17:0796(110)CO - NAGE Local R5-66 and James A Confer, Jr. -- 1985 FLRAdec CO



[ 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 s