Machinists Local 68 (Holmatic)

MACHINISTS LOCAL 68 (HOLMATIC) San Francisco Lodge No. 68, International Associa- tion of Machinists & Aerospace Workers, affili- ated with Bay Cities Metal Trades Council, AFL-CIO, and California State Conference of Machinists (Holmatic, Inc.) and Tevel Brichkov and Karl Knight. Cases 20-CB-6110-1 and 20- CB-6110-2 7 March 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 10 December 1984 Administrative Law Judge Jerrold H. Shapiro issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering memorandum in support of the judge's de- cision. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. I ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , San Francis- co Lodge No. 68, International Association of Ma- chinists & Aerospace Workers, affiliated with Bay Cities Metal Trades Council , AFL-CIO, and Cali- fornia State Conference of Machinists , South San Francisco, California, its officers, agents, and repre- sentatives , shall take the action set forth in the Order. ' Member Dennis does not adopt the fudge's recommended Order in all respects See her position in Machinists Local 1414 (Neufeld Porsche- Audi), 270 NLRB 1330 fn 22 (1984) 757 The complaint alleges that Respondent violated Sec- tion 8(b)(1)(A) by imposing court collectible fines against Brichkov and Knight on an unkown date in August 1983 for returning to work at Holmatic, Inc. (the Employer) during a strike organized by Respondent at that compa- ny, even though Brichkov and Knight had previously re- signed their membership in Respondent. Respondent filed an answer denying the commission of the alleged unfair labor practices and in its answer by way of an affirma- tive defense asserted that the alleged unfair labor prac- tices were time-barred by the limitations proviso of Sec- tion 10(b) of the Act. I conducted a hearing in this proceeding on October 23, 1984, at which time the parties agreed that the record would consist of the formal papers, the parties' written stipulation of facts with the accompanying exhibits, and the parties' oral arguments. On the entire record in this case, I make the following FINDINGS OF FACT 1. JURISDICTION AND THE RESPONDENT'S STATUS AS A LABOR ORGANIZATION The Employer, Holmatic, Inc., is a California corpora- tion engaged in the manufacture of machine parts at its facility in South San Francisco, California The Employ- er, in the course and conduct of its business operations in the State of California during the calendar year 1983, purchased and received products, goods, and materials valued in excess of $50,000 directly from points outside California and sold and shipped from California goods, products, and materials valued in excess of $50,000 di- rectly to points outside California. Accordingly, I find that the Employer meets the National Labor Relations Board's applicable discretionary jurisdictional standard and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I therefore find that it is appropriate for the Board to assert its juris- diction over these cases. The Respondent is admittedly a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. Upon unfair labor practice charges filed on January 31, 1984, against San Francisco Lodge No. 68, International Association of Machinists & Aerospace Workers (Re- spondent) by Tevel Brichkov (Brichkov) and Karl Knight (Knight) in Cases 20-CB-6110-1 and 20-CB- 6110-2, respectively, which were mailed by certified mail to Respondent on February 1, 1984, and received on February 3, 1984, the General Counsel of the Nation- al Labor Relations Board issued a consolidated complaint against Respondent on March 8, 1984, alleging that it violated Section 8(b)(1)(A) of the National Labor Rela- tions Act (the Act) A. The Facts A group of the Employer's employees, including Charging Parties Brichkov and Knight, were represented during the time material by Respondent and covered by the terms of a collective-bargaining contract between Respondent and the Employer which expired March 31, 1983. In May 1983 Respondent organized a lawful strike against the Employer and established a lawful picket line at the Employer's place of business. The strike ended about July 1, 1983. In June 1983 Brickkov and Knight, who were mem- bers of Respondent, submitted written membership resig- nations to Respondent and, after Respondent received their resignations, crossed Respondent's picket line and returned to work for the Employer. 274 NLRB No. 108 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly after July 18, 1983, Brichkov and Knight re- ceived identical letters from Respondent's record secre- tary, W A. Horn, which directed them to appear before Respondent's appointed trial committee on July 26, 1983, at a designated time and place "to answer the alleged charges that have been filed against you by the 1983 strike committee of which a copy filed by said commit- tee . . . is enclosed." The letter concluded by advising them that, "it is imperative that you attend this trial for if you do not, the trial shall go on in your absence." The copy of the charges against Brickhov and Knight, en- closed in Horn's letters to them, alleged that they "vio- lated Article L, Section 3 of the I.A.M. Constitution per- taining to conduct unbecoming a union member." More specifically the charges alleged in essence that Brichkov and Knight violated Respondent's "strike rules" by fail- ing to report for picket line duty and for crossing Re- spondent's picket line. On undisclosed dates, Brichkov and Knight responded to Horn's above-described letter by writing identical let- ters to Respondent stating that since they had resigned their membership in Respondent that they were declining Horn's invitation to attend the trial scheduled for July 26, 1983. On July 26, 1983, Respondent's trial committee met as scheduled to consider the charges against Brichkov and Knight and found that they were guilty of engaging in the following misconduct: [T]he alleged violations of the STRIKE RULES, in not registering with the STRIKE COMMITTEE, not doing picket duty like [they were] supposed to and willingly without regard to [their] Co-workers crossed an established LODGE 68 picket line. Also violated the, I.A. of M. & A.W. CONSTITUTION, ARTICLE L: SECTION 3: that being conduct un- becoming of a union member. The trial committee at this time also recommended that for engaging in the aforesaid misconduct Knight be pe- nalized with a fine of $6533.12 payable to Respondent and that Brichkov be penalized with a fine of $4956.16 payable to Respondent. Neither Brichkov nor Knight at- tended the July 26, 1983 trial committee hearing. On an undisclosed date in August 1983, at Respond- ent's regular membership meeting, the membership con- curred with the trial committee's above-described July 26, 1983 findings and recommendations. About August 28, 1983, Brichkov and Knight each re- ceived a letter from Respondent's recording secretary Horn which set forth the trial committee's above-de- scribed July 26, 1983 findings and recommendations per- taining to the charges brought against them and notified them that Respondent's membership at the August 1983 membership meeting had concurred with the trial com- mittee's findings and recommendations. Article L, sections 12 through 13 of the constitution of Respondent's International Union, the International As- sociation of Machinists & Aerospace Workers, provides in pertinent part that the trial committee in cases such as Brichkov's and Knight's, after considering all of the evi- dence, shall agree upon a verdict of guilty or not guilty and if the verdict is guilty the trial committee shall agree upon its recommendation of punishment and then report its finding and recommendations to the membership at the next regular local lodge membership meeting and that the membership shall vote by secret ballot whether or not to accept the trial committee's findings and, with respect to the punishment recommendation, further pro- vides that the membership may amend, reject, or substi- tute another punishment in its place Section 12, article L, also requires that the trial committee submit a report to the local lodge membership which contains a synopsis of the evidence of testimony presented to the trial com- mittee, together with the trial committee's findings and verdict and an explanation of the intent and meaning of the trial committee's findings and verdict. The verdict reached by the trial committee is then, as further provid- ed by section 12, submitted to a secret vote of the mem- bership and if the membership concurs with a "guilty" verdict the punishment recommendation of the trial com- mittee is then submitted in a separate report to the mem- bership and voted on separately. The provision of the International Union's constitu- tion, article L, section 3, which Brichkov and Knight, as described above, were found to have violated, reads in pertinent part as follows: Improper Conduct of a Member: Accepting employment in any capacity in an es- tablishment where a strike or lockout exists as rec- ognized under this Constitution, without permission. Resignation shall not relieve a member of his obli- gation to refrain from accepting employment at the establishment for the duration of the strike or lock- out if the resignation occurs during the period of the strike or lockout or within 14 days preceding its commencement. Where observance of a primary picket line is required, any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained, nor shall it re- lieve a member of his or her obligation to observe the primary picket line for its duration. B. Contentions of the Parties Respondent contends that this case is controlled by the Ninth Circuit's decision in NLRB v. Machinists Local 1327 (Dalmo Victor), 725 F.2d 1212 (9th Cir. 1984), in which the court held that a union, in the circumstances present here, may lawfully restrict its members' right to resign. In addition, Respondent argues that, in view of the Ninth Circuit's decision in Dalmo Victor, supra, the Board's General Counsel is precluded by the doctrine of collateral estoppel from litigating the instant case and that, in any event, the complaint in this case is barred by the 6-month limitations provision of Section 10(b) of the Act The General Counsel contends that this case is con- trolled by Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), in which the Board held that a union may not lawfully restrict the right of its members MACHINISTS LOCAL 68 (HOLMATIC) to resign from membership. The General Counsel also argues that the doctrine of collateral estoppel is not ap- plicable because Respondent was not a party to the liti- gation involved in Dalmo Victor and with respect to Re- spondent's 10(b) limitations defense takes the position that the complaint is not time barred by the Act's limita- tion proviso because the record does not establish that the unfair labor practices occurred outside of the limita- tions period and that, in any event, it was not until a date within the limitations period that the charging parties were placed on notice by Respondent of the unfair labor practices. C. Discussion of Law and Conclusions The Board's recent decision in Machinists Local 1414 (Neufeld Porsche-Audi), supra, 270 NLRB 1330 (1984), is controlling here. In that case the Board held that any re- striction on a union member's right to resign is unreason- able and invalid Accordingly, for the reasons set forth in Neufeld Porsche-Audi, supra, I find that article L, section 3, of the Respondent's constitution is unlawful and cannot be forced to the extent that it restricts Respond- ent's members' right to resign. Therefore, the resigna- tions of Brichkov and Knight were effective on their submission It follows that Respondent violated Section 8(b)(1)(A) of the Act by imposing fines on Brichkov and Knight for returning to work during Respondent's strike after they resigned their membership in Respondent i In concluding that Respondent has violated Section 8(b)(1)(A), as alleged in the complaint, I considered Re- spondent's arguments that because of the Ninth Circuit's decision in Dalmo Victor, supra, the Board's General Counsel is collaterally estopped from litigating the com- plaint herein and that, in any event, the complaint is barred by the 6-month limitations proviso of Section 10(b) of the Act. My reasons for rejecting these argu- ments are as follows. Respondent was not a party to the litigation involved in Dalmo Victor, supra. Accordingly, the doctrine of col- lateral estoppel is not applicable. See Allen v. McCurry, 449 U.S 90, 94 (1980), where the Supreme Court stated. "Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that deci- sion may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first issue." (Emphasis added.) Likewise in United States v. Stauffer Chemical Co, 104 S Ct. 575, 578 (1984), relied on by Respondent, the Supreme Court in finding that the doctrine of mutual defensive collateral estoppel was ap- plicable, noted: "[w]e agree that the doctrine of mutual defensive collateral estoppel is applicable against the government to preclude relitigation of the same issue al- ' I recognize that the Ninth Circuit in NLRB v Machinists Local 1327 (Dalmo Victor), 725 F 2d 1212 (9th Cir 1984), held that a union, in the circumstances present here, may lawfully restrict its members' right to resign However, in Neufeld Porsche-Audi, supra, the Board expressly de- clined to adopt the Ninth Circuit's view that Sec 8(b)(1)(A) grants unions the authority to impose restrictions on the right of employee- members to resign their membership and then refrain from strike activity I am obligated to follow Board precedent which the Board or the Su- preme Court has not reversed See Ford Motor Co, 230 NLRB 716, 718 fn 12 (1977), and cases cited therein 759 ready litigated against the same party in another case in- volving virtually identical facts " (Emphasis added.) Section 10(b) of the Act provides in pertinent part "that no complaint shall issue based on any unfair labor practice occurring more than 6 months prior to the filing of the charge." Here Charging Parties Brichkov and Knight filed the instant charges with the Board's Region- al Office on January 31, 1984, and they were mailed to Respondent by certified mail on February 1, 1984, and received February 3, 1984. Respondent contends that the alleged unfair labor practices, the imposition of the fines on the Charging Parties, occurred outside the 10(b) limi- tations, on July 26, 1983, when Respondent's trial com- mittee found the Charging Parties guilty, as charged, and recommended that they be fined. I disagree for the rea- sons which follow. First, the trial committee's findings and punishment recommendations did not constitute Respondent's deci- sion Rather, the final adverse decision of Respondent in- volving the intraunion charges against the Charging Par- ties was not reached until an undisclosed date in August 1983 when Respondent's membership voted to impose the trial committee's findings and recommended punish- ment, thus Postal Service, 271 NLRB 397 (1984), relied on by Respondent, is inapposite.2 Second, assuming that the trial committee's July 26, 1983 findings and punishment recommendations are viewed as a decision of Respondent, it was not sufficient to cause the 10(b) limitations period to commence on that date, because it was not until August 28, 1983, that the Charging Parties received notice from Respondent of the Respondent's adverse action against them. In this regard, the law is settled that, "[t]he Act's statute of limi- tations does not begin to run until the aggrieved party knew or should have known that his statutory rights were violated." Wisconsin River Valley District Council v. NLRB, 532 F.2d 47, 53-54 (7th Cir. 1976).3 This is so even if the aggrieved party's unawareness of the unfair labor practices resulted merely from the circumstances of the case and not from the respondent's active conceal- ment See Wisconsin River Valley District Council, supra; Peerless Roofing Co. v. NLRB, 641 F.2d 734, 746 (9th Cir. 1981), Metromedia Inc., KMBC-TV v. NLRB, 586 F 2d 1182, 1189 (8th Cir. 1978); NLRB v. Longshoremen Local 30, 549 F.2d 698, 700-701 (9th Cir 1977). I reject Respondent's contention that the Charging Parties should have known of the trial committee's July 26, 1983 findings and punishment recommendation be- 2 Since Respondent's 10(b) limitations defense is an affirmative defense which Respondent has the burden of proving, I shall not presume that Respondent's August 1983 membership meeting took place prior to August 3, 1983 Thus, I need not consider the applicability of Sec 102 113 of the Board's Rules and Regulations which equates the date of service of the charge with the date of its mailing by the Board's Regional Office 9 Communications Workers Local 5550 (American Telephone & Tele- graph), 187 NLRB 553 (1970), relied on by Respondent, is inapposite be- cause there the question of whether the Charging Party received notice of the Respondent's union adverse action was not raised In any event even assuming that Communications Workers Local 5550, supra, is applica- ble to the instant case, Respondent's 10(b) limitations defense is without merit as because, I have found supra Respondent's decision to fine the Charging Parties was not made until an undisclosed date in August 1983 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause they were afforded an opportunity to be present at the trial committee's July 26, 1983 hearing. The Charg- ing Parties were under no duty to respond to the charges against them where, as here, they had previously exer- cised their statutory right to resign from the Respondent. Moreover, as the court in Wisconsin River Valley District Council v. NLRB, supra, stated in a similar situation (532 F.2d at 54): We are not convinced that Schulist, having been notified of the Union hearing, lacked standing to disclaim notice of the outcome. The Union has a duty to notify a member of any action taken against him before such action becomes binding [case cited]. Furthermore Schulist, as a supervisor, was under no duty to respond to the Union charges against him [case cited.] See also NLRB v. Longshoremen Local 30, supra, where a resigned member declined a respondent union's invitation to be present at the membership meeting where the membership voted on the trial committee's punishment recommendation. The court in its decision implicitly held that this did not constitute constructive notice of the out- come of that meeting. It is for the aforesaid reasons that I find that the 10(b) limitations period did not begin until ( 1) the undisclosed date in August 1983 when Respondent 's membership voted to accept the trial committee's recommendation that the Charging Parties be fined, or (2) August 28, 1983, when the Charging Parties received notice of the imposition of the fines. Accordingly, in either case Re- spondent has failed to prove that the unfair labor prac- tice charges herein were not timely filed and served within the meaning of Section 10(b) of the Act. CONCLUSIONS OF LAW 1. Holmatic, Inc., the Employer, is an employer en- gaged 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 imposing fines against Tevel Brichkov and Karl Knight for returning to work at Holmatic, Inc. during a strike organized by Respondent, after Brichkov and Knight resigned their membership in Respondent, the Respondent violated 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. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act, including the refund to Brichkov and Knight of any moneys they may have paid as a result of the fines imposed against them, with interest computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977).4 Finally, in accord with Neufeld Porsche- See generally Isis Plumbing Co, 138 NLRB 716 (1962) Audi, I shall recommend that Respondent cease and desist from maintaining restrictions on resignations and expunge the provision from its governing documents.5 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, San Francisco Lodge No. 68, Inter- national Association of Machinists & Aerospace Work- ers, affiliated with Bay Cities Metal Trades Council, AFL-CIO, and California State Conference of Machin- ists, South San Francisco, California, its officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining in its governing documents article L, section 3, of the constitution of the International Associa- tion of Machinists & Aerospace Workers to the extent it provides: Improper Conduct of a Member: Accepting employment in any capacity in an es- tablishment where a strike or lockout exists as rec- ognized under this Constitution, without permission. Resignation shall not relieve a member of his obli- gation to refrain from accepting employment at the establishment for the duration of the strike or lock- out if the resignation occurs during the period of the strike or lockout or within 14 days preceding its commencement. Where observance of a primary picket line is required, any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained, nor shall it re- lieve a member of his or her obligation to observe the primary picket line for its duration. (b) Restraining or coercing employees who have re- signed from and are no longer members of, the Respond- ent in the exercise of the rights guaranteed them by Sec- tion 7 of the Act by imposing court collectible fines on such employees because of their postresignation conduct in working at Holmatic, Inc. during a strike organized by Respondent. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Expunge from its governing documents the portion of article L, section 3, of the constitution of the Interna- tional Association of Machinists & Aerospace Workers set forth above. a Engineers & Scientists Guild (Lockheed-California), 268 NLRB 311 (1983) 9 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses MACHINISTS LOCAL 68 (HOLMATIC) (b) Rescind the fines levied against Tevel Brichkov and Karl Knight because of their postresignation work for Holmatic, Inc during the strike that was organized by Respondent and refund to them any moneys they may have paid as a result of such fines, with interest. (c) Post at its business office and meeting halls copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (d) Sign and return to the Regional Director sufficient copies of the notice for posting by Holmatic, Inc., if will- ing, at all places where notices to employees are' custom- arily posted (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ' If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al 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 has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT maintain in our governing documents article L, section 3 of the constitution of the Internation- al Association of Machinists & Aerospace Workers to the extent it provides: 761 Improper Conduct of a Member: Accepting employment in any capacity in an es- tablishment where a strike or lockout exists as rec- ognized under this Constitution, without permission. Resignation shall not relieve a member of his obli- gation to refrain from accepting employment at the establishment for the duration of the strike or lock- out if the resignation occurs during the period of the strike or lockout or within 14 days preceding its commencement. Where observance of a primary picket line , is required, any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained, nor shall it re- lieve a member of his or her obligation to observe the primary picket line for its duration. 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 them by Section 7 of the Act by imposing court collectible fines on such employees because of their postresignation conduct in working at Holmatic, Inc. during the strike that began in May 1983. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL expunge from our governing documents the portion of Article L, section 3 of the constitution of the International Association of Machinists & Aerospace Workers set forth above. WE WILL rescind the fines levied against Tevel Brich- kov and Karl Knight because of their post-resignation work for Holmatic, Inc. during our May 1983 strike, and refund to them any moneys they may have paid as a result of such fines, plus interest. SAN FRANCISCO LODGE No. 68, INTERNA- TIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFFILIATED WITH BAY CITIES METAL TRADES COUNCIL, AFL-CIO, AND CALIFORNIA STATE CON- FERENCE OF MACHINISTS