does take certain “in-
ternal” union conduct out of the universe of Section
8(b)(1)(A), it does not foreclose the possibility that cer-
tain other improper conduct, not lying at the heart of a
union’s economic-weapon arsenal, might be proscribed
by that section.25 And, indeed, later cases demonstrate

strikes: “The economic strike against the employer is the ultimate weapon in
labor’s arsenal for achieving agreement upon its terms, and ‘(t)he power to
fine or expel strikebreakers is essential if the union is to be an effective
bargaining agent.’” Id. (quoting Summers, Legal Limitations on Union
Discipline, 64 Harv. L. Rev. 1049 (1951)) (alteration in original).
22 Id. at 183.
23 Id. at 185–186.
24 Id. at 195 (emphasis added).
25 In fact, the Allis-Chalmers Court conceded that Sec. 8(b)(1)(A) may
have a broader reach. Throughout its opinion, the Court relied on legislative
history, noting that proponents of the amendment creating that section fo-
cused closely on curtailing union misconduct in organizing campaigns. Id.
at 185–188. In outlining this legislative history, however, the Court explic-
itly noted the possibility, found within that legislative history, of a broader
application of Sec. 8(b)(1)(A), which would directly encompass the conduct
at issue in the present case. In this regard, the Court quoted Senator Taft,
who stated in debate:
If there is anything clear in the development of labor union his-
tory in the past 10 years it is that more and more labor union employees
have come to be subject to the orders of labor union leaders. The bill
provides for the right to protest against arbitrary powers which have
been exercised by some of the labor union leaders.”
Id. at 188 (quoting 93 Cong. Rec. 4023, II Leg. Hist. 1028) (emphasis
added). The Court then went on to quote the following commentary in a fn.
24: “It is significant that among the major changes made in the Wagner Act
by the Labor Management Relations Act of 1947 was the addition of sec-
tions purported to be aimed at protecting individual union members against
undemocratic and corrupt leaders.” Id. (quoting Summers, Disciplinary
Powers of Unions, 3 Ind. & Lab. Rel. Rev. 483) (emphasis added).
Thus, even the Allis-Chalmers Court, although dealing with a case that
did not involve discipline meted out in retaliation for dissident conduct,
implied that such discipline might in fact violate Sec. 8(b)(1)(A) and in fact
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1431
that Section 8(b)(1)(A) does, in fact, forbid certain types
of seemingly “internal” union conduct.
The Supreme Court’s next decision regarding the reach of
Section 8(b)(1)(A) came in NLRB v Shipbuilders, in which
the Court determined that the union had violated the Act.26
In that case, a union member had charged the union presi-
dent with certain misconduct, and the union had decided in
favor of the president. The aggrieved member then filed an
unfair labor practice charge in lieu of proceeding through
the intra-union appeals process available to him.27 The un-
ion expelled the member on the ground that he had violated
the union constitution by failing to exhaust his internal
remedies prior to filing the unfair labor practice charge. The
union member then filed a second unfair labor practice
charge with the Board, asserting that his expulsion from the
union violated the Act.28
The Supreme Court held that the union’s conduct had
indeed violated Section 8(b)(1)(A) of the Act. The Court
emphasized the fact that the conduct involved in Ship-
builders ran counter to public policy: “[Section]
8(b)(1)(A) assures a union freedom of self-regulation
where its legitimate internal affairs are concerned. But
where a union rule penalizes a member for filing an un-
fair labor practice charge with the Board, other consid-
erations of public policy come into play.”29 As the Court
went on to explain:
A healthy interplay of the forces governed and pro-
tected by the Act means that there should be as great a
freedom to ask the Board for relief as there is to peti-
tion any other department of government for a redress
of grievances. Any coercion used to discourage, retard,
or defeat that access is beyond the legitimate interests
of a labor organization . . . . [T]he overriding public in-
terest makes unimpeded access to the Board the only
healthy alternative, except and unless plainly internal
affairs of the union are involved.30
In Shipbuilders, such “plainly internal affairs” were not
involved. Rather, the aggrieved union member’s original
unfair labor practice charge had implicated the employer as
well as the union, and purely internal union proceedings
would not have included the employer as a party, whereas
the Board proceedings could have done so and additionally
could have provided for “comprehensive and coordinated
remedies.”31 As the Court explained, “There cannot be any
justification to make the public processes wait until the un-
ion member exhausts internal procedures plainly inadequate
to deal with all phases of the complex problem concerning

laid out legislative history directly supporting such a reading of Sec.
8(b)(1)(A).
26 391 U.S. 418 (1968).
27 Id. at 419–420.
28 Id. at 421.
29 Id. at 424.
30 Id. (footnote omitted).
31 Id. at 425.
employer, union, and employee member.”32 The Shipbuild-
ers Court therefore based its finding of an 8(b)(1)(A) viola-
tion on public policy and the involvement of more than
purely internal union matters.
The next Supreme Court decision in the 8(b)(1)(A)
area made clear that both policy and the legitimacy of a
union’s interest in imposing discipline on members were
to play important roles in 8(b)(1)(A) analysis. Although
the Court in Scofield v. NLRB33 did not find an
8(b)(1)(A) violation, it did set forth a clear test for de-
termining when such a violation has occurred. In that
case, the union had instituted a production ceiling on
piecework under which any member could produce as
much as he wanted on any given day but could only draw
pay up to the set ceiling.34 The employer would then
retain wages due for any additional production and pay
them out to the employee for days on which the em-
ployee did not reach the production ceiling.35 Any mem-
ber who demanded to be paid in full each pay period
would receive his wages from the employer but would be
assessed a fine by the union for each such violation of
the production ceiling.36 Members who failed to pay the
fines would then be subject to expulsion.37
The Scofield Court determined that the union’s produc-
tion ceiling and enforcement thereof did not violate Section
8(b)(1)(A). However, the Court specifically noted that “it
has become clear that if the rule invades or frustrates an
overriding policy of the labor laws the rule may not be en-
forced, even by fine or expulsion, without violating §
8(b)(1).”38 The Court then set forth the following test for
Section 8(b)(1)(A) violations: A union will not violate that
section as long as it is “enforc[ing] a properly adopted rule
which reflects a legitimate union interest, impairs no policy
Congress has imbedded in the labor laws, and is reasonably
enforced against union members who are free to leave the
union and escape the rule.”39
In applying this test to the facts before it, the Scofield
Court noted that the record did not indicate “that the
fines were unreasonable or the mere fiat of a union
leader” or that membership in the union was involun-
tary.40 Additionally, the rule was not improperly en-
forced, e.g., through violence or employer discrimina-
32 Id.
33 394 U.S. 423 (1969).
34 Id. at 424.
35 Id. at 424–425.
36 Id. at 425.
37 Id.
38 Id. at 429 (emphasis added). As recently as 1987, the Supreme Court
reaffirmed the importance of labor policy in determining violations of Sec.
8(b)(1). In NLRB v. Electrical Workers IBEW Local 340, 481 U.S. 573
(1987), a case involving Sec. 8(b)(1)(B), the Court compared the application
of that section to that of Sec. 8(b)(1)(A) and stated, “Section 8(b)(1)(B) must
be similarly interpreted [to Section 8(b)(1)(A)] to allow unions to enforce
internal union rules that impair no labor policy.” Id. at 592 fn. 16 (emphasis
added).
39 394 U.S. at 430.
40 Id. at 430.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1432
tion, but instead was accomplished through the internal
technique of fines and the threat of expulsion.41 The
Court then turned to whether the rule at issue failed to
vindicate a legitimate union interest or violated any la-
bor-law policy.42 The Court found a legitimate union
interest in the historical opposition of unions to the type
of pay system at issue in Scofield.43 Additionally, the
Court determined that the union’s rule did not violate
labor policy.44 Thus, the production-ceiling rule did not
violate Section 8(b)(1)(A).
After Scofield, the Supreme Court decided three addi-
tional cases that further refined the Section 8(b)(1)(A)
analysis. In NLRB v. Granite State Jt. Bd. Local 1029,45
the Court, drawing on Scofield’s requirement that a union
rule must be “reasonably enforced against union mem-
bers who are free to leave the union and escape the
rule,”46 held that a union that attempts to impose fines on
members who have resigned and returned to work during
a lawful strike violates Section 8(b)(1)(A).47 The Court
reasoned that, when an employee has resigned his or her
union membership, the union “has no more control over
[him or her] than it has over the man in the street.”48
In Pattern Makers League v. NLRB,49 the Supreme
Court answered the next logical question: whether a
union could lawfully restrict members’ ability to resign.
In that case, the union’s constitution stated that members
could not resign during a strike or when a strike was im-
minent.50 When certain members resigned during a
strike and returned to work, the union imposed fines on
them.51 The Supreme Court determined that the union’s
fining of these employees violated Section 8(b)(1)(A).52
The Court reasoned that the union’s rule impaired a pol-
icy that “Congress has imbedded in the labor laws,”53
because the union’s rule was “inconsistent with the pol-
icy of voluntary unionism implied in § 8(a)(3)” of the
Act.54 The Court noted that the Act forbids full union
membership as a requirement of employment, meaning
that an employee who refuses to join a union cannot have
his employment terminated and that an employee who
joins a union and subsequently resigns also cannot be
discharged.55 A union rule limiting members’ right to
resign would “[curtail] this freedom to resign.”56

41 Id. at 430–431.
42 Id. at 431.
43 Id.
44 Id. at 431–435.
45 409 U.S. 213 (1972).
46 Id. at 216 (quoting Scofield, 394 U.S. at 430).
47 Id. at 217–218.
48 Id. at 217.
49 473 U.S. 95 (1985).
50 Id. at 96.
51 Id.
52 Id. at 100.
53 Id. at 104 (quoting Scofield, 394 U.S. at 430).
54 Id. at 104–105 (citations and footnote omitted).
55 Id. at 106.
56 Id.
Finally, in NLRB v. Boeing Co.,57 the Supreme Court
clarified some of the Scofield language. In addition to
laying out the test explained above, the Scofield Court
had stated that “the union rule is valid and that its en-
forcement by reasonable fines does not constitute the
restraint or coercion proscribed by § 8(b)(1)(A).”58 In
Boeing, the question arose whether the Board should
police the reasonableness of union fines when determin-
ing whether the fines were imposed in violation of Sec-
tion 8(b)(1)(A).59 The Court held that the Board should
not consider the reasonableness of union fines because
Section 8(b)(1)(A) was “not intended by Congress to
apply to the imposition by the union of fines not affect-
ing the employer-employee relationship and not other-
wise prohibited by the Act.”60 In so holding, however,
the Boeing Court clearly did not alter the test to be ap-
plied in determining whether an 8(b)(1)(A) violation had
occurred. As the Court explained, in that case:
[T]he Board was warranted in determining that when
the union discipline does not interfere with the em-
ployee-employer relationship or otherwise violate a
policy of the National Labor Relations Act, the Con-
gress did not authorize it “to evaluate the fairness of un-
ion discipline meted out to protect a legitimate union
interest.”61
Thus, Boeing does nothing more than affirm the Board’s
determination that it should not delve into the reasonable-
ness of a fine when the reason for the imposition of the dis-
cipline itself does not fail the Scofield test.
In these various cases examining the proper analysis to
be performed under Section 8(b)(1)(A) then, the Su-
preme Court created a fairly clear test. That test is em-
bodied in the language of Scofield laid out above. Boe-
ing merely reemphasizes the need for the Board to stay
its hand when dealing with purely “internal” union mat-
ters in the sense that, if union discipline is otherwise
proper under Section 8(b)(1)(A), then it cannot be found
violative of that section based purely on the “unreason-
ableness” of the amount of the fine. Boeing, however,
did not alter the central test enunciated in Scofield: union
discipline will violate Section 8(b)(1)(A) unless the un-
ion is “enforc[ing] a properly adopted rule which reflects
a legitimate union interest, impairs no policy Congress
has imbedded in the labor laws, and is reasonably en-
forced against union members who are free to leave the
union and escape the rule.”62
B. The Lower Federal Courts and the Board
During the course of the Supreme Court’s examination
of Section 8(b)(1)(A), the Board and the lower Federal
57 412 U.S. 67 (1973).
58 Id. at 72 (quoting Scofield, 394 U.S. at 436) (emphasis added).
59 Id. at 68.
60 Id. at 73 (emphasis added).
61 Id. at 78 (emphasis added).
62 Scofield, 394 U.S. at 430.
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1433
courts continued to explicate employee rights in this
area, following the analysis laid out by the Supreme
Court in Allis-Chalmers, Shipbuilders, and Scofield.
Perhaps the most obvious question to arise after Allis-
Chalmers’s determination that fining members for re-
turning to work during a lawful strike does not violate
Section 8(b)(1)(A) was whether disciplining members for
refusing to participate in unprotected or unlawful strikes
would violate that Section.
In National Grinding Wheel Co.,63 the Board adopted
the findings of the trial examiner, who had determined
that a union’s imposition of fines on certain members for
crossing a picket line violated Section 8(b)(1)(A).64 The
trial examiner concluded that the work stoppage, in that case
a sympathy strike, violated the no-strike clause to which the
union had agreed in its collective bargaining agreement with
the employer.65 The trial examiner then went on to find that
the union’s imposition of fines for the members’ refusal to
respect the picket line of a sister local and thus engage in
unprotected activity was adverse to public policy and there-
fore violative of Section 8(b)(1)(A). The trial examiner
explained that the policy at issue “concern[ed] the adher-
ence to the terms of a labor contract between representatives
of employers and employees and the condemnation of their
violation.”66 He noted that this policy was “implicit in the
preamble of the Act . . . and in the reports of both houses of
Congress.”67 Further, the trial examiner explained that con-
doning the union’s conduct by failing to find a violation
would “provide an incentive to unions and members to vio-
late contracts,” which would also undermine a policy of the
Act.68
The Ninth Circuit has approved of the Board’s ap-
proach to cases involving union discipline of members
who refuse to honor picket lines during unlawful or un-
protected strikes. In NLRB v. Stationary Engineers Local
39,69 the Ninth Circuit, after noting that the work stop-
page at issue was in violation of Section 8(g) of the Act,
agreed with the Board that the union had violated Section
8(b)(1)(A) when it fined members who refused to par-

63 176 NLRB 628 (1969).
64 The Board in National Grinding Wheel also held that a union’s agree-
ment to a broad no-strike clause waives its right to engage in sympathy
strikes. This aspect of the opinion was overruled. See Operating Engineers
Local 18, 238 NLRB 652, 653–654 (1978) (noting that this aspect of Na-
tional Grinding Wheel was overruled by Keller-Crescent Co., 217 NLRB
685 (1975), enf. denied 538 F.2d 1291 (7th Cir. 1976), and Gary-Hobart
Water Corp., 210 NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975),
cert. denied 423 U.S. 925 (1975)). However, Operating Engineers’ deter-
mination that a broad no-strike clause does not waive the right to engage in
sympathy strikes was then also overruled. See Indianapolis Power Co., 273
NLRB 1715 (1985), review granted 797 F.2d 1027 (D.C. Cir. 1986), sup-
plemental decision 291 NLRB 1039 (1988), enfd. 898 F.2d 524 (7th Cir.
1990).
65 176 NLRB at 630.
66 Id. at 631.
67 Id. at 631–632 (footnote omitted).
68 Id. at 632.
69 746 F.2d 530 (9th Cir. 1984).
ticipate in the strike.70 The court found that the union’s
conduct was antagonistic to national labor policy because
of the union’s violation of Section 8(g).71 Similarly, in
NLRB v Glaziers & Glassworkers Local 1621,72 the
Ninth Circuit held that a union violated Section
8(b)(1)(A) when it disciplined members who insisted on
working for a neutral employer and thus refused to en-
gage in a secondary boycott. The court reasoned that
such secondary activity would violate Section 8(e) of the
Act and thus disciplining members who refused to en-
gage in it would impair the national labor policy against
secondary boycott activity.73
Clearly, under these cases, a union that disciplines
members who refuse to take part in strikes that are them-
selves unlawful or unprotected (e.g., in violation of a no-
strike clause) violates Section 8(b)(1)(A). Such a deter-
mination follows fairly easily from the Supreme Court’s
8(b)(1)(A) analysis calling for the finding of a violation
when union conduct impairs national labor policy.
The Board and the Ninth Circuit, however, were faced
with a similar, but importantly different, situation in
NLRB v. Retail Clerks Local 1179.74 There, the union
had fined members who crossed the picket line during a
sympathy strike. Unlike in National Grinding Wheel,
Stationary Engineers, and Glaziers & Glassworkers, the
sympathy strike in which the Retail Clerks members refused
to take part was not itself illegal as it did not violate the
NLRA and also was not unprotected activity as the union’s
no-strike clause specifically allowed for the type of strike at
issue.75 Thus, at first glance, the case would seem to fall
within the bounds of Allis-Chalmers, which, as explained
above, sanctioned the fining of members who refuse to par-
ticipate in a lawful, protected strike. In Retail Clerks, how-
ever, the Board and the Ninth Circuit determined that the
union’s conduct in disciplining the members who refused to
take part in the strike violated Section 8(b)(1)(A). The un-
ion had called the sympathy strike to support a teamsters
strike, which subsequently was found to have violated Sec-
tion 8(b)(7) of the Act.76 As noted, however, there was no
suggestion that the sympathy strike itself was unlawful or
unprotected.77
The Ninth Circuit conducted the Scofield analysis ex-
plained above. First, it determined that the procedure
utilized by the union, fining members to enforce its by-
laws, was reasonable and proper.78 Next, the court de-
termined that the union had a legitimate interest in con-
ducting a sympathy strike, because such strikes “[serve]
the legitimate union interest of promoting mutual aid and
70 Id. at 533–534.
71 Id. at 535.
72 632 F.2d 89 (9th Cir. 1980).
73 Id. at 92–93.
74 526 F.2d 142 (9th Cir. 1975).
75 Id. at 146.
76 Id. at 144.
77 Id. at 146.
78 Id. at 145–146.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1434
cooperation with other unions.”79 Finally, however, the
court found that the union’s conduct impaired national
labor policy. The court reasoned that the sympathy
strike’s purpose had been to support picketing that was
later found to be a violation of the Act and that, even
though the original decision to call the sympathy strike
had been made in good faith, the attempt to discipline
members even after the Board had determined that the
underlying Teamsters’ picket was illegal “tend[ed] to
impair the policy against” illegal picketing found in Sec-
tion 8(b)(7) of the Act.80 This was true even though the
sympathy strike in and of itself was not illegal nor unpro-
tected activity.
The D.C. Circuit has also found union conduct viola-
tive of Section 8(b)(1)(A) as an impairment of national
labor policy in a situation where it was less clear that the
underlying action directly violated a specific provision of
the Act or of a collective bargaining agreement. In Ele-
vator Constructors Local. 8 v. NLRB,81 the union’s con-
stitution required members to pay fines prior to dues, and
the union’s collective-bargaining agreement with the
employer contained a union-security clause, which re-
quired the employer to discharge any employee who
failed to maintain union membership.82 The court noted
that union-security clauses are valid under the Act so
long as the membership obligations that they impose
“include only the ‘financial core’ of dues and initiation
fees.”83 The Act, however, forbids unions from affecting
an employee’s job status on the ground that he or she
failed to pay fines or to adopt a dues-checkoff system,
and therefore, the court noted, a threat to discharge an
employee for failure to pay fines would violate Section
8(b)(1)(A).84 After considering the union’s rule regarding
the payment of fines before dues under the Scofield analy-
sis, the D.C. Circuit determined that it was unlawful.
Although the court found that the rule served the legiti-
mate union purpose of encouraging the payment of fines,
it held that the rule impaired a national labor policy when
juxtaposed with the union-security clause.85 The two
provisions together contravened policies of the Act be-
cause members might believe, under the terms of the two
provisions, that they were required to pay fines before
dues and thus that they could not refuse to pay a fine and
yet retain their jobs under the union-security clause.86
As these cases demonstrate, the courts and the Board
have not hesitated to find that union discipline of mem-
bers violates Section 8(b)(1)(A) when that discipline
impairs a national labor policy even when the rule and

79 Id.
80 Id. at 147.
81 665 F.2d 376 (D.C. Cir. 1981).
82 Id. at 377.
83 Id. at 378 (quoting NLRB v. General Motors Corp., 373 U.S. 734
(1963)).
84 Id. at 378–379.
85 Id. at 380.
86 Id. at 382.
discipline involved meet the other criteria of the Scofield
test. The cases discussed so far have not considered how
discipline of dissident union members fits into the
8(b)(1)(A) analysis. The following section discusses the
application of the 8(b)(1)(A) analysis in this area of dis-
cipline in retaliation for dissident activity.
C. Section 8(b)(1)(A) and Dissident Activity
The Board and the Federal circuit courts have had nu-
merous opportunities to address the application of Sec-
tion 8(b)(1)(A) to cases in which unions disciplined
members who had engaged in dissident union activity
like that involved in the instant case, such as expressing
disapproval of the incumbent union leadership and at-
tempting to persuade other members to join in opposi-
tion. For the most part, both the Board and the Federal
courts have employed the same analysis as in other areas
of 8(b)(1)(A) applicability. That is, they have focused on
whether the discipline at issue reflected a legitimate un-
ion interest and whether it impaired national labor-law
policies. The first major Board decision in this area,
Carpenters Local 22 (Graziano Construction Co.),87 is
one that my colleagues reject and overrule.
In Graziano, the union fined a member for violation of
certain rules, but the Board found that the union was us-
ing these rules as a pretext for punishing the member for
his opposition to certain incumbent officials.88 The
Board, applying Scofield, determined that the union’s
discipline of the dissident member violated Section
8(b)(1)(A) because it impaired certain policies that Con-
gress had imbedded in the labor laws. Specifically, the
Board held that the union’s conduct impaired the policies
of the LMRDA, which guarantees members the right “to
participate fully and freely in the internal affairs of [their]
own union.”89
In Graziano, unlike the cases discussed above, the
Board based its finding of a Section 8(b)(1)(A) violation
on the impairment of labor policies found outside the
NLRA. However, the Board explained that it was
“charged with considering the full panoply of congres-
sional labor policies in determining the legality of a un-
ion fine”90 and that the Supreme Court had “charged . . .
[it] with the duty of determining the overall legitimacy of
union interest,” requiring it to “take into account all Fed-
eral policies and not limit [itself] to those embodied in
[the NLRA].”91 My colleagues take issue with this ap-
proach employed in Graziano,92 but as I explain below,
87 195 NLRB 1 (1972).
88 Id. at 1.
89 Id. at 2.
90 Id. (footnote omitted).
91 Id. at 2 fn. 5.
92 It should be noted here that the D.C. Circuit has explicitly approved the
Board’s consideration of statutes other than the NLRA when making
8(b)(1)(A) determinations. See Helton v. NLRB, 656 F.2d 883, 895–896
(D.C. Cir. 1981). For a more detailed explanation of Helton, see infra text
accompanying fns. 98–103.
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1435
even when the LMRDA is not considered, union disci-
pline of members based on their dissident activity vio-
lates Section 8(b)(1)(A) because it impairs policies found
directly under the NLRA.
Cases after Graziano explicitly base Section
8(b)(1)(A) violations on the impairment of Section 7
policies as well as policies found in the LMRDA. For
example, in Operating Engineers Local 400 (Hilde Con-
struction Co.),93 the Board affirmed an Administrative
Law Judge’s decision that the union had violated Section
8(b)(1)(A) when it disciplined members for holding a
meeting to determine if other members agreed with them
that the union should redirect its bargaining strategy.94
The judge first noted that the members, through this
meeting, were “questioning the wisdom” of their union
and thus that the members were engaged in activity pro-
tected by Section 7.95 In considering whether the union
had impaired a policy imbedded in the labor laws, the
judge pointed both to this Section 7 policy of protecting
members who “question the wisdom of their representa-
tive and . . . pursue a course designed to align their repre-
sentative with their position” and to the LMRDA policy
of protecting union members in their right “to discuss
freely and criticize the management of their unions and
the conduct of their officers.”96 Thus, in Hilde Construc-
tion, the Board found an 8(b)(1)(A) violation on the
ground that the union’s conduct in disciplining dissident
members violated policies embodied not only in the
LMRDA but also in the NLRA itself.97
The D.C. Circuit has approved the Board’s approach.
In Helton v. NLRB,98 the union had refused to allow a
member to post on the union’s bulletin board literature
that criticized the union, although the union would have
allowed him to post any other type of material.99 Al-
though the Board, apparently finding that Section
8(b)(1)(A) applied only to conduct “involv[ing] threats
of violence, economic reprisal, or discipline,” had found
no violation, the D.C. Circuit determined that the union
had violated Section 8(b)(1)(A).100 The court began by

93 225 NLRB 596 (1976), affd mem. 561 F.2d 1021 (D.C. Cir. 1977).
94 Id. at 601.
95 Id. As explained above, the Board has long held that union members
have a right, under Sec. 7, to criticize their union and to attempt to persuade
other members to join them in opposition to the incumbent union leadership.
See supra fn. 12.
96 Id. at 602 (quoting Salzhandler v. Caputo, 316 F.2d 445, 448–449 (2d
Cir. 1963), cert. denied 375 U.S. 946 (1963)).
97 See also Associated General Contractors, 313 NLRB 1232 (affirming
administrative law judge’s finding of 8(b)(1)(A) violation based on impair-
ment of LMRDA and Sec. 7 policies); Janesville Auto Transport, 310
NLRB 975 (1993), enf. denied 145 LRRM 2200 (7th Cir. 1993) (finding an
8(b)(1)(A) violation because union’s discipline of dissident members im-
paired policies found in LMRDA right “to participate fully and freely in
internal union affairs” and in Sec. 7 right “to concertedly oppose the deci-
sions made by the incumbent leadership of the Union”).
98 656 F.2d 883 (D.C. Cir. 1981).
99 Id. at 884.
100 Id. at 887. Although, as briefly explained, this case involved conduct
by the union other than actual discipline and may be distinguishable from
noting that the member’s attempt to disseminate materi-
als critical of the union was protected dissident activity
under Section 7 and that therefore the union’s removal of
that material from its bulletin board “restrained” the
member in the exercise of his Section 7 rights.101 The
court then went on to find that the union’s conduct did
not fall within Section 8(b)(1)(A)’s internal-affairs pro-
viso and in fact came within the prohibitive reach of that
section. In this regard, the court applied the Scofield test
and found that the union’s conduct not only failed to re-
flect a legitimate union interest but also impaired policies
imbedded in the labor laws.102 The court explained that
the union’s removal of the member’s material from its
bulletin board impaired Section 7 policies allowing ex-
pression of dissident views and also impaired the free-
speech policies imbedded in the LMRDA.103
Along the same lines as these cases involving union
discipline meted out explicitly as a result of dissident
activity, the Board has been confronted with cases in-
volving union discipline for the asserted violation of un-
ion rules not aimed at dissident conduct when the as-
serted reasons for the discipline were merely pretextual,
as in the present case.104 The Board has found 8(b)(1)(A)

the present case on that ground, the D.C. Circuit’s reasoning remains appli-
cable. It is important to note also that cases like the present one in which the
union actually disciplines members for dissident conduct are more clearly
within the reach of Sec. 8(b)(1)(A) than Helton under Board precedent.
Thus, even if the Board should continue to reject the D.C. Circuit’s broad
finding in Helton that the union’s failure to allow a member to post dissident
material alone violates Sec. 8(b)(1)(A), the reasoning employed by the
court, like that of the Board in previous cases, would remain relevant to a
case involving actual discipline, such as the one under consideration here.
101 Id. at 888. In determining that the union’s conduct had restrained the
member’s Sec. 7 rights, the Helton court specifically noted the importance
of considering Sec. 8(b)(1)(A)’s legislative history in determining that sec-
tion’s reach:
[T]he Supreme Court has stated that interpretations of Sec. 8(b)(1)(A)
must be guided not just by the section’s literal language, but also by an
understanding of the congressional purpose. Our review of the legis-
lative history fails to convince us that Congress intended Sec.
8(b)(1)(A) to apply solely to union conduct involving threats of vio-
lence, economic reprisal, or discipline.
The sponsors of the Taft Hartley Act, in explaining their proposed
legislation, focused primarily on the need to control union violence
and economic coercion. . . . However, nothing in the legislative his-
tory supports the conclusion that violence and economic reprisal were
the sole evils at which Sec. 8(b)(1)(A) was aimed. Rather, it appears
that Congress intended Sec. 8(b)(1)(A) to cover a range of conduct as
broad as that covered by Sec. 8(a)(1). Senator Ball, a co-sponsor of
the legislation, stated that “the purpose of the amendment is very sim-
ple. It is to insert an unfair-labor practice for unions identical with the
first unfair labor practice prohibited to employers in the present act.”
Id. at 888–889 (quoting 93 Cong. Rec. 4016 (1947), 2 Leg. Hist. 1018)
(citations and footnotes omitted). The D.C. Circuit thus confirmed that the
legislative history of Sec. 8(b)(1)(A) calls for an understanding of that sec-
tion that is broad enough to include protection of dissident conduct.
102 Id. at 894–895.
103 Id. at 895–896.
104 My colleagues question the pretextual nature of the reasons given for
the discipline of the Mitchell-Carr faction. Although the judge did not
explicitly state that the Union’s reasons were pretextual, the following find-
ings laid out in his decision support a determination that the Union’s reasons
were indeed mere pretext: (1) The judge found that the impeachment peti-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1436
violations in these cases as well and, in fact, in several of
these cases, the Board has found an 8(b)(1)(A) violation
based on Section 7 policies without mention of the
LMRDA. For example, in Carpenters (Daniel Construc-
tion Co.),105 the Board affirmed an administrative law
judge’s decision that the union had violated Section
8(b)(1)(A) by asserting pretextual charges against a un-
ion member who had criticized the incumbent union ad-
ministration. The judge had found that:
Pressing groundless charges against a union
member by a union official [because of the mem-
ber’s opposition to the incumbent union administra-
tion] or out of personal spite growing out of those
reasons . . . constitutes union restraint and coercion
against the employee in the exercise of his Section 7
rights, and thus also violates Section 8(b)(1)(A) of
the Act.”106
Neither the judge nor the Board found it necessary to men-
tion the LMRDA in finding this violation.107
Similarly, in Machinists Local 707 (United Technolo-
gies),108 the Board affirmed an administrative law
judge’s decision that the union had violated Section
8(b)(1)(A) by making internal disciplinary charges
against certain dissident union members in reprisal for
their dissident activity.109 Because he found that these
charges would not have been brought against the union

tion made against Mitchell-Carr was “transparently in retaliation” for
Mitchell-Carr’s attempt to impeach Union president McLendon and that the
petition contained “a veritable laundry list of alleged infractions, some quite
petty”; (2) The judge stated that the petitions against the other members of
the Mitchell-Carr faction were “similar”; and (3) The judge found that
“[t]he verities of the underlying petitions against the four are suspect and
may well have been improper.”
105 227 NLRB 72 (1976).
106 Id. at 81. In this particular case, the union also caused the member’s
employer to discriminate against him and thus additionally violated Sec.
8(b)(2). Id.
107 This is not to suggest that the Board, before today, had abandoned the
LMRDA as a source of relevant labor policy for purposes of an 8(b)(1)(A)
analysis. Rather, as recently as 1993 and 1995, the Board has continued to
uphold the reasoning employed in Graziano. See Janesville Auto Trans-
port, 310 NLRB at 975 (“The Board has interpreted . . . decisions of the
Supreme Court to mean that internal union discipline, imposed in retaliation
for a member’s exercise of the right to engage in intraunion activities in
opposition to the incumbent leadership of the union, violates Sec. 8(b)(1)(A)
because it . . . impairs a policy which Congress has imbedded in the labor
laws, e.g., the right guaranteed by the Labor-Management Reporting and
Disclosure Act of 1959 to participate fully and freely in internal union af-
fairs.”) (citing Graziano, 195 NLRB at 2); AGC of California, 318 NLRB
at 590 (“[T]he Respondent’s . . . rule was aimed at stifling the kind of free
speech that Congress sought to protect under the Labor-Management Re-
porting and Disclosure Act (LMRDA). Thus, the rule ‘impairs [a] policy
Congress has imbedded in the labor laws.’”) (citing Graziano, 195 NLRB 1)
(quoting Scofield, 394 U.S. at 430). As explained supra, my colleagues
overrule both of these cases.
108 276 NLRB 985 (1985), enfd 817 F.2d 235 (2d Cir. 1987).
109 Also at issue in United Technologies were threats and charges based
explicitly on the members’ dissident activity. Although that conduct by the
union was also found to violate Sec. 8(b)(1)(A), id. at 992, the conduct most
relevant here is the discipline based on charges not explicitly brought for
dissident conduct but rather as a pretext and in reprisal for the members’
dissident conduct.
members had they not “engaged in activity protected by
Section 7” when they distributed a campaign leaflet that
was critical of union officials, the judge determined that
the union had violated Section 8(b)(1)(A) by charging
the members with internal union misconduct.110 Again,
neither the judge nor the Board mentioned the LMRDA,
choosing instead to base the 8(b)(1)(A) violation on the
Section 7 right at issue.
As these cases demonstrate, the 8(b)(1)(A) analysis
enunciated by the Supreme Court in Scofield has been
applied consistently by the Board over the years. Thus,
when unions have attempted to discipline members for
dissident activities, such as expressing views different
from those of the incumbent leadership or attempting to
persuade other members to join them in their opposition
to the current approach taken by the union, the Board has
found violations of Section 8(b)(1)(A). The Board has
appropriately done so in cases involving discipline meted
out explicitly in response to dissident activity and in
cases involving discipline ostensibly in response to viola-
tions of other union rules but where those alleged rule
violations were merely a pretext for the use of discipline
in retaliation for dissident activity. The Board’s ap-
proach to these cases has focused on the lack of a legiti-
mate union interest in silencing the dissident views of its
members and especially on the tendency of such conduct
to impair national labor policies. The policies to which
the Board has turned to support its findings of violations
have stemmed from both the NLRA’s Section 7 right to
criticize one’s bargaining representative and to persuade
others to join in an attempt to change the union’s position
on a given issue as well as from the LMRDA’s right of
free expression.
My colleagues’ approach in the present case both sets
aside this long line of precedent and ignores the Supreme
Court’s 8(b)(1)(A) analysis. Additionally, what my col-
leagues accomplish in this case is a derogation of the
established rights of individual union members. As ex-
plained below, a proper application of precedent, includ-
ing that of the Supreme Court, would result in a finding
of an 8(b)(1)(A) violation. Such an approach is proper
based not only on this established precedent but also
based on a healthy respect for individual rights as pro-
vided for by Congress in the national labor laws.
III.
A. Section 8(b)(1)(A) Applied
Clearly, under the relevant law, including both Board
and Federal court decisions, the Union in the instant case
violated Section 8(b)(1)(A). As explained above, the
four members who made up the Mitchell-Carr faction
were, as found by the judge, disciplined as a result of
their dissident activity, i.e., drawing attention to the Un-
110 Id. at 996.
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1437
ion president’s conduct and attempting to have him im-
peached.
When the Scofield analysis is properly applied to the
facts of this case, it results in a finding of an 8(b)(1)(A)
violation. The most important, and here the most rele-
vant, aspects of Scofield are whether the Union’s conduct
failed to reflect a legitimate union interest and whether it
impaired a policy that Congress has imbedded in the na-
tional labor laws. It can hardly be said that attempting to
silence union members who disagree with the incumbent
administration furthers a legitimate union interest, but
more importantly, the Union’s conduct here clearly im-
pairs national labor policy. As explained, the members
of the Mitchell-Carr faction opposed a variety of activity
by Union President McLendon, including his allegedly
circumventing the collective-bargaining agreement and
his mishandling of funds. With regard to the former ac-
cusation, it is abundantly clear that disciplining employ-
ees for opposing circumvention of a collective-
bargaining agreement impairs national labor policy. The
most basic policy of the NLRA is its “concern [with] the
adherence to the terms of a labor contract between repre-
sentatives of employers and employees and the condem-
nation of their violations.”111 As the Board has previ-
ously noted, this is a policy that is “implicit in the pre-
amble of the Act . . . and in the reports of both houses of
Congress.”112
The Mitchell-Carr faction’s opposition to McLendon’s
other alleged misconduct (e.g., the mishandling of union
funds) is similarly protected activity for which they can-
not be disciplined without a violation of Section
8(b)(1)(A). As the cases outlined above demonstrate, the
imposition of discipline in retaliation for such dissident
activity impairs the policy found in Section 7 of the
NLRA, which clearly protects such dissident conduct.
Additionally, the Union’s conduct impairs the policy
explicitly laid out in the LMRDA, which protects union
members’ right to free expression.
As noted previously, it is clear, under Board precedent,
that the NLRA, in Section 7, embodies a policy of pro-
tecting dissident union members and that, therefore, a
violation of Section 8(b)(1)(A) can be found even with-
out reference to the LMRDA. As explained, the Board
has long held that union members have a right under Sec-
tion 7 to question the wisdom of their representative’s
actions and the direction that its incumbent administra-
tion takes. Similarly, Section 7 provides union members
with the right to attempt to convince other members to
support them in their challenge of the incumbent admini-
stration and their representative’s current direction.113
The fact that Section 7 does not explicitly refer to union
members who oppose the direction that their representa-

111 National Grinding Wheel, 176 NLRB at 631.
112 Id. at 631–632 (footnote omitted).
113 For a recapitulation of the Board law with regard to dissident union
members’ Sec. 7 rights, see supra fn. 12.
tive is taking is irrelevant. The Supreme Court itself, in
Pattern Makers, referred to the appropriateness of con-
sidering implied policy when performing the Scofield
Section 8(b)(1)(A) analysis. As explained above, in Pat-
tern Makers, the Court held that restrictions on the right
of union members to resign violated Section 8(b)(1)(A)
because such restrictions impair “the policy of voluntary
unionism implied in § 8(a)(3)” of the Act.114 A policy of
protecting dissident union members has surely been im-
plied in Section 7 of the Act, and the union’s discipline
of its members here in retaliation for their dissident
activity impairs that Section 7 policy and thus violates
Section 8(b)(1)(A).
Furthermore, as in Graziano and other cases discussed
above, the Union’s conduct here impairs the policy that
Congress has imbedded in the LMRDA. Section
101(a)(2) of the LMRDA provides in relevant part:
Every member of any labor organization shall have the
right to meet and assemble freely with other members;
and to express any views, arguments, or opinions; and
to express at meetings of the labor organization his
views, upon candidates in an election of the labor or-
ganization or upon any business properly before the
114 473 U.S. at 104–105 (emphasis added).
Sec. 8(a)(3) of the Act provides that an employer commits an unfair labor
practice:
(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage member-
ship in any labor organization: Provided, That nothing in this Act
[subchapter], or in any other statute of the United States, shall pre-
clude an employer from making an agreement with a labor organiza-
tion (not established, maintained, or assisted by any action defined in
section 8(a) of this Act [in this subsection ]as an unfair labor practice)
to require as a condition of employment membership therein on or af-
ter the thirtieth day following the beginning of such employment or
the effective date of such agreement, whichever is the later, (i) if such
labor organization is the representative of the employees as provided
in section 9(a) [section 159(a) of this title], in the appropriate collec-
tive-bargaining unit covered by such agreement when made, and (ii)
unless following an election held as provided in section 9(e) [section
159(e) of this title] within one year preceding the effective date of
such agreement, the Board shall have certified that at least a majority
of the employees eligible to vote in such election have voted to rescind
the authority of such labor organization to make such an agreement:
Provided further, That no employer shall justify any discrimination
against an employee for nonmembership in a labor organization (A) if
he has reasonable grounds for believing that such membership was not
available to the employee on the same terms and conditions generally
applicable to other members, or (B) if he has reasonable grounds for
believing that membership was denied or terminated for reasons other
than the failure of the employee to tender the periodic dues and the ini-
tiation fees uniformly required as a condition of acquiring or retaining
membership.
This section does not set out an explicit policy of voluntary unionism.
However, the Supreme Court in Pattern Makers nonetheless relied on the
implicit policy of Sec. 8(a)(3) and pointed to cases in which the Board had
done the same. 473 U.S. 104–105 (citing Machinists Local 1414 (Neufeld
Porsche-Audi, Inc.), 270 NLRB 1330 (1984); Machinists Local 1327
(Dalmo Victor), 263 NLRB 984, 992 (1982)). See also National Grinding
Wheel, 176 NLRB at 631–632 (relying on policy encouraging adherence to
terms of collective-bargaining agreements, which is “implicit in the pream-
ble of the Act . . . and in the reports of both houses of Congress”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1438
meeting, subject to the organization’s established and
reasonable rules pertaining to the conduct of meet-
ings.115
As the Second Circuit has explained, “The LMRDA of
1959 was designed to protect the rights of union mem-
bers to discuss freely and criticize the management of
their unions and the conduct of their officers”;116 thus,
the LMRDA embodies a policy of protecting the type of
activity at issue in this case. The Union’s discipline of
the members of the Mitchell-Carr faction for engaging in
such activity therefore impairs a policy that Congress has
imbedded in the national labor laws and thus does not
pass muster under the Scofield test.117
It is also important to note that the Union here does not
have a legitimate interest in suspending or expelling the
members of the Mitchell-Carr faction, nor does it have a
legitimate interest in removing Mitchell-Carr and
Vaughan from their elected offices. Thus, the Union’s
conduct fails to meet another of the Scofield factors. The
Board and courts have long held that unions do not have
a legitimate interest in punishing members for expressing
dissident views.118 Although many of these cases in-
volved fining members rather than suspending or expel-
ling them, expulsion and suspension from union mem-

115 29 U.S.C. § 411(a)(2). This section of the LMRDA continues with a
proviso that is not relevant here where the section is being considered purely
for the policy to which it relates. That proviso states:
Provided, that nothing herein shall be construed to impair the right of a
labor organization to adopt and enforce reasonable rules as to the re-
sponsibility of every member toward the organization as an institution
and to his refraining from conduct that would interfere with its per-
formance of its legal or contractual obligations. [Id.]
116 Salzhandler v. Caputo, 316 F.2d 445, 448–49 (2d Cir. 1963), cert. de-
nied 375 U.S. 946 (1963), quoted in Hilde Construction, 225 NLRB at 602.
117 As explained supra, the Board and the D.C. Circuit have both found it
appropriate to consider statutes other than the NLRA when determining
whether a union’s conduct impairs a policy that Congress has imbedded in
the national labor laws and have specifically looked to the LMRDA. For a
detailed discussion of these cases, see supra text accompanying fns. 87–103.
As previously noted, in laying out the 8(b)(1)(A) analysis, the Scofield
Court stated that union conduct that impairs “policy Congress has imbedded
in the labor laws” violates the Act. 394 U.S. at 430 (emphasis added). My
colleagues acknowledge this statement but discount it because, in the cir-
cumstances of that case, the Scofield Court considered only policy imbedded
in the NLRA. The fact that in that particular case it was not necessary to
look to labor laws other than the NLRA, however, does not mean that the
Court used the term “labor laws” inadvertently. The Court’s test allows for
consideration of labor laws other than the NLRA in appropriate cases, such
as the present one, although in the particular circumstances of Scofield it was
not necessary to consider such other laws.
118 See, e.g., Helton, 656 F.2d at 894 (holding that union’s removal of
dissident material posted by member “does not reflect a legitimate union
interest”); Janesville Auto Transport, 310 NLRB at 975 (“The Board has
interpreted . . . decisions of the Supreme Court to mean that internal union
discipline, imposed in retaliation for a member’s exercise of the right to
engage in intraunion activities in opposition to the incumbent leadership of
the union, violates Sec. 8(b)(1)(A) because it does not reflect a legitimate
union interest and, instead, impairs a policy which Congress has imbedded
in the labor laws . . . .”) (emphasis added); Graziano, 195 NLRB at 2 (find-
ing that a fine imposed for the purpose of silencing a dissident member
“fails to reflect a legitimate union interest”).
bership are at least as coercive as fining.119 In fact, the
Supreme Court itself has found a violation of Section
8(b)(1)(A) based on expulsion from membership when
that discipline ran counter to national labor policy.120
Thus, the two types of discipline can be equated for pur-
poses of finding a violation in the present case based on
the Union’s suspension and expulsion of the members of
the Mitchell-Carr faction.
Additionally, the type of dissident conduct at issue
here is not the kind that should lead the Board to find a
legitimate union interest in expelling members. The
Board has found legitimate union interests in expelling
dissident members “who attack the very existence of the
union as an institution.”121 This situation, however, has
been limited to expulsions from membership of members
who have filed decertification petitions with the
Board.122 The determination that expulsion is legitimate
in such a situation is based on the notion that members
who have filed decertification petitions “have resorted to
the Board for the purpose of attacking the very existence
of their union” and that, therefore, it is not “beyond the
competence of the Union to protect itself in this situation
by the application of reasonable membership rules and
discipline.”123 Such is not the case here where the mem-
bers of the Mitchell-Carr faction were in no way “attack-
ing the very existence” of the Union but instead were
merely attempting to exercise their Section 7 right to
express disagreement and concern with the way in which
the Union President was performing his duties. Their
119 The coercive nature of expelling a union member should not be un-
derstated. Once expelled from membership, the individual is still, to a large
extent, affected by the union’s actions. The union remains as bargaining
representative and thus continues to wield great power over the expelled
employee’s terms and conditions of employment. The only thing that has
changed for the employee is that he or she no longer has any meaningful
opportunity to attempt to change the union’s direction or administration
from the inside. In Pattern Makers, the Supreme Court laid out some of the
effects that resignation from a union can have on an employee. An em-
ployee who is expelled from his or her union would suffer these same con-
sequences, but the results would be even more harsh because such an em-
ployee would not have chosen to leave the union. The Pattern Makers
Court explained:
In making his resignation decision, the dissident must remember
that the union whose policies he finds distasteful will continue to hold
substantial economic power over him as exclusive bargaining agent.
By resigning, the worker surrenders his right to vote for union offi-
cials, to express himself at union meetings, and even to participate in
determining the amount or use of dues he may be forced to pay under
a union security clause.
473 U.S. at 107 fn.18 (quoting Wellington, Union Fines and Workers’
Rights, 85 Yale L.J. 1022, 1046 (1976)).
120 Shipbuilders, 391 U.S. at 418 (holding that union violated Sec.
8(b)(1)(A) when it expelled member for filing unfair labor practice charges).
See also Scofield, 394 U.S. at 37 (equating fines and expulsions for purposes
of an 8(b)(1)(A) analysis).
121 Tawas Tube Products, 151 NLRB 46, 48 (1965) (footnote omitted).
122 See Molders Local 125 (Blackhawk Tanning Co.), 178 NLRB 208,
209 (1969) (noting that the Board has upheld the expulsion of union mem-
bers who file decertification petitions, but holding that the fining of such
members violates Sec. 8(b)(1)(A)); Tawas Tube, 151 NLRB 46.
123 Id. at 48–49.
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1439
conduct falls squarely within the precedent outlined
above.
Finally, the Union cannot point to any legitimate inter-
est in removing Mitchell-Carr and Vaughan from office
that would support that form of discipline separate from
the expulsions and suspensions. Although, in some
situations, a union may have a legitimate interest in re-
moving a dissident member from an office, this is not
such a situation, and therefore the removal from office of
Mitchell-Carr and Vaughan, like the expulsions and sus-
pensions, violates Section 8(b)(1)(A). The Board’s deci-
sion in Shenango Inc.124 does not compel a different re-
sult. There, a union member, who served as chairman of
the union’s plant safety committee, supported one of the
candidates for union president, although the other union
agents and officers supported the other candidate.125
When the latter candidate was elected president, the un-
ion member was removed from the safety committee
because he had supported the new president’s oppo-
nent.126 The Board found that the union’s conduct did
reflect a legitimate union interest and that therefore that
interest would have to be balanced against the union
member’s Section 7 rights.127 The Board explained the
union interest at stake in Shenango as follows:
[T]he Union [has] a legitimate interest in placing in of-
fices such as chairman of the safety committee those
people it considers can best serve the Union and its
membership. Retention of a plant safety committee
chairman who is hostile to or in disagreement with the
leadership may be undesirable or ineffective for a host
of valid reasons. . . . The union is legitimately entitled
to hostility or displeasure toward dissidence in such po-
sitions where teamwork, loyalty, and cooperation are
necessary to enable the union to administer the contract
and carry out its side of the relationship with the em-
ployer.128
In Shenango, the Board held that this union interest out-
weighed the member’s interest in retaining his office and
that therefore the union had not violated Section 8(b)(1)(A)
by removing the member from his appointed office.129 The
union did, however, violate the Act by making other general
threats of reprisal toward the member in response to his
dissident activity.130
The instant case is distinguishable from Shenango,
however. Here, not only should the expulsions and sus-
pensions from membership result in a finding of
8(b)(1)(A) violations, but so too should the removal from
office of Mitchell-Carr and Vaughan. Any interest that a
union may have in allowing its incumbent administration

124 237 NLRB 1355 (1978).
125 Id.
126 Id.
127 Id.
128 Id.
129 Id. at 1355–1356.
130 Id. at 1356.
to remove appointed officers and replace them with offi-
cers who are aligned with its views dwindles markedly, if
not completely, when the focus turns to elected officers.
Here, the Union removed two elected officers when they
challenged the actions of another elected official, the un-
ion president. Not only, as explained below, is any inter-
est that the Union has in being able to remove dissident
elected officials outweighed by the interests of its mem-
bers who are elected to office in exercising their Section 7
rights, but the Union itself has competing interests here
that outweigh any legitimate interest it may have in re-
moving these elected officers.
First, the Union has an interest in insuring that its
members are free to question actions taken by their
elected officials when such actions have the potential to
harm the Union as an institution. Here, the allegations
that the Mitchell-Carr faction made related to charges of
misconduct by a high-ranking union officer. If union
members believe that even their elected officers cannot
question the actions of other elected officers, they almost
certainly will feel restrained in their own ability to do so,
and if no member feels that he or she can question possi-
bly illegal or inappropriate actions by officers, the Union
itself could suffer.
Second, the Union has an interest in maintaining an
administration that is responsive to the will of its elector-
ate, because without such responsiveness, the Union as
an institution suffers. If the union administration can
freely remove from office elected officials who question
the actions of other elected officials, the Union deprives
its own members of the representatives whom they chose
through the election process. A union, as a democratic
entity, certainly has an interest in maintaining its democ-
ratic values through retaining in office those people
whom its membership elected.131 Both of these union
131 The important role that democracy plays in the existence of unions
has been vividly explained by Archibald Cox:
The first function of labor unions is to substitute the economic
power of group action for individual weakness in negotiating wages,
hours, and other conditions of employment. Second, unions serve to
secure a measure of job security. . . . Third, unions aid in extending
the rule of law to industrial establishments. A collective-bargaining
agreement defines rights and duties. It substitutes rule for arbitrary
power. A grievance procedure terminating in arbitration provides a
fair and impartial forum for administering the law of the plant. A
fourth function of labor unions is to enable workers to participate
jointly with management in the government of their industrial lives
through chosen representatives even as all of us may participate,
through elected representatives, in political government.
A union governed by dictatorial officials might be able to perform
the first two functions as long as the members remained loyal and the
public was tolerant. But an undemocratic union could not fulfill the
third and fourth functions. An individual worker gains no human
rights by substituting an autocratic union officialdom for the tyranny
of the boss. Only a democratic union, sensitive to the rights of minori-
ties, can help men to achieve the ideals of individual responsibility,
equality of opportunity, and self-determination.
Archibald Cox, The Role of Law In Preserving Union Democracy, 72
Harv. L. Rev. 609, 609–610 (1959) (footnote omitted). Cox went on to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1440
interests, the interest in freedom of expression and in
democratic principles, are interests shared by each indi-
vidual member of the union as well and in that sense too
outweigh any small interest that the Union, as repre-
sented by the incumbent officials, may have in removing
these dissident, but elected, officers.
In addition to these interests of the Union as an organi-
zation and of the individual members, the interests of
these elected officials themselves in exercising their Sec-
tion 7 and LMRDA rights similarly outweigh any interest
the Union may have in removing them from office. An
elected officer is more likely to be in a position to dis-
cover misconduct or the possibility of misconduct on the
part of another elected official and is also perhaps more
likely to develop opinions regarding the direction the
Union takes on various issues. If a union can remove
from office an elected official who speaks out and at-
tempts to remedy what he or she sees as misconduct or
misdirection on the part of the incumbent administration,
the Union is likely to chill the free speech of other
elected officers. It is of paramount importance that
elected officers feel able to speak out against what they
view to be problems with the administration of the union.
If those in a position to discover problems are fearful of
speaking out, the individual members may never learn of
the problems, and certainly, if individual members see
that the officers whom they elect can be ousted for voic-
ing differing views, the members themselves will be
even less likely than the elected officials to speak out.132

stress the importance of protecting this democratic aspect of union govern-
ance:
Under the National Labor Relations Act a union which acts as the
bargaining representative has power, in conjunction with the em-
ployer, to fix a man’s wages, hours, and other conditions of employ-
ment without his assent. The individual employee may not lawfully
negotiate with his employer. He is bound by the union contract. As a
matter of practice, if not in legal theory, the union also controls the
grievance procedure through which a man’s contract rights are en-
forced. The government which gives unions this power has the con-
comitant obligation to provide safeguards against abuse. The most ef-
fective safeguard is legal assurance that unions will be responsive to
the desires of the men and women whom they represent. [Emphasis
added.]
Id. at 610–611.
132 The appropriateness of treating elected and appointed officers differ-
ently for purposes of the right of free expression has been examined by the
Supreme Court in the context of the LMRDA. Much of its reasoning in
those cases is relevant to the issue at hand. In Finnegan v. Leu, 456 U.S.
431 (1982), the Court held that the LMRDA was not violated when the
union president discharged appointed business agents who had supported his
opponent in the union presidential election. The Court held that the
LMRDA does not restrict an elected leader’s ability to maintain a staff who
support his or her views. Id. at 441. As the Court explained:
[The LMRDA’s] overriding objective was to ensure that unions
would be democratically governed, and responsive to the will of the
union membership as expressed in open, periodic elections. Far from
being inconsistent with this purpose, the ability of an elected union
president to select his own administrators is an integral part of ensur-
ing a union administration’s responsiveness to the mandate of the un-
ion election. [Id., citation omitted.]
Moreover, with regard to the interests at stake here,
this case is markedly different from Allis-Chalmers in
which, as explained, the Supreme Court refused to find a
violation and on which my colleagues so heavily rely. In
the present case, the Union has no legitimate interest in
disciplining these officer-members, while the individual
officers, the union electorate, and the Union as an institu-
tion all have a great interest in maintaining the free-
speech rights of members. Obviously, the balance
weighs heavily in favor of the individual right to ques-
tion the incumbent union administration. In a case like
Allis-Chalmers, on the other hand, the individual interest
in returning to work is outweighed by the collective in-
terest in preserving labor’s most valuable, and histori-
cally recognized, economic weapon—the collective ac-
tion embodied in a lawful strike. There is no such le-
gitimate union interest here that can even be weighed
against the right of individual members to speak out and
to challenge their representative’s course of action.
The conduct of the Union in the present case, both in
expelling or suspending and in removing from office
members of the Mitchell-Carr faction, clearly violates
Section 8(b)(1)(A). The Union’s actions impair policy
that Congress has imbedded in the national labor laws—
both in Section 7 of the NLRA and in Section 101(a)(2)
of the LMRDA. Additionally, the Union has no legiti-
mate interest in expelling or suspending dissident mem-
bers,133 and any minute interest that it might have in re-
moving from office elected officials who oppose the in-
cumbent administration’s actions is outweighed by the

In Sheet Metal Workers v. Lynn, 488 U.S. 347 (1989), however, the
Court was presented with a situation in which an elected agent was removed
from office because he made statements opposing a dues increase at a union
meeting. Id. at 348. There, the Court found a violation of the LMRDA.
The Court first noted that, because the elected officer was removed as a
direct result of exercising his LMRDA right of free expression and because
such removal was likely to discourage him from speaking out in the future,
the elected officer had “paid a price” for exercising his rights. Id. at 354. Of
course, the same could be said for the appointed officers in Finnegan; the
Court, however, explained the difference by reference to the LMRDA’s
purpose of “ensur[ing] that unions [are] democratically governed, and re-
sponsive to the will of the union membership as expressed in open, periodic
elections.” Id. (quoting Finnegan, 456 U.S. at 441). Whereas in Finnegan
the removal of the appointed officers had furthered democratic governance,
in Lynn the removal of an elected officer had the opposite effect, as in the
present case. The Court’s explanation of the difference is quite relevant to
the instant case:
The consequences of the removal of an elected official are much dif-
ferent. To begin with, when an elected official like Lynn is removed
from his post, the union members are denied the representative of their
choice. Indeed, Lynn’s removal deprived the membership of his lead-
ership, knowledge, and advice . . . . His removal, therefore, hardly
was “an integral part of ensuring a union administration’s responsive-
ness to the mandate of the union election.”
Furthermore, the potential chilling effect on Title I free speech rights is
more pronounced when elected officials are discharged. Not only is the
fired official likely to be chilled in the exercise of his own free speech rights,
but so are the members who voted for him.
Id. at 355 (quoting Finnegan, 456 U.S. at 441) (citations omitted).
133 For an explanation of the coercive effect of expulsion from union
membership, see supra fn. 119.
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1441
competing interests of the Union itself, the individual
Union members, and the ousted elected officials.
B. My Colleagues’ Approach
Rather than find a violation under this well-established
approach to Section 8(b)(1)(A), my colleagues choose to
create a new 8(b)(1)(A) analysis and hold that the Union
did not violate the Act by disciplining its members for
exercising their Section 7 right to question the wisdom of
the incumbent president’s actions. According to my col-
leagues, their new approach to Section 8(b)(1)(A) leads
to three situations in which a union may violate the Act.
First, a union will violate Section 8(b)(1)(A) when it en-
gages in “unacceptable methods of union coercion in the
employment context, such as threats of loss of employ-
ment or physical violence to force a dissenting employee
to join a union or to participate in a strike.” Second, a
union may violate Section 8(b)(1)(A) when it takes ac-
tion “against union members that directly impedes access
to the Board’s processes.” Third, a union’s discipline of a
member may violate Section 8(b)(1)(A) “when intra-
union discipline clashes directly with statutory policy
interests and prohibitions incorporated in the Act.”
My colleagues assert that this analysis is found in the
decisions of the Supreme Court that I have analyzed
above. However, in their discussion of those cases, my
colleagues admit that Scofield provides that a union rule
is only proper under Section 8(b)(1)(A) if it is “properly
adopted,” “reflects a legitimate union interest,” “impairs
no policy Congress has imbedded in the labor laws” and
“is reasonably enforced against union members who are
free to leave the union and escape the rule.” Scofield,
394 U.S. at 430. Here, the union’s discipline of the
Mitchell-Carr faction not only contravened a statutory
policy found in both Section 7 of the NLRA and in the
LMRDA, but also reflected no legitimate union interest,
a separate and sufficient ground under Scofield to find a
violation of Section 8(b)(1)(A).134 Thus, even under my
colleagues’ reading of Scofield, the instant case requires
that the Board find a violation.
Furthermore, even considering my colleagues’ addi-
tion of an employment-nexus requirement, the Union’s
discipline of the Mitchell-Carr faction requires a finding
of a violation of Section 8(b)(1)(A). The Union’s con-
duct here does have an effect on its members’ employ-
ment relationship and certainly affects them as employ-
ees. The conduct that resulted in the Union disciplining

134 My colleagues refuse to find a violation in the present case in which
the Union has impaired “policy interests” found in Sec. 7 of the NLRA,
although they do “reaffirm the principle that Sec. 7 encompasses the right of
employees to concertedly oppose the policies of their union.” Rather, they
insist, despite the clear teachings of Scofield, that, at least when the policy at
issue is this well-recognized Sec. 7 policy, a union will only violate Sec.
8(b)(1)(A) if the union’s impairment of that policy involves union violence
or threats, impedes access to the Board’s processes, or has an employment
nexus. There is no plausible rationale for imposing these additional re-
quirements under Sec. 8(b)(1)(A) when the policy at issue is the Sec. 7 right
of union members to engage in dissident conduct.
the elected officers in this case consisted of their at-
tempts to inform others of problems they saw with the
Union’s president and their attempt to have that president
impeached. The charges that they made against their
president included such things as the mishandling of Un-
ion funds and circumventing the Union’s collective bar-
gaining agreement with the employer. In attempting to
stop such behavior, the members of the Mitchell-Carr
faction were clearly attempting to change what they
viewed as the misguided direction of their bargaining
representative. When a union member attempts to
change the direction of his or her representative, espe-
cially when that change in direction apparently involves
the representative’s treatment of the collective-
bargaining agreement, he or she is, at the very least, indi-
rectly attempting to change terms and conditions of em-
ployment. After all, it is through their bargaining repre-
sentative that employees negotiate their terms and condi-
tions and maintain or change those terms and conditions.
By altering the course that that representative is taking,
one is quite likely to alter how that representative ap-
proaches its dealings with the employer and thus the
terms and conditions of its members’ employment.135
135 One cannot overstate the power of the bargaining representative in
this regard and thus, by extension, the effect that changes in the way in
which that representative operates can have on the employment relationship
of its members. Initially, a brief look at the NLRA itself demonstrates the
point. Sec. 8(a)(5) makes it an unfair labor practice for an employer “to
refuse to bargain collectively with the representatives of his employees.”
Sec. 8(a)(5). The term “bargain collectively” is then defined as:
[T]he performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and confer
in good faith with respect to wages, hours, and other terms and condi-
tions of employment, or the negotiation of an agreement or any ques-
tion arising thereunder, and the execution of a written contract incor-
porating any agreement reached if requested by either party.
Sec. 8(d).
These basic terms within the province of the exclusive representative in-
clude, to a somewhat lesser degree, grievances that employees have with
their employer:
Representatives designated or selected for the purposes of collec-
tive bargaining by the majority of the employees in a unit appropriate
for such purposes, shall be the exclusive representatives of all the em-
ployees in such unit for the purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other conditions
of employment: Provided, That any individual employee or a group
of employees shall have the right at any time to present grievances to
their employer and to have such grievances adjusted, without the in-
tervention of the bargaining representative, as long as the adjustment
is not inconsistent with the terms of a collective-bargaining contract or
agreement then in effect: Provided further, That the bargaining repre-
sentative has been given opportunity to be present at such adjustment.
Sec. 9(a).
Thus, when employees are represented by such an exclusive agent,
the most basic and important terms of their employment are in that
agent’s hands; any time that an employee-member attempts to change
how that agent goes about its representation of its members, therefore, he
or she is engaged in conduct that affects the employment relationship.
The Supreme Court itself, in Allis-Chalmers, explained the power that
exclusive bargaining representatives wield over a bargaining unit’s terms
and conditions of employment:
National labor policy has been built on the premise that by pooling
their economic strength and acting through a labor organization freely
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1442
The idea that union discipline of dissident activity, such
as that involved here, is not “unlawful because the instant
case neither impacts the participants’ relationship with
their employer nor impairs a policy of the National Labor
relations Act,” cannot stand. Thus, even if my col-
leagues were correct in requiring this connection to the
employment relationship, the actions of the dissident
employees here certainly at least had significant potential
to affect the relationship between employer and unit em-
ployees. This fact combined with the fact that the Un-
ion’s actions did not reflect a legitimate interest and im-
paired policy imbedded in the national labor laws lead
inexorably to the conclusion that the Union violated Sec-

chosen by the majority, the employees of an appropriate unit have the
most effective means of bargaining for improvements in wages, hours,
and working conditions. The policy therefore extinguishes the indi-
vidual employee’s power to order his own relations with his employer
and creates a power vested in the chosen representative to act in the in-
terests of all employees. “Congress has seen fit to clothe the bargain-
ing representative with powers comparable to those possessed by a
legislative body both to create and restrict the rights of those whom it
represents.” Thus only the union may contract the employee’s terms
and conditions of employment, and provisions for processing his
grievances; the union may even bargain away his right to strike during
the contract term, and his right to refuse to cross a lawful picket line.
The employee may disagree with many of the union decisions but is
bound by them. “The majority-rule concept is today unquestionably
at the center of our federal labor policy.”
388 U.S. at 180 (quoting Steele v. Louisville & Nashville Railroad Co., 323
U.S. 192, 202 (1944) and Wellington, Union Democracy and Fair Repre-
sentation: Federal Responsibility in a Federal System, 67 Yale L.J. 1327,
1333 (1958)) (footnotes omitted). Commentators have also laid out the
extent of a union’s power over the employment conditions of a bargaining
unit. As Clyde Summers has explained:
A union, in bargaining, acts as the representative of all workers
within an industrial area. It weighs alternatives and determines poli-
cies which vitally affect all those whom it represents. It negotiates a
contract which becomes the basic law of that industrial community.
In making those laws, the union acts as the workers’ economic legisla-
ture. After the laws have been made, the union is charged with their
enforcement, and through its grievance procedure helps judge their in-
terpretation and application. It is the worker’s policeman and judge.
The union is, in short, the employee’s economic government. Only if
we fully appreciate this cardinal fact and keep it clearly in mind can
we critically evaluate the rights which an individual should have
within the union. [Emphasis added.]
Clyde W. Summers, Union Powers and Workers’ Rights, 49 Mich. L.
Rev. 805, 815–816 (1951). See also Cox, supra note 131, at 610–611.
Clearly then, when they attempt to change the incumbent administration
of their collective-bargaining representative or the policies of that represen-
tative, dissident members are, at the very least, attempting to affect the
employment relationship.
My colleagues, however, argue that this is not enough. Rather, they
would find that a union does not violate Sec. 8(b)(1)(A) unless the union’s
enforcement of its rule “impacts the participants’ relationship with their
employer.” Of course, such a requirement would seem to limit the class of
discipline that would violate Sec. 8(b)(1)(A) to situations in which the union
causes the employer to discharge or otherwise adversely affect the employee
in his or her employment. Clearly, my colleagues do not mean to go so far
as they uphold the findings of 8(b)(1)(A) violations in cases in which the
union’s conduct denied the employee-member access to Board processes.
Such conduct on the part of the union does not have an employment nexus
and yet my colleagues clearly affirm an approach that would find a violation
under such circumstances.
tion 8(b)(1)(A), even under my colleagues’ new ap-
proach.
My colleagues also assert that the forum in which this
case should be resolved is the United States district
courts under the LMRDA, because, under my col-
leagues’ approach to Section 8(b)(1)(A), when the Board
considers whether a union’s actions impair national labor
policy, it must look only to the NLRA. My colleagues
specifically overrule the approach taken in Graziano and
other cases under which the Board, in assessing national
labor policy, would look to statutes other than the
NLRA. My colleagues abandon this approach despite
the fact that the Board has followed it for more than 20
years and that the D.C. Circuit has specifically approved
it.136
In addressing the issue of the LMRDA, my colleagues
explain that “Congress gave to the federal district courts,
not to the Board, authority to hear and decide suits
brought by union members to enforce rights under the
LMRDA.” My colleagues ignore the fact that no one is
asserting that the Board should consider suits brought to
enforce rights under the LMRDA. Rather, the General
Counsel here is attempting to enforce employees’ Sec-
tion 7 rights to choose to oppose the direction that their
union is taking; the mere fact that such rights may from
time to time overlap with the individual rights protected
by the LMRDA is of no consequence.137 The provision
136 Helton, 656 F.2d 883. For a discussion of Helton, see supra text ac-
companying fns. 98–103.
137 In fact, the LMRDA itself makes this idea explicit:
(a) Except as explicitly provided to the contrary, nothing in this
chapter shall reduce or limit the responsibilities of any labor organiza-
tion or any officer, agent, shop steward, or other representative of a la-
bor organization, or of any trust in which a labor organization is inter-
ested, under any other Federal law or under the laws of any State, and,
except as explicitly provided to the contrary, nothing in this chapter
shall take away any right or bar any remedy to which members of a
labor organization are entitled under such other Federal law or law
of any State.
(b) Nothing contained in this chapter and section 186(a)–(c) of this
title shall be construed to supersede or impair or otherwise affect the
provisions of the Railway Labor Act . . . nor shall anything contained
in this chapter be construed . . . to impair or otherwise affect the rights
of any person under the National Labor Relations Act. [29 U.S.C. §
523 (emphasis added).]
Additionally, the NLRA itself supports a reading of the law that allows
for finding an 8(b)(1)(A) violation regardless of whether the affected indi-
viduals may have other remedies under another statute. Sec. 10(a) of the
Act provides, in relevant part, “The Board is empowered . . . to prevent any
person from engaging in any unfair labor practice . . . affecting commerce.
This power shall not be affected by any other means of adjustment or pre-
vention that has been or may be established by agreement, law or other-
wise.” 29 U.S.C. § 160 (emphasis added).
Finally, the approach my colleagues endorse is contrary to the Board’s
own application of the law in the analogous situation of employers who
restrain or coerce employees in the exercise of their Section 7 rights and thus
violate Sec. 8(a)(1). As explained supra, fn. 101, the D.C. Circuit has found
that Sec. 8(b)(1)(A) is to be applied in a manner consistent with the applica-
tion of Sec. 8(a)(1). See Helton, 656 F.2d at 888–889. When finding viola-
tions of Sec. 8(a)(1) by employers who restrain or coerce employees in the
exercise of Sec. 7 rights, the Board certainly does not stay its hand whenever
an employer’s conduct might also be considered a violation of another
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1443
at issue in this case is Section 8(b)(1)(A) of the NLRA.
The fact that it may protect policies found in the
LMRDA as well as policies found in Section 7 of the
NLRA itself does not mean that this case can only be
brought under the LMRDA and in Federal court.
The injustice of requiring union members to file
LMRDA suits in Federal court when their right to ex-
press dissident views is clearly protected by Section
8(b)(1)(A) and Section 7 of the NLRA cannot be over-
looked. When an individual believes that his or her Sec-
tion 7 rights have been violated, the process of bringing a
charge and rectifying the situation is relatively simple
and inexpensive for that individual. An unfair labor
practice charge may be filed by any person at a regional
office in the region in which the alleged unfair labor
practice has occurred.138 At that point, the Board then
takes the initiative in protecting employees’ Section 7
rights. After an investigation, the Regional Director de-
cides whether to issue a complaint.139 If the case goes to
hearing before an administrative law judge, it is prose-
cuted by an attorney acting on behalf of the General
Counsel.140 Following the hearing, the General Counsel
and other parties can file exceptions to the administrative
law judge’s decision with the Board, and the Board will
review the decision.141 The entire process, however, be-
cause it relates to vindicating employees’ Section 7
rights, is conducted by the agency with the authority and
obligation to enforce the Act, the NLRB.
If an individual union member, however, files suit un-
der the LMRDA in lieu of pursuing his or her Section 7
rights under the NLRA, the process is much different.
The case, including the expenses of an attorney and the

federal statute, such as Title VII, Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. There is absolutely no logical reason for the Board to do so
here where a union has restrained and coerced its members in the protected
exercise of their Sec. 7 rights merely because the union’s conduct might also
violate the LMRDA.
My colleagues assert that their interpretation of Sec. 8(b)(1)(A) is not in-
consistent with that of Sec. 8(a)(1) because “[t]he issue . . . is not whether
certain conduct might happen to violate another statute, but rather, as in
Graziano, and the present case, the reach of Sec. 8(b)(1)(A) when the al-
leged unfair labor practice turns entirely on the interpretation of another
statute.” As I have explained at length supra and infra, however, not only
does the Board, with the D.C. Circuit’s approval, have a long history of
looking to whether union discipline of members impairs labor policies
imbedded in statutes other than the NLRA in conducting an 8(b)(1)(A)
analysis, but also the present case does not even require a finding that the
Union’s discipline of its dissident members impairs policies imbedded in the
LMRDA. Thus, this is not a case in which “the alleged unfair labor practice
turns entirely on the interpretation of another statute.” (Emphasis added.) It
is quite clear that the Union’s actions here impaired policies imbedded in
Sec. 7 of the NLRA; that is enough to support a finding that the Union
violated Sec. 8(b)(1)(A) under Scofield. When the fact that the Union’s
conduct did not reflect a legitimate union interest and the fact that policies
imbedded in a second federal labor-law statute, the LMRDA, are considered
as well, a finding of a violation just becomes that much more imperative.
138 Board’s Rules and Regulations, Sec. 102.9–102.10.
139 Id. Sec. 102.15.
140 Board’s Statements of Procedure, Sec. 101.10(a).
141 Board’s Rules and Regulations, Sec. 102.46.
costs of suit and the time delays of the federal courts,
remains the responsibility of the individual. These costs
in both time and money can be extremely high. Thus, an
individual union member who finds himself or herself
disciplined for speaking out against what he or she views
as misconduct on the part of the incumbent union ad-
ministration may be unwilling or unable to bear the costs
of a LMRDA lawsuit. If the Board declines to use its
expertise in protecting and explicating Section 7 rights
against the union in such a situation, as my colleagues do
here, a union that unlawfully disciplines its members for
exercising protected rights is much more likely to find
that there are no repercussions for such conduct, despite
the fact that the NLRA protects union members from
such actions.142
142 In his concurring opinion, Member Hurtgen accepts that Scofield pro-
vides the proper analysis for this case but nonetheless agrees with the
Board’s decision to stay its hand on the ground that the dissident conduct
and the Union’s actions in this case were “wholly internal.” This approach
is unjustified. First, once one accepts that Scofield provides the proper test,
one must apply it. As explained at length supra, a proper application of the
Scofield test to the facts of this case quite clearly results in the finding of an
8(b)(1)(A) violation. There is nothing in Scofield that allows the Board then
to step back and find that the Act has not been violated because the conduct
at issue is of an “internal” nature. Once one has determined that Scofield
should be applied, one cannot then evade its result by returning to this newly
created internal vs. external dichotomy.
Second, in an attempt to justify joining the majority’s decision to deny
these individual union members the Board’s processes, Member Hurtgen
points to Collyer Insulated Wire, 192 NLRB 837 (1971), and Siemons Mail-
ing Service, 122 NLRB 81 (1958), supplemented by 124 NLRB 594 (1959),
as representing “other contexts [in which] the Board has chosen to withhold
its processes and allow other tribunals to proceed.” The situations at issue in
those two cases are not, however, analogous to the present one for purposes
of justifying the Board’s decision to stay its hand when a union has disci-
plined members in direct retaliation for their exercise of Sec. 7 rights. Col-
lyer, unlike the instant case, involved disputes between a union and em-
ployer that were directly tied to the collective bargaining agreement and
were covered by that agreement’s arbitration clause. Thus, the Board, hav-
ing balanced the Act’s policy of encouraging “the fullest use of collective
bargaining and the arbitral process” against Congress’s “grant to the Board
of exclusive jurisdiction to prevent unfair labor practices,” determined that
the most prudent course in the circumstances at issue was to stay its hand
and allow the dispute to be resolved through the arbitral means for which the
parties themselves had provided in their collective bargaining agreement.
192 NLRB at 841–842. The Board’s decision in Collyer to stay its hand
was based on the policies of the NLRA and other federal labor statutes that
strongly encourage the use of voluntary arbitration in the resolution of labor
disputes. Id. at 840–841. Because the case involved “a set of facts [that]
present[ed] not only an alleged violation of the Act but also an alleged
breach of the collective-bargaining agreement subject to arbitration,” it was
an appropriate case to balance the interests of encouraging the use of arbitra-
tion against the Board’s grant of exclusive jurisdiction over unfair labor
practices. Id. at 841.
The situation at issue in the instant case is most unlike that in Collyer.
The NLRA evinces no policy that competes with the Board’s exercise of
jurisdiction in this case—rather, the policies of the NLRA point in only one
direction, that of vindicating the statutory rights of individual union mem-
bers who have been wronged by their collective representative. Pointing the
injured parties to the Federal courts and instructing them that they may bring
their complaint only in that forum and under an entirely different statute is
not a solution with a long history of Congressional support imbedded in the
federal labor statutes as is the use of voluntary arbitration. Additionally, the
NLRA policy in favor of arbitration and Congress’s long-standing support
of that policy are based in large part on the voluntary nature of arbitral proc-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1444

esses in the labor relations area. The parties in Collyer had voluntarily
agreed to arbitrate the very issues in dispute in that case. In the present case,
the Charging Parties certainly did not voluntarily agree to limit themselves
to their possible remedies in federal court under the LMRDA. Member
Hurtgen’s reliance on Collyer is misplaced and does not support his deter-
mination that, despite the fact that application of the NLRA as set forth in
Scofield would result in a finding that the Union has violated Sec.
8(b)(1)(A), the Board should nonetheless decline to exercise jurisdiction in
the present case.
Similarly, Member Hurtgen’s citation of Consolidated Freightways
Corp., 288 NLRB 1252 (1988), enfd. sub nom. Hammontree v. NLRB, 894
F.2d 438 (D.C. Cir. 1990), to support his assertion that the Board properly
defers cases involving individuals asserting individual rights is misleading.
In that case, charges were indeed brought by individual employees/union
members against the employer. The Board deferred to the arbitration proc-
ess, just as it did in Collyer, because the claims were covered by the arbitra-
tion procedures provided in the collective-bargaining agreement by which
the employees were governed in their relations with their employer. Id. at
1256. In doing so, the Board noted that, if it were to hold otherwise, unions
could “circumvent the contractual grievance procedure by the simple expe-
dient of having the individual employee, instead of the union, file the charge
with the Board,” an outcome that “would seriously impair, if not defeat
altogether, the well-established policy favoring private dispute resolution
mechanisms.” Id. at 1255. Again, in the present case, we are not faced with
such a well-established policy as the claims involved in no way fall under a
voluntarily selected dispute-resolution mechanism. While the employees’
claims in Consolidated Freightways were deferred to the procedures volun-
tarily selected through collective bargaining by the employees’ voluntarily
elected representative, the employees in the present case have made no
voluntary choices with regard to ceding their right to have the Board con-
sider their claims of union misconduct.
Finally, Member Hurtgen’s reliance on Siemons does not support his
conclusion that the Board should stay its hand in the instant case and, in fact,
lends credence to the idea that it is inappropriate for the Board to decline to
decide whether the Union violated Sec. 8(b)(1)(A). In Siemons, the Board
applied a new jurisdictional standard, thereby asserting jurisdiction over a
greater number of cases than it had previously done. Prior to the Board’s
change in the jurisdictional standard, the Supreme Court, in Guss v. Utah
Labor Relations Board, had noted that the NLRA does not allow for state
action regarding “labor disputes over which the Board, in the exercise of its
discretionary authority declines to assert jurisdiction.” 122 NLRB at 82
(citing Guss, 353 U.S. 1 (1957). The Supreme Court had explained that
when the Board so declines to assert jurisdiction, it thereby creates “a vast
no-man’s-land subject to regulation by no agency or court” and that the
Board could reduce this “no-man’s-land” by asserting broader jurisdiction.
Id. Thereafter, the Board, after receiving an increased appropriation from
Congress, published proposed changes in its jurisdictional standards, con-
sidered the comments and briefs that those proposals engendered, and then
published its revised jurisdictional standards. Id. Siemons then provided the
Board with its first opportunity to apply those new standards. Id. at 81–82.
Thus, although Member Hurtgen is correct that Siemons does demon-
strate that the Board applies discretionary jurisdictional limits, his reliance
on the case is misplaced as Siemons clearly demonstrates the importance of
applying considered and previously announced jurisdictional standards as
opposed to creating ad hoc standards on a case-by-case basis. As the Board
explained in Siemons, “an ad hoc or case-by-case approach inevitably leads
in practice to the establishment of roughly drawn standards or tests” that
“are extremely time and energy consuming to apply, and result in confusion
and uncertainty as to exactly where the dividing line will be drawn in par-
ticular cases.” Id. at 83. As this language demonstrates, the very case that
Member Hurtgen has cited to support his analogy between the present case
and those in which the Board has set discretionary jurisdictional limits belies
his argument as it expressly denounces the use of ad hoc, case-by-case
standards with regard to decisions whether to withhold Board processes.
Member Hurtgen’s acceptance of the application of Scofield in the instant
case should result in a finding of an 8(b)(1)(A) violation regardless of
whether the Union’s discipline of the members of the Mitchell-Carr faction
can be considered “internal.” His determination that, regardless of the result
under Scofield, the Board should nonetheless stay its hand is inappropriate
It is also of paramount importance to point out here
that reliance on the LMRDA is not even necessary in this
case, and thus the argument that the Board should not
rely on statutes other than the NLRA when conducting
the Scofield analysis is moot. As explained in detail
above, the NLRA itself protects the right of union mem-
bers to express disagreement with their incumbent ad-
ministration and the direction that the union is taking as
well as their right to attempt to change that direction.
The Board has so held since at least 1950.143 The Un-
ion’s actions in the instant case certainly impair this right
that Congress has imbedded in Section 7 of the NLRA.
Thus, again, even under my colleagues’ own test, the
conduct at issue in this case violated Section 8(b)(1)(A)
because the conduct of the members of the Mitchell-Carr
faction bears “a clear nexus to the employer-employee
relationship.”
IV.
I would find that the Respondent Union has violated Sec-
tion 8(b)(1)(A) of the Act. The Supreme Court has pro-
vided the Board with a clear test to apply in 8(b)(1)(A)
cases, and the Union’s conduct in the present case does not
meet that test. The Union can point to no legitimate union
interest reflected in its discipline of members and elected
officials in retaliation for their exercise of the Section 7 right
to question the wisdom of their representative. Addition-
ally, the Union’s conduct here impairs national labor policy
that Congress has imbedded in the NLRA itself in Section 7
and in the LMRDA’s right of free expression.
My colleagues’ approach in the present case is misguided
both because they alter the analysis endorsed by the Su-
preme Court and because, even under their new approach,
the conduct at issue here violates Section 8(b)(1)(A). In-
stead of following the Scofield analysis, which the Board
has consistently applied to find violations in cases like the
present one, my colleagues impose a new requirement—that
the discipline imposed by a union have an employment
nexus. Although this requirement is not part of the Scofield
test, it is met in the case of dissident union members, like
those involved here, because such members are attempting
to change the direction of their representative, the entity
responsible for negotiating the terms and conditions of their
employment.
Under either the traditional Scofield approach or under
my colleagues’ new approach, the conduct at issue here
violates Section 8(b)(1)(A). Because the Scofield approach
has been endorsed by the Supreme Court and because it has
been shown to work well for many years, however, I do not
join in my colleagues’ decision to alter it. Rather, I would

and not supported by the Board’s past practice, the Supreme Court prece-
dent, or the NLRA itself.
143 See Nu-Car Carriers, 88 NLRB at 77 (stating that “inherent in th[e]
right [to self-organization] is the privilege of protest and persuasion of oth-
ers. Without this, effective employee representation becomes a nullity”).
For additional cases setting forth this right of dissident union members, see
supra fn. 12.
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1445
apply the Supreme Court’s Scofield analysis, under which
the Union’s conduct reflects no legitimate interest and in-
stead impairs policies of both the NLRA and the LMRDA.
I would therefore find a Section 8(b)(1)(A) violation in the
present case.

Lewis S. Harris, Esq., for the General Counsel.
Janine M. Ames and James E. Youngdahl, Esqs. (Youngdahl &
Sadin), of Albuquerque, New Mexico, for the Respondent.
Mary Ann Mitchell-Carr and Mildred G. Smith, Esqs., of Albu-
querque, New Mexico, pro se.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. The Gen-
eral Counsel of the National Labor Relations Board (NLRB or the
Board) alleges that Local 251 of the Office and Professional Em-
ployees International Union, AFL–CIO (Respondent or the Un-
ion)1 has violated Section 8(b)(1)(A) of the National Labor Rela-
tions Act (NLRA or the Act), by retaliating against four union
officials who contested the policies of the Union’s president.
Former Union Officials Mary Ann Mitchell-Carr and Mil-
dred G. Smith initiated this proceeding by filing three unfair
labor practice charges in March, April, and May 19932 each of
which was later amended.3 On June 30 the Board’s Regional
Director for Region 28, acting on behalf of the General Coun-
sel, issued a consolidated complaint and notice of hearing. On
July 14, Respondent timely answered the complaint by denying
the unfair labor practice allegations.
I heard this case on May 4, 1994, at Albuquerque, New Mex-
ico. Having carefully considered the contentions, the record and
the parties’ posthearing briefs, I must recommend that the com-
plaint be dismissed in its entirety for lack of subject matter
jurisdiction.
I. BACKGROUND
This case involves the impeachment and/or expulsion from
membership of four union officials, Vice President Mary Ann
Mitchell-Carr, Trustee Robert Vaughan, Secretary-Treasurer
Mildred G. Smith, and Trustee Bernardino Herrera in April and
May. A short time earlier, on February 4, incumbents Mitchell-
Carr and Vaughan had been reelected to serve terms through
March 1996. Smith and Herrera had chosen not to run for re-
election and their terms ended in March. All four held or had
held the additional position of executive board member.
Several events led to the discipline involved here. At a spe-
cial executive board meeting on February 1, 1993, Mitchell-
Carr expressed concern that the Union’s president, William
McLendon, might have mishandled certain funds, specifically a
check for $58,000, representing either a grant or a loan to the
Local from its parent International Union to partially defray a

1 It is uncontested that Respondent is a labor organization within the
meaning of Sec. 2(5) of the Act. Its headquarters are in Albuquerque, New
Mexico. Respondent also agrees that Sandia Corporation is an employer
engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the
Act. This case does not involve the employer-employee relationship, how-
ever, and that employer has no connection to this case, except to the extent
that it is incidentally the employer of most of the union officials and its
members.
2 All dates are 1993 unless otherwise indicated.
3 Mitchell-Carr filed the charge in Case 28–CB–3902 on March 26, and
the charge in Case 28–CB–3924 on May 5. Smith filed the charge in Case
28–CB–3902–2 on April 2. All three charges were amended on June 25.
legal settlement and pay its attorney fees. The International’s
check had not passed through Respondent’s books or bank
accounts; instead McLendon had caused the check to be di-
rectly endorsed to the attorney for processing without Treasurer
Smith’s knowledge. Following a motion made by Smith and
Mitchell-Carr, the executive board voted to have an independ-
ent audit performed. At a regular executive board meeting on
February 10, on a motion made by Smith and Herrera, it voted
to have the United States Department of Labor (DOL) conduct
the audit. Mitchell-Carr was assigned to arrange the audit, and
on February 12, she contacted the DOL’s Denver office. In
mid-March, a DOL agent spent a week auditing Respondent’s
financial records.
At a regular executive board meeting on March 10, Mitchell-
Carr presented that board, under article XIX of the Union’s
constitution and bylaws (Removal of Officials), with a petition
to impeach Union President William McLendon on charges of
misconduct, including “intimidation of members,” circumvent-
ing the Sandia collective-bargaining contract, and mishandling
the settlement check and appointing an unelected official to the
“80–20” position. Other charges were made as well. The signa-
tures of Mitchell-Carr, Vaughan, Smith, and Herrera were
among the first five signatures on the petition. This group of
four union officials was later referred to as “the Mitchell-Carr
faction.” At the next regular executive board meeting on April
7, McLendon, transparently in retaliation, induced and caused
to be presented a petition to impeach Mitchell-Carr for having
called a special executive board meeting without notifying
McLendon, and a veritable laundry list of alleged infractions,
some quite petty. Similar petitions for the impeachment of
Vaughan, Smith, and Herrera soon followed. The verities of the
underlying petitions against the four are suspect and may well
have been improper.
On April 27, Respondent’s trial board convened and voted to
remove Mitchell-Carr from the elected office of vice president
and permanently to expel her from the Union. On May 26, the
trial board voted to remove Vaughan from the elected office of
trustee and to suspend his membership for 5 years; to suspend
Herrera from membership for 5 years, and permanently to expel
Smith.4 They were found to have been in breach of various
articles of the Union’s constitution. The General Counsel did
adduce evidence, which I shall not detail here, that may give
rise to the conclusion that these trials were caused and con-
ducted in a fundamentally unfair and irregular manner. At the
very least they were conducted in absentia.
II. THE ALLEGATIONS AND REQUESTED REMEDIES
The General Counsel alleges that Respondent violated Sec-
tion 8(b)(1)(A) of the Act by disciplining these four officials in
retaliation for opposing the management policies of Respon-
dent’s president, William McLendon. He further alleges that
Respondent committed multiple due process violations, includ-
ing improperly gathering signatures for the impeachment peti-
tions, summarily holding the proceedings in the absence of the
charged members, denying or ignoring requests to reschedule
the trial board proceedings, ignoring requests for information,
failing properly to serve notice on one of the charged officials,
and tainting the trial board.
To remedy this alleged violation of Section 8(b)(1)(A), the
General Counsel has asked the Board, inter alia, to restore the
4 Respondent never acted on the petition to impeach McLendon.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1446
status quo that existed before Respondent’s retaliatory acts, i.e.,
reinstate Vice President Mitchell-Carr and Trustee Vaughan to
their elected positions, extend their terms by the amount of time
lost, and restore the membership status of Mitchell-Carr,
Vaughan, Smith, and Herrera. By letter dated May 24, 1994, I
specifically requested counsel to brief the issue of whether the
Board has authority under the Act to order the reinstatement of
union officials to elected office. The General Counsel has cited
four cases, but none demonstrates that the Board has the author-
ity to reinstate elected officials. Moreover, one of those, the
Supreme Court’s decision in Sheet Metal Workers v. Lynn, 488
U.S. 347 (1989), places the reinstatement to elected office rem-
edy squarely within the jurisdiction of another act, the Labor-
Management Reporting and Disclosure Act of 1959 (the
LMRDA, sometimes known as the Landrum-Griffin Act). That
law is enforced in part by private lawsuit and in part by the
Secretary of Labor who has exclusive authority to regulate
internal union elections. The NLRB plays no role under that
law.
III. ANALYSIS AND CONCLUSIONS
Section 8(b)(1)(A) of the Act makes it an unfair labor prac-
tice for a labor organization to restrain or coerce employees in
the exercise of the rights guaranteed them in Section 7 of the
Act. Section 8(b)(1)(A) states: “It shall be an unfair labor prac-
tice for a labor organization or its agents to restrain or coerce
employees in the exercise of the rights guaranteed in section 7:
Provided, That this paragraph shall not impair the right of a
labor organization to prescribe its own rules with respect to the
acquisition or retention of membership therein . . . .”
The statute thus protects employees who exercise rights pro-
tected by Section 7. The first question, which must be posed is
whether the former union officials here are employees as con-
templated by Section 8(b)(1)(A). It is true that these individual
union members are employed by Sandia Corporation, but that
employment has nothing to do with this internal union dispute.
It is strictly an internal union matter. Thus, there is significant
doubt that these persons, for the purpose of this dispute, are
employees within the meaning of Section 8(b)(1)(A).5
Second, the conduct in which they have engaged has gener-
ally been regarded as something outside the scope of Section 7.
The Section 7 rights that are protected by the Act are set forth
in that statute. It states: “Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection . . . .”

5 One should not be misled by the reference to Mitchell-Carr’s removal
on February 12 as the “80–20’’ person. The collective-bargaining contract
(not in evidence) that Respondent has with Sandia Corporation is said to
provide that the employer shall pay the salary of two employees whose
duties are those of a union representative. One such person is the union
president; the other is the “80–20” person. The contract gives the union
president exclusive authority to appoint the “80–20” person. He had previ-
ously designated the Union Vice President Mitchell-Carr to that post. When
the two began having problems, he appointed another in her stead. She
simply returned to her full-time duties with Sandia, “person was a removal
from a union post, something akin to a union steward, not a job with the
employer.” The action taken by the union president was to appoint someone
he deemed more loyal to the Union. It had no impact on Mitchell-Carr’s
status or job with the Employer. It was, therefore, not part of the employer-
employee relationship. She was not impeached and expelled until later.
The Board has held in a Section 8(a)(3) context that a union
that discharges its hired business agents for opposing the in-
cumbent officers elected by the membership does not interfere
with a Section 7 right. The Board had jurisdiction in the case
because, as it said, “it is the employer-employee relationship
which is the essence of the instant case.” Retail Clerks Local
770, 208 NLRB 356, 357 (1974). Even so, the Board did not
find that the business-agent employees of the union were en-
gaged in Section 7 activity, for they were trying to effect a
change in their employer’s top management. It said, “. . . [A]n
employee of a union, like any other employee, has no protected
right to engage in activities designed solely for the purpose of
influencing or producing changes in the management hierar-
chy” Id.
See also G & W Electric Specialty Co., 154 NLRB 1136,
1137 (1965), and Autumn Manor, 268 NLRB 239, 243 (1983).
Those cases stand for the proposition that Section 7 protection
extends only to employee activity that is “close enough in kind
and character, and bears such a reasonable connection to mat-
ters affecting the general interest of employees qua employees
as to come within the general reach of the ‘mutual aid and pro-
tection’ the statute is concerned to protect.” (Emphasis added.)
Therefore, it is clear that Section 7 is aimed at the mutual inter-
ests of employees in their capacity as employees, not in their
capacity as union officers or members.6 Section 7 does not
undergo any metamorphosis simply because a complaint is
brought under Section 8(b)(1)(A), rather than Section 8(a)(3).
Thus, even if the ousted union officers here are regarded as
statutory employees of Sandia, their effort to oust McLendon is
not protected by Section 7.
Similarly, the U.S. Court of Appeals for the Second Circuit
in an 8(a)(3) case, recently reaffirmed the principle that the
Board may not broaden Section 7 to protect activities that have
no bearing on the employment relationship. Office Employees
v. NLRB, 981 F.2d 76 (2d Cir. 1992), denying enf. 307 NLRB
264 (1992). The case was much like Retail Clerks Local 770,
except that it involved an individual running for elected office
rather than a hired official. The court said, “The entire Act re-
volves around the protection of workers’ efforts to better their
working conditions through collective action. Nothing in the
Act can be understood without keeping this central point in
mind. But the Act does not protect any ‘union activity’ engaged
in by an employee if it is unrelated to the terms and conditions
of employment.” Id. at 82.
Here, the impeached/expelled union officers have engaged in
no activity whatsoever pertaining to employee mutual aid or
protection. Their entire focus was upon another union officer’s
conduct in handling union money and other perceived misbe-
havior. They believed he was acting improperly and exposing
them to both civil and criminal liability. They were concerned
about themselves in their capacity as union officers. To protect
themselves, they deemed it appropriate to register their con-
cerns with the Department of Labor (DOL). That was a prophy-
lactic act aimed at themselves and the Union’s own coffers, not
aimed at the mutual aid or protection of employees. It had no
“qua employees” purpose.
The foregoing discussion of Section 7 and the scope of its
protective mantle does not even touch upon the third issue of
NLRA jurisdiction, the membership proviso of Section
6 To a similar effect is the Supreme Court’s discussion of the scope of
Sec. 7 set forth in Eastex v. NLRB, 437 U.S. 556, 565–568 (1978).
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1447
8(b)(1)(A). That proviso, quoted above, is of direct interest
here. In essence it leaves to individual unions the question of
who may or may not be its constitutional members. The Su-
preme Court has reviewed Section 8(b)(1)(A) and its member-
ship proviso in a trilogy of cases beginning with NLRB v. Allis-
Chalmers Mfg. Co., 388 U.S. 175 (1967). That was followed by
Scofield v. NLRB, 394 U.S. 423 (1969), and then NLRB v. Boe-
ing Co., 412 U.S. 67 (1973). In each of those cases the Court
emphasized that the Board was empowered to act on member-
ship issues only if the employer-employee relationship was
affected by the union’s discipline of its members. It also ob-
served that there were distinctions between disciplining a
member as opposed to expelling one from membership.
Allis-Chalmers held that a union did not violate the Act by
fining members who had crossed a picket line during an author-
ized strike. The Court found that “Congress did not propose any
limitations with respect to the internal affairs of unions, aside
from barring enforcement of a union’s internal regulations to
affect a member’s employment status.” 388 U.S. at 195. “What
legislative materials there are dealing with §8(b)(1)(A) contain
not a single word referring to the application of its prohibitions
to traditional internal union discipline in general, or disciplinary
fines in particular. On the contrary there are a number of assur-
ances by its sponsors that the section was not meant to regulate
the internal affairs of unions.” 388 U.S. at 185–186.
In Scofield, after noting that Allis-Chalmers had distin-
guished between internal and external enforcement of union
rules, the Court held that a union rule, permitting punishment
by fine, and intended to enforce a contractual limit on employee
production, did not violate the Act. The Court said, 394 U.S. at
430: Ҥ8(b)(1)[(A)] leaves a union free to enforce a properly
adopted rule which reflects a legitimate union interest, impairs
no policy which Congress has imbedded in the labor laws, and
is reasonably enforced against union members who are free to
leave the union and escape the rule.” In making this determina-
tion, the Court framed its inquiry to specifically focus on “the
legitimacy of the union interest vindicated by the rule and the
extent to which any policy of the Act may be violated by the
union-imposed production ceiling.” 394 U.S. at 431. The Court
concluded that the union’s fines were lawful under Section
8(b)(1)(A) for the employees could always choose to cease
being a constitutional member if they wished and avoid the
rule. It found the rule not to be a departure from national labor
policies:

The union rule here left the collective bargaining process un-
impaired, breached no collective contract, required no pay for
unperformed services, induced no discrimination by the em-
ployer against any class of employees, and represents no dere-
liction by the union of its duty of fair representation. In light
of this, and the acceptable manner in which the rule was en-
forced, vindicating a legitimate union interest, it is impossible
to say that it contravened any policy of the Act. [394 U.S. at
436.]

In context, of course, that statement dealt with a union’s en-
forcement of a work rule that was grounded in a collective-
bargaining contract. It did not deal with a purely internal union
dispute. Furthermore, the entire discussion relates to the NLRA,
not Federal labor laws in general, despite language (“impairs no
policy which Congress has imbedded in the labor laws”) that
could have been more precise.
In Boeing, the Supreme Court held that the Board did not
have power under Section 8(b)(1)(A) to evaluate the reason-
ableness of a union’s otherwise lawful fine of its members for
crossing a picket line during an authorized strike. It explained
its earlier decisions: “The underlying basis for the holdings of
Allis-Chalmers and Scofield was not that reasonable fines were
noncoercive under the language of §8(b)(1)(A) of the Act, but
was instead that those provisions were not intended by Con-
gress to apply to the imposition by the union of fines not affect-
ing the employer-employee relationship and not otherwise pro-
hibited by the Act.” 412 U.S. at 73. The Court said: “[W]e con-
clude that the Board was warranted in determining that when
the union discipline does not interfere with the employer-
employee relationship or otherwise violate a policy of the Na-
tional Labor Relations Act, [fn. omitted] the Congress did not
authorize it ‘to evaluate the fairness of union discipline meted
out to protect a legitimate union interest.’”412 U.S. at 78.
Not mentioning the above-cited Supreme Court decisions,
the General Counsel relies heavily upon Carpenters Local 22
(Graziano Construction), 195 NLRB 1 (1972), and a few cases
that cite it,7 as authority for the theory that the Union violated
Section 8(b)(1)(A) by retaliating against Mitchell-Carr,
Vaughan, Smith, and Herrera. In that regard, the General Coun-
sel cites a quotation in the case in which the Board seemingly
reaches into union membership issues that are not connected to
the individual’s employment. The Board stated in Graziano that
it has been “charged by the Supreme Court with the duty of
determining the overall legitimacy of union interests, and must
therefore take into account all Federal policies and not limit
ourselves to those embodied in our own Act.” As a historical
observation, I note that Graziano was decided before Boeing,
but well after Scofield and Allis-Chalmers. The Boeing lan-
guage, if the others were not clear, seems to have clarified any
ambiguity that may have derived from Scofield.
As additional history, prior to the passage of the LMRDA in
1959, the enforcement of membership rights under a union
constitution was regulated by state law, not the NLRA. Machin-
ists v. Gonzales, 356 U.S. 617 (1958). Justice Frankfurter’s
majority opinion in dealing with the preemption argument with
reference to Section 8(b)(1)(A) said: “But the protection of
union members in their rights as members from arbitrary con-
duct by unions and union officers has not been undertaken by
[F]ederal law and indeed the assertion of any such power has
been expressly denied [referencing the membership proviso to
Section 8(b)(1)].” The majority went on to hold that state regu-
lation of such matters was appropriate, not regulation by the
NLRB.
Given the Court’s pronouncement that state law governed in-
ternal union membership matters, it is no surprise that a year
later Congress enacted the LMRDA, giving national uniformity
to the issue. Even so, it did not at the same time change the
Taft-Hartley Act to give the NLRB any new authority in the
field. Congress put those matters squarely under the jurisdiction
of the district courts instead. Therefore, reliance on Graziano
for NLRB jurisdiction appears to be a risky proposition.
To begin with, Graziano is another union fine case; it is not a
membership expulsion case. A fine arguably impacts a union
member’s income, and may be seen (incorrectly after Boeing)
as affecting his livelihood. Furthermore, Graziano does not

7 E.g., Teamsters Local 579 (Janesville Auto Transport), 310 NLRB 975
(1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1448
involve the impeachment of elected union officers. It is, in my
opinion, a very thin reed to rely upon. Second, I am not certain
that it is good law, for Boeing seems to have rendered it use-
less. The phrases that appear in the Scofield discussion of a
union rule that “impairs no policy Congress has imbedded in
the labor laws,” and “invades or frustrates an overriding policy
of the labor laws,” have not been interpreted by the Supreme
Court as implicating any labor policy beyond the bounds of our
own Act, or extending to matters that do not affect the em-
ployee-employer relationship. Indeed, Boeing is a clear effort to
limit the Scofield language to the NLRA. Moreover, there have
been developments under the LMRDA that undercut the
Graziano-based logic. In ignoring those developments, the
General Counsel is disregarding an entire body of law telling
the NLRB that it does not have jurisdiction.
The former union officers here seek to vindicate rights that
are described not in Section 7 of the NLRA, but which are set
forth in the LMRDA. Title I of that Act, the “Bill of Rights of
Members of Labor Organizations,” sets forth the rights of union
members with respect to the right to vote and participate in
union elections [§101(a)(1)], and freedom of speech and as-
sembly. [§101(a)(2)]. And, a union may not lawfully take repri-
sals against a member for exercising Title I rights. See §601.
Those rights may be enforced by “any person” whose rights
have been infringed by the union through a civil action brought
in U.S. District Court. [§102]. Similarly, Title IV of the
LMRDA governs internal union election procedures and sets
forth the right of union members to run for and hold union of-
fice. If those rights are denied a member, the member under
§402 may file a complaint with the Secretary of Labor (the
DOL) who is obligated to investigate the circumstances. Sub-
section (b) empowers the Secretary to bring a civil action in the
district court to obtain an appropriate remedy.
According to the Supreme Court, section 102 of the LMRDA
was intended to give the courts wide latitude to tailor the relief
to fit the facts and circumstances of each individual case. Hall
v. Cole, 412 U.S. 1 (1973). Multiple remedies are available
under section 102, including injunctive relief, compensatory
damages, and damages for mental suffering, emotional distress,
and loss of reputation, even punitive damages. See the cases
collected in Cupid v. Electronic Workers Local 116 IUE, 142
LRRM 2458 (E.D.Pa. 1993). Even attorney’s fees may be com-
pensable. Hall v. Cole, supra. And, an elected union official
who was removed from office after speaking out over a policy
dispute may properly maintain a claim alleging that his removal
from office violated the free speech rights provided by Section
101(a)(2) of LMRDA. Sheet Metal Workers v. Lynn, 488 U.S.
347 (1989). The Court said, “Not only is the fired official likely
to be chilled in the exercise of his own free speech rights, but
so are the members who voted for him . . . . Seeing Lynn re-
moved from his post just five days after he led the fight to de-
feat yet another dues increase proposal, other members of the
Local may well have concluded that one challenged the union’s
hierarchy, if at all, at one’s peril.” Accordingly, the Court held
that Lynn’s action under section 102 was sustainable. See also
Stroud v. Senese, 832 F.Supp. 1206 (N.D.Ill. 1993) (elected
union vice president’s allegation that he was removed from
office in retaliation for speaking out against union policy was a
proper Sec. 101 claim). It is quite clear that the LMRDA offers
the ousted union officials and members here a wide array of
remedies that if successful will fully remedy the wrongs alleg-
edly visited upon them and will best fulfill the Congressional
purposes behind the LMRDA.
Moreover, the Supreme Court has reaffirmed the exclusivity
provision of section 403 of LMRDA that gives the Secretary of
Labor absolute authority over member challenges to union
elections which have already been conducted. Furniture Mov-
ing Drivers Local 82 v. Crowley, 467 U.S. 526 (1984). Section
403 of the LMRDA provides in pertinent part: “The remedy
provided by this subchapter [Title IV] for challenging an elec-
tion already conducted shall be exclusive.” The Court, in Crow-
ley, looking at that language, said: “Congress clearly intended
to lodge exclusive responsibility for post-election suits chal-
lenging the validity of a union election with the Secretary of
Labor.” Id. at 544.8 Because the General Counsel here seeks a
Board order reinstating both Mitchell-Carr and Vaughan to
their elected positions, it is clear under Crowley, following
Section 403, that it is without jurisdiction to do so. Similarly, in
McConnell v. Teamsters Local 445, 606 F.Supp. 460 (S.D.N.Y.
1985), a district court has held that it, rather than the NLRB,
has jurisdiction over a claim alleging retaliatory acts and due
process violations by a union against a union member under
section 101 of the LMRDA.9
IV. CONCLUSION
Based on the foregoing discussion, there is no alternative but
to conclude that the Board does not have subject matter juris-
diction over this dispute. First, while the Board, under the doc-
trine of pendent jurisdiction may certainly determine whether
persons are employees under the Act and may also determine
whether those persons have engaged in conduct protected by
the Act, it is quite clear that it has no stand-alone authority to
resolve internal union conflicts. Its only jurisdiction to deal
with union membership issues is based on a preliminary finding
that the dispute is somehow connected to the employer-
employee relationship. That has not been shown here.
Even if it were true that such a finding had been demon-
strated, it is doubtful that the Board could find a violation of the
NLRA. I have analyzed the fact pattern above and found that
the individuals in question did not engage in any Section 7
conduct. Once that ultimate fact becomes apparent, the mem-
bership proviso to Section 8(b)(1)(A) prevents the Board from
proceeding, because no employment connected discipline has
occurred. Therefore, the proviso shields the Union from Board
scrutiny.

8 Although the LMRDA does not provide an explicit definition of the
term “election,” the election procedures set out in the regulations of the
Office of Labor-Management Standards state that “A prime requisite of
elections regulated by Title IV [Terms of office and election procedures]
and §402 [Enforcement], which in total comprise Subchapter V [Elections]
is that they be held by secret ballot among the membership or in appropriate
cases by representatives who themselves have been elected by secret ballot
among the members.” 29 CFR. § 452.97. Thus, a case can be made out here
that the vote conducted by Respondent’s trial board is an “election” within
the meaning of Title IV of the LMRDA and subject to oversight by the
Secretary of Labor.
9 It has been said that the general purpose of the LMRDA is to provide
guarantees of equal rights and fair treatment for union members in relation
to those with whom they deal within the labor organization. Wirtz v. Team-
sters Industrial & Allied Employees Union Local 73, 257 F.Supp. 784
(D.Ohio 1966). It has also been observed that the protections under the
LMRDA were designed to afford remedies for conduct not proscribed in the
NLRA. Hinchman v. Electrical Workers Local. 130, 299 So.2d 818
(La.Ct.App.), writ denied 302 So.2d 618 (1974).
OFFICE EMPLOYEES LOCAL 251 (SANDIA NATL. LABORATORIES) 1449
Because this dispute involves reprisals allegedly take by the
Union against its members/elected officers that stripped them
of membership status, and their right to hold union elective
office, the only Federal law that can protect them is the
LMRDA. The Board does not have jurisdiction to provide
remedies under that statute. It cannot order elected union offi-
cers reinstated to their office, nor can it provide injunctive relief
or money damages to members who have been deprived of a
right granted them under the LMRDA. The only body that can
do that is a United States district court. The court can do that
based on either a private lawsuit under section 102 of the
LMRDA to vindicate a breach of the union membership bill of
rights; it can also reach any internal union election irregularities
under Section 402(b) upon the petition of the Secretary of La-
bor who has exclusive jurisdiction10 over such matters under
section 403.11

10 It is true that in one case cited by the General Counsel, a court of ap-
peals has characterized the Secretary’s authority as “primary,” rather than
exclusive, despite the express language of sec. 403 that the Secretary’s
authority in postelection matters is “exclusive.” That interpretation allows
for some authority to reside with the Board. NLRB v. Aeronautical Indus.
District Lodge 91, 934 F.2d 1288, 1299 (2d Cir. 1991). Factually, however,
the unfair labor practice included penalizing a union officer for filing
charges with the Board. That puts the case in a special category, for access
to the Board’s processes is a paramount right warranting protection, even in
the face of countervailing policies. Clearly the Board has jurisdiction to
protect such access. District Lodge 91 is, therefore, not applicable here.
11 Despite the explicit language of Sec. 403 giving the Secretary exclu-
sive authority here, the Court will permit the complaining union members
limited intervention rights in any suit brought by the Secretary under sec.
402(b). Trbovich v. Mine Workers, 404 U.S. 528 (1972).
As the Board has no authority to decide matters which are
exclusively within the sphere of internal union affairs, and are
expressly regulated and adequately protected with remedies
under the provisions of the LMRDA, I find that the Board has
no authority over these claims as they in no way impact the
employer-employee relationship. The complaint should there-
fore be dismissed for lack of subject matter jurisdiction.
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. The dispute revolves around issues relating exclusively to
the rights of union members under Titles I and IV of the
LMRDA and not to their rights set forth under Section 7 of the
Act.
3. The dispute described by the complaint and supported by
the evidence is not a labor dispute involving an employer en-
gaged in interstate commerce or in an industry affecting inter-
state commerce as required by Section 2(6) and (7) of the Act.
4. The General Counsel seeks remedies that Congress has re-
served exclusively to the courts of the United States, and not to
the National Labor Relations Board.
Based on these findings of fact and conclusions of law and
on the entire record, I issue the following recommended12
ORDER
The complaint is dismissed
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.