International Association of Machinists and Aerospace Workers

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists and Aerospace Workers, AFL-CIO; International Association of Machinists and Aerospace Workers, AFL-CIO, Airline District 146; International Association of Machinists and Aerospace Workers, AFL-CIO, Local Union No. 1698 and Inter-Continental Engine Service, Inc. Case 23-CB-916 June 30, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On March 10, 1969, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondents filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that 'We reject Respondents' contention that neither Local 1698 nor Airline District 146 was a "party" to the contract within the meaning of Sec 8(d) of the Act The contract was signed not only by a representative of the International Union but also on behalf of District 146 by its General Chairman, and by LeRoy Shirk, the eventual president of Local 1698 The Local was founded within a month of the execution of the contract , and its membership is limited to employees of the Employer. When negotiations for a new contract began in May 1968, the Local participated in the bargaining sessions with the Employer In addition to bearing the signature of the District's General Chairman, the contract names the District as the only union party to checkoff authorizations The District assigned its own assistant general chairman to administer the contract His salary was paid by the District and the International In sum, representatives of District and the Local have taken part in the execution and administration of the contract, and have participated in the bargaining relationship with the Employer to an extent sufficient to warrant finding them parties within the meaning of Sec 8(d) Respondents, International Association of Machinists and Aerospace Workers, AFL-CIO; International Association of Machinists and Aerospace Workers, AFL-CIO, Airline District 146; International Association of Machinists and Aerospace Workers, AFL-CIO, Local Union No. 1698, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order , as so modified. In paragraph 1(a), substitute the words "any collective-bargaining contract between them " for the words "any collectively -bargaining contract between it." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASF JOHN P. VON ROHR, Trial Examiner: Upon a charge filed on November 19, 1968, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23 (Houston, Texas), issued a complaint on November 26, 1968, against International Association of Machinists and Aerospace Workers, AFL-CIO; International Association of Machinists and Aerospace Workers, AFL-CIO, Airline District 146; and International Association of Machinists and Aerospace Workers, AFL-CIO, Local Union No. 1698, herein called the Respondents or the Unions, alleging that they have engaged in unfair labor practices within the meaning of Section 8(b)(3) of the National Labor Relations Act, as amended, 51 stat. 136, herein called the Act. The Respondents' answer denies the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held in Brownsville, Texas, on December 19, 1968, before Trial Examiner John P. von Rohr. All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses and to file briefs. Briefs have been received from the General Counsel and the Respondents and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: 1. THE BUSINESS OF THE COMPANY Inter-Continental Engine Service, Inc., herein called the Company, is a Texas corporation with its principal office and place of business located in Brownsville, Texas, where it is engaged in the business of repairing , inspecting, and overhauling aircraft engines. During the 12 months preceding the hearing herein, the Company purchased goods and materials valued in excess of $50,000 from firms located in States other than the State of Texas, which goods and materials were shipped directly to the Company's plant at Brownsville, Texas from points outside the State of Texas. I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, International Association of Machinists and Aerospace Workers, AFL-CIO, Airline 177 NLRB No. 60 MACHINISTS, AIRLINE DISTRICT 146 517 District 146 and International Association of Machinists and Aerospace Workers, AFL-CIO, Local Union No. 1698, are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The Issues The issue in this case is whether the Respondent Unions committed unfair labor practices within the meaning of Section 8(b)(3) of the Act by engaging in a strike without complying with the requirements of Section 8(d)(3) and (4) of the Act.' B. The Facts and Conclusions As indicated above , the Company is engaged in the business of repairing , inspecting and overhauling aircraft engines at its facility in Brownsville, Texas. At a date not disclosed in the record, Respondent International Association of Machinists, AFL-CIO, was certified by the Board as bargaining agent for the Company's production and maintenance employees in Case 23 -RC-2385. The latest contract between the parties was effective from October 18 , 1965, to October 18, 1968.' Prior to the expiration of said contract, and beginning about as early as May 15, 1968, the parties undertook negotiations toward a new contract . Approximately 20 such bargaining sessions took place, the last of which occurred on November 1, 1968. As detailed below , the Respondent Unions engaged in a strike on November 4, 1968. It is undisputed that the Union did not serve any notice upon the Federal Mediation and Conciliation Service until October 14, 1968, at which time by letter of the same date it merely advised the said Agency that the agreement between the Union and the Company expired on October 18, 1968.' Assuming without deciding that the substance of the union notice met the requirements of Section 8(d)(3), it is clear, 'Sec 8 (d) of the Act provides in pertinent part as follows- . . That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce , the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification - (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification, (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred , provided no agreement has been reached by that time; and (4) continues in full force and effect , without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later 'Although the contract was entered into only with the International, it was signed by a representative of District 146. An official of District 146 is still assigned to administer the contract . Local Union No 146 was established specifically to accomodate the employees of the Company I find that each of the Respondent Unions is properly named as a Party-Respondent in this proceeding. and I find, that Respondents did not meet the requirement of waiting for a 30-day period before engaging in a strike under Section 8(d)(4) of the Act.' Respondent's defense to the alleged unfair labor practices herein is predicated upon its assertion that it did not engage in a strike but rather that the cessation of work on November 4 was the result of a lockout by the Company of the employees in the bargaining unit. The facts, as I find them below, reflect this assertion to be without merit. It is undisputed that on October 18, 1968, the union membership voted that Joe Gaskin, the union representative involved in this case,' be authorized to call a strike whenever he deemed it appropriate. At a bargaining meeting held on November 1, a Friday, the Company presented a new contract proposal to the Union. At a union meeting held on Sunday, November 3, the membership voted to reject the Company's proposal. According to the testimony of Gaskin, no vote was taken to go out on strike but the membership agreed to go along with his recommendation that negotiations be continued.' There is a conflict in the testimony as between Company and Respondent witnesses as to further events on the evening of November 1. The Company's version is as follows: William N. Stevens, vice president and general counsel of the Company, testified that he received a call from Gaskin about 7:30 p.m. According to Stevens, Gaskin stated first that he could not reach Glenn Jarvis, the Company's attorney who represented it in the contract negotiations, because he did not have Jarvis' telephone number . Stevens testified that Gaskin thereupon advised him that he (Gaskin) had lost control of the membership and that they had voted to go out on strike on Monday morning, November 4, at 7:30 a.m. Stevens said that he expressed surprise but advised Gaskin that he would call Jarvis. Stevens testified that he did so following this conversation. George E. Zarski, the company president, testified that he was visiting at the home of his mother when Charles G. Daley, the company comptroller, called him and advised that it had been reported to him that the bargaining unit was going out on strike at 7:30 a.m. the next morning. At Zarski's request, Daley came over to the house and they both spoke to Attorney Jarvis over the telephone concerning the pending strike. Zarski testified 'After the close of the hearing, the Respondents on February 12, 1969, filed a motion to reopen record for the purpose of receiving in evidence two letters attached to the motion The General Counsel and the Charging Party subsequently filed objections to the Motion on the ground that these have not been shown to be newly discovered evidence and that they were not available at the time of the hearing For these reasons I reject Respondent' s Motion Should this ruling be reversed, I would hold that in any event the attached letters do not establish that Respondents in effect complied with Sec 8(d)(3) of the Act, as Respondents assert . In this connection, it is noteworthy that the Federal Mediation and Conciliation Service sent a telegram to the Charging Party advising that the Unions' letter of October 14, 1968, was "the only notice received by us in this situation " (Emphasis supplied) 'Thus, in Retail Clerks Assn v N.L R B (Carroll House of Belleville, Inc) 265 F.2d 814 (C.A D.C ) the court held that it interpreted Sec 8(d)(3) as making two demands, viz "to require the giving of notice within a 30-day period after the giving of notice under Section 8(d)(1), and to require also a 30-day waiting period before a strike or lockout, under Section 8(d)(4) " 'Gaskin is assistant general chairman of Respondent Airline District 146 He was assigned to administer the collective-bargaining agreement with the Company in May 1967 `Louis Lucio, a committee chairman , also testified that a strike vote was not taken at this meeting Assuming this to be so, this would not effect my ultimate credibility findings herein As noted above, the membership had previously given Gaskin authority to call a strike at his discretion 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that about 9 p.m. he decided to call Gaskin.' He did so while Daley was at his side.' Zarski's testimony concerning the conversation which ensued is as follows: Q. Would you describe that conversation to the Trial Examiner? A. It wasn't much to it, really. I said, "Hello, Joe." He said, "Yeah." I said, "Say, friend, in my capacity I don't often get the opportunity to say, 'I told you so,' and that is what I would like to do now, 'I told you so."' He said, "Well, that's the way it goes," or something, which I don't recall. He didn't really make any statement. And I said, "Well, Joe, like I told you, these people, you just don't understand who you are dealing with. They are emotional, and they are not stupid, but they are trusting, and I told you that some day you are going to lose control of them because you don't tell them the truth." And I said, "In any event, your timing is either excellent or mine, as usual, stinks." He said, "What do you mean?" I said, "Well, with the SBA loan application and Air Force negotiations," I indicated something about, "your illustrious union isn't helping me too greatly, as I see it." And he said, "Well, George, I have always dealt very fairly with you, and I didn't want a strike." I said, "That is not the way I hear it, Joe." Turning now to the testimony of Union Representative Joe Gaskin, Gaskin testified that he called Stevens between 7 and 9 p.m. on November 3 because he felt he should keep the Company informed as to the status of the negotiations . Gaskin said at this time he told Stevens that the membership had rejected the Company's latest offer that afternoon, that they were very upset, but that it was his recommendation to them that they continue negotiations . Gaskin denied that in this conversation he told Stevens that the employees had voted to strike the following morning. Gaskin further testified that he received a call between 12 and I a.m. that night from Zarski. Gaskin's version of this conversation is as follows: Q. Tell us what Mr. Zarski said to you and what you said to him. A. Well, Mr. Zarski's first remarks was, "I don't really think you would do this to me." And I answered, "Well, we haven't done anything yet. I don't really understand your question." He said, "I understand there is going to be a strike tomorrow morning." I said, "No. There has been discussion of a strike or a work stoppage during the meeting, but it was my advice to the membership we not strike, and continue negotiations." He remarked to me, he said, "You know, I tried to tell you a long time ago about what type people that you are representing. You can't trust them. You can't put any faith in them. I have picked them up out of these orchards, canteloupe fields, and I have taught them everything they know. They are really not mechanics . And they are ignorant and low-class." I said, "I certainly do not agree with that " 'Zarski credibly testified that on the previous Friday, Jarvis told him that he (Jarvis) had just been reassured by Gaskin that there would be no strike 'Dalev corroborated Zarski's part of this conversation And Mr. Zarski remarked to me, "Well, I guess no one has anymore to lose than I, but I reallydon't give- I really don't care. Q. That is what he said? A. Yes, sir. Q. All right. Go ahead. A. "I really don't want them on my property." I said, "All right, sir, if that is the case, then we will retrieve our tools tomorrow morning." From my observation of the witnesses, and upon the entire record in this case, I credit the testimony of Stevens and Zarski over that of Gaskin. The company officials impressed me as honest and reliable witnesses and I believe they were telling the truth concerning their respective conversations with Gaskin on the evening of November 3.' However, aside from my observation of the witnesses, there is further evidence to support the testimony of Stevens and Zarski. Thus, Henry A. Hollingsworth, a local newsman, testified that he telephoned LeRoy Shirk, president of the local union, about 6:30 a.m. on November 4 to inquire about rumors concerning a possible strike at the Company. According to Hollingsworth, a neutral and objective witness whose testimony I credit, Shirk advised him that the employees would walk out at 7 30 a.m. that morning, and further, that the reason for the strike was to obtain higher wages, better working conditions and additional fringe benefits '° This testimony of Hollingsworth not only supports the plausibility of the testimony given by Stevens and Zarski, but it is incredible to believe that if the true reason for the employees leaving the plant on 7:30 a.m. on Monday was due to a lockout by the Company, the press would not have been so advised. In addition, it is noteworthy that beginning on the morning of November 4 the picket signs bore the legend "IAM, AFL-CIO, LOCAL 1698, ON STRIKE." It was not until November 20 that the signs were changed to read "IAM, AFL-CIO, LOCAL 1698 LOCKED OUT." Significantly, the changes herein were filed on November 19. The foregoing change in the picket signs was made on November 20 when a Board agent appeared at the plant premises to investigage the charges. Upon the basis of the foregoing credible evidence, I find and conclude that the Company did not lock out the employees on November 1, as asserted by Respondents, but rather that the Respondents themselves engaged in a strike. However, even assuming that on the evening of November 3 Zarski did tell Gaskin that he "really did not want the employees on my property," I am persuaded that the facts in this case still would not warrant a finding that the Comanv locked out - or intended to lock out - the employees. Thus, it is undisputed that the employees, as was their custom, assembled inside the plant between 7 and 7:30 a.m. in readiness to report to work at the 7:30 a.m. starting time. Between 7 and 7:30, Shirk and the shop stewards passed word among the employees that they 'Gaskin also testified as to a conversation he had with Attorney Jarvis on the evening of November 3 Jarvis, who represented the Company at the hearing, indicated on the record that he would not testify for ethical reasons However, it was obvious from Jarvis' cross-examination of Gaskin that he did not agree with Gaskin's version of this conversation From my observation of the witnesses in this entire proceeding, I am constrained to place no reliance on Gaskin's testimony concerning his conversation with Jarvis in reaching my findings herein "Additionally, Shirk told Hollingsworth that all possible avenues of settlement had been exhausted and that "all possible efforts would be made to avoid any unpleasantness during the course of the strike " A news release concerning Hollingsworth's interview with Shirk was read over a television broadcast by Hollingsworth at 7 30 a m on November 4 MACHINISTS, AIRLINE DISTRICT 146 were to walk out of the plant at 7:30. In accordance with these instructions, approximately 170 employees walked out at this time. It is undisputed, however, that approximately 66 employees did not go out on strike but went to work that morning and have remained at their jobs ever since. The fact that they were permitted to do so hardly bespeaks of a lockout by their employer. Moreover, the evidence reflects that on the morning of December 4 the employees' work was laid out for them, the plant and equipment were ready for normal operation, and, as stated above, all employees who reported to work were admitted inside the plant. These facts are additionally indicative that the Company did not engage in a lockout but rather that the Union engaged in a strike. Accordingly, I reiterate my finding to this effect. In sum , I find and conclude that the Respondents refused to bargain within the meaning of Section 8(b)(3) of the Act by failing to comply with the requirements of Section 8(d)(3) and (4) of the Act . International Union, United Mine Workers of America (McCoy Coal Company), 165 NLRB No. 67. IV THE EFFECT OF THE UNFAIR I ABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Company, described in section I, above, have a close, intimate, and substantial relation 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. V. THE REMEDY Having found that the Respondents refused to bargain collectively in violation of Section 8(b)(3) of the Act by engaging in a strike commencing on November 4, 1968, without complying with the requirements of Section 8(d)(3) and (4) of the Act, it will be recommended that Respondents cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees , including stockroom clerks, line inspectors, radio men, instrument men, sheetmetal workers, mechanics and machinists, hydraulic mechanics, engine overall mechanics , laborers, janitors, cleaners, painters, carpenters, upholstery workers, electricians and welders, but excluding guards and supervisors as defined in the Act, employed by the Company at its Brownsville, Texas facility constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondents have refused to bargain collectively in violation of Section 8(b)(3) of the Act by failing to comply with Section 8(d)(3) and (4) of the Act, as found in section III, above. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER 519 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Respondents International Association of Machinists & Aerospace Workers, AFL-CIO, International Association of Machinists & Aerospace Workers, AFL-CIO, Airline District 146, and International Association of Machinists & Aerospace Workers, AFL-CIO, Local Union No. 1698, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Inter-Continental Engine Service, Inc. concerning the termination or modification of any collective-bargaining contract between it and the Company by failing, before striking, to: (1) give notice of the existence of any dispute between the Respondents and the Company to the Federal and State Mediation Service pursuant to Section 8(d)(3) of the Act; and (2) continue in full force and effect without resorting to strike all the terms and conditions of any existing contract pursuant to Section 8(d)(4) of the Act; provided, however, that no such notices under Section 8(d)(3) shall be required if an agreement is reached within 30 days following service of a notice of proposed termination or modification. (b) Engaging in, or inducing employees of Inter-Continental Engine Service, Inc. to engage in, a strike against said Company for the purpose of modifying or terminating a collective-bargaining contract, without first having complied with the requirements of Section 8(d) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at the business offices and meeting halls of Respondent District 146 and Local Union No. 1698, copies of the attached notice marked "Appendix."" Copies of said notices, on forms provided by the Regional Director for Region 23, after being duly signed by Respondents' representatives, shall be posted by the Respondents immediately upon receipt thereof, and be maintained ' for 60 consecutive days thereafter, in conspicuous places, including all places where notices to Respondents' members are customarily posted." Reasonable steps shall be taken by Respondents to insure that said notice is not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 23, signed copies of the aforesaid notice for posting by Inter-Continental Engine Service, Inc., if willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by the Respondents, be forthwith returned to the Regional Director for disposition by him. In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a Decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order," shall be substituted for the words "a Decision and Order " 12Subsequent to the close of the hearing, I received correspondence from each of the parties hereto in connection with a proposed unilateral settlement agreement In this correspondence, all of which has been placed 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps Respondents have taken to comply herewith." in the formal file of this proceeding, the General Counsel and the Charging Party indicated that the Respondents presently have no office or meeting place in Brownsville, Texas, I shall leave this matter for the compliance stage of this proceeding. In the event it is then determined that Respondents have no regular office or meeting places in Brownsville, Texas, it is recommended that Respondents mail to all employees in the bargaining unit a copy of the attached notice marked "Appendix" "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO AIRLINE DISTRICT 146, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO, LOCAL UNION No. 1698 Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with Inter-Continental Engine Service, Inc., concerning the termination or modification of any collective -bargaining contract between our Union and the Company by failing, before striking, to (1) give notice of the existence of any dispute between our Union and the Company to the Federal and State Mediation Services pursuant to Section 8(d)(3) of the Act, and (2) continue in full force and effect without resorting to strike all the terms and conditions of any existing contract pursuant to Section 8(d)(4) of the Act; provided, however, that no such notice under Section 8(d)(3) shall be required if an agreement is reached within 30 days following service of a notice of proposed termination or modification. WE WILL NOT engage in, or induce employees of Inter-Continental Engine Service, Inc. to engage in, a strike against said Company for the purposing of modifying or terminating a collective-bargaining agreement, without first having complied with the requirements of Section 8(d)(3) and (4) of the Act. Dated By INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO AIRLINE DISTRICT 146, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO, LOCAL UNION No. 1698 (Labor Organization) (Representative) (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 members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue Houston, Texas 77002, Telephone 713-226-4722.