Local 647, United Automobile Workers

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union; United Automobile, Aerospace and Agricultural Implement Workers , UAW, and its Local No. 647 and Jerrilyn Hatten and Clifford Laughlin and General Electric Company. Cases 9-CB-1847-9, 9-CB-1847-10 and 9-CB-1850 June 15, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On May 21, 1971, Trial Examiner William J. Brown issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief, the General Counsel filed limited exceptions and a supporting brief , and Charging Party General Electric Company (herein GE) filed exceptions and a supporting brief. Thereafter, this case was heard on oral argument on September 13, 1971. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and the oral argument, and has decided to affirm the Trial Examiner 's rulings, findings, and conclusions and to adopt his recommended Order only to the extent consistent herewith. The complaint herein alleges that Respondent violated Section 8(b)(1)(A) of the Act by levying a fine against Charging Parties Hatten and Laughlin, former members of Respondent, because they crossed a picket line subsequent to their resignations from membership in Respondent. The critical facts are undisputed. Respondent and GE were parties to a collective-bargaining agreement which expired under its own terms on November 9, 1969. On October 26, 1969 , Respondent began an economic strike and picketing . On February 15, I The strike settlement agreement contained , inter aim, the following provision "Neither the company nor the union will discriminate against any employee solely by reason of his participation or non-participation in the strike " 2 Art 30, sec 1, of Respondent International's constitution provides that charges may be filed against any member who violates the constitution or engages in "conduct unbecoming a member of the Union " Charges apparently were filed under this general provision , the constitution contains no specific language making it an offense to cross a picket line 3 Sec 17 of the International constitution provides that A member may resign or terminate his membership only if he Is in good standing, is not in arrears or deliquent in the payment of any dues or other financial obligation to the International Union or to his Local Union and there are no charges filed and pending against him. Such 1970, Respondent and GE entered into a strike settlement agreement' and the strike and picketing ended the following day. On January 19, 1970, before the end of the strike, Charging Parties Hatten and Laughlin sent letters to GE and Respondent giving notice that they were resigning from membership in Respondent. The letters were received by Respondent on January 19 and 20, respectively. On January 20, the two individuals crossed the picket line and returned to work. On June 24, 1970, Respondent levied fines of $100 each against Hatten and Laughlin for crossing the picket line.2 Thereafter, unfair labor practice charges were filed by the individual Charging Parties and by GE. All charges alleged that Respondent had violated Section 8(b)(1)(A) by levying the fines (a) in breach of the strike settlement agreement, and (b) subsequent to the individuals' resignation from Respondent. As indicated above, the complaint referred only to the levying of fines subsequent to the resignations; no reference was made to the strike settlement agreement. At the hearing, and in his brief to the Trial Examiner, counsel for the General Counsel urged that Respondent's conduct was unlawful because it was taken against individuals who were no longer members of Respondent when they crossed the picket line. Respondent's sole defense before the Trial Exam- iner was that the individuals were still members of Respondent at the time they crossed the picket line and were, therefore, amenable to discipline. In support of this defense, Respondent relies on a provision of its International constitution3 which sets forth the conditions under which a member may resign. According to Respondent, since the individu- als did not comply with this provision, their resigna- tions were ineffective and the discipline was lawful. In finding Respondent's conduct violative of Section 8(b)(1)(A), the Trial Examiner summarily rejects the General Counsel's contention that the resignations were effective, notwithstanding the constitutional provision. Instead, the Trial Examiner finds Respondent's conduct unlawful because impo- resignation or termination shall be effective only if by written communication, signed by the member, and sent by registered or certified mail, return receipt requested , to the Financial Secretary of the Local Union within the ten (10) day period prior to the end of the fiscal year of the Local Union as fixed by this Constitution , whereupon it shall become effective sixty (60) days after the end of such fiscal year, provided , that if the employer of such member has been authorized either by such member individually or by the Collective Bargaining Agreement between the employer and the Union to check off the membership dues of such member, then such resignation shall become effective upon the effective termination of such authorization , or upon the expiration of such sixty (60) day period, whichever is later The fiscal year corresponds to the calendar year 197 NLRB No. 93 LOCAL 647, UNITED AUTOMOBILE WORKERS 609 sition of the fines contravenes the terms of the strike settlement agreement and "undercuts the process and practice of collective bargaining." In its limited exceptions, the General Counsel urges that the Trial Examiner erred in refusing to find that Respondent violated Section 8(b)(1)(A) because the fines were levied for conduct engaged in by individu- als subsequent to their resignations.4 We find merit in this contention. Simply stated, the issue is whether or not Hatten and Laughlin effectively resigned their membership in Respondent before crossing the picket line. Unquestionably, if the resignations were effective, Respondent's attempt to discipline Hatten and Laughlin is unlawful under the doctrine set forth in the Boeing case.5 Respondent contends that the resignations were not effective because they were not submitted in accordance with the constitutional provision, supra, which requires that all resignations be submitted within the 10-day period preceding the end of Respondent's fiscal year. Since Respondent's fiscal year corresponds to the calendar year, only those resignations submitted between December 22 and 31 would be effective. Moreover, resignations submitted within that period only become effective 60 days after the end of the year (approximately March 1).6 In Boeing, the Board found attempted resignations effective, notwithstanding the union's contention that resignation was precluded by its constitution which made no provision for voluntary resignation. Similarly, in General Service Co., Inc.,7 relied on by the General Counsel, the union's constitution provid- ed that a member could resign only if he was in good standing and had ceased to be employed in an industry within the union's jurisdiction. The Board viewed that provision as "no provision for voluntary resignation" and found such a provision no impedi- ment to the employees' attempted resignations.8 In our view, the 10-day escape period and 60-day waiting period contained in Respondent's constitu- tion is not significantly different from the provisions we considered in Boeing and General Gravure. Here, as in those cases, the provision imposes such narrow restrictions as to amount, in effect, to a denial to members of a voluntary method of severing their relationship with the Union. In short, the present 4 In its exceptions, GE joins the General Counsel in urging that the Trial Examiner erred in rejecting this theory However, GE also maintains that the Trial Examiner was correct in finding Respondent's conduct unlawful because it contravened the terms of the strike settlement agreement In view of our disposition of this case, we find it unnecessary to reach that issue, and we express no opinion on the Trial Examiner's findings and conclusions thereon Moreover, for the same reason, we find it unnecessary to decide whether or not that issue was fully litigated 5 Booster Lodge No 405, International Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Company), 185 NLRB No 23, enfd in pertinent part 459 F 2d 1143 (C A D C ) provision does not make it possible for a member to avail himself of the "strategy" of leaving the Union as recognized by the Board in Boeing9 and envi- sioned by the Supreme Court in Scofield when it stated that, . . . under this dual approach, Sec. 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.iO We cannot view union members as being "free to leave the union" when their right to leave is as narrowly restricted as it is here. We need not pass upon the broader question of whether any provision in a union's constitution or bylaws which purports to regulate the means or timing of resignations would have to yield to the members' freedom to leave the union within the meaning of Scofield. It is sufficient in this case to hold that the very limited escape route contained in Respondent's constitution is inadequate meaningfully to distinguish the facts here from those we found to establish a violation of Section 8(b)(1)(A) in Boeing and General Gravure. Accordingly, we find that Respondent violated Section 8(b)(1)(A) of the Act by levying fines against Charging Parties Hatten and Laughlin. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the recommended Order of the Trial Examiner, as modified below, and hereby orders that Respondent, International Union, United Automobile, Aerospace and Agricultural Implement Workers, UAW, and its Local No. 647, its officers, agents, and representa- tives, shall take the action set forth in the Trial Examiner's recommended Order, as modified. 1. Substitute the following for paragraph 1(a) of the recommended Order: c "(a) Imposing fines against the individual Charging Parties or others similarly situated on the basis of their crossing established picket lines of the Union subsequent to their resignation from the Union." 6 Alternate resignation dates are provided for in the event the member has executed a checkoff authorization or checkoff has been provided for in the contract See fn. 3, supra However, in this case there is no evidence to show whether or not the alternative date would apply to either Hatten or Laughlin. I Local 205, Lithographers and Photoengravers International Union, AFL-CIO (The General Gravure Service Co, Inc), 186 NLRB No 69 8 Accord N L R B v Mechanical and Allied Production Workers, Local 444, AFL-CIO, 427 F.2d 883 (C A I) 9 The Boeing Company, supra at fn 5 10 Scofield v NLRB , 394 U S 423 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Substitute the attached notice for the Trial Examiner's notice. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby rescind the fines heretofore levied against Jerrilyn Hatten and Clifford Laughlin for having crossed the picket line at General Electric Company, Evendale, Ohio, on and after January 19, 1970. WE WILL NOT assess fines against any individu- al for any conduct engaged in subsequent to that individual's resignation from membership. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act, as amended. Dated By INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS, UAW, AND ITS LOCAL No. 647 (Labor Organization) (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, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, came on to be heard at Cincinnati, Ohio, on March 22, 1971. The original charge of unfair labor practices was duly filed on August 3, 1970,1 and the complaint herein was issued on February 4, 1971, by the General Counsel of the National Labor Relations Board acting through the Board's Region- al Director for Region 9. It alleged, in addition to jurisdictional matter, the commission of unfair labor practices within the scope of Section 8(b)(1)(A) of the Act. The Respondent, hereinafter sometimes referred to as the International Union and Local 647, has denied the commission, of they unfair) labor) practices alleged. At the hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues. Subsequent to the close of the hearing briefs were received from the General Counsel, the Respondent labor organization and the Employer Charg- ing Party and have been fully considered. On the basis of the entire record herein and my observation of the sole witness called, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED The employer here involved, hereinafter sometimes referred to as the "Company," is a corporation organized and existing under and by virtue of the laws of the State of New York. It maintains a plant at Evendale, Ohio, where it is engaged in the production of aircraft jet engines and electrical products and appliances and whence, in the 12- month period preceding issuance of the complaint herein, it caused to be shipped directly in interstate commerce to points outside the State of Ohio goods and materials valued in excess of $50,000. I find, and all parties agree, that the Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish and I find that the Respondent is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On November 9, 1969, a collective-bargaining agreement between the Company and the International Union for itself and on behalf of its Local 647 expired, and the International and Local Union conducted an economic strike and picketing against the Company from October 26, 1969, until February 16, 1970. During the period of the picketing, Hatten and Laughlin, the individual Charging Parties, on January 19, sent letters of resignation of their memberships and thereafter crossed the Union's picket line. On February 15 the Company and Respondent Union executed an agreement in settlement of their dispute and providing, inter aka, that neither the Company nor the Union would discriminate against any employee on the basis of participation or nonparticipation in the strike. In mid-June the Union levied fines against Hatten and Laughlin based on their action in crossing the picket line on January 20 and thereafter. The Respondent Union defends its action on the basis of provisions of the International constitution and the local I Dates hereinafter, unless otherwise indicated , relate to the calendar year 1970 LOCAL 647, UNITED AUTOMOBILE WORKERS bylaws to the effect that a union member may resign membership only by written notice within the 10-day period preceding the Unions' fiscal year end.2 General Counsel takes the position that the constitutional provi- sions relating to resignation from union membership are unduly restrictive and invalid under the doctrine of General Gravure Service Co., 186 NLRB No. 69. That decision, however, related to union constitutional provisions pre- cluding membership resignation so long as the employee- member remained employed within the trade jurisdiction of the international union involved. It is thus inapplicable to the present circumstances and presents totally different considerations of policy. As noted above, the strike settlement agreement con- tained the provision that the Union would not discriminate against employees on the basis of participation or nonparticipation in the strike. The strike settlement agreement was itself the fruit of collective bargaining and as such of the highest dignity under the Act whose fundamental policy is to encourage the practice and procedure of collective bargaining. By the imposition of the fines here involved against employees Hatten and Laughlin, the Respondent Union has sought to undercut the process and practice of collective bargaining and has engaged in the unfair labor practices alleged in the complaint. Local 12419, International Union of District 50, United Mine Workers of America (National Grinding Wheel Company, Inc.), 176 NLRB No. 89. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, and there found to constitute unfair labor practices, occurring in connection with the business operations of the Company as set forth 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 such commerce and the free flow thereof. V. THE REMEDY In view of the findings set forth above to the effect that the Respondent Union has engaged in unfair labor practices affecting commerce, it will be recommended that it be required to cease and desist therefrom and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: 2 The Union's fiscal year corresponds with the calendar year 3 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 4 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by 611 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. Respondent is a labor organization within the purview of Section 2(5) of the Act. 3. By imposing fines against Charging Parties Hatten and Laughlin in breach of the strike settlement agreement, Respondent has engaged in unfair labor practices defined in Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:3 ORDER Respondent, International Union, United Automobile, Aerospace and Agricultural Implement Workers, UAW, and its Local No. 647, shall: 1. Cease and desist from: (a) Imposing fines against the individual charging parties or others similarly situated on the basis of their crossing established picket lines of the Union where such imposi- tion contravenes the terms of a collective-bargaining settlement agreement with the Employer. (b) In any like or related manner restraining or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) Rescind the fines assessed upon the individual Charging Parties and inform each Charging Party by written communication of such rescission. (b) Post at its Sharonville, Ohio, offices, in conspicuous places, including all places where notices to members are customarily posted copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondents, shall be posted by Respondents immedi- ately upon receipt thereof and maintained thereafter for a period of 60 consecutive days. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced or covered by other material. (c) Deliver to the Board's Regional Director for Region 9 copies of the aforesaid notice for posting by the Company on its premises herein involved, if the Company desires so to post on bulletin boards customarily used for notices to employees in the unit here involved. (d) Notify the Regional Director for Region 9, in writing, within 20 days5 from receipt of this Decision, what steps have been taken to comply with the terms hereof. 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 " 5 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."