INDUSTRIAL UNION OF MARINE & SHIPBUILDING WKRS. v. NLRB, 16055.

• Decision Date: 22 June 1967
• Docket Number: No. 16055.,16055.
• Parties: INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO, and its Local 22, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

379 F.2d 702 (1967)

INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO, and its Local 22, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16055.

United States Court of Appeals Third Circuit.

Argued March 29, 1967.

Decided June 22, 1967.

COPYRIGHT MATERIAL OMITTED

M. H. Goldstein, Philadelphia, Pa. (Goldstein & Barkan, Philadelphia, Pa., on the brief), for petitioners.

Hans J. Lehmann, N. L. R. B., Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Provost, Asst. General Counsel, Warren M. Davison, Washington, D. C., attorney, N. L. R. B., on the brief), for respondent.

Before HASTIE and SEITZ, Circuit Judges, and BODY, District Judge.

OPINION OF THE COURT

HASTIE, Circuit Judge.

On the petition of an international union and one of its locals for the review of an unfair labor practice decision and order, 159 NLRB No. 95, and a cross-petition of the National Labor Relations Board for enforcement of the order, we here consider the merits of the Board's so-called Skura rule, as recently adopted in Local 138, International Union of Operating Engineers and Charles S. Skura, 1964, 148 N.L.R.B. 679, and sanctioned by the Court of Appeals for the District of Columbia in Roberts v. N. L. R. B., 1965, 121 U.S.App.D.C. 297, 350 F.2d 427.

The alleged unfair labor practice in this case is the union's conduct in discharging Edwin Holder from union membership because he had filed with the Board an unfair labor practice charge against the local and its president without first exhausting prescribed and available remedies within the labor organization.

Holder had filed intra-union charges with his local, alleging that the local president had wrongfully caused Holder's employer to discriminate against him because of "certain legally protected activity". Except for the quoted phrase, the present record does not disclose details or even the substance of Holder's complaint. The local considered and dismissed these charges. The International Constitution of the union provided for an appeal from the decision of a local to the General Executive Board of the International. It also required that any member "aggrieved by any action of * * * a local * * * shall exhaust all remedies and appeals within the Union, provided by this Constitution, before he shall resort to any court or other tribunal outside of the Union". Disregarding this requirement and without taking any intra-union appeal from the local's decision, Holder filed with the Board an unfair labor practice charge against the local, alleging the same conduct of which he had unsuccessfully complained to the local. Here again, the present record fails to specify the details of that conduct. The General Counsel refused to issue a complaint and the unfair labor practice charge was dismissed.

Shortly thereafter, Holder was charged before the trial board of his local with violation of the above cited provision of the International Constitution. He was found guilty and expelled from membership. He then appealed to the General Executive Board of the International which confirmed his expulsion.

Holder next initiated the present unfair labor practice proceeding, charging that the labor organization had violated section 8(b) (1) (A) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b) (1) (A), by coercing him in the exercise of rights guaranteed by section 7 of the Act. Applying the Skura rule, the Board found a violation as charged and issued the unfair labor practice order which is now before us.

Section 8(b) (1) (A) reads in pertinent part as follows:

"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 157: 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 * *."

Thus, the only rights which this subsection protects are those contained in section 7, which reads in its entirety as follows:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a) (3)."

Accordingly, our first inquiry is whether section 7 protects an employee's asserted right to complain to the Board of his union's alleged unfair interference with his "legally protected activity" without first exhausting his remedy within the union as required by the union's constitution.

It will be observed that section 7 says nothing about any right to file charges with the Board. That section is concerned exclusively with an employee's freedom to unionize, to bargain collectively, and to engage in other concerted activities, as well as the concomitant freedom to refrain from participating in such organized or concerted activity. These freedoms are, by necessary implication, attended by a remedial right of the employee to charge coercive abridgement of them in an unfair labor practice proceeding before the Board. Thus, a section 8(b) (1) (A) unfair labor practice can be established here by showing that rights incidental to organization or bargaining were the basis of Holder's complaint which led to punitive union action, and in no other way.

It is argued here, as it was in the Roberts and Skura cases that section 7 protects the employee's freedom to complain to the Board of union misconduct regardless of the foundation for the charge. But as we have just pointed out, if any respect is to be accorded the language of section 7, its protection of the right to file charges must be limited to complaints that the union has in some way interfered with the sort of activity that is described in that section. It may be that Holder's complaint was of such a breach of the union's duty to represent the employee fairly as the Court of Appeals for the Fifth Circuit recently found to be inherent in the collective bargaining process protected by section 7. Local Union No. 12, United Rubber, C.L.& P. Workers v. NLRB, 5th Cir., 1966, 368 F.2d 12. But this record contains no facts and no analysis by the Board upon the basis of which we can judge whether any type of violation of section 7 is involved here.

The Skura decision itself, which is indistinguishable from and followed in this case, is similarly lacking in any showing of how that controversy involved the subject matter of section 7. Only a few months earlier, in the so-called Wisconsin Motor case, Local 283, UAW, 1964, 145 NLRB 1097, the Board, after reviewing pertinent legislative history, had ruled that it had "not been empowered by Congress to police a union decision that a member is or is not in good standing or to pass judgment on the penalties a union may impose on a member so long as the penalty does not impair the member's status as an employee". 145 NLRB at 1104. In the Skura case, the Board recognized its Wisconsin Motor "opinion that the Act did not vest it with authority to police the internal discipline of a union short of job discrimination". 148 NLRB at 682. Hard put to distinguish the two cases factually, the Board announced and relied upon its view that "overriding public interest" required that a union not be permitted to discipline an employee in an effort to "limit access to the Board's processes". To that end, it apparently read into section 7, without any stated justification, a general right of access to the Board, unlimited by any requirement that the particular controversy involve organizational rights or rights inherent in collective bargaining.

In the Roberts case, the Court of Appeals said "we assume, and petitioners agree, as stated in their brief, that `the right of an employee to file charges is protected under section 7'." 350 F.2d at 428. But the court seems not to have considered what we have attempted to demonstrate, that in order for the right to file particular charges to be protected by section 7, the charges themselves must assert misconduct which, if proved, would constitute a deprivation of rights declared in that section.

The Roberts opinion also points out that section 8(a) (4) expressly makes it an unfair labor practice for an employer "to discharge or otherwise discriminate against an employee because he has filed charges" under the Act. From this the court seems to imply that a union should be treated in the same manner and that Congress must have so intended. But while the Taft-Hartley Act undoubtedly undertook to impose many responsibilities upon unions equivalent to the responsibilities of employers under the original Wagner Act, we find no basis for concluding...