IATSE, Local 702

IATSE, LOCAL 702 937 Motion Picture Laboratory Technicians, Local 702, International Alliance of Theatrical Stage Employ- ees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO and Deluxe General, Incorporated, Frank Giovanelli and Rose Tardalo. Case 2-CB-4929 In finding a violation of Sec. 8(b)(3), Member Fanning does not rely on Westgate Painting and Decorating Corp, et a! 186 N LRB No. 140, 453 F 2d 783 (C A 2, 1971), cert denied 31 L Ed 2d 455 (1972), cited by the Trial Examiner In Member Fanning's view the legality of the Union 's conduct in this case, unlike that in Westgate Painting from which he dissented, does not fall within the criteria of lawful conduct set forth by the Supreme Court in Scofield v N LR B, 394 U.S 423, and is not otherwise protected conduct. June 26, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On November 3, 1971, Trial Examiner Samuel M. Singer issued the attached Decision in this proceed- ing. Thereafter, the General Counsel and the Respondent Union filed exceptions and supporting briefs, and the Charging Party, DeLuxe General, Incorporated, filed cross-exceptions, and an answer- ing brief to Respondent Union's exceptions. 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 has decided to affirm the Trial Examiner's rulings, findings,' and conclusions2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent Motion Picture Laboratory Technicians, Local 702 , International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, its officers , agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order, as so modified. Substitute the name "Frank Giovanelli" for that of John Cunningham in paragraph 2(c) of the recom- mended Order. I The Trial Examiner, in par 2(c) of his recommended Order, erroneously inserted the name John Cunningham, instead of the name Frank Giovanelli as the expelled member We shall modify the Order to correct this inadvertent error. 2 We agree with the Trial Examiner's conclusions that Respondent's conduct in seeking to enforce its union-seniority rule violated Sec 8(b)(1)(A) and 8(b)(2) of the Act We also agree that its unilateral actions as set forth by the Trial Examiner violated Sec 8(b)(3) of the Act However, in the circumstances, we find it unnecessary to pass upon or to consider whether Respondent's union-seniority rule is per se violative of the Act. Nor do we pass upon the Trial Examiner's conclusion that absent an exclusive hiring hall arrangement, a union may refer its members on the basis of length of union membership TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL M. SINGER, Trial Examiner: This proceeding was tried before me in New York, New York, on August 31 and September 1, 1971, pursuant to complaint issued March 19 based on charges filed on January 22, 1971. The complaint alleges that Respondent Union violated Section 8(b)(1)(A), (2), and (3) of the National Labor Relations Act, as amended, by various acts and conduct including forcing DeLuxe General Incorporated ("DeLuxe" or "Employer") to hire and fill vacancies on the basis of unionwide seniority (length of union membership); direct- ing union members not to accept employment on other than union seniority under threat of union disciplinary action; threatening the Employer with a work stoppage if it employed an employee on other than union seniority basis; unilaterally modifying its collective agreement with the Employer to require filling vacancies in order of union seniority; and disciplining and expelling two union members (Charging Parties Giovanelli and Tardalo) for accepting employment in violation of the Union's seniority rule. All parties appeared and were afforded full opportunity to be heard and examine and cross-examine witnesses. All filed briefs or memoranda. Upon the entire record,' and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION DeLuxe, a New York corporation, maintains its office and place of business in New York City, where it is engaged in film processing and related services. During the past representative year, it performed services valued in excess of $50,000 for customers located outside New York State. I find that at all material times DeLuxe has been an Employer engaged in commerce and in operations affect- ing commerce 'within the meaning of the Act and that assertion of jurisdiction herein is proper. 11. LABOR ORGANIZATION INVOLVED Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. I Transcript corrected by my order on notice dated September 30, 1971 197 NLRB No. 138 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. ALLEGED UNFAIR LABOR PRACTICES A. The Facts 2 1. Contractual relations DeLuxe and Local 702 have been parties to a series of collective agreements, the most recent of which (and the one here involved) covering the period October 1, 1968, to October 1, 1971. The bargaining unit consists of what is normally referred to as production and maintenance employees, employed in various job titles and broken down by department in accordance with schedule A of the contract . In the fall of 1970, when the pertinent events arose, the bargaining unit at DeLuxe consisted of about 360 employees. The contractual provisions relevant here include section I providing for a union-shop clause (i.e., union member- ship as a condition of employment after 30 days on the job), notice to the Union of new hiring within 7 days thereof, and an employer commitment to provide for union security "greater than that specified" in the contract (including use of Local 702 as the sole source for new employees) if lawfully permitted" [i]n case of repeal of the Labor Management Act of 1947" or an amendment thereof. Section 7, dealing with "work distribution and layoffs," provides, inter aha: In the event of a layoff in any department consisting of more than one classification, if an employee in a higher classification shall first be affected by such layoff, such employee affected, having departmental seniority shall have the option to be reverted to the next lower classification in that department in accordance with his departmental seniority or accept severance pay and the employee finally displaced shall be laid off. In the event the employee affected was transferred from another department or classification within the plant, he shall have the option of reverting to a position in his former department or classification and retain his accumulated seniority in such former department or classification. In no event shall an employee be transferred to another department unless he had previously been employed in that department This section also provides that laid-off employees or employees reduced in classification "shall be entitled to demand and receive severance pay" and upon payment thereof "the employees' tenure in the plant shall be terminated." At the hearing, the Union conceded that all laid-off employees involved in this proceeding fall within this category and may be regarded as "former employees." The contract is silent with respect to reemployment rights of laid-off employees who did not elect to take severance pay It is conceded that omission of provisions on such matters "was deliberate and intended after the discussion of the issues relating thereto in negotiations for the [current ] agreement." The contract contains specific provisions covering "temporary transfers." Section 2 provides that no employee "shall be discrimi- nated against or deprived of employment or promotion because of race . . . union membership," etc. Section 25 states: No employee shall be required to perform any act or work violative of the Constitution or By-Laws of this Union. The Union hereby represents that the provi- sions of this Agreement are not violative of said Constitution or By-Laws. Finally, section 15 ("Adjustment of Disputes") provides for resolution of grievances , including "final and binding" arbitration by the "permanent" industry arbitrator . It also provides (sec. 15(h)) that: Pending the final determination of any dispute, there shall be no strike or lockout, nor shall there be any change of working conditions or methods of operation as they existed prior to the dispute except as they may be otherwise permitted by this agreement. 2. Union bylaws ; the union seniority rule Article 3, section 4, of Local 702's bylaws provides that "it shall be mandatory for all members to obey and live up to the Union's Rules set forth in Article 26." Under article 26, section 1(f), a member may be fined , suspended, or expelled for various infractions, including "soliciting employment in laboratories under collective agreement with the Union, without the Union's consent." Article 27 provides that "union seniority" (i.e., length of Local membership) rather than plant seniority shall govern unemployed members competing for jobs. Thus section 1(a) of that article states: When one or more unemployed members are equally available and competent to fill a job , preference shall be given in the order of the Union seniority of said respective unemployed members, but in the event that one or more of said available unemployed members were inducted on the same date , then and in that event, preference shall be given to such of said unemployed available members, who had been unemployed for the longest period of time. On September 25, 1970, the Union adopted a resolution applying its "union seniority" rule not only to unemployed, but to employed members, including those in a reverted status-so that even those employees could not accept other positions (even these they held with their own employer prior to their reversion ) unless union seniority was followed . In effect, union seniority was made the controlling criterion for filling vacant jobs whether those jobs were being competed for by unemployed members or those presently employed in other classifications . Accord- ing to Union President and Business Agent Vitello, the September rule was adopted "for the benefit of the old timers in the local," with the knowledge that it was contrary to the contractual "reversion clause" and in "conflict with the policies of DeLuxe ." It is clear, and I find, that at least to the extent that union seniority was made applicable to employees in a reverted status who sought to return to their former positions and could not do so because of their lower ranking as a member, the Union's 2 Except for one incident (infra, In 6), all findings are based on documentary evidence, admissions, and substantially undisputed testimony IATSE, LOCAL 702 939 resolution was contrary to the collective-bargaining agree- ment. On March 11, 1971, the Union, upon advice of counsel, rescinded the September 1970 resolution. Since that date, Local 702 has not required members in a reverted status to abide by union seniority. However, the Union still takes the position that its members must comply with Article 27 of its bylaws, under which union seniority still is, and always has been, the rule with respect to members accepting new employment. According to Union President Vitello, "If an employer calls the Union, we will send out members according to Union seniority." 3. Past referral and hiring practices The collective agreement, negotiated on a group basis, is substantially identical to those signed by 14 employers in the area. Union President Vitello estimated that normally about 50 percent of the Local's members (membership fluctuates around 2,000) are referred to new positions through the Union's hiring hall on the basis of union seniority. Industrial Relations Representative Slusser testified that the Company "has historically used the Union to obtain a trained source of employment," indicating, however, that it was "absolutely not" its sole source. General Counsel concedes that employers (includ- ing DeLuxe) are not required to hire exclusively through the Union and that the Union has operated a nonexclusive hiring hall.3 According to Slusser, the Company generally fills vacancies with "reverted personnel"-i.e., it returns a laid-off employee to the job or department where he formerly worked; or, if such employees are unavailable, it offers the vacant job to others in the plant (using a posted promotion list) or to former laid-off employees "familiar with the general operation of the plant"; or, as a last resort, it requests new help from the Union or hires directly "from the street." Union President Vitello testified that, in accordance with the Union's bylaws, the Union always refers employees "by union seniority" in response to employer requests; and that in his "opinion" employees can solicit their own jobs although "we would like them to go through the union." When referred to article 26, section 1(f), forbidding members to solicit employment directly "without the Union's consent," Vitello indicated that he could not testify as to the operation of that clause nor indicate the circumstances under which the Union would consent to direct solicitation. 4. The November 1970 layoffs and attempts to fill vacancies; the arbitration award On November 9, 1970,4 DeLuxe laid off 50 employees for economic reasons. In view of the contractual rights of employees, in the event of a layoff, "to be reverted to the next lower classification in that department" and "of reverting to a position in his former department or classification" (Section 7 of the contract), the layoff actually involved 100 to 150 "moves" in a sort of "musical chairs" or bumping action. In early December, four vacancies developed in the printing department and Industrial Relations Representative Slusser offered the jobs to four employees (Mini, Zurenda, Marinelli, and Morgan) who had been reverted out of that department during the November layoff. Upon informing the umon steward (Pizzuto) of this offer, the latter referred Slusser to Union President Vitello. Vitello told Slusser that the Union's recent (September 1970) resolution (supra, sec. A,2) on "union seniority" precluded the four employee-members from reverting back and that he would have to hire "the most senior unemployed" Local 702 members whether or not they were previously employed by DeLuxe, explaining at the hearing that the September union resolution was passed because of "a high degree of unemployment in the industry." When Slusser stated that he would then temporarily transfer the four into the printing department until "we could ... iron out the problem," Vitello objected, insisting again that the Company must hire the "senior unemployed people." 5 The next day, Slusser spoke with three of the four employees (Mini, Zurenda, and Morgan), advising them that they were being "temporarily transferred," but all three said they "could not take the temporary assignments" because "they had been instructed by [the] Union not to take it." At the hearing, the Union admitted the allegation in the complaint that Vitello "directed", all four employees slated for the reverted positions "not to accept transfers upward or reemployment . . . and then warned them that failure to comply with such directive could result in disciplinary action." Unable to fill the 'vacancies with "reverted" employees, Slusser subsequently (the next week) sought to rehire four other employees (Giovanelli, Ploski, Cunningham, and Lawlar) who had been laid off or severed in the November layoffs. All four had worked in the printing department (where the openings existed) and were regarded by the Company as among its best and most senior employees. Advised of the Company's intention, Vitello said that he did not believe that all four were "senior people in the industry" and again insisted that the Company must hire on the basis of the union seniority. Slusser demurred, explaining that he had "no intention to hire people from another lab when there were [satisfactory] people on the street who had worked at DeLuxe." He then contacted the four employees and all accepted the jobs, filled out applications and W-4 forms, and were scheduled to start work on particular days and shifts. However, the Union permitted only one of the four (Lawlar) to accept employment after learning that she had the requisite umon seniority. The others were instructed by the Union not to work because they lacked union seniority. Vitello sent Cunningham a telegram directing him to report to the Union's office instead of to DeLuxe, warning him that 3 At one time, the Union took the position that it had an exclusive referral agreement, but the permanent arbitrator ruled otherwise and, according to the Union, it has abided by that determination 4 Unless otherwise indicated, all dates in this and subsequent sections are 1970 5 In seeking to make the temporary transfers, Slusser relied on his "contractual right" to do so under sec 13 of the collective agreement and on a directive issued by the permanent arbitrator in another case on October 8 That directive required employees to accept temporary transfers and provided that any union objections to such transfers must be handled through the grievance procedure 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Failure to comply [with the Union's order] will result in severe disciplinary action oy the executive board." While Cunningham and Ploski acceded to the Union's directives, Giovanelli (the fourth employee offered employ- ment) did not. After several meetings with Vitello on the question of hiring, Slusser on or about December 15 finally informed Vitello that Giovanelli would report to work. Vitello warned that if this takes place, "there will be no printing in DeLuxe laboratory . . . I'll pull the whole plant."6 The question of the Company's right to hire Giovanelli was submitted for arbitration by the Union and Company, the latter referring to the Union's "threatened . . . mass stoppage and walkout" if Giovanelli were put back to work. In accordance with the Union's request, Giovanelli was not rehired pending determination of the dispute. After a hearing on the issue, the permanent arbitrator on December 28 issued his award, finding that the hiring of Giovanelli "is not and would not be violative of the Collective Agreement," thereby rejecting the Union's contention that the Company was required to hire on the basis of union seniority. The arbitrator also noted that there "is evidence that the Union committed two ad hoc and temporary violations" of his prior (December 14, 1970) award in another situation and that the Union here "threatened one additional violation." The arbitrator served notice on the Union that he expected his orders and awards "to be strictly followed." 5. The Union's disciplinary action against two member employees who returned to work in violation of the union seniority rule Following the arbitration award, on January 4, 1971, Giovanelli and Tardalo, another laid-off employee, re- turned to work. On the same day, Union President Vitello filed identical "charges" against each alleging that they violated article 27 of the Union's bylaws (the union seniority rule) because they "went to work without regard to rights and seniority of fellow employees" and also article 26, section 1(f), of the bylaws (precluding job solicitation without union consent).? Each was notified that "said charges will be read at our next membership meeting on Friday, January 8, 1971." Giovanelli and Tardalo were later tried and found guilty of violating both bylaws by Local 702's Executive Board on January 22, 1971, and expulsion from membership was recommended. On March 6, 1971, the membership acted on that recommendation and both employees were expelled from membership and their tender of dues returned.8 However, both continued to work at DeLuxe without further union request for their discharge. B. Conclusions 1. The basic issues here presented concern: (1) validity of Respondent's "union seniority" rule and (2) application 6 Based on Slusser's credited testimony While Vitello generally denied threatening Deluxe with a strike or work stoppage, he admitted warning Slusser that "there may be a stoppage by the printers which will get out of control and which I wouldn't be able to control " 7 Giovanelli was previously summoned to appear at the Union's office and enforcement of that rule by the Union through attempts to induce and force DeLuxe and Union members to abide by that rule. The rule in question (art. 27 of the Union's bylaws) provides that length of membership in the Union (as distinguished from length of employment in the plant or bargaining unit) governs unemployed members competing for jobs. By resolution adopted in September 1970, the rule was broadened to apply to all members, including those employed in the plant, so that employee- members were barred from accepting permanent return or temporary transfer to higher classifications from which they had been "reverted," except in "union seniority" order. In other words, union seniority was the controlling criterion for filling jobs both by applicants for new employment and members already employed. 2. Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a union to "restrain or coerce" employees in the exercise of rights guaranteed by Section 7. Under Section 7 employees are guaranteed the right to form, join, or assist labor organizations, and "the right to refrain from any or all such activities." However, the proviso to Section 8(b)(1)(A) preserves the right of a union "to prescribe its own rules with respect to acquisition or retention of membership therein." Applying those provi- sions, the Supreme Court has held that the language and legislative history of Section 8(b)(1)(A) made it plain that Congress "left internal union affairs to union self-govern- ment" and that the section did not contemplate the regulation of internal union discipline, such as fines or expulsion from membership. N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 185. Accordingly, it is not unlawful for a union to fine members for crossing a picket line (,Albs-Chalmers, supra); or to discipline employees for exceeding production ceilings (Local 283, United Automo- bile Workers (Wisconsin Motor Corp.), 145 NLRB 1097, 1099-04, affd. sub nom. Scofield v. N.LR.B., 394 U.S. 423. Standing alone, the union-seniority rule here involved appears to serve a legitimate union concern-to spread employment among members and, in my view, is not unlawful. It is conceded that the collective agreement between Respondent and DeLuxe was not an exclusive referral contract and that the contract did not preclude employees from obtaining employment directly from the Employer. Accordingly, I reject General Counsel's and Charging Party's contention that the union seniority rule in itself constitutes illegitimate exercise of union power and is in effect per se violative of the Act. Absent an exclusive hiring hall arrangement, a union may refer its members on the basis of length of union membership. See Frank Pauley, etc., International Association of Bridge, Structural and Ornamental Iron Workers, etc., (John F. Beasley Construc- tion Company), 152 NLRB 1409, 1414. 3. However, as the Supreme Court pointed in Scofield, supra, both legislative history and its prior Allis-Chalmers decision (supra) have "distinguished between internal and external enforcement of union rules." 394 U.S. at 428. Thus, while a "union rule duly adopted and not the on December 21, after notification that he was in violation of the union seniority rule, under threat of "disciplinary action" if he failed to appear. 8 The two employees have appealed their expulsions to the International, but the latter had not yet acted thereon as of the date of the hearing IATSE, LOCAL 702 arbitrary fiat of a union officer" is "enforceable against voluntary union members by expulsion or a reasonable fine" (ibid ), it is not enforceable so as to affect a member's employment status. As stated in Scofield, 394 U.S. at 428-429: The Court [in Allis-Chalmers, supra ] thus essentially accepted the position of the National Labor Relations Board dating from Minneapolis Star & Tribune Co., 109 NLRB 727 (1954) where the Board also distinguished internal from external enforcement in holding that a union could fine a member for his failure to take part in picketing during a strike but that the same rule could not be enforced by causing the employer to exclude him from the work force or be affecting his seniority without triggering violations of Sections 8(b)(1), 8(b)(2), 8(a)(1), 8(a)(2), and 8(a)(3). These sections form a web, of which Section 8(b)(1)(A) is only a strand, preventing the union from inducing the employer to use the emoluments of the job to enforce the union's rules. [Footnotes omitted.] The Court (394 U.S. at 428, fn. 5) went on to affirm its earlier pronouncement in Radio Officers' Union v. N.L.R.B., 347 U.S. 17, 40, that "The policy of the Act is to insulate employees' jobs from their organizational rights. Thus, Sections 8(a)(3) and 8(b)(2) were designed to allow employees to freely exercise their right to join unions, be good, bad or indifferent members, or abstain from joining any union without imperiling their livelihood." Here, the record shows that Respondent's conduct was not confined to "internal enforcement" of its union seniority rule. It took repeated steps "to affect a member's employment status." (Scofield, supra, 294 U.S. at 428). Not only did it threaten disciplinary action against employee- members if they accepted employment in contravention of its union seniority rule in "reverted" or new classifications, but it vigorously sought to force the Employer to apply the Union's internal rule in all hiring, i.e., it insisted that preference in all employment be conditioned on length of union membership. To bring home that this was not an idle threat, Union President Vitello threatened a mass work stoppage if the Employer hired Giovanelli in breach of the union seniority rule. Furthermore, as presently shown, by seeking to force DeLuxe to abide by the sweeping union seniority rule (as promulgated in its September 1970 resolution) and by later preventing four "reverted" employees from accepting employment, Respondent effec- tively sought to impose unilateral terms and conditions of employment in violation of Section 8(b)(3) of the Act. Respondent was in effect seeking to require its members to abet its own breach of the collective agreement-action in itself contrary to public policy. See Local 12419, etc., United Mine Workers of America (National Grinding Wheel Company, Inc.), 176 NLRB 628. Under all the circumstances, I find that Respondent's conduct in seeking to enforce its union seniority rule had its necessary and unlawful effect of encouraging union membership, in violation of Section 8(b)(1)(A) and (2) of the Act. Cf. N.L.R.B. v. Brotherhood of Painters, Decorators 9 In his brief, General Counsel advances various grounds, in addition to those relied on in this Decision, to justify findings of 8(bX3) violations. Among these, for example, is the theory that Respondent's conduct was "in 941 and Paperhangers, etc., 242 F.2d 477, 481 (C.A. 10). See also Patterson v. Tulsa Local No. 513, etc., 78 LRRM 2068, 2071 (C.A. 10). 4. As found (supra, sec. A, 2), on September 25, 1970, during the contract period, but before the events here involved, the Union adopted a resolution requiring members already employed (as well as unemployed members) to adhere to the union seniority rule. As a result, four employee-members (Mini, Zurenda, Marinelli, and Morgan) were precluded from reverting to positions (higher classifications) they previously held in the printing department, the Union insisting that the vacancies be filled with "the most senior unemployed" members, whether or not formerly employed by DeLuxe. The Union similarly insisted that the Employer refrain from transferring these employees to the higher classifications on a temporary basis-all in breach of the collective agreement and the arbitrator's previous awards sanctioning such transfers. Respondent was in effect seeking to unilaterally change terms and conditions of employment-both with respect to initial hiring and upgrading working employees-by attempting to foist and foisting upon the Employer its union seniority rule, in breach of the collective agreement under which the Employer was free to hire, revert, and temporarily transfer employees without prior union ap- proval. Furthermore, it is conceded that during the contract negotiations the Union sought, but failed, to achieve provisions of the type it now sought to impose during the contract period. This case is, therefore, analogous to Brotherhood of Painters, Decorators and Paperhangers of America, etc., (Westgate Painting and Decorating Corp.), 186 NLRB 964 where a majority of the Board found that the union there unilaterally implemented a production quota rule (forbidding employees to paint more than 10 rooms a week), in violation of Section 8(b)(3) of the Act. The Board stated: ... the Union unilaterally effected changes in wages and the workweek which were neither sanctioned by the contract nor accepted by the Employers. The Union, by its action after the' new agreement was executed, thus sought to secure without bargaining what it had failed to achieve in bargaining. Therefore, the Union's unilateral implementation of its 10-room rule constituted a change in terms and conditions of employment sufficient to preclude the continued imposition of the rule without the agreement of the Employer. Accordingly, we find . . . that the Union, by unilaterally enforcing its 10-room maximum pro- duction quota . . . violated Section 8(b)(3) of the Act. Based on the above-cited decision, I conclude that Respondent's unilateral actions here likewise constituted a violation of Section 8(b)(3) of the Act .9 5. As also found (supra, sec. A, 4), in addition to barring reversions and transfers within the plant, Respon- dent invoked its union seniority rule to bar employment to derogation" of previously rendered arbitration awards In view of the result reached, I find it unnecessary to consider General Counsel's other theories 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three former employees (laid-off employees Giovanelli, Ploski, and Cunningham).70 All were offered employment directly by the Employer and all accepted the offers and were ready to report to work. While two of the three yielded to union pressure to abide by the rule, the third (Giovanelli) did. not. On January 4, subsequent to the arbitrator's award upholding the Employer's contractual right to hire employees without regard to union seniority, Giovanelli and another employee (Tardalo) finally re- turned to work. The Union, however, continued to press its disciplinary charges against Giovanelli and also Tardalo for violating the union seniority rule and on January 22 the Union's Executive Board found them guilty (supra, sec. A, 5).11 On March 6, 1971, the Union expelled both employees from membership. Having found that the umon seniority rule, as enforced, was illegally imposed on the employees, that it was sought to be enforced through the employer as a condition of employment, and that its implementation was in breach of the subsisting collective agreement, I further find and conclude that the disciplinary action taken against Giova- nelli and Tardalo for accepting the Employer's offer to work constituted "restraint and coercion" within the meaning of Section 8(b)(l)(A) of the Act. As in Local 12419, etc., United Mine Workers of America (National Grinding Wheel Company, Inc.), 176 NLRB 628, the "penalty to compel conduct in violation of [the Union's contractual] obligation is also one where the immunity based on the internal character of the discipline is overcome by its offense to basic statutory policy." In National Grinding Wheel the union fired 16 members for crossing a sister union's lawful picket line. However, the governing collective agreement contained a no-strike clause and, accordingly, the fines were held to be penalties for members' refusals to participate in work stoppages forbidden by the collective agreement. The Board adopted the reasoning of my colleague, Trial Examiner A. Norman Somers that- The policy in this case concerns the adherence to the terms of a contract between representatives of employ- ers and employees and the condemnation of their violation. This is indeed implicit in the preamble of the Act from its inception (Sec. 1) and in the reports of both houses of Congress . . . . To hold that a union, despite the prohibition in Section 8(b)(1)(A) against 10 The fourth employee (Lawlar) was allowed to work because she had the requisite union seniority 11 The two employees were also found to have violated the Union's rule against soliciting employment without union consent, but there is no evidence that they solicited thejobs iz In view of the above-stated conclusions, it matters not that the Union allowed the two employees to work after expulsion from membership without union interference In any event, the two were deprived of work during December, prior to the arbitral award as a result of the Union's application of the union seniority rule As in the case of his treatment of the 8(b)(3) issues, General Counsel sets forth additional grounds for finding independent 8(b)(l)(A) violations (G C br pp 19-26) One of these, dealing with discriminatory enforcement of the union seniority rule (i e , forcing the Employer to give priority in employment to members with greatest length of membership), already has been considered and found to be a 8(b)(l)(A) as well as 8(b)(2) violation, (supra, sec B,3) With respect to General Counsel's contention that Respondent's operation of its hiring hall also violates Sec 8(b)(1)(A) because "it denies job referrals to nonmembers"(br p 22), it is clear, and I find, that Respondent was not adequately apprised of this issue, nor restraining or coercing of employees in their rights under Section 7 could nevertheless with impunity penalize members for failing or refusing to participate in a violation of a no-strike clause is to provide an incentive to unions and members to violate contracts. This too runs counter to a basic'policy of the statute. Accord: Glaziers Local Union No. 1162, etc. (Tusco Glass, Inc.), 177 NLRB 393.12 6. Respondent's basic defenses, as stated in its letter memorandum to the Trial Examiner are: (a) that "if there was any violation of the Act . . . it was cured both by the arbitration process" and the Union's compliance with the arbitrator's award; and (b) that "in any event, the conduct complained of and set forth in the complaint" was of short duration and "de minimis.) The short answer to Respon- dent's second contention is that the conduct alleged and found to be violative is substantial and significant, requiring remedial action. Thus, the record establishes that Respondent's insistence that DeLuxe do all its hiring on the basis of its union seniority rule made it impossible for the Employer to fill vacancies practically for the entire month of December. Moreover, Respondent did not rescind its September 1970 resolution broadening the scope of the union seniority rule to employed members (for "reversions" and transfers to higher classifications) until March 1972. Respondent continued to press its disciplinary charges against two employees (Giovanelli and Tardalo) long after December 1970, culminating in their expulsion in March 1971, despite the fact that the December 28 arbitral award upheld the Employer's position that it could properly hire the two employees without regard to the union seniority rule. As to Respondent's contention that its violations were "cured" by the arbitral process and by its compliance with the arbitrator's award-thereby rendering unnecessary and superfluous the instant unfair labor practice proceeding -Respondent relies on the Board's recent Collyer case. 13 To begin with, Collyer is here inapplicable. There, the Board dismissed the complaint proceeding because of the supposed availability of grievance-arbitration procedures under the parties' collective agreement, reserving unto itself, however, jurisdiction over the proceeding in the event of that he "expect[ed] my orders and Awards to be strictly followed." 14 certain contingencies. Unlike in Collyer, we are here concerned not with deference to afforded full opportunity to litigate it. See Federal Tool Corp, 130 NLRB 210, 216, In 15, S S Kresge Co v NLRB, 416 F.2d 1225 (CA 6) Accordingly no findings are based on this point. The same is true with respect to General Counsel's contention that Respondent's refusal to handle or process grievances for nonmembers (and expelled members) is violative of Sec 8(b)(1)(A). Admittedly, the complaint made no such allegation While Respondent's witness, Vitello, "admitted" that the Union would not represent employees "expelled for membership," I am not prepared to find, on the basis of the testimony of this single witness on cross-examination, that Respondent, as the exclusive representative of DeLuxe's employees, would fail to fulfill its statutory duty to represent all employees (including nonmembers), absent advance notice to Respondent that it would have to meet such issues Nor is there any showing that Respondent ever refused to represent nonmembers within the bargaining unit Under the circumstances, General Counsel's application in his brief (p. 26) at this late date "to amend the complaint to conform to the proof with respect to this issue" and to find an 8(b)(I)(A) violation on the basis of such "proof" is denied 13 Cotlyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB No 150 14 For like reasons I would not recommend that the Board defer to IATSE, LOCAL 702 arbitration where arbitration proceedings are available. Here the parties submitted their basic dispute (applicability of the union seniority rule) to arbitration. Moreover, Respondent did not raise arbitration as a defense in its answer to the complaint, did not seriously press it at the hearing, and voluntarily elected to litigate the matters in issue in the unfair labor practice proceeding Finally, the record here shows that Respondent has ignored prior arbitral awards, prompting the arbitrator in his latest (December 28) award to deplore two earlier violations and admonishing Respondent Accordingly, I conclude that Respondent's defenses are without merit and they are hereby rejected. CONCLUSIONS OF LAW 1. By forcing DeLuxe to give priority in employment to employees with greatest length of membership, and by causing employees to reject DeLuxe's offers of employ- ment unless they had such union seniority, Respondent committed unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 2. By causing and attempting to cause DeLuxe not to revert or transfer employees Mini, Zurenda, Marinelli, and Morgan to higher classifications on the ground that they allegedly did not have sufficient union seniority, Respon- dent committed unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 3. By similarly causing DeLuxe to deny employment to former employees Giovanelli, Ploski, and Cunningham because they allegedly had insufficient union seniority, Respondent committed unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act 4. By unilaterally effecting changes in terms and conditions of employment during the term of its collective agreement with DeLuxe, Respondent committed unfair labor practices within the meaning of Section 8(b)(3) of the Act. 5. By disciplining and expelling Giovanelli and Tardalo from membership under the circumstances described (supra, sec. B, 5), Respondent committed unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 6. Each of the aforesaid unfair labor practices affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. The affirmative action will include a requirement that the Respondent arbitration under its Spielberg doctrine (Spielberg Mfg Co, 112 NLRB, 1080) which, unlike Collyer, applies where an award issued prior to the unfair labor practice proceeding Moreover, it appears that some of the issues considered in the instant proceeding (e g , whether the union seniority rule as enforced constituted "restraint and coercion" and whether expulsion of two employees contravened statutory policy) were not before the arbitrator Cf Monsanto Chemical Co, 130 NLRB 1097, 1099, D C International Inc , 162 NLRB 1383, 1384, 1384-85 15 There is no claim that Respondent , subsequent to the events here 943 notify and bargain collectively with DeLuxe concerning changes in terms and conditions of employment prior to effecting such changes; that it revoke its disciplinary action (expulsion) against employees Giovanelli and Tardalo and restore to each of them union membership with full union seniority rights; and that it make whole the employees named in the complaint for any loss of earnings suffered by them by reason of the discrimination against them.15 Backpay shall be computed in accordance with the formula set forth in F. W Woolworth Company, 90 NLRB 389, with interest as described in Isis Plumbing & Heating Co., 138 NLRB 176. 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: ORDER 16 Respondent Motion Picture Laboratory Technicians, Local 702, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada , AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Enforcing, implementing, and giving effect to its union seniority rule, as set forth in article 27 of its bylaws, by forcing DeLuxe General , Incorporated , to give priority in employment to employees with greatest length of membership and by causing employees to reject DeLuxe's offers of employment unless they have requisite union seniority. (b) Causing or attempting to cause DeLuxe to discrimi- nate in the hire, transfer , and upgrading of employees in violation of Section 8(a)(3) of the Act. (c) Unilaterally, and without notice or consultation with the above-named employer, effecting changes in terms and conditions of employment. (d) Disciplining, including expelling employees from membership, for accepting offers of employment in accordance with practices and procedures sanctioned by its collective agreement with DeLuxe. (e) In any other manner restraining or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole the employees listed below for any loss of pay they may have suffered because of the discnmina- tion against them, in the manner set forth in the section of this Decision entitled "The Remedy": Terry Mini Frank Giovanelli Ceil Zurenda Rose Ploski Mike Marinelli John Cunningham Cliff Morgan involved, interfered with the hiring, transfer, or upgrading of the employees named in the complaint and, accordingly, no reinstatement order is warranted is 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, recommendations, 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 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Upon request, bargain collectively in good faith with DeLuxe prior to effecting changes in terms and conditions of employment. (c) Rescind its expulsion of employees John Cunning- ham and Gloria Tardalo from union membership ; restore the said employees to membership with full union seniority rights; expunge from its records all reference and other evidence in its files relating to the disciplinary actions against them ; and notify each in writing of all such actions. (d) Notify, in writing, Respondent's International to which the two above-named employees have appealed their expulsion , of the aforesaid actions, with a copy of such writing to the two employees (e) Preserve and, upon request , make available to the Board or its agents, for examination or copying, all records relevant and necessary to compliance with above para- graph (a). (f) Post at its business office and meeting halls , copies of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent'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 . Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Furnish the Regional Director for Region 2 signed copies of said notices for posting by DeLuxe General, Incorporated, if willing, in places where notices to employees are customarily posted. Copies of said notices, on forms provided by said Regional Director, shall, after being signed by Respondent, be forthwith returned to the Regional Director for disposition by him. (h) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.is IT IS FURTHER ORDERED that the complaint be dismissed in all other respects 17 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 Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 18 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To all members of Motion Picture Laboratory Techni- cians, Local 702, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada , AFL-CIO: Pursuant to the recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policy of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT enforce, implement, and give effect to our union seniority rule (as set forth in art . 27 of our bylaws) by forcing DeLuxe General, Incorporated, to give priority in employment to employees with greatest length of membership and by causing employees to reject DeLuxe's offers of employment unless they had requisite union seniority. WE WILL NOT cause, or attempt to cause, DeLuxe to discriminate in the hire , transfer, and upgrading of employees in violation of Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT unilaterally, and without notice or consultation with the above-named Employer, effect changes in terms and conditions of employment. WE WILL NOT discipline, including expel from membership, members accepting employment in ac- cordance with procedures sanctioned by our agreement with DeLuxe. WE WILL make whole the employees listed below for any earnings they may have lost as the result of our objections to their transfer , upgrading or hire, because of enforcement of our union seniority rule in December 1970. Terry Mini Frank Giovanelli Cell Zurenda Rose Ploski Mike Marinelli John Cunningham Cliff Morgan WE WILL, upon request, bargain in good faith with DeLuxe prior to effecting changes in terms and conditions of employment. WE WILL rescind our order expelling Frank Giova- nelli and Gloria Tardalo from union membership and restore to said employees full union seniority rights MOTION PICTURE LABORATORY TECHNICIANS, LOCAL 702, INTERNATIONAL ALLIANCE OF THEATRICAL STATE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) IATSE, LOCAL 702 945 This is an official notice and must not be defaced by mg this notice or compliance with its provisions may be anyone. directed to the Board's Office, 36th Floor, Federal This notice must remain posted for 60 consecutive days Building, 26 Federal Plaza, New York, New York 10007, from the date of posting and must not be altered, defaced , Telephone 212-264-3311. or covered by any other material. Any questions concern-