IBEW, Local 34

IBEW, LOCAL 34 639 International Brotherhood of Electrical Workers, Local Union No. 34, AFL-CIO (Protection Alarms, Inc.) and Robert L. Gerkin. Case 38-CB-521 demeanor of the witnesses, and after due consideration of the General Counsel's brief, I make the following: FINDINGS OF FACT January 23, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 22, 1973, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed limited exceptions with a brief in support thereof, as well as a brief in support of the Decision. 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 attached Decisio_-i in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge 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 Administrative Law Judge and hereby orders that Respondent. International Broth- erhood of Electrical Workers, Local Union No. 34, AFL-CIO, its officers, agents, and representatives, shall take the act'on set forth in said recommended Order. DECISION STATEMENT OF THE CASE MARION C. LADwiG: This case was tried at Peoria, Illinois, on July 12 13, 1973.1 The charge was filed on March 27 by an individual, Robert Gerkin, and the complaint was issued on May 1. The primary issue is whether the Union,2 the Respondent, unlawfully filed intraunion charges against and fined Gerkin and two other members because they filed an unfair labor practice charge with the Board or gave testimony in support of the Board charge, in violation of Section 8(b)(1)(A) of the National Labor Relations Act, as amended. Upon the entire record,3 including my observation of the ' All dates are in 1973 unless otherwise stated. 2 The name of the Union was amended at the trial. 1. JURISDICTION Protection Alarms, Inc., herein called the Company, is an Illinois corporation, engaged in installing burglar and fire alarms at Peoria, Illinois, where it annually receives goods valued in excess of $50,000 directly from outside the State. The Union admits, and I find, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Filing of Board Charge The Company and the Union were in the process of negotiating a new collective-bargaining agreement when the Company, on the morning of January 4, discharged six of its nine burglar alarm installers after they had gone the evening before to a competitor's plant to check on the possibility of obtaining employment in the event of a strike. That same morning the Company and the Union agreed to submit the discharges to arbitration under their old collective-bargaining agreement, which had been extended from its expiration date of December 31, 1972, to January 14. Despite this referral of the discharges to arbitration, one of the discharged employees, Robert Bear, filed a Board charge against the Company, in Case 38-CA-1646, alleging that the Company had discriminatorily discharged the six employees because of their union and concerted activities, and had "engaged in a course of conduct demonstrating bad faith bargaining." Two of the other discharged employees, Union Steward Gerkin and Gerald Nevitt, submitted testimony in the form of affidavits to a Board attorney to support the charges. Meanwhile, the Union's business agent, Michael Miller, notified the discharged employees in writing that their arbitration case was scheduled for trial on January 31, that a meeting would be held in Miller's office on January 30, and that the meeting "will be attended by Mr. Jean Souders, Attorney for" the Union-indicating that the attorney would handle the arbitration case for the Union. A few days later, on January 17, member Bear was informed by the Board attorney that Union Attorney Souders had requested copies of Gerkin's and Nevitt's affidavits. Bear then placed a brief, 2- or 3-minute long distance telephone call to Souders to verify the request. As Bear credibly testified, Souders confirmed that he wanted the material, and stated "that it would be extremely helpful in the preparation of the arbitration case." Bear next contacted Gerkin and Nevitt, and told them that the union attorney wanted their Board statements to prepare for the 3 The General Counsel's unopposed motion to correct transcript, dated August 10, is granted and the transcript is corrected accordingly 208 NLRB No. S-1 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arbitration case . Gerkin and Nevitt agreed and Bear sent the affidavits to the attorney. On January 30, an attorney from Souders' office attended the meeting at the union hall. Upon hearing Steward Gerkm's oral account of what transpired on the evening of January 3 , the attorney advised that the arbitration case should be settled, with the six employees getting reinstatement without backpay, and the Board charge being dropped. The employees agreed, and the case was settled on that basis before the arbitrator the following morning. B. Complaints About the Board Charge It is undisputed that Business Agent Miller repeatedly complained about the adverse affect of the Board charge on the negotiations with the Company. As credibly testified by Bear, Miller told him in a telephone call about the second or third week in January "that the charges which I had filed with the National Labor Relations Board were bringing in a lot more stress on the negotiations," and that Bear "should have waited until after the arbitration case" before filing charges. About a week later, in a meeting with the discharged employees, Miller stated that the Board "was bringing stress upon the negotiations with the Company." On February 1 (the day following the settlement of the arbitration case), member Bear went at Business Manager Miller's request to the union hall. Miller and Bear discussed the negotiations, and Miller again "brought out the fact that I had filed the charges with the National Labor Relations Board even though it was my own business as far as going to the . . . Board, it had created a lot of stress on the negotiations." Two weeks later, Business Manager Miller demonstrated his continued concern about member Bear filing the Board charge and about members Gerkin and Nevitt giving purportedly "false" or "untrue" testimony in support of it. C. Intraunion Charges and Fines On February 14, Business Agent Miller filed union charges against the three members who were involved in filing and supporting the Board charge against the Company. Miller's charges, against Gerkin , Bear, and Nevitt, included allegations that each of them violated subsections 8 and 14 of section 1, article 27, of the International's constitution. These subsections read: (8) Sending letters or statements, anonymous or otherwise, or making oral statements, to public officials or others which contain untruths about, or which misrepresent a L.U., its officers or representatives... . [Emphasis supplied.] edge of Union business who were not entitled to such knowledge, and testified to false information regarding same. He alsofurnished another employee with testimony that by-passed the office of Business Manager and directed to the Union Attorney without proper authori- zation. Robert Bear did send statements of others to a person containing untrue statements concerning this L.U. He did not seek nor receive the advice , or consent, or approval of the Business Manager. Gerald Nevitt did deliver to Robert Bear his sworn statement which was sent to a person not entitled to information of the business of this L.U. He did not seek nor receive the advice, or consent, or approval of the Business Manager. [Emphasis supplied.] On their face, the charges alleged that Gerkin "testified to false information," and supplied this information to "other persons . . . not entitled to such knowledge" -clearly referring to Gerkin giving the sworn statement to the Board attorney. The charges separately alleged that Gerkin furnished this testimony (his sworn statement) to another employee (Bear) to be furnished to the union attorney "without proper authorization." The charges against Bear referred to his sending "statements of others" (Gerkin's and Nevitt's affidavits) to a person (the union attorney) without "approval of the Business Manager," and described the material as "untrue statements." The charges against Nevitt referred to his delivering to Bear his "sworn statement" to be sent to a person (the union attorney) "without approval of the Business Manager." Thus, the charges on their face show that Business Manager Miller was motivated by his concern about Gerkin and Nevitt giving "false information" and "untrue statements" to the Board attorney, and the three employees taking part in furnishing this purportedly untrue informa- tion, without clearance from the business manager, to the attorney retained by the Union to handle the arbitration case (involving the discharge of these and three other employees). Over 3 weeks later, on March 8, Business Manager Miller deleted the direct references to giving false testimo- ny to persons "not entitled to such knowledge," and to sending "untrue statements" to the union attorney, and added a theory to justify the charges that the three discharged employees were violating the International constitution by furnishing information to the attorney whom the Union had notified the employees would handle their discharge case before the arbitrator. Apparently being advised that his February 14 charges were illegal on their face, Miller filed amended charges against the three employees and formally notified them that "These union charges in no way relate to any unfair labor practice charges" filed in the Board case. The March 8 amended intraunion charges read: (14) Making known the business of a L.U. to persons not entitled to such knowledge. [Emphasis supplied.] The charges alleged as violations: Robert Gerkin . . . supplied other persons of knowl- Robert Gerkin . . . did bypass the office of Business Manager in matters relating to the arbitration case against Protection Alarms Inc. by delivering to Robert Bear the statement to be forwarded directly to the attorney for the Union, at an unauthorized cost to this IBEW, LOCAL 34 641 Local Union without the advice, consent or approval of the Business Manager. Robert Bear did bypass the office of Business Manager in matters relating to the arbitration case against Protection Alarms, Inc. by sending statements of others directly to the attorney for the Union , and by- passing the Business Manager in calling such attorney, at an unauthorized expense to this Local. Gerald Nevitt did bypass the office of Business Manager in matter relating to the arbitration case against Protection Alarms Inc. by delivering to Robert Bear the statement to be forwarded directly to the attorney for the Union, at an unauthorized cost, to this Local Union without the advice, consent or approval of the Business Manager. [Emphasis supplied.] Apparently through inadvertence , Business Manager Mill- er retained in the amended charges the allegation that the above-quoted subsection 8 (concerning sending untrue statements about the Union to public officials or others) was one of the constitutional provisions which had been violated. Thus the amended charges still dealt with Gerkin's and Nevitt's Board affidavits, and alleged that the actions of the three employees in sending this information to the union attorney caused an unauthorized expense. Not only is the evidence up denied that the union attorney had requested copies of the affidavits to assist him in preparing for the arbitration case, but at no time has the Union established that the attorney made any charge for confirming to member Bear (when Bear telephoned him) that the attorney did want the affidavits or, for quickly glancing at the affidavits upon receiving them , to see what they were, before placing them in the file-for later use, as it turned out, by another attorney in the office while preparing for the arbitration case. (In this connection, I credit Bear's positive testimony that nothing was men- tioned in his short telephone conversation on January 17 with the attorney about Miller or about taking the affidavits to the union hall.) At their separate union teals on March 17, the three employees were advised that the subsection 8 allegation had been withdrawn, and that no mention could be made to the Board or the Board charge. Bear and Nevitt denied that they were aware that furnishing the information to the union attorney violated the International constitution, but pleaded guilty. Beth were found guilty of violating subsection 14 ("Making known" union business "to persons not entitled to such knowledge") and subsection 3 ("Violation of any provision of this Constitution . . ."). Bear was also found guilty of violating subsection 4 (failing to file union charges against known offender and to notify the Union). In letters dated March 21 , the Union advised them of these findings , fined Nevitt $ 100 and Bear $150, and "suspended" them "from attending Local 34, IBEW regular meetings and social events of Local 34 for two years, starting March 17, 1973." Gerkin's trial was much longer, because he had also been charged, as a union steward , with a number of other violations . On March 21 , he was notified that he had been found guilty of five violations , fined $250. and suspended. (On March 27, he filed a decertification petition, which resulted in the Union being decertified. The Union filed additional charges against him and expelled him. There is no allegation herein that his expulsion violated the Act.) D. Contentions and Concluding Findings The General Counsel contends that although Business Manager Miller amended the charges against members Gerkin , Bear, and Nevitt, withdrawing the patently illegal allegations that the employees had violated subsection 8 (concerning sending untrue statements about the Union to public officials and others), the original, illegal charges indicate Miller's motive for filing the charges, and that "these particular members were singled out from the other alarm installers because they and they alone filed charges with, and/or gave testimony to the National Labor Relations Board, an action which Miller opposed and resented." The General Counsel also argues that "the substance of the charges against Bear, Gerkin and Nevitt which pertained to sending the affidavits submitted to the NLRB during its investigation to the union attorney is, under the circumstances, so ludicrous that it is clear that Miller wanted to retaliate against Gerkin , Bear and Nevitt in any way that he could." Business Manager Miller did not testify at the trial herein, and the Union did not file a brief. The Union's position, as stated at the trial, was that the March 17 union trials "in no way related to the activities of these men before the NLRB," and that the charges concerned "themselves with the fact that as long as these men had voted the Union in to represent them, they were bound to work through the Union, to deal in good faith with the Union, to not bypass the union representative, to not mislead the union representatives, and this they did not do." I agree with the General Counsel that the original wording of the intraunion charges, under the circum- stances of this case, revealed Business Manager Miller's illegal motivation in filing the charges against three of the six discharged employees : a clear reprisal for their filing the charge, or given supporting testimony , against Miller's will. I further find that the amended intraunion char- ges-related to submitting the Board affidavits directly to the union attorney, who had requested them after being retained by the Union to handle the employees' discharge case before the arbitrator-are so insubstantial that they demonstrate Miller's determination to retaliate indirectly against the three employees for their filing and supporting the Board charge, which he repeatedly protested as interfering with the negotiations with the Company. I therefore find, as alleged in the complaint , that the Union filed the charges against , and fined, Gerkin, Bear, and Nevitt because they filed the Board charge or gave supporting testimony , in violation of Section 8(b)(1)(A) of the Act. Local 138, Operating Engineers (Charles Skura), 148 NLRB 679 (1964). The complaint also alleges that other reasons for the intraunion charges and fines were the employees' actions in advocating withdrawal from the Union, opposing advice, recommendations, and conduct of the union officials during contract negotiations , and making appeals to the International. However, these are intraunion 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matters, not concerning a Board charge or petition, cf. Tri- Rivers Marine Engineers Union (United States Steel Corp.), 189 NLRB 838 (1971), and not involving threats to their jobs, cf. Roadway Express, Inc., 108 NLRB 874, 875, 882 (1954). I therefore find that, even if the Union had these other reasons for charging and fining the three employees, the Union did not further violate the Act by being so motivated. I also find, because of the wording of the original intraunion charges, the insubstantial nature of the. allegations concerning the Board affidavits being sent directly to the union attorney, and all the circumstances, that the Union's above-found illegal motivation (related to the filing and supporting of the Board charge) was a substantial, if not the controlling, reason for singling out and fining Gerkin, Bear, and Nevitt. CONCLUSION OF LAW By filing intraunion charges against and fining members Robert Gerkin, Robert Bear, and Gerald Nevitt because they filed a Board charge or gave supporting testimony, the Union engaged in unfair labor practices affecting com- merce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent Local 34 has engaged in certain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Because of the unlawful action taken by the Respondent against the three members, I find it necessary that the Respondent be ordered to expunge from the members' records all papers related to the February 14 and March 8 charges against them, the March 17 trial, and the March 21 findings of the trial board; to rescind the fines and suspensions; and to reinstate Bear and Nevitt to member- ship in good standing if they so request. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 Respondent, International Brotherhood of Electrical Workers, Local Union No. 34, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Filing charges or imposing fines against, or otherwise disciplining, its members for filing or giving testimony to support any unfair labor practice charge before the Board. (b) In any like or related manner restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Rescind and revoke the March 21, 1973, fines and suspensions imposed against Robert Gerkin, Robert Bear, and Gerald Nevitt, and expunge from their records all papers related thereto as provided in the "Remedy" section of this Decision. (b) Reinstate Bear and Nevitt to membership in good standing if they so request. (c) Post in conspicuous places in its offices and union hall in Peoria, Illinois, where notices to members are customarily posted, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by, the Officer-In-Charge for Subregion 38, after being duly signed by an authorized representative of the Respondent, shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Officer-In-Charge, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 4 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. 5 In the event that the Board's Order is enforced by a judgment of the 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." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after trial, that we violated Federal law by filing union charges, and imposing fines, against three of our members for filing a Board charge or giving testimony to a Board agent: WE WILL revoke the March 21, 1973, fines and suspensions imposed against Robert Gerkin, Robert Bear, and Gerald Nevitt. WE WILL reinstate Robert Bear and Gerald Nevitt as members in good standing if they so request. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 34, AFL-CIO (Labor Organization) Dated By (Representative) (Title) IBEW, LOCAL 34 643 This is an official notice and must not be defaced by ing this notice or compliance with its provisions may be anyone. directed to the Board's Office. Savings Center Tower, IOth This notice must remain posted for 60 consecutive days Floor, 411 Hamilton Boulevard , Peona, Illinois 61602, from the date of posting and must not be altered, defaced, Telephone 309-673-9283. or covered by any other matenal . Any questions concern-