[ v19 p520 ]
The decision of the Authority follows:
19 FLRA No. 66 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1738, AFL-CIO Respondent and VETERANS ADMINISTRATION MEDICAL CENTER SALISBURY, NORTH CAROLINA Charging Party Case No. 4-CO-47 DECISION AND ORDER The Chief Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Chief Judge's Decision and a supporting brief, and the Respondent filed an opposition thereto. 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 Chief Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Chief Judge's Decision and the entire record in this case, the Authority hereby adopts the Chief Judge's findings, conclusions and recommendation, as modified herein. The Complaint alleged that the Respondent, American Federation of Government Employees, Local 1738, AFL-CIO, violated section 7116(b)(1) and (3) of the Statute when it removed unit employee Kenneth Poteat from his position as Union steward because he discharged his duties as an employee by reporting to the Agency in compliance with Agency policy that another employee engaged in patient abuse. The Chief Judge found that "there is every reason to suspect that Poteat violated Union policy and that he was removed, in effect, for conduct unbecoming an officer." He further found that while the report of alleged patient abuse by a fellow employee caused his removal as steward, he could not find that the Union's motive in removing Poteat was punishment or reprisal. Section 7116(b)(1) of the Statute makes it an unfair labor practice for a labor organization "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter(.)" In agreement with the conclusion of the Chief Judge, the Authority finds that the section 7116(b)(1) allegation has not been established. Thus, reporting alleged patient abuse is not itself a protected right under the Statute, and the section 7116(b)(1) allegation must therefore be dismissed. However, contrary to the Chief Judge, the Authority finds that removing Poteat from his position as Union steward after he reported alleged patient abuse violated section 7116(b)(3) of the Statute. Section 7116(b)(3) makes it an unfair labor practice for a labor organization to "coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee(.)" As found by the Judge, all agency employees are required to sign a memorandum which provides that an employee who "witnesses any unkindness, rudeness, or violence of any kind toward a patient and does not promptly report it to the proper authority is subject to disciplinary action," including discharge. Poteat filed such a report which led to his removal as steward. The Authority finds that the Union's action in removing Poteat as steward in the circumstances of this case had the effect of coercing him or disciplining him for the purpose of hindering or impeding his work performance or the discharge of his duties as an employee. The Union's removal of Poteat thus violated section 7116(b)(3) of the Statute. 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 American Federation of Government Employees, Local 1738, AFL-CIO, shall: 1. Cease and desist from: (a) Coercing or disciplining a member of the labor organization for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee by removing the member from the position of Union steward because he made a report in accordance with Agency policy. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Reinstate Kenneth Poteat to his position as Steward-Building Management Service, Veterans Administration Medical Center, Salisbury, North Carolina. (b) Post at the business office of the American Federation of Government Employees, Local 1738, AFL-CIO, and in normal meeting places, including places where notices to members and unit employees represented by the American Federation of Government Employees, Local 1738, AFL-CIO, are customarily posted, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the President of the American Federation of Government Employees, Local 1738, AFL-CIO, or his designee, and shall be posted for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and other employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (c) Submit appropriate signed copies of said Notice to the Veterans Administration Medical Center for posting in conspicuous places where unit employees of AFGE, Local 1738, AFL-CIO, are located, where they shall be maintained for 60 consecutive days from the date of posting. (d) 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. IT IS FURTHER ORDERED that the portion of the complaint alleging violation of section 7116(b)(1) of the Statute be, and it hereby is, dismissed. Issued, Washington, D.C., July 31, 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 coerce or discipline a member of the labor organization for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee by removing the member from the position of Union steward because he reported patient abuse in accordance with Agency policy. WE WILL reinstate Kenneth Poteat to his position as Steward-Building Management Service, Veterans Administration Medical Center, Salisbury, North Carolina. (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 -------------------- Case No. 4-CO-47 Jane P. Danowitz, Esq. and Jimmy R. Whitman For the Respondent William H. Hardwick For the Charging Party Barbara S. Liggett, Esq. For the General Counsel Before: JOHN H. FENTON Chief Administrative Law Judge DECISION Preliminary Statement This is a proceeding under the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq. On December 30, 1980, the Acting Regional Director for Region IV, issued a Complaint and Notice of Hearing, alleging that Respondent, in violation of Section 7116(b)(1) and (3) of the Statute, /1/ removed employee Kenneth Poteat from his position as Steward-Building Management Service, because Poteat discharged his duties as an employee by reporting to the Agency in compliance with Agency policy, that another employee of the Agency engaged in patient abuse. Respondent admitted removing Poteat as Steward, but denied that Poteat was removed as Steward for reporting the incident of patient abuse and denied the commission of any unfair labor practice. The matter was heard on March 24, 1981, in Salisbury, North Carolina. All parties were afforded full opportunity to examine witnesses, to introduce evidence and to file briefs. On the basis of the entire record, including my observations of the witnesses and their demeanor, I hereby make the following findings of fact and conclusions: Findings of Fact Local 1738 represents over 1000 employees of the Salisbury Veterans Administration Medical Center, in units of professional and nonprofessional people. About 40 or 50 Building Management employees, including Kenneth D. Poteat, are in the nonprofessional unit. Poteat was hired as a housekeeper in December, 1979 and was assigned to the psychiatric ward in August. Shortly after his transfer into the psychiatric ward, one of the two Union stewards servicing the Building Management employees was promoted out of the unit, and the search for a successor was begun by Local 1738's Steward Committee, which consisted of Executive Vice-President Bobby Wilhelm and Chief Steward William Yost. At least three people were considered: Poteat, Ralph Fleming and Jimmy Cureton. After interviewing Poteat, the committee recommended him, notwithstanding his lack of experience, with the understanding he would learn on the job by observing other stewards. On August 7 the Committee recommended to Local President Jimmy Whitman that Poteat be appointed, noting that a "poll of building management service employees on several candidates showed a majority of support for Mr. Poteat." On August 15, Whitman appointed him steward. /2/ Poteat never took any part in any representational duties. His Union activities consisted of attendance of one Union meeting. Early in September, Chief Steward Yost received complaints about Poteat's appointment as Steward, and his relationship with management, particularly that he spent a great deal of time "cultivating" Building Manager Darrell Moore. At that time, Chief Steward Yost discussed these complaints with Local President Whitman and Executive Vice-President Wilhelm. Whitman advised the others that since Poteat had been a Steward for such a short time, they ought to give him a chance to work into being a good one. At about 10:30 a.m. on September 29, Poteat observed a Nursing Assistant punching and kicking a patient in the psychiatric ward. After telling another witness to the incident that he did not know whether he was going to say anything about it, he went to lunch. /3/ Upon his return he visited Building Manager Darrell Moore, told him of the incident, and asked what he should do. Moore told him he had to be the judge of that. Poteat then returned to the ward and confronted the Nursing Assistant, who told him that they were in a psychiatric ward, that you had to let those people know who was boss, and that he didn't come there to get hurt and he didn't care who knew it. Poteat then determined that he would make the report, but before leaving the ward was visited by Moore who told him that he had signed the memorandum promising to make such reports, and therefore had no alternative but to do it. He thereupon reported the incident to the Hospital Assistant Director. On the following morning Executive Vice-President Wilhelm and Chief Steward Yost visited him in the ward. They informed him that the telephone had been ringing all morning long with employee complaints. As recounted by Poteat, they told him: that people wanted me out of the union wanting to know what the heck I was doing, and I told them what had happened, and they let me sit there and tell them what had happened; and then after I got through telling them what I had reported, they told me that they didn't come up there for that, that they felt like I had "rendered myself useless" by reporting it, and that I didn't have the support of the Building Management employees. So I asked them, they told me that I should have come to them first being as I was a steward, and I asked them why, and they said they would have given me examples of employees that had been abused by patients and tried to make it more clear to me what position the employees was in . . . . They then invited him to take a poll to see how the Building Management employees felt about him. He suggested they take their own poll. They then took a sampling and reported back to Poteat the following day that it confirmed their view that nobody wanted him there anymore, and that he "could resign or be resigned." He refused to resign and on the following day, October 2, he received a letter from Local President Whitman removing him, effective immediately, from his position. The letter recited that the decision was based on the request of a large number of employees, that an overwhelming majority of Building Management employees did not trust him to properly represent them, and that it was necessary for the Union to have stewards who can represent employees. While Whitman's letter made no mention of the incident, it was based on a written recommendation from Steward Committee members Yost and Wilhelm, who said that they had talked to Poteat "concerning his action on September 29, 1980, and the effect this would have on his credibility and effectiveness" as a steward, and that they had concluded from their survey that he could no longer be effective. /4/ Removal from stewardship was the only respect in which Poteat's membership was affected. From this, Respondent argues that it did not attempt to interfere with Poteat's work performance. Noting the absence of evidence that any agent ever told Poteat that he should not have reported the alleged incident of patient abuse, and that Yost and Wilhelm told him they were not interested in his involvement in the incident, it argues that its only interest in the matter was its impact on his performance as steward and not on his performance as an employee. General Counsel argues that the purpose was punishment or reprisal for having reported the incident, as the swift removal of Poteat from his position would naturally discourage him and other employees from doing so, and the Union must be found to have intended the natural and foreseeable consequences of its actions. There is here no hard evidence that the Union was motivated to punish Poteat for breach of a policy against reporting patient abuse. There is, in fact, no evidence of such a policy, strongly as one suspects that, even if the Union does not openly buck the "regulation", it strongly disputes its implementation in some cases. Patient abuse, like police brutality, has much emotional freight, and it is clear that some staff members are fearful of it, if not victims of, the violence of patients. Since one man's application of necessary restraint may be viewed by another as unprovoked abuse, it is to be expected that there would be disagreement over what constitutes a reportable incident as opposed to defensive measures to be overlooked, and that ward staff, like policemen, would tend to unite in the effort to avoid second-guessing by authorities not directly involved in dealing with patients. Certainly the immediate and strong reaction of employees against Poteat which the Union here claims, suggests that a Union responsive to its members would disapprove of Poteat's conduct in this instance. Whatever happened, and we have no version but Poteat's, there is every reason to suspect that Poteat violated Union policy and that he was removed, in effect, for conduct unbecoming an officer. Nevertheless the Union, whether for reasons of conscience or of care and caution in a risky enterprise, evinced no concern, as such, with Poteat's report. At most, it told him that he should have first afforded it an opportunity to provide him (a man new to the ward) with examples of patient abuse of employees and to make clear to him the position the employees were in. Obviously, of course, Poteat's report caused his removal, for it led to the complaints which led to his removal. The facts of this record will not support a finding that the Union's motive in removing Poteat from office was punishment or reprisal. Rather, the evidence comports with the Union's professed purpose of removing an official who could no longer be effective. Nevertheless, if the Statute is viewed as prohibiting removal from office as punishment or reprisal, application of the common law principle that a person is held to intend the natural and foreseeable consequences of his actions would support an inference that such was the Union's purpose, for a clear consequence of such removal would be to discourage employees from complying with the patient abuse directive. /5/ Alternatively, it might be found that the nature of the conduct here renders motive irrelevant because it inherently tends to discourage employees/members from discharging their responsibilities as employees, i.e., that the Union's action is so destructive of the statutorily recognized obligation to the government that it cannot be tolerated, even where otherwise lawful objectives were at play. I need not resolve the question whether such an inference can appropriately be drawn, in view of my conclusion and recommendation that neither Section 7116(b)(1) or (3) was intended to curb a labor organization's power over its officers. Discussion and Conclusions There is a threshold question whether VA has standing to file this charge. That matter was resolved by the Authority in NTEU and NTEU Chapter 53, and IRS, 6 FLRA No. 37, in which it adopted the Judge's conclusion that any person may file a charge. As to the merits, the General Counsel contends that the removal of Poteat from appointive office violated Section 7116(b)(1) because it interfered with, coerced and restrained him in the exercise of the right to assist the Union as a steward by placing an impermissible price on such activity: a requirement that he reject a statutorily recognized duty owed his employer. He further argues that such conduct violated Section 7116(b)(3) because it had the natural and foreseeable effect of discouraging Poteat from discharging his duties to his employer, and is therefore to be viewed as having the purpose of hindering or impeding his work performance and of punishing him for doing his duty. Respondent counters that the Statute is designed to protect employees, as such, and members, as such, but not union officials or representatives, as to whom it has absolute power of appointment and removal. The Statute is silent in this context, with respect to Union officials. Explicitly, it protects employees in their right to form, join or assist labor organizations or to refrain therefrom, and members in their right to be free of coercion, discipline or fine "as punishment or reprisal, or for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee." The legislative history does not indicate whether Congress intended, in providing such protection, to intrude into the relationship between a labor organization and its representatives. In National Treasury Employees Union and National Treasury Employees Union, Chapter 53, supra, the Federal Labor Relations Authority held that the Union violated Section 7116(b)(1) when it removed a steward from office because he gave testimony in a proceeding before the Authority. In doing so, the Authority cautioned that its holding "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," and noted that its "order that the union steward be reinstated to his union position is, of course, confined to the circumstances of this case where . . . the union steward, except for his testimony at the Authority proceeding, would not have been removed from that position." The General Counsel, of course, argues that this case establishes that the protection literally accorded employees and members is not limited to shielding an individual from improper union conduct affecting employment or membership status as such, but extends to such persons in their capacity as union representatives. There is however, as discussed below, reason to believe that the protection afforded those who invoked the Agency's processes, or cooperate with it, is sui generis. The analog to this holding under the National Labor Relations Act may be helpful, although the parallel is somewhat weak for two reasons. While that Act, like this one, protects employees from union restraint and coercion in the exercise of their right to "form, join or assist labor organizations," Section 8(b)(1)(a) provides, in literal terms, for much greater deference to the right of a labor organization to manage its own internal affairs than is the case under our Statute. Thus the famous proviso to Section 8(b)(1)(a) states that the proscription of union restraint or coercion of employees in their fundamental right to form, join or assist contained in that "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 . . . . " Our Statute, in Section 7116(b)(4) and 7116(c), contains elaborate constraints on a union's right to discriminate with regard to the terms or conditions of memberships, and recognizes as privileged management of internal affairs only the right of a union to enforce "discipline in accordance with procedures under its constitution or bylaws to the extent consistent with the provisions of this chapter." In addition, there is in the NLRA no counterpart to Section 7116(b)(3)'s prohibition of union interference with its members' discharge of their duties as employees or Section 7101(b)'s command that "the provisions of this chapter should be interpreted in a manner consistent with the requirements of an effective and efficient government." Notwithstanding these distinctions, examination of private sector cases can be instructive. Unlike the Authority, the NLRB has made it clear that the right to file a charge, or to give testimony in a Board proceeding serves a public interest of overriding importance, and must be protected even in the case of supervisors /6/ and of union members subjected to discipline which is ordinarily beyond the Statute's reach. /7/ Thus, to preserve unimpeded access to the very machinery Congress created for the vindication of statutory rights, the Board with Court approval, has extended its protection to categories of employees not normally protected and to matters which are normally considered internal union affairs. The Board has consistently protected union officers from removal based upon the filing of a charge, /8/ whereas it will not protect them where the removal is based, for example, upon criticism of the union's handling of a grievance /9/ or support for a defeated candidate. /10/ On the other hand, it has found the fining of a member for opposing incumbent union officers violative of Section 8(b)(1)(a) on the ground the union has no legitimate interest to protect. /11/ Whatever the balance struck between the rights of members and the organization, it is clear that the rights of officers are more limited because they must be accommodated to the organization's interest in effective and cohesive leadership. In Industrial Union of Marine and Shipbuilding Workers, supra, the Supreme Court, in addressing a member's expulsion for filing a charge, held that "(a)ny coercion used to discourage, retard or defeat that access (to the Board) is beyond the legitimate interests of a labor organization . . . . (T)he overriding public interest makes unimpeded access to the Board the only healthy alternative, except and unless plainly internal affairs of the union are involved." Notwithstanding this strong policy, and the Board's adherence to it in cases involving removal of officers for invoking its processes, the only such case to reach U.S. Circuit Court review was reversed. In NLRB v. Boilermakers (99 LRRM 2855, CCA 5), a divided Court held the union was privileged to remove a steward because of his failure to pursue his discharge grievance under the collective bargaining contract before filing an unfair labor practice charge against his employer. An important consideration in that case was that the union policy which the officer defied was one of adherence to negotiated processes, and thus was in harmony with the national labor policy of achieving industrial peace through collective bargaining. That element is missing here. /12/ Nevertheless, the distinction drawn between the rights of officers is a strong one, as is obvious from its application in circumstances where a "natural and foreseeable consequence" of the union's action was to impair free access to the Board. The instant case also has certain parallels to the law elaborated under the LMRDA, 29 USC 411(a)(2) and Sec. 529. The first of these grants union members the "right to meet and assemble freely with other members; and to express any views, arguments or opinions; and to express at meetings . . . views, upon candidates in an election or upon any business properly before the meeting," with certain limitations. The latter makes it unlawful for a union or its agent "to fine, suspend, expel or otherwise discipline any of its members for exercising any right to which he is entitled . . . under this chapter." Two lines of court authority developed, one holding that a union could not discharge an officer or employee for such political activity, and the other holding that a union can compel political loyalty from its officials. The conflict was resolved by the Supreme Court on May 17, in Finnegan v. Leu (110 LRRM 2321). The Court unanimously held that the term "discipline" referred only to retaliatory actions affecting a member's rights as a member, and therefore did not protect business agents fired for supporting an unsuccessful candidate for local union president. Noting that the Statute referred to members, the Court found that both the language and the legislative history of the "bill of rights" showed that Congress sought to protect rank and file union members-- not union officers or employees as such. In so holding, the Court observed that the three disciplinary sanctions specifically enumerated in Section 529-- "fine, suspension and expulsion-- are all punitive actions taken against union members as members." It is to be noted that our Act, in addition to enumerating two forms of traditional union sanctions against members-- discipline and fines-- also prohibits coercion-- a term not necessarily limited to the customary internal sanctions such as fines, suspension or expulsion. Thus it is not so easy here, as it was in Finnegan, to conclude that Congress intended to limit the prohibited conduct to such punitive actions as unions take against their members as members. In sum, I find no clear guidance in the language of the Statute, in its legislative history or in decisions construing this law or the somewhat similar provisions of the NLRA and the LMRDA. I think it is clear that cases protecting the right of union officials to file a charge or give testimony before the NLRB are unique and of no precedential value in this matter, as this agency is not here confronted with the compelling need to protect its own processes. Put otherwise, an agency charged by Congress with vindicating statutory rights is also charged with protecting access to, as well as cooperation in, those processes, if they are to be effective. /13/ It would seem that the Authority's NTEU case is, for like reasons, subject to the same limitation. Persuasive arguments can be made for finding a violation or for dismissal. The right to hold office is an incident of membership, and interference by an employer would surely not be countenanced. On the other hand, a union's right to circumscribe the conditions in which a member may hold office must also be recognized. Here Congress used the word "member," and clearly sought to insulate membership from union action based on the member's discharge of his duties to his employer. I am reluctant, in the absence of any indication that Congress meant to intrude into the relationship between a labor organization and its officers, to conclude that Section 7116(b)(3) was intended to protect members from anything more than the traditional sanctions used against members: threats, violence, fines, suspension and expulsion. Several considerations fortify this conclusion: it would appear that Congress' purposes are served altogether adequately by assuring that membership, as such, will not be affected by considerations of work performance; the Supreme Court's Finnegan decision suggests that Congress' use of the word members indicates that it sought to protect rank and file members as opposed to officers or employees of the union; and extending the word to cover the right to hold office would constitute an intrusion into the thicket of internal union politics which may be not only unnecessary, but mischievous in the extreme. In Finnegan, the Supreme Court found no indication that Congress, in protecting members from union discipline based on the exercise of their rights of free speech and assembly, sought "to establish a system of job security or tenure for appointed union employees." If, as certainly appears to be the case, the membership of Local 1738 does not want Poteat as a representative, its desire to remove him could be frustrated indefinitely. So long as he wished to hold the position and no convincing independent and justifiable reason for his removal intervened, action to replace him would arguably be based on the impermissible ground that he snitched on a fellow employee. This could involve the Authority in further litigation concerning the motives in any subsequent removal. The consequences for effective and cohesive leadership of the Local are obvious, whereas the usefulness of issuing and policing such a remedy is questionable. Accordingly, I recommend that this complaint, alleging violations of Section 7116(b)(1) and (3) be dismissed in its entirety. JOHN H. FENTON Chief Administrative Law Judge Dated: June 16, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Sec. 7116. Unfair Labor Practice (b) . . . it shall be an unfair labor practice for a labor organization-- (1) to interfere with, restrain or coerce any employee in the exercise by the employee of any right under this chapter; . . . . (3) to coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee. /2/ Stewards are not designated as "officers" in Respondent's Constitution and By-laws, which are silent with respect to their duties. responsibilities, term of office and removal. The President is responsible for their appointments and the Chief Steward is responsible for directing their activities. The latter are elective positions. /3/ All employees are required to sign a VA memorandum outlining Agency policy regarding patient abuse. It provides that an employee "who witnesses any unkindness, rudeness or violence of any kind toward a patient and does not promptly report it to the proper authority is subject to disciplinary action," including discharge. (G.C. Exh. 3). /4/ Mary Jordan, the other steward for Building Management employees, had grown to distrust Poteat, particularly what she viewed as his close relationship with Moore. Apparently after the incident she informed top Union officials that she was unwilling to serve as steward if they had to be associated with Poteat. /5/ See Radio Officers Union v. NLRB, 347 US 17 (1954). /6/ Oil City Brass Workers v. NLRB, 357 F.2d 466 (CCA 5), 61 LRRM 2318. /7/ Local 138, International Brotherhood of Operating Engineers, 148 NLRB 679 (fine) and NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391 US 418 (expulsion). /8/ Local Union No. 204, Sheet Metal Workers International Association, 246 NLRB 318 and similar cases cited therein. /9/ New York City Taxi Drivers' Union, Local 3036, 231 NLRB 965. /10/ United Steelworkers of America, Local 2687, 237 NLRB 1355. /11/ Carpenters Local 22, United Brotherhood of Carpenters and Joiners of America, 195 NLRB 1. For a general discussion of the balance to be struck as between members and the organization, see Scofield v. NLRB, 394 US 423, 70 LRRM 3105. /12/ It should be noted that the Court found this was not a case of an officer being penalized for compliance with a legal duty, such as testifying before the NLRB in an already initiated action and that there was no evidence that the union was trying to regulate access to effective enforcement of employee rights. /13/ See Pedersen v. NLRB, 234 F.2d 417 (CCA 2), 38 LRRM 2227, where a supervisor fired for testifying in a Board proceeding, under subpoena, was held (by the Court) to be covered by that Act's protection of employees who give testimony, even though the Board has subsequently altered its discretionary jurisdictional standards and would not ordinarily have asserted jurisdiction over his employer.