Bay Cities Metal Trades Council

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 983 (N.L.R.B. 1992)

983
306 NLRB No. 199
BAY CITIES METAL TRADES COUNCIL
1 In adopting the judge’s finding that the Respondent unlawfully
threatened employees with the loss of health, welfare, and pension
benefits if they resigned from union membership, we stress that the
Respondent made these statements in the context of two other threats
which we find, as did the judge, also violated Sec. 8(b)(1)(A) of the
Act.
Bay Cities Metal Trades Council and Southwest
Marine, Inc. Case 20–CB–8516
March 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 23, 1991, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel submitted an answering 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-
clusions1 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bay Cities Metal Trades
Council, Oakland, California, its officers, agents, and
representatives, shall take the action set forth in the
Order.
Leticia Pena, for the General Counsel.
David A. Rosenfeld (Van Bourg, Weinberg, Roger &
Rosenfeld), for the Respondent.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. On a
charge filed on November 5, 1990, by Southwest Marine,
Inc. (Employer), the General Counsel of the National Labor
Relations Board (Board), by the Board’s Regional Director
for Region 20, issued a complaint and notice of hearing on
December 19, 1990, against Bay Cities Metal Trades Council
(Respondent), alleging that Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning of
Section 8(b)(1)(A) of the National Labor Relations Act (Act),
by issuing letters dated October 26, 1990, to employees of
the Employer which threatened the employees as follows:
they would be fined and internal disciplinary action would be
taken against them if they resigned their union membership
and crossed Respondent’s picket line to work for the Em-
ployer; they would be required to rejoin the Union and pay
new initiation fees if they resigned their union membership;
and, with the loss of benefits if they resigned their union
membership and crossed Respondent’s picket line to work
for the Employer. On January 2, 1991, Respondent filed an
answer to the complaint denying the commission of the al-
leged unfair labor practices.
Subsequent to the issuance of the complaint and the Re-
spondent’s answer, all of the parties to this proceeding en-
tered into a stipulation of facts. The parties agreed to submit
this proceeding, without a hearing, directly to an administra-
tive law judge for recommended findings of facts, conclu-
sions of law, and order. The parties also agreed that the stip-
ulation of facts together with the exhibits attached thereto,
and the briefs of the parties, constitute the entire record in
this case.
On July 22, 1991, Deputy Chief Administrative Law Judge
Earldean V.S. Robbins issued an order assigning the matter
to me for the issuance of a decision.
On the basis of the stipulation of facts and exhibits there-
to, the briefs filed by the General Counsel and Respondent,
and the entire record in this case, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer is a corporation in the ship repair business
in San Francisco, California. During the 12-month period
ending November 30, 1990, the Employer purchased and re-
ceived at its place of business in San Francisco, California,
products, goods, and materials valued in excess of $50,000
directly from points outside California.
The Employer is now, and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. RESPONDENT’S STATUS AS A LABOR ORGANIZATION
Respondent is an organization composed of various con-
stituent members, which are labor organizations within the
meaning of Section 2(5) of the Act, and Respondent exists
for the purpose, inter alia, of representing such constituent
labor organizations in dealing with employers concerning
labor disputes and in bargaining collectively with employers
regarding wages, rates of pay, hours of employment, and
other terms and conditions of employment with its employee-
members.
Respondent is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
Respondent is the exclusive collective-bargaining rep-
resentative of an appropriate unit of employees employed by
the Employer at its San Francisco, California facility. The
Employer and Respondent were signatories to a collective-
bargaining agreement governing the terms and conditions of
employment of those employees. The agreement was effec-
tive by its terms from July 27, 1987, to October 26, 1990.
Respondent and the Employer engaged in negotiations for
an agreement to succeed the one scheduled to expire on Oc-
tober 26, 1990. The negotiations occurred between June 12
and October 26, 1990.
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent contends there is no evidence that anyone who re-
ceived the October 26 letter could have been affected by action
taken by Respondent, because there is no evidence that anyone who
received the letter ‘‘was subject to the [Respondent] as a member.’’
This contention is without merit because the record reveals the letter
was distributed by Respondent to the Employer’s employees and it
was addressed by Respondent to ‘‘Our Good Members.’’ This evi-
dence constitutes a prima facie showing that the letter was distrib-
uted to and received by employees of the Employer who were mem-
bers of the Respondent’s constituent unions.
On or about October 24, 1990, the Employer was informed
by Respondent that a strike was to be initiated after the col-
lective-bargaining agreement between the parties expired on
October 26, 1990.
On or about October 26, 1990, Respondent distributed a
letter to certain of the employees employed by the Employer
in the bargaining unit represented by the Respondent. This
letter stated:
To: Our Good Members
From: Bay Cities Metal Trades Council
Negotiating Committee
Subject: ‘‘Financial Core’’ participants
Recently Southwest Marine distributed a memorandum
informing their employees about ‘‘financial core mem-
bership.’’ This is a blatant attempt by the anti-union
employer to divide its employees and weaken their
unions. It should come as no surprise that this should
happen since it comes from a company known for its
anti-union bias and non-union yards in San Diego and
San Pedro.
The law is not settled and clear about ‘‘financial core
membership.’’ We do not recognize ‘‘financial core
membership.’’ We do recognize that members can re-
sign, but if they resign, they sever their relationship
with the union. They are not members and lose the ben-
efits of union membership. As a union member, you
can have a voice and vote in the affairs of your union,
including voting on contracts. As a non-member, you
have no right to union rights and benefits.
Members who resign and quit their union are simply
scabs and will be treated as such. Scabs may be fined
if they cross the picket line, and we will take all inter-
nal disciplinary action which the law permits. Scabs
who quit the union may be forced to rejoin and pay a
new initiation fee. To the extent the law permits, we
will require initiation fees of those who scab and quit
the union.
Southwest is trying to mislead you into thinking you
will not lose health and welfare or pension if you scab.
To the extent your pension or health and welfare is
vested, you will not lose those benefits if you scab. But
some of those who scab may lose some benefits de-
pending on what action the company takes and the
terms of the pension and/or health and welfare pro-
grams. Do not believe all that the company tells you.
Only the health and welfare and pension offices have
authority to speak with regard to benefits.
There are many benefits of remaining a union member.
Those benefits include full participation in the union as
well as many other benefits. We think all of you, with
the exception of a few weak brothers and sisters, will
ignore Southwest’s threats and promises.
Do not give up your membership.
Do not scab.
From on or about October 29, 1990, to on or about De-
cember 14, 1990, certain of the Employer’s employees em-
ployed in the bargaining unit represented by Respondent,
ceased work concertedly and engaged in a strike.
B. Discussion and Conclusions
In judging whether Respondent’s October 26 letter to the
Employer’s employees restrained or coerced them within the
meaning of Section 8(b)(1)(A) of the Act, the test is whether
the contents of the letter reasonably tended to coerce or in-
timidate the employees in the exercise of rights protected
under the Act. Longshoremen ILA Local 333 (ITO Corp.),
267 NLRB 1320, 1321 (1983), and cases cited therein. It is
also settled that an employee’s right to resign from the union
is protected under the Act, as is the employee’s right to then
cross the union’s picket line to work for an employer, with-
out fear of being fined or disciplined by the union for engag-
ing in this conduct. NLRB v. Textile Workers, 409 U.S. 213
(1972); Pattern Makers League v. NLRB, 473 U.S. 95
(1985); Auto Workers Local 449 v. NLRB, 865 F.2d 791 (6th
Cir. 1989). This is true even for employees who change their
membership status from full union membership to ‘‘financial
core’’ status. NLRB v. Hotel & Restaurant Employees Local
54, 887 F.2d 28 (3d Cir. 1989). Also, because an employee
has a statutory right to change his or her union membership
from full membership to ‘‘financial core’’ membership, a
union violates Section 8(b)(1)(A) by requiring that an em-
ployee pay a second initiation fee for engaging in this con-
duct. NLRB v. Office Employees Local 2, 902 F.2d 1164 (4th
Cir. 1990).
IV.
I am of the opinion, for the reasons below, that when
judged by the above-legal principles, there is merit to the al-
legations of the complaint charging Respondent with violat-
ing Section 8(b)(1)(A) of the Act by threatening employee-
members of its constituent unions, that if they resigned their
union membership and crossed Respondent’s picket line to
work for the Employer, they would be fined and that internal
union disciplinary action would be taken against them, and
that if they resigned their union membership they would be
required to rejoin the Union and pay a new initiation fee.
On October 26, as described supra, Respondent distributed
a letter to members of its constituent unions employed by the
Employer.1 Respondent distributed the letter in anticipation
of its scheduled strike against the Employer and in response
to the Employer’s memorandum to the employees notifying
them of their right under the Act to change their union mem-
bership from full union membership to ‘‘financial core’’
membership status.
Respondent’s October 26 letter stated, among other things,
Respondent did not recognize ‘‘financial core’’ membership
status and further stated that although Respondent recognized
985BAY CITIES METAL TRADES COUNCIL
2 I considered that the October 26 letter did not expressly say that
‘‘scabs’’ who quit the Union to become ‘‘financial core’’ members
might be required to rejoin and pay a new initiation fee. However,
the letter was captioned, ‘‘Subject: Financial Core participants,’’ and
was distributed by Respondent in response to a memo from the Em-
ployer to the employees which explained the right of the employees
to become ‘‘financial core’’ union members. In view of these cir-
cumstances, the message in the letter was reasonably calculated to
lead the employee-recipients to believe that if they changed their
union membership from full union membership to ‘‘financial core’’
membership, Respondent might require them to rejoin and pay a sec-
ond initiation fee.
3 I am of the view that the unfair labor practice findings are en-
compassed by the pleadings, despite the variance in the proof from
the complaint’s unfair labor practice allegations. In any event, the
variance is a minor one and the parties stipulated that, ‘‘to the extent
that there are minor variations between the allegations in the Com-
plaint and the facts set forth in this Stipulation, the Complaint is
amended to conform to the Stipulation.’’
union members had the right to resign, that ‘‘members who
resigned and quit their union are simply scabs and will be
treated as such.’’ The letter goes on to state Respondent in-
tended to treat members who resigned, described by Re-
spondent as ‘‘scabs,’’ in the following fashion:
Scabs may be fined if they cross the picket line, and
we will take all internal disciplinary action which the
law permits. Scabs who quit the union may be forced
to rejoin and pay a new initiation fee. To the extent the
law permits, we will require initiation fees of those who
scab and quit the union.
I find that the language quoted immediately above was
reasonably calculated to lead the members of the Respond-
ent’s constituent unions employed by the Employer to be-
lieve Respondent might fine them and take internal union
disciplinary action against them, if they resigned from the
Union and crossed the Respondent’s picket line to work for
the Employer. The language was also reasonably calculated
to lead them to believe that if they changed their union mem-
bership from full membership to ‘‘financial core’’ member-
ship status, Respondent might require them to rejoin and pay
a second initiation fee.2 Such threats tended to restrain or co-
erce the employees from exercising their right under Section
7 of the Act to resign their union membership and cross Re-
spondent’s picket line to work for the Employer and to
change their union membership status from full membership
to ‘‘financial core’’ membership status. Accordingly, I con-
clude that by making the aforesaid threats Respondent vio-
lated Section 8(b)(1)(A) of the Act.
In so concluding I considered that Respondent did not in-
form the employee-members that they would be fined or dis-
ciplined or would be forced to rejoin the Union and pay a
new initiation fee, as alleged in the complaint, but instead
warned them that they might be fined and that Respondent
would discipline them insofar as the law permitted, and that
to the extent the law permitted Respondent would require
that they pay a new initiation fee if they quit the Union.3
However, even though Respondent’s message was worded in
terms of action which the law permitted and/or action which
Respondent might engage in, I am convinced that in the
minds of the employee-recipients, the message could have
only been ambiguous. And the risks of this ambiguity must
be held against the Respondent, the publisher of the letter,
rather than against the employees, who are not labor lawyers
or union officials or otherwise knowledgeable about the intri-
cacies of Sections 7 and 8(b)(1)(A) of the Act. NLRB v. Mil-
ler, 341 F.2d 870, 873–874 (2d Cir. 1965). Respondent’s re-
liance on NLRB v. Iron Workers Local 433, 850 F.2d 551,
555–558 (9th Cir. 1988), is misplaced. Iron Workers Local
433 involved the issue of whether a statement made to a neu-
tral employer by a union constituted an illegal threat within
the meaning of Section 8(b)(4)(ii) (B) of the Act, whereas
the issue here is whether a statement made to rank-and-file
employees by a union is reasonably calculated to restrain or
coerce the employees from exercising their Section 7 rights.
Moreover, the recipients of the Union’s message in the in-
stant case are employees, who are unsophisticated in the in-
tricacies of Federal labor law, whereas, as the court noted in
Iron Workers Local 433, the employer-recipient of the
union’s message in that case was ‘‘sophlsticated in labor
matters.’’
V.
The remaining unfair labor practice allegation alleges Re-
spondent violated Section 8(b)(1)(A) of the Act by threat-
ening employees, in its letter of October 26, with a loss of
employment benefits if they resigned from the Union and
crossed Respondent’s picket line to work for the Employer.
In support of this allegation, the General Counsel relies on
that part of the letter which states that ‘‘[m]embers who re-
sign and quit their union are simply scabs,’’ and further
states:
[The Employer] is trying to mislead you into thinking
you will not lose health and welfare or pension if you
scab. To the extent your pension or health and welfare
is vested, you will not lose those benefits if you scab.
But some of those who scab may lose some benefits
depending on what action the company takes and the
terms of the pension and/or health and welfare pro-
grams. Do not believe all that the company tells you.
Only the health and welfare and pension offices have
authority to speak with regard to benefits.
I am of the opinion that Respondent’s statement that some
of the ‘‘scabs,’’ namely employees who resign from Re-
spondent’s constituent unions, migh lose some of their exist-
ing health, welfare, and pension employment benefits ‘‘de-
pending on what action [the Employer] takes and the terms
of the pension and/or health and welfare programs,’’ has the
inevitable and foreseeable effect of inhibiting employees
from exercising their statutory right to resign their union
membership, inasmuch as the possibility of losing some of
their health, welfare, and pension employment benefits be-
cause of their resignation is reasonably calculated to inhibit
them from resigning. I therefore find that Respondent vio-
lated Section 8(b)(1)(A) of the Act by threatening the em-
ployees with the loss of existing health, welfare, and pension
employment benefits if they exercised their statutory right to
resign from Respondent’s constituent unions.
I have considered that the threatened loss of employment
benefits involved conduct which Respondent attributed to a
third party, the Employer. Nonetheless, I am persuaded the
threat is ‘‘coercive’’ within the meaning of Section
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The conclusion reached in this case is consistent with the prin-
ciples set forth by the court in NLRB v. Laborers Local 534, 778
F.2d 284 (6th Cir. 1985). There, among other things, the court stated
that, ‘‘[w]hen a Union has merely objectively informed employees of
those consequences of the employees’ actions that are beyond the
Union’s control, no Section 8(b)(1)(A) violation has occurred.’’
[Emphasis added.] Here, Respondent’s conclusionary statement that
employees who resign their union membership ‘‘may lose some ben-
efits depending on what action the company takes and the terms of
the pension and/or health and welfare programs,’’ does not raise to
the level of ‘‘objectively inform[ing] employees of those con-
sequences of the employees’ actions that are beyond the Union’s
control.’’ Respondent provided the employees with no objective facts
which indicated that because of the terms of the governing pension
and/or health and welfare programs, or for any other reasons, the
Employer might reduce the employees’ existing health, welfare, or
pension benefits of employment if they resigned from Respondent’s
constituent unions.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
8(b)(1)(A), inasmuch as it is a threat of the loss of existing
employment benefits which was expressed to the employees
by the labor organization which is the exclusive collective-
bargaining agent of the employees to whom it was addressed.
Under these circumstances, the threat was reasonably cal-
culated to ‘‘coerce’’ the employees, within the meaning of
Section 8(b)(1)(A), and would have this calculated effect
without regard to whether the employees were told by em-
ployees that the Employer, rather than Respondent, might
implement the threat.
Alternatively, in finding the above-described violation of
the Act, I considered it significant that Respondent did not
present a single objective fact, either in its October 26 letter
to the employee-members or during this unfair labor practice
proceeding, to support its assertion that the employees were
in danger of having the Employer reduce their existing
health, welfare, and pension employment benefits if they re-
signed from Respondent’s constituent unions, nor did Re-
spondent otherwise show it had some reasonable basis for
telling the employees this. As the exclusive collective-bar-
gaining agent of the Employer’s employees, whose terms and
conditions of employment were governed by a collective-bar-
gaining agreement between the Respondent and the Em-
ployer, Respondent would possess such facts, if they existed.
In view of Respondent’s failure to reveal such facts, this is
not a situation where a union, in seeking to dissuade employ-
ees from exercising a right protected by the Act, has truth-
fully predicted possible action by the employees’ employer
or by some other third party, which would adversely effect
their employment benefits, if they engaged in activity pro-
tected by the Act. Absent evidence that in threatening the
employees in this case, that Respondent was merely express-
ing a truthful prediction or had some reasonable basis for the
threat, it is my opinion Respondent’s threat was coercive
within the meaning of Section 8(b)(1)(A), despite the fact
Respondent attributed the threatened conduct to the Em-
ployer.
I am of the view that where, as here, the General Counsel
has made a prima facie showing that Respondent’s message
to the employees was reasonably calculated to coerce them
from exercising right protected by the Act and Respondent
apparently defends on the ground that its message truthfully
predicted possible action by the Employer, without Respond-
ent’s instigation or assistance, the Respondent must provide
objective facts which show it was merely making a truthful
prediction or had some reasonable basis for its expressed be-
lief.4 Respondent failed to do so. Cf. NLRB v. Gissel Packing
Co., 395 U.S. 575, 618 (1969), where, in considering wheth-
er an employer’s statement to employees constituted a threat
proscribed by Section 8(a)(1) of the Act, or, as contended by
the employer, a truthful prediction as to the probable con-
sequences of unionization beyond the employer’s control, the
Court held that for the employer’s defense to have merit, the
claimed prediction ‘‘must be carefully phrased on the basis
of objective fact.’’ It seems appropriate that a comparable
standard be applied in the instant situation, since Respondent,
which is the exclusive bargaining agent of the employees in-
volved, is apparently claiming that its alleged illegal threat
was a truthful prediction as to the probable consequences of
the employees’ resignations beyond the Respondent’s control.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(b)(1)(A) of the Act by
threatening to fine employees and to impose internal union
disciplinary action on them, if they resigned from Respond-
ent’s constituent unions and crossed the Respondent’s picket
line to work for the Employer.
4. Respondent violated Section 8(b)(1)(A) of the Act by
threatening employees with the loss of health, welfare, and
pension employment benefits if they resigned from Respond-
ent’s constituent unions.
5. Respondent violated Section 8(b)(1)(A) of the Act by
threatening to require employees to rejoin Respondent’s con-
stituent unions and pay a new initiation fee, if they changed
their union membership from full union membership to ‘‘fi-
nancial core’’ membership status.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in, and is engaging
in, unfair labor practices in violation of Section 8(b)(1)(A)
of the Act, I shall recommend an order requiring Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Bay Cities Metal Trades Council, Oak-
land, California, its officers, shall
1. Cease and desist from
(a) Threatening to fine employees or to impose internal
union disciplinary action against them, if they resign from
Respondent’s constituent unions and cross Respondent’s
picket line to work for the Employer.
987BAY CITIES METAL TRADES COUNCIL
6 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.’’
(b) Threatening employees with the loss of employment
benefits if they resign from Respondent’s constituent unions.
(c) Threatening to require employees to rejoin Respond-
ent’s constituent unions and pay a new initiation fee, if they
change their union membership from full union membership
to ‘‘financial core’’ membership status.
(d) 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 necessary to ef-
fectuate the policies of the Act.
(a) Post at its business office, hiring facility, and meeting
places, copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided by the Regional Di-
rector for Region 20, 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 including all places where notices
to members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Additional copies of the attached notice marked ‘‘Ap-
pendix’’ shall be signed by an authorized representative of
Respondent, and forthwith returned to the Regional Director
for Region 20 for posting by the Employer, it being willing,
at its San Francisco, California facility, where notices to its
employees are customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten to fine you or to impose internal
union disciplinary action against you, if you resign from our
constituent unions and cross our picket line to work for
Southwest Marine, Inc.
WE WILL NOT threaten you with the loss of employment
benefits, if you resign from our constituent unions.
WE WILL NOT threaten to require you to rejoin our con-
stituent unions and pay a new initiation fee, if you change
your union membership from full union membership to ‘‘fi-
nancial core’’ membership status.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
BAY CITIES METAL TRADES COUNCIL