United Federation of Teachers, Local 2

National Labor Relations Board - Board Decisions

Sep 27, 1971

193 N.L.R.B. 355 (N.L.R.B. 1971)

UNITED FEDERATION OF TEACHERS,, LOCAL 2 355
United Federation of Teachers, Local 2 American
Federation of Teachers , AFL-CIO and Charles
Loiacono and Teachers Representative Union.
Cases 2-CA-11944 and 2-CA-11944-2
September 27, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
the Charging Individual on December 5 and by the
Charging Union on December 9, 1969. The issue is whether
Respondent, in threatening to discharge the Charging
Individual, who is a field representative, if he organized or
attempted to organize district representatives, had thereby
violated Section 8(a)(1) of the Act.
The General Counsel and Respondent presented oral
argument and have filed briefs, which have been duly
considered. On the entire record, and my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
On June 10, 1971, Trial Examiner A. Norman
Somers issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
filed a brief in answer to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the proceeding, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.'
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 Trial Examiner and hereby orders that
the complaint in Cases 2-CA-11944 and 11944-2 be,
and it hereby is, dismissed in its entirety.
1 Member Jenkins does not adopt the Trial Examiner's gratuitous
comments with respect to arbitration
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. NORMAN SOMERS, Trial Examiner: This case was tried
before me in New York City on January 25, 1971, on a
consolidated complaint (hereafter the complaint) issued by
the General Counsel on June 8, 1970, on a charge filed by
I Office Employees International Union , Local No 11 v N.L R B, 353
U S 313
1. COMMERCE JURISDICTION; THE BUSINESS OF
RESPONDENT
Respondent , United Teachers Federation , Local 2, etc.
(hereafter sometimes UFT) is an unincorporated associa-
tion located in New York City, where it is engaged in
representing the teachers in the city 's school system
concerned with their wages and conditions of employment
in the system . Though a labor organization on behalf of the
teachers , UFT is itself an employer under Section 2(2) of
the Act in respect to its own staff employees .' During the
past representative year, UFT has remitted to American
Federation of Teachers , AFL-CIO, in Washington, D.C.,
which is the national federation , dues and initiation fees in
excess of $500,000 . UFT is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.2
II. THE LABOR ORGANIZATION INVOLVED
The Charging Union, Teachers Representatives Union
(hereafter sometimes TRU) represents staff employees of
UFT in dealing with UFT concerning the terms and
conditions of their employment with UFT. As is not
disputed, TRU is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Synoptic Statement and Issue
The "cast of characters," to use UFT counsel's term,
consists of Albert Shanker, president of UFT and Charles
Loiacono, then president of TRU. UFT has had a number
of successive contracts with TRU, the one during events
here involved being the fourth and having a starting date of
July 1, 1968. The bargaining unit (art. II) consists of all
"full-time non-supervisory, non-officer, non-elected staff
employees of UFT." Among them are the field representa-
tives. When Loiacono, a field representative, was elected
president of TRU, he informed Shanker he had invited
UFT's district representatives, who are not organized, to a
meeting to "explore the possibility" of organizing them.
Shanker warned Loiacono that if he tried to organize the
district representatives, he would be discharged from his
employment with UFT for transgressing the restriction in
article VIII of the contract against "engag[ing] in UFT
political activity." 3 The post of district representative is an
elected one. Loiacono remonstrated that for field represent-
2 Cf. Retail Clerks International Assn ., AFL-CIO, 153 NLRB 204, 206
3 Art VIII of the contract reads-
(Continued)
193 NLRB No. 52
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
atives to organize district representatives is not to engage in
UFT political activity, since field representatives would not
thereby be electioneering or holding or running for office.
Shanker responded that for staff employees to organize
those in elected posts was political activity because it would
thrust them into the "infighting" of UFT politics and thus
undermine the purpose of article VIII, which is to insure a
continuity of staff within the organization that is divorced
from political involvements and not dependent on the
outcome of an election for retention of their jobs The
General Counsel stresses that the point of reference here is
the rights guaranteed by Section 7 of the Act, which he
claims were not barred by the restrictions expressed in
article VIII of the contract.
B The Facts
1. The field representatives and their functions
UFT has for many years employed field representatives.
At the time here involved (which is during the existence of
the contract of July 1, 1968), it had about 15 of them. Their
duties are to organize (i.e., recruit and sign up) members in
UFT consisting of teachers and others connected in the
school system, to argue grievances on appeal at the
"second" step (with the district superintendents) and the
"third" step (with the City's superintendent), "handle new
ratings" (sic), make speeches in espousal of UFT's position
to such members of the public as community and political
groups; write articles on behalf of UFT for newspapers and
engage in daily correspondence on behalf of UFT; and
when not out in the field, answer members' telephone
inquiries about the collective-bargaining contract of the
UFT with the city's school system.
2. The creation of the district representatives and
their role in the UFT elected hierarchy
In June 1968 (not long before the contract with TRU here
involved), the administrative committee of UFT (composed
of the 11 elected officers of UFT headed by the president)
passed a resolution setting up the elected post of district
representative. (This was apparently an administrative step,
since , as it not disputed, that post is not in the UFT
constitution.) There are 31 school districts in the city,
comprised of about 30 schools in each district. Each
chapter chairman, or shop steward, is elected by the
members of his school or "chapter," and the chapter
chairmen of each district elect their district representative.4
Loiacono in his testimony asserted that though the
chapter chairmen and the district representatives are
elected, their function, like that of field representatives, is to
service the members. He indeed bracketed field representa-
tives with the chapter chairmen and district representatives
as constituting the three in the UFT echelon whose
function is that of servicing members. In that respect, he
RESTRICTIONS ON UFT POLITICAL ACTIVITIES
Employees in the bargaining unit will not engage in UFT political
activity, including but not limited to electioneering or running for or
holding office
4 A few chapters are not geographic but "functional " One is composed
of the 3,000 secretaries in the city These few functional chapters too elect a
chairman There is no indication of which districts are embraced by these
differentiated the chapter chairmen and district representa-
tives, though elected , and the field representatives , though
nonelected , from the three levels of the UFT hierarchy who
undisputedly are the policymakers for UFT as a whole.
The three at the top level, whose policymaking functions
are not in dispute, are.
a. The administrative committee (or Ad Comm)
The Ad Comm, as stated , is composed of the 11 elected
officers of UFT, of which the UFT president is chairman. It
initiates UFT policy ("recommends" it, is Shanker 's term),
which is passed upon at the next two successive levels, i.e.,
(b) and (c) below . The officers comprising the Ad Comm
are elected by the membership at large , except the four vice
presidents , who are elected divisionally (i.e., elementary
school , junior high school , and the two senior high schools,
one academic , the other vocational).5
b. The executive board
That is a 30-member body. (Loiacono had given the
figure at 51, Shanker at 30, without rebuttal, or apparent
concern over whether it makes any difference.) They are
elected, some at large, some divisionally (the last being
along the same lines as the vice presidencies, see supra, fn.
5) They meet twice monthly, where, as stated, they pass
upon what the Ad Comm has initiated or "recommended."
They receive no pay from UFT.
c. The delegate assembly
The delegate assembly has the last word on UFT policy.
The delegates are elected proportionately among the
members in each school. (The ratio is one delegate for every
60 members in the school plus any fraction of 60, and every
school has at least one delegate even if its membership be
less than 60.) The assembly meets at least once a month
during the regular school year. Like the executive board,
the delegates are unpaid.
3. The duties of those at the fourth and fifth
level of the elected hierarchies (i.e., chapter
chairmen and district representatives, respectively),
and their comparison with those of field
representatives
A chapter chairman is the shop steward of his school or
chapter, and he is elected by the members of his chapter.
He recruits membership in UFT among the teachers in his
school, runs membership meetings at the school level,
handles grievances at the first step (i.e., at the school level),
and attends meetings of the chapter chairmen with the
officers of UFT, where they interchange information,
concerning, respectively, the feelings of the members on the
one hand and how the elected leadership is doing, on the
other. Chapter chairmen are unpaid.
chapters Nor does it matter
S Those at full time are the president and three other officers (viz, the
vice president for elementary schools and the legislative representative and
associate legislative representative) The remainder (i.e , the secretary and
assistant secretary, the treasurer and assistant treasurer , and the other three
vice presidents) are on part time All are paid by UFT ( at rates equivalent
to what they would normally be receiving in the school system)
UNITED FEDERATION OF TEACHERS LOCAL 2 357
A district representative, after being elected, continues to
teach, and his classes are arranged to enable him to leave at
11 a.m. He devotes the rest of the day, until 6 or 7 p.m., to
his duties with UFT, and for this he receives from UFT
$3,000 a year above his salary from the school system.
Loiacono testified that district representatives do what
field representatives have done in the past, and as example
cited their handling grievances at the second step (for which
they were indeed trained by the field representatives).
Shanker admitted there was considerable overlapping in
respect to what field and district representatives do.
However, Shanker stressed that district representatives and
their constituents (i.e., the chapter chairmen who elected
them and who, as stated, are themselves elected), are
"policymakers" within their respective bailiwicks because
they are the political "chiefs" of their areas. This role,
Shanker testified, has loomed larger in importance as a
result of the decentralization which the city school system
has been undergoing in the last few years-a matter to be
later treated. Also, district representatives, as elected
officials, serve no more than the term for which they are
elected. And no less. If a district representative does not
perform his assignments, then (as in the case of the elected
officers at the "first" level, who are compensated (supra, fn.
5)), UFT can at most cut off his pay but cannot dislodge
him from his post. He stays on for the remainder of his
elected term unless recalled by his constituents. On the
other hand, field representatives, as employees in the fullest
sense, can be discharged by UFT. However, under the
contract with TRU, they, like the others in the bargaining
unit, are given tenure, which elected functionaries are not
(and, as Shanker stressed in his testimony, should not, in a
democratic organization, where the membership must be
able periodically to oust the elected officers in favor of
persons more to their liking). Thus, these staff employees,
whose tenure does not depend on the outcome of any
election, are, under the contract with TRU, immune from
discharge except for "just cause" (art. VI) and as to this,
they enjoy the due process protections of a grievance-
arbitration procedure (art. XIV).
4. The confrontation between Shanker and
Loiacono
a. Background and events preceding Loiacono's
becoming president of TRU
Loiacono, a licensed teacher and a member of UFT, was
appointed field representative in 1966, a full-time fob, as
earlier stated. In December 1967, during the session of the
state legislature in Albany, Loiacono was detailed to a
special assignment as assistant legislative representative (an
appointive post not to be confused with the previously
mentioned elected offices of legislative and associate
legislative representative, that are constituent parts of Ad
Comm itself. See supra, In. 5). After nearly 2 years in that
assignment , Loiacono, on about October 6, 1969, was told
by Shanker he was being dropped from his legislative
assignment and returned to his job of field representative.
Loiacono then told Shanker he would run for president of
TRU, and when elected he would organize the district
representatives.
The onset to this last was told us by Loiacono. He
described his performance during his legislative assignment
fulsomely and by no means self-deprecatingly. He told of
how, under this assignment, he acted as lobbyist for UFT
during the two successive annual sessions of the state
legislature, made public addresses in various cities in the
state, and chaired a speakers' committee, where he trained
the speakers and arranged the meetings for their speeches.
He also told of his banner achievement in drafting
important legislation with which UFT had entrusted him.
In the fall of 1968, UFT had conducted a teachers' strike
that lasted 35 days. After it was settled, UFT, as Loiacono
testified, realized that it had found itself with its public
relations down because it had not come forward with a
decentralization plan for the city's school system, in which
the state legislature was interested. Loiacono told how the
Ad Comm had beaten the bushes for a suitable person to
draft a "viable" decentralization plan and finally found it in
him. It was a thorny assignment, but after arduous labor, in
which he reconciled opposing approaches, he smoothed out
a bill which, he testified, delighted the Ad Comm and which
it submitted to the legislature as the UFT bill. (It did not
pass, but neither did the other decentralization bills-either
Mayor Lindsay's or that of the Board of Regents.) He also
worked on amendments to the Taylor Act (restricting
strikes by public employees). He was at Shanker's side in
discussions with the governor and key members of the state
legislature. Loiacono testified he had understood, indeed
Shanker had told him, he was being groomed to succeed
Mrs. Alice Marsh as legislative representative when she, as
was then expected, would retire. When informed that he
was being dropped from that assignment, he reminded
Shanker that he had been prevailed upon to accept that
assignment with that inducement. (Shanker said he was
now merely deferring to the wishes of Mrs. Marsh, who
wanted another assistant.)
Loiacono testified he thereupon told Shanker this left him
,.in a very strange position," where unless he resigned from
membership in UFT, which he "was not about to do," his
only other "options" meant "crossing swords" with
Shanker. The first was to run as legislative representative,
which was not to take place until the following spring. The
second was to "yield to the pressure of my colleagues" to
run as president of TRU (where the election was to take
place the following week). Loiacono explained to Shanker
he had until then resisted the pressure to accept the
presidency of TRU because he knew that if he should run
for the office of legislative representative, while he was also
president of TRU, there would be a "conflict of interest"
and also an embarrassment in becoming a candidate for
office "on the Shanker ticket." Loiacono testified he then
told Shanker:
But if I am no longer assistant legislative representative
that conflict will no longer exist and if I run for
president of the Teachers' Representatives Union and
win, one of the first things we will do will be to organize
the district representatives.
Loiacono, as he testified, further told Shanker:
It's something we have been speaking about for a long
time, the motion had been passed by the T.R.U. to
organize the district representatives and . . . since you
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have voiced opposition to that, that means we will cross
swords, and I can't understand why you have put me in
this position where regardless of what options I choose,
you and I will cross swords.
Loiacono testified that Shanker at that time said this last
need not happen and proposed to Loiacono that he
organize the teachers in Newark, New Jersey. (Field
representatives are on occasion loaned out to the national
federation.) Loiacono testified he agreed to it. However,
nothing further in the record appears concerning it, so it
may be assumed nothing came of it.
Shanker testified that it was at that time that he told
Loiacono that if he organized the district representatives he
would discharge him for acting in breach of article VIII,
and he did so after Loiacono had said to him:
I'm going to run for president of T.R.U. I'm going to
run against Alice Marsh for legislative representative,
and I'm going to organize the district representatives.
Shanker testified that it was at this last "I 'm going to" that
he warned Loiacono that he would thereby be violating
article VIII of the contract. The two versions concerning
how Loiacono responded when he was dropped from his
assignment are hardly dissimilar, but to the extent that it
calls for resolution, the probabilities would indicate, and I
find, that Loiacono responded in the emotional terms
ascribed to him by Shanker. However, crediting Loiacono,
I find that Shanker did not then make the threat and
instead made the proposal to Loiacono about organizing in
Newark, presumably to placate him and possibly have him
reconsider his swordcrossing options.
b. Loiacono 's overtures to the district
representatives, and Shanker 's warning he would be
discharged if he sought to organize them
Loiacono was elected president of TRU on October 15,
1969. He testified he immediately wrote all the district
representatives inviting them to a meeting to be held on
October 20 with the field representatives "at which we were
to explore the possibility of organizing for district
representatives ." The meeting was to be held at the UFT's
executive board room , where TRU customarily held its
meetings . Loiacono testified, however, that in view of
Shanker 's feelings about organizing district representatives,
he realized that an arrangement for a meeting for that
purpose at UFT quarters "might have been an indiscre-
tion ," and so at the end of a discussion with Shanker (on
another TRU subject ) the following happened:
I said , "By the way , Al, I have called a meeting of the
distnct representatives and we 're planning to organize
them"; and I was about to say , "Would it be all right if
we use the executive board room" but, I never got it out
of my mouth.
He said "If you do, I'll fire you and anyone else who
comes to the meeting."
I responded , "Fire me? Why?"
He said, "Because the district representatives can't
have it both ways, and besides , you'll be violating your
non-political clause."
I said , "Come on , Al, what does the non-political
clause have to do with organizing distnct representa-
tives? The non -political clause says none of the field
representatives can run for office, nor can they solicit
candidates nor can they electioneer. What does that
have to do with my thinking as president of the staff
union?"
At that point he said, "I'll tell you what, Charley, I
feel more strongly about this, than I do about Ocean
Hill, Brownsville, and if you get yourself out on a limb,
I'll have no mercy. I will isolate anyone who comes to
the meeting or any distnct representative who comes to
the meeting."
Shanker testified he did not "specifically" remember
Loiacono's mentioning a proposed meeting with the distnct
representatives but he did recall that Loiacono, on being
told he was dropped from his legislative assignment,
responded in the manner corresponding to Shanker's
credited description. On the other hand, I have credited
Loiacono's testimony that at that earlier stage , Shanker
avoided a confrontation on the issue of organizing district
representatives by proposing he organize in Newark, which
never materialized. I find that the warning from Shanker
came after Loiacono told him of his intended meeting with
the district representatives , and was substantially as
Loiacono described it, except that Shanker, as he testified,
told Loiacono that by organizing the distnct representa-
tives, he "would essentially be involving himself in the
politics of the organization by trying to unionize people
who are elected officials at a particular level of the
organization."
Though the legality of a threat does not ordinarily turn
on its actual effects, the General Counsel himself developed
through Loiacono what happened thereafter. This was
received because the parties themselves thought all the
"nuances" of the case had significance , and, as stated, I felt
I was "entering a foreign jurisdiction" anyway.
Immediately after the interchange, which was at 5 p.m.,
Loiacono, as he testified, called a special meeting among
those staff employees who had not yet left for home and
told them of Shanker's threat. He testified they were
incensed and were with him to a man in suggesting he hold
that meeting even if a hotel room had to be rented for it. He
testified that the next morning he met with all the other
staff people, and they too were "adamant" and with him to
a man. Except the men on the publication staff. They did
not share the enchantment with organizing the district
representatives, and asked for a meeting of the staff
employees to be given an opportunity to "voice [their]
dissent," which Loiacono granted. As to the outcome,
Loiacono testified:
At the meeting we discussed the efficacy of organizing
district representatives and to my dismay and the
dismay of many of the members , T.R.U. voted down
that motion and voted not to organize district
representatives.
Loiacono, as of the time of the hearing, was no longer
field representative and had apparently left of his own
accord. One gathers , tangentially from Shanker's
testimony in another context, that Loiacono, as of the
time of the hearing before us, was now heading a
"political party" of his own in opposition to Shanker's
for the forthcoming UFT election. Presumably, that has
UNITED FEDERATION OF TEACHERS LOCAL 2 359
already taken place. As to what came of it all, that I
cannot say.
C. Discussion and Analysis
1. Opposing positions
The General Counsel follows a straight line leading him
to the untroubled conclusion that Shanker's threat to
Loiacono was an invasion of rights of employees under
Section 7, thereby violating Section 8(a)(1) of the Acts On
the premise that district representatives, though elected by
members of Respondent, are employees within the meaning
of the Act and thus have the right under Section 7
themselves to organize, he states that field representatives
under the rights guaranteed them by Section 7 have the
right to organize the district representatives, thereby
rendering illegal Shanker's threat to Loiacono.
The General Counsel states Respondent "practically
admits" that the district representatives have themselves the
right to organize. This statement needs qualifying. It stems
from Shanker's response, during his testimony, to whether
he regarded district representatives as having the right to
organize . He replied that the question was never put to him,
and not being a lawyer, he would have to consult counsel,
but that even if district representatives had that right, field
representatives, under their agreement in article VIII that
they would not "engage in UFT political activity," could
not organize them, since it would involve them in political
"infighting." Respondent, indeed, frames the issue of the
legal effect of Shanker's warning on the basis of article
VIII. The brief states:
This question is not whether or not district representa-
tives have the right to organize. As Mr. Shanker
testified, that question was never put to him. The sole
question for the trial examiner to resolve is whether or
not an attempt by TRU to organize political employees
of the UFT constituted a violation of Article VIII of
their collective-bargaining agreement. If it does, then
the warning to Mr. Loiacono was proper under the
terms of the Agreement.
The General Counsel finds article VIII to be no deterrent
to the conclusion that the threat was a violation. He states
Respondent "confuses the political activity of the district
representatives with the union activity of the field
representatives, the latter being a right guaranteed by the
National Labor Relations Act." He continues:
Even though district representatives may be political
employees, they are nevertheless employees who may
organize; and it does not follow that an agreement not
to engage in political activity removes the protection of
6 Sec 7 states.
Employees shall have the right to self-organization , to form, join or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection
7 The General Counsel in anticipation of an argument that district
representatives are "managerial employees"-which Respondent has not
specifically made-cites Retail Store Employees Union, Local 880, 153
NLRB 225, on the proposition that the duties of district representatives, in
this setup involving a public educational system, are, in a sense, like
business agents and organizers in labor organizations dealing with industry.
He additionally cites Retail Store Employees Union Local 428, 163 NLRB
the Act from field representatives who engage in union
activity. The political activity engaged in by district
representatives does not rub off on field representatives
merely by the latter's attempt to organize the former. It
does not follow that when a union contracts not to
engage in political activity that it does so when it
attempts to organize a political group of employees. So
long as they are susceptible of organization and fall
within the meaning of Section 2(3) of the Act, the
organization effort by an established group of employ-
ees is a protected activity regardless of a contractual
obligation not to engage in political activity, and any
attempt to thwart the organizational activity is violative
of the Act.
2. The peculiarities of the case eluding a
conventional approach
The above is stated as a self-evident proposition without
documentation, or need for it, once we accept the premise
that district representatives, though elected for a term
under a political process, have the right themselves to
organize. The elusive aspect here is that however the
clinical aspects of liability may check out in the convention-
al sense , this is a most unconventional situation, which
eludes diagnosis or even our area of therapy-at least with
the species of mammal handed to us.
The circumstances here transcend the question of what
the rights of the district representatives are and what the
rights of field representatives are in the light of it. This is
because the situation taken as a whole is basically a power
struggle between two personalities, in which the Charging
Individual was implementing his feud with Respondent's
president in reprisal for his replacement as assistant
legislative representative and his elimination as a prospec-
tive candidate for high office "on the Shanker ticket."
A definitive answer to whether district representatives
themselves have the right to organize need not here be
made, and in any event would involve more than what the
General Counsel has assumed as his premise without more.
They are indeed a unique creation, for which specific
precedent is not cited and for which I have not found a
helpful prototype.7
The elected post of district representative was created at
about the time the city's school system was being
decentralized. Under decentralization, most of the power of
the central body has "spun off" to the respective
community boards in each of the 31 school districts in the
city. These boards appoint their own superintendent and
employ their own supervisors (from qualifying instead of
competitive lists). Shanker explained that the UFT is being
431, fn. 4, in treating the fact , later discussed , that a third to a half of the
district representatives are members of the UFT's executive board (They
are elected for that office separately from their posts as district
representatives ) He states that those who are on the UFT executive board
are probably managerial employees, who would thus not be included in a
bargaining unit, as in the Local 428 case . He indicates , however, that this is
a separate matter to be decided when and if there should be a
representation case concerned with that issue . He adds that in any event
being a managerial employee and thus not eligible for inclusion in a
bargaining unit is, under the Board 's recent holding in North Arkansas
Electric Cooperative, 185 NLRB No 83, not the test of whether such a
person is an employee under Sec. 2(3) within the protection of Sec. 7.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restructured in order "to deal with the new centers of power
on the managerial side ," and the district representatives are
in a sense counterparts of the community superintendents.
The district representatives now carry the main burden of
the handling of grievances at the second step (i.e., at the
district level). They also meet regularly with the shop
stewards in their district, deal with the community school
boards, and with the community superintendent, make
recommendations on who should be supported for office.
In regard to the latter , they actually conclude these
recommendations in respect to persons who fall within their
district . He characterized the district representative and the
chapter chairmen in his district as being in this sense a
"kind of executive board or policymaking function group
for that district." This last is not actually incorporated into
the constitution (which is not in the record). However,
though a district representative 's post may not as such be a
policymakmg one, the intermeshing of their work with
policymakmg is exemplified by the extent to which such a
large proportion of them (a third to a half) have also been
elected to UFT executive board and thus occupy both
positions . This bears upon the situation in which the
Charging Individual had thrust himself in his political
reprisal efforts against the UFT president.
Shanker explained article VIII as the accommodation
between two needed considerations in a democratic
organization , which on occasion are in collision with each
other . At one end is the need to give the members the
opportunity for a periodic reevaluation of those they have
voted into power, by either deciding to continue them in
their stewardship or oust them in favor of those whom they
might now prefer instead . In that situation, it is the
electorate that is boss, and the elected persons do not retain
power or continue in their stipend beyond their elected
terms-as indeed they should not.
At the other end is the need for the continuity of the
organization 's servicing functions . Those are performed by
a permanent staff , hired on the basis of meeting profession-
al qualifications, and who, after a year 's probation in which
they have demonstrated their qualifications for the job,
have a tenure under which, as previously stated, they are
immune from discharge except for "just cause" (art. VI),
and as to this have the due process protection of a
grievance-arbitration procedure (art. XIV). Shanker ex-
plained that the concept of tenure for these persons, and
specifically field representatives , was developed even before
the earliest of the collective-bargaining contracts with the
labor organization (presently the TRU), which represents
them . They are, as Shanker described them, a sort of "civil
service" within the organization-a concept hardly unfa-
miliar to these persons , who are licensed teachers in a
public educational system . To insure objectivity in the
performance of the organization's servicing functions, and
to put them in a position to perform without fear of
reprisals either by those in power when reelected or by
those who have been newly elected, it is necessary that they
not embroil themselves in the partisan politics of the
organization.
Shanker testified that in exchange for the tenure thus
accorded them under the contract, these persons also
submitted to the restrictions under article VIII. To be sure,
the examples specifically cited in article VIII are those to
which Loiacono alluded in his confrontation with
Shanker-"electioneering, or holding or running for
office ." But article VIII states that the political activity thus
forbidden includes but is not "limited" to the examples
specified. Political activity can exist when two factions are
in dispute over policy and one group openly allies itself with
either of the competing protagonists . In this instance, the
district representatives as elected functionaries, whose
responsibilities are to their constituents , are indeed the
political heads of their districts . As Shanker explained it, it
is these persons that the contestants for high office seek to
enlist for their support in a forthcoming campaign . It is in
that connection that he cited the previously mentioned
reference to Loiacono, who, as stated , has since given up his
job as field representative , and at the time of the hearing,
was the head of a "political party" in opposition to
Shanker's in the then pending election . Each of them now
comes to these district representatives , as political heads of
their respective districts , in an effort to enlist their support
and use their influence over those members in their school
district. Organizing in a labor relations context , to be sure,
is a grouping of employees to cope with the employer
concerning the terms and conditions of the job, and in that
sense is to be differentiated from political activity. While
this is true in the generality of situations , organizing a
political group, at least in the context in which Loiacono
himself avowed he was undertaking it, could itself become a
subject for polemics not at the bargaining table but at the
stump . So, whatever might be said in other situations about
whether district representatives , though elected by a
constituency of the membership for a term , are nevertheless
employees under the Act, and thereby entitled themselves
to organize , or whether by that token field representatives,
as conceded employees , can organize them , we would be
dealing in sheerest abstractions to decide the issues in a
context in which the basic elements needed for determining
them have been obscured by the kind of conflict from
which the subject stemmed.
There is not a word in this record concerning any terms
or conditions Loiacono had in mind , or anyone else did,
when he spoke about organizing district
representatives-either for them or for his fellow field
representatives . All we know are his own words-that
Shanker had frustrated him in his aspiration to be "on the
Shanker ticket," and that he was accepting the presidency
of TRU to give the shaft to Shanker politically. This is
hardly a basis on which we should undertake to resolve the
kind of issues presented to us , where the only reality is the
death dealing combat over political favor . We should at
least have a more substantial basis on which to resolve the
elements on which the General Counsel builds his case for
the violation here claimed-more particularly in an area
concerned with a public educational system , where we find
ourselves grouping for analogies in industrial life that are
somewhat elusive in the present situation. And this brings
us to the following:
D. Conclusion
The context of the case as a whole prevents a definitive
resolution of the basic elements on which the violation here
UNITED FEDERATION OF TEACHERS LOCAL 2 361
alleged is asserted , for they are totally overshadowed by the
elements of the political feud out of which the case arose.
This is not to say that the determination of whether a right
has been violated depends on the altruism or selfishness of
a person exercising it. It is simply a question of balance. On
the fundamental issues, we are presented with an abstract
mathematical theorem without the grip of reality providing
a definitive answer . Thus the question of whether district
representatives in the circumstances here presented have
the right to organize , despite the political involvements of
their posts , and the question of whether even if that were so,
the field representatives may organize them in the face of
the restrictions to which they submitted under Article VIII
could well await another day, genuinely presenting these
issues.
Concerning this last , the grievance-arbitration clause (art.
XIV) renders arbitrable "[a]ny dispute or grievance relating
to this agreement or its interpretation ." This, at least,
provides a forum , if anyone feels genuinely aggrieved, for
passing upon the intent of the parties in respect to the scope
or limits of the restrictions placed on article VIII. To be
sure , the Board , since Cloverleaf Division of Adams Dairy,
147 NLRB 1410, has indicated that it will not, as a matter
of policy, defer to arbitration , unless an award has been
rendered or is pending , and which, if decided, will put the
issue at rest . Whatever might be said for this last in the
ordinary situation, the arbitrator' s special insights in the
"industry" here involved 8 could well be the more
appropriate answer in these particular circumstances. But
whether this last is so or not , the conclusion in this case is
that it would not effectuate the policies of the Act to exalt
what was basically a political feud to the stature of a
genuine labor relations problem.
The situation is sui generis and the disposition is a
pragmatic one confined to its own individual circum-
stances.
RECOMMENDED ORDER
Accordingly, on the basis of all the foregoing, I hereby
recommend that the complaint be dismissed.
8 Steelworkers v Warrior & Gulf Navigation , 363 U.S 574, Steelworkers
v Enterprise Wheel & Car Corp, 363 U.S 593