[ v17 p796 ]
17:0796(110)CO
The decision of the Authority follows:
17 FLRA No. 110
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-66
Respondent
and
JAMES A. CONFER, JR., An Individual
Charging Party
Case No. 4-CO-30026
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the General Counsel filed exceptions to
the Judge's Decision, and a supporting brief.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, except as modified
herein.
Noting particularly the absence of any exceptions thereto, the
Authority adopts the Judge's conclusion that the Respondent Union
violated section 7116(b)(1) of the Statute by expelling James Confer, a
Union member, because he filed or caused other employees to file unfair
labor practice charges under the Statute against the Respondent Union.
/1/ The record supports the Judge's finding that Confer was removed from
Union membership for engaging in such protected activity under the
Statute. Thus, the Respondent interfered with the protected rights of
employees under section 7102 of the Statute "to form, join, or assist
any labor organization, or to refrain from any such activity." /2/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the National Association of Government Employees, Local R5-66, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its members in
the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute by expelling, fining, or
otherwise disciplining a member because he has filed, or has
caused other employees to file, unfair labor practice charges
against the National Association of Government Employees, Local
R5-66, with the Authority.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Unconditionally offer to reinstate James A. Confer, Jr., as
a member in good standing of the National Association of
Government Employees, Local R5-66, with full rights of membership,
and, if tendered, accept payment of his dues uniformly required as
a condition of retaining membership, either by direct payment by
Mr. Confer or by allotment pursuant to section 7115(a) of the
Statute, covering the period beginning with his receipt of the
unconditional offer of reinstatement.
(b) Rescind the decisions of the Trial Board of the National
Association of Government Employees, Local R5-66, of June 24, 1983
and January 5, 1984, with respect to James A. Confer, Jr.
(c) Post at the business office of the National Association of
Government Employees, Local R5-66, and in normal meeting places,
including places where notices to members of and unit employees
exclusively represented by the National Association of Government
Employees, Local R5-66, are customarily posted, copies of the
attached Notice on forms furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the president of the National Association of Government Employees,
Local R5-66, or a designee, and shall be posted for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to members and to other employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are
not altered, defaced, or covered by any other material.
(d) Submit appropriate signed copies of said Notice to the
Veterans Administration Medical Center, Memphis, Tennessee, for
posting in conspicuous places where unit employees exclusively
represented by the National Association of Government Employees,
Local R5-66, are located, where they shall be maintained for 60
consecutive days from the date of posting.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IV, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
Issued, Washington, D.C., May 8, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT interfere with, restrain, or coerce our members in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute by expelling, fining, or otherwise disciplining a
member because he has filed, or has caused other employees to file,
unfair labor practice charges against the National Association of
Government Employees, Local R5-66, with the Authority. WE WILL NOT in
any like or related manner interfere with, restrain, or coerce employees
in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute. WE WILL unconditionally offer to
reinstate James A. Confer, Jr., as a member in good standing of the
National Association of Government Employees, Local R5-66, with full
rights of membership, and, if tendered, accept payment of his dues
uniformly required as a condition of retaining membership, either by
direct payment by him or by allotment pursuant to section 7115(a) of the
Statute, covering the period beginning with his receipt of the
unconditional offer of reinstatement. WE WILL rescind the decisions of
the Trial Board of the National Association of Government Employees,
Local R5-66, effective June 24, 1983 and January 5, 1984, with respect
to James A. Confer, Jr.
(Union)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region IV,
Federal Labor Relations Authority, whose address is: 1776 Peachtree
Street, NW., Suite 501, North Wing, Atlanta, Georgia 30309, and whose
telephone number is: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Richard G. Remmes, Esquire
For Respondent
Pamela B. Jackson, Esquire
Brief by: Edward P. Nichols, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY, Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /3/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1 et seq., concerns, first, whether, under the Statute, a
union may expel a member for any reason other than the failure to tender
dues uniformly required and, second, whether, if it may expel a member
for reasons other than the failure to tender dues, it may expel a member
filing, or for inducing and encouraging other employees to file, unfair
labor practice charges under the Statute against the union. This
proceeding was initiated by a charge, filed on July 5, 1983 (G.C. Exh.
1(a)), and a First Amended Charge, filed on August 26, 1983 (G.C. Exh.
1(c)). The Complaint and Notice of Hearing Issued on August 30, 1983
(G.C. Exh. 1(e); the Notice of Hearing stated that the date and place
of hearing would be designated later; by Order dated November 16, 1983
(G.C. Exh. 1(d)), the hearing was set for December 12, 1983, in Memphis,
Tennessee; and pursuant thereto a hearing was duly held on December 12,
1983, in Memphis, Tennessee, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues and were afforded, and
exercised, the opportunity to present oral argument; however, oral
argument served only to highlight, not to explore, the issues. At the
close of the hearing, January 12, 1984, was fixed as the date for
mailing post hearing brief and each party has timely mailed a brief,
received on, or before, January 16, 1984, which have been carefully
considered. Upon the basis of the entire record, I make the following
findings and conclusions:
Findings
The facts are not in dispute as the only witness, called by the
General Counsel, was Mrs. Drew Boykin, a/k/a Mrs. Tommie Boykin,
President of National Association of Government Employees Local R5-66
(hereinafter, also, referred to as the "Union"). The Union represents
certain non-professional employees of the Memphis Veterans
Administration Medical Center as more fully set forth in Paragraph 5(a)
of the Complaint (G.C. Exh. 1(e)).
1. The VA Hospital employees have been represented since 1958 or
1959; initially, by American Federation of Government Employees, Local
1890; then by an independent union AGEA Local No. 1; and since about
August, 1968, by the Union. Mr. Boykin had been president of each local
union from 1958, or 1959, until his death in June, 1974 (Tr. 47-49);
Mrs. Boykin, although not a government employee (Tr. 49), was elected
president in August, 1974, and has served as president continuously
since 1974. Mr. James Confer is an employee of the VA Hospital (Tr.
10-11); was a member from the time the Union was an independent and
remained a member, except for a period when he resigned and later
re-joined (Tr. 50-51), /4/ until his expulsion, as more fully set forth
hereinafter; at one time was vice president of the Union; and had
twice been a candidate for president of the Union and lost on each
occasion to Mrs. Boykin (Tr. 51-52).
2. On, or about, May 31, 1983, an unfair labor practice charge was
filed with the Authority by a Ms. Dorothy B. Call (Case No. 4-CO-30022;
G.C. Exh. 6). Upon receipt of the unfair labor practice charge,
Mrs.Boykin testified that a ". . . steward came to me and said that . .
. she (Call) had gone to Mr. Confer for help and that his help was
bringing her ULPs to sign. . . ." (Tr. 16), she contacted the other
members of the Union's Executive Board to ". . . to ask permission to
bring charges" (Tr. 21) against Mr. Confer. Indeed, Mrs. Boykin
conceded that,
"The immediate reason why I contacted the Union's Local
Executive Board concerning the expulsion of James Confer was an
incident involving Confer and an employee, Dorothy Call." (Tr.
24).
3. Mrs. Boykin proceeded to write up charges against Mr. Confer,
together with a covering letter, dated June 24, 1983 (G.C. Exh. 9),
advising Mr. Confer, inter alia, that "The attached charges of
misconduct have been brought against you by the Executive Board of the
Local"; that "The NAGE Trial Board will meet Saturday, July 9, 1983 at
9:00 a.m. . . . for a hearing on these charges." The Charge of
Misconduct, attached to Mrs. Boykin's letter, asserted conduct in
violation of the National Constitution and By Laws: /5/ stated
generally, in the language of the Union's Constitution and By Laws, that
Mr. Confer had "engaged in actions that have been conducive to
secessionists movements in that you have recommended that employees use
either you or your attorneys as representatives rather than avail
themselves of representation by this Local. You have willfully
circulated libelous and slanderous false statements and reports
concerning officers, members and activities of the Local. You have
maliciously brought or encouraged as well as aided others in bringing
false charges against officers and members of the Local without
reasonable grounds for believing such charges to be true. You, in fact,
have known that these charges were not true. All of the above actions
have been for the deliberate purpose of causing internal dissension and
disruption", by the following specific acts: /6/
1. In June, 1982, you attempted to represent a VA Hospital
technician in a promotion grievance.
2. Another employee sought to use your attorney as his
representative and stated that you and a former president of an
AFGE Local had assisted him in preparing his grievance.
3. In June, 1982, you circulated an unfair labor practice
petition (actually a charge-- (see G.C. Exh. 7) and garnered 50
signatures. The charge (actually filed on August 16, 1982, not
June 22, 1982, as stated by Mrs. Boykin) alleged failure to
represent, allowing time limits on grievances to expire, etc.
4. In October, 1982, former steward Clyde Gatewood filed an
unfair labor practice petition (charge) (G.C. Exh. 4) which was
handled by you as the envelope was addressed in your handwriting.
5. In November, 1982, Emma Jordan filed an unfair labor
practice petition (charge) (G.C. Exh. 5), which was also handled
by you as the envelope was addressed in your handwriting.
6. In October, 1982, you requested that the President assist
you in resolving a complaint you had filed alleging excessive use
of sick leave by female employees.
7. In April, 1983, a steward was asked to type a letter to the
Hospital Director requesting that you be represented by someone
other than the President.
8. In May, 1982 (actually 1983), see G.C. Exh. 6), you
persuaded Ms. Dorothy B. Call to file an unfair labor practice
petition (charge).
4. Mrs. Boykin testified that the Authority issued no complaint on
any of the unfair labor practice charges (G.C. Exhs. 4, 5, 6, 7) (Tr.
50); however, the record does not show the disposition of any charge
referred to /7/ in the internal Union charges against Mr. Confer, and
the record affirmatively shows that Mrs. Boykin took immediate action
against Mr. Confer upon receipt of the Call unfair labor practice
charge.
5. Although the statement of charges against Mr. Confer contained
matters unrelated to the filing of unfair labor practice charges
pursuant to Sec. 16(b) of the Statute (See, Paragraph 3, above, numbered
specific acts 1, 2, 6 and 7), it is clear, from the statement of charges
and from the testimony of Mrs. Boykin, that the central and controlling
gravamen of the charges, and the grounds asserted at the Union's hearing
thereon, was that Mr. Confer ". . . willfully circulated libelous and
slanderous false statements and reports concerning officers, members and
activities of the Local"; that he "maliciously brought or encouraged as
well as aided others in bringing false charges against officers and
members of the Local without reasonable grounds for believing such
charges to be true"; and that he had known ". . . that these charges
were not true", all of which concerned the unfair labor practice charges
filed with the Authority pursuant to Sec. 16(b) of the Statute (Tr.
11-12, 13-14, 15, 16, 19, 23, 24, 25, 26-27, 29, 30, 31, 33, 34, 36, 37,
46, 47, 63-64).
6. The Union's Trial Board met, pursuant to the notice to Mr. Confer
dated June 24, 1983 (G.C. Exh. 9), on July 9, 1983; Mr. Confer did not
appear (Tr. 40); Mrs. Boykin and other witnesses testified in support
of the charges; and the Trial Board, after deliberating 15 to 20
minutes (Tr. 39), rendered its decision to expel Mr. Confer from the
Union (Tr. 39).
7. By letter dated July 18, 1983 (G.C. Exh. 8), Mrs. Boykin, as
President, advised the Chief, Fiscal Division, V.A. Hospital, Memphis,
Tennessee, that,
"Mr. James A. Confer is no longer a member of NAGE Local R5-66.
Please remove his name from our dues deduction listing as soon as
possible but no later than the next full pay period." (G.C. Exh.
8).
Conclusions
A. Power of unions to expel from membership.
The threshold question is whether a union may expel a member for any
reason other than the failure to tender dues uniformly required. As the
Authority has previously held, when internal affairs of the union
clearly are involved, discipline, including expulsion, is not cognizable
under Sec. 16(b) of the Statute as an unfair labor practice; however,
any such discipline is subject to Sec. 20 of the Statute and any
complaint of violation of Sec. 20 shall be filed with the Assistant
Secretary of Labor for Labor-Management Relations pursuant to Sec. 20(d)
of the Statute (5 U.S.C. 7120(d)), and the Regulations duly issued
thereunder, 29 C.F.R.Parts 207, 208 and 209. American Federation of
Government Employees, Local 2000, AFL-CIO and Wilder M. Mixon, An
Individual, 8 FLRA No. 125, 8 FLRA 718 (1982); American Federation of
Government Employees, Local 945, AFL-CIO (Veterans Administration
Medical Center, Tucson, Arizona) and Linda S. Moore, An Individual, Case
No. 8-CO-20006-2, Administrative Law Judge Decisions Report No. 30,
September 2, 1983. See, also, Local 1858, American Federation of
Government Employees (Redstone Arsenal, Alabama), A/SLMR No. 275, 3
A/SLMR 274 (1973); American Federation of Government Employees, Local
1650, Beeville, Texas (Naval Air Station, Chase Field, Beeville, Texas),
A/SLMR No. 294, 3A/SLMR 416 (1973); American Federation of Government
Employees, Local 987, A/SLMR No. 420, 4 A/SLMR 509, 511 n. 5 (1974).
Although the Authority in Wilder M. Mixon, supra, directly held that,
". . . the allegation in the complaint may not be litigated
under section 7116 of the Statute. In this regard, the matters at
issue involve allegations that certain of the Respondent's conduct
was inconsistent with and violative of its constitution and
bylaws, and thus are matters within the exclusive jurisdiction of
the Assistant Secretary of Labor pursuant to the provisions of
section 7120 of the Statute. . . ." (8 FLRA at 718)
as a concomitant part of the decision, adopted by the Authority, was the
conclusion that Wilder M. Mixon's expulsion, for reasons other than the
failure to tender dues, did not violate rights protected by Sec. 2 of
the Statute for the reasons that,
"The concluding sentence of Sec. 16(c) (footnotes omitted) is
substantially similar to the proviso to Sec. 8(b)(1)(A) of the
National Labor Relations Act, indeed Section 9(b)(1) of H.R. 1589,
introduced by Congressman Ford on January 10, 1977, reflected the
format and followed the language of 8(b)(1)(A) and while other
bills, as well as the language as enacted, removed the provision
from (b)(1) and placed it in 16(c), the Legislative History
reflects a conscious intent to 'track' the substantially similar
provision of the NLRA. I conclude, fully in agreement with the
well reasoned decision of Judge Sternburg, in National Treasury
Employees Union and National Treasury Employees Union, Chapter 53,
Case No. 2-CO-3 (ALJ July 15, 1980) (adopted and affirmed by the
Authority, 6 FLRA No. 37, 6 FLRA 218 (1981)), that the concluding
sentence of Sec. 16(c) of the Statute, as does the proviso to
8(b)(1)(A) of the NLRA, 'assures a union freedom of self
regulation where internal affairs are concerned' although such
freedom of regulation does not extend to, or encompass the
imposition of penalties, 'for utilizing or participating in the
Authority's processes. . . .' . . . ." (8 FLRA at 728).
Although the Regional Attorney in his Brief concedes that, "The case
law developed under the Statute indicates that a Union apparently may
expel an employee . . . and be subject only to judgment by the Secretary
of Labor pursuant to Section 7120 of the Statute, unless its reasons
include the employee resort to the processes of the Authority. . . ."
(General Counsel Brief, pp. 5-6); that ". . . the General Counsel
submits that there exist valid bases upon which Respondent could have
expelled Confer . . . but once Respondent embarked upon a course of
expelling Confer because of his participation in Authority proceedings .
. . its basis for expulsion is unlawful" (General Counsel Brief, p. 5);
and squarely bottoms the unfair labor practice asserted herein on the
fact that Mr. Confer was expelled because he filed, or assisted others
in filing, unfair labor practice charges with the Authority and ". . .
once the sanction of expulsion is visited for resort to the Authority's
procedures, the matter enters the public domain because the unfettered
access to the third-party adjudicatory body (the FLRA) is paramount"
(General Counsel Brief, p. 6); nevertheless, as Respondent asserts
advice to the contrary /8/ (Respondent's Brief, Attachment A), it is
both appropriate and necessary to address the issue, namely whether a
union may expel a member for any reason other than the failure to tender
dues. The qualification relied upon by the General Counsel, i.e.,
imposition of discipline, including expulsion, for resort to the
Authority's procedures, is treated hereinafter.
Sec. 16(c) of the Statute provides as follows:
"(c) For the purpose of this chapter it shall be an unfair
labor practice for an exclusive representative to deny membership
to any employee in the appropriate unit represented by such
exclusive representation except for failure--
"(1) to meet reasonable occupational standards uniformly
required for admission, or
"(2) to tender dues uniformly required as a condition of
acquiring and retaining membership.
This subsection does not preclude any labor organization from
enforcing discipline in accordance with procedures under its
constitution or bylaws to the extent consistent with the
provisions of this chapter." (5 U.S.C. 7116(c)).
Sec. 15 of the Statute, "Allotments to representatives," in
subsection (a) provides for written assignments for deduction of union
dues and in subsection (b) provides, in relevant part, as follows:
"(b) An allotment under subsection (a) of this section for the
deduction of dues with respect to any employee shall terminate
when--
. . . .
(2) the employee is suspended or expelled from membership in
the exclusive representative." (5 U.S.C. 7115(b)).
As stated in Mixon, supra, the legislative history of the concluding
sentence of Sec. 16(c) of the Statute reflects a conscious intent to
"track" the substantially similar provision of proviso to Section
8(b)(1) the National Labor Relations Act. Sec. 16(a)(2) of the Statute
is the counterpart of Section 8(a)(3) of the NLRA. /9/ The statutory
language of Sections 8(a)(3), 8(b)(1) and (2) of the NLRA; the
legislative history of the Labor Management Relations Act, 1947; and
the decisions thereunder make it clear that union discipline, vis-a-vis
the union, was left to the unions (subject, however, to various legal
standards and strictures, See, Summers, "Legal Limitations in Union
Discipline", 64 Hav.L.Rev. 1049 (1951); and, later, also to the
provisions of the Labor-Management Reporting and Disclosure Act, 29
U.S.C. 401, et seq., and in particular Subchapter II-- "Bill of Rights
of Members of Labor Organizations", Secs. 411-415, Pub. L. 86-257, 73
Stat. 519, et seq., September 14, 1959), i.e., labor organizations,
pursuant to the proviso to Section 8(b)(1) were free to prescribe their
own rules with respect to the acquisition or retention of membership
therein so long as such action did not affect the individual's
employment; but when employment was affected, then the second proviso
to Section 8(a)(3) governed and no employee may discriminate against an
employee for non-membership in a labor organization (A) if he has
reasonable grounds for believing that membership was not available to
the employee on the same terms and conditions generally applicable to
other members, or (B) if he has reasonable grounds for believing that
membership was denied or terminated for reasons other than the failure
to the employee to tender dues and initiation fees uniformly required.
Further, a union violates Section 8(b)(2) if it causes, or attempts to
cause, an employer to violate Section 8(a)(3) with respect to an
employee to whom membership has been denied or terminated on some ground
other than his failure to tender the periodic dues and initiation fees
uniformly required.
The legislative history of the Labor Management Relations Act, 1947
(Taft-Hartley), which added all of the provisions in question, makes it
clear that Congress intended that labor organizations were free to
prescribe and to invoke their own rules except when implementation of
such rules affect an employee's employment rights. For example:
"MR. TAFT: The pending measure does not propose any limitation
with respect to the internal affairs of unions. They still will
be able to fire any members they wish to fire, and they still will
be able to try any of their members. All that they will not be
able to do, after the enactment of this bill, is this: If they
fire a member for some reason other than nonpayment of dues they
cannot make his employer discharge him from his job and throw him
out of work. That is the only result of the provision under
discussion." (Cong. Rec., Senate, April 29, 1947, p. 4318,
Legislative History of the Labor Management Relations Act, 1947
(80th Congress), printed for the Subcommittee on Labor of the
Committee on Labor and Public Welfare, United States Senate, 93d
Cong., 2d Sess. (January 1974), p. 1097 (hereinafter referred to
as "Legislative History-LMRA" followed by the page number of the
Committee print).
. . . .
"MR. TAFT: . . . The union could refuse membership; but if
the man were an employee of the company with which the union was
dealing, the union could not demand that the company fire him.
The union could refuse the man admission to the union, or expel
him from the union; but if he were willing to enter the union and
pay the same dues as other members of the union, he could not be
fired from his job because the union refused to take him.
"MR. PEPPER: Am I correct in assuming that it is the
interpretation of the Senator from Ohio and the Senator from
Minnesota that there is no provision of the bill which denies a
labor union the right to prescribe the qualifications of its
members, and that if the union wishes to discriminate in respect
to membership, there is no provision in the bill which denies it
the privilege of doing so?
"MR. BALL: Absolutely not. If the union expels a member of
the union for any other reason than nonpayment of dues, and there
is a union-shop contract, the union cannot under that contract
require the employer to discharge the man from his job. It can
expel him from the union at any time it wishes to do so, and for
any reason.
"MR. PEPPER: And the union can admit to membership anyone it
wishes to admit, and decline to admit anyone it does not wish to
accept.
"MR. BALL: That is correct. But the union cannot, by
declining membership for any other reason than nonpayment of dues,
thereby deprive the individual concerned of the right to continue
in his job. In other words, it cannot force the employer to
discharge him." (Cong. Rec., Senate, April 30, 1947, pp.
4400-4401; Legislative History-LMRA, p. 1142).
The decisions of the Board and of the courts also make this clear.
For example, in International Typographical Union, 86 NLRB 951, 25 LRRM
1002 (1949), although various other violations were found, including
violations of 8(b)(2) and 8(b)(1)(B), the Board found that the
threatened expulsion of any member for refusing to cooperate in the
operation of the union's unlawful "Collective Bargaining Policy" did not
violate Section 8(b)(1)(A), for the reason that,
". . . In our view, by including this proviso Congress
unmistakably intended to, and did, remove the application of a
union's membership rules to its members from the proscription of
Section 8(b)(1)(A), irrespective of any ulterior reasons
motivating the union's application of such rules or the direct
effect thereof on particular employees." (86 NLRB at 957, 25 LRRM
at 1006).
In Minneapolis Star & Tribune Co., 109 NLRB 727 (1954), the Board found
violations of 8(b)(1)(A), 8(b)(2), 8(a)(3) and 8(a)(1) by discrimination
as to an employee's right to work and for placing an employee at the
bottom of the seniority list for failure to report for picketing duty
during a strike, but held that imposition of a $500.00 fine did not
violate 8(b)(1)(A), because,
". . . It is well established that the proviso to Section
8(b)(1)(A) precludes any such interference with the internal
affairs of a labor organization." (109 NLRB at 729).
In NLRB v. Local 815, Teamsters (Montauk Iron & Steel Corp.), 290 F.2d
99, 48 LRRM 2065 (2d Cir. 1961), the Court held that the union violated
8(b)(1)(A) and 8(b)(2) by requiring employer to terminate payments to
contractual welfare and pension funds on behalf of an employee who had
been suspended for failure to pay a fine imposed for dual unionism; in
NLRB v. Eclipse Lumber Co., 199 F.2d 684, 31 LRRM 2065 (9th Cir. 1952),
the Court held that employer violated 8(a)(3)(B) when it discharged an
employee for failure to pay past union dues which had accrued prior to
valid union shop agreement; in Union Starch & Refining Co. v. NLRB, 188
F.2d 1008, 27 LRRM 2342 (7th Cir. 1951), the Court held that discharge
under a valid union shop agreement violated 8(b)(2), 8(b)(1)(A), and
8(a)(3) where membership was denied solely because of the failure to
attend union meeting and take loyalty oath to the union; and in Radio
Officers Union v. NLRB (A.H. Bull Steamship Co.) 347 U.S. 17 (1954), the
Supreme Court held, in part, as follows:
" . . . Lengthy legislative debate preceded the 1947 amendment
to the Act. . . . This legislative history clearly indicates that
Congress intended to prevent utilization of union security
agreements for any purpose other than to compel payment of union
dues and fees. . . . No other discrimination aimed at encouraging
employees to join, retain membership, or stay in good standing is
condoned." (347 U.S.at 40-41).
Of course, not every impact on employment violates the Act. For
example, a Union Committeeman was removed by the union as Committeeman,
his membership in the union being unaffected. As Committeeman he had
had superseniority which he lost when removed as Committeeman.
Subsequently, there was a layoff and he was laid off, together with
other employees, in order of seniority. Had he had superseniority as a
Committeeman he would not have been laid off. The General Counsel
refused to issue a complaint. Administrative Ruling Case No. F-1015,
April 2, 1959, 44 LRRM 1576.
Section 19(c) of Executive Order 11491, as amended, /10/ like Sec.
16(c) of the Statute, first provided that membership could be denied
only for failure to meet reasonable occupational standards uniformly
required or for failure to tender initiation fees and dues and then
stated that that paragraph did not preclude a labor organization from
enforcing discipline in accordance with its constitution or bylaws which
conform to the requirements of the Order; and the Assistant Secretary
made it clear that a labor organization could impose discipline,
including expulsion, for reasons other than the failure to pay dues.
Thus, he stated, for example:
"In my view, a labor organization may, pursuant to Section
19(c) of the Order, subject its members to discipline, including,
in appropriate cases, expulsion, to protect its continued
existence, if such discipline is meted out in accordance with
procedures under the labor organization's constitution or by-laws
which conform to the requirements of the Order." (American
Federation of Government Employees, Local 987, supra, 4 A/SLMR at
511, n. 5).
Congress, in enacting Sec. 16(c) of the Statute, made violation of
16(c) an unfair labor practice ("Similar language contained in section
19(c) of the Executive Order has been interpreted as an unfair labor
practice provision." (S. Rep. 95-969, p. 106; Legislative History, p.
766); but stated that,
". . . The subsection does not preclude a labor organization
from enforcing discipline in accordance with procedures under its
constitution and bylaws as long as such action is consistent with
the requirements of this chapter." (S. Rep. 95-969, p. 106;
Legislative History, p. 766).
The long history of the proviso to Section 8(b)(1)(A) of the NLRA;
the conscious inclusion of substantially like language in Section 19(c)
of Executive Order 11491; the interpretation and application of the
concluding sentence of 19(c) by the Assistant Secretary in a manner
wholly consistent with the proviso to 8(b)(1)(A) of the NLRA; and the
clear Congressional intent that the concluding sentence of Sec. 16(c) of
the Statute reserved to labor organizations their long recognized right
to enforce discipline in accordance with procedures under their
constitution or bylaws "to the extent consistent with the provisions of
this chapter," which, inter alia, includes the provisions of Sec. 20 of
the Statute, "Standards of conduct for labor organizations," leaves no
doubt that a labor organization may impose discipline, including
expulsion, for reasons other than the failure to tender dues, when
internal affairs of the union plainly are involved.
B. Exclusive Jurisdiction of the Assistant Secretary Under Sec. 20.
Pursuant to Sec. 20 of the Statute, the Assistant Secretary of Labor
for Labor Management Relations has exclusive jurisdiction over Standards
of Conduct, including safeguards against improper disciplinary actions
and proceedings for enforcement of standards of conduct, except where
the action does not concern an internal union matter but touches a part
of the public domain covered by the Statute. See, National Labor
Relations Board v. Industrial Union of Marine and Shipbuilding Workers
of America, AFL-CIO, 391 U.S. 418 (1966); National Treasury Employees
Union and National Treasury Employees Union, Chapter 53, 6 FLRA No. 37,
6 FLRA 218 (1981). Thus, in American Federation of Government
Employees, Local 2000, AFL-CIO (Mixon), 8 FLRA No. 125, 8 FLRA 718
(1982), the Authority stated, in part, as follows:
". . . the matters at issue involve allegations that certain of
the Respondent's conduct was inconsistent with and violative of
its constitution and bylaws, and thus are matters within the
exclusive jurisdiction of the Assistant Secretary of Labor
pursuant to the provisions of section 7120 of the Statute" (8 FLRA
at 718).
The Authority specifically noted, however, that in National Treasury
Employees Union and National Treasury Employees Union, Chapter 53,
supra, it had, ". . . found a violation of section 7116(b)(1) of the
Statute, and ordered a union steward reinstated to his union position, .
. . where it was determined that he would not have been removed except
for his having given testimony at an Authority proceeding." (8 FLRA at
718, n. 2).
Where, as here, union discipline is imposed, in whole or in part,
because a member has invoked the procedures of the Statute, it does not
concern an internal union matter, subject to the exclusive jurisdiction
of the Assistant Secretary, but touches a part of the public domain
covered by the Statute. /11/
C. Imposition of discipline for filing unfair labor practice charges.
It is well settled under the NLRA that, while the proviso to Section
8(b)(1)(A) assures a union freedom of self-regulation when its
legitimate internal affairs are concerned, such freedom of
self-regulation ceases and does not apply when discipline is imposed for
filing unfair labor practice charges for the reason, as the Board had
held and the Supreme Court agreed, ". . . that the overriding public
interest makes unimpeded access to the Board the only healthy
alternative, except and unless plainly internal affairs of the union are
involved." NLRB v. Industrial Union of Marine and Shipbuilding Workers
of America, AFL-CIO, 391 U.S. 418, 424 (1968). Cases before the NLRB
and the Courts to like effect are legion and no purpose would be served
in attempting to catalogue them since the rule of law is both clear and
settled. /12/ See, for example, NLRB v. Teamsters Local 294 (August
Bohl Contracting Co.), 470 F.2d 57, 81 LRRM 2920 (2d Cir. 1972).
The Authority, in National Treasury Employees Union and National
Treasury Employees Union, Chapter 53, 6 FLRA No. 37, 6 FLRA 218 (1981),
held, in part, that,
". . . it is no less interference with the section 7102
statutory right for a union to discipline or discriminate against
an employee for giving testimony in an Authority proceeding than
it is for an employer to do so as proscribed under section
7116(a)(4) of the Statute. Such interference with employee rights
under section 7102 is thus a violation of section 7116(b)(1) of
the Statute. However, this should not be construed as abrogating
the union's control of its own internal affairs in the absence of
a statutory violation such as here involved." (6 FLRA at 218).
Although the decision of the Authority in the Chapter 53 case, supra,
directly involved only discipline of a member for giving testimony in an
Authority proceeding, it is apparent, and I so conclude, that the
Authority's decision applies with equal force to the filing of unfair
labor practice charges with the Authority, i.e., that the same
overriding public interest which led the Supreme Court, under the
substantially similar provision of Section 8(b)(1)(A) of the NLRA, to
hold, in Marine Workers, supra, that notwithstanding the proviso to
Section 8(b)(1)(A), public interest required unimpeded access to the
Board, requires the same unimpeded access to the Authority except and
unless, as the Supreme Court held in Marine Workers, "plainly internal
affairs of the union are involved." This is shown by the decision of
Judge Sternburg, adopted by the Authority, in which he stated, as to
Sec. 16(c), as follows:
". . . the proviso . . . (Sec. 16(c)) with respect to internal
union affairs is similar to that contained in Section 8(b)(1)(a)
(sic) of the National Labor Relations Act. The National Labor
Relations Board, with Court approval, has concluded that while
Section 8(b)(1)(a) (sic) assures a union freedom of self
regulation where legitimate internal affairs are concerned, such
freedom of regulation does not extend to, or encompass, the
imposition of penalties for utilizing or participating in the
processes of the National Labor Relations Board. . . . (citation
of Marine Workers omitted) Accordingly . . . I find that . . . the
removal of a union steward for utilizing or participating in the
Authority's processes is cognizable under Section 7116(b) of the
Statute. . . ." (6 FLRA at 226).
In any event, as Congress intentionally patterned the concluding
sentence of Sec. 16(c) after the proviso to Section 8(b)(1)(A) of the
NLRA, the decisions of the Board and of the Courts construing the
proviso to Section 8(b)(1)(A) are fully applicable to the substantially
like provisions of Sec. 16(c) of the Statute.
The charges against Mr. Confer involved, in part, unfair labor
practice charges filed by employees other than Mr. Confer (Mr. Confer
also filed an unfair labor practice charge) as to which Mr. Confer was
alleged to have "handled" (Gatewood and Jordan) and/or to have
"persuaded" to be filed (Call); but whether an employee files an unfair
labor practice or whether the employee causes another employee to file
the unfair labor practice, discipline by a union of a member either, or
both, because he has filed an unfair labor practice charge or because he
has caused another employee to file an unfair labor practice violates
Secs. 16(c) and 16(b)(1) of the Statute. Cf., Philadelphia Moving
Picture Machine Operators' Union, Local No. 307, 159 NLRB 1614, 62 LRRM
1315 (1966), enf'd, 382 F.2d 598, 65 LRRM 3020 (3d Cir. 1967); Local
Union No. 204, Sheet Metal Workers' International Association (The
Majestic Company), 246 NLRB 318, 102 LRRM 1503 (1979).
General Counsel in his brief (Gen. Counsel Brief, p. 5, n. 4)
suggests that Internal Revenue Service, Washington, D.C., 6 FLRA No. 23,
6 FLRA 96 (1981), in which the Authority, following Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274 (1977), /13/
held that ". . . the burden is on the General Counsel to make a prima
facie showing that the employee had engaged in protected activity and
that this conduct was a motivating factor on agency management's
decision not to promote. Once this is established, the agency must show
by a preponderance of the evidence that it would have reached the same
decision as to the promotion even in the absence of the protected
conduct" (6 FLRA at 99), applies to unions. I fully agree. See,
American Federation of Government Employees, Local 1920, AFL-CIO, Case
No. 6-CO-20012 (OALJ-83-71, March 28, 1983); cf., Overseas Motor, Inc.,
260 NLRB 810, 109 LRRM 1225 (1982), enf'd . . . F.2d . . ., 114 LRRM
3447 (6th Cir. 1983). Nevertheless, Internal Revenue Service, supra, is
not applicable here for the reasons: a) Respondent has not asserted
that it would have disciplined Mr. Confer even if he had not filed, and
caused other employees to file, unfair labor practice charges; and b)
the General Counsel has affirmatively shown that Mr. Confer was
disciplined because he filed, and caused other employees to file, unfair
labor practice charges with the Authority. Thus, as General Counsel
states, ". . . only unfair labor practices were referenced to the
Executive Board by Boykin in seeking authorization to lodge charges
against Confer; the charges against Confer are laced with references to
Confer's activities in the unfair labor practice arena, and finally,
Boykin's tactics at the Trial Board clearly show that it was
predominately, if not solely, Confer's resort to the Authority that
motivated Respondent . . . the only evidence the Trial Board heard
concerned unfair labor practice charges. Thus, Boykin's statement of
charges referenced four unfair labor practice charges attributed to
Confer, and the only other documentary evidence before the board
consisted of these same four unfair labor practice charges. The only
testimonial evidence heard by the Trial Board was employee Jackson who .
. . related his conversations with Call wherein she confessed to
Confer's assistance." (General Counsel Brief, pp. 7-8). Accordingly,
the burden was on Respondent to show by a preponderance of the evidence
that it would have reached the same decision even if, hypothetically, it
had not been motivated by a desire to punish Mr. Confer for exercising
his protected right to file unfair labor practice charges and Respondent
has utterly failed to carry this burden. NLRB v. Transportation
Management Corp., . . . U.S. . . ., 103 Ct. 2469 (1983).
Respondent's discipline of Mr. Confer, whether by expulsion or by
fine, because he filed, or caused other employees to file, unfair labor
practice charges with the Authority violated Sec. 16(b)(1) of the
Statute. National Treasury Employees Union and National Treasury
Employees Union, Chapter 53, supra. Under the circumstances, it is
unnecessary to decide, and, accordingly, no opinion is expressed as to
whether such conduct also violates Sec. 16(b)(8) of the Statute.
To remedy the unfair labor practice, Respondent will be ordered to
forthwith offer Mr. Confer reinstatement to full membership in the
Union. If Mr. Confer accepts reinstatement, he shall, of course, be
obligated to tender dues uniformly required as a condition of retaining
membership; but he shall not be required to pay any initiation fee as
he was a member when unlawfully disciplined on June 24, 1983, for
filing, or causing other employees to file, unfair labor practice
charges with the Authority; nor shall he be liable for any dues which
may have accrued from June 24, 1983, to the date he is offered
unconditional reinstatement. General Counsel also requests that
Respondent "seek a waiver of time for any grievances Confer may have
wished to bring during the period when Respondent unlawfully refused his
membership." (General Counsel Brief p. 11). This request is denied for
the reasons: (a) the record contains no justification for such remedy;
and (b) the statute requires that,
"(b) Any negotiated grievance procedure . . . shall--
. . . .
(3) include procedures that--
. . . .
(B) assure such an employee the right to present a grievance on
the employee's own behalf. . . ." (Sec. 21(b)(3)(B)).
Nothing contained in the record shows, or even suggests, that the
negotiated grievance procedure does not, pursuant to the Statute, assure
employees the right to present grievances on the employee's own behalf.
If the agreement so provides, Mr. Confer was not prevented from filing
any grievance because he was refused membership in the Union, and in the
absence of appropriate grounds shown on the record such relief would be
wholly inappropriate.
Having found that Respondent interfered with employee rights under
Sec. 2 of the Statute in violation of Sec. 16(b)(1) of the Statute, it
is recommended that the Authority adopt the following:
ORDER
Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and
Sec. 2423.29 of the Regulations, 5 C.F.R. 2433.29, the Authority hereby
orders that the National Association of Government Employees, Local
R5-66, shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing its members in
the exercise of their rights guaranteed in the Federal Service
Labor-Management Relations Statute by expelling, fining, or
otherwise disciplining a member because he has filed, or has
caused other employees to file, unfair labor practice charges with
the Authority pursuant to Section 7116 of the Statute.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Forthwith offer to reinstate Mr. James A. Confer, Jr. as a
member in good standing of the National Association of Government
Employees, Local R5-66 with full rights of membership.
(b) Rescind the decisions of the Trial Board of the National
Association of Government Employees, Local R5-66 of June 24, 1983,
and of January 5, 1984, with respect to Mr. James A. Confer, Jr.
(c) Accept, if tendered by Mr. James A. Confer, Jr., payment of
his dues, from the date of his reinstatement, uniformly required
as a condition of retaining membership, either by direct payment
by Mr. Confer or by allotment pursuant to Sec. 15(a) of the
Statute.
(d) Post at the business office of the National Association of
Government Employees, Local R5-66, and in normal meeting places,
including all places where notices to members of the National
Association of Government Employees, Local R5-66 are customarily
posted, copies of the attached Notice on forms to be furnished by
the Authority. Upon receipt of such forms, they shall be signed
by the President of the National Association of Government
Employees, Local R5-66, and shall be posted for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall
be taken by the National Association of Government Employees,
Local R5-66 to insure that such notices are not altered, defaced,
or covered by any other material.
(e) Submit signed copies of said Notice to the Veterans
Administration Medical Center, Memphis, Tennessee, for posting in
conspicuous places where members of the National Association of
Government Employees, Local R5-66 are located, where they shall be
maintained for a period of 60 consecutive days from the date of
posting.
(f) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R.
2423.30, notify the Regional Director of Region IV, Federal Labor
Relations Authority, whose address is: Suite 501, North Wing,
1776 Peachtree Street, N.W., Atlanta, GA 30309, in writing within
30 days from the date of this Order, as to what steps have been
taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 12, 1984
Washington, DC
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE We hereby notify our members and all employees of the Veterans
Administration Medical Center, Memphis, Tennessee that:
WE WILL NOT interfere with, restrain, or coerce our members in the
exercise of their rights assured in the Federal Service Labor-Management
Relations Statute by expelling, fining, or otherwise disciplining a
member because he has filed, or has caused other employees to file,
unfair labor practice charges with the Authority pursuant to Section
7116 of the Statute. WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute. WE WILL forthwith offer to reinstate Mr. James A. Confer, Jr.
as a member in good standing with full rights of membership. WE WILL
rescind the decisions of the Trial Board of the National Association of
Government Employees, Local R5-66 of June 24, 1983, and of January 5,
1984, with respect to Mr. James A. Confer, Jr. WE WILL accept, if
tendered by Mr. James A. Confer, Jr., payment of his dues from the date
of his reinstatement, uniformly required as a condition of retaining
membership, either by direct payment by Mr. Confer or by allotment
pursuant to Sec. 15(a) of the Statute, 5 U.S.C. 7115(a).
(Labor Organization)
Dated: . . . By: (Signature) This Notice must remain posted for sixty
(60) consecutive days from the date of posting, and must not be altered,
defaced, or covered by any other material. If employees have any
questions concerning this Notice or compliance with its provisions, they
may communicate directly with the Regional Director, Region IV, Federal
Labor Relations Authority, whose address is: 1776 Peachtree Street,
NW., Suite 501-North Wing, Atlanta, GA 30309, and whose telephone number
is (404) 257-2324.
--------------- FOOTNOTES$ ---------------
/1/ In view of this finding, it is unnecessary to pass upon the
allegation that such actions also violated section 7116(b)(8) of the
Statute, as the remedy in any event would be the same.
/2/ Cf. National Treasury Employees Union and National Treasury
Employees Union, Chapter 53, 6 FLRA 218 (1981) (wherein the Authority
found that the right guaranteed to employees under section 7102 of the
Statute to form, join, or assist any labor organization, or to refrain
from such activity, is sufficiently broad to include within its scope
the right of an employee to appear as a witness in an Authority
proceeding to which the Union is a party and to give testimony
supporting or opposing the Union's interest in that proceeding).
/3/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(c) will be referred to, simply, as
"Sec. 16(c)."
/4/ As General Counsel notes in his Brief,
"Although not relevant to this proceeding, it apparently took the
filing, processing and settlement of an unfair labor practice charge for
Confer to become a member of Respondent. (Tr. 50-51)" (G.C. Brief, p.
2, n. 2.)
/5/ Article V, Section 1. (b) "Engaging in any activity or course of
conduct contrary or detrimental to the welfare or best interests of the
National Association of Government Employees or of a subordinate body,
or member."; (d) "Engaging in a secessionist movement or a movement
which has for its purpose the fostering of a rival organization"; and
(e) "Slandering or libeling an officer or member . . ., or willfully
circulating false statements or reports concerning such officers or
members, or concerning the activities of the National Association . . .
or its subordinate bodies, or otherwise engaging in malicious activities
such as the circulation of false statements for the deliberate purpose
of causing internal dissention and disruption." (G.C. Exh. 2).
/6/ The specific grounds asserted are not quoted but are briefly
summarized.
/7/ The record does show, as noted above in footnote 2, that Mr.
Confer's prior restoration to membership had been in settlement of an
unfair labor practice charge.
/8/ Respondent represents that the Union's Trial Board reconvened on
January 5, 1984, to reconsider the penalty imposed on Mr. Confer in
July, 1983, because, ". . . a Law Judge has informed the Union that the
Department of Labor regulations prohibits the expulsion of a union
member except for non-payment of dues and/or assessments." (Respondent's
Brief, Attachment A).
The basis for this assertion is not further shown; but if, contrary
to the representation, it stemmed from the colloquy at the hearing
between counsel for Respondent and the undersigned in which counsel was
asked to address in his brief whether, under the Statute, "does
discipline include the right of expulsion or do you have to discipline
in some other manner under the Statute" (Tr. 70), the assumption if made
from the question posed was without foundation, was made in error, and
was wrong.
/9/ Section 8(a)(3) of the NLRA provides for union shop agreements
which, of course, are not authorized or permitted by the Statute. To
more easily follow the references to the statutory language in decisions
under the NLRA, the applicable text of 8(a)(3) and of 8(b)(1) and (2)
may be helpful:
"8(a) It shall be an unfair labor practice for an employer--
. . . .
(3) 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: . . . (union shop proviso)
Provided further, That no employer shall justify any
discrimination against an employee for non-membership in a labor
organization (A) if he has reasonable grounds for believing that
such membership was not available to the employee on the same
terms and conditions generally applicable to other members, or (B)
if he has reasonable grounds for believing that membership was
denied or terminated for reasons other than the failure of the
employee to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining
membership."
"Sec. 8(b) It shall be an unfair labor practice for a labor
organization or its agents--
(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7: Provided, That this paragraph
shall not impair the right of a labor organization to prescribe
its own rules with respect to the acquisition or retention of
membership therein. . . .
(2) to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a)(3) or to
discriminate against an employee with respect to whom membership
in such organization has been denied or terminated on some ground
other than his failure to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership." (29 U.S.C. 158(a)(3); 158(b)(1) and (2)).
/10/ "(c) A labor organization which is accorded exclusive
recognition shall not deny membership to any employee in the appropriate
unit except for failure to meet reasonable occupational standards
uniformly required for admission, or for failure to tender initiation
fees and dues uniformly required as a condition of acquiring and
retaining membership. This paragraph does not preclude a labor
organization from enforcing discipline in accordance with procedures
under its constitution or by-laws which conform to the requirements of
this Order." (Executive Order 11491, as amended, Section 19(c)).
/11/ Nor can it matter that the Assistant Secretary might also remedy
the violation. See, for example, 29 C.F.R. 208.37 which provides:
"208.37 Prohibition of certain discipline.
"No labor organization or any officer, agent, shop steward, or
other representative or any employee thereof shall fine, suspend,
expel, or otherwise discipline any of its members for exercising
any right to which he is entitled under the provisions of the Act
(the Statute, 29 C.F.R. 207.19) or this chapter (Title VII of the
Civil Service Reform Act of 1978, 29 C.F.R. 207.1)."
At most, the jurisdiction of the Assistant Secretary over prohibited
discipline "for exercising any right . . . under the . . . Act or this
chapter" is concurrent with the jurisdiction of the Authority under Sec.
16 of the Statute, but in any event is not exclusive.
/12/ Although reference is sometimes made more generally to "the
Board's processes", see, Local 138, International Union of Operating
Engineers, AFL-CIO and Charles S. Skura, 148 NLRB 679, 681 (1964), it is
also clear that a union may expel a member for filing a decertification
petition with the Board under Section 9 of the NLRA, See, for example,
Tawas Tube Products, Inc., 151 NLRB 46, 58 LRRM 1330 (1965); Price v.
NLRB, 373 F.2d 443, 64 LRRM 2495 (9th Cir. 1967), cert. denied 392 U.S.
904 (1968); although imposition of a fine for circulation of a petition
for decertification violates Section 8(b)(1)(A) because such action is
not defensive but, rather, is punishment. NLRB v. Molders, Local 125,
442 F.2d 92, 77 LRRM 2067 (7th Cir. 1971).
/13/ Not referred to by the Authority in Internal Revenue Service,
supra, but the same principle with respect to the burden of proof was
adopted by the National Labor Relations Board in Wright Line, 251 NLRB
1083 (1981), enf'd 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S.
989 (1982), and is frequently referred to as the "Wright Line" rule.