Buffalo Newspaper Guild, The, Local 26, and The Newspaper Guild, AFL-CIO-CLC (Buffalo Courier Express, Inc.)

National Labor Relations Board - Board Decisions

Nov 12, 1982

265 N.L.R.B. 382 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Buffalo Newspaper Guild, Loeal 26, and the
Newspaper Guild, AFL-CIO-CLC (Buffalo
Courier Express, Inc.) and William L. Ball.
Cases 3-CB-2678, 3-CB-2717, 3-CB-2955, 3-
CB-3003, 3-CB-3004, and 3-CB-3182
November 12, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 8, 1981, Administrative Law Judge
Robert C. Batson issued the attached Decision in
this proceeding. Thereafter, Respondent, the Gen-
eral Counsel, and Charging Party Ball filed excep-
tions and supporting briefs, and Respondent and
Charging Party Ball filed answering briefs and fur-
ther responses thereto. Charging Party Ball also
filed a motion to reopen the hearing, which Re-
spondent has opposed.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefst and has decided to affirm the rulings, 2 find-
ings,3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 4
We find merit in the exceptions of both the Gen-
eral Counsel and Respondent to the Administrative
Law Judge's factual finding that the Board had ex-
pressly permitted Charging Party Ball to file a unit
clarification petition with the Board's office in
Region 3. In a letter to the Board's Executive Sec-
retary, dated June 18, 1975, Ball requested authori-
zation to file a unit clarification petition for the
I Charging Party Ball has requested oral argument. This request is
hereby denied as the record, the exceptions, and the briefs adequately
present the issues and the positions of the parties.
Charging Party Ball's motion to reopen the hearing for the purpose
of introducing specified documentary evidence is denied va lacking in
merit. Two of the five documents now proffered already have been in-
cluded in the record as Respondent's Exhs. 32 and 33 and the other doc-
uments were available at the time of the hearing but were not sought to
be introduced as evidence.
The Oeneral Counsel and Charging Party Ball have excepted to cer-
tlain credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Product Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
In his Decision the Administrative Law Judge found Ball held the po-
sition of Courier-Express unit grievance chairman from September 1975
until approximately April 1976. The evidence reveals that his tenure was
of shorter duration, from late October 1975 to no later than early Febru-
ary 1976.
4 We have conformed the Administrative Law Judge's recommended
Order and notice.
purpose of excluding alleged supervisors from a
bargaining unit of Buffalo Courier-Express employ-
ees represented by Respondent. In reply, the
Board's Executive Secretary prepared a letter
dated June 24, 1975, informing Ball:
Section 102.60(b) of the Board's Rules and
Regulations provides that "a petition for clari-
fication of an existing bargaining unit . . may
be filed by a labor organization or by an employ-
er." I have no authority to waive this rule or
any other of the rules and regulations which
the Board has adopted. If you wish to pursue
this matter, and bring it to the Board's atten-
tion, you might do so by filing a unit-clarifica-
tion petition in the Buffalo Regional Office,
and, if the petition is dismissed, appeal the Re-
gional Director's action to the Board. [Empha-
sis supplied.]
The record does not disclose that Ball had any fur-
ther communication with the Board regarding this
matter prior to his filing of the unit clarification pe-
tition on March 10, 1976. Based on these facts, it is
clear that no permission or waiver had been pro-
vided Ball by the Board prior to his filing that peti-
tion. Notwithstanding these revised factual find-
ings, for the reasons stated below, we agree with
the Administrative Law Judge's legal conclusion
that Respondent violated Section 8(bX1XA) by
conducting intra-union proceedings against Ball for
having filed the petition.
Respondent's action against Ball in this regard is
inconsistent with the overriding policy not to pre-
vent or limit access to the Board's processes. With
regard to that policy, we agree with the General
Counsel's contention that the filing of a unit clarifi-
cation petition is more analogous to the filing of an
unfair labor practice charge s and reject Respond-
ent's view likening it to the filing of a decertifica-
tion petition. 7 As stated in Van Camp Sea Food
Co., Inc.,8 a Board proceeding consisting solely of
the "objective appraisal of fixed events":
At no stage of the proceeding is there occa-
sion for influencing or persuading employees
See, generally, Scfeld v. N.LR.B., 394 U.S. 423 (1969); Local 1384
International Union of Operating Engineers AFL-CIO (Charles S Skura),
148 NLRB 679 (1964).
e In his brief the General Counsel has cited, inter alia, N.LRB v. In-
dustrial Union of Marine d S$hubuilding Workers of America [United States
Line Ca]., 391 U.S. 418 (1968).
' Respondent, in support of its position, points out that the unit clarifi-
cation petition was an attack on the collective-bargaining position of Re-
spondent Local, similar to that inherent in the filing of a decertification
petition, for which the Board has allowed the expulsion of a union
member, citing Tawas Tube Produce Inc., 151 NLRB 46 (1965).
s Cannery Workers Union of the Pacific, affiliated with the Seafarers In-
ternational Union of North America, AFL-CIO (Van Camp Sea Food Ca
Inc.), 159 NLRB 843, 849 (1966).
265 NLRB No. 48
382
BUFFALO NEWSPAPER GUILD, LOCAL 26
to suppor: a particular disposition of the
matter. Neither their subjective views concern-
ing the events involved in the charge nor their
solidarity with their fellow union members can
have any legitimate effect on the outcome.
The Board here is concerned, not with their
views, choices, or mutual support, but with
the vindication of the public interest in secur-
ing obedience to the statute. There is, there-
fore, no justification for permitting the public
policy of the Act to be circumvented through
the imposition of disciplinary action against
the employee for having filed a charge with
the Board.
This general statement regarding charges filed
under Section 8 of the Act is likewise applicable to
petitions for unit clarification filed under Section 9
of the Act.9 The processing of a unit clarification
petition on its merits also entails the development
of a record to allow the Board to make an "objec-
tive appraisal of fixed events" and thereby adjudi-
cate the merits of the petition.
Moreover, it is obvious from Charging Party
Ball's letter to the Board's Executive Secretary that
Ball's intent in filing the unit clarification petition
was to exclude from the unit persons whom he be-
lieved to be supervisors, some of whom were al-
leged to be officers and agents of Respondent. He
further claimed that his attempts to have Respond-
ent file the unit clarification petition were frus-
trated by these latter individuals and that his ac-
tions had resulted in extreme hostility on their part.
These contentions, while not filed in the form of an
unfair labor practice charge, clearly amount to a
request that the Board remedy a perceived
wrong. ' o
Respondent's characterization of Ball's petition
for unit clarification as being an attack on the
Union's collective-bargaining position is insufficient
to privilege its actions against Ball. This Board pre-
viously has held that in certain situations members
who act against a union's interest are immune from
internal union discipline on that ground.I1 In this
9 In Van Camp the Board noted that "proceedings under Section 9 of
the Act are no less within the public domain." Id. at 849. We continue to
adhere, however, to our general statement in Van Camp that there are
"significant differences" in Sec. 9 proceedings involving election cam-
paigns.
'o In so finding, we agree with the General Counsel's contention that
the following statement by the Supreme Court is applicable to this case:
A healthy interplay of the forces governed and protected by the
Act means that there should be as great a freedom to ask the Board
for relief as there is to petition any other department of government
for a redress of grievances. Any coercion used to discourage, retard,
or defeat that access is beyond the legitimate interests of a labor or-
ganization. [Industrial Union of Marine & Shipbuilding Workers supra
at 424.1
i See, for example, Freight Drivers and Helpers Local Union No. 557,
affiliated with International Brotherhood of Teamsters Chauffeurs Ware-
instance, it appears that, to the extent Ball might
have been successful in processing the unit clarifi-
cation petition, the intended result would have
been a Board determination that certain individuals
be excluded from the bargaining unit due to their
supervisory status. Such a result would have had
no direct adverse effect on Respondent's ability to
act as bargaining representative of unit employees,
as distinct from any indirect benefits resulting from
representing a unit of supervisors as well as em-
ployees. In any case, a Board determination on this
matter may not properly be deemed an attack on
Respondent's legitimate interest. 1
As stated above, Respondent is correct in the
claim that there has been no waiver of the applica-
tion of Section 102.60(b) of the Board's Rules and
Regulations and Statements of Procedures, which
states that unit clarification petitions may be filed
either by a labor organization or by an employer.
Accordingly, the Acting Regional Director for
Region 3 properly dismissed the petition on March
23, 1976, on the ground that the clear and unambi-
guous language of that section precludes the proc-
essing of a unit clarification petition filed by an in-
dividual. However, we reject the argument made
by Respondent that, because Ball's petition was not
authorized by the Board's current rules and proce-
dures, his attempt to file the petition on an individ-
ual basis is not deserving of protection. As stated in
the Executive Secretary's letter to Ball, one vehicle
for contesting the propriety of the Board's rules is
to proceed in a manner contrary to the rules and
then appeal an adverse ruling. In this regard, we
note that the circumstances under which the Board
has allowed the filing of unit clarification petitions
have been modified as a result of administrative ex-
perience to allow for the filing of a unit clarifica-
tion petition where it had not earlier been author-
ized. 13 Proceedings initiated for the purpose of re-
questing that the Board reconsider existing policy
are as deserving of protection as those filed in con-
housemen and Helpers of America (Liberty Transfer Company. Inc), 218
NLRB 1117, 1120 (1975); Cannery Warehousemen. Food Processos Drivers
and Helpers Local Union Na 788 affiliated with International Brotherhood
of Teamsters Chauffeurs. Warehousemen and Helpers of America (Marston
Ball), 190 NLRB 24, 26-27 (1971). Compare Scofield supra. Local 5795,
Communications Workers of America. AFL-CIO (Western Electric Ca,
Inc.), 192 NLRB 556 (1971).
"' We therefore find inapposite Board decisions involving a union's in-
terest in defending or promoting its status as bargaining representative.
See Amalgamated Meat Cutters and Allied Workers of North America,
Local 593. affiliated with Amalgamated Meat Cutters and Butcher Work-
men of North America. AFL-CIO (S & M Grocens; Inc), 237 NLRB 1159
(1978), and cases cited therein.
I" For example, unit clarification petitions are now entertained with re-
spect to bargaining units where the representative is either certified or
recognized. Compare Sec. 101.17 of the Board's Rules and Regulations
with The Bell Telephone Company of Pennsylvania., 118 NLRB 371 (1957),
where a unit clarification petition was dismissed in the absence of a previ-
ous Board certification.
383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formity with existing standards. In any event, it is
for the Board and its regional offices, not private
parties, to determine whether an individual is au-
thorized to initiate proceedings with the Board.' 4
For the reasons stated above, we adopt the Admin-
istrative Law Judge's finding of an 8(b)(1)(A) vio-
lation in this matter. 5
With respect to another section of the underlying
Decision to which Respondent has excepted, we
find merit in the contention that the fine imposed
on Ball for having filed EEOC charges was not in-
dependently violative of Section 8(b)(1)(A). In his
Decision, the Administrative Law Judge found that
Respondent lawfully expelled Ball for having filed
the EEOC charges in his official capacity as griev-
ance chairman without proper authorization, but
that the resulting fine imposed on Ball was unlaw-
ful insofar as the amount of the fine, $1,125, was
based on the dues Respondent otherwise would
have expected to receive from him. We find insuffi-
cient basis in the present record to warrant the
above factual finding on which this conclusion is
grounded. First, the Administrative Law Judge in-
correctly stated that the individual who proposed
the dues-related formula at the intra-union proceed-
ing was a trial board member. The individual,
Richard Baldwin, has been identified by both the
General Counsel and Respondent as the prosecutor
in this intra-union proceeding.' 6 In addition, it ap-
pears that this was but one of several proposals
presented by Baldwin in support of a recommend-
ed fine and that the amount recommended under
the dues-related proposal was in excess of $8,000.17
In announcing its decision that the fine should be
$1,125, the trial board did not indicate the basis it
14 See General Services, Inc., 229 NLRB 940 (1977), where the Board
similarly stated that the status of a charging party to an unfair labor prac-
tice proceeding and the merits of his charge is solely for the Board to
decide.
i In view of our rationale for finding this 8(bXIXA) violation, we find
it unnecessary to rely on International Molders' and Allied Workers Union,
Local No. 125, AFL-CIO (Blackhawk Tanning Co., Inc.), 178 NLRB 208
(1969), in which Members Fanning and Jenkins dissented, to support our
conclusion here as it relates to the fine imposed on Ball for having filed
the unit clarification petition.
*6 The trial board in that proceeding consisted of Robert Buyer, Kelly
Simon, Morton Carpenter, and George Sullivan.
17 Baldwin's proposals consisted of the following, according to the
transcript of the intra-union proceeding:
And, we seek the penalty not so much because it would work a
hardship on him. We're not interested in that. We seek it, because
we think it's the appropriate penalty for the violation.But, acknowl-
edging he would be a free rider we think it only fair that some fine
be imposed. One way of figuring out how much that fine would be
would be to assess him an amount roughly equal to what his dues
would be if he remained a dues payer. And, if you calculate that at
thirty-five bucks a month for twelve months a year or for the re-
maining twenty years or so of his working career, I come to over
eight thousand dollars. There are other ways you can do it. You can
fine him a month's pay or ten percent of a year's pay, whatever you
like. I think there should be a fine. Most importantly, I think he
should be expelled. We ask that you find him guilty. We ask for a
severe penalty. That is all.
used in determining the amount of the fine and the
General Counsel has not presented evidence other-
wise indicating the basis for that amount. There-
fore, in view of the disparity between the amount
of the proposed fine under the dues-related formula
and the amount of the actual fine, as well as the
fact that Baldwin was not a member of the trial
board, we find that the General Counsel has not es-
tablished by a preponderance of the evidence that
Ball's fine was related to dues which would be for-
gone due to his expulsion from Respondent. Fur-
ther, we will not otherwise inquire into the reason-
ableness of the fine as that is an internal union
matter protected by the proviso to Section
8(b)(1)(A) of the Act.' 8
Finally, we find merit in the General Counsel's
contention that Respondent Local violated Section
8(b)(1)(A) as a result of certain threats made to em-
ployee Eric Greenberg. The Administrative Law
Judge did not discuss this incident in his Decision
and accordingly implicitly dismissed the relevant
complaint allegation which was fully litigated at
the hearing. The uncontroverted evidence reveals
that in a memo dated August 18, 1977, Joe Wil-
helm, unit chairperson for Respondent Local, in-
formed Greenberg that:
If within 72 hours, you have failed to furnish
the Guild with a signed checkoff form and the
$3 fee, the Guild will demand to management
that you be dismissed. [Emphasis supplied.]
According to the testimony of Wilhelm, Greenberg
paid his initiation fee and signed the checkoff au-
thorization soon after he received the memo. Al-
though Wilhelm subsequently was informed by
Richard Roth, Respondent Local's president, that
he was in error to require the signing of a checkoff
form, this information never was conveyed to
Greenberg.'1 Considering the evidence, set forth
above, we find that Respondent threatened em-
ployee Greenberg in violation of Section 8(b)(1)(A)
of the Act. International Union of Electrical, Radio
and Machine Workers, Local 601, AFL-CIO (Wes-
tinghouse Electric Corporation), 180 NLRB 1062
(1970); Siro Security Service, Inc., 247 NLRB 1266
(1980).
i' See N.LR.B. v. Boeing Co., et aL, 412 U.S. 67 (1973); San Diego
County District Council of Carpenters United Brotherhood of Carpenters
and Joiners of merica, AFL-CIO (Campbell Industries), 243 NLRB 147
(1979). As stated in Boeing, the issue of the reasonableness of the fine may
be properly adjudicated by local courts according to state law. Id. at 74.
19 In view of the failure to notify Greenberg, it is unnecessary to de-
termine whether Roth corrected Wilhelm in August, as testified by Roth,
or in October, as testified by Wilhelm.
384
BUFFALO NEWSPAPER GUILD, LOCAL 26
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
The Buffalo Newspaper Guild, Local 26, and The
Newspaper Guild, AFL-CIO-CLC, Buffalo, New
York, their officers, agents, and representatives,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) Threatening employees with discharge if
they fail to sign checkoff authorization forms for
The Buffalo Newspaper Guild, Local 26, or any
other labor organization."
2. Substitute the following for paragraph 2(b):
"(b) Continue to perform its statutory duty to
provide its expelled member, William L. Ball, with
fair representation and not attempt to affect his em-
ployment."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT file internal union charges
against our members who file petitions with
the National Labor Relations Board seeking to
clarify the composition of an appropriate unit.
WE WILL NOT prosecute before an internal
union trial board any member who files a peti-
tion with the National Labor Relations Board
seeking to clarify an appropriate unit.
WE WILL NOT find any member guilty of
violating The Newspaper Guild's constitution
because that member has filed a petition with
the National Labor Relations Board seeking to
clarify an appropriate unit.
WE WILL NOT threaten employees with dis-
charge if they do not execute checkoff authori-
zation forms.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our members in the
exercise of rights guaranteed them by Section
7 of the National Labor Relations Act.
WE WILL expunge from our files all records
and documents relating to the internal union
charges, the trial board proceedings, and the
trial board decision against William L. Ball in
relation to the charges against him for filing
the unit clarification petition, and We Will so
notify William L. Ball of this action in writing.
WE WILL continue to perform our statutory
duty to provide our expelled member, William
L. Ball, with fair representation and will not
attempt to affect his employment.
THE BUFFALO NEWSPAPER GUILD,
LOCAL 26
THE NEWSPAPER GUILD, AFL-CIO-
CLC
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge: The
hearing' in this consolidated proceeding under the Na-
tional Labor Relations Act, as amended, 29 U.S.C. §151,
et seq. (herein the Act), except for Case 3-CB-3182, 2
commenced before me on January 16, 1978, based upon
a consolidated complaint issued in Cases 3-CB-2678 and
3-CB-2717, on August 31, 1976; a complaint in Case 3-
CB-2955 issued on July 26, 1977; a consolidated com-
plaint in Cases 3-CB-3003 and 3-CB-3004 issued on
September 28, 1977, and in Case 3-CB-3182, which sub-
sequently issued on June 28, 1978, as consolidated with
other cases which were disposed of by settlement as
hereafter described. These complaints and various orders
consolidating them were all issued by the Regional Di-
rector, or the Acting Regional Director, for Region 3
(Buffalo, New York) arising out of charges filed by Wil-
liam L. Ball, an individual, 3 alleging that The Buffalo
Newspaper Guild, Local 26, and/or The Newspaper
Guild, hereinafter variously called the "Respondent" or
"Respondents," the "Union" or "Unions," "Local 26," or
the "Guild," had committed numerous violations of Sec-
tion 8(b)(l)(A) of the Act. The complaint allegations
I During this long and procedurally complicated hearing, counsel and
pro se appearances were made on behalf of various other respondents and
charging parties. However, since all complaint allegations relating to
these parties were settled during the course of, and after, the hearing as
more fully described herein, and the complaints relating to them have
heretofore been dismissed by me, those appearances will not be shown
here.
Case 3-CB-3182 was among the cases which I ordered consolidated
with this consolidated case on September 26, 1978. Also, in the original
caption was Buffalo Courier Express, Inc., and Kenneth W. Kostolecki,
Case 3-CA-6955. This is one of the cases in which a settlement agree-
ment was approved by me during the course of the hearing. Upon the
General Counsel's motion to me dated April 5, 1979, asserting that com-
pliance with the settlement agreement had been achieved, I issued an
order dismissing the complaint.
3 These charges were filed on the dates as follows: Case 3-CB-2678 on
February 11, 1976; Case 3-CB-2717 on April 26, 1976; Case 3-CB-2955
on June 10, 1977; Cases 3-CB-3003 and 3-CB-3004 on August 5, 1977;
and Case 3-CB-3182 on April 26, 1978. All charges were properly
served on all parties
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assert numerous threats of reprisals against the Charging
Party, hereinafter called Ball and other union members,
because of their association or relationship with Ball, by
various officers and agents of Respondents. However,
the most serious allegations by far, about which the facts
are not in significant conflict, involve the filing of three
separate internal union disciplinary charges against Ball
which resulted in Ball's being tried on all three charges
before an internal union trial board, in accordance with
the Union's constitution and bylaws. As a result of this
trial, Ball was expelled from the Union and assessed fines
on two counts, and on the third count he was reprimand-
ed and assessed a fine.
Testimony and other evidence relevant to the above,
and other allegations which subsequently settled, were
presented to me from January 16, 1978, through Febru-
ary 9, 1978. On that date I granted, without objections,
the General Counsel's motion to adjourn the hearing sine
die, in order to allow the Regional Office time to investi-
gate and make a determination as to the merits of several
additional charges involving the parties herein as well as
other parties. It was asserted by the General Counsel and
the other parties that the issues raised by these additional
charges were intricately related to the issues in this case
and, if complaints issued upon them, they should be con-
solidated herewith.
On June 28, 1978, the Regional Director issued an
order consolidating cases and complaint and notice of
hearing arising out of 10 additional charges 4 alleging ad-
ditional violations of the Act by the Respondent Union
herein as well as several additional respondent-unions
and employers. 5 On July 11, 1978, counsel for the Gen-
eral Counsel filed with me a motion to consolidate for
hearing the consolidated complaint issued on June 28,
1978, with the cases upon which hearing had com-
menced on January 16, 1978. On July 31, 1978, the Gen-
eral Counsel filed a supplemental document in support of
his July 11 motion. On August 23, 1978, I issued an
Order To Show Cause to all parties why the General
Counsel's motion should not be granted. I received sev-
eral responses-three in support of, and three in opposi-
tion to the motion. On September 26, 1978, I granted the
General Counsel's motion and issued an Order consoli-
dating cases and rescheduling hearing. e The hearing on
the consolidated cases resumed on January 8, 1979, and
closed on February 14, 1979. Prior to the opening of the
reconvened hearing, on October 20 and December 20
and 27, 1978, the General Counsel filed with me motions
and notices of intention to amend various of the com-
plaints. These motions were granted.
As heretofore noted, during the course of the resumed
hearing all Respondents, Charging Parties, and the Gen-
4 The charges were docketed as Cases 3-CA-8183, 3-CA-8237, 3-
CA-8438, 3-CB-3050, 3-CB-3063, 3-CB-3071, 3-CB-3088, 3-CB-3089,
3-CB-3090, were all filed by Kenneth W. Kostolecki, an individual, and
Case 3-CB-3182, filed by William L. Ball, an individual.
6 In view of the fact that all complaint allegations on all charges
except Case 3-CB-3182 were settled and compliance with settlement
agreements has been achieved and the complaints dismissed, it is not nec-
essary in this Decision to set forth the allegations or the parties.
6 One of the Respondent-Employers no longer involved in this case
filed a special appeal with the Board to this Order. The appeal was
denied by the Board on December 1, 1978.
eral Counsel entered into settlement agreements, both in-
formal and outside the Board's processes remedying all
of the unfair labor practice allegations of the June 28,
1978, consolidated complaint except some of those aris-
ing out of Case 3-CB-3182, as well as all amendments to
that complaint made by the October 20 and December
20 and 27, 1978, amendments. Upon being satisfied that
compliance with these voluntary agreements would ef-
fectuate the purposes of the Act, I approved the settle-
ment agreements and dismissed the complaints out of
which allegations arose. Some of the allegations of the
complaints now before me were also settled.
All issues remaining in this case were fully litigated at
the hearing. All parties participated throughout by coun-
sel, or pro se, were afforded full opportunity to call, ex-
amine, and cross-examine witnesses, present all relevant
evidence, make oral argument, and file post-hearing
briefs. Helpful briefs were received from counsel for the
General Counsel, the Respondent, and the Charging
Party.7
Upon the entire record in this case, 8 including consid-
eration of all briefs and oral arguments, and my observa-
tion of the testimonial demeanor of the numerous wit-
nesses testifying under oath, and upon substantial and re-
liable evidence, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Buffalo Courier-Express, Inc., herein called the Em-
ployer or the Company, is a New York corporation
maintaining its principal office and place of business at
Buffalo, New York, where it is engaged in the publica-
tion and distribution of a daily newspaper. During the
12-month period immediately preceding the issuance of
the complaint herein, it received gross revenues in excess
of $200,000. During the same period of time it purchased
and received goods valued in excess of $50,000 from
points located directly outside the State of New York.
The parties concede, and I find, that the Company was
at all material times an employer within the meaning of
Section 2(2) of the Act and engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Buffalo Newspaper Guild, Local 26, and The
Newspaper Guild, AFL-CIO, as the parties concede,
and I find, was at all material times a labor organization
within the meaning of Section 2(5) of the Act.
7 Over the objections of counsel for the General Counsel and the
Charging Party, I granted the Respondent's motion to file a reply brief
and afforded the other parties the same opportunity. I received a reply
brief from the Respondent.
8 On November 25, 1979. the Charging Party filed a motion to recon-
vene the hearing and admit new evidence and testimony. By Order dated
December 14, 1979, I denied the motion. On November 23, 1980, the
Charging Party filed a similar motion. Both the Respondent and counsel
for the General Counsel filed motions in opposition to reopening the
hearing. The Charging Party's motion is hereby denied.
386
BUFFALO NEWSPAPER GUILD, LOCAL 26
III. THE UNFAIR LABOR PRACTICES
A. Background
William L. Ball was admitted to membership in Local
26 sometime in 1970. It is evident from the record herein
and the Board's Decision and Order and the Administra-
tive Law Judge's Decision in Case 3-CB-2260 (The Buf-
falo Newspaper Guil, Local 26, American Newspaper
Guild4 AFL-CIO-CLC (Buffalo Courier-Express, Inc.),
220 NLRB 79 (1975)) herein referred to as the previous
case, that almost from the date of his admission to mem-
bership, like a polar and nonpolar compoundg Ball and
the Local Union1 ° could not mix. In the instant case, as
in the previous one, a substantial part of the lengthy
record was devoted to background evidence for the pur-
pose of establishing animus against Ball, and his coun-
duct which precipitated such animus by the Respondent.
For the purpose of deciding the ultimate issue in this
case, i.e., Ball's expulsion from the Union with the ac-
companying assessment of fines and a reprimand, such
background is totally unnecessary. For each of the Re-
spondent's officers and/or agents who testified in this
proceeding readily admitted, or tacitly admitted, a re-
sentment toward Ball for many of his various activities
and the manner in which he went about his endeavors to
strictly enforce the collective-bargaining agreement be-
tween the Union and the Employer and obtaining adher-
ence to the Union's constitution and bylaws.
In the presence case, the Administrative Law Judge al-
luded to Ball's endeavors in this regard as his "zealous
involvement" in union affairs. By the time of the events
giving rise to the issues litigated here, Ball's "zealous in-
volvement" had become an obsession with him.
Prior to briefly addressing the background evidence
presented for the purpose of showing animus by the Re-
spondent's Local as presented herein and as found in the
previous case, it may be helpful to briefly describe the
structure and composition of Local 26. At times relevant
herein the Respondent's Local represented approximately
550 employees, primarily editorial department employ-
ees, of three newspapers operating in the area of Buffalo,
New York, viz, The Courier-Express (the Employer
herein involved, hereafter referred to as the C-E Unit,
The Buffalo Evening News, hereafter referred to as the
BEN Unit and the Tonawanda Evening News, hereafter
referred to as the TEN Unit). The employees of each of
the three Employers comprise a separate appropriate bar-
gaining unit and each unit has its own unit officers and
grievance committees and chairmen. The C-E Unit, of
which Ball was a member, had almost 300 employees in
the unit.
As relevant here, Richard Roth was at times president
or vice president and a member of the executive commit-
tee of the Local. John R. Fleming, Jr., was grievance
committeeman and a member of the Local executive
committee. John Wilhelm was unit chairperson of the
Respondent's Local and Joe Ritz was an executive com-
mittee member of the Local as was Henry Locke who
9 For instance, oil and water, benzene and alcohol, etc.
'O 'The Local Union" as used here refers to the other members of the
local and the duly elected officers thereof.
was also a member of the negotiating committee and the
grievance committee and vice chairman of the C-E Unit.
Richard Beer was a member of the executive committee.
Patrick Ryan was a member of the executive committee
and a member of the standing committee. David Stout
was secretary of the Local Union. Paul MacClennan was
president and a member of the executive committee.
Raymond Hill was a member of the executive commit-
tee, parliamentarian, and chairman of the BEN Unit.
Robert Buyers was chairman of the trial board of the
union charges brought against Ball (May 25-July 2,
1976) and Richard Batzer was a member of the executive
committee, the negotiating committee, and a member of
the grievance committee. Various other members are al-
leged herein, and admitted, to be agents of the Union,
such as the individuals filing the internal union charges
against Ball and those constituting the trial board as well
as the prosecutors of the three charges upon which Ball
was tried.
The Administrative Law Judge in the previous case
did not set forth "each and every incident, activity, or
conversation tending to establish such animus" against
Ball that was presented to him in that proceeding, how-
ever, he did address a number of such allegations and in
order to get a total perspective of the instant issues it is
necessary to briefly review the incidents addressed by
him there as well as the Board's findings of unfair labor
practices against Ball. In April 1973, Ball ran against Pat-
rick Ryan for chairman of the C-E Unit but was defeat-
ed in an election which was held on April 5, in which he
was elected a delegate to the executive committee. Ball
challenged the election to Local President Joseph Ritz in
a letter dated April 18, 1973, explicating his reasons for
challenging the election and specifically accusing James
Rigby, a member of the grievance committee, of having
engaged in irregularities. A committee of the Local was
appointed to investigate Ball's complaint and as a result,
at an April 26 meeting, voted to affirm the results of the
election. Ball then appealed to the Union's national head-
quarters in Washington, D.C., by writing a letter to
Charles Perlik, the president of the International, and en-
closed a copy of his letter to Ritz. On July 2, Perlik ad-
vised Ball that the International lacked jurisdiction over
the matter and suggested that he continue to pursue his
protest through the Local Union. However, in August,
Ball pursued his challenge to the April 5 election by
writing a letter to the Secretary of Labor requesting that
an investigation with respect to the election be conduct-
ed by that department and that the election be over-
turned. It is undisputed that as a result of that investiga-
tion the Labor Department advised the Local that unless
it consented to a new election it would pursue the matter
in court. The Local agreed to a new election which was
subsequently conducted in which Ball again lost his bid
for chairman of the C-E Unit to Ryan but was again
elected to the executive committee. The irregularities
found by the Labor Department are not set forth in the
Administrative Law Judge's Decision.
Further, by way of background the Administrative
Law Judge in the previous case found that on September
12, 1973, Ball requested John Fleming, then unit secre-
387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tary-treasurer to place him (Ball) on the grievance com-
mittee. In the absence of a specific denial by Ryan, the
Administrative Law Judge credited Ball's testimony that
Fleming at this point went on to say that Ryan told him
he would not place Ball on the grievance committee be-
cause James Watson, the chairman of the committee, was
opposed to him and that Ryan had stated that if he
(Ryan) had anything to do with it, Ball "would never
hold any official position in the Union."
The Administrative Law Judge also found by way of
background that in July 1973, Ball filed a charge against
the Respondent with the Board in Case 3-CB-2107 al-
leging a violation of Section 8(b)(1)(A) based upon the
Respondent's refusal to process a grievance filed by him
in December 1972. In connection therewith, the griev-
ance committee chairman, Watson, testified that his rela-
tionship with Ball was "strained" and placed the begin-
ning of this relationship about the time of the filing of
the charge. Watson further testified that he felt that Ball
was trying to give him a "fast shuffle" and that he did
not trust him. In addition thereto, the Administrative
Law Judge in the previous case noted that in a February
or March 1973 meeting with Ryan, Watson, Rigby, and
Wetmore, Ball openly accused union officials of selling
out to management concerning nonguild members per-
forming work required to be performed by guild mem-
bers. In November 1973, Ball again challenged the pro-
cedure of the Respondent's officials in appointing a nego-
tiating committee to participate in contract negotiations
which challenge was denied by the Local, and the Inter-
national, on appeal, stated that they were without juris-
diction in this matter.
It appears that there were a minimum of three internal
union elections each year in which the C-E Unit was in-
volved: the election of Local 26 officers; the election of
the C-E Unit officers, and an election for delegates to
the national convention. It appears that after Ball's initial
success of having the April 5, 1973, election overturned,
he challenged essentially every subsequent election.
However, the record does not establish the basis for his
challenges or how far he pursued them. It should be
noted however that no other elections were overturned.
In the previous case the Administrative Law Judge and
the Board found that the Respondent violated Section
8(b)(l)(A) when its executive committee member, Ritz,
threatened to bring Ball up on charges and have him ex-
pelled from union membership if he continued his protest
against the Respondent with the FBI and the Depart-
ment of Labor, and the Respondent's threat to bring in-
traunion charges against Ball because he filed the unfair
labor practice charge in the previous proceeding. The
Administrative Law Judge and the Board also found that
the Respondent violated Section 8(b)(l)(A) by its failure
to process three grievances designated as "the assistant
slot man grievance," "the days off grievance," and "the
part-time editor grievance." The Board, reversing the
Administrative Law Judge's Decision, found that six ad-
ditional grievances filed by Ball should be processed by
the Union and the failure of the Union to do so violated
Section 8(b)(1)(A). Accordingly, it ordered the Respond-
ent to cease and desist from the 8(b)(l)(A) activity found
therein and to process the nine grievances designated
therein. However, the Administrative Law Judge and
the Board dismissed two 8(bX)(1)(A) allegations of coer-
cion alleged in that complaint; one by discrediting Ball's
testimony concerning the "gun incident" and, although
crediting Ball in another regard, found that the evidence
did not support the 8(b)(l)(A) allegations and that the
General Counsel had failed to establish that the Re-
spondent had warned employees not to associate with or
speak to Ball.
The instant case is essentially a continuation of the
previous case. The Board's Decision in that case issued
September 3, 1975, and the first charge filed by Ball in
the consolidated cases before me, 3-CB-2678, was filed
February 11, 1976. Thus, there is little evidence in this
record presented by way of background since most of
the evidence pertains to allegations of the complaint.
B. General Credibility Resolutions and Disposition of
Some Complaint Allegations
As heretofore noted, the primary issue in this case in-
volves the expulsion and fining of William L. Ball by the
Union in May 1976. In his contention that this action
was unlawful, the General Counsel relies in substantial
part upon what he terms "union animus" toward Ball as
demonstrated by the background and findings in the pre-
vious case and the alleged threats of coercion and repri-
sals alleged in the instant case. I have set forth above the
findings of the Board in the previous case which demon-
strates that at least many of the local union officers, and
perhaps members, have a great deal of resentment
against Ball for what the administrative law judge there
called his "zealous" enforcement of the collective-bar-
gaining agreement.
In support of the complaint allegations herein, the
General Counsel relies upon the testimony of three wit-
nesses and voluminous documentary evidence. The Gen-
eral Counsel's witnesses were: Charging Party William
L. Ball, who testified for several days and several hun-
dred pages of testimony; Kenneth W. Kostolecki, who
also gave voluminous testimony, some of which involved
issues raised by charges he had filed and which were
subsequently settled; and Nora Harden, who gave testi-
mony concerning several conversations with the Re-
spondent's admitted agent, Henry Locke, between March
1977 and March 1978 in which Locke allegedly threat-
ened her and made a number of statements demonstrat-
ing the Respondent's animus toward William Ball.
It is well settled that the burden of proof is upon the
General Counsel to persuade the administrative law
judge of the credibility of his witnesses over those wit-
nesses testifying differently, and when he fails to do so
he has failed to meet the burden of proof. I l
Turning first to Nora Harden whose testimony related
to allegations solely against the Respondent's agent,
Henry Locke, as set forth in Case 3-CB-3182 as amend-
ed by the General Counsel on October 28, 1978. Shortly
I' Administrative Procedures Act 5 U.S.C. § 556(d) and 706(2)(e);
Consolidated Edison Co. of New York, Inc. v. N.L.R.B., 305 U.S. 197, 229,
230 (1938); Willopaint Oysters v. Ewing, 174 F.2d 676, 690, 691 (9th Cir.
1949); and N.L.R.B. v. Bell Oil & Gas Co., 98 F.2d 406, 410 (5th Cir.
1938). Compare also Blue Flash Express Inc., 109 NLRB 591, 592 (1954).
388
BUFFALO NEWSPAPER GUILD, LOCAL 26
after Harden became employed in the library at the Cou-
rier Express, she and Henry Locke, the record clearly
discloses, became "good friends," during the course of
which she rode home from work with him on many oc-
casions as well as having dinner and drinks with him. It
is during the course of this relationship that Harden testi-
fied that Locke made several remarks to her herein al-
leged to violate Section 8(b)(IXA).
It is equally obvious from the record that some time
during the fall of 1977, the relationship between Harden
and Locke became strained and was apparently terminat-
ed. I am convinced by the testimony of Locke and the
conduct of Harden toward Locke, as testified to by other
witnesses, some of which is admitted by Harden, that it
was Locke who severed the relationship. Be that as it
may, it was evident from Harden's testimony that, at the
time of the hearing, she bore a great deal of animosity
toward Locke. It is equally evident that Harden was a
very reluctant witness for the General Counsel. She did
not appear pursuant to a subpoena on the first day that
she was scheduled to testify and it appears that counsel
for the General Counsel had a great deal of difficulty in
obtaining her appearance for the hearing. In any event,
her demeanor on the stand and her overall testimony, in-
cluding some implausible explanations for actions which
she admittedly had taken, convinces me that Harden is
not a reliable witness.
On the other hand, Locke impressed me as a generally
credible and straightforward witness in his testimony, in
detail, about their relationship and his denial of the alle-
gations made by Harden. While the issue is not free from
doubt, that is the confidentiality of the relationship
during May to July 1977, Locke conceivably could have
made some of the comments alleged by Harden in the
belief that they would remain forever confidential. How-
ever, as noted, Harden's obvious animosity toward
Locke and her testimonial demeanor persuades me that
her testimony in that regard is unreliable and, according-
ly, 1 do not credit her.
Harden testified that during this period of time Locke
discussed Ball with her on many occasions and advised
her that Ball had been "blackballed" from the Union and
admonished her not to associate with him or she could
get into "serious trouble" or possibly get thrown out
from the Union and lose her job at the Courier Express.
According to Harden, Locke also admonished her not to
associate with several other employees who were sup-
posed to be friendly toward Ball or there was a possibil-
ity of the same consequences. During the course of these
same conversations, Harden alleged that Locke told her
that Ball filed "crazy charges" and was a "sicky" and
made trouble for the Courier Express and the Union.
That he further referred to Kenneth Kostolecki as a
"sicky" who filed many charges and who was never
going to get a job with any newspaper in the country.
Locke testified with respect thereto that while he asso-
ciated with Harden on a social basis and drove her home
on a number of occasions that he never admonished her
not to speak with or associate with any other employees.
He admitted, however, that he identified various employ-
ees for her since she was new at the Courier Express.
Harden further testified that sometime in July, in the
lunchroom at the Employer, Locke discussed the griev-
ance of Mickey Osterreicker with her and another em-
ployee and stated that Osterreicker would not win his
grievance, presumably because of his association with
Ball, or the fact that Ball had filed the grievance on his
behalf. In the same conversation, it appears, that Locke
also told her that she had no chance for advancement to
the position of reporter at the Courier Express if she as-
sociated with Ball.
Locke denied ever discussing the grievance with
Harden on any occasion and specifically in the lunch-
room and he further denied that he had ever told her
that she would not make reporter by speaking to, or as-
sociating with Ball.
There was apparently a hiatus in Locke's association
with Harden, at least any comments relating to Ball or
alleged in the complaint, until about March 15, 1978,
when, according to Harden, Locke came to her new
apartment to drop off some packages that she had left at
work. She testified that "out of the clear blue sky"
Locke asked her if she talked to Bill Ball. Harden appar-
ently declined to answer, at which time Locke allegedly
offered her a position on the Human Rights Committee
of Local 26. Upon her inquiry as to whether that was
the committee that was out to get Bill Ball, Locke re-
plied "you're right."
Locke recalled that at some point he took some pack-
ages to Harden's apartment which she had left at work
and was invited in to see her "new apartment." He testi-
fied that she did not mention Ball or his filing of charges
and neither did he. Locke stated that it was possible that
he asked her to serve on the Human Rights Committee
but that he had never followed up on it, and denied stat-
ing that the committee was out to get Ball.
The next and final allegation relating to Locke oc-
curred approximately July 19, 1978, at which time
Harden testified that while she was on a pay phone at
the office, Locke walked by her and said "I will see that
you get beat yet." This out of the clear blue sky also and
there is no testimony of any further exchange on that oc-
casion. Locke denied the statement.
In order to establish the coerciveness of this last, ob-
stensibly innocuous remark to Harden, the General
Counsel produced some testimony concerning the fact
that Harden had been attacked by the prior occupant of
her apartment about March 31, 1978, and was out of
work until May. According to Harden, her assailant had
told her that he was a friend of Locke's and she testified
that Locke admitted this fact to her. Locke denies know-
ing, or being acquainted with, Harden's assailant. Ac-
cording to Harden, when she returned to work, Locke
called her a liar for telling everyone that he knew the as-
sailant.
As noted above, I am persuaded by Locke's testimony
that he made no such coercive remarks to Harden.
Although, already having discredited Harden, it
should be noted that after the termination of their rela-
tionship, according to Wilson McCutcheon, a coem-
ployee of Harden in the library, when Harden returned
to work after her assault she told him that she had been
assaulted by a man that Locke knew and who was his
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
friend. He further testified that on more than one occa-
sion he observed her dial Locke's extension and, appar-
ently when he answered, hang up. McCutcheon also tes-
tified that prior to the assault he had observed and heard
her call Locke and in the course of the conversation use
such words as "bullshit," "M-F," and he had heard her
use similar language to Locke face-to-face, including
calling Locke a burrhead. Locke testified that as a result
of their severed relationship and Harden's harassment of
him at home he had his home telephone number
changed. Harden does not deny making some of the har-
assing telephone calls to Locke.
In short, as noted above, while credibility resolutions
such as those raised here are seldom free from some
doubt, I am persuaded that the General Counsel has
failed to establish that Harden's testimony is credible in
view of her evident personal animosity toward Locke. It
should be noted that there are no other allegations per-
taining to Locke, who appeared to be a rather low-keyed
individual, and was a member of the grievance commit-
tee and perhaps on the executive board of the C-E Unit.
Accordingly, I find and conclude that the General Coun-
sel has failed to establish the allegations of the complaint
relied upon by the testimony of Harden and which re-
lates to 8(b)(1)A) violations committed by Henry Locke.
I recommend that the consolidated complaint be dis-
missed with respect thereto.
Next is to consider the reliability of the testimony of
Kenneth W. Kostolecki. Kostolecki was hired as a copy
editor by the Courier Express and started work on Janu-
ary 5, 1976. His employment terminated on March 7,
1976. It appears, and I find, that at the time Kostolecki
was hired he was told by slot man, Bert Nelson, who
had interviewed him, that his employment would be
about 8 weeks. It appears that he was hired as a "vaca-
tion" replacement for William Ball who was going to be
hospitalized for a couple of months. Although Kosto-
lecki was not satisfied with the rate of pay he received in
his first paycheck, and alleges in his testimony that
Nelson had told him that it would be in the neighbor-
hood of $400 per week, no grievances were filed over
the rate of pay until after Kostolecki's termination on
March 7, 1976.
As heretofore indicated, upon Kostolecki's termina-
tion, he filed several 8(b)(XlX)(A) charges against the Re-
spondent Unions herein as well as three other local
unions in western New York and against several employ-
ers. All such allegations and complaint issues were set-
tled during the course of, and after, the hearing herein.
Many of the complaint allegations upon which the
General Counsel relies rests on the testimony of Kosto-
lecki and occurred during the April 8, 1976, union meet-
ing wherein delegates to the national convention were
being nominated, and which meeting resulted in internal
union charges being filed against William Ball. Thus, the
specific allegations will be dealt with in the section of
this Decision wherein it is considered. While many of the
complaint allegations supported only by Kostolecki's tes-
timony were subject to corroboration, the General Coun-
sel offered no corroboration, and indeed much of his tes-
timony relating thereto was denied or inferentially refut-
ed not only by the Respondent officers, but by "pre-
sumed" friends of Ball and Kostolecki.
Kostolecki was not an impressive and believable wit-
ness. Not only with respect to his testimony pertaining to
the remaining complaint allegations but with respect to
the testimony that he gave in support of the charges in-
volving himself and the local union as well as other
locals and other employers. Much of Kostolecki's testi-
mony, particularly pertaining to the complaint allegations
herein, was general in nature and frequently on cross-ex-
amination he would testify in direct contradiction to his
direct examination. For instance, with respect to the
April 8 meeting, Kostolecki testified that only four or
five names of the nominees which Ball had submitted for
nomination had been read before certain officers of the
Union made threats to bring charges against the reader
of the names as well as Ball and have him thrown out of
the Union. This is in conflict with other credited testimo-
ny that perhaps as many as 10 to 20 of the names had
been read before an objection was raised thereto. On
cross-examination, Kostolecki testified that several of the
individuals which Ball had submitted into nomination im-
mediately requested that they be withdrawn. Thus, it is
evident that more than four or five names were read in
order for "several" nominees to request that their names
be withdrawn.
Similarly in other respects, Kostolecki testified in con-
flict with, or gave testimony not set forth in previous af-
fidavits given to the Board. For instance, he testified that
at the time of his hire, Nelson had stated that his salary
would be in the neighborhood of $400 per week. How-
ever, this is not in his pretrial affidavit taken some 3
months later, and on cross-examination Kostolecki ad-
mitted that he just "assumed" that he would be paid in
accordance with the contract. At the hearing he also tes-
tified that at the time of his hire nothing was said to him
that would indicate that he was a temporary employee.
At the hearing Kostolecki testified that he was never
told that his job was temporary or given an indication
that it was anything other than full time. When confront-
ed with a pretrial affidavit given some 3 months after the
event and wherein he wrote, "at the time I was hired
. . I was never told that I would be hired as a tempo-
rary employee but was told my job was eight weeks to
replace someone who was in the hospital," he admitted
that he read the affidavit and indeed made a number of
changes in the affidavit which were initialed. In attempt-
ing to explain away the apparent conflict between his
trial testimony and his pretrial testimony, Kostolecki
stated that he told the Board agent taking the affidavit at
the time that that portion of the affidavit was inaccurate
and requested that it be changed. He testified he told the
agent that it should read "that he was asked to assure the
company that he would stay at least eight weeks and
then he replied that he would stay eight years if possi-
ble." Kostolecki testified that he specifically asked the
Board agent to change that portion of the paragraph and
was told that "it wasn't important." He testified that on
two other occasions he went to the Board's Office and
390
BUFFALO NEWSPAPER GUILD, LOCAL 26
requested to change that portion of his affidavit and the
request was denied. 12
Considering the purposes for which this affidavit was
apparently taken and the critical nature of the statement
to which Kostolecki testified that he objected, I am
unable to believe that the Board agent would not permit
him to change the quoted portion, or at any rate, to file a
supplemental affidavit in which he could explain the ap-
parent conflict.
Considering the foregoing, and Kostolecki's demeanor
on the witness stand including his evasive and equivocal
answers and sometimes conflicting testimony, I must
again conclude that the General Counsel has not borne
his burden of persuasion that this witness' testimony is
credible. Thus, where Kostolecki's testimony is credibly
denied or refuted by documented evidence, I shall not
credit him.
Turning now to the General Counsel's major witness,
the Charging Party William L. Ball, and a consideration
of the basis of his credibility. First, after observing Ball's
demeanor on the witness stand for several days and sev-
eral hundred pages of testimony spanning approximately
a 5-year period, I am convinced, contrary to the Re-
spondent counsel's argument in brief, that Ball is basical-
ly an honest and honorable man. It should be noted that
in the preceding case the Administrative Law Judge, at
footnote 3 therein, remarked upon Ball's "remarkable
memory for details and dates as to the various incidents
and matters concerning which he testified." He also ob-
served that many of these Ball had documented at the
time of the occurrence and on the whole he appeared to
be a credible witness. However, it should further be
noted that it appears that Ball's testimony in that pro-
ceeding was credited only when it was corroborated by
other testimony or documentary evidence. For instance,
the Administrative Law Judge did not credit Ball in his
allegation that at one point in time, in a local restaurant,
Patrick Ryan pulled a gun, held it in his right hand, and
made popping noises at Ball. In so concluding, however,
the Administrative Law Judge at footnote 9 therein
stated that he did not find that Ball deliberately fabricat-
ed his testimony and since the event occurred at night,
Ball might have "envisioned" the gun.
In another regard in that case while the Administrative
Law Judge credited Ball's testimony over that of the Re-
spondent's Executive Committee Member, Joseph Hig-
gins, that Higgins made the statement to Ball that "he
could see himself obtaining a Norden bomb sight and
flying over my home," the Administrative Law Judge
and the Board found that the remark could not seriously
be construed as a threat of bodily harm and accordingly
dismissed the allegation.
With regard to another incident, although Ball's testi-
mony was credited, the Administrative Law Judge found
that the statement allegedly made by copy editor Toron-
to, that he told the editorial copy staff that they had
been approached by Ryan and Watson who told them
not to associate or talk with Ball or he would get them
I2 This affidavit was appparently given primarily in support of Kosto-
lecki's 8(aXl) and (3) charges against the Courier Express alleging that
his termination on March 7 was because of his union or protected con-
certed activities.
in trouble with the Labor Department, the statement was
not denied by Toronto. However, the Administrative
Law Judge found that it did not constitute a violation of
the Act in and of itself.
In the previous case, the Administrative Law Judge
noted that Ball had a "zealous" involvement in other
union affairs, such as allegations that the Respondent's
officials did not strictly enforce or correctly interpret the
provisions of the collective-bargaining agreement be-
tween the Company and the Union as well as charges
that the Respondent's officials engaged in various other
improprieties in handling the internal union affairs, as a
result of which many union officials may well have re-
sented Ball's involvement in the Union and the manner
in which he endeavored to correct what he perceived to
be improprieties by the Union in the administration of
the contract.
As might be expected from the lengthy testimony
given by Ball concerning numerous incidents and con-
versations spanning a 5-year period, there are a great
many conflicts, inconsistencies, and variances in his testi-
mony. His testimony on direct examination with respect
to the many events and conversations to which he testi-
fied was given in a manner indicating no uncertainty on
his part as to the dates, places, and others present and
the content of what was said. While his memory could
be jogged with respect to certain events and incidents by
the many written documents which the General Counsel
submitted into evidence as exhibits through Ball, it ap-
peared that Ball did indeed have a remarkable memory
with respect to dates, places, and the presence of others
at the many conversations, some of which are here al-
leged to constitute violations of Section 8(b)(X).
However, tinder adroit and searching cross-examina-
tion, Ball's recollection of dates, places, others present,
the contents of the converssations to which he testified,
and the entire sequence of events became less certain and
extremely evasive. Some of this testimony was similarly
at variance with pretrial affidavits which he had submit-
ted to the Regional Office of the Board in preparation
for these cases. It is when Ball was confronted with this
and other documentary or irrefutable evidence inconflict
with his direct testimony that his memory became selec-
tive and vague as to precisely what had occurred.
A couple of examples will suffice for the purposes of
this section of the Decision. For instance, on direct ex-
amination, Ball testified that he received a letter from
Richard Roth, president of the Buffalo Newspaper
Guild, Local 26 on April 6, 1977.13 Roth's April 6 letter
dealt with the Union's handling of a part-time grievance
and was in response to an earlier letter from Ball with
reference thereto. Ball testified that immediately upon re-
ceipt of this letter he telephoned Roth and advised Roth
that he had checked the "Frontier Reporter" 14 and
could find no evidence of the grievance having been
considered, and requested that Roth furnish him what-
ever documentation existing which demonstrated that the
grievance had been considered. On April 11, Ball replied
is It appears based upon the date of the certified mail receipt of the
letter signed by Ball's wife that he actually received the letter on April 7.
'1 A monthly publication of Local 26.
391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Roth's April 6 letter contending that disposition of the
grievances had not been obtained. In Ball's April 11
letter, he did not allude to any telephone call to Roth.
On cross-examination, Ball stated that he did not recall
the exact date of his telephone call to Roth but that it
was sometime between receipt of Roth's April 6 letter
and Ball's April 11 letter. On further cross-examination,
Ball stated that he did not know if it was the day he read
Roth's letter or the following day, but testified that his
call to Roth was made at approximately I p.m. and he
did not know where Roth was at the time, but was
either at home, the union office, or the Courier Express.
On further cross-examination, Ball conceded that his
memory was poor and that he did not recall the exact
date but again reaffirmed that it was between April 6 and
12. Upon still further examination concerning this matter,
Ball conceded that he could not recall how he and Roth
made contact, whether he called Roth or Roth called
him, which is contrary to Ball's prior affidavit and his
prior testimony.
However, during the course of this alleged telephone
conversation, Ball alleged that Roth replied that Ball
would not be represented by the Union because of his
complaint with the Federal and state agencies and be-
cause he was not a union member. When further ques-
tioned concerning the telephone call, which Roth was to
deny in its entirety, Ball stated that he really could not
recall the sequence in which the events occurred and de-
clined to attempt to recall the exact date he composed
his April 11 letter to Roth.
As noted, Roth testified that he had never been called
by Ball on the telephone and that he had never tele-
phoned Ball himself. He testified that from approximate-
ly 8 a.m. on April 7 to 5 or 6:30 p.m. on April 13 he was
not in Buffalo but was instead on vacation with his
family and father-in-law and did not arrive back in Buf-
falo until about 6:30 p.m. on April 13. He also denied
that he had any telephone conversation with Ball while
on vacation.
The employment relations manager of the Courier Ex-
press produced the timecard of Richard Roth which
showed him on vacation from April 7 through April 14,
and he testified to that effect.
At the hearing, the Respondent's counsel suggested
that during a recess Ball had contacted the Courier Ex-
press and learned that Roth had been on vacation during
this period of time and became evasive as to the tele-
phone call after that time.
Another example of Ball's evasiveness under searching
cross-examination, confronted with his own writings,
Ball testified that, subsequent to a nominating convention
in May 1975, he was told that the office secretary had
told his nominees "the troublemaker has put your name
on the list again." He named one employee, Jim
McAvey, as being one who told him this; however,
McAvey testified that the office secretary, Victoria
Dragem, had called him at home and merely told him he
had been nominated for an executive committee member
position as had a great many other people and asked if
he had any desire to run. McAvey testified that he did
not know who had nominated him. In a letter dated May
9, 1975, to Local President MacClennan, largely protest-
ing the minutes of the local meeting for May 1975, Ball
charged that his nominees had been badgered off the
election roster by Office Manager Victoria Dragem, who
he later referred to in the letter, as the office lackie. At
the hearing Ball testified that he had never called
Dragem the office lackie and that he had no idea as to
whom he had made reference when he used the term in
the letter to MacClennan. It was after confrontation with
this letter that Ball made the concession that he did not
know who had contacted the nominees he had submitted
into nomination and indeed whether or not they had
been badgered off the list.
As heretofore noted, by the time the events giving rise
to the instant proceeding, Ball's zealous involvement in
union affairs had clearly become an intense obsession
with him. Demonstrative of this fact, in addition to Ball's
testimony, are the numerous letters received into evi-
dence as exhibits offered by both the Respondent Union
and the General Counsel, demonstrating Ball's objection
to essentially every action taken by the local union
whether it be in connection with the minutes of its
monthly local meetings or challenges to the various elec-
tions in which the C-E unit participated.
Indicative of Ball's intense subjective concept of how
the Union should be operated and indicative of his con-
viction that only when matters pertaining to the Union
were resolved to Ball's individual satisfaction was any
matter, in his opinion, disposed of properly.
For instance, by letter dated November 18, 1974, to
Patricia Swift, secretary of Local 26, Buffalo Newspaper
Guild, Ball requested that the letter be placed in the
records of the local and thereafter attacked the authen-
ticity of the minutes of the last meeting. Ball submitted,
in all seriousness, a claim for $200,000 in settlement, for
"the activities of officers, agents and employees of the
Buffalo Newspaper Guild have had the effect of causing
me and my family extreme mental anguish. These actions
have caused me loss of present and future income and
virtually foreclosed any possibility without or within my
profession. These actions have interfered with my consti-
tutional guarantees against loss of life, liberty and pursuit
of happiness without due process of law."
Again, in a letter dated June 9, 1975, to MacClennan,
as president of Local 26, Ball again attacked the veracity
of the minutes of the June 1975 union meeting as report-
ed in the "Frontier Reporter." Ball made certain remarks
concerning Dave Stout, secretary of the Local, and pre-
sumably the individual charged with the preparation of
the minutes, concerning the marital status of Stout and
his wife. At one point, on the third page of the letter,
Ball states "Mr. & Mrs. Dave Stout-I presume that the
Stouts are man and wife." Next to the last paragraph of
the letter Ball states:
For the record, I also ask that Mrs. Stout and
David Stout, if they are man and wife, be asked if
they will formally agree to waive any right to tes-
tify against one another in any legal forum relating
to their activities as officers and agents of Local 26;
or if they reserve the right to take refuge within the
principle of espouseoso nonsquealus.
392
BUFFALO NEWSPAPER GUILD, LOCAL 26
Ball then asked that the entire letter be read at the next
meeting. The record reflect no basis for Ball to obliquely
question the marital relationship of the Stouts, but is in-
dicative of the vindictiveness with which he expressed
his objection to the manner in which the Union's busi-
ness, through its officers and members, was being con-
ducted, and, if not indicative of irrational behavior, cer-
tainly is indicative of an intensively subjective bitterness
toward the Union.
Further indicative of Ball's intensively subjective con-
cern with having the business of the Union conducted in
a manner acceptable only to him is his testimony at the
hearing concerning the processing of 30 to 40 grievances
during the period of time that he was grievance chair-
man for the C-E unit. On direct and cross-examination,
Ball repeatedly testified that none of the 30 to 40 griev-
ances, then pending, had been handled. However, upon
examination by the Administrative Law Judge as to just
what status or position the grievances were in, Ball con-
ceded that they had been disposed of at the first or
second step of the grievance procedure, but, since they
had not been disposed of to Ball's satisfaction, with the
exception of one, in his opinion they were still pending
grievances.
One could go on and on with specific examples of
Ball's attitude toward the officers of the Local Union
and his insistence that although they were, by and large,
elected officials, consistently refused to, and declined to
enforce the terms of the collective-bargaining agreement.
This clearly reveals, as perceived by Ball, that they must
be disposed of to Ball's individual satisfaction.
There is no doubt in my mind that after the prior case
before the Board and Ball's success in having the 1974
election overturned by the Department of Labor, Ball
was convinced that thereafter the union officers would
not represent him as a union member in retaliation for his
having filed such charges. Accordingly, I believe Ball
became so obsessed with this conviction that it tainted
his entire testimony relating to the events occurring in
the instant case.
Perhaps one further example of Ball's methods utilized
to achieve what I am convinced he perceived as a desir-
able solution to problems that he perceived to exist,
arises out of the preparation of certain self-serving docu-
ments proporting to give him the authority to file
charges on behalf of the Union with various state and
Federal agencies. It is undisputed, and Ball does not
deny, that under the Union's constitution and bylaws,
only the local union could authorize the filing of charges
on behalf of the Union with Federal or state agencies.
This is certainly understandable in view of the fact that
such charges filed by individuals in the name of the
Union might conceivable incur expenses upon the Union
and in the event the charges were established to be frivo-
lous could actually incur the cost of legal expenses for
the employer having to defend them. See, for instance,
Ekanem v. Health Hospital Corp. of Marion County, 589
F.2d 316 (7th Cir. 1978).
It appears that at a November 8, 1975, union meeting,
during the period of time Ball was C-E grievance chair-
man, some discussion arose concerning the environmen-
tal working conditions of some of the editorial depart-
ment employees at the Courier Express and that a
motion made by member Cliff Preisigke and seconded by
Lynn Delmar that the C-E unit grievance committee be
permitted to check with governmental agencies as to
what protection guild members had with respect to such
environmental working conditions was passed. On the
witness stand Ball admitted remembering the passage of
the environmental working conditions motion but also
stated that he presented the following motion that was
passed:
Moved, that William L. Ball grievance committee
chairman of the Buffalo Courier Express unit, Buf-
falo Newspaper Guild, Local 26 is directed to pro-
ceed through the normal grievance and administra-
tive procedures and channels and to take action by
any and all appropriate city, county, state and fed-
eral agencies and bodies to enforce the collective
bargaining agreement and resolve problems related
to the working conditions between the Buffalo Cou-
rier Express and the Buffalo Newspaper Guild.
The minutes of that meeting, while reflecting the passage
of the motion involving the environmental working con-
ditions, do not disclose that Ball's alleged motion was
made or passed. Several other members in attendance at
the November 8 meeting: John Fleming, Lynn Delmar,
Cliff Preisigke, and Robert Litzenberger, who presided
over the meeting, testified that no such broad motion
was made by Ball or that it was passed, and denied that
they had ever seen what was admitted into evidence as
General Counsel's Exhibit 6(a).
According to Ball, on November 10, 1975, he pre-
pared a memo to the membership asserting in substance
that at the November 8, 1975, meeting he was appointed
by the membership to pursue the problem of the environ-
mental conditions present in working spaces to which
members of the collective-bargaining unit are assigned.
Ball went on to state in this memo that it included not
only problems dealing with air space and floor space oc-
cupied by members but included the conditions applica-
ble throughout the Courier Express where it involved
members of the work force covered by the collective-
bargaining agreement including the conditions of the
motor vehicles-heaters, etc. He asserts in the alleged
memo:
The membership instructed me to proceed through
the normal grievance and administrative procedures
and channels and to seek action by any and all ap-
propriate city, county, state and federal agencies
and bodies.
This would include but not be limited to the various
Department of Labor, Wage and Hour Division,
Labor-Management Relations Divisions, and Occu-
pational Health and Safety Administration offices
and agencies.
He then invited any interested member to make sugges-
tions.
Also on November 10, Ball allegedly prepared another
notice to the membership, according to him, because he
393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noted that it needed some rewriting and editing and to
show that copies of the notice had been sent to Paul
MacClennan, John Fleming, and Willard Hatch.
However, a comparison of the two asserted notices to
the membership reflect that they concentrate on totally
different elements of working conditions and with re-
spect to the agencies Ball was allegedly authorized to
contact. He asserts:
Among the agencies involved in this action are the
State Human Rights Division and the U.S. Equal
Employment Opportunity Commission. These agen-
cies can help us in rectifying the problems involving
discriminatory practices as they relate to minority
group members and women. By using the processes
of these agencies we can avoid the cost of arbitra-
tion and discrimination cases.
As in the case of the complaints to the Occupation-
al Safety and Health Administration and the possi-
ble use of the state labor department, the member-
ship directed me to proceed through grievance
channels and if these processes are unsuccessful to
proceed through the various agencies involved.
If any member feels that he has been discriminated
against or is being discriminated against because of
sex, age, race, national origin and so forth, please
contact the undersigned. I have been assured by the
agencies involved that persons can, if they so desire
keep their names confidential and that any person
giving testimony or information are protected by
law from reprisals.
Ball's testimony regarding the preparation of these as-
serted documents and what he did with them is to say
the least ambiguous. He testified on cross-examination
that, although he prepared the second document before
posting the first, it does not make reference to EEOC or
elicit complaints concerning discrimination under their
jurisdiction, and the second was evidently prepared to
correct this omission. On cross-examination, Ball testified
that he also posted the second notice on the bulletin
board as well as the first. However, on recross-examina-
tion, Ball admits that the second notice prepared, Gener-
al Counsel's Exhibit 8, was never posted.
Although one of the reasons asserted by Ball for the
preparation of the second notice to employees was to re-
flect that copies of it had been served on certain individ-
uals, he testified that he left a copy of General Counsel's
Exhibit 7, i.e., the first notice for John Fleming, in the
intra office mail. With respect to the second notice, Ball
conceded that "it may be that I never submitted that to
Mr. Hatch" as indicated thereon. However, Ball testified
that Hatch did not receive a copy of General Counsel's
Exhibit 7 either. MacClennan, Fleming, and Hatch testi-
fied that they had never seen copies of this notice posted
either on the bulletin board nor had they ever received
any such documents through the mail or via intra office
mail.
Additionally, by letter dated November 22, 1975 (G.C.
Exh. 9), Ball allegedly forwarded to MacClennan copies
of both General Counsel's Exhibits 7 and 8 which corre-
spondence indicated that copies of that were also sent to
Willard Hatch and David Stout. In the November 22
letter to MacClennan, which MacClennan denies ever
having received, Ball states inter alia:
I am asking herewith that these motions and notices
be presented at the next regularly scheduled meet-
ing of the Local 26 executive committee and mem-
bership that they be approved and endorsed. I also
am herewith requesting that these documents be
printed in their entirety and verbatim in the next
published edition of the Frontier Reporter.
In addition, I am repeating my request for a defini-
tive and authoritative statement by you or some
other responsible officer on the formally adopted
policy dealing with the processing of grievances
and grievance issues and the duties and authority of
the grievance committee, grievance committee
chairman and the standing committee.
At the hearing, MacClennan searched his file and cre-
dibly testified that he had never received a copy of this
purported document nor the attachments thereto.
Further, in an apparent effort to bolster a color of au-
thority to deal with the outside agencies such as the
Equal Employment Opportunity Commission, on Janu-
ary 3, 1976, Ball wrote to David Stout, secretary of
Local 26, with respect to a grievance involving Debra
Williams. After asking that the grievance filed on behalf
of Williams be approved for arbitration, Ball stated:
That the undersigned, grievance chairman William
L. Ball, be authorized to file a discrimination com-
plaint on behalf of all minority groups at the Buffa-
lo Courier-Express, such complaint to be submitted
to the Equal Employment Opportunity Commission,
the State's Human rights Division or any other
state, federal or local agencies in power to receive
such complaints.
I have laboriously read and reread several times Ball's
testimony concerning inter alia, his actions and conduct
described above and his sometimes inperceivable reasons
for such conduct. I find and conclude that in Ball's zeal-
ous obsession with enforcing what he perceived to be the
Union's obligation under the collective-bargaining agree-
ment and its constitution and bylaws, by the documents
purportedly prepared by Ball discussed immediately
above, Ball endeavored to generate and expand upon
what appears to be a general authorization to investigate
various agencies that could perhaps be of assistance to
the Union in solving certain perceived environmental
problems as granted to him at the November 8 meeting,
into an overall authorization to act on behalf of the
Union with respect to any and all Federal and state gov-
ernmental agencies, when, in Ball's opinion, such action
was justified. I am further persuaded, that even assuming
the above-discussed documents were prepared by Ball on
the dates indicated thereon, that they were not posted or
served upon the individuals indicated, and perhaps were
even prepared as an afterthought, i.e., after Ball had filed
the EEOC charge as hereafter discussed, for the purpose
394
BUFFALO NEWSPAPER GUILD, LOCAL 26
of bestowing upon himself a color of authority to act for
and on behalf of the Union in this respect.
In my view, Ball honestly felt that the ends that he
sought to achieve for what he perceived to be the benefit
of unit employees were justified by the means that he
used. Although the record as a whole is abundantly clear
that since 1973 Ball had strongly and vocally disagreed
with the elected and appointed officers of the Union
who were charged with the responsibility of administer-
ing the contract and had made that disagreement known
through his voluminous correspondence with the Union
and its officials, and as indicated above, at times in a
manner approaching an irrational avenue of solution to
the problems as he perceived them. I am further con-
vinced that, in Ball's mind at least, since his successful
charges against the Union in the previous NLRB case, as
well as the overturning of the election, he was convinced
that the union leadership would also retaliate against
anyone friendly toward Ball, because of his zealous ef-
forts to run the Union to his, Ball's, satisfaction. As a
result of this obsession, albeit an honest and genuine
belief by Ball, I am convinced that such mental attitude
so colored Ball's testimony with respect to the realities
of what transpired at the various meetings, conversa-
tions, and so forth alleged in the complaint to violate
Section 8(bXIXA), that it can not be credited. As noted,
in my view Ball was convinced that he would not re-
ceive fair representation nor would any grievance with
which he was involved be processed, thus the several
conversations relating to what was said to Ball at the
time he presented a grievance concerning the fact that
the grievance would not be processed, or that it would
receive more favorable treatment were it filed by some-
one else, that the Union did not intend to represent Ball,
that those who associated with Ball would receive the
same treatment, and other such statements, were the
result of Ball's transforming what he perceived the
thoughts of the individual to be with regard to him into
an oral statement to which he testified.
As clearly indicated above and by the record as a
whole I think it might be fairly said that Ball conducted
a one-man vendetta against what he termed the "in-
trenched leadership" of the Union. However, I find it in-
conceivable that counsel for the General Counsel could
not obtain any corroboration for a vast majority of Ball's
testimony where it is in apparent conflict with documen-
tary evidence and or other credited testimony. As in the
case of Kostolecki, it appears that not only the union of-
ficials, against whom Ball may have had a vendetta, but
even "presumed" friends of Ball, were unable to cor-
roborate him in many areas. In the second place, in my
opinion the union officers and agents against whom Ball
has made specific charges of 8(bXl) conduct, assuming
that such had been their thoughts at the time, would
have been discrete in making statements to Ball, knowing
his propensity for filing charges and his generally liti-
gious nature.
However, as noted earlier a finding of the 8(bXIXA)
conduct alleged in these consolidated complaints for the
purpose of establishing resentment or animus against Ball
by the Local is unnecessary to a resolution of the pri-
mary issues in this case; i.e., the expulsion, fining, and re-
primanding of Ball for the specific acts in which he en-
gaged. I think it is abundantly clear from the record that
because of Ball's manner and attitude in endeavoring to
dictate the operations of the local union, particularly the
C-E unit, that such resentment was evidently clear. Ac-
cordingly, except as it relates to the specific allegations
of the complaint pertaining to Ball's internal union
charges against him, his trial, and the verdict thereon, I
believe that no useful purpose would be served in reiter-
ating the specific allegations upon which the General
Counsel relies on Ball's uncorroborated testimony.
As will be seen in the detailed discussion of the cir-
cumstances surrounding the conduct for which Ball was
tried and convicted, the evidence germane to a resolu-
tion of the validity of such conduct is not in serious dis-
pute.
In view of the conclusions reached above with respect
to the general reliability of the General Counsel's three
chief witnesses with respect to the testimony given in
this proceeding, I do not perceive any purpose that
would be served by setting forth the circumstances sur-
rounding the numerous conversations with various Union
officials to which these witnesses testified. As I under-
stand the General Counsel's theory of the case, this testi-
mony was offered principally for the purpose of estab-
lishing that the officers of Local 26, as well as perhaps
some members of Local 26, held a great deal of animos-
ity against Ball for his Section 7 or concerted protected
endeavors to obtain strict adherence to the collective-
bargaining agreement and the national constitution and
bylaws. This testimony dealt largely with alleged threats
of reprisals against various union members for associating
with Ball; refusing to properly process grievances filed
by Ball or by individuals friendly with Ball; admonitions
to employees of adverse reprisals for associating with
Ball; and threats of reprisals including expulsions and
fines for association with Ball or support of him.
To the extent that such animus might be a factor in the
determination of whether or not the bringing of internal
union charges against Ball for his having filed the UC
petition; a complaint with the EEOC against the Courier
Express, as a representative of the Union; and his having
attempted to introduce into nomination 208 names for
seven positions to the national convention and his subse-
quent trial and conviction of all three counts violated
Section 8(bX))A), I have no problem, based upon the
findings in the preceding case as well as the tacit admis-
sions by some of the officers and members of the Local
who testified in this case, that they bore a great deal of
resentment and animosity toward Ball for his intensive,
subjective, and obsessive involvement in intraunion af-
fairs. The voluminous files in this case are replete with
copies of correspondence from Ball to the Union and
from the Union to Ball, as well as additional credited tes-
timony of record, including that of Ball, establising fur-
ther activity by Ball, wherein it appears that he objected
to essentially every act of the Local, particularly the
Courier Express unit. It also appears that he objected
strenuously to any inaction by these parties.
It is axiomatic that Ball, as well as any other union
member, has a Section 7 protected right to express dis-
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
satisfaction with actions of the elected union leaders and
to dissent therefrom and urge others to join him in his
views. Needless to say, it takes little imagination to pic-
ture the chaos that would reign in the orderly procedure
of business including the administration of the collective-
bargaining agreement if each of the 550 union members
expressed the same intense persistence as did Ball with
respect to having all issues resolved to his/her own per-
sonal satisfaction.
I shall now turn to consideration of the primary issues
in this case, i.e., whether Local 26 violated Section
8(b)(l)(A) when it filed internal union charges against
Ball on three separate counts; tried him on each of the
separate three counts; and arrived at a conviction includ-
ing expulsion and fines on each of the three counts, 15
and whether the Newspaper Guild, AFL-CIO, CLC,
violated the same sections of the Act in upholding in
substance the findings, conclusions, and convictions of
the trial board and the disciplinary action imposed by
them.
In view of the fact that separate internal union charges
were filed against Ball on each of the three counts indi-
cated; that he was tried separately by the trial board on
each of the counts: and the trial board made findings and
conclusions with respect to each of the counts, I shall
deal with them in that manner here.
C. The UC Petition-3-UC-105
There is no material dispute in the testimony or evi-
dence concerning the facts leading up to Ball's filing of
the unit clarification petition docketed as Case 3-UC-105
on March 10, 1976, seeking, in essence, to have all em-
ployees bearing a classification of A and B removed
from the unit."6 It is established that as early as 1973
Ball came to the personal conclusion that these classifica-
tions were supervisory and thus those employees should
be excluded from the unit and more specifically should
not be permitted to hold an office with the Local or the
C-E unit. While Ball's petition dealt only with the Buffa-
lo Courier Express, it is evident from Respondent
Local's argument that it feared the import of success of
such petition would similarly affect the BNG unit and
TNG unit. In 1973 Ball attempted to file a UC petition
with the Board's Region 3, in Buffalo, New York, and
was advised that in accordance with Section 102.60(b) of
the Board's Rules and Regulations, as amended, he did
not have the authority to do so since that section pro-
vided that such petition "may be filed by a labor organi-
zation or by an employer."
Having thus failed, Ball then sought to have the Local
or the C-E unit chairman file such a petition, which sug-
gestion was rejected. Ball then attempted to achieve the
same end by the filing of grievances concerning these
positions and the occupants of these positions holding
" Ball was only fined and reprimanded for having attempted to inter-
fere with the Union's conduct of its business by attempting to nominate
208 individuals for 7 positions to the national convention.
16 The petition seeks specifically to include: All editorial department
employees. Excluded: All supervisors, assistant city editors, telegraph edi-
tors, rotrogravure editor, make-up editor, picture editor, slot man, sports
editor, special projects editor, surburban editor, assistant Sunday editor,
food editor, focus editor, chief photographer, assistant sports editor, as-
sistant surburban editor, and assistant telegraph editor.
union offices. This also was without success. Various
union officials attempted to persuade Ball that success of
such an endeavor would deplete the unit strength by ap-
proximately 10 percent thus reducing the income of the
C-E unit, and/or the Local, as well as removing ap-
proximately 10 percent of the employees from the pro-
tection of the collective-bargaining agreement. It appears
also that many occupants of these positions were also op-
posed to such endeavors for the same reasons. And,
indeed, on February 9, 1976, in connection with a con-
troversy between Ball and one of the occupants of these
positions named Bert Nelson, the Guild requested its
counsel, Robert Lipsitz, to write to Ball and advise Ball
of the potential adverse consequences to the Union
should such a petition be successful. In that letter Lipsitz
stated, inter alia:
While you may seek such result, and although I be-
lieve BNG and TNG would resist such result, my
client's view is that such a result would be contrary
to the interest of a great majority of its membership.
Thus, should you trigger such a change of events
by the filing of the charge, at least you should be
aware of the possible consequences and the fact that
they would be adverse to the interest of your fellow
employees ....
However, prior to this time, on June 18, 1975, Ball
wrote directly to the Executive Secretary of the Board
wherein he expressed his belief that these classifications
were Section 2(11) supervisors and should be excluded
from the unit. He briefly outlined his unsuccessful at-
tempts to have this done and expressed the view that
some officers and agents of the Local who came into
those classifications had developed an extreme hostility
toward him and his endeavors. He also advised that
many of the "supervisors" hold key positions in the ad-
ministration of the affairs of Local 26, and are able to
frustrate any attempt to clarify the collective-bargaining
unit. In short, Ball requested the Board to "waive the
rules in this instance and authorize the filing by me of a
unit clarification petition aimed at determining the appro-
priateness of the bargaining unit convered by the work-
ing agreement between Local 26, Buffalo Courier Ex-
press unit and the company, the Buffalo-Courier Express,
Inc."
There is no dispute that throughout the collective-bar-
gaining relationship between the Guild and the Buffalo
Courier Express, all these classifications had been consid-
ered included in the unit. Indeed the employer's chief
labor counsel and negotiator Robert Kopp testified that
for many years he sought to have these classifications ex-
cluded from the unit and to award them supervisory
functions. Kopp testified candidly that his purpose in this
was (1) to reduce the number of employees subject to
the contract which would give the employer more direct
control over them, and (2) in the event of a strike he
would have more employees available to report to work
and continue with the business of the company.17
I? It should be noted that the Courier Express also had collective-bar-
gaining agreements with seven or eight other press-related unions involv-
Continued
396
BUFFALO NEWSPAPER GUILD, LOCAL 26
By letter dated June 24, 1975, the Executive Secretary
of the Board responded to Ball's June 18 letter wherein
he, inter alia, advised Ball that "although supervisors as
defined in the Act are not entitled to the Act's protec-
tion, and, although the Board will not knowingly include
in the collective-bargaining unit individuals who are, in
fact, supervisors, Section 14(a) of the Act makes clear
that supervisory membership in a union is not unlawful.
Similarly, although an employer has no obligation to bar-
gain with respect to the terms and conditions of supervi-
sors, it is not unlawful for an employer and union to in-
clude supervisors in the collective-bargaining unit volun-
tarily."' 8
Ball was also advised that Section 102.60(b) of the
Board's Rules and Regulations provides that "a petition
for clarification of an existing bargaining unit . . . may
be filed by a labor organization or by an employer." The
Executive Secretary, having no authority to waive the
rule which the Board has adopted, suggested that Ball
pursue the matter and bring it to the Board's attention by
filing a unit clarification petition in the Buffalo Regional
Office and, if the petition were dismissed, he might
appeal the Regional Director's action to the Board.
Thus, in short, it appears that the Board waived Sec-
tion 102.60(b) of its Rules and Regulations to permit Ball
to file such a petition.
The record does not disclose precisely why Ball
waited from June 25, 1975, when he received permission
to file the petition until March 10, 1976, when he did file
the petition. It appears that in the meanwhile he was en-
gaged in attempting to resolve the issue as he perceived
it by other means. As was almost inevitable, on March
23, 1976, the Acting Regional Director for Region 3
issued a Decision and Order wherein he dismissed the
petition under the "clear and unambigious language of
Section 102.60(b) of the above quoted Rules and Regula-
tions . ." which as heretofore noted provided that such
petition may be filed only by a labor organization or an
employer.
On March 30 and 31, four members of the Local,
Robert L. Naylor, Robert O. Groves, Martha L. Lane,
and Patricia Swift, prepared and served upon Local 26's
secretary, David G. Stout, formal charges against Wil-
liam Ball alleging violations of the Newspaper Guild's
constitution, article 12, section l(a) and (m).' g Section 2
ing other of its employees. However, it appears that this was the largest
of the units.
"' Sec. 14(a) of the Act provides: "Nothing herein shall prohibit any
individual employed as a supervisor from becoming or remaining a
member of a labor organization, but no employer subject to this Act shall
be compelled to deem individuals as defined herein as supervisors as em-
ployees for the purpose of any law, either national or local, relating to
collective bargaining." The Board also held in Marinette Marine Corpora-
tion. 179 NLRB 627, 629 (1969), that there was no per se 8(bXIXA) vio-
lation for Sec. 2(11) supervisors to hold offices within the union where it
is clear they are selected by the union rather than the employer.
1' Art. 12 of the said constitution deals with discipline of members.
Sec. I thereof provides: "Offense. The following acts are offenses for
which members may be disciplined. (a) Willful violation of this constitu-
tion or the constitution or by-laws of any branch of the TNG, or any
willful action tending to defeat the constitutional purposes of the TNG
. . . (m) acting in any wise to circumvent, defeat or interfere with: (I)
collective bargaining between the Guild and employer; (2) existing col-
lective bargaining agreements."
of said charges deal with the specific acts of Ball and
briefly outlines his endeavors to have a unit determina-
tion resulting in the possible exclusion of 10 percent of
the unit. Item 3 of the charge states:
The charges herein are based upon the efforts of
William Ball, as aforementioned to diminish the bar-
gaining unit at the Courier-Express, efforts, which if
successful, circumvent, defeat and intervene with
the collective bargaining, and also with the existing
bargaining agreement, all in violation of the forego-
ing sections of the Newspaper Guild's constitution.
Notwithstanding the above, nothing in these
charges are intended to prohibit a member from the
lawful and appropriate processes of the NLRB
which, however, were not properly used by Wil-
liam Ball as above set forth.
As heretofore indicated, within a short period of time
two additional internal union charges were filed against
Ball on unrelated matters. On May 25, 26, and 27, 1976,
Ball was brought to trial before, insofar as I can deter-
mine, a duly established trial board under articles 12 and
13 of the Newspaper Guild's constitution and article 9 of
the Buffalo Newspaper Guild bylaws. Although the trial
board received evidence relating to all three charges
during this 3-day period, each charge was isolated, and
evidence relating to that specific charge was independ-
ently considered by the trial board. The trial board,
which it appears is a standing board, was composed of
Robert Buyer, chairman, Mort Carpenter, Kelly Simon,
George Sullivan, and Jackie Tasch. Ball was prosecuted
by one Richard E. Baldwin, a union member. Insofar as
the voluminous transcript of the trial board proceedings
reveal, although not adhering to legal rules of evidence
in all instances and notwithstanding Ball's complaint that
he was denied "a change of venue" and the right to have
an attorney present with him, I find nothing in the tran-
script or the findings of the board to indicate that there
was any lack of due process involving its procedure or
consideration of Ball's contentions. In its findings and de-
cision the trial board again reviewed the facts relating to
Ball's endeavors to have certain classifications excluded
from the unit, which is not in dispute, and concluded in
substance that Ball's argument that the outcome of the
C-E unit clarification would have the effect of strength-
ening the unit; but instead concluded that success of such
petition would have in fact weakened the C-E unit. The
trial board also considered Ball's repeated assertions that
the charges in question herein were the culmination of an
atmosphere of hostility and harassment by the unit and
Local 26 and its officers dating back to 1973 relating to
the previous case before the Board, and found that such
contention would be relevant only if it affected the
credibility of essential evidence. In short, the Board con-
cluded that Ball was guilty as charged and concluded
that "in view of the seriousness of the charges which the
trial board found Mr. Ball guilty, we see no reasonable
alternative to expelling Mr. Ball from the Newspaper
Guild and its Local 26, and so order. We further assess a
fine of $1,125." The trial board findings, conclusions, and
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline in this regard was affirmed by the Newspaper
Guild on July 8, 1976.
Analysis and Conclusions
Prior to addressing briefly the respective arguments of
the Respondent and the General Counsel, it should be
noted that the general rules applicable to union disciplin-
ary proceedings was set forth by the Supreme Court in
Scofield v. N.LR.B., 394 U.S. 423, 430 (1969), wherein
the Court held that a union may enforce by disciplinary
action a properly adopted rule without violating 8(b)(1)
where: The rule "reflects a legitimate union interest"; the
rule "does not impair any statutory labor policy"; the
rule is "reasonably enforced against union members who
are free to leave the union without harming their em-
ployment rights."
It's well settled, as asserted by the General Counsel,
that a union member may be expelled, but not fined, for
initiating a decertification or deauthorization petition.
Blackhawk Tanning Co., Inc., 178 NLRB 208 (1969); Tool
and Die Makers Lodge No. 113, etc. (Midwest American
Dental Divsion of American Hospital Supply Corporation),
207 NLRB 795 (1973). The rationale underlying this per-
mission for disciplinary action against union members is
obvious since such petitions attempt to destroy the union
and permits the union to rid itself of persons being privy
to union plans when they seek to destroy the union by
such activity. However, it is equally clear, based upon
Board and court cases that a union may not retaliate
against a union member for filing unfair labor practice
charges with the Board. See Nash v. Florida Industrial
Commission, 389 U.S. 235 (1967), nor does it appear
under N.LR.B. v. Industrial Union of Marine Shipbuild-
ing Workers of America [United States Lines Co.], 391
U.S. 418 (1968), that action may be taken against union
members for filing unfair labor practice charges without
exhausting internal procedures where the charge con-
cerns a matter beyond the internal affairs of the union.
The General Counsel would urge that the filing of a
UC petition is more analogous to that of an unfair labor
practice charge whereas the Respondent argues that it is
more analogous to that of a decertification petition, be-
cause it tends to undermine and impede the strength and
bargaining power of the union.
In my view I need not reach either of these argu-
ments. While the Respondent Union argued both at the
hearing and in brief with respect to the detrimental effect
that the success of such a petition would have upon the
Local, possibly to the extent of destroying it and certain-
ly making it less effective, such is not the controlling
factor in this case.
Under the unique circumstances of this case, circum-
stances which I do not believe will ever arise again, I
have no alternative under the teachings of Scofield, supra,
but to find and conclude that Local 26, and the Interna-
tional Guild violated Section 8(b)(1)(A) by bringing in-
ternal union charges against William L. Ball; bringing
him to trial on those charges; finding him guilty; expel-
ling him from the Union; and assessing a fine upon him.
As noted, Scofield holds that a union may enforce by dis-
ciplinary action a properly adopted rule without violat-
ing Section 8(bXl) where "the rule does not impair statu-
tory labor policy." The primary statutory labor policy in
the United States is the National Labor Relations Act
and the agency administering that Act is the National
Labor Relations Board. Thus, where the agency adminis-
tering the major statutory labor policy in the United
States expressly grants an individual the right of access
to its procedures for a given proceeding, albeit, in appar-
ent conflict with its own rules and regulations, the grant-
ing of such permission to an individual is, in my view an
extension of the statutory labor policy. Accordingly, it
would be totally unconscionable for the agency to permit
a labor organization to discipline a member in any
manner for engaging in activity which it had expressly
permitted.
Accordingly, I shall order that the fine of S1,125 be
rescinded, that the internal union charges brought against
Ball concerning this matter be likewise rescinded and ex-
punged from all union files, and that Ball be notified of
such action. However, in view of my findings and con-
clusions hereafter with respect to other charges brought
against Ball, I shall not order that Ball be reinstated to
the Union. Cf. Philadelphia Moving Picture Machine Oper-
ators' Union, Local No. 307 v. N.LR.B., 382 F.2d 598 (3d
Cir. 1967); N.LRB. v. Wilson Freight Company, 604
F.2d 712 (Ist Cir. 1979); and Wright Line, a Division of
Wright Line, Inc, 251 NLRB 1083 (1980).
It should be noted in this connection that there is no
reliable evidence of record that the Union ever endeav-
ored to have Ball's employment with the Courier Ex-
press affected nor is there any reliable evidence that it
failed or threatened to fail to continue to represent Ball.
Notwithstanding Ball's testimony that, during a recess of
the trial board hearings, two members of the trial board
told him that they would oppose the Union's continued
representation of him in the event he were expelled from
the Union.
D. Charges Relating to the Alleged Disruption of
Intraunion Processes on April 8 by Ball
The charge and trial of Ball with respect to this event
arises out of Ball's endeavor to submit into nomination
208 names for 7 delegates to attend the national conven-
tion along with "slates" which Ball attached to the
names, some of which appear to be derogatory. While
there are as many versions of what transpired at the
April 8 union meeting wherein these nominations were
made, as there were witnesses who testified with respect
thereto, there is little if any essential dispute with respect
to the substance of the charges filed against Ball. The es-
sence of Ball's conduct as relating to the charges con-
cerns his endeavor to submit into nomination the names
of 208 nominees for 7 delegates to the national conven-
tion the two most of which he had attached a "slate"
and most of which may reasonably be interpreted as de-
rogatory in nature.
Ball testified that on April 1, he mailed a copy of his
proposed nominees and their "slates" to Local 26's secre-
tary, David G. Stout.2 0
'O Stout denies having received a copy of these proposed nominations
prior to April 8.
398
BUFFALO NEWSPAPER GUILD, LOCAL 26
Ball, who had been elected to the Local executive
committee taking office on April 1, 1976, attended the
executive committee meeting preceding the regular union
meeting during which nominations for delegates to the
national convention were to be made as well as the con-
duct of other business. While there is some testimonial
conflict as to precisely what occurred, as heretofore
noted, because of Ball's intensely obsessive involvement
with the Union and his equivocal testimony concerning
these events, I find his version to be unreliable when in
conflict with other testimony which I credit.
Be that as it may, several items of business were dis-
cussed at the executive committee meeting and Ball
stated that he had a number of nominations that he
wanted to make for delegates to the national convention.
It appears that Ball would be unable to attend the entire
regular union meeting due to a conflict with his work
schedule. However, it appears that Ball did remain for a
portion of the meeting wherein he requested that the
order of business be changed so that he may submit his
nominees for the international convention. This motion
was denied and Ball was advised that he might get any
qualified number in attendance at the meeting to make
the nominations on his behalf. At this point, I am con-
vinced and find that the officers of the Union had no
idea as to the number of nominees Ball intended to place
in nomination and/or the slates, most of which are unsa-
vory, attached thereto. Be that as it may, it appears that
Ball left the list of 208 nominees with the accompanying
slates with Cliff Preisigke and a copy also with Kenneth
Kostolecki.
As heretofore noted there are as many versions of the
sequence of events occurring at the April 8 meeting as
there were witnesses in attendance, albeit, some versions
are reconcilable, I find that the minutes of that meeting
as prepared by the Local secretary, David Stout, to be
more reliable as an indicia of the sequence of events oc-
curring at the meeting. It appears that these minutes
were prepared simultaneously or at least from the notes
simultaneously made by Stout as the Local secretary.
Moreover, in that position Stout would have a greater
responsibility to observe and record the sequence of
events as they occurred. Based upon those minutes,
much of which are not in irreconcilable conflict with a
consensus of many other witnesses, it appears that the
meeting was called to order at 8 p.m., and a number of
items, not particularly pertinent here, were disposed of,
including unit reports from the chairman of the C-E
unit, the TNG unit and the BNG unit. Among the deci-
sions made at that meeting was that Local 26 would send
seven delegates to the TNG convention in Washington,
at which point the floor was opened for nominations to
that convention.
From these minutes it appears that one individual
nominated five individuals, three of whom were officers
of the Union, to be delegates to the convention, and
three other individuals made one nomination each. At
this point Cliff Preisigke arose and commenced reading
from the list of names which Ball had left with him for
nomination to the convention. It appears that Preisigke
did not include in his reading of the names the "slates"
that had been attached thereto by Ball. However, several
of the nominees which Preisigke read had already been
nominated, and others who had not, rose to withdraw
their names from nomination. It appears also that there
was a motion by a member "Roth" that Preisigke be re-
quired to get written acknowledgement from people who
were on the list as to whether they would run. This
motion was ruled out of order.
Patricia Swift withdrew her name from the list and
called the list read by Preisigke bearing Ball's signature
"one more attempt by Mr. Ball to obstruct the election
of this local." Others then withdrew their names and
after a point,2 ' Ray Hill made the statement that he and
Patricia Swift would bring trial board charges against
Preisigke on the grounds people on the list were not
asked if they wanted to run; "that the nominations are
facetious; that they are tying up the Local."
After this "rhubarb," as described by Preisigke, he re-
quested permission to withdraw the nominees. However,
the presiding officer, Paul MacClennan, was unsure
whether or not he could do so once the nominations
were made, telephoned the Local's counsel, Robert Lip-
sitz. Apparently Lipsitz advised MacClennan that there
were no barriers to withdrawing nominations of his own
free will if he wished to do so since it was reported to
Lipsitz that Preisigke was unaware of certain remarks
printed next to the names on the list he had gotten from
Ball and that he had no desire to be facetious. MacClen-
nan then permitted the list to be withdrawn. Several
other nominations were then made and no one present
declined.
While the minutes of the April 8 meeting do not re-
flect the fact, there is substantial testimony that the list of
names given to Preisigke was given to Stout who then
read the entire list of names along with the "slates" at-
tached thereto by Ball to the entire membership, which
appeared to cause a great deal of "anger," "resentment,"
and "humor." Thereafter other business was conducted
by the Local and the minutes of the meeting indicate
that the meeting was adjourned at 11 p.m.
It is true, as argued by the counsel for the General
Counsel, that neither the Guild constitution nor the
bylaws limit the number of nominees that any member
may make for any position or positions for which nomi-
nations are open. However, one must conclude that the
failure to so limit does not provide a license to any indi-
vidual member to make this unreasonable number of
nominations, and presumes that members will make
nominations in a serious manner and in a manner de-
signed to not unduly impede the orderly process of the
Union's business.
It appears that under the bylaws of the Local, all
nominations for delegates to the national convention as
well as other officers for positions in the Union must be
made by a member in good standing from the floor. If
the member nominated is not in attendance at the meet-
ing, that member is contacted generally by the office sec-
retary or some other union official to ascertain if the
member wishes to remain in nomination. There is no re-
2' It is unclear as to how many names Preisigke read from the list
before the "turmoil commenced which resulted in a total disruption of
the meeting"
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quirement that a person desiring to nominate an individu-
al obtain the individual's permission in advance, which is
probably the reason Roth's motion that Preisigke be re-
quired to get written acknowledegment from people on
the list was ruled out of order. Ball admitted that he had
only spoken with about three of the nominees which he
had placed into nomination; however, as noted, there is
no requirement that he did so. In this regard it might
also be noted that, at another nominating convention,
Ball was permitted to place into nomination some 24
names, however, it does not appear that derogatory
slates were attached thereto.
In my opinion, the Union had a legitimate interest in
enacting in its constitution article 12, section 3(c), con-
cerning "willful action tending to defeat or impede activ-
ities of TNG or any of its branches and in furtherance of
the constitutional purposes of TNG. Thus, the question
here in my view is whether or not Ball's activities in at-
tempting to nominate 208 individuals (approxiamtely 40
percent of the entire unit), along with many derogatory
slate names which would likely have a tendency to cause
defection and resentment among the members, was a
willful intent to interfere with and impede the orderly
process of the Union's business sought to be protected by
article 12(3)(c) of the TNG constitution.
Although not limited by the constitution or bylaws as
to the number of nominees an individual member might
make, in my view, the mere endeavor of a member to
nominate 208 individuals, along with slate names which
are at best not complimentary, is close to a per se willful
endeavor to impede the orderly process of the Union's
business. In this particular instance, this conclusion is
bolstered by Ball's testimony concerning his reasons for
so doing. First, he testified that he wanted to generate
greater interest in the Union and obtain better attendance
at union meetings. I fail to see how this facetious endeav-
or could achieve that end; but, would rather more likely
have the effect of obtaining the adverse result. Secondly,
Ball testified that he sought, by submitting this number
of nominees, to have "the entrenched leadership" ousted
from office. Again, these nominations were for delegates
to the national convention which could have at least a
minimal impact on achieving the goal Ball says that he
sought to achieve. Ball also testified that he endeavored
to make these nominations and the slate names so they
would not "have an isolated view," however, he could
not explain how attaching slate names to the nominees,
many of which he had bitterly opposed and many of
which he had sought to have excluded from the unit,
could achieve this result. Finally, after testifying that the
slate names attached to the nominees had no significant
meaning, Ball admitted that many of them did. 22 As
noted, Ball ultimately admitted that the slates he at-
tached to these names could have had some hidden
meaning.
22 Without attempting to exhaust the numerous slate names attached to
various names which Ball attempted to have nominated on November 8,
there are slates such as "womans slate"; "play slate"; "company slate";
"closed door slate"; ".38 slate"; "secrecy slate"; "date slate"; "me to
slate"; "adjourned now slate"; "boy slate"; "girl slate"; "blond slate";
"Shirley Temple slate"; "burn the boat slate"; "rock the boat slate";
"Sally slate"; "committee slate"; "Mr. nice guy slate"; "underdog slate";
and the "limey slate."
The Respondent argues at great length concerning the
amount of time and the money that would be involved in
contacting each of the 208 nominees by Ball, had they
not been withdrawn by Preisigke. I do not need to reach
that argument. Nor do I find that the threat of Hill and
Swift at the meeting to bring charges against Preisigke,
under the circumstances here; for it appears that at that
time they did not know whether or not Preisigke was
acting in concert with Ball or was merely an innocent
tool of Ball to violate Section 8(b)(1)(A) of the Act as
alleged by the General Counsel.
As noted, Patricia Swift and Raymond Hill filed
charges under article 12, section (l)(c) of the Newspaper
Guild's constitution which I find is an appropriate sec-
tion for the charges to be brought in this instance. Ball
does not deny, and did not deny at the trial board pro-
ceedings, his having attempted to place such names into
nomination nor, indeed, does it appear that he was not
aware of, or intended that it would create, an impedi-
ment to the Union's orderly process of business to have
to consider all of the names he had submitted into nomi-
nation. It appears that at the trial board proceedings
Ball's sole defense in this regard was that the order
issued by the Board in 1975 in connection with the pre-
vious case precluded the Union from bringing intraunion
charges against him. The trial board, as I do, found this
argument does not have merit, for the Board's order
there did not give Ball immunity to flaunt union rules
with impuniuty. Thus the rule here in issue, and for
which Ball was tried, is one of legitimate union interest
which was deliberately flaunted by Ball, and I find that
the trial board's finding Ball guilty on this charge and
determining that he should be reprimanded for this
action and fining him $250 to be warranted. Upon Ball's
appeal to the TNG, the TNG rescinded the $250 fine im-
posed upon Ball on the basis of this charge but left intact
the reprimand. Since the TNG has rescinded the $250
fine, I need not consider that at this point. I uphold the
reprimand issued to Ball for his actions in this regard and
find that the Respondent did not violate Section
8(b)(1)(A).
See United Brotherhood of Carpenters, and Joiners of
America, Local 1913, et al., 189 NLRB 521 (1971),
wherein the Board upheld the reprimand imposed upon a
member for asserting Section 7 rights in the hiring hall
which disrupted the hall's operation. The Board held
that the union had an important interest to protect the
orderly operation of the hall. Therefore the fine was
upheld.
E. Charges, Trial, and Discipline Relating to Ball's
Alleged Unauthorized Filing of Charge with the
EEOC Against the Buffalo Courier Express
The internal union charges, the trial board proceed-
ings, and the disciplinary action taken against Ball for
filing these charges with EEOC raises by far the closest
question in this case. As heretofore indicated, from ap-
proximately September 1975 until sometime in the spring
of 1976, Ball was the C-E unit grievance chairman, an
appointed position. As noted in connection with the dis-
cussion concerning Ball's credibility, it appears that at a
400
BUFFALO NEWSPAPER GUILD, LOCAL 26
November 8 executive committee or union meeting,
there was some discussion concerning certain environ-
mental conditions existing in certain areas of the Buffalo
Courier Express, and it would appear from that discus-
sion that Ball was authorized to investigate the various
Federal and state agencies which might be of assistance
in solving the perceived problems should they not be
able to resolve them under the contractual provisions
with the Courier Express. However, it appears that this
is the extent to which the membership or the officers au-
thorized Ball to proceed as grievance committee chair-
man at that time.23
Be that as it may, on January 20, 1976, Ball typed and
apparently hand-delivered a charge to the United States
Equal Employment Opportunity Commission, alleging
that Buffalo Courier Express, Inc., was engaging in
racial, religious, and sexual discrimination. In that
charge, under the caption of person filing charge, Ball
listed himself as grievance committee chairman, Local 26
BNG, Courier Express unit.
In explanation of the alleged discrimination in that
document Ball stated:
That the Buffalo Courier-Express is discriminating
against employees in regard to hire and promotion
because of their race or color, religious creed and
sex. Women, blacks, black women, Jews, and other
minority race members are systematically being
denied promotions or consideration for promotions,
assignment to specific jobs, consideration for specif-
ic job duties including elevation to submanagement
or management positions solely because of their
being members of the aforementioned minority
groups.
The EEOC referenced this charge as "TBU6-0271, and
the acting district director that date sent to Ball a letter
noting that he should file the charge with the New York
State Division of Human Rights, and forwarded the
charge to them and enclosing information for persons
filing charges with the U.S. Equal Employment Oppor-
tunity Commission and noting the requirement that prior
to investigation by the EEOC it must be deferred to the
State of New York Human Rights Division.
By letter dated January 22, Ball was advised by the
Division of Human Rights of the State of New York that
the EEOC had referred his civil rights charge filed
under the 1964 act which conferred jurisdiction upon the
New York State Human Rights Division and instructed
him to refer correspondence to the attention of a stated
individual.
I believe it is unnecessary here to go into great detail
of "the synopsis" of the basis of the charge which Ball
submitted on January 29, to the State Division of Human
Rights; however, it dealt generally with the contention
that the employer was engaging in anti-Semitism because
of the lack of visibility of different religious groups and
's As noted in the above discussion concerning Ball's credibility, I
have found that the several writings spanning November 8 through Janu-
ary 3, 1976, were all Ball's writings intended to gradually enlarge upon
what had been agreed upon at the November 8 meeting and thus cloak
him with color of authority to file charges directly with any state or Fed-
eral agency.
the asserted endeavor by the Company to ascertain the
religious affiliation of wide segments of the population.
In this regard he specifically addressed two issues which
he contended demonstrated this type of discrimination;
one dealt with a former employee by the name of Staun-
ton Samuelson who had left the Courier Express and the
other with an employee named Harlan Abbey.
In this "synopsis" Ball contended that Samuelson had
expressed to him on numerous occasions the conviction
that he was not promoted or given an opportunity for
advancement because of his being a Jew and that Abbey
had likewise expressed his feelings that he was a victim
of religious discrimination and had no chance for ad-
vancement.
Ball then dealt with other areas of his alleged discrimi-
nation charge which again was general in nature and ex-
pressed the concern that some departments seem tailored
to accommodate women, and in those departments
women had opportunities for advancement and contend-
ed that the mere setting aside of these departments for
women made them a "virtually exclusive domain of
women." He enumerated a number of other specific
cases which he contended he had received complaints
about.
Be that as it may, it was not until March 25, 1976, that
Ball was advised by the EEOC that his charge, pursuant
to the requirement of Federal law, was being sent to the
employer against whom the discrimination charge was
filed. It should be noted in this regard that neither the
employer, the Buffalo Courier Express, nor the Union
were served with charges which Ball had filed against
the Courier Express in January.
Ball's testimony, notwithstanding the statements made
by him in his statement of "specifics" filed with the New
York State Division of Human Rights on January 29,
1976, reveals that not more than two employees had ex-
pressed to him the view that they were being discrimi-
nated against by the Courier Express, and one of those, it
appears, had been remedied through the grievance pro-
cedure. Consequently, as demonstrated by the document
itself, most of Ball's assertions, or examples, of discrimi-
nation were based upon his own observations, as he per-
ceived them and not upon any factual or statistical reali-
ty.
Upon receipt of the March 25 notice sent to it by the
EEOC commission, the general manager of the Buffalo
Courier Express telephoned the C-E unit chairman con-
cerning the filing of such charges and apparently ex-
pressed the view that such filing by the Union demon-
strated the Union's lack of good faith and could seriously
jeopardize the collective-bargaining relationship existing
between the Local and the Courier Express. Indeed, it
appears that he threatened to refuse to proceed with the
resolution of any more grievances until the matter was
disposed of satisfactorily.
The C-E unit chairman then telephoned Local 26
president, Paul MacClennan, who also was unaware of
any charges filed with the EEOC on behalf of the
Union, and apparently relayed the position of the Couri-
er Express with respect to such filing.
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the record is not entirely clear as to what tran-
spired, it is clear that MacClennan, or some other union
official, conveyed to the EEOC, and probably the New
York State Divsion of Human Rights, that the Union
was not the charging party in that case and wanted no
part in the continued prosecution of the case. Shortly
thereafter, Ball was notified by the EEOC that the case
was being adminstratively closed for this reason.
It appears from the record that the unauthorized, and
apparently reckless, filing of these charges with the
EEOC against the Buffalo Courier Express at this partic-
ular time placed a strain upon the relationship between
the Union and the Company, for at that time they were
having biweekly meetings in an attempt to dispose of the
substantial backlog of grievances, and due to the asserted
financial position of the Courier, which was latter veri-
fied by independent auditors of the Local, consideration
of whether or not to waive the contractual wage in-
crease due at or about that time. In addition, it appears
that about this time the continued existence of Local 26,
as an entity, was being jeopardized, in part because of
the large amount of time spent at the monthly union
meetings in discussing and disposing of Ball related com-
plaints and other activities which included grievance fil-
ings and demands for arbitrations which occasioned a
greater expense on the Local. The record discloses that
the BNG unit, the second largest unit in the Local, had
commenced, or had at least threatened to commence,
action to disassociate itself from the C-E unit and
become an autonomous entity.
On April 6 and 8, eight union members filed internal
union charges against Ball, and served them upon David
Stout, secretary of the Local,2 4 alleging in substance that
Ball had violated article 12, sections l(a)(c) and (m), of
the Newspaper Guild's constitution. 25 The substance of
the charges is simple; that Ball had as unit grievance-
committee chairman filed the EEOC charges against the
Buffalo Courier Express "without regard to whether or
not the allegations and the charges are truthful, and the
Buffalo Courier Express has in fact discriminated as al-
leged in those charges." It asserts that Ball was never au-
thorized to file such charges in the name of the Union
and that in so doing he was in willfil violation of the
constitutional provisions cited above. Item 40 of the
charge, as with that involving the filing of the UC peti-
tion advised Ball that:
24 The complaint alleges only that the charges filed by Robert Wal-
burn and Richard Haynes; however, it appears that E. Kelly, A. Lowry,
M. Hiltzik, W. Cook, D. Smith, and R. Beer, also joined in filing the
charges against Ball.
2' See fn. 19 for the contents of art. 12, sec. l(a) and (m). Sec. I(c) of
that article reads:
Disobeying and failing to comply with any lawful decision or order
of TNG or of any body with jurisdiction over the member, or any
willful actions tending to defeat or impede activities of the TNG or
any of its branches in furtherance of the constitutional purposes of
TNG.
Nothwithstanding the above, nothing in these charges are intended
to prohibit a member from the use of the processes of the EEOC in
his own individual capacity. The false representation to that agency
that he had authority of the Buffalo Newspaper Guild to use these
processes and that he spoke for the Buffalo Newspaper Guild are the
acts which are involved in this charge.
About this time Ball was removed as chairman of the
grievance committee for the C-E unit and by letter, on
at least two occasions, Local President MacClennan
wrote Ball requesting Ball to return to him all documents
or materials relating to the EEOC suit and also docu-
ments and materials relating to C-E grievances pending
during Ball's tenure as C-E grievance committee chair-
man. It is undisputed that Ball failed to comply with this
request.
As heretofore noted, a close scrutiny of the volumi-
nous verbatim record of the trial board proceedings and
the decision of the trial board relating to this and the
other charges, failed to disclose any lack of due process
to which Ball was entitled. It appears that in connection
with this particular charge, the trial board considered
only evidence relevant to this charge and did not consid-
er irrelevant or immaterial evidence.
At the hearing herein, Ball contended that the trial
board refused to continue the case when he pleaded that
he was fatigued and needed to rest, and that it refused to
accept into evidence exhibits which he proffered, which
appears to be the General Counsel's Exhs. 6(a) 7, 8, 9,
and 10. However, it also appears from Ball's testimony
that at the conclusion of the trial he did present these
documents to Robert Buyer, the chairman of the board,
and requested that they may be made a part of the
record. Buyer denies that Ball presented any additional
exhibits or that he attempted to do so and there was tes-
timony that the exhibit file, which apparently had been
retained by the TNG in Washington and been examined,
did not contain these documents.
As heretofore noted, in my view those documents
taken at face value would not confer upon Ball the au-
thority to act for the Local or the National Guild in
filing charges of this nature with the EEOC. Indeed, as
noted above, there is more than "some" evidence tending
to indicate that the documents may have been prepared
by Ball as an afterthought to cloak himself with the
color of authority to so act. On the other hand, it is evi-
dent from the alleged letters, again assuming the validity
of the documents, dated November 22 to MacClennan
and January 3, 1976, to Stout, both of whom deny re-
ceipt of any such letters, that Ball did not believe himself
to be empowered to go directly to EEOC on behalf of
the Guild. Therein, he is clearly seeking "an authorita-
tive statement" concerning the extent of this authority in
that regard. Ball does not contend, except by the motion
that he alleges was adopted on November 8, 1975, to
have ever received any specific permission to act for
Local 26 or the C-E unit with respect to filing charges
with Federal or state agencies.
Before me, the General Counsel urged that Ball should
not be held responsible for what EEOC placed on the
complaint, to wit: that it was filed by Ball as chairman of
the grievance committee of the Courier Express unit.
Ball, it appears, made the same contention to the trial
board during that proceeding. Ball himself, by the cap-
tion he placed on the charge he filed with EEOC to wit,
chairman of the grievance committee of the Buffalo Cou-
rier Express, clearly indicated that he was purporting to
file the charges on behalf of said Union and was respon-
402
BUFFALO NEWSPAPER GUILD, LOCAL 26
sible for the interpretation period thereon by EEOC.
Thus, such defense is clearly facetious and without merit.
In short, the trial board found Ball guilty of violations
of article 12, sections l(a) and (c), of the TNG constitu-
tion for which it imposed the penalty of expulsion from
the Newspaper Guild and assessed a fine of S1,125. With
respect to the charge under article 12, section l(m), the
trial board found that while Ball's unauthorized filing of
the EEOC discrimination suit against the Courier Ex-
press did cause considerable anguish during a delicate
period of negotiations with management on grievance
matters and ongoing contract negotations, the incident
did not seriously impair those discussions since the Local
president intervened quickly to quash the discrimination
suit. Accordingly, it acquitted Ball on that particular
charge.
Analysis and Conclusions
It appears that counsel for the General Counsel and
the Respondent's counsel agree that there are no Board
or court cases directly on point with the issue presented
here. While not taking issue with the Respondent's con-
tention that only the Guild could authorize charges of
any type to be filed with state or Federal agencies in the
name of the Union, counsel for the General Counsel con-
tends that Ball was so authorized at the November 8,
1975, meeting. I have found above that Ball received no
such authorization at that meeting or at any other time.
This finding, as I have noted above, is bolstered by Ball's
November 22, 1975, letter to MacClennan and the Janu-
ary 3, 1976, letter to Stout, where he appeared to be
seeking such authority.2 6 The General Counsel appears
to argue that even if Ball had not been given such au-
thority, the internal union charges, trial, and conviction
of Ball pertaining thereto was motivated, not by his
having exceeded his authority in that respect, but in re-
taliation for his dissident conduct toward the "en-
trenched leadership," and his many other activities
which were protected and concerted and therefore
within the protection of Section 7 of the Act. In addition
thereto, he further contends that this action was taken to
prevent Ball from taking the seat on the executive com-
mittee to which he had been recently elected.
In support of his contention that the Local's action
was thus motivated, he points to the 8(bXIXA) violations
found in the previous Board case and the complaint alle-
gations in the instant case which would demonstrate
animus toward Ball,27 as well as quoting extensively
from numerous publications of the "Frontier Reporter,"
the official monthly publication of the Local, designed to
keep the membership advised of the Local's activities
" This is assuming the validity of such correspondence. As I have in-
dicated. I have grave doubts that these letters were written and mailed as
testified to by Ball, as I have doubts about Ball's November 8 motion,
and the subsequent notices to employees prepared by Ball and allegedly
posted on the bulletin boards, asserting that he had been given such au-
thority.
" As found above in sec. 11,B of this Decision dealing with credibil-
ity resolutions, and for the reasons stated therein, the General Counsel
has failed to persuade me that the testimony of his three witnesses was
reliable, and, accordingly. I will recommend that the complaint be dis-
missed with respect to all allegations not specifically found herein to be
violations of the Act.
and articles relating to Ball and his various union activi-
ties. As might be expected, there were many such arti-
cles dealing with Ball and his various activities relating
to the Union and the membership, for he was undoubted-
ly the most active member of the Union. I have re-
viewed these quotes and find that they are accurate ac-
counts of Ball's activities. While most of the articles gen-
erally recite the official union position to be contrary to
Ball's activities, I find nothing therein to convince me
that these articles are sufficient to demonstrate animus
against Ball.
As repeatedly stated above, there is no doubt that the
Local and C-E officers, as well as many members, re-
sented Ball's activities and felt that many of them consti-
tuted an undue interference with the administration of
the contract as well as the orderly conduct of other
union business.2' Thus, the conclusion is warranted that
it welcomed the opportunity to get Ball out of the
Union. The question here, as in Klate Holt Company, 161
NLRB 1606 (1966), is whether Ball gave them a legiti-
mate reason to expel him from the Union and that they
did so for that reason, or whether they merely seized
upon that activity to expel him for engaging in protected
concerted activities and attempting to form a dissident
group to oust the entrenched leadership.
The Respondent does not take issue with the General
Counsel's argument that the filing of charges by individ-
uals relating to discrimination in their employment with
various Federal and state agencies is protected concerted
activity and neither the employer nor the Union may dis-
cipline him for it. However, the Respondent contends
that an individual loses that protection when he files
such charges in the name of an entity, in this case the
Guild, after consultation with legal counsel. Here, there
is no dispute that there was such requirement.
The facts here must be analyzed and tested under the
guidelines and teachings of the Supreme Court in Sco-
field, supra, wherein it held that a union may enforce dis-
ciplinary action against a member for violations of its
rules where it meets the four tests set forth there:
I. Was the rule properly adopted?
There is no evidence that the rule requiring Guild ap-
proval, after consultation with legal counsel, before filing
charges or taking other action involving state and Feder-
al agencies was not properly adopted, and the General
Counsel does not contend otherwise.
2. Does the rule reflect a legitimate union interest?
As stated above, in my opinion this rule reflected a le-
gitimate union interest in that as a labor organization it
had a legitimate interest in prohibiting its members from
filing charges with various agencies in the name of the
Union and without its express approval. A union, as an
entity, may not agree with the views of an individual,
but that individual is certainly free to file charges in his
own name. Any action this rule prohibits has the poten-
a8 As noted, it is not disputed that the BNG unit was seriously consid-
ering severing from Local 26 and becoming autonomous because of the
time and expense Bail's activities were incurring on the Local.
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tial of interfering with its collective bargaining, the ad-
ministration of its contracts, and incurring of legal ex-
penses. The above are only examples of the many legiti-
mate interests a rule of this type serves.
3. Does the rule impair any statutory labor policy?
I can perceive of no statutory labor policy impaired by
this rule since it does not restrain any individual from
taking any action he wishes in his own name. It does not
attempt to impair an individual from filing charges on his
own behalf, or on behalf of others, even against the
Union, the Employer or other persons, including charges
that the Union failed to fairly represent him or other em-
ployees.
4. Is the rule reasonably enforced against members
who are free to leave the union without harming
their employment rights?
In my view, in this case the rule was reasonably en-
forced against Ball and the General Counsel presented
no evidence that Ball was not free to leave the Union
and escape application of the rule without harming his
employment rights. Here it is evident that Ball knew he
had no authority to involve the union in any EEOC
charges against the employer based upon Ball's per-
ceived violations of the Act and that he attempted to
give himself a color of authority to do so by his own
writings. It should be noted that Ball subsequently filed a
similar charge with EEOC in his own name and no
action was taken or threatened against him.
The General Counsel cites Alleluia Cushion Co., Inc.,
221 NLRB 999 (1975), for the proposition that the filing
of an EEOC complaint (there OSHA) is protected con-
certed activity. I find no fault with that citation, for
there the charge was filed in the individual's name. He
appears to contend that the activity Ball was engaged in
was outside of interal union affairs; apparently relying
upon N.L.R.B. v. Union of Marine Shipbuilding Workers
of America [United States Lines Co.], 391 U.S. 418 (1968).
In that case the Court held that action may not be taken
against a union member for filing an ULP charge with-
out exhausting internal union procedures where the
charge concerns a matter beyond the internal affairs of
the union. I believe that case inapposite here. Here Ball's
filing of the charge with EEOC is outside internal union
affairs, and the rule sought to be enforced does not seek
to prohibit such. However the evil sought to be prohibit-
ed by the rule is certainly an internal union affair.
The Respondent cites N.LR.B. v. International Broth-
erhood of Boilermakers, etc., AFL-CIO, 581 F.2d 473 (5th
Cir. 1978). That case also appears to be inapposite. There
a union steward was removed from his position for filing
a ULP charge without exhausting internal procedures as
required by the union's constitution. The Board found an
8(b)(1) violation. However, the court refused to enforce,
holding that the union had a right to demand support of
its procedures by its officials.
In N.LR.B. v. Wilson Freight Company, 604 F.2d 712
(Ist Cir. 1979), the Board found that the respondent vio-
lated Section 8(aX1), (3), and (4) when it fired a shop
steward for making complaints to outside agencies in
excess of his authority as described in the contract and
for voiding the employer's bid sheets for driving assign-
ments. The respondent had warned the steward about
making complaints to outside agencies. The court of ap-
peals stated that such warnings did not constitute evi-
dence of animus since the steward was limited to his ac-
tions by the contract. However, the discharge for void-
ing the employer's bid sheets was upheld under the test
established by the Board in Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980).
The usual disciplinary action against a union official
for acting beyond, or outside, the scope of his office, or
failing to adhere to internal union procedure, which the
Board and courts have usually sanctioned, is removal
from that office so that the member will no longer have
the opportunity to abuse his authority, and on some oc-
casions a fine. See N.L.R.B. v. Wilson, supra, and
N.LR.B. v. Boilermakers, supra, wherein it was stated
that expulsion of an officer for failing to follow internal
union procedures would not be acceptable.
As suggested by the cases cited to me by the General
Counsel and the Respondent in their lengthy and well-
prepared briefs, and as indicated by my own research,
there does not appear to be any Board or court prece-
dent based upon facts similar to those here. Scofield,
supra, sets forth the four tests applicable and which must
be met for the union to enforce compliance with its rules
by any disciplinary action. The mere fact that the tests in
Scofield are met does not permit a union to expel a
member for any and every rule violations as suggested
by the Respondent.
Expulsion from the brotherhood of union membership
accompanied by the assessment of a fine is the ultimate
penalty a union may impose upon a member, and even
then it cannot affect that member's employment status
and must continue to fairly represent that expelled
member as is its statutory obligation. The parties have
cited me but few guidelines, and in the Board and Court
cases I have researched, I have found but few.
In Boilermakers, supra, the court held that the union
had a right to demand support of its procedures and
rules by its officers, apparently, whether elected or ap-
pointed, thus, indicating a greater duty on the part of
such officers to comply with its rules and procedures
than from a nonoffice member. In this case Ball was an
appointed official of the Union at relevants times. It fol-
lows that the first query should be whether the rules or
procedural violation was done knowingly and willfully
or inadvertently mistakenly. In this case I have found
that Ball filed the EEOC charge in the name of the
Union knowingly and willfully in violation of the Guild
constitution and the requirement that Guild approval be
obtained after consultation with legal counsel.
In regard to the above, I have found that the act was
not only done knowingly and willfully, but that Ball,
through his own writings, 29 attempted to cloak himself
with a color of authority to do so, which in my view
makes even more grievous his conduct.
29 Particularly G.C. Exhs. 6(a), 7, 8, 9, and 10.
404
BUFFALO NEWSPAPER GUILD, LOCAL 26
A second query is, did the member or officer know, or
have reason to suspect, that his conduct in violation of
his union's rules had the potential of having an adverse
impact upon the union membership and the union's abili-
ty to bargain collectively or administer a collective-bar-
gaining agreement? Here, Ball as grievance chairman,
was aware that the Employer and the Union were meet-
ing biweekly in an effort to resolve a backlog of griev-
ances and that there were negotiations over waiving the
contractual wage increase due about the time because of
the Employer's financial condition. In my opinion, Ball
had every reason to know or suspect that the filing of
such charges in the name of the Union, making allega-
tions, some of which it appears had already been
grieved, and others which had not been grieved or even
brought to the attention of the Employer or the Union,
would have an adverse impact upon the union-employer
relationship and therefore, upon the union membership.
A third query, although in my view, not essential, is,
did the member or officer have an alternative avenue to
seek the ends sought to be achieved without violating his
union's rules? Here it is evident that Ball had an alterna-
tive avenue to bring to the attention of EEOC matters
which he deemed to be discrimination at the Courier Ex-
press, for he was absolutely free to file such a charge as
an individual. The only thing he could not have accom-
plished in this manner is to have involved the Union and
the resulting impact upon the relationship between the
Union and the Employer.
Considering the foregoing, I find that Ball's conduct
here is the type of conduct for which a union member
may be fined and expelled. While Ball may have been
acting in what he perceived to be the interest of the unit
members, it is clear that he knowingly and willfully
acted in violation of his Union's rules with a reckless dis-
regard for the probable consequences of his act. Much as
his attempt to introduce into nomination the 208 names
on November 8, 1975, was a knowing and willful en-
deavor to impede the orderly processes of the Union. I
am convinced that his conduct here had much the same
purpose.
Accordingly, Local 26 did not violate Section
8(bXIXA) when it instituted internal union charges
against Ball for filing the EEOC charge in the name of
the Union; bringing him to trial before a duly designated
trial board and, insofar as I can determine, awarding him
due process throughout; determining that he was guilty
of violating two of the three constitutional provisions
upon which he was tried; and expelling him from union
membership. However, as to the fine of $1,125 assessed
against Ball, there is testimony that a trial board member
read a statement or proposed that the fines to be assessed
be based upon dues the Union would expect to collect
from Ball in the future. There is no evidence that the
trial board utilized this formula in determining the
amount of the fines. However, there is no evidence as to
what formula, if any, was used. Thus, this is the best evi-
dence before me and I shall assume it was the formula
used. The fine must be rescinded for the Board has held
that a union may not collect dues from an expelled
member, McGraw Edison Company, Food Equipment Divi-
sion, 181 NLRB 992 (1970). Since a union is barred from
collecting dues from expelled members, although it must
continue to represent them, it follows that fines measured
by future expected dues is an attempt by a union to col-
lect by way of fines that which it is barred from doing;
i.e., collecting dues. New York Telephone Company, 211
NLRB 114 (1974). Accordingly, I need not consider the
reasonableness of the fine.
CONCLUSIONS OF LAW
1. The jurisdiction of the Board is properly asserted in
this proceeding.
2. By filing internal union charges alleging violations
of certain provisions of the Guild constitution; bringing
William L. Ball to trial on those charges before an inter-
nal union trial board; finding him guilty of the charges;
ordering him expelled from the Union; assessing a fine of
$1,125 against Ball, based upon the fact that Ball had on
or about March 10, 1975, with the express permission of
the Board, filed a petition in Case 3-UC-105; assessing a
fine of $1,125 against Ball measured by a formula based
upon future expected dues after it had lawfully expelled
him from union membership; the Respondent, The Buffa-
lo Newspaper Guild, Local 26, has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(b)IXA) and Section 2(6) and (7) of the Act.
3. By affirming the above acts of the Buffalo Newspa-
per Guild, Local 26, based upon a proper appeal of the
above conduct, The Newspaper Guild, AFL-CIO-CLC,
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(bX1XA) and Section
2(6) and (7) of the Act.
4. The Respondent or Respondents have not otherwise
violated the Act.
THE REMEDY
Having found that the Respondents herein are guilty
of violating Section 8(bXIXA) of the Act, they shall be
ordered, jointly and severally, to cease and desist there-
from, and from any other unfair labor practices, and to
take certain affirmative actions designed to effectuate the
purposes and policies of the Act. Such affirmative action
shall include the posting of the usual informational notice
to members attached hereto as "Appendix" in accord-
ance with the section of this Decision entitled
"ORDER." The Respondents shall further expunge from
its records the charges; trial board proceedings and the
trial board decision relating to William L. Balls' filing of
the petition in Case 3-UC-105, and shall notify Ball of
such action. It shall be further ordered to rescind the fine
assessed against Ball of $1,125 which was assessed
against Ball in the case arising out of Ball's filing of the
EEOC charge in the name of the Union against Courier
Express, since the fine was determined upon future dues
it would have collected from him after he had been law-
fully expelled from union membership.
However, the Respondents shall not be ordered to re-
instate Ball to union membership. In Philadelphia Moving
Picture Machine Operators Union, Local No. 307, IATSE
v. N.LR.B., 382 F.2d 598 (3d Cir. 1967), several charges
were brought against a member, some of which were
found to be lawful and some unlawful. Only one vote
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was taken upon all charges and it was impossible to de-
termine whether disciplinary action would have been
taken absent the unlawful charges. Here Ball was tried
upon three separate charges, two of which I have found
to be lawful. The evidence was taken separately and the
trial board considered each charge separately and issued
three separate decisions, none of which appear to have
been influenced by the other charges. In N.L.R.B. v.
Wilson, supra, the court of appeals, while refusing en-
forcement of certain findings by the Board, nonetheless
found the discharge there to be bad since the employer
had established that it would have taken the same action
in the absence of the other conduct in accordance with
the tests established by the Board in Wright Line, supra
Since it is clear that Ball was expelled from union
membership solely for his filing of the charge with
EEOC in the name of the Union in violation of the
Guild's constitutional provisions, and the unlawful
charge brought against him played no role in that deci-
sion, he is not entitled to reinstatement.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following:
ORDER3 0
The Respondent, The Buffalo Newspaper Guild, Local
26, and The Newspaper Guild, AFL-CIO-CLC, Buffa-
lo, New York, jointly and severally, their officers,
agents, and representatives, shall:
I. Cease and desist from:
(a) Filing internal union charges against members who,
with the express permission of the Board, have filed peti-
tions with the Board seeking unit clarifications.
(b) Bringing before an internal union trial board, and
trying any member for such conduct.
(c) Finding any member guilty of violations of the
Guild constitution, expelling that member from the
Union, and assessing a fine for engaging in such conduct.
(d) Assessing a fine upon a lawfully expelled member,
the amount of which was based upon the amount of dues
3o In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
it contemplated collecting from that member absent his
expulsion.
(e) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Expunge from its records the charges, trial board
proceedings, and trial board decision relating to the peti-
tion filed in Case 3-UC-105 by William L. Ball, and
notify Ball of such action.
(b) Rescind the fine of S1,125 imposed against Ball in
the case arising out of his filing of EEOC charges in the
name of the Union in violation of the Guild constitution
since such fine was imposed after Ball's lawful expulsion
from the Union and based upon the amount of dues the
Union expected to collect from him.
(c) Post at the office and meeting hall of the Buffalo
Newspaper Guild, Local 26, and on the Union's bulletin
boards at the Buffalo Courier Express, The Buffalo Eve-
ning News, and the Tonawanda Evening News, as well
as The Newspaper Guild's office in Washington, D.C.,
copies of the attached notice marked "Appendix."'s
Copies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by the Re-
spondent's representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent have taken to comply herewith.
IT IS FURTHER RECOMMENDED that the consolidated
complaints, insofar as they allege violations of the Act
not specifically found herein, are dismissed.
3i In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
406