Sheet Metal Workers Local 18 (Globe Sheet Metal)

National Labor Relations Board - Board Decisions

Sep 15, 1994

314 N.L.R.B. 1134 (N.L.R.B. 1994)

1134
314 NLRB No. 180
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless otherwise indicated, all dates are in 1991.
2 One question concerned the timing of the decertification. The
other question concerned whether the second employee at Globe, a
preapprentice, could also be charged with working for a nonunion
employer.
Sheet Metal Workers International Association,
Local #18, AFL–CIO (Globe Sheet Metal
Works, Inc.) and Paul Mielke. Case 30–CB–
3379
September 15, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On December 29, 1993, Administrative Law Judge
Arline Pacht issued the attached decision. The General
Counsel filed exceptions, a supporting brief, and an an-
swering brief, and the Respondent filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
We adopt the judge’s finding that the Respondent
violated Section 8(b)(1)(A) of the Act by threatening
employee Paul Mielke by its letters dated December
15, 1991, and January 3, 1992, with loss of employ-
ment because he filed a successful decertification peti-
tion. We also agree with the judge that the Respondent
further violated Section 8(b)(1)(A) by filing internal
union charges against Mielke for working for a non-
union employer in retaliation for his filing of the de-
certification petition. Contrary to the judge, however,
we find that the Respondent also violated Section
8(b)(1)(A) by trying Mielke on the charge and impos-
ing a $3000 fine on him.
The facts are essentially undisputed. The Respondent
and Globe Sheet Metal had a longstanding collective-
bargaining relationship. Their last agreement, covering
a two-man unit, expired on March 31, 1991.1 A few
weeks prior to that date, on March 8, Mielke, a sheet
metal worker at Globe and a member of the Respond-
ent, filed a decertification petition with the Board. As
the decertification petitioner, Mielke participated in the
preelection proceedings and served as an observer at
the August 6 election, which the Respondent lost.
Soon after the petition was filed, Michael
Engelberger, the Respondent’s vice president and busi-
ness representative, learned that Mielke was the peti-
tioner, and from that point, Engelberger closely fol-
lowed the progress of the decertification. In mid-No-
vember, after the Board officially notified Engelberger
that the Respondent was decertified at Globe,
Engelberger began an inquiry to determine whether
Mielke, who remained a member of the Respondent,
continued to work for Globe, a nonunion employer.
Under article 17, section 1(g) of the Respondent’s con-
stitution a member may be penalized for:
Accepting employment in any shop or on any job
where a strike or lockout, as recognized under this
Constitution, exists, or performing any work cov-
ered by the claimed jurisdiction of this Associa-
tion for any employer that is not signatory to or
bound by a collective bargaining agreement with
an affiliated local union of this International As-
sociation, unless authorized by local union.
After attempting and failing to reach Mielke at work
on November 18 and 19, Engelberger called Mielke at
home on November 19 and asked ‘‘how things were
going now that Globe Sheet Metal Work has gone
nonunion’’ in order to ascertain whether Mielke was
still working for Globe. In marked contrast to the Re-
spondent’s dealings with other members found to be
working for nonunion employers, Engelberger did not
tell Mielke that he intended to file internal union
charges, or that Mielke had the right to resign, submit
a withdrawal card, or seek a referral to a unionized
employer. The next day, November 20, Engelberger
filed a charge with the Respondent alleging that
Mielke had violated the Respondent’s constitution.
On the same date, the Respondent notified Mielke
that a charge had been filed against him, and advised
him that a trial board would convene several weeks
later. By letter dated December 10, the Respondent no-
tified Mielke of the date, time, and place of the hear-
ing, and added that if he did not appear, the trial board
would proceed with the trial in his absence.
On January 4, 1992, a trial board composed of the
Respondent’s officers convened to hear Mielke’s case.
Mielke did not attend. Engelberger, the sole witness,
testified by reading aloud a prepared written statement
providing a chronological summary of the events. In
that statement, Engelberger noted that the Respondent
was officially decertified at Globe on October 21, that
Mielke paid his dues through October 30, that Mielke
wrote to the Union asking about the status of his bene-
fits, and that Mielke worked for a nonsignatory con-
tractor while remaining a member of the Respondent.
Following his presentation, Engelberger answered
questions from the trial board members.2 Engelberger
gave his statement with supporting documents to the
trial board and did not remain while the members de-
liberated. One of the supporting documents identified
Mielke as the decertification petitioner.
1135SHEET METAL WORKERS LOCAL 18 (GLOBE SHEET METAL)
3 In fact, even if the General Counsel had not alleged the Respond-
ent’s trial and fine of Mielke as separate violations of Sec.
8(b)(1)(A), we would have ordered the Respondent, in order to re-
store the status quo ante, to rescind the fine imposed based on the
unlawful charge. See NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S.
258, 265 (1969) (Board remedies are ‘‘designed to restore, so far as
possible, the status quo that would have been obtained but for the
wrongful act’’).
4 The judge’s recommended Order, at par. 1(c), requires the Re-
spondent to cease and desist from restraining or coercing employees
of Globe Sheet Metal Works ‘‘or any employer.’’ There is no evi-
dence that the Union’s conduct was directed toward employees of
any employers other than Globe Sheet Metal Works, so an order
which goes beyond this particular employer is not appropriate. See
Communications Workers of America v. NLRB, 362 U.S. 479 (1960).
We shall therefore modify the judge’s recommended Order, and the
corresponding notice language, to delete the language ‘‘or any em-
ployer.’’
The trial board found that Mielke was in violation
of the Respondent’s constitution and imposed a $3000
fine. One board member, Marc Dejarlais, testified that
there was no discussion of Mielke’s participation in the
decertification. He acknowledged, however, that he
knew of Mielke’s role because it was mentioned in one
of the documents before the trial board. At the Re-
spondent’s general business meeting later that day, the
membership voted to affirm the trial board’s decision.
By letter dated January 13, 1992, the Respondent noti-
fied Mielke of the outcome and advised him of his
right to appeal the decision.
The judge found that the General Counsel had estab-
lished a prima facie case that Mielke was both charged
and fined for discriminatory reasons, noting that
Mielke, in petitioning for decertification, clearly en-
gaged in statutorily protected activity, that Engel-
berger, the Respondent’s agent, was aware of Mielke’s
role in the decertification, and that Engelberger’s in-
quiry into Mielke’s employment status was prompted
by the receipt of official notice of the Respondent’s
decertification at Globe. The judge further found that
the Respondent filed the charges against Mielke in re-
taliation for his protected activities, noting that
Engelberger’s actions were in marked contrast to the
manner in which other union members accused of
breaching the same article of the constitution were
treated. The judge further found, however, that once
the charge was filed, Mielke was treated no differently
than other union members accused of violating article
17 and was accorded due process. For the reasons set
forth below, we disagree and find that the Respond-
ent’s adherence to its standard procedure in trying and
fining Mielke is insufficient to rebut the General Coun-
sel’s prima facie case that the Respondent acted
against Mielke for discriminatory reasons.
In the circumstances of this case, we do not find
that the Respondent’s trial and fine imposed on Mielke
can be analyzed separately from the Respondent’s fil-
ing of the charge against him. Although there is no
evidence that the procedure followed by the trial board
in trying and fining Mielke was irregular, the fact re-
mains that Mielke would not have been brought before
the trial board and subsequently fined but for the un-
lawful charge filed against him in retaliation for filing
a decertification petition. Having set into motion the
unlawful charge, the Respondent is not insulated from
the consequences flowing from that charge.3 Further,
to view the trial and fine as severable would leave
Mielke subject to a substantial fine and have the effect
of penalizing Mielke for having exercised his statutory
rights by filing a decertification petition against the Pe-
titioner. Molders Local 125 (Blackhawk Tanning), 178
NLRB 208, 209 (1969), enfd. 442 F.2d 92 (7th Cir.
1971). Thus, we find that the Respondent’s entire
course of conduct, by bringing charges against Mielke,
trying him, and fining him, restrained and coerced
Mielke in the exercise of his Section 7 rights in viola-
tion of Section 8(b)(1)(A) of the Act.
REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(b)(1)(A)
of the Act, we shall order that it cease and desist and
take certain affirmative action designed to effectuate
the policies of the Act.
We shall order the Respondent to rescind and refund
the full amount of the fine assessed against Paul
Mielke, with interest to be computed in the manner set
forth in New Horizons for the Retarded, 283 NLRB
1173 (1987). We shall further order that the Respond-
ent remove from its records all references to the un-
lawful proceeding and fine against Mielke, and notify
him in writing that this action has been taken and that
the charge and fine will not be used against him in any
way.4
ORDER
The National Labor Relations Board orders that the
Respondent, Sheet Metal Workers International Asso-
ciation, Local #18, AFL–CIO, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Charging its members with violating the Union’s
constitution because they have engaged in protected
concerted activity, including their resort to the proc-
esses of the National Labor Relations Board in peti-
tioning for decertification of the Union as their collec-
tive-bargaining agent.
(b) Trying and fining its members for violating the
Union’s constitution because they have engaged in
protected concerted activity, including their resort to
the processes of the National Labor Relations Board in
petitioning for decertification of the Union as their col-
lective-bargaining agent.
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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
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.’’ 1 Unless otherwise noted, all dates occurred in 1992.
(c) Restraining or coercing employees of Globe
Sheet Metal Works by sending letters or otherwise
threatening them with removal from their jobs when
they are under no statutory duty to join or remain
members of the Union.
(d) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind and refund the fine assessed against Paul
Mielke, with interest computed in the manner set forth
in the remedy section of this decision.
(b) Remove from its files any reference to the un-
lawful proceedings and fines against Paul Mielke and
notify him in writing that this has been done and that
the charge and fine against him will not be used
against him in any way.
(c) Advise Paul Mielke and Globe Sheet Metal
Works, Inc., in writing, that Respondent, Local 18, is
not seeking to remove Mielke from his job and is not
seeking to enforce any union-security obligation
among employees at Globe Sheet Metal Works.
(d) Post the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Re-
gional Director for Region 30, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places in its business office, meeting halls, and all
places where notices to employees and members cus-
tomarily are posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by Globe Sheet
Metal Works, Inc., if willing, at all places where no-
tices to employees customarily are posted.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT charge members with violating the
Sheet Metal Workers International Association, Local
#18, AFL–CIO constitution because they have engaged
in protected concerted activity, including their resort to
the processes of the National Labor Relations Board in
petitioning for decertification of the Union as their col-
lective-bargaining agent.
WE WILL NOT try and fine members for violating the
Union’s constitution because they have engaged in
protected concerted activity, including their resort to
the processes of the National Labor Relations Board in
petitioning for decertification of the Union as their col-
lective-bargaining agent.
WE WILL NOT restrain or coerce employees of Globe
Sheet Metal Works by sending letters or otherwise
threatening them with removal from their jobs when
they are under no statutory duty to join or remain
members of the Union.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
WE WILL rescind and refund the fine assessed
against Paul Mielke, with interest.
WE WILL remove from our files any reference to the
unlawful proceedings and fine against Paul Mielke and
WE WILL notify him in writing that this has been done
and that the charge and fine will not be used against
him in any way.
WE WILL advise Paul Mielke and Globe Sheet Metal
Works, Inc. that the Union is not seeking to remove
Paul Mielke from his job and is not seeking to enforce
any union-security obligation among employees at
Globe Sheet Metal Works.
SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION, LOCAL #18,
AFL–CIO
Benjamin Mandelman, Esq., for the General Counsel.
John J. Brennan, Esq. (Previant, Goldberg, Uelmen &
Gratz), of Milwaukee, Wisconsin, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Upon a charge
filed on February 3, 1992, by Paul Mielke, an individual, a
complaint issued on July 21, 1992,1 alleging that the Re-
spondent, Sheet Metal Workers International, Local No. 18,
AFL–CIO (the Local or the Union) violated Section
8(b)(1)(A) of the National Labor Relations Act (the Act) by
retaliating against Mielke in various ways because he was in-
strumental in decertifying the Union as the collective-bar-
gaining representative of unit employees at Globe Sheet
Metal Works, Inc. (Globe). The Respondent filed a timely
answer on August 3.
1137SHEET METAL WORKERS LOCAL 18 (GLOBE SHEET METAL)
2 The General Counsel’s and Respondent’s exhibits are referred to
as G.C. Exh. and R. Exh. respectively, followed by the appropriate
exhibit number.
At the trial held before me on February 4, 1993, in Mil-
waukee, Wisconsin, the parties were afforded full oppor-
tunity to examine and cross-examine witnesses and introduce
relevant documents.2 On the entire record, including my ob-
servation of the witnesses’ demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is now, and has been at all material times, a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Union’s Decertification
Local 18 and Globe Sheet Metal had a longstanding col-
lective-bargaining relationship until their last agreement cov-
ering a two-man unit expired on March 31, 1991. A few
weeks before that date, on March 8, Mielke, a sheet metal
worker at Globe, filed a decertification petition with the
Board. This was the first of a number of steps taken which
ultimately led to the Union’s demise as the Globe employ-
ees’ collective-bargaining agent.
Michael Engelberger, the Local’s vice president and busi-
ness representative, testified that soon after the decertification
petition was filed, he learned that Mielke was the petitioner.
Thereafter, Engelberger kept close watch on the progress of
the decertification movement.
As the RD petitioner, Mielke participated in the
preelection proceedings and also served as the observer at the
August 6 election which the Union lost. Engelberger in-
formed the union members about the outcome of the vote at
a subsequent meeting of Local 18.
B. The Union Suspends and Fines Mielke
Engelberger testified that in mid-November, just after re-
ceiving official word from the Board that the Union was de-
certified at Globe, he sought evidence to determine whether
Mielke was working for a nonunion employer. Under the
Union’s constitution, that offense could subject the member
to charges and possible imposition of a substantial fine. After
failing to reach Mielke by telephone at work on either No-
vember 18 or 19, Engelberger called him at home on the
evening of November 19 and asked, ‘‘how things were going
now that Globe Sheet Metal Work has gone nonunion.’’
(G.C. Exh. 10g.)
Engelberger acknowledged that he did not tell Mielke the
true reason for his telephone call. Not only did the union
agent fail to warn Mielke that he was about to prefer charges
against him, he did not inform him of his right to resign or
submit a withdrawal card, nor mention the possibility of a
referral to a union shop.
On the day after this phone call, Engelberger filed a
charge with the Union alleging that Mielke was in violation
of article 17, section 1(g) of the constitution which provides
that a member may be penalized for:
Accepting employment in any shop or on any job
where a strike or lockout, as recognized under this Con-
stitution, exists, or performing any work covered by the
claimed jurisdiction of this Association for any em-
ployer that is not signatory to or bound by a collective
bargaining agreement with an affiliated local union of
this International Association, unless authorized by the
local union. (R. Exh. 1.)
On the same date, the Local notified Mielke of the charge
preferred against him, and advised him that a trial board
would be appointed several weeks later. By letter of Decem-
ber 10, the Local further notified Mielke of the date, time,
and place of the hearing, and added that if he did not appear,
the trial board would proceed with the trial in his absence.
By form letter dated December 15, the Local warned
Mielke that he would be suspended from membership as of
December 30 for failing to pay dues for 2 months. The letter
further stated that if he was suspended and failed to seek
timely reinstatement, his employment would be in jeopardy.
Mielke received another computerized form letter dated
January 3, 1992, notifying him that he was suspended from
membership in Local 18. The letter stated in no uncertain
terms that if he failed to pay a reinstatement fee of $200 and
3 months’ dues within 10 days, the Local would have ‘‘no
choice except to seek your discharge from your current em-
ployer, as outlined in the current labor agreement.’’ (G.C.
Exh. 12(a).)
Robert Batzler, Local 18’s financial secretary-treasurer,
stated that he became aware of Mielke’s role in the decerti-
fication movement soon after the petition was filed. He also
knew that the Union had been decertified prior to the time
the December 15 and January 3 dues delinquency notices
issued. Batzler, whose name appeared in type as the signator
on each of these letters, admitted that he was nominally re-
sponsible for the issuance of the dues arrearage notices such
as the ones Mielke received. However, he attempted to mini-
mize his role in their issuance by explaining that such notices
were computer-generated and mailed out routinely by office
secretaries without his seeing or personally signing them. At
the same time, he acknowledged that he had reviewed the list
of suspended employees and knew that Mielke’s name was
on it. Notwithstanding this knowledge, Batzler took no steps
to intercept the letters which threatened Mielke with job loss
based on the erroneous premise that he was bound by a
union-security clause in an extant collective-bargaining
agreement. Nor did any other agent of the Local ever attempt
to advise Mielke that these letters were issued in error. The
Local’s failure to correct its errors and rescind the inaccurate
portions of the December 15 and January 3 letters contrasts
with the conduct of a Sheet Metal health and benefit fund
administrator who advised Globe that it was entitled to a re-
fund for payments made after the date of decertification.
Mielke apparently was not alarmed by the December 15
and January 3 letters, for he did not contact the Union to in-
quire about them. In fact, he communicated with the Local
only once following the decertification election and then it
was to determine whether he was entitled to any benefits.
Mielke said that he did not respond to the Union’s commu-
nications, believing that once the results of the decertification
election were confirmed, he was ‘‘out of the union.’’ (Tr.
165.)
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Sec. 8(b)(1)(A) states:
It shall be an unfair labor practice for a labor organization or
its agents—
(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7: Provided, That this paragraph
shall not impair the right of a labor organization to prescribe its
own rules with respect to the acquisition or retention of mem-
bership therein; . . . .
Of course, if Mielke had not petitioned for decertification, in all
likelihood, he still would be working for a union contractor and
would not have been charged. However, this does not prove that he
was charged and fined because he filed the petition.
On January 4, 1992, a trial board composed of union offi-
cers convened to hear Mielke’s case. Although Mielke was
advised that he would be tried in absentia if he failed to ap-
pear, he chose not to attend. Thus, Engelberger was the sole
witness. He testified by reading aloud a prepared written
statement which provided a chronological summary of the
events precipitating the charge. He began by noting that the
Union was officially decertified as the collective-bargaining
representative for the employees at Globe Sheet Metal on
October 21, 1991. He then reported that Mielke had paid his
dues through October 30; that on November 15, he wrote to
the Union to ask about the status of any benefits he might
have, and that he worked for a nonsignatory contractor since
October 21 while remaining a member of Local 18. Relying
on these findings, Engelberger concluded that Mielke was in
violation of article 17, section 1(g).
Following this presentation, Engelberger answered several
questions posed by the trial board members. One inquiry
concerned the timing of the decertification; the other with
whether the second employee at Globe, a preapprentice, also
could be charged with working for a nonunion firm.
Engelberger turned over his statement and supporting docu-
ments to the trial board, but did not remain while its mem-
bers deliberated. One of these documents identified Mielke
as the proponent of the decertification petition.
The trial board ruled that Mielke was in violation of the
union constitution and imposed a fine of $3000. One of the
board members, Marc Dejarlais, testified that there was no
discussion of Mielke’s involvement in the decertification ef-
fort, although he admitted knowing of Mielke’s role in that
regard because it was mentioned in one of the exhibits pre-
sented to the Board. At the Union’s general business meeting
later that day, the membership voted to affirm the trial
board’s decision. By letter dated January 13, the Local noti-
fied Mielke of the outcome of the trial and advised him of
his right to appeal the decision.
CONCLUSIONS OF LAW
A. The Issues Presented
As framed by the complaint and answer, the following
issues are presented for resolution.
(1) Whether the Respondent violated Section 8(b)(1)(A) of
the Act by threatening Mielke in its letters of December 15,
1991 and January 3, 1992, with a loss of employment be-
cause he filed a successful decertification petition.
(2) Whether Respondent violated Section 8(b)(1)(A) of the
Act by filing charges against Mielke for working for a non-
union employer.
(3) Whether Respondent further violated Section
8(b)(1)(A) of the Act by trying Mielke on the charge; subse-
quently finding him guilty and imposing a $3000 fine, be-
cause he filed a successful decertification petition.
B. Respondent Unlawfully Threatened Job Loss
The first issue to be resolved in this case is whether the
Union’s letters of December 15 and January 3 unlawfully
threatened Mielke with a loss of employment for failure to
pay dues in violation of Section 8(b)(1)(A) of the Act.3
As described above, the Union’s December 15 letter
warned Mielke of imminent suspension from membership for
failure to pay dues and the possible loss of employment. The
threat of job loss was repeated more ominously on January
3 when the Union advised Mielke that he was suspended and
unless he paid a reinstatement fee and dues forthwith, the
Union would seek his discharge. Since Mielke had not re-
signed from union membership, the Local was within its
rights to suspend him. However, following decertification,
and with no collective-bargaining agreement in place, the
Union had no legitimate basis for threatening him with job
loss.
The Union claims that the letters were mailed automati-
cally and without unlawful intent. I do not find this claim
persuasive. Baltzer, the union agent ultimately responsible
for sending such letters, admitted knowing that Mielke was
responsible for filing the decertification petition; months be-
fore the Union was decertified, that Mielke worked for a
nonunion company and was facing a hearing because of it.
He also had to know that in the absence of a contract and
valid union-security clause with Globe, the Local had no le-
gitimate basis for threatening Mielke with job loss. Finally,
Baltzer knew that Mielke’s name appeared on a list of sus-
pended members, and that unless he intervened, the January
3 letter would be mailed to him. Yet, Baltzer did nothing to
intercept either letter.
Baltzer implied that such letters issued so automatically
that it was virtually impossible to staunch their flow Yet, he
also indicated that several office secretaries actually handled
this correspondence. Surely, he could have alerted the office
personnel to flag Mielke’s name and make sure he did not
receive the same form letters legitimately sent to other mem-
bers who owed dues. The process was not as inexorable as
Baltzer claimed since a second letter such as the one sent to
Mielke on January 3 would not have issued had he resigned.
Moreover, if a trust fund administrator was alert enough to
note that following decertification, Globe Sheet Metal was
due a refund and intervene in the process so that the con-
tributions from the employer were not wrongfully retained,
the Local also could have prevented the release of letters
which unjustly threatened Mielke with loss of employment.
Mielke’s name was not unknown to Baltzer—he was well
aware of Mielke’s role as the decertification petitioner. In
these circumstances, the Union cannot disclaim responsibility
for Baltzer’s failure to halt the issuance of these coercive let-
ters.
The Respondent also contends that Mielke knew that the
threat of job loss was meaningless since it was based on the
inaccurate assumption that a valid union-security clause was
in place. Indeed, Respondent submits that because the warn-
ing of job loss was based on such a patently mistaken
1139SHEET METAL WORKERS LOCAL 18 (GLOBE SHEET METAL)
premise, the letter obviously was issued inadvertently and
could not have been coercive. A similar argument was raised
by another union in Graphic Communications Local 458
(Noral Color), 300 NLRB 7, 16–17, (1990). There, the ad-
ministrative law judge found the Act was not violated by a
union’s demand to an employer for the discharge of em-
ployee-members under a union-shop clause of an expired col-
lective-bargaining agreement where the union promptly re-
scinded its request and the employees were not coerced by
the obvious error, The Board reversed the administrative law
judge on the following grounds:
We do not find it would be reasonably obvious to the
employees in question that the form letters requesting
their discharges were simply inadvertent mistakes. A
reasonable reading of these letters through the eyes of
the targeted employees would reveal that the facts re-
cited in each letter concerning each employee’s expul-
sion from the Union because of his failure to pay dues
were accurate and that the Respondent’s request for
their discharges was entirely consistent with its pre-
vious unlawful efforts to prevent them from resigning.
The erroneous reference in the letters to ‘‘our current
labor agreement,’’ while . . . mitigating the potential
coercive effect of these letters on the Employer, had no
such mitigating effect on the targeted employees them-
selves.
Id. at 11. At no time did Local 18 make any effort to rescind
those portions of the December 15 and January 3 letters
which warned Mielke of possible discharge, nor did anyone
assure him that those aspects of the letters were issued in
error. Although, in the absence of a collective-bargaining
agreement, the Union had no power to carry out its threat,
the above-cited cases compel the conclusion that the threat
of job loss was no less coercive here than in Noral Color.
The Union also cites Longshoremen ILA Local 333 (Ito
Corp.), 267 NLRB 1320 (1983), to support its contention
that under the circumstances, the warnings in the letters to
Mielke were not threatening. In Longshoremen ILA, a union
agent, upset that a member had filed an unfair labor practice
charge against the union, told the member’s supervisor to
warn him he would not be working the next day and should
go to the Board if he wanted a job. These remarks were not
communicated to the member until the following day when
he was already working. Consequently, the Board said: ‘‘[I]t
cannot reasonably be concluded under these circumstances,
which rendered . . . [the member’s] statement nugatory, that
it tended to coerce or intimidate Moore in the rights guaran-
teed him by the Act.’’ Clearly, Respondent’s reliance on this
case is misplaced for here, the Local’s threat that it would
seek Mielke’s discharge was not limited to a date which had
passed by the time he received the letters. Hence, it cannot
be said here that the Union’s threat was nugatory, as was the
case in Longshoremen ILA. Id. at 1321.
The Respondent also points out that the unfair labor prac-
tice charge Mielke filed with the Board focused solely on the
$3000 fine and did not allude to the threats of job loss. I am
not convinced that this omission proves that Mielke was
wholly unconcerned about those threats. Since the conduct
alleged to be unlawful was typewritten on a form in typical
Board ‘‘legalese,’’ it is fair to assume that it was prepared
by a Board agent. Mielke should not be held accountable for
what a Board representative chose to include or omit from
the charge. Accordingly, I conclude that the Union’s threats
to seek Mielke’s discharge reasonably tended to coerce or in-
timidate him in the exercise of rights protected under the
Act, thereby violating Section 8(b)(1)(A) of the Act.
B. Mielke was Charged Because He Petitioned
for Decertification
1. Applicable principles
Under the proviso to Section 8(b)(1)(A), which states that
a labor organization may prescribe its own rules with respect
to the acquisition or retention of membership, a union may
expel, fine, or otherwise discipline members without engag-
ing in unlawful restraint or coercion. However, a union may
not impose a fine if it infringes on the individual’s exercise
of statutory rights. For example, a union may not fine a
member for filing a decertification petition since ‘‘the effect
is not defensive and can only be punitive to discourage mem-
bers from seeking access to the Board’s processes.’’ Molders
Local 125 (Blackhawk Tanning), 178 NLRB 208, 209
(1969), enfd. 442 F.2d 92 (7th Cir. 1971).
The General Counsel contends that the Union unlawfully
charged, tried, and fined Mielke because he filed a successful
decertification petition. The Union counters that it treated
Mielke no differently than other members who, like him,
were sanctioned for failing to adhere to the constitutional
proscription against working for a nonsignatory contractor.
Where, as here, the evidence suggests that the Respondent
may have had both lawful and unlawful motives for charging
and fining Mielke, the Board applies a two-step mode of
analysis in determining causation. Plasterers Local 121, 264
NLRB 192 (1982). First, the General Counsel bears the bur-
den of establishing a prima facie case that the Respondent
acted against Mielke for discriminatory reasons. Thereafter,
the burden shifts to the Respondent to show that even if
Mielke had not petitioner for decertification, it still would
have charged and fined him.
2. The General Counsel’s prima facie case
There is no question that the General Counsel adduced
sufficient evidence to establish a prima facie case that Mielke
was charged and fined for discriminatory reasons. In peti-
tioning for decertification, Mielke clearly engaged in statu-
torily protected activity. Of course, Engelberger, the union
agent responsible for bringing the charges against Mielke,
was keenly aware of his role as the decertification petitioner.
Indeed, it appears that Engelberger’s inquiry into Mielke’s
employment status was prompted by his receiving official
notice of the Union’s decertification at Globe.
The decertification effort was no secret; it was discussed
at union meetings and at the monthly business agent meet-
ings. Further, Baltzer candidly acknowledged that
decertifications were rare and unwelcome events in the
Local’s experience and, therefore, certain to come to the at-
tention of virtually anyone concerned with the Union’s ad-
ministration.
The somewhat stealthy manner in which Engelberger gath-
ered evidence against Mielke in order to justify filing the
charge, suggests that the business agent was less interested
in upholding the Union’s constitution than in retaliating
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
against the individual responsible for decertifying the Local.
Engelberger readily admitted during the hearing that without
revealing his real motive, he telephoned Mielke for only one
reason—to confirm that he still worked for a company that
no longer had a union contract as a basis for charging him
with violating the Union’s constitution. Satisfied that he had
obtained the requisite proof, Engelberger filed a charge the
very next day.
Engelberger’s failure to disclose his intentions to Mielke
and his haste in filing the charge against him is in marked
contrast to the manner in which other union members were
treated who were accused of breaching the same article of
the constitution. Documents introduced into evidence show
that when business agents discovered that a member had
opened his own shop or was working for a nonunion com-
pany, they invariably attempted either to persuade the errant
member to sign a collective-bargaining agreement or transfer
to a different company. Only after such efforts failed, did the
agent file charges. See, for example, the papers comprising
Respondent’s Exhibit 3 which establish that a Local 18 busi-
ness agent made repeated efforts over several months time to
induce union member Dennis Bradley to sign a labor agree-
ment. Another business agent extended similar consideration
to Gregory Johnson who was not charged with violating the
constitution until more than a month had elapsed after he
was advised that he might be subject to charges for working
for a nonunion employer.
Other documents in evidence show that union members
Alan Bryl, Ronald Clark, Clarence Eckholm, and Walter
Henderson, to name a few, were charged after they had be-
come independent contractors and offered multiple opportu-
nities to sign labor agreements with the Local. The record
further discloses that Thomas Goodman was not charged
until he rejected the Local’s offer to transfer him from a non-
union to a union company. At no time did any union agent
offer Mielke an opportunity to avoid the union charge. In
fact, no only did Engelberger conceal his intentions, he has-
tened to cite him a day after verifying that Mielke was work-
ing for a nonsignatory business.
Engelberger’s disparate treatment of Mielke gives rises to
the inference that he charged him with violating the Union’s
constitution for a vindictive purpose. He was bent on trig-
gering a process that he believed would penalize the person
who had ousted the Union at Globe. The foregoing consider-
ations support the conclusion that the Respondent charged
Mielke with violating its constitution to retaliate against him
for engaging in activity protected by Section 7 of the Act.
3. Respondent lawfully tried and fined Mielke
The Respondent claims that it would have charged, tried,
and fined Mielke even in the absence of his antiunion activ-
ity. To support this contention, Respondent relies on the
same documents the General Counsel cites in taking a con-
trary position. As found above, it is unlikely that Engelberger
would have had occasion to file a charge against Mielke had
he been as forthcoming with him as his fellow business
agents were with other errant union members, or if he had
acted less hastily in filing the charge. However, once the
charge was filed, the record establishes that Mielke was
treated no differently than other union members who were
accused of violating article 17.
An examination of the Respondent’s exhibits show that the
Union handled the trials of all members charged with vio-
lating article 17 in a manner which closely matched the way
in which it proceeded against Mielke. Thus, in all but one
of the documented cases, the trials were scheduled to take
place within a month after the charge was filed. Similarly,
Mielke was notified of the date, time, and place of his trial
approximately a month before it was held. Mielke’s failure
to contract the Union on receiving the various notices sent
to him is one of the mysteries of this case. Certainly, if he
was capable of filing a decertification petition and an unfair
labor practice charge, and if he could telephone the Union
to inquire about the status of his benefits, he also was capa-
ble of determining that the Union could legitimately demand
that he submit a formal resignation.
The record further establishes that the Union was not in-
tent on conducting star chamber proceedings. Although the
Local furnished each accused member with adequate notice,
in most instances, they failed to appear and were tried in
absentia. This was the course that Mielke also chose. At each
trial, the charging union official read a prepared statement
which set forth the Union’s proof supporting the violation
and then, was excused while the trial board deliberated. This
was the procedure followed in Mielke’s case.
In virtually all cases, the trial board found the accused
member guilty of the violations alleged and assessed fines
which were comparable to the sum levied against Mielke. It
is true that no other member was fined more than $3000 for
violating article 17, section 1(g). However, a number of
members were charged with and found guilty of violating
two or three sections of article 17, based on the same con-
duct, and were fined amounts totaling as much as $10,000.
Consider the case of union member Perry Villani. (R. Exh.
16.) Villani was notified on January 11, 1989, of his trial to
be held almost a month later on February 4. Like Mielke, he
was tried in absentia for violating Section 1(g) for starting
his own nonunion business and employing two other union
members. For this Villani was fined $2500. In addition,
Villani was charged with violating article 17, section 1(m)
for ‘‘Engaging in . . . any conduct which is detrimental to
the best interests of this Association or any subordinate unit
thereof or which will bring said unions into disrepute.’’ Mul-
tiple fines for the same offense arising under various sections
of article 17 also were assessed against other members of
Local 18 including Phillip Windler, Gregory Johnson, Walter
Henderson, and Alan Bryl. By contrast, Mielke received
lighthanded treatment since he was charged with and fined
for violating only one section of the article.
As found above, the manner in which Engelberger sought
evidence to prove Mielke’s wrongdoing and his haste in fil-
ing the charge, prove that Respondent acted with a retaliatory
motive. However, a review of Respondent’s exhibits compels
a different conclusion with respect to his subsequent trial and
fine. These records establish that after the charge issued,
Mielke was treated no differently than any other union mem-
ber accused of violating article 17 of the Union’s constitution
and was accorded full due process. At the outset, it is impor-
tant to note that the charge itself advised Mielke that he had
violated the constitution by ‘‘performing . . . work . . . for
any employer that is not signatory or bound by a collective
bargaining agreement with an affiliated local’’ after October
21 and while he remained a member of the Local. (G.C. Exh.
1141SHEET METAL WORKERS LOCAL 18 (GLOBE SHEET METAL)
10(c).) If Mielke had any doubt about the status of his union
membership, he only had to contact the Union to put the
matter to rest. Having chosen not to do that, he may not be
heard to complain now that he was treated unfairly.
Moreover, notwithstanding the bias which prompted
Engelberger to press forward with the charge, the report
which he read to the trial board did not allude to Mielke’s
role as the decertification petitioner. Further, Dejarlis testi-
fied without controversion, that the trial board did not dis-
cuss or consider Mielke’s role in the decertification effort.
General Counsel faults Respondent for adducing testimony
about Mielke’s trial from only one member of the board.
However, the Union had no duty to produce all the members
of this body. If the General Counsel wanted to disclose con-
tradictions in their accounts, it was his burden to produce the
other members.
Accordingly, I conclude that the Respondent has proven
that it would have sanctioned Mielke even if he had not en-
gaged in protected, concerted activity. It follows that the Re-
spondent did not violate Section 8(b)(1)(A) in bringing
Mielke to trial and imposing a fine when he continued to
work for a nonsignatory contractor firm while remaining a
member of the Union.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent violated Section 8(b)(1)(A) of the Act by
threatening Paul Mielke with a loss of employment for fail-
ure to pay dues in its letters of December 15, 1991, and Jan-
uary 3, 1992, and by charging him with a violation of its
constitution, because he filed a successful decertification pe-
tition.
3. The above-described unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. Respondent did not violate the Act by trying and fining
Mielke for working for a nonunion employer while he re-
mained a member of Local 18.
THE REMEDY
In order to effectuate the policies of the Act, the Respond-
ent shall be ordered to cease issuing letters to employees of
Globe Sheet Metal or to other employees which threaten
them with a loss of employment when there is no duty to
join or remain members of the Union and advise Paul Mielke
that it is not seeking to remove him from his job. Further,
Respondent shall be directed to cease charging its members
for attempting to use the processes of the National Labor Re-
lations Board in having the Union decertified as their bar-
gaining representative. Lastly, Respondent shall be ordered to
post the notice to members appended to this decision.
[Recommended Order omitted from publication.]