Butchers Union Local 115

National Labor Relations Board - Board Decisions

Mar 20, 1974

209 N.L.R.B. 806 (N.L.R.B. 1974)

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Butchers Union Local 115, affiliated with the Amalga-
mated Meat Cutters and Butcher Workmen of
North America, AFL-CIO and Ernest S. Cerelli.
Case 20-CA-8402
March 20, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
JENKINS AND KENNEDY
On December 12, 1973, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs and also filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
1 In adopting the conclusions of the Administrative Law Judge, we rely
on the rationale in Retail Clerks Union, Local 770 Retail Clerks International
Association, AFL-CIO, 208 NLRB No. 54, where it was held that an
employee of a union has "no protected nght" under our Act "to engage in
activities designed solely for the purpose of influencing or producing
changes in the management hierarchy."
With respect to the I0(b) issue, we also rely on Plumbers & Pipe Fitters
Local Union 214 (D L Bradley Plumbing and Heating Co), 131 NLRB 942,
enfd. 298 F.2d 427 (C.A 7, 1962).
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was tried at San Francisco, California, on October 2
and 3, 1973. The charge was filed on June 29, 1973, by
Ernest S. Cerelli, and was served on July 2, 1973. The
complaint issued on August 30, 1973, alleging that
Butchers Union Local 115, affiliated with the Amalgamat-
ed Meat Cutters and Butcher Workmen of North America,
1 Chain Service Restaurant, Luncheonette & Soda Fountain Employees,
Local 11, AFL-CIO, 132 NLRB 960
AFL-CIO, herein called Respondent or the Union,
violated Section 8(a)(3) and ( 1) of the National Labor
Relations Act, as amended.
Issues
The primary issues are:
1. Whether Respondent through its secretary-treasurer.
George Mesure, fired its business agent, Cerelli, because
Mesure believed that Cerelli was going to run for election
as secretary-treasurer against him.
2. If the answer to I is "yes," whether such conduct
violated Section 8(a)(3) and (1) of the Act.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent has an office located in San Francisco,
California . It is an organization chartered by Amalgamat-
ed Meat Cutters and Butcher Workmen of North America,
AFL-CIO, and is engaged in the representation of its
members in collective bargaining with various employers
concerning wages , hours , and other terms and conditions
of employment of the employees of those employers.
Respondent maintains collective-bargaining agreements
with various employers connected with the meat industry,
including Safeway Stores and Lucky Stores . In the course
of its operations, Respondent collects dues, fees, and
assessments from its members . Respondent annually
receives from various retail employers whose gross reve-
nues exceed $500,000 per year and whose purchases of
supplies from outside the State of California exceed $5,000
per year, and from various nonretail employers who
purchase goods directly from suppliers across state lines
valued in excess of $50,000 per year, money representing
dues checked off and withheld from wages due employees
represented by the Respondent in an amount in excess of
$50,000 . Respondent annually transmits in excess of
$50,000 directly to the Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO, in
Chicago , Illinois . Respondent is an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.'
H. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
209 NLRB No. 125
BUTCHERS UNION LOCAL 115
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
1. Background
Cerelli has been a member of Respondent for 30 years.
In 1964 he was elected to the executive board and in 1968
he was elected to be a trustee (a position which also serves
on the executive board). Both of those positions are
nonpaying. He continued as trustee until April 1973, when
Respondent was placed under trusteeship by the Interna-
tional and all its officers were suspended.
On May 20, 1968, George Mesure, Respondent's
secretary-treasurer,2 hired Cerelli as a business agent.
Cerelli's duties were to carry on organizational drives as
assigned by Mesure, and in general to police contracts and
service members.3 Cerelli was hired at $250 a week. He
received automatic $25-per-week pay raises every 6 months
for the following 2 years. Thereafter the executive board
voted raises for Cerelli about once a year until he received
his last pay increase to $406 a week in November 1972.
Four or five times a year Mesure complimented Cerelli by
telling him that he was doing a very good job for both
Mesure and the Union. Mesure never gave any written or
oral criticisms to Cerelli concerning his job performance
other than several requests for Cerelli to submit work
reports which had not been filed on time. On those
occasions, Cerelli did submit the reports.
2. The December 13, 1972, accusation by Mesure
that Cerelli would run against him
In the early afternoon of December 13, 1972 , Mesure
told Cerelli to move out of his (Cerelli' s) office so that it
could be used by Assistant Secretary-Treasurer Everett A.
Matzen.4 Cerelh protested. About 7 p.m. that evening,
which was before an executive board meeting was
scheduled to begin, Cerelli and Mesure had a conversation
in Mesure 's office with Business Agent Ernest Couly
present. There was a heated argument in which Cerelli
complained about being thrown out of his office. Cerelli
said: "Throwing me out of my office; all the friends at that
table, they say you're a big asshole." Cerelli also said that,
if Mesure didn't like what he (Cerelli) did, Mesure could
fire him. Mesure replied, "When I go to fire you , I'll fire
you." Finally, Mesure told Cerelli that Cerelli could stay in
his office. Mesure then said that an employer had told him
that Cerelli was going to run against him for secretary-
2 Mesure had authority to and did lure and fire employees. I find that he
was a supervisor within the meaning of the Act.
3 Respondent does not contest the fact that Cerelli was an employee
Counsel for Respondent stated on the record that Respondent did not deny
that there was at one time an employer-employee relationship. 1 find that
Cerelli was an employee of Respondent.
4 In June 1971, Local 364 of the Meat Cutters in Petaluma, California,
merged with Respondent. Matzen, who had been secretary -treasurer of
Local 364. became assistant secretary-treasurer of Respondent at the time of
the merger
These findings are based in part on the testimony of Cerelli and in part
on the testimony of Couly Cerelli acknowledged that on a number of
occasions he told Mesure that if Mesure didn 't like the way he was working
807
treasurer of Respondent. Cerelli replied that it was not true
and that he had no intention of running for Mesure's job.5
On a number of prior occasions Mesure had accused
business agents of trying to run against him for secretary-
treasurer . However, as is discussed in detail below with
reference to the events of a meeting on January 3, 1973,
Cerelli did have the type of grassroot support among the
membership that might have led Mesure to believe that
Cerelli could realistically hope to be successful in a bid for
the secretary-treasurer job.
3. The discharge
On December 19, 1972, Mesure wrote a letter to Cerelli
which was delivered on December 20, 1972. It read:
This is to advise you that your services as Business
Agent for this Local Union are terminated effective
with the close of business on January 3, 1973.
You will no longer be an employee of Butchers' Union,
Local 115 after that date. All properties belonging to
the local, i.e., car keys, credit cards, keys to the office,
receipt books, etc., should be turned in on January 3,
1973.
Fraternally,
George Mesure, Secty-Treas.
Cerelli continued performing his normal duties as
business agent through January 3, 1973. At about 10:30
p.m. on that date he turned in his office and car keys. He
received his pay and prorated vacation pay on that date
and his employment with Respondent ended.
4. The conversation between Mesure and
Pashoian
Lawrence M. Pashoian, a member of Respondent,
learned from a fellow member that Cerelli was being
terminated. At 10:30 a.m. on December 22, 1972, Pashoian
called Mesure on the telephone and asked Mesure why
Cerelli had been fired. Mesure answered, "Oh, you want
my job, too?" Pashoian replied that if he wanted Mesure's
job he would run for it. Mesure then said: "I fired Ernie
Cerelli because he wanted my job." In the ensuing
discussion, Mesure repeated that he fired Cerelli because
Cerelli wanted his job. Mesure also said that he fired
Cerelli because Cerelli could not follow orders. Mesure
told Pashoian that he was the boss and could hire and fire
as he pleased .6
he could fire him, but he averred that he did not remember such a
conversation on December 13. He also averred that he never referred to
Mesure as dumb or stupid. Couly testified that Cerelli did make the remark
about getting fired and did use the profane language . Couly also testified
that this was nothing unusual and that Cerelli was always making similar
statements to both Mesure and others. I credit Couly in this regard.
6 These findings are based on the credited testimony of Pashoian, which
is uncontradicted . Mesure did not testify Respondent did not offer any
explanation for its failure to call Mesure Matzen credibly testified that
Mesure no longer has official duties with Respondent and that he lives in
Greenbrae, Mann County (a suburb of San Francisco , the city in which the
trial was held)
Pashoian was not always a completely accurate witness. As is set forth in
(Continued)
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The January 3, 1973, meeting B. Respondent's Defense
At 8 p.m. on January 3, 1973, Respondent held a general
membership meeting. The Cerelli discharge was the
primary subject of that meeting. Usually about 30
members attend such meetings, but on January 3 between
150 and 200 members attended. Mesure, Cerelli, Pashoian,
and Matzen were among those present.?
Pashoian addressed the group and said that he had a
conversation with Mesure a week ago Monday,8 that he
had phoned Mesure about Cerelli being terminated, that
Mesure told him that Cerelli quit (at this point in the
meeting Mesure said "No"), that Mesure said that Cerelli
asked to be fired, and that Mesure also said, "On top of
that he's going to run against me."
Mesure addressed the group and told them that he had
the right to hire and fire anyone, that he fired Cerelli for
the good of the membership, and that that was all he had
to say.
Cerelli then spoke to the group and said that the whole
thing started with a fight in the executive board room
because he (Cerelli) would not go along blindly with
everything Mesure wanted to do. Cerelli also told the
group that he had an argument with Mesure in Mesure's
office in which Mesure told him that an employer had said
that he (Cerelli) was going to run against Mesure.
Couly told the group that Mesure had said that he heard
Cerelli was going to run.
Cerelli told the group that in his conversation with
Mesure he told Mesure that if he (Mesure) kept it up he
(Cerelli) would run against him. Cerelli then told the group
that he was now going to run against Mesure. There were
applause and cheers from the audience.
There was a motion from the floor that Cerelli be
retained as business agent. Mesure said that he had the
right to hire and fire and that Cerelli was through. A
motion to keep Cerelli on the payroll was pressed and
Mesure responded by saying that the constitution gave him
the right to hire and fire and that he didn't have to tell the
membership anything. There was a call for a vote on the
motion which resulted in a loud "aye" response in favor of
the motion and silence when a "no" vote was called for.9
The Cerelli matter was taken up at two union meetings
after January 3. On January 10 at an executive board
meeting, a motion was made by Cerelli to have Mesure
specify in writing why Cerelli had been fired. The motion
was voted down. At a membership meeting on February 7,
Mesure was asked why he fired Cerelli. At that time,
Mesure replied that Cerelli would not take orders and went
over his head to employers and to counsel.
detail below, I believe he was mistaken in his recollection of what was said
by Mesure at a meeting on January 3, 1973 However, my observation of
Pashoian as he testified convinced me that he is a truthful witness who is
worthy of belief. It is not likely that he was confused in his recollection of a
direct conversation with Mesure There was more room for confusion in the
January 3 meeting where a number of people were talking in a heated
emotional context
r Mesure left before the meeting was over. However , the matters set forth
below all occurred while he was still present
8 Pashoian credibly testified that he ought have been wrong on the day
of the week but that he was certain the conversation took place on
December 22, 1972.
9 The findings with regard to what took place at the January 3 meeting
Matzen, who was assistant secretary-treasurer at the time
in question and deputy administrator at the time of the
trial, testified that ever since the merger in June 1971
(before that time he was not associated with Respondent)
Cerelli had made comments concerning the ineptitude of
the union officials; that Cerelli complained that Mesure
and business agents weren't doing their jobs; that Cerelli
told Mesure that Mesure was dumb and didn't know what
he was doing or how to run an organization; that Cerelli
complained about union officials in the presence of
employers; that Cerelli used foul language directed toward
union officials; and that Cerelli often told Mesure that if
Mesure didn't like the way he was operating Mesure
should fire him. Matzen averred that on several occasions
he heard Mesure complain to Cerelli that Cerelli was not
filing reports and that Cerelli usually replied by telling
Mesure to mind his own business. He also averred that on
several occasions he heard Mesure tell Cerelli that he
didn't like the way he was being talked to and some day he
would fire Cerelli.
The picture of Cerelli which emerged from Matzen's
testimony was sharply different than Cerelli's own self-
image. In general, Cerelli denied the abrasive, disrespectful
conduct attributed to him by Matzen. I credit Matzen.
Though Cerelli was apparently highly respected by the
members that he serviced, it appears that he was a difficult
person to get along with from the point of view of the other
business agents and the secretary-treasurer. However, it is
noted that Cerelli engaged in the same type of conduct
over a prolonged period of time during which he
repeatedly received praise from Mesure and raises in pay.
His basic job was to service members and apparently he
was very good at that job. If he was not always a docile
employee, it must be remembered that he served in a dual
function in that he was elected by the members to be a
trustee.
Matzen, who was the only witness to testify on behalf of
Respondent concerning Cerelli's conduct, was not the one
who decided to discharge Cerelli. Matzen acknowledged
that Mesure was the one who made that decision and that
Mesure did not discuss it with Matzen before the
discharge. Matzen did testify that Mesure told him that he
had fired Cerelli because Cerelli failed to follow orders and
was always giving him arguments. However, as Mesure did
not take the stand he could not be cross-examined on that
matter and little weight can be given to such hearsay
evidence.
Respondent points to the fact that the next election for
are based primarily on a tape recording taken at the meeting, which was
duly authenticated and received in evidence . The testimony of Cerelli and
Matzen are basically consistent with what was recorded on the tape. Much
of Pashotan 's testimony was also consistent . However, Pashoian averred
that Mesure told the group that he had fired Cerelli because Cerelli was
going to run for secretary-treasurer, that he had heard from an employer
that Cerelli was going to run, and that he was the boss. Though, as found
above, I believe that Pashotan was a basically credible witness , I think that
his recollection was faulty as to exactly what was said and who was
speaking during parts of the meeting . I therefore do not credit his assertion
that Mesure admitted at the meeting that he had fired Cerelli because
Cerelli wanted his job.
BUTCHERS UNION LOCAL 115 809
secretary-treasurer was not scheduled to take place until
January 1974, and argues that the lack of an imminent
election makes it unlikely that Mesure would have been
concerned with Cerelli as a rival . I do not find this
argument persuasive . If Mesure were concerned about
rivals in the next election , he might have wanted to
eliminate them well in advance.
C. Factual Conclusions
On December 13, Mesure accused Cerelli of intending to
run for office against him. On December 19, less than a
week later, he wrote to Cerelh informing him that his
employee status would be terminated at the close of
business on January 3, 1973. On December 22, Mesure
admitted to Pashoian that he was discharging Cerelli
because Cerelh wanted his job. At the January 3 member-
ship meeting, in the context of a discussion of Cerelli's
discharge, the members were told in substance by Cerelli,
Couly, and Pashoian that Mesure had expressed resent-
ment against Cerelli because Mesure believed Cerelli was
going to run against him. However, when Mesure ad-
dressed the membership as to his reasons for firing Cerelli,
he kept insisting that he had the right to fire and did not
have to explain it to anyone. His statement that it was for
the good of the membership was so vague as to be
meaningless. Though he had an opportunity at that time,
he did not deny that he discharged Cerelli because he
believed that Cerelli was going to run against him.
The General Counsel has proved a strong prima facie
case with regard to his factual allegations. For the reasons
set forth above, Respondent's defense is unconvincing.
That defense fails utterly in the face of Mesure's admission
to Pashoian that he fired Cerelli because Cerelli wanted his
job.
In conclusion, I find that Respondent, through Mesure,
discharged Cerelli on January 3, 1973, because Mesure
believed that Cerelli intended to run against him for the
office of secretary-treasurer.
D. Analysis and Legal Conclusions
As the United States Supreme Court held in Office
Employees Union v. N.L.R.B. (Oregon Teamsters), 353 U.S.
313 (1957): ". . . when a labor union takes on the role of
an employer the Act applies to its operations just as it
would to any other employer." It follows that the
employees of a union have the same rights to self-
organization and to concerted activities for the purpose of
collective bargaining or other mutual aid or protection as
any other employee under Section 8(a)(1) of the Act.10 In a
similar vem, under Section 8(a)(3) of the Act, a union,
when acting as an employer, cannot discharge an employee
10 Sec. 8 (a)(i) of the Act provides "It shall be an unfair labor practice
for an employer-to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7." Sec 7 provides - "Employees
shall have the right to self-organization, to form , tom, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , and shall also have
the right to refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in section
8(ax3) "
to encourage or discourage membership in any labor
organization.[[
In the instant case Cerelli was discharged because
Respondent believed that he was going to run for union
office. It is immaterial whether in fact Cerelli did or did not
intend to run for office. If the running for office was a
protected activity, then it would be as unlawful for
Respondent to discharge him because it believed he had
engaged in that activity as it would have been to discharge
him because he in fact engaged in that activity. D. D. Bean
& Sons Co., 79 NLRB 724; Red Arrow Freight Lines, 175
NLRB 950, enfd. 423 F.2d 35 (C.A. 5, 1970).
Concerted activities for collective bargaining or mutual
aid and protection are protected by Section 7 of the Act,
while purely personal actions are not. Snap-On Tools
Corporation, 207 NLRB No. 31. However, an employee will
be considered to be engaging in group, as opposed to
individual, action if he seeks to implement a collective-
bargaining agreement .12 Group action will also be found
where the employee's activities involve participation in
union affairs.
Though Cerelli did not engage in activities keyed to
promoting the interests of his fellow business agents (or
other employees of the Union) and did not seek to enforce
any collectively bargained agreement, he did become
involved in the internal affairs of the Union and he was
discharged because of Respondent's suspicion that he was
going to run for office.
The cases relating to the involvement of employees in the
internal affairs of unions fall into three different categor-
ies:
1. Where employees of a union seek another
labor organization to represent them
In cases within this category the union activity is
oriented toward a union other than the employer so that
other union can bargain on behalf of the employees with
their employer. The key to this type of union activity is
representation. Such activity is protected. A union, acting
in the capacity of employer, who discharges an employee
because he seeks outside representation violates Section
8(a)(1) and (3) of the Act. Any activity by such an
employee in the internal affairs of the union which
represents him is similarly protected. Retail Store Employ-
ees Union, Local 444, RCIA 161 NLRB 1358; Retail Clerks
International Assn., AFL-CIO, 153 NLRB 204, enfd. 366
F.2d 642 (C.A.D.C., 1966); International Ladies' Garment
Workers' Union, AFL-CIO, 142 NLRB 353, enfd. in
pertinent part 339 F.2d 116 (C.A. 2, 1964).
The case at issue does not fall into this category. Cerelli
was thought to be seeking a management position within
11 Sec. 8(a)(3) reads: "It shall be an unfair labor practice for an
employer-by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization .. .
12 As the Board held in Bunney Bros. Construction Company, 139 NLRB
1516. "The implementation of [the collective-bargaining agreement applica-
ble to the employee and other employees ] by an employee is but an
extension of the concerted activity giving rise to that agreement ." See also
C & I. Air Conditioning Inc, 193 NLRB 911 , and Interboro Contractors, Inc,
388 F.2d 495 (C A. 2, 1967).
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his own union. He was not seeking a collective-bargaining
representative for himself or for the other employees of the
Union.
2. Where an employee of an employer (other
than a union) is discriminated against or fined
because of his activities within the union that
represents hum
Employees do have certain protections under the Act
when they participate in the internal affairs of their
collective-bargaining representative. Not only is it unlawful
for an employer to discriminate against an employee for
such activity, but it is unlawful for the employee's
collective-bargaining representative to cause the employer
to so discriminate. In Chauffeur's Union Local 923, I.B.T.
(Yellow Cab Company), 172 NLRB 2137, the Board found
that a union violated Section 8(b)(1)(A) 13 of the Act by
refusing to assist three employees that it represented in
efforts to secure new jobs because those employees
opposed reelection of certain union officers. The Board
held:
It is well established that opposition to the reelection
of an incumbent union official is protected activity
within the meaning of Section 7 of the Act.2... We do
not believe that a union with representative status is
free to discriminate against certain employees in the
unit because they did or did not support a particular
candidate in a union election. Such a holding would
amount to a serious infringement on the statutorily
protected right of an employee to support and vote for
the candidate of his own choosing.
2 Falstaff Brewing Corporation. 128 NLRB 294,305 (and cases cited)
In Carpenters Local Union No. 22, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (Graziano
Construction Company), 195 NLRB 1, the Board found that
a union violated Section 8(b)(1)(A) of the Act by fining an
employee of a construction company because of that
employee's intraunion activities in opposition to incum-
bent union officials. The Board held:
that purpose not only in our opinion fails to reflect a
legitimate union interest but rather in fact impairs a
policy that Congress has imbedded in the labor laws.
For these reasons, we conclude that the Respondent
Union's conduct in fining [the employee] because of his
intraunion activity violated Section 8(bXl)(A) of the
Act.
5 Teamsters Local 663, a/w International Brotherhood of Teamsters,
etc (Continental Oil Company), 193 NLRB [581 ] Cf. Southern
Steamship Company v N.LRB., 316 U.S. 31; compare Local 1976,
United Brotherhood of Carpenters, etc. [Sand Door & Plywood Co] v.
NLRB., 357 U.S. 93 We are not unmindful of the fact that the
Department of Labor, and not this Agency, is directly charged with
the administration of the requirements of the Landrum-Griffin Act
We traditionally respect this differentiation . See, e g., Desert Palace,
Inc, d/b/a Caesar's Palace, 194 NLRB [818], fn. 5. In this area,
however, as we understand it, we have been specifically charged by
the Supreme Court with the duty of determining the overall
legitimacy of union interests , and must therefore take into account all
Federal policies and not limit ourselves to those embodied in our own
Act.
In Hoisting and Portable Engineers, Local No. 4 and Its
Branches of the International Union of Operating Engineers
(The Carlson Corporation), 189 NLRB 366, enfd. 456 F.2d
242 (C.A. 1, 1972), the Board found that a union violated
Section 8(b)(1)(A) of the Act by refusing to refer an
employee to a job because the employee opposed the
reelection of incumbent union officials. i4
However, these cases are distinguishable from the one in
issue. In those cases, where a union fined or adversely
affected the job rights and opportunities of employees
because of the intraunion activities of those employees, it
was acting in its capacity as a union which represented
those employees and which therefore owed them the duty
of fair representation.15 The unions were found to have
violated Section 8(b)(1XA) of the Act and not Section
8(a)(1) and (3). There is no concept of duty of fair
representation under Section 8(axl) and (3) because an
employer cannot represent its employees in bargaining
with itself. The cases cited by the General Counsel in his
brief in which violations of Section 8(b) are found are all
distinguishable from the instant case where Respondent is
alleged to have violated the Act as an employer and not as
a labor organization.
The policies which the Union's conduct here seeks to
frustrate are embodied in the Labor-Management
Reporting and Disclosure Act of 1959, rather than
specifically in the National Labor Relations Act. This
difference does not, however, impel a different conclu-
sion.
As the above-quoted language from the Supreme
Court's decision in Scofield implies, the Board is
charged with considering the full panoply of congres-
sional labor policies in determining the legality of a
union fine.5 Here the Union, in the guise of enforcing
internal discipline, has sought to deprive its members of
the right, as guaranteed by the Labor-Management
Reporting and Disclosure Act, to participate fully and
freely in the internal affairs of his own union. A fine for
13 Sec. 8(b)(l)(A) makes it an unfair labor practice for a labor
organization to restrain or coerce employees in the exercise of rights
guaranteed in Sec 7 Sec . 8(b)(2) makes it an unfair labor practice for a
labor organization to cause or attempt to cause an employer to discriminate
against an employee in violation of Sec. 8(a)(3).
3. Where employees of a union are active within
the union that employs them
In situations within this category , there is no representa-
tion concept . The employees are not seeking to have the
union act as their representative m dealing with their
employer. If they did select the Union to represent them,
the employee representative and the employer would be
the same and the union would in effect be bargaining with
itself, a situation that would involve a most blatant conflict
of interests . In the circumstances of the instant case
Respondent must be viewed strictly as an employer of its
employees . The fact that in other contexts it is a labor
organization has no bearing on its relations with its own
14 See also National Maritime Union of America, AFL-CIO, 177 NLRB
615; United Association of Journeymen & Apprentices of the Plumbing &
Pipefitting Industry, Local No. 137 (Names Construction and Equipment
Company) 207 NLRB No. 30.
15 Cf. Miranda Fuel Company, Inc., 140 NLRB 181, enforcement denied
326 F 2d 172 (C.A. 2, 1963); Cominco-American, Incorporated 182 NLRB
638, and cases cited therein.
BUTCHERS UNION LOCAL 115 811
employees. It is bound by the requirements of Section
8(a)(1) and (3) of the Act rather than 8(b)(1)(A) and (2).
The complaint alleges that Respondent, as an employer,
violated Sections 8(a)(l) and (3) of the Act. There is no
allegation that Respondent, as a labor organization,
violated Section 8(b)(1)(A) or (2).
In Office Employees Union v. N.L. R.B. (Oregon Team-
sters), supra, the United States Supreme Court held that
when a union takes on the role of an employer the Act
applies "just as it would to any other employer." In
International Ladies Garment Workers' Union, AFL-CIO,
supra, the Board adopted the decision of the Admmistra-
tive Law Judge which stated: ". . . no valid basis can be
suggested for distinguishing it [the union acting as
employer] from any other employer or for calculating on
different scales the coercive effect or weight to be accorded
to statements and conduct by its officers, agents, and
supervisors vis-a-vis its employees."
It would be difficult to argue that a business corporation
would violate Section 8(a)(1) and (3) of the Act, if it
discharged an employee because that employee sought to
replace the president of the corporation. If Respondent is
considered solely as an employer, the situation of Cerelli is
analogous to that corporate employee. Respondent
16 See Grand Lodge v. King, 335 F 2d 340 (C.A. 9, 1964), cert. dented 379
U S 920
17 Respondent argues in its brief that the complaint should be dismissed
on the additional ground that the alleged violation is barred by the time
limit set forth in Sec 10(b) of the Act. The letter informing Cerelli that he
would be discharged effective January 3. 1973, was given to Cerelli on
December 20. 1972, more than 6 months before the filing of the charge.
However, the discharge itself, which occurred on January 3, was within the
10(b) period Respondent's contention is not persuasive . The letter is not
thought that Cerelli was seeking an executive position on
its management staff at the expense of the incumbent
official. Cerelli may have a case under the Labor
Management Reporting and Disclosure Act,is but a
violation of Section 8(a)(1) or (3) of the National Labor
Relations Act has not been proven. I shall therefore
recommend that the complaint be dismissed in its
entirety.17
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 18
The complaint is dismissed in its entirety.
alleged as an unfair labor practice . The discharge is Cf. Chauffeurs,
Teamsters and Helpers "General" Local No 200, 1 B T (Stale Sand & Gravel
Company), 155 NLRB 273, enfd. 63 L.R.RM. 2032 (C.A D C , 1966)
iA 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