Automotive Salesmen's Association

608 DECISIONS OF NATIONAL Automotive Salesmen's Association (A.S.A.) Af- filiated with SIUNA, AFL-CIO (Spitler-Demmer, Inc.) and Conrad W . Kreger, on behalf of Spitler- Demmer, Inc. Case 7-CB-1949 July 23, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN Upon charges duly filed on April 18 , 1969, by Conrad W. Kreger, acting on behalf of Spitler- Demmer, Inc., the General Counsel of the National Labor Relations Board , by the Regional Director for Region 7, issued a complaint dated October 30, 1969, against Automotive Salesmen 's Association (A.S.A.) Affiliated with SIUNA, AFL-CIO, hereinafter referred to as Respondent , alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended . Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleges that Respondent fined Herbert Anderson , James Fahnestock , Clyde Hale, Harold Hannon , Robert Walewski , and Karl Demmer, em- ployees of Spitler-Demmer , Inc., in part , because they jointly and severally resorted to the processes of the Board by filing a decertification petition and participated in the processes of the Board by sup- porting said petition and casting ballots against Respondent in the election conducted pursuant to said petition. The complaint further alleges that Robert Walewski was fined , in part, because he participated in the unfair labor practice processes of the Board by giving testimony against Respon- dent in Case 7-CB-1761.' The Respondent 's answer, dated November 3, 1969, admits certain jurisdictional and factual al- legations of the complaint-denying the relevance of certain of the factual allegations-but denies the commission of any unfair labor practices. On December 4, 1969 , Respondent, the Charging Party, and counsel for the General Counsel entered into a stipulation and jointly moved to transfer this proceeding directly to the Board for findings of fact, conclusions of law , and Decision and Order by I The complaint further alleged that the fines violated Sec 8(b)( I )(A) because they are unreasonable and excessive in amount In view of our disposition of the other issues, we do not pass on this issue LABOR RELATIONS BOARD the Board . The parties waived a hearing before a Trial Examiner, the issuance of a Trial Examiner's Decision , the filing of exceptions with the Board, and oral argument before the Board . The parties agreed that the stipulation , the charge , complaint and answer, and Respondent's constitution con- stitute the entire record in this case. On January 7, 1970, the Board granted the parties' motion to transfer the case to the Board. Briefs were thereafter filed by Respondent, the Charging Party , and the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the basis of the parties' stipulation, the briefs, and the entire record in this case, the Board makes the following: FINDINGS OF FACT 1. COMMERCE The charge in this case was filed on behalf of Spit- ler-Demmer, Inc., alleging that certain of its em- ployees were fined by the Respondent in violation of Section 8(b)(I )(A) of the Act. At all times material herein, Spitler-Demmer, Inc., a Michigan corporation, has maintained its only office and place of business at 35540 Michigan Avenue, Wayne, Michigan. Spitler-Demmer, Inc., is, and has been at all times material herein, en- gaged in the retail sale, distribution, and service of new and used automobiles and trucks as a dealer franchised by the Ford Motor Company. During the year ending December 31, 1968, which period is representative of its operations during all times material herein, Spitler-Demmer, Inc., had a gross volume of business from the sale of new and used automobiles and trucks and related servicing thereof in excess of $500,000. During the same period, Spitler-Demmer, Inc., purchased and caused to be transported from points outside the State of Michigan directly to its place of business in Wayne, Michigan, automobiles, trucks, automotive parts, and other goods and materials valued in ex- cess of $50,000. On the basis of the foregoing facts, it is clear that Spitler-Demmer, Inc., is now and has been at all times material herein an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 184 NLRB No. 64 SPITLER-DEMMER , INC. 609 11. LABOR ORGANIZATION Respondent is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts At all times material herein the alleged dis- criminatees (Herbert Anderson, Karl Demmer, James Fahnestock, Clyde Hale, Harold Hannon, and Robert Walewski) were employees of the Charging Party and from February 3, 1968, to November 5, 1968,2 were members in good stand- ing of the Respondent. On February 3 Respondent called a strike3 against Spitler-Demmer which con- tinued until November 20. During the course of the strike the following employees crossed the picket line and returned to work on the dates set forth after their names. Robert Walewski February 17 Clyde Hale March 1 James Fahnestock May 15 Herbert Anderson June 18 Harold Hannon June 19 Karl Demmer September 10 Article XI, section 1, of Respondent's constitution, entitled "Expultions [sic] and Trial of Members," provides that a member shall be subject to discipline "for crossing lawful picket lines, failing to perform strike duty, or engaging in other conduct inimical to the best interests of this Association; provided charges are first filed against said member." The section states that a penalty may be assessed upon conviction but the nature of such penalty is not specified,4 nor is it stated how the penalty is to be enforced. On May 6, the Charging Party herein filed an un- fair labor practice charge against the Respondent and on July 30 a complaint issued alleging viola- tions of 8(b)(I)(A).5 On July 12, Clyde Hale filed a decertification petition with the Board and on August 28 the parties entered into a Stipulation for Certification Upon Consent Election. A hearing was held on October 7 and 8. During the course of the hearing Robert Walewski testified on behalf of the General Counsel with regard to threats made to him by agents of Respondent fol- lowing his abandonment of the strike. The election was held on October 21. Ten ballots were cast, all against the Respondent. On October 22, the day following the decertifica- tion election, Respondent sent each of the alleged discriminatees a letter notifying them they were being brought up on charges for crossing the As- sociation's picket line and that a hearing would be held on November 6. On November 5 each of the employees resigned his membership in Respon- dent.6 On November 6, Respondent's trial board met to consider the charges against the six. Trial Examiner Gregg issued his Decision in Case 7-CB-1761 on January 16, 1969, finding that Respondent had violated Section 8(b)(1)(A) by, inter alia , threatening Walewski that once the strike was settled he would no longer be a salesman. On January 28, 1969, the Regional Director notified the Board that the Respondent was complying with the Trial Examiner's Recommended Order. On January 20, 1969,7 the employees were notified of the trial board's decision which found them guilty as charged and fined them as follows:8 Amount Gross Earnings Employee of Fine 1967 Feb-Nov. 1968 Herbert Anderson $2,000 $11,203 .67 $4,407.63 45% James Fahnestock 3,000 10,446.10 5,945.48 697 Clyde Hale 4,000 11,697.58 9,832.01 40% Harold Hannon 2,000 10,995 .67 6,146.70 33% Robert Walewski 4,000 8,099.69 7,402.46 54% Karl Demmer 100 10,520.69 2,640.43 5% The employees appealed the decision of the trial board to Respondent's appeal board by letters dated January 28, 1969, but did not appear for a hearing scheduled for February 14, 1969. On March 6, 1969, the appeal board affirmed the trial board's decision. Respondent's constitution pro- vides that a further appeal maybe taken to the pres- ident of Respondent who has authority only to af- firm the decision of the appeal board or to decrease the penalty . Such an appeal was not taken. With respect to the filing of charges against members, Respondent's constitution provides that z All dates are in 1968 unless specified otherwise The complaint alleges the strike was an economic one The Respondent claims it was an unfair labor practice strike No charges characterizing the strike as an unfair labor practice strike were ever filed with the Board 4 Art XI11, Finances, states that "The income of the Association shall consist of dues, fees , assessments and fines " Case 7-CB-1761 Respondent's answer denies the effectiveness of the resignations on the ground that they were not effected pursuant to the Association's constitu- Lion That constitution , however, does not refer to any specific procedure for resignation of a member ' Respondent 's constitution provides that the trial board "shall reach a determination within three (3) working days after the close of testimony " " In addition to the amount of the fines, the table includes the gross earnings of the employees for the calendar year 1967 and the period of the strike (February to November 1968), and the percentage of gross strike period earnings which the fine represents 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the charge must be in writing and signed by the member making the charge . Charges are submitted to the executive vice president who has the power to determine whether the charges are worthy of tri- al. The constitution also provides that the executive vice president is an ex officio member of the trial board , and he has responsibility for arguing on be- half of the trial board 's decision when and if an ap- peal is taken to the appeal board. B. The Issue The issue in this case is whether the employees named above were fined by the Union solely for crossing an authorized picket line as the October 22 letter from the Union charged or, in part, because they resorted to the processes of the Board by filing and supporting a decertification petition and casting ballots against the Union in the election directed on such petition , and, in the case of Walewski , for giving testimony against Respondent in an unfair labor practice proceeding. C. Discussion Respondent contends that the fines were levied solely because of the members' actions in crossing the authorized picket line established by Respond- ent in support of its strike against Spitler -Demmer, Inc. The General Counsel argues , on the other hand , that the timing of the disciplinary action against these members when viewed in relationship to the timing of their decertification activities and the previous unfair labor practice proceedings war- rants the inference that the fines were levied in retaliation for the members ' participation in those events . We agree with the General Counsel. The Respondent 's letter notifying the members that they were to be tried on the charge of crossing the picket line was mailed to the employees on Oc- tober 22 , 1968. On October 21, 1968 , a decertifica- tion election had been held , and all 10 ballots cast, including ballots of the 6 members , were cast against the Union. This for all practical purposes meant that the Union had not only lost its strike, but its representative status as well. Thus, on the first day following news of this event Respondent's executive vice president determined that these six members who had actively supported the decertifi- cation activities should be brought to trial. This ' Respondent can hardly argue that the fines were applied evenhandedly according to some formula related to earnings during the period of picket line crossing , for the relevant data reveals no such formula, and Demmer was fined only $100 10 Cf The American Bakery and Confectionery Workers' Local Union 300, AFL-CIO ( National Biscuit Company ), 167 NLRB 596, enfd in pertinent part 411 F 2d 1122 (C A 7) timing gathers significance from the fact that though some of the members involved had been crossing Respondent 's picket line from as early as February and March 1968, Respondent had taken no disciplinary action against them not even warned them that disciplinary action might be taken . Moreover, although the record does not reflect the date the charges were filed , the letter to the members charges them with crossing the picket line through October 22 , the date of the letter. Whether one assumes from this that the charges were first filed by some unnamed member on that date, or that earlier filed charges were held by the executive vice president until that date, it is a justifiable inference that news of the loss of the decertification election was a precipitating factor in the initiation of the disciplinary proceedings. Other factors also support the inference the General Counsel urges us to draw . Thus, despite constitutional provisions requiring the trial board to issue its decision 3 working days after trial of the is- sues (the trial was on November 6) the trial board did not render its decision until January 20, 1969, 76 days later . This was but 4 days after Trial Ex- aminer Gregg issued his decision in the previous unfair labor practice proceeding finding on the basis of testimony of Walewski that Respondent had unlawfully coerced and restrained Walewski in the exercise of Section 7 rights . Finally, it is signifi- cant that the larger fines were levied against Hale, the member who filed the decertification petition, and Walewski , the member who testified against the Union.9 On the basis of the foregoing , we find that Respondent 's motivation in fining Hale, Anderson, Hannon , Demmer, and Fahnestock was rooted, in part, in their having resorted to the election processes of the Board and in their participation in those processes, including casting ballots against Respondent, to decertify Respondent as their collective-bargaining representative , and that Walewski's fine was not only motivated in part, in those same reasons, but, also , in part, for having given damaging testimony against Respondent in a prior unfair labor practice proceeding .'° We find further , for reasons stated in the Blackhawk Tanning decision, that by such conduct Respondent restrained and coerced the above -named members in the exercise of rights guaranteed by Section 7 of the Act, and thereby violated Section 8(b)(1)(A)." " International Molders' and Allied Workers Union, Local No 125, AFL-CIO ( Blackhawk Tanning Co , Inc ), 178 NLRB 208 Chairman Miller adopts the reasoning set forth in the opinion of Chairman McCulloch and Member Zagora in Blackhawk Tanning for the conclusion that a fine levied by a union against a member for filing or otherwise supporting a decertifi- cation petition violates Sec 8(b)( 1)(A) SPITLER-DEMMER , INC. 611 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact, and upon the entire record herein, the Board makes the following: CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. By fining Clyde Hale, James Fahnestock, Her- bert Anderson, Harold Hannon, and Karl Demmer, in part, for resorting to the election processes of the Board and for their participation in those processes, including the casting of ballots against the Respond- ent, to decertify the Respondent as their collec- tive-bargaining representative, and by fining Robert Walewski, in part, for those reasons, and, in part, for giving testimony against Respondent in an un- fair labor practice proceeding held pursuant to Sec- tion 10(c) of the Act, Respondent restrained and coerced employees in the exercise of rights guaran- teed by Section 7 of the Act in violation of the provisions of Section 8(b)(1)(A) of the Act. 3. By engaging in the aforesaid conduct, Respon- dent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. To remedy the coercive and restraining effect of the fines assessed against its members, Respondent will be required to rescind the fines, to reimburse any moneys collected pursuant to the fi es, to ex- punge from its records all references to he fines, and to notify the fined members and other mem- bers of the rescission of such fines and of their right to utilize the processes of the National Labor Rela- tions Board in determing any question regarding the continuing representative status of the Respond- ent Union and to give testimony in Board proceed- ings without their being fined for doing so, such notices to be posted at Respondent's office and hall, and at Spitler-Demmer, Inc.'s place of business providing the latter is willing. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respond- ent, Automotive Salesmen's Association (A.S.A.), Affiliated with SIUNA, AFL-CIO, its officers, agents, and representatives , shall: 1. Cease and desist from: (a) Restraining and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, by assessing fines against its members because of their filing of a decertification petition with the National Labor Relations Board, their par- ticipation in the processes of the Board by support- ing such 'a petition and by casting ballots against Respondent in an election conducted pursuant to such a petition , or because of their giving testimony against Respondent in an unfair labor practice proceeding conducted pursuant to Section 10(c) of the Act. (b) In any like or related manner restraining and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Rescind the fines assessed against Clyde Hale, James Fahnestock, Herbert Anderson , Harold Hannon , Karl Demmer, and Robert Walewski, and expunge from Respondent 's record all references to the fines. (b) Reimburse , or refund to, any employees named in paragraph 2(a) of this Order, who have paid all or any portion of the fines , the amount of such payments together with interest at 6 percent from the date of such payments. (c) Post at its office and meeting hall and at the Wayne premises of Spitler-Demmer, Inc., providing the latter is willing , copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's authorized representative , shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places , including all places where notices ° In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 427-835 0 - 74 - 40 612 DECISIONS OF NATIONAL to members are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced , or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act, by assessing fines against members because of their filing of a decertifi- cation petition with the National Labor Rela- tions Board, their participation in the processes of the Board, by supporting such a petition and by casting ballots against this Union in an elec- tion conducted pursuant to such a petition, or because of their giving testimony against this Union in an unfair labor practice proceeding conducted pursuant to Section 10(c) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in their exercise LABOR RELATIONS BOARD of rights guaranteed in Section 7 of the Act. WE WILL rescind the fines assessed against Clyde Hale, James Fahnestock, Herbert An- derson , Harold Hannon, Karl Demmer, and Robert Walewski and expunge from our records all references to such fines. WE WILL reimburse the aforementioned em- ployees for any amounts they may have paid on such fines with interest at 6 percent from the date of such payments. AUTOMOTIVE SALESMEN'S ASSOCIATION (A.S.A.) Affiliated with SIUNA, AFL-CIO (Labor Organization) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washing- ton Boulevard, Detroit, Michigan, 48226, Telephone 313-226-3200.