Intl. Assn. of Machinists, Lodge 1871

INTL. ASSN. OF MACHINISTS, LODGE 1871 International Association of Machinists and Aerospace Workers, Menit Graham Lodge No. 1871 and General Dynamics Corporation, Electric Boat Division. Case I -CB-3147 August 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER Upon charges duly filed by General Dynamics Corporation, Electric Boat Division, the Regional Director for Region 1 of the National Labor Relations Board, acting on behalf of the General Counsel of the Board, on February 24, 1976, issued a complaint' alleging that the Respondent Union, International Association of Machinists and Aero- space Workers, Merrit Graham Lodge No. 1871, violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq.). The Respondent filed an answer to the complaint in which it admitted certain allegations of the com- plaint and denied others, including all those charging it with the commission of any unfair labor practices. On July 14, 1976, the General Counsel, the Charging Party, and the Respondent entered into a stipulation in which they agreed to certain facts relevant to the issues in this proceeding. They also agreed to waive a hearing before an Administrative Law Judge, the issuance of an Administrative Law Judge's Decision, and the presentation of any evidence other than that contained in the stipulation and the exhibits there referred to.2 By order dated September 16, 1976, the Board approved the stipula- tion, as amended, and transferred the proceeding to the Board. Thereafter, the Charging Party and the Respondent filed briefs with the Board. The Board has considered the entire record in this case, including the parties' briefs, and makes the following findings and conclusions: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER General Dynamics Corporation, Electric Boat Division (hereinafter the Company), the Charging Party in this proceeding, has been at all times I The complaint was amended on April 8, 1976. 2 Subsequently the parties entered into an amendment to the stipulation. I All named months and dates are in 1975 unless otherwise indicated. William C. Belanger, Leonard E. Bingham, Robert G. Bradshaw. Francis L. Brisson. David Brown. Earl R. Burlingame. James M. Crowley. Jr.. John R. Dwsire. Glen L. Gural. Thomas Hinsch, James E. Holloway. (lde K. Jalkanen. Robert E. Jones. John R. Morgan, Sr., Kenneth Motlshaw. Joseph R. O'Brien. David L. Peacock, Harold T. Pierce, Robert J. Schussel. John D. Sheeler. Gary E. Singer. Thomas W. Slane, Tidal K. Stevens. Roger s incent. Jr. Herbert Yarhouse. and James Zeliff, Jr. 231 NLRB No. 74 material a corporation duly organized under the laws of the State of Delaware with its principal place of business at Groton, Connecticut, where it has been engaged in the manufacture of submarines. The Company annually receives goods valued in excess of $50,000 from points outside the State of Connecticut and ships goods valued in excess of $50,000 to points outside the State of Connecticut. Accordingly, in agreement with the stipulation of the parties, we find that the Company has been at all times material an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. It will therefore effectuate the policies of the Act to assert jurisdiction in this proceeding. II1. THE LABOR ORGANIZATION The Respondent is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A collective-bargaining agreement between the Company and the Respondent expired on June 30, 1975. 3 On July 1, a strike was begun by Respondent against the company. The strike ended sometime in November. Twenty-six employees, 4 who at all times prior to June 10 were members in good standing of the Respondent Union, were employed by the Company prior to July 1, and may have participated in the above-mentioned strike. These employees resigned from the Union sometime during the strike. They also returned to work sometime during the strike. 5 Pursuant to the recommendation of the trial committee of the Respondent, the 26 employees were fined by the Union on January 11, 1976, $500 each, solely for their acts of resignation during the strike. On January 19 and March 16, 1976, the 26 employees were notified of the imposition of the fines and advised of the intention of the Union to take legal action to collect the fines. The complaint alleges that in imposing these fines Respondent violated Section 8(bX)()(A). In other cases, involving this same International, the Union has sought to fine employees for their postresignation conduct of performing struck work.6 5 The stipulation and incorporated exhibits do not indicate when during the strike the employees resigned or returned to work, nor does the record reveal the order of these respective events to each other. In any event, only the fact of their occurrence dunng the strike is of any relevance or materiality here. 6 These cases involved the same constitutional provisions which were in effect at the time of the fines herein. 727 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has found that fines for such conduct are unlawful. 7 Here, in order to achieve the same goal of solidarity during a strike, Respondent has taken a slightly different tack. It has stipulated that its fines were imposed solely for the acts of resigning during the strike. The Respondent relies on the following provisions of article L, section 3, in its constitution as authoriz- ing the imposition of the fines: IMPROPER CONDUCT OF A MEMBER Sec. 3. The following actions or omissions shall constitute misconduct by a member which shall warrant a reprimand, fine, suspension and/or expulsion from membership, or any lesser penalty or any combination of these penalties as the evidence may warrant after written and specific charges and a full hearing as hereinafter provided: Refusal or failure to perform any duty or obligation imposed by this Constitution; the established policies of the I.A.M.; the valid decisions and directives of any officer or officers thereof; or, the valid decisions of the E.C. or the G.L. convention.... * * * * * Accepting employment in any capacity in an establishment where a strike or lockout exists as recognized under this Constitution, without per- mission. Resignation shall not relieve a member of his obligation to refrain from accepting employment at the establishment for the duration of the strike or lockout if the resignation occurs during the period of the strike or lockout or within 14 days preceding its commencement ... * * Any other conduct unbecoming a member of the I.A.M., provided, however, that any charge of such conduct shall specifically set forth the act or acts or omissions alleged to constitute such offense. Necessarily Respondent's defense rests on the contention that the act of resignation during a strike is improper under its constitution and that it is therefore free to fine a member for doing so. It points 7 Local Lodge No. 1994, International Association of Machinists and Aerospace Workers. AFL-CIO (O.K Tool Company. Inc.), 215 NLRB 651 (l974). and Machinists Local 1327, International Association of Machinists and Aerospace Workers. AFL-CIO, District Lodge 115 (Dalmo Victor Company). 231 NLRB 719 (1977). 1 See Booster Lodge No. 405, Intl. Assn. of Machinists and Aerospace IorAers [Boeing Co.] v. N.L.R.B., 412 U.S. 84, 88 89 (1973). 9 In view of this finding, we need not and do not pass on the question of what, if an). provision in a union's constitution or bylaws limiting the time or manner of resignation would pass muster under the Act. to two parts of article L, section 3, to support this position. First it points to the restriction on the activities of members following resignation as consti- tuting a restriction on resignation. However, this provision simply imposes obligations on those who resign to refrain from accepting employment at the struck establishment for the duration of the strike if resignation occurred within 14 days preceding the commencement of the strike. It contains no restric- tion on the right to resign. In fact, its plain meaning indicates resignation is permitted during a strike. Thus, the phrase, "Resignation shall not relieve a member of his obligation . . . if the resignation occurs during the period of the strike" would be utterly meaningless if resignation during a strike were not permitted. Second, Respondent points to the provision stating that a member may be fined or otherwise disciplined for "Any other conduct unbecoming a member" as constituting a restriction on resignation. The act of resigning during a strike, Respondent argues, is damaging to the collective interests of other mem- bers, hence is conduct unbecoming a member of the Union. Such language is much too general to provide sufficient notice to members that they may not resign during a strike without being fined. This is especially true in light of the fact that the specific restrictions on post resignation conduct indicate that members are free to resign during a strike. Therefore, we find this provision does not restrict the right to resign during a strike.8 Here, it is stipulated that all the employees involved in this proceeding resigned their member- ships, returned to work during the strike, and were thereafter fined for the act of resigning. But no provision in Respondent's constitution contains any restriction on resignation, even during a strike.9 Therefore, we find that "the members were free to resign at will and that Section 7 of the Act . . . protected their right to return to work during a strike which had been commenced while they were union members." 10 The natural and probable consequence of fining them for submitting lawful and effective resignations was to restrain and coerce them in the exercise of their Section 7 right to return to work during a strike following resignation from a union." Accordingly, we find that the Respondent, by fining 'o Booster Lodge No. 405, supra at 87-88; N. L R. B, v. Granite State Joint Boarad Textile Workers Union of America, Local 1029, AFL-CIO [Interna- tional Paper Box Machine Co.], 409 U.S. 213. 217-218 (1972). See also Local 1384, United Automobile, Aerospace, Agricultural Implement Workers, UA W (Ex-Cell-O Corporation), 227 NLRB 1045 (1977). 1' That Respondent might not have specifically intended this result is not material. Its motive is not an issue here. 728 INTL. ASSN. OF MACHINISTS, LODGE 1871 the above-named employees for the act of resigning during the strike, violated Section 8(b)(1)(A). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the Employer's opera- tions, have a close, intimate, and substantial relation- ship to trade, traffic, and commerce among the several States and tend 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 certain unfair labor practices, we shall order it to cease and desist therefrom. In order to effectuate the purposes of the Act, we shall also order the Respondent to rescind the unlawful fines, to refund any money paid to it as a result of the fines with interest computed at 7 percent per annum,'2 and to post the notice attached as an appendix to this Decision and Order.'3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, International Association of Machinists and Aero- space Workers, Merrit Graham Lodge No. 1871, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees who have resigned from and are no longer members of Respondent in the exercise of the rights guaranteed them in Section 7 of the Act by imposing court- collectible fines on such employees because of the act of resigning during a strike at General Dynamics Corporation, Electric Boat Division. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the purposes of the Act: (a) Rescind the fines levied against William C. Belanger, Leonard B. Bingham, Robert G. Brad- shaw, Francis L. Brisson, David Brown, Earl R. Burlingame, James M. Crowley, Jr., John R. Dwire, Glen L. Gural, Thomas Hinsch, James E. Holloway, 12 In accordance with our decision in Flonda Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25. 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on the tax payments was at least 7 percent. 13 The Charging Party's request that the Respondent be required to pay each of the 26 employees S500 in damages is hereby denied as without merit. Clyde K. Jalkanen, Robert E. Jones, John R. Morgan, Sr., Kenneth Mottshaw, Joseph R. O'Brien, David L. Peacock, Harold T. Pierce, Robert J. Schussel, John D. Sheeler, Gary E. Singer, Thomas W. Slane, Tidal K. Stevens, Roger Vincen:, Jr., Herbert Yarhouse, and James Zeliff, Jr., because of their act of resigning during the strike which began July 1, 1975, at General Dynamic Corporation, Electric Boat Division, and refund to them any money they may have paid as a result of such fines, plus interest computed at the rate of 7 percent per annum. (b) Post at its business office and meeting hall copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by an authorized representative, shall be posted by the Respondent 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. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region I signed copies of said notice for posting by General Dynamics Corporation, Electric Boat Division, if the Company is willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, after being duly signed by Respondent's authorized representative, shall be returned forthwith to the Regional Director. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER JENKINS, dissenting: Beneath the facade of language that has been built around this case as well as the others in the line of cases cited by the majority in footnote 7, the reality of what is being attempted by the Union in each situation is the same. All these cases concern a union's effort to utilize a reasonably restricted, fairly implemented, and mutually agreed-to rule, to police a collective decision to engage in an economic strike for its duration against individual members who choose to disregard their commitment to the strike and return to work. In my view this reality super- sedes the mere form which is used to characterize the " In 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." 729 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's action. Thus it is irrelevant whether the fine is imposed for resigning or for breach of a rule which prohibits returning to work during a strike notwith- standing resignation during the limited period between the time that the decision to strike is made and the end of the strike. The fact of the matter is that in all these cases the relevant considerations are: the sufficiency of the provisions in the constitution which establish the restriction on a member's right to resign during a strike; how these provisions are implemented with respect to an individual member, especially in terms of notice and the reasonableness of the fine; and the effect that such a restriction will have on individual and collective rights, both of which are guaranteed under the Act. In light of the above and inasmuch as the material facts of this case are, by stipulation, the same as in Machinists Local 1327, International Association of Machinist and Aerospace Workers, AFL-CIO, District Lodge 115 (Dalmo Victor), 231 NLRB 719 (1977), I would dismiss the instant complaint for the reasons I expressed in my dissent in that case. MEMBER MURPHY, dissenting: For the reasons stated in my dissent in Machinists Local 1327, International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 115, (Dalmo Victor), 231 NLRB 719 (1977), I would find no violation and would dismiss the complaint. APPENDIX NOTICE To EMPLOYEES 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, and are no longer members of, the Union in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, by imposing court-collectible fines on them for resigning during the strike at General Dynamics Corporation, Electric Boat Division, which began on July 1, 1975. 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 fines levied against William C. Belanger, Leonard B. Bingham, Robert G. Bradshaw, Francis L. Brisson, David Brown, Earl R. Burlingame, James M. Crowley, Jr., John R. Dwire, Glen L. Gural, Thomas Hinsch, James E. Holloway, Clyde K. Jalkanen, Robert E. Jones, John R. Morgan, Sr., Kenneth Mottshaw, Joseph R. O'Brien, David L. Peacock, Harold T. Pierce, Robert J. Schussel, John D. Sheeler, Gary E. Singer, Thomas W. Slane, Tidal K. Stevens, Roger Vincent, Jr., Herbert Yarhouse, and James Zeliff, Jr. because they resigned during the strike at General Dynamics Corporation, Electric Boat Division, which began in July 1, 1975, and refund any money they may have paid as a result of such fines, plus interest. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, MERRIT GRAHAM LODGE No. 1871 730