Local 761, Electrical, Radio and Machine Wkrs.

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 761 of the International Union of Electrical, Ra- dio and Machine Workers, AFL-CIO (General Electric Company) and O'Dell O. Harp. Case 9-CB-2865 September 26, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On June 16, 1975, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting 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 brief 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. 1 Member Fanning, although agreeing that the Respondent did not threaten Harp, would dismiss the complaint in any event for the reasons set forth in the dissenting opinion in Blackhawk Tanning Co., 178 NLRB 208, 209 (1969). DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge : Hearing in this matter was held in Louisville, Kentucky, on April 23, 1975, on charges filed by O'Dell O. Harp on January 10, 1975. A complaint was issued by the General Counsel on March 3, 1975, and an answer was filed by Respondent. Upon the entire record in the case, including consider- ation of briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY General Electric Company operates a facility at Louis- ville, Kentucky, and I find, as the parties agree, that Gen- eral Electric is an employer within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent, Local 761, of the International Union of Electrical Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. The Kentucky Society of Industrial Trades (herein called KSIT) was organized in 1974 to represent industrial (skilled) trades employees in collective bargaining with General Electric at Appliance Park, Louisville, Kentucky, and more than 800 employees executed authorizations to KSIT for such purpose. The membership of KSIT ratified a constitution and by-laws in June 1974; the organization holds regular meetings, and it filed a representation peti- tion with the Board in June 1974. I find that KSIT is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges, in substance , that Respondent Local 761 violated Section 8(b)(1)(A) of the Act in that it threatened to fine and did fine O'Dell Harp for engaging in rival union activity , including the filing of a certification petition with the Board on behalf of KSIT. Respondent represents approximately 12,000 General Electric employees at the Company's Appliance Park in Louisville, Kentucky. These employees are covered by a national agreement, effective for a 3-year period beginning May 1973, between GE and IUE in behalf of itself and named IUE locals including Respondent Local. The bar- gaining history between these parties extends over a period of approximately 20 years. Mr. Harp has been employed by GE since 1954 and was a member of Respondent from approximately 1955 or 1956 until the latter part of September 1974. During this period he occupied various union offices, including chief steward and chairman of the Skilled Trades Committee to the IUE- GE Conference Board. He withdrew his membership from Respondent Local and revoked his dues check -off authori- zation in September 1974, during the escape period permit- ted in Respondent Local's aforementioned contract with GE. Harp and other GE employees began organizing KSIT in March or April 1974. Harp was elected president; and, as indicated above, the membership of KSIT adopted a constitution and by-laws on June 5, 1974. According to Harp, it is noted in passing, a group of employees in indus- trial trades classifications believed their interests "too dif- ferent from the overwhelming majority of the members of Local 761 to allow proper representation . . . by that union" and their goal in organizing KSIT was to have KSIT become the "certified bargaining agent for industrial 220 NLRB No. 141 LOCAL 761, ELECTRICAL, RADIO AND MACHINE WKRS. 831 tradesmen" who are included in Respondent Local's con- tract unit. On June 6, 1974, KSIT filed a representation petition in Case 9-RC-10603 , by which it sought, in effect, to sever an industrial trades unit of some 890 employees from Respon- dent Local's established bargaining unit . The Regional Di- rector dismissed KSIT's petition on July 2, 1974, as un- timely on contract-bar grounds, and the Board affirmed this dismissal on August 16, 1974. On June 6, 1974, Respondent informed the unit employ- ees, among other things , that "some of the members of Local 761 are dropping out of Local 761 to try to form a Union of their own." On July 2, 1974, a rank-and-file member of Respondent Local, one Guy Bristow, filed with Jim Luckett (Local 76l's recording secretary) a statement of charges against Harp, alleging violations of four subsections of Local 761's constitution . The filing of charges by rank-and-file members is permitted under Local 76l's constitution, and Bristow's charges accused Harp, among other things, "of being President [and] of acting in a leadership capacity of a renegade or runaway group trying to split Local 761.. . into two unions. By that I mean his plans are and he is working toward getting Skilled Trades to withdraw from Local 761, IUE, and join a group being formed called KSIT." Bristow recommended in his statement of charges, that Harp be fined $500 and expelled for his alleged union derelictions. Complying with union constitutional procedures, Re- cording Secretary Luckett thereupon sent a copy of Bristow's charges to Harp with notice that a trial on the matter would be held on July 29, 1974. Harp attended the trial held on the stated date before a Respondent Local trials committee of rank-and-file members, all in accor- dance with established union procedures . Claiming at the trial that Respondent Local was without jurisdiction in the matter because "I resigned my offices and membership in I.U.E.," Harp asserted among other things that he was in attendance "to defend my name and integrity and express my beliefs in regard to the rights of persons to join and form unions and to be represented by proper unions in dealings with their employer." Meeting in closed session at the conclusion of the trial, the trials committee found that Harp had in fact violated two of the constitutional subsections and decided to rec- ommend that Harp be fined $500 and expelled from IUE membership for 10 years. Respondent did not inform Harp of the trials committee's recommendation. About a month later (late August or early September) during a casual con- versation between Harp and Howard Derry (chairman of the trials committee), Derry inquired whether Harp had heard anything concerning the matter from Respondent, and Harp said he had not. Derry thereupon told Harp what the trials committee had recommended. The constitution of Respondent Local requires trials committees to submit all findings and recommendations to Respondent's executive board (comprised of local officers) and that the "Executive Board shall in all cases make the decision subject to the rights of appeal as set forth herein." (Emphasis supplied.) The Harp matter was accordingly re- ferred to the executive board , and on September 5, 1974, the executive board decided to table the entire matter pending-consultation with legal counsel. All actions of the executive board are submitted for approval to the general membership and the membership concurred in the execu- tive board's tabling action at a general meeting on Septem- ber 8, 1974. Harp did not attend that meeting. Respondent meanwhile did not inform Harp concerning the executive board's tabling action. However, by letter of January 20, 1975, IUE District Council 7 advised Harp that Respondent Local had "failed to finally act upon these [Bristow's] charges within 90 days and Bristow filed an appeal" with the District Council and that the District Council has "appointed a committee of three to hear the charges filed by Bristow against you." The District Council accordingly advised Harp that such hearing would be held at Respondent Local's hall on February 26, 1975, and that Harp should plan to attend to present evidence respecting the charges. Harp did not attend the District Council Com- mittee session. While testifying in the present hearing on April 23, 1975, Respondent Local President Kenneth Cas- sady announced that the District Council had decided a few days earlier (April 19, 1975) to find Harp guilty of Bristow's charges and to suspend him from membership for 10 years. Except for Derry's aforementioned conversa- tion with Harp and the District Council's notification on January 20, 1975, Cassady's statement was the only infor- mation given Harp by Respondent Local concerning the status of the Bristow charges. Concluding Findings A union may not fine or threaten to fine individuals "for supporting a rival labor organization by soliciting authori- zation cards for [such rival organization]" or "for soliciting fellow employees to sign bargaining authorizations, for a rival union to support the filing of a petition with the Board for a certification petition." District Lodge No. 837, International Association of Machinists and Aerospace Work- ers, AFL-CIO and International Association of Machinists and Aerospace Workers, AFL-CIO (McDonnell Douglas Corporation), 206 NLRB 662 (1973); Independent Shoe Workers of Cincinnati, Ohio (The United States Shoe Corpo- ration), 208 NLRB 411 (1974). On the other hand, it is "appropriate disciplinary action" for a union to expel a member who seeks to displace it with another rival organi- zation. Tawas Tube Products, Inc., 151 NLRB 46, 48 (1965); International Molders' and Allied Workers Union, Local No. 125, AFL-CIO (Blackhawk Tanning Co., Inc.), 178 NLRB 208, 209 (1969). The General Counsel contends that Chairman Derry's "notifying Harp of the Trials Committee's recommenda- tion to the Executive Committee that Harp be fined consti- tutes the actual fining of Harp. This contention is based on the fact that the Executive Board Committee's failure to notify Harp as to any other disposition of the charge for approximately nine months thereafter constitutes a condo- nation of the Trials Committee's decision." The General Counsel further contends that these facts, even if not con- stituting an actual fining of Harp, do make out the "threat of a fine," and he asserts in this connection that "the real reason for the Executive Committee's delay was to string 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harp along, thus discouraging him, as well as other em- ployees, from engaging in activities on behalf of the rival KSIT." Respondent Local does not eschew responsibility for Chairman Derry's advising Harp concerning the trials committee's recommendation , and such responsibility is reasonably imputed to it in the present circumstances. As I view the situation, therefore, Respondent Local did in fact inform Harp that the trials committee had recommended that Harp be fined and also be expelled from union mem- bership for 10 years. Harp, however, was a long-time mem- ber of Respondent Local and had held many important offices in the organization. He must have known , therefore, and I find he did know, that the trials committee's action was recommendatory only and that the initial decision in the matter from an institutional point of view could only be made by the executive board in concurrence with the general membership. The executive board did not advise Harp of its tabling action, and perhaps it would have been well advised to have done so. On the other hand, I am unable to find that it withheld such information from Harp in order to hold the threat of a fine (as distinguished from expulsion action) over Harp and other union members to dissuade them from engaging in KSIT activities .' On Janu- ary 20, 1975, however, the district council did advise Harp that the local executive board had not taken final action on the Bristow charges. In the circumstances of this case , I am unable to con- strue Respondent Local's action or inaction as constituting either a fine or threat of fine against Harp. This is so prin- cipally because, as far as the Act is concerned, Harp's KSIT activities were a valid subject for suspension or ex- pulsion by Respondent Local. There was, of course, always a possibility that the local executive board might fine Harp. In my opinion, however, possibilities, without more, are i Should there be a recurrence of this situation, I might view an omission of status information differently. not statutory threats where, as in the present case, Respon- dent Local could lawfully take disciplinary action re- specting the charges filed by Bristow and where the grava- men of the present case involves only a possibility of an additional, albeit unlawful, form of penalty. I accordingly conclude that Local 761 neither fined nor threatened to fine Harp, and I shall accordingly recom- mend that the complaint herein be dismissed? CONCLUSIONS OF LAW 1. GE is an employer within Section 2(6) and (7) of the Act. 2. Local 761 and KSIT are labor organizations within Section 2(5) of the Act. 3. Local 761 has not violated the Act in any respects alleged in the complaint. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS I hereby recommend that the complaint be, and it here- by is, dismissed. 2 This case does not present any question concerning the lawfulness of requiring an exhaustion of internal union remedies . Cf. N.L R B v. Industri- al Union of Marine & Shipbuilding Workers of America and its Local 22, 391 U.S. 418 ( 1968); Operative Plasterers' and Cement Masons' International As- sociation of the United States and Canada and Cement Masons ' Local Union No. 521 of the Operative Plasterers ' and Cement Masons' International Associ- ation of the United States and Canada (Arthur G. McKee & Company), 189 NLRB 553, 556-557 (1971). 7 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.