Machinists Local 707 (United Technologies)

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 985 (N.L.R.B. 1985)

MACHINISTS LOCAL 707 (UNITED TECHNOLOGIES) 985
Local Lodge No. 707, International Association of
Machinists and Aerospace Workers (Pratt &
Whitney Division of United Technologies Cor-
poration) and Wayne A. Gilbert.
International Association of Machinists and Aero-
space Workers (Pratt & Whitney Division of
United Technologies Corporation) and Alta S.
Moran and Wayne A. Gilbert.
Aeronautical Industrial District No. 91 , and its
Local Lodge -No. 707, International Association
of Machinists and Aerospace Workers (Pratt &
Whitney Division of United Technologies Cor-
poration) and Alta S . Moran . Cases 39-CB-
522, 39-CB-547, 39-CB-570, and 39-CB-569
30 September 1985
DECISION AND ORDER
BY. CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 17 January 1985 Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
Respondents filed exceptions and a' supporting
brief, and the General Counsel filed cross-excep-
tions and a supporting brief.
The National Labor Relations' Board has delegat-
ed its authority in this proceeding to a three-
member panel.
'The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.'
on August 22, 23, and 24, 1984, upon an original unfair
labor practice charge filed on January 17, 1984, and a
consolidated complaint issued on June 18, 1984. The
complaint, as amended, alleged that Respondents violat-
ed Section 8(b)(1)(A) of the Act by filing and processing
internal union disciplinary - charges against members
Wayne A. Gilbert, Mary-Alice • Moran, and Alta S.
Moran in reprisal for, and because they had engaged in,
activity protected by Section 7 of the Act. In its duly
filed answer Respondent denied that any unfair labor
practices were committed. Following close ,of the hear-
ing, briefs were filed on behalf. of the General Counsel
and Respondent.
On the entire record in this proceeding,'- including
consideration of the posthearing briefs, and my opportu-
nity directly to observe the witnesses while testifying
and their demeanor, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Employer, Pratt & Whitney Division of United
Technologies Corporation (UTC), is a Delaware'corpo-
ration, with a facility located in North Haven, Connecti-
cut, from which it is engaged. in the manufacture and
nonretail sale and distribution of aircraft engines and re-
lated products. During the 12-month period ending May
31, 1984, UTC in the course and-conduct of said oper-
ations sold and shipped from said facility, products,
goods, and materials valued in excess of $50,000 directly
to points outside the State of Connecticut. -
The complaint alleges , the answer' admits, and it is
found that UTC is now, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the ' administrative - law
judge and orders that the Respondent, Local
Lodge No. 707, International Association of Ma-
chinists and Aerospace Workers, New Haven, Con-
necticut, and the Respondent , International Asso-
ciation of Machinists and Aerospace Workers,
Washington, D.C., their officers , agents, and -repre-
sentatives , shall take the action set forth in the
Order. , • ,
John Kreisberg, Esq., of Hartford, Connecticut, for the
General Counsel.
11
Samuel A. Luterotty, Grand Lodge Representative, of
Washington, D.C., for the Respondent.
Steen G. Mednick, Esq. (Gallant, Mednick & Gallant), -of
New Haven, Connecticut, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A.' HARMATZ, Administrative Law Judge. This
proceeding was heard by me in Hartford, Connecticut,
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent Local Lodge No. 707, International Asso-
ciation of Machinists and Aerospace Workers (Local
-707), Respondent Aeronautical Industrial District No. 91,
International Association of Machinists and Aerospace
Workers (District 91); Respondent International Associa-
tion of Machinists and Aerospace Workers (Grand
Lodge), are now, and have been at all times material
herein, labor organizations within the meaning of Section
2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Broadly stated , this case presents questions as to
whether the - three distinct labor organizations, named
jointly as Respondents , violated Section 8(b)(1)(A) of the
Act by the filing and processing of internal misconduct
charges in reprisal for the promulgation by Local 707
members of election propaganda critical of union offi-
' The record is reopened for the limited purpose of receiving in evi-
dence a letter dated December 17, 1984, over signature of Jonathan B.
Kreisberg, counsel for the General Counsel, which has been marked ALJ
Exh 1, and which embodies a posthearing all-party stipulation of fact.
276 NLRB No. 105
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cials . The General Counsel contends that all allegations
of misconduct against the participating union members
were invoked in reprisal for this form of statutorily pro-
tected conduct, whether or not specified as the basis for
the internal union charges.
Respondents do not contest, seriously, the claim that
distribution of such propaganda is protected by the Act,2
but argue instead that conduct offensive to membership
duties was subsequently 'uncovered in investigation of ac-
cusations in that propaganda, that this new evidence of
misconduct was unrelated to any protected activity, and
that Respondents, therefore, were privileged to pursue
internal discipline at least in connection therewith. Thus,
the issues joined herein are essentially factual, with the
General Counsel arguing that the processing of allega-
tions against the Charging Parties were unlawful either
as (1) specifically tied to a protected assertion of rights
of free speech or, if not, that (2) they were predicted
upon pretextual grounds.
B. Background and Chronological Events
Since 1972 Respondent ' Local 707 has been the bar-
gaining representative of a production and maintenance
unit at the UTC North Haven facility. Respondent Dis-
trict 51 is an umbrella organization composed of various
Locals, including Local Lodge 707, which enjoy collec-
tive-bargining relationships with UTC within the State of
Connecticut.
The Charging Parties, with the exception of Wayne
Gilbert, at the time of the hearing were employed in the
production maintenance unit at the North Haven facility.
Gilbert and the Morans3 over the years had been heavily
involved in internal union politics at the local and the
District levels. Until July 31, 1982, Wayne Gilbert was
president of Local 707. Thereafter, commencing in
August 1982, he became a paid representative of District
91, holding that position until June 1983. Gilbert also
served as an elected delegate to the Greater New Haven
Central Labor Council of the AFL-CIO until his mem-
bership in Local 707 was terminated, shortly before the
instant hearing , effective August 19, 1984.
Alta Moran has also served Local 707 and District 91
in various capacities over the years. Commencing on
January 1, 1982, she was financial secretary, holding that
office until suspended on January 13, 1984.4
Mary-Alice Moran, like her mother, had served Local
707 in varying capacities during her membership of in
excess of 10 years. She served as recording secretary
2 In its postheanng brief, the following statement is made on behalf of
Respondents . "the IAM concedes that the internal charges filed in GC-6
(A)(B)(C) and a portion of the charges filed in GC-29 (A)(B)(C) may be
violative of Section 101(a)(2) of the LMRDA . " See Carpenters
Local 22 (Graziano Construction), 195 NLRB 1, 2 fn 5 (1972)
a Alta Moran is the mother of Mary-Alice Moran Gilbert was dis-
charged by UTC in July 1982 The Union grieved his termination The
grievance was sustained in arbitration , and UTC was directed to reinstate
Gilbert At the time of the hearing, the Company had not complied and a
proceeding was pending in a local court to enforce the award
4 The suspension of Alta Moran from the position of financial secre-
tary as well as the Local 's action striping Gilbert of his membership in
August 1984 occurred - prior to the instant hearing Neither was chal-
lenged by allegation or litigation in this proceeding -
from, 1979 through January 1982, but according to her
testimony, declined to run for reelection.
Over the,years, Gilbert and the Morans participated in
a seemingly unstructured organization of employees, call-
ing themselves, the "Committee of the Rank and File."
Membership in that group was relatively small.5 Accord-
ing to Gilbert, it was through this facility that individuals,
who shared a similar philosophy toward trade unionism
joined to further their mutual interests within the politi-
cal arena primarily by supporting friendly candidates.
In November 1983, George Almeida, a representative
of Respondent International, was assigned to District 91
apparently to aide in the correction of certain administra-
tive problems within that organization. During the fol-
lowing month, internal elections within Local 707 were
scheduled. The only positions at stake --were delegate
slots. In early December, in connection with the elec-
tion, Gilbert, together with the Morans, drafted the leaf-
let which lies at the cornerstone of this proceeding. That
document in so many words criticized the administration
of Local Lodge 707 prior to Gilbert's election to the
presidency in 1978, praised his administration, and was
severely critical of the Local's incumbent officials. In-
cluded in the allegations against the current leadership
was an assertion that a representative of the International
and incumbent Local 707 President Gary Nilson, who
succeeded Gilbert in that capacity, conspired to cover. up
a forgery committed by two local officers in connection
with a delegate nomination a year earlier.6 To make mat-
ters worse, theft and "double dipping" were among the
allegations of dishonesty which the Charging Parties
elected to communicate in the following terms:
The Treasurer of Local Lodge 707 discovered ap-
proximately $600.00 cash missing from the Union
safe. He informed the President and advised him to
5 Gilbert testified that the group had a solid core limited to only five
individuals , but that from time to time its following expanded to upwards
of 80 to 100 With respect to the time frame of relevance here, there is no
suggestion in the evidence that the "Committee of the Rank and File"
enjoyed support from a group exceeding 10 in number
6 The alleged forgery arose in connection with the-Local's rule that
eligibility for office be determined in part by a minimum union-meeting
attendance requirement The incident had been the subject of internal
charges filed by Alta Moran in 1982 against Peter Muller and Carolyn
Sasser At that time Moran asserted that they forged the signature of
James Sasser, the husband of Carolyn Sasser, to union-meeting attend-
ance books in order to qualify him falsely as a candidate for a delegate
position See G C Exh 30 Carolyn Sasser, at the time, had been elected
and served as the successor to Mary-Alice Moran as Local Lodge 707's
recording secretary -Apparently at Alta Moran's`request, the executive
board, though headed at least nominally by Local 707 President Nilson,
authorized the expenditure of $500 to retain a handwriting expert to ex-
amine the signatures Prior to the filing of the internal charges by Alta
Moran , Carolyn Sasser resigned her position as corresponding secretary
Moreover, it had become clear prior to said filing that James Sasser
failed to run in the impending election either because he withdrew or
was declared ineligible Nonetheless though President Nilson expressed
his hope that the matter "just go away," and that the executive board
take no action, upon Alta Moran's threat to file charges if the incident
were allowed to go "unpublicized , and unpunished ," an internal trial
committee was appointed . After the matter was investigated , the trial
committee recommended against a trial . Alta Moran declined to drop the
matter, unsuccessfully appealing first to the International president, then
to the executive council of the International , and finally to the Interna-
tional convention - -
- MACHINISTS LOCAL 707 (UNITED TECHNOLOGIES)
change the combination of the' safe and restrict the
persons using the safe to just the Treasurer, Finan-
cial Secretary and office secretary. A- few weeks
before the theft, the President had expanded the
circle of persons having the combination to the
newly elected Vice President.
Dora Woods, a special friend of the Vice President
and then an appointed Executive Board member,
was-paid for her time'to attend an Executive Board
meeting while she was also collecting disability
compensation from insurance. That's double dipping
and was never allowed before . It sets a dangerous
precedent and the President had refused to attempt
to correct it.
The leaflet then turned -to a low-keyed assault on
President Nilson and Local 707 Shop Chairman Gogliet-
tino accusing them of "irresponsible leadership," while
raising the possibility that they are in "league with the
company," accusingly stating that they had "split our
ranks in front of the company." The pitch intensified
with the assertion that Gilbert had been victimized by
the leadership while President Nilson sponsored the use
of narcotics in the union hall. In this regard, the leaflet
stated: -
In August, 1982, former President Wayne Gilbert
became labor representative for 707. A few months
later he was forced out of the local,-why?
He knew our membership was getting a raw deal
by the leadership and tried to remedy those prob-
lems internally.
There were drug (cocaine -and marijuana) parties
being held in the union hall at night. President
Nilson was a doorman who allowed his special
,,guests to these parties. Our $10,000 computer sat
idle (and still is). There were threats made on the
physical well-being of true rank and file activities,
accompanied by bullying and rumor mongering to
discredit our unions best workers. [sic] - .
When our labor representative [Gilbert] requested
the ring leaders to stop these unconscionable acts,
he' was forced into •- exile and -had his reputation
falsely ' ripped by 'those trying to cover up- their
wrongdoing.
The leaflet next shifted its attention to the alleged victim-
ization of Financial Secretary Alta Moran, observing as
follows:
Our Financial Secretary was the next target. To
demonstrate the viciousness of their - attacks,
member Bob Losnes and Henry Jackson attempted
to bring her up on charges for working in the local
for over 14 hours straight on the membership's
behalf. (This letter is available upon request.) Presi-
,dent Nilson removed her and your financial books
'from the financial - office, ' out into the busy outer
office. This makes working on these important
books difficult, if not impossible. The President also
threatened to physically attack Sister Moran one
987
-evening when he was in a drug or alcohol induced
rage.
On December' 11, 1983; the "Committee of the Rank
and File" held a meeting attended by about seven em-
ployees. It was at that meeting that the decision was first
made to distribute the leaflet.
It is understatement to observe that references to for-
gery, theft, and the use of narcotics were highly provoc-
ative and likely to arouse concern of union officials.
Indeed the sensitivity of Local 707 to these accusations is
underscored by the fact that it is not beneficiary to a
union-shop arrangement, but exists on an open shop-
basis , with its membership rolls limited by personal
choice of unit employees.7 The Charging, Parties - had
scored the public image of Local 707 to a point which
hardly would enhance its ability to recruit the unorga-
nized. It therefore is understandable that on December
12, Almeida, who apparently had learned through the
"grape vine" of the undistributed leaflet, sought out Alta
Moran and in the presence of Mary-Alice. Moran stated
that the leaflet would not help the Union any, but would
aid, abet, and bring pleasure to the Company, while sug-
gesting that they deal with their problem through the
Union's internal trial - proceedings . In seeking to suppress
the leaflet Almeida threatened "dire consequences" in-
cluding the filing of the internal disciplinary charges, and
possibly civil charges, if the document were circulated.8
At the conclusion of the conversation, Alta Moran sug-
gested to Almeida that if he could resolve the problems
within the Local within the next few days perhaps they
would decline to distribute the leaflet.9
Almeida's demands went unheeded. Distribution of the
leaflet began at 11:20 p.m. on December 15 and contin-
ued at plant entrances on the morning of the 16th. Non-
members and. members alike were given copies at plant
gates . Alta Moran, Mary-Alice Moran , Kirk Michael,
and John Jerome were identified as having participated
in the distribution. t o
Officials of Local 707 were quick to respond. On De-
cember 16, the following was distributed over the signa-
ture of Local 707 President Gary Nilson: -
AN OPEN LETTER TO THE MEMBERSHIP
This morning a leaflet was passed out on the
gates of the North Haven. plant that was not only
totally and completely untrue but was also a delib-
r Pursuant to postheanng stipulation , it appears that of the 2313 em-
ployees in the unit only 1619 are members of the Local See ALJ Exh. I
I Although the Morans were not regarded as the most credible of wit-
nesses, considering the undisputed nature of their testimony, as well as
confirmation thereof through language in a document later distributed by
President Nilson , I' accept their testimony in the above respect See G C.
Exh 4
e The General Counsel suggests that no specific proposals were made
as to how Almeida could satisfy Alta Moran in this respect On the con-
trary, Mary-Alice Moran did in fact testify that Alta Moran mentioned
that resignations by existing officers was one possibility that Almeida
might explore , a suggestion whose ramifications clearly transcended the
issues in the impending delegate elections
10 Internal union disciplinary charges were not filed against Kirk Mi-
chael and John Jerome - -
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erate attempt on the part of three-desparate [sic] in-
dividuals to destroy our Union.
This scurrilous piece of lies and misinformation
not only attacks the character and integrity of the
officers of Local 707 but also your intelligience [sic]
as well. -
This desperate attack was published even after
the authors were advised by Grand Lodge Repre-
sentative George Almeida that it "was not prudent
and could result in serious ramifications."
Make no mistake about it, charges will be filed
with the international union and in addition civil
action against those involved will be pursued. At-
torneys have already been contacted. -
As the duly elected and responsible leaders of
your Union we shall not allow these false and malis-
cious [sic] lies to go unanswered. With your under-
standing and support your Union shall survive.
One last question, if any of these lies were true,
which they are not, , why didn't these so called
Unionists take appropriate action within,the organi-
zation instead of trying to destroy it? Are they that
desperate?
On December 17, 1983, the regular monthly member-
ship meeting of Local 707 was held. Jean Moran and
Wayne Gilbert were present and actively participated.
According to the minutes, which appear in evidence as
General Counsel's Exhibit 41, neither Gilbert nor the
Morans were singled out or identified as responsible for
the leaflet. The following summary of what transpired,
as contained in the minutes, is illustrative: -
Brother Ron Obier wanted to know-who pub-
lished the leaflet over the past week?
President Gary Nilson stated that the leaflet was
under litigation.
Brother Ron Obier said that he wanted to -discuss
it.
-
Brother Wayne Gilbert said that he would like-to
-discuss the leaflet and who wrote it if it could be
discussed.
Brother Ken Lowell said that wasn't there laws
that protected us from leaflets of this sort being
passed?
President Nilson said labor laws permit people to
pass any leaflet they like.
On the day of and during the internal union delegate
election, Mary-Alice Moran and Gilbert distributed a
further leaflet urging employees to vote for the slate
sponsored by the "Committee-of the Rank and File."
That document purported to contain substantiation of the
allegations against Local 707 functionaries with respect
to the alleged forgeries and the alleged double dipping
by Dora Woods. i i
" See G C Exh 5 This document touched on a new issue Thus, Gil-
bert apparently had been terminated by UTC in 1982 for having sought
belatedly to excuse absences on grounds that earlier absences were attrib-
utable to union business . G C. Exh 5 included a reproduction of a letter
sent to UTC by Local 707 on April 12, 1983, for the purpose of excusing
Shop Chairman Gogliettino's earlier absence on Tuesday, -March 22,
1983. That document did not reflect on any misfeasance toward Local
The Morans and Gilbert met with limited success in
the election, apparently being elected only to those dele-
gate positions where their candidacy was unopposed. -
C. The Initial Internal Disciplinary Charges
Local 707 held a regular membership meeting on Janu-
ary 15, 1984. During the course thereof„ disciplinary
charges. against Gilbert and the Morans were read to the
membership and served. All were accused of the follow-
ing:
[C]onduct unbecoming of a member tinder Article
11 Section 3 of the IAM constitution . . . by ._ . .
actions of distributing literature- that was vicious
and malicious in it 's [sic] content. The literature was
worded in such a manner as to destroy the IAM
and its affiliated Local Lodge 707.12
In addition , Alta Moran as the incumbent financial ' secre-
tary was charged with the following:
"[I]ncompetence, negligence, or insubordination in
-the failure or refusal to perform duties validly as-
signed" by her reproduction of Local Lodge
records and openly distributing them during a local
lodge election during December 1983; by her not
filing the Qtr Tax return and her refusal to do the
4th Qtr tax return; by her refusal to do the Federal
W-2 forms; by her refusal to do the individual pay-
roll ledger; and by her- being many months -delin-
quent in the Grand Lodge reports. A violation of
.Article L Section 2.13
In accordance with the International constitution and a
declaration of policy published pursuant thereto, the im-
position of internal discipline against members entails a
multistep procedure triggered by the filing of written
charges. Thereafter, a trial' committee may be appointed.
The trial committee will conduct an investigation of the
charges and decide whether there is sufficient substance
therein to warrant a trial. Should it be determined that a
hearing is warranted, the trial committee is required to
notify the member of the charges, and when and where
to appear for trial." a -
Although the pending charges could have been han-
dled by a trial committee appointed within the Local
Lodge, President Nilson requested Grand Lodge Presi-
dent Winpisinger to appoint a special trial committee, as
constitutionally authorized by article L, section 7.15 In
707 by Gogliettino or any other union official - Instead , its publication
merely called public attention to the fact that a fellow union member had
been guilty - of conduct towards the Employer, for which another
member, Gilbert, had been discharged
l Y See G C Exhs 6 (a)-(c); G C Exhs . 29 (a)-(c) Separate charges
were signed by a list of members , as well as one separately filed by Local
President Nilson.
13 See G C' Exh 29(c)
'* Art L, sec 8 of the constitution imposes a specific obligation on the
trial committee to "allow the accused a reasonable time (not less than 7
calendar days after notification ) to prepare his defense " See A . Exh 1, p
125 -
is See A. Exh 1, p 123 Contrary to the General Counsel , I see no
evil in the fact that, unlike the heretofore discussed Sasser forgery case,
Continued
MACHINISTS LOCAL- 707 (UNITED TECHNOLOGIES) - 989
accordance therewith, by letter dated January 27, 1984,
the International, through President - Winpisinger, as-
sumed jurisdiction,.over the pending charges 16 On Feb-
ruary 9, 1984, the parties were notified that a special trial
committee had been appointed and would open its inves-
tigation on February 16, .1984. The committee consisted
of IAM members having ,no immediate affiliation with
Local 707 or District 91.
In the meantime, an unfair labor practice charge, chal-
lenging legitimacy under the Act of the initial set_ of
charges, was filed by Wayne Gilbert on January 17,
1984.
D. The Second of Internal Disciplinary Charges
The trial committee, in furtherance of its investigation
function, met as scheduled on February 16, 1984. At that
time , Gilbert and the Morans were informed verbally
that new allegations had been raised against them. They
objected on grounds that new charges had not been
served in-writing.
Subsequently, by* mail on February 22, 1984, Alta
Moran was served with additional charges. One was
filed by Grand Lodge representative Almeida and an=
other by Andrew D. Romegialli, a District 91 represent-
ative. All charged Alta Moran with malfeasance, nonfea-
sance , and misfeasance , with each, setting forth the fol-
lowing as specific grounds for the allegation:
As financial secretary of Local Lodge 707 she
did issue unemployment stamps fraudulently to
Wayne A. Gilbert . . . for the months December,
1982 and June, July, 1983. While he was' employed
as labor representative of District Lodge 91.
•During her term of office as Secretary-Treasurer
of District Lodge No. 91 she did pay Wayne A.
Gilbert . . . labor representative of District Lodge
No. 91 a week's vacation pay to which he. was not
entitled. 17
On February 2, 1984, Sister Moran with the as-
sistance of Brother Wayne A. Gilbert did forceably
and knowingly remove a desk from the local lodge
premises containing documents, files and records,
the property of Local Lodge No. 707. She further
violated her oath of office and with knowledge vio-
lated Article 11, Section 3 by refusing to comply to
a valid directive from the Local Lodge President
Nilson and Labor Respresentative Romegialli.18
About a month later new charges were first served
upon Gilbert. This • occurred during a regular union
meeting held -on March. 18, 1984. In that filed by Al-
meida , Gilbert was accused of "conduct unbecoming a
the charges in the instant case were processed through appointment of an
"external" trial committee . The instant conduct of the Morans and incum-
bent officials of Local 707 Accordingly, there is no -reasonable founda-
tion for drawing inferences against Respondents for 'having exercised
judgment in a fashion which accounts for that material difference
16 See G C. Exh. 7.
17 See G C. Exh 31
18 See G.C. Exh. 32 '
member-specifically, by: "defrauding- District Lodge 91
of (1) week's pay during the year 1982, while serving as
a labor representative of District Lodge No. 91.19
In addition to the above, Almeida and District Repre-
sentative Romegialli separately filed identical charges
stating as follows: -
[S]pecifically, . I charge Brother Gilbert with violat-
ing the Grand Lodge Constitution Article L, Sec-
tion 3, by his refusal of a valid directive by Local
Lodge No. 707 President Nilson and Labor Repre-
sentative Rovegialli on February 22, 1984 when he
did knowingly and forcibly assist Sister Alta Moran
in the removal of a desk containing: files, docu-
ments and records, property of Local Lodge No.
707 from the Local Lodge Office.20
Mary-Alice Moran, at the March 18 meeting , was also
served' with a new charge filed by Almeida alleging
"conduct unbecoming 'a office and member," in violation
of article L, section 3 of the constitution on the -follow-
ing ground:
Sister Moran knowingly did accept payment for lost
time , that was not warranted and did knowingly
accept unemployment stamps when she was not eli-
gible for- same.. These infractions constitute mal-
feance [sic] and nonfeance and misfeance [sic].21
In the interim, the trial committee apparently was con-
sideiing these new charges, though unserved. Thus, on
March 9, the trial committee notified Gilbert and 'the
Morans that the investigation would reconvene on
March 16.22 No information was provided to Gilbert
and the Morans as to the agenda for this renewed inves-
tigation. Accordingly, -on March 9, they inquired by
mailgram requesting that they be informed as to further
information the committee would like them to provide.
See General Counsel Exhibit 11. By mailgram dated
March 12 the committee, through its chairman, respond-
ed: "Please be advised that we are prepared to discuss
the content of the additional charges . . . . '
At that time the only additional charges that had been
both reduced to writing and served were those served by
mail to Alta Moraii on February 22.
Despite the absence of service, the committee, by
letter dated March 13, 1984, was informed by Interna-
tional President Winpisinger that he had asserted juris-
diction over the additional charge filed against Wayne
Gilbert concerning a vacation paid when he was a dis-
trict representative of District Lodge 91 as well as his
having received unemployment stamps improperly.23
-19 See G C. Exh 9(a)
20 See G C Exhs 9(b) and (c)
21 See G C Exh 37
22 See G.C. Exhs 10(a) and (b)
23 See G.C. Exh 13 The unemployment stamp issue was related solely
to union dues policy Thus, under the existing arrangement the dues of
those unemployed for a majority of weeks in a month is reduced to 50
cents monthly Moreover, those out of work by reason of illness were
released entirely from their monthly dues obligation The unemployment
stamp was merely the bookkeeping means by which reduced dues status
was recorded on internally maintained dues cards of the individual mem-
bers.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There was no reference in the letter to any other charges
pending against any other of the accused. At- the trial
committee meeting of March 16,:Gilbert, when informed
that the Grand Lodge president had asserted jurisdiction
over the new charges, was permitted to respond and. did
so.
Subsequently, on April 5, Gilbert met with Almeida,
inquiring as to why- Almeida was pressing charges
against him.24 During the course of the discussion, Al-
meida for the first time accused Gilbert of a new offense,
double dipping. In doing so, he -explained-. that -evidence
was available showing that, Gilbert, while being paid
compensation by the Union for time out of work due to
the performance of union business, was actually working
for the Company. The charges were denied by Gil-
bert.25 Gilbert also testified that Almeida admitted that
he had informed the Morans that they would "suffer
some heavy consequences as a' result of distributing the
leaflet ."28 - -
On or about April 11, Almeida met with Gilbert' and
Alta Moran. Also attending was the directing labor rep-
resentative for District 91, Charles Tracy. This meeting
was set up in consequence of Almeida's suggestion that
he show Gilbert the evidence he held in advance of the
actual trial. At that time Almeida again made reference
to additional allegations beyond those covered, by the
written charges, including (1) Gilbert's having taken a
trip to Hawaii in -1982 as a guest of American Income
Life Insurance Company, a . firm that had solicited busi-
ness successfully from among members of Local 707, (2)
the fact that in 1980 a single expense check had been
made payable to-Gilbert to cover expenses of four indi-
viduals attending the Grand Lodge 2-week convention in
Cincinnati in 1980, (3) the - fact- that certain funds of
Local Lodge 707 were placed in a, COPE account
24 Gilbert accused Almeida of having interfered with Gilbert's efforts
to secure a position "with the State Unemployment Compensation Com-
mission. According to,Gilbert, Almeida admitted to this, explaining he
would not, allow anybody who was subject to internal charges before the
IAM to receive that type of position Almeida denied that he had taken
any such measures against Gilbert or to having told Gilbert that he had
done so . He testified that his sole involvement in connection with a va-
cancy on the unemployment commission was an inquiry concerning an-
other candidate for the job and his favorable recommendation on behalf
of that individual . Almeida testified that in the course of his conversation
concerning that job, Gilbert's name did not come up Almeida was
hardly regarded as an impeccable witness However , as between the two,
Gilbert impressed as the more unreliable I would note , in this connec-
tion, that the complaint, as amended , includes no allegation that Almeida "
violated Sec 8(b)(1)(A) by threatening interference with job opportuni-
ties of Gilbert on the basis of his role in connectiob with the distribution
of the leaflet. r
2s Gilbert also testified , incredibly , that Almeida during their conversa-
tion stated that he was sent to Connecticut by the Grand Lodge to "get
rid of the trouble makers" and that his first targets were the Morans and
Gilbert. According to Gilbert, Almeida said "the leaflet that we had
generated in December about , the happenings in the Local Lodge were
the reasons for him being sent here to begin with . .. " However, con-
trary to Gilbert, it is clear from the record-that Almeida 's tour began in
November , prior to the distribution of the campaign literature Gilbert,
whose testimony was considered to be unreliable in several critical areas,
was not believed in this respect '
26 Almeida credibly `denied making such a statement to Gilbert. He
admits to telling Gilbert "that distribution of that type of literature did
nothing but cause problems for the people concerned and it'would have
an adverse affect on District 91 and Local Lodge 707." Here again Al-
meida is given the benefit of the doubt
beyond the control of IAM; and (4) the fact the checks
signed by- Gilbert had been made out to "cash." These
allegations were never reduced to writing.
E. The Trial
The AIM constitution in article L, section 8, in materi-
al part provides that "a time set for trial shall allow the
accused reasonable time . . . to prepare his defense." By
letter dated April 17, the parties were informed that the
trial would. be held, commencing at 9 a.m. -on May 16-
17, 1984.27 By letter dated April 26, 1984, Gilbert wrote
the chairman of the trial committee requesting that the
trial be transferred to a weekend to avoid interference
with his recently acquired employment. 28 In this con-
nection, Official Cicular 703, 29 in setting forth guidelines
for conducting trial proceedings, states as follows:
Any request to" postpone or change the date of the
trial should be acted upon by the Trial Committee
with due regard for the reasonableness of the re-
quest and the complexity of the charges or the of-
fense, and any delaying tactics that the principals
may be trying to employ.
By. letter dated May 11, 1984, Gilbert's request, through
Chairman Loudenslager, was summarily denied.90 The
trial convened on May 16 as scheduled. - Gilbert was
absent at the outset. Pursuant to Official- Circular 703, it
is incumbent upon the trial committee to enter the
charges into the record as an exhibit at the outset of the
hearing. Consistent therewith, Almeida read the charges,
which were limited to those in writing and previously
served. Their subject matter is outlined below:
1. The distribution of vicious and malicious litera-
ture calculated -to destroy the IAM and Local 707.
2. Acceptance of payment from Local 707 for
lost time when not on Union business. -
3 -Acceptance and fraudulent issuance of unem-
ployment stamps when not eligible for same. '-
4. Removal of Alta Moran 's desk containing
property of Local 707 in violation of a directive
from the President of Local 707.
5. Authorization to and receipt of one week's va-
cation pay by Gilbert from District 91 to which he
was not entitled.
Following this submission and the reading of the
charges, Almeida, as council for the- plaintiff, informed
the trial committee, "no further charges at this time." At
no time thereafter were new charges reduced to writing,
so `as to allow the accused advance notice, under condi-
tions providing a reasonable opportunity to respond as
required by article L, section 7, 8, and 10 of the IAM
constitution , and Official Circular 703. Moreover, appar-
ently by oversight the pending charges read by Almeida
and, inserted in the record before the trial committee
were incomplete . Thus, there was-no mention of General
21 See G C. Exh. 14.
28 See G.C Exh 15.
29 See A. Exh. 2.
30 See G C Exhs. 16(a) and (b).
MACHINISTS LOCAL 707 (UNITED TECHNOLOGIES) 991
Counsel Exhibit 13, which pertained to allegations that
Gilbert fraudulently received unemployment stamps or
General Counsel Exhibits 29(a), (b), and (c),` insofar as
they relate to allegations against Alta Moran for having
reproduced and distributed Local 707's documents.
Copies of these charges were not introduced initially in
the record before the trial committee.31
During the hearing, after calling witnesses concerning
the distribution of election literature by the accused, A1-
meida stated that he would "withdraw . . . the charge
dealing with the circulating of literatures [sic] . . . that
portion dealing with the circulation of literature will no
longer be discussed in this hearing."32
Almeida, over the objection by the accused, was al-
lowed repeatedly by the trial committee to introduce evi-
dence regarding alleged misconduct which was not the
subject of written charges. These allegations were varied
and substantial, and pertained to the following:
1. Gilbert's 1982 trip to Hawaii at the expense of
American Income Life Insurance Company and the al-
leged submission by Gilbert of Local 707's membership
list to that firm. (See Jt Exh. 3(a) p. 57, et seq.)
2. Gilbert's attendance at a 1980 Grand Lodge conven-
tion together with three other delegates from Local 707,
accompanied by an expense reimbursement in the form
of a single check for all four, payable to Gilbert, rather
than separate checks. (See' Jt. Exh. 3, pp. 69-75.)
3. The establishment of a COPE fund, which was de-
posited in an account beyond the control of Local 707.
(See Jt. Exh. 3, Tr. 80, et seq.)
4. Alleged double dipping on the part of Gilbert
dating back to January 1980, whereby he received pay-
ments from Local 707• for time spent on union business,
corresponding to periods when he was actually on pay-
roll status and working for UTC. (See Jt. Exh. 3(a), p.
154, et seq.)
5. In July 1981, Gilbert was paid by Local 707 for ex-
penses in connection with his attendance at an AFL-
CIO conference in Atlantic City, N.J., even though he
received $2400 annually from the AFL-CIO in lieu of
expenses.
The trial concluded with the plea by Almeida that the
committee should find the accused guilty as charged and,
by way of remedy, his request "that they be stripped of
their membership . . . and never be allowed to become a
part of this organization again."
At the time of the instant hearing, the trial committee
had not as yet rendered a determination of the matter.
F. Concluding Analysis
The instant 8(b)(1)(A) allegations are predicted on
three distinct acts of alleged coercion. The first relates to
a verbal threat attributed by the Morans to George Al-
meida prior to the distribution of the leaflet. The second
derive's from the filing and processing of internal union
charges against Gilbert and the Morans on the specifical-
31 Despite omission of the charges against Alta Moran based on repro-
duction of Local 707's documents , Almeida over objection by the ac-
cused was given permission by the teal committee to add the January 12,
1984 charges filed by' Nilson in that respect See Jt Exh 3(a), pp 145-
147, Exh 19
32 See Jt Exh . 3(a), p. 114
ly stated ground that they participated in the distribution
of the election campaign leaflet . The third related to the
expansion of the internal disciplinary procedures to in-
clude additional misconduct on the part of Gilbert and
the Morans which, according to the General Counsel,
was a pretextual sham , motivated as a reprisal for distri-
bution of the election campaign leaflet . See, e .g., Frank
Mascali Construction Co., 251 NLRB 219, 248-249 (1980).
Consistent with the observations of the General Coun-
sel, under estabilished Board policy, "an employee's right
to engage in intraunion 'activities in opposition to the in-
cumbent leadership of his union is concerted activity
protected by Section 7 .. .." Steelworkers Local 1397
(United States Steel Corp.), 240 NLRB 848, 849 (1979).
The Board has further held that the threatened, attempt-
ed, or actual invocation of internal disciplinary charges
by a union representative has a sufficient tendency to
impede employees in the exercise of rights protected by
the Act to fall within the pressures condemned by Sec-
tion 8(b)(1)(A). See, e.g., Plumbers Local 13 (Mechanical
Contractors Assn.), 212 NLRB 477, 479-480 (1974); Elec-
trical Workers IBEW Local 34 (Protection Alarms), 208
NLRB 639, 641 (1974); Auto Workers Local 1989 (Cater-
pillar Tractor Co.), 249 NLRB 922, 923 (1980).
Moreover, the coercive thrust of the conduct involved
here is not vitiated by the latitude afforded labor organi-
zations under the proviso to Section 8(b)(1)(A). That ex-
emption merely states that Section 8(b)(1)(A) "shall not
impair the right of a labor organization to prescribe its
own rules with respect to the acquisition or retention of
membership therein" and affords no license for intimida-
tion of members who wish to express criticism of union
leadership. That point was clarified in Scofield v. NLRB,
394 U.S. 423 (1969), where the Supreme Court ruled that
a labor organization would be exonerated from an other-
wise improper assertion of internal remedies , only when
(1) the- discipline related to a properly adopted internal
rule, (2) the rule reflected a legitimate union interest, (3)
the rule failed to impair any congressionally established
labor policy, and (4) the rule is being enforced reason-
ably only against those whose membership is voluntary
and, thus, are free to leave the union and hence to escape
the rule. (394 U.S. at 430.) Under the precedent, these
conditions have been held to have been met only in cases
involving fines imposed upon voluntary members for
crossing legitimate picket lines,33 in cases involving the
expulsion of members for participation in decertification
activity,34 cases involving the suspension of members for
nonpayment of dues,35 and where a labor organization
acts to remove an official because hostile to and in a dis-
agreement with the leadership.36 Subject to these excep-
33 See, e g , Allis-Chalmers Mfg Co., 388 U S 175 (1967)
34 See, e g, Tawas Tube Inc, 151 NLRB 46 (1965) See also Transport
Workers Local 514 (Zebco Corp), 249 NLRB 1171 ( 1980). This exception
has been tailored to cases involving expulsion Where those engaged in
decertification activity are fined , the Board has found the internal disci-
pline to be violative of Sec 8(b)(1)(A) See, e g, Blackhawk Tanning, 178
NLRB 208 (1969)
35 See also Teamsters Local 13 (Mobile Concrete), 268 NLRB 930, 931
fn 4 (1984)
33 See Shenango Inc, 237 NLRB 1355 (1978)
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions the proviso has been narrowly construed, particu-
larly where internal discipline is invoked in aid of the re-
pression of dissent. In such a context, a union was-
deemed guilty of an 8(b)(1)(A) violation in Carpenters
Local 22 (Graziano Construction Co.), 195 NLRB 1
(1972), wherein it was stated that internal discipline "in-
vades or frustrates an overridding policy of the labor
laws" by depriving "members of the right, as guaranteed
by the Labor-Management Reporting and Disclosure
Act, to participate fully and freely in the internal affairs
of his own Union." Id. at 2.
1. Consistent with the above principles based on the
credited testimony of the Morans, it is concluded that
Respondent Local 707 and Respondent International vio-
lated Section 8(b)(1)(A) when, about December 12, 1983,
Grand Lodge Representative George Almeida attempted
to dissuade them from distributing the leaflet in question
by advising that if ,they did so, they would suffer "dire
consequences," including "internal Union charges and
civil litigation."37 -
2. It is further concluded that Respondent Local
Lodge 707 and the International violated Section
8(b)(1)(A) by filing in January 1983 and later processing
internal union charges against Wayne Gilbert and the
Morans specifically founded upon their involvement in
the preparation and distribution of the election propagan-
da.38 See Steelworkers Local 1397 (U.S. Steel Corp.), 240
NLRB 848 (1979).
3. Beyond the foregoing, the General Counsel charges
Respondents with additional 8(b)(1)(A) violations based
on the filing and processing of additional internal 'union
charges against Gilbert and the Morans in March and
April 1984. These later charges enlarged the scope of the
interiial' disciplinary proceeding to include allegations
which were unrelated on their: face to the distribution of
the election campaign leaflets. Nonetheless, consistent
with the position of the General Counsel, the total cir-
cumstances include . convincing evidence that these
charges were pretextual and would not have been regis-
tered had the Charging Parties not engaged in, the pro-
tected act of publicly criticizing the leadership of Local
Lodge 707. See Wright-Line, 251 NLRB 1083 (1980).
At the outset, it is noted that the content of the leaf-
lets, including charges of drug use, forgery, and theft,
was likely to, and did, inspire strong adverse reaction on
the part of the union leadership. That hostility became
manifest through Almeida's threats uttered even before
distribution of the leaflet, which were echoed after distri-
bution by Local 707's formal response to the leaflet.
These threats were expressed with knowledge that inter-
37 There is no evidence that Almeida was a duly constituted official of
Respondent Distract 91, nor is there fair basis for concluding that in this
respect Almeida was furthering any interest or acting in comport with
any policy of that entity Accordingly, no violation is found with respect
to Respondent Distract 91 in this respect On the other hand , his.conduct
is deemed binding on Respondent Local 707, the latter having subse-
quently condoned and ratified this act of coercion See G C Exh. 4
38 Here again , unlike the Grand Lodge and Local 707 there is no
showing that any representative of District 91 participated in the filing or
processing of such charges, or that said conduct furthered or was consist-
ent with interests of policy of that organization . Accordingly, there is no
basis for imputing liability to Distract 91 in this respect See Jt Exh. 2, p
2.
nal disciplinary action could not be maintained legiti-
mately on the basis of the leaflet. Thus, in the minutes of
the December 17, 1983 union meeting,-which were sub-';
sequently ratified by Local 707, President Nilson stated
as follows: ".. .. labor laws permit people to pass any
leaflet: they like." Consistent therewith the prosecution of
internal charges on that basis was barred pursuant to
Grand Lodge policy as published in Official Circular
703, as follows:
[D]ue to court decisions involving the "Free
Speech" sections of the Labor Management Report-
ing and Disclosure Act of 1959, Section 3, was
amended by Convention action to eliminate the fol-
lowing:
Circulating or causing in any manner to be circu-
lated any false or malicious statement reflecting
upon the private or public conduct, or falsely or
maliciously attacking the character, impugning
the motives, or questioning the integrity of any
member of office. -
Charges will no longer be processed against a
member or officer for internal political activity
which tends to be scandalous, false or malicious.39
The need.to bypass this limitation was admitted when
Almeida himself conceded that prior to- the trial and
during the trial committee' s investigation of the charges,
he was aware of the fact that the distribution of litera-
ture was covered by Circular 703, that he would be
unable to pursue these matters before the trial board and,
thus, that it would be necessary to uncover-additional
grounds for maintaining the internal action or the pro-
ceeding would have to be dropped .40
1. The second attempt at written charges
Along this same line, Almeida conceded that distribu-
tion of the leaflet was the immediate cause for a collater-
al investigation, directed by the International Union,
which ultimately produced new, quite distinct charges
against Gilbert and the Morans.41 His desperation to vin-
dicate, through these charges, the hostility held against
the Charging Parties is evident from the reckless fashion
in which they were pursued. All of the allegations
appear to have been hastily contrived, several were total-
ly lacking in evidentiary support, and others were of-
fered in a context showing that the Charging Parties had
been singled out disparately. This is exemplified by the
following: ,
(1) In addition to the presentation to the trial commit-
tee of the overall allegations concerning the distribution
99 See Jt Exh 2, p 2
40 Despite these revelations, at the trial, Almeida presented evidence
and testimony relevant to allegations based on the leaflet The evidence
was entertained by the trial committee unit withdrawn by Almeida
during the course of the proceeding In the circumstances , logic supports
the observation by the General Counsel that Almeida's having elected to
proceed in this fashion could only he explained in terms of his desire to
influence the trial committee and to enlist their sympathy in the effort to
punish those responsible for the leaflet
41 See Dupont Puerto Rico, Inc, 262 NLRB 1003, 1004 (1982)
MACHINISTS LOCAL 707 (UNITED TECHNOLOGIES)
of the election literature, Almeida maintained the charge
against Wayne Gilbert based solely on his alleged in-
volvement in the distribution of that document Gilbert
did not participate in any such conduct, there was no
evidence that he did, and none was presented to the trial
committee by Almeida to support that allegation. Thus,
Almeida elected to proceed to teal on the "distribution"
allegation without any substantiating evidence what-
ever.42 "
(2) The half-baked effort to "get" Gilbert was also
marked by the charges based on his alleged fraudulent
use of "unemployment stamps." Under union policy,
those unemployed for a major portion of the weeks in a
month are only required to pay 50 cents dues. Dues for
such periods will be refunded to those eligible who are
on checkoff. To signify such status on internal records,
an "unemployment stamp" is placed on the dues card of
members of Local Lodge 707. Among, the formal
charges against Gilbert was an allegation that he improp-
erly received an unemployment stamp during the month
of December 1982 Before the trial committee, the case
against Gilbert in this respect was tied together by evi-
dence that- a check had been issued to him covering a
$19.20 refund of dues for December 1982.43 In fact, the
refund check described under oath before the trial com-
mittee as having been issued to Wayne Gilbert had not
been issued to him at all but was in fact payable to an-
other member "Wilbert Gilbert."44 This discrepancy is
difficult to understand. Almeida confirmed that Gilbert,
prior to the trial, in April 1984, informed Almeida that
he had not received an unemployment stamp and had
paid his dues in December 1982. Apparently, Almeida in
his zeal , not only misidentified the check payable to an-
other member, but neglected to verify whether a dues
refund to Gilbert had been recorded on Local 707's cash
disbursement ledger for that month.
(3) Alta Moran was also the object of charges in this
regard. It was alleged that she was guilty of malfeasance,
nonfeasance, and misfeasance for having issued unem-
ployment stamps "fraudulently" to-Wayne A. Gilbert for
the month of December 1982. The refund check offered
to the trial committee in connection with this matter was
signed by Local 707 officials Gomes and-Nilson. Charges
were not filed against either of the latter. On the other
hand, the charges were maintained against Alta Moran,
despite the absence of evidence that she in any way was
involved in the issuance of any unemployment stamps
during the time frame in question.
(4) With respect to allegations that Gilbert fraudulent-
ly received unemployment stamps for the month of June
and July 1983, Local 707' s dues records showed that
Wayne Gilbert paid full dues for the month of June.45
As for July 1983, uncontradicted testimony by Gilbert
indicates that on, March 16, 1984, the trial committee and
Almeida during investigatory stages were informed that
42 As indicated , this charge was not withdrawn until May 16 See Jt
Exh 3a,,p 114
43 See Jt Exh 3(b), pp 274-275; P Exh 34
44 See G C ' Exh. 40, which is the same check No. 10401 issued to Wil-
bert Gilbert that was offered to the trial committee in support of the alle-
gations against Wayne Gilbert. See Jt Exh 3(b), p. 273.
45 See G.C. Exh. 17.
993
he had been laid off from his job as a District 91 repre-
sentative and hence was entitled to reduced dues status
at that time. Despite the earlier revelation, the charges
were maintained even though no evidence was ever of-
fered to the trial committee to refute Gilbert's stated ex-
planation of that incident.
(5) Almeida charged Mary-Alice Moran with having
knowingly accepted unemployment stamps when she
was not eligible. In fact, Mary-Alice Moran was out of
work due to personal illness during all periods covered
by this allegation . Although this allegation was sup-
posedly investigated by the trial committee, Almeida
conceded that there was no evidence to the effect that
she was ineligible. Almeida claims that initially he relied
upon her failure to pay any dues during the periods in
question. Almeida admitted that his investigation dis-
closed that many others, including Local 707's president
Gary Nilson, had the same experience as Mary-Alice
Moran in this respect, but none were charged. Indeed
Almeida further admitted that he was aware that she was
on sick leave during the months in question, and that he
knew that under the Local 707 policy those on sick leave
are relieved of the obligation to pay even the partial dues
of 50 cents monthly. After these matters came to light,
Almeida seemed to switch horses indicating that the sole
impropriety related to the fact that the books of Local
707 reflected no transaction covering the periods in ques-
tion.46 Concededly, however, Mary-Alice Moran had no
responsibility in connection with maintenance of the
books and ledgers involved.
(6) The only other count pertaining to Mary-Alice
Moran related to an allegation that she accepted pay-
ment for lost time that was unwarranted. There was no
evidence, whatever, to support this allegation . Indeed,
Almeida conceded before the trial committee that the in-
vestigation disclosed no wrongdoing whatever during
the time ' frames in question. Thus, all charges against
Mary-Alice Moran were totally without support from
the evidence, and prior to the trial Almeida, rather than
suppress them, continued to proceed with knowledge
that the allegations of impropriety in her case were base-
less.
(7) Wayne Gilbert was charged with having improper-
ly received vacation pay from District 91 while em-
ployed as a district 'representative. According to Al-
meida, in investigating the records of District 91, it was
discovered that three representatives including Gilbert
began their employment with District" 91 on the same
day, yet only Gilbert received vacation pay. The vaca-
tion was paid in December 1982, with knowledge of Dis-
trict 91 officials Tripp, Weber, and Tracy.47 No one had
previously filed disciplinary charges with respect to the
matter. Almeida expressed concern with his ability to
define District 91 policy on vacations in this area and,
46 See Jt Exh 3(b), pp 276-277
49 The evidence offered to the trial committee was limited to docu-
ments showing that Gilbert and two others reported for work as repre-
sentatives on August 1, 1982, and that only Gilbert received any vacation
pay from Distract 91 that year, together with somewhat speculative testi-
mony on the part of Tracy that Gilbert received his full vacation pay for
1982, "as far as I know"
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other than his conversations with Tracy and Weber, he
had no personal knowledge as to whether or not Gilbert
was eligible for the vacation pay he received in Decem-
ber 1982. It is clear, however, that Almeida-was aware
that District 91 had a practice of reimbursing a repre-
sentative during the initial year of service for vacation
not received' from the Company. Almeida simply acted
upon the fact that Weber speculated that "he [Gilbert]
should have received his pay by the Company" Almeida
admitted that Weber did not say that Gilbert had in' fact
received such pay, and that he did not bother to inquire
as to whether Gilbert had received any vacation pay in
1982 from the Company, or how much .411
(8) Charges against Gilbert were also maintained on
grounds that he abused Local 707's practice of reimburs-
ing members for time lost from work due to their in-
volvement in union business . Almeida freely admitted
that such conduct was not limited to Gilbert and the
Morans-but others were guilty of the same abuse, includ-
ing Local Lodge 707 President Nilson and Shop Chair-
man' Gagliettino. No internal disciplinary proceedings
were invoked against the others. Furthermore, although
Almeida maintained that double dipping was evident
from payroll records furnished by the Company, those
specific records were not placed in the record before the
trial committee. On the other hand, payroll, records sub-
mitted in evidence in this proceeding, do not permit any
conclusive determination that Gilbert was improperly
compensated by the Union for time not spent on union
affairs,49 or for absences unrelated to the performance of
the union business, or that he received pay from the
Union for periods in which he was on active payroll
status for the Company.
2. The unwritten charges and the prejudicial
conduct of the trial committee
Beyond these charges, which were written and under
consideration for some time prior to the trial, others
were presented by Almeida and entertained by the trial
committee, under conditions which not only reinforces
the General Counsel's view as to the true underlying
motive, but which raises questions as to the impartiality
of that particular tribunal and its ability to conduct a
proceeding within the framework of constitutional guar-
antees. Indeed, from all appearances the trial committee
conspired with Almeida to reduce the internal procedure
to an instrumentality of harassment, rather than a legiti-
mate and fair means of evaluating, determining, and rem-
edying misconduct on the part of members. In this latter
regard, it is clear that, over the objection of the Morans,
the trial committee agreed to expand the proceedings to
cover allegations in violation of both the expressed dic-
tates of the International constitution and Circular 703,
48 At the time Alta Moran was financial secretary of District 91 A
check for I week's pay appears to bear her signature as well as that of
Mel Tripp, the president of the District Contrary to the information Al-
meida allegedly received from Weber, who did not testify in either pro-
ceeding, Alta Moran testified that the check was issued to Gilbert solely
on orders of Weber and District President Tripp Alta Moran's testimony
before me in this regard was allowed to stand as uncontradicted , primary
evidence -
49 See G C Exh 43
as well as basic considerations of fairness underlying the
requirements of,prior'notice and a reasonable opportuni-
ty to defend.' These new allegations were considered,
though unwritten, nonspecific, and unserved. It does not
appear that they were subjected to pretrial investigation
by the trial committee, and were entertained without ac-
knowledgement that they were within the jurisdiction of
the International president.50 As shall be seen below, the
unwritten allegations reflect. the same desperation, and as
a general rule were no more substantial than those earlier
presented:
(1) Evidence was presented implicating Gilbert and
Jean Moran in issuing checks payable to cash. According
to Almeida this was contrary to union policy. However,
he conceded that he was unaware that any such policy,
requirement, or limitation had been expressed in writ-
ing.51 He also admitted that this practice on the part of
Local 707 preceded Gilbert's ascendancy to the presiden-
cy, and Alta Moran's service as financial secretary.
Indeed, the evidence in his possession disclosed that the
practice of issuing checks payable to cash continued after
Gilbert's resignation and was followed by Nilson when
he became president. Nonetheless, consistent with the fa-
miliar pattern, no others have been charged with any
misconduct in this connection.
(2) Almeida, at the trial, charged Gilbert with having
accepted a trip apparently in 1980 to Hawaii, paid for by
the American Income Life Insurance Company in ex-
change for his supplying a mailing list of Local 707
membership to that firm. Pat Aceto, a former treasurer
of Local Lodge 707, was offered by Almeida to relate
that he "believed" that membership lists were in fact
turned over to American Mutual Life Insurance Compa-
ny but "with the approval of the District." On the face
of Almeida's evidence presented through Aceto, the
latter was uncertain as to the reason Gilbert was award-
ed the trip. Indeed, he could not with certainty link the
trip with the carrier, nor could he relate, clearly, that
trip to the submission of membership records to the in-
surance carrier. Finally, Aceto could not recall ever
having seen or being aware of a policy restricting deliv-
ery of membership records to an insurance carrier. Addi-
tional evidence offered by Almeida to the trial commit-
tee was presented through Ronald O'Brier , another
member of Local Lodge 707, who testified that he was
aware of Gilbert's trip, that it was connected to a par-
ticular insurance company, and that he had been contact-
ed by an agent of that firm, whom he could not identify,
but who indicated that he obtained O'Brier's name from
Wayne Gilbert. Thus, the evidence, concerning an event
which took place 4 years earlier, presented to the trial
so Neither Official Circular 703 nor the constitution authorizes or
makes provision for the amendment of charges at a trial to include new
and distinct issues Indeed , such an arrangement is diametrically opposed
to the express constitutional requirements of notification and investigation
prior to bringing a member, to trial The testimony of Almeida that the -
policy existed to the contrary is rejected as incredible
Si Almeida admitted that his investigation disclosed that the cash dis-
bursements book included an explanation for the expenditure in each in-
stance Accordingly , based on the accounting system in effect, the pur-
pose underlying each expenditure was traceable whether or not a check
was issued payable to a specific individual
MACHINISTS LOCAL 707 (UNITED TECHNOLOGIES)
committee included no specific expression that member-
ship lists were distributed to an outside firm by, Gilbert
or that he had violated any existing union policy in con-
nection with the trip to Hawaii.52
(3) The unwritten allegations first raised before the
trial committee included an assertion that Gilbert violat-
ed IAM _ policy by issuing a single check to cover his
own expenses and those of three other Local 707 dele-
gates to `the International convention held in Cincinnati
in 1980.53 Unquestionably, the delegates to that conven-
tion did not • receive separate advances. Instead, a single
check was issued, payable to Gilbert, which was cashed,
and after outlays, sustained by Gilbert, were deducted,
the balance was divided among the four. Almeida admit-
tedly had no evidence that there had been any complaint
about the incident. Moreover, Almeida's own witness,
Aceto, testified that it was normal for Local 707 to issue
a single expense check in this fashion and that the mem-
bership had voted on the amount of money to be allocat-
ed. Indeed if the policy described by Almeida existed, it
admittedly had never been reduced to writing.
(4) A further unwritten- allegation against Gilbert' was
premised on the fact that the executive vice-president of
the Connecticut AFL-CIO received an annual stipend,
in lieu of expenses, of $2400 from that organization.
Checks offered in evidence before the trial committee,
through Gerry Zannella, a grand lodge auditor, disclosed
that Gilbert, while serving in that capacity , was reim-
bursed by Local 707 in the amount of $274.53 for ex-
penses sustained by Gilbert in attending an -AFL-CIO
conference in 1981. No evidence was offered to the" trial
committee and it does not appear that partial reimburse-
ment by a Local Lodge or District to defray expenses
for attendance at AFL-CIO business sessions constitutes
double billing or double dipping under any policy minis-
tered by the International Association of Machinists. On
the other hand, according to minutes of a District 91 del-
egate meeting, payments in the amount of one-third of
Gilbert's expenses for attending state AFL-CIO assign-
ments, effective January 11, 1982, was recommended by
District 91's executive board and adopted through a del-
egate vote, an act which would be difficult to reconcile
with the existence of any violation of union policy in this
regard.54
(5) -The unwritten allegations against Gilbert and Alta
Moran included assertions that they engaged in misfea-
sance and nonfeasance because of their activities in con-
52 To support such a policy, Almeida offered Official Circular 714,
dated July 15, 1983, a document which did include such a restriction. Al-
though Almeida testified that this was merely an update of preexisting
policy, no corroboration was offered to that effect . Simply put, no evi-
dence was presented at any level to show IAM policy at the time of Gil-
bert's trip See G.C Exh. 23
62 The General Counsel observed that Alta Moran was implicated by
this evidence The transcript, however, of the proceedings before the trial
committee indicated that Almeida expressly took the position that this
issue was confined to Gilbert and had no bearing on the charges filed
against Alta Moran See Jt Exh. 3(a), p. 73, LL 8-19.
54 See G C. Exh 26 The General Counsel asserts that this incident
also involved charges against Alta Moran. In his testimony before me,
Almeida plainly had no, recollection that this was so, and from my
review of the transcript before the trial committee , it appears that Gilbert
was the only member charged in this respect
995
nection with the establishment of a COPE55 account.
Evidence was introduced before the trial committee in
this connection despite a confession- on the part of Al-
meida that this fund was properly established. Thus, the
membership of Local 707 agreed to participate in this
program, even though COPE is an arm of the AFL-
CIO, beyond the authority of the International Associa-
tion of Machinists. This decision was made either in 1980
or 1981 by the membership of focal 707. Contributions
were based upon revenues generated by receipts from a
-soda machine and raffles conducted at membership meet-
ings. With a single exception, other revenues of Local
707 were not involved. The charges against Gilbert and
Alta Moran concerning this issue were summed up by
the following exchange during the proceedings before
.the trial committee: -
THE CHAIRMAN: The fund as I understand from
the Plaintiff, that COPE fund was properly set up.
But how the monies were spent, how much money
was spent and where it was spent is the question in-
volved here.
MR. ALMEIDA: Exactly.56
Notwithstanding the above, no evidence was presented
by Almeida to the trial committee which suggested that
the funds were misappropriated, misused, or held and
disbursed for purposes unrelated to COPE interests. Con-
sidering the accepted fact that the membership of Local
707 authorized the • contribution of these revenues to
COPE, the means by which those funds were adminis-
tered by COPE officials was a matter of concern to IAM
only if its officials were involved in misconduct in col-
laboration with those responsible for handling the fund.
No evidence was offered to this effect.57 Moreover, Al-
meida, in pressing these charges, knew that the COPE
contributions, and the means by which they were han-
dled, existed since " 1981 and continued thereafter, with
knowledge of Local 707 officials, including Nilson. The
arrangement ended in March 1983.
C. Conclusions as to the Pretext Issue
,Substantively, the charges outlined above were either
stale , based on events, approved and condoned by the
membership, totally unsubstantiated, or disparately - in-
voked. They were the by-product of the type of scant in-
vestigation frequently found in pretext cases. The sham is
also evident from the performance of'the trial committee,
which, sheparded by Almeida , seemed to reject any pre-
tense of impartiality. In this latter regard, the trial com-
mittee reflected a clear propensity to rule at every turn
66 Committee on Political Education
56 See Jt Exh 3(a), p. 135
37 In this regard it appears that Local 707 contributions were delivered
to COPE representative , Dante Bartolmi The latter, instead of depositing
these sums into a general COPE accout, established a separate account in
his own name There is no evidence that Gilbert and Alta Moran were
aware of this fact In any event , Bartolini's action occurred after the
funds had been relinquished by Local 707 and the propriety of the proce-
dures under which these funds were maintained would seem to have been
a matter controlled by the Greater New Haven Central Labor Council,
rather than officials of Local 707
996 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the `accused, often at the expense of established
guidelines, guarantees set forth in the IAM constitution,
and basic considerations of fair play. The chairman's
technical approach to requests on motions on behalf,of
the accused was contrasted with his flexibility in dealing
with those of Almeida. During the absence of Gilbert,
the chairman not only denied the Morans the opportuni-
ty to act as his counsel,58 but refused to permit them to
cross-examine witnesses affording testimony in substan-
tiation of charges against Gilbert, or even to examine
documentary evidence offered against him. Indeed, after
Gilbert's arrival, the chairman interceded to deny Gilbert
himself the opportunity to review evidence offered
against him during his absence.59 Beyond that, the trial
committee appears to have acted in violation of constitu-
tional guarantees by entertaining unwritten, nonspecific,
uninvestigated, unserved allegations, which were neither
accepted by the International president as within his ju-
risdiction, nor presented to the accused in a form which
provided reasonable notice and opportunity to prepare a
defense. These indiscretions were explainable only in
terms of an overall vindictive attempt to implement prior
threats and to condemn those responsible for the dissemi-
nation of derisive propaganda, so as to make it clear to
the membership as a whole that this kind of conduct
would not be tolerated at any level through which the
Union exercises authority. Accordingly, consistent with
the contention of the General Counsel, it is concluded,
on the totality of the evidence, that the aforedescribed
written and unwritten- allegations would not have been
maintained had Gilbert and the Morans not engaged in
activity protected by Section 7 of the Act. Accordingly
'merit is found in the assertion by the General Counsel
that the filing of those charges and their maintenance
before the trial committee violated Section 8(b)(1)(A) of
the Act -
The General Counsel contends that the Respondents
Local Lodge 707, the International , and District 91 were
liable as joint venturers with respect to the aforede-
scribed unfair labor practices. In this regard, the evi-
dence does suffice to establish that the International and
Local 707, through duly designated representatives,
knowingly processed pretextual charges against the
Morans and Gilbert, and that Respondent International,
through the conduct of those sitting on the trial commit-
tee, pursuant to its designation , as well as the efforts of
Grand Lodge Representative Almeida as counsel for the
plaintiffs, contributed to a pattern of unlawful conduct to
punish those responsible for the publication of election
propaganda critical of Local 707 functionaries. On the
other hand, the evidence failed to disclose a reasonable
basis for concluding that District 91 was a party to that
56 Gilbert testified credibly and without contradiction that in a tele-
phone conversation on May 16 with Chairman Norman Loudenslager,
Gilbert requested that the Morans represent him as attorneys in the hear-
ing that day. Loudenslager admitted on the face of the transcript to re-
ceiving a call from someone identifying himself as Gilbert that day See
it Exh 3(a), p 150, L 622-623
50 At the heels of an ongoing dispute concerning access to these docu-
ments, the Morans were barred from the hearing on May 17 See it Exh
3(b), pp. 228-229. Following their exclusion , since Gilbert was also
absent, none of the accused were present as evidence was offered against
them that day
agenda . No representative of the latter sat on the trial
committee . Cf. Machinists JAM District Lodge 99 (General
Electric Co.), 194 NLRB 938, 950 ( 1972). No official of
the District was shown to have been aggrieved by the
accused It is true that representatives of District 91 were
called to testify before the trial committee and provided
evidence with respect to-certain incidents , and that. Dis-
tri ct representative Romegialli filed charges in connec-
tion with the desk removal of February 22. In the cir-
cumstances , however, the involvement in these respects
was either perfectly legitimate or involved an assertion
of membership responsibility which furthered no percep-
tible interest of District 91 or policy of that entity. In the
circumstances , it would be unrealistic to assume that par-
ticipants in the disciplinary proceeding were acting
within the scope , of any authority conferred by District
91, or that the latter condoned or ratified their involve-
ment . Accordingly , the allegations shall be dismissed in-
sofar as they apply to Respondent District 91. See, e.g.,
Machinists District IAM Lodge 99 (General Electric Co.),
supra. -
As a final point, while the aforesaid unfair labor prac-
tices will only be purged by disbanding the trial commit-
tee as it is presently constituted , evidence offered in sup-
port of one of the charges tended to disclose misconduct
on-the part of Alta Moran and Wayne Gilbert , which if
credible , under appropriate circumstances , might well
warrant internal discipline . Thus, the written charges
concerning removal of the desk containing property be-
-longing to Local 707 reflect contemptible behavior,
having no causal relationship to the distribution of cam-
paign literature in December 1983. Accounts of the inci-
dent afforded to Almeida by Nilson and Romegialli dis-
closed that Alta Moran insisted on removal of the desk
on February 22, after she had, without explanation; re-
fused to meet on January 17, 1984, as requested by Local
707 officials and refused in that process to permit an in-
spection of the desk prior to its removal, instead, return-
ing the Union 's property contained therein 2 months
later on April 23.60 Moreover, the incident grew out of
and apparently was provoked by Moran's suspension
from-her position as Local Lodge 707's financial secre-
tary; an act not challenged in this proceeding.6 i
In addition , Wayne Gilbert was present on February
22 and actively assisted Alta Moran in removing the
desk after admittedly hearing Romegialli state, "The
desk can't leave here until it is checked as to whether or
not there is records ." Thus , the evidence tended to estab-
lish Gilbert's complicity , albeit to the limited extent of
cooperating with removal of the desk in the face of di-
80 The'General Counsel' s position with respect to this incident is based
on the assumption that Alta Moran 's account was more credible than
those made available to the Union However, the issue before me is not
one of the ultimate credibility, but whether, in accord with Wright Line,
supra, the evidence available to the proponents of the charges furnished a
reasonable basis for the internal enforcement of membership obligations
even if there had been no protected activity See it Exhs 3(b), -P Exhs.
28 and 29 This standard, having been met in this instance , my own reso-
lution of credibility as between the account of Romegialli and Nilson, on
the one hand, and Alta Moran on the other , would not form an appropn-
ate predicate for Board intervention in this connection.
81 See, a g., Shenango Inc., 237 NLRB 1355 (1978)
MACHINISTS LOCAL 707 (UNITED TECHNOLOGIES) 997-
rectives by union officials. On that basis, he too joined
an act of defiance toward what at least arguably was a
reasonable effort on the part of Local 707 to- protect its
records and property. Action of this type on the part-of
a member would not escape attention of internal discipli-
nary machinery, even if there had been no protected ac-
tivity. Accordingly, the 8(b)(1)(A) findings herein are
not to be construed as including or based on the alleged
misconduct growing out of the February 22 confronta-
tion concerning access to Alta Moran's desk and the
Local's legitimate interest in protecting its property.
While Alta Moran and Gilbert should not be insulated
from due consideration of evidence bearing upon a possi-
ble breach of membership duties and responsibilities in
connection with that incident, needless to say, the pur-
poses of the Act will only be vindicated if any further
internal procedings involving them are pursued with
strict deference to standards of fairness.
CONCLUSIONS OF LAW
1. UTC is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
3. By filing and processing internal disciplinary
charges against employees because they participated in
intraunion activity in preparing and/or distributing views
and opinions critical of union officials, Respondent Local
707 and Respondent International Association of Ma-
chinists has violated Section 8(b)(1)(A) of the Act. -
4. Respondent District 91 has not engaged in any of
the conduct alleged to be unlawful herein.
5. The unfair labor practices found in paragraph 3
above are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
ORDER
The Respondents, Local Lodge No '707, International
Association of Machinists and Aerospace Workers,- West
Haven, Connecticut, and International- Association of
Machinists and Aerospace Workers, Washington, D.C,
shall -
1. Cease and desist from
(a) Filing- or processing internal disciplinary charges
against any employee under conditions constituting a re-
prisal for participation in activity protected by Section 7
of the Act.
(b) -In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act.
(a) Nullify any findings, recommendations, or remedies
made by the trial committee herein, disestablish that
body, and disqualify all participants from presiding in the
future in any internal disciplinary proceeding involving
the Charging Parties.
- (b) Post at its offices in West Haven, Connecticut, and
Washington, D.C., copies of the attached notice marked
"Appendix."63 Copies of said notice, on forms provided
by the Officer-in-Charge for Subregion 39 after being
signed by the Respondent's authorized representative,
shall be posted by them separately immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(c) Notify the Officer-in-Charge in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
Having found that the Respondents have engaged in
and are engaging in unfair labor practices in violation of
Section 8(b)(1)(A) of the Act, it shall be recommended
that they be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
In view of the trial committee 's participation, affirma-
tively , in the coercive pattern of unlawful conduct
herein , it shall be further recommended that Respondents
nullify any findings , determinations , and remedies recom-
mended by that body , and disestablish it, precluding
those presiding from participating in any future internal
proceeding involving the Charging Parties.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed62
62 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec . 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
63 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 coerce or restrain Wayne Gilbert,
Mary-Alice Moran, Alta Moran, or any other member,
by filing and processing internal disciplinary charges
against them in reprisal -for their having engaged in ac-
tivity protected by Section 7 of the National Labor Rela-
tions Act.
WE WILL NOT in any like or related manner coerce or
restrain employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL nullify any findings , recommendations, and
remedies made or recommended by the trial committee
heretofore designated by the Grand Lodge President to
preside over internal charges against Wayne Gilbert,
Mary-Alice Moran, and Alta Moran and we shall dises-
tablish that trial committee, disqualifying participants
thereon from presiding over any internal disciplinary
proceeding involving them.
LOCAL LODGE No. 707, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AERO-
SPACE WORKERS
INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS AND AEROSPACE WORKERS