Operating Engineers, Local Union No. 965

National Labor Relations Board - Board Decisions

Jan 10, 1980

247 N.L.R.B. 203 (N.L.R.B. 1980)

OPERATING ENGINEERS, LOCAL UNION NO. 965
International Union of Operating Engineers, AFL-
CIO, Local Union No. 965 and Elcon Pipeliners,
Inc. Case 33-CB-1256
January 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 28, 1979, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in this
proceeding.' Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Inter-
national Union of Operating Engineers, AFL-CIO,
Local Union No. 965, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order, as so modified.
1. Add the following as paragraph I(c):
"(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN FANNING, concurring in part and dissent-
ing in part:
I agree with my colleagues and the Administrative
Law Judge that Respondent violated Section
8(b)(l)(A) of the Act by threatening to have employee
Bell discharged because he had signed an authoriza-
tion card for, and otherwise supported, a rival union
seeking to replace Respondent as the recognized
bargaining representative of the Employer's employ-
ees. However, for essentially the reasons set forth in
my dissent in International Molders' and Allied
Workers Union, Local No. 125. AFL-CIO (Blackhawk
247 NLRB No. 29
Tanning Co., Inc.), 178 NLRB 208 (1969),' I would
find that Respondent did not violate Section
8(b)(1)(A) of the Act by fining Bell for engaging in
such rival union activity, as found by the Administra-
tive Law Judge.
' On October 9, 1979, the Administrative Law Judge issued an errata,
correcting certain omissions and errors in his Decision.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law udge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In adopting the Administrative Law Judge's finding that Respondent's
fining of Bell for failing to attend a union meeting was pretextual, we find it
unnecesary to rely on the Administrative Law Judge's statement that
Respondent's business agent, Tipsword, failed to attend two union meetings
without being fined. The record establishes that Respondent's bylaws specify
only that a member may be disciplined for failing to attend a union meeting
without reasonable excuse when that member has been notified of the
meeting, and Tipsword, unlike Bell. had not been notified of the meetings.
' Pursuant to Hickmorr Foods. Inc.. 242 NLRB 1357 (1979), we find that a
narrow order, rather than a broad order, is appropriate to remedy the
violations found herein.
' See also my dissenting positions in United Lodge No. 66, Internatrional
Association of Machinists and Aerospace Workers AFL-CIO (Smith-Lee Co..
Inc.). 182 NLRB 849 (1970); Local Union No. 953. Textile Workers Union of
America. AFL-CIO (Visinet Mill. Bemis Company. Inc.). 189 NL.RB 598
(1971); Tr-Rivers Marine Engineers Union (United States Steel Corporation),
189 NLRB 838 (1971); Independent Shoe Workers of Cincinnati, Ohio (The
United States Shoe Corporation). 208 NLRB 411 (1974); and Automotive
Teamsters c Chauffeurs Local Union Na 165, International Brotherhood of
Teamsters. Chauffeurs, Warehousemen and Helpers of America (Goodyear
Tire and Rubber Company). 211 NLRB 707 (1974). Cf. Amalgamated Meat
Cutters and Allied Workers of North America, Local 593. affiliated with
Amalgamated Meat Cutters and Butcher Workmen of .Vorth America. AFL-
CIO (S & M Grocers). 237 NLRB 1159 (1978).
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated Federal law, we
hereby notify you that:
WE WILL NOT threaten to have members
discharged for engaging in concerted or union
activities protected by Section 7 of the National
Labor Relations Act, as amended.
WE WIL.L NOT discipline or cause a monetary
fine to be imposed against a member for engaging
in union or concerted activities protected by
Section 7 of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act,
except to the extent that such rights might be
affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL rescind the fine imposed against Jack
Bell for engaging in protected concerted or union
activities, return any moneys he paid on such fine
to him, and expunge from his record the charges
upon which such unlawful fine was imposed.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO, LOCAL UNION No.
965
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
unfair labor practice charges filed on September 25, 1978, by
Elcon Pipeliners, Inc., herein sometimes called the Charging
Party, against International Union of Operating Engineers,
AFL-CIO, Local Union No. 965, herein called Local 965,
the Operating Engineers, or Respondent, a complaint was
issued by the Regional Director for Region 33, on behalf of
counsel for the General Counsel on November 9, 1978. In
substance, the complaint alleges that Respondent disciplined
and caused a monetary fine to be imposed against its
member because he signed an authorization card for another
union and engaged in other union and/or protected concert-
ed activity in violation of Section 8(b)(1)(A) of the National
Labor Relations Act, as amended.
Respondent filed an answer denying that it has engaged in
any unfair labor practices as alleged in the complaint.
The hearing in the above matter was held before me in
Springfield, Illinois, on February 12, 1979. Briefs have been
received from counsel for the General Counsel and counsel
for Respondent, respectively, which have been carefully
considered.
Upon the entire record of this case and from my
observation of the witnesses, I hereby make the following:
FINDING OF FACT
I. JURISDICTION
The Charging Party is now, and has been at all times
material herein, an Indiana Corporation with an office and
place of business located in, inter alia, Rosamond, Illinois.
There, the Charging Party is engaged in the business of
pipeline installation and maintenance with a jobsite at Pana,
Illinois.
During the past 12 months, a representative period of all
times material herein, the Charging Party, in the course and
conduct of its business operations, purchased and caused to
be delivered to its Rosamond, Illinois, facility goods and
materials valued in excess of $50,000 from firms within the
State of Illinois, which in turn purchased goods and material
valued in excess of $50,000 from points outside the State of
Illinois.
The Charging Party, during the past 12 months, a
representative period, in the course and conduct of its
business operations, performed services in excess of $50,000
for Central Illinois Power Service, a public utility affecting
commerce and having an annual gross revenue in excess of
$250,000.
The complaint alleges, the Charging Party admits, and I
find that the Charging Party is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find that
the Operating Engineers is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
The complaint alleges, the answer admits, and I find that
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitters Industry of the United States,
Local No. 65, herein called the Plumbers and Pipefitters is,
and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
The complaint alleges, the answer admits, and I find that
the Congress of Independent Unions, herein referred to as
the CIU, is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE AI.I.EGED UNFAIR L.ABOR PRACTICES
A. Background
Elcon Pipeliners, Inc., the Charging Party herein, is
engaged in the installation of natural gas pipelines. Such
work is seasonal because the coldest parts of the fall and
winter cause the ground to freeze and make digging virtually
impossible. consequently, the work crews are then laid off
and recalled through a union hiring hall in the spring. Elcon
employs about 10 individuals who hold membership in one
of four craft unions: Local 965; the Plumbers and Pipefitters;
the Teamsters; and the Laborers.
The Operating Engineers and Elcon were parties to a
collective-bargaining agreement effective September 15,
1976, through May 31, 1978, which contained the following
provision:
ARTICIE Ill-B
REQUEST FOR RElERRAI.S
Employers desiring the services of a specific applicant
registered may request his referral in writing to the
referral office, and, if such applicant was employed by
the employer in the geographical area for at least 120
days in the 18 months before the request, said applicant
shall be referred to such employer.
Subsequently, in July 1978 the parties entered into a
collective-bargaining agreement which was made retroactive
to June 1. In the spring of each year, Elcon forms its
working crews and calls the men and informs them that it is
ready to go to work. Thereafter, Elcon calls the respective
unions and makes referral requests for former working
crews.
At all times material herein, the following named persons
occupied the positions set opposite their respective names,
and have been, and are now, agents of Respondent within
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OPERATING ENGINEERS, LOCAL UNION NO. 965
the meaning of Section (2)(13) of the Act, acting on its
behalf: Kenneth Tipsword, president and business represen-
tative; and Kenneth Shehorn, vice president.
At all times material herein, the following named persons
occupied the positions set opposite their respective names,
and have been, and are now, agents of the Plumbers and
Pipefitters Union within the meaning of Section 2(13) of the
Act, acting on its behalf: Paul Benton, president; and Joe E.
O'Dell, assistant business agent.'
B. The Union Activities of Members of Local 965 and
the Local's Reactions Thereto
Kenneth Tipsword. business representative of Local 965,
undisputably testified that his principal function involves
enforcing and policing the contract between the parties. He
said that he is also president of the executive board, in which
capacity he conducts trials of grievances filed pursuant to
the grievance procedure. He further testified that the
executive board of Local 965 consists of the following
officers: Robert Farley, treasurer; Charles Bridgewater,
recording secretary; Lyman Ginder, business manager;
Kenneth Shehorn, vice president; Chuck Whitehead, guard;
James Foster, auditor; Lavern Shehorn, auditor; Raymond
Smith, trustee; Dwight Phares, trustee; and Gary Dodge,
guard. The name of one other trustee could not be recalled
by the witness.
At the hearing the General Counsel requested the names
of any individuals who had been fined or otherwise disci-
plined by Respondent between January 1, 1976, and January
1, 1979, for nonattendance at union-called meetings.
Lowell Spencer, president of Elcon Pipeliners, Inc., undis-
putably testified that, in accordance with Elcon's seasonal
practice, he proceeded to call the individual workers in the
spring of 1978 and advised them that he was ready to resume
work. He said he then called the respective unions to have
the names of the individual workmen cleared. Specifically,
he called Local 965, and requested Jack Bell and Kenneth
Morgan. Local 965 advised him that it could not refer
Morgan at all. Subsequent to referring two other persons, it
referred Bell. By April 17, 1978, Local 965 had referred both
Morgan and Bell to jobs at the Pana jobsite.
Jack Bell has been employed by Elcon for 2 years as a
backhoe trench operator. He is a member of Local 965 and
he testified that he had been on winter layoff, had followed
the procedure to file for unemployment, and had signed a
card at the union hall as out of work. He continued to testify
as follows:
A. I called-Lowell called me and said he was ready
to go to work, and he asked me if the Hall had got
ahold of me. I said, "No, they haven't." He said, "Well
I called them," and I said, "Well I'll call the Hall." And
I called up there and they said that he hadn't called in
for me. A couple of days later or a week, so I called
back and the Hall still hadn't, you know, sent me out.
However, Bell said that in or about early April he was
referred by Local 965 to a jobsite in Pana, Illinois, and his
testimony continued as follows:
' The facts set forth above are undisputed and are not in conflict in the
record. All dates herein refer to the year 1978 unless specifically indicated
otherwise.
Q. Did the subject of a union, another union, aside
from Local 965 ever come up at the Pana jobsite?
A. Yes, it did.
Q. And can you tell us how it was brought up?
A. Well all us guys was talking out there. We decided
that 965 and the Pipefitters was going to give us trouble
getting out on the job, maybe we ought to look for a
union that didn't give us all the hassle, you know.
Morgan said that he had heard about the CIU.
Bell said the whole crew met with the CIU at Coy Jones'
Trailer with a Mr. Libhart, who explained the advantages of
the CIU. In May, Bell said Tipsword came to the Rosebud
Restaurant and asked to talk with him. He continued to
testify as follows:
A. Well I got in the car and he said, "What's going
on? How come them CIU men is out there?" I said,
"Well you'll have to talk to them." Then he said-I
said, "We joined them. We joined the CIU." He asked
me if I wanted Lowell to be my Big Daddy or
something. I said, "No, he ain't, you ain't, and nobody
is," and he said, "Do you have your card?" I said,
"Yeah, I have my card." I took it out of my wallet. He
said, "Lay it down on the seat," and I did. He said, "I'll
guarantee you-
Q. Say it.
A. He said, "I'll guarantee you one fucking thing.
You won't have a job out here," and he said, "I'll own
that fucking company."
About a week or two later, Bell said Tipsword approached
him in the presence of fellow workers Spencer, Morgan, and
Jones, and asked him to step away from the others because
he wanted to talk with him. He walked aside with Tipsword
and the following conversation ensued:
A. And he said, "I want to know if you want to
change your mind." And I said, "No, I'm not changing
my mind." He said, "Are you sure?" And I said,
"Yeah, I'm sure." Yeah, he walked up and asked if
we'd walk away from the others, you know.
He said, "I want to know if you want to change your
mind." I said, "No, I ain't changing my mind. I told
you the other day." And he said, "Well, Like I told you
before, you won't have a fucking job out here." And he
said, "I'll own that Elcon before it's over."
Likewise, Spencer testified that in the first part of May
Tipsword came to him at the Pana jobsite concerning the
CIU and told him he had heard his (Spencer's) men had
joined the CIU, and Spencer said that it was true. Tipsword
then asked Spencer what was he going to do about it, and
Spencer said he did not know. Tipsword then told him, if he
(Spencer) proceeded to take him to court, he (Tipsword)
would have Spencer end up with a whole new crew, and he
(Tipsword) would own Elcon.
In May, while at Pana, Spencer testified that Tipsword
asked him if he had made any decision on the CIU, and he
told him, "yes," he (Spencer) was going to back his crew.
Tipsword then said he would file a court proceeding, and
Spencer said he told him to fire his biggest gun and they
205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would see how it turned out. Bell corroborated the latter
statement by Spencer. Tipsword filed a court and Board
action against Spencer. The court action was settled and the
Board's Order indicated that Spencer could join another
union, but that there was a real question as to whether a
valid contract existed with the Operating Engineers the
Plumbers Pipefitters, and the Laborers.
Tipsword testified that he preferred charges against Bell
pursuant to the direction of the executive board and was
notified that he was to be present at the August 25 meeting.
Spencer further testified and identified General Counsel's
Exhibit 7 (a letter sent to Local 965 by Clark Libhart of the
CIU demanding recognition). Spencer also identified Gener-
al Counsel's Exhibit 8, a letter dated May 3, 1978, which was
sent by him to the CIU. On cross-examination Spencer
acknowledged that a valid contract was in existence between
Elcon and the Operating Engineers, but that he, personally,
did not know of its existence at that time. He said he was
under the impression that they did not have a contract with
the Operating Engineers during May 1978, but that was not
a fact. He said he had 10 men on his crew on May 2, 1978,
and that he recognized the CIU because the men on the job
had voted for it.
Tipsword's account of his conversation with Bell is
corroborative of prior testimony as follows:
I asked him if he was aware of all the ramifications,
the bylaws, contract, and constitution at that time. And
he said no. And I said, "If you've joined the CIU, then
you won't need that card of the Operating Engineers,
Local 965," and he just took it out. I asked him what he
was going to do with it and he said, "Well, send it back
to you, I guess."
And I said, "Well I could save you 13 cents. I could
take it for you." And he just threw it in the seat by my
request, "Just drop it in the seat there if you don't want
it."
So I asked him why he was doing this, if he felt that
he had been misrepresented or not represented on the
job down there, if he wasn't satisfied with being referred
out there.
And he said, "Well you people are not doing
anything for me. You can take that card and shove it. I
don't need it anymore."
And I said, "Well that pretty well concludes our
conversation then. You can get out of my car," and
then I left.
Bell denied that he told Tipsword to take his card and
shove it, and Tipsword denied he told Bell that he would not
have a job out there and he (Tipsword) would own Elcon.
About 2 weeks later, Tipsword, in the presence of Paul
Benton and Joe O'Dell from the Plumbers and Pipefitters
and Spencer, asked Bell if he had changed his mind or did he
intend to continue with the CIU. Bell said, "Yes, and if you
have any further questions my business agent and local is in
Alton, Illinois. Call them." About a week or so later,
Tipsword said Bell asked him if any charges had been filed
against him, and he (Tipsword) said, "Yes," and there was
nothing that he (Tipsword) could do to stop it.
The record shows that a letter addressed to Bell dated
May 31, 1978, read as follows:
As Business Manager of Local 965, 1 hereby notify
you to appear before the executive board of Local 965
to explain your actions while working for Elcon
Pipeline.
This meeting of the executive board will be held
Friday, June 9, 1978, at 8 p.m. at the union office, 3520
East Cook Street, Springfield, Illinois.
It is important that you appear at this meeting.
Sincerely & Fraternally yours.
The above letter was signed by Lyman C. Ginder, business
manager for Local 965.
Thereafter, Tipsword said he sent a letter (Resp. Exh. 2)
dated June 23, 1978, to Charles Bridgewater, recording
secretary of Local 965, which read as follows:
Dear Sir and Brother:
The executive board of Local 965, I.U.O.E. on June
9, 1978, directed me, as President, to file charges
against Brother Jack Bell, Register No. 1642686,
member of Local 965B.
The specific charge is for failure to appear before the
executive board as notified and for violation of the
obligation taken as an Operating Engineer.
Kenneth Tipsword, President,
Local 965, I.U.O.E.
Bell further testified that after the Pana jobsite he worked
at Taylorsville and that Tipsword approached him there in
the presence of Ken Morgan, who asked Tipsword if charges
had been dropped against him. Tipsword said, "Yes they
were, but, I filed charges against Jack Bell," and he just had
to follow through with them.
Bell said he was notified to come and talk with the Local
Union about the situation down at Pana, but he did not go.
At the hearing Bell acknowledged that he received
Respondent's Exhibit 3 dated July 12, 1978, which read as
follows:
Dear Sir and Brother:
You are hereby notified that charges have been
preferred against you for violation of article XVI, sec. 4,
paragraph 19, of the bylaws of Local 965.
A copy of the charges filed are enclosed.
You are hereby notified to be present at the local
union meeting to be held Friday, July 28, 1978, to file
your answer of defense or for entering of a plea by you.
This meeting will be held at the regular meeting hall.
3520 East Cook, Springfield, Illinois at 8 p.m.
Sincerely & Fraternally,
Charles Bridgewater
Rec.-Corres. Secretary, Local 965, I.U.O.E.
Bell further testified that he did not appear at the meeting
scheduled for July 28. However, he acknowledged receipt of
a letter dated August 9, 1978 (Resp. Exh. 4), which read as
follows:
Dear Sir and Brother:
Since you had previously been notified to be present
at the last local union meeting held Friday, July 28,
1978, but you were not present, this is to advise you
that President Tipsword has set the trial date for
206
OPERATING ENGINEERS, LOCAL UNION NO. 965
charges filed against you for Friday, August 25, 1978.
This trial will be held whether you are present or not.
You are hereby notified to be present at this local
union meeting on Friday, August 25, 1978, at 8 p.m. at
3520 East Cook, Springfield, Illinois.
Sincerely,
Charles Bridgewater
Rec.-Corres. Secretary
Local 965
The record further shows that subsequently a letter dated
August 29 (Resp. Exh. 5) was sent to Bell by the financial
secretary for Local 965, which read as follows:
Dear Sir and Brother:
Since you were notified to be present at the regular
membership meeting held on Friday, August 25, 1978,
and you did not appear, trial was held in your absence.
You were found guilty of charges filed against you for
violation of art. XVI, sec. 4, paragraph 19 of the bylaws
of Local 965.
Vice President Shehorn fined you $2,000 and sus-
pended $1,000 until the expiration of the president's
term of office, unless found guilty of other charges, and
incorporated the following provision of art. XXIV, sec.
(f), subdiv. 7, of the International constitution into the
reading of your sentence: "Members thirty (30) days in
arrears in the payment of fines shall be denied voice and
vote in their Local Union, and thereafter until the fine
is paid no dues owed by such member can be received
or accepted by the Local Union. Members sixty (60)
days in arrears in the payment of fines shall be removed
from committees, barred from meetings, and suspended
from membership. Members ninety (90) days in arrears
shall be removed from office. Members six (6) months
in arrears shall be expelled from membership.
Sincerely,
Marvin Phares, Fin. Sec.
Local 965
A letter dated September 11, 1978 (Resp. Exh. 6),
addressed to Local 965, read as follows:
Dear Sir:
This letter is a letter of appeal on my part. I received
your letter informing me of a fine. I do not feel this fine
is fair nor do I feel guilty of any wrong doing.
Please check your records and you will find that in
the past 5 years I've always paid my union dues before
they were due. The Union is important to me. I need
the insurance coverage and the benefits for my family.
I sincerely hope you will reconsider the matter as I'm
working over 100 miles from home and do not get home
until very late each evening. This made it impossible for
me to be at the meeting. It is financially impossible for
me to pay such a fine. I hope you will review this matter
and accept my recognition of the Union.
Sincerely,
Jack L. Bell
A letter dated September 18, 1978 (Resp. Exh. 7),
addressed to Jack Bell, read as follows:
Dear Sir and Brother:
Reference is made to your letter of September 11,
1978, regarding an appeal of your recent fine for
charges filed against you.
I wish I could have a more favorable reply at this
time, however, I must advise you that the charges filed
against you and the fine imposed are out of our hands.
You were notified of your trial; the trial was held and
the membership voted and found you guilty. Therefore,
there is nothing either I, as business manager, or the
executive board can do for you.
I am enclosing a copy of the International constitu-
tion which states the process of appealing fines.
If you have any further questions, please feel free to
contact me.
Sincerely,
Lyman C. Ginder, Bus. Mgr.
Local 965
The parties stipulated that Bell received Respondent's
Exhibits 1, 3, 4, and 5, that he sent Respondent's Exhibit 6,
and that he received Respondent's Exhibits 7 and 8.
A letter dated January 12, 1979 (Resp. Exh. 8) addressed
to Bell read as follows:
Dear Sir and Brother:
In accordance with the constitution of the Interna-
tional Union of Operating Engineers, we are herewith
returning your check No. 4268 in the amount of $48,
which you submitted as payment of your Ist quarter
1979 dues.
Article XXIII, subdiv. 7, sec. (f), of the constitution
states in part: "Members thirty (30) days in arrears in
the payment of fines shall be denied voice and vote in
their Local Union and thereafter until the fine is paid
no dues owed by such members can be received or
accepted by the Local Union .. ."
Since your fine was imposed on you at the member-
ship meeting held August 25, 1978, we could not accept
any dues after September 25, 1978.
Sincerely,
Marvin Phares, Fin. Sec.
Local 965.
Respondent's Exhibit 9 constitutes the minutes of the
meeting in reference to disciplinary proceedings brought
against Bell since the spring of 1978. The parties stipulated
that the result of these proceedings was the imposition of a
fine of $1,000 against Bell, which Bell paid on February 8,
1979. There appears to be no dispute that Local 965 had
approximately 1,500 members during the times material
herein.
After a search of Respondent's records at the behest of the
General Counsel, Charles Gatewood was found to be the
only worker who was charged with the same offense as Bell
and was fined. The parties thereupon stipulated on the
record as follows:
MR. EPSTEIN: Can it be stipulated that the only
individual fined for violation of article XVI, is it,
section 4, paragraph 9-19, of the bylaws of Local 965
during the period January 1, 1976, through January 1,
1979, is or was Charles Gatewood, who was fined $500
on March 3, 1976, and that $200 of that $500 fine was
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspended until the expiration of the president's term of
office.
MR. CAVANAGH: It may be stipulated that the
gentleman was fined, as indicated. I don't think we
would want to say only-so far as the Union is
concerned, he is the only person who was charged with
that offense during that time, and he was fined.
I would not like the implication made that this was
an isolated instance. He was the only one charged with
that offense during the indicated period of time, and he
wasfined.
MR. EPSTEIN: Okay. [Emphasis supplied.]
Tipsword further testified that he filed the charges against
Bell for failure to appear after due notification at a board
meeting. He said that while charged Bell continued to work
for Elcon, that he had applied for work on the out-of-work
list, and that he wa's a paid-up dues member of Local 965.
Tipsword denied that he ever talked to Spencer about Bell's
continuing on the job at Elcon. He nevertheless corroborated
Bell's testimony that he (Tipsword) told Bell he would not
need his Operating Engineers card since he had joined the
CIU, and that Bell said he would mail it in. Tipsword said he
then told Bell he could save him 13 cents, and Bell gave him
the card. He said he did not recall Bell daring him to fine
him, but his affidavit indicates Bell did tell him to fine him
or send him letters.
Lyman Ginder, business agent for Local 965, testified that
Bell's membership card was brought back to the Union by
Tipsword, who informed them that Bell laid it on his car seat
and said he no longer wanted membership in the Operating
Engineers. He said he was disturbed by this account and this
was why he wrote the letter to Bell asking him to appear
before the executive board. He wanted to know what was the
problem. He said that ultimately he returned Bell's card to
him by mail.
Marvin Phares, financial secretary for Local 965 and a
member of the executive board and the Local, testified that
the executive board directed the president to file charges
against Bell for failure to appear, without reasonable excuse,
at the executive board meeting as notified. He said he knew
of no other reasons. He further states that Bell was tried
before the membership meeting on August 25, 1978, but that
he failed to appear. The charges were read, and the
membership voted guilty. The vice president imposed the
fine. The executive board was present and voted on the issue.
Paul Benton corroborated earlier testimony that Lowell
Spencer told Tipsword to shoot his biggest gun when
Tipsword told Spencer he would take him to court.
Charles Whitehead. auditor of Local 965 and a member of
the Local and the executive board, indicated that there was
only one charge against Bell. Robert Farley, business
representative and treasurer for Local 965, gave the same
testimony.
Joe O'Dell confirmed that Tipsword went down to the
Pana jobsite on about May 16 to verify whether the men had
joined the CIU. Joe O'Dell is assistant business agent for the
Plumbers and Pipefitters. He testified that the Plumbers and
Pipefitters Union trial against Coy Jones and Richard Evens
was settled. He further testified on cross-examination that
Morgan and Evens were fired because they were affiliated
with the CIU. He continued to testify as follows:
Q. And you felt that your petition for fining should
be granted to set an example as a deterrent as to any
other members in the future?
A. Well I imagine that's what all disciplinary action
is for.
O'Dell further testified that the fines against Jones and
Evens had been rescinded because the general executive
board disapproved and dismissed them, and that the
Plumbers and Pipefitters also settled the case with the
NLRB.
C. Analysis and Conclusions
The testimony of the several witnesses herein is essentially
free of any significant conflict. In other words, the evidence
is clear that in early April 1978, Jack Bell, a member of
Local 965, and other members of his working crew who are
members of either Local 965 or the Plumbers and Pipefitters
were employed by Elcon at the Pana jobsite. Members of the
crew commenced expressing dissatisfaction with the slow or
selective manner in which the hiring halls of Local 965 and
the Plumbers and Pipefitters were referring them to jobs.
One crew member, Kenneth Morgan, suggested consulting
another union, the Congress of Independent Unions (CIU).
Consequently, they met with the CIU representative, and
Bell and some other crew members subsequently signed a
union card for the CIU.
According to the testimony of Bell and his Local 965
business representative, Kenneth Tipsword, the latter visited
the Rosebud Restaurant in May and asked Bell what was
going on and why the CIU representatives were there, and
Bell told Tipsword they (the work crew) had joined the CIU.
Bell said their conversation continued as follows:
He asked me if I wanted Lowell to be my Big Daddy
or something. I said, "No, he ain't, you ain't, and
nobody is," and he said, "Do you have your card?" I
said, "Yeah, I have my card." I took it out of my wallet.
He said, "Lay it down on the seat," and I did. He
said, "I'll guarantee you-
Q. Say it.
A. He said, "I'll guarantee you one fucking thing.
You won't have a job out here, " and he said, "I'll own
thatfucking company. " [Emphasis supplied.]
Bell said that about a week later Business Representative
Tipsword engaged in the following conversation:
A. And he said, "I want to know if you want to
change your mind." And I said, "No, I'm not changing
my mind." He said, "Are you sure?" And I said,
"Yeah, I'm sure." Yeah, he walked up and asked if
we'd walk away from the others, you know.
He said, "I want to know if you want to change your
mind." I said, "No, I ain't changing my mind. I told
you the other day." And he said, "Well, like I told you
before, you won't have a fucking job out here." And he
said, "I'll own that Elcon before it's over."
However, Tipsword added that his conversation with Bell
continued as follows:
I asked him if he was aware of all the ramrifications,
the bylaws, contract, and constitution at that time. And
208
OPERATING ENGINEERS, LOCAL UNION NO. 965
he said no. And I said, "If you've joined the CIU, then
you won't need that card of the Operating Engineers,
Local 965," and he just took it out. I asked him what he
was going to do with it and he said, "Well, send it back
into you, I guess."
So I asked him why he was doing this, if he felt that he
had been misrepresented or not represented on the job
down there, if he wasn't satisfied with being referred out
there.
And he said, "Well you people are not doing
anything for me. You can take that card and shove it. I
don't need it anymore." [Emphasis supplied.]'
Also, in early May Tipsword visited Lowell Spencer,
president of Elcon, and advised him that he had heard his
(Elcon's) men had joined the CIU, and he asked Spencer
what he was going to do about it. When Spencer replied he
did not know, Tipsword warned that if Spencer took him to
court he would have Spencer end up with a whole new crew,
and he (Tipsword) would own Elcon.
In or about the third week in May, Tipsword asked Bell if
he had changed his mind about the CIU. Bell said, "No,"
and referred him to his local of the CIU. Tipsword also
asked Spencer if he had made any decision on the CIU.
Spencer told Tipsword, "Yes," he would back his crew.
Tipsword then advised Spencer that he would file a court
proceeding.
Based on the foregoing credited evidence, I conclude and
find that at the Rosebud Restaurant in May Tipsword,
business representative for Local 965, threatened to have
Bell discharged from his job at Elcon for joining the CIU. I
further find that in May Tipsword, at the jobsite in Pana,
threatened to have Bell discharged from the employment of
Elcon because Bell signed a CIU authorization card and
engaged in other union and/or protected, concerted activi-
ties. Such conduct on the part of Tipsword, on each
occasion, was an interference with, a restraint upon, and
coercion against the exercise of employees' (Bell's) protected
rights in violation of Section 8(b)(1)(A) of the Act.
The documentary and credited evidence of record unequi-
vocally established that Local 965's business manager,
Lyman Ginder, sent Bell a letter dated May 31, directing
him to appear before the executive board of the local on June
9 at 8 p.m. to explain his actions while working for Elcon. Bell
did not appear on June 9 and Local 965's business
representative, Tipsword, sent Bell a letter dated June 23,
advising him that the executive board had directed Tipsword
to file charges against him. The specific charges were for
failure to appear before the executive board on June 9 as
notified, and for violation of the obligation taken as a
member of Local 965.
In a letter dated July 12 from Charles Bridgewater,
secretary of Local 965, Bell was notified that charges had
been preferred against him for violating article XXVI,
section 4, paragraph 19, of the bylaws of Local 965: "Any
member found guilty of violating the enumerated rules will
be subject to a fine or suspension pursuant to the Interna-
' Although Tipsword denied that he told Bell he would guarantee Bell he
would not have a job out there because he (Tipsword) would own Elcon, and
Bell denied that he told Tipsword to take his (Bell's) union card and shove it, I
tional constitution." Rule 19 provided: "If notified to appear
at a meeting must do so or have a reasonable excuse." The
letter also notified Bell to appear at the local union meeting
on Friday, July 28, at 8 p.m. to file an answer of defense or
enter a plea. Bell did not appear at the July 28 meeting and
did not explain his absence with an excuse as of that date.
Subsequently, in a letter dated August 9 from Local 965
Secretary Bridgewater, Bell was advised that, since he did
not appear at the July 28 meeting, Tipsword had set the trial
date for charges filed against him for Friday, August 25; and
that said trial would be held whether or not Bell was present.
Bell did not attend the August 25 meeting and he received a
letter from Local 965's financial secretary, Marvin Phares,
advising that the membership had found him guilty as
charged; and that Vice President Shehorn had imposed a
fine upon him of $2,000 and suspended $1,000 thereof until
the expiration of the president's term of office unless he was
found guilty of other charges.
In a letter to Local 965 dated September 11, Bell protested
the decision and the fine, contending that it was unfair
because he was not guilty of any wrong and he needed the
benefits afforded by the Union. He specifically requested
that the matter be reconsidered because he was working 100
miles from home which made it impossible to be present at
the meeting; and stated that it was impossible for him to pay
such a fine. Local 965 denied his request in a letter dated
September 18. In a letter dated January 12, 1979, Local 965
returned Bell's check for $48, submitted as union dues
pursuant to article XXIII, subdivision 7, section (f), of the
constitution, which precluded the receipt of dues until a fine
is paid. Bell paid the $1,000 fine on February 8, 1979.
The record shows that only one other Local 965 member
(Charles Gatewood) has ever been charged with failure to
appear at a meeting and was fined $500 on March 3, 1976.
However, $200 of the $500 fine was suspended until the
expiration of the president's term of office.
Hence, the principal remaining issue presented for deter-
mination here is whether Local 965 violated Section
8(b)(1)(A) of the Act by causing a monetary fine to be
imposed against Jack Bell because he signed a CIU authori-
zation card and engaged in other concerted activities with
respect to representation of his working crew members.
Respondent denies that the fine was imposed against Bell
for signing a CIU authorization card, but, rather, contends
that Bell was fined solely for failing to appear before an
Executive board meeting of the Union on June 9 to explain
his actions while working for Elcon Pipeline. The record
shows that the only actions of Bell at Elcon to which Local
965 could possibly or probably have reference are Bell's
signing a CIU authorization card, his concerted activity
relating to the crew's manifested dissatisfaction with the
untimely hiring hall practices of Local 965 and the Plumbers
and Pipefitters, and Bell's efforts on behalf of the CIU.
Consequently, I conclude and find that the above-described
actions of Bell were the only actions for which Bell could
have been summoned to explain, and that said actions, made
on behalf of Bell and fellow his crew workers in furtherance
of their representation by the CIU, were protected under
discredit both witnesses. I was persuaded by the demeanor of each witness and
the consistency of all of the evidence of record that each witness was being
selective in his testimony in this regard.
209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act. Communications Workers of America,
CIO [New Jersey Bell Telephone Co.] v. N.L.R.B., 215 F.2d
835 (2d Cir. 1954).
Since Bell's union and concerted activities were protected,
he was not obligated to appear to explain such actions
(activities) to the executive board. In all probability, Local
965 knew that it could not compel such an explanation from
Bell since it later skillfully contended and argued that Bell
was tried and fined not for failure to appear and explain his
concerted and union activities at Elcon, but merely because
he failed to appear before the executive board on June 9. I
might be willing to concede to Respondent's argument if
Respondent's letter (Resp. Exh. 3) to Bell had not been so
explicit in specifying the reason as being "to explain your
actions while workingfor Elcon. " [Emphasis supplied.] This
is specifically true when there is no doubt, as shown here,
that the "actions" of Bell to which Respondent refers were
protected by the Act. Independent Shoe Workers of Cincin-
nati, Ohio (The United States Shoe Corporation), 208 NLRB
411-412 (1974).
Moreover, it must be observed that Local 965 (Tipsword)
had previously harassed and threatened Bell about his
affiliation with the CIU and the security of his job with
Elcon on at least two occasions. Local 965, through
Tipsword, manifested gross opposition to Bell's activities on
behalf of the CIU and his activities relating to the crew
members dissatisfaction with Local 965's hiring hall prac-
tices. Thus, it is obvious that Local 965's further action to
have Bell tried and fined was but an extension of its
harassment and discrimination against him for exercising
rights protected by Section 7 of the Act in violation of
Section 8(b)(1)(A) of the Act. Building Material. Truck
Drivers, Chauffeurs, and Helpers, Local 282, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Explo, Inc.), 229 NLRB 347 (1977).
Finally, while the Board and the courts do not question
the reasonableness of a fine imposed by a union against its
members for violating union rules, the excessiveness or
severity of such a fine may nevertheless be considered in
ascertaining the motive, reason, and purpose for the fine.
Thus, in considering the $1,000 fine imposed on Bell, it is
particularly observed that Bell is the only union member
upon whom such a huge fine has been imposed for failure to
attend a union meeting; that the only other union member
fined for such an offense was fined $500, of which $200.00
was suspended; and that even Tipsword acknowledged he
had failed to attend two meetings without the imposition of a
fine. Hence, it becomes clear from a reading of all of the
credited evidence that the real motive for the fine imposed
upon Bell was not his failure to appear at the subject union
meeting, but, rather, was his concerted and union activities
of which Respondent was fully aware. Respondent's conten-
tion that the fine was imposed for Bell's failure to appear at
the subject union meeting is obviously a pretext to conceal
its real reason, Bell's exercise of rights protected by Section 7
of the Act.
Accordingly, I find that the S1,000 fine imposed against
Bell bore no reasonable relationship to a legitimate purpose of
the Union 's protecting itself from an infraction of its rules by
its member. Carpenters & Joiners of America Local 1620
(David M. Fisher Construction Company), 208 NLRB 94
(1974).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section 11I,
above, occurring in connection with the operations of Elcon
Pipeliners, Inc., described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice warranting a remedial order, I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
It having been found that Respondent has interfered
with, restrained, and coerced its members by harassing a
member about his decision to sign an authorization for
another union (the CIU) and threatening such member with
losing his job in violation of Section 8(b)(1)(A) of the Act,
and by discriminating against said member by imposing a
fine against him for signing an authorization card for
another union (the CIU) and engaging in other concerted or
union activities in violated Section 8(b)(1)(A) of the Act, the
recommended Order will provide that Respondent cease and
desist from engaging in such unlawful conduct, that it
rescind the fine imposed upon member Jack Bell and return
any monies paid thereon to Bell, with interest thereon within
the meaning of, and in accord with, the Board's Decision in
F W Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977), except as specified
by the wording of such recommended Order; and that it
expunge from his record the charges upon which such fine
was imposed.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from, or in any other manner,
interfering with, restraining, and coercing employees in the
exercise of the rights guaranteed them by Section 7 of the
Act. N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th
Cir. 1941).
Upon the basis of the above findings of fact and upon the
entire record of this case, I make the following:
CONCLUSIONS OF LAW
I. Elcon Pipeliners, Inc., the Charging Party herein, is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Operating Engineers, AFL-CIO, Local Union No. 965,
Respondent herein, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
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OPERATING ENGINEERS, LOCAL UNION NO. 965
3. United Association of Journeymen & Apprentices of
the Plumbing and Pipefitting Industry of the United States,
Local No. 65, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
4. Congress of Independent Unions is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act,
5. By threatening to cause member Jack Bell to lose his
job at Elcon, Respondent (Local 965) violated Section
8(b)(1)(A) of the Act.
6. By causing a monetary fine to be imposed against
member Jack Bell because he signed an authorization card
for another union (the CIU), Respondent violated Section
8(B)(I)(A) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of facts, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The Respondent, International Union of Operating Engi-
neers, AFL-CIO Local Union No. 965, Rosamond, Illinois,
its officers, agents, and representatives, shall:
1. Cease and desist from:
In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Threatening members to cause their discharge because
they engage in protected concerted or union activity by
signing an authorization card for another union.
(b) Causing a monetary fine to be imposed upon a member
for engaging in protected concerted or union activity.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Rescind the monetary fine of 2,000, suspended to
$1,000, imposed against Jack Bell.
(b) Return any monies paid on such unlawful fine to Jack
Bell, with interest, in the manner described in the section of
this Decision entitled "The Remedy."
(c) Expunge from the record of lack Bell the charges upon
which such unlawful fine was imposed.
(d) Post at Respondent's offices or meeting halls copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 33, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 33, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
' In 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."
211