Boilermakers (Kaiser Cement Corp.)

National Labor Relations Board - Board Decisions

Sep 20, 1993

312 N.L.R.B. 218 (N.L.R.B. 1993)

218
312 NLRB No. 48
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On June 20, 1990, Administrative Law Judge Michael D. Steven-
son issued the attached decision. The General Counsel filed excep-
tions and a supporting brief, and the Respondent filed an answering
brief to the General Counsel’s exceptions.
2 In the section of his decision entitled ‘‘2. The Letter of Under-
standing,’’ the judge found in the second and fifth paragraphs that
James Gilbert, who then served as president of the Local Union, pre-
sented the Employer’s proposed ‘‘Letter of Understanding’’ to the
membership for their approval or rejection on September 9, 1988.
The record shows, however, that the actual date was September 22
as the judge stated later in his decision. 3 All dates are in 1988, unless otherwise noted.
International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Help-
ers, AFL–CIO (Kaiser Cement Corporation)
and James Gilbert. Case 32–CB–3316
September 20, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions to the judge’s decision in this case1
present the question of whether the Respondent Union
has violated Section 8(b)(1)(A) of the Act by threaten-
ing four dissident employee-members with enforce-
ment of the union-security clause if these employees
discontinued paying membership dues after the Re-
spondent had imposed discipline on them that substan-
tially impaired their membership rights.
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 rul-
ings, findings,2 and conclusions as modified and to
adopt the recommended Order.
The judge found that the Respondent did not unlaw-
fully threaten to cause the Employer to discharge
members James Gilbert, Donald Hall, Joseph Gaxiola,
and Arthur Rose under the union-security clause if
they discontinued paying membership dues. For the
reasons fully discussed below, we adopt the judge’s
finding that the Respondent has not violated the Act
here.
The record shows that before April 1984, Local 100
of the Cement, Lime, Gypsum and Allied Workers
International Union (CL&G) represented the relevant
bargaining unit employees at the Employer’s
Permanente, California facility. The collective-bargain-
ing representative for all bargaining unit employees at
that facility was the AFL–CIO Building Trades Coun-
cil. In April 1984, CL&G merged with the Respondent
and Local 100 became Local D-100 of the Respondent.
Charging Party James Gilbert served as the Local
president both before and after the merger. Although
Gilbert and other Local members had not favored the
merger, it was not until 1986 that they began actively
opposing the Respondent. Gilbert’s dissatisfaction re-
sulted in part from the Respondent’s termination of
four long term CL&G International representatives. On
September 16, 1986, Gilbert wrote a letter to the Re-
spondent’s president, Charles W. Jones, asking that he
reconsider the discharge of International Representative
Kent Weaver. Jones refused.
Before the 1984 merger, the Employer had proposed
removing four job classifications from the bargaining
unit and making them nonunion. The membership
voted to reject the proposal. During early 1987, Gilbert
met with the Employer’s officials to discuss the possi-
bility of changing all 37 or 38 bargaining unit posi-
tions into nonunion salaried positions. No change in
the unit composition resulted from these discussions.
In July 1988,3 Gilbert prepared and circulated a peti-
tion to Local members stating:
As members of Lodge D-100, employed at the
Kaiser Permanente Cement Plant, we do not want
the Boilermakers International Union to represent
us and request an election by the NLRB to chose
[sic] a new International Union to affiliate with.
All but one of the members signed the petition. Gil-
bert, however, did not submit the petition to the Re-
spondent or file it with the Board.
On September 22, Gilbert conducted a membership
meeting during which he presented a ‘‘Letter of Un-
derstanding’’ the Employer had prepared that would
have removed 17 jobs, including Gilbert’s, from the
bargaining unit and made them salaried, supervisory
positions. Although Gilbert testified that he did not
favor dividing the bargaining unit, Gilbert repeated to
the employees the benefits of the proposal as the Em-
ployer had represented them. Gilbert told the employ-
ees that pensions for supervisors were double those
provided to unit employees under the collective-bar-
gaining agreement. He also emphasized that the Em-
ployer had made a commitment that those employees
remaining in the unit would receive preferential con-
sideration for later vacancies in the 17 new supervisory
positions created for former unit employees. Arthur
Rose, who held no union office, attended the meeting
and publicly expressed his support for the Employer’s
proposal. Donald Hall, who was the Union’s financial
secretary, also was present but took no position on this
proposal. The employees eventually voted, 23 to 11, to
reject the Employer’s ‘‘Letter of Understanding.’’
About 2 weeks later, Joseph Gaxiola, an elected
trustee for the Local, circulated a petition to the unit
employees that sought to turn all the unit jobs into sal-
aried positions and thereby eliminate this portion of the
larger collective-bargaining unit represented by the
AFL–CIO Building Trades Council. A majority of the
unit employees opposed Gaxiola’s petition.
219BOILERMAKERS (KAISER CEMENT CORP.)
4 All subsequent dates are in 1989.
5 Meat Cutters Local 593 (S & M Grocers), 237 NLRB 1159,
1160 (1978).
About October 16, James Ellsworth, another unit
employee, filed internal union charges against Gilbert,
Hall, Gaxiola, and Rose. Ellsworth charged that Gilbert
‘‘bargained with [the] company in order to disband the
union and have the jobs [turned] into the salaried posi-
tion [sic]’’; that Hall and Rose ‘‘aided’’ or ‘‘abetted’’
Gilbert’s ‘‘illegal activities’’; and that Gaxiola cir-
culated a petition seeking to eliminate the bargaining
unit. About December 19, the Respondent found the
alleged discriminatees guilty of all charges. As dis-
cipline for his misconduct, the Respondent suspended
Gilbert from union office, barred him from holding
any union office for a period of 5 years, and prohibited
him from attending union meetings for 5 years ‘‘ex-
cept a meeting at which a contract directly affecting
him is to be voted upon.’’ The Respondent imposed
the same discipline on Hall except that it was for a pe-
riod of 3 years. Gaxiola and Rose also received this
discipline but for a 2-year period.
About April 24, 1989,4 the four alleged discrim-
inatees jointly wrote a letter to Charles W. Jones, the
Respondent’s president, stating their belief that the Re-
spondent had ‘‘in effect’’ suspended them from union
membership and that, therefore, they were no longer
required to pay union dues. Jones responded by letter,
dated May 22, in which he advised the four employees
that the Respondent had not suspended them from
membership and that they had an obligation to con-
tinue paying dues in order to remain members in good
standing. On July 20, the four employees jointly sent
Jones another letter inquiring about the penalties the
Respondent would impose on them if they ceased pay-
ing dues. Jones subsequently replied on August 7 that
the contract contained a union-security clause and that
if the employees ceased paying union dues the Re-
spondent would inform the Employer and ‘‘you would
no longer be allowed to work at the plant.’’
The judge rejected the General Counsel’s contention
that the Respondent had unlawfully disciplined the
four alleged discriminatees. He found that the Re-
spondent had the right to protect itself against the al-
leged discriminatees’ activities which would have re-
sulted in the erosion or the elimination of the bargain-
ing unit that the Respondent represented. Therefore,
the judge concluded that the General Counsel had not
established a prima facie case that the discipline vio-
lated Section 8(b)(1)(A).
The judge found that the Respondent also did not
violate the Act by threatening to invoke the union-se-
curity clause. Because the alleged discriminatees were
attempting to change either half or all of the bargain-
ing unit jobs into supervisory positions, the judge
found that the Respondent had a legitimate union inter-
est in preventing the erosion of its status as collective-
bargaining representative. He stressed that the present
case is distinguishable from Steelworkers Local 4186
(McGraw Edison Co.), 181 NLRB 992 (1970), in that
the Board there found that the union had unlawfully
threatened to invoke the union-security clause against
a member whose membership it had significantly im-
paired because of the employee’s protected conduct in
filing a decertification petition.
The judge also rejected the General Counsel’s alter-
nate contention that even if the activities for which the
Respondent disciplined the alleged discriminatees were
not protected, the Respondent had so significantly re-
duced their membership rights that it could not law-
fully enforce the union-security clause against these
employees. The General Counsel’s argument, in the
judge’s view, presented the Respondent with the
‘‘Hobson’s choice’’ of either forgoing its right to dis-
cipline members under the proviso to Section
8(b)(1)(A) (thereby rendering the proviso to Section
8(b)(1)(A) a nullity) or relinquishing its right to en-
force the provisions of a valid union-security clause
(thereby ultimately self-destructing without the dues of
disciplined members). The judge concluded that the
General Counsel’s position, if implemented, would in-
duce any members who are unwilling to pay dues in
the first place for financial or philosophical reasons to
subject themselves to union discipline ‘‘so they would
be ‘punished’ by not having to pay union dues, al-
though they would continue their employment.’’ For
these reasons, the judge dismissed the complaint.
Discussion
There are two actions involved herein: (1) the
Union’s internal discipline of certain employees, which
discipline impaired their membership in the Union; and
(2) the enforcement of a union-security clause against
those employees, notwithstanding the fact that their
membership was impaired.
These two matters are analytically distinct, although
in a given case they may be related. If discipline is
wholly internal, i.e., if it does not itself affect the em-
ployment relationship, the union may be able to im-
pose the discipline even if it is aimed at a Section 7
right. For example, in NLRB v. Allis-Chalmers, Mfg.
Co., 388 U.S. 175 (1967), the Supreme Court held that
a union could fine employee-members for exercising
their Section 7 right to cross a picket line. In com-
menting on Allis-Chalmers, the Board has said:5
The Supreme Court in Allis-Chalmers recog-
nized that the right of collective bargaining is a
paramount policy of national labor law, and that
in order for a union to fulfill this obligation it
must be able to promulgate its own rules and have
the right to impose reasonable discipline on mem-
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Scofield v. NLRB, 394 U.S. 423, 430 (1969).
7 The Sec. 7 right of seeking access to the Board is fundamental
in the sense that all others are dependent on it. If the employee can-
not come to the Board, he cannot vindicate any of his rights.
8 See NLRB v. Marine & Shipbuilding Workers, 391 U.S. 418
(1968); Molders Local 125 (Blackhawk Tanning Co.), 178 NLRB
208 (1969).
9 Electrical Workers IUE Local 444 (Paramax Systems), 311
NLRB 1031, 1034 (1993). Member Devaney, who dissented in part
on other grounds in Paramax, agrees with the Paramax majority’s
characterization of the union-security obligation and the duty of fair
representation cited here.
No party has raised the issue of whether members whose member-
ship rights have been impaired but who do not resign their member-
ship may object to the expenditure of a portion of his/her dues on
nonrepresentational activities. See Communications Workers v. Beck,
487 U.S. 735 (1988) (unions may not expend dues and fees collected
under a union-security provision from objecting nonmembers on ac-
tivities unrelated to their role as bargaining representative).
10 Id. at 1033.
1 All dates herein refer to 1988 unless otherwise indicated.
2 Sec. 8(b)(1)(A) of the Act provides:
(b) 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 157 of this title: Provided, That this
paragraph shall not impair the right of a labor organization to
bers who do not obey such rules. The Court fur-
ther found that integral to this policy is the
union’s right to protect itself against the erosion
of its status of collective-bargaining representative
by reasonably disciplining members for violating
internal regulations. [Footnote omitted.]
To be sure, there are limitations on the union’s right
to impose discipline on members. One of these limita-
tions is that the employee-members must be free to re-
sign their membership and thereby escape the rule.6
That is, employees have a right to resign from the
union. If they resign prior to engaging in the Section
7 conduct deemed offensive by the union (e.g., cross-
ing a picket line), the union cannot discipline them. If
they have opted for continued membership, they can-
not be heard to complain if the union enforces the
rules of membership.
There is another important exception to the general
rule concerning a union’s right to impose internal dis-
cipline on members. If the union’s rule impairs a pol-
icy that Congress has embedded in the labor laws, the
union may not enforce the rule, even against a mem-
ber. Of course, as we have seen, the mere fact that the
discipline is in reprisal for a Section 7 right is not suf-
ficient to condemn the discipline. See Allis-Chalmers.
However, if the Section 7 right is the fundamental one
of seeking access to the Board, the discipline in re-
prisal therefor may be unlawful.7 Thus, for example, if
the employee files a petition or a charge with the
Board, the union cannot fine him for that action.8
In the instant case, the employees were all members
of the Union at the time that they engaged in the con-
duct deemed offensive to the Union. They were free
to resign from the Union but they chose not to do so.
Although they were members, they engaged in conduct
designed to oust or undermine the Union in its role as
representative of the employees. Thus, as discussed
above, the Union was free to impose discipline on
them. The fact that the Union chose to discipline them
by impairing their membership, rather than by expel-
ling them or fining them, does not transform lawful
discipline into unlawful discipline.
Based on the above, we agree with the judge that
the discipline was lawful. The next issue is whether
union security could be enforced against those whose
membership has been lawfully impaired. Because the
Respondent’s discipline of these members did not vio-
late the Act, the members continued, as unit employ-
ees, to be required under the union-security agreement
to satisfy the sole obligation a union may enforce
under a union-security provision: ‘‘the tendering of
uniform initiation fees (if any) and dues.’’9 In so find-
ing, we stress that the Union, as the unit’s exclusive
bargaining representative, has a duty of fair representa-
tion toward all unit employees, and thus must continue
to represent the disciplined employees without hos-
tility, discrimination, or arbitrary conduct and with
complete good faith and honesty.10
We therefore conclude that the Respondent did not
violate Section 8(b)(1)(A) of the Act by threatening to
invoke the union-security clause against Gilbert and
the three other employee-members if they ceased pay-
ing dues after the Respondent disciplined them. Ac-
cordingly, we shall dismiss the instant complaint.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
the complaint is dismissed.
Gary M. Connaughton, for the General Counsel.
Michael Stapp, Esq. (Blake & Uhlig, P.A.), of Kansas City,
Kansas, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Oakland, California, on February
20, 1990,1 pursuant to an amended complaint issued by the
Regional Director for the National Labor Relations Board for
Region 32 on December 14, 1989, and which is based on a
charge filed by James Gilbert (Gilbert or Charging Party) on
October 6, 1989. The complaint alleges that International
Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers (Respondent) has engaged in certain
violations of Section 8(b)(1)(A) of the National Labor Rela-
tions Act (the Act).2
221BOILERMAKERS (KAISER CEMENT CORP.)
prescribe its own rules with respect to the acquisition or reten-
tion of membership therein . . . .
Sec. 157 of the Act further provides that:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as au-
thorized in section 158(a)(3) of this title.
Issues
(1) Whether this case should be dismissed because Gilbert
filed the unfair labor practice charge outside the applicable
statute of limitations.
(2) Whether Respondent disciplined Gilbert and other al-
leged discriminatees because of their protected concerted ac-
tivities.
(3) Whether Respondent unlawfully threatened to cause
Kaiser to discharge the alleged discriminatees if they discon-
tinued paying membership dues to Respondent.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel and Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS
Respondent admits that the Employer is a California cor-
poration which manufactures, sells, and distributes cement
and related products and has an office and place of business
located in Permanente, California. Respondent further admits
that during the past year, in the course and conduct of its
interstate business operations, the Employer sold and shipped
goods or provided services valued in excess of $50,000 di-
rectly to customers located outside the State of California.
Accordingly, it admits and I find that the Employer is en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Prior to April 1, 1984, Local 100 of the Cement, Lime,
Gypsum and Allied Workers International Union (CL & G)
represented certain employees at the Kaiser Cement Corpora-
tion. Other unions such as the Teamsters, Operating Engi-
neers, and the Laborers, represented other employees at the
same plant. The collective-bargaining representative for all
employees represented by unions at Kaiser is the AFL–CIO
Building Trades Council.
On or about April 1, 1984, CL & G merged with Re-
spondent; Local 100 became Local D-100 of Respondent.
The president of the Local both before and after the merger
(1977–1988) was Charging Party James Gilbert, a Kaiser em-
ployee since 1951. Prior to April 1984, Gilbert and others in
Local 100 had opposed the merger but, thereafter, opponents
took no action to express disagreement with the merger until
1986.
In August 1986, Gilbert and other representatives of Local
D-100 attended Respondent’s convention. Based on events at
the convention and the subsequent termination of longtime
CL & G International representatives, Ken Weaver, Mike
Philips, Jack Hammond, and Ernie Lamaro, Gilbert began to
actively oppose Respondent during meetings of the Local and
in other ways.
None of the terminated International representatives testi-
fied in this case. However, it appears that Weaver in particu-
lar had been a close professional and personal acquaintance
of Gilbert. Moreover, Weaver had been involved in litigation
on behalf of Local 100 against Kaiser and against other
union locals who represented Kaiser employees. The termi-
nation of Weaver was followed not long after by Respondent
withdrawing funding for the lawsuit in progress. Not long
after this, the lawsuit collapsed. Gilbert’s anguished letter of
September 16, 1986, to Respondent’s president, Charles W.
Jones (G.C. Exh. 14), asking that the discharge of Weaver
be reconsidered was unsuccessful.
During early 1987, Gilbert met with certain company offi-
cials to discuss the possibility of changing all 37 or 38 bar-
gaining unit employees represented by Local D-100 into non-
union salaried positions. These negotiations led nowhere, and
it is not clear whether Respondent or other members of Local
D-100 knew about Gilbert’s activities. However, this was not
the first time such a move had been discussed.
A short while before the merger, Kaiser had proposed re-
moving four bargaining unit jobs out of the unit and making
them nonunion. These jobs were the control room operators
whose positions were to be again included within a later pro-
posed letter of understanding, as explained below. In any
event, Gilbert presented the Company’s premerger proposal
to the membership for discussion and a vote, where it was
soundly defeated. In presenting the proposal, Gilbert was act-
ing within the scope of his position as president of Local 100
to present various proposals of Kaiser to clarify what in
some cases was a ‘‘grey area’’ not specifically covered by
the collective-bargaining agreement (G.C. Exh. 17).
In July, Gilbert prepared and circulated a petition among
members of his local. The petition reads:
As members of Lodge D-100, employed at the Kaiser
Permanente Cement Plant, we do not want the Boiler-
makers International Union to represent us and request
an election by the NLRB to chose a new International
Union to affiliate with. [G.C. Exh. 15.]
Ultimately 37 out of 38 members signed this petition. Sign-
ers included a Respondent witness named James Ellsworth,
who was elected president of the Local after Respondent dis-
ciplined and removed Gilbert as president for certain conduct
not yet reported in these facts. Ellsworth explained his signa-
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 According to Gilbert, the IWNA is the old Cement, Lime &
Gypsum Locals that had disaffiliated from Respondent and formed
a new International Union (Tr. 48).
ture on the petition by testifying that Gilbert had misled sign-
ers to believe that Respondent had not been doing enough for
the local. This notion was based in part on the alleged failure
of Weaver’s replacement, John Holaday, to make a timely
appearance in the plant. In his testimony, Respondent witness
Holaday blamed his tardy appearance on Gilbert.
As he circulated this petition, Gilbert took no official posi-
tion on the issue, but he conceded in his testimony that he
had stated his position in favor of the petition to all members
solicited to sign. Indeed, Gilbert signed his name on the first
line of the petition. For reasons that do not appear of record,
Gilbert did not submit this petition to Respondent.
The disaffiliation petition was followed in December by
another petition first referred to in the record as a decertifica-
tion petition, and later clarified on cross-examination of Gil-
bert to be a certification petition for a labor organization
called the Independent Workers of North America (IWNA).3
An official of this organization is Kent Weaver, former inter-
national representative of the CL & G fired by Respondent.
Weaver sent Gilbert a number of union authorization cards
for Gilbert to distribute to members of Local D-100 and to
solicit members’ signatures. Gilbert returned a number of
signed cards to Weaver. Ultimately, Gilbert withdrew the pe-
tition because he felt the multiunit bargaining unit at Kaiser
made success unlikely.
Notwithstanding Gilbert’s withdrawal of both petitions re-
ferred to above, sometime after he had been removed from
his position as president of Local D-100, he convened a
‘‘rump’’ session of some members of the local. About 20
members voted for and about 7 against an affiliation with
IWNA. There was no official recognition of these results.
2. The letter of understanding
As recited above, Gilbert and the other alleged
discriminatees were disciplined for certain conduct. However,
the parties to this case do not agree on what conduct was
punished. For now, it suffices to say that the ostensible rea-
son for the discipline involved the role of the alleged
discriminatees in presenting the employer’s proposed letter of
understanding to the membership of Local D-100 for discus-
sion and a vote.
On or about September 9, Gilbert presented this letter to
the membership in a meeting long enough to accommodate
both the day and evening shifts. No advance notice of the
details of the letter was provided. In addition, Gilbert refused
to provide copies of the letter to the membership. Instead, he
purported to read the letter to the members and then led dis-
cussion on it. A faction of the membership, loyal to the Re-
spondent, requested copies of the letter and a postponement
of the vote for a few days while members discussed it and
perhaps sought additional information. Gilbert denied all
such requests and insisted on a vote then and there. Those
members who were employed on the evening shift had to
vote and leave without hearing the remarks of the majority
of the members who were employed on the day shift and
came to the meeting later.
The letter of understanding reads as follows (G.C. Exh.
16):
9/22/88
DRAFT
LETTER OF UNDERSTANDING
We have been engaged in discussions over the past
several weeks concerning the evolution of and the need
for changing the job responsibilities, functions, and au-
thority of several classifications heretofore within the
jurisdiction of the Cement, Lime, Gypsum and Allied
Workers, Division of Boilermakers, International Local
Lodge D-100 (CL&G). Specifically, we have discussed
and reached agreement regarding the following classi-
fications: Quality Control Analyst, Quality Control A,
Quality Control B, Finish Miller, and Process Operator.
During our discussion, we have agreed that the
changes have occurred and are necessary because of the
changed nature of our business, increased competition
based on quality, direct increased contact with cus-
tomers, working conditions, and a need for more close
direction of the manufacturing processes and the work-
force. Within the Quality Control process at the plant,
these changes mean that the people enjoy a greater
community interest, and their functions are more
aligned with the management of the operation. For
many, if not all the same reasons, we have agreed that
the Finish Miller and Process Operator classifications
should be made supervisory. Therefore, the Company
has restrucured [sic] our organizational chart and is pre-
pared to assign the new job responsibilities, functions,
and authority upon execution of this Agreement. It is
understood and agreed that the effect of this agreement
will be to remove those classifications listed above and
all related work from the bargaining unit. Hereafter, the
individuals selected for the Management/Supervisor po-
sitions created pursuant to this LOU, will be salaried or
salaried (end of sentence missing from exhibit).
It is also agreed that when permanent vacancies
occur in the management positions dealt with in this
LOU, members of the CL&G will be given first consid-
eration for promotion to such positions. Likewise, it is
agreed that management may temporarily upgrade
members of the CL&G to the management positions
dealt with herein for purposes of training and/or cov-
erage.
Any action by any federal agency, court, or arbitrator
which materially affects this LOU as to the salaried sta-
tus of the affected employees will render the Compa-
ny’s obligation to provide them with salaried com-
pensation and benefits null and void, as if their status
had never changed.
Agreed this ll day of llll, 1988.
For Kaiser Cement Corporation For CL&G, D-100
All agree that the primary effect of this letter if it had been
agreed to by the membership would have been to remove
from the bargaining unit 17 jobs out of the 37 or 38 rep-
resented by Local D-100 (Total number of bargaining unit
positions represented by all unions at Kaiser is 170–180).
The 17 jobs would then have become salaried, supervisory
positions under the complete control of Kaiser management.
223BOILERMAKERS (KAISER CEMENT CORP.)
4 That portion of the transcript purporting to contain the testimony
of Gaxiola is close to incomprehensible. The fault is not that of the
court reporter. Because of language difficulties and/or a speech im-
pediment, Gaxiola was barely an intelligible witness. He was warned
repeatedly by the court reporter of the technical problems created by
his manner of testifying (e.g., Tr. 135). Little or no improvement re-
sulted from these admonitions. Apparently, the witness did the best
he could and so have I in trying to ascertain what he said.
5 Instead of affecting only 17 positions, Gaxiola’s petition affected
all Local D-100 positions. The purported linkage to a letter of under-
standing cannot be explained.
According to Gilbert, company officials drafted the letter.
However, Gilbert testified the letter was drafted as a result
of his initiating contact with Joe Hobby, the Employer’s In-
dustrial Relations Supervisor, with whom Gilbert had held
prior discussions about taking all 37–38 bargaining unit posi-
tions into nonunit status. Gilbert held 2–3 meetings with
Hobby, who did not testify, regarding the content of the 1988
letter of understanding. Because the company offered to take
only about half of the bargaining unit jobs into salaried posi-
tions, Gilbert allegedly did not favor the end product. Never-
theless, Gilbert agreed to present it to the membership.
Gilbert’s job was one of those included in the 17 jobs to
be removed from the unit. In presenting the letter on Septem-
ber 9, Gilbert repeated what had been represented to him by
Hobby, that pensions for supervisors were much more gener-
ous—about double—than those provided to bargaining unit
employees. As for those members who might be reluctant to
approve the letter, because unlike Gilbert, their jobs were not
slated to be converted to management, Gilbert emphasized to
them the commitment contained within the letter of under-
standing: that where later vacancies occurred in the 17 new
management positions, bargaining unit employees would be
considered on a preferential basis.
When all the votes were counted, the letter of understand-
ing was defeated by a vote of 23 to 11.
The second alleged discriminatee is Donald Hall, a witness
for General Counsel. A Kaiser employee for 38 years and fi-
nancial secretary of Local D-100 between 1969–1988, Hall,
like Gilbert, resented the termination of Weaver and other
International representatives by Respondent. Hall signed the
petition (G.C. Exh. 15) circulated by Gilbert in July to meas-
ure the sentiment for disaffiliating from Respondent.
On September 22, Hall attended the union meeting to dis-
cuss the letter of understanding presented by Gilbert. Hall
testified he followed the lead of Gilbert at the meeting and
took no public position on the letter.
The third alleged discriminatee is Joseph Gaxiola, also a
witness for General Counsel.4 Employed by Kaiser for 20
years and elected a trustee of Local D-100 for 4 years
through 1988, Gaxiola attended the September 22 union
meeting and participated in discussions. Because Gaxiola had
to leave the meeting early to work the evening shift, he pre-
pared a written vote on the letter of understanding which he
then showed to one or more other members who had not yet
voted. Gaxiola voted ‘‘No’’ on the letter of understanding.
About 2 weeks later, Gaxiola prepared a petition which he
circulated to the local’s members. The introductory paragraph
reads as follows (G.C. Exh. 22):
This petition is to determine the support of the mem-
bers of Local D-100 on a Letter of Understanding that
makes all classifications in D-100 salaried or salaried
non-exempt.
This time Gaxiola signed in favor of the proposition,5 but
most other signers opposed the proposition. In preparing the
petition, Gaxiola testified he acted on his own, and not as
trustee of the local. Although he had been a secretary-treas-
urer of the Local for 13 years, Rose had not held that posi-
tion or any position in the local for 10–12 years prior to
1988.
The final alleged discriminatee is Arthur Rose, a Kaiser
employee for 39 years. Unlike the other alleged
discriminatees, Rose had not been a current officer of Local
D-100 during the times material to this case.
Rose attended the September 22 meeting and took a public
vocal position in favor of the letter read by Gilbert. Rose ar-
gued that the jobs would be a good deal for the 17 incum-
bents. Because those remaining in bargaining unit positions
were much younger than the incumbents, Rose continued,
they would eventually succeed to the jobs, as the Company
usually hires up through the ranks. Rose’s belief that Kaiser
would look first to bargaining unit employees to fill vacan-
cies in the 17 exempt positions was based in part on a con-
versation he had with Hobby a few days before September
22, wherein Hobby assured Rose and repeated what was in
the letter itself, that where possible, any openings down the
line would be filled from Local D-100 members.
3. Respondent discipline of alleged discriminatees
On or about October 16, James Ellsworth, a Kaiser em-
ployee for 17 years, and current president of Local D-100
filed charges against the four alleged discriminatees. More
specifically, Ellsworth charged as follows: that Gilbert ‘‘bar-
gained with company in order to disband the union and have
the jobs into the salaried position’’ (G.C. Exh. 2); that Hall,
‘‘aided J. Gilbert and A. Rose in trying to get union mem-
bers to vote into being salaried and breaking up union. Also
did not notify members or International about J. Gilbert’s il-
legal activities (G.C. Exh. 3); that Rose, abetted Jim Gilbert
in trying to get the union members to vote to go salary and
disband the Union. Didn’t notify Union members or Inter-
national about the illegal activities Jim was involved in.’’
(G.C. Exh. 4); that Gaxiola ‘‘circulated a petition asking
union members if they wanted members to go to salaried po-
sitions.’’ (G.C. Exh. 5).
On or about November 1, the four alleged discriminatees
were notified of a hearing to be held on November 19 to ad-
judicate the charges filed by Ellsworth (R. Exhs. 1–4).
At the November 19 disciplinary hearing, International
Representative Holaday acted as prosecutor and presented the
evidence against the four alleged discriminatees. G. Ross
Seaman, another International representative, acted as hearing
officer and prepared a written report to the Respondent’s
International Executive Council which rules on intra-union
charges. Called as a witness by Respondent in the instant
case, Seaman testified that the four alleged discriminatees
were charged only with activities in support of removing a
number of persons from the bargaining unit. Seaman’s report
reads as follows:
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
BEFORE THE INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS IRON SHIPBUILDERS,
BLACKSMITHS, FORGERS & HELPERS, AFL–CIO
INTERNATIONAL EXECUTIVE COUNCIL
In the matter of:
Charges filed against James Gilbert, Arthur Rose, Don-
ald Hall and Joseph Gaxiola of Local Lodge D-100 by
James H. Ellsworth for alleged violations of Article
XVII, Section 1(a), (e), (f), (h), (k), and (l) of the Inter-
national Brotherhood Constitution.
Hearing Date: November 19, 1988, Los Gatos, Califor-
nia
Before: G. Ross Seaman, International Executive Coun-
cil Hearing Officer
BACKGROUND
The issues in this case as contended by the charging
party are that Mr. Gilbert bargained with the company
for the purpose of removing certain classifications and
jobs from the bargaining unit. He contends further that
Mr. Rose and Mr. Hall aided and abetted Mr. Gilbert
to this end by attempting to convince the membership
to support a memorandum of agreement that was pre-
pared by the company for that purpose. He also con-
tends that Mr. Gaxiola prepared and circulated a peti-
tion that was intended to give added support to the
memorandum of agreement.
INFORMAL HEARING
An informal hearing was held on November 19,
1988 commencing at approximately 8:30 A.M. The
charging party offered to withdraw the charges against
all of the charged parties in exchange for their resigna-
tion from office and the calling of an election to be
held in December of 1988. This offer was declined by
all of the charged parties. The charging party made a
further offer of an unconditional withdrawal of the
charges against Mr. Hall and Mr. Gaxiola as he felt
theirs was a relatively minor role in the entire matter.
This offer was rejected on the grounds that they felt
they were innocent of any wrong and wanted to clear
their names by way of a formal hearing.
FORMAL HEARING
A formal hearing was convened at approximately
1:30 P.M. on November 19, 1988. The charged parties
objected to the holding of a formal hearing on this date
on the grounds that they interpret Article XVII Section
2(b) to mean that they have an additional 15 days from
the end of the informal hearing to prepare for a formal
hearing. Mr. Gilbert asked if Kent Weaver would be al-
lowed to represent the charged parties and was prompt-
ly denied his request. The hearing proceeded and was
concluded at approximately 6:07 P.M.
FOOT NOTE
The charging party, Mr. Ellsworth indicated Mr. Hall
and Mr. Gaxiola had been minor participants in this
matter. In my observations of both hearings, I tend to
agree with Mr. Ellsworth. [R. Exh. 6.]
On or about December 19, Respondent notified the alleged
discriminatees of the dispositions of their cases:
(1) Gilbert found guilty of all charges; Punishment:
suspension from office and ineligible to hold any elect-
ed or appointed office in Respondent for five years;
Also for five years—prohibited from attending all
Union meetings or functions; except a meeting at which
a contract directly affecting him is to be voted upon
[G.C. Exh. 6].
(2) Hall found guilty of all charges; Punishment:
same as Gilbert except duration is three years rather
than five [G.C. Ex. 7].
(3) Rose found guilty of three out of four charges;
Punishment same as Gilbert except duration is two
years [G.C. Ex. 8].
(4) Gaxiola found guilty of all charges; Punishment:
same as Rose [G.C. Exh. 9].
All four letters above also informed Gilbert, Hall, Rose, and
Gaxiola that Holaday would supervise the day-to-day admin-
istration of Local D-100 and election of Local Lodge offi-
cers.
In his testimony as a Respondent witness, Ellsworth de-
scribed the 17 jobs which were the subject of the letter of
understanding as quality control and computer operator type
jobs. These positions, according to Ellsworth, were critical to
operation of the plant in the event of a strike. Because man-
agement would control these jobs, lower skilled persons
could be recruited to cross picket lines and keep the plant
operating during a strike, thereby lessening the bargaining
power of the Union.
4. Postdiscipline events
On or about April 24, 1989, Gilbert and the other alleged
discriminatees sent the following letter to C. W. Jones, presi-
dent of Respondent (G.C. Exh. 10):
Mr. C. W. Jones
International President
International Brotherhood of Boilermakers
753 State Avenue, Suite 570
Kansas City, Kansas 66101
Dear Sir:
In December of 1988 we, the undersigned, were sus-
pended from holding offices and attending union meet-
ing of the Boilermakers International.
We have been advised that we have been ‘‘in effect
suspended’’ from the Union and are not required to pay
union dues.
We have been keeping our dues current until we
could contact you and get your confirmation. If you are
in agreement, please advise us and also arrange for the
union to refund our union dues retroactive to December
1988.
We are awaiting your reply. Thank you.
225BOILERMAKERS (KAISER CEMENT CORP.)
Sincerely,
/s/ James Gilbert /s/ Don Hall
James Gilbert Don Hall
/s/ Arthur Rose /s/ Joe Gaxiola
Art Rose Joe Gaxiola
About 1 month later, Jones wrote back (G.C. Exh. 11):
May 22, 1989
D100-88-1
D100-88-2
D100-88-3
D100-88-4
Mr. James Gilbert
Mr. Arthur Rose
Mr. Donald Hall
Mr. Joseph Gaxiola
c/o 1595 Laurelwood Rd., #28
Santa Clara, CA 95054
Dear Gentlemen and Brothers:
This will acknowledge receipt of your letter wherein
you request clarification of whether or not you are re-
quired to continue to pay union dues as a result of pen-
alties imposed under Article XVII.
Please be advised, although penalties were imposed
subsequent to Article XVII Hearings, you were not sus-
pended from membership. You are still required to pay
monthly dues if you want to remain members in good
standing of the International Brotherhood of Boiler-
makers.
Trusting you will be guided accordingly and, with
best wishes, I am
Fraternally yours,
/s/ Charles W. Jones
Charles W. Jones
International President
On July 20, 1989 (misdated as 1988), Gilbert, Rose, Hall,
and Gaxiola sent a second letter to Jones (G.C. Exh. 12):
Mr. Charles W. Jones
International President
Boilermakers Union
New Brotherhood Building
Kansas City, Kansas 66404
Dear Mr. Jones:
This letter is in response to your letter to us dated
May 22, 1989.
Please explain what penalties might be imposed if
we discontinued paying union dues to Local D-100.
We would appreciate your response.
Sincerely,
/s/ Jim Gilbert /s/ Don Hall
Jim Gilbert Don Hall
/s/ Art Rose /s/ Joe Gaxiola
Art Rose Joe Gaxiola
Jones responded on August 7, 1989 (G.C. Exh. 13):
D100-88-1
D100-88-2
D100-88-3
D100-88-4
Mr. James Gilbert
Mr. Arthur Rose
Mr. Donald Hall
Mr. Joseph Gaxiola
c/o 1595 Laurelwood Road #28
Santa Clara, CA 95054
Dear Gentlemen and Brothers:
This is in response to your letter dated July 20, 1989.
The existing contract between the Company and
Local Lodge D100 contains a union security clause.
Should you discontinue paying union dues, the Union
would have no choice but to notify the Company and
you would no longer be allowed to work at the plant.
Trusting you will continue to maintain your member-
ship in Local Lodge D100, and with best wishes, I re-
main
Fraternally yours,
/s/ Charles W. Jones
Charles W. Jones
International President
Monthly dues for all four members amounted to $32.50
per month. Only Gilbert actually stopped paying dues. He
first testified that he fell behind in the payment of his dues
(Tr. 42); later, Gilbert testified that he took the position that
he didn’t have to pay dues on the grounds he had been sus-
pended from the Union. So he didn’t pay for about 2 months
(Tr. 43). Then on about September 30, 1989, John Morrison,
a member of Local D-100 associated with Ellsworth, wrote
a letter to Pete Horton, the industrial relations supervisor at
the plant. In this letter, Morrison asked that article 2, section
B of the contract be enforced against Gilbert (G.C. Exh. 20).
That is, Morrison was asking that Gilbert be dismissed for
nonpayment of dues. Instead of dismissing Gilbert, Horton
called him into his office and showed him Morrison’s letter.
Gilbert promised to and did in fact pay all union dues then
in arrears and his job security was not affected.
B. Analysis and Conclusions
1. The statute of limitations issue
In its answer to amended complaint and notice of hearing,
Respondent raised an affirmative defense, contending ‘‘the
Amended Complaint should be dismissed, because the unfair
labor practice charge was filed outside the applicable statute
of limitations provided for in 29 U.S.C. Sec. 160(b)’’ (G.C.
Exh. 1(h)). Respondent reiterated its position in its opening
statement at hearing (Tr. 17). Because this issue was raised
in an appropriate manner, it is puzzling to say the least—and
annoying—that neither side had seen fit to address the statute
of limitations in its brief.
In Nickles Bakery of Indiana, 296 NLRB 927 (1989), the
Board had occasion to review basic law regarding Section
10(b) of the Act:
In considering the general sufficiency of a charge to
support an allegation in the complaint, the Board has
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
generally required that the complaint allegation be relat-
ed to and arise out of the same situation as the conduct
alleged to be unlawful in the underlying charge, al-
though it need not be limited to the specific violations
alleged in the charge.3 This requirement is derived from
Section 10(b) of the Act, which provides in pertinent
part as follows:
Whenever it is charged that any person has en-
gaged in or is engaging in any such unfair labor
practice, the Board, or any agent or agency des-
ignated by the Board for such purposes, shall have
the power to issue and cause to be served upon such
person a complaint stating the charges in that re-
spect . . . . [Emphasis added.]
The Supreme Court in NLRB v. Fant Milling Co., 360
U.S. 301, 309 (1959), in discussing the Board’s author-
ity to discharge its duty of protecting public rights, held
that a complaint alleging violations not specifically al-
leged in the charge is proper if the matters asserted in
the complaint ‘‘are related to those alleged in the
charge and . . . grow out of them while the proceeding
is pending before the Board.’’ Consistent with Fant
Milling, the Board has long required a sufficient factual
relationship between the specific allegations in the
charge and the complaint allegations.4
. . . .
In Redd-I, Inc., 290 NLRB 1115 (1988), the Board
held that in deciding whether complaint amendments
are closely related to charge allegations, it would apply
the closely related test, comprised of the following fac-
tors. First, the Board will look at whether the otherwise
untimely allegations involve the same legal theory as
the allegations in the pending timely charge.5 Second,
the Board will look at whether the otherwise untimely
allegations arise from the same factual circumstances or
sequence of events as the pending timely charge. Fi-
nally, the Board may look at whether a respondent
would raise similar defenses to both allegations. Id. at
11186 Although the facts of Redd-I involved a com-
plaint amendment, the precedent relied on in Redd-I ap-
plies a similar closely related requirement to both initial
complaints and amended complaints. See particularly
NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir.
1952), discussed in Redd-I, supra at 1116.
3 Stainless Steel Products, 157 NLRB 232, 234 (1966); El Cortez
Hotel, 160 NLRB 1442, 1446–1447 (1966), affd. 390 F.2d 127 (9th Cir.
1968).
4 See Red Food Store, 252 NLRB 116 (1980), and cases cited there-
in.
5 In determining whether essentially similar legal theories underlie
different allegations, we noted in Redd-I that usually the same section
of the Act will be the basis for both the timely and untimely allega-
tions. Id. at 1118. However, it is not necessary that the same actions
of the Act be invoked. Thus, we note that in Whitewood Oriental Main-
tenance Co., 292 NLRB 1159, 1169 (1989), the Board found that even
though the otherwise untimely amendment invoked Sec. 8(a)(2) of the
Act and the timely charge referred to Sec. 8(a)(5), the allegations satis-
fied this relatedness requirement because they were predicated on essen-
tially the same legal theory. See also Proctor & Gamble Mfg. Co. v.
NLRB, 658 F.2d 968, 984–985 (4th Cir. 1981), cert. denied 459 U.S.
879 (1982) (8(a)(3) allegation found closely related under Fant Milling,
supra, to 8(a)(5) allegations).
6 In doing so, however, the Board will not rely on a respondent’s
mere claims of different unlawful reasons for taking different action al-
leged in the complaint as unlawful, but will look to whether the timely
and otherwise untimely allegations allege the same unlawful object. See
Davis Electrical Constructors, 291 NLRB 115, 116 fn. 9 (1988).
The charge in this case was filed on October 6, 1989, and
alleged that Respondent violated the Act by threatening to
have Kaiser discharge the alleged discriminatees if they
stopped paying union dues, ‘‘despite the Union’s failure to
offer said employees membership under the same terms as
other employees’’ (G.C. Exh. 1(a)). Based on this charge, the
complaint alleges that Respondent’s threat to enforce the
union-security clause, was unlawful.
It is also alleged in the complaint that on December 17,
the alleged discriminatees were disciplined for engaging in
protected concerted activities. The first allegation is within
and the second allegation is outside the 6-month statute of
limitations. The issue then is whether the untimely allega-
tions of the complaint are closely related to the timely allega-
tion contained in the charge. To answer this question, I turn
to those factors from Redd-I, Inc., supra, and apply them to
the present case.
(a) Does the untimely allegation involve the same legal
theory as the allegations in the timely charge?
To answer this question, I need look no further than Gen-
eral Counsel’s brief, p. 17. There, General Counsel makes
clear that as a result of the timely charge, he raises a
‘‘broader theory, [whether] a union security clause can be
enforced against an employee, whose membership rights are
substantially reduced, for whatever reason, protected or oth-
erwise.’’ General Counsel’s theory for the untimely allega-
tion is that the alleged discriminatees were disciplined for
engaging in protected concerted activities. I find sufficient
connection between the two theories as to satisfy the first
legal test.
(b) Does the untimely allegation in the complaint arise
from the same sequence of events as the pending
timely charge?
As shown by the facts, this question must be answered in
the affirmative, and further discussion is not warranted.
(c) Will Respondent raise similar defenses to
both allegations?
Again, I find the answer to be in the affirmative. Respond-
ent’s basic theory of its defense is that at all times material
to its defense, Respondent was acting within the scope of its
legal authority. I will address that contention below on the
merits. For now, I find that this case should not be dismissed
in whole or in part on statute of limitations grounds. See
Kelly-Godwin Hardwood Co., 269 NLRB 33, 36–37 (1984).
2. Did Respondent discipline the alleged discriminatees
for protected concerted activities?
I begin with the relevant provisions of Respondent’s con-
stitution which were alleged to have been violated. As noted
above, Gilbert was find guilty of violating art. xvii, secs.
1(c), (e), (f), (k), and (l) which reads as follows (R. Exh. 5):
Section 1. The basis of charges against officers or
members of a subordinate body, against officers of the
227BOILERMAKERS (KAISER CEMENT CORP.)
6 In focusing purely on the numbers at this point, I have not for-
gotten the testimony of Ellsworth that some or all of the 17 positions
were especially critical to Respondent’s bargaining power. I credit
Ellsworth’s testimony and find it supports Respondent’s theory.
International Brotherhood or against a subordinate body
itself shall include, but shall not be limited to, any one
or more of the following offenses:
(a) violation of any provision of this Constitution or
the By-Laws of a subordinate body or failure to per-
form duties or functions specified therein;
(e) engaging in any activity or course of conduct
contrary or detrimental to the welfare or best interest of
the International Brotherhood or of a subordinate body;
(f) the commission of any unlawful, dishonest, dis-
honorable or discreditable act in connection with union
duties or responsibilities;
(k) engaging in or fomenting any acts or course of
conduct which are inconsistent with the duties, obliga-
tions and fealty of the members of a trade union and
which violate sound trade union principles or which
constitute a breach of any existing collective bargaining
agreement;
(l) failure to exercise responsibility toward the Inter-
national Brotherhood as an institution or engaging in
conduct which would interfere with the International
Brotherhood’s performance of its obligations . . . .
Hall and Rose were found guilty of violating sections l(e),
(k), and (l) and Gaxiola was found guilty of violating Secs.
l(e) and (k) of the same article.
A union constitution has beer described as a ‘‘fundamental
agreement of association.’’ Plumbers v. Plumbers Local 334,
452 U.S. 615, 619 (1981). Both the Board (Telephone Traffic
Union, 287 NLRB 998, 1002 (1986)) and the courts (Nelson
v. Iron Workers, 131 LRRM 2025, 2029, and cases cited
therein (D.C.D.C. 1988); Stage Employees IATSE Local 776
v. Stage Employees IATSE Local 695, 123 LRRM 2784,
2785 (9th (9th Cir. 1986)) have held that a union’s interpre-
tation of its constitution is entitled to considerable deferance.
With these preliminary principles of law in mind, I turn
to the record. There General Counsel contends that Gilbert
was disciplined, at least in part, for certain activities different
from those actually charged: for example, circulating a peti-
tion opposing Respondent’s representation and supporting
IWNA, a rival union. These activities are protected under the
Act. Cf. Service Employees Local I-J (I. Shor Co.), 273
NLRB 929 (1984). However, I agree with Respondent (Br.
pp. 10–12), that General Counsel has failed to prove a nexus
between Gilbert’s prior activities and the discipline at issue.
Sheet Metal Workers Local 22 (Miller Sheet Metal), 296
NLRB 1146, 1147 (1989). Accordingly, the issue is whether
Gilbert, Hall, and Rose were properly disciplined for present-
ing the letter of understanding on September 22, and whether
Gaxiola was properly disciplined for preparing and circulat-
ing a subsequent petition to remove all the members of D-
100 from the bargaining unit and place them in salaried posi-
tions.
In Sheet Metal Workers Local 22, supra at 1147–1148, the
Board stated:
The Board and courts have long recognized that Con-
gress in enacting Section 8(b)(1) did not intend to regu-
late the internal affairs of unions, and that the proviso
to that section preserves the rights of unions to impose
fines as well as to expel members.7 As the Board has
stated:8
The Supreme Court in Allis-Chalmers recognized
that the right of collective bargaining is a paramount
policy of national labor law and that, in order for a
union to fulfill this obligation, it must be able to pro-
mulgate its own rules and have the right to impose
reasonable discipline on members who do not obey
such rules. The Court further found that integral to
this policy is the union’s right to protect itself
against the erosion of its status of collective-bargain-
ing representative by reasonably disciplining mem-
bers for violating internal regulations. [Footnote
omitted.]
The Supreme Court, in the seminal case of Scofield v.
NLRB, observed:9
. . . Sec. 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.
7 NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 191–192 (1967).
8 Meat Cutters Local 593 (S & M Grocers), 237 NLRB 1159, 1160
(1978).
9 Scofield v. NLRB, 394 U.S. 423, 430 (1969).
In all those cases where the Board has found union dis-
cipline to have violated Section 8(b)(1)(A) of the Act, the
discipline has impeded union member access to the Board’s
processes. See, for example, Sheet Metal Workers Local 22,
supra. However, the union discipline in the present case has
nothing at all to do with restricting access to the Board’s
processes. Rather, it has to do with Respondent’s right to
protect itself against the erosion of its status as collective-
bargaining representative.
I note the Board’s decision in Buffalo Newspaper Guild
Local 26 (Buffalo Courier Express), 265 NLRB 382 (1982).
In that case, the union disciplined its members for filing a
unit clarification issue with the Board. The intended result
would have been a Board determination that certain individ-
uals be excluded from the bargaining unit due to their super-
visory status (at 383). While the Board admitted that such an
action was against a union’s interest, the member was im-
mune from internal union discipline, because of an over-
riding public policy in permitting access to the Board’s proc-
esses. The Board found that the union violated Section
8(b)(1)(A) by disciplining its member.
In the instant case, by comparison, the result of Gilbert,
Rose, and Hall’s activities would have been to remove about
half of the bargaining positions into salaried and supervisory
positions. The result of Gaxiola’s activities would have been
to remove all the bargaining unit positions into salaried posi-
tions. It is difficult to imagine any greater erosion of Re-
spondent’s collective-bargaining status than what may have
been caused by the alleged discriminatees.6
The case of Meat Cutters (S & M Grocers), 237 NLRB
1159 (1978), supports Respondent’s theory. In that case, the
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 That the alleged discriminatees may be members of Respondent
pursuant to a union-security clause does not affect their ability to re-
sign, albeit they will still be required to meet their financial obliga-
tions thereunder. Meat Cutters, supra, 237 NLRB 1159, 1161 fn. 7.
8 I find that Respondent met its fiduciary obligations to deal fairly
with its members. Respondent gave the alleged discriminatees rea-
sonable notice of their dues-related obligations and an opportunity
to make good any delinquency. Teamsters Loca] 122, 203 NLRB
1041 (1973), enfd. without opinion 502 F.2d 1160 (1st Cir. 1974).
And Respondent properly specified that discharge would result from
a failure to pay. Western Publishing Co., 263 NLRB 1110 (1982).
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
Board dismissed a case alleging that Section 8(b)(1)(A) of
the Act had been violated. The issue presented involved rec-
onciling a union’s right to solidarity during an organizing
drive with the public policy of employees being free of coer-
cion or restraint in choosing their collective-bargaining rep-
resentative. (Union had threatened to discipline members
who did not support or participate in or who actively op-
posed the organizing drive at the Employer’s store.) In dis-
missing the case, the Board held that the Union’s threat of
a fine was aimed not at deterring members from invoking the
Board’s procedures, but at requiring its members to support
the organizational efforts.
In sum, I find that General Counsel has failed to prove a
prima facie case that Respondent violated Section 8(b)(1)(A)
of the Act. Compare NLRB v. Iron Workers (Walker Con-
struction Co.), 130 LRRM 2585 (5th Cir. 1983). Instead, I
find that in enforcing the various provisions of its constitu-
tion quoted above, Respondent was vindicating a legitimate
union interest—to prevent erosion of its status as collective-
bargaining representative. In addition, I find that the provi-
sions were reasonably enforced against union members who
are free to leave the union and escape the rule.7
Because I have found that the alleged discriminatees were
not disciplined for the exercise of any rights protected by
Section 7 of the Act, the invoking of a lawful union-security
clause is not unlawful. Accordingly, the cases cited by Gen-
eral Counsel at p. 8 of his brief, e.g., Steelworkers Local
4186 (McGraw Edison Co.), 181 NLRB 992 (1970), do not
apply to the instant case. In any event, it was the alleged
discriminatees who first raised the issue regarding enforce-
ment of the union-security clause. I can find no reason why,
under the facts and circumstances of this case, Respondent’s
written answer violated the Act.
In this case only Gilbert failed to pay his union dues for
2 months. It is unclear whether he was unable or unwilling
to pay these dues. Pursuant to a valid union-security agree-
ment, a union may cause an employr to discharge an em-
ployee who by nonpayment of dues fails to maintain union
membership. 29 U.S.C. § 158(a)(1) (1976). Sheet Metal
Workers Local 355 v. NLRB, 716 F.2d 1249, 1254 (9th Cir.
1983). Before a union may do this, however, certain proce-
dural formalities must be observed. In this case, as soon as
Gilbert was counseled about his obligations, under the lawful
union-security clause, he paid his back dues, and so far as
the record shows is now current.8
As an alternative argument, General Counsel contends (Br.
p. 17) that even if the activities of the alleged discriminatees
for which they were disciplined were not protected, their
membership rights have been so substantially reduced that
enforcement of the union-security clause against them be-
comes unlawful. Not surprisingly, General Counsel finds no
cases to support this contention.
The basic flaw in General Counsel’s argument is that it
presents Respondent or any labor organization with a Hob-
son’s choice: either forgo its right to lawfully discipline its
members, thereby rendering the proviso to Section 8(b)(1)(A)
a nullity, or relinquish its right to enforce a lawful union-se-
curity clause, thereby ultimately self-destructing without the
dues of disciplined members. Moreover, General Counsel’s
positions, if implemented, would induce members who for fi-
nancial or philosophical reasons, are unwilling to pay dues
in the first place, to subject themselves to union discipline,
so they would be ‘‘punished,’’ by not having to pay union
dues, although they would continue their employment. Gen-
eral Counsel’s arguments fall of its own weight and further
discussion is unwarranted.
For the reasons stated above, I will recommend to the
Board that this case be dismissed.
CONCLUSIONS OF LAW
1. The Employer, Kaiser Cement Corporation, is an em-
ployer within the meaning of Section 2(2) of the Act, en-
gaged in commerce and in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent, International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
It is recommended that the complaint be dismissed in its
entirety.