298 N.L.R.B. 35 (N.L.R.B. 1990)

Iron Workers Local 433 (Reynolds Electrical)

National Labor Relations Board - Board DecisionsMar 30, 1990

298 N.L.R.B. 35 (N.L.R.B. 1990)

IRON WORKERS LOCAL 433 (REYNOLDS ELECTRICAL) 35 Local Union No. 433, International Association of Bridge, Structural and Ornamental Iron Work- ers (Reynolds Electrical & Engineering Co., Inc.) and Richard Tibbs and William Ragans Laborers International Union of North America, Local Union No. 872, AFL-CIO (Reynolds Electrical & Engineering Co., Inc.) and John D. Bustamonte and Herbert Jones Jr. and Stanley Wainwright and Shelby Perry and A. J. Mar- quez and Coye King and Charles Lovett and Wallace Morgan and Ronald L. Mulcahy and John C. Shelton and J. C. Weaver and Wilbert Evans and Paul D. Lebowsky and Dennis S. Neilson and Jack L. Pryor and Michael E. McCoy and Thelma L . Washington and Laura W. Chilton and David Treiber and Louis South and Robert Banegas and Mary Ann Kelly and Gerald Chavez and Richard H. Waller and Philip Weisenberger and Rodney Mills and Danny Salazar and Willie Salazar and Richard C. Foster and Abel Apodaca and Sultan Pear- son and Mike V. Martinez and Bernable Salaiz and Craig Thompson and Billy R. Bradley and Thomas R. Gregg and Terry Jackson and Pete Martinez and Leo B. Sage and Gardner Simp- son and Billy G. Henderson and Richard S. Horne and Lorenzo Martinez and John H. Erb and Leon W . Marsing and Louis Romero and James O. McCurdy and Dan L. Stoddard and Darryl Hagle and Phillip M. Price and Don E. Slocum and George G. Gonzales and Michael L. Hawkins and Jack Millage and Charlie Stewart Jr. and Bruce J. Wilson and Pedro Ortiz and R . Don DeFord and Esrin Caad and Abdon Viesca. Cases 31-CB-7370, 31-CB- 7532, 31-CB-7361, 31-CB-7371, 31-CB-7372, 31-CB-7381, 31-CB-7382, 31-CB-7388, 31- CB-7389, 31-CB-7390, 31-CB-7391, 31-CB- 7392, 31-CB-7395, 31--CB-7397, 31-CB-7398, 31-CB-7404, 31-CB-7405, 31-CB-7406, 31- CB-7407, 31-CB-7408, 31-CB-7409, 31-CB- 7413, 31-CB-7419, 31--CB-7439, 31-CB-7440, 31-CB-7441, 31-CB-7442, 31-CB-7443, 31- C13177447, 31-CB-7448, 31-CB-7452, 31-CB- 7453, 31-CB-7455, 31--CB-7458, 31-CB-7459, 31-CB7460, 31-CB-7464, 31-CB-7465, 31- CB-7469, 31-CB-7470, 31-CB7471, 31-CB- 7476, 31-CB-7477, 31-CB-7478, 31-CB-7479, 31-CB-7480, 31-CB-7484, 31-CB-7487, 31- CB-7489, 31-CB-7490, 31-CB-7491, 31-CB- 7492, 31-CB-7494, 31--CB-7495, 31-CB-7496, 31-CB-7497, 31-CB-7499, 31-CB-7505, 31- CB-7507, 31-CB-7514, 31-CB-7531, and 31- CB-7537 March 30, 1990 DECISION AND ORDER BY CHAIRMAN STEP14ENS AND MEMBERS CRACRAFT AND DEVANEY On January 19, 1989, Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs, and the Respondent filed a response to the General Counsel's excep- tions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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, I and conclusions and to adopt the recommended Order as modified and set forth in full below. The General Counsel excepts to the judge's fail- ure to provide a remedy that encompasses "em- ployee-members unnamed but similarly situated to those named in the respective Complaints." In their response the Respondents contend that in the ab- sence of evidence to "suggest" that there may be "others" similarly situated, the General Counsel's exceptions should be denied. We find merit in the General Counsel's exceptions. We agree, for the reasons set forth by the judge, that the Respondents violated Section 8(b)(1)(A) of the Act by fining and otherwise disciplining mem- bers for refusing to join a sympathy strike in con- travention of contractual no-strike provisions con- tained in the Respondents' contracts with Reynolds Electrical & Engineering Co., Inc. Having Found the violation, the issue raised by the General Coun- sel is whether the remedy should be limited to those individuals named in the complaints as discri- minatees or whether it should encompass any un- named members against whom the Respondents took similar unlawful action. ' In its exceptions the Respondents contend that the "Conflicting Agreements" provision of the contracts between the Respondents and Reynolds Electrical & Engineering Co., Inc precludes the Board from considering evidence as to the parties' intent regarding "the coverage of the no-strike clause. " We disagree . The "Conflicting Agreements" provi- sion, as all "zipper clauses," pertains to the parties ' bargaining rights and obligations over subjects not mentioned or provided for in the contracts. Nothing in that provision prohibits the Board from examining the parties' intent regarding a provision contained in the contracts , nor did the Re- spondents establish that the parties intended that provision to have such an effect Member Devaney, without passing in this case on the rule in 11ndianap- olis Power Co., 291 NLRB 1039 (1988), agrees that the Respondents' con- duct was unlawful because the evidence demonstrates that the parties clearly intended their no-strike clauses to prohibit employees from honor- ing stranger picket Imes. 298 NLRB No. 8 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Where the General Counsel has alleged and proven discrimination against a defined and easily identified class of employees, the Board, with court approval, has found it appropriate to extend reme- dial relief to all members of that class, including in- dividuals not named in the complaint. E.g., Wood- line Motor Freight, 278 NLRB 1141, 1143 fn. 6 (1986), enfd. in pertinent part 843 F.2d 285 (8th Cir. 1988). Contrary to the Respondents' conten- tion, in these circumstances the General Counsel is not now required to establish the existence of others similarly situated to those individuals named in the complaints because at this stage of the pro- ceeding the relevant inquiry is into whether there has been discrimination against a defined and easily identified class . NLRB v. Duncan Foundry & Ma- chine Works, 435 F.2d 612, 616 (7th Cir. 1970). See also Iron Workers Local 433 (AGC of California), 228 NLRB 1420 (1977), enfd. 600 F.2d 770 (9th Cir. 1979), cert. denied 445 U.S. 915 (1980). If such discrimination is shown, the question of precisely which individuals comprise the class is properly considered at the compliance stage of the case. Woodline Motor Freight, supra; Duncan Foundry, supra. These principles are applicable here. Both in the complaints and at the hearing the General Counsel asked that the remedy include all employees covered by the Respondents' contracts with Reynolds who crossed the picket lines in late 1987. The Respondents were thus on notice that the complaints were not limited to those individ- uals named in the complaints. Moreover, the class of employees encompassed in the remedy sought by the General Counsel is a defined and easily identifiable class , namely, those employees covered by the Respondents' contracts with Reynolds who crossed the picket lines in late 1987, and who were fined or otherwise disciplined by the Respondents. Granting the General Counsel's exceptions, which leaves the identification of any additional discriminatees to subsequent compliance proceed- ings, will not result in any prejudice to the Re- spondents. Such compliance proceedings will not establish any additional violations of the Act com- mitted by the Respondents but rather will ensure that all those individuals harmed by the violations we have found will be made whole. Further, the identification of additional discriminatees in compli- ance proceedings will not result in surprise to the Respondents, who of course know the identity of each of its members fined and disciplined for' failing to honor the sympathy strike. Nor will the Re- spondents be foreclosed in compliance proceedings from litigating whether any or all of the additional discriminatees named by the General Counsel are in fact similarly situated to those named in the complaints. For all these reasons, we grant the General Counsel's exceptions and modify the judge's rec- ommended Order and notice accordingly.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that A. Respondent Local Union No. 433, Interna- tional Association of Bridge, Structural and Orna- mental Iron Workers, its officers, agents , and repre- sentatives, shall 1. Cease and desist from (a) Initiating disciplinary proceedings and pros- ecuting and fining members who refuse to join a sympathy strike in contravention of a contractual no-strike provision contained in the Respondent's contract with Reynolds Electrical & Engineering Co., Inc. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind any and all fines and other discipline imposed against members Richard Tibbs and Wil- liam Hagans and similarly situated members. (b) Remove from its files any reference to the unlawful fines and disciplinary proceedings and notify those members in writing that it has done so and that it will not use these unlawful actions against them in any way. (c) Reimburse those members for any fines that they have paid, plus interest to be computed in ac- cordance with New Horizons for the Retarded, supra. (d) Post at all places where notices to members are posted copies of the attached notice marked "Appendix A."3 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondents' authorized representative, shall be posted by the Respondents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customari- 2 We have also modified the judge's recommended Order and notice to include a provision requiring the Respondents to reimburse its members for payment of any of the unlawful fines, plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) S 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 Nation- al 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." IRON WORKERS LOCAL 433 (REYNOLDS ELECTRICAL) ly posted. Further signed copies of the notice will be provided to the Board for submission to the Employer for posting at appropriate places, if will- ing. Reasonable steps shall be taken by the Re- spondents to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents has taken to comply. B. Respondent Laborers International Union of North America, Local Union No. 872, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Initiating disciplinary proceedings and pros- ecuting and fining members who refuse to join a sympathy strike in contravention of contractual no- strike provisions contained in the Respondent's contracts with Reynolds Electrical & Engineering Co., Inc. (b) Preventing members from engaging in inter- nal union activity because of their refusal to join sympathy strikes. (c) Informing members that the unlawful fines imposed on them must be paid in full or union dues would not be accepted or the members would be subject to suspension. (d) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following ,affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind, withdraw, and cancel fines and other disciplinary actions against the following members and those similarly situated: Sultan Pearson Herbert Jones Jr. Bernable Salaiz Shelby Perry A. J. Marquez Coye King Charles Lovett Wallace Morgan Ronald L. Mulcahy John C. Shelton J. C. Weaver Wilbert Evans Paul D. Lebowsky Dennis S . Neilson Jack L. Pryor Michael E. McCoy James O. McCurdy Laura W. Chilton David Treiber Louis South Robert Banegas Mary Ann Kelly John D. Bustamonte Mike V. Martinez Stanley Wainwright Craig Thompson Billy R. Bradley Thomas R. Gregg Terry Jackson Pete Martinez Leo B. Sage Gardner Simpson Billy G. Henderson Richard S. Home Lorenzo Martinez John H. Erb Leon W. Marsing Louis Romero Thelma L. Washington Dan L. Stoddard Darryl Hagle Phillip M. Price Don E. Slocum George G. Gonzales Gerald Chavez Richard H. Waller Charlie Stewart Jr. Rodney Mills Danny Salazar Willie Salazar Richard C. Foster Abel Apodaca Michael L. Hawkins Jack Millage Philip Weisenberger Bruce J. Wilson Pedro Ortiz R. Don DeFord Esrin Caad Abdon Viesca 37 (b) Remove from its files any reference to the unlawful fines and disciplinary proceedings and notify those members in writing that it has done so and that these unlawful actions will not be used against them in any way. (c) Reimburse those members for any fines that they have paid, plus interest to be computed in ac- cordance with New Horizons for the Retarded, supra. (d) Post at all places where notices to members are posted copies of the attached notice marked "Appendix B."3 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customari- ly posted. Further signed copies of the notice will be provided to the Board for submission to the Employer for posting at appropriate places, if will- ing. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 4 See fn 3, supra. APPENDIX A 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 ordered us to post and abide by this notice. WE WILL NOT initiate disciplinary proceedings and prosecute and fine members who refuse to join a sympathy strike in contravention of a contractual no-strike provision contained in our contract with Reynolds Electrical & Engineering Co., Inc. 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind any and all fines and other dis- cipline imposed against members Richard Tibbs and William Hagans and similarly situated mem- bers. WE WILL remove from our files any reference to the unlawful fines and disciplinary proceedings and notify those members in writing that it has been done and that we will not use these unlawful ac- tions against them in any way. WE WILL reimburse those members for any fines that they have paid, plus interest. Ronald L. Mulcahy John C. Shelton J. C. Weaver Wilbert Evans Paul D. Lebowsky Dennis S. Neilson Jack L. Pryor Michael E. McCoy James O. McCurdy Laura W. Chilton David Treiber Louis South Robert Banegas Mary Ann Kelly Gerald Chavez Richard H. Waller Charlie Stewart Jr. Rodney Mills Danny Salazar Willie Salazar Richard C. Foster Abel Apodaca Leo B. Sage Gardner Simpson Billy G. Henderson Richard S. Horne Lorenzo Martinez John H. Erb Leon W. Marsing Louis Romero Thelma L. Washington Dan L. Stoddard Darryl Hagle Phillip M. Price Don E. Slocum George G. Gonzales Michael L. Hawkins Jack Millage Philip Weisenberger Bruce J. Wilson Pedro Ortiz R. Don DeFord Esrin Caad Abdon Viesca LOCAL UNION No. 433, INTERNA- TIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS APPENDIX B 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 ordered us to post and abide by this notice. WE WILL NOT initiate disciplinary proceedings and prosecute and fine members who refuse to join a sympathy strike in contravention of contractual no-strike provisions contained in our contracts with Reynolds Electrical & Engineering Co., Inc. WE WILL NOT prevent members from engaging in internal union activity because of their refusal to join sympathy strikes. WE WILL NOT inform members that the unlawful fines imposed on them must be paid in full or union dues would not be accepted or the members would be subject to suspension. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind, withdraw, and cancel fines and other disciplinary actions against the following members and those similarly situated: Sultan Pearson Herbert Jones Jr. Bernable Salaiz Shelby Perry A. J. Marquez Coye King Charles Lovett Wallace Morgan John D. Bustamonte Mike V. Martinez Stanley Wainwright Craig Thompson Billy R. Bradley Thomas R. Gregg Terry Jackson Pete Martinez WE WILL remove from our files any reference to the unlawful fines and disciplinary proceedings and notify those members in writing that we have done so and that these unlawful actions will not be used against them in any way. WE WILL reimburse those members for any fines that they have paid, plus interest. LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION No. 872, AFL-CIO Arthur Yuter, Esq., for the General Counsel. David Rosenfeld, Esq. (Van Bourg, Weinberg, Roqer & Ro- senfeld), of San Francisco, Calfornia, for the Respond- ents. Yelverton Cowherd and Kevin Johnson, Esq., of Las Vegas, Nevada, for Reynolds Electrical and Engineering Co., Inc. DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. I heard these consolidated cases in trial at Las Vegas, Nevada, on September 15, 1988. The matter arose as fol- lows: On January 19, 1988, Richard Tibbs, an individual, filed the charge docketed as Case 31-CB-7370 against Local Union No. 433, International Union of Bridge, Structural And Ornamental Iron Workers (Respondent Iron Workers or the Iron Workers). Following an inves- tigation the Regional Director for Region 31 of the Na- tional Labor Relations Board on March 4, 1988, issued a complaint and notice of hearing respecting that matter. On March 7, 1988, William Hagans, an individual, filed a IRON WORKERS LOCAL 433 (REYNOLDS ELECTRICAL) charge docketed as Case 31-CB -7532 against the Iron Workers. Following an investigation of that charge a consolidated amended complaint and notice of hearing was issued respecting Cases 31-CB-7370 and 31-CB- 7532. In January and February 1988 , the following individ- uals filed original and in some cases amended charges which were docketed with the case numbers apppearing after their names against Laborers International Union of North America, Local Union No. 872 , AFL-CIO (Re- spondent Laborers or the Laborers , and with Respond- ent Iron Workers collectively referred to as Respond- ents). John D. Bustamonte Herbert Jones, Jr. Stanley Wainwright Shelby Perry A. J. Marquez Coye King Charles Lovett Wallace Morgan Ronald L. Mulcahy John C. Shelton J. C. Weaver Wilbert Evans Paul D. Lebowsky Dennis S. Neilson Jack L. Pryor Michael E. McCoy Thelma L. Washington Laura W. Chilton David Treiber Louis South Robert Banegas Mary Ann Kelly Gerald Chavez Richard H. Wailer Philip Weisenberger Rodney Mllls Danny Salazar Willie Salazar Richard C. Foster Abel Apodaca Sultan Pearson Mike V. Martinez Bernable Salaiz Craig Thompson Billy R, Bradley Thomas R. Gregg Terry Jackson Pete Martinez Leo B. Sage Gardner Simpson Billy G. Henderson Richard S.' Horne Lorenzo'Martinez John H. Erb Leon W. Marsing Louis Romero James O. McCurdy Dan L. Stoddard Case 31-CB-7361 Case 31-CB-7371 Case 31-CB-7372 Case 31-CB-7381 Case 31-CB-7382 Case 31-CB-7388 Case 31-CB-7389 Case 31-CB-7390 Case 31-CB-7391 Case 31-CB-7392 Case 31-CB-7395 Case 31-CB-7397 Case 31-CB-7398 Case 31-CB-7404 Case 31-CB-7405 Case 31-CB-7406 Case 31-CB-7407 Case 31-CB 7408 Case 31-CB-7409 Case 31-CB-7h13 Case 31-CB-7419 Case 31-CB-7439 Case 31-CB-7440 Case 31-CB-7441 Case 31-CB-7442 Case 31-CB7443 Case 31-CB-7447 Case 31-CB-7448 Case 31-CB-7452 Case 31-CB-7453 Case 31-CB-7455 Case 31-CB-7458 Case 31-CB7459 Case 31-CB-7460 Case 31-CB-7464 Case 31-CB-7465 Case 31-CB-7469 Case 31-CB-7470 Case 31-CB-7471 Case 31-CB-7476 Case 31-CB-7477 Case 31-CB-7478 Case 31-CB-7479 Case 31-CB-7480 Case 31-CB-7484 Case 31-CB-7487 Case 31-CB-7489 Case 31-CB-7490 Darryl Hagle Phillip M. Price Don E. Slocum George G. Gonzales Michael L. Hawkins Jack Millage Charlie Stewart Jr. Bruce J. Wilson R. Don DeFord Pedro Ortiz Esrin Caad Abdon Viesca Case 31-CB7491 Case 31-CB-7492 Case 31-CB-7494 Case 31-CB-7495 Case 31-CB-7495 Case 31-CB-7497 Case 31-CB-7499 Case 31-CB-7505 Case 31-CB-7514 Case 31-CB-7507 Case 31-CB-7531 Case 31-CB-7537 39 Following an investigation, the Regional Director for Region 31 of the National Labor Relations Board on February 22, 1988 , issued an order consolidating cases, consolidated complaint, and notice of hearing. Thereaf- ter, on March 31, 1988, the Regional Director issued an order consolidating cases, amended consolidated com- plaint, and notice of rescheduled hearing consolidating all of the above listed cases against Respondent Labor- ers. Finally, on May 20, 1988, the Regional Director issued an order consolidating cases which order consoli- dated the outstanding complaints against Respondents. On August 12, 1988, the Acting Regional Director issued an Amended Order consolidating cases, second amended consolidated complaint and notice of rescheduled hearing further amending portions of the complaint involving Respondent Laborers. The complaints allege Respondents took various ac- tions against certain of their members, including the fining of employees of Reynolds Electrical & Engineer- ing Co., Inc. (the Employer) who crossed or worked behind' picket lines at the Employer's premises at the Nevada Test Site, the Research and Development Area or the Tonopah Test Range in the State of Nevada. The General Counsel contends that, although such conduct by Respondents might not otherwise be a violation of the National Labor Relations Act (Act), the conduct was in contravention of applicable no-strike clauses in relevant collective-bargaining agreements between Respondents and the Employer and therefore constituted a violation of Section 8(b)(1)(A) of the Act, Respondents did not deny the conduct attributed to them but argued, first, that the entire matter should be deferred to the arbitral process and, second, that the relevant collective-bargain- ing agreements do not address sympathy conduct. There- fore, argue Respondents, their actions were not in viola- tion of the Act. All parties were given full opportunity to participate at the hearing, to_introduce relevant evidence, to call, ex- amine , and cross-examine witnesses, to argue orally, and to file posthearing briefs. On the entire,record, including oral argument from the General Counsel and posthearing briefs from the General Counsel, Respondents and the Employer" and my obser- 1 Reynolds Electrical & Engineering Co, Inc. was granted mtervenor status based on its bemg party to the relevant collective -bargammg agree- ments 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vation of the witnesses and their demeanor I make the following2 FINDINGS OF FACT 1. JURISDICTION The Employer has at all times material been a Texas state corporation with an office and place of business in Las Vegas, Nevada, where it is engaged in the business of providing construction, maintenance, and operational support to the United State Department of Energy at the Nevada Test Site and at other locations. The Employer in the course of conduct of its business operations annu- ally purchases and receives in the State of Nevada goods and services valued in excess of $50,000 directly from suppliers located outside the State. There is no dispute, and I find, that the Employer has been at all times mate- rial an employer engaged in commerce and in a business affecting commerce within the meaning Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Respondents are now, and each of them is, labor orga- nizations within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Admitted Conduct of Respondents 1. Respondent Iron Workers The parties stipulated that at relevant times the Iron Workers have represented the Employers' iron worker employees and have been a party to a collective-bargain- ing agreement with the employer entitled Project Labor Agreement Elor Construction. The contract is effective by its terms from June 1, 1985, until June 1, 1990. Charg- ing Parties Tibbs and Hagans are members of and are represented by the Iron Workers and are covered by the agreement. Commencing in late August 1987 and continuing at all times material, Amalgamated Transit Union Local 1225 established a picket line at the Nevada Test Site in fur- therance of a labor dispute it had with the Las Vegas- Tonopah-Reno Stage Lines, an employer providing bus service to and from the Nevada Test Site. Commencing in September 1987 and continuing until January 22, 1988, Culinary Workers Union No. 226 established a picket line at the Nevada Test Site in furtherance of a labor dis- pute it had with the Employer. Believing that Tibbs and Hagans crossed the picket lines described above, the Iron Workers on December 11, 1987, initiated and prosecuted interunion disciplinary proceedings against Tibbs and, on or above November 10, 1987, initiated and prosecuted in- terunion disciplinary proceedings against Hagans. 2 As a result of the pleadings and stipulations of the parties there were very few disputes of fact. Where not otherwise noted the following find- ings are based on the pleadings and stipulations or on unchallenged docu- ments and/or testimony. 2. Respondent Laborers The Laborers represents the Employer's employees in a project construction unit, a maintenance unit, and a tunnel unit. Each unit is covered by a collective-bargain- ing agreement. All the work covered by these agree- ments is at the Nevada Test Site, the Tonopah Test Range, or in the Las Vegas area. In addition to the picketing activity described supra, the Laborers established picket lines at the Nevada Test Site on or about October 6 and continued picketing through October 23, 1987, in support of its dispute with the Employer regarding a contract for the maintenance unit . The individuals listed below were members of the Laborers in either the construction or tunnel bargaining units, but not in the maintenance unit, and crossed at least one of the three picket lines described above. In or about late December 1987 or January 1988, the Laborers by letter informed each of the below-listed employees of the Employer that interunion charges had been filed against the employee for crossing and/or working behind the Laborers' picket line at the Nevada Test Site and/or the Tonopah Test Range established in connection with the strikes described above and informed each listed em- ployee that a hearing and a trial date had been scheduled for a specified date in January 1988. The Laborers by letters dated on or about January 30, 1988, informed each of the listed employees that the Union's trial board had found the individual guilty of crossing the picket line and that the trial board had fined the individual 50 percent of his or her base wages for all hours worked during the period the Laborers had maintained the picket line. The individuals were: John D . Bustamonte Stanley Wainwright Michael McCoy Charles Lovett J. C. Weaver Ronald L. Mulcahy John H. Erb Robert Banegas Charles O. McCurdy Richard H. Waller Philip M. Price Danny Salazar Charles Stewart Jr. Sulton Pearson Richard C. Foster Billie R. Bradley Terry Jackson Jack Millage Thomas R. Gregg Pedro Ortiz Herbert Jones Jr Jack Pryor A.J. Marquez Laura W. Chilton Coy E. King Billie G. Henderson Lewis South Lewis Romero Rodney Mills Michael L. Hawkins Abel Apodaca Dennis S. Neilson Bernable Salazar Richard S. Home George G. Gonzalez Leo B. Sage David Treiber R. Don DeFord Wallace Morgan Shelby Perry John C. Shelton Gardiner Simpson Wilbert T. Evans Leon W. Marasing Mary N. Kelly Dan L. Stoddard Philip Weisenberger Don E. Slocum Willie Salazar Paul D. Lebowsky Mike V. Martinez Craig Thompson Lorenzo Martinez Pete Martinez Bruce J. Wilson Esrin Caad IRON WORKERS LOCAL 433 (REYNOLDS ELECTRICAL) 41 Gerald Chavez Abdon Viesca Darryl Hagle Further, on or about June 25, 1988, the Laborers pre- vented Charging Party Terry Jackson from engaging in internal union activities because of the activities de- scribed above. Finally, by letter, dated March 21, 1988, the Laborers informed Marquiz that the fine imposed upon him was to be paid in full on or before May 31, 1988, or his union dues from June 1988 and subsequent months would not be accepted until the fine was paid. Article VIII of the Uniform Local Union Constitution of the Laborers International Union of North America, which is part of the Laborers internal rules, provides in part: Section I It is hereby agreed by the UNION that there will be no strikes, stoppages of work, or slowdowns of the CONTRACTOR'S operations during the terms of this AGREEMENT. Section II It is hereby agreed by the COMPANY there will be no lockouts during the term of this agreeement. Section III Any violation of Section I of this ARTICLE shall not be subject to the provisions of [the applica- ble] grievance and arbitration procedure. Section 5 The monthly dues are due on the first day of the month and unless paid on or before the last day of the following month, the member shall be subject to be suspended by the INTERNATIONAL UNION without notice. Section 7 The readmission fee for persons who are suspend- ed for non-payment of dues, assessments or fines to the LOCAL UNION and who remain suspended for a period of less than one year, shall be the amount of such assessments or fines or eight percent (8) of the initiation fee for each month during which the member was suspended plus the current dues. In no case shall the readmission fee be greater than the initiation fee. Once the member has been suspended for default- ing on the payment of dues, as herein provided, the date of suspension referred to this SECTION shall be the first day after the month for which the mem- ber's dues were last paid. Section 8 Persons in arrears shall have no right to attend meetings nor any other rights except the right to be readmitted in accordance with the above SEC- TION. If a member becomes suspended by reason of his own conduct , he can only be admitted through the LOCAL UNION of which he was a member when suspended . Readmitted members shall be considered new members from the date of their readmission. B. Applicable Collective-Bargaining Language, History, and Practice 1. Relevant language The collective-bargaining agreements in force during relevant times contained the following language respect- ing strikes and lockouts. 2. Bargaining history and practice The quoted contract language has been carried for- ward in the various collective-bargaining agreements be- tween the parties in apparently unchanged form since the 1965 bargaining. At no time since that negotiation cycle have Respondents or the Employer sought to modify the quoted language. The General Counsel called as a wit- ness Kevin Efroynson, who served as the Employer's General Counsel from 19,64 through 1976. Efroynson tes- tified at some length regarding contract negotiations be- tween the parties and, in particular, the origin of the no- strike language. While subject to vigorous cross-examina- tion, Efroyson testified without contradiction that the no-strike language was introduced at the behest of man- agement representatives during the 1965 bargaining, that the language was expressly intended to address both pri- mary and sympathy strikes and that the unions was spe- cifically informed of that fact in the 1965 bargaining. Evidence was also introduced that since 1965 there have been various strikes at the facilities at issue herein with occasions where picket lines established by other unions were honored by employees working under the contracts in question and other occasions when picket lines were not honored. So, too, evidence was intro- duced that on occasion the Employer has asserted the quoted language in the collective-bargaining agreements against unions whose members were honoring picket lines but that the Employer has never initiated legal action against a union in such situations. C. Analysis and Conclusions 1. The deferral issue Counsel for Respondents argues that the question of the breadth of the no-strike clause in the collective-bar- gaining agreements should be determined by an arbitra- tor under the grievance and arbitration provisions of the contracts. As a consequence Respondents argue the entire matter should be deferred to the arbitration proc- ess. The Charging Party and the General Counsel op- posed deferral arguing: (1) that an arbitration has no au- thority to rescind internal union discipline, (2) that the grievance and arbitration clauses of the contracts do not apply to the no-strike clause by the explicit language of section 3, quoted supra, and (3) that important policy 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD considerations underlay the interpretation of a sympathy strike clause which transcend the interpretative powers of the arbitrator. In an eloquent martialing of case au- thority, the General Counsel and the Charging Party filed briefs specifically limited to the deferral question. The General Counsel cites Electrical Workers IBEW Local 901 (Ernest P. Breaux Electrical), 220 NLRB 1236 (1975), and Sheet Metal Workers Local 17 (George Koch & Sons), 199 NLRB 166 (1972), for the proposition that the lawfulness of union fines is not an appropriate subject for deferral. In Communications Workers Local 1197 (Western Electrical), 202 NLRB 229 (1973), the administrative law judge with Board approval refused to defer to the griev- ance and arbitration processs the issue of whether or not a union's disciplining its members for refusing to partici- pate in an unprotected sympathy strike violated Section 8(b)(1)(A) of the Act. Addressing the question of the de- ferrability of issues the rights of union members, the General Counsel cites Longshoremen IL WU Local 6 (As- sociated Food Stores), 210 NLRB 666 (1974), and Retail Clerks Local 1179, 211 NLRB 84 (1974), for the proposi- tion that cases evaluating individual member rights are not deferrable to the grievance and arbitration process. See also Sheet Metal Workers Local 208 (Paul Mueller), 278 NLRB 638 (1986). In agreement with the General Counsel and the Charging Party and on the basis of the authorities cited I shall not defer this matter. 2. The Union's conduct as a violation of Section 8(b)(1)(A) of the Act a. The basic law This is a case involving internal union discipline and the reach of Section 8(b)(1)(A) of the Act. The back- ground case law is not in dispute. Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a union "to restrain or coerce . . . employees in the exercise of the rights guaranteed in Section 7 of the Act." The proviso to Section 8(b)(1)(A) provides that the section "shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." In Scofield v. NLRB, 394 U.S. 423 (1969), the Court stated at 430: Section 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has im- bedded in the Labor Laws, and is reasonably en- forced against union members who are free to leave the union and escape the rule. This entitlement is not without limit, however. The Board in Operating Engineers Local 39 (San Jose Hospital Center), 240 NLRB 1122 (1979), found a violation of Section 8(b)(1)(A) of the Act when a union took internal union action against members in contravention of an am- nesty agreement. When a union's internal discipline is ap- plied to members because they refuse to honor the picket line of other labor organizations, the Board has found violations of Section 8(b)(1)(A) if a contract bars honor- ing the line. See, e.g., United Mine Workers District 50, Local 12419 (National Grinding), 176 NLRB 628 (1969), and Food & Commercial Workers Local 1439 (Rosauer's Supermarkets), 275 NLRB 30 (1985). The Board has dis- missed such allegations if it determines that the no-strike clause does not apply to sympathy strikers See, e.g., Ma- chinists Local 284, 190 NLRB 208 (1971). Since there is no doubt that Respondents' internal union discipline against its members, as described above, occurred be- cause Respondents believed their employee-members were crossing the picket lines of other labor organiza- tions, the applicability of the contract language quoted supra is controlling of the result herein.3 The Board in Indianapolis Power Co., 273 NLRB 1715 (1985), revd. and remanded 797 F.2d 1027 (D.C. Cir. 1986), reaffd. 291 NLRB 1039 (1988), overturned prior Board precedent and held that broad no-strike clauses bar employees from honoring stranger picket lines unless extrinsic evidence indicates this was not the intended effect of the language. In Food & Commercial Workers Local 1439 (Rosauer's Supermarket), supra, the Board in considering the breadth of a no-strike clause in a collec- tive-bargaining agreement stated at 30: Nothing in the contract suggests an intent to create an exception for sympathy strikes. Nor does the judge's discussion of the parties bargaining history establish that the parties intended to exclude sympa- thy strikes. We therefore hold that the Respondent clearly and unmistakeably waived meat employees' right to engage in sympathy strikes. Accordingly, the Respondent violated Section 8(b)(1)(A) by threatening to discipline members who refused to participate in the sympathy strike. Turning to the instant contractual language, it is clear that the no-strike provisions, quoted in full supra, on their face contain no reference to sympathy strikers. Fur- ther, without going into detail, the unchallenged testimo- ny of Efroynson was that the contract language in ques- tion was proposed by the Employer in an effort to reduce the disruption caused by strikes of all types and was explicitly intended to apply to all types of strikes, both primary and sympathy, and to encompass both stranger and unit employee picketing. Thus the instant contract clauses apply to the picket lines involved herein. This being so, there is little question under current Board law that Respondents' actions as described above were taken to force member noncompliance with the collec- tive-bargaining agreements' terms and, on the basis of the cases cited supra, violate Section 8(b)(1)(A) of the Act and I so find. I do not find the fact that the who en- gaged in similar conduct Employer has not taken action against unions in the past who requires a contrary result. 3 The Laborers refusal to permit Terry Jackson to attend a union meet- ing and vote on a contract ratification proposal and the refusal to accept Marquiz' dues with the potential consequence of additional punishment would also be violations of Sec 8(b)(A) of the Act if the original disci- pline was in derogation of a contract clause. East Texas Motor Freight, 262 NLRB 868 (1982). IRON WORKERS LOCAL 433 (REYNOLDS ELECTRICAL) REMEDY Having found that Respondents violated Section 8(b)(1)(A) of the Act, I shall order them to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondents are, and each of them is, labor organi- zations within the meaning of Section 2(5) of the Act. 3. Respondent Iron Workers violated Section 8(b)(1)(A) of the Act by engaging in the following con- duct: a. On or about December 11, 1987, initiating and pros- ecuting interunion disciplinary proceedings against Charging Party Tibbs because he crossed a picket line, the honoring of which was prohibited by a valid no- strike clause in the collective bargaining agreement cov- ering Tibbs between Respondent Iron Workers and the Employer. b. On or about November 10, 1987 , initiating and pros- ecuting interunion disciplinary- proceedings against Charging Party Hagens because he crossed a picket line, the honoring of which was prohibited by a valid no- strike clause in the collective-bargaining agreement cov- ering Hagans between Respondent Iron Workers and the Employer. 4. Respondent Laborers violated Section 8(b)(1)(A) of the Act by the engaging in the following acts and con- duct at a time when they were signatory to valid collec- tive-bargaining agreements with the Employer which prohibited all strikes including sympathy strikes at the Employer's premises: a. On or about January 30, 1988, informing each of the individuals listed below that the Laborers trial board had found the individuals guilty of crossing a picket line and that the Iron Workers trial Board had fined the listed in- dividuals 50 percent of their base wages for all hours worked during the period the picket line was posted. John D. Bustamonte Stanley Wainwright Michael McCoy Charles Lovett J. C. Weaver Ronald L. Mulcahy John H. Erb Robert Banegas Charles O. McCurdy Richard H. Waller Philip M. Price Danny Salazar Charles Stewart Jr. Sulton Pearson Richard C. Foster Billie R. Bradley Terry Jackson Jack Millage Thomas R. Gregg Pedro Ortiz Herbert Jones Jr Jack Pryor A.J. Marquez Laura W. Chilton Coy E. King Billie G. Henderson Lewis South Lewis Romero Gerald Chavez Darryl Hagle Rodney Mills Michael L. Hawkins Abel Apodaca Dennis S. Neilson Bernable Salazar Richard S. Home George G. Gonzalez Leo B. Sage David Treiber R. Don DeFord Wallace Morgan Shelby Perry John C. Shelton Gardiner Simpson Wilbert T. Evans Leon W. Marasing Mary N. Kelly Dan L. Stoddard Philip Weisenberger Don E. Slocum Willie Salazar Paul D. Lebowsky Mike V. Martinez Craig Thompson Lorenzo Martinez Pete Martinez Bruce J. Wilson Esrin Caad Abdon Viesca 43 b. On or about June 25, 1988, preventing Charging Party Terry Jackson from engaging in internal union ac- tivity because of the discipline described above. c. By letter dated March 21, 1988, informing Charging Party Marquiz that the fine imposed upon him as de- scribed above must be paid in full on or before May 31, 1988, or his union dues for June 1988 and subsequent months would not be accepted. 5. The unfair labor practices described above are unfair labor practices within the meaning of Section 2(2), (6), and (7) of the Act. [Recommended Order omitted from publication.]