Local 761, Electrical, Radio and Machine Wkrs.

National Labor Relations Board - Board Decisions

Sep 26, 1975

220 N.L.R.B. 830 (N.L.R.B. 1975)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 761 of the International Union of Electrical, Ra-
dio and Machine Workers, AFL-CIO (General
Electric Company) and O'Dell O. Harp. Case
9-CB-2865
September 26, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On June 16, 1975, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions 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 the complaint be, and it hereby is, dis-
missed in its entirety.
1 Member Fanning , although agreeing that the Respondent did not
threaten Harp , would dismiss the complaint in any event for the reasons set
forth in the dissenting opinion in Blackhawk Tanning Co., 178 NLRB 208,
209 (1969).
DECISION
STATEMENT OF THE CASE
RALPH WINKLER , Administrative Law Judge : Hearing in
this matter was held in Louisville, Kentucky, on April 23,
1975, on charges filed by O'Dell O. Harp on January 10,
1975. A complaint was issued by the General Counsel on
March 3 , 1975, and an answer was filed by Respondent.
Upon the entire record in the case , including consider-
ation of briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
General Electric Company operates a facility at Louis-
ville, Kentucky, and I find, as the parties agree, that Gen-
eral Electric is an employer within Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent , Local 761, of the International Union of
Electrical Radio and Machine Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
The Kentucky Society of Industrial Trades (herein
called KSIT) was organized in 1974 to represent industrial
(skilled) trades employees in collective bargaining with
General Electric at Appliance Park, Louisville, Kentucky,
and more than 800 employees executed authorizations to
KSIT for such purpose. The membership of KSIT ratified
a constitution and by-laws in June 1974; the organization
holds regular meetings , and it filed a representation peti-
tion with the Board in June 1974. I find that KSIT is a
labor organization within Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges, in substance , that Respondent
Local 761 violated Section 8(b)(1)(A) of the Act in that it
threatened to fine and did fine O 'Dell Harp for engaging in
rival union activity , including the filing of a certification
petition with the Board on behalf of KSIT.
Respondent represents approximately 12,000 General
Electric employees at the Company's Appliance Park in
Louisville, Kentucky. These employees are covered by a
national agreement , effective for a 3-year period beginning
May 1973, between GE and IUE in behalf of itself and
named IUE locals including Respondent Local. The bar-
gaining history between these parties extends over a period
of approximately 20 years.
Mr. Harp has been employed by GE since 1954 and was
a member of Respondent from approximately 1955 or 1956
until the latter part of September 1974. During this period
he occupied various union offices, including chief steward
and chairman of the Skilled Trades Committee to the IUE-
GE Conference Board. He withdrew his membership from
Respondent Local and revoked his dues check -off authori-
zation in September 1974, during the escape period permit-
ted in Respondent Local's aforementioned contract with
GE.
Harp and other GE employees began organizing KSIT
in March or April 1974 . Harp was elected president; and,
as indicated above, the membership of KSIT adopted a
constitution and by-laws on June 5, 1974. According to
Harp , it is noted in passing , a group of employees in indus-
trial trades classifications believed their interests "too dif-
ferent from the overwhelming majority of the members of
Local 761 to allow proper representation . . . by that
union" and their goal in organizing KSIT was to have
KSIT become the "certified bargaining agent for industrial
220 NLRB No. 141
LOCAL 761, ELECTRICAL, RADIO AND MACHINE WKRS. 831
tradesmen" who are included in Respondent Local's con-
tract unit.
On June 6 , 1974, KSIT filed a representation petition in
Case 9-RC-10603 , by which it sought, in effect, to sever an
industrial trades unit of some 890 employees from Respon-
dent Local 's established bargaining unit . The Regional Di-
rector dismissed KSIT's petition on July 2, 1974, as un-
timely on contract-bar grounds, and the Board affirmed
this dismissal on August 16, 1974.
On June 6 , 1974, Respondent informed the unit employ-
ees, among other things , that "some of the members of
Local 761 are dropping out of Local 761 to try to form a
Union of their own."
On July 2, 1974 , a rank-and-file member of Respondent
Local, one Guy Bristow , filed with Jim Luckett (Local
76l's recording secretary ) a statement of charges against
Harp , alleging violations of four subsections of Local
761's constitution . The filing of charges by rank-and-file
members is permitted under Local 76l's constitution, and
Bristow's charges accused Harp , among other things, "of
being President [and] of acting in a leadership capacity of a
renegade or runaway group trying to split Local 761.. .
into two unions . By that I mean his plans are and he is
working toward getting Skilled Trades to withdraw from
Local 761, IUE, and join a group being formed called
KSIT ." Bristow recommended in his statement of charges,
that Harp be fined $500 and expelled for his alleged union
derelictions.
Complying with union constitutional procedures, Re-
cording Secretary Luckett thereupon sent a copy of
Bristow's charges to Harp with notice that a trial on the
matter would be held on July 29, 1974. Harp attended the
trial held on the stated date before a Respondent Local
trials committee of rank-and-file members , all in accor-
dance with established union procedures . Claiming at the
trial that Respondent Local was without jurisdiction in the
matter because "I resigned my offices and membership in
I.U.E.," Harp asserted among other things that he was in
attendance "to defend my name and integrity and express
my beliefs in regard to the rights of persons to join and
form unions and to be represented by proper unions in
dealings with their employer."
Meeting in closed session at the conclusion of the trial,
the trials committee found that Harp had in fact violated
two of the constitutional subsections and decided to rec-
ommend that Harp be fined $500 and expelled from IUE
membership for 10 years . Respondent did not inform Harp
of the trials committee 's recommendation . About a month
later (late August or early September) during a casual con-
versation between Harp and Howard Derry (chairman of
the trials committee), Derry inquired whether Harp had
heard anything concerning the matter from Respondent,
and Harp said he had not. Derry thereupon told Harp
what the trials committee had recommended.
The constitution of Respondent Local requires trials
committees to submit all findings and recommendations to
Respondent 's executive board (comprised of local officers)
and that the "Executive Board shall in all cases make the
decision subject to the rights of appeal as set forth herein."
(Emphasis supplied .) The Harp matter was accordingly re-
ferred to the executive board , and on September 5, 1974,
the executive board decided to table the entire matter
pending-consultation with legal counsel. All actions of the
executive board are submitted for approval to the general
membership and the membership concurred in the execu-
tive board's tabling action at a general meeting on Septem-
ber 8, 1974. Harp did not attend that meeting.
Respondent meanwhile did not inform Harp concerning
the executive board's tabling action. However, by letter of
January 20, 1975, IUE District Council 7 advised Harp
that Respondent Local had "failed to finally act upon
these [Bristow's] charges within 90 days and Bristow filed
an appeal" with the District Council and that the District
Council has "appointed a committee of three to hear the
charges filed by Bristow against you." The District Council
accordingly advised Harp that such hearing would be held
at Respondent Local's hall on February 26, 1975, and that
Harp should plan to attend to present evidence respecting
the charges. Harp did not attend the District Council Com-
mittee session. While testifying in the present hearing on
April 23, 1975, Respondent Local President Kenneth Cas-
sady announced that the District Council had decided a
few days earlier (April 19, 1975) to find Harp guilty of
Bristow's charges and to suspend him from membership
for 10 years. Except for Derry's aforementioned conversa-
tion with Harp and the District Council's notification on
January 20, 1975, Cassady's statement was the only infor-
mation given Harp by Respondent Local concerning the
status of the Bristow charges.
Concluding Findings
A union may not fine or threaten to fine individuals "for
supporting a rival labor organization by soliciting authori-
zation cards for [such rival organization]" or "for soliciting
fellow employees to sign bargaining authorizations, for a
rival union to support the filing of a petition with the
Board for a certification petition." District Lodge No. 837,
International Association of Machinists and Aerospace Work-
ers, AFL-CIO and International Association of Machinists
and Aerospace Workers, AFL-CIO (McDonnell Douglas
Corporation), 206 NLRB 662 (1973); Independent Shoe
Workers of Cincinnati, Ohio (The United States Shoe Corpo-
ration), 208 NLRB 411 (1974). On the other hand, it is
"appropriate disciplinary action" for a union to expel a
member who seeks to displace it with another rival organi-
zation. Tawas Tube Products, Inc., 151 NLRB 46, 48
(1965); International Molders' and Allied Workers Union,
Local No. 125, AFL-CIO (Blackhawk Tanning Co., Inc.),
178 NLRB 208, 209 (1969).
The General Counsel contends that Chairman Derry's
"notifying Harp of the Trials Committee' s recommenda-
tion to the Executive Committee that Harp be fined consti-
tutes the actual fining of Harp. This contention is based on
the fact that the Executive Board Committee's failure to
notify Harp as to any other disposition of the charge for
approximately nine months thereafter constitutes a condo-
nation of the Trials Committee's decision." The General
Counsel further contends that these facts, even if not con-
stituting an actual fining of Harp, do make out the "threat
of a fine ," and he asserts in this connection that "the real
reason for the Executive Committee's delay was to string
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harp along , thus discouraging him, as well as other em-
ployees, from engaging in activities on behalf of the rival
KSIT."
Respondent Local does not eschew responsibility for
Chairman Derry's advising Harp concerning the trials
committee's recommendation , and such responsibility is
reasonably imputed to it in the present circumstances. As I
view the situation, therefore, Respondent Local did in fact
inform Harp that the trials committee had recommended
that Harp be fined and also be expelled from union mem-
bership for 10 years . Harp, however , was a long-time mem-
ber of Respondent Local and had held many important
offices in the organization. He must have known , therefore,
and I find he did know, that the trials committee's action
was recommendatory only and that the initial decision in
the matter from an institutional point of view could only
be made by the executive board in concurrence with the
general membership. The executive board did not advise
Harp of its tabling action, and perhaps it would have been
well advised to have done so. On the other hand, I am
unable to find that it withheld such information from Harp
in order to hold the threat of a fine (as distinguished from
expulsion action) over Harp and other union members to
dissuade them from engaging in KSIT activities .' On Janu-
ary 20, 1975, however, the district council did advise Harp
that the local executive board had not taken final action on
the Bristow charges.
In the circumstances of this case , I am unable to con-
strue Respondent Local's action or inaction as constituting
either a fine or threat of fine against Harp. This is so prin-
cipally because, as far as the Act is concerned, Harp's
KSIT activities were a valid subject for suspension or ex-
pulsion by Respondent Local. There was, of course, always
a possibility that the local executive board might fine Harp.
In my opinion , however, possibilities , without more, are
i Should there be a recurrence of this situation, I might view an omission
of status information differently.
not statutory threats where , as in the present case , Respon-
dent Local could lawfully take disciplinary action re-
specting the charges filed by Bristow and where the grava-
men of the present case involves only a possibility of an
additional, albeit unlawful, form of penalty.
I accordingly conclude that Local 761 neither fined nor
threatened to fine Harp, and I shall accordingly recom-
mend that the complaint herein be dismissed?
CONCLUSIONS OF LAW
1. GE is an employer within Section 2(6) and (7) of the
Act.
2. Local 761 and KSIT are labor organizations within
Section 2(5) of the Act.
3. Local 761 has not violated the Act in any respects
alleged in the complaint.
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDERS
I hereby recommend that the complaint be, and it here-
by is, dismissed.
2 This case does not present any question concerning the lawfulness of
requiring an exhaustion of internal union remedies . Cf. N.L R B v. Industri-
al Union of Marine & Shipbuilding Workers of America and its Local 22, 391
U.S. 418 ( 1968); Operative Plasterers' and Cement Masons' International As-
sociation of the United States and Canada and Cement Masons ' Local Union
No. 521 of the Operative Plasterers ' and Cement Masons' International Associ-
ation of the United States and Canada (Arthur G. McKee & Company), 189
NLRB 553, 556-557 (1971).
7 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.