Lodge 1327, Machinists

National Labor Relations Board - Board Decisions

Aug 24, 1971

192 N.L.R.B. 1015 (N.L.R.B. 1971)

LODGE 1327, MACHINISTS 1015
Production , Electronic & - Aero-Dynamic Lodge No.
1327, International Association of Machinists and
Aerospace Workers, AFL-CIO - (Dalmo Victor
Company, a Division of Textron Corporation) and
James Wolpman . Cases 20-CB-2022 and
20-C$2091
August 24, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
Upon charges filed by James Wolpman, an
individual, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 20, issued a consolidated complaint dated
February 24, 1971, against Production, Electronic &
Aero-dynamic Lodge No. 1327, International Associ-
ation of Machinists and Aerospace Workers,
AFL-CIO.' The complaint, as amended, alleged, in
substance, that the' Respondent had engaged in and
was engaging - in unfair labor practices within the
meaning of Section 8(b)(1)(A) of the National Labor
Relations Act, as amended, by imposing fines of
$100 each on 11 employees of Dalmo Victor
Company because those employees had worked
during a strike, said employees having previously
submitted letters of resignation to the Respondent.
The Respondent's answer admits in whole or in part
certain allegations of the complaint, but denies the
commission of any unfair labor practices.
On May 6, 1971, the parties to this proceeding
entered into a stipulation of facts and consent to
transfer the proceeding to the Board. They agreed
that the stipulation of facts, including the exhibits
attached thereto, constitutes the entire record in this
proceeding and waived a hearing before the Trial
Examiner and the issuance of a Trial Examiner's
Decision. The parties also agreed to submit the
proceeding, directly to the Board for findings of fact,
conclusions of law, and order.
By order of the Board dated May 18, 1971, the
stipulation of the parties was approved, this proceed-
ing was transferred to the Board, and permission was
granted to the parties to file briefs. Thereafter, the
General Counsel, the Charging Party, and the
Respondent filed briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
Upon the basis of the stipulation, the briefs, and
the entire record in this proceeding, the Board makes
the following:
FINDINGS OF FACT
1. JURISDICTION
Dalmo Victor Company, a Division of Textron
Corporation, a Delaware corporation, herein called
Dalmo Victor, is, and at all times material herein has
been, engaged in the business of research and
manufacture of electronic products at Belmont,
California. During the calendar year 1970, in the
course and conduct of its business operations, Dalmo
Victor sold goods and services valued in excess of
$50,000 directly to customers located outside the
State of California. During the calendar year 1970,
also, in the course and conduct of its business
operations, Dalmo Victor sold goods and services
valued in excess of $50,000 to the United States
Army, the United States Navy, and the National
Aeronautics and Space Administration, which good's
and services had a substantial effect on the national
defense.
We find that Dalmo Victor is, and at all times
material 'herein has been, an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Production, Electronic & Aero-dynamic Lodge No.
1327, International Association of Machinists and
Aerospace Workers, AFL-CIO, is, and at all times
material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
The Respondent and Dalmo Victor have been
parties to a series of collective-bargaining agreements
covering a unit of employees of Dalmo Victor at its
Belmont , California, facility. One such agreement
was by its terms effective from April 1, 1965, through
March 31 , 1968 . On or about April 1, 1968, and
continuing through rune 3, 1968, certain employees
of Dalmo Victor in the unit represented by Respon-
dent went on a lawful strike in support of demands
by the Respondent for a new agreement covering
said unit.
On various dates after April 1, 1968, as set forth in
the stipulation , each of 11 named employees in the
unit represented by, the Respondent sent to the
Respondent a letter resigning his membership, and at
1 The General Counsel filed an amendment to complaint on March
29, 1971 , which was duly served on the parties herein.
192 NLRB No. 145
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no time subsequent to the posting of said letter did
any of said employees reapply for membership. All
the letters were received in due course by the
Respondent.
After his letter of resignation was received by the
Respondent, each of the employees returned to work
for part, or all, of the remaining period of the strike.
On June 4, 1968, the Respondent and Dalmo
Victor executed a new collective-bargaining agree-
ment, effective from June 1, 1968, to June 1, 1970,
covering the unit of employees represented by the
Respondent.
Charges,- of improper conduct were preferred
against each of, the above-mentioned employees
under, the Respondent's constitution, and, on Octo-
ber 3, 1968, said employees were tried by the
Respondent's trial committee. With regard to trials
of members before trial committees, the Respon-
dent's constitution provides "Both the plaintiff and
the defendant shall have the privilege of presenting
evidence and being represented either in person or by
attorney (the attorney being , a member of the
I.A•M.)." James Wolpman, an attorney duly licensed
to practice law in the State of California, but not a
member of the I.A.M., appeared with the above-
named employees at the trial committee proceeding
as their counsel. However, he was not allowed to
represent them or to be present in the hearing room
during their trial. The trial committee rendered its
decision, and, on November 14, 1968, the Respon-
dent imposed a $1,000 finle on each of the employees
because said employees had worked during the
strike. On May 1, 1969, Names Wolpman'filed the
initial charges 'against the Respondent (Case
20-CB-2022)•
On July, 18, 1969, the Respondent rescinded the
fines. However, on September 9, 1969, the Respon-
dent modified its foregoing action and imposed new
fines of $100 on each of the employees for their
action in working during the strike. On September
23, 1969, James Wolpman: again filed charges against
the Respondent (Case 20-CB-209 1).
Subsequent to written requests for payment, the
Respondent brought suit against employee William
Salsgiver in' California Small Claims Court, Southern
Judicial- District of San Mateo, to collect the
foregoing '$100 fine, which suit resulted in a judg-
ment being entered on April 10, 1970, against
Salsgiver inithe amount of $100, plus $3.50 in costs.
Subsequently, in April 1970, the Respondent collect-
ed the entire amount of said judgment from
employee Salsgiver-. On June 18, 1970, the Respon-
dent filed suit in Municipal Court, Central Judicial
District of 1 San Mateo, against the remaining 10
2 To the extent that our decision herein may conflict with N.LR.B. v.
Granite State Joint Board (International Paper Box Machine Co.), decided
employees to -collect the' $100, fine imposed-or
reinstated ^ against , them, and said suit was still
pending -at -the time of the 'execution of this
stipulation,,
B. The Contentions of the Parties
The General Counsel contends that the imposition
of the fines on the foregoing 11 employees for
working during the strike violated' Section 8(b)(1)(A)
of the Act, in that these employees had returned to
work at a time subsequent to their-resignations from
the Respondent, 'and, contrary to the position of the
Respondent, argues that the Board is_not precluded
from finding a violation by the provisions of Section
10(b) of the Act. The Respondent, on the other hand,
contends that a member 's midstrike resignation from
his,union does not free him from his union obligation
to refrain from strikebreaking in that strike. for its
duration and that, in any event,'no violation can be
predicated on the charges in the instant proceeding
since the employees tendered their resignations from
membership and crossed,the'picket- line outside the
10(b) period.
C. Conclusions
1. The imposition of the fines The Board has
recently, examined the' application of Section
8(b)(1)(A) to fines imposed by unions, on their
members. Thus, in Booster Lodge No. 405, `Interna-
'tional Association of Machinists and Aerospace Work-
ers, AFL-CIO (The Boeing Company), 185 NLRB
No. 23, we held that -a union violated Section
8(b)(1)(A) by fining a member ' for activities engaged
in after his resignation.2
In the instant proceeding, it is abundantly clear
that the 11 employees involved Were fined for
conduct occurring after said employees had resigned
from `the Respondent. The attempted imposition of
such discipline for subsequent conduct was, as we
stated in Boeing, beyond the powers of the Respon-
dent. Under these circumstances, and in accord with
Boeing, 'we find that the Respondent's fining of said
employees for such postresignation activities coerced
and restrained them in the exercise of their Section 7
rights in violation" of Section 8(b)(l)(A) of the Act.
2. The 10(b) issue: The record clearly establishes
that the $1,000 fine herein was -imposed by Respon-
dent on November 14, 1968, and that, the charges in
Case 20-CB-2022, which alleged ' the illegality of
such fines, were filed on May 1, 1969. Further `lore,
the subsequently revised fine of '$100 was-imposed by
Respondent on September 9, 1969, and the charges
in Case 20-CB-2091, which also alleged the illegality
June ' 29, 1971 (C.A.1), we respectfully note our disagreement with the
court's views.
LODGE 1327, MACHINISTS 1017'
of such fines, were filed on September 23, 1969. The
gravamen of the unlawful conduct here is the
imposition of the fines,3 and, since the charges were
filed within 6 months from the dates thereof, we are
not precluded by Section 10(b) of the Act from
finding violations in this case.
THE,REMEDY
Having found that the Respondent violated Sec-
tion 8(b)(1)(A) of the Act by imposing fines on
employees for acts committed after their resignations
from the Respondent, we shall order the Respondent
to cease and desist from such conduct, including
attempts to collect the illegal fines through court
proceedings. We shall also order the Respondent to
reimburse said employees for any fines which may
have been paid based on their postresignation
conduct.
CONCLUSIONS OF LAW
1. Dalmo Victor Company, a Division of Textron
Corporation, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and it will effectuate the purposes of the Act to,assert
jurisdiction herein.
2. Production, Electionic & Aero-dynamic Lodge
No. 1327, International Association of Machinists
and Aerospace Workers, AFL-CIO, is, and at all
times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. By imposing fines on employees for acts
committed after their resignations from membership
the Respondent has coerced or restrained employees
in the exercise of their rights guaranteed in Section 7
of the Act.
4. The above conduct constitutes unfair labor
practices under Section 8(bXl)(A) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing, of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Production, Electronic & Aero-dynamic Lodge No.
1327, International Association of Machinists and
Aerospace Workers, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees who had
resigned from and who were no longer members of
the Respondent in the exercise of their rights
guaranteed in Section 7 of the Act, by imposing fines
against such employees because of their postresigna-
tion conduct in working at-the Belmont, California,
facility of Dalmo Victor Company during the April-
June 1968 strike or by threatening to seek or seeking
court enforcement of such fines.
(b) In any like or related manner restraining or
coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Reimburse or refund to employees David L.
Paul, Victor Baker, Frank Beebe, Roy Burleson,
Donald F. Fitch, Tony C. Milano, Richard Sousa,
William Salsgiver, Timothy E. Gardner,, Herschel M.
Smith, and Richard F. Maier, if they have paid fines
under the circumstances described in paragraph 1(a)
of this Order, the amount of fines imposed on them
because of their postresignation conduct in working
at the Belmont, California, facility, plus interest at
the rate of 6 percent per annum.
(b) Post at its business offices and meeting halls,
and at the Employer's premises at Belmont, Califor-
nia, if the Employer is willing, copies of the attached
notice marked "Appendix."4 Copies of said notice,
on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Sign and mail to the Regional Director for
Region 20 sufficient copies of said notice, on forms
provided, by him, for posting by the Employer, if
willing.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER BROWN, dissenting:
For the reasons set forth in my dissenting opinion
in Boeing, supra, I would find no violation based on
the fines in this case and would dismiss the
complaint.
' See International Association of Machinists and Aerospace Worker;
AFL-CIO (Union Carbide Corporation), 180 NLRB No. 135 , reaffirmed
upon reconsideration , 186 NLRB No. 138.
4 Ii the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD:'
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees who
had resigned from the Union and who, in the
exercise of their rights guaranteed in Section 7 of
the Act, worked at the Belmont, California,
facility of Dalmo Victor Company during the
April-June 1968 strike, by imposing fines as to
such employees because of their postresignation
conduct or by threatening to seek or by
seeking court enforcement of said fines as to such
employees.
WE WILL reimburse employees David L. Paul,
Victor Baker, Frank Beebe, Roy Burleson, Don-
ald F. Fitch, Tony C. Milano, Richard Sousa,
William Salsgiver, Timothy E. Gardner, Herschel
M. Smith, and Richard Maier for any fine they
may', have paid to us for working during said
strike after they resigned from the Union, plus
interest at 6 percent per annum.
WE WILL NOT in any like or related manner
restrain 'or coerce employees in the, exercise of
rights guaranteed to them in Section 7 of the
National Labor Relations Act.
PRODUCTION,
ELECTRONIC & AERO-
DYNAMIC LODGE No.
1327, INTERNATIONAL
ASSOCIATION OF
MACHINISTS AND
AEROSPACE WORKERS,
AFL-CIO,
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the' date of posting and must not be
altered, defaced, or covered by any other material.
An questions concerning this notice or compli-
ance with its provisions ' may be directed to the
Board's Office, 13050 Federal Building , 450 Golden
Gate 'Avenue, Box 36047, San Francisco, California
94102, Telephone 415-556-3197.