United Construction Workers, Local 10

National Labor Relations Board - Board Decisions

Jan 8, 1971

187 N.L.R.B. 762 (N.L.R.B. 1971)

762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Construction Workers , Local 10, Christian
Labor Association (Erhardt Construction Co., et al.)
and Ricardo Meana, Attorney. Cases
7-CB-1787(1) and (2)
January 8, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon charges filed by Ricardo Meana, an individu-
al, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
7, issued a consolidated complaint dated October 15,
1968, against United Construction Workers, Local 10,
Christian Labor Association. The complaint alleged
that the Respondent Union had engaged in and was
engaging in unfair labor practices affecting commerce
within the meaning of Sections 8(b)(1)(A) and 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and notice
of hearing before a Trial Examiner were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges, in substance, that the Respondent
fined employees of Erhardt Construction Co. and of
Karsten Construction, Inc., who were members of the
Union in good standing, for misconduct engaged in
after their resignations from the Union, and in
unreasonable amounts ranging from, $440 to $990.
Respondent's answer admits in whole or in part
certain allegations of the complaint, but denies the
commission of unfair labor practices.
On December 11, 1968, the parties to this proceed-
ing entered into a stipulation of facts and consent to
transfer the proceeding to the Board. They agreed
that the charge, complaint, answer, and the stipula-
tion of facts constitute the entire record in this case,
and waived a hearing before a Trial Examiner and the
issuance of a Trial Examiner's Decision. The parties
also agreed to submit this proceeding for findings of
fact, conclusions of law, and order directly by the
Board.
By order of the Board dated December 16, 1968, the
stipulation of the parties was approved, this proceed-
ing was transferred to the Board, and permission was
granted to the parties to file briefs and they did so.
Subsequent thereto, the Board granted permission to
other interested parties to file briefs as amicus curiae
related to the application to the instant case of
Scofield v. N.L.R.B., 394 U.S. 423. Thereafter such
briefs, as well as supplemental briefs from the parties
herein, were duly filed.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
187 NLRB No. 99
Upon the basis of the stipulation , the briefs , and the
entire record in this proceeding , the Board makes the
following:
FINDINGS OF FACT
1. JURISDICTION
Erhardt Construction Co. and Karsten Construc-
tion, Inc., herein Erhardt, Karsten, or the Employers,
are corporations with places of business in Grand
Rapids, Michigan, where they are engaged in business
as contractors and builders of commercial, institu-
tional, and industrial buildings. During the calendar
year 1967 each had gross revenue in excess of
$500,000 and each purchased and received within the
State of Michigan goods and materials valued in
excess of $100,000 from outside the State of Michigan.
We find that Erhardt and Karsten are, and at all
times material herein have been, employers engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
ii. THE LABOR ORGANIZATION INVOLVED
United Construction Workers, Local 10, Christian
Labor Organization, is, and at all times material
herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The salient facts in this case are that on May 1, 1968,
the Respondent called a strike and established a
picket line at each Employer ' s place of business,
following the expiration of its contracts with the
Employers on that date . The strike continued until at
least May 28. On May I and thereafter , 12 employees
of Erhardt and 2 employees of Karsten crossed the
picket line . On May 2 and thereafter an additional
employee of Karsten joined the 14 others on crossing
the picket line . Although the expired agreements
required all employees , with certain exceptions not
shown to be material here, to become and remain
members of the Union in good standing , there is no
evidence that the employees were other than full
union members in good standing until their resigna-
tions, infra, from the Union.
The Respondent 's bylaws provide , as follows:
Any member of the Union who becomes a strike-
breaker shall by such action be subject to either
loss of membership in the Union or the payment of
a fine of not less than $25 . 00 or not more than
$50.00 for each eight hour shift or any part thereof
which he worked during the time of the strike as
determined by the [Union 's Executive ] Board after
a hearing at which the alleged strike-breaker may
UNITED CONSTRUCTION WORKERS , LOCAL 10 763
attend with coansel and present evidence and
argument
The Respondent charged nine employees of Erhardt
(Bramer , Brandsma, D Osterink, H Osterink, Schut,
Snyder, Van Drunen, Winright, and Zomerlei) with
strikebreaking on May 7, and fined them in amounts
varying from $50 to $90 for crossing the picket line
between May I and 3
Upon receiving notice of such fines on May 15 their
attorney (Ricardo Meana) sent the secretary of the
Respondent a letter later that day stating, inter aha,
"we hereby tender the resignation of each of these
men as a member of CLA, Local No 10, UCW,
effective immediately, and decline any representation
by said Local in collective-bargaining on their
behalf "I This letter was received by the Union on
May 17 On May 20, the Union replied through its
attorney stating that the employees' resignations were
not considered effective because they were not signed
by the members individually, and thus not in form to
be presented to the Union's executive board as
required by paragraph 10 of the Christian Labor
Association 2
On May 15 through 21, three other employees of
Erhardt (Render, Schmitt, and Isenga) as well as three
employees of Karsten (Acre, Karsten, and Slocum)
who crossed the picket line, sent letters of resignation
to the Union Their strikebreaking, however termi-
nated before their resignations were received
On or about June 7, additional charges of strike-
breaking were served on all the above individuals, and
after a hearing they were fined in varying amounts,
from $440 to $990 3
The General Counsel contends that the imposition
of the fines for strikebreaking by the above nine
employees on and after May 17, the date of receipt of
their attorney's letter tendering their resignations, is
unlawful because their resignations were effective
immediately and as nonmembers they could not be
coerced and restrained thereafter in the exercise of
their Section 7 right to refrain from adherence to the
strike The General Counsel also contends that the
fines of all 15 strikebreakers were unlawful because
they were unreasonably large
I Fines imposed on activities as nonmembers In
Booster Lodge No 405, International Association of
Machinists (The Boeing Company), 185 NLRB No 23,
the Board recently held that where there was no
union-security contract in effect at the time employ-
ees attempted to resign from the union, and where
neither the union's constitution nor bylaws provided
for any procedure for employees' resigning from the
union, employees ' resignations became effective,
under the circumstances of that case, upon submittal
to the union The Board held further that the union
committed an 8(b)(1)(A) violation by imposing fines
on strikebreaking occurring after such submittals In
the instant case, there was no union-security contract
in effect at the time of the attempted resignations but
there is a procedure provided by paragraph 10 of the
Union's constitution, supra, for resignations This
procedure provides for submission of resignations in
writing to the Union and action by the Union upon
receipt thereof It is evident that the Union treated the
resignations in the instant case as effective upon
receipt where they were sent by individual members
and only objected to their effectiveness where sent by
an attorney Neither the Union's constitution nor its
bylaws requires that resignations be sent only by the
individuals concerned And we believe the letter from
the individuals' attorney clearly advised the Respon-
dent in writing that the individuals had resigned their
memberships In any event, the later sending of
individual resignations was clear ratification,4 and we
find, under the circumstances of this case, that the
resignations were effective when originally received
on May 17, 1968 However, the stipulated record does
not disclose the time of receipt on that date and we are
unable to conclude that the resignation was received
prior to the time when the employees crossed the
picket line Accordingly we hold that the fines
attributable to employee conduct on May 17 do not
violate the Act 5 As Bramer, Brandsma, H Osterink,
Schut, Snyder, Van Drunen, Winright, and Zomerlei
were fined for postresignation conduct, the Board, in
I On May 24 the above nine employees individually confirmed their
resignations by letters to the Local Union and such confirmations were
received on May 29
2 This paragraph reads
Membership may terminate by resignation or expulsion Resignations
must be presented in writing The Board of the Local or Division
passes upon such resignations Any member who carries on activities
conflicting with the principles aim or objectives or practices of the
CLA shall be admonished by the Board of his Local or Division and if
he fails to heed the warning shall be subject to suspension from
membership privileges by the Board and to final expulsion from
membership in the Union after having been given an opportunity for a
hearing at a regular union meeting An expelled member forfeits all
claims to the exercise of the rights and privileges connected with
membership in the CLA but shall have the right to appeal to the
National Board and of final appeal to the next convention of the
CLA
Bramer Brandsma H Osterink Schut Snyder Van Drunen
Winright and Zomerlei were fined at the rate of $50 per day for
strikebreaking 10 days between May 3 and 16 and 8 days thereafter D
Osterink was fined at the same rate for 9 days between May 3 and 15
Acre lsenga Karsten Render Schmitt and Slocum were fined $40 for the
first day they crossed the picked line and $50 per day thereafter Except for
Slocum the employees resignations were mailed to the Union the day
before the last day they crossed the picket line Slocum s letter of
resignation was sent on the last day he crossed the picket line As observed
their letters were received after their strikebreaking had ceased
4 Cf John I Paulding Inc 130 NLRB 1035 1043 enfd on other
grounds 297 F 2d 272 (C A 1) further clarified John I Paulding Inc 142
NLRB 296 fn 3
5 See Local 1012 United Electrical Radio & Machine Workers of America
(General Electric Company) 187 NLRB No 46
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accord with its decision in Boeing, supra, concludes
that the Union 's fining of the above -named employ-
ees for such postresignation activities after May 17,
1968, coerced and restrained them in the exercise of
their Section 7 rights in violation of Section
8(b)(I)(A).
2. Unreasonably large fines : The Board , in Arrow
Development Corp., 185 NLRB No. 22, has held that
whether fines are unreasonably large is an internal
union matter not within the purview of the Act. In so
holding , we rejected the contention of the General
Counsel that the imposition of fines unreasonably
large in relation to earnings established an 8(b)(1)(A)
violation . In accord with our decision in Arrow, we
find that no other violations of the Act have been
committed.
THE REMEDY
In view of the unfair labor practices committed, we
shall provide for a cease-and-desist remedy as set
forth in Boeing. We shall also order reimbursement of
such portions of any fines which have been paid, to
the extent that they are based on the postresignation
conduct of the fined employees.
CONCLUSIONS OF LAW
1. Erhardt Construction Co. and Karsten Con-
struction, Inc., are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. United Construction Workers, Local 10, Chris-
tian Labor Association, is, and at all times material
herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
3. By fining employees of the Employers for
crossing a picket line to the extent such crossing was
after their resignations from the Union became
effective, the Union has coerced or restrained
employees in the exercise of their rights guaranteed in
Section 7 of the Act.
4. The above conduct constitutes unfair labor
practices under Section 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
United Construction Workers, Local 10, Christian
Labor Association, its officers, agents, and represent-
atives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees, who had
resigned from and who were no longer members of
the Union, in the exercise of their rights guaranteed in
Section 7 of the Act, by imposing fines against such
employees because of their postresignation conduct in
working at the Grand Rapids, Michigan, construction
projects of the Employers during the May 1968 strike.
(b) In any like or related manner restraining or
coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Reimburse or refund to Dale Bramer, Henry
Brandsma, Howard Osterink, Al Schut, Melvin
Snyder, Robert Van Drunen, Gerry Winright, and
Paul Zomerlei, if they have paid fines under the
circumstances described in paragraph 1(a) of this
Order, the amount of fines imposed because of
postresignation conduct in working at the above
construction projects, plus interest at the rate of 6
percent per annum.
(b) Post at its business offices and meeting halls and
at the Employers' premises at Grand Rapids, Michi-
gan, if they are willing, copies of the attached notice
marked "Appendix."6 Copies of said notice, on forms
provided by the Regional Director for Region 7, after
being duly signed by the Union's representative, shall
be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members are customarily posted. Reasona-
ble steps shall be taken by the Union to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Sign and mail to the Regional Director for
Region 7 sufficient copies of said notice, on forms
provided by him, for posting by the Employers, if
willing.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violation has been found be,
and they hereby are, dismissed.
MEMBER BROWN, concurring in part and dissenting in
part:
I concur in dismissing so much of the complaint as
is based on the claim that the fines are unreasonable
in amount. For the reasons stated in my dissenting
6 In the event that this Order is enforced by a Judgment of a United Pursuant to a Judgment of the United States Court of Appeals Enforcing
States Court of Appeals, the words in the notice reading "Posted by Order an Order of the National Labor Relations Board "
of the National Labor Relations Board" shall be changed to read "Posted
UNITED CONSTRUCTION WORKERS , LOCAL 10 765
opinion in Booster Lodge No. 405, International
Association of Machinists and Aerospace Workers,
AFL-CIO (The Boeing Company), supra, I would also
find no violation of Section 8(b)(l)(A) of the Act and
would dismiss the complaint in its entirety.
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 restrain or coerce employees who
had resigned from the Union, and who, in the
exercise of their rights guaranteed in Section 7 of
the Act, worked at construction projects of the
Employers during the May 1968 strike, by impos-
ing fines as to such employees, because of their
postresignation conduct.
WE WILL reimburse Dale Bramer, Henry
Brandsma, Howard Osterink, Al Schut, Melvin
Snyder, Robert Van Drunen, Gerry Winright, and
Paul Zomerlei for any fine they may have paid to
us for working during the said strike, after they
became nonmembers of the Union, plus interest at
the rate of 6 percent per annum.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed to them in Section 7 of the
National Labor Relations Act.
UNITED CONSTRUCTION
WORKERS, LOCAL 10,
CHRISTIAN LABOR
ASSOCIATION
(Labor Organization)
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,
deface', or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone 226-3200.