Local 30, Longshoremen

National Labor Relations Board - Board Decisions

May 4, 1976

223 N.L.R.B. 1257 (N.L.R.B. 1976)

LOCAL 30, LONGSHOREMEN 1257
Local 30, International Longshoremen's and
Warehousemen's Union (U.S. Borax and Chemical
Corporation) and Terry R. Livingston. Case 31-
CB-1835
May 4, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On January 14, 1976, Administrative Law Judge
Herman Corenman issued the attached Decision in
this proceeding. Thereafter, General Counsel, Re-
spondent, and Charging Party filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions I of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Local 30, International
Longshoremen's and Warehousemen's Union, Los
Angeles, California, its officers, agents, and represen-
tatives, shall take the action set forth in the said rec-
ommended Order.
proceeding on May 29, 1975, after a charge filed by Terry
R. Livingston, an individual, on March 18, 1975, and
served on the Respondent, Local 30, International
Longshoremen's and Warehousemen's Union, on March
19, 1975.' The complaint alleged that the Respondent vio-
lated Section 8(b)(1)(A) of the National Labor Relations
Act, as amended, by imposing a fine of $3,150 against Liv-
ingston on an unknown date because he crossed
Respondent's picket line at Borax's gate reserved for neu-
tral contractors engaged in construction work unrelated to
the normal operations of the Borax facility; also by the
threat of Respondent's attorney to sue Livingston on
March 6, 1975, to collect the fine; and by the filing of such
lawsuit on April 22, 1975. The Respondent duly filed its
answer on June 2, 1975, generally denying that it engaged
in any unfair labor practices although admitting that it
fined Livingston in the amount of $3,150 because he
crossed a picket line maintained by the Respondent from
June 15 to July 24, 1974, at the premises of the United
States Borax and Chemical Corporation and engaged in
gainful employment behind Respondent's picket line.
Respondent's answer further alleged three affirmative de-
fenses, (1) that these proceedings are time-barred by Sec-
tion 10(b) of the Act, (2) that Livingston had failed to ex-
haust intraunion remedies available, and (3) that the
Respondent was legally justified in imposing a fine against
Livingston, a member of the Respondent, after according
Livingston substantive and procedural due process.
Hearing in this matter was held before me at Los Ange-
les, California, on September 29 and 30 and October 1,
1975, at which all parties were present or represented. The
parties were afforded full opportunity to present relevant
evidence,. to examine and cross-examine witnesses, and to
argue orally on the record. Posthearing briefs filed by the
General Counsel, the Respondent, and the Charging Party
have been carefully considered.
Upon the entire record in this case, including my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
'Respondent and Charging Party have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an Administrative Law Judge's resolutions with
respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect . Standard Drv Wall
Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We
have carefully examined the record and find no basis for reversing his find-
ings.
The General Counsel excepts to the Administrative Law Judge's failure
to pass on allegations that Respondent violated Sec. 8 (b)(I)(A) by threaten-
ing legal action and by instituting a suit to collect the fine . We find it
unnecessary to pass on these allegations since , even if we found the viola-
tions as alleged , they would not affect the remedy.
DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN , Administrative Law Judge: The
General Counsel of the Board issued his complaint in this
1. THE BUSINESS OF THE EMPLOYER
U. S. Borax and Chemical Corporation, herein called
Borax, is a Nevada corporation with its principal office in
Los Angeles, California. It is engaged in the business of
mining, refining, manufacturing, and selling borate prod-
ucts and other chemicals. In connection with these opera-
tions, Borax owns and operates a refinery and open pit
mine in unincorporated territory in Kern County, Califor-
nia, near the community of Boron, California, herein called
the Boron facility. During the last calendar or fiscal year,
the Boron facility received gross revenues in excess of $1
million and purchased and received directly from sources
outside the State of California goods, materials, or prod-
' It was stipulated that the charge was received by Respondent on March
20. 1975 . Nevertheless . I find in accordance with the Board's Rules and
Regulations that the date of service of the charge is March 19, 1975.
223 NLRB No. 196
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ucts valued in excess of $50,000. Borax is now , and has
been at all times material herein , an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 30, International Longshoremen's and Ware-
housemen 's Union, herein called the Respondent, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent represents Borax's employees at the Bo-
ron facility . It struck Borax's Boron facility from June 14,
1974, to October 25, 1974. It picketed all entrances to the
plant from June 27 to July 23, 1974. Before the start of the
strike several contractors and their subcontractors were en-
gaged in new construction adding additional facilities to
the refinery . There were a number of entrances to the refin-
ery. Borax had reserved one gate , known as the "contrac-
tors' gate," to be used exclusively by these contractors,
their subcontractors , and all their employees and suppliers
for entrance to and exit from the refinery . During the en-
tire time of the strike Borax maintained a sign at the access
road to the contractors ' gate which read as follows:
Borax posted security guards at all entrances to the plant
on a 24-hour basis and when gates were not in use they
were locked . Louis Nannini , Borax 's engineering manager,
and James Conti, field engineer at the Boron facility, were
notified by the guards at the contractors' gate. When any-
one sought passage through that gate, either Nannini or
Conti would monitor the gate to assure that only properly
identified people entered the contractors' entrance. Guards
at the main gate would direct employees of contractors
connected with new construction to the "contractors'
gate."
I find that during the strike Borax reserved a gate known
as the "contractors' gate" to be used exclusively for con-
tractors engaged in new construction, their subcontractors,
employees of the contractors and subcontractors, and their
suppliers and through the use of security guards, identifica-
tion badges, and the personal intervention of Nannini and
Conti excluded Borax employees from the use of such
"contractors' gate" for ingress to or egress from the plant,
and assured itself that Borax employees would not use the
gate reserved for the contractors engaged in new construc-
tion and that the contractors engaged in new construction
would use only the contractors' gate for entrance to and
exit from Borax 's plant.'
B. The Picket Line at the Contractors' Gate Violated
Section 8(b)(4)(i)(ii)(B) of the Act
RESTRICTED
CONTRACTORS GATE
THIS ENTRANCE TO THE U.S. BORAX PLANT IS RESERVED FOR THE
EMPLOYEES, SUB-CONTRACTORS AND SUPPLIERS OF CONSTRUC-
TION CONTRACTORS WHO ARE NOT PERFORMING NORMAL PLANT
WORK OR OPERATIONS ON THE PREMISES . NO EMPLOYEE OF U.S.
BORAX IS PERMITTED TO USE THIS GATE. ALL U.S. BORAX EMPLOY-
EES ENTER AT THE MAIN GATE.
On June 27 , a telegram was sent by Borax to the Respon-
dent and the Building Trades Council for Kern County
reading as follows:
THIS IS TO ADVISE ALL OFFICERS, AGENTS AND EMPLOYEES OF
THE INTERNATIONAL LONGSHOREMEN 'S AND WAREHOUSEMEN'S
UNION AND LOCAL 30 OF THE INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S UNION INDIVIDUALLY, COLLECTIVELY.
AND AS REPRESENTATIVES OF CERTAIN EMPLOYEES OF THE U.S.
BORAX & CHEMICAL CORPORATION AT BORON , CALIFORNIA.
THAT THE ENTRANCES TO FACILITY LOCATED ON SUCHOW ROAD.
COMMONLY REFERRED TO AS THE "CONTRACTORS' ENTRANCE" IS
RESERVED AND SO DESIGNATED FOR THE EXCLUSIVE USE OF EM-
PLOYEES. SUBCONTRACTORS. AND SUPPLIERS OF CONSTRUCTION
CONTRACTORS OF U.S . BORAX & CHEMICAL CORPORATION. SUCH
CONTRACTORS ARE NOT PERFORMING WORK RELATED TO THE
NORMAL OPERATIONS OF THE COMPANY AND ARE NOT OTHER-
WISE INVOLVED IN THE LABOR DISPUTE CURRENTLY IN PRO-
GRESS AT THE FACILITY.
ALL EMPLOYEES OF THE U.S. BORAX & CHEMICAL CORPORATION
ARE PROHIBITED FROM USING THIS RESERVE ENTRANCE FOR
ANY PURPOSES WHATSOEVER AND MAY ONLY UTILIZE OTHER EN-
TRANCES TO THE PLANT. THE RESTRICTIONS ARE BEING AND
WILL BE STRICTLY ENFORCED.
It is clear, and I find , that the Respondent's picket line at
the "contractors ' gate" from June 14 to August 23, 1974,
was calculated to enmesh the employees of the neutral con-
tractors , with whom the Respondent had no dispute, in
Respondent's dispute with Borax , thereby violating Section
8(b)(4)(i) and (ii)(B ) of the Act, because such picket line
encouraged the employees of the neutral contractors to en-
gage in a concerted refusal to work , with an object of forc-
ing the independent contractors to cease doing business
with Borax. See Local 761, International Union of Electrical,
Radio & Machine Workers, AFL-CIO [General Electric
Company] v. N. L. R. B., 366 U .S. 667 ( 1961); Nashville
Building and Construction Trades Council, 172 NLRB 1138,
1140 (1968); United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local Union No. 60, AFL-CIO (Circle,
Inc.), 202 NLRB 99, 107 ( 1973); International Union, Unit-
ed Automobile, Aerospace and Agricultural Implement Work-
ers, Local 422 (W. L. Crow Construction Company), 192
NLRB 808 (1971).
2 On June 27. 1974 . the Kern County superior court enjoined the Respon-
dent from engaging in acts or threats of violence and limited the number of
pickets and strike activity . On June 18 , 1974, Borax filed charges with Re-
gion 31 of the Board alleging 8(b)(4) violations by the Respondent . On July
15. 1974 . the Acting Regional Director for Region 31 petitioned a U.S.
district court for a temporary injunction to enjoin the Respondent from
picketing the "contractors' gate." On July 23. 1974. the injunction was
granted and on that same date the Respondent discontinued picketing the
contractors' gate . On July 30, 1974, the Regional Director for Region 31 in
Case 3I-CC-508 issued a complaint alleging that the Respondent violated
Sec. 8(b)(4xi ) and (ii)(B ) of the Act by its conduct in picketing the contrac-
tors' gate . On November 19. 1974, a date after the strike ended , the charges
in 31-CC-508 were withdrawn and the complaint dismissed.
LOCAL 30, LONGSHOREMEN 1259
C. Terry R. Livingston
Terry R. Livingston was hired by Borax on February 20,
1974, as a maintenance department electrician . In keeping
with the provisions of a union-security clause in the collec-
tive-bargaining agreement between Borax and Respondent
requiring membership in the Respondent as a condition of
employment, Livingston on March 29, 1974, made written
application for membership in the Respondent. On that
same date , he applied for group insurance under the
Respondent 's insurance program for members and he was
given and accepted a membership card in the Respondent.3
Livingston continued working for Borax until June 14,
1974, when the Respondent struck Borax and began pick-
eting all entrances to the Boron refinery including the
"contractors' gate ." The Respondent continued picketing
all gates until July 23, 1974, when it discontinued picketing
the "contractors ' gate" pursuant to the injunction of a
United States district court, under Section 10(1) of the Act,
enjoining picketing at the "contractors' gate."
Livingston , who for some time had been a member of
IBEW Local 100, registered for work with the IBEW Local
428 hall at Bakersfield, California, on June 17, 1974, and
was on that same day dispatched to a job with Modern
Electric Co. at Bakersfield where he continued working as
an electrician until the end of June when he left because of
a strike at Modern Electric. Livingston was then dis-
patched to a job as electrician with Johnson-Peltier Electri-
cal Contractors who were subcontractors of other prime
contractors engaged in new construction at Borax 's refi-
nery at Boron. Livingston worked for Johnson-Peltier at
the Boron refinery in new construction from July 3 to Au-
gust 6 , 1974. During this time interval , Livingston used the
"contractors ' gate" exclusively in entering or leaving the
refinery. In fact, all Johnson-Peltier employees entered and
left the refinery in a convoy of vehicles led by the sheriff's
3 Counsel for Charging Party Livingston contends that the fine imposed
on Livingston is an unfair labor practice because Livingston was never noti-
fied by the Respondent that his application for membership had been ac-
cepted , nor was he ever sworn in as a member of the Respondent as provid-
ed for in the Respondent 's constitution . In this connection , it is noted that
the complaint issued by the General Counsel does not claim a violation
based on an allegation that Livingston was not a member of the Respon-
dent. On the contrary , the General Counsel's complaint alleges at par. 4(b)
that "at all times material herein , Livingston was a member of the Respon-
dent ." Moreover, the only claim by the General Counsel placed in issue by
the pleadings was the contention that the fine imposed on Livingston consti-
tuted a violation of Sec . 8(b)(I)(A) of the Act because it was imposed on
Livingston for crossing an illegal picket line at the neutral "contractors'
gate." Aside from the fact that a violation is not claimed by the General
Counsel on the ground that a fine was imposed on a "non -member ." I
would find , contrary to the contention of counsel for the Charging Party,
that Livingston became a member of the Respondent pursuant to the provi-
sions of the union -security clause contained in the collective-bargaining
agreement . Although there is no evidence that Livingston received a formal
notice of acceptance into the Respondent, his acceptance by the Respon-
dent was clearly demonstrated by the issuance to him of a membership card
and group insurance . As in the case of several hundred other members of
the Respondent , the Respondent did not require Livingston to take the
"Oath of Obligation" provided by Respondent 's constitution . This oath was
for the Respondent's benefit and there is no reason why Respondent could
not waive such a requirement by not insisting that Livingston or the hun-
dreds of other members go through such a formality.
car, which also included the employees of all contractors
engaged in new construction in the refinery. Until the pick-
eting of the "contractors' gate" ceased on July 23, 1974, the
convoy would pass through the Respondent's picket line
which was placed at the access road leading to the "con-
tractors' gate."
Livingston quit his employment with Johnson-Peltier on
August 6, 1974, to return to work at Modern Electric in
Bakersfield and continued working for Modern Electric
until August 15, 1974, when he learned from the personnel
director at Borax that if he first resigned from the Respon-
dent, he could return to work with Borax without fear of
union discipline being taken against him. Consequently, on
August 15, 1974, Livingston notified the Respondent in
writing as follows:
Effective this date, August 15, 1974 I, Terry Living-
ston, am resigning from the I.L.W.U. #30 Union. I'm
no longer going to belong to this union for any pur-
pose.
Thank you
Terry Livingston
On August 16, 1974, Livingston returned to work for
Borax, and continued with Borax until June 4, 1975. With
his resumption of work for Borax in August 16, 1974, Liv-
ingston began using the main gate with other Borax em-
ployees.
On September 1, 1974, Livingston received a letter dated
August 30, 1974, from Eugene W. Pope, secretary-treasurer
of the Respondent notifying Livingston that he was being
charged for violations of article XI, section 2, paragraphs
(b) and (f) of the Respondent's constitution. The letter fur-
ther recited that, although Livingston had terminated his
membership with the Respondent, the charges covered the
period of time while he was a member of the Respondent.
Livingston was informed further by the August 30 letter
that he would be tried by the executive board as a trial
committee on Wednesday, September It, 1974, at 8 p.m.
and that "Failure to appear can result in conclusive proof
of guilt."
According to minutes prepared of the proceeding before
the trial committee on September 11, 1974, before whom
Livingston did not appear, it heard evidence from two em-
ployees,4 and on the basis of their testimony, met in execu-
tive session on that same date and by unanimous concur-
rence found Livingston guilty of the charges presented
against him, namely:
(1) Engaging in conduct detrimental to the welfare
and interests of the local membership and the ILWU.
(2) Engaging in the breaking of a properly and le-
gally authorized strike of this local; and that
(3) By his refusal to appear at this committee, he
has demonstrated "conclusive proof of guilt."
The trial committee also by unanimous concurrence
found "That the charges substantiated by the witnesses
4 One of the Borax employees testified that on two occasions between
July 23 and August 15, 1974, he observed Livingston crossing the
Respondent 's picket line at the main gate . Another Borax employee testified
that he saw Livingston entering the plant on or about July I through the
construction gate in a Peltier truck.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presented before this committee were for the period of time
that Mr. Livingston was a member of this Local."
The trial committee unanimously agreed that a fine of
$3,150 be imposed against Livingston for the violations
found.
Under date of September 13, 1974, Respondent's secre-
tary-treasurer, Pope, sent a certified letter to Livingston
which read as follows:
The decision and recommendations of the Trial Com-
mittee as regards the charges presented against you
(dated August 29, 1974) will be presented to the regu-
lar membership meeting on Tuesday, September 17,
1974, at 7 p.m. You may be present at the meeting.
Following the decision of the membership, I will noti-
fy you of the results.
Livingston testified he received the September 13 letter
but did not attend the September 17, 1974, membership
meeting as he feared violence would be directed against
him. He further testified that the September 13, 1974, letter
was the last communication he received from the Respon-
dent with respect to the outcome of the charges made
against him, until he received a letter dated March 6, 1975,
from Mr. Jay D. Roth, an attorney representing the Re-
spondent, requesting payment of the $3,150 fine. This
prompted him to file the charge in this case on March 18,
1975.
Respondent's secretary-treasurer, Pope, testified, howev-
er, that on the late night of September 17 or early morning
of September 18 he personally deposited in the mail at the
post office in Boron a letter dated September 18, 1974,
which he, himself, personally typed. This September 18 let-
ter recited that the membership at its September 17 evening
meeting had found Livingston guilty of the charges made
against him, namely: (a) engaging in conduct detrimental
to the welfare and interests of the Local membership of
ILWU (sec. 2(b) ); (b) engaging in the breaking of a prop-
erly and legally authorized strike of this Local or any Local
affiliated with the ILWU (sec. 2(f) ); and by Mr.
Livingston's absence without satisfactory excuse, Mr. Liv-
ingston shall be considered conclusively guilty under sec-
tion 3(e), article XI of the current bylaws and constitution
of this Local. The membership concurred in the trial
committee's recommendation that a fine of $3,150 be im-
posed upon Livingston. The letter further recited that Liv-
ingston could appeal the membership's decision by writing
to the International secretary within 15 days.
D. Does Section 10(b) of the Act Bar a Finding that the
Picket Line at the "Contractors' Gate" Violated Section
8(b)(4)
During the course of the hearing, the Respondent, rely-
ing on Section 10(b) of the Act, objected to the receipt of
any evidence reflecting on the illegality of the
Respondent's picket line at the "contractors' gate," and it
moved that the complaint be dismissed as time-barred by
Section 10(b). The Respondent's objections were overruled
and the motion to dismiss denied without prejudice to its
renewal at the close of the hearing.
The Respondent argues that these proceedings are
barred by Section 10(b) of the Act because evidence of the
nature of the picketing at the "contractors' gate" which
underlies a determination whether the fine imposed on Liv-
ingston violated Section 8(b)(1)(A) of the Act requires an
initial determination that such picketing violated Section
8(b)(4) of the Act. The Respondent argues that because the
picketing of the "contractors' gate" ceased on July 23,
1974, a date more than 6 months prior to the filing and
service of the unfair labor practice charge filed by Living-
ston with Region 31 of the Board on March 18, 1975, Sec-
tion 10(b) of the Act precludes any inquiry as to whether
the picket line at the "contractors' gate" violated Section
8(b)(4) of the Act. I have concluded that the Respondent's
reliance on Local Lodge No. 1424, International Association
of Machinists, AFL-CIO, et a!. [Bryan Manufacturing Com-
pany]. v. N.L.R.B., 362 U.S. 411 (1960), to support its posi-
tion is misplaced. In Bryan, supra, the Supreme Court held
that Section 10(b) barred the finding of an unfair labor
practice in the enforcement and maintenance of a union-
shop contract made with a minority union where the
charge was not filed until more than 6 months after execu-
tion of the contract. In Bryan, supra, the violation occurred
with the execution of the contract, and a charge could have
been filed immediately and thereafter at any time for an
extended period of 6 months. But in the instant case, the
unfair labor practice complained of is not the illegal picket
line, but the fine levied against Livingston. A charge could
not be filed until a fine was levied. Viewing the
Respondent's position realistically, if that position were to
be upheld, all labor organizations wishing to fine a union
member for refusing to cross an illegal picket line could
wait 6 months or more after the picketing ceased before
imposing the fine and thereby successfully assert the 10(b)
bar.
Section 10(b) does not forbid the consideration of evi-
dence relevant to a determination as to whether unfair la-
bor practices occurred during the 6-month period, even
though the evidence considered is older than 6 months.
The evidence may be used as background to throw light on
the conduct alleged as an unfair labor practice. Axelson
Mfg. Co., 88 NLRB 761 (1950); N.L.R.B. v. General Shoe
Corporation, 192 F.2d 504 (C.A. 6, 1951). In Bryan, supra
the Supreme Court said in its opinion [Justice Whittaker's
dissent at 436, quoting from Federal Trade Commission v.
Cement Institute, 333 U.S. 683]:
... testimony of prior or subsequent transaction,
which for some reason are barred from forming the
basis for a suit, may nevertheless be introduced if it
tends reasonably to show the purpose and character of
the particular transactions under scrutiny.
In Local 1101, Communication Workers of America,
AFL-CIO (New York Telephone Company), 208 NLRB 267
(1974), the Board held that Section 10(b) does not preclude
consideration of the legality of a strike for the purpose of
determining the legality of union fines imposed on strike-
breakers, where the fines were imposed more than 6
months after the strike. Among other things, the Board set
forth its rationale as follows in Local 1101, supra at 268:
LOCAL 30, LONGSHOREMEN
The gravamen of the complaint is that the fines re-
strained and coerced employees in violation of the
Act, and all that must be established is that the fines
contravened the employees' Section 7 rights. In order
to prove that allegation, pre-Section 10(b) evidence
may be introduced to explain the true nature of the
fines.
In Local 1104 and Local 1101, Communication Workers of
America, AFL-CIO [New York Telephone Company] v.
N.L.R.B., 520 F.2d 411 (C.A. 2, 1975), the court in enforc-
ing the orders of the Board, like the Board, found that
Local 1101 violated Section 8(b)(1)(A) where the Union
denied membership to employees on August 18, 1972, be-
cause they had not participated in an illegal strike (viola-
tive of Section 8(d)) that ended February 18, 1972. The
Union contended that the case was barred by Section 10(b)
because the charge filed with the Board on February 2,
1973, was more than 6 months after the strike ended. The
Union claimed that, since it would not have been unlawful
to exclude the strikebreakers from union membership had
the strike not been an unfair labor practice, the case falls
into the second category described in Bryan,. supra. Distin-
guishing Bryan, supra, the Second Circuit Court of Appeals
said at 416:
The significant factor differentiating that case [Bryan]
from this [New York Telephone Co.] is that there the
employee could have filed her charge at any time after
the agreement went into effect. Here, however, it was
only after the strikebreakers had been refused mem-
bership that they could even have considered filing a
charge. The strike ended on February 18, and the de-
nials of memberships were announced on August 18,
six months to the day after the strike ended ... .
Thus, to sustain the local's position here would be to
hold that, although an unfair labor practice occurred,
there never was a time-or at most only a few hours-
when a timely charge could have been filed. Surely the
Court in Local Lodge No. 1424 [Bryan Mfg. Co.], 362
U.S. 411, did not intend such a result. "It does not
seem reasonable to argue that the statutory limitations
period begins to run"-or may even run out-"before
the violation occurs." . . . We therefore hold that the
six-month time period of § 10(b) began to run on Au-
gust 18 , 1972, the date on which the strikebreakers
were denied union membership, and we sustain the
Board's conclusion that this denial constituted an un-
fair labor practice under §8(b)(1)(A).
E. The Fine Contravenes National Labor Policy and Is Not
Permitted by the Proviso to 8(b)(1)(A)
The Respondent takes the position that the proviso to
Section 8(b)(1)(A) S privileges labor organizations to fine
members for violating union authorized strikes or rules and
cites N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175
(1967), and Scofield et al. v. N.L.R.B., 394 U.S. 423 (1969),
5 The proviso states: "That this paragraph shall not impair the right of a
labor organization to prescribe its own rules with respect to the acquisition
or retention of membership therein."
1261
in support of its position . I must agree with the statement
made by the Supreme Court in Scofield, supra at 430, as
follows:
[S]ection 8(b)(1) leaves a union free to enforce a prop-
erly adopted rule which reflects a legitimate union in-
terest, impairs no policy Congress has imbedded in the
labor laws, and is reasonably enforced against union
members who are free to leave the union and escape
the rule. [Emphasis supplied.]
The illegality in the Respondent's fine imposed on Liv-
ingston in this case is that it has impaired a policy Congress
had embedded in the labor laws, namely the prohibition of
the secondary boycott within the meaning of Section
8(b)(4) of the Act. The Second Circuit in Local 1101 Com-
munication Workers of America (New York Telephone Com-
pany), supra, dealt with the scope of the proviso to Section
8(b)(I)(A). The Court held that a union violated Section
8(b)(I)(A) in denying membership and by invoking the
agency shop clause against employees because they de-
clined to participate in an illegal strike (illegal because it
did not comply with the notice provisions of Section 8(d)
of the Act). The court said at 415:
Under §8(b)(1)(A), a union may not restrain or
coerce employees in the exercise of rights protected by
§7, 29 U.S.C. § 157. Clearly the strikebreakers were en-
gaged in protected activity when they declined to par-
ticipate in the strike. Local 1101 maintains that it was
justified in denying them membership by the proviso
to §8(b)(1)(A), permitting unions to establish rules re-
garding the acquisition or retention of membership.
But the strike itself was unlawful under §8(d) . . . and
it is by now well established that the proviso to
§8(b)(1)(A) will not benefit a union in a case where its
rules frustrate national labor policy. Scofield v.
N. L. R. B., 394 U.S. 423, 429 . . . (1969); N. L. R. B. v.
Communications Workers of America, AFL-CIO, Local
1170 (Rochester Telephone), 474 F.2d 778, 782 (C.A. 2,
1972). . . . It [Local 1101] may not invoke the need to
maintain loyalty in its ranks to exclude those who
could have demonstrated their allegiance only by par-
ticipating in unlawful activity. [Footnotes omitted.]
Applying the principles announced in the Communica-
tion Workers cases above to the factual situation in the
instant case it is clear that the Respondent's fine against
Livingston was not privileged by the proviso to Section
8(b)(1)(A) for the simple reason that its purpose was to
discipline Livingston for refusing to honor an illegal picket
line which violated Section 8(b)(4) of the Act. The fine did
not meet one of the criteria announced in the Supreme
Court's decision in Scofield, supra, namely, that it "reflects
a legitimate union interest, and impairs no policy Congress
has embedded in the labor laws." [Emphasis supplied.] The
fine restrained and coerced Livingston in his Section 7
right not to engage in unprotected conduct.
F. The Effect of the Withdrawal of the Charge in Case 31-
CC-508
The Respondent contends that because the 8 (b)(1)(A)
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation in the instant case turns on the asserted illegality
of the picket line at the "contractors' gate" and such pick-
eting ceased on July 23, 1974, and because the charge in
Case 31-CC-508 was withdrawn on November 19, 1974, it
follows that the charge in the instant case filed on March
18, 1975, more than 6 months after the picketing at the
"contractors' gate" ended on July 23, 1974, is barred by
Section 10(b) of the Act. I would agree that the charge in
3l-CC-508, which was withdrawn , could not be revived in
March 1975 because of the 10(b) bar. However, the charge
in the instant case does not allege an 8(b)(4) violation relat-
ing to an asserted illegal fine imposed in September 1974.6
It is true that the nature of the fine requires the scrutiny of
the Respondent's picket line in June and July 1974 at the
"contractors' gate," but as I have pointed out earlier in this
Decision , evidence concerning the nature of the
Respondent's picket line is essential for what light it throws
on the legality or illegality of the fine. Contrary to the
Respondent 's contention, I find that the withdrawal of the
charge in Case 31-CC-508 in no way operates to bar the
charge filed herein under Section 10(b) of the Act.
G. Did Livingston Receive the September 18, 1974, Fine
Letter, and If So When?
As I have recited earlier in this Decision Respondent's
Secretary-Treasurer Pope testified that on September 17 he
prepared the letter dated September 18, 1974, notifying
Livingston of the fine . He further testified that he mailed
the letter on September 18, 1974. Pope was unable to name
the other letters he mailed on September 17 or 18, and he
admitted that he was fatigued from working at his union
duties about 20 hours daily during each day of the strike.
Respondent 's president , Kenneth Gordon , testified that
from his observation over a 5-year period he noted that
letters mailed at Boron would reach California City (where
Livingston resides) the next day. But Mr. John Hallahan,
industrial relations manager for Borax, disputed Gordon's
observation that there was regular I-day mail service be-
tween Boron and California City, and in this connection
credibly testified that , in the course of 1974 negotiations,
Respondent 's bargaining committee complained that the
employees ' paychecks mailed to their homes from Boron in
the desert area of cities surrounding Boron, including Cali-
fornia City, were as much as 7 days late . Livingston testi-
fied he never received the September 18 fine notification
letter, and did not know he had been fined until he re-
ceived the March 6, 1975, letter from Attorney Roth re-
questing payment of the $3,150 fine or face a lawsuit for
collection.
I found Secretary -Treasurer Pope to be a conscientious
and truthful witness, and I credit his testimony that he
mailed the September 18 letter at the Boron post office on
the early morning of September 18. With respect to the
question whether Livingston received the September 18
6 For purposes of determining the date on which a fine is imposed upon a
union member , the Board looks to the date on which the person fined
receives actual or constructive notice of the fine . Wisconsin River Valley
District Council (Skippy Enterprises, Inc.), 211 NLRB 222 (1974); Alabaster
Lime Co., Inc., 194 NLRB 1116. 1118 (1972).
fine notification letter, I was not fully convinced that he
had not at some time received it or become aware of the
fact that he had been fined. Initially, it is noted that when
shown the September 18 letter (Resp. Exh. 8), which fully
covers two pages of single-spaced type, Livingston, almost
instantly denied even having received such a letter before
he could have had a chance to read hardly more than the
first two or three lines of the letter. In apparent contradic-
tion of this denial, Livingston on cross-examination testi-
fied that in his July 28, 1975, written, sworn interrogatory
answer in a pending lawsuit in the municipal court in the
action filed against him by the Respondent, he believed
that, in answers to the interrogations, that he did state that
he did receive notice by letter from the Respondent of the
results of the trial. Livingston further testified on cross-
examination that he knew that the membership was going
to vote to accept or reject the $3,150 penalty imposed on
September 17. At this point in the cross-examination,
Livingston's testimony became evasive and confusing as
shown hereunder.
Q. (By Respondent's counsel) You knew that the
membership was going to vote to accept or reject the
$3,150 penalty imposed on you September 17; isn't
that right?
A. (By Livingston) I knew it, yes.
Q. Did you ever inquire from September 17, 1974
for the next six months as to what the membership
had done in this respect?
A. What would have been the point?
Q. Could you answer the question?
A. I did answer: What could have been the point?
Q. Is your answer, no, you did not make such in-
quiry?
A. I am saying, what would have been the point?
JUDGE: Answer the question. Let me interject a
question here. When did you first learn that this com-
mittee was recommending a fine of over $3,000
against you-the Trial Committee?
THE WITNESS: The amount of the fine?
JUDGE: Yes.
THE WITNESS: The first I learned of it was by letter
from Mr. Roth in March.
Further cross-examination beginning on page 284 of the
transcript:
Q. (By Respondent' s counsel ) You had no idea that
a fine penalty was going to the membership?
A. (By Livingston) All I am going to answer is what
I just referred to from here.
Q. Your answer is, no, you had no idea, whether
from there or any other source, is that right?
A. I'm not going to answer it, no. I realize when
you send letters like this, as I had stated in the previ-
ous other matter, that there would be a fine.
JUDGE: How did you know there would be a fine
there?
THE WITNESS: I didn't right here, no, Your Honor.
JUDGE: Did somebody tell you that the committee
had fined you?
THE WITNESS: No.
LOCAL 30, LONGSHOREMEN 1263
Q. (By Respondent 's counsel) Is it your testimony,
Mr. Livingston , that you never made any inquiry of
anyone in the Union as to the outcome of the trial, the
September II trial , in any respect?
A. No, it's not my testimony.
Q. You made such an inquiry?
A. I believe I talked to Mr. Lovett.
I agree with the argument of Respondent 's counsel that
the contradictory testimony of Livingston throws some
doubt on Livingston's testimony that he never received the
September 18 fine notification letter . Moreover , his testi-
mony that he saw no point in inquiring as to the penalty
imposed although he expected to be fined manifests an
indifference which normally would not occur . Viewing the
fact that the two employees he rode to work with , namely
Buckley and Trombley, after he returned to work at Borax
on August 16 , also had been fined and the further fact that
he, as a returning employee with Borax , was now once
again working with members of the Respondent , it seems
strange that he would not inquire about or be told about
the outcome of the Respondent 's disciplinary action
against him.
In any event the Respondent takes the position that the
September 18 letter , in the due course of the mail between
Boron and California City, must have been received by
Livingston on September 19, 1974.
1, Jones on Evidence, 6th Ed., §3:41 recites the following
rule on the receipt of mail:
A letter which is shown to have been properly
stamped , correctly addressed , and deposited in the
mail, is presumed by the courts to have been received
by the addressee in the due course of transmission by
post. . . . [where the presumption of delivery is creat-
ed] the burden is placed on the addressee to prove that
he did not receive it.
(Citing Dunlop v. United States, 165 U.S. 486, 41, 1 Ed. 799,
11 S.Ct. 906; Grade v. Mariposa County, 132 Cal. 75, 84,
p.117.) But the F. R. Evid. Rule 301 , 28 U.S.C.A. effective
July 1, 1975, Presumptious in General in Civil Actions and
Proceedings , provides:
In all civil actions and proceedings not otherwise pro-
vided for by Act of Congress or by these rules, a pre-
sumption poses on the party against whom it is direct-
ed the burden of going forward with evidence to rebut
or meet the presumption , but does not shift to such
party to burden of proof in the sense of the risk of
nonpersuasion , which remains throughout the trial
upon the party on whom it was originally cast.
Board cases which deal with the question of post deliv-
ery are S. Fredrick Sansone Co., 127 NLRB 1301-02
(1960); Thiele Tannery Co., 128 NLRB 19 (1960); Sears,
Roebuck & Company, 117 NLRB 522 (1957).
I have concluded , and I find , in accordance with
Respondent 's position, that the September 18 fine notifica-
tion letter was mailed on September 18. In view of the fact
that the letter went by regular mail and was not registered
or certified , I am unable to make any finding that the letter
was delivered on September 19, 1974 , particularly in con-
sideration of Industrial Relations Manager Hallahan's
credible and uncontradicted testimony that in the 1974 ne-
gotiations the Respondent complained that paychecks
mailed from Boron were being delayed in delivery to em-
ployees ' homes in California City and other desert cities as
much as a week late by the United States mail. Although I
do not find that the letter was delivered by the postman to
Livingston 's home on September 19, 1974, I am inclined to
the view that either by the September 18 letter or by some
other source , for example Buckley or Trombley, or other
Borax employees who were union members, Livingston
sometime after September 19, 1974, learned of the fine.
It appears that Livingston ignored the fine notice if he
received it inasmuch as he had a previous fine levied
against him for not picketing , but on this occasion took
action to thwart the impending lawsuit to collect the fine
threatened by Attorney Roth 's letter of March 6 , 1975, by
filing the unfair labor practice charge on March 18, 1975.
The Respondent asserts that Livingston 's testimony that
he did not receive notice of the fine should be rejected and
it should be held that Livingston received written notifica-
tion of the fine on September 19, 1974. In view of the un-
contradicted evidence of Hallahan that the Respondent
had complained that delivery was frequently more than I
day between Boron , the fact that the letter in any event was
incorrectly addressed , and the further testimony of Living-
ston that he never received the letter , I have concluded that
the Respondent has not met the burden of proof of its
contention that the letter was delivered September 19,
1974. Federal Rules of Evidence effective July 1, 1975.
G. Livingston's Charge Is Not Barred by Section 10(b)
But even if I were to find that the September 18 fine
notification letter was delivered at Livingston's home on
September 19, 1974 , I would find nonetheless that
Livingston's charge filed with Region 31 of the Board on
March 18, 1975 , and served by the Region on the Respon-
dent by registered letter on March 19, 1975 , was not time
barred by Section 10(b) of the Act. I make this finding
notwithstanding the fact , stipulated in the record , that the
charge mailed by Region 31 was received by the Respon-
dent on March 20, 1975.
In making this finding that the filing and service of
Livingston 's charge was timely and not barred by Section
10(b), I have adhered to the Board 's Rules and Regulations
and the provisions of the Act . Section 10(b) of the Act in
pertinent part provides as follows:
Provided, That no complaint shall issue based upon
any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person
against whom such charge is made . .. .
Section 102. 113 of the Board's Rules and Regulations
provides in pertinent part as follows:
The date of service shall be the day when the matter
served is deposited in the United States mail ..:. In
computing the time from such date , the provisions of
Section 102 .114 apply.
Section 102 . 114 provides in pertinent part as follows:
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In computing any period of time prescribed or al-
lowed by these rules, the day of the act, event, or de-
fault after which the designated period of time begins
to run is not to be included. The last day of the period
so computed is to be included, unless it is a Sunday or
a legal holiday ... .
Applying the provisions of Section 10(b) together with the
above-related Rules and Regulations of the Board, and ac-
cepting for purposes of this analysis that the September 18
fine notification letter was received by Livingston on Sep-
tember 19, 1974, the 6-month 10(b) period does not begin
to run until September 20, 1974, and ends at the close of
the day on March 19, 1975. The unfair labor practice
charge filed by Livingston with Region 31 of the Board on
March 18, 1975, was served on the Respondent on March
19, 1975, by "postpaid registered mail" (see G.C. Exh.
1(b) ). According to Section 102.113 of the Board's Rules
and Regulations , March 19, 1975, was therefore the date of
service of the charge. It follows therefore that even if the
Respondent's contention that the September 18 letter was
received by Livingston on September 19, 1974, is accepted,
the charge filed on March 18, 1975, and served by Region
31 on March 19, 1975, is timely and not barred by 10(b).
See Environmental Control Systems, 190 NLRB 594, fn 2
(1971); The Great Atlantic & Pacific Tea Company, 145
NLRB 361, 390 (1963); Hamilton News Company, 129
NLRB 770, 772-773 (1961); Motion Picture Screen Car-
toonists, 121 NLRB 1196 (1958); The Baltimore Transfer
Company, 94 NLRB 1680; United Brotherhood of Carpen-
ters (Crosby Construction Company), 93 NLRB 28 (1951).
But as I have stated earlier in this Decision , the Respon-
dent has not sustained its burden of proof that the Septem-
ber 18, 1974, fine notification letter was in fact delivered to
Livingston's home in California City on September 19,
1974. Fed. R. Evid. Rule 301, 28 U.S.C.A., effective July 1,
1975, supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the operations of Bo-
rax described in section 1, above , have a close , intimate,
and substantial relationship to trade , traffic , and com-
merce 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 Respondent has engaged in certain
unfair labor practices , I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Borax is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent coerced and restrained Terry R. Living-
ston, an employee, in the exercise of rights guaranteed to
him under Section 7 of the Act by imposing a fine against
him because he crossed and worked behind an illegal pick-
et line at the "contractors' gate" during his employment by
Johnson-Peltier, an electrical subcontractor engaged in
new construction, while he was a member of the Respon-
dent. By the aforesaid conduct the Respondent violated
Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER7
Respondent, Local 30, International Longshoremen's
and Warehousemen's Union, Los Angeles, California, its
officers, agents, and representatives shall:
1. Cease and desist from:
(a) Imposing disciplinary fines against its members for
refusing to cross unlawful picket lines violative of Section
8(b)(4) of the Act.
(b) Taking any action to collect the $3,150 fine levied
against Terry Livingston.
(c) Coercing and restraining its members in any like or
related manner in the exercise of rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Revoke the $3,150 fine imposed on Terry Livingston
and immediately notify Livingston in writing that it has
revoked the fine.
(b) Post at its offices and meeting places copies of the
attached notice marked "Appendix." Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 31, after being duly signed by the Respondent's repre-
sentative , shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
8 In the event the Board's 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."
LOCAL 30, LONGSHOREMEN 1265
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had the opportunity to
present evidence and arguments, it has been found that we,
Local 30 , International Longshoremen 's and Ware-
housemen's Union, have violated the National Labor Rela-
tions Act. We have been ordered to post this notice and we
intend to abide by the following:
WE WILL NOT impose disciplinary fines on our mem-
bers for crossing illegal picket lines which violate Sec-
tion 8(b)(4) of the Act.
WE WILL revoke the $3,150 fine imposed on Terry
Livingston and we will make no attempt to collect it.
WE WILL NOT in any like or related manner coerce
and restrain our members from exercising their rights
guaranteed by Section 7 of the Act.
LOCAL 30, INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN 'S UNION