Tool & Die Makers Lodge No. 113, Machinists

National Labor Relations Board - Board Decisions

Dec 11, 1973

207 N.L.R.B. 795 (N.L.R.B. 1973)

TOOL & DIE MAKERS LIDGE NO. 113, MACHINISTS 795
Tool and Die Makers Lodge No. 113, International
Association of Machinists and Aerospace Workers,
AFL-CIO (Midwest American Dental Division of
American Hospital Supply Corporation)andDonald
H. Vincent. Case 13-CB-4753
December 11, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
Upon a charge duly filed by Donald H. Vincent, an
individual, on March 13, 1973, and thereafter
amended on April 10, 1973, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 13, issued a complaint and
notice of hearing on May 10, 1973, against Tool and
Die Makers Lodge No. 113, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, herein called Respondent or the Union.
The complaint alleged that Respondent had engaged
in and was engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the National
Labor Relations Act, as amended, by imposing a
$250 fine against Vincent, a union member, and
disqualifying him from holding office in Respondent
for a period of 5 years, because he had circulated a
deauthorization petition among certain employees of
Midwest American Dental Division of American
Hospital Supply Corporation, herein called the
Employer. On May 15, 1973, Respondent filed an
answer denying the commission of any unfair labor
practices.
On June 12 and 13, 1973, the parties executed a
stipulation of facts by which they waived a hearing
before an Administrative Law Judge and the
issuance of an Administrative Law Judge's Decision
and recommended Order and agreed to submit the
case to the Board for findings of fact, conclusions of
law, and an order, based on a record consisting of
the charge, the amended complaint, the answer, and
the stipulation and exhibits attached thereto.
On June 18, 1973, the Board approved the
stipulation of the parties and ordered the case
transferred to the Board, granting permission and
time for the filing of briefs. Thereafter, the General
Counsel and Respondent filed briefs.
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.
Upon the basis of the charge, the amended
complaint, the answer, the stipulation and exhibits
attached thereto, the briefs, and the entire record in
this case, the Board makes the following:
FINDINGS OF FACT
1. JURISDICTION
Midwest American Dental Division, a wholly
owned subsidiary of American Hospital Supply
Corporation, is an Illinois corporation. During the
past fiscal year, a representative period, the Employ-
er purchased and received goods having a value in
excess of $50,000, and caused these goods to be
shipped directly from sources located outside the
State of Illinois to its facilities located at Melrose
Park, Illinois.
The parties stipulated, and we find, that Midwest
American Dental Division is, and at all times
material herein has been, an employer engaged in
commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act
and that it will effectuate the purposes of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Tool and
Die Makers Lodge No. 113, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Charging Party, Vincent, has been employed
as a machine setup man at the Employer's Melrose
Park, Illinois, facility for approximately 3 years, and
has been a member of the Respondent pursuant to a
valid union-security clause since June 1, 1970, the
contract's effective date.
In June 1972,1 and continuing during July, Vincent
circulated a deauthorization petition among certain
employees of the Employer. He filed a deauthoriza-
tion petition with the Board on July 7. During the
first few weeks of June, after Vincent had been
circulating the petition, it is undisputed that a
meeting was held in the Company's cafeteria at
which the petition and a grievance were discussed.
Particularly, Union Business Representative Powell
asked Vincent why he had circulated the petition.
After discussing the reasons, Powell explained the
Union's position in order to persuade Vincent not to
proceed with the petition. Present at this meeting,
i All dates hereinafter are in 1972 unless otherwise stated.
207 NLRB No. 127
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among others, were Powell, Kovel, the Union's night
steward, and Vincent.
By letter dated July 13, Powell notified Vincent,
Kovel, and Stuchlik of the Respondent's procedure
for "trial of a member." All three of these employees
were directly involved in the circulating and filing of
the petition as well as in the deauthorization
campaign which followed.
On July 21, a second meeting occurred between
Powell, Horvath, the Union's directing business
representative, Kovel, and Vincent. During this
meeting Horvath and Powell told Vincent that "if he
did not withdraw the petition within one week that
they would not be able to prevent the union
committee from filing charges against Vincent
pursuant to the Union Constitution." Vincent ref-
used to do so.
During the course of the deauthorization cam-
paign, Vincent circulated and mailed two campaign
letters to all employees in the unit.
On August 25, the deauthorization election was
held. The majority of employees voted to retain the
union-security clause. The Board certified the result
on November 1.
On November 14, approximately 2 weeks after the
Board's certification, and 3 months after the deau-
thorization election, Respondent's stewards, Varva,
Caroline, Simms, and Respondent's committeemen,
Collins and Crump, preferred charges against Vin-
cent. The charges said, in pertinent part:
The members listed below . . . hereby prefer
charges against Brother Donald Vincent . . . of
conduct unbecoming a member, specifically
attempting, inaugurating and encouraging seces-
sion from the International Association of Ma-
chinists and Aerospace Workers in violation with
Article L, Section 3 of the International Associa-
tion of Machinists and Aerospace Workers'
Constitution.
Specifically we charge Brother Vincent with
circulating false and malicious statements attack-
ing the character of the bargaining unit commit-
tee. We also charge brother Vincent with circulat-
ing false literature to the bargaining unit employ-
ees during the month of August, 1972.. . .
During the last week in December, Vincent ran
unopposed in a union election and was elected a
union committeeman for the Employer's employees.
On December 26, Vincent was notified that the trial
committee had decided a trial was necessary. On
January 17, 1973, Vincent was removed as commit-
teeman pending adjudication of the charges.
By letter dated February 23, Vincent was told that,
because he had engaged in conduct unbecoming a
member, the Union had voted to fine him $250 and
to disqualify him from holding any union office for a
period of 5 years.
As of the date of the stipulation, Vincent had not
appealed the trial committee's findings nor had he
paid the $250 fine.
B. Contentions of the Parties
The General Counsel contends that Respondent
coerced and restrained the Charging Party who was a
union member in violation of Section 8(b)(1)(A) by
imposing on him a $250 fine, and disqualifying him
from holding office in Respondent for a period of 5
years because he had circulated a deauthorization
petition among certain employees of the Employer.
Respondent denies the validity of these contentions.
C. Conclusion
As a preliminary matter, Respondent raises the
defense that no illegal motivation can be determined
from its threats in June and July 1972 since they are
beyond the 10(b) period. In addition, it asserts that
Vincent was disciplined not because he filed a
deauthorization petition but because of certain
statements in his two letters supporting the deauthor-
ization campaign which reflected on the honesty and
integrity of the Union and advocated secession from
the Union.
Although Section 10(b) precludes a finding of
illegality with respect to conduct which occurred
more than 6 months prior to the filing of the charge,
it is settled law that antecedent events may be
considered to "shed light on the true character of
matters occurring within the limitation period." 2
Accordingly, we find it is permissible to consider the
threats made by the Respondent's agents in June and
July 1972 as they reflect on the alleged unfair labor
practices which were within the 6-month limitation
period. From this consideration, we conclude that
the true motivation of Respondent in disciplining
Vincent was his activity in initiating, participating in,
and encouraging the filing of the deauthorization
petition. Moreover, Respondent's timing in initiating
disciplinary proceedings against Vincent, 2 weeks
after the Board certified the results of the deauthori-
zation election, and the nature of the charge
itself-"conduct unbecoming a member, specifically
attempting, inaugurating and encouraging secession
from" the Union-lead to the inescapable conclusion
that Respondent's action was motivated by Vincent's
2 Local Lodge No. 1424, International Association of Machinists [Bryan Trucking, Inc., 371 F.2d 244 (C.A. 7, 1966), enfg. 154 NLRB 1309.
Manufacturing Co.] v N.L. R.B., 362 U.S. 411 (1960); NL.R.B. v. Stafford
TOOL & DIE MAKERS LIDGE NO. 113, MACHINISTS
participation in and support of the Board-conducted
deauthorization election.3
Even accepting Respondent's explanation that the
discipline was only for certain statements made in
Vincent's letters supporting the deauthorization
petition, since we are finding herein, for reasons set
forth hereafter, that the filing of a deauthorization
petition is protected insofar as a fine is concerned
under the principles enunciated in Blackhawk Tan-
ning,4 it would be incongruous to say that, once the
employee begins to campaign in support of the
deauthorization petition, the union would be able to
take punitive action by fining him for statements
related to the campaign. This could only discourage
employees from filing petitions and make that
protection meaningless. The proper time for scruti-
nizing such propaganda is during the postelection
objection period.
Turning to the legal issue, the Board, with court
approval, has held that a union violates Section
8(b)(1)(A) by fining or expelling a member because
he filed unfair labor practice charges against the
union with the Board,5 but does not violate the Act
by expelling6 or suspending7 from membership a
member because he filed a decertification petition
with the Board. The distinction is based on the right
of a union to defend itself from destruction by one
who is privy to its strategy and tactics.
However, in Blackhawk Tanning, supra, the Board
held that a union violates Section 8(b)(1)(A) by
fining its member for filing a decertification petition
with the Board. In so holding, the Board explained
that the rule permitting a union to expel a member
who seeks its decertification was an exception to the
general rule prohibiting a union from penalizing its
members because they seek to invoke the Board's
processes. The exception was based on "the necessi-
ties of the situation, the right of the union to defend
itself."" In addition, the Board found that the
deterrent or punitive effect of expulsion in such
circumstances is minimal, since the employee's
attempt to repudiate the union by a decertification
proceeding demonstrates that loss of membership
and, presumably, expulsion from the union would be
of no significance to him.
In Smith-Lee, supra, the union not only fined its
3 United Lodge No. 66, International Association of Machinists and
Aerospace Workers, AFL-CIO (Smith-Lee Co.), 182 NLRB 849; Automotive
Salesmen 's Association affiliated with SIUNA AFL-CIO (Spitler-Demmer,
Inc.), 184 NLRB 608; American Bakery and Confectionery Workers' Local
Union 300 (National Biscuit Company), 167 NLRB 596.
4 International Molders' and Allied Workers Union Local No. 125,
AFL-CIO (Blackhawk Tanning Co., Inc.), 178 NLRB 208.
5 N L RB. v. Industrial Union of Marine and Shipbuilding Workers of
America, AFL-CIO (Bethlehem Steel Co.), 391 U.S. 418 (1968); Local 138,
International Union of Operating Engineers (Charles Skura), 148 NLRB 679.
6 Tawas Tube Products, Inc., 151 NLRB 46.
7 United Steelworkers of America, Local 4028 (Pittsburgh Moines Steel
797
member for circulating a decertification petition
among employees at his place of employment, but
also removed him from his elected position as
chairman of the shop committee and barred him
from holding office in the union for a period of 3
years. The Board, relying on Blackhawk Tanning,
supra, held that although the imposition of the fine
was unlawful, no violation was committed by the
union in removing its member from the shop
committee and barring him from holding office for a
period of years. The latter had a defensive effect and
therefore did not violate the Act under the Board's
rationale in Tawas Tube Products, supra. In yet
another case, Westvaco Corp.9 the Board, again
relying on Blackhawk Tanning, supra, held that the
union acted unlawfully by fining a member who had
solicited unit employees represented by the union to
sign a petition authorizing a rival union, which
resulted in a representation petition being filed by
the rival union.10 However, no violation was commit-
ted by the union in barring that member from
holding office in the union for a period of 5 years,
since such action was defensive under Tawas Tube,
supra.
Applying these principles, we conclude, as conced-
ed by the General Counsel, that realistically both
deauthorization and decertification petitions repre-
sent serious threats to a union. The decertification
petition if successful eliminates the union as the
collective-bargaining representative. The deauthori-
zation petition if successful does not relieve the
incumbent Union from its obligation to act as
collective-bargaining agent, but it allows employees
to work in the appropriate unit without joining the
union or paying dues. Thus, the deauthorization
petition can deprive the union of necessary income to
administer properly the contract while at the same
time the union still has its legal obligation to
represent all of the employees in the unit. We
therefore see no reason to depart from the rationale
of Blackhawk Tanning, supra, and its progeny in a
deauthorization situation. Accordingly, we conclude
that Respondent Union violated Section 8(b)(1)(A)
of the Act for fining Vincent for his deauthorization
activities because the effect is not defensive and can
only be punitive-to discourage members from
Co.), 154 NLRB 692.
8 Blackhawk Tanning, supra, 208-209.
9 Printing Specialties and Paper Products' Union 481, International
Printing Pressmen and Assistants' Union of North America, AFL-CIO
(Westvaco Corp.), 183 NLRB 1271.
10 See also Spitler-Demmer, supra; Local Union No. 953, Textile Workers
Union ofAmenca, AFL-CIO ( Vismet Mill, Bemis Company, Inc), 189 NLRB
598; Tn-Rivers Marine Engineers Union (U. S. Steel Corporation), 189 NLRB
838; District Lodge No. 837, International Association of Machinists and
Aerospace Workers, AFL-CIO and International Association of Machinists
and Aerospace Workers, AFL-CIO (McDonnell Douglas Corporation), 206
NLRB No. 79
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seeking such access to the Board 's processes . We also
conclude that Respondent Union did not violate
Section 8(b)(1)(A) of the Act by disqualifying
Vincent from holding union office for a period of 5
years , since the Union had a legitimate defensive
interest in disqualifying Vincent from office for his
deauthorization activities to safeguard the trust and
integrity demanded of a union officer.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICE
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
5. Respondent did not engage in and is not
engaging in unfair labor practices within the meaning
of Section 8(bX1XA) of the Act by disqualifying the
Charging Party from holding any union office for a
period of 5 years because he initiated, participated in,
and encouraged the filing of a deauthorization
petition.
ORDER
The conduct of the Respondent set forth above,
occurring in connection with the operations of the
Employer as set forth in section I, has a close,
intimate , and substantial relation to trade, traffic,
and commerce among the several States and tends to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
an unfair labor practice in violation of Section
8(b)(1)(A) of the Act by fining the Charging Party for
his deauthorization activities, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act. Having found that the Respondent has not
engaged in an unfair labor practice in violation of
Section 8(b)(1)(A) of the Act by disqualifying the
Charging Party from holding union office for 5 years,
we shall order that the complaint with respect to this
allegation be dismissed.
CONCLUSIONS OF LAW
1. Midwest American Dental Division of Ameri-
can Hospital Supply Corporation is, and at all times
material herein has been, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Tool and Die Makers Lodge No.
113, International Association of Machinists and
Aerospace Workers, AFL-CIO, is, and at all times
material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
3. By levying a fine against the Charging Party,
Donald H. Vincent, because he initiated, participated
in, and encouraged the filing of a deauthorization
petition, Respondent has engaged in and is engaging
in an unfair labor practice within the meaning of
Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practice is an unfair
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Tool and Die Makers Lodge No. 113, International
Association of Machinists and Aerospace Workers,
AFL-CIO, Melrose Park, Illinois, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Levying or attempting to collect a fine against
Donald H. Vincent, or any other employee, for
initiating, participating in, and encouraging the filing
of a deauthorization petition.
(b) 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. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Cancel the fine levied against Donald H.
Vincent and excise its imposition from its records.
(b) Advise Donald H. Vincent in writing that it has
taken the action required in 2(a) above.
(c) Post at Respondent's business office and
meeting hall , copies of the attached notice marked
"Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 13,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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.
(d) Mail to the Regional Director for Region 13
copies of the aforementioned notice for posting by
the Employer, if willing, in places where notices to
employees are customarily posted. Copies of said
notices, to be provided by the Regional Director for
Region 13, shall , after being duly signed by Respon-
11 In the event that this Order is enforced by a Judgment of a United Judgment of the United States Court of Appeals Enforcing an Order of the
States Court of Appeals, the words in the notice reading "Posted by Order National Labor Relations Board."
of the National Labor Relations Board " shall read "Posted Pursuant to a
TOOL & DIE MAKERS LIDGE NO. 113, MACHINISTS 799
dent's official representative, be forthwith returned
to the Regional Director for such posting.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
The complaint herein is hereby dismissed insofar as
it alleges that Respondent further violated the Act by
disqualifying the Charging Party from holding union
office for 5 years for initiating, participating in, and
encouraging the filing of a deauthorization petition.
WE wiLL cancel the fine levied against Donald
H. Vincent and -excise its imposition from our
records.
TOOL AND DIE MAKERS
LODGE No. 113,
INTERNATIONAL
AssoclAirloN OF
MACHINISTS AND
AEROSPACE WORKERS,
AFL-CIO
(Labor Organization)
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF[THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT levy or attempt to collect a fine
against Donald H. Vincent, or any other employ-
ee, for initiating, participating in, and encourag-
ing the filing of a deauthorization petition.
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.
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 881, Everett McKinley Dirk-
sen Building, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 312-353-7572.