Teamsters Local 579 (Janesville Auto Transport)

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 975 (N.L.R.B. 1993)

975
310 NLRB No. 159
TEAMSTERS LOCAL 579 (JANESVILLE AUTO TRANSPORT)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Teamsters Local Union No. 579, affiliated with the
International Brotherhood of Teamsters, AFL–
CIO (Janesville Auto Transport Company,
Inc.) and James A. Watson. Case 33–CB–2889
March 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 31, 1991, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The Re-
spondent has filed exceptions and a supporting brief,
and the General Counsel has filed a brief in support
of the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the judge’s decision and
the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,1 and
conclusions, and to adopt the judge’s recommended
Order.
In adopting the judge’s findings, we recognize that
the Seventh Circuit has held that Section 8(b)(1)(A)
does not regulate ‘‘the penalties a Union may impose
so long as the penalty does not impair the member’s
status as an employee.’’ NLRB v. Operating Engineers
Local 139, 796 F.2d 985, 990 (7th Cir. 1986). In sup-
port of this conclusion, the Seventh Circuit relied
heavily on certain language in NLRB v. Boeing Co.,
412 U.S. 67, 74 (1973) (citing Scofield v. NLRB, 394
U.S. 423, 428–430 (1969)), and Board case law pre-
dating this Supreme Court precedent. In Boeing, the
Court addressed whether the Board is required by Sec-
tion 8(b)(1)(A) to inquire into the reasonableness of a
disciplinary fine imposed by a union on a member.
The Court concluded ‘‘that when the union discipline
does not interfere with the employee-employer rela-
tionship or otherwise violate a policy of the National
Labor Relations Act, the Congress did not authorize
[the Board] ‘to evaluate the fairness of union discipline
meted out to protect a legitimate union interest.’’’ 412
U.S. at 78 (emphasis supplied, footnotes omitted). In
support of the italicized language quoted above, the
Court cited Scofield v. NLRB, 394 U.S. at 429, and
NLRB v. Shipbuilders, 391 U.S. 418 (1968).
In NLRB v. Shipbuilders, supra, the Supreme Court
held that a union’s expulsion of members, who filed
unfair labor practice charges against it prior to exhaust-
ing intraunion remedies, violated Section 8(b)(1)(A)
even in the absence of proof that the expulsion af-
fected the members’ status as employees. Thereafter, in
Scofield, the Supreme Court upheld a union rule set-
ting a ceiling on the daily wages that members work-
ing on an incentive basis could earn. The Court ob-
served that the union’s production ceiling rule ad-
vanced a legitimate union interest unrelated to the
‘‘mere fiat of a union leader’’ and no impairment of
a ‘‘statutory labor policy’’ was shown. 394 U.S. at
430–432. The Court cautioned, however, that if a
union rule ‘‘invades or frustrates an overriding policy
of the labor laws the rule may not be enforced, even
by fine or expulsion, without violating § 8(b)(1).’’ 394
U.S. at 429. The Court then described a union’s au-
thority to impose internal rules as follows:
‘‘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 mem-
bers who are free to leave the union and escape the
rule.’’ 394 U.S. at 430.
The Board has interpreted these decisions of the Su-
preme Court to mean that internal union discipline, im-
posed 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 Section
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, e.g., the
right guaranteed by the Labor-Management Reporting
and Disclosure Act of 1959 to participate fully and
freely in internal union affairs. Carpenters Local 22
(Graziano Construction), 195 NLRB 1, 2 (1972). See
also Machinists Local 707 (United Technologies), 276
NLRB 985 (1985), enfd. 817 F.2d 235 (2d Cir. 1987).
We note that the Union’s actions here also impair poli-
cies imbedded in the National Labor Relations Act,
specifically the right guaranteed by Section 7 of the
Act to concertedly oppose the decisions made by the
incumbent leadership of the Union. Steelworkers Local
1397 (U.S. Steel Corp.), 240 NLRB 848, 849 (1979).
See also United Technologies, above.
The Supreme Court’s decision in Pattern Makers’
League v. NLRB, 473 U.S. 95 (1985), also cited by the
Seventh Circuit in Operating Engineers Local 139,
supra, is consistent with our interpretation of Section
8(b)(1)(A). There the Court majority upheld our find-
ing that Section 8(b)(1)(A) prohibits a union from
fining members who have tendered resignations that
are invalid under the union constitution. The Court re-
affirmed that ‘‘Section 8(b)(1)(A) allows unions to en-
force only those rules that ‘impai[r] no policy Con-
gress has imbedded in the labor laws. . . .’ Scofield,
supra, at 430.’’ 473 U.S. at 104. The Court specifically
rejected, as inconsistent with its holding in Marine
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s name appears as amended at the hearing.
2 Following close of the hearing, the General Counsel moved that
the executive board minutes of November 10, 1990, and March 16,
1991, previously marked as G.C. Exhs. 20(b) and (c), respectively,
be stricken from the record as not offered and inadvertently in-
cluded. The motion is granted. Certain errors in the transcript are
noted and corrected.
3 G.C. Exh. 10. More than a thousand copies were sent. The dis-
tribution reached to all members, active and inactive, including retir-
ees.
Workers, the position that only union rules affecting a
member’s employment status violate Section
8(b)(1)(A). 473 U.S. at 109 fn. 20. Accordingly, we re-
spectfully adhere in this case to the interpretation of
Section 8(b)(1)(A) established in the Supreme Court
decisions cited above and in the Board’s prior prece-
dent, and we affirm the judge’s finding of a violation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Teamsters Local Union
No. 579, affiliated with the International Brotherhood
of Teamsters, AFL–CIO, Janesville, Wisconsin, its of-
ficers, agents, and representatives, shall take the action
set forth in the Order.
Deborah A. Fisher, Esq., for the General Counsel.
Naomi E. Eiseman, Esq. and Frederick Perillo, Esq.
(Previant, Goldberg, Uelmen, Gratz, Miller & Bruegge-
man S.C.), of Milwaukee, Wisconsin, for the Respondent.
James A. Watson, of Janesville, Wisconsin, pro se, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Rockford, Illinois, on September 30, 1991, on
an original unfair labor practice charge filed on January 30,
1991, and a complaint issued on March 5, 1991, alleging that
Teamsters Local Union No. 579, affiliated with the Inter-
national Brotherhood of Teamsters, AFL–CIO1 (the Respond-
ent) violated Section 8(b)(1)(A) of the Act on October 20,
1990, by informing Charging Party James A. Watson that he
would be excluded from extra benefit plans negotiated by the
Respondent; by announcing that certain members in good
standing would be removed from a mailing list maintained
by the Respondent for the benefit of its members; and, fur-
ther, by actually excluding this group from the Respondent’s
‘‘extra internal union benefit plans,’’ including a $2000-death
and dismemberment policy. Finally, it is alleged that the Re-
spondent violated Section 8(b)(1)(A) of the Act, by, on or
about November 10, 1990, announcing that these same indi-
viduals would be excluded from the aforesaid death and dis-
memberment policy. In its duly filed answer, the Respondent
denied that any unfair labor practices were committed. Fol-
lowing close of the hearing, briefs were filed on behalf of
the General Counsel and the Respondent.
On the entire record,2 including my opportunity directly to
observe the witnesses and their demeanor, and after consid-
ering the posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, Janesville Auto Transport Company, Inc.,
a Delaware corporation, from its facilities in Janesville, Wis-
consin, is engaged in the interstate transportation of new ve-
hicles by motor truck. In the course of that operation, it an-
nually provides services valued in excess of $50,000 in
States other than the State of Wisconsin. The complaint al-
leges, the answer admits, and I find that the Employer is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Respondent, Teamsters Local Union No. 579, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (the Union), is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues, Background, and the Watson Letter
The complaint in this case stems from conduct on the part
of Brendan Kaiser, the Respondent’s secretary-treasurer. The
General Counsel argues that Kaiser, on his own and with use
of his standing and influence within the Respondent, retali-
ated against union members who publicly expressed opposi-
tion to his endorsement of a health provider and who op-
posed his candidacy for delegate to the International Conven-
tion. By way of defense, the Respondent asserts, essentially,
that Kaiser’s reaction was legitimate as a means of protecting
membership interests generally, and that, in any event, since
employment interests were unaffected by the Respondent’s
action, legally, the conduct complained of was not within the
purview of Board remedies.
The Respondent represents about 1500 workers, including
drivers and yard men employed by Janesville Auto Transport
Company. Those identified as targeted by Kaiser for unlaw-
ful reprisal; namely, James A. Watson, John Wilson, Willard
Ness, George Brown, Davis Schuler, Anton Tomten, Mike
McGuire, and Richard Stearnes, were among 50 yard work-
ers employed by that firm.
Two events figure prominently in the wrongful conduct at-
tributed to the Respondent. The first involved Kaiser’s en-
dorsement of a health provider, the second, his candidacy for
election as delegate to the International Convention sched-
uled for December 1991. Specifically, the facts show that in
August 1990, Kaiser had updated an arrangement in which
Wisconsin Vision & Hearing would provide a series of dis-
counts to the Respondent’s active members and retirees, who
presented themselves for that firm’s services. As part of that
process, Kaiser authorized Wisconsin Vision & Hearing to
use Respondent’s letterhead and his name to support an en-
dorsement distributed by Wisconsin Vision.3 That document,
in material part, stated:
977TEAMSTERS LOCAL 579 (JANESVILLE AUTO TRANSPORT)
4 Kaiser testified that he learned of that document when telephoned
in August by an unidentified ‘‘young man,’’ who stated that he was
calling on behalf of Wisconsin Hearing and Vision. According to
Kaiser, the caller seemed to be insulted by the Watson letter and in-
quired if the Union wished to cancel the discount arrangement. As
shall be seen, I did not believe Kaiser’s testimony in this respect.
5 The effort on the part of Kaiser to impress that he did not regard
Watson as a members first supporter, apparently led him to swear
that John Wilson, not Watson, was the object of this passage. This
was taken as consistent with Kaiser’s propensity to amend events
through his sworn testimony. Nowhere does the letter mention Wil-
son or address anyone other than Watson. There is no indication that
he forwarded a copy of this document directly to Wilson. Kaiser was
not believed.
6 G.C. Exh. 12. This document substantiates prima facie the allega-
tion in the complaint that Kaiser informed Watson that he would no
longer participate in union benefit plans.
Wisconsin Vision & Hearing is THE ONLY vision
care provider endorsed by your Executive Board. We
urge you to use their facility . . . for all your future
eyecare needs including eye examinations, eyeglasses
and contact lenses. They have an outstanding record of
providing quality products at an outstanding price to
our members and dependents. In addition Wisconsin
Vision & Hearing is a union shop under contract with
UCFW Local #1444.
Also, we remind you they moved into a beautiful
new facility here in Janesville to better serve our
eyecare needs. Their huge frame selection along with
the best prices, delivered to us by union members,
should be more than enough reason for all of us to pa-
tronize their facility.
Please give Wisconsin Vision & Hearing serious
consideration for all your eyecare needs in the future.
Fraternally yours,
Brendan Kaiser
Secretary-Treasurer
Not all union members were impressed. Some regarded the
offer as intrusive. The Charging Party, James Watson, com-
posed a letter dated August 21 to Wisconsin Vision, stating
in material part as follows:
Recently members of Teamsters Local 579 received
the enclosed letter from Brendan Kaiser urging mem-
bers and retiree’s [sic] to . . . patronize your business.
. . . .
We [the] undersigned members in good standing of
Local 579 are NOT SO BLIND as to choose our Vision
& Hearing provider simply because they are a union
shop. Further, we do not consider where we obtain our
Vision care to be anyone’s business except our own.
I33 As a result of your being recommended by Brendan
Kaiser, we would like you to know that none of the un-
dersigned or any member of our family’s will ever set
foot in your door or do a nickel’s worth of business
with you!
Watson’s views were endorsed by other members of Local
579. Thus, John Wilson, Mike McGuire, Willard Ness,
George Brown, David Schuler, Anton Tomten, and Richard
Stearnes, all joined as signatories to his letter.
B. Kaiser’s Reaction
Ultimately, this letter would provide the linchpin for an ef-
fort by Kaiser to demean his opponents and thereby to en-
hance his own political posture. Although his right to cam-
paign on this basis is not challenged, Kaiser went further, en-
meshing the Union and its power to punish. This broadening
of his vendetta against the eight signers is the sole focus for
the General Counsel’s claim of proscribed activity.
In this respect, as shall be detailed below, Kaiser’s reac-
tion to the August 21 letter occurred on three fronts. First,
he would by personal letter sharply attack Watson and the
latter’s ‘‘unionism.’’ Second, he would publish the Watson
letter and his response in his effort to demean the politics of
the seven members who agreed with Watson, including a
long standing and present rival, John Wilson. And, finally,
at executive board and general membership meetings held by
the Respondent during the election campaign, he would de-
clare that this latter group should and would be denied cer-
tain services from the Union, urging these bodies to adopt
such restraints.
Kaiser’s response to Watson’s letter was not immediate.
While claiming to be appalled, he apparently remained silent
for a period of 2 months,4 before reacting explosively on Oc-
tober 20. Thus, by letter of that date, he personally assailed
Watson. To understand Kaiser’s attack, it is noted that a
group politically opposed to Kaiser existed within Local 569,
calling themselves ‘‘member first.’’ Kaiser, who denied that
he understood that Watson supported ‘‘member first,’’
showed little hesitation in aligning Watson with that group,
as follows:
Your anti-unionism is again exhibited as it always
has been, and as you told me about your disbelief of
the Union theory.
. . . .
When the Local Union negotiates the opportunity to
have services provided for the membership that will re-
duce out-of-pocket expense, or full payment of certain
services and items . . . or major discounts for those not
as fortunate to have vision coverage, and a MINUTE
FEW WRITE and sign a stupidity advertisement letter
to the provider, is nothing more than ABSOLUTE
STUPIDITY. IGNORANCE is correctable through edu-
cation, STUPIDITY is FOREVER.
For a person who claims to be a ‘‘MEMBER’S
FIRST’’ [sic] advocate, and signs something as stupid
as the August 21, 1990 letter to Wisconsin Vision and
Hearing, certainly displays his hypocracy [sic].5
The Local Union will remove your name from any
of the EXTRA benefits negotiated by the author of this
reply.6
Next, Kaiser used the Watson letter as a means of rallying
support against his political opponents. He first sought to en-
list support from among union stewards and com-
mitteepersons. A memo was sent to about 60 serving in ei-
ther of these posts on or about October 20. A copy of Wat-
son’s August 21 letter was enclosed. [G.C. Exh. 13.] In ap-
pealing for support, Kaiser commented on Watson’s letter, as
follows:
HAVE YOU EVER SEEN ANYTHING SO STU-
PID AND ANTI-UNION?
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Watson’s letter was editorialized by Kaiser with a slap at polit-
ical opponents, as particularized below. G.C. Exh. 15.
8 McQuire replaced Clifford Chetnick, the original candidate for
the alternate position. When Kaiser, at a general membership meet-
ing on October 20, presented his motion to impose sanctions against
the signers of Watson’s letter, he received a second from Chetnick.
There is no evidence why Chetnick might have taken this step when
earlier he was allied with Wilson. This apparent turnabout is in no
sense viewed as having any material bearing on the issues in dispute
in this case.
9 Kaiser denied knowledge that Wilson supported the TDU. Wil-
son’s involvement with the TDU provoked him to arrange and pre-
side over a meeting under banner of that organization which was ad-
dressed by Susan Jenick, a representative of the ‘‘Association for
Union Democracy.’’ On that occasion, Wilson explained that his
group was supporting the candidacy of Ron Carey for International
president, playing a tape of one of the latter’s speeches. Kaiser had
been alerted in the past to the fact that Wilson had sponsored a
meeting of TDU. G.C. Exh. 3. Kaiser also would later admit that
prior to July 1990, he was aware that Wilson had used his vacation
to solicit signatures in furtherance of Carey’s run for International
president.
10 G.C. Exhs. 4, 15, and 16.
11 G.C. Exh. 6. This rivalry may date back to 1978, when Kaiser
was removed as ‘‘steward’’ by the Union’s secretary-treasurer, Leon-
ard Schoonover. The latter appointed Wilson as Kaiser’s replace-
ment. After Wilson was elected to that post in September 1988, only
3 months later Kaiser removed him from that post. At the same
time, Kaiser filed internal disciplinary charges against Wilson. The
Respondent’s ‘‘hearing tribunal’’ voted to expel Wilson. The expul-
sion was later reversed by the joint council. Kaiser appealed to the
general executive board. Wilson was reinstated. In 1989, Wilson un-
successfully sought to unseat Kaiser as secretary-treasurer. ‘‘If you
are going to coddle this type of person, you are no better than he
and they are.’’ (G.C. Exh. 7.)
12 G.C. Exh. 8.
13 G.C. Exh. 14.
I ask you to write a letter in support of the Local
Union Secretary-Treasurer to negotiate membership
benefits and discounts on services over and above the
contract health, welfare benefits, and return them to the
Local Union.
If you care, I care,
Brendan F. Kaiser [s]
On October 24, Kaiser admits to distributing a copy of
Watson’s letter, together with his October 20 response to
Watson to all union members (about 50) employed by Janes-
ville Auto Transport Company, Inc. This latter document was
observed by Watson on the Company’s bulletin board.7
While it might be said that Watson had not opposed Kai-
ser politically in the past, the same could not be said of all
who signed the August 21 letter. In the fall of 1990, a cam-
paign was in progress to elect a delegate and alternate to the
International convention scheduled for the summer of 1991.
Kaiser ran for delegate, and Respondent’s president, Marvin
Lewis, ran for the position of alternate delegate. They were
opposed, respectively, by John Wilson and Mike McQuire,
both of whom penned their endorsement to the August 21
Watson letter.8
The rivalry between Wilson and Kaiser transcended the
delegate campaign. Recently, and perhaps historically, Wil-
son supported the ‘‘Teamsters for a Democratic Union’’
(TDU), a rebel group within the Teamsters that functioned
at a national level, ostensibly seeking broadened democratic
reforms within that organization.9 Kaiser’s attitude toward
Wilson and ‘‘member first’’ was linked with his opinion
about TDU and their candidate for International president. In
that connection, ‘‘member first’’ and TDU supported Ron
Carey, for International president. Kaiser and Lewis opposed
Carey, and during the campaign linked members first, and its
candidates, Wilson and McQuire, with TDU. Kaiser por-
trayed TDU in his campaign literature as supported by com-
panies seeking to destroy the Union. The Watson letter was
the centerpiece for Kaiser’s own campaign propaganda,
which assailed the union principles of Wilson and McGuire,
his opponents in the delegate election, and, their candidate
for International president, Ron Carey.10
Kaiser’s propensity to equate opposition with a conspira-
torial movement against him is not surprising. His antipathy
toward those who would support John Wilson became evi-
dent only a few weeks after Wilson, on July 6, 1990, an-
nounced his candidacy for the post also sought by Kaiser.11
Earlier, Wilson had filed a complaint against Kaiser with
International President William J. McCarthy, complaining
that Kaiser had appointed a steward, without benefit of an
election.12 By letter to McCarthy, dated July 23, 1990, Kai-
ser launched a scathing attack on Wilson and his tactics, de-
scribing him as a ‘‘disruptive and destructive dues payer.’’
Kaiser in that document warned the International president:
Kaiser’s use of the Watson letter did not end with its use
as fodder for the delegate campaign. As events unfolded, his
published criticism of and anger toward Wilson and McGuire
for their support of Watson’s letter, would extend to all who
signed. Thus, he admits to presenting that document to the
Respondent’s executive board on Saturday, October 20, to-
gether with his response to Watson. This proffer was accom-
panied by his motion that the executive board agree to re-
move the names of all signers from ‘‘the mailing list.’’ The
executive board concurred, signifying their approval by ap-
pending their signatures to a copy of Kaiser’s response to
Watson.13 The minutes of the executive board meeting of
October 20, included the following:
Brendan has just negotiated a $2000, two-year en-
rollment with Wisconsin Home Life Insurance Com-
pany. . . . Brendan’s proposal would have all mem-
bers with withdrawal cards and still on our seniority list
be provided this benefit and it also would apply to retir-
ees. The company agreed to Brendan’s proposal which
affects 1,850 individuals. Brendan requested the execu-
tive Board take action and moved that we not provide
those who signed Mr. Watson’s letter of October 20,
1990 [sic] with any benefit information other than what
their contract or labor agreement provides. [G.C. Exh.
20.]
That same afternoon, a general membership meeting was
held. It was attended by 30 to 40 out of a total active mem-
bership of 1225. Kaiser followed up on his position before
the executive board earlier that day by reading Watson’s Oc-
tober 20 letter to Wisconsin Vision, specifically identifying
those who signed that document, moving, effectively, that
those attending follow the executive board and approve re-
979TEAMSTERS LOCAL 579 (JANESVILLE AUTO TRANSPORT)
14 G.C. Exh. 21. John Wilson testified that at the meeting Kaiser
stated that he could not understand how anyone could send a letter
such as that sent to Wisconsin Vision by Watson, while singling
Wilson out, noting that he had signed and was running on the
‘‘member’s first’’ slate. Wilson took the floor to acknowledge that
he had signed, defending this action on grounds that the signers were
tired of the Union’s ‘‘trash’’ letters and felt that they should be able
to get their eyeglasses where they pleased. He confirmed that Kaiser
went on to state that the signers would be removed from the mailing
list preventing them from getting further literature. Wilson testified
to another meeting on November 10 in which Kaiser referred to the
fact that Watson’s letter would be answered, adding that, ‘‘he would
exclude everyone that signed that letter from the $2000 insurance
policy.’’
15 According to Kaiser, the Respondent was reimbursed by the car-
rier for the postage costs.
16 G.C. Exh. 22.
17 Contrary to the implication in the Respondent’s brief there is no
inconsistency between the decision in Machinists Local 707, supra,
and Meat Cutters Local 593, 237 NLRB 1159 (1978). Both cases
involved an application of the test articulated in Scofield, supra at
440, for determining when a union has a legitimate interest in dis-
ciplining members. In Meat Cutters Local 593, supra, that criteria
was met where the union was simply seeking to force members to
support an organizational effort. A different result was reached Ma-
chinists Local 707, supra, where the union invoked internal dis-
cipline to suppress dissent. The holding in this latter case was con-
sistent with established precedent that discipline of political rivals
did not reflect ‘‘a legitimate union interest.’’ See Graziano Con-
struction, supra.
moval of the eight signatories from the mailing list, thus, de-
nying them information on the ‘‘extra benefits.’’14
To understand this sanction and its limits, it is noted that
earlier, the Respondent had provided the insurance carrier
with mailing labels, stationery, envelopes, and access to its
bulk mailing permit15 to allow reproduction of a letter to be
sent active, inactive, and retired members. Through that doc-
ument, it was announced on behalf of the Respondent that
no-cost coverage had been acquired under a $2000-accidental
death and dismemberment policy. That letter included a pre-
paid, self-addressed card, for completion, which was de-
scribed as necessary to ‘‘deliver your certificate, designate
your beneficiary, and receive your signature.’’ It included the
following warning: ‘‘If you fail to designate your bene-
ficiary, the $2000 will be paid to your estate which may be
taxable.’’16
D. Concluding Analysis
1. The issues
The complaint assumes that Kaiser went beyond campaign
rhetoric and used his position and influence within the Local
Union to foster reprisals against Watson, Wilson, Ness,
Brown, Schuler, Tomten, McGuire, and Stearnes. By way of
defense, the Respondent contends that their support of the
Watson letter was not activity with protective guarantees of
Section 7. Alternatively, it is argued that, if this were the
case, considering the nature of the Respondent’s conduct,
there was no impact on the employer-employee relationship,
thus, limiting the conduct complained of to purely internal
action beyond the Board’s remedial jurisdiction. The Re-
spondent also challenges the General Counsel’s claim of
wrongful motive, contending, on the one hand, that Kaiser
acted legitimately to prevent the beneficiaries of the com-
plaint from jeopardizing the continuation or implementation
of any future internal union benefit programs, and, finally,
that Kaiser’s motivation cannot be attributed to the member-
ship which at a duly constituted meeting voted to adopt his
recommendations.
2. Kaiser’s action failed to impact on employment
The alleged reprisals essentially relate to union interven-
tion threatening to or actually impairing participation by
Watson, Wilson, Ness, Brown, Schuler, Tomten, McGuire,
and Stearnes in certain benefit programs. The benefits in
question were arranged between the union leadership with
private vendors. They were promotional in origin and with-
out cost to the Union. In each instance, they were provided
by firms seeking to market goods and/or services to the
membership. Hence, they were not financed by dues pay-
ments, and, at the same time, were neither a product of, nor
directly or indirectly funded through collective bargaining.
The Respondent correctly observes that interference with
participation in such programs would not impact on employ-
ment terms. For this reason, the Respondent argues that,
since the complaint is based exclusively on intraunion con-
duct, remote from employment terms, the Board is powerless
to intervene. With one exception, this claim is founded on
precedent in effect prior to 1969, and rendered obsolete by
the Supreme Court’s demarcation of permissible internal
union discipline. Thus, in Scofield v. NLRB, 394 U.S. 423
(1969), the Court held that ‘‘if a rule invades or frustrates
an overriding policy of the labor laws [and hence was be-
yond the legitimate interests of the labor organization] the
rule may not be enforced, even by fine or expulsion, without
violating § 8(b)(1).’’ 394 U.S. at 429. Internal action is legiti-
mate only where enforcement:
[R]eflects a legitimate union interest, impairs no policy
Congress has imbedded in the labor laws, and is rea-
sonably enforced against union members who are free
to leave the union and escape the rule. [394 U.S. at
430.]
Since Scofield, the Board, in a uniform body of precedent
has held that restraining members who exercise Section 7
rights is neither a matter of legitimate union interest, nor in
consonance with national labor policy. This is so even where
the coercion is manifested by an internally imposed fine,
rather than sanctions tending to impact on the employment
relationship. Accordingly, the Scofield exception is routinely
denied where dissent is suppressed through internal discipli-
nary procedures. See Carpenters Local 22 (Graziano Con-
struction), 195 NLRB 1, 2 (1972). In other words, the Act
prohibits union leaders from enforcing personal goals at the
expense of members by any form of coercion, be it a fine,
itself ‘‘unrelated to the employer-employee relationship,’’ or
other form of internal deprivation. Machinists Local 707
(United Technologies), 276 NLRB 985, 981 (1985);17 Steel-
workers Local 1397 (U.S. Steel Corp.) (Threat to invoke dis-
ciplinary procedures), 240 NLRB 848 (1979); and Operating
Engineers Local 139 (AGC of Wisconsin), 273 NLRB 992
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 The Board’s holding in this case was reversed by the court of
appeals. NLRB v. Operating Engineers Local 139, 796 F.2d 985, 990
(7th Cir. 1986). This is the only authority cited by the Respondent
which may not be distinguished and which supports its position.
However, in rejecting the Board’s position in that case, the court de-
clared that ‘‘internal union fines or discipline that restrains § 7 rights
are not violations of § 8(b)(1)(A).’’ This view of the law is in dero-
gation of clearly established Board policy, which I am duty bound
to follow.
19 The Respondent argues that there can be no violation absent
some deprivation of an employment right even where ‘‘the union is
motivated by wholly improper reasons, such as a desire to stifle in-
ternal dissent.’’ I am aware of no current Board authority supportive
of that view. The Respondent gains no solace from Hod Carriers
Local 703, 150 NLRB 1614 (1965). The result in that case was later
repudiated by NLRB v. Shipbuilders, 391 U.S. 418 (1968); its ration-
ale is displaced by the formulation articulated by the Supreme Court
in Scofield; and its rationale undermined by the Board’s subsequent
applications of Scofield in Graziano Construction, and Machinists
Local 707, supra. Also misplaced is the Respondent’s reliance on
Pottery Workers (Colton Mfg.), 254 NLRB 696 (1981). That case
turned on motive, with the Board’s dismissal based on the judge’s
reasoning that the withholding of strike benefits to strike breakers
was not linked to their election to cross the picket line, but actuated
instead by uniformly applied, nondiscriminatory limitations on eligi-
bility for union strike benefits. Id. at 699–700. Thus, the rationale
of that case was consistent with the disposition in Scofield. The
judge in Colton did rule that those violations founded on a breach
of the ‘‘duty of fair representation’’ require a showing of detrimental
impact on employment terms. Under that theory, this might well be
the case. However, the instant complaint is not founded on fiduciary
duties that arise from the status of a exclusive statutory representa-
tive, but turns on coercion with respect to Section 7 rights, as distin-
guished from generic concepts of ‘‘arbitrary and invidious’’ motiva-
tion.
20 Watson does not intimate that he held ambitions in that regard.
He testified that he drafted the letter solely because he felt it inap-
propriate for the Union to suggest where members should conduct
their business. At the time Watson was not allied with the TDU, and
there is no evidence that he had opposed Kaiser in the past. More-
over, the document was not used for propaganda purposes; because,
neither he nor the other signers appear to have taken steps to cir-
culate the letter among the membership generally. In fact, of the
signers, only Wilson and McGuire were shown to be in a position
to reap political dividends from any form of criticism of Kaiser.
21 G.C. Exhs. 20 and 21. The Respondent contends that in order
to find the allegations, evidence must substantiate that the member-
ship and executive board acted on the same unlawful motive pos-
sessed by Kaiser. There is no merit in this view. Kaiser was an ad-
mitted agent who used his standing within the Union to influence
these internal bodies to take action. His unlawful motive is imputed
to both. Moreover, Kaiser concedes that each adopted his rec-
ommendation with the benefit of documentation that Kaiser was
using the August 21 letter as means of combating political oppo-
nents. By acting on his motion that the signers be removed from the
mailing list, with benefit of this information, the executive board and
membership condoned and ratified any illegality embraced by Kai-
ser. Yet, even were this not the case, Kaiser’s personally held moti-
vation would bind those who adopted his recommendations, just as
would be the case of a supervisor who recommends union-inspired
discrimination, later approved by a higher management echelon
which is unaware of union activity. See, e.g., Postal Service, 290
NLRB 120, 124 (1988).
fn. 2 (1984).18 Thus, the guarantees, which are at the corner-
stone of Section 7, will survive the possibility that union
leaders might discover forms of reprisal that punish, yet do
not tread on employment terms.19 Accordingly, there is no
merit to the claim that the complaint fails to state an action-
able unfair labor practice.
3. The August 21 letter and Section 7 of the Act
The Respondent, in urging dismissal of the complaint, also
contends that the August 21 letter was not activity protected
by the Act. In support, this document is viewed as no dif-
ferent from the antidiscrimination picketing in Emporium
Capwell Co. v. Western Addition Community Organization,
420 U.S. 50 (1975). That case is inapposite. The dischargees
involved there were not engaged in internal politics. Their
activity did not target a union official. Instead, they picketed
their employer in protest of alleged racially discriminatory
policies, urging a boycott in ‘‘attempting to bargain with the
Company over the terms and conditions of employment as
they affected racial minorities.’’ 420 U.S. at 60. Thus, that
case involved an attempt to override the negotiating process
and to denigrate the exclusive status conferred by the Act to
the majority representative. In the instant case, there was no
attempt to undercut the terms of any negotiated collective-
bargaining agreement, nor institutionally to intrude on the
Respondent’s representative status. Those who concertedly
appended their signatures to Watson’s letter were simply
manifesting their displeasure with a union official, who used
his official standing in the Union to influence personal judg-
ment as to just whom members should patronize. In taking
offense to this conduct and communicating their dissent,
those involved were insulated from any form of reprisal.
This is so despite the suggestion in the record that the let-
ter might not have been inspired by politics.20 For, no matter
what the forum, ‘‘an employees right to engage in intraunion
activities in opposition to the incumbent leadership of his
union is concerted activity protected by Section 7.’’ Steel-
workers Local 1397 (U.S. Steel Corp.), supra at 849. Absent
a breach of the peace or conflict with specific statutory ob-
jectives, the nature of that opposition is unimportant. In such
circumstances, where the leadership purports to act in an of-
ficial capacity, they may not lawfully retaliate against those
who diagree. The coercion triggered by that document was
presumptively violative of Section 8(b)(1)(A) of the Act.
4. The reprisals
With one exception, the factual premise for each of Kai-
ser’s allegedly unlawful steps is documented fact. Thus, Kai-
ser, by his letter of October 20, informed Watson that he
would not receive any extra benefit which Kaiser had nego-
tiated on behalf of union members. It is also documented
that, on this very date, first, at the Respondent’s executive
board meeting and later at a general membership meeting,
Kaiser declared and made a formal motions that the Re-
spondent elect to deny those who signed the Watson letter
‘‘any benefit information other than what their contract or
labor agreement provides.’’21
On the other hand, a major issue derives from the absence
of authoritative evidence establishing that any negotiated
extra benefit, either in terms of eligibility or enjoyment, was
actually denied. The Respondent insists that this did not
occur. In support, it is argued that any threat to interfere with
enjoyment of these benefits was never implemented, and that
the beneficiaries of the complaint were not in fact denied the
right to participate in any of the programs involved. To an
981TEAMSTERS LOCAL 579 (JANESVILLE AUTO TRANSPORT)
22 Although Kaiser was generally regarded as unreliable, I believed
his testimony that no formal action of any kind was necessary to es-
tablish eligibility for the insurance, and that all members are covered
whether they returned the card or not. His analysis is consistent with
that document which on its faces defines all the adverse con-
sequences of nonreturn, omitting noncoverage as among them. The
contrary testimony by Watson was unpersuasive since apparently
based on his personal understanding, rather than direct knowledge of
American Income Life’s actual policy. I was also unpersuaded by
the uncorroborated testimony of John Wilson that at the general
membership meeting of November 10, Kaiser stated that he would
exclude ‘‘everyone that signed that letter from the $2000 insurance
policy sent out to all retirees and all people that were laid off and
the people who were working, which come to 1,940 people at that
time.’’ I have difficulty accepting that Kaiser at that time would de-
part from and expand his carefully worded, declared intention merely
to remove the members in question from union mailings. In addition,
in terms of coverage, I am not convinced that Kaiser was in a posi-
tion to exclude any member for any reason. Based on probability
and my impression of Wilson, his uncorroborated testimony as to
what was said on November 10 was more likely his interpretation
of Kaiser’s remarks, and was not persuasive as to what was actually
said.
23 Kaiser acknowledged that the names in question were never re-
stored to the mailing lists.
24 Kaiser argumentatively attempted to mitigate the effects of his
action by observing that these individuals would have had the oppor-
tunity to designate beneficiaries in prior years when they were cov-
ered by similar insurance. This view would not account for the fact
that those adversely affected were denied the opportunity to change
beneficiaries or to add new ones.
25 Kaiser’s testimony acknowledges that heirs would be at mercy
of the Union. He avers that the insurance firm has no listing of those
covered, but is dependent on notification by the Respondent in the
event of death. With the certificate, the Respondent’s opportunity to
prejudice beneficiaries and heirs in the proceeds would be reduced.
26 Kaiser attempted to excuse the delay because Wisconsin Vision
‘‘assured that they weren’t going to cancel it.’’ Obviously, if this ob-
viated a response in August, it also would have removed any neces-
sity for taking action in October.
extent, I would agree. The only benefit plans involved were
the discounts with Wisconsin Vision and the death and dis-
memberment insurance. With respect to the former, there is
no evidence that the Respondent took steps to debar the
beneficiaries from doing business on the same terms as other
members in good standing. As for the insurance arrangement,
the only denial evident by credible proof on this record is
removal from the Respondent’s mailing list,22 action which
had the immediate consequence of denying them a special
mail-in card.
There is no merit in the assertion by the Respondent that
‘‘Watson’s group lost nothing as a result of not receiving the
postcard.’’ At Kaiser’s instigation, names and addresses of
all eight were withheld from those forwarded to the insur-
ance company. Consistent with the Respondent’s contention,
Kaiser testified that these individuals nevertheless remained
eligible for the benefit, just as would those, who by choice,
declined to respond to the insurance firm. However, he con-
cedes that the insurance carrier had no means for transmitting
the above document to the eight who signed the August 21
letter, and that they would not have received the insurance
carrier’s solicitation or the return card.23
Contrary to the Respondent, on this basis, it, at Kaiser’s
behest, denied each valuable considerations. Their right to
change beneficiaries was foreclosed.24 Moreover, all eight
were prejudiced in their opportunity to obtain insurance cer-
tificates from the insurer, thus, leaving heirs without evi-
dence of coverage.25 Accordingly, the removal from the
mailing list is not viewed as having such negligible effect as
to be removed from the forms of coercion outlawed by Sec-
tion 8(b)(1)(A) of the Act.
4. Kaiser as the defender of membership interests
The Respondent answers the General Counsel’s prima
facie showing on the ground that Kaiser’s action was privi-
leged. Thus, it is contended that these steps were necessary
to defend the membership ‘‘because the Watson group sent
an insulting vituperative letter to [Wisconsin Vision],’’ and
in consequence, the Respondent ‘‘decided not to assist the
letter-writers by providing them any further information
about discounts or free services, including mailings that have
response cards enclosed.’’
This defense is based entirely on the uncorroborated, self-
serving testimony of Kaiser. He states that the names were
removed because he did not want supporters of the August
21 letter to have access to American Income Life and jeop-
ardize the death and dismemberment program as he claims
they had done in the case of Wisconsin Vision. While I was
not impressed with Kaiser generally, in this respect, his testi-
mony seemed implausible.
Great doubt is generated by his testimony that the Watson
letter placed the Wisconsin Vision arrangement in jeopardy.
In this respect, Kaiser insists that an unidentified representa-
tive of Wisconsin Vision telephoned him and was ‘‘ada-
mant’’ in his threat to ‘‘cancel’’ the discounts. Yet, the min-
utes of the executive board and general membership meetings
of October 20 fail to refer to any complaint or communica-
tion from Wisconsin Vision, or to any need to take action
against the signers in the interest of preventing them from
interfering with arrangements with other providers. More-
over, it is unlikely that Wisconsin Vision would have threat-
ened to terminate the arrangement as described by Kaiser.
Kaiser admits that he arranged the discounts with Wisconsin
Vision because the latter wanted ‘‘to pick up more busi-
ness.’’ Consistent therewith, the discounts involved would be
a small price for Wisconsin Vision’s access to a clientele of
1850 union members. I consider it unlikely that this firm
would have shown any inclination to cut its own throat by
taking steps risking this source of business.
The improbability of Kaiser’s story is heightened by the
timing of his response. He initially confirmed that he re-
ceived the telephone call from Wisconsin Vision in August.
The Respondent’s brief states that the August 21 letter ‘‘pro-
voked a storm of controversy internally, causing the union
membership to vote to exclude the eight signatories to the
letter from a future mailing about free insurance.’’ Any
‘‘controversy’’ was hardly knee-jerk. His concern did not be-
come manifest until mid-October.26 Kaiser’s response was
multifaceted. His letter to Watson, dated October 20, men-
tioned no need to protect the interests of the membership, but
personally attacked Watson, ‘‘Member’s First [sic],’’ and
Watson’s antiunion beliefs. [G.C. Exh. 12.] In that letter, al-
though the executive board had not met, and the general
membership meeting had not met, Kaiser declared unre-
servedly that: ‘‘The Local Union will remove your name
from any of the EXTRA benefits negotiated by the author of
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 My disbelief of Kaiser is by no means altered by the R. Exhs.
4(a) through (l), which essentially were letters of support from com-
mitteemen or stewards, supporting Kaiser’s practice of negotiating
special benefits for the membership. I am convinced that all were
in response to Kaiser’s own solicitations from among these subordi-
nate union officials. G.C. Exh. 13.
28 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections thereto shall be deemed
waived for all purposes.
29 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
this reply.’’ Thus, quite apart from any intent to protect the
membership from this group’s interference with the special
benefit arrangements, the controversy was personal to Kaiser,
with the August 21 letter resurrected in October at his in-
stance to put those who signed in their place.27 Kaiser admit-
tedly had a strong distaste for Wilson and his support of
TDU and the candidacy of Ron Carey for International Presi-
dent. Contemporaneous with his intraunion actions against
those who acted in league with Watson, Kaiser employed the
Watson letter as a medium for rallying support for his pub-
lished message that Wilson and the TDU were out to destroy
the Union. In sum, Kaiser’s published actions and commu-
nications are more impressive evidence of his motive than
that which was uncommunicated and self-serving.
Accordingly, Kaiser’s testimony in this respect was not be-
lieved, and there is no credible proof to substantiate that he
acted for legitimate reasons unrelated to his own political
ambitions when he threatened to exclude Watson from par-
ticipation in special benefit plans; and when he induced the
Respondent to remove from mailing lists the names and ad-
dresses of Wilson, Ness, Brown, Schuler, Tomten, McGuire,
and Stearnes, thus, frustrating their access to the self-ad-
dressed card enabling them to communicate with the carrier
of the death and dismemberment policy. In each instance, the
Respondent, based on Kaiser’s conduct violated Section
8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(b)(1)(A) of the Act
by telling a James A. Watson, a member in good standing
that he would not be permitted to participate in special ben-
efit programs.
4. The Respondent violated Section 8(b)(1)(A) of the Act
by declaring that Watson, John Wilson, Willard Ness,
George Brown, Davis Schuler, Anton Tomten, Mike
McGuire, and Richard Stearnes, all members in good stand-
ing, would be removed from mailing lists pertaining to spe-
cial benefit programs.
5. The Respondent violated Section 8(b)(1)(A) of the Act
by removing Watson, Wilson, Ness, Brown, Schuler,
Tomten, McGuire, and Stearnes, all members in good stand-
ing, from mailing lists pertaining to special benefit programs.
6. The above unfair labor practices having an effect on
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
It having been determined that the Respondent effectively
precluded Watson, Wilson, Ness, Brown, Schuler, Tomten,
McGuire, and Stearnes, from communicating with a provider
of special benefits under the same terms as other union mem-
bers, it shall be recommended that the Respondent be or-
dered to provide American Income Life Insurance Company,
and any other provider of such benefits, information nec-
essary to communicate with these individuals, notifying the
providers in writing that each be allowed to participate in
any and all benefits on the same terms as other members in
good standing.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended28
ORDER
The Respondent, Teamsters Local Union No. 579, Inter-
national Brotherhood of Teamsters, AFL–CIO, Janesville,
Wisconsin, its officers, representatives, and assigns, shall
1. Cease and desist from
(a) Telling members in good standing that because they
participated in activity protected by Section 7 of the Act they
would be excluded from special benefit programs.
(b) Declaring or determining that members in good stand-
ing, who participate in activity protected by Section 7 of the
Act will be excluded from mailing lists pertaining to special
benefit programs.
(c) Removing members in good standing from mailing
lists pertaining to special benefit programs because they par-
ticipated in activity protected by Section 7 of the Act.
(d) In any like or related manner coercing or restraining
employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action deemed necessary
to effectuate the policies of the Act.
(a) Immediately furnish American Income Life Insurance
Company, and any other provider of special membership
benefits, information necessary to communicate with James
Watson, John Wilson, Willard Ness, George Brown, Davis
Schuler, Anton Tomten, Mike McGuire, and Richard
Stearnes, notifying the providers that each is entitled to par-
ticipate in any and all benefits on the same terms and condi-
tions extended to other members in good standing.
(b) Post at its offices and meeting halls in Janesville, Wis-
consin, and elsewhere within its geographic jurisdiction cop-
ies of the attached notice marked ‘‘Appendix.’’29 Copies of
the notice, on forms provided by the Regional Director for
Region 33, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
983TEAMSTERS LOCAL 579 (JANESVILLE AUTO TRANSPORT)
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT tell members in good standing that because
they participated in activity protected by Section 7 of the Act
they shall be excluded from special benefit programs.
WE WILL NOT declare or determine that members in good
standing who participate in activity protected by Section 7 of
the Act will be excluded from mailing lists pertaining to spe-
cial benefit programs.
WE WILL NOT remove members in good standing from
mailing lists pertaining to special benefit programs because
they participated in activity protected by Section 7 of the
Act.
WE WILL NOT in any like or related manner coerce or re-
strain employees in the exercise of the rights set forth at the
top of this notice.
WE WILL immediately furnish American Income Life In-
surance Company, and any other provider of special mem-
bership benefits, information necessary to communicate with
James Watson, John Wilson, Willard Ness, George Brown,
Davis Schuler, Anton Tomten, Mike McGuire, and Richard
Stearnes, advising said providers that each of these members
is entitled to participate in any and all benefits on the same
terms and conditions as extended to other members in good
standing.
TEAMSTERS LOCAL UNION NO. 579, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS,
AFL–CIO