Machinist, District No 71, Local 778

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists and Aero- space Workers, District No 71, Local 778 and Whitaker Cable Corporation Case 17-CB-1522 June 10, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER ceives goods and materials valued in excess of $50,000 from, and sells goods and materials valued in excess of $50,000, outside the State of Missouri The complaint alleges, the Respondent admits, and we find that Whitaker Cable Corporation is, and has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act We find that it will effectuate the purposes of the Act to assert jurisdiction Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint and no- tice of hearing November 20, 1975, against Interna- tional Association of Machinists and Aerospace Workers, District No 71, Local 778 The complaint alleges that the Respondent engaged in, and is engag- ing in, certain unfair labor practices affecting com- merce within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the National Labor Relations Act, as amended On January 9, 1976, the Respondent filed its answer denying the commission of unfair labor practices and requesting that the complaint be dis- missed The parties later stipulated the facts and jointly moved to transfer the proceeding to the Board for findings of fact, conclusions of law, and decision and order A hearing before the making of findings of fact and conclusions of law as well as a decision by an Administrative Law Judge were waived by the parties, who agree that no oral testimony is necessary or desired The parties also agreed that the charge, the complaint and notice of hearing, the order re- scheduling the hearing, and the stipulation of facts with exhibits constitute the entire record in this pro- ceeding On March 15, 1976, the Board granted the motion and approved the stipulation The General Counsel has filed a 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 stipulation includ- ing exhibits, brief, and the entire record in this pro- ceeding, and hereby makes the following FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Whitaker Cable Corporation manufactures auto- motive supplies at its facilities in North Kansas City, Missouri In the course and conduct of its business, II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and we find that the Respondent is a labor organiza- tion within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICE On or about June 25, 1975, the employees of Whit- aker represented by the Respondent began an eco- nomic strike A picket line was established and was maintained until August 15, 1975, when the strike ended Eleanor Wiber, an employee of Whitaker and member of the Respondent, participated in the strike originally, but, on August 4, wrote a letter of resigna- tion to the Respondent which was received and be- came effective no later than 9 30 on the morning of the 5th At 7 30 that same morning, Wiber crossed the picket line and returned to work Wiber contin- ued to cross, and to work behind, the picket line through August 15 Internal union charges were preferred against Wiber August 17 for crossing the picket line on vari- ous dates during the strike in violation of article I, section 3, of the International Association of Ma- chinists' constitution On September 15, Wiber was advised by letter that the Respondent's trial commit- tee had reviewed the charges against her and had concluded there was sufficient evidence for a trial and requested her presence at the trial The trial was held September 26 as scheduled Wiber did not ap- pear, but sometime between the date of the trial and October 14, 1975, the trial committee agreed to rec- ommend to Respondent's members that she be found guilty and fined $950 $100 for each day the mem- bers found she had crossed and worked behind the picket line, but only $50 for August 15 because the strike had ended at noon I At a regular meeting held October 14, those of Respondent's members who were present voted by separate secret ballot to concur with the trial committee's recommendations that Wiber be found the Employer annually directly purchases and re- ' Wiber was erroneously found to have returned to work August 4 224 NLRB No 74 MACHINISTS, DISTRICT NO 71, LOCAL 778 581 guilty and be fined $950 Wiber was informed of the Respondent's actions by letter dated October 15 It is now settled that a labor organization which fines a former member for postresignation conduct violates Section 8(b)(1)(A) of the Act, at least in the absence of valid restrictions on resignation or post- resignation conduct which have been communicated to, and consented to by, its members N L R B v Granite State Joint Board, Textile Workers Union of America, Local 1029 [International Paper Box Ma- chine Co], 409 U S 213 (1972), Booster Lodge No 405, International Association of Machinists & Aero- space Workers [Boeing Co j v NLRB , 412 U S 84 (1973) There is no issue of any restrictions on resig- nation, as Wiber's resignation was stipulated to have been effective Similarly, there is no issue with re- spect to restrictions on postresignation conduct be- cause the stipulated facts do not establish that Wiber was ever given proper notice of any such restriction Article I, section 3, of the IAM constitution, which Wiber was found to have violated, is irrelevant in this context a constitutional provision is not a substitute for proper notice United Paperworkers International Union, Local No 725, AFL-CIO (Boise Southern Company), 220 NLRB 812 (1975) 2 Accordingly, we conclude that the Respondent violated Section 8(b)(1)(A) of the Act by fining Elea- nor Wiber for crossing the picket line and working after 9 30 a in, August 5, 1975, when her resignation became effective 3 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondent set forth above, occurring in connection with the operations of the Employer as set forth in section I, has a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that the Respondent has engaged in, and is engaging in, an unfair labor practice, we shall order it to cease and desist therefrom In order to 2 Unlike our concurring colleague, we do not believe that noting the ab- sence of an issue is to pass , or even to comment, on it We neither express nor intimate any view on Local Lodge No 1994, International Association of Machinists and Aerospace Workers, AFL-CIO (0 K Tool Company, Inc) 215 NLRB 651 (1974) 3 Wiber returned to work at 7 30 a in on the 5th , and performed struck work for 2 hours while still a member The fine is, to that extent lawful Booster Lodge No 405, International Association of Machinists and Aerospace Workers (The Boeing Company), 185 NLRB 380, 382-383 (1970) effectuate the purposes of the Act, we shall also order the Respondent to rescind the unlawful portion of the fine, to refundpro rata, any money paid to it as a result of the unlawful fine, with interest computed at the rate of 6 percent per annum, and to post the attached notice CONCLUSIONS OF LAW 1 The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Respondent is a labor organization within the meaning of Section 2(5) of the Act 3 By fining Eleanor Wiber, who had duly re- signed from the Respondent, for her postresignation crossing of the picket line and working at Whitaker Cable Corporation, the Respondent restrained and coerced Wiber in the exercise of the rights guaran- teed her in Section 7 of the Act, and thereby engaged in, and is engaging in, an unfair labor practice within the meaning of Section 8(b)(1)(A) of the Act 4 The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) of the Act ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, In- ternational Association of Machinists and Aerospace Workers, District No 71, Local 778, North Kansas City, Missouri, its officers, agents, and representa- tives shall 1 Cease and desist from (a) Restraining or coercing employees who have resigned from, and are no longer members of, Re- spondent, in the exercise of the rights guaranteed them in Section 7 of the Act, by imposing fines on them because of their postresignation conduct in working at Whitaker Cable Corporation during the August 1975 strike (b) In any like or related manner restraining or coercing employees in the exercise of the rights guar- anteed in Section 7 of the Act 2 Take the following affirmative action designed to effectuate the purposes of the Act (a) Rescind the fine levied against Eleanor Wiber because of her postresignation work for Whitaker Cable Corporation, during the August 1975 strike, refund to her, pro rata, any money she may have paid as a result of such fine, plus interest computed at the rate of 6 percent per annum, and expunge from its records any reference to the fine levied against Elea- nor Wiber for her postresignation work 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix 114 Copies of said notice, on forms provided by the Re- gional Director for Region 17, after being duly signed by Respondent's authorized representatives, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members are customarily posted Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material (c) Mail to the Regional Director for Region 17 signed copies of said notice for posting by Whitaker Cable Corporation, if the Company be willing, in places where notices to employees are customarily posted Copies of said notice, to be furnished by the Regional Director for Region 17 after being duly signed by the Respondent's authorized representa- tive, shall be returned forthwith to the Regional Di- rector (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with MEMBER PENELLO, concurring I agree with my colleagues that Respondent violat- ed Section 8(b)(1)(A) but not with respect to the ra- tionale relied upon by them In 0 K Tool Company, Inc,s the Board, after exa- mining the Supreme Court Decisions in Granite State,' Boeing,' Allis-Chalmers,' and Scofield,9 con- cluded that it is unlawful for a union to impose a fine on a former member, who has tendered a valid resig- nation, for conduct following his resignation which is prohibited by the union's constitution but protected by Section 7 of the Act Members Fanning and Jen- kins concurred in the result reached in that decision only because they felt that the employees were not given proper notice of the constitutional provision 10 4In the event that this 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 '215 NLRB 651 (1974) 6 409 U S 213 (1972) 7412 US 84 (1973) 8 Allis Chalmers Mfg Co v N L R B 388 U S 175 (1967) 9 Scofield v N L R B 394 U S 423 (1969) 10 In 0 K Tool the employees were informed by their union of their being charged under the same provision involved in this case In my view it In the present case, my colleagues rely on the lack of notice which was the basis for the concurring opinion in 0 K Tool They, however, go beyond that in their discussion in this case indicating that if there were proper notice there might be valid re- strictions that can be imposed on postresignation conduct 11 As indicated above, the Board clearly con- fronted that issue in 0 K Tool and held that such restrictions are unlawful Accordingly, for the rea- sons set forth by the majority in 0 K Tool, I join my colleagues in finding the 8(b)(1)(A) violation is unlawful to place postresignation restrictions on former members regard- less of whether or not they were given notice of the constitutional provision See Boise Southern Company, 220 NLRB 812 (1975), In 8, with regard to my position on this matter 11 My colleagues state that a fine on a former member for postresignation conduct violates Sec 8(b)(1)(A), "at least in the absence of valid restrictions on resignation or post-resignation conduct which have been communicated to and consented to by, its members " (Emphasis supplied ) APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce employees who have resigned from the Union and who, in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, worked af- ter their resignation at Whitaker Cable Corpora- tion during the August 1975 strike by imposing fines on them WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act WE WILL rescind the fine levied against Elea- nor Wiber because she worked at Whitaker Ca- ble Corporation after her resignation from Local 778 during the August 1975 strike, refund any money she may have paid as a result of such fine, plus interest, and expunge from our rec- ords any reference to the fine levied against her for her postresignation work INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT No 71, LOCAL 778