United Construction Workers, Local 10

762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Construction Workers, Local 10, Christian Labor Association (Erhardt Construction Co., et al.) and Ricardo Meana, Attorney. Cases 7-CB-1787(1) and (2) January 8, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon charges filed by Ricardo Meana, an individu- al, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a consolidated complaint dated October 15, 1968, against United Construction Workers, Local 10, Christian Labor Association. The complaint alleged that the Respondent Union had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges, in substance, that the Respondent fined employees of Erhardt Construction Co. and of Karsten Construction, Inc., who were members of the Union in good standing, for misconduct engaged in after their resignations from the Union, and in unreasonable amounts ranging from, $440 to $990. Respondent's answer admits in whole or in part certain allegations of the complaint, but denies the commission of unfair labor practices. On December 11, 1968, the parties to this proceed- ing entered into a stipulation of facts and consent to transfer the proceeding to the Board. They agreed that the charge, complaint, answer, and the stipula- tion of facts constitute the entire record in this case, and waived a hearing before a Trial Examiner and the issuance of a Trial Examiner's Decision. The parties also agreed to submit this proceeding for findings of fact, conclusions of law, and order directly by the Board. By order of the Board dated December 16, 1968, the stipulation of the parties was approved, this proceed- ing was transferred to the Board, and permission was granted to the parties to file briefs and they did so. Subsequent thereto, the Board granted permission to other interested parties to file briefs as amicus curiae related to the application to the instant case of Scofield v. N.L.R.B., 394 U.S. 423. Thereafter such briefs, as well as supplemental briefs from the parties herein, were duly filed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. 187 NLRB No. 99 Upon the basis of the stipulation , the briefs, and the entire record in this proceeding , the Board makes the following: FINDINGS OF FACT 1. JURISDICTION Erhardt Construction Co. and Karsten Construc- tion, Inc., herein Erhardt, Karsten, or the Employers, are corporations with places of business in Grand Rapids, Michigan, where they are engaged in business as contractors and builders of commercial, institu- tional, and industrial buildings. During the calendar year 1967 each had gross revenue in excess of $500,000 and each purchased and received within the State of Michigan goods and materials valued in excess of $100,000 from outside the State of Michigan. We find that Erhardt and Karsten are, and at all times material herein have been, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ii. THE LABOR ORGANIZATION INVOLVED United Construction Workers, Local 10, Christian Labor Organization, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The salient facts in this case are that on May 1, 1968, the Respondent called a strike and established a picket line at each Employer's place of business, following the expiration of its contracts with the Employers on that date . The strike continued until at least May 28. On May I and thereafter , 12 employees of Erhardt and 2 employees of Karsten crossed the picket line . On May 2 and thereafter an additional employee of Karsten joined the 14 others on crossing the picket line . Although the expired agreements required all employees, with certain exceptions not shown to be material here, to become and remain members of the Union in good standing , there is no evidence that the employees were other than full union members in good standing until their resigna- tions, infra, from the Union. The Respondent's bylaws provide , as follows: Any member of the Union who becomes a strike- breaker shall by such action be subject to either loss of membership in the Union or the payment of a fine of not less than $25 .00 or not more than $50.00 for each eight hour shift or any part thereof which he worked during the time of the strike as determined by the [Union's Executive ] Board after a hearing at which the alleged strike-breaker may UNITED CONSTRUCTION WORKERS , LOCAL 10 763 attend with coansel and present evidence and argument The Respondent charged nine employees of Erhardt (Bramer, Brandsma, D Osterink, H Osterink, Schut, Snyder, Van Drunen, Winright, and Zomerlei) with strikebreaking on May 7, and fined them in amounts varying from $50 to $90 for crossing the picket line between May I and 3 Upon receiving notice of such fines on May 15 their attorney (Ricardo Meana) sent the secretary of the Respondent a letter later that day stating, inter aha, "we hereby tender the resignation of each of these men as a member of CLA, Local No 10, UCW, effective immediately, and decline any representation by said Local in collective-bargaining on their behalf "I This letter was received by the Union on May 17 On May 20, the Union replied through its attorney stating that the employees' resignations were not considered effective because they were not signed by the members individually, and thus not in form to be presented to the Union's executive board as required by paragraph 10 of the Christian Labor Association 2 On May 15 through 21, three other employees of Erhardt (Render, Schmitt, and Isenga) as well as three employees of Karsten (Acre, Karsten, and Slocum) who crossed the picket line, sent letters of resignation to the Union Their strikebreaking, however termi- nated before their resignations were received On or about June 7, additional charges of strike- breaking were served on all the above individuals, and after a hearing they were fined in varying amounts, from $440 to $990 3 The General Counsel contends that the imposition of the fines for strikebreaking by the above nine employees on and after May 17, the date of receipt of their attorney's letter tendering their resignations, is unlawful because their resignations were effective immediately and as nonmembers they could not be coerced and restrained thereafter in the exercise of their Section 7 right to refrain from adherence to the strike The General Counsel also contends that the fines of all 15 strikebreakers were unlawful because they were unreasonably large I Fines imposed on activities as nonmembers In Booster Lodge No 405, International Association of Machinists (The Boeing Company), 185 NLRB No 23, the Board recently held that where there was no union-security contract in effect at the time employ- ees attempted to resign from the union, and where neither the union's constitution nor bylaws provided for any procedure for employees' resigning from the union, employees ' resignations became effective, under the circumstances of that case, upon submittal to the union The Board held further that the union committed an 8(b)(1)(A) violation by imposing fines on strikebreaking occurring after such submittals In the instant case, there was no union-security contract in effect at the time of the attempted resignations but there is a procedure provided by paragraph 10 of the Union's constitution, supra, for resignations This procedure provides for submission of resignations in writing to the Union and action by the Union upon receipt thereof It is evident that the Union treated the resignations in the instant case as effective upon receipt where they were sent by individual members and only objected to their effectiveness where sent by an attorney Neither the Union's constitution nor its bylaws requires that resignations be sent only by the individuals concerned And we believe the letter from the individuals' attorney clearly advised the Respon- dent in writing that the individuals had resigned their memberships In any event, the later sending of individual resignations was clear ratification,4 and we find, under the circumstances of this case, that the resignations were effective when originally received on May 17, 1968 However, the stipulated record does not disclose the time of receipt on that date and we are unable to conclude that the resignation was received prior to the time when the employees crossed the picket line Accordingly we hold that the fines attributable to employee conduct on May 17 do not violate the Act 5 As Bramer, Brandsma, H Osterink, Schut, Snyder, Van Drunen, Winright, and Zomerlei were fined for postresignation conduct, the Board, in I On May 24 the above nine employees individually confirmed their resignations by letters to the Local Union and such confirmations were received on May 29 2 This paragraph reads Membership may terminate by resignation or expulsion Resignations must be presented in writing The Board of the Local or Division passes upon such resignations Any member who carries on activities conflicting with the principles aim or objectives or practices of the CLA shall be admonished by the Board of his Local or Division and if he fails to heed the warning shall be subject to suspension from membership privileges by the Board and to final expulsion from membership in the Union after having been given an opportunity for a hearing at a regular union meeting An expelled member forfeits all claims to the exercise of the rights and privileges connected with membership in the CLA but shall have the right to appeal to the National Board and of final appeal to the next convention of the CLA Bramer Brandsma H Osterink Schut Snyder Van Drunen Winright and Zomerlei were fined at the rate of $50 per day for strikebreaking 10 days between May 3 and 16 and 8 days thereafter D Osterink was fined at the same rate for 9 days between May 3 and 15 Acre lsenga Karsten Render Schmitt and Slocum were fined $40 for the first day they crossed the picked line and $50 per day thereafter Except for Slocum the employees resignations were mailed to the Union the day before the last day they crossed the picket line Slocum s letter of resignation was sent on the last day he crossed the picket line As observed their letters were received after their strikebreaking had ceased 4 Cf John I Paulding Inc 130 NLRB 1035 1043 enfd on other grounds 297 F 2d 272 (C A 1) further clarified John I Paulding Inc 142 NLRB 296 fn 3 5 See Local 1012 United Electrical Radio & Machine Workers of America (General Electric Company) 187 NLRB No 46 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accord with its decision in Boeing, supra, concludes that the Union's fining of the above -named employ- ees for such postresignation activities after May 17, 1968, coerced and restrained them in the exercise of their Section 7 rights in violation of Section 8(b)(I)(A). 2. Unreasonably large fines: The Board, in Arrow Development Corp., 185 NLRB No. 22, has held that whether fines are unreasonably large is an internal union matter not within the purview of the Act. In so holding, we rejected the contention of the General Counsel that the imposition of fines unreasonably large in relation to earnings established an 8(b)(1)(A) violation . In accord with our decision in Arrow, we find that no other violations of the Act have been committed. THE REMEDY In view of the unfair labor practices committed, we shall provide for a cease-and-desist remedy as set forth in Boeing. We shall also order reimbursement of such portions of any fines which have been paid, to the extent that they are based on the postresignation conduct of the fined employees. CONCLUSIONS OF LAW 1. Erhardt Construction Co. and Karsten Con- struction, Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. United Construction Workers, Local 10, Chris- tian Labor Association, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By fining employees of the Employers for crossing a picket line to the extent such crossing was after their resignations from the Union became effective, the Union has coerced or restrained employees in the exercise of their rights guaranteed in Section 7 of the Act. 4. The above conduct constitutes unfair labor practices under Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United Construction Workers, Local 10, Christian Labor Association, its officers, agents, and represent- atives, shall: 1. Cease and desist from: (a) Restraining or coercing employees, who had resigned from and who were no longer members of the Union, in the exercise of their rights guaranteed in Section 7 of the Act, by imposing fines against such employees because of their postresignation conduct in working at the Grand Rapids, Michigan, construction projects of the Employers during the May 1968 strike. (b) In any like or related manner restraining or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Reimburse or refund to Dale Bramer, Henry Brandsma, Howard Osterink, Al Schut, Melvin Snyder, Robert Van Drunen, Gerry Winright, and Paul Zomerlei, if they have paid fines under the circumstances described in paragraph 1(a) of this Order, the amount of fines imposed because of postresignation conduct in working at the above construction projects, plus interest at the rate of 6 percent per annum. (b) Post at its business offices and meeting halls and at the Employers' premises at Grand Rapids, Michi- gan, if they are willing, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Union's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasona- ble steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail to the Regional Director for Region 7 sufficient copies of said notice, on forms provided by him, for posting by the Employers, if willing. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that those portions of the complaint as to which no violation has been found be, and they hereby are, dismissed. MEMBER BROWN, concurring in part and dissenting in part: I concur in dismissing so much of the complaint as is based on the claim that the fines are unreasonable in amount. For the reasons stated in my dissenting 6 In the event that this Order is enforced by a Judgment of a United Pursuant to a Judgment of the United States Court of Appeals Enforcing States Court of Appeals, the words in the notice reading "Posted by Order an Order of the National Labor Relations Board " of the National Labor Relations Board" shall be changed to read "Posted UNITED CONSTRUCTION WORKERS , LOCAL 10 765 opinion in Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Company), supra, I would also find no violation of Section 8(b)(l)(A) of the Act and would dismiss the complaint in its entirety. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce employees who had resigned from the Union, and who, in the exercise of their rights guaranteed in Section 7 of the Act, worked at construction projects of the Employers during the May 1968 strike, by impos- ing fines as to such employees, because of their postresignation conduct. WE WILL reimburse Dale Bramer, Henry Brandsma, Howard Osterink, Al Schut, Melvin Snyder, Robert Van Drunen, Gerry Winright, and Paul Zomerlei for any fine they may have paid to us for working during the said strike, after they became nonmembers of the Union, plus interest at the rate of 6 percent per annum. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed to them in Section 7 of the National Labor Relations Act. UNITED CONSTRUCTION WORKERS, LOCAL 10, CHRISTIAN LABOR ASSOCIATION (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 consecutive days from the date of posting and must not be altered, deface', or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 226-3200.