International Association of Machinists and Aerospace Wkrs

National Labor Relations Board - Board Decisions

Jan 22, 1970

180 N.L.R.B. 875 (N.L.R.B. 1970)

INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WKRS.
International Association of Machinists and
Aerospace Workers, AFL-CIO; Local Lodge 598,
International Association of Machinists and
Aerospace Workers, AFL-CIO; H. C. Greene,
President and Member of Local Lodge 598,
International Association of Machinists and
Aerospace Workers, AFL-CIO; and Yancey E.
Burns, Secretary-Treasurer and Member of Local
Lodge 598 , International Association of Machinists
and Aerospace Workers, AFL-CIO (Union
Carbide Corporation ) and Luther W. Schumate.
International Association of Machinists and
Aerospace Workers, AFL-CIO; Local Lodge 598,
International Association of Machinists and
Aerospace Workers, AFL-CIO; H. C. Greene,
President and Member of Local Lodge 598,
International Association of Machinists and
Aerospace Workers, AFL-CIO; and Yancey E.
Burns, Secretary-Treasurer and Member of Local
Lodge 598, International Association of Machinists
and Aerospace Workers, AFL-CIO (Union
Carbide Corporation ) and John W . Godbey,
Dewitt Deel , Charles C. Dawson , and Dalton
Midkiff, and Union Carbide Corporation , Party in
Interest . Cases 9-C B-1510- 1, 9-CB- 1510-2,
9-C B-1510-3, 9-C B-1510-4, 9-C B-1519-1,
9-CB-1519-2, 9-CB-1519-3, and 9-CB-1519-4
January 22, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge duly filed on June 21, 1968,' and a
charge filed on July 17, 1968,' the General Counsel
of the National Labor Relations Board, by the
Regional Director of Region 9, issued an Order
Consolidating Cases, Consolidated Complaint, and
Notice of Hearing on October 10, 1968, against
Respondents.3 The complaint alleged that the
Respondents had engaged in and were engaging in
unfair labor practices within the meaning of Section
8(b)(l)(A) of the National Labor Relations Act, as
amended, by threatening to sue certain employees of
Union Carbide Corporation, and by the institution
of legal action, to collect excessive fines previously
levied against these employees for their failure to
engage in concerted activities, all at a time when
they were not members of Respondent International
Union or Respondent Local Lodge 598. On October
17, 1968, Respondents filed an answer denying the
commission of any unfair labor practices and
affirmatively pleading that the National Labor
Relations Board does not have jurisdiction over the
subject matter on which the complaint is based.
' By Luther W. Shumate , an individual.
'By John W . Godbey, Dewitt Deel, Charles C Dawson, and Dalton
Midkiff, individuals.
'International Association of Machinists and Aerospace Workers,
AFL-CIO, Local Lodge 598, International Association of Machinists and
875
On December 4, 1968, a hearing was held before
Trial Examiner Jerry B. Stone. Thereafter, on
December 9, 1968, the General Counsel filed with
the Board in Washington, D.C., a Motion
Requesting Transfer of Case to Board, stating that
such motion was filed on behalf of, and with the
consent of, all parties to the proceeding. The motion
stated that the parties agree that the facts stipulated
into the record at the hearing, together with the
exhibits admitted by stipulation, should constitute
the entire record; that the parties waive their right
to file briefs with the Trial Examiner and to the
issuance of a Trial Examiner's Decision; and that
the case be submitted directly to the Board for
findings of fact, conclusions of law, and for Decision
and Order.
On December 18, 1968, the Board approved the
General Counsel's motion and ordered the case
transferred to the Board, granting permission and
time for the filing of briefs. Thereafter, the General
Counsel, Charging Parties, and Respondents filed
briefs, and the Charging Parties and the Party in
Interest filed additional briefs, at Board invitation,
on the effects of an intervening Supreme Court
decision.4
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the basis of the facts stipulated at the
hearing, the exhibits, the briefs, and the entire
record in this case, the Board makes the following:
FINDINGS OF FACT
1. JURISDICTION
Union Carbide Corporation, hereinafter also
referred to as Union Carbide, a New York
Corporation, is engaged in the manufacture of
synthetic organic chemicals at its plant in South
Charleston, West Virginia. During the past year, in
the course and conduct of its business, Union
Carbide shipped goods valued in excess of $50,000
from its South Charleston, West Virginia, plant
directly to points located outside the State of West
Virginia.
We find that Union Carbide 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 policies of the
Act to assert jurisdiction herein.
Aerospace Workers, AFL-CIO, H.C Greene , President and Member of
Local Lodge 598, International Association of Machinists and Aerospace
Workers, AFL-CIO, Yancey E Burns, Secretary-Treasurer and Member
of Local Lodge 598, International Association of Machinists and
Aerospace Workers, AFL-CIO.
'Scofield v N.L.R B. 394 U.S. 423
180 NLRB No. 135
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists and
Aerospace Workers, AFL-CIO, and Local Lodge
598, International Association of Machinists and
Aerospace Workers , AFL-CIO, are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
Respondent International was certified in March
1965, as exclusive bargaining representative of
Union Carbide's production and maintenance
employees at its South Charleston, West Virginia,
plant. The initial contract with Union Carbide
expired on July 24, 1967, and, on that day, an
economic strike commenced. A new contract was
executed on October 8, 1967, and the strikers
returned to work on the following day.
During the strike period, five members of the
Union, the Charging Parties herein, tendered written
resignations from Union membership.' Thereafter,
each crossed the picket line and returned to work.6
Following the strike settlement the five Charging
Parties were separately advised that charges had
been brought against them for violation of a
provision of the International Constitution, namely,
crossing a picket line during an authorized strike.
Thereafter, they were found guilty by a Local Union
trial committee, expelled from membership, and
fined. None of the five employees appeared at the
trial or appealed from the decision, each believing
that the Unions no longer had jurisdiction or
authority over him. As to the fines, they were
computed by adding the amount of strike benefits
individually received prior to crossing the picket line
plus estimated earnings received for the period in
which the employee worked behind the picket line.
In the case of Shumate, this amount was doubled
since he had served as a steward and a picket
captain.7
The Charging Parties received notice of the
imposition of the fines on November 28, 1967. On
'The Union' s constitution and by-laws set forth no procedures for
withdrawal . The Union took the position that the attempted withdrawals
were ineffective. Respondent Local notified the Charging Parties that "A
member can only get out of our organization by failure to pay dues for a
3-month period of time . or by removal for improper conduct ..."
'Godbey sent a registered letter of resignation on August 14 and
returned to work on August 28. Deel sent such a letter on September 26
and returned to work that evening . Dawson , Midkiff, and Shumate sent
resignation letters on August 31, August 31, and September 2, respectively
and returned to work on September 4, September 24, and September 10,
respectively Each of these individuals paid dues in and for the month of
July 1967 The Union , without authorization , applied strike stamps for
dues for the months of August and September
'The actual fines levied were as follows
Schumate-Strike benefits ($ 50)+earnings ($595) x 2-$1,290, Deel-
Strike benefits ($ 175)+earnings ($228) - 403, Godbey-Strike benefits
(None)+earnings ($716) - 716, Dawson-Strike benefits ($75)+earnings
($620) - 695, and Midkiff-Srike benefits ($ 100)+earnings ($560) - 660
April 17, 1968, they were informed that the Local
would take legal action if the fines were not paid
within a week. On May 21, 1968, suit was brought
in behalf of Local Lodge 598 by its President and
Secretary-Treasurer in the Common Pleas Court,
Kanawha County, to collect the fines. That suit,
apparently, is still pending at the present time. The
instant charges of June 21 and July 17, 1968, were
filed more than 6 months after the imposition of the
fines.
B. Contentions of the Parties
General Counsel, the Charging Parties, and the
Party In Interest, contend that the Charging Parties
had effectively terminated their membership in the
Union prior to engaging in the conduct for which
they were fined. It is urged that a union attempt to
fine nonmembers for infractions of internal union
rules is a violation of Section 8(b)(l)(A). It is
further urged that the fines levied were in an
excessive amount, and that this factor provides an
additional independent ground for the finding of an
8(b)(1)(A) violation. General Counsel concedes that
the initial imposition of the fines occurred outside
the 6-month limitation period set forth in Section
10(b) of the Act. He nonetheless contends that
Respondents' actions within the 6-month period
preceding the filing of the charge, in threatening to
sue, and in bringing suit to enforce the fines, show a
continuing violation.8 General Counsel concludes
that "Respondents never abandoned the restraint
and coercion implicit in the initial imposition of the
fines, but on the contrary, have at times prior and
subsequent to the 10(b) date continued to maintain
and press such restraint and coercion...."
Respondents contend that the resignations of the
Charging Parties, during the course of the strike,
were ineffective. Further, it is urged, the fines were
reasonable in amount and appropriately related to
the damages caused by the offense.
Conclusion
We need not , in this case , reach the underlying
issues of law, for we conclude that even were we to
decide those issues in accord with the theories
advanced by the General Counsel , the complaint is
time-barred.
Section 10(b) of the Act reads, in pertinent part:
Provided . . . no complaint shall issue based upon
any unfair labor practice occurring more than
6-months prior to the filing of the charge with the
Board and the service of a copy thereof upon the
person against whom such charge is made ....
In Bryan Manufacturing Co., 362 U.S. 411, the.
Supreme Court distinguished between cases "where
occurrences within the 6-month limitations period in
it is not urged that the threat to bring suit and the actual institution of
court proceedings independently violate the Act
INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WKRS.
and of themselves may constitute as a substantive
matter, unfair labor practices ... [and] ... earlier
events ... [are] ... utilized to shed light on the true
character of matters occurring within the limitations
period"; from cases in which "conduct occurring
within the limitations period can be charged to be
an unfair labor practice only through reliance on an
earlier unfair labor practice." The Court ruled that
in the latter type of case, Section 10(b) precludes the
Board from finding a violation of the Act.
In the instant case , the Charging Parties tendered
resignations from membership , and crossed the
picket line , outside the 10(b) period . Internal union
proceedings were conducted, and the allegedly
unlawful fines were imposed, outside the 10(b)
period. Indeed, all of the operative facts necessary
to make out the claimed violation occurred more
than 6 months prior to the filing of the charges. All
that occurred within the limitations period were the
threat to sue, and the institution of legal proceedings
tq collect the fines, and, as General Counsel
concedes, there is nothing unlawful in these acts in
and of themselves. Thus, the claimed cause of action
rests on pre-10(b) period conduct and it would be
necessary to find that that conduct violated the Act
in order to hold that Respondents ' post-10(b)
877
activities were unlawful. For the suit to enforce the
fines can constitute a claimable violation of the Act
only if a finding is made that the fines were illegally
imposed.9 In making such a finding the Board would
be doing precisely what the Supreme Court
condemned in Bryan, namely, finding a "violation
which is inescapably grounded on events predating
the limitations period ...." In these circumstances,
we must dismiss the complaint.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
'The Boeing Company , 173 NLRB No 71, relied on by the General
Counsel , is distinguishab le There, outside the 10 (b) period, the union made
an unlawful demand on the employer that an employee be discharged, and
the employer refused to accede to the demand Within the 10(b) period, the
union sought to compel arbitration of its grievance over Boeing's refusal to
effectuate the requested discharge The Board found that this latter effort
showed that the union was maintaining and pressing its unlawful demand
within the 10 (b) period Thus, in Boeing , the finding that the union's
attempt, within the 10(b) period, to secure an unlawful discharge was a
violation, did not rest on a pre-l0 ( b) violation. Rather, the Board looked
to the pre- l0(b) conduct only for the light it shed on the nature of the
union ' s post 10(b) efforts to compel arbitration With the benefit of that
background evidence, it was clear that the union ' s effort to compel
arbitration was itself a reassertion of the unlawful discharge demand