Machinist, District No 71, Local 778

National Labor Relations Board - Board Decisions

Jun 10, 1976

224 N.L.R.B. 580 (N.L.R.B. 1976)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Machinists and Aero-
space Workers, District No 71, Local 778 and
Whitaker Cable Corporation Case 17-CB-1522
June 10, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
ceives goods and materials valued in excess of
$50,000 from, and sells goods and materials valued in
excess of $50,000, outside the State of Missouri The
complaint alleges, the Respondent admits, and we
find that Whitaker Cable Corporation is, and has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act We find
that it will effectuate the purposes of the Act to assert
jurisdiction
Upon charges duly filed, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 17, issued a complaint and no-
tice of hearing November 20, 1975, against Interna-
tional Association of Machinists and Aerospace
Workers, District No 71, Local 778 The complaint
alleges that the Respondent engaged in, and is engag-
ing in, certain unfair labor practices affecting com-
merce within the meaning of Sections 8(b)(1)(A) and
2(6) and (7) of the National Labor Relations Act, as
amended On January 9, 1976, the Respondent filed
its answer denying the commission of unfair labor
practices and requesting that the complaint be dis-
missed
The parties later stipulated the facts and jointly
moved to transfer the proceeding to the Board for
findings of fact, conclusions of law, and decision and
order A hearing before the making of findings of
fact and conclusions of law as well as a decision by
an Administrative Law Judge were waived by the
parties, who agree that no oral testimony is necessary
or desired The parties also agreed that the charge,
the complaint and notice of hearing, the order re-
scheduling the hearing, and the stipulation of facts
with exhibits constitute the entire record in this pro-
ceeding
On March 15, 1976, the Board granted the motion
and approved the stipulation The General Counsel
has filed a 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 stipulation includ-
ing exhibits, brief, and the entire record in this pro-
ceeding, and hereby makes the following
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Whitaker Cable Corporation manufactures auto-
motive supplies at its facilities in North Kansas City,
Missouri In the course and conduct of its business,
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits,
and we find that the Respondent is a labor organiza-
tion within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICE
On or about June 25, 1975, the employees of Whit-
aker represented by the Respondent began an eco-
nomic strike A picket line was established and was
maintained until August 15, 1975, when the strike
ended
Eleanor Wiber, an employee of Whitaker and
member of the Respondent, participated in the strike
originally, but, on August 4, wrote a letter of resigna-
tion to the Respondent which was received and be-
came effective no later than 9 30 on the morning of
the 5th At 7 30 that same morning, Wiber crossed
the picket line and returned to work Wiber contin-
ued to cross, and to work behind, the picket line
through August 15
Internal union charges were preferred against
Wiber August 17 for crossing the picket line on vari-
ous dates during the strike in violation of article I,
section 3, of the International Association of Ma-
chinists' constitution On September 15, Wiber was
advised by letter that the Respondent's trial commit-
tee had reviewed the charges against her and had
concluded there was sufficient evidence for a trial
and requested her presence at the trial The trial was
held September 26 as scheduled Wiber did not ap-
pear, but sometime between the date of the trial and
October 14, 1975, the trial committee agreed to rec-
ommend to Respondent's members that she be found
guilty and fined $950 $100 for each day the mem-
bers found she had crossed and worked behind the
picket line, but only $50 for August 15 because the
strike had ended at noon I
At a regular meeting held October 14, those of
Respondent's members who were present voted by
separate secret ballot to concur with the trial
committee's recommendations that Wiber be found
the Employer annually directly purchases and re- ' Wiber was erroneously found to have returned to work August 4
224 NLRB No 74
MACHINISTS, DISTRICT NO 71, LOCAL 778 581
guilty and be fined $950 Wiber was informed of the
Respondent's actions by letter dated October 15
It is now settled that a labor organization which
fines a former member for postresignation conduct
violates Section 8(b)(1)(A) of the Act, at least in the
absence of valid restrictions on resignation or post-
resignation conduct which have been communicated
to, and consented to by, its members N L R B v
Granite State Joint Board, Textile Workers Union of
America, Local 1029 [International Paper Box Ma-
chine Co], 409 U S 213 (1972), Booster Lodge No
405, International Association of Machinists & Aero-
space Workers [Boeing Co j v NLRB , 412 U S 84
(1973) There is no issue of any restrictions on resig-
nation, as Wiber's resignation was stipulated to have
been effective Similarly, there is no issue with re-
spect to restrictions on postresignation conduct be-
cause the stipulated facts do not establish that Wiber
was ever given proper notice of any such restriction
Article I, section 3, of the IAM constitution, which
Wiber was found to have violated, is irrelevant in this
context a constitutional provision is not a substitute
for proper notice United Paperworkers International
Union, Local No 725, AFL-CIO (Boise Southern
Company), 220 NLRB 812 (1975) 2
Accordingly, we conclude that the Respondent
violated Section 8(b)(1)(A) of the Act by fining Elea-
nor Wiber for crossing the picket line and working
after 9 30 a in, August 5, 1975, when her resignation
became effective 3
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The conduct of the Respondent set forth above,
occurring in connection with the operations of the
Employer as set forth in section I, has a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States, and tends
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in,
and is engaging in, an unfair labor practice, we shall
order it to cease and desist therefrom In order to
2 Unlike our concurring colleague , we do not believe that noting the ab-
sence of an issue is to pass , or even to comment, on it We neither express
nor intimate any view on Local Lodge No 1994, International Association of
Machinists and Aerospace Workers, AFL-CIO (0 K Tool Company, Inc)
215 NLRB 651 (1974)
3 Wiber returned to work at 7 30 a in on the 5th , and performed struck
work for 2 hours while still a member The fine is, to that extent lawful
Booster Lodge No 405, International Association of Machinists and Aerospace
Workers (The Boeing Company), 185 NLRB 380, 382-383 (1970)
effectuate the purposes of the Act, we shall also order
the Respondent to rescind the unlawful portion of
the fine, to refundpro rata, any money paid to it as a
result of the unlawful fine, with interest computed at
the rate of 6 percent per annum, and to post the
attached notice
CONCLUSIONS OF LAW
1 The Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 The Respondent is a labor organization within
the meaning of Section 2(5) of the Act
3 By fining Eleanor Wiber, who had duly re-
signed from the Respondent, for her postresignation
crossing of the picket line and working at Whitaker
Cable Corporation, the Respondent restrained and
coerced Wiber in the exercise of the rights guaran-
teed her in Section 7 of the Act, and thereby engaged
in, and is engaging in, an unfair labor practice within
the meaning of Section 8(b)(1)(A) of the Act
4 The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, In-
ternational Association of Machinists and Aerospace
Workers, District No 71, Local 778, North Kansas
City, Missouri, its officers, agents, and representa-
tives shall
1 Cease and desist from
(a) Restraining or coercing employees who have
resigned from, and are no longer members of, Re-
spondent, in the exercise of the rights guaranteed
them in Section 7 of the Act, by imposing fines on
them because of their postresignation conduct in
working at Whitaker Cable Corporation during the
August 1975 strike
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act
2 Take the following affirmative action designed
to effectuate the purposes of the Act
(a) Rescind the fine levied against Eleanor Wiber
because of her postresignation work for Whitaker
Cable Corporation, during the August 1975 strike,
refund to her, pro rata, any money she may have paid
as a result of such fine, plus interest computed at the
rate of 6 percent per annum, and expunge from its
records any reference to the fine levied against Elea-
nor Wiber for her postresignation work
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix 114
Copies of said notice, on forms provided by the Re-
gional Director for Region 17, after being duly
signed by Respondent's authorized representatives,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material
(c) Mail to the Regional Director for Region 17
signed copies of said notice for posting by Whitaker
Cable Corporation, if the Company be willing, in
places where notices to employees are customarily
posted Copies of said notice, to be furnished by the
Regional Director for Region 17 after being duly
signed by the Respondent's authorized representa-
tive, shall be returned forthwith to the Regional Di-
rector
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with
MEMBER PENELLO, concurring
I agree with my colleagues that Respondent violat-
ed Section 8(b)(1)(A) but not with respect to the ra-
tionale relied upon by them
In 0 K Tool Company, Inc,s the Board, after exa-
mining the Supreme Court Decisions in Granite
State,' Boeing,' Allis-Chalmers,' and Scofield,9 con-
cluded that it is unlawful for a union to impose a fine
on a former member, who has tendered a valid resig-
nation, for conduct following his resignation which is
prohibited by the union's constitution but protected
by Section 7 of the Act Members Fanning and Jen-
kins concurred in the result reached in that decision
only because they felt that the employees were not
given proper notice of the constitutional provision 10
4In 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 read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
'215 NLRB 651 (1974)
6 409 U S 213 (1972)
7412 US 84 (1973)
8 Allis Chalmers Mfg Co v N L R B 388 U S 175 (1967)
9 Scofield v N L R B 394 U S 423 (1969)
10 In 0 K Tool the employees were informed by their union of their
being charged under the same provision involved in this case In my view it
In the present case, my colleagues rely on the lack
of notice which was the basis for the concurring
opinion in 0 K Tool They, however, go beyond
that in their discussion in this case indicating that if
there were proper notice there might be valid re-
strictions that can be imposed on postresignation
conduct 11 As indicated above, the Board clearly con-
fronted that issue in 0 K Tool and held that such
restrictions are unlawful Accordingly, for the rea-
sons set forth by the majority in 0 K Tool, I join
my colleagues in finding the 8(b)(1)(A) violation
is unlawful to place postresignation restrictions on former members regard-
less of whether or not they were given notice of the constitutional provision
See Boise Southern Company, 220 NLRB 812 (1975), In 8, with regard to my
position on this matter
11 My colleagues state that a fine on a former member for postresignation
conduct violates Sec 8 (b)(1)(A), "at least in the absence of valid restrictions
on resignation or post-resignation conduct which have been communicated
to and consented to by, its members " (Emphasis supplied )
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 have resigned from the Union and who, in
the exercise of the rights guaranteed in Section 7
of the National Labor Relations Act, worked af-
ter their resignation at Whitaker Cable Corpora-
tion during the August 1975 strike by imposing
fines on them
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them in Section 7 of the
National Labor Relations Act
WE WILL rescind the fine levied against Elea-
nor Wiber because she worked at Whitaker Ca-
ble Corporation after her resignation from Local
778 during the August 1975 strike, refund any
money she may have paid as a result of such
fine, plus interest, and expunge from our rec-
ords any reference to the fine levied against her
for her postresignation work
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, DISTRICT No 71,
LOCAL 778