Tawas Tube Products, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1965

151 N.L.R.B. 46 (N.L.R.B. 1965)

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment persuade us that these load dispatchers have
managerial status -5 Accordingly, Nye find that the load dispatchers.
may not be added to the existing unit, and we shall dismiss the petition.
[The Board dismissed the petition.]
G See American Ltthotold Co)poiation , 107 NLRB 1061, 1003.
Tawas Tube Products , Inc. and Harold Lohr, Petitioner and
United Steelworkers of America , AFL-CIO. Case No. 7-RD-
573. February 15, 1965
DECISION AND CERTIFICATION OF REPRESENTATIVE
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on August 27, 1964, under the
direction and supervision of the Acting Regional Director for Region 7
among the employees in the unit herein found appropriate. The
parties were thereafter furnished a tally of ballots showing that all
30 eligible voters cast valid ballots, of which 17 were for and 13
against the incumbent Union. The Employer then filed a timely
objection to conduct affecting the results of the election. After con-
ducting an investigation, the Acting Regional Director on October 7,
1964, issued a report on objection to election and recommendation in
which he found merit in the objection and recommended that the elec-
tion be set aside. The Union thereafter filed exceptions to the report
and a supporting brief.
Upon the basis of the entire record in this case, the Board finds the
following :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved has been the recognized exclusive
bargaining representative of the employees of the Employer in the
unit in which the election was conducted.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The following employees of the Employer constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's place
of business located at 906 Ninth Avenue, Tawas City, Michigan, in-
cluding inspectors, but excluding office clerical employees, guards, and
supervisors as defined in the Act.
151 NLRB No. 9.
TAWAS TUBE PRODUCTS, INC. 47
5. The Employer's objection to the election and the Acting Regional
Director's recommendation that the election be set aside are based
upon union disciplinary action taken against two members while the
election was pending. The following facts were found by the Acting
Regional Director.
Steelworkers' Local 6401 has in fact serviced the employees in the
unit involved here (although its International is on the ballot) ; the
local does not represent any other employees. This representation
proceeding was initiated by the filing of a decertification petition on
June 8, 1964, by employee Harold Lohr, a union member. On July 15,
the president of Local 6401 wrote Lohr and another member in the
unit, Lee, notifying them that they would be tried on August 1 by
the local for violating a, provision of the International's constitution
creating the offense of "Advocating or attempting to bring about the
withdrawal from the International Union of any Local Union or any
member or group of members." On August 1, Lohr and Lee were
tried by a committee of local members and expelled from the Union
because of filing the petition and actively supporting the decertifica-
tion cause.
The Employer asserted that these expulsions restrained and coerced
the unit employees in the election. The Acting Regional Director
concluded that the expulsions were unfair labor practices under the
rationale of Local 138, International Union of Operating Engineers,
AFL-CIO (Charles S. Skura), 148 NLRB 679, that they inhibited
other employees from freely supporting the decertification cause, and
that therefore the election should be set aside.
We disagree with the Acting Regional Director's recommendation.
Initially, we look to the proviso to Section 8(b) (1) (A) of the Act,
which states :
[T]his paragraph shall not impair the right of a labor organiza-
tion to prescribe its own rules with respect to the acquisition or
retention of membership therein.
Three considerations lead us to conclude that this case is within the
terms of the proviso, and of our general rule with respect to internal
union discipline not affecting employment interests.' First, the
Union's disciplinary action in this case was limited to the union mem-
bership status of Lohr and Lee, and no attempt to affect their job
interests is involved.' Second, the ground for the expulsions plainly
related to a matter of legitimate union concern and one which may
1 Local 248, United Automobile, Aerospace and Agricultural Implement Work ers of Amer-
ica. AFL-CIO ( Allis - Chalmers Manufacturing Company ), 149 NLRB 67, Local 253,
United Automobile, Aircraft and Agricultural Implement Workers of America, UAWV-
AFL-CIO ( Wisconsin Motor Corporation ), 145 NLRB 1097
2 The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull
Steamship Company ) v. N.L.R B., 347 U.S. 17, 40
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
properly be a subject matter of internal discipline. In this connec-
tion, even a narrow reading of the proviso would necessarily allow a
union to expel members who attack the very existence of the union
as an institution,' which is literally the case here, since Local 6401
represents only the employees in the unit involved in the case. As
we said in the Allis-Chalmers case, when a situation "involves the
loyalty of its members during a time of crisis for the union . . . we
cannot hold that a union must take no steps to preserve its own
integrity."' That language is even more applicable here, for we can
conceive of no conduct by a union member more hostile or threatening
to his union than that engaged in by Lohr and Lee. Finally, the
unique defensive aspect of the expulsions here should be noted. It
would be difficult for the Union to carry on an election campaign were
Lohr and Lee, as members, entitled to "equal ,rights and privi-
leges . . . to attend membership meetings, and to participate in the
deliberations and voting upon the business of such meetings ..."
rights now guaranteed to union members by Section 101(a) (1) of the
Labor-Management Reporting and Disclosure Act. We therefore con-
clude that the expulsions here are reasonably to be viewed, and prob-
ably were so viewed at the time, as appropriate union disciplinary
action under the circumstances.
We disagree with the Acting Regional Director's conclusion that
the expulsions are comparable to the conduct before the Board in the
Skura case, supra. In that case, Skura was fined by his union for
filing with the Board a Section 8(b) (1) (A) charge alleging that he
was being denied job referrals by the union because he had sought to
replace incumbent union officials. The ground relied upon by the
union to fine Skura was that a union rule required exhaustion of in-
ternal union procedures by a member "before resorting to any civil or
other action." Our decision in Skura limited the scope of union dis-
ciplinary action generally allowable under the terms of Section
8(b) (1) (A)'s proviso because of the importance of safeguarding
prompt and unimpeded access to the Board's processes by employees
complaining of union infringement of their statutory rights. We held
that in light of this overriding policy it was beyond the competence
of the union to enforce its rule by coercive means and thus deter em-
ployees from resorting to Board processes in such circumstances.
This case, however, presents a situation where union members have
resorted to the Board for the purpose of attacking the very existence
of their union rather than as an effort to compel it to abide by the
Act. We do not consider it beyond the competence of the Union to
protect itself in this situation by the application of reasonable mem-
a Cf. Section 101(a) (2) of the Labor-Management Reporting and Disclosure Act, 29
U.S.C. 411( a).(2).
FRYE & SMITH, LTD. 49
bership rules and discipline. Furthermore, the employees' attempt to
repudiate the Union by a decertification proceeding demonstrates that
loss of membership was of no significance to them; consequently their
expulsion from the Union could hardly be an effective deterrent
against resorting to the Board. For these reasons, we conclude that
the policy underlying the exception created in .Slcura is inapplica-
ble here.
Accordingly, we find that the Union's action in expelling Lohr and
Lee did not prevent a free choice by the employees in the election.
Since there are no other grounds urged to invalidate the election, we
conclude that the election should not be set aside. As the tally shows
that the Union has obtained a majority of the valid ballots cast, we
shall certify it as the exclusive bargaining representative of the em-
ployees in the appropriate unit.
[The Board certified United Steelworkers of America, AFL-CIO,
as the designated collective-bargaining representative of the employees
at the Employer's Tawas City, Michigan, facility.]
Frye & Smith , Ltd. and San Diego Typographical Union No.
221, International Typographical Union, AFL-CIO, Petitioner.
Case No. 21-RC-9094. February 15, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Albert J.
Tomigal. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.' Thereafter, the Em-
ployer filed a brief with the Regional Director and the Petitioner and
Intervenor filed briefs with the Board.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
I Local 64L, Lithographers and Photoengravers International Union, AFL-CIO, was
permitted to intervene on the basis of its contractual interest in the employees involved
herein.
151 NLRB No. 7.
783-133-66-vol. 151-5