Local Union 2131, Electrical Workers

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union 2131, International Brotherhood of Elec- trical Workers, AFL-CIO and Rucker Electronics, a Division of the Rucker Company. Case 20-CB-3193 March 24, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 12, 1974, Administrative Law Judge Russell Stevens issued the attached Decision in this proceeding. Thereafter,^the Charging Party filed excep- tions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision 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 Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Local Union 2131, International Brother- hood of Electrical Workers, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. i The Charging Party's request for oral argument is denied. In our view the record, including the exhibits and briefs, adequately sets forth the posi- tions of the parties 2 The Charging Party excepts to the Administrative Law Judge's denial of its motion, which the General Counsel opposed, to amend the complaint. We conclude that the Administrative Law Judge properly denied the mo- tion Local 1012, United Electrical, Radio & Machine Workers ofAmerica (UE) (General Electric Company), 187 NLRB 375 (1970). We also conclude that the Administrative Law Judge properly did not find that the Respond- ent violated the Act with respect to Helen Crabb The Charging Party asserts, inter alia, that the Administrative Law Judge should have deter- mined the extent to which she was fined for working following her resigna- tion from the Respondent, and have ordered pro rata reimbursement. How- ever, apart from any other consideration, there is nothing in the record to indicate that she was fined DECISION STATEMENT OF THE CASE RUSSELL STEVENS, Administrative Law Judge: This matter was heard at San Francisco, California, on September 24 and 30, October 1, and November 4, and at Concord, California, on November 6, 1974.' Rucker Electronics, a Division of the Rucker Company, hereinafter referred to as the Com- pany, filed on May 14 an unfair labor practice charge against Local Union 2131, International Brotherhood of Electrical Workers, AFL-CIO, hereinafter referred to as the Union, alleging illegal threats to fine nonmembers. On June 26, the Company filed an unfair labor practice charge against the Union, alleging violent and coercive conduct by the Union and-refusal to bargain in good faith. On July 31, the Regional Director for Region 20 of the National Labor Relations Board filed an order consolidating Cases 20-CB-3179 and 20-CB-3193, based upon the aforesaid charges, for hearing and decision. On October 1, after hearing opened (on September 24), the parties moved to sever Case 20-CB-3179 on the ground it had been settled by stipulation, and the motion was granted. The complaint' in Case 20-CB-3193, issued July 31 and alleging illegal threat of imposition of fines in violation of 8(b)(1)(A) of the National Labor Relations Act (hereinafter referred to as the Act), was set for hearing at San Francisco on November 4. After hearing opened on November 4, the Administrative Law Judge received a letter from Respon- dent's counsel (A.L.J. Exh. 1), who advised that he did not intend to participate in the hearing. Issues The principal issue is whether Respondent Union disci- plined employees of Respondent after they resigned from the Union. Upon the entire record,' and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I THE BUSINESS OF COMPANY At all times material herein, the Company has been and now is, a California corporation with a manufacturing plant located in Concord, California, where it is engaged in the manufacture and sale of electronic components. In the course and conduct of its business operations during the past year, the Company sold and shipped goods and products valued in excess of $50,000 directly to purchasers located outside the State of California. The complaint alleges, the answer admits, and I find that the Company at all times material herein has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Local Union 2131, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. I All dates are in 1974 unless stated to be otherwise. 2 As amended at hearing 3 On November 27, Counsel for the Charging Party filed herein a motion of correct transcript. Said motion is hereby granted. 217 NLRB No. 9 LOCAL UNION 2131, ELECTRICAL WORKERS III THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Respondent instituted a strike, with accompanying picket- ing, at the Company's Concord,-California, plant on April 29. Prior to the strike, certain of the Company's employees who were members of Respondent Union resigned from the Union and thereafter returned to the plant; other employees who were members of Respondent Union resigned their member- ship and returned to work after commencement of the strike. After the resignations, Respondent Union initiated disciplin- ary proceedings against the former members who had re- signed. The General Counsel's case is based upon the theory that the Union's action in disciplining former members, oc- curring after the effective date of their resignation, restrained and coerced those employees in violation of Section 8(b)(1)(A). B. Pertinent Testimony In General Counsel's brief, there was included an appendix which summarizes evidence concerning action taken against the employees as alleged in the complaint. The facts set forth in that summary have been carefully checked against the transcript. As noted above, Respondent's counsel declined to appear at the hearing, and there is no reason to doubt the authenticity of the facts and figures given in said summary. Under such circumstances, that summary is adopted and is set forth in part as follows [attached as Appendix B]. C. Analysis and Conclusions Disciplining by a union of members who have resigned from union membership, is a violation of Section 8(b)(1)(A) of the Act. N.L.R.B. v. Granite State Joint Board, Textile Workers Union of America, Local 1029, AFL-CIO (Interna- tional Paper Box Machine Co.), 409 U.S. 213, 217 (1972); Production, Electronic & Aero-Dynamic Lodge No. 1327, In- ternational Association of Machinists and Aerospace Workers, AFL-CIO (Dalmo Victor Company, a Division of Textron Corporation), 192 NLRB 1015 (1971); International Chemi- cal Workers Union, Local 143, AFL-CIO (Lederle Laborato- ries, Division of American Cyanamid Company), 188 NLRB 705, 708 (1971). The form of discipline is immaterial. District Lodge No. 99 and Lodge No. 2139, both affiliated with International As- sociation of Machinists & Aerospace Workers, AFf -CIO (General Electric Company), 194 NLRB 938 (1972), enfd. as modified 489 F.2d 769 (C.A. 1, 1974). Communication Work- ers of America, AFL-CIO Local 1170 (Rochester Telephone Corporation), 194 NLRB 872, 873 (1972). Similarly, the fact that fines were not actually levied pursu- ant to the disciplinary action taken against employees is im- material. It is the threat that is at the core of decisions on this point. San Francisco-Oakland Mailers' Union No. 18, Inter- national Typographical Union (Northwest Publications, Inc.), 172 NLRB 2173 (1968). The Supreme Court pointed out in Granite State Joint Board, supra, that it was not deciding whether a union consti- tution or bylaws could restrict resignation. However, that point is not involved in this case, because there is no evidence 47 that any employee involved herein ever waived , or agreed to any restriction on, his statutory right to resign from Respond- ent. Based upon foregoing , it is quite clear that Respondent Union disciplined its former members, after their resignation, in violation of Section 8(b)(1)(A) of the Act. D. Charging Party's Argument At hearing, the Charging Party moved to'amend the com- plaint to add the names of those people who resigned from the Union, and who returned to work after their resignation was transmitted to the Union, but prior to the time the resig- nations became effective. That motion was denied by me on the ground that to do so without concurrence of the General Counsel would be contrary to law. The Charging Party's argument in support of its conten- tion that the Union violated Section 8(b)(1)(A) of the Act when it disciplined former members after they had resigned, is based on the same line of cases relied on by the General Counsel. In addition to its argument concerning the principal issue in the case, however, the Charging Party further pressed in argument that it should have been allowed at hearing to amend the complaint to add the names of employees who sent letters of resignation, or who made oral statements of resigna- tion to the Union, and returned to work prior to the time such resignations were "effective." As stated at hearing, a charging party has no standing to secure expansion of the basic issues by motion to amend a complaint without concurrence of the General Counsel. International Union of Electrical, Radio and Machine Workers, AFL-CIO (NECO Electrical Product Corp.), 289 F.2d 757 (C.A.D.C., 1960). As pointed out above, the General Counsel declined at hearing to concur in the motion to amend submitted by the Charging Party. Under such circumstances, the Charging Party's argument is con- trary to existing law. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, I hereby make the following: CONCLUSIONS OF LAW 1. Rucker Electronics, a Division of the Rucker Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Local Union 2131, International Brotherhood of Electri- cal Workers, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By filing charges against, ordering to appear before a trial board, conducting disciplinary proceedings against, and levying fines against nonmembers and former members of the Union for conduct occurring while said persons were not members of the Union, Respondent Union has engaged in, and is engaging in, unfair labor practices within the meaning of 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 above 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: ORDER4 Respondent, Local Union 2131, International Brother- hood of Electrical Workers, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from. (a) Filing charges against, ordering to appear before a trial board, conducting disciplinary proceedings against, or levy- ing fines against any nonmember of Respondent Union or against any former members of Respondent Union for con- duct occurring while any individual was not a member of said Union. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which is found necessary to effectuate the purposes of the Act: (a) Withdraw all disciplinary proceedings pending against all nonmembers or former members for conduct occurring while the individuals were not members of Respondent, in- cluding all disciplinary action taken against each of the fol- lowing named persons, and any and all persons similarly situated, for working behind a picket line: Jean Agnew Bonnie Diaz Jean Englert Deborah Alameda Rosalina Bautista Rose Doolin Ludivina Abenoja Teopista Calipes Patricia Evans Marge Gauntt Helen Gleason Janet Hanscome Alice Harper Mary Pree Janet Hopkins Concepcion Colipapa Pacita Fangon Cecilia Del Castillo Delia Floriendo Jaime Floriendo Berry Nesmith Delores Foster Sachiko Higgins Avelina Ignacio Janet (Sherman) Freeman Leola Moore Billie Hopkins Linda Loera Rosalina Llosa Alice (Olson) Morrison Delphic Lawson Cynthia Parker Thelma (Crosby) Powell Erma Taylor Shawn (Brown) Phillipy Katheleen Bellamy Linda Mullins Estrella Ruelos Verna Sanders Minnie (Sylvester) - Stanton Anna ' (Vallero) Collins (b) Rescind all fines assessed against any of the above- mentioned persons, and any and all persons similarly situ- ated, for conduct occurring after their resignation'from Re- spondent, including working behind a picket line. (c) Reimburse any of the above-mentioned persons, and any and all persons similarly situated, for fines collected against them for conduct occurring after their resignation from Respondent, with interest thereon at the rate of 6 per- cent per annum from the time said sums were paid, and notify each of the above-named persons, by letter, of the action taken in accordance therewith. - (d) Completely expunge and excise from its records all references and other evidence in its file to threats to fine or discipline, including any intraunion charges, citations, fines, or other disciplinary action or disciplinary proceedings against any nonmember of Respondent or any former mem- bers of Respondent for conduct occurring after resignation from the Respondent, including working behind a picket line. (e) Notify all of the above-mentioned persons, and any and all persons similarly situated, by letter, that the fines or other disciplinary action will be rescinded and all moneys collected in payment thereof will be refunded, and of the other steps taken to comply with the Order. (f) Post in conspicuous places in its business office, hiring hall, and meeting places copies of the attached notice marked "Appendix A".5 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Sign and mail sufficient copies of said notices to the Regional Director for Region 20, for posting by the Company at all locations where notices to employees are customarily posted, if the Company is willing to do so. (h) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this- Order, what steps Re- spondent has taken to comply herewith. 4 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the find- In the event that the Board's Order is enforced by a Judgment of a ings, conclusions, and recommended Order herein shall, as provided in United States Court of Appeals, the words in the notice reading "Posted by Section 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursuant become its findings, conclusions, and Order, and all objections thereto shall to a Judgment of the United States Court of Appeals Enforcing an Order be deemed waived for all purposes. of the National Labor Relations Board " LOCAL UNION 2131, ELECTRICAL WORKERS 49 APPENDIX A NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To All: Members, Officers, Representatives and Agents To All: Employees of Rucker Electronics, A Division of the Rucker Company WE WILL NOT file charges against, order to appear before a trial board, conduct disciplinary proceedings against, or levy fines against any nonmember of the Union or against any former member of this Union for conduct occurring while the individual was not a mem- ber. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL withdraw all disciplinary proceedings pend- ing against all nonmembers or former members for con- duct occurring while the individuals were not members of this Union, including all disciplinary action taken against each of the following named persons, and any and all persons similarly situated, for working behind a picket line: Jean Agnew Bonnie Diaz Jean Englert Erma Taylor Mary Pree Janet Hopkins Rose Doolin Patricia Evans Marge Gauntt Helen Gleason Anna (Vallero) Collins Rosalina Bautista Ludivina Abenoja Teopista Cahpes Delia Floriendo Jaime Floriendo Rosalina Llosa Delphia Lawson Deborah Alameda Cynthia Parker Janet Hanscome Pacita Fangon Alice Harper Barry Nesmith Billie Hopkins Delores Foster Linda Loera Sachiko Higgins Alice (Olson) Morrison Avelina Ignacio Thelma (Crosby) Powell Leola Moore Concepcion Colipapa Kathleen Bellamy Cecilia Del Castillo Linda Mullins Janet (Sherman) Freeman Shawn (Brown) Phillipy Minnie (Sylvester) Stanton Estrella Ruelos Verna Sanders WE WILL rescind all fines assessed against any of the above-mentioned persons, and any and all persons simil- arly situated, for conduct occurring after their resigna- tion from this Union, including working behind a picket line. WE WILL reimburse any of the above-mentioned per- sons, and any and all persons similarly situated, for fines collected against them for conduct occurring after their resignation from this Union, with interest thereon at the rate of 6 percent per annum from the time said sums were paid, and notify each of the above-named persons, by letter, of the action taken in accordance therewith. WE WILL completely expunge and excise from our re- cords all references and other evidence in our files to threats to fine or discipline, including any intraunion charges, citations, fines or other disciplinary action or disciplinary proceedings against any nonmember or any former member of this Union for conduct occurring after resignation, including working behind a picket line. LOCAL UNION 2131, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B Resign'n - Resign'n Letter Letter Return Show Name Sent Received to- Work Charged Cause Fined Jean Agnew Apr. 28 Apr. 29 May 2 Yes Yes Yes Bonnie Diaz May 13 May 14 1/ May 15 Yes Yes Yes Jean Englert Apr. 27 Apr. 29 2/ May 2 Yes Yes Yes Deborah Alameda July 3 July 5 37 July 7 Yes Yes Yes Rosalina Bautista May 24 May 28 May 29 Yes No No Helen Crabb 4/ Aug. 10 Aug. 12 Aug. 12 Yes No No Rose Doolin Aug. 22 Aug. 23 1/ Aug. 26 Yes No No Ludivina Abenoja Aug. 15 Aug. 16 J Aug. 19 Yes No No Teopista Calipes May 17 May 20 May 22 Yes Yes Yes Patricia Evans July 26 July 27 1/ July 30 Yes No No Marge Gauntt June 19 June 20 1/ July 1 Yes 5/ Yes Yes Helen Gleason Apr. 26 Apr. 30 May 1 Yes Yes Yes Janet Hanscome May 23 May 24 May 28 Yes 5/ Yes No Alice Harper Aug. 21 Aug. 22 Aug. 26 Yes No No Billie Hopkins May 2 May 3 May 6 Yes Yes Yes Linda Lo ra 29 A Ye 5/ Y N e Rosalina Llosa May 24 May 28 pr. May 29 s - Yes es No o No Alice (Olson) Morrison Apr. 29 Apr. 30 May 1 Yes Yes Yes Delphia Lawson July 3 July 5 3/ July 11 Yes Yes Yes Centhia Parker Aug. 9 Aug. 10 1/ Aug. 12 Yes No No Th l (C b ) e ma ros y Powell June 14 June 15 L/ June 17 Yes Yes Yes Erma Taylor July 22 Yes No No Mary Pree July 3 July 5 3/ July 8 Yes Yes Yes Janet Hopkins May 2 May 3 May 6 Yes Yes Yes Concepcion Colipapa May 17 May 20 May 23 Yes Yes No Pacita Fangon May 24 May 28 May 29 Yes No No Cecilia Del Castillo May 6 May 7 May 8 Yes Yes Yes Delia Floriendo May 3 May 4.1/ May 8 Yes Yes Yes Jaime Floriendo May 3 May 4 1/ May 8 Yes Yes Yes Barry Nesmith June 27 June 28 July 1 Yes 5/ Yes Yes Delores Foster July 5 July 6 if July 8 Yes Yes Yes Sachiko Higgins Apr. 29 Apr. 30 May 2 Yes Yes Yes Avelina Ignacio May 11 May 12 1/ May 29 Yes No No t ( Sh n) J erma ane Freeman July 19 July 20 Aug. 26 Yes No No Leola Moore July 3 July 5 3/ July 8 Yes Yes No Shawn (Brown) Phillipy July 23 July 24 1/ July 29 Yes 5/ Yes No Kathleen Bellamy June 25 June 26 1/ July 1 Yes 5/ Yes No Linda Mullins Apr. 26 Apr. 27 J Apr. 29 Yes Yes Yes Estrella Ruellos May 6 May 7 May 9 Yes Yes Yes Verna Sanders July 3 July 5 3/ July 8 Yes Yes Yes ) Mi t i (S l er nn ves e y Stanton July 3 July 5 1/ July 8 Yes Yes Yes Anna (Vallero) Collins Apr. 23 Apr. 24.1/ June 27 Yes Yes Yes 1/ No evidence of actual date of receipt of resignation letter. In the absence of evidence, the day after the mailing date has been designated as the date of receipt. See Local 1012, U. E. (General Electric Co. 187 NLRB 375 (1970). 2/ No evidence of actual date of receipt. Since April 28, the day after the mailing was a Sunday, Monday April 29 has been designated as the date of receipt. 3/ No evidence of actual date of receipt. Since July 4, the day after the mailing was a holiday, July 5 has been designated as the date of receipt. 4/ Helen Crabb' s name has been deleted from the Complaint because the evidence indicated she returned to work the same day her resignation was received. 5/ Although there was no evidence that this employee received a charge accusing her of working behind the picket line , the "show cause" notice received by the employer with reference to a charge filed against the employee, a copy of which was supportive.