Machinists Lodge 91 (United Technologies)

National Labor Relations Board - Board Decisions

Apr 30, 1990

298 N.L.R.B. 325 (N.L.R.B. 1990)

MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 325
Aeronautical Industrial District Lodge No. 91 Inter-
national Association of Machinists and Aero-
space Workers (Pratt and Whitney, Division of
United Technologies Corporation ) and Wayne
A. Gilbert
Local Lodge No. 707, International Association of
Machinists and Aerospace Workers (Pratt and
Whitney, Division of United Technologies Cor-
poration) and Wayne A. Gilbert. Cases 39-CA-
2602, 39-CB-806, 39-CB-679, and 39-CB-787
April 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 31, 1987, Administrative Law
Judge Robert G. Romano issued the attached deci-
sion. The Respondents filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief and cross-exceptions and a supporting
brief. The Charging Party filed a concurrence to
the General Counsel's brief. Thereafter, the Re-
spondents filed an answering brief to the General
Counsel's cross-exceptions.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
i On March 5, 1990, the Respondents filed a motion to reopen record
for receipt of additional evidence The Respondents requested that the
record be reopened for the sole purpose of receiving into evidence the
affidavit of its directing labor representative , Andrew D Romegialli.
Counsel for the General Counsel filed a response in opposition to the
motion and the Charging Party filed a concurrence to the General Coun-
sel's opposition
According to the motion, the basis for submitting the affidavit is that it
constitutes previously unavailable evidence concerning events that have
occurred since the close of the hearing and that demonstrate the mappro-
priateness of the judge's recommended remedy. That remedy, which we
have adopted , includes a requirement that Charging Party Wayne Gilbert
be permitted to run as an incumbent in the next election for the position
of District 91 labor representative, that Gilbert be reinstated to, any open-
mg for such a position that may occur in the interim , and that Gilbert
receive backpay until he is permitted to participate in an election for a
labor representative position.
Romegialli's affidavit avers that the recommended remedy is improper
because Gilbert, since the close of the hearing , has run in several internal
District 91 elections and has failed to receive enough support to be
placed on the ballot in such elections . Thus, according to the motion, the
remedy would unnecessarily intrude on internal union affairs.
We agree with the General Counsel that the proffered evidence is nei-
ther "newly discovered" nor "previously unavailable evidence" because
it did not exist at the time of the hearing . Seder Foods Corp., 286 NLRB
215 (1987). Rather, the proffered evidence involves events allegedly oc-
curring subsequent to the close of hearing and the issuance of the judge's
decision and order. The Respondent has failed to demonstrate that the
circumstances arising after the close of hearing would alter the result in
this case . See National Labor Relations Board Rules and Regulations,
Sec. 102.48(d)(1); Presbyterian Hospital, 285 NLRB 935 fn. 1 (1987). Ac-
cordingly, we deny the Respondents' motion . However, as the Respond-
ents' contentions are related to the remedy imposed here, they may ap-
propriately be raised at the compliance phase of this proceeding Chal-
lenge-Cook Bros., 282 NLRB 21, 26 at fn. 7 ( 1986), enfd 843 F.2d 230
(6th Cir. 1988).
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions as modified for the reasons set forth
below, and to adopt the recommended Order.
In this consolidated case involving Respondents
Local Lodge 707 (Local 707) and District Lodge
No. 91 (District Lodge), the complaint alleged,
inter alia, that Local 707 violated Section
8(b)(1)(A) of the Act on December 7, 1984, by
filing a "Verified Complaint and Application for a
Temporary and Permanent Injunction and Tempo-
rary Restraining Order" in the Superior Court of
the State of Connecticut, Local 707's civil lawsuit
against Charging Party Wayne Gilbert requested a
temporary restraining order and a temporary and
permanent injunction to prevent Gilbert from en-
tering the Respondent Local's hall, from harassing
and intimidating union members at the hall, and
from attending union meetings . The superior court
judge framed the issue before him as whether Gil-
bert's conduct, regardless of his membership status,
violated either the Union's bylaws or constitution
or the "general law." Accepting as true every act
that was claimed to have been committed by Gil-
bert, the superior court judge found that it did not
"even approach the kind of conduct that is de-
scribed in the cases" that had been brought to his
attention. Finding "no basis upon which the Court
should grant the Application for Temporary In-
junction," the superior court denied the injunction
request and dismissed the entire suit.
Judge Romano here concluded that Respondent
Local 707's civil lawsuit against Gilbert violated
Section 8(b)(1)(A) of the Act. In so concluding,
however, he reasoned that where a civil lawsuit
has been fully adjudicated and the plaintiff has not
prevailed, the Board will nonetheless go beyond
the state court's determination and consider, as a
"threshold question," a respondent 's reasonable
basis for filing the unsuccessful lawsuit. Thus, ac-
2 The Respondents , citing Wright Line, 251 NLRB 1083 (1980), con-
tend that District 91 would not have recalled Charging Party Gilbert to
his position as district labor representative, and that District 91 and Local
707 would not have permitted him to be nominated for election to that
position, even if he had not engaged in protected conduct. They argue
that the judge therefore should not have found their actions unlawful
We find no merit in those assertions . Although there was some personal
animosity between Gilbert and Directing Labor Representative Tracy
that antedated Gilbert's protected activities, we cannot find, in the face of
the Respondents' manifest antagonism toward Gilbert resulting from
those activities , that he would not have been recalled to his district labor
representative position in any event solely because of Tracy's personal
dislike of hum. The Respondents ' contention that Gilbert would, in any
case, have been denied nomination for the position of district labor repre-
sentative in 1986 because he was not working at the trade is equally un-
persuasive. According to the testimony of International Representative
Almeida, if Gilbert had been recalled to that position in 1985 (i.e., if Dis-
trict 91 had not unlawfully refused to recall him ), he would have been
eligible to run as an incumbent.
298 NLRB No. 47
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cording to the judge, a determination should be
made as to whether there was a reasonable basis
for the lawsuit prior to making any determination
on whether the filing of the lawsuit was retaliatory.
In making this inquiry here, the judge analyzed the
reasonableness of the lawsuit on the basis of wheth-
er there were genuine issues of law and fact to be
resolved. He concluded that there were genuine
issues of law and fact based on the superior court
judge's gratuitous comments made at the conclu-
sion of the hearing. At that time, the superior court
judge expressed his appreciation to both counsels
for having presented legal claims and authorities,
and for having focused on the problems and the
issues in a professional manner . Judge Romano in-
ferred that the superior court judge would not
have made this comment if the plaintiffs case had
been a sham or frivolous or rested on baseless and
intentionally false or contrived fact, or was plainly
foreclosed as a matter of law. Accordingly, he
found that Local 707 did present a reasonable basis
in fact and law for the lawsuit it filed,, despite the
lack of success of the lawsuit. Nevertheless, finding
that Local 707's "real motive" was to retaliate
against Gilbert for his protected activities, the
judge found that Local .707's lawsuit violated the
Act.
Although we agree with the judge' s ultimate
conclusion that Local 707's civil lawsuit violated
Section 8(b)(1)(A) of the Act, in our view, the
judge's approach misperceived the Supreme
Court's holding in Bill Johnson's Restaurants v.
NLRB, 461 U.S. 731 (1983). There, the Court held
that the establishment of a retaliatory motive and a
lack of reasonable basis in fact or law are both es-
sential prerequisites in order to enjoin the prosecu-
tion of a state court lawsuit. Thus, if the suit has a
reasonable basis , the Board must stay its unfair
labor practice proceeding until the state court suit
has concluded. The Court also stated that should
the plaintiff prevail and the state court find merit in
the suit, he must also prevail before the Board be-
cause the filing of a meritorious lawsuit is not an
unfair labor practice. If however, the plaintiff has
not prevailed, its civil suit will be deemed to be
meritless , and the Board 's inquiry, for purposes of
resolving the unfair labor practice issue, may pro-
ceed to resolving the question of whether a
respondent/plaintiff acted with a retaliatory motive
in filing its suit.3 Phoenix Newspapers, 294 NLRB
47 (1989).
3 In Bill Johnson's, the Supreme Court stated.
If the state proceedings result in a judgment adverse to the plaintiff,
the Board may then consider the matter further and, if it is found
that the lawsuit was filed with retaliatory intent, the Board may find
a violation and order appropriate relief. [461 U S. at 749.]
Here, as previously stated, the plaintiff (Re-
spondent Local 707) did not prevail in its lawsuit.
Thus, the merits of the civil suit have already been
adjudicated against Local 707 and that adjudication
establishes that the suit lacks merit. Accordingly,
our inquiry turns to examining the Respondent's
motive in filing its suit.
The judge considered the question of intent and
found that the many acts of union animus directed
against Gilbert, the overly broad injunction the Re-
spondent sought, as well as the damage request,
evidenced the Respondent's retaliatory motive.4
The judge further found that the Respondent,
Local 707, failed to establish in defense that it
would have filed and pursued its lawsuit, in the
manner it did, even if Gilbert had not engaged in
protected Section 7 activity. We agree with these
findings.5 Accordingly, having found that Local
707's civil lawsuit was meritless and was filed for a
retaliatory motive, we adopt the judge's conclusion
that the lawsuit violated Section 8(b)(1)(A) and
adopt the judge's recommended remedy.6
Chairman Stephens would not agree that, anytime a respondent
charged with filing a retaliatory lawsuit loses on the merits after surviv-
mg summary judgment or judgment on the pleadings, there must be an
automatic finding that the lawsuit had no reasonable basis in law or fact.
He agrees, however, that the lawsuit at issue in this case had no reasona-
ble basis in law or fact.
4 Member Cracraft finds it unnecessary to rely on the damage request
as evidence of retaliatory motive.
I In agreeing with the judge that Local 707 failed to carry its Wright
Line burden in this respect, we observe that Gilbert's disruptive actions
at union meetings, which were Local 707's stated reason for filing its
lawsuit against him, were the proximate result of Local 70Ts actions in
canceling his union membership and then in denying him the opportunity
to be nominated for union office on the ground that he was not a
member in good standing . The cancellation of Gilbert's membership was
unlawful, Machinists District 91 (Pratt & Whitney), 278 NLRB 39 (1986),
enfd . 817 F.2d 235 (2d Cir. 1987), and Gilbert' s response , if intemperate,
was not disproportionate to the Respondents' unlawful actions against
him In these circumstances, it is unavailing for the Respondents to argue
that Local 707 would have sued Gilbert even if he had not engaged in
protected conduct when, but for his participation in protected activities,
there would have been no unlawful retaliation against lum to provoke his
disruptive acts
Member Devaney does not join his colleagues in analyzing the Re-
spondent's defense for filing the lawsuit under Wright Line. As the Board
has adopted the .judge's findings that the Respondent filed the lawsuit,
which the state court found to be unmentonous , with a retaliatory
motive, he concludes that those findings are sufficient to establish that
the Respondent 's filing of the lawsuit violated Sec. 8(b)(1)(A). See Bill
Johnson's Restaurants v. NLRB, 461 U S. 731, 749 (1983).
6 The judge found, inter alia, that both Respondents violated Sec.
8(b)(1)(A) of the Act by refusing to allow Gilbert to be nominated to a
district labor representative position. To remedy this violation, we have
adopted the judge's recommendation that the Respondents , jointly and
severally, shall make Gilbert whole by payment of backpay to him, with
interest, for the period May 1, 1986, "until such tune as Gilbert shall be
allowed to lawfully participate in an election as a candidate for [district
labor representative] position " This approach affords the Respondents
the option of holding a special election for the purpose of terminating
their backpay obligation.
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 327
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Aeronauti-
cal Industrial District Lodge No. 91 International
Association of Machinists and Aerospace Workers,
East Hartford, Connecticut, and Local Lodge No.
707, International Association of Machinists and
Aerospace Workers, North Haven, Connecticut,
their officers , agents, and representatives , shall take
the action set forth in the Order.
Mark W. Engstrom, Esq., for the General Counsel.
Sheldon Engelhard Esq. and Daniel Ladow (Vladeck
Waldman, Elias & Engelhard, P.C.), of New York,
New York, for the Respondents.
Edward Gallant, Esq. (Gallant, Gallant & Culver),
New Haven, Connecticut, for the Charging Party.
DECISION
By most recent answer dated 7 November 1986, Re-
spondent DL 91 and Respondent LL 707 have each
denied commission of any of the unfair labor practices as
alleged in the complaint. Respondent DL 91 has further
answered separately that it has not rehired Gilbert, since
among other things, Gilbert resigned his position as a
district labor representative of DL 91 in or around June
1983; and, that DL 91 has informed Gilbert that in ac-
cordance with its constitution (bylaws), and with the
Constitution of the International Association of Machin-
ists and Aerospace Workers (International), that Gilbert
is ineligible to run as a candidate for the position of dlr.
Respondent LL 707 separately answered that as of May
1984 Gilbert's membership in LL 707 lapsed because of
Gilbert's failure to pay dues; and, that Respondent LL
707 notified Gilbert that Gilbert was ineligible to run as
a candidate for election to the position of dlr, but LL
of 707 denies all allegations of having done so for unlawful
reasons. Respondent unions also contend that a certain
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. I
heard these consolidated cases at Hartford, Connecticut,
on 1-5, 9, and 10 December 19936. Wayne A. Gilbert, an
individual charging party (Gilbert), filed a charge in
Case 39-CB-679 on 18 April 1985 against Local Lodge
No. 707, International Association of Machinists and
Aerospace Workers (LL 707). Complaint in Case 39-
CB-679 issued on 31 May 1985 , alleging that on or about
7 December 1984, LL 707 had filed a "Verified Com-
plaint and Application for a Temporary and Permanent
Injunction and Temporary Restraining Order" against
Gilbert in the Superior Court of the State of Connecti-
cut, Judicial District of New Haven (Verified Complaint,
state court, or state lawsuit) in violation of Section
8(b)(1)(A) of the Act. Gilbert filed a charge in Case 39-
CA-2602 (also) on 18 April 1985 (amended 16 Septem-
ber 1985) against Aeronautical Industrial District Lodge
No. 91, International Association of Machinists and
Aerospace Workers (DL 91). Complaint in Case 39-CA-
2602 issued on 30 September 1985, alleging that since on
or about 11 March 1985, Respondent DL 91 has failed
and refused to recall Gilbert to a position of district
labor representative (dlr), in violation of Section 8(a)(1),
(3), and (4). (Initial) order consolidating cases 39-CB-679
and 39-CA-2602 for hearing issued on 30 September
1985.
Gilbert next filed a charge in Case 39-CB-787 against
LL 707 on 20 February 1986 , and a similar charge in
Case 39-CB-806 against DL 91 on 7 April 1986 . Further
order consolidating cases, consolidated complaint and
notice of hearing (the complaint) issued on 27 May 1986.
The complaint resultingly now additionally alleges that
since on or about February 1986 Respondent DL 91,
and, since on or about 16 February 1986, Respondent LL
707, each respectively, has failed and refused to allow
Gilbert to be nominated as a candidate for election to the
position of dlr, in violation of Section 8(b)(1)(A) of the
Act.
arbitration settlement arrived at between LL 707 and
Gilbert, and Pratt' and Whitney, Division of United
Technologies Corporation (P&W), on 5 February 1986
impacts on certain allegations of the complaint.
The General Counsel has filed brief dated 4 March
1987 (adopted and subscribed to by Charging Party), as
did Respondent Unions of same date , though with, cer-
tain (accepted) errata later filed by unions on 11 March
1987. Upon request of Respondent Unions to file reply
brief, inter alia, to a claimed extraordinary remedy being
sought by the General Counsel in this latest matter, viz,
for a Board ordered rerun of an (interim) internal union
election, pursuant to my Order additional briefs on the
limited issue of the purported novel and/or extraordinary
remedy, within allowed mail service date of on or before
22 May 1987.
Upon the entire record, from my observation of the
demeanor of the witnesses, and after due consideration of
the briefs of the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
Jurisdiction is not in issue. The complaint alleges, and
Respondent by answer (as amended at hearing) admits
that P&W is a Delaware corporation with an office and
place of business in North Haven, Connecticut (North
Haven facility), where P&W is engaged in the manufac-
ture and nonretail sale and distribution of aircraft engines
and related products; that during 12-month period ending
31 March 1986, P&W sold and shipped products, goods
and materials valued in excess of $50 ,000 from its North
Haven facility directly to points located outside the State
of Connecticut; and that P&W is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
The complaint also alleges , and Respondents admit:
that DL 91 is an unincorporated labor organization with
office and place of business in East Hartford , Connecti-
cut (East Hartford office); that DL 91 represents em-
ployees in collective bargaining; that during the same 12-
month period, DL 91 has been part of International, a
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
multistate labor organization which has its headquarters
in Washington, D.C. and which collects annual dues
from its affiliates in excess of $500,000; that DL 91 has
itself remitted per capita taxes in excess of $50,000 from
its East Hartford office to International in Washington,
D.C.; and that DL 91 is also an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. The consolidated complaint also alleges,
and Respondent Unions DL 91 and LL 707 admit that
each, respectively, is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE ISSUES;
AND BACKGROUND
A. The Issues Defined
In addition to the contended novel and/or extraordi-
nary remedy issue raised as earlier noted , all parties
appear to be in general accord in defining the basic sub-
stantive unfair labor practice issues . They are essentially
three . Simply stated they are:
1. Whether Respondent LL 707 violated Section
8(b)(1)(A) of the Act by a filing of the "Verified Com-
plaint" against Wayne A. Gilbert on 7 December 1984,
where the State Court has subsequently denied the appli-
cation on 14 December 1984 . Essentially, the parties
argue different applications of the Supreme Court hold-
ing in Bill Johnson's Restaurants v. NLRB, 461 U.S. 731
(1983), where it has been determined that a plaintiff has
unsuccessfully brought a lawsuit in a state court.
2. Whether Respondent DL 91 has violated Sections
8(a)(1), (3), and (4) of the Act by failing to recall Wayne
A. Gilbert to a position of DL 91 Labor Representative
on and after 11 March 1985.
3. Whether Respondent DL 91 on or about 1 February
1986, and/or Respondent LL 707 on or about 16 Febru-
ary 1986 violated Section 8(b)(1)(A) of the Act by failing
and refusing to allow Wayne A. Gilbert to be nominated
as a candidate for election to the position of DL 91 labor
representative.
Preliminary general observations
This is the third consolidated unfair labor practice pro-
ceeding involving these same parties now to be brought
before the Board in the space of 3-4 years. Facts materi-
al to the resolution of the instant issues, precede and
post-date two prior proceedings. The General Counsel
and Charging Party rely on two prior Board decisions in
which Respondent Unions were found to have restrained
and coerced, inter alia, Wayne A. Gilbert in the exercise
of Section 7 rights in violation of Section 8(b)(1)(A) of
the Act, to establish the Respondent Unions herein have
harbored continued union animus against Gilbert, and as
explanatory background to support the allegations of
continued union misconduct directed toward Gilbert.
Respondent Unions argue for a limitation of the Board's
prior decisions as bearing on the instant alleged unfair
labor practices. Respondents otherwise (essentially) re-
quest there be close analysis of union efforts made (par-
ticularly by International) to follow their institutional
constitution and DL 91 bylaws.
The Board has found that LL 707 violated Section
8(b)(1)(A) in both prior proceedings (as it did Interna-
tional, though International is not a named Respondent
Union in this third consolidated unfair labor practice
proceeding). Though DL 91 was a named Respondent
Union in both prior consolidated proceedings, the Board
has found DL 91 violated the Act only in the second
consolidated unfair labor practice proceeding.
Respondent Unions also contend that a certain arbitra-
tion settlement reached between P&W, Gilbert and LL
707 on 5 February 1986, impacts on the issues material
herein. The settlement eventually reached covered, inter
alia, Gilbert and LL 707 grievance(s) filed against P&W
in July 1982, continuously pressed thereafter by LL 707
(including) by later separate LL 707 (noncompliance)
grievance, filed on 15 September 1983. The General
Counsel and Charging Party on the one hand, and Re-
spondent unions on the other, accuse their opponents, re-
spectively, of having advanced positions in the instant
proceeding inconsistent with certain positions they have
advanced in earlier proceedings.
B. Background Facts,• Uncontested, or Previously
Determined
1. DL 91 and LL 707 structure
A DL is defined in article XXII of International's con-
stitution as a delegate body made up of representatives
duly elected from the LLs within the railroad or air
transport system, industry, or locality in which they are
established. DL 91 (currently) has five such affiliated
locals. Four of the five, including LL 707, represent em-
ployees employed only at P&W's facilities (all) located in
the State of Connecticut. Thus LL 707 represents em-
ployees at P&W's North Haven facility; LL 700 repre-
sents employees at P&W's Middletown facility; LL 1746
represents employees at P&W's East Hartford facility;
and LL 1746 A represents employees at P&W's South-
ington facility. The fifth affiliated LL 743 represents em-
ployees of a different Employer, Hamilton Standard.
(Hamilton Standard however, is a company also affili-
ated with UTC, parent of P&W.) Since 1972 Respondent
LL 707 has been the exclusive collective-bargaining rep-
resentative of a production and maintenance unit at
P&W's North Haven facility. LL 707 maintains its office,
and a union hall at North Haven. In material times, DL
91 maintained its offices at LL 1746's East Hartford fa-
cility.
2. Gilbert's P&W employment, related union
service; and LL 707 officers
P&W first employed Gilbert as a machine operator at
its North Haven facility in 1973. Gilbert, in the ensuing
years, became a very active member of LL 707 , serving
in a variety of local lodge offices. Over the next 9-10
years, Gilbert served LL 707 as shop steward , senior
shop steward, shop committeeman , safety representative,
chief safety representative , vice president and president.
Elected in October 1978, Gilbert served as president of
LL 707 from January 1979 to 31 July 1982 , at which
time he resigned to take a DL 91 dlr job to which he
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 329
was recently elected. Mary-Alice Moran served with
Gilbert as LL 707's recording secretary from 1979
through 1982, but thereafter declined to run again. How-
ever, her mother, Alta (Jean) Moran, served as financial
secretary of LL 707 from January 1982 until suspended
from that office on 13 January 1984, thus serving for a
time under Gilbert, but for the most part during a differ-
ent administration under Gilbert's successor, Gary
Nilson. Nilson (apparently) initially appointed Walter
Nixon as vice president. At time of Alta Moran's suspen-
sion , Dean White became acting financial secretary of
LL 707. Nilson remained as president of LL 707 (at
least) through August 1984.
Walter Nixon is currently the president of LL 707
with present term commencing in January 1986. Nixon
previously served an interim period as President in 1984,
namely from 16 September through December 1984,
after serving as acting president since 4 September 1984.
(Nixon did not run for the presidency in 1985.) Other of-
ficers of LL 707 were then Ronald Obier, vice president,
Dean White, financial secretary, and Henry Jackson, re-
cording secretary.
On 1 July 1982 (thus while Gilbert was still president
of LL 707), P&W discharged Gilbert. Gilbert and LL
707 promptly grieved Gilbert's discharge. LL 707 has
since processed grievance(s) on Gilbert's discharge with
P&W through (initial) arbitration, and beyond.
3. Gilbert's DL 91 employment; and DL 91
elections
Normally dlr elections are held in April of an election
year. A dir is a full-time salaried employee of the DL.
Dlrs are elected by receipt of the highest cumulative
vote of all the members (of affiliated local lodges) who
are eligible to vote, and vote. On 14 July 1982, in a rerun
election, discussed further infra, Gilbert, along with two
other individuals (Peter Tinela and Robert Fleeting)
were initially elected as Mrs of DL 91. Six of eight in-
cumbent dlrs were also reelected. They were all to serve
a (common) 4-year term (starting 1 August 1982, and
ending 30 April 1986). It was upon successful election to
DL 91 dlr office that Gilbert resigned as president of LL
707, effective 31 July 1982.
DL 91 thus employed nine dirs. Gilbert, Tinella, and
Fleeting were the least senior dlrs. Dlrs are managed by
a Directing Labor Representative (Directing LR), a posi-
tion separately elected, and occupied from May 1981 till
May 1985 (and thus in most of the material times) by
Charles Tracy. By letter dated 23 July 1982, Directing
LR Tracy notified P&W that DL 91 was requesting a
leave of absence for Gilbert (to be a d1r) for the period 1
August 1982 through 30 April 1986. By letter dated 29
July 1982, P&W advised Tracy that P&W would not
grant the requested leave of absence to Gilbert, because
Gilbert's employment with P&W had been earlier termi-
nated on 1 July 1982.
Upon election to office, a dlr is assigned to service a
facility that is represented by an affiliated local lodge.
Assignments of dlrs are up to, and made by the directing
LR; and they are periodically rotated. The assigned dlr
will assist that local lodge in organizing, steward educa-
tion, leaflet distribution, workmen's compensation mat-
ters, and various other local lodge problems . Gilbert ini-
tially serviced LL 707 (North Haven). Apparently after
only a few months, Gilbert received another assignment
to the clear displeasure of (then) financial secretary Alta
Moran. Moran thereafter had continuing difficulties with
an (essentially) new administration of Local Lodge 707
under (then) President Nilson, and his appointed new
vice president (Nixon). Dlr Andrew D. Romegialli there-
after (and through September 1984 ) serviced Local
Lodge 707's (North Haven) facility . Dlr Jim Parent serv-
iced Local Lodge 707 from on or about 1 October 1984
through May 1986).
As noted , the terms , for which the dlrs were elected
for employment by DL 91, were the same . However Gil-
bert and Fleeting commenced work as a DL 91 dlr earli-
er than Tinella . Tinella did not report for work at DL 91
as a dlr until 22 August 1982 . Tinella made prior ar-
rangements, discussed further infra, whereby Tinella
took P&W paid vacation time through 21 August 1982 in
order to personally vest (10-year) pension as an employ-
ee of P&W, on 21 August 1982 . In contrast, Gilbert re-
ceived his initial paycheck as an employed DL 91 dlr for
workweek ending 21 August 1982 . The paycheck itself
was dated 18 August 1982.
4. P&W and DL 91 layoffs
A P&W layoff, inter alia of (North Haven) employees
took place on 3 June 1983. A DL 91 (conceded) eco-
nomic layoff of three dlrs took place on 30 June 1983.
Gilbert was aware of the DL 91 prospective layoff
months before, and he correctly anticipated he would be
laid off by DL 91. Gilbert did not learn of the P&W
layoff until very late May; and shortly thereafter Gilbert
learned of a (related) third-shift safety representative
opening at P&W's North Haven facility.
DL 91 dlrs were (at least de facto) laid off on the basis
of DL 91 employment, seniority. However, a material
and principal conflict arises between the parties on
whether Gilbert was actually laid off (along with Tinella
and Fleeting) by DL 91, effective 1 July (with last day
worked 30 June, albeit paid through 4 July 1983), as the
General Counsel and Charging Party contend, or,
whether Gilbert had earlier resigned as a dlr of DL 91,
effective on 2 June 1983, as Respondent DL 91 has con-
tended. Respondent Unions 'contend that Gilbert re-
signed from DL 91 dlr position earlier in order to obtain
an appointment from LL 707 as LL 707's third-shift
safety representative (which carried contractual super se-
niority) at P&W's North Haven facility before the sched-
uled P&W layoff was effected at the North Haven facili-
ty on 3 June 1983. The arbitrator completed the hearing
on Gilbert's grieved P&W (1982) discharge some time in
early June 1983.
It appears to be uncontested by the parties that an in-
dividual cannot simultaneously be a paid (actively em-
ployed) DL 91 (dlr) employee and a paid (actively em-
ployed) P&W (safety representative) employee. More-
over, dlrs (apparently by custom, if not by contract) are
not allowed the necessary P&W facility access to func-
tion as a safety representative. Nonetheless, it is the Gen-
eral Counsel's and Charging Party's essential position
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Gilbert had effectively submitted only a conditional
resignation to DL 91; and that the explicit condition
precedent for Gilbert's resignation from DL 91 dlr status
to have actually taken effect, never occurred, as DL 91
(and LL 707) well knew, because P&W refused to accept
LL 707's appointment of Gilbert as third-shift safety rep-
resentative at the North Haven facility, in keeping with
P&W's position (as then being pressed in arbitration) that
Gilbert was a previously (properly) terminated employ-
ee. In support of their positions, the parties have present-
ed certain conflicting evidence of events and circum-
stances bearing on this subordinate issue of actual Gilbert
employment status. The proffered evidence bearing on
this single issue spans a period stretching (essentially)
from May-June 1983 through February 1986.
5. The initial arbitration decision
On 7 September 1983, the arbitrator sustained Gilbert's
grievance on P&W's discharge of Gilbert. The arbitrator
set aside Gilbert's termination, and ordered P&W to rein-
state Gilbert. By letter dated 9 September 1983, P&W
notified Gilbert, that in response to the arbitrator's deci-
sion, Gilbert was being reinstated as an employee on
leave of absence from 1 August 1982 through 30 April
1986. By letter dated 14 September 1983,1 P&W notified
LL 707 that because of the P&W layoffs experienced on
3 June 1983 it was not possible to reinstate Gilbert to
active employment. All parties agree that without a prior
effective designation by LL 707 of Gilbert as its third-
shift safety representative, Gilbert's seniority with P&W
was such that he would have been caught in P&W's
layoff of 3 June 1983.
On 15 September 1983, LL 707 filed an additional
grievance alleging that P&W had failed to (fully) comply
with the arbitrator's decision on Gilbert's grievance. LL
707's stated position in its grievance was that LL 707
had previously appointed Gilbert to third-shift safety
representative position (a superseniority position) prior to
P&W's 3 June 1983 layoff; and that, accordingly, Gilbert
should be reinstated to that position at P&W's North
Haven facility. By letter dated 11 October 1983, Re-
spondent DL 91 (relatedly) requested P&W to discontin-
ue Gilbert's leave of absence. By letter dated 26 October
1983, P&W declined to do so.
On 9 November 1983 LL 707 filed a petition in the
United States District Court for the District of Connecti-
cut seeking to compel P&W to submit the grievance(s)
that LL 707 had filed over P&W's refusal to reinstate
Gilbert (to third-shift safety representative position) to
arbitration, or, alternatively for an order enforcing the
arbitrators' award on Gilbert's (prior) grievance. LL
i The date of 14 September 1983 appears as it is reflected in the (gnev-
ance) Settlement Agreement fact recital, pursuant to subsequent party
agreement, rather than as incorrectly shown in other (stipulation) docu-
ment. Relatedly R. Exh 2 a (copy of the letter) shown offered and re-
ceived for the purpose of curing the questioned date discrepancy does
not appear in Respondent's Exhibit file as submitted, (apparently) fore-
gone in light of the clarification made of record subsequently . In passing
I further observe that R Exh 2(b) also offered and received, does not
appear in Respondent's Exhibit file R Each. 2(b) is the Board's Subregion
39 letter dismissing Employer's charge filed against LL 707 in Case 39-
CB-493 discussed further infra, a fact of which I, and the Board may
take official notice
707's declared position therein was that the arbitrator's
decision (on Gilbert's grievance) required P&W to rein-
state Gilbert to active employment as third-shift LL
707's previously designated safety representative. As will
be observed infra, essentially all of the above had oc-
curred before any union's commission of an unfair labor
practice against Gilbert, as heretofore determined by the
Board, but well after there was some confrontation be-
tween Directing LR Tracy and (then) LL 707 president
Gilbert over the performance of dlr Lou Fyes (then) as-
signed to service LL 707. (Fyles was not reelected in the
1982 election.)
It is this background of bifurcated District and P&W
employment status, with its origin back in June-July 1983
events, which is the basic medium of the General Coun-
sel's present complaint allegation that since on or about
11 March 1985, some 21 months later, on the occasion
when a DL 91 dlr position first again opened up, and
while LL 707 continued to press in U.S. District Court
for Gilbert's reinstatement as third-shift safety represent-
ative, that DL 91 has failed and refused to recall Gilbert,
in violation of Section 8(a)(1), (3), and (4). Much, as pre-
saged, had occurred in the interim.
6. Prior proceedings
a. Prior unfair labor practice charges filed
Instant complaint alleges and Respondent Unions
admit that from on or about 17 January 1984 through on
or about 15 November 1984 Gilbert filed several (com-
plaint-enumerated) unfair labor practice charges against
Respondent LL 707; that Gilbert gave (related) testimo-
ny in the form of affidavits; and that Gilbert testified
against Respondent LL 707 at a (related) unfair labor
proceeding. Actually Gilbert testified against LL 707 in
two successive consolidated unfair labor practice pro-
ceedings heretofore brought before the Board in 1984.
The first such consolidated unfair labor practice proceed-
ing, brought against International, DL 91 and LL 707,
was held before Administrative Law Judge Joel A. Har-
matz on 22-24 August 1984. The second unfair labor
practice proceeding also brought against International,
DL 91 and LL 707 was held before Administrative Law
Judge Harold B. Lawrence on 15 November 1984.
On 7 May 1984 Gilbert obtained employment with the
National Association of Government Employees, Inter-
national Brotherhood of Police Officers (simply NAGE).
The instant complaint also alleges , and Respondent
Unions admit, that from on or about 8 May 1984 through
on or about 19 September 1984 that Gilbert filed
charges, and amended charges, against Respondent DL
91; and that Gilbert also testified against Respondent DL
91 at (both prior) Board unfair labor practice proceed-
ings.
b. Prior Board and court determinations
(1) The first prior consolidated proceeding
The instant case is thus actually the third (consolidat-
ed) unfair labor practice proceeding to involve Gilbert
and DL 91 and LL 707. In the first such proceeding,
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 331
Machinists Local 707 (United Technologies), 276 NLRB
985 (1985), the Board on 30 September 1985 adopted ear-
lier (central) "Finding and Conclusion of Law " as ren-
dered by Judge Harmatz on 17 January 1985 , that by
filing and processing (certain) internal disciplinary
charges against employees (Gilbert, and the Morans) be-
cause they participated in intraunion activity in preparing
and/or distributing views and opinions critical of union
officials , Respondent LL 707. and International had vio-
lated Section 8(b)(1)(A). Significantly however, Judge
Harmatz concluded that it was not established on the
record before him that DL 91 had done so. Id . at 997.
The following supportive findings made by Judge Har-
matz may be observed as pertinent background:
In November 1983 , George Almeida, a represent-
ative of Respondent International , was assigned to
District 91 apparently to aide [sic ] in the correction
of certain administrative problems within that orga-
nization. During the following month internal elec-
tions within Local 707 were scheduled . The only
positions at stake were delegate slots . In early De-
cember, in connection with the election , Gilbert, to-
gether with the Morans, drafted the leaflet which
lies at the cornerstone of this proceeding . That doc-
ument in so many words criticized the administra-
tion of Local Lodge 707 prior to Gilbert's election
to the presidency in 1978 , praised his administration,
and was severely critical of the Local 's incumbent
officials. [Id. at 986]
It is understatement to observe that reference to
forgery, theft and the use of narcotics were highly
provocative, and likely to arouse concern of union
officials. Indeed the sensitivity of Local 707 to these
accusations is underscored by the fact that it is not
beneficiary to a union shop arrangement, but exists
on an open shop basis.?
T Pursuant to a post hearing stipulation, it appears that of the
2313-employees in the unit only 1619 are members of the Local
(Exh. reference omitted). Id at 987
Local 707 held a regular membership meeting on
January 15, 1984. During the course thereof, disci-
plinary charges against Gilbert and the Morans
were read to the membership and served. All were
accused of the following:
... conduct unbecoming of a member under
Article 11 Section 3 of the IAM constitution .. .
by . . . actions of distributing literature that was
vicious and malicious in it's [sic] content. The lit-
erature was worded in such a manner as to de-
stroy the IAM and its affiliated Local Lodge 707.
[Footnote omitted. Id. at 988.]
[I]t is concluded that Respondent Local 707 and
Respondent International violated Section
8(b)(1)(A) when, about December 12, 1983, Grand
Lodge Representative George Almeida attempted
to dissuade them (the Morans) from distributing the
leaflet in question by advising that if they did so,
they would suffer "dire consequences" including
"internal union charges and civil litigation." [Foot-
note omitted. Id. at 992.]
[I]t is further concluded that Respondent Local
Lodge 707 and the International violated Section
8(b)(1)(A) by filing in January 1983 [sic, but clearly
1984, supra] and later processing internal union
charges against Wayne Gilbert and the Morans spe-
cifically (italics) founded upon their involvement in
the preparation and distribution of the election
propaganda . [Footnote and case citation omitted.
Id. at 992.]
Judge Harmatz also found that (certain) second, or
subsequent additional internal union charges brought on
matters on their face unrelated to the distributed leaflets
were shown in their total circumstances , including by
convincing evidence , as pretextual, and such as would
not have been registered had not Gilbert (and the
Morans) engaged in the protected act of publicly criticiz-
ing the leadership of LL 707. Addressing Almeida's con-
cession that distribution of the leaflet was the immediate
cause for a collateral investigation, directed by the Inter-
national, that ultimately produced certain new charges
against Gilbert (and the Morans), which were also heard
before the trial committee on 16 May 1984, Judge Har-
matz concluded of Ahneida 's role:
His desperation to vindicate, through these charges,
the hostility held against the Charging Parties is evi-
dent from the reckless fashion in which they were
pursued. All of the allegations appear to have been
hastily contrived, several were totally lacking in
evidentiary support, and others were offered in a
context showing that the Charging Parties had been
singled out disparately. [Id. at 992.]
Concerning the pretextual nature of the written and un-
written (additional) charges brought, and, of the partial
(biased) performance of the International's appointed
trial committee in the May 1984 hearing itself, Judge
Harmatz concluded:
Substantively, the charges above were either stale,
based upon events approved and condoned by the
membership, totally unsubstantiated, or disparately
invoked. They were the byproduct of the type of
scant investigation frequently found in pretext cases.
The sham is also evident from the performance of
the trial committee, which, shepherded by Almeida,
seemed to reject' any pretense of impartiality. In this
latter regard, the trial committee reflected a clear
propensity to rule at every turn against the accused,
often at the expense of established guidelines, guar-
antees set forth in the IAM constitution, and basic
considerations of fair play. [Id. at 995-996.]
Solely excepted were identical charges that A lmeida
and dlr Romegialli apparently filed at a union meeting
held on 18 March 1984 charging Gilbert (as was Alta
Moran earlier):
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[W]ith violating the Grand Lodge Constitution
Article L, Section 3, by his refusal of a valid direc-
tive by Local Lodge No. 707 President Nilson and
Labor Representative Rovegialli [sic] on February
22, 1984 when he did knowingly and forcibly assist
Sister Alta Moran in the removal of a desk contain-
ing: files, documents and records, property of Local
Lodge No. 707 from the Local Lodge Office.
[Footnote omitted. Id. at 989.]
In that respect, Judge Harmatz observed:
[W]hile the aforesaid unfair labor practices will
only be purged by disbanding the trial committee as
it is presently constituted, evidence offered in sup-
port of one of the charges tended to disclose mis-
conduct on the part of Alta Moran and Wayne Gil-
bert, which if credible, under appropriate circum-
stances, might well warrant internal discipline. Thus
the written charges concerning removal of the desk
containing property belonging to Local 707 reflect
contemptible behavior, having no causal relation-
ship to the distribution of campaign literature in De-
cember 1983.
In addition Wayne Gilbert was present on Febru-
ary 22 and actively assisted Alta Moran in remov-
ing the desk after admittedly hearing Romegialli
state, "The desk can't leave here until it is checked
as to whether or not there is records." Thus the evi-
dence tended to establish Gilbert's complicity, albeit
to the limited extend of cooperating with removal
of the desk in the face of directives by union offi-
cials. On that basis, he too joined an act of defiance
toward what at least arguably was a reasonable
effort on the part of Local 707 to protect its records
or property. Action of this type on the part of a
member would not escape attention of internal dis-
ciplinary machinery, even if there had been no pro-
tected activity. Accordingly, the 8(b)(1)(A) findings
herein are not to be construed as including or based
on the alleged misconduct growing out of the Feb-
ruary 22 'confrontation concerning access to Alta
Moran's desk and the Local's legitimate interest in
protecting its property. [Id. at 996-997.]
The Board adopted Judge Harmatz' recommended re-
medial order that International and LL 707, inter alia,
cease and desist from filing and processing internal disci-
plinary charges against any employee under conditions
constituting a reprisal for participation in activity pro-
tected by Section 7 of the Act; and affirmatively, nullify
any findings, recommendations, or remedies made by the
trial committee, disestablish that body, and disqualify all
its participants from presiding in the future in any inter-
nal disciplinary proceeding involving the Charging Par-
ties . Id. at 997.
Respondent unions (accurately) observe in brief that
the unlawful conduct in the above case consisted of vari-
ous acts beginning in December 1983 and extending
through the intraunion trials held in mid-May 1984. No-
tably, Respondent unions also assert in brief that follow-
ing Board decision in the matter (30 September 1985)
that LL 707 (and International) has (have) taken all nec-
essary action to comply with the (first) remedial order.
The General Counsel has made no contention to the con-
trary.
That compliance, however, was well after LL 707 had
filed its "Verified Complaint" in the State court on 7 De-
cember 1984. Though Judge Harmatz' determination (16
January 1985) recommending complaint dismissal as to
DL 91 occurred prior to DL 91's alleged unlawful fail-
ure to recall Gilbert to a labor representative position
that opened shortly thereafter, on and after 11 March
1985, further charges, inter alia against DL 91, had been
heard before ALJ Lawrence, and they were pending his
decision. In that regard, Judge Harmatz was aware that
LL 707 had stripped Gilbert of membership in August
1984, a few days before his hearing, but observed it was
not challenged by allegation or litigation before him; and
it was thus not an issue reached by him.
(2) The second prior consolidated proceeding
The issues of LL 707's lapse of Gilbert's membership,
and International and DL 91 approval, were challenged
in consolidated complaint of 19 October 1984 heard
before Judge Lawrence on 15 November 1984. (Re-
spondent's related assertion that with both cases heard
and unresolved at time of LL 707's filing of the State
Court action, in December 1984, that LL 707 was walk-
ing on eggshells, has some factual base of support.) On
10 June 1985, Judge Lawrence issued his decision in
which he found that all the Respondent unions had vio-
lated Section 8(b)(1)(A) in that regard, a determination
since adopted by the Board, as found at 278 NLRB 39
(1986). The Second Circuit Court of Appeals has now
enforced in full the Board Order entered therein, NLRB
v. Machinists Local 707, 817 F.2d 235 (1987).
The Board has thus adopted, and the Court now en-
forced, Judge Lawrence's central finding that LL 707,
DL 91, and International have:
individually and collectively, violated Section
8(b)(1)(A) of the Act by cancelling the union mem-
bership of Wayne A. Gilbert and approving said
cancellation, without prior notification to Gilbert, in
the process thereof jeopardizing his employment
and violating their fiduciary duty toward him as a
member of the union and an employee in the bar-
gaining unit represented by them, because they
acted solely by reason of the fact that he engaged in
internal union activities by distributing election
campaign leaflets to members of Local Lodge No.
707 critical of the incumbent administration and be-
cause he filed unfair labor practice charges against
Respondents and testified against them at a hearing
conducted by the National Labor Relations Board.
[278 NLRB at 49.]
In general sequel to Judge Harmatz' addressment of
union conduct from December 1983 through May 1984,
the consolidated complaint heard by Judge Lawrence
has caused addressment of union conduct (essentially)
occurring between April and November 1984. (The state
court lawsuit issues involve related conduct in period
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
August -November 1984.) The basic issue however cen-
tered on a lapse of Gilbert 's membership in LL 707,
made retroactive to May 1984 , but first announced and
enforced by LL 707 on 19 August 1984 , and shortly
thereafter (formally) reported to International (on 22
August 1984). Respondent Unions asserted before Judge
Lawrence that the same was accomplished because of
Gilbert's improper purchase and/or use of unemploy-
ment stamps for the period June through September
1984 . However, Judge Lawrence subsequently deter-
mined that all the unions had acted , in the matter of
lapse of Gilbert's membership, with unlawful motivation.
The issues were becoming more complicated.
Gilbert 's use of unemployment stamps in 1984, as
raised in issue before Judge Lawrence is not to be con-
fused with earlier internal union charges covering assert-
ed December 1982 and June-July 1983 unemployment
stamp incidents which were earlier addressed by Judge
Harmatz and determined by him to have been wholly un-
founded . Thus, in the first consolidated proceeding,
Judge Harmatz determined that International had assert-
ed jurisdiction over, inter alia , a (later) advanced charge
that Gilbert had improperly received unemployment
stamps. As read by Almeida to the trial committee in
Gilbert's (16 May 1984) hearing, charges against Gilbert
included : "3. Acceptance and fraudulent issuance of un-
employment stamps when not eligible for same ." Judge
Harmatz concluded in that respect and with notable ref-
erence to a prior DL 91 June layoff of Gilbert), as fol-
lows:
(2) The half-baked effort to "get" Gilbert was
also marked by the charges based upon his alleged
fraudulent use of "employment stamps." Under
union policy, those unemployed for a major portion
of the weeks in a month are only required to pay
50-cents dues. Dues for such periods will be refund-
ed to those eligible who are on checkoff. To signify
such status on internal records, an `unemployment
stamp' is placed on the dues card of members of
Local Lodge 707. Among the formal charges
against Gilbert was an allegation that he improperly
received an unemployment stamp during the month
of December, 1982. Before the Trial Committee, the
case against Gilbert in this respect was tied together
by evidence that a check had been issued to him
covering a $19.20 refund of dues for December
1982. In fact, the refund check described under oath
before the Trial Committee as having been issued to
Wayne Gilbert had not been issued to him at all but
was in fact payable to another member "Wilbert
Gilbert." This discrepancy is difficult to understand.
Almeida confirmed that Gilbert, prior to the trial, in
April 1984, informed Almeida that he had not re-
ceived an unemployment stamp and. had paid his
dues in December 1982. Apparently, Almeida in his
zeal, not only misidentified the check payable to an-
other member, but neglected to verify whether a
dues refund to Gilbert had been recorded in Local
707's cash disbursement ledger for that month. [Ref-
erences to fns. and exhs. omitted.]
333
(4) With respect to allegations that Gilbert fraud-
ulently received unemployment stamps for the
month of June and July 1983, Local 707's dues
records showed that Wayne Gilbert paid full dues
for the month of June. As for July 1983, uncontra-
dicted testimony by Gilbert indicates that on March
16, 1984, the Trial Committee and Almeida during
investigatory stages were informed that he had been
laid off from his job as District 91 representative
and hence was entitled to reduced dues status at
that time. Despite the earlier revelation, the charges
were maintained even though no evidence was ever
offered to the Trial Committee to refute Gilbert's
stated explanation of that incident. [Fn. and Exh.
references omitted. 276 NLRB at 993.]
Essentially, on 19 August 1984, LL 707 lapsed, and
DL 91 approved the -lapse of Gilbert's membership, (as
did International approve same on 5 October 1984).
These events occurred in context of Gilbert running for
three offices in LL 707, with nominations to be made in
September, and elections scheduled for 17 October 1984.
Judge Lawrence relatedly found:
Under the Bylaws of Local 707 , a person must be
a member in order to hold any office or any posi-
tion in which he represents Local 707; to run for
office , he must be certified as qualified by the fman-
cial secretary . In order to be certified, he must
attend at least 50 percent of the regular Lodge
meetings in the year preceding the date of nomina-
tion . In short , he must be a member in good stand-
ing. [278 NLRB at 48.]
As observed by Judge Lawrence in that regard:
Gilbert . . . has had his status as a member chal-
lenged which precluded him from running for union
office . The gravamen of Gilbert's complaint herein
is that his membership was lapsed because of his
intra union activities and filing of charges with the
Board, and that one result of Respondents ' actions
was to imperil his employment with Pratt & Whit-
ney. [278 NLRB at 40.]
While Gilbert worked for DL 91 as a dlr, Gilbert
maintained his membership in LL 707 by continuing to
pay his full dues through June 1983 , at which time he
was laid off, and thereafter began using unemployment
stamps. In addition to ALJ Harmatz ' finding of a DL 91
layoff of Gilbert (on uncontradicted evidence), and in
contrast with Judge Lawrence 's relation of receipt of a
stipulation before him, inter alia, (also ) referring to prior
DL 91 layoff of Gilbert, DL 91 advances contention
before me that Gilbert 's actual DL 91 employment status
at the time was one of resignation from DL 91 employ-
ment, not layoff, a matter strenuously litigated by the
parties in this proceeding , discussed infra . Insofar as ad-
ditionally pertinent Judge Lawrence found that on 18
March 1984, after an (apparently interim) temporary job
had ended, and before Gilbert had obtained a second
(NAGE) job on 7 May 1984, that Gilbert had purchased
unemployment stamps which continued his membership
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in LL 707 during April and May; and, that on 10 April
1984 (still prior to obtaining the NAGE job), Gilbert had
similarly purchased stamps that covered him for the
months of June and July 1984. On 27 July additional
stamps were purchased that covered Gilbert's dues for
the months of August and September 1984.
Respondent Unions advanced related contentions
before Judge Lawrence (inter alia) that Gilbert's pur-
chase and use of unemployment stamps was improper
after 7 May 1984 when Gilbert had obtained full time
(NAGE) employment. In that very respect, and contrary
to urgings advanced by Respondent Unions in brief to
Judge Lawrence that the other parties were concertedly
seeking to obfuscate the real issue in the case, viz, that:
"Gilbert applied for and received unemployment stamps
under false pretenses," Judge Lawrence contrarily held:
That is not at all the "real issue." The real issue is
whether Respondents acted for the reasons they, al-
leged or because of motivations proscribed by the
Act. The actions taken by Local 707 are claimed by
the Respondents to have been taken in conformity
with the rules and practices of the Local and the
International, a contention which is not borne out
upon examination of the International Constitution
and Bylaws of the Local. In any event, the Re-
spondent failed to present any substantial showing
that their actions were motivated by fraudulent con-
duct on the part of Gilbert. There is very substan-
tial evidence that other motives were operative, all
of them unlawful. [Case cited omitted. 278 NLRB
at 41, 42.]
Judge Lawrence thereafter concluded and found that
Respondent LL 707 was unlawfully motivated in the
lapse of Gilbert's membership, as were International and
DL 91 in their approval of LL 707's lapse action taken
against Gilbert. In addition to (stated) reliance upon the
unions' hostility to Gilbert as theretofore determined by
Judge Harmatz, Judge Lawrence found several other
factors were supportive of the unions' (continued) unlaw-
ful motivation.
The charge centrally brought against Gilbert, as deter-
mined by Judge Lawrence, was one of fraudulent mis-
representation in Gilbert's procurement and use of
stamps for the period May-September 1984. Judge Law-
rence found however, that Gilbert had -earlier sent a
letter, dated 26 April 1984, in which Gilbert requested an
(internal) trial date change to a weekend with (openly)
stated reason for the requested rescheduling being be-
cause of employment requirements of his "new employ-
er" who was not a part of International.' Although this
letter was addressed to a Machinist District 1 official,
Gilbert had sent a copy of it to an International official.
Moreover, although the letter was not addressed to nor
copy sent to LL 707, -this letter was read to the trial
committee (in the May hearing) in the presence of LL
707's acting financial secretary White. Judge Lawrence
specifically found that White later acknowledged that
was how he had first learned of Gilbert's employment.
Judge Lawrence concluded therefrom that Gilbert did
not conceal his new (NAGE) full-time employment; and
further, that Gilbert's new employment had become in
fact known shortly thereafter to all of the persons to
whom such information was supposed to be directed. In
short, a fraudulent misrepresentation on Gilbert's part
was not deemed shown sustained . Nor were the Unions
to be deemed in any sense unaware of the development
that Gilbert had obtained the new employment.
Judge Lawrence relatedly found that in June, 1984,
LL 707's acting financial secretary White and Grand
Lodge (International) representative Almeida had plainly
discussed over the phone "what action was to be taken
with respect to a member who bought unemployment
stamps when he was working full time." Almeida assert-
ed that White had called him; that White told Almeida
that Gilbert had been receiving stamps fraudulently; that
White wanted to know how to treat it; that Almeida
(only) told White that "White should treat Gilbert no
differently than any other member." Almeida also .. .
denied any advanced knowledge that Gilbert's member-
ship was going to be lapsed." Judge Lawrence however
found Almeida in this matter had testified in a manner
which . . . failed to inspire confidence," and that Almei-
da's account contained (enumerated) inconsistencies,
amongst which I only note here that Judge Lawrence
found unconvincing an Almeida assertion that he did not
know before then that Gilbert was getting stamps while
employed full time. (Almeida had acknowledged his own
prior awareness of the "new" employment of Gilbert
and, Almeida had attested to his personal view at the 16
May hearing of Gilbert' s dues card which showed
stamps purchased through July.) Judge Lawrence further
observed that Almeida's testimony did not square with
that of White; was vague in parts; and had discernibly
shifted in its base of charge from a Gilbert misrepresenta-
tion at time of stamp purchase, to a claim that Gilbert
had failed to report his interim employment; but, that
neither assertion squared with, or explained otherwise es-
tablished events and/or actions of White on 27 July
1984.
In later analyzing International responsibility, and
upon addressing offered and uncontested transcript evi-
dence from Judge Harmatz' proceeding , and other evi-
dence otherwise presented before Judge Lawrence,
Judge Lawrence (notably) concluded therefrom that Al-
meida, acting on behalf of the Grand Lodge (Internation-
al) had deliberately acted to silence Gilbert, and that Al-
meida engaged in an outright campaign to oust Gilbert
from the Union with stated reliance on Almeida's pros-
ecutorial acts before the Trial Committee (as found by
Judge Harmatz) and (later) contacts with other union
bodies as evidenced before Judge Lawrence.
In regard to' a confirmed element of Almeida direction
for Gilbert treatment (viz that it be like any other
member) in the accounts of both Almeida and White of
their conversation in June 1984, Judge Lawrence con-
cluded:
[T]he idea that Gilbert should be treated like any
other union member is one that is hardly likely to
have occurred to either White or Almeida. Their
problem with Gilbert lay precisely in the fact that
he was not like any other union member. After a
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 335
lengthy history of union activity, he was now a dis-
sident conducting a strenuous campaign to oust the
incumbent officers. This conversation, supposedly in
June, was taking place after a chaotic period in
which charges and countercharges had been filed,
in the union and in the National Labor Relations
Board, and the union leaders had theatened [sic] to
institute civil suit against Gilbert on account of
statements contained in the leaflets. The noise Gil-
bert was making was being heard far beyond the
confines of Local 707. The very subject of their
telephone conversation was one that distinguished
him from the rest of the membership, for he had
raised a novel issue as to whether a member was en-
titled to buy unemployment stamps if he obtained
full time work in a temporary position in another
industry, pending reinstatement at Pratt & Whitney.
[278 NLRB at 48.]
Judge Lawrence (affirmatively) found that by 27 July
1984, it was generally recognized by LL 707 and Inter-
national officials that an issue existed as to Gilbert's
right, while so employed outside the industry, to pur-
chase unemployment stamps instead of paying the full
monthly dues; and, the matter was then under study at
the International's headquarters. Judge Lawrence more
specifically found in that regard:
On the morning of 27 July, Jean Moran pur-
chased unemployment stamps for Gilbert for the
months of August and September. White personally
handled the transaction. Gilbert came in later in the
morning, and he and White had a conversation in
which they discussed the fact that the International
was examining the question of his entitlement to
them and would advise him directly of their conclu-
sion. Through all of this, White never asked Gilbert
to pay his full dues, either on July 27 or at any
other time. Moreover, there was never any discus-
sion of the recognized procedure applicable to per-
sons employed outside the industry. Nicholas Bus-
ceni, an experienced Grand Lodge auditor, testified
that the proper procedure for Gilbert to have fol-
lowed would have been to take out a "withdrawal
card," which would entitle him, when he again ob-
tained employment in an IAM shop, to restore his
full membership simply by paying $10 plus the
month's dues. Neither White nor any other officer
of the Local suggested that course to Gilbert. In-
stead White, as acting financial secretary, personally
allowed Gilbert to purchase unemployment stamps
for the period of August and September (advance
purchase of such stamps being a common practice
in Local 707 though not sanctioned by Grand
Lodge) and took no action on the basis of Gilbert's
subsequent purchase of stamps to cover himself
though October.
Gilbert had asked Jean Moran to pay for his un-
employment stamps for August and September but,
because she had not been sure she would be able to
get to the union offices, he went there himself at
about 9:30 a.m. on 27 July. Dean White told him
Moran had already paid and had been given a re-
ceipt. Gilbert asked White to stamp his dues card,
which he did. [278 NLRB at 42.]
Judge Lawrence also resolved certain conflict between
Gilbert and White as to their conversation held on 27
July 1984, crediting Gilbert's account over White's be-
cause of a number of inconsistencies and discrepancies
found in White's testimony which need not be repeated
here. However, Gilbert's (thus credited) account of their
discussion (essentially) confirmed that White had told
Gilbert on 27 July 1984 that there might be a problem
with Gilbert's dues payment; and that his dues payment
with unemployment stamps was being investigated by
Washington, meaning the Grand Lodge. Gilbert (imme-
diately) inquired of White whether Gilbert was going to
be treated differently from a thousand or so other em-
ployees laid off by P&W; and (basically) said if so, "it
would be a discriminatory type act." White responded
he was not there to argue; and (also) said this matter's
out of my hands. Gilbert rejoined that he wasn't there
either (to argue); that he was just trying to get the issue
clarified; and Gilbert asked White if he would be notified
of the outcome. White told Gilbert he would be notified
from them, referring to the Grand Lodge. However Gil-
bert thereafter received no advance notification of a
lapse of his membership in LL 707. [278 NLRB at 42.]
Judge Lawrence concluded therefrom that White's 27
July 1984:
... actions indicate that he had not, at that time at
least, come to the conclusion that Gilbert was not
entitled to the stamps and they also took no cogni-
zance of the existence of a form in the Financial Of-
ficers' Reference Manual of the International which
furnishes a form for a Notice of Arrearage. No
written notice was ever sent to Gilbert, nor even to
the Grand Lodge. Nothing about a lapse of Gil-
bert's membership appeared in writing until White
reported it, among other items, in a letter to Eugene
Glover, the General Secretary-Treasurer, dated 22
August. [278 NLRB at 43.]
In the interim Gilbert. found out what was to be LL 707's
position on his membership payments for the first time at
LL 707's meeting of 19 August 1984. As to that meeting
Judge Lawrence found:
At the outset of a general membership meeting of
Local 707 on Sunday evening, 19 August, the ques-
tion of Gilbert's status was raised by Dean White,
who, in his capacity as Acting Financial Secretary,
advised the president that Gilbert had defrauded
Local 707 by purchasing unemployment stamps
while he was fully employed. The Lodge president
ruled that Gilbert was not a member in good stand-
ing and therefore could not remain in the meeting.
Gilbert left the meeting, but returned later and was
permitted to remain. Three days later, on the same
day Gilbert testified in the unfair labor practices
hearing, White sent a letter to Eugene Glover, the
General Secretary-Treasurer, advising him that
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wayne Gilbert "has been lapsed on the Grand
Lodge Report as of May , 1984 . . . for not paying
full dues-when by his own admission , he has been
fully employed since May 7, 1984, outside our
Union 's jurisdiction. [278 NLRB at 41.]
Nilson wag still the president of LL 707 at this time.
Nixon did not begin acting as president until 4 Septem-
ber 1984 , following Nilson's resignation . The referenced
date on which LL 707 formally committed its position in
writing to a lapse of Gilbert's membership in LL 707
(albeit made effective back to May), is clearly earlier, on
22 August 1984, which is also the first day of hearing, of
the first consolidated proceeding heard before Judge
Harmatz , and at which Gilbert appeared and gave testi-
mony against Respondent LL 707 (and Respondents DL
91 and International). As is also apparent however, LL
707 had also announced and enforced its position earlier,
at its general meeting of 19 August 1984 , a meeting at
which LL 707 (now) asserts (before me) Gilbert com-
menced being disruptive of that union 's conduct of its
business affairs, discussed infra . LL 707's further claim is
that Gilbert's continued disruptive conduct at subsequent
meetings and/or at the union hall directly lead to LL
707's effort to enjoin Gilbert in the state court action
brought in December 1984.
Subsequent events in 1984 thus material to issues
before me , insofar as chronicled by Judge Lawrence are
as follows:
The agenda of the next meeting of Local 707,
held on 16 September, included nominations for
several offices in the Local. The elections were
scheduled for 17 October at the next membership
meeting . Gilbert was a candidate for three offices,
including Chief Safety Representative. At the meet-
ing he delivered a letter, addressed to Dean White
as Acting Financial Secretary, asserting that he was
a member in good standing, reciting the history of
his dispute with the incumbent leadership and point-
ing out, inter alia, that normal procedures relative
to nonpayment of dues had not been followed in his
case and that he had received no formal notice of
lapse of his membership. He sent a copy of the
letter to William Winpisinger, president of the
International. Nevertheless, Gilbert was ruled ineli-
gible to run for office. On 19 September, he sent a
telegram to the International president in which he
requested that the Local be directed to retain his
name on the membership rolls and allow him to be
a candidate for office in the Local. In the telegram,
he alluded to the copy of his letter to White which
he had previously forwarded.
On 21 September, Dean White sent Gilbert a
letter returning the sum of $2.50 paid by Gilbert for
unemployment stamps for the months of May
though September, on the ground that he was ineli-
gible because he was employed full time outside the
Local 707 jurisdiction.
On 10 October, Gilbert sent letters to White and
Winpisinger. In the letter to White, he again ten-
dered payments of the unemployment stamp fees,
along with payment, under protest, of the balance
of his regular dues. In his letter to Winpisinger, he
requested that Winpisinger delay the elections in the
Local, scheduled for 17 October, and convene a
special trial committee to try White and other
Local 707 officers for denying him the opportunity
to run for office without proper adjudication of his
membership status. He brought the International
president up to date, informed him of the tender of
dues, lectured him on the interpretation of the
International Constitution, demanded his interces-
sion and threatened that legal action would result if
a favorable response to his requests was not re-
ceived by a given deadline. [278 NLRB at 41.]
However, in the interim, on 5 October 1984, the Inter-
national had approved LL 707's lapse of Gilbert's mem-
bership. In addressing and finding unlawful motivation
on the part of LL 707 and International, Judge Law-
rence early concluded:
Both White and Almeida were defensive with
regard to the basis for the action finally taken by
White, and with good reason. At the time White
lapsed Gilbert's membership, he knew that an arbi-
trator had rendered a decision favorable to Gilbert,
directing his reinstatement, which the Union was
seeking to enforce in court and the effectiveness of
which might depend on his superseniority status. He
knew Gilbert was an interested, active Union
member with no intention of knowingly quitting the
Union (which I believe was the very core of the
problem, so far as the incumbent officers were con-
cerned). White knew also that Gilbert was making
an issue of his right to purchase unemployment
stamps when he had employment outside the
Union's jurisdiction, even if it was full time employ-
ment. White was well aware that the case was one
of first impression which was under study at the
International. White himself had permitted Gilbert
to purchase unemployment stamps. Finally, there
was a serious legal impediment to White's action
and I cannot believe he was unaware of it. There is
no constitutional provision for lapsing a member be-
cause he improperly purchased unemployment
stamps, and under the Bylaws of the Local he could
not be lapsed simply on the basis of being in arrears
in payment of dues without notice of arrears being
served upon him. [278 NLRB at 43.]
In conclusion, I find that too many factors weigh
too heavily against the Respondents' attempts to
portray their action against Gilbert as routine en-
forcement_of the Respondents' Bylaws and Consti-
tution. Besides the serious problems which affect
the credibility of the Respondents' witnesses, the
rigidly formal punitive action taken against Gilbert
must be considered in the light of the hostility
which existed between the incumbent officers of
Local 707 and Gilbert as a result of his participation
in the campaign against them which they regarded
as a campaign of vilification; of the animosity evi-
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
dent in their personal confrontations; of the fact
that the actions taken to lapse Gilbert's membership
were taken without notice to him, tardily, and only
after a long period of knowledgeable acquiescence
in the condemned conduct; of the failure on the
part of the Respondents to ensure that action
against Gilbert was taken in conformity with the
Constitution of the International and the Bylaws of
the Local, especially since any irregularity under
these circumstances raises serious questions of moti-
vation; and of the timing of the action, which in-
vites the reasonable inference that it was taken to
prevent Gilbert from running for office in Local
707. [278 NLRB at 45-46.]
In addition to reliance on the institutional structure ex-
isting between International and LL 707, Judge Law-
rence relied on conduct of Almeida as International's
representative as previously determined by Judge Har-
matz, and otherwise by Judge Lawrence as noted above.
With regard to the International 's responsibility in the
lapse of Gilbert's membership , Judge Lawrence further
observed and concluded:
The Respondents admit the allegation of the con-
solidated complaint hat the International, acting
through Eugene Glover, adopted and approved the
retroactive cancellation of Gilbert's union member-
ship. This was not just a ministerial act. In passing
on it, the International reviewed the whole question
of entitlement to unemployment stamps, knew Gil-
bert's situation was a case of first impression, and,
regardless of whether Gilbert was right or wrong,
could not have acted as it did unless factors other
than the immediate issue were in mind . This ex-
plains Almeida's conduct in October, when, follow-
ing the official approval by the Grand Lodge of the
cancellation of Gilbert's membership on 5 October,
Almeida participated in a campaign to sever the
links between Gilbert and other labor organizations
with which Gilbert was connected. The president
of Local 707, Nixon, sent a letter to Frank Carrano,
the president of the Connecticut State Labor Coun-
cil, AFL-CIO, advising him that Gilbert was no
longer a member of the Local or the International
and that, since he' did not speak for the Local or of
the International, he should be relieved of any
Council offices held by him. Gilbert was also execu-
tive vice president of the Connecticut State AFL-
CIO. Almeida personally visited John Driscoll, its
president, showed him a copy of Nixon's letter to
Carrano, and requested that Gilbert be removed
from office as executive vice president. [278 NLRB
at 48.]
The case against DL 91 however, rested on more lim-
ited factual base, as Judge Lawrence thus found, and
Board majority upon its review adopted:2
2 In this connection 278 NLRB 39 fn 1 in pertinent part provides
"Chairman Dotson would find the evidence-District 91's authority to
control certain activities of Local Lodge 707 and the mere presence of
Distnct 91 's representative at a Local Lodge 707 meeting at which action
337
The case against District 91 rests upon the fact
that its representative , Andrew D. Romegialli, was
present during the meeting of Local Lodge No. 707
on 19 August, when the officers took significant
action prejudicial to Gilbert by depriving him of his
status as a member in good standing . At the end of
the meeting, Gilbert asked White for confirmation
that the dues gttestion was under investigation and
was told by White that he had to go through chan-
nels, whereupon Gilbert wrote out a request to
Henry Jackson, the recording secretary. These
events are of such importance that any ambiguous
action or failure to act in relation to them by the
District or the International , with knowledge of the
facts, could be construed as approval of the actions
of the Local Lodge. Romegialli was present
throughout the meeting as a representative of the
District. It is an uncontroverted and admitted fact
of the case that he was there on business and was
an agent of the District. He observed the goings on
and knew the people involved and the significance
of the events he witnessed. He said nothing and did
nothing about them, either then or later . Conse-
quently, in addition to and aside from the Constitu-
tional authority vested in the District over the af-
fairs of the Local Lodges, I find that District 91 ap-
proved of and participated in the actions of Local
Lodge No. 707 and must bear responsibility along
with the Local. [278 NLRB at 46.]
However, as related to LL 707's designation of Gilbert
as its safety representative , Judge Lawrence also (materi-
ally) concluded and found:
In the circumstances of the present case, the Re-
spondents are chargeable with actual knowledge
that their actions could result in the loss of Gilbert's
employment at Pratt & Whitney by reason of his
loss of superseniority. The parties have stipulated
that Gilbert was terminated by Pratt & Whitney
from his position at the North Haven facility on 1
July 1982; that he was ordered reinstated by an ar-
bitrator on 7 September 1983; that in the interim
Gilbert was designated third-shift safety representa-
tive at that facility by Local 707 on 2 June; that on
3 June 1983, an economic layoff occurred; and that
the layoff "would have resulted in the layoff of Gil-
bert had Gilbert been working in his prior position
at that facility without holding a union position
with superseniority."
In advance of the arbitrator's decision, Pratt &
Whitney took the position that the appointment
would not be recognized, since he was no longer an
employee. The arbitrator having rendered a deci-
sion favorable to Gilbert, his reemployment in spite
of the layoff may depend upon whether he has the
status of safety representative to which he had been
designated or whether he can get himself elected to
was taken against the Charging Party-as insufficient to make the district
liable for the local's conduct."
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
another position which would give him supersemor-
ity.
No amount of sophistry on the part of the Re-
spondents can get around the fact that their attempt
to expel Gilbert could have cost him the supersen-
iority necessary to save his job. A written stipula-
tion of facts which the parties placed in evidence
concludes with the Respondents' promise that if the
pending District Court suit results in Gilbert's rein-
statement, his non-membership in the Union will not
be used as basis for removing him from the safety
representative position. Though the promise is
couched as a statement of fact by the assertion that
the statement constitutes the "position" of Local
707, I read it literally as a promise , not as a stipula-
tion of fact. It does not, therefore, serve to refute
the showing made by the General Counsel that the
deprivation of his membership in Local 707 tended
to deprive Gilbert of his employment. The promise
to behave lawfully in the future does not exonerate
the Respondents from their past violations of the
Act. [278 NLRB at 48-49.]
It is further warranted to observe that Judge Law-
rence did not resolve whether Gilbert was actually right
or wrong on the dues payment issue. Rather Judge Law-
rence saw and determined the issue before him as one of
unlawful motivation, or no, in these terms:
Whether Gilbert was right or wrong in his con-
tention that he was entitled to buy unemployment
stamps is not the issue. The issue is whether the Re-
spondents are to be believed when they point to his
purchase of the stamps while employed in a full
time job as the reason for lapsing his membership.
Moreover, upon finding to the contrary, and in thereaf-
ter addressing remedy, Judge Lawrence related:
The General Counsel demands that the Respond-
ents be ordered to cease and desist from violating
their fiduciary duty by failing to provide what is
termed "full notice" of cancellation of membership,
but such a blanket direction is unwarranted. The
Bylaws of Local 707 require notice only of dues ar-
rearage in the second month. In the present case, I
considered the failure of the Respondents to give
notice of lapsing of his membership to Gilbert to be
of evidential significance is [sic in] ascertaining the
Respondents' true motivation for doing so. It was
not, however, a violation of the Bylaws and did not
constitute a violation of the Act.
The General Counsel also demands Gilbert's reinstate-
ment to membership retroactive to 1 May 1984 without
payment of full dues for the period of his expulsion. I
have noted, however, that the correctness of Gilbert's
position respecting dues is not an issue in this proceed-
ing. It was not litigated herein. I could not have pre-
sumed to make the determination for the parties. In any
event, lawfully constituted authority in the Respondents'
organization has made a determination of the issue. Their
actions against Gilbert were predicated on the holding
that he should have been paying full dues since 1 May.
The determination of dues obligations is within the prov-
ince of the Union itself and there are no circumstances
present in this case which make its exercise of that au-
thority illegal. I cannot overrule its determination. Re-
spondents' problems in the present case arose from their
election to expel Gilbert on an ex post facto basis for al-
together illegal motives. Accordingly, Gilbert's reinstate-
ment must be conditioned upon his payment of all dues
arrearages retroactive to 1 May 1984 and Local 707 must
be directed to accept such payment, even if made under
protest by Gilbert in order to protect his position in the
event he chooses to litigate the dues issue further. [278
NLRB at 49.]
Finally, Judge Lawrence, in "the complicated situation
which exists in this case," declined to remedially order
Respondents (there LL 707, DL 91 and International), as
urged by General Counsel, to make whole Wayne Gil-
bert for any loss of pay and other benefits suffered by
Gilbert as the result of the cancellation of his member-
ship in LL 707, as "that is not likely to be a helpful for-
mulation." Rather, Judge Lawrence provided:
I accordingly recommend that the Respondent
Local 707 be directed to recognize Gilbert as the
third-shift safety representative retroactive to the
date of the layoff, 3 June 1983. I shall further rec-
ommend that Gilbert be reinstated to membership
retroactive to 1 May 1984, without prejudice to any
privileges that would have inured to him by reason
of uninterrupted membership status, upon his tender
of all dues owing to Local 707, at the full rate, ret-
roactive to 1 May, and that the Respondents notify
all union agencies whom they had contacted re-
specting his membership status that such member-
ship has been restored, and that the Respondents ex-
punge from their records all references contained
therein to the cancellation of his membership and
notify him that this has been done. [278 NLRB at
50.]
Remedial order provided by Judge' Lawrence in his
decision of 10 June 1985, adopted by the Board on 16
January 1986, and now enforced in whole by the Second
Circuit provides, inter alia, that all Respondent Unions
shall
1. Cease and desist from
(a) Rejecting tender of dues by Wayne A. Gil-
bert, retroactive to 1 May 1984, provided same is
made in accordance with the terms of this Order.
(b) Taking any action to bar Gilbert from mem-
bership in Local Lodge No. 707 on the ground that
he purchased unemployment stamps to cover mem-
bership during the period from and after 1 May
1984.
(c) Barring Gilbert from seeking elective union
office in Local Lodge No. 707 on the ground that
he is not a member in good standing by reason of
purchase of unemployment stamps for the period
from and after 1 May 1984.
(d) Refusing to appoint Wayne A Gilbert to his
former position as a third shift area safety represent-
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
ative at the North Haven facility of Pratt & Whit-
ney or taking any action which would deprive him
of superseniority by reason of his having ' engaged in
intraunion activities.
2. Take the following affirmative action deemed
necessary to effectuate the policies of the Act:
(a) Upon tender by Wayne A. Gilbert of payment
of all dues owing retroactive to 1 May 1984, offer
him immediate and full reinstatement to membership
in Local Lodge No. 707 without prejudice to any
rights, privileges and benefits to which he would
have been entitled as of and since the date of the
lapse of his membership , and reimburse him for any
losses or expenses suffered by him by reason of the
lapsing of his membership.
(d) Appoint Wayne A. Gilbert to his former posi-
tion as a third shift area safety representative at the
North Haven facility of Pratt & Whitney , Division
of United Technologies Corporation.
(e) Permit Wayne A. Gilbert to attend and par-
ticipate in all general membership meetings of Local
Lodge No. 707.
(f) Permit Gilbert to be a candidate for any elec-
tive office in Local Lodge No. 707. [278 NLRB at
50-51.]
III. THE ALLEGED UNFAIR LABOR PRACTICES
EVIDENCE
A. The State Court Proceeding Brought Against
Gilbert in December 1984
1. The filing of 7 December 1984
LL 707 and its (then) president Walter Nixon brought
a "Verified Complaint and Application for a Temporary
and Permanent Injunction and Temporary Restraining
Order" (Verified Complaint), dated 7 December 1984,
against Gilbert in the Superior Court of the State of
Connecticut, Judicial District of New Haven (state
court). Attached to the Verified Complaint were sup-
porting affidavits signed by LL 707's president Nixon, its
vice president Ronald Obier, financial secretary White,
recording secretary Henry Jackson , health and safety
representative Robert Lynes , and DL 91 dlr James
Parent (then servicing LL 707). The Verified Complaint
was certified to the state court on 10 December 1984;
and a hearing on it was held on 14 December 1984
before -Judge Ronald J . Fracasse . Attorney Barbara Col-
lins of the law offices of J. William Gagne, Jr. represent-
ed LL 707 (and Nixon). Attorney Keith B. Gallant rep-
resented Gilbert. The General Counsel was not a party
in the state court proceeding.
2. The Verified Complaint 's averments; related
considerations
a. Preliminary view of contentions
The General Counsel urged at hearing before me that
the Board should consider the state court lawsuit in its
entirety (seemingly only as brought in and resolved by
339
the state court). The Charging Party stressed LL 707's
animus'background in bringing a clearly retaliatory and
now failed lawsuit . In general , both the General Counsel
and the Charging Party contended that LL 707's lawsuit
was brought without any legal foundation , had no basis
in fact; and that it was a sham and frivolous lawsuit, a
mere pretext , with its only real intention to discourage
and/or exclude Gilbert's exercise of Section 7 rights. Re-
spondent LL 707 counterargued at hearing that apart
from retaliation consideration, the lawsuit as brought had
a reasonable basis in both fact and law, which it urges is
efficacious as a defense to unfair labor practice allega-
tion . At hearing Respondent LL 707 also raised a legal
contention, one plead , but not pursued at state court
hearing, viz, LL 707's lack of disciplinary authority over
Gilbert, if Gilbert be considered as a nonmember of LL
707, should LL 707 prevail in its (then unresolved)
appeal to the Second Circuit Court of Appeals. The
General Counsel immediately registered concern that
Respondent LL 707 was in effect seeking to relitigate the
lawsuit cause of action improperly before the Board, in
its apparent attempt to add, a new and/or different
theory of the action here; and the General Counsel
urged at hearing that the Board 's focus should rather be
on what happened at the state court hearing . The Gener-
al Counsel would also limit the Respondent to the facts
it presented to the state court judge. On the other hand
both the General Counsel " and the Charging Party have
themselves contended at hearing that certain factual as-
sertions of Gilbert's misconduct (contained in LL 707's
supporting affidavits , as submitted to the State Court) are
unfounded ; and both attack LL 707's assertions of Gil-
bert misconduct, with contrary testimony proffered at
this hearing . In contrast Respondent offered supporting
and corroborative testimony , on same in instant ' hearing.
Fundamental questions thus appeared to arise as to the
proper scope of evidence submission on facts, and points
of law to be addressed , in resolving the underlying com-
plaint issues in Board hearing , wholly apart from consid-
erations of rejection of any improper collateral attack on
related matters previously determined by the Board in its
prior consolidated proceedings.
b. The averments and supporting affidavits
The "Verified Complaint" averred (contrary to Board
subsequent finding) that defendant Gilbert is not a
member of plaintiff LL 707; but it also averred generally
that for the past several months Gilbert had attended nu-
merous monthly meetings and created disturbances
which had caused serious consequences in the conduct of
LL 707's business.
(1) In regard to the union meeting of 19
August 1984
The Verified Complaint averred more specifically that
at LL 707's regular monthly business meeting held on 19
August 1984 , Gilbert improperly signed the Union (at-
tendance) register as a member, when he was not a
member; and also , that when the chairperson (then
Nilson) asked Gilbert to leave the meeting ; Gilbert re-
fused; that Gilbert thereafter argued with other members,
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
during which arguments , Gilbert used profane language;
and that Gilbert caused the conduct of normal union
business to be disrupted for several minutes.
(2) The union meeting of 19 August 1984
Viewed in -composite , the attached affidavits offered to
the State Court in support would relatedly import the
following : LL 707 had a regular monthly business meet-
ing scheduled for 19 August 1984 . Prior to the start of
the meeting (then) President and Chairman Gary Nilson
inquired whether everyone present was a member-of the
Union (Lynes affidavit). Financial Secretary White said
that Gilbert, a nonmember, had signed in as a member
(Obier , White). Gilbert was told he was no longer a
member in good standing of LL 707, and International
(Jackson); and Nilson asked Gilbert to leave, since he
was not a member (Lynes, White). Gilbert initially re-
fused to leave ; and, Gilbert said in loud argumentative
language, that he had paid unemployment stamps, and he
was a member (White). Gilbert argued loudly with
Nilson about Gilbert 's membership for about 10 minutes
(Lynes). Nilson ruled that Gilbert was not a member in
good standing (Obier). Then a district representative said
that Gilbert knew the channels to go through, and
should use them (Lynes). (To extent Respondent would
rely on Romegialli 's instant hearing contrary assertion
(made without objection) as to presence of a glr at this
union meeting , who handled the question, the same is to
be rejected as an instance of improper collateral attack.
Similar such attacks were repeatedly otherwise ruled im-
proper . The short of it is, DL 91 had full opportunity to
develop its case in that regard, in the prior proceeding
before ALJ Lawrence .)" Gilbert then left the meeting
(White).
Gilbert and two members (the Morans) left the meet-
ing in order to prevent a quorum ; and a count was made
of those present to determine if there was a quorum
(Obier). There was still a quorum so the meeting began;
and Gilbert returned to the entrance of the hall (Lyres).
The three (Gilbert and the Morans) later returned to the
meeting; and no issue was made of Gilbert 's attendance
at that point (Obier). Gilbert returned as a guest , though
he did not sign the book as a guest; and Gilbert was al-
lowed in as a guest in order for us to conduct the busi-
ness meeting (White). (The Verified Complaint relatedly
averred that persons other than members in good stand-
ing can attend a meeting as a guest of a member in good
standing after approval by the rank-and-file upon voice
vote.)
Gilbert became very argumentative and disruptive of
the meeting ; and Gilbert seriously hindered the conduct
of the meeting : (1) by failing to comply with LL 707's
rules regarding the need to be recognized by the chair-
person before speaking ; and (2) by interrupting other
members who had been previously recognized to speak
at the meeting (Jackson). During one discussion Obier
stated an opinion contrary to that of Gilbert . Gilbert in-
terrupted Obier; and Gilbert called Obier an asshole
(Obier) , Nilson ruled Gilbert out of order . Gilbert con-
tinued to make "loud comments" throughout, the meeting
' Instant hearing related testimony is shown in parenthesis.
(Obier). (At hearing Obier confirmed Gilbert's profanity
directed towards Obier and otherwise testified that Gil-
bert was selective in who he interrupted; and that Gil-
bert would comment : "Is he for real; is he kidding; and
is he serious?)"
(3) The union meeting of 16 September 1984
The Verified Complaint next averred that plaintiff LL
707 held a meeting on 16 September 1984 at which Gil-
bert was again in attendance; and that Gilbert caused a
disturbance which occasioned suspension of the normal
business of the meeting.
Similar affidavit composite of this meeting reflects: LL
707 had its next regular monthly business meeting on 16
September 1984. Nixon, who began acting as president
earlier on 4 September 1984, was (formally) sworn in as
president at the 16 September 1984 meeting; and Nixon
thereafter presided over the meeting (Nixon). Gilbert
was present at the meeting; and (at least at some point)
signed the register as a guest (Nixon, White and Jack-
son). Present also at the meeting was a congressman
whom the executive board of LL 707 had approved to
speak to the membership at the meeting (White). The
Congressman spoke to the membership and left. (There is
some confusion in the affidavits as to exactly when the
congressman spoke to the membership, and particularly
with respect to whether it was before or after any Gil-
bert confrontation with officer(s) or member(s) of LL
707 (Jackson, White).) (Record evidence before me indi-
cates the Congressman spoke first and left before the
nominations confrontation.) After the congressman,
spoke, Alta Moran read a letter in Gilbert's behalf
(White); and Gilbert coached other members to bring up
his points (Lynes).
The business part of this meeting included a nomina-
tion of local officers, and an approval of proposed
bylaws (Nixon). In general there were a number of Gil-
bert outbursts during the meeting (Lynes); and, through-
out the whole meeting, Gilbert caused disruption by in-
terrupting, and by making snide remarks and innuendos
while other members were speaking (White).
More specifically, during the nomination portion of
the meeting, and at a Gilbert direction (Nixon), there
was an attempt to nominate Gilbert for the office of vice
president; but President and Chairman Nixon refused to
accept the nomination, stating or explaining that Gilbert
could not be nominated, since he was not a member in
good standing (White, Obier). Nixon affidavit also recit-
ed that one reason that Gilbert was not a member in
good standing was because he was not employed by
Pratt & Whitney. (At instant hearing Nixon acknowl-
edged his affidavit was incorrect in that respect. Nixon
also conceded that an individual dlr did not have to be
employed by P&W to be a member of LL 707; acknowl-
edged that he was aware of the Gilbert arbitration award
of September 1983; and Nixon further conceded that a
thus contested terminated employee would still be con-
sidered eligible for membership in'the Union.)
Gilbert responded to Nixon's refusal to accept the Gil-
bert nomination for vice president in a "belligerent"
manner (White). Gilbert began arguing that he was im-
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 341
properly notified of his status (Obier). Gilbert repeatedly
insisted that Nixon show Gilbert some document that
would indicate that Gilbert was not a member in good
standing ; and Gilbert did so in a loud and obnoxious
manner that was very disruptive of the conduct of the
business of the union meeting (Nixon). (At instant hear-
ing Obier testified that Gilbert did not formally chal-
lenge the Chair ruling in this meeting . Gilbert just stood
and continued to speak though the Chair repeatedly
ruled him out of order.)
During the nomination process Nixon asked Gilbert to
leave, but Gilbert did not, and the matter was not (at
that time) further pursued (White). However, at some
point during this meeting , Nixon informed Gilbert that
because he was not a member , he could not speak unless
the members in attendance voted by a two-thirds majori-
ty to allow him to speak , as required by the Union's con-
stitution. Upon vote taken, the (required ) majority for
Gilbert to speak was not attained . Gilbert was told he
could not speak at the meeting . Gilbert then became loud
and abusive; interrupted other persons who were recog-
nized by the president to speak ; and became so disruptive
and abusive that Nixon asked Gilbert to leave the meet-
ing (Jackson).
Obier related (in affidavit) that he has been vice presi-
dent since September 1984. Whether before or after the
above ruling that Gilbert could not speak, but seemingly
after it, and after Gilbert had left and returned to the
meeting , Gilbert interrupted and harrassed Obier. Obier
was reporting to the membership on certain proposed
amendments to the bylaws of ILL 707. Gilbert began to
repeatedly interrupt Obier, and to direct vulgar , profane
and abusive language at Obier; on one or more occasions
calling Obier an idiot; and Gilbert prevented Obier from
presenting his report for approximately 10-15 minutes
(Nixon, Jackson). Nixon requested Gilbert to leave the
hall; but this time Gilbert refused (Nixon). Nixon pro-
ceeded with the business (at hand), because Nixon be-
lieved the meeting quorum would be lost and not re-
gained if the meeting had to be stopped for a period of
time (Nixon). (At instant hearing Obier testified that
Nixon asked Gilbert to leave three times ; that Gilbert
just stood , with arms folded , and stared down the presi-
dent; and that Gilbert refused to leave.)
(4) The canceled union meetings of 21 October and
18 November 1984
The next regular membership meeting scheduled for
21 October 1984 was in fact not held, due to a lack of
quorum (White).
The Verified Complaint further averred that Gilbert
was at the Union's hall for the 18 November meeting, al-
legedly as the guest of another member, but that meeting
also could not be held because of a lack of a quorum,
and resultingly only an executive committee meeting was
held . The Verified Complaint also avers however, that
(because) of obnoxious language and abusive behavior
which caused a disturbance in the hall, plaintiff President
Nixon asked Gilbert to leave; that Gilbert refused to
leave ; that Gilbert was informed the police would be
called ; that the police were called; and, that the police
report shows that Gilbert was requested not to return to
the hall.
Similar composite of this meeting reflects: LL 707
scheduled its next regular meeting for 18 November 1984
(Parent). Gilbert was present at the hall and had signed
in to attend the meeting, as a member (White). Nixon
canceled the meeting for lack of a quorum (White,
Parent).
After the meeting was canceled, Financial Secretary
White went behind a counter in the Union 's main (secre-
tarial) office; and Gilbert and Alta Moran approached
the counter . Gilbert began to examine the "Employer
Service Records" (ESR), which are kept on file at the
union office (Parent, Nixon). These contain information
regarding classification, job codes and salaries of bargain-
ing unit employees , both members and nonmembers. The
records are confidential in nature ; and ESR information
is available for examination only by union officers, stew-
ards and shop committeemen , not by union members
(Nixon, Parent). (At instant hearing LL 707 witnesses
conceded practice whereby an individual could view the
ESR, but not receive a copy, as Gilbert sought.) When
Gilbert attempted to have a photostatic copy made of
the ESR, Parent prevented it by instructing the person
operating the copying machine not to do so (Parent).
Nixon then asked Gilbert to leave the union hall, but
Gilbert refused to leave (parent); and Gilbert called
Nixon a "f- asshole." Nixon called the police , and re-
quested that the police direct or order Gilbert to leave
the premises; and only then would Gilbert leave the
union offices (Parent). The police instructed Gilbert not
to enter the union office or hall ; to leave the premises;
and not to return, or Gilbert would be subject to arrest
(Nixon). (At hearing union witnesses conceded the police
never took Gilbert into custody.)
Nixon affidavit also recites that president Nixon has
"been informed by numerous members of LL 707 that
they will not attend membership meetings because dis-
ruptions created by Wayne Gilbert prevented the orderly
handling of union business " (Nixon).
(5) The prospective union meeting of 16
December 1984
The Verified Complaint then , declares that the next
meeting of LL 707 is to be on 16 December 1984; and,
that by reason of Gilbert's actions, plaintiff LL 707 has
suffered and will continue to suffer extreme hardship and
actual and impending irreparable harm and damage, in
that members are being deterred from attending meet-
ings ; LL 707 is unable to obtain a quorum at its member-
ship meetings, and is not able to conduct business; and
that plaintiff president Nixon is suffering hardship and ir-
reparable harm in the performance of his job as union
president. (At hearing Obier acknowledged LL 707 had
had difficulties in attaining quorums in the past.)
The Verified Complaint accordingly declared that
plaintiffs LL 707 and President Nixon have no adequate
or speedy remedy at law because defendant Gilbert will
not heed plaintiffs' request that Gilbert not attend meet-
ings; and plaintiffs cannot be compensated by money
damages for the inability to conduct a business meeting.
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wherefore, the plaintiffs sought the temporary restrain-
ing order and injuction, restraining and enjoining, and
the permanent injunction perpetually enjoining and re-
straining Gilbert from: entering LL 707's hall,- harrassing
and intimidating, members, and attending union member-
ship meetings.
An "Application" for the temporary restraining order
and for preliminary and permanent injunction, filed sepa-
rately but contemporaneously with the Verified Com-
plaint, declared that unless restrained by the Court, de-
fendant Gilbert will continue to commit the acts referred
to in the Verified Complaint. It further declared that
such action of Gilbert will result in irreparable injury in
that plaintiff LL 707's effectiveness as a labor organiza-
tion and plaintiff Nixon's ability to do his job will be de-
stroyed, for all of which there is no adequate remedy at
law; and the "Application" asserted that the State
Court's issuance of temporary restraining order and a
preliminary and permanent injunction will not cause
undue inconvenience or loss to Gilbert. Although Re-
spondent in brief asserts no claim was made for damages
of any kind, proffered pleadings received in evidence re-
flect a separate "Statement of Amount in Demand," ex-
clusive of interest and costs was declared at "not less
than $15,000."
At State Court hearing defendant Gilbert (by counsel)
did not agree that Gilbert's conversation had disrupted
the meeting of 19 August 1984, nor that at the meeting
of 16 September 1984, Gilbert had overspoken to disrupt
the meeting, contrarily urging that the chair ruled Gil-
bert out of order but once, and that interruption of the
Chair was otherwise in course of debate. Defendant Gil-
bert by counsel did acknowledge that on 18 November
1984 Gilbert went to the counter and read the ESR, but
with asserted purpose to see whether or not Gilbert's
name was listed as an employee of Pratt and Whitney;
and that the ESR was taken away from him to which he
did not object. Gilbert by counsel did object to (plain-
tiffs) claim Gilbert was escorted out by the police,
though Gilbert acknowledged (previously) being asked
to leave and a refusal. (At hearing Gilbert essentially
confirmed the above, though he asserts he wanted a
copy of the ESR because of pay changes he had ob-
served that he felt affected his position. Such records
were made available to him through his attorneys' re-
quests made of LL 707.)
3. The contentions made at State Court; discussion
In State Court pleading and hearing, plaintiff LL 707
continued a claim that Gilbert was not a member. How-
ever, at State Court hearing union counsel disavowed
belief that Gilbert's membership status was the real issue.
Rather union counsel took the position that LL 707 had
the right to prevent anyone, whether union member or
not, from attending its business meetings, if that person
engaged in disruptive conduct. Thus, Union counsel ex-
plicitly stated,
[T]he real issue in dispute is the conduct of the de-
fendant [Gilbert] at the union member meetings,
whether he be there as a guest or be there as a
member, his conduct was so disruptive that he has
disrupted the conduct of union business. [G.C. Exh.
3, p. 20.]
Union counsel specifically avowed that Union was not
seeking to have the judge determined whether Gilbert
was a member or not, indeed again explicitly declared
Gilbert's membership status is irrelevant to the issue of
whether Gilbert violated codes of conduct to be obeyed
by all at union meetings; and, "so disrupted the member-
ship meetings that business could not be attended to."
(Id. at 21.) The State Court then framed the issue as
whether, apart from membership or guest status, Gil-
bert's "conduct was violative either of the bylaws of the
Union, the constitution of the union, or the general law."
Union counsel argued for the need of State Court injunc-
tive relief from Gilbert's (contended) likely continued
violation of reasonable rules and regulations governing
the conduct of internal union affairs as contained in the
International's constitution, and the bylaws of LL 707,
with an apparent intended reliance (see G.C. Exh. 3, at
26) on NLRB v. Allis Chalmers (388 U.S. 175 (1967)).
In any event, in the above Allis-Chalmers case the Su-
preme Court held that a union does not violate Section
8(b)(1)(A) by fining employees who remain union mem-
bers, for crossing the Union's picket line created to ' im-
plement an authorized strike. The Court reasoned the
Union's fines did not constitute 8(b)(1)(A) restraint and
coercion because Congress did not intend the Board to
intrude on internal union affairs through Section
8(b)(1)(A). However, soon thereafter, the Court would
not uphold a union's enforcement of internal rules and
regulations where exercised in manner so as to intrude
upon important public right existing beyond the internal
affairs of the union, NLRB v. Marine Workers, 391 U.S.
418 (1968); and, in Scofield Y. NLRB, 394 U.S. 423
(1969), the Court expanded thereon, setting forth what
now serves as basic guide for determining whether inter-
nal union rules and regulations are valid in that regard.
The Marine Workers case essentially involved an Inter-
national union's attempt to enforce, by member expul-
sion, its own constitutional provision that imposed on a
member a requirement to first exhaust, "all remedies and
appeals within the union, provided by this Constitution,
before he shall resort to any court or other tribunal out-
side of the Union." While the third Circuit Court of Ap-
peals below had confirmed the Union could not penalize
a member for filing a charge with the Board, that Court
initially discerned the above union rule as a permissive
one in giving the Union only a fair opportunity to inter-
nally correct its own wrong before the injured member
should have recourse to the Board. However, at 391
U.S. 424-425, the Supreme Court, with prior stated
agreement with the Board that "the overriding public in-
terest makes unimpeded access to the Board the only
healthy alternative, except and unless plainly internal af-
fairs of the union are involved"; and with affirmance of
the Board on the difficulties and risk visited upon the
member by such a union rule, a risk, characterized by
the Court inter alia as , "likely to chill the exercise of a
member's right to a Board remedy," the Court subse-
quently stated:
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 343
[T]he proviso in § 8(b)(1)(A) that unions may
design their own rules respecting "the acquisition or
retention of membership" is not so broad as to give
the union power to penalize a member who invokes
the protection of the Act for a' matter that is in the
public domain and beyond the internal affairs of the
Union.
The Scofield case , supra essentially involved a union's
enforcement of an external production incentive ceiling
rate by internal fine and expulsion of members failing to
abide by same. In Scofield, 394 U.S. at 430, upon review
of the above Marine Workers case holding, the Supreme
Court then stated:
Under this dual approach, § 8(b)(1) leaves a union
free to enforce a properly adopted rule which re-
flects a legitimate union interest, impairs no policy
Congress has imbedded in the labor laws, and is
reasonably enforced against union members who are
free to leave the union and escape the rule.
Gilbert's counsel continued claim at the State Court
hearing that Gilbert was a union member, and essentially
contended that Gilbert's conduct (as a member) at the
union meetings was entitled to the full protection of the
federal labor laws, with stated reliance on Rollison v.
Restaurant Workers Local 879, 677 F.2d 741 (9th Cir.
1982); Petramale v. Laborers Local 17, 736 F.2d 13 (2d
Cir. 1984); and counsel urged as the controlling Second
Circuit law (on member right to criticize incumbent lead-
ership of the Union) Salzhandler v. Caputo, 316 F.2d 445
(2d Cir. 1963), cert. denied 375 U.S. 946.
In the lead Salzhandler case, the Second Circuit had
early ruled, in that respect,
We hold that the LMRDA protects the union
member in the exercise of his right to make such
charges without reprisal by the union; that any pro-
visions of the union constitution which make such
criticism, whether libelous or not, subject to union
discipline are unenforceable; and that the Act
allows redress for such unlawful treatment.
In Cole v. Hall, 339 F.2d 881 (2d Cir. 1965), the
Second Circuit amplified:
We think that the Salzhandler rationale-that union
tribunals are not competent to apply technical doc-
trines limiting free speech-is equally applicable to
the trial committee's additional finding that Hall
spoke with malice. We hold that such a finding,
whether or not justified as a matter of fact, does not
allow a union to discipline a member for statements
otherwise protected by § 101(a)(2).
In instant brief the General Counsel argues that the
Rollison and Petramale cases, supra, both rely on the
Salzhandler case principle supra, and stand for the propo-
sition that the free speech provisions of the LMRDA
protect union members' criticism of union officers or
members, even if such criticism is slanderous or libelous;
and the General Counsel in that regard (correctly) also
notes that the Rollison Court has specifically held that
LMRDA protects (such) conduct of union members no
matter how offensive that conduct may be to other union
members. I need not, and do not address the claim as in-
dicated so broadly, viz, as extending beyond LMRDA
interdiction of union restriction upon member , vis-a-vis,
aggrieved official lawsuit pursuit for slander or libel oth-
erwise. See, e.g., Keefe Bros. v. Teamsters Local 592, 562
F.2d 298, 305 (4th Cir. 1977); and compare Stark v. Twin
City Carpenters District Council, 219 F.Supp . 528, 533,
537 fn . 9 (D.C. Minn . 1963).
Otherwise considered , there is statutory and case war-
rant for ready conclusion that the Board 's expressed
view of such latter conduct as protected under the Act is
the same, cf. Steelworkers Local 5163 (Bizzaro), 248
NLRB 943 (1980), where at 944 the Board broadly
stated:
The employee's Section 7 right to seek redress
from the, Department of Labor is as great as their
right to use our processes and the protection from
activity prohibited by Section 8(b)(1)(A) is the
same. (Fn. 9 omitted.)
The General Counsel nonetheless has pertinently
acknowledged that the Second Circuit in the Petra-
male case, supra, also specifically held that,
[N]othing in the LMRDA prohibits a union from
disciplining a member for actual disruption of a
meeting . 736 F.2d at 17.
In the Petramale case, the Second Circuit however, ad-
monished the union relatedly:
Unions which institute disciplinary proceedings
against members have no legitimate interest in
making charges which allege protected conduct as
an essential element and in creating a record in
which valid charges-disruptive conduct-and in-
valid ones-accusations against union officers--are
inextricably intertwined. If . . . [Local and Interna-
tional] . . . intended to discipline Petramale for dis-
ruptive conduct other than the accusatory content
of his remarks, they should have separated both the
charge and the evidence so that subsequent review
by a trier of fact in a judicial tribunal was possible.
Instead, charges of disruption and slanderous accu-
sations were inextricably merged and the accusa-
tions themselves were considered disruptive by the
witnesses who testified b e f o r e t h e ... [Internation-
al] ... Hearing Panel. Both the charges leveled at
Petramale and the record created by the Union thus
included protected speech as an indispensable ele-
ment. It is altogether cynical now to seek to vary
those charges and that record and to ask a trier of
fact to draw distinctions which defendants them-
selves ignored. 736 F.2d at 18.
Gilbert's counsel at state court hearing had relatedly
stated that defendant Gilbert did not dispute that the
(there) specified applicable provisions of International's
constitution and LL 707's bylaws (e.g., those governing
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conduct at meetings) met the required test of being rea-
sonable rules and regulations ; but rather argued that the
(plaintiff) Union had to follow internal (union) proce-
dures in order to discipline a member , first, before
coming to the State Court for such extraordinary injunc-
tive relief. Gilbert 's counsel 's argument as there essential-
ly presented was, "they haven 't even followed their in-
ternal procedures which would permit them to come to
Your Honor to seek some kind of extra union relief."
While it does not appear that Gilbert counsel went so far
as to contend the latter was jurisdictional to the State
Court , and the State Court clearly itself did not so view
it, the State Court did subsequently reveal its view of
that consideration as an important factor to be weighed
on the issue of the appropriateness of the State Court's
discretionary exercise of its own injunctive power. The
State Court thus posed the question to union counsel di-
rectly , "Isn't the answer to that , if there is a disciplinary
procedure that the Union may follow , isn't that an ade-
quate remedy?" (G.C. Exh . 3, p. 40 .) The Judge thereaf-
ter refined statement of the overall case issue before him
as follows:
The principal question here is the manner in
which the Union meeting is to be conducted, the
extent to which the Union may reasonably control
the manner in which the meeting is conducted, and
the remedies available to the Union with either a
disruptive member or a disruptive person at the
meeting . And if the defendant is not a Union
member, there is a-appears to be to the Court, to
be a clear remedy ; the police may be there and told
this person is not a member , he is not entitled to be
here . If the Union wishes to press charges and to
prevent him from entering, it may do so peaceably
in that manner . If the defendant is a Union member,
there is a Union procedure for handling that. And if
in conjunction with that there's a need of calling
the police, that's something that the Union members
will have to decide for themselves.
It doesn't appear, based upon accepting as true
every act that is claimed to have been committed
by the defendant on these three occasions, it doesn't
appear that they even approach the kind of conduct
that is described in the cases that I've been-that
have been brought to my attention. [G.C. Exh. 3,
pps. 43-44.)
In still further probing discourse with counsel , princi-
pally with union counsel, the State Court heard addition-
al arguments and made additional observations covering:
LL 707's acknowledgment of availability of internal
union proceedings for the Union to proceed both in an
orderly way, and consistent with the objectives of Feder-
al statutes to permit freedom of speech to the extent
Congress has imbedded the same in the labor laws; prior
case holdings (generally) indicating the State Court
should not readily embark upon a course of supervising
union meetings; a consideration of permissible , indeed
(perceived) obligatory action by the Union in the first in-
stance, as constituting itself a substantial part of the Fed-
eral statutes ; addressment of union argument (found un-
convincing) that the State Court would effectively penal-
ize the Union for its evaluation of the situation otherwise
(seemingly for having proceeded on a perceived avail-
able alternative and more speedy remedial base); and
with full consideration of union counsel 's revealing and
significant argument advanced in that regard , based on
competing (protected) interests, as where the union, as
representative of all members , feels:
... -what they're dealing with is a situation
whereby allowing -Mr. Gilbert to continue to come
to the meetings he is disrupting and causing the
members not to come to the meeting, they have an
obligation to go for an injunction as long as the sit-
uation is escalated , go and do something here and
now. And the internal procedures are not set up for
that kind of speed. [G.C. Exh. 3, p. 48.)
It was thus only after having fully addressed the issue
and the positions of the parties, and reviewed the legal
authority presented, the State Court held:
I don't really see much point in taking any addi-
tional testimony because in viewing the plaintiff's
(LL 707's and Nixon 's) claims and in light most fa-
vorably to the plaintiff, I find no basis upon which
the Court should grant the application for tempo-
rary injunction. And, therefore, the application of
temporary injunction is denied.
But for the record, I will point out that the Court
is appreciative of the efforts of counsel on both
sides for giving the Court legal authorities and the
legal claims that each side pressed and clearly fo-
cused on the problems and the issues in this case,
and counsel are to be commended for doing a very
professional job. [G.C. Exh. 3, pp. 50-51.]
The Judge thereafter granted judgment for Gilbert
"after full trial," and the entire suit was dismissed. The
General Counsel correctly observes there is no evidence
in the record that LL 707 ever sought to appeal this
judgment.
At hearing Obier testified that Nixon did not attend
the subsequent 16 December meeting . Obier did, and he
chaired the meeting. Gilbert signed in as a guest. A
member questioned it. Obier testified that Mary Alice
Moran challenged Obier before Obier even ruled. None-
theless Obier relinquished the chair; and he and Moran
spoke to the raised issue . Obier told the membership that
he felt Gilbert shouldn't remain because of Gilbert's con-
duct at the other meetings. Recording secretary Henry
Jackson put the question to the membership; and the
chair (Obier) was sustained. Obier then told Gilbert that
it was the membership 's wish that he not remain; and
Gilbert then left. Neither Nixon or Obier ran for LL 707
office in 1985.
4. Contentions of the parties before the Board
The General Counsel contends Respondent LL 707's
filing of the December 1984 lawsuit against Gilbert in
the State Court violated Section 8(b)(1)(A) of the Act.
The argument advanced in support is essentially two-
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
pronged: (1) the Union's nonmeritorious lawsuit had no
reasonable basis in fact or law, and was retaliatory; and
(2) the lawsuit was based on Gilbert's nonmembership in
the Union, which the Board has now found to have been
caused by Respondent LL 707's unlawful expulsion of
Gilbert, and thus the suit was based on an unlawful ob-
jective. In support the General Counsel argued there are
two lines of cases, the one essentially of cases retaliatory
in nature, and the second line of cases involving lawsuits
which have as their basis an unlawful objective. It is the
General Counsel's basic contention that LL 707's lawsuit
against Gilbert violated the Act under either, or both
lines of cases. Respondent contends that LL 707's filing
of this State Court action, albeit unsuccessfully, did not
violate the Act because it had both a reasonable basis (in
fact and law) and a lawful objective. I treat the urged
two lines of cases separately.
a. Retaliatory case arguments
In support of the first line of retaliatory lawsuits the
General Counsel (essentially) relies on Power Systems, 239
NLRB 445 (1978), enf. denied on other grounds 601 F.2d
936 (7th Cir. 1979), which itself had distinguished Board
holding in Clyde Taylor Co., 127 NLRB 103 (1966).
In Clyde Taylor, supra, the Board had specifically af-
firmed a lower finding that, in context made, an implied
threat of an employer to file a libel suit against certain
employees because they filed charges, or unless the
charges were dropped, constituted an unfair labor prac-
tice, in that the threat was of harassing nature, would
normally tend to intimidate an individual contemplating
filing a charge from doing so, or one who has filed a
charge, to withdraw it The threat thus operated to re-
strain employees in the exercise of their right to file
charges under the Act. The Board thus concluded the
threat was coercive, and violative of Section 8(a)(1). As
to the actual bringing of the lawsuit, the Board in Clyde
Taylor observed however:
By this we do not mean to deny the existence of the
normal right of all persons to resort to the civil
courts to obtain an adjudication of their claims. We
interdict here only the making of a threat by an em-
ployer to resort to the civil courts as a tactic calcu-
lated to restrain employees in the rights guaranteed
by the Act.
Indeed, in Clyde Taylor, id. at 109, the Board specifi-
cally dismissed an allegation that the employer had also
violated Section 8(a)(1) by obtaining a State Court in-
junction banning peaceful picketing resorted to by a
union in protest of employer's unlawful discharges of
employees. In doing so the Board overruled its own ear-
lier precedent of W. T Carter & Bro., 90 NLRB 2020
(1950) (on which lower finding of violation was based),
that rested on a rationale that the employer's resort to
State Court, in a preempted area, was part of a bad-faith
scheme to defeat union organization. In the (overruled)
Carter case supra, the Board had much earlier reasoned
that an employer's inter alia, resort to court proceedings
to prevent union meetings in a company-controlled town
was an unfair labor practice, analogizing, "The right of a
345
person to resort to the courts is not absolute, but is limit-
ed, inter alia, by the law of malicious prosecution and
wrongful initiation of civil proceedings." Id. at 2023-
2024.
In the Power Systems case, supra, the Board again
found an employer violated the Act by filing a lawsuit
against an employee. There the employer's lawsuit
sought recovery of legal fees incurred in defending an
unfair labor practice charge filed by an employee, who
had a history of filing charges (and grievances) against
others, and who had recently filed a charge against this
employer. The employer also (initially) sought a perma-
nent injunction to prevent the employee from ever filing
another charge against the employer. Although the em-
ployee's charge filed against the employer was subse-
quently found by the General Counsel to be nonmeritor-
ious , the Board determined that the (single) charge filed
against this employer was not shown by the evidence to
have been filed without some probable cause, or with -pur-
pose to harass the employer. Consequently the Board con-
cluded that the employer had no reasonable basis to
assert that the single charge the employee had filed
against the employer was one filed without probable
cause, or to harass the employer. Relatedly, the Board
concluded that the nature of the employer's lawsuit as
filed, in initially seeking a permanent injunction (al-
though later dropped) was clearly one aimed at penaliz-
ing the employee for filing charges with the Board, and
to prevent him from further assertion of rights under the
Act or any other Federal or State statute. 239 NLRB at
448-449. As there observed by the Board additionally:
Respondent's lawsuit placed its employees on notice
that if an employee files charges with the Board
which are deemed by the General Counsel to be
nonmeritorious that employee is subjecting himself
to the possibility of a devastating lawsuit. In the in-
stant case . . . [the employee] faced the prospect of
having to reimburse Respondent for thousands of
dollars in legal expenses if the state court upheld
the Respondent's claim.
The Board however noted as being of even more sig-
nificance, that even assuming the employee successfully
defended the lawsuit, the employee had to retain private
counsel to defend the lawsuit, and thus suffered a "signif-
icant property loss as a direct consequence of his having
filed a charge with the Board." As otherwise relatedly
summarized by the General Counsel in present brief, the
Board reasoned because the employer had "no reasona-
ble basis" to file the lawsuit, and inasmuch as the nature
of the lawsuit was to penalize the employee for having
utilized the Board's processes against the employer, the
lawsuit violated the Act because the employee has suf-
fered a "significant property loss" by having to defend
against the lawsuit. Notably, the Board in that regard
specifically likened the Power System case's 8(a)(1) and
(4) allegation (involving a lawsuit-defense property loss
incurred by the employee because of filing a charge) to a
Union's fining of a member (because he had failed to ex-
haust internal union remedies prior to filing charges with
the Board) in violation of Section 8(b)(1)(A), Operating
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Engineers Local 138, 148 NLRB 679, 681 (1964). There at
the Board made clear its central concern:
Not only does the Board have the authority to pro-
tect employees who participate in the Board's proc-
esses, but it also has been held that the Board has an
affirmative duty to exercise that authority to its out-
ermost limits to protect such employees.
In Bill Johnson's Restaurants v. NLRB, 461 U.S. 731
(1983), the Supreme Court had occasion to address the
Board's Power Systems rationale resting fundamentally on
a retaliatory lawsuit as a violation of the Act, and to
trace its development. While the Court observed with
approval the Board's prior 8(a)(4) concern with an em-
ployer's retaliatory lawsuit, that important statutory con-
sideration did not prevail in context of a countervailing
fundamental First Amendment right of an individual
(employer) to bring a meritorious state court lawsuit.
The General Counsel acknowledges that the Board's
Power Systems case holding has been modified to some
degree by the Supreme Court's holding in Bill Johnson's
Restaurants case supra . However, the General Counsel
contends that the Court's holding therein does not pre-
clude a Board fording of the unfair labor practice that is
being urged herein.
Unlike the instant case situation where the State Court
lawsuit has run its course , the Bill Johnson's Restaurants
case addressed a Board determination that an employer's
still (at least in part) viable state lawsuit was filed by the
employer in retaliation against employees for having
filed charges with the Board. The Board then concluded
the filing of the lawsuit, in context one unfully deter-
mined by the state court, but determined (by the Board)
to be both retaliatory and without merit, was an act vio-
lative of Section 8(a)(1) and (4) of the Act. The Board
issued a cease and desist order seeking to halt employer's
prosecution of the state court civil suit . In resolving the
issue, the Supreme Court centrally observed, id. at 741,
"[T]he right of access to the courts is an aspect of the
First Amendment right to petition the Government for
redress of grievances." The Court thereafter in summary
held:
The Board may not halt the prosecution of a state
court lawsuit, regardless of the plaintiff's motive,
unless the suit lacks a reasonable basis in fact or
law. Retaliatory motive and lack of reasonable basis
are both essential prerequisites to the issuance of a
cease and desist order against a state suit. The
Board's reasonable-basis inquiry must be structured
in a manner that will preserve the state plaintiff's
right to have a state-court jury or judge resolve
genuine material factual or state-law legal disputes
pertaining to the lawsuit. Therefore, if the Board is
called upon to determine whether a suit is unlawful
prior to the time that the state court renders final
judgment, and if the state plaintiff can show that
such genuine material factual or legal issues exist,
the Board must await the results of the state-court
adjudication with respect to the merits of the state
suit. If the state proceedings result in a judgment ad-
verse to the plaintiff the Board may then consider the
matter further and, if it is found that the lawsuit was
filed with retaliatory intent, the Board may find a vio-
lation and order appropriate relief. In short, then, al-
though it is an unfair labor practice to prosecute an
unmeritorious lawsuit for a retaliatory purpose, the
offense is not enjoinable unless the suit lacks a rea-
sonable basis. [Emphasis added.] 461 U.S. at 749-
750.
Respondent LL 707 agrees that the governing author-
ity in determining whether the filing and prosecution of
an action in a state court constitutes a violation of the
Act is the United States Supreme Court 's decision in Bill
Johnson 's Restaurants, supra . Respondent however ad-
vances a different view of the import and application of
that holding in the instant proceeding. Respondent con-
tends there is still a requirement upon the Board to make
a reasonable basis inquiry vis-a -vis the question of retalia-
tion in an unsuccessful, but nonfrivolous lawsuit. In that
respect , Respondent LL 707 contends its filing of the
State Court action did not violate the Act because LL
707 effectively shows it had both a reasonable basis for,
and a lawful objective in bringing the lawsuit , namely
Gilbert's continuing misconduct at meetings , and at the
Union's hall, and the effects of such Gilbert misconduct
on Local Union officers and other members ; and conse-
quently Respondent 's effort (albeit unsuccessful) to have
the State Court stop Gilbert's disruptive misconduct, was
but with lawful purpose or objective.
Respondent specifically contends that the Court did
not state in Bill Johnson 's Restaurants that the Board may
find an unfair labor practice without making the inquiry
as to whether the suit in question had a reasonable basis;
and Respondent urges the Board to do so, as part of its
(overall) determination of whether the unsuccessfully
brought lawsuit was (not only) retaliatory but brought
without a reasonable basis existing in fact or law, and
thus violative of the Act, here Section 8(b)(1)(A).
In support of that urging made to the Board , Respond-
ent places heavy reliance on the weighty countervailing
concerns as expressed by the Supreme Court, id. at 741,
inter alia, of the right of access to the courts as, "an
aspect of the First Amendment right to petition the Gov-
ernment for redress of grievances"; of prior Board and
the Court's recognition, ibid . that, " [G]oing to a judicial
body for redress of alleged wrongs . . . stands apart
from other forms of action directed at the alleged
wrongdoer"; and finally, that, "The right of access to a
court is too important to be called an unfair labor prac-
tice solely on the ground that what is sought in the court
is to enjoin employees from exercising a protected
right." Based thereon Respondent essentially urges the
Board to continue to give a weighted consideration to
those constitutional concerns on First Amendment access
to the courts in manner that does not serve to effectively
chill their exercise. Respondent appears to have argued
for a balancing test that would favor the evidence of a
reasonable basis (presumably whether of fact or law) for
bringing the unsuccessful lawsuit , in urging in brief, "the
less it appears that a particular suit has a reasonable
basis, the more likely it will be that the suit was brought
for a retaliatory purpose." Respondent thus appears to
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
contend that its successful establishment of existence of a
reasonable basis (in fact and law) for bringing a lawsuit,
even if the lawsuit itself is eventually unsuccessful,
should operate as a complete defense to an initially evi-
denced retaliatory lawsuit.
Respondent thus argues that the Supreme Court in Bill
Johnson's Restaurants has effectively overruled Power
Systems, and returned the law, now with constitutional
underpinnings, to its state under Clyde Taylor. Respond-
ent would have noted, that in Clyde Taylor, 127 NLRB
at 109, the Board, anticipating the Court's admonition
that any interpretation of the NLRA should be sensitive
to First Amendment values, stated that it, "should ac-
commodate its enforcement of the Act to the right of all
persons to litigate their claims in Court, rather than con-
demn the exercise of such right as an unfair labor prac-
tice."
Moreover, it is Respondent LL 707's position that de-
cisions rendered in the wake of Bill Johnson's Restau-
rants, all arrive at the same conclusion, stated (at one
point) to be that in order to constitute an unfair labor
practice the lawsuit brought must both lack a reasonable
basis and (somewhat ambiguously) have an unlawful
object. Respondent however, has otherwise more clearly
contended in brief that, construed in the light of the con-
stitutional concerns involved, the Bill Johnson's Restau-
rant case states that the filing of a state court suit cannot
be deemed an unfair labor practice, unless, so argues Re-
spondent, in the words of Justice Brennan, concurring in
Bill Johnson's Restaurants, the lawsuit was (1) filed with
the intent, "to' frustrate the operation of federal labor
law," and (2) lacked a reasonable basis in law or fact.
461 U.S. at 753.
It would appear however that in regard to Respond-
ent's intended ;'reliance on Justice Brennan's observation
on a litigant's intendment to frustrate operation of Feder-
al labor laws as applicable to an adjudicated nonfrivolous
lawsuit, the same is at best only arguable, for the Justice
appears there to have been addressing the case's main
aspect of the Board's {in effect) premature interdiction of
the prosecution of an unpreempted nonfrivolous action
filed in the State'Court. Thus, Justice Brennan, following
observation of the Court's earlier recognition of the right
under the First Amendment of an individual to seek re-
dress of grievances in state courts, and, of other previ-
ously Court recognized unpreempted right to sue, e.g.,
for libel in state court, stated:
Accordingly, it is appropriate to infer in a case im-
plicating First Amendment rights, as here, that Con-
gress did not intend to authorize the NLRB to
enjoin the prosecution of an unpreempted state-
court lawsuit, even if the plaintiff's subjective intent
is to frustrate the operation of federal labor law,
except where the plaintiff's First Amendment inter-
ests are at their weakest-where the suit is without
a reasonable basis in fact or law.
Nevertheless, Justice Brennan did draw attention to an
important distinction, and in footnote 3 related thereto
has, seemingly,' succinctly framed the issue and consider-
347
ations to be addressed by the Board in the instant case.
Thus Justice Brennan later observed:
However, as the Court makes clear, ante, at 2169,
2173, the Board's ability to enjoin prosecution of a
state suit is not the measure of its ability to deter-
mine that such prosecution constitutes an unfair
labor practice or of its ability to provide other rem-
edies to vindicate federal labor policy. Cf. New
York Times Co, Y. United States, 403 U.S. 713, 733,
91 S. Ct. 2140, 2151, 29 L. Ed. 2d 822 (1971)
(WHITE, J., concurring) ("failure by the Govern-
ment to justify prior restraints does not measure its
constitutional entitlement to a conviction for crimi-
nal publication). As to the necessity and the scope
of these remedies, the Board is entitled to a high
degree of deference.3
3 Reasonable people could differ over the wisdom of deciding
that a nonfrivolous suit which is withdrawn, or to which the plain-
tiff ultimately does not prevail, constitutes an unfair labor practice,
see ante, at 2173, but that is a question of labor policy for the
Board to decide in the first instance.
It would appear that the issue for the Board is not
whether the Board may find that a lawsuit finally adjudi-
cated as without merit is retaliatory and violative of the
Act. The opinion of the Supreme Court would appear al-
ready to indicate that it may, cf. 461 U.S. at 750 f-n. 15,
which in pertinent part provides:
It appears that only the libel count remains pend-
ing before the state court. If petitioner's other
claims have been finally adjudicated to be lacking in
merit, on remand the Board may reinstate its f riding
that petitioner acted unlawfully by prosecuting
these unmeritous claims if the Board adheres to its
previous finding that the suit was filed for a retalia-
tory purpose.
In my view the central issue being presented by the in-
stant case is whether the Board has done so (preceden-
tially) and if not, should do so, and if so, under what cir-
cumstances. In other words what is to be the standard in
Bill Johnson's type cases for the Board's evaluation of
whether a nonfrivolous lawsuit finally adjudicated as
nonmeritorious (or a lawsuit withdrawn for justifiably
sound reason, as in the case of unanticipatable unavail-
ability of key supporting witness, e.g. untimely death) is
nonetheless retaliatory and thus to be held violative of
the Act. Essentially the question is, is there to be any
evaluation of the reasonable basis legitimacy of the un-
derlying issue (of fact or law) brought to the State
Court, beyond the State Court's determination the state
court plaintiff does not prevail. If there is to be any such
inquiry, the parties have joined in subordinate issue the
question of on what base, e.g., on whether the scope of
such inquiry would extend to evaluation of other evi-
dence arguably supportive of the claim (e.g., Gilbert's
earlier defiant conduct in the removal of Moran's desk)
but not presented before the State Court, or, to events
occurring subsequent to the state court hearing, but evi-
dencing in some manner a further (then unavailable) sup-
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
port for plaintiff's prior contentions made at State Court
(e.g., contended continued misconduct on the part of
Gilbert). While the General Counsel seemingly would
limit Respondent to its State Court claims and evidence,
charging party and seemingly the General Counsel
would claim right to litigate sham, frivolous and/or con-
trived nature of facts as advanced in the lawsuit on con-
tention the issue before the Board is a different one than
that before the State Court. Essentially I agree in part,
and disagree in other part.
The General Counsel would appear to relatedly recog-
nize, if not concede, that some further inquiry is to be
made on the retaliatory issue in the case of a failed, but
nonfrivolous lawsuit, in acknowledging (essentially) that
the Court's Bill Johnson's Restaurants holding appears to
invoke no more than that the fact that a state court has
determined that a lawsuit is nonmeritorious (fails on fact
or application of law) is only one factor to be considered
by the Board in its determination of whether the suit
filing is retaliatory and violative of the Act. The General
Counsel has congruously acknowledged that the Court
did not clarify what the other factors to be considered
are.
The General Counsel has relatedly urged that the fac-
tors considered by the Board in its earlier Power Systems
case would appear appropriate to be considered by the
Board as other factors in its determination of whether
the filing and prosecution of a nonfrivolous but unsuc-
cessful lawsuit is retaliatory, and violative of the Act;
and the General Counsel contends that approach is per-
mitted under the Court's Bill Johnson's Restaurants hold-
ing.
As stated by the General Counsel in brief, the factors
considered by the Board in Power Systems were: (1) The
unfair labor charge filed by the employee which ulti-
mately led to the (respondent employer's) lawsuit, was a
reasonable one, even though the charge was found to be
unmeritorious by the Regional Director; (2) there was an
absence of evidence that the unfair labor practice charge
lacked probable cause or was filed for purposes of har-
assing the respondent as alleged in the lawsuit; (3) the
evidence relied on by the respondent in filing the lawsuit
did not support its allegations that the unfair labor prac-
tice charge lacked probable cause or was filed for pur-
poses of harassment; and (4) the true purpose of the law-
suit, to forever enjoin the employee from exercising his
or her right to file charges under the Act, is revealed by
the remedy sought by the respondent, and thus reveals
the unlawful nature of the lawsuit. The fundamental
question is what is to be the scope of deference to the
state court hearing on the issues raised before it.
(1) Discussion of the General Counsel's advanced
standard
Not only is deference to be generally extended to the
state court determination of the issue if found meritorious
as directed in Bill Johnson's, 461 U.S. at 747, but, it is my
view that a deference to the due process hearing should
be extended, including in regard to a determination that
the failed lawsuit was nonfrivolous. Thus, the respondent
when appearing before the Board should be governed by
its (plaintiff's) case as urged and supported before the
state court, absent the usual justifications for having
failed to do so, e.g., be limited both on theory of cause
of action there raised, and facts there presented, with
Board (at best) additionally acceptance of only newly
discovered, or previously unavailable evidence of matters
then made material.
The General Counsel's (and Charging Party's) urged
position would appear (understandably) to place its pri-
mary or basic stress on facts evidencing a presence of a
retaliatory motive in the Respondent's bringing of its
State Court lawsuit. However, to the extent their posi-
tion is to be viewed as one urging the addressment is to
be solely as to the initial retaliatory aspects of the law-
suit, once determined unsuccessfully brought, that posi-
tion would then appear not to have allowed for any real
defense consideration of the "reasonable basis" that the
party may have had for initially bringing reasonable state
lawsuit claims for a resolution by the State Court. The
standard then in substance becomes the only defense for
bringing a retaliatory lawsuit, is to prevail. It does not
appear to allow, e.g., for an analysis of the potentiality of
dual motive cases. Even considered otherwise, such a
standard in application, on its face, would appear to
extend an undesirable "chilling" reach in its application
to cases where the state court's determination in the end
rests (as it frequently will in cases other than, perhaps, a
case arising in instant posture) on the court's determina-
tions of credibility of witnesses' testimonies where in
conflict, and its view of the weight of the thus credited
testimony. It may rest on the State Court's application of
state law, with varying gradations of complexity and
clarity ascribed to the status of the state law on the
point. In general, there appears discernible merit to Re-
spondent's raised concern that the Board's standard
should be broad enough to take into meaningful account
Respondent's right to have its reasonable state claims of
this order resolved by the state, even where the resolu-
tion may go against the plaintiff on determined fact, or
applied law in that state action, discussed further infra.
The Power Systems case itself, in my view, appears to re-
flect just such Board intendment of a balancing of ele-
mental considerations in its decision.
Insofar as now material, in Power Systems, the base of
the employer's civil suit rested in significant part on the
fact that an employee had theretofore filed a charge
against the employer with a Regional Office of the
Board. That office (with interim review of General
Counsel's Office of Appeals) subsequently determined
the charge filed by the employee was without merit, and
it declined to issue a complaint on the matter. Power Sys-
tems subsequently filed a civil suit to recover its expenses
suffered in defending the employee's unfair labor prac-
tice and a related OSHA nonmeritorious charge. (The
employee had much later also filed a charge with OSHA
which was determined to be without merit by that
Agency. It would appear present analysis need not ad-
dress the OSHA charge consideration further.) The em-
ployer's civil suit as initially filed had registered a claim
that the above unfair labor practice charge had been
filed by the employee without probable cause, and with
purpose to harass the employer. As the Union does here,
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
the employer there sought to defend the General Coun-
sel's complaint allegation that the filing of employer's
lawsuit in a state court violated the Act, with an asserted
reasonable belief it held in the merits of its own lawsuit.
(However, unlike here, the state court there had not
fully resolved the employer's state claim.)
In Power Systems, despite Board acknowledgment that
there had been difficulties in the prior unfair labor prac-
tice charge resolution, namely in the investigator's differ-
entiation between the employee's protected and unpro-
tected conduct, the Board concluded the employee had
shown probable cause basis for filing the charge (at least)
sufficient to discount purpose to harass employer, al-
though not sufficient under all the circumstances to oc-
casion issuance of a complaint. In respect to the Board's
conclusion the employee had not filed the charge with
intent to harass employer, the Board observed that it had
been presented almost no evidence to the contrary. With
regard to employer's defense of its own belief in its law-
suit claims that the employee had lacked probable cause,
and had filed the charge to harass the employer, upon
Board review of the Respondent's evidence proffered to
support its lawsuit, the Board held the same negated that
the employer had "reasonable basis upon which to assert"
that the employee's, "single charge with the Board was
filed without probable cause or to harass it." The Power
Systems holding itself, in my view, arguably envisions
Board evaluation of not only the probable cause the em-
ployee had in filing a charge for investigation, but does
so in relationship to evaluation of the probable cause re-
spondent had for bringing its civil suit (as opposed to a
required success in bringing such suit). The case would
appear not wholly dispositive, since, as noted, it appears
in Power Systems, as in Bill Johnson's, the state court had
not ruled on that employer's lawsuit.
However, an application of the advanced Power Sys-
tems reasonable base standard, being essentially factor (3)
above, if to be applied to a lawsuit claim that is based
otherwise, e.g., where, as here, the lawsuit claim is based
on (contended) good-faith belief of misconduct of the
member-employee who has earlier filed the charge, tends
to lend precedential warrant for a Board addressment
and analysis of the reasonableness of the lawsuit claim as
brought, even if, as here, unsuccessfully prosecuted.
Question arises whether Board addressment and eval-
uation of the genuine issues of fact and law, is to be as
advanced and resolved in the other forum, or anew. The
former would appear to sufficiently comport with other
Board precedent in handling of claimed legitimate de-
fenses raised before it, cf. Wright Line, 251 NLRB 1083
(1980),, enfd. on other grounds 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). (In that respect,
genuine issues of fact and law properly resolved in other
forum do not import any conflict with the Act's provi-
sions.) Moreover, the Board has explicitly held that in
dual motive cases (indeed in a case specifically involving
conflicting contentions advanced on an 8(b)(1)(A)-union
constitution violation) a Wright Line analysis is properly
to be applied, cf. Auto Workers Local 2017 (Federal
Mogul), 283 NLRB 799 (1987). It would seem just as
properly applicable where the defense raised is to be a
349
claim of a state court lawsuit brought on reasonable (fact
or law) basis, albeit unsuccessful.
The Respondent appears to me to be (essentially) con-
tending for more than such a standard, viz, that a re-
spondent's successful demonstration that it had a reasona-
ble basis in fact and law to file a lawsuit, even if its pros-
ecution should prove unsuccessful, should be considered
by the Board as a complete defense, because of the im-
portance of the First Amendment exercised right in-
volved. This seemingly regardless of what its true moti-
vation may be otherwise shown to be. However, as re-
viewed above, the Court's holding in Bill Johnson's Res-
taurants, would appear not itself to have mandated that
result. Neither the parties, nor my own research has re-
vealed what position the Board has adopted on remand
in Bill Johnson's on the (seemingly) opened question.
Nonetheless, Respondent has advanced a number of
cases decided in the wake of the Bill Johnson's Restau-
rants case, that it argues are supportive of its contention
that the Board must find a lawsuit lacked a reasonable
basis in fact or law, to find the filing of the lawsuit, even
one unsuccessfully prosecuted, was retaliatory and viola-
tive of the Act. Respondent severally relies on U.S. v.
Hylton, 710 F.2d 1106 (5th Cir. 1983); Longshoremen
LWU Local 32 Y. Pacific Maritime Assn., 773 F.2d 1012
(9th Cir. 1985). Accord: Martinez v. Deaf Smith County
Grain Processors, 583 F.Supp. 1200, 1210 (N.D.Texas
1984); Arch L. Heady Funeral Home, 271 NLRB 819, 828
(1984); and Mister Fox Tire Co., 271 NLRB 960, 961
(1984). Respondent argues therefrom that, "Any lesser
standard of proof would impermissibly infringe upon the
First Amendment's guarantee and protection of a state
court litigant's right to nonfrivolously petition for redress
of grievances."
(2) Discussion of Respondent's advanced standard
The Hylton case is a criminal case, but otherwise one
that arose in essentially the same First Amendment pos-
ture as did Bill Johnson's Restaurants. The case thus arose
in a background of pending criminal trespass informa-
tions brought against IRS agents in a local Texas County
court pursuant to earlier nonfraudulent criminal trespass
complaint filed against the IRS agents by Hylton. The
Fifth Circuit centrally upheld a lower federal district
court's dismissal of a subsequent Federal indictment that
charged Defendant Hylton' with the crime of corruptly
endeavoring to intimidate, and impede the two IRS
agents by the earlier filing of the criminal trespass com-
plaints with local authorities. The Fifth Circuit's affirm-
ance, despite evidenced desire of Hylton to impede the
agents, rested on the court's conclusion that Hylton's
conduct in filing the (established) nonfraudulent criminal
complaints was protected from subsequent criminal sanc-
tion as an exercise of an inalienable constitutional right
to petition governmental authorities for redress of griev-
ances. The court did state therein, with Bill Johnson's
supportive citation ,as follows:
Moreover, the Supreme Court has held expressly
that the first amendment right to petition protects
the individuals [sic] right to file an action with a
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"reasonable basis" in a state tribunal. [710 F.2d at
1111.]
However the fact is clear that the local (criminal trespass
information) proceedings were there still pending. In that
sense , the central holding of the Hylton case would
appear not to advance Respondent's argument much
beyond the basic holding of Bill Johnson's Restaurants.
Apart from observation the case is distinguishable in
that it is a criminal case, what would appear notable oth-
erwise in connection with the circumstance of the pend-
ing local criminal informations in the Hylton case is the
circumstance that there was evidenced a local (prosecu-
tor) determination that there was cause (accurate factual
complaint by Hylton and appearance of applicable law)
for issuance of the criminal information and Fifth Circuit
Court observation in footnote 7 of its opinion that the
fact the IRS agents may yet have a valid defense (en-
gagement in privileged or immunized conduct), a matter
still to be determined in the criminal trespass proceed-
ings, did not operate to vitiate Hylton's exercised consti-
tutional right to petition. Id. at 1111.
The Hylton case would thus appear to stand for the
principle, at least in cases raising issue of attempted sub-
sequent federal criminal sanction bottomed solely on an
individual's prior exercise of constitutional right to peti-
tion on accurate facts constituting apparent cause under
applicable law for initial issuance of state criminal infor-
mation, that neither the possibility of a future unsuccess-
ful prosecution because of affirmative defenses of privi-
lege or community, nor presence of initial desire of com-
plainant to impede or the complainant's present enjoy-
ment of federal agent impedence, is defeative of the pro-
tected exercise of the constitutional right to file the non-
fraudulent complaint. The same court observed however
it might be otherwise if the local filing were frivolous
and [sic] based on contrived allegations. Surely the same
is with Supreme Court supporting view on litigation
based on "intentional falsehoods" or "on knowingly friv-
olous claims," 461 U.S. at 743.
The Longshoremen ILWU Local 32 (Pacific Maritime
Assn.) case, supra, would also appear readily distinguish-
able. There the 9th Circuit did recite the Bill Johnson's
Restaurants case holding in form that a retaliatory law-
suit violated 8(a)(1), "if the suit (1) is filed with an im-
proper motive and (2) lacks a reasonable basis in law."
Again however the case arose in Bill Johnson's Restau-
rants case posture. There was a pending claim, one not
finally adjudicated, in that the Union was actively pursu-
ing a 301 lawsuit for enforcement of an arbitrator's
award (by virtue of an appeal of lower court adverse
ruling thereon). Moreover, in this instance the central
legal conclusion upheld by the Ninth Circuit was that
the Union's 301 lawsuit itself lacked a reasonable basis in
law because of the Board's earlier contrary 10(k) of rea-
sonable basis in law rested on clear precedential applica-
tion of the Supremacy doctrine barring an arbitrator
from making an award inconsistent with an NLRB deter-
mination. 773 F.2d at 1017-1018. This consideration is
shown made by the Court apart from otherwise inde-
pendently evidenced and noted 8(b)(4) unlawful objec-
tive consideration (e.g., "a suit that has an objective that
is illegal under federal law"), explicitly excluded (along
with cases preempted by Federal law) from Bill John-
son's Restaurants case coverage . 461 U.S. at 737 fn. 5.
Martinez v. Deaf Smith County Grain Processors is a
Fair Labor Standards Act (FLSA) case. This FLSA
action arose in Federal district court on a Department of
Labor (DOL) suit brought against an employer pursuant
to an employee's earlier filing of a minimum wage com-
plaint against the employer. After the employee there
had registered his complaint with DOL, he left employ-
er's employ. The employer filed a lawsuit against the em-
ployee for breach of contract in state court. Shortly
prior to resolution of the FLSA action by the district
Court, employer had pressed its state court claim, and
the state court adjudicated that employer's (undefended)
lawsuit brought for breach of contract in state court was
meritorious. However, the district court's finding effec-
tively relegated the state court holding to a case of lack
of reasonable basis in law posture under Bill Johnson's
Restaurants.
Thus the district court distinguished its own status
under the Bill Johnson's Restaurants holding, as com-
pared with that of the Board, on the basis that in con-
trast with NLRB finding of a violation that has no effect
on an otherwise meritorious lawsuit, the district court's
finding that an FLSA violation had occurred deprived
the state court action of its reasonable basis in law, a pos-
sibility which the district court further concluded should
have been apparent to the plaintiff employer in pressing
the state court claim earlier. Thus while the district court
(also) does recite Bill Johnson's Restaurants holding as re-
quiring two findings, "(1) that the suit was filed with re-
taliatory motive, and (2) that the suit lacks a reasonable
basis in fact or law," it did so clearly in regard to when
a state suit is to be viewed a prohibited act in law; and
thus the Martinez case holding does not appear (in my
view) to advance Respondent's argument much beyond
one of Bill Johnson's Restaurants central exclusions.
The Martinez case is however, otherwise notable for
the Court's determination that the timing of the filing of
the state suit against the employer shortly after that em-
ployee's filing of an FLSA claim, and its prosecution
shortly before the district court's hearing as well, is clear
indication of a retaliatory motivation.
The Heady Funeral Home case is a Board case but its
holding extends only that the Board has approved an ad-
ministrative law judge's finding (to which there was no
exception) that in light of Bill Johnson's Restaurants and
a pending state action, that a certain 8(a)(1) and (4) com-
plaint issue should be severed, and stayed. Respondent
relies on the AL's "reasonable basis" language (presum-
ably) as differentiated from reference to state court de-
termination of lack of merit in the suit, thus:
[T]he record that has been developed shows the ex-
istence of a possible factual question or state law
dispute for the state court to resolve that would aid
the NLRB in its determination of whether or not
the Respondent's [sic] herein had a reasonable basis
for their lawsuit against . . . [employee].
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
As I read Bill, Johnson's Restaurants and the subsequent
Board action in the Heady Funeral Home case, there was
simply an absence of grounds for a present finding by the
administrative law judge and/or Board that the pending
lawsuit was sham and frivolous, or that it raised no genu-
ine issue of fact and law. In that instance, the allegation
may be severed, and in any event should be stayed, as
the pending lawsuit is not enjoinable by the Board by re-
medial order, or otherwise, before state court resolution
on the merits when brought with apparent reasonable
basis in fact and law. The Heady Funeral Home case is
not persuasive.
The Mister Fox Tire Co. case was similarly a Board
case, but one in which the Board centrally concluded
there was no violation of Section 8(a)(3) and (1) in that
the Respondent would have arrested an employee for a
threat of inflicting physical harm to the respondent's
general manager even in the absence of any protected
activity. Respondent however, as pertinent here, relies
on former Board Member Hunter's notation:
[T]he first amendments to the Constitution guaran-
tees the right to seek redress from the courts, and
that no violation of the Act arises from the exercise
of this constitutional right unless the exercise is both
unlawfully motivated, and is without merit. [Bill
Johnson's citation omitted. 271 NLRB at 961 fn. 2.]
In addition to the threat former Member Hunter noted
the finding of the ALJ that the employee uttering the
threat "was `a powerful figure of a man"' and a threat of
force by the employee could not be lightly regarded; and
in these circumstances, "would find that the Respond-
ent's prosecution of ... [employee] . . . was not base-
less and for this reason cannot be found to have violated
the Act." Ibid. Once again however a harrassment con-
viction of the employee was there on appeal and pend-
ing, 271 NLRB at 963. The cases advanced by Respond-
ent are simply not wholly persuasive of its urged view of
the standard to be applied. If anything, the Mister Fox
Tire Co. case would appear to import propriety of a
Wright Line approach.
Respondent has ,finally argued in brief that its research
has disclosed no cases in which the Board or a Court has
(explicitly) stated that it was unnecessary for the Board
to determine whether a state-court plaintiff's suit lacked
a reasonable basis before fmding that its prosecution con-
stituted an unfair labor practice. Neither have I. This is
not a case where employee evidence essentially admits
the cause of action. See Adam Metal Products Co., 283
NLRB 826 (1987).
Respondent brings to Board attention, the only case it
has found containing dicta that could possibly be read to
support such an approach, Dash v. NLRB, 793 F.2d 1062
(9th Cir. 1981). In Dash, the Ninth Circuit first noted the
Board had properly stayed its proceedings, and awaited
the resolution of a state action on appeal of an award of
unemployment benefits on basis of an employer's reasona-
ble contention it was prejudiced by certain examiner
phone refusals (viz to allow employer time to obtain
counsel and to call witnesses), and a related subsequent
reliance of the examiner in decision on the merits, on the
351
failure of the employer to call witnesses. In further ad-
dressing the alternative results of that lawsuit, the court
stated as to one alternative of the lawsuit,
If, however, the employer does not prevail in the
state court action, the Board must determine wheth-
er the employer filed the suit in retaliation for the
employee's exercise of protected rights, and thereby
committed an unfair labor practice. 793 F.2d at
1070.
Respondent argues that such a reading of retaliation de-
termination without affording consideration of the rea-
sonable basis for bringing a lawsuit would be improper
since the Ninth Circuit in the Longshoremen IL WU Local
32 (Pacific Maritime), case, supra, had earlier clearly
stated that the lack of a reasonable basis (for bringing the
lawsuit) is a prerequisite to finding a violation of the
Act; and, alternatively argues, even if such a reading of
the Dash case were correct, it would contradict the
entire body of case law in this area and therefore, be of
negligible precedential value.
In light of the analysis of the Pacific Maritime Assn.
case holding made supra , the argument is at best, not
persuasive. However, addressing the Dash holding front
on, the Court's opinion does not appear to me to be in-
congruous with expression of the underlying the General
Counsel 's normal basic burden to show the suit filing
was a retaliatory act, or for that matter , incongruous
with an expression of an ultimate burden resting with the
General Counsel to show the suit was filed in retaliation
for the employer 's exercise of protected rights, and not
for other lawful reason advanced in defense that is indic-
ative that the employer would have acted in the state
court in the manner it did , even if there had been no pro-
tected activity, cf. Wright Line, supra. However, to the
extent Respondent here has urged , once prima facie
showing is made by the General Counsel the lawsuit was
filed with retaliatory motive, that it need only show in
defense of its filed lawsuit , that its lawsuit although un-
successful was not frivolous, or had some "reasonable
base" in law and fact, and that it need not additionally
show that it would have acted in that manner regardless
of member exercise of protected Section 7 rights, under
shield of First Amendment considerations , Respondent's
advanced authorities, in my view, simply do not establish
the seeming precedential departure from a warranted
Wright Line application , nor has it convincingly shown
such result is one that has been mandated by Bill John-
son's Restaurants , holding supra.
Analysis, Conclusions, and Findings
It is the responsibility of an administrative law judge
to apply established Board precedent which the Supreme
Court or the Board has not reversed, Iowa Beef Packers,
144 NLRB 615, 616 (1963); Ford Co., 230 NLRB 716,
718 fn. 12 (1977); and not substitute his own view of
what the law should be, Fred Jones Mfg. Co., 239 NLRB
54 fn. 4 (1978). I resolve the matter under the principles
as explicated above, Bill Johnson's Restaurants, supra;
Power Systems, supra; Wright Line, supra; Auto Workers
Local 2017 UA W (Federal Mogul), supra; Petramale x La-
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
borers Local 17, supra; and Operating Engineers Local 138,
supra.
To begin with , notwithstanding Respondent 's urging
to the contrary , it is very easy passage for me to the con-
clusion that Local 707 and its officers continued to
harbor strong animus at the time Local 707 and Presi-
dent Nixon filed their lawsuit in state court on 7 Decem-
ber 1984 . The passage rests easily and persuasively on
the Board 's prior adopted findings of LL 707's continued
violation of the Act as earlier determined by Administra-
tive Law Judges Harmatz and Lawrence ; and indeed, is
only the more convincingly demonstrated so as to depth
of that animus in consideration of their definitive under-
lying findings of the conduct of LL 707 and its officers
stretching over a period from December 1983 through
November 1984, as well as from the weight of wholly
compatible evidence presented herein . Thus the same is
readily apparent from broad overview of the now deter-
mined hostile union reaction to the content of leaflets
that were critical of LL 707 incumbent officers when
first distributed in December 1983 ; and from the hostility
evidenced against Gilbert for his part therein , as evi-
denced : by the determined immediately retaliatory filing
of internal union charges in January 1984 ; by the reckless
and disparate process of those and other unfounded
charges through sham trial in May 1984 ; and by the now
determined unlawful LL 707 lapse of Gilbert's member-
ship in August 1984 (with DL 91 and International ap-
proval), with designed coercive effect of denying Gilbert
right of nomination to LL 707 office in September 1984,
and with continuing unlawful effects of denied member-
ship that reverberated and permeated events through
November 1984.
Accordingly , I thus first easily conclude and find that
the General Counsel has established a very strong prima
facie case that Respondent LL 707 filed the lawsuit on 7
December 1984 with retaliatory motive . There is no rea-
sonable question to be raised under any Power Systems re-
quirements on the propriety and scope of the underlying
charges Gilbert filed in 1984. They are with merit. They
thus offer Respondent no viable defense that would be
based on lack of probable cause , or unlawful harassment
purpose of Gilbert in filing the meritorious charges. But
that is not what Respondent has claimed in defense.
Next to be addressed is Respondent 's raised basic de-
fense of claim that it filed its lawsuit because Gilbert had
engaged in, and it was reasonably felt Gilbert was likely
to continue to engage in, serious misconduct ; and mis-
conduct of nature: that was disrupting LL 707's meet-
ings; that was preventing the Union from conducting its
required business , and that was effectively preventing a
new union president from the related performance of his
duties; and finally, misconduct that it had reason to be-
lieve was causing members to elect not to even attend
the meetings . In those circumstances , Respondent argues
it filed the lawsuit lawfully because it only sought to
quickly and effectively stop Gilbert from engaging in
such misconduct.
Deference of course is to be given to the state court's
adjudication of a meritorious Bill Johnson 's Restaurants
state claim , 461 U.S. at 747 . If adjudication of the claim
goes against the plaintiff in the state action , as it did
here, we then reach the question whether the Board
under Bill Johnson's Restaurants will extend further con-
sideration to Respondent's showing made on "reasonable
basis" for bringing the unsuccessful lawsuit; and the
scope of that consideration in light of other Board prece-
dent not in conflict with Bill Johnson's Restaurants. Exist-
ing Board and court precedent warrants conclusion the
Board will consider Respondent's "reasonable basis"
(contended Gilbert disruptive conduct) for filing its un-
successful lawsuit as a raised defense under Power Sys-
tems, supra; Wright Line, supra. That concern, if real, not
contrived, and properly presented has legitimacy, cf. Pe-
tramale v. Laborers Local 17, supra, and Steelworkers
Local 5163 (Bizzaro), supra.
The threshold question becomes whether the issue of
Respondent's "reasonable basis" in fact and law to bring
the lawsuit is to be resolved solely on the basis of the
evidence and law applicable to the theory of action
brought before the state court in a due process hearing.
In my view it should be so limited.
It is clear from Bill Johnson's Restaurants that the
Board is to defer to a determination of the state court
that a pending lawsuit presents triable factual issues (thus
issues that are determined by it not to be frivolous, sham
or baseless), or the Board should cogently explain its fail-
ure to do so, 461 U.S. at 746. It would appear to me to
coextensively follow that where a state court has indicat-
ed in the resolution of a lawsuit that the lawsuit has pre-
sented the court with genuine issues of fact and law, the
Board should also properly defer to that indicated con-
clusion in the state adjudication as well, and not enter-
tain a resolution of the issue otherwise on its own, be-
cause the lawsuit, on some other fact or law base consid-
eration, has failed. It certainly need not address a more
extensive view of evidence that may be otherwise sought
by a party to be presented before it; and, only the more
clearly decline to do so when no issue of contrived fact
has been raised by a party and/or opinion thereon re-
served by the state court.
In that respect, an unsuccessful state plaintiff is surely
not likely to be heard to complain before the state court
if evidence that is known, available and supportive of
plaintiffs claim is not timely presented to the state court
for its consideration prior to the state court's resolution
of the issues; and, similarly, that party should not be
heard to complain as a Respondent before the Board, if
the Board should also decline to consider previously un-
produced evidence that might have supported the plain-
tiff's claim more before the state court. Although the
unfair labor practice allegation elements of restraint and
coercion before the Board are in that sense different than
the claim presented before the state court, it seems to me
that the substantive content of the Respondent's (Plain-
tiffs) proffered defense before the Board is likely to be
essentially the same as the claim it sought to make in the
state court; and, the base of the complaint allegation is as
likely to have been timely raised and/or preserved before
the state court by a defendant. At least where that is the
case, as here, the above result appears warranted.
To the extent that Respondent may be viewed to have
urged at hearing and/or in brief that the affidavits that
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
LL 707 presented to the state court in support of its law-
suit are to be viewed as having been submitted with but
limited purpose , namely, to sustain its request for a tem-
porary restraining order , that was immediately denied,
and that accordingly Respondent LL 707 should be enti-
tled to a complete litigation of those claims in this Board
proceeding, its seems to me that that contention may be
appropriately rejected. Not only did the state court
judge elicit certain admissions from the state court de-
fendant (Gilbert) based on assertions contained therein, it
is clear that the state court judge gave a full addressment
to the entire substantive content of the plaintiffs affida-
vits; and that he did so in the light most favorable to
support the plaintiff's cause of action as brought and
pressed. Surely the Board may appropriately elect to do
the same in its evaluation of an issue before it of assess-
ing the reasonable basis in fact and law of the state claim
as brought and presented . In my view, it need not and
should not do more, for that approach both affords a
proper measure of difference to the state court determi-
nations , and lends support to the Board 's own interests of
efficient and effective administration of the Act, with
reasonable husbandry of its own resources.
That there were genuine issues of fact and law is pre-
cisely what the state court judge here has already deter-
mined . Thus, for the record , Judge Fracasse expressed
his appreciation to both counsel for having presented the
legal claims and legal authorities, and for having focused
on the problems and the issues in contention between
them in a professional manner. That statement, in my
view, can have no meaning other than the presiding
judge adjudicated that the losing plaintiff litigant through
counsel had presented genuine issues of fact and law and
properly focused on them, as did the prevailing defend-
ant. It is fair inference a judge will not so speak of
record, where a litigant visits upon the court a cause that
in the court 's actual addressment is shown to be sham or
frivolous, or to rest on baseless and intentionally false or
contrived fact, nor one apparent to him as a cause plain-
ly foreclosed as a matter of law. That the resolution of
the state court issue here went off on an acceptance of
losing plaintiffs ' proffered facts as true in a discretionary
denial of the injunctive relief sought , because there was
deemed, all things considered, alternate and adequate (in-
ternal and external) union remedy available otherwise,
does not weaken let alone conflict with the judge's stated
view of the professional manner in which the underlying
issues of fact and law were developed, narrowed and
presented to the state court enabling an efficient resolu-
tion by the state court.
Accordingly, I would defer to that indicated state
court finding. I would relatedly not permit a relitigation
of the underlying issue on a newly advanced theory,
namely, that the case should be allowed to be tried
before the Board on basis of a claim of Gilbert's claimed
nonmembership, Ironically, were a contrary view to pre-
vail a violation here would then all the more readily
appear made out in light of the Board's (subsequent, and
now Court enforced) determination of LL 707's unlawful
lapse of Gilbert's membership. However, an adoption of
a procedure effectively being urged by Respondent upon
the Board now, namely a procedure that would allow a
353
party litigant, unsuccessful in advancing a specific theory
of its action as brought in the state court , to either ad-
vance a new theory before the Board with intention to
establish thereby that a reasonable basis existed in fact
and law for the bringing of the unsuccessful lawsuit, or
to bolster the lawsuit with additional available proofs
(e.g., of contended defiant act of Gilbert in assisting in
the improper removal of LL 707's property on 22 Febru-
ary 1984) would, at best, have the Board embrace a pro-
cedure with undesirable risk of being prone to disingen-
ous, if not cynical results. Cf. Petramale v. Laborers Local
17, supra, 736 F.2d at 17.
Neither would I recommend that the Board permit a
party's reliance on different events in its presentment of a
defense not clearly advanced and successfully reserved
before the State Court, e.g. (as here) that the evidence
relied upon by the plaintiff in that proceeding is con-
trived. To be sure the General Counsel was not a party
before the State Court. But the fact is that a charge on
the matter of the lawfulness of LL 707's lawsuit under
the Act was not brought until after the resolution of the
state court matter. Had a charge been filed before that
state court resolution, the General Counsel has standing
to investigate the matter to satisfaction that genuine
issues of fact and law exist and/or that the lawsuit
brought is with apearance of being a retaliatory one with
sham or frivolous base and thus is with Bill Johnson's
standing to timely bring such a lawsuit into account with
the purposes of the Act. The purposes of the Act need
no protection from State Court determined nonfrivolous
and nonsham lawsuits, especially where , as here, the
state court resolution on its face is compatible with the
provisions of the Act. Rather the purposes of the Act
need redress only from the retaliatory lawsuits that fail
and are violative of the Act.
Accordingly it is concluded and found that LL 707
did present a "reasonable basis" in fact and law for the
lawsuit it filed, though Respondent LL 707 was unsuc-
cessful in the prosecution of its lawsuit . Consequently I
need not address (law firm) counsel's additional support-
ive testimony at instant hearing as to the process of dili-
gent research it went through to determine, and the pre-
filing advice it gave its client Respondent LL 707 that
such a lawsuit could be lawfully filed and defended as
being not sham or frivolous. Neither need I further con-
sider Respondent's urged incidents of Gilbert 's (contend-
ed) continued misconduct being subsequently interrup-
tive of union affairs; or address the several related and
perhaps more difficult issues involved in an addressment
of questions whether, and if so when, subsequent con-
duct of a state court defendant may legitimately serve to
establish the plaintiff's good faith in its perceived "rea-
sonable basis" for the plaintiff, to bring the state court
lawsuit when it did . However, in my view of existing
and applicable Board precedent this does not end the in-
quiry as Respondent would have it. It but raises what I
view as the ultimately dispositive issue, viz the required
evaluation of dual motive.
The dispositive question becomes what was LL 707's
real motive in bringing the lawsuit . In that regard Re-
spondent simply makes a wholly inadequate showing, at
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
least under Wright Line guidance, that it would have
filed and pursued this lawsuit, in the manner it did, even
if Gilbert had not engaged in his broadly protected con-
duct in criticism of incumbent local leadership, old and
new.
The General Counsel presents related argument on Re-
spondent's raising Gilbert's nonmembership in the state
court hearing. That contention would appear more ap-
propriately addressed in connection with the General
Counsel's alternative advanced theory of violation,
namely the suit was filed for an unlawful object. Howev-
er, there is merit, it seems to me under Power Systems, in
the General Counsel's other related arguments: (a) that
the real motive of Respondent in retaliation is revealed
in the overly broad injunction it sought; and (b) there
was real coercion and restraint of Gilbert, as is to be evi-
denced by the damages (at least) as initially sought, and
from Gilbert's actual loss of property as evidenced by
the expenses he incurred in defending the state court
lawsuit. I so find as to both.
By virtue of Board-adopted fording of Judge Law-
rence, a finding now enforced by the Second Circuit,
Gilbert is to be viewed in fact and law a member of LL
707 throughout the period from May 1984 on, and spe-
cifically in the times material covering meetings in the
period August-December 1984. Assuming, for present
purpose, that union counsel at state court hearing effec-
tively insulated contrary position of Respondent Local
Lodge 707 being pursued before the Board (viz, that Gil-
bert was not a member in the material period) from be-
coming an actual issue in the state court proceeding, the
injunction the Union sought was, and remained overly
broad.
The central (lawful) complaint of LL 707 was its belief
that Gilbert, whether union member or no, was improp-
erly disrupting union meetings and union business, and
Nixon's related performance of his duty as president, by
Gilbert's failure to follow reasonable internal union rules
uniformly applicable to all present for the fundamental
governance of membership meetings and the reasonable
conduct of internal union affairs. LL 707 charged Gilbert
with specific misconduct, namely, and severally: of fail-
ing to speak orderly, upon recognition of the chair; of
continuous interruption of others when they were prop-
erly recognized by the chair and given permission to
speak; of failure to abide by union regulations and lawful
officer directions; and (considered most favorably to Re-
spondent) of use of profane, demeaning, intentionally dis-
ruptive language and conduct, of nature plainly and (at
best) demonstrably unassociated with any accusatory ex-
ercise by Gilbert of a protected right to criticize incum-
bent union leadership, but rather urged as engaged in for
clear purpose of harassment and/or vindictive impedence
of the conduct of any union affairs by LL 707 officers.
Assuming, without so finding, that LL 707 presented
some evidence arguably tending to support incidence of
Gilbert misconduct, what LL and its officers were in any
event clearly not entitled to do was to seek to insulate
LL 707, its officers and its membership from any and all
Gilbert protected criticism of the Local's conduct of
union affairs that they might deem or find offensive, or
to penalyze him for having engaged in that conduct in
the past. That is what, in my view, LL 707 really sought
to accomplish in seeking, and then pursuing the broad
temporary and permanent injunction. The injunction
sought did not reasonably limit itself to correct the spe-
cifically enumerated disruptive misconduct by Gilbert of
arguably unprotected harassment and intimidation, but
rather effectively sought to keep Gilbert completely out
of the Union's hall; out of the Local Union's meetings;
out of the Local's conduct of union business; and thus ef-
fectively out of the Local Union officers' hair. For the
above reasons I conclude and find that Respondent LL
707 has failed to establish in defense that it would have
filed and pursued its 7 December lawsuit, in the manner
it did, even if Gilbert had not engaged in protected Sec-
tion 7 activity. Wright Line, supra.
In my view, the broad injunction initially sought by
LL 707 in the end also supports conclusion that Re-
spondent's lawsuit was from the start both aimed at pen-
alyzing Gilbert for having persisted in filing charges
with the Board alleging contended wrongful union con-
duct, and designed to prevent him effectively from fur-
ther exercise of Section 7 rights under the Act, and as
provided for by other Federal Statute.
Accordingly, for all of the above reasons, it is con-
cluded and found that Respondent LL 707 in filing its
lawsuit on 7 December 1984, in the circumstances and
the manner it did, filed a retaliatory lawsuit against Gil-
bert in violation of Section 8(b)(1)(A) of the Act. In
reaching the above findings, I would have it be clear,
that contrary to any suggestion contained in Respond-
ent's brief I do not view the state court's holding as
having accepted Gilbert counsel's (there) stated general
claim that under federal law Gilbert had a (blanket) right
to harass and intimidate members (or officers) of LL 707
at the membership meetings , even if his conduct consti-
tuted a crime under state law, nor to extent exceeding, or
plainly beyond what is protected accusatory commen-
tary, cf. Petramale v. Laborers Local 17, 736 F.2d. at 17),
supra. Neither do I find persuasive Respondent's seem-
ingly related suggestion that the State Court was of a
mistaken view that it could not grant any injunctive relief
for such conduct because the Union, as a matter of law,
was not entitled to it. Rather it seems clear to me, from a
reading of the record of that proceeding, as was essen-
tially stated by the State Court, the State Court reviewed
all the advanced relevant facts, and then exercised its dis-
cretion, for the reasons it explicitly stated.
Additional Observations
The above approach under Bill Johnson's Restaurants;
of essentially holding both the state court plaintiff and
defendant to reasonable base of fact and law determina-
tion on the cause of action and defense respectively, as
raised, resolved and/or preserved in state court, appears
to be a matter of first import. In the event, the Board
would deem it advisable to adopt a different approach to
the underlying unfair labor practice issue(s), viz, one of
allowing the parties a full and unrestricted litigation
anew before the Board on the issue of whether the failed
lawsuit was actually a retaliatory lawsuit in violation of
the Act, or defendable as one brought in good faith, and
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
involving genuine issues of fact and law related to Gil-
bert alleged misconduct , the following additional find-
ings are made which are deemed sufficient to resolve the
issue as then presented in this hearing . First, it has been
repeatedly ruled at hearing that to extent new evidence
is proffered (with or without objection of the other par-
ties) of nature to have effect of producing a collateral
attack on prior Board findings, the same is (are) to be re-
jected . Those rulings are reaffirmed . (It is my essential
view the same approach should be applied to any new
evidence that would produce a similar effect on the State
Court holding .) Second a review of the General Coun-
sel's witnesses ' accounts and Respondent 's witnesses' ac-
counts of the events that transpired in LL 707's meet-
ings, and/or at LL 707's hall, in the period August-No-
vember 1984 are, in some respects in substantial conflict;
and in several respects their witnesses ' testimonies are in-
consistent. The inconsistencies and conflict need not be
resolved, beyond observation and conclusion that what
in any event appears clear to me therefrom is; (a) the
Union's claim that Gilbert had engaged in misconduct
was not based on contrived evidence; and (b) the con-
tended acts of `misconduct attributed by LL 707 to Gil-
bert during this period appear inextricably intertwined
with LL 707's previously determined unlawful lapse of
Gilbert's membership . Since they, in my view , cannot be
separated in the instant litigation, or their effects isolated,
it follows that LL 707's lawsuit action violated the Act,
cf. Petramale v Laborers Local 17, supra, 736 F.2d at 17.
(3) The unlawful objective cases
With the Second Circuit's interim enforcement of prior
Board fmding that the lapse of Gilbert's membership was
unlawful and ineffective, Respondent LL 707 may, or
may not further pursue review of its contention other-
wise . Even assuming that it does seek further review, the
same does not affect the governing Board (and court)
resolution on me herein . As to the General Counsel addi-
tional urging for a finding of violation in LL 707 's State
Court lawsuit filing on basis of Gilbert's asserted non-
membership , however , I remain unpersuaded.
The General Counsel essentially observes: that the
Board in cases resolved post Clyde Taylor, supra, and
post Power Systems, supra, has consistently found that a
union violated the Act by filing a lawsuit against an em-
ployee (or employer) "in order to pursue an unlawful ob-
jective"; that the Supreme Court has specifically distin-
guished such cases, and upheld such Board holdings in
Bill Johnson 's Restaurants, 461 U.S. at 737 fn. 5. The
General ' Counsel relies on a case there cited, Booster
Lodge No. 405, Machinists & Aerospace Workers, 185
NLRB 380, 383 (1970), enfd . in relevant part 148 U.S.
App. D.C. 119, 459 F.2d 1143 (1972), affd. 412 U.S. 84
(1973) (union suit to enforce a fine imposed on member
who had resigned during a strike , in violation of Section
8(b)(1)(A)). Accord: Machinists Local 1769 (Dorsey Trail-
ers), 271 NLRB 911 (1984) (union rule restricting resig-
nation during strike unlawful ). The General Counsel as-
serts further reliance on unlawful objective suit holdings
of: Sheet Metal Workers Local 355 (Zinsco Electrical), 254
NLRB 773, 777 (1981 ), enf. denied 716 F.2d 1249 (9th
Cir. 1983) (union suit for declaratory relief and $30,000
355
in damages determined nonmeritorious , and with unlaw-
ful objective of penalyzing employee for filing meritori-
ous charge against union that union had granted member
extension of time to pay periodic dues under lawful
union-security clause , but then breached duty to fairly
represent the employee by failing to notify the employer
that its prior request that the employer discharge the em-
ployee was amended by the extension); and George A.
Angle, 242 NLRB 744 (1979), enfd. 683 F.2d 1296 (10th
Cir. 1982) (employer suit against employee for malicious
prosecution held, in light of various court findings sup-
porting Board action, aimed at penalyzing employee for
having utilized Board processes against employer, thus
violative of Section 8(a)(1) and (4) of the Act). The Gen-
eral Counsel similarly relies on United Stanford Employ-
ees Local 680 (Leland Stanford Jr. University), 232 NLRB
236, 330-331 (1977), enfd . 601 F.2d 980 (9th Cir. 1979)
(union lawsuit to compel employees to become union
members in violation of 8(b)(1)(A)); Television Wisconsin,
Inc., 224 NLRB 722 fn. 2, 779-780 (1976) (lawsuit to
apply or enforce an unlawful union-security clause viola-
tive of 8(b)(1)(A)); Masters, Mates & Pilots (Cove Tank-
ers), 224 NLRB 1626 fn. 2 (1976) (union lawsuit to influ-
ence employer in selection of bargaining representative
and in furtherance of unlawful secondary picketing, in
violation of Sections 8(b)(1)(B) and 8(b)(4)); and Wiscon-
sin River Valley District Counsel of Carpenters (Skippy En-
terprises), 218 NLRB' 1063 (1975), enfd . 532 F.2d 47 (7th
Cir. 1976) (union lawsuit to enforce fine of supervisor-
member for noncompliance with internal union rule).
The central argument of General Counsel however as
to this case rests on an assertion of a specific illegal
motive pursued in the lawsuit , namely that the basis of
Respondent LL 707's lawsuit was to enforce its position
that Gilbert was no longer a member of the Respondent
Local. The General Counsel observes (correctly) that a
complaint alleging the Union's lapse of Gilbert's mem-
bership had already issued , and had already been heard
by Judge Lawrence. The General Counsel argues there-
from that Respondent LL 707's filing of the lawsuit
thereafter was in reality an effort by the Union to en-
force through the State Court the (now determined) un-
lawful' lapse of Gilbert's membership, and consequently
the lawsuit filing must therefore be found unlawful. The
problem with the General Counsel 's argument is that it
confronts a clear and unequivocal LL 707 disavowal of
Gilbert's claimed nonmembership as an urged necessary
element to its state court lawsuit.
Discussion
In general, I have no quarrel with General Counsel's
advanced authorities insofar as they establish the princi-
ple that a lawsuit filed for an illegal objective, is itself il-
legal . Neither would it appear has Respondent.
In that regard Respondent itself has also noted the
holdings of certain ofthe cases cited by the General
Counsel , e.g., ILWU, Local 32 v. Pacific Maritime Asso-
ciation, supra. Respondent moreover has added a few of
its own. Respondent cites: Chicago Truck Drivers (Signal
Delivery), 279 NLRB 904 (1986) (union demand for arbi-
tration of grievances resting on urged dovetail of seniori-
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ty lists of three separate units, and essentially seeking an
enlargement of three historically separate units into one
unit in face of (two) employer refusals to participate in
union 's arbitration demands, held, union insistence on ar-
bitration is contrary to union 's statutory collective-bar-
gaining obligations ; and union demands for arbitration
have an illegal objective under Federal law, and are vio-
lative of Sections 8(b)(3) and 8(b)(1)(A) of the Act);
Teamsters Local 705 (Emery Air Freight), 278 NLRB 1303
(1986) (assuming, without deciding , applicability Bill
Johnson 's Restaurants to a grievance , a grievance with
secondary objective is for an unlawful objective, and
thus Bill Johnson 's Restaurants is inapplicable, and the
grievance filing violative of Section 8(b)(4)(ii)(B)); Com-
munications Workers Local 6012 (Southwestern Bell), 275
NLRB 1499 (1985) (union state court action , filed to col-
lect fines unlawfully levied against members who at-
tempted to resign and go to work in a strike , is for illegal
objective, and violative of Section 8(b)(l)(A)); and Amer-
ican Postal Workers (Postal Service), 277 NLRB 541
(1985) (union properly to be ordered to move to dismiss
union lawsuit to recover expenses incurred in processing
a grievance for nonunion bargaining unit member , as suit
is for an illegal objective). Respondent however would
have all such lawsuits brought with an unlawful objec-
tive distinguished , Bill Johnson 's Restaurants, 461 U.S. at
737 fn. 5, since its lawsuit , as presented to the State
Court, addressed claimed disruptive conduct of Gilbert,
which Respondent urges is not an unlawful objective
under the Act.
In contrast with General Counsel's urging that Re-
spondent 's lawsuit filing was an effort to enforce the
Local Union's lawful lapse of Gilbert's membership
through the State Court, Respondent focuses on the evi-
dence it presented of Gilbert misconduct, and the relief it
sought; and LL 707 argues that the General Counsel
does not contend it would have been contrary to federal
law for the Court to have granted that relief. While the
issue is arguably not one wholly free from doubt on the
basis of "inextricably intertwined" reasonable basis for
valid charges-unprotected disruptive conduct-and "in-
valid ones" accusations against union officers, in part
with reference to nonmembership assertions , the fact is
the contrary more clearly appears on State Court litiga-
tion basis. In the end, the issue as presented by union
counsel at the State Court hearing , and as accepted and
then determined by the State Court, simply does not sup-
port the General Counsel . Although there are references
to Gilbert's nonmembership in the supporting affidavits
presented to the State Court, in the light of union coun-
sel's explicit and complete disclaimer of that (contended)
fact as an issue, and the State Court's acceptance of the
issue as so framed , I simply do not find the General
Counsel 's argument is persuasive in its basic assertion
that LL 707, in presenting its case in the State Court for
resolution, had effectively proceeded on the basis of Gil-
bert's nonmembership in the Union. It is recommended
that this theory of the complaint be rejected.
B. DL 91's Alleged Failure to Recall Gilbert
1. The issue as joined
The second major issue is whether on and after 11
March 1985 DL 91 failed and refused to recall Gilbert to
a dlr position, in violation of Sections 8(a)(1), (3), and
(4). Respondent DL 91 defends that Gilbert had already
resigned his dlr position in June 1983 . The General
Counsel and Charging Party Gilbert counter that the
evidence presented warrants a finding that Gilbert had
proffered only a conditional resignation , which was
never effectuated , because the underlying condition
never has occurred.
2. Tracy-Gilbert longstanding internal union dispute
Gilbert and Directing LR Tracy are the principal pro-
tagonists in certain events that resulted in Gilbert's sub-
mission of a resignation in early June 1983 . Gilbert has
acknowledged that at this particular time his relationship
with Tracy was not a friendly one. Internal union charge
and countercharge had existed unresolved between them
for over a year, indeed from as early as April 1982.
A few months earlier in 1982, Tracy had assigned
(then) dlr Lou Fyles to assist LL 707; and more recently,
Tracy had directed Fyles to distribute a certain leaflet
(of undisclosed nature) in LL 707. Gilbert viewed Fyles'
service to LL 707 as being (at best) inadequate. Gilbert,
at this time LL 707's president, had repeatedly, but una-
vailingly, registered that complaint with Tracy. Gilbert
subsequently came to view Fyles private meetings with
groups of LL 707's membership as also being political,
and independently improper. On one occasion president
Gilbert locked Fyles out of LL 707's office for one day;
and president Gilbert denied Fyles access to LL 707's
phones. Fyles was also apparently unable to make a
scheduled distribution of a DL 91 leaflet to LL 707's
members . Tracy filed related charges against Gilbert; and
Gilbert filed countercharges against Tracy. These
charges stood unresolved clearly through April 1983,
which was about the time the International directive
came down in regard to funding reductions' in DL 91
that portended a layoff of three dlrs.
3. Gilbert's effective DL 91 seniority date of
1 August 1982
a. The April and June 1982 elections
In general, elections for dlrs are held every 4 years. In
each LL, nominations and endorsements of candidates
for open dlr positions are held in the month of February
of an election year. Materially such was done in Febru-
ary 1982 (and materially again in February, 1986). A dlr
candidate , in addition to meeting certain mandatory qual-
ification requirements contained in the International's
Constitution and DL bylaws, discussed further infra,
must also receive the endorsement of at least one LL.
Gilbert'in prior years had held just about every LL
union position , including many delegate positions. He
had held positions in statewide union organizations; and
he was the incumbent elected president of LL 707. Gil-
bert has testified, without contradiction, that for the 1982
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
dlr election he had received the endorsement in almost
all, if not all LLs (then) in DL 91.
An (initial) election of dlrs was held in April 1982; and
normal taking of office by an elected dlr would be on 1
May 1982. There were nine open dlr positions to be
filled in the 1982 election. Each Local could nominate
(as many but no more than) nine individuals to fill the
nine open positions. In the election, Gilbert received
enough votes to win election in one of those open posi-
tions. However, certain objections were filed to that
April 1982 election. Upon International's investigation,
and determination that greater safeguards in the election
of dlrs were in order, the election was ruled invalid. The
dlr election was rescheduled, and it was rerun on 14 July
1982 (thus, as it turns out, approximately 2 weeks, after
Gilbert was discharged by P&W).
Related internal union charges of purported election
misconduct (ballot stuffing) in the first election were.
brought inter alia against Cliff Forrester. (Charges were
also brought against Paul Schmelke, Eddie Robinson,
and Alta Moran.) Forrester at this time was President of
LL 700 (Middletown), a delegate to DL 91, and also (ap-
parently improperly) a self-appointed teller in the April
1982 election. Gilbert subsequently defended Forrester
(and others) on all charges, and Forrester was apparently
only directed not to again appoint himself a teller. The
General Counsel called Forrester as a witness to support
certain complaint allegations of Respondent 's subsequent
misconduct directed against Gilbert. Respondent attacks
Forrester's credibility on basis of having a bias favoring
Gilbert, and one antagonistic to Respondents. I credit
certain testimony of Forrester, and not other.
The rerun election was conducted on 14 July 1982.
Gilbert won a dlr spot again . As noted on 23 July 1982,
Directing LR Tracy (apparently pursuant to contract
terms) requested a leave of absence from P&W for Gil-
bert to serve as dlr for a period from 1 August 1982, to
(I find) normal elected dlr term ending of 30 April 1986.
P&W initially declined the request, contending Gilbert
was a discharged employee.
b. Gilbert's DL 91 seniority established as greater than
Tinella's seniority
Respondent DL 91 has contended that dlrs, and par-
ticularly newly elected dlrs (Robert Fleeting, Wayne
Gilbert and Peter J. Tinella) were all elected for a
common term that was to be effective 1 August 1982. It
has contended (at least at one point) the newly elected
dlrs all had the same DL-91 employment starting (senior-
ity) dates, based on their election to a common term.
However, in evidence and wholly persuasive of the con-
trary is Directing LR Tracy's letter of 29 July 1982 ad-
dressed to International which clearly notified Interna-
tional that Fleeting, Gilbert and Tinella were newly
elected dlrs; that Fleeting and Gilbert would take office
on 1 August 1982; but that Tinella would not take office
until 23 August 1982. As noted earlier the reporting
delay of Tinella was arranged with P&W (and as obvi-
ously with DL 91) to enable Tinella to continue as (paid)
employee of P&W to point of his vesting (upon comple-
tion of 10 years' service) a pension with P&W. Tinella
did not actually work for P&W in the period, but Tinella
357
has confirmed he was on the active payroll of P&W in
that period. Neither did Tinella work for DL 91 in the
period. It would appear then of no moment that many
P&W employees may have taken 2 weeks vacation in
August, or that Tinella received his vacation pay in a
prior month. The fact is Tinella did not report for work
at DL 91 until after Fleeting and Gilbert had reported.
It is clear to me from the above, and from corrobora-
tive weight of still other supportive evidence of record
(inclusive of a further corroboration arising from a Tracy
letter of 26 February 1985 to glr Almeida, specifically
confirming Gilbert and Tinella above respective DL 91
staff seniority dates, discussed infra), that Tracy on 29
July 1982 had first notified International of the applica-
bility of different reporting dates of the newly elected
dlrs (e.g., for start of International's contributory pay-
ment purposes). I find that Fleeting and Gilbert actually
started their employment as paid employees of DL 91 in
August 1982 before Tinella, who did not start his em-
ployment as a paid employee of DL 91 until 23 August
1982. (As noted earlier payroll records also confirm the
same.) I thus preliminarily conclude and find that both
Fleeting and, Gilbert actually had earlier DL 91 staff em-
ployment date, and thus greater DL 91 seniority than
Tinella, and that Tracy was fully aware of that fact in
that he (essentially) personally had confirmed Gilbert's
greater staff seniority over Tinella to International on 29
July 1982, and to Almeida on 26 February 1985. (Tinella
however did have more seniority with P&W than did
Gilbert.)
c. Other members of the "committee of the rank-and-
file" elected as dlrs
Tracy's 29 July 1982 letter notably also advised Inter-
national that six incumbent dlrs were elected for a similar
4-year term, as follows:
Cooper, David Jr.
Drosehn, Fred
Parent, James M.
Romegialli, Andrew D.
Rondeau, Maurice J.
Webber, Betty
The six incumbent dlrs who successfully ran for reelec-
tion of course had greater DL 91 seniority than any of
the above three newly elected dirs.
The record in that regard significantly reveals that not
only was Forrester an active member in 1982 of the
"committee of the rank and file" (along with Gilbert and
the Morans, as found and/or reflected in ALJs' Harmatz
and Lawrence decisions), but so were, according to For-
rester's uncontested testimony, both newly-elected dlrs
Fleeting and Tinella, and, as well, reelected incumbents
Parent, Romegialli, Rondeau and Webber. In this record
Forrester has described the above committee (as func-
tioning in 1982) as a group with common interests in
seeing that certain individuals were elected as dlrs. For-
rester has also identified Parent as being an influential
leader of that group, along with Gilbert. I credit Forres-
ter's uncontradicted testimony in the above, respects.
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. DL 91's layoff of Gilbert in 1983
Background; part played by International, DL 91
delegate body and executive board, and directing
LR Tracy
George Poulin has been a general vice president
(GVP) of International since he was initially elected on 1
July 1977. At time of hearing Poulin was then serving in
his third 4-year term as a GVP. Poulin's initial assigment
was to serve as a Resident GVP with International Presi-
dent (IP) William Winpisinger at International's Head-
quarters in Washington, D.C. Poulin has testified credi-
bly that in early 1983, International's executive council
made an initial decision that there would have to be a
severe staff cut to reduce expenditures because of reduc-
tion of membership in the Union, and a related reduction
in revenues. It was determined that the required staff re-
duction would extend to layoffs in headquarter's profes-
sional staff, to auditors, office clerical employees (under
contract), and to glrs and dlrs in the field. There was no
hard and fast rule whether more glrs and dirs were to be
laid off.
The Grand Lodge (International) structures itself ad-
ministratively by Regions, with a GVP assigned to each
region. The regional GVP made the decision on the
number of glrs or dlrs to be laid off (but only in sense of
International cessation of contributory funding) based on
where the GVP thought the Union was topheavy. (The
International normally contributes 50 percent to the
salary, and also a percentage to the fringe benefits of a
dlr. The employing DL pays the remainder.) Subordinate
DLs were then notified of the International's intended
reduction in supported positions.
At the material time of the announced 1983 union
layoff the GVP for the Northeast Region of the Union
was apparently Sal Iaccio. GVP Iaccio notified DL 91
that effective 1 July 1983, the International would no
longer be able to make contributions to three of the dlrs
positions in DL 91. Poulin was subsequently assigned as
GVP for the Northeast Region of the Union in October
1983 (when former GVP Iaccio retired), thus well after
the layoffs in DL 91 had been accomplished.
Poulin testified that he is familiar with DL 91's
bylaws; that they do not have a seniority provision (for
layoff, or recall); and Poulin assumed that the DL and
Directing LR had made the determination. In the end, I
find, infra, DL 91's Directing LR Tracy made the initial
recommendation, with (at some point) certain input from
staff (essentially the dlrs), to DL 91's executive board,
and Delegate Body, which, by their approval, effectively
made the ultimate determination.
Thus, Poulin testified credibly that how the layoffs of
dlrs was to be accomplished was up to the DLs. In such
matters, the DLs are governed by the terms of their own
bylaws. Poulin relates, again with convincing documen-
tary support of record, that the bylaws of DLs vary sub-
stantially, According to Poulin, where a DL's bylaws
provided that the layoff is to be by seniority, that is the
way the IP approved the reduction. (In DL 170, e.g.,
art. VIII, sec. 16, provides for layoff (and recall) by DL
service seniority, with use of a tiebreaker based on
number of individual votes received in last dlr election.)
In some DLs, only the Directing LR is elected; and the
elected Directing LR hires all the dlrs. If the bylaws are
silent on the method oflayoff, it was then up to the Di-
recting LR and DL (Delegate) Body. In DL 91 dlrs are
also elected, not hired by the Directing dlr; and under
DL 91's bylaws, in case of vacancy, an individual can be
appointed only to a short unexpired term, of length not
herein material.
DL 91's delegate body is composed of delegates elect-
ed annually by affiliated LLs, with numbers of delegates
(including alternates) from LLs scaled to size of affiliated
LL membership. The delegate body annually elects eight
officers from its own body. DL 91 has an executive
board. DL 91's executive board is composed of four of
the eight officers (namely, its president, vice president,
recording secretary and treasurer) and (apparently) two
delegates from each LL. The executive board is empow-
ered in DL 91 bylaws with the supervision of all matters
pertaining to the DL between meetings of the DL (Dele-
gate Body); but the executive board makes a report of its
actions for DL approval at the next regular meeting of the
DL. In DL 91, the executive board (regularly) meets at
least one hour before the DL Delegate Body meeting.
Dlrs do not attend DL 91's executive board meetings.
The Directing LR does. Though DL 91 dlrs, as well as
Directing LR regularly attend DL monthly Delegate
Body meetings, they are not eligible to be delegates.
(The bylaws specifically provide both Directing LR and
dlrs can give counsel and advice, but they cannot vote.)
DL 91 bylaws provide (generally) that the Directing
LR administers the business affairs of DL 91, and Re-
spondent Union contends Tracy had the authority to lay
off and recall in whatever manner he wished. However
DL 91 bylaws also state that the Directing LR's action is
subject to DL approval, and does so specifically in
regard to staffing. Thus the duties of the Directing LR
of DL 91 as set forth in the bylaws pertinently provide
in article XI:
Section 1
A. The Directing Labor Representative shall,
within thirty (30) days, after assuming his position,
establish a staff of personnel to transact the business
of the District; he shall, in the best interests of the
District, have full power and authority to adminis-
ter the affairs of the District Lodge office to the
best of his ability as outlined in Sections 3 and 4 of
this Article.
Section 3 -Size of Staff
The Directing Labor Representative , with the ap-
proval of theExecutive Board and the District Lodge,
shall determine the size of the staff and personnel
required to service the District. . . .
Section 4-Selection of Staff
The Directing Labor Representative shall be em-
powered with the authority to select the personnel of
the District Office subject to the approval of the Exec-
utive Board and the Delegate Body and shall have the
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
authority to discharge members of his personnel or
to reduce the size of the personnel at any time he
deems advisable in the best interests of the District
Lodge and affiliated Local Lodges , and the mem-
bers thereof, with approval of a majority of the Execu-
tive Board and the Delegate Body . [Emphasis added.]
There is argument made, and evidence of record that in-
dicates "staff" is to be differentiated from "personnel" in
that "staff ' encompasses ' the dlrs, and "personnel"
others, e.g ., office clerical employees . As is apparent
from the above sections 3 and 4 , such a consideration has
no significant effect on the authority of the Directing LR
appearance of being subject to approval of executive
board, and Delegate Body.
Poulin testified that if a DL decided to pay the full
salary of a dlr, the DL did not have to lay off a dlr; and
some DLs did just that . International just ceased its own
funding of the dlr position(s) on the appointed day. Dele-
gate Forrester confirmed that DL 91 had an option to
keep the dlrs if they wanted to pick up their full salary,
but DL 91 couldn't responsibly afford to keep them.
Poulin , who is familiar with the bylaws of DL 91, as
noted testified, and has done so essentially with corrobo-
ration of (former) Directing LR Tracy and (current) Di-
recting LR Webber, that DL 91 bylaws do not have, or
define a layoff seniority position; and a review of DL 91
bylaws confirms that a provision that a layoff (or recall)
be accomplished by seniority is not explicitly stated (as it
is in the noted DL 170 instance). Moreover, the record
reveals there was no DL 91 layoff (or recall) precedent
to effectively draw on, as there had not been a layoff (or
recall) in DL 91 for more than 20 years.
There is otherwise some conflict in testimony as to the
authority of the Directing LR of Dl 91 in regard to
layoff and recall of dlrs. Poulin assumed (generally) that
the Directing LR and; Dl 91 had made the decision on
who was to be laid off, and on ` what basis . Webber testi-
fied that (former) Directing LR Tracy determined his
role in the layoff and recall of dlrs; but (essentially) was
noncommittal on whether she had to follow Tracy's ap-
proach as precedent . How Tracy went about handling
the initial layoff, in terms of input received from staff, is
somewhat confusing . The ultimate result is not. The
three dlrs clearly were laid off on the basis of their
lower DL 91 staff seniority.
Romegialli previously served as an elected president of
LL 700 (Middletown); and in 1981 Romegialli served as
president of DL 91. Since 1 January 1982 , DL 91 has
employed Romegialli as a dlr , following Romegialli's ini-
tial election as a dlr on , 9 December 1981. Romegialli
was one of the reelected incumbents in the 14 July 1982
(rerun) election. In times presently material, Romegialli
serviced , inter alia, LL 707 (North Haven). Currently
Romegialli services LL 1746 (East Hartford), at which
location all DL meetings are held.
Romegialli first heard about the DL 91 layoffs while
Romegialli was attending an organizing school out of
state. Gilbert called Romegialli to inform him that 3 dlrs
were going to be laid off. When Romegialli returned,
Tracy confirmed it. According to Romegialli , Tracy sug-
gested that the staff meet privately and discuss the
359
matter further. Staff consisted of the 9 dlrs and Lou
Kiefer, an editor-organizer then employed by DL 91. In
late April or early May, as Romegialli has recalled it, but
more likely closer to mid-April, the staff met, without
Tracy, and discussed amongst themselves possible alter-
natives to and/or arguments that could be made against a
layoff in DL 91. The staff presented certain of such al-
ternative arguments to Tracy for his consideration.
Tracy in turn presented certain related positions to Inter-
national. International rejected Tracy's submissions.
The staff held a second meeting about 3 weeks after
the first meeting. They discussed still other alternatives,
this time chiefly probing possible local arrangements that
might be made to avoid a layoff, or its effect. They also
discussed various methods by which a required layoff
might be accomplished, including a suggestion the layoff
be in accordance with fewest votes received in the last
election, and a suggestion by Drosehn that it be on a
basis of overall seniority in DL 91 membership. Dro-
sehn's suggestion was rejected because LL 707, although
affiliated with DL 91 for about 10 years, had a history
(apparently) as a combination of a UAW union and an
independent machinist union before then. All of the
above (local) approaches were rejected by the majority
of the staff, and not presented to Tracy. However Rome-
gialli has asserted that the staff did discuss, and reach a
concensus thereon, that the layoff of ' the three dirs
should be effected on the basis of DL 91 seniority, which
was to be computed on the basis of date office effective.
Romegialli and Drosehn (amongst others) reported the
staff's above consensus to Tracy. Romegialli had no
recollection of a (staff) discussion about a dlr recall at
this time. However, Directing LR Tracy made initial
recommendation not only as to the layoff of Fleeting,
Gilbert, and Tenella on that basis, but also, albeit in a
limited respect, for a May 1984 recall of Fleeting. Tracy
made other recommendation for a maintenance of editor-
organizer Kiefer (and organizer lack Ferreira), though
Kiefer (and Ferreira) was (were) laid off (Ferreira appar-
ently by International) on 30 June 1983, along with the
three least senior dlrs, Fleeting, Gilbert, and Tinella.
Romegialli has relatedly testified that he knew of no
Constitutional or bylaws provision that would prevent
DL 91's Directing LR from making the determination.
In this case there are two decisional questions involved.
One relates to staffing (layoff and recall), and the other
to constitutional and DL 91 qualifications for an individ-
ual to run for office. The two questions apply to wholly
different issues.
In general Romegialli (and others similarly testifying)
corroborate Poulin that only the IP can interpret Inter-
national's constitution, with Romegialli adding as well,
that only the IP can interpret DL 91 bylaws. Romegialli
clarified that the DL 91 Directing LR could give an
opinion on DL 91 bylaws, but added, if challenged the
Directing LR would then seek IP clarification. There is
much convincing documentary evidence of IP (sole) in-
terpretation of the constitution and DL 91 bylaws in
regard to the matter of qualification requirements of indi-
viduals to run for elective dlr positions in the DL.
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The staffing (layoff-recall) considerations are however,
alone material to the issues under present addressment in
this section B. In that regard , and in substantial comport
with Poulin general testimony, the DL 91 bylaws, on
which Romegialli relies, rather clearly prescribe on their
face that there be a DL 91 executive board and Delegate
Body approval of a Directing LR's staffing action; and
Romegialli has in the end affirmed that Tracy made his
recommendations in accordance with DL 91 bylaws.
On 9 May 1983 Directing LR Tracy initially reported
to, and obtained DL 91 's executive board and Delegate
Body initial approval that there would be a prospective
layoff of three dlrs on the above basis , namely that Fleet-
ing, Gilbert, and Tinella would be laid off "on the basis
of seniority ." In the Delegate Body meeting, delegate
Forrester (who at the time was also a member of DL
91's executive board ) sought unsuccessfully to have the
selection of dlrs for layoff be based on the dlrs who had
received the fewest votes in the last election. This was
an approach considered by the staff itself, and rejected
by its majority ; and it was in any event rejected by the
Delegate Body . In making the above findings I have
relied on credible testimonial evidence of record inde-
pendently supporting same . I have placed no reliance on
Respondent 's Exhibits 7 and 8 (minutes of the executive
board and Delegate Body meetings of that date , respec-
tively) which otherwise were neither offered , nor re-
ceived in evidence . At this point the interrelation of
events becomes more factually complicated . Understand-
ing the chronology of events is critical.
5. The confluence and interplay in mid - 1983 of. a
DL 91 layoff of three dlrs, a P&W layoff of
employees, and the (initial) arbitration hearing on
P&W's 1982 discharge of Gilbert . Related
considerations of Gilbert 's unsuccessful initial
attempt to obtain an early DL 91 layoff;
background of Gilbert's alternative submission of a
(contested) conditional resignation as DL 91 dlr;
and LL 707's concurrent designation of Gilbert as
its third-shift safety representative reflecting a
Gilbert resignation as dlr, but with union
acceptance thereof conditioned on P&W's
acceptance of LL 707's safety representative
designation
a. DL 91 's and Gilbert 's first notice of impending DL
91 layoff of dlrs
It was (at least) in April 1983 that International had
notified DL 91 that International would cease funding
the 3 dlr positions effective 1 July 1983. Documentary
evidence , viz a Gilbert letter to Tracy dated 28 April
1983 confirms , inter alia, that Gilbert even at that time
was personally aware that he stood to be laid off effec-
tive 1 July 1983. Notably , Gilbert was not at that time
aware however, that a P&W layoff of employees was to
take place earlier on 3 June 1983 , because the P&W
layoff was not to be announced by P&W until the latter
part of May 1983 . (Neither was the related matter of a
LL 707 third-shift safety position appointment a matter
of moment until that time. ) Moreover , as of 28 April,
unlike the other dlrs to be laid off , Gilbert could person-
ally anticipate a return to P&W employment only if he
was successful in the presentation of his discharge griev-
ance in the upcoming arbitration that would commence
in May 1983.
b. Gilbert's effort to reconcile with Tracy
The April 1982 Tracy-Gilbert internal union charge-
countercharge was a matter of ongoing confrontation be-
tween Tracy and Gilbert. Their 1982 dispute had re-
mained unresolved through April 1983. No doubt partial
explanation of the delay in the internal union dispute's
resolution was occasioned by the circumstance that
Tracy had undergone open heart surgery in 1982. Tracy
did not return to work until March 1983. Even then he
did so only on a partial basis. Tracy would subsequently
undergo a very slow recuperative period. Tracy has tes-
tified relatedly that even after his return in March 1983
he was without much vitality; and that he had remained
under a doctor's care, with heavy medication being regu-
larly taken for pain and stress for a year. Indeed, Tracy
would retire on 30 April 1985 because of his ill health.
On 28 April 1983, Gilbert wrote a letter to Tracy sug-
gesting, with self-stated interest of promoting union har-
mony, that they each withdraw their respective charges
against each other. Both in this letter, and at hearing,
Gilbert has acknowledged it was Tracy's right as Direct-
ing LR to assign a specific dlr to a LL; and as well, that
a Directing LR may direct a distribution of a leaflet to
LL 707's membership without 707 LL consent. Gilbert
offered in at least partial explanation of his earlier deci-
sion (presumably referring to the decision to lock dlr
Fyles out of LL 707, deny him phone access, and ob-
struction in a timely distribution of a DL 91 leaflet to
LL 707's members) that certain personal problems may
have affected his decision (judgment) in the matter at the
time. Gilbert however firmly maintained in the same
letter that he was also motivated by the "private political
meetings with groups of LL 707's membership" that
Fyles had held; and Gilbert restated his own view that
LL (officers) should have (prior) knowledge of the con-
tent of a DL leaflet to be distributed in the LL, even if it
is to be distributed without LL consent.
Gilbert's explicitly stated concern in the letter howev-
er was as to the upcoming arbitration process on his own
discharge grievance. Gilbert stated clearly his employ-
ment predicament: "I currently stand to be laid off July
1st with no job to go back to unless my arbitration case
next month against P&W is successful." Gilbert then re-
vealingly stated a concern he held over a possibility that
unnecessary trial proceedings (to wit with Tracy),
"could jeopardize the outcome." Significantly Gilbert
testified (without apparent contradiction) that he was
pretty sure the above Tracy-Gilbert, charge-counter-
charge remained pending in the subsequent material
months of May-June 1983. There is no evidence to the
contrary. Despite the General Counsel's seeming desire
to downplay it, Gilbert's summary acknowledgment that
relations between Tracy and him were not friendly at
time of genesis of his dlr resignation would fairly, appear
to be understatement.
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
c. Initial notice to DL 91 and Gilbert of the
impending P& W layoff of employees, to be effective 3
June 1983 (Friday)
At this time Romegialli serviced LL 707 (North
Haven). Romegialli recalls that it was in the last week of
May 1983 that he first became aware of the impending
P&W layoff of employees scheduled for 3 June 1983.
Gilbert first learned of the prospective P&W layoff of
employees through a P&W public announcement made
but a few days to a week before the layoff, thus first
learning about it (essentially as did Romegialli) in (very)
late May 1983. (On the basis of weight of evidence, I
fmd, the announcement was probably made on either
Monday or Tuesday, 30 or 31 May 1983.)
Romegialli saw the P&W prospective layoff list for
North Haven. LL 707's Shop Chairman Gogliettino
began a review of the layoff list. Romegialli explains the
layoff affected employees with anywhere from 3 years to
18 years of seniority. The seniority issues were compli-
cated. (DL 91 apparently perceived a need to seek a
court clarification on certain related seniority issues
stemming from a 1960 strike.) Romegialli had personal
involvement with overseeing not only the layoff as it af-
fected LL 707's represented employees at the P&W
North Haven plant, but also (partially) as the layoff af-
fected LL 1746 A's represented employees at the P&W
Southington plant.
d. The arbitration hearing
Gilbert's name did not appear on the (North Haven)
layoff list ; and understandably so, because P&W current-
ly viewed Gilbert as a previously properly terminated
employee . Gilbert and LL 707 however, were actively
contesting Gilbert's discharge through grievances carried
to arbitration at this very moment. Attorney James Kes-
tell (and/or firm) was on general retainer by DL 91, and
engaged by LL 707 to handle Gilbert's and LL 707's
grievances on the 1982 discharge of Gilbert. These griev-
ances had already been partially presented by a member
of the firm in May 1983 before Arbitrator Alexander B.
Porter. The arbitration hearing was scheduled for a com-
pletion in early June, thus pending an imminent comple-
tion when the P&W layoff was first publicly announced.
e. The events of 1-3 June 1983
The record is somewhat confused as to the precise
chronology and/or interrelationship of certain material
events that, in the main , I have no doubt occurred in the
compacted period of 1 -3 June 1983 . Certain of Gilbert's
recollections were (at least) not firm and convincing, if
not simply on their face inconsistent. However, there
were similar inconsistencies raised in the accounts of
other involved union officers . I have carefully consid-
ered the accounts of all witnesses testifying in these re-
spects, with purpose to discern where the weight of the
more credible testimony lies, particularly on the matters
which carry over more material significance to related
later (recall/election) events in 1985 . I have considered
as well inherent probabilities and internal inconsistencies
that reasonably appear from the more readily established
facts. In the latter regard I have given particular weight
361
to the clearly apparent circumstances that time was of
the essence, and that the Gilbert and Tracy relationship
(at best) had remained a strained one. Where other spe-
cial observation is deemed warranted, it is noted. Ac-
cordingly, I now conclude and fmd that the following
appears as the most likely order of the events that oc-
curred during these material days, which led to a Gilbert
submitted letter of resignation, the nature and the effect
of which is in central issue.
By contract, stewards and safety representatives carry
superseniority protection for purposes of layoff. At this
time LL 707 member Wayne Cavanaugh was both a
steward and a third-shift safety representative at P&W's
North Haven facility. Each such union position carried
superseniority. Cavanaugh had no need to occupy both
(protected) union positions to preserve his own ennploy-
ment status in a layoff under the terms of the contract.
No currently employed employee could lay claim to a
LL 707 designation (as safety representative) as a matter
of explicitly stated contract right. To the contrary, by
explicit contract term, LL 707 alone had the right to des-
ignated the individual of its choice to occupy any (then)
opening, or to be abandoned safety representative posi-
tion. LL 707's designatee however, had to be an active
P&W employee. It is uncontested that (at this time) LL
707's president filled safety representative positions. (By
subsequent LL 707 bylaw amendment, and seemingly as
an outgrowth of the very difficulties for all being de-
scribed herein, a safety representative position is now
filled by a LL 707 election, notably however, still not by
seniority.) The instant dilemma arose from the following
circumstances.
On (I find) 1 June 1983, shop chairman Gogliettino,
who was at the time engaged in a review of the layoff
list and related seniority issues, advised Gilbert that there
was a possibility of a vacancy in the position of third-
shift safety representative at North Haven. Although
Gilbert's recollection in respect to source of that notice
appears of record as tentative, in that Gilbert has testi-
fied only that Gogliettino may have been the one to have
advised Gilbert of the possible opening, Gilbert's assert-
ed recollection in that respect is, both plausible, and
stands uncontradicted. The record establishes that Gog-
liettino was currently active in reviewing the layoff lists;
and Gogliettino has not testified at all in this proceeding.
Thus Gilbert's recollection, even though tentative, is
congruous with other facts of record. Accordingly I find
LL 707's shop chairman did advise Gilbert, probably on
1 June 1983 (Wednesday), that there was a possibility of
a vacancy occurring in a third-shift safety representative
at North' Haven. P&W's layoff was to takeplace on 3
June 1983 (Friday).
It is centrally undisputed that to be returned to active
employee status with P&W, Gilbert had to win his dis-
charge grievance in arbitration. Even if he did so howev-
er, the interim P&W layoff would adversely affect a
return of Gilbert to actual P&W employment because
Gilbert did not have enough seniority to avoid the 3
June 1983 P&W layoff. Even if successful in his arbitra-
tion proceeding, to be able to obtain an actual return to
employment, Gilbert had to be in position to avoid the
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
layoff of 3 June 1983. Thus from Gilbert's vantage point
he could only do so if he occupied a position of super-
seniority; and he had to occupy such position before the
3 June layoff, for the LL 707 designation to be effective.
In short , Gilbert had to be designated by LL 707 as its
third-shift safety representative before the end of the
day, (as Gilbert relates) 3 June 1983 (Friday), if not earli-
er 2 June 1983. In either event, time was clearly of the
essence.
It is undisputed that Gilbert met with Attorney Kes-
tell. It is unclear of record whether this meeting was a
meeting previously scheduled in final preparation for the
imminent completion of the arbitration hearing, or had
been but recently arranged by Gilbert upon learning of
the possible third-shift safety opening . In either event,
Gilbert on this occasion promptly brought to Attorney
Kestell's attention that there was the possibility of a third-
shift safety representative opening at North Haven.
Gilbert acknowledged that it was possible, indeed
likely, that Kestell had advised Gilbert that Gilbert
couldn't simultaneously hold both positions (DL 91 dlr
and LL 707 safety representative). Gilbert however as-
serted that he thought that the latter Kestell advice had
occurred because someone else in the organization had
first told him that he could not hold dual union positions
whereas he had at first thought he could. Gilbert had ini-
tially attributed the statement to Tracy in a (second) con-
versation recalled held between Gilbert and Tracy in
Tracy's office. Gilbert then recalled it was a result of
Tracy making such statement that Gilbert had then asked
Tracy for an early layoff. But Gilbert had also previous-
ly related that in an initial and prior conversation with
Tracy over the phone he had then asked for an early
layoff. Tracy testimony does not appear to address cir-
cumstance of an earlier phone call from Gilbert, but con-
firms there was a heated discussion between them in his
office in the afternoon of 2 June 1983 in which Gilbert
first sought an early layoff. Gilbert had additional recol-
lection that the office conversation with Tracy was
either on the day following the phone conversation, or
the same day, but he also thought in the afternoon.
Gilbert (I find) essentially acknowledged, after review
of prior affidavit, that attorney Kestell had advised Gil-
bert that it would help Gilbert's position in the arbitra-
tion proceeding to be appointed as third-shift safety rep-
resentative by LL 707 before the conclusion of Gilbert's
arbitration hearing; that Gilbert could not hold both po-
sitions at the same time; that it would be necessary for
Gilbert to remove himself in one way or another as dlr
before being appointed LL 707's third-shift safety repre-
sentative; and that he then went to Tracy and asked for
an early layoff.
In the end, I am persuaded by the weight of credible
evidence that there were two conversations between Gil-
bert and Tracy; the first over the phone, and the second
in Tracy's office, and that both conversations of Gilbert
with Tracy occurred on the same day (I find) 2 June
1983, and that they more likely both occurred after Gil-
bert had first already spoken to Kestell about the safety
representative opening . I further find the call to Tracy
was likely placed after Kestell had already spoken to
others, namely Romegialli and Gogliettino, and made ar-
rangements for LL 707's timely designation of Gilbert,
with Gogliettino.
Given the strained relationship that continued to exist
between Tracy and Gilbert, and given that it was readily
apparent to Gilbert that time would be of the essence in
the matter, I do not believe that Gilbert would have
broached the matter of a possibility of a LL 707 designa-
tion of Gilbert as its third-shift safety representative ini-
tially with Tracy, rather than promptly bring it to the at-
tention of Attorney Kestell. A call to Tracy thereafter
would appear the more plausible on that account alone.
Moreover, Gilbert's recollection otherwise was one of
informing Tracy in the phone conversation that LL 707
was offering him a superseniority position. Gilbert also
testified specifically that he did not ask Tracy for early
layoff before he knew he was going to be designated. It
seems inherently likely as corollary of that credited
recollection, that Gilbert spoke to Tracy over the phone
only after Kestell had communications first with Rome-
gialli, and then with Gogliettino, through whom the ar-
rangements were eventually made for a LL 707 designa-
tion by acting President Nixon, infra.
Romegialli has testified relatedly (at least initially) that
in the morning of 2 June 1983 he received a call from
Attorney Kestell and Gilbert. Kestell told Romegialli to
talk to LL 707, and get Gilbert appointed as LL 707's
safety representative, because the appointment would
have a bearing on the outcome of Gilbert's termination
grievance, if Gilbert was returned to work. Kestell
wanted Romegialli to accept a related letter (to be dic-
tated) over the phone.
Significantly Romegialli testified that he at this time
disagreed with Kestell; and he also declined to take a
Kestell (dictated) letter over the phone. According to
Romegialli, during their conversation Kestell asked for
Romegialli's reasons . Romegialli has testified that he told
Kestell that it was his best belief that to accept [sic] Gil-
bert as safety representative at that time was preferential
treatment; that LL 707 would be open to a charge from
another employee of the Company; and he did not want
to be a party to it. Romegialli ' relates that he also re-
minded Kestell of a recalled similar circumstance in the
past where Romegialli had desired to appoint as steward
an individual who had been a steward 2 years earlier;
and that Kestell had effectively prevented Romegialli
from doing so, telling Romegialli at the time that it was
"preferential treatment." Romegialli relates that he then
told Kestell, "You told me I can't do it here [sic], and
now you are demanding I do it now. I am not going to
be part of it. If you want to talk to someone, you talk to
Gogliettino and Nixon."
In passing I note Gilbert has testified credibly that
only LL 707's President (then) Nilson, could make the
appointment of safety representative; and Gilbert was
firm in recollection that Nixon was (then) vice president.
Gilbert acknowledged otherwise that the vice president
was in charge or correspondence to P&W. However,
Gilbert recalled that there was a time when Nilson was
not there, and Nixon had acted as president; and it could
have been and (I find) was so, at this (brief) time. More-
over, Gilbert has' clearly testified that Nixon was acting
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
as president in sending the safety representative designa-
tion discussed infra. There is no contention by Union to
the contrary. I find Romegialli's suggestion that Kestell
talk to Gogliettino and Nixon, appears the more plausi-
ble. I further find that Kestell did talk to Gogliettino and
the arrangement was made through Gogliettino.
Romegialli subsequently related that he did not receive
a phone call from Gilbert, but that earlier that morning
Gilbert came into LL 707's hall to see Romegialli; and
that they had a very brief discussion. It is Romegialli's
stated recollection that on this occasion Gilbert told Ro-
megialli that he was resigning his position as dlr effective 2
June 1983, and that he would like to be considered for
appointment by LL 707 as its third-shift safety represent-
ative. Romegialli asserts that Gilbert had then asked Ro-
megialli to speak to LL 707's Shop Chairman Gogliet-
tino, President Nilson and Vice President Nixon about
the designation. Romegialli asserts that he told Gilbert at
the time that he thought Gilbert was crazy for giving up
his dlr position. Gilbert had initially testified that the
only time he said he resigned was to Tracy. On rebuttal
Gilbert testified that he had no recollection of ever tell-
ing Romegialli that he resigned; and that he had no
recollection of Romegialli ever speaking to him negative-
ly about the procedure. Romegialli acknowledged that
Gilbert never told Romegialli it was a conditional resig-
nation.
There is substantial inconsistency between Romegialli's
recall of a Gilbert statement of resignation to him as
made in the morning of 2 June 1983 and Gilbert and
Tracy mutual account of a confrontational conversation
that afternoon in which Gilbert vigorously first sought
an early layoff by DL 91 before, upon 'Tracy refusal,
Gilbert heatedly said he would resign . Romegialli's as-
serted recollection of a Gilbert stated resignation earlier
that morning is not internally consistent, and it is not
credited. Notably, Romegialli would have been fully
aware that same day of the content of a letter prepared
for Nixon's signature, next discussed, which refers to a
Gilbert resignation , but also a union conditional accept-
ance.
Asserting credibly (otherwise) that it was a result of
attorney Kestell's call during the morning of 2 June
1983, Romegialli testified that he then talked to LL 707's
shop chairman Gogliettino who was at work, but sched-
uled to come to the hall at 11 a.m. to finish his review of
the P&W layoff list. Romegialli relates that when Gog-
liettino arrived at LL 707's hall, Romegialli placed a call
to attorney Kestell, and Gogliettino then spoke directly
to Kestell. Romegialli recalled that it was later in the
afternoon of the same day that Gogliettino brought back
to LL 707's hall the typed letter that had been prepared
for Vice President Nixon's signature.
The letter thus prepared for Nixon' s signature is dated
2 June 1983. It is addressed to D. A. Telesca, P&W per-
sonnel manager . Insofar as pertinent it provides:
This is to notify you that Local Lodge 707 has
removed Wayne Cavanaugh, clock No. 261678,
dept. 2666, as third shift Safety Representative, ef-
fective immediately and in his place has designated
363
Wayne A. Gilbert -clock No. 244646, as third shift
Safety Representative, effective immediately.
Mr. Gilbert has submitted his resignation as
Labor Representative effective immediately. Ac-
cepted conditioned only upon your written accept-
ance and acknowledgment of him as Local Lodge
707's third shift Safety Representative.
Romegialli, upon his review of this letter (alone) could
have reasonably concluded at this time that Gilbert had
submitted an (unqualified) resignation, that was however
yet to be accepted by the Union.
i. LL 707 designation of Gilbert as safety
representative
When Gilbert resigned as LL 707 president on 30 July
1982 to become DL 91 dlr on 1 August 1982, (then) Vice
President Nilson became president. Nixon testified that
he was initially appointed vice president (presumably by
Nilson); and thereafter elected vice president in October
1982. Nixon also recalled that Nilson wanted Gilbert re-
assigned from LL 707 because Nilson felt Gilbert was
making decisions without consulting Nilson. Nixon con-
firms he was vice president in June 1983. Nixon asserts
there was no friction at this time between Nixon and Gil-
bert.
Nixon testified that on 2 June 1983 he was working at
P&W's North Haven plant when he received a notice
through P&W's personnel (office) that he was to call LL
707's office. Nixon recalled that the call was' in regard to
putting Gilbert on as health and safety representative.
Shop Chairman Gogliettino and dlr Romegialli told
Nixon they'd explain when Nixon got to the hall. Nixon
asserts that when Nixon arrived at the hall, they (Rome-
gialli and Gogliettino) told Nixon that they were going
to put Gilbert on as health and safety representative.
At hearing Nixon has asserted that he immediately op-
posed LL 707's designation of Gilbert as safety represent-
ative because there was a layoff coming and (he felt) it
was not morally right. According to Nixon, Romegialli
and Gogliettino' told Nixon at the time that they had
talked to Attorney Kestell; and that the language was al-
ready typed up. (Gilbert confirmed the Nixon letter was
authored in all or part by Kestell.) Nixon relates that Ro-
megialli and Gogliettino told Nixon, "We have to show
we are backing Mr. Gilbert by signing this letter." Nixon
asserts he signed the letter under protest. Romegialli has
confirmed (but only generally) that Nixon was initially
reluctant to sign the letter, but after some further discus-
sion Nixon signed it.
Nixon has essentially asserted that he signed the desig-
nation of Gilbert as LL 707's safety representative only
under protest. In contrast with the letter which designat-
ed Gilbert as LL 707 safety representative, prepared by
LL, 707's attorney, and signed by Nixon, there is no
formal record or documentation of a Nixon protest,
indeed no documentation of any type at all proffered to
support Nixon present assertion of having made objec-
tion to LL 707 's appointment of Gilbert at the time.
Moreover it is warranted to observe that the first docu-
mentary evidence indicating 'any LL 707 concern in the
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
area of its own designation of Gilbert as safety represent-
ative in respect to its potential effect on another employ-
ee, does not surface until some 4 months later, in early
October 1983. It occurs then only after Gilbert and LL
707 have obtained a favorable award from arbitration,
and after a dispute has developed between LL 707 and
P&W specifically with regard to a LL 707 contention
that P&W has failed to fully comply with the arbitrator's
award, infra . It arises in context of an additionally filed
noncompliance grievance , and a question whether LL
707 should press beyond LL grievance steps already held
on the (noncompliance) grievance, and at level and time
of DL 91 dlr Romegialli presentment . There is much
warrant to question whether Nixon protested the desig-
nation of Gilbert at the time , let alone for the reason he
now asserts.
The versions of Romegialli and Nixon on close analy-
sis independently appear strained, if not inconsistent.
Nixon's version is essentially a portrayal of Romegialli
and Gogliettino as both urging that Nixon do something
that Nixon thought was morally wrong and that he did
not want to do . Nixon has not based his reluctance on
lack of his own authority. Indeed Union does not contest
the fact that Nixon made the designation with authority
as acting president. Surely as vice president, let alone as
acting president, Shop Chairman Gogliettino had no au-
thority over Nixon to direct Nixon to designate Gilbert
as LL 707's safety representative, if Nixon truly did not
wish to do so at the time. Nixon testimony also has Ro-
megialli pressing Nixon to designate Gilbert over Nixon's
own judgment , and the record contains Romegialli's con-
trary assertion that he earlier had refused to be any part
of it. Nixon testimony effectively portrays Romegialli as
urging Nixon to do exactly what Romegialli asserted he
personally wanted to have no active part in. Neither
Gogliettino or Nilson have testified, and thus do not cor-
roborate Nixon, and Romegialli does at best , only gener-
ally. This is not very convincing testimony; and I do not
credit it. Rather I find that Gilbert at that time was LL
707's choice as its third-shift safety representative posi-
tion, just as the designation letter that Nixon has signed
at the time states plainly on its face.
Weight of evidence also convinces me that it was after
Kestell conversation with Gogliettino that Gilbert first
called Tracy on the phone; and (I find) it likely that on
that occasion Gilbert first informed Tracy that LL 707
was offering him a super seniority position in the North
Haven facility. Whether at this time Gilbert (still)
thought he could hold both positions, and it was Tracy
who first informed Gilbert (over the phone) he couldn't
(and Kestell then confirmed it) or someone else had ear-
lier (e.g., Attorney Kestell and/or Gogliettino) is not sig-
nificant. What is significant is that Gilbert in this phone
conversation (I find) asked Tracy for an early layoff and
Tracy said he would not approve that; he did not think
it was fair. The record is silent as to communication be-
tween Romegialli and Tracy, or vice-versa, though such
is surely likely at some point.
Gilbert subsequently visited with Tracy in Tracy's
office (I find) that very afternoon and discussed the
matter further. I do not credit Gilbert's recollection to
the extent it portrays this subsequent face-to-face conver-
sation with Tracy as being only incidental to a Gilbert
visit to district headquarters made for some other pur-
pose. Rather under the total circumstances I find Gil-
bert's visit to district headquarters was with paramount
purpose to press Tracy further; to try to persuade Tracy
to allow an early layoff; and I find Tracy's version of the
driven nature of Gilbert's arrival at the office to engage
Tracy in such a conversation, is also the more plausible,
even with an allowance made for the nature of their con-
tinued strained relationship in his account.
Tracy thus testified that Gilbert came busting into
Tracy's office in a very arrogant manner, without an ap-
pointment. Tracy acknowledged that usually the door to
his office is open; that his was a fairly informal office;
that dlrs regularly just walk in; but when his door is
closed for business, dlrs (first) knock. Tracy testified that
on this occasion his door was closed , and Gilbert
"busted in."
Initially Tracy's version of Gilbert's conversation re-
counted details only of a flat Gilbert resignation , namely:
that Gilbert had resigned; there were no conditions
stated by Gilbert at the time; that Gilbert demanded
Tracy accept Gilbert's resignation; and that Tracy insist-
ed the resignation be in writing.
Upon further examination however, Tracy soon re-
vealed that Gilbert was very upset at the time; and that
Gilbert told Tracy that Tracy had an obligation to help
Gilbert fight the Company. Moreover, Tracy very sig-
nificantly confirmed that Gilbert first demanded that
Tracy lay Gilbert off early on 2 June 1983 because Gilbert
wanted to go back to work for the Company. Gilbert
also told Tracy that LL 707 was in process of appointing
Gilbert as its safety representative on third shift. Gilbert
told Tracy that he needed the job; that he was having
family problems ; and that if LL 707 succeeded in ap-
pointing Gilbert as its third-shift safety representative,
Gilbert would have his job on third shift.
To the extent other Tracy testimony reflects that Gil-
bert said' that he would have the job at the expense of
someone else being laid off, I do not credit such a state-
ment as attributed to Gilbert, but rather view it as Tracy
asserted summary of Tracy's own view of Gilbert 's argu-
ments made to Tracy. Moreover, I credit Gilbert as to
the points he attempted to first make to Tracy for
Tracy's grant of an early layoff by DL 91. Thus I credit
Gilbert testimony that he was only asking that Directing
LR Tracy expedite, or push up the date of Gilbert's
layoff by DL 91; and that he informed Tracy that he had
spoken to Attorney Kestell and the LL 707 shop chairman
about it. (Both the phone call and meeting with Tracy
were after Kestell made the arrangements with Gogliet-
tino .) Gilbert account has Tracy again say he was not in
favor of an early layoff; and that he didn't think it was
fair.
Gilbert next argued to Tracy that union representa-
tives are protected by superseniority all the time, espe-
cially union representatives who have put in a lot of DL
or LL service; and that it was nothing out of the ordi-
nary . (It was out of the ordinary in one sense; this open-
ing and appointment were occurring only after a publicly
announced P&W layoff.) Gilbert has Tracy say that even
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 365
if Gilbert got the (LL 707) appointment to safety repre-
sentative, Gilbert would not have it, because Gilbert
could not hold the two positions at the same time, it was
contrary to policy. (Romegialli has testified that neither
he, or any dlr has inplant visition rights; and, that since
1974 the Union has been unsuccessful in seeking to
obtain such rights in negotiations. Poulin has testified it
would be very unusual if P&W were to allow a dlr to
function as a safety representative in the plant; and P&W
was very rigid on LOA.)
Gilbert's version is that Tracy first told Gilbert that
Gilbert would have to resign (as dlr) before he could be
(LL 707's) safety representative. Gilbert has testified that
it was at that point that he very heatedly told Tracy that
if that was the only way to secure his employment and
protect his family, that Tracy would have a resignation.
According to Gilbert, Tracy then told Gilbert to put it
(the resignation) in writing; and that he was not going to
accept the resignation, unless it was put in writing. Gilbert
acknowledged that he was very upset at the time, ex-
plaining that all the arrangements had to be made by 3
June 1983.
In regard to Gilbert 's assertion of a heated conversa-
tion, I also credit Tracy that in the conversation Tracy
had with Gilbert in Tracy's office that afternoon, and (I
find) very likely on occasion when Tracy reaffirmed
(with finality) to Gilbert that Tracy would not layoff
Gilbert early, that Gilbert proceeded to call Tracy all
kinds of names, including telling Tracy that Tracy was a
"no-good son-of-a-bitch"; that he (Gilbert) was trying to
get back to work with the Company; and that Tracy was
more concerned about the "g--damn Company." Tracy's
version otherwise summarized that Gilbert tore Tracy up
one side, and down the other; that Gilbert was in a com-
plete rage; and that Gilbert acted like a maniac. Tracy
confirms that he then told Gilbert that the only thing Tracy
would accept from Gilbert was a resignation ; that Gilbert
was to give it to Tracy in writing; and that Gilbert should
get the hell out of his office.
Tracy relates that he (Tracy) was also very upset; and
that he was upset (with Gilbert) because he didn't think
it was proper to have a more senior employee,laid off
from the Company. At hearing Tracy stressed that this
was not instance where Gilbert would receive the ap-
pointment (as LL 707's safety representative), and it
would not impact on another employee. Tracy has testi-
fied unequivocally that if Gilbert was appointed as third-
shift safety representative, Gilbert would be responsible
for the layoff of another employee who was more senior
to Gilbert. At hearing Tracy essentially asserts he re-
fused to lay Gilbert off early for that reason. However,
Tracy then went on to relate (wholly unconvincingly)
that he made it very clear to Gilbert that Tracy had
been instructed by the International that the layoff
would take effect on 1 July 1983. Tracy's forcing of Gil-
bert to submit a letter of resignation is not charged (then,
or now) as an independent unfair labor practice. Howev-
er, discernment of the effects of the resignation as first
heatedly stated, and then as submitted are material.
International did not direct a layoff at all. But even
more to the point, it is difficult to envision how an early
layoff of Gilbert would have detracted from Internation-
al's directive on cessation of funding support for 3 dlrs in
DL 91 on 1 July 1983, which was with clear purpose to
reduce Union's expenses in the first place. Put simply, an
earlier layoff of Gilbert would have certainly been com-
patible with that 'purpose. Tracy unquestionably had
other purpose in mind that he intended to be served in
refusing Gilbert's request for an early layoff, other than
the proffered distorted preservation of International di-
rective that a reduction in staffing expenses be effective
on 1 July 1983.
With such an unconvincing, if not false reason being
thus clearly advanced as part of the proffered explana-
tion, warrant clearly arises to question even more basi-
cally whether Tracy's real purpose in his refusal of Gil-
bert's requestfor early layoff was, as stated , the concern
Tracy asserts he held that a LL 707 designation of Gil-
bert as its safety representative would result in a layoff
of a more senior employee at North Haven, or, whether
Tracy refused early layoff of Gilbert, for another and
clearly not as justifiable a reason, namely to take advan-
tage of an opportunity that seemed to have presented
itself to Tracy, whereby Tracy might effectively rid him-
self of Gilbert (as a dlr), who had earlier proven to be,
and continued as an unresolved antagonist to Tracy's ex-
ercise of Directing LR authority. In any event (1 find)
Tracy effectively forced Gilbert into a choice of resigna-
tion of his dlr status , by denial of Gilbert's request for an
early layoff. In that respect, it would appear warranted
to note once again Judge Learned Hand's oft-quoted ob-
servation in assessing matters of motive, viz that, ".. .
nothing is more difficult than to disentangle the motives
of another's conduct-motives frequently unknown even
to the actor himself." Universal Camera Corp., 190 F.2d
429, 431 (1951).
There is otherwise quite considerable support of
record for the presence of the latter as Tracey' s opera-
tive motivation, not the least of which is the circum-
stance that it is LL 707's province, through contractual
authority, to designate the individual ' of its choice as its
safety representative; and that it does not, even now, do
so on the basis of seniority. Tracy has thus otherwise
collectively testified to his awareness of essentially all of
the attendant circumstances. Thus Tracy knew P&W had
terminated Gilbert a year ago; that LL 707 had not ac-
cepted P&W's termination of Gilbert who at the time of
termination was its president; that LL 707 (as well as
Gilbert) for a long time, and presently, was vigorously
fighting to clear Gilbert's (employment) record of that
termination, and to get Gilbert, reinstated; that in that re-
spect, LL 707 was seeking payment of full backpay and
benefits; that (although) backpay would not be applicable
during a LOA period, P&W had denied DL 91's earlier
request to put Gilbert on LOA, and did so on the same
basis, that Gilbert was not an employee; that Gilbert and
LL 707 grievance(s) seeking reinstatement was (were)
currently being arbitrated; and that the arbitrator had not
as yet rendered a decision. Tracy additionally knew that
DL 91 was going to lay Gilbert' off as dlr very shortly
thereafter, effective 1 July 1983; that P&W had only
very recently announced that its own layoff of employ-
ees would take place in the interim on 3 June 1983; that
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gilbert would be effected in the P&W layoff of employ-
ees at North Haven unless prior to the time of the P&W
layoff on 3 June 1983, Gilbert occupied a superseniority
position, such as LL 707's safety representative; that
there was a third-shift safety representive position (effec-
tively opening) at the North Haven plant (for someone)
at this time; that LL 707 had a contractual right to desig-
nate an active P&W employee of LL 707's choice to
serve as its third-shift safety representative; that LL 707
intended to designate Gilbert as its third-shift safety rep-
resentative, and (although) P&W did not presently rec-
ognize Gilbert as an active employee, LL 707' s success-
ful arbitration of the related Gilbert discharge
grievance(s), together with an arbitrator's directed rein-
statement , would effectively change Gilbert's terminated
status to that of an active employee status , and do so
timely, thus back to 30 June 1982; that LL 707 present
intention was to timely designate Gilbert as its third-shift
safety representative, before P&W's layoff of employees
was effected on 3 June 1983; and that LL 707 intended
to thereafter press for Gilbert's actual return to employ-
ment, and for his service as its designated 3rd shift party
representative; that P&W had never extended LOA
status to Gilbert; that the only thing that would hold up
or prevent an effective LL 707 designation of Gilbert as
its third-shift safety representative was'that by longstand-
ing practice and custom, P&W would not recognize a
DL 91 employed dlr as a P&W active employee whom
LL 707 could designate as its safety representative; and
thus, that designation by LL 707 of Gilbert to be its
third-shift safety representative, to be effective, could
only be made if Gilbert were not actively employed by
DL 91 as a dlr on or before 3 June 1983, which in turn
could only be accomplished by either DL 91's earlier
layoff of Gilbert from the dlr position, or, by Gilbert's
own earlier resignation from that position.
Tinella subsequently returned to employment at P&W
without resigning his dlr status, upon release from LOA
status. At this time P&W LOA status was not a problem
for Gilbert since P & W had not placed Gilbert on LOA
when DL 91 had requested it, because P&W viewed Gil-
bert as a properly terminated employee. Moreover, the
record reveals that Tracy has, at different times, made a
number of tenure accommodations/arrangements to assist
other dlrs and staff members , but most notably for Tin-
ella. The arrangement made for pension vesting has been
earlier noted. Even more significantly, after Tinella was
laid off by DL 91 on 30 June 1983, Tinella obtained em-
ployment with P&W, with an assistance from Tracy,
who was successful in requesting that P&W release Tin-
ella from the earlier grant of LOA status to serve as dlr.
Called as a witness by the General Counsel Tinella con-
firmed that he returned to work at P&W's Southington
plant as a grinder shortly after his layoff on 1 July 1983.
Moreover, Tinella thereafter held various union posi-
tions, including serving as (alternate) delegate to DL 91.
In contrast with Gilbert, Tinella acknowledged that no
DL 91 official had asked Tinella to resign his dlr position
from which he was laid off- and Tracy confirmed that Tin-
ella was not required to do so. Tracy also confirmed that
he (Tracy) was instrumental in getting P&W to release
Tinella from the (contractually) granted LOA status that
extended through 30 April 1986, so that Tinella could go
back to work for P&W.
Tracy has offered accurate , but not wholly explanato-
ry distinction that Tinella did not have Gilbert' s (non-
employee) problem with P&W. E.g., Tracy's proffered
explanation does not address the circumstance that Tin-
ella was not required to resign his laid-off dlr status.
P&W viewed Tinella's position different than Gilbert's
not on dlr layoff status, but on the basis that a release of
Tinella from LOA status did not adversely impact on
any (then) P&W Southington laid-off employees. In
other words, Tinella had more seniority than Southing-
ton employees then on layoff. It was otherwise with Gil-
bert. After Arbitrator Porter ordered Gilbert's reinstate-
ment, P&W extended (only) dlr LOA status to Gilbert
(though Gilbert by then was on DL 91 layoff) but re-
fused to extend recognition to Gilbert as a LL 707 timely
designated safety representative, to be discussed further
infra. What in the end is notable of the Tinella P&W em-
ployment from DL 91 vantage point, and Tracy's part in
it, is that neither Tracy or DL 91 required Tinella to
resign his (laid-off) dlr status either to obtain P&W em-
ployment, nor after Tinella later occupied LL union
position(s). There is thus strong evidence to indicate that
Tracy had at least dual motive, including motive to force
Gilbert into a resignation, if Gilbert was to pursue LL
safety representative position.
However, whatever Tracy's real motivation was in
forcing an initial choice upon Gilbert of a resignation,
Tracy's initial acceptance of the conditional resignation
submitted in writing by Gilbert is wholly consistent with
DL 91's subsequent retention of Gilbert in DL 91
employ until 1 July 1983. The fact is, Tracy did not
accept Gilbert's initial resignation when first orally stated.
Tracy's subsequent acceptance of an earlier orally stated
Gilbert resignation was effectively thwarted by a combi-
nation of the additional circumstances that Gilbert's res-
ignation, as subsequently tendered in writing, after discus-
sion with Kestell, was submitted with a clear condition
precedent (next discussed). (That condition would remain
unmet with P&W's steadfast refusal to recognize LL
707's designation of Gilbert as its third-shift safety repre-
sentative (even in Settlement Agreement, infra).
(b) Gilberts written submission of a clearly
conditional resignation
Tracy confirmed that Gilbert told Tracy that Tracy
would have Gilbert's resignation in writing. Tracy be-
lieved that Gilbert had told Tracy that Tracy would
have it the following day, though Tracy acknowledged
the letter may have been delivered to his office later the
same day (2 June 1983). Tracy explained that after Gil-
bert left the office, Tracy was personally so upset by
Gilbert's visit that Tracy had to leave the office. Webber
testified that at this time Tracy, who had come back ear-
lier than he had to, was still very ill. DL 91 did not at
this time have the assistance of a glr (Almeida). Webber
(then) a dlr, also served as Tracy's assistant . Webber tes-
tified that she was there when Gilbert came in. Webber
corroborates (generally) that she heard Gilbert say he re-
signed. However, though Webber has testified that she
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
performed some of Tracy's duties, including handling
some of Tracy's mail, Webber testified she was not aware
of Gilbert's actual letter of resignation, until much later,
discussed infra. Weight of credible evidence convinces
me that Gilbert's letter or resignation was hand-deliv-
ered, and placed on Tracy's desk the next day, 3 June
1983. I further conclude and find that Tracy likely re-
viewed the Gilbert letter of resignation that day. Thus
Tracy recalled that he saw the letter from Gilbert (with-
out envelope) in the middle of his desk; and he believed
he looked at the letter at the time. I have no doubt
Tracy was fully aware of its content at that time. Gil-
bert's letter to Tracy dated 3 June 1983, provides:
I am requesting that my layoff as a Labor Repre-
sentative be effective June 2, 1983 contingent upon
the outcome of my current grievance arbitration
case and the Company's acceptance of the Union's
appointment of myself to Safety Representative.
If it is absolutely necessary I will resign my posi-
tion as Labor Representative contingent again, upon
the conditions above with the same effective date.
My family and myself trust that you and your
office will do everything in your power to protect
my job seniority against this union busting corpora-
tion.
Gilbert testified that after discussion with Attorney
Kestell, this letter was jointly authored by Kestell and
'Gilbert, though apparently initially drafted in longhand,
and later actually typed in DL 91's office. The Gilbert
letter reflects that it was hand-delivered, and that a copy
was also provided to Mel Tripp (then) DL 91 president.
Tripp did not testify; and thus DL 91 has not denied im-
mediate receipt of the letter. There can be no question
that responsible DL 91 officials were immediately aware
of Gilbert's resignation, and its terms, on or shortly after
3 June 1983.
It is the General Counsel's and Gilbert's position that
the above letter of resignation as submitted was clearly
conditional, and that the resignation was never effectuat-
ed because the stated required precondition, namely Em-
ployer's recognition, of LL 707's designation of Gilbert
as safety representative has never occurred. Gilbert has
also testified that he never tended any other resignation.
Gilbert testified relatedly that he has never thereafter
served as third-shift safety representative at P&W's
North Haven facility, nor has he ever been recalled as
DL 91 dlr.
P&W's personnel manager Telesca replied immediately
to Nixon by letter of 3 June 1983, pertinently:
Article XXVI, Section 1, of our current labor
agreement provides that "Union safety representa-
tives shall be active employees of the compnay
[sic]." Mr. Gilbert is not an active employee of the
company, and, therefore, he is not eligible to act as
a safety representative and the company will not
recognize him in that capacity.
It is apparent therefrom that P&W immediately denied
the LL 707 safety representative designation of Gilbert
367
at that time, solely because Gilbert was deemed a not
active (properly terminated) P&W employee.
The record establishes clearly that neither Tracy, or
DL 91 actually implemented Gilbert's resignation as ef-
fective on either 2 or 3 June 1983. The General Counsel
submits additional documentary evidence (G.C. Exh. 8)
that firstly establishes that on Monday, 13 June 1983,
thus well after Tracy's and DL 91's receipt and review
of Gilbert's submitted written letter of resignation, Di-
recting LR Tracy then recommended for approval of
DL 91's Executive Board and Delegate Body, inter alia,
that:
4. Regretfully Labor Reps. Gilbert, Tinella and
Robert Fleeting be laid off on June 30, 1983 (mid-
night).
5. Suggest District 91 Fund Raisers in hopes of
recalling those laid off representatives.
The General Counsel also documentarily established that
DL 91 subsequently submitted a form to the State which
reports: (a) Gilbert's last day worked as 30 June 1983; and
(b) reflects the reason assigned for Gilbert's unemploy-
ment as being a reduction in employment caused by
International layoff. Equally significant, a block on the
same form entitled "voluntarily leaving" is left blank. To
extent Tracy has sought at hearing to explain away these
contemporaneous business entries, inter alia, with specific
claim now advanced that Tracy at the time had only
wanted to ensure that Gilbert would be able to, receive
unemployment compensation, I find all such assertions
simply wholly unconvincing. The General Counsel
would additionally rely on a certain written stipulation
(G.C. Exh. 16) entered by the same parties when appear-
ing before ALJ Lawrence in hearing held on 15 Novem-
ber 1984, namely that, "9. On or about July 1, 1983, Gil-
bert was laid off from his position as a labor representa-
tive with District 91."
Preliminary analysis
In the end, whatever may have been Tracy's real moti-
vation in refusing an early layoff to Gilbert, he stated a
willingness to only accept a written resignation from Gil-
bert. Thus regardless of the circumstance that Gilbert ap-
pears to have first orally stated (albeit clearly heatedly
and reluctantly) resignation on 2 June 1983 , without ex-
plicit condition , that oral resignation was clearly not one
accepted by Tracy . The above documentary evidence
submitted by the General Counsel is wholly persuasive
that, at least prior to arbitrator's award in September
1983, and related grievance developments, Tracy himself
did not thereafter act in any manner on Gilbert 's resigna-
tion, other than it being as the one submitted in writing,
i.e., one conditional, with its stated condition unmet.
For all of the above reasons, I presently conclude and
find that DL 91, and Tracy in particular initially con-
strued Gilbert's written letter or resignation as constitut-
ing at best a resignation with a precondition that re-
mained unmet; that the resignation remained unacted
upon by Respondent DL 91 clearly through 30 June
1983, and as clearly through arbitrator Porter's award of
7 September 1983. A further observation is warranted in
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
regard to Tracy's recorded separate recommendation
made on 13 June 1983 that dlr Robert Fleeting (alone) be
recalled on 1 May 1984.
In regard to Fleeting recall recommendation , I credit
the somewhat tenuaous recollections of (former) Direct-
ing LR Tracy only to the extent they are compatible
with the more definitive and convincing testimony of
Tracy's successor (current) Directing LR Betty Webber.
Thus Webber's related testimony has convinced me that
the above reference to a recall of Fleeting on 1 May
1984 essentially related to a very unique and (then) un-
clear circumstances facing DL 91 at the time.
At this time there were a number of other (non-UTC)
employee units represented by LL(s) then affiliated with
DL 91. Fleeting, who came out of one of these LLs and
was not a UTC employee, serviced these LLs. All of the
other elected dlrs were employees of UTC on LOA, ex-
cepting Gilbert only because of discharged status. I
credit Tracy's and Webber's recollection to the follow-
ing extent: that it was not clear at the time that DL 91
would be able to secure an agreement from P&W (or
UTC) that one of the dlrs who were P&W (or UTC)
employees on LOA to serve as a dlr, could serve con-
tinuously as a dlr assigned to service these other (non-
UTC) units of employees . Webber's testimony is also
credited that it was in the event that DL 91 was unable
to secure such agreement, that Tracy had there recom-
mended as Directing LR that DL 91 Delegate Body
consider a recall of Fleeting who did not have the prob-
lem the other dlrs would face. The problem the other
dlrs faced was a possible forfeiture of their employment
tenure with P&W (or other UTC company).
In fact , the prematurely raised issue of specialized con-
sideration for a 1 May 1984 recall of Fleeting was subse-
quently wholly mooted by: (a) P&W allowance of a cur-
rently employed dlr (Maurice Rondeau) on LOA (from
UTC's Hamiton Standard) to serve these LLs; and (b) a
transfer/affiliation of these LLs in the interim to another
DL. Indeed , the parties stipulated that on or about 1
February 1984 Fleeting transferred (along with his own
LL) to another DL. Fleeting thereafter ran for dlr in
that (new) DL, and won election to dlr. Materially, the
parties are in full agreement that prior to the initial recall
in question in March 1985 , Fleeting had already foregone
any and all right to further employment by DL 91.
Fleeting's circumstance is not in issue.
The circumstances underlying a DL 91 recall of Tin-
ella for his unexpired dlr term on 11 March 1985, over
Gilbert who (I have found) had greater DL 91 seniority,
is the issue; and, in issue as well is DL 91's additional
failure to recall Gilbert to even a second dlr position that
subsequently opened when Webber was elected Direct-
ing LR. (Tracy retired and did not run for reelection.)
On that occasion, Webber vacated her own dlr position.
Webber's dlr position which thus opened, was not filled
by a recall of Gilbert, but was filled by an elective proc-
ess held on 12 June 1985, though, so the General Coun-
sel contends, Gilbert still remained on DL 91 layoff, and
had unexpired term as an , elected dlr with tenure extend-
ing effectively through 30 April 1986. The central issue
in contention is whether Gilbert remained in dlr layoff
status after the arbitrator's award, and was not recalled
as DL 91 dlr, because of Gilbert 's interim 1983 - 1984 in-
traunion conduct that was critical of union officials, and
because Gilbert filed charges against the Union, and gave
testimony in support of the charges , and at hearings in
1984.
Romegialli testified that LL 707 subsequently took a
strong position on its appointment of Gilbert to third-
shift safety representative. I find it did, but not without
questions of union politics having arisen . As noted, on 7
September 1983 , Arbitrator Porter issued his decision in
which the arbitrator, inter alia, reduced a certain P&W
10 June 1982 suspension of Gilbert to a disciplinary
warning, and, more significantly , set aside P&W's 1982
termination of Gilbert. The Arbitrator remedially direct-
ed as follows:
The company is directed to reinstate the grievant
and to compensate him, in the manner indicated in
the Opinion just above , for the improper suspension
of June 10 and the improper termination of July 1.
The General Counsel's evidence (G.C. Exh. 16) in-
cludes the aforementioned Stipulation entered before
ALJ Lawrence. Contained therein is all party further
agreement that by letter dated 9 September 1983, the
Employer notified Gilbert, that in conjunction with the
arbitrator 's decision, Gilbert "was being reinstated as an
employee on leave of absence from August 1, 1982
. . " The stipulation further declares, that by letter
dated 14 September (I find) 1983, the Employer notified
LL 707 that in compliance with the arbitrator's decision,
"it was reinstating Gilbert to a leave of absence , and that
because of the June 3, 1983 layoff, it was not possible to
reinstate Gilbert to active employment with the Employ-
er." When, from LL 707's view, the company did not
fully comply with the arbitrator's decision, in that P&W
effectively did not recognize LL 707's pre-layoff desig-
nation of Gilbert as LL 707's third-shift safety represent-
ative, LL 707 promptly filed a (noncompliance) griev-
ance on 15 September 1983. The (noncompliance) griev-
ance was prepared by Attorney Kestell, but signed by
President Nilson . (It should not be overlooked that nei-
ther President Nilson or Vice President Nixon were ob-
livious to the import of P&W firing Gilbert while presi-
dent of LL 707.) This noncompliance grievance was in
due course pursued through the parties' 4-step grievance
procedure; and eventually, on to a court , enforced (alter-
native) arbitration that led to a 5 February1986 Settle-
ment Agreement on that and certain other matters, under
circumstances and with effects to be discussed further
infra. I only presently note that on 21 September 1983,
LL 707, through Attorney Kestell, also filed an 8(a)(1),
(3), (4), and (5) charge against P&W in Case 39-CA-
1824, essentially on the same basis, namely , Employer's
refusal to comply with the arbitrator's decision. This
case was one of four NLRB cases (along with a number
of other grievances) to be covered by the aforesaid Set-
tlement Agreement reached on 5 February 1986, and
with all said NLRB cases (apparently) subsequently
withdrawn . None are active; and none are litigated herein.
Presently , I address the pertinent grievance steps. Step
3 of the grievance procedure held on LL 707's base
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
(noncompliance) grievance was held on 23 September
1983. There the Company formally answered in writing
(only) generally that the grievance was improper, and
that the Company had complied with the arbitrator's de-
cision . The next step, step 4, would involve DL 91 (Ro-
megialli) presentation.
Respondent produces documentary evidence of an in-
terim development of internal union concern on the part
of certain of LL 707's officers . The documentation indi-
cates as well at this time a question of internal union pol-
itics. This evidence is in the form of a letter (dated 6 Oc-
tober 1983) from Attorney Kestell to then President
Nilson, in which Attorney Kestell confirms in writing, at
a (referenced) request made by Shop Chairman Gogliet-
tino, that if Gogliettino (further) processes Gilbert's non-
compliance grievance , that Kestell will defend LL 707
against any duty of fair representation charges that might
be filed by other adversely impacted employees, without
legal fee charge.
Vice President Nixon at hearing asserted this letter
was his idea . As noted, neither Nilson or Gogliettino
were called as witnesses to corroborate Nixon. In con-
trast, Nixon had earlier testified there was no friction be-
tween him and Gilbert; and Nixon assertion of President
Nilson discussion of some unhappiness with dlr Gilbert's
taking certain actions, while Nilson was working, ap-
pears to have been a year earlier . In any event, Kestell
agreed to do so , assuring President Nilson both that Kes-
tell had made his legal judgment on the merits of Gil-
bert's noncompliance grievance, and not on any political
considerations .
As noted , this is the first documentary evidence of any
LL 107 (or DL 91 Tracy- Romegialli) expressed concern
in regard to a potential charge from an adversely impact-
ed employee, and it arose in clear context of an attor-
ney's response to a LL 707 question of his advice playing
to internal union politics expediencies , immediately prior
to 4th step grievance level that involved DL 91 dlr Ro-
megialli.
Dlr Romegialli thereafter presented step 4 of the
grievance on 11 October 1983. The grievance again re-
flects^ formally only a Company general denial of the
grievance. In that regard, while Romegialli recalled
speaking to Gilbert only once in the fall (about the safety
representative position), Romegialli testified also that he
had kept Alta Moran (then) LL 707 financial secretary,
informed '. Romegialli has testified that he probably did so
on the day after 4th-step grievance denial, thus 12 Octo-
ber 1983 ; because Alta Moran was very concerned, and
wanted to make sure that LL 707 pushed the grievance
all the way . In rebuttal Alta Moran had no recollection
of such a conversation with Romegialli, and disavowed a
specially' pursued interest in it. Moran's disavowal is not
without some question, as the record reveals that Alta
Moran has financed much of Gilbert's litigation, through,
as yet , unrepaid loans.
Asserted as being in response to a step 3 (23 Septem-
ber 1983) development of company position , Directing
LR Tracy sent a letter dated 11 October 1983 to P&W's
Industrial Relations office . Notably however , UTC Vice
President J. T. Bouchard of that office asserts in re-
sponse letter that Tracy's letter was actually mailed on
369
20 October 1983 and received by Bouchard on 21 Octo-
ber 1983 . (Tracy's letter would thus have been mailed
after completion of the 4th step of grievance procedure.)
Tracy's letter provides:
I understand that the Company has taken the po-
sition in the grievance procedure that Wayne Gil-
bert may not be returned to work until 1986 be-
cause he is purportedly on leave of absence status
for four years. As you well know, the - Company
denied Mr . Gilbert leave of absence status when it
was originally requested . At that time the Company
informed the Union that the leave of absence re-
quested for Mr. Gilbert-and Mr. Gilbert ony-
would not be granted. As you also well know, on
June 2 , 1983 , Local 707, on behalf of Mr. Gilbert
sent a letter to Donald Telesca making clear that
Gilbert sought to return to work in the shop. This
letter was long before the arbitrator 's decision in
Mr. Gilbert's discharge . In addition, as you well
know, Mr. Gilbert has not been a Labor Representa-
tive since July 1, 1983 and had resigned from his
Labor Representative position by letter to me dated
June 2, 1983. Now I have been advised by -the
Local 707 Shop Committee that the Company's po-
sition at the third step grievance meeting is that for
Mr. Gilbert to be returned to work at any point
prior to 1986, I need to submit a request to the
Company.
While the company 's most recent position, as re-
ported at the third step , seems ludicrous to me, let it
not be said that I was in some way responsible for
not returning Mr. Gilbert to work.
Accordingly, I hereby request that as in Mr. Pete
Tinella's case, Mr. Gilbert not be continued on
leave of absence status with the Company , effective
immediately. [Emphasis added.]
This is the first documentary evidence (even) arguably
of a DL 91 expression of a resignation of Gilbert occur-
ring by letter 2 [sic] June 1983, either internally, to Em-
ployer, or to anyone ; and even then it recites the fact of
Gilbert's continuance as a dlr beyond that date, until 1
July 1983 (DL 91 layoff date).
Bouchard replied to Tracy by letter dated 26 October
1983, which was (also) after the 4th step on LL 707's
(noncompliance) grievance was held . It provides:
This matter has been made the subject of several
grievances and of charges filed by Lodge 707's at-
torney with the NLRB. Indeed , that attorney has
advised our attorney that he is in the process of pre-
paring a complaint in the United States District
Court to enforce Gilbert's claims that he should be
returned to work in preference to more senior em-
ployees now laid off.
At your request, I agreed to terminate , prema-
turely, Mr. Tinella's leave of absence to serve as a
Labor Representative, as an exception to the provi-
sions of the labor agreement, and thus to clear the
way for Mr. Tinella to return to work in the shop
prior to the termination of his leave ' of absence. As
370 DECISIONS OF THE NATIONAL LABOR RELATIONS, BOARD
you know, however, there were no employees more
senior to Mr. Tinella who, at that time, were in a
lay-off status. Mr. Gilbert's claim is that he should
be returned to work in the shop even though he has
less seniority than other employees who currently
are laid off. The real issue, therefore, is whether the
company should lay off another more senior employee
to make room for Gilbert
As you state in your letter, it is "ludicrous" to
suggest that the issue cannot be resolved unless a
request is made by you that Gilbert "not be contin-
ued on leave of absence." The impediments to Gil-
bert's return to work are the contractual and legal
rights of other employees more senior than Gilbert.
[Emphasis added.]
The letter does not claim, nor does any union witness,
that this was the stated position of the Company at earli-
er grievance steps. No Company witness testified there-
to. On the same day Employer filed charge in Case 39-
CB-493 against LL 707, charging that union with a vio-
lation of Section 8(b)(1)(A) and (2) as follows:
Since on or about September 7, 1983, the Labor
Organization named above, which is the contractual
representative of maintenance and production work-
ers at the Employer's North Haven, Conn., plant
has insisted and is insisting that Wayne Gilbert be
given preference by the Employer in employment
over more senior employees because of his member-
ship in, or position with such Labor Organization,
and has threatened to bring legal action against the
Employer to compel the Employer to give such
preference to Wayne Gilbert.
By letter dated 16 December 1983, the above charge in
Case 39-CB-493 was dismissed by the Board's officer in
charge.
Analysis of Dl 91 view of Gilbert letter
of resignation
Gilbert's frustrated claim with Employer did not arise
from an inability to be employed by P&W while in a
laid-off DL 91 employee (dlr) status. Tinella worked for
P&W while occupying that same status . Gilbert's P&W
employment problems arose initially by virtue of an im-
proper discharge as determined by an arbitrator. That dis-
charge was set aside by the arbitrator. However, Gil-
bert's P&W employment problems continued thereafter
by virtue of Employer's refusing to recognize LL 707's
timely designation of Gilbert as safety representative be-
cause , at the time it acceded to the arbitrator's Award.
To do so would effectively cause another (then) em-
ployed employee, with greater seniority, to be laid off.
That however is what was provided for by the contract
between Employer and the Union, that allowed for su-
perseniority to be granted to an employee that LL 707
should (exclusively) designate to serve as its safety repre-
sentative. Presumably, that is what would have occurred,
if Gilbert had been an active employee at the time of LL
707's earlier and timely designation of Gilbert as its 3rd-
shift safety representative on 2 June 1983, prior to P&W
layoff of 3 June 1983.
It will be recalled that it was in October 1983 that
Poulin received his new assignment as GVP in charge of
International's North East Region that included, inter
alia, DL 91 and its affiliated LLs. It was in November (if
not October) 1983,, that gir Almeida received an initial
assignment (inter alia) to DL 91 apparently to aid in the
correction of certain administrative problems within that
organization, at the request of DL 91 Directing LR
Tracy. It is clear that the December 1983 leaflet distribu-
tion reviewed by Judge Harmatz, in pertinent part ad-
dressed (at least) perceived failings of president Nilson
and Shop Chairman Gogliettino of nature likely related
to their involvement in an inquiry of attorney Kestell
over his continued pursuit of the (noncompliance) griev-
ance of LL 707, at time of DL 91 dlr involvement. The
related facts as found by Judge Harmatz, 276 NLRB 985
at 987, I find are pertinent again here:
The leaflet then turned to a low-keyed assault on
President Nilson and Local Lodge 707 Shop Chair-
man Gogliettino accusing them of "irresponsible
leadership," while raising the possibility that they
are in "league with the company," accusingly stat-
ing they had "split our ranks in front of the compa-
ny.
In contrast with Gilbert perception (e.g., with his, part in
drafting the leaflet assertions), however, the parties en-
tered written stipulation in hearing before Judge Lau-
rence that essentially acknowledges the fact that LL 707
prior to the leaflet distribution (through Attorney Kes-
tell's firm) was actively pursuing a Court enforcement of
Gilbert's grievance award. Thus see e.g., Respondent's
Exhibit 2, p. 3, which pertinently recites:
16. On November 9, 1983, Local 707 filed a peti-
tion in Civil Action No. H83-940 in the United
States District Court for the District of Connecticut
seeking, inter alia , to compel the Employer to
submit to arbitration the grievances it filed over the
Employer's refusal to reinstate Gilbert, or in the al-
ternative, for an order confirming Arbitrator Por-
ter's award. In pursuing its, petition in District
Court, it is Local 707's position that compliance
with Arbitrator Porter's decision requires that Gil-
bert be reinstated to, active employment as third
shift safety representative.
As found by Judge Harmatz, it was a full month later,
11 December 1983, that the "Committee of the Rank and
File" (attended by seven unnamed members) met, and
decided to publish the leaflet that had been initially
drafted by Gilbert (and the Morans) in early December
1983, and which served as the cornerstone for the events
and circumstances initially addressed by Judge Harmatz.
Judge Harmatz relatedly found that it was on 12 Decem-
ber 1983 that Almeida had learned through the "grape
vine" of the undistributed leaflet; first sought out the
Morans, and thereafter engaged in the coercive conduct
thereafter found unlawful. Those findings (and similar
pertinent findings of Judge Lawrence) have been earlier
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 371
highlighted, and need not be repeated here beyond gen-
eral observation that the span of addressment of both
Judge Harmatz' and Judge Lawrence's decisions covers
subsequent union misconduct against Gilbert extending
essentially from December 1983 through November
1984. It is in March 1985 that Gilbert is not recalled, on
the asserted basis he had resigned. The heretofore con-
sidered conditional resignation is no longer treated as
conditional, even though Gilbert still remained unem-
ployed by P&W as LL 707's designated third-shift safety
representative. The combined unfair labor practice find-
ing of Judge Harmatz and Lawrence reflect Internation-
al, DL 91 and LL 707 had all developed marked hostili-
ty to Gilbert in the interim period. Tracy's additional as-
sertion that Gilbert never claimed he didn't resign until
after the recall of Tinella on 11 March 1985 is hardly
convincing in the light of the above background. (How-
ever, in making this finding I specifically do not rely on
Respondent. Exhibit. 20, a letter dated 21 December
1983, with copy to Tracy. This exhibit was not offered,
nor received in evidence.) There are other discrepancies
in DL 91's asserted reasons for not calling Gilbert.
Tracy has also testified that Gilbert never told Tracy
that Gilbert did not want the third-shift safety represent-
ative job, nor ask that the arbitration be abandoned. But
neither did Tracy, DL 91 or LL 707 ever reject Gil-
bert'sresignation as submitted , and accepted in condi-
tioned form for over 21 months. Morover Gilbert's posi-
tion therein throughout this period was not at all incon-
sistent. At the time, Gilbert , was unemployed. It is fair in-
ference that he needed and wanted a job from either
source of employment to which he perceived he could
lay lawful simultaneous claim. Gilbert never received a
copy of Tracy's letter to P&W on the noncompliance
grievance. Moreover, neither Tracy nor DL 91 ever
sought clarification of Gilbert as to any contended in-
compatibility in LL 707's continuing to press to secure
Gilbert's reinstatement as LL 707's safety representative,
and Gilbert's unexpired term of dlr status, that continued
for so long as the condition upon which Gilbert' s resig-
nation would become effective, remained unmet.
Subsequent early February 1984 correspondence of
Poulin to Gilbert (I find) offered nothing to dissuade Gil-
bert from holding that view. If anything, Poulin's letter
would (at best) only serve to encourage Gilbert in those
very views by virtue of Poulin' s assurance of his office's
continuing, oversight of Gilbert's rights as both a dlr rep-
resentative and LL 707 member.
Thus by letter dated 1 February 1984 (see G.G. Exh.
17) Poulin, after reciting, inter alia, DL 91's layoff of the
three dlrs, informed Gilbert in pertinent part:
I am unaware of any activities which may impact
on your lay-off status. With reference to the ques-
tions you raise concerning the actions or activities
involving District 91, in regard to your layoff
status, I would recommend that you go to the
source of your lay-off, District 91, and discuss the
situation with them.
You, can be sure that this office stands ready to
insure that the rights of all of our members and rep-
resentatives are handled in a fair and impartial
manner, consistent with the Laws of our Organiza-
tion. [Emphasis added.]
The fact of the matter however is that the Union
(International , DL 91 and LL 707) then, and thereafter
were engaging in conduct heretofore determined to have
restrained Gilbert's rights as LL 707 member,) Gilbert
obtained employment thereafter, in May 1984, by the
National Association of Government Employees
(NAGE), International Brotherhood of Police Officers.
Gilbert currently serves as NAGE national representa-
tive, with assigned responsibility for the State of Con-
necticut. Gilbert occupied that position on 11 March
1985 when Tinella (who was himself employed at P&W)
was recalled to DL 91 employment as a dlr, under the
following circumstances.
Called as a witness by the General Counsel, Tinella re-
called that he returned to work in April 1985; and that
he had received instructions to do so the month before.
The parties have stipulated more definitively that Tinella
returned to DL 91 payroll on 29 April 1985. Material
DL 91 meetings were held on 11 March and 8 April
1985, respectively. Weight of evidence establishes
beyond the questioning that the recall of Tinella was first
recommended to, and approved by DL 91 Delegate
Body on 11 March 1985.
Tinella as (regular , or alternate) delegate and Forrester
as delegate attended the 11 March 1985 DL meeting.
Both Tinella and Forrester have affirmed that DL 91
president Ed Burton presided; that Directing LR Tracy
was not present; and that Drosehn, then (acting) assistant
Directing LR was present. (Webber was also not
present .) Tinella testified that at the meeting Drosehn
said: another dlr was going to be put on; and that he
would like to put Tinella on staff. Tinella testified the
DL 91 (Delegate) Body thereafter gave its OK. Forres-
ter confirmed that Drosehn recommended that Tinella be
put back on staff, and a vote of approval later occurred.
Tinella also recalled that during the meeting Forrester
questioned Drosehn why Tinella was being put back as
dlr, instead of Gilbert; and that Drosehn replied that Gil-
bert had resigned . According to Tinella, there was no
further discussion. Drosehn did not testify. Forrester
confirmed that he questioned why Tinella was being
brought back. Forrester explained that at the time he
knew that Gilbert had more DL 91 seniority than Tinella
because he knew Gilbert had started as dlr on 1 August
1982, and Tinella 3 weeks later in order to vest a pen-
sion . It is however, Forrester's recollection that Almeida
had responded to Forrester's question; and that Almeida
had then said that he had heard that Mr. Gilbert was a
no-good bastard, who was out to ruin our organization;
and that Gilbert was no longer a member of our organi-
zation. Forrester's recollection of the derogatory remark
by Almeida directed towards Gilbert in this meeting is
not corroborated by any other witnesses ; and it is not
credited by me as made in this meeting for the reasons
that follow.
Forrester offered in related explanation of the reason
he had asked the question at this time, that he did so be-
cause he knew of Almeida's personal feelings toward
Gilbert, and he more or less asked the question to
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"frank" (sic goad) Almeida a little bit. Forrester also had
no recollection of anyone saying that Gilbert resigned in
this meeting . However Gilbert 's letter of 5 April 1985 to
the Union, and weight of union officials ' testimony on
this matter otherwise have wholly convinced me that
there was mention of Gilbert resignation in that meeting
of 11 March 1985 , whether by Drosehn, or Almeida.
With regard to the purported derogatory remark of
Almeida, Forrester has acknowledged otherwise that
(since) after 1983 he had had occasion to bring up Gil-
bert 's name in (other) DL meetings . The record estab-
lishes that Forrester had also had no recollection of earli-
er personally recommending that the dlr layoff in 1983
be accomplished on basis of the number of votes re-
ceived by the dlrs in the last election , though upon his
own review of supplied minutes of the meeting of 9 May
1983, Forrester then acknowledged the minutes indicated
that he had done so. The form of Forrester 's recollection
itself, in attributing to Almeida the lead -in remark as to
what he had heard of Gilbert at this meeting , occurring
about a year after the Gilbert-Almeida confrontational
events of 1983-1984, as heretofore determined by Judges
Harmatz and Lawrence , independently raises question of
an implausibility that the utterance (what he heard) was
made by Almeida , in March-April 1985 , a year later,
after so many personal dealings with Gilbert.
The General Counsel would have observed that Al-
meida has not (explicitly) denied the statement that For-
rester has attributed to him , and on that account has
urged in brief the statement is uncontradicted by Al-
meida, and should be credited . Be the absence of Almei-
da's explicit denial as it may , the Forrester accusation has
not gone wholly undenied by Respondent . Thus Obier, a
DL 91 delegate since 1983 , has testified that he heard
Forrester's testimony as to Almeida's derogatory refer-
ences; that he was present at the meeting , which he iden-
tified as in March ; and that Almeida did not make those
statements . For all of the above reasons I do not credit
Forrester's recollection of the Almeida (explicit) deroga-
tory remark above about Gilbert at this meeting.
Obier has otherwise corroborated Forrester and Tin-
ella that in this meeting Drosehn gave the Directing LR
report, that Drosehn stated a dlr position was going to
be filled ; and that they were bringing back Tinella. Obier
recalled that all three names of Fleeting , Gilbert and
Tinella were brought up; and, according to Obier, the
question was referred to Almeida . Obier recalled that Al-
meida said that Fleeting had transferred to DL 170, and
he was no longer a part of DL 91. Obier corroborates
that Forrester questioned why Gilbert was not brought
back as dlr . (ibier's recollection is that Almeida said Gil-
bert resigned; and that was pretty much it. Obier howev-
er, reaffirmed that Almeida was not derogatory towards
Gilbert in this meeting.
Almeida has testified that Directing LR Tracy made the
recommendation to bring back Tinelld, through his assist-
ant, Drosehn . Almeida explains that at this time Tracy
was working (only) a couple of hours a day , and he was
at home ill. According to Almeida , Tracy told Drosehn,
who at the time was regularly working in the office, to
bring Tinella back . Almeida otherwise confirmed the
other delegates' recollections that Drosehn recommend-
ed to DL 91 's Delegate Body that Tinella , by name, be
returned to work; and that the DL Delegate Body con-
curred . I have no doubt on this record that it was Tracy
who made the determination to recommend to DL 91
Delegate Body that they bring back Tinella , and not
bring back Gilbert, because he resigned. There is also
however, no question that Almeida discussed both the
matter of Tinella's return , and the matter of Gilbert's
(purported) resignation with Tracy.
As to the 11 March meeting (I find), Almeida has con-
firmed generally that there was quite a bit of discussion
about Fleeting , Gilbert, and Tinella . Almeida testified
that it was brought out that Fleeting had made a deci-
sion to transfer his membership (along with his LL) into
Dl 170 (New Haven); that the transfer had severed
Fleeting 's connection with DL 91 ; and that Fleeting had
thus left the jurisdiction of DL 91 , which made Fleeting
ineligible for recall/rehire. Almeida also confirmed that
Forrester raised a question why Gilbert was not being
brought back . Although Almeida recalled only Drosehn
stating that Gilbert had resigned , Almeida confirmed the
others that the response made to the question was that
Gilbert had resigned.
Almeida initially asserted that to his knowledge there
was not a discussion in the meeting why Tinella was pro-
posed by Drosehn (for recall). Almeida thereafter re-
called that something was said similar to that Tinella was
the last one left, though he did not remember that exact-
ly. The record establishes that in this meeting , an (addi-
tional) dlr vacancy was anticipated . The additional va-
cancy related to a scheduled election for Directing LR
office , in which Tracy was not to run , but (apparently)
other dlrs were. In any event , an election to fill the pro-
spective dlr position to be vacated was even then being
scheduled to be held on 12 June 1985, after the newly to-
be-elected Directing LR (Webber) would take office on
1 May 1985 . It is more likely the recalled reference to
Tinella as the last one left came in that context , viz that
there would have to be a dlr election . (Gilbert did not
seek to run in the election. William Rudis won.)
Almeida testified relatedly, that prior to the above DL
meeting, in February 1985, DL 91 needed an additional
staff person . Staff recommendation rests with the Direct-
ing LR . However, before presenting a recommendation
to the DL, the Directing LR requests approval of Interna-
tional. If the International does not approve, the DL
can't increase the staff, unless it wants (is prepared) to
pay the full salary . Tinella's name had been already sub-
mitted along with DL 91 request that International rein-
state a DL 91 dlr position.
Almeida also testified that he assumed there was not
an election (for Tinella position) because Tinella had
some unexpired term , and DL 91 wanted to hire Tinella,
based on his qualifications . Almeida has confirmed ex-
plicitly that Tinella was not appointed ; and that Tinella
was rehired or recalled "to fill unexpired term ." Gilbert
with similar unexpired term , and more seniority than
Tinella, was not , assertedly because he resigned.
Although slow in development , Almeida in the end
has testified significantly and rather revealingly in re-
gards to the matter of Gilbert resignation. Almeida con-
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
firmed Tracy wrote a letter to Almeida, dated 26 Febru-
ary 1985, in which Tracy reported to Almeida the DL
91 seniority dates of Gilbert as being 1 August 1982, and
of Tinella as being 23 August 1982. Tracey also reported
P&W seniority dates of Tinella 21 August 1972, and Gil-
bert 8 January 1973 ; and, inter alia, with Tracy ending
statement, "Hoping this assists you in your quest . . . ."
Almeida acknowledged that in February 1985, Almeida
had made an inquiry of Tracy as to the seniority stand-
ing of Gilbert and Tinella. Almeida asserts that Tracy
wanted to bring them back in accordance with (ambigu-
ous) seniority, if he was able to; and, that the question
was whether Gilbert could be a candidate for recall, or
rehire. Tracey testified specifically that he didn't know
why Almeida wanted to know about Gilbert's seniority;
and that it was Tracey's opinion that Tinella was the
only eligible person , period . I am however convinced
that Almeida was well aware of Tracy 's position in
recall , and generally amenable to Tracy's wishes to recall
Tinella, and not Gilbert, if it could be done. At the time
Almeida was engaged in an investigation of the facts,
since a request and report to International had to be
made.
Tracy affirmed sending the 26 February 1985 letter to
Almeida; and that the underlying circumstances were
that DL 91 was recalling a dlr. Tracy has testified (in
manner most revealing of his intention) that the only one
being considered was Tinella because Gilbert had re-
signed; that it was his opinion that Tinella was the only
eligible person , period; and that seniority had nothing to
do with it. The letter of 26 February 1985 itself however
makes no reference to Gilbert having resigned his dlr status.
I am convinced that resignation consideration far more
likely arose later; and at the earliest , when Almeida re-
viewed the seniority facts supplied by Tracy, and saw
that Gilbert had more DL 91 staff seniority. Thus, the, 26
February 1985 letter addresses paramountly the seniority
dates of both Gilbert and Tinella.
Tracy has confirmed at hearing, that he wrote this
letter to Almeida, because Almeida had (specifically) re-
quested the seniority date of Gilbert and Tinella. The
letter covers both staff and P&W seniority. It will be re-
called that DL 91 staff seniority was the only factor uti-
lized in the 30 June 1983 DL 91 layoff. That factor,
apart from resignation issue , would import first recall of
Gilbert. Tracy relatedly could not readily explain why
Almeida had wanted to know about Gilbert's seniority, if
Gilbert had years earlier resigned; nor did he adequately
explain why Gilbert's resignation is not mentioned in the
letter . (Neither Poulin or International had been in-
formed of a Gilbert resignation, as is customarily done,
discussed infra.) Tracy asserts that he did not discuss
with Almeida why Almeida wanted the seniority infor-
mation; but thereafter asserted that he believed it was to
submit it to the Union's attorney, and that it had to do
with (unspecified) Labor Board charges. The same is
shown much more convincingly related as a matter of
preliminary investigation by Almeida prepatory to his
submission to International , in regard to additional staff-
ing need , discussed above.
At hearing , in general , I did not find Tracy' s assertions
in regard to this letter as either candid , or persuasive.
373
Upon review I find the same even the less so, especially
with consideration of Tracy 's still further and ending as-
sertions that he viewed all three dlrs as with same staff
seniority date (contrary to clear import of the letter); and
it got down to a matter of (tiebreaking) tenure with
P&W in which Tinella prevailed. Tracy had wanted Gil-
bert out as a dlr, and he did not want him back . I credit
Almeida that Directing Lk Tracy made the recommen-
dation to bring back Tinella , through his (acting) assist-
ant Drosehn . But this does not mean Almeida did not
agree, and readily go along with that view.
Poulin testified that he was asked to recommend to In-
ternational 's Council a reinstatement of a dlr position in
DL 91 , and he said he would . Poulin explained that
when he makes such a request it is for a position, not a
person as such , though with a request made of him to do
so, a name is submitted , because the vice president has to
make sure the individual is eligible . The procedure is that
the vice president tells the IP , and recommends to the
International 's council . In this instance both IP and In-
ternational 's council went along.
Poulin has testified that he recalled no discussion
about Gilbert, but also that he was sure that at the time
of Tinella 's recall he had discussions with Almeida con-
cerning Gilbert 's prospects for a return . Poulin acknowl-
edged it is usual to confirm acceptance of resignation;
that he was not aware of any International (formal)
notice of a Gilbert resignation prior to Tinella's recall,
but adds, that is sometimes the case. Poulin has testified
that he did not associate talk of Gilbert resignation with
Tinella's recall, but that he did not really know the
timing of his own awareness of Gilbert's resignation. I
am sure , on this record , his awareness of Gilbert's resig-
nation as an issue came later , but not much later.
By letter dated 22 March 1985, Gilbert wrote Tracy
reciting Gilbert awareness that DL 91 had decided not
to recall Gilbert; and Gilbert therein formally requested a
reinstatement to dlr position . In this letter Gilbert also
stated his understanding there were two dlr positions
open . Gilbert laid claim to one as the senior (laid-off dlr)
eligible for reinstatement ; and Gilbert suggested the
scheduled 12 June 1985 election is obviated . Gilbert re-
quested a DL 91 review of prior correspondence, specifi-
cally of Gilbert's 3 June 1983 (conditional) resignation
letter to Tracy, and Nixon (appointive) letter of 2 June
1983 (stating conditioned acceptance). Gilbert also ad-
vanced intended reliance of DL 91 prior position on
layoff of Gilbert as presented to Judge Lawrence in 15
November 1984 hearing. Gilbert also advised Tracy that
Gilbert had consulted his attorney, and he would await
DL 91's review of the facts at the next scheduled DL 91
meeting of 8 April 1985.
It is also notable that Gilbert did not address the subject
of his purported resignation in the above letter . However,
by letter dated 5 April 1985, Gilbert wrote to DL 91 Re-
cording Secretary, with copy shown to be delivered to
all recording secretaries of all (then) affiliated locals of
DL 91 which recited that Gilbert understood that at the
last DL meeting (11 March 1985) it was moved and
passed to recall Tinella, and to have an election for an
(additional) vacant dir position; and that it was there
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stated Gilbert was not recalled because he had resigned.
Gilbert flatly denied he had resigned , enclosing the (un-
specified, but of record identified ) earlier letters he had
referred to. Gilbert therein otherwise (essentially) re-
newed his claim of holding a superior position for recall,
because more senior . Notably Gilbert advised the adressees
that his earnings from his current job were less than half
what he earned as dlr, and a lot less than he earned in the
(P& W) shop.
By letter dated 9 April 1985, thus after the 8 April
1985 DL 91 meeting , Tracy wrote Gilbert as follows:
In response to your letter of March 22, 1985.
Please be advised that our records indicate that you
resigned your position as a Labor Representative in
order to accept the position of Health and Safety
Representative of Local Lodge 707. Your resigna-
tion was effective June 2, 1983.
It has further been reported to this office that
your membership has been lapsed effective June 30,
1984.
You, therefore , are not eligible to hold office
under the applicable provisions of our Constitution
and/or By-Laws.
In regard to this letter , Tracy has testified that Almeida
authored it, and Tracy approved it. Trace explained that
at this time Tracy 's health was very bad , and Almeida
was doing a lot , or most of his work . Though Tracy ac-
knowledged it would not be unusual to ask Almeida for
advice, he also testified that he would not think he
needed advice on this one, though Tracy clarified, he did
believe that Almeida included the matter on eligibility
(membership lapse). As we shall see from what follows,
Almeida at least by this time had made considerable in-
quiry on the resignation issue. I find, in his evaluation, he
effectively hedged on the Union 's recognized question-
able resignation call, with addition of the membership
eligibility issue (that LL 707 continued to pursue) and
which is (now) subject of Board (and Circuit Court of
Appeals) rejection through enforced unfair labor practice
finding of Judge Lawrrence.
Almeida's testimony in certain other respects more-
over , was simply not candid . E .g., in what must be re-
garded as a demonstrably unlikely assertion, particularly
given the prior Judge findings of Almeida hostility to
Gilbert , Almeida has related that Gilbert 's name stood
out no greater than Fleeting and Tinella at the time. I
cannot accept that assertion . Equally questionable is Al-
meida assertion that he had no idea of the basis for (Dro-
sehn) suggesting Gilbert had resigned . (I cannot believe
that came as a complete surprise to Almeida.) To be
sure, Almeida has testified of rather appreciable discus-
sions on that very subject . While there likely was consid-
erable discussion after Gilbert's letter(s) of 22 March
and/or 5 April 1985 , it is just as apparent there was dis-
cussion about Tracy's position on Gilbert's resignation
before that meeting.
Almeida has otherwise testified severally : (a) through
many meetings DL 91 had taken the position that Gilbert
had resigned as dlr; (b) that he (Almeida) had seen writ-
ten communications about Gilbert 's resignation, some by
Gilbert , some by Nixon , and one by Tracy , (c) and
though some contained contingencies , that Tracy said
that Gilbert said he resigned , with Drosehn present; (d)
that dlr Romegialli , shop chairman Gogliettino and
(then) president Nixon had told him that Gilbert had re-
signed, (e) that various officers of LL 707 told Almeida
that Gilbert had made inquiries as to the status of his
case to implement the arbitrator's award , to return Gil-
bert to his (P&W) job , and as safety representative, and
to make him whole; and (1) that that was the Union's po-
sition always , until they reached settlement (in February
1986), namely to seek full backpay for Gilbert, back to
the time P&W terminated Gilbert . However, in reveal-
ing, if reluctant testimony , Almeida testified that he did
not recall talking to Tracy about Gilbert wanting to be
recalled ; that there might have been a Gilbert letter in-
quiring about right to be recalled . When asked if he saw
a Gilbert letter to Tracy in regard to wanting to be re-
called , Almeida testified he would have to see the letter;
and assuming there was a such letter the only reason he
knew that Gilbert was not appointed (sic recalled) by
Tracy was that Gilbert was considered as resigned.
(Seemingly Almeida later testified as to the document he
was earlier unsure of seeing , after review of the file, that
he did see it.)
Analysis
What on its face appears to carry some measure of
force for Respondent , on closer analysis wholly fails to
persuade . Firstly, it is of no moment on the issue of un-
lawful withholding of Gilbert recall to open DL 91 posi-
tion in March 1985 that LL 707 was vigorously pursuing
Gilbert's return to P&W employment in position of
safety representative , and that the Company (eventually)
entered settlement that made Gilbert (assertedly) whole
in regard to P& W employee wages for the same period.
That grievance-arbitration issue remained undecided at
the critical time the dir jobs opened (March 1985). Not
only is the proverbial bird-in-the-hand worth two-in-the-
bush fundamentally sound here as fair option for Gilbert
consideration, but even more so, since the DL 91 dlr job
at least paid more than Gilbert's present NAGE job, and
seemingly more than P&W employment.
Secondly, painstaking analysis of the witnesses ' knowl-
edge and base of knowledge on prior resignation state-
ments has caused me to conclude for reasons reflected
above that need not be repeated here, that the above per-
sonages' knowledge , except for Tracy, did not fairly,
exceed the import of Gilbert's letter of conditional resig-
nation to Tracy, and/or Nixon 's letter indicative of a
conditioned acceptance of that resignation . Close analysis
of Tracy's subsequent letter to P&W, while reciting Gil-
bert resignation submission effective 2 [sic] June 1983,
itself reflected a suspension of effectuation in that Gilbert
had continued in employ of DL 91 as dlr through 30
June 1983 when he was laid off.
It simply, in my view , comes too late for Tracy to
seek to resurrect and hold Gilbert to an oral (assuming
unqualified) resignation in March 1985 that Tracy both
immediately rejected on 2 June 1983 and in the interim
did not previously seek to hold Gilbert to. When, in
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 375
March 1985, with the (noncompliance) grievance still un-
resolved, Gilbert made flat claim to recall to open dlr
position(s) neither Tracy or DL 91 made even an effort
to confront Gilbert and present choice of dlr position
recall, or continued LL 707 (noncompliance) grievance
pursuit, only upon surrender of the condition of his prior
resignation. Finally, neither Tracy or DL 91 afforded
Gilbert that choice even when they not only recalled a
less senior dlr (Tinella), but opened another dlr vacancy
to election. I have no doubt Almeida was well aware of
the import of Gilbert's letters of 22 March and 5 April
1985. Almeida has acknowledged that the Gilbert-Tracy
resignation letter and Nixon-P&W letter contained con-
tingencies.
As a final consideration in that respect, viz, in regard
to Almeida's reliance on Tracy and Drosehn declaration
that Gilbert had orally resigned, as noted Drosehn did
not testify, and thus did not corroborate the assertion.
Assistant Directing LR Webber has testified she was
nearby and had heard Gilbert say he [had] resigned.
Webber was a generally credible witness. However I do
not believe that Webber could have heard more than
what Gilbert and Tracy mutually report they said; and
both have Tracy rejecting any offered oral resignation.
Moreover, Webber acknowledged she did not know of
the contingent letters Gilbert- subsequently wrote as a
result of Tracy direction. Webber's posture as recently
elected Directing LR (on 1 May 1985) places DL 91 in
no better posture as to the 12 June 1985 election. On
taking office she knew, or should have known, of the
base of Gilbert's claim . The fact that Gilbert did not (al-
ternatively) elect to seek to take part in that June 1985
election does not diminish his claim of superior right to
recall to one of the open positions, without having to run
to an elective office, in which he had substantial unex-
pired term, just like Tinella.
Finally, Almeida has otherwise testified that he had no
personal knowledge of Gilbert's resignation , other than
what he has read (and been told); and perhaps most re-
vealingly in regard to his position vis-a-vis Tracy inten-
tion in regard to Gilbert, that he, Almeida, did not know
if Gilbert had resigned or not. On the basis of all of the
above it is clear to me, and I now conclude and find that
Gilbert had only conditionally resigned; that the underly-
ing precondition that would have made his resignation
effective had not occurred as of the time of his first op-
portunity to be recalled as a dlr on and after I1 March
1985. Since Gilbert's conditional resignation was not in
effect on and after 11 March 1985; and since he had
more seniority than Tinella who was recalled, the assert-
ed reason for not recalling him on the basis of resigna-
tion is shown to be pretext.
Moreover, Tracy's shotgun reasoning approach to jus-
tify the nonrecall of Gilbert wholly failed of conviction,
which but enforces the warrant to look elsewhere for the
reason. One finds it readily in the strained Gilbert-Tracy
relationship, exacerbated by Gilbert's extensive engage-
ment in protected conduct: of expressing criticism of
union officials; in filing charges and testifying in support
of those charges that he brought against not only DL 91
but International, and its affiliated LL 707; and DL 91
hostility as found heretofore in Judge Lawrences prior
proceeding.
For all of the above reasons it is concluded and found
that DL 91, since on and after 11 March 1985, has failed
and refused to recall Wayne A. Gilbert to his DL 91 dlr
position (with its tenure through 30 April 1986) in viola-
tion of Section 8(a)(4), (3), and (1) of the Act. Though
this finding need not rest on the circumstance, the fact is
that DL 91 additionally relied on a claim of ineligibility
because of Gilbert's asserted nonmembership in LL 707,
a position heretofore determined unlawful. Although LL
707 nonmembership, in general is a matter for ALJ Law-
rence decision compliance by DL 91 and LL 707, it
seems to me , DL 91's improper reliance on the same is
fully addressable herein as a previously determined
unfair labor practice fact, bearing on an issue in this pro-
ceeding, thus an unlawful base further supportive of the
result presently reached.
C. The Complaint Alleges That Since on or About 1
February 1986, Respondent DL 91, and Since on or
About 16 February, Respondent LL 707 Have
Violated Section 8(b)(1)(A) of the Act, by Failing and
Refusing to Allow Gilbert to be Nominated as a
Candidate for Election to the Position of DL 91 dir
There is no dispute that a member applicant for elec-
tion to dlr must meet International's constitutional and
DL 91's (IP approved) bylaw qualification requirements.
1. Constitutional qualification requirements
That business representatives are the same as dins is
not contested. The constitutional qualifications for dlr
are found in article XI, section 4 , which provides, in part
(G.C. Exh. 4, p. 35), as follows:
Sec. 4. Members shall not be permitted to serve
as business representatives unless they have been in
continuous good standing for at least 2 years and
must be working at the trade one year immediately
prior to their nomination and free from delinquen-
cies of any nature to a L.L., D.L. or the G.L, All
business representatives must qualify under Sec. 5,
Art I....
The last referenced article I, section 5 (id. p. 2) qualifica-
tions are not of material consideration to the issues pre-
sented herein, and will not be further considered.
There are however other constitutional provisions of
testimonial and documentary moment. They have to do
with constitutional definition/exception and/or qualifica-
tion requirements of "working at the trade one year im-
mediately prior to the nomination." Poulin acknowl-
edged the same do not appear in the above article XI,
section 4, dlr qualification provision, but asserts they are
found elsewhere in the constitution. While Poulin has
testified that only the IP interprets the constitution,
Poulin relatedly testified that from his experience in
working with the IP on such issues, the "working at the
trade" definition is spelled out in article II (Delegates to
Convention), section 4.
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The aforesaid definition/exception as contained in arti-
cle II (G.L. Conventions), section 4 (Qualification of
Delegates), in pertinent part (G.C. Exh. 4, p. 7), pro-
vides:
Sec. 4.... .
The qualification "working at the trade" shall not
apply to members who are salaried full-time em-
ployees of any L.L., D.L. or G. L., a council, con-
ference, or the A.F.L.C.I. O., nor shall it apply to
members who experienced a layoff during the 6-
month period prior thereto , or to members who
have been unable to obtain employment at the trade
because of a strike , lockout , discrimination or tem-
porary physical disability , or to members who are
retired on pension and paying full dues.
Poulin testified relatedly that if the member is laid off
for less than 6 months the member is not subject to the
"working at the trade" requirement, but if laid off for
more than 6 months, the member has not been "working
at the trade ." Here the question is whether Gilbert was
laid off for more than 6 months ; and, if so , what is the
effect of that circumstance in light of other facts of
record.
Article B (LL Officers), section 3 (Qualifications for
Office), in pertinent part (id., p. 83), provides:
Sec. 4... .
Except at the first regular election of officers, or
as further provided hereunder , all candidates for
elective office must be members of the L.L. for at
least one year at the time of nomination , and free
from delinquency of any nature to a L .L., D.L., or
the G.L., and shall be working at the trade as de-
fined in Sec . 4, Art. II, for 6 months prior thereto in
order to qualify for nomination and election.
Poulin testified that this (LL officer qualification) has
been a qualification for dlr as long as he has been an offi-
cer.
2. DL 91 bylaw qualification requirements
DL 91 bylaws' requirements (which may not conflict
with constitution and must be approved by IP) are found
in DL bylaws article X. In certain respects, dlr qualifica-
tions are interrelated to that for Directing LR contained
in the same article X, in that both Directing LR and dlr
positions carry a (normal) February (election year) nomi-
nation requirement, although the dlr position has a quali-
fication requirement of 2 years "in continuous good
standing" prior to nomination, while the Directing LR
position carries a 3 years requirement in that regard.
Otherwise, for dlr, there is requirement in DL 91 bylaw
article X, section 3, insofar as pertinent (G.C. Exh. 5, p.
10), that the member be as follows:
Sec. 3... .
2. A member actively employed in one (1) of the
shops coming under the jurisdiction of this District
or employed by the District or one (1) of the Local
Lodges affiliated with this District for a period of at
least one (1) year prior to nomination . Members on
strike or victimized shall be exempt from the provi-
sion of this 1-year clause.
3. The Labor Representatives will be elected in
the same manner and under the same provisions in
these bylaws as the Directing Labor Representative
with the exception hereinabove mentioned.
The Directing LR position qualification (as thus refer-
enced) in DL 91 bylaws (for dlr) has requirements relat-
ing to Directing LR (which in turn refer to those in con-
stitution) providing, insofar as pertinent (G.C. Exh. 5, p.
9), DL 91 bylaws article X, that the member be as fol-
lows:
Section 1... .
2. A member actively employed in one (1) of the
shops coming under the jurisdiction of this District
or employed by the District or one (1) of the Local
Lodges affiliated with this District for a period of at
least one (1) year prior to nomination. Members on
strike or victimized shall be exempt from the provi-
sion of this 1-year clause.
3. He shall also meet all requirements as set forth
for Labor Representatives in the IAM Constitution.
As noted, Poulin testified that only the IP can inter-
pret the International's constitution and DL 91's bylaws,
e.g., specifically, as to the exception generated for those
"victimized." Poulin has otherwise testified that that
term has been usually associated with an employer prob-
lem, viz, an employee denied a job, or fired by an Em-
ployer. When asked if it would similarly apply to cir-
cumstances arising (as in Gilbert's case) of a dlr employ-
ee of DL 91 (e.g., denied recall) Poulin responded yes,
but added that Gilbert was not, victimized (by DL 91)
that he was aware of. International is of course not so
charged. DL 91 is so charged effectively and meritorous-
ly (see part B above) of unfair labor practice commission
in its failure to recall Gilbert on and after 11 March
1985. Both DL 91 and LL 707 are here additionally
charged with an 8(b)(1)(A) coercion and restraint of Gil-
bert as a union member in refusing to allow Gilbert to be
nominated as a candidate for election to the position of
DL 91 dlr.
3. The settlement agreement of 5 February 1986
As earlier noted , LL 707 filed suit in the United States
District Court for the District of Connecticut, in JAM
Lodge 707 v. United Technologies Corporation, Pratt &
Whitney Aircraft Division , Civil Action No. H-83-940.
This matter was handled by attorney Gregg D. Adler of
Kestell's firm. There LL 707 sought an enforcement of
Arbitrator Porter 's (initial) award , or, in the alternative,
an order directing an arbitration ' of the (subsequent)
grievance (of LL 707) which alleged noncompliance. On
3 December 1985 , Judge Jose A . Cabranes ruled on the
matter, and ordered the parties to resubmit the issue of
Gilbert's status to the arbitrator for his consideration and
decision . In due course, the parties prepared to submit
the compliance issue to the arbitrator on ' 4 February
1986 . All (arbitration) party settlement discussions
ensued . On 5 February 1986 , LL 707, Gilbert and P&W
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 377
entered a certain Settlement Agreement, Release and
Waiver, Res. Exh. 6 (herein simply the Settlement
Agreement).
The Settlement Agreement covers some 16 (Gilbert
and LL 707) grievances in all, including the material dis-
charge and noncompliance grievance(s). The Settlement
Agreement also covers four NLRB charges (Cases 39-
CA-808, 39-CA-1223, 39-CA-1824, and 39-CA-2820)
brought against the Company, P&W; and finally, it en-
compassed the aforesaid Civil Action No. H-83-940. (No-
tably it did not extend to certain other (LRMDA) feder-
al action(s) brought, inter alia, by Gilbert against Interna-
tional, DL 91, LL 707 and related union officials, includ-
ing Poulin. The aforesaid action(s) remained pending
while the above Settlement Agreement was discussed
and agreed upon. In that regard union counsel of instant
record, also represented the unions in defending Gilbert's
said (unresolved) federal action against the unions, appar-
ently along with International counsel that represented
International.
The General Counsel is not a party to the Settlement
Agreement, though it appears that with the adjustment
reached, all the above covered NLRB charges were (ap-
parently) withdrawn. (The record establishes they are all
inactive.) The Settlement Agreement contains a nonad-
mission clause whereby (essentially) P&W by entering
settlement discussion and the agreement itself, nonethe-
less reserves that it does not admit any violation of the
Act, or of the collective-bargaining agreement , or of any
other federal or state laws, or regulation.
The Settlement Agreement recites in its summary of
facts, pertinently, that LL 707 ". . . argued that Gilbert
was entitled to be reinstated to active employment
through retroactive recognition of his appointment as
safety representative, a position which was accorded su-
perseniority under the collective-bargaining agreement.
The Company opposed this argument and disputed its
premises." In the latter regard the Settlement Agreement
contains explicit provision that P&W does not admit
what it had previously denied in the aforesaid proceed-
ings. The Settlement Agreement does contain a summary
recitation of certain facts otherwise, and that (essentially)
the Settlement Agreement constitutes a settlement of all
claims of Gilbert and LL 707, "with regard to the em-
ployment of Gilbert by the Company, termination of that
employment, and any and all related claims...."
The Settlement Agreement provides in its affirmative
terms, insofar as pertinent, for a payment of backpay to
Gilbert in a sum certain. (The Settlement Agreement
contains other provisions for settlement of other claims,
including provisions for general nondisclosure of those
settlement terms; but acknowledges anticipated use in
(various) ]litigation, with provision made for party notice
and protective procedures, etc., all of which consider-
ations and conditions, by virtue of an all party (and
P&W) agreed redaction of certain extraneous terms, have
been effectively rendered moot, insofar as instant pro-
ceeding.) Materially, the Settlement Agreement specifi-
cally provides:
Gilbert further acknowledges and agrees that his
employment by the Company has terminated, such
termination to be considered by all parties as a vol-
untary resignation of employment by Gilbert. Gil-
bert further agrees and acknowledges that he will
not in the future apply for employment with the
Company and the Company is under no obligation,
to employ, reemploy, or retain Gilbert in employ-
ment in any capacity whatsoever at any time. Gil-
bert specificaly acknowledges that he waives any
and all rights of reinstatement which might other-
wise be available to him as a result of any claims or
actions he has brought or could bring against the
Company.
All parties to the Settlement Agreement agree, and the
General Counsel as well, that by the terms of the afore-
said Settlement Agreement, from on and after 5 Febru-
ary 1986, Gilbert had no right, or reasonable expectation
of returning to employ of P&W, in any capacity.
In that regard, there is some evidence of record that
Gilbert sought to raise at hearing an issue of purported
LL 707 coercion of Gilbert in Gilbert's entry of the Set-
tlement Agreement. Thus Gilbert asserts, and LL 707's
attorney subsequently testifying on the matter has cate-
gorically denied, that when the terms of this Settlement
Agreement were finally arrived at, that LL 707's attor-
ney told Gilbert that the Settlement Agreement was (es-
sentially) a good settlement, and that LL 707 would
accept it if Gilbert did not enter it. There is however ap-
pearance of record of substantial inconsistent testimony
by Gilbert in this respect. Gilbert otherwise acknowl-
edged that Alta Moran (essentially) so advised him. I
need not resolve the apparent conflicts in the testimony
above. Two facts are otherwise inescapable. First the
Settlement Agreement contains explicit declaration that
Gilbert has ". . . read the above Settlement Agreement,
Release and Waiver, fully understood its content and
effect, and without coercion, knowingly and voluntarily
agree to its terms." Secondly, none of the parties to that
agreement, nor the General Counsel herein, has sought
to set that Settlement Agreement aside, on the basis of
coercion, or fraud. I will not (in effect) do'so herein by
denying the effect of its clear terms.
It is thus concluded and found that on 5 February
1986, Gilbert voluntarily undertook certain action in set-
tlement of his (and LL 707, as well, of its) claims against
P&W in return for other settlement terms and provisions
deemed good and sufficient to them at the time; and with
a clear consequence to Gilbert's status as a P&W em-
ployee, namely that from on and after 5 February 1986,
Gilbert had no further claim to, or anticipation of em-
ployment at P&W. It follows that Gilbert could' not
qualify for subsequent dlr February nomination and
April election on the basis of employment in a P&W
shop represented by a LL affiliated with DL 91.
Neither was Gilbert employed by a LL affiliated with
DL 91. Rather at this time he was employed by NAGE.
4. IP rulings on dlr qualifications
In that regard Respondent has introduced credible
documentary evidence of the circumstances of others
who were found not qualified for dlr nomination by the
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IP, by virtue of not working at the trade . Thus by letter
dated 20 December 1985 , (then) assistant Directing LR
Webber wrote Poulin (essentially) requesting a review of
the employment circumstances of Lou Kiefer , and asking
that Kiefer be declared eligible to run for dlr in 1986.
Webber appears to have also urged he was victimized. It
will be recalled that Kiefer, a DL 91 employed editor or-
ganizer , was (only) laid off on 30 June 1983 . In Novem-
ber 1983 Kiefer had obtained employment with another
employer, Connecticut United Labor Organization
(ULA). In September 1985, DL 91 employed Kiefer part
time (on loan from ULA) to assist in organization prep-
arations for negotiations (with P&W) in late 1985.
(Kiefer's prior DL 91 position was apparently removed
from the bylaws of DL 91 and he couldn 't be recalled to
it.) By letter dated 31 December 1985 , the IP advised
Webber that Kiefer would not qualify "in view of the
fact that he does not meet the qualification of working at
the trade for one (1) year prior to the date of nomina-
tion." However , Kiefer had no unexpired elective term of
dlr office from which he was laid off, nor had DL 91 un-
lawfully refused to recall him to that position.
Similarly , by letter dated 30 December 1985 Webber
wrote Poulin stating desire to put Christy Hoffman on as
an organizer, or alternatively that Hoffman be declared
qualified to run for dlr. Hoffman 's circumstances were
that Hoffman , previously employed by P&W at its
Southington plant, had been employed by International
as an organizer between January and July 1985 (for more
than 6 months in 1985). At that time she apparently (vol-
untarily) left and became employed as an organizer by
National Hospital and Health Care Employees Union,
Ohio State Employees Campaign . By letter dated 13 Jan-
uary 1986 , the IP advised Webber that Hoffman's em-
ployment with Local 1199 , SEIU (sic) would not qualify
as working at the trade under the Constitution , and Hoff-
man (additionally) would not qualify for DL 91 dlr posi-
tion in that she would not have the (DL 91) required one
(1) year working at the trade as of February 1986.
Further letters of Hoffman , dated 14 and 18 January
1986 sent directly to IP , in several aspects questioned the
application of DL 91's working at the trade for 1-year
standard, and sought review and reevaluation of her
qualifications . Those inquiries , and inquiry of LL 1746-A
Shop Chairman Bill Shortell (in support) were unavail-
ing. I present IP responses to them for their recitement
of IP rulings . Thus in response to Hoffman letter of 14
January 1986 , by letter dated 21 January 1986, the IP
first informed Hoffman directly:
Please be advised that Section 4, Article XI, of
the IAM Constitution requiring a candidate for
Business Representative to be working at the trade
for one (1) year immediately prior to nominations is
and always has been interpreted as one (1) full year,
not merely one (1) day one , (1) year prior to nomi-
nations.
Insofar as District 91 Bylaws, the requirement
that a candidate must work for a full year either for
the Union or in the shop prior to nomination is in-
terpreted and has always been interpreted as a full
year immediately prior to nominations.
In response to Hoffman letter of 21 January 1986, by
letter dated 28 January 1986, the IP further informed
Hoffman, more specifically:
Please be advised that the qualification working
at the trade for one (1) year immediately prior to
their nomination is spelled out in Article XI, Sec-
tion 4, of the IAM Constitution and all exceptions
to the one (1) year working at the trade prior to
nominations are spelled out under Article II, Sec-
tion 4, Qualifications of Delegates and are very spe-
cific.
In reviewing your circumstances, you do not fall
under any of the exceptions and, therefore, would
not qualify as a candidate for Labor Representative
in District 91.
Let me assure you that this is a consistent inter-
pretation of our Constitutional law as I have no au-
thority to change our Constitution. I take exception
with your opinion that it appears at face value that
our Constitution and District Lodge 91 Bylaws
should be interpreted to allow a gap of less than a
year between working at the trade and Labor Rep-
resentative nominations. If your interpretation of
that section of our Constitution and the applicable
sections of District Lodge 91 Bylaws would be
used, it would simply mean that a person to qualify
for a position only need to be employed on one (1)
day and that day being the date exactly one (1) year
prior to the day of nominations. I assure you that it
is not the intent that the Delegates to our Constitu-
tional Conventions nor for that matter the Dele-
gates to District Lodge 91 had in mind when plac-
ing those particular sections into our law.
Let me assure you that the decision and interpre-
tation of our Constitutional Law is exactly that. It is
the same interpretation that has always been given
and has no bearing on you as an individual, nor
your qualifications to do the job if, in fact, you
were eligible to seek nominations.
In response to Shortell letter of 21 January 1986 (in
supporting Hoffman), the IP wrote Shortell in letter
dated 29 January 1986, in pertinent part as follows:
Insofar as Sister Hoffman's eligibility to run for
Labor Representative of District Lodge 91, 1 have
on several occasions outlined the reasons why Sister
Hoffman does not qualify to run for Labor Repre-
sentative under our Constitutional Law as well as
District Lodge 91 Bylaws. Here again, I have no
authority to change the Constitution or amend the
Constitution only to interpret it.
However, I would like to assure you that the
Constitutional clause in question is not open to such
broad interpretation that it could be interpretated to
permit her to qualify as a candidate for Labor Rep-
resentative. That Constitutional clause is very spe-
cific and has been interpreted in the same manner in
every instance when the question has arisen.
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
I assure you that the interpretation given to
Sister Hoffman has no internal political ramifica-
tions and that she is not being unjustly denied the
right to run. Insofar as Grand Lodge failing to hire
her, let me point out to you that we still have mem-
bers of the Grand Lodge Staff on layoff due to our
loss of membership.
Finally Poulin also testified that Paul Kelly was a glr
on (apparently) his predecessor's staff who was also laid
off. Poulin testified to having received inquiry on Kel-
ley's qualification to run in the DL 91 dlr election con-
ducted in June 1985 . Kelly was found (by IP) not quali-
fied because Kelly was not working in any P&W plant
or for DL 91 or LL 707, and thus was not eligible under
DL 91 bylaws: The above evidence is wholly persuasive
that Gilbert's employment by IMAGE did not qualify him
to run for dlr as "working at the trade."But that is not
the only way a member might qualify for nomination to
dlr; and neither Hoffman, Kiefer, or Kelly were laid off
elected DL 91 dlrs with unexpired term , nor had DL 91
unlawfully refused to recall any of them to that position.
There is no question that there is requirement that an
individual be working at the trade for 1 year. Gilbert
was clearly laid off (initially) for more than 6 months,
and thus the requirement of working at the trade for 1
year would appear applicable to Gilbert and it appears to
follow that Gilbert did not satisfy the requirement of
working at the trade. That is, unless some other consid-
eration applies . There is such other consideration. As an
(unresigned) incumbent dlr, e.g., one with term expiring
on 30 April 1986, Gilbert has contended he was eligible
for nomination; and Respondent unions have presented
no specific instance where it has been previously been
held by IP to the contrary.
5. The evidence of DL 91 and LL 707 prevention
of Gilbert 's running for dir position
a. Initial reactions to Board Decision issuance (in
regard to ALJ Lawrence decision) on 16 January 1985
On 16 January 1985 , the Board issued its decision in
which it adopted ALJ Lawrence 's findings that Interna-
tional, DL 91 and LL 707 had violated Section
8(b)(1)(A) of the Act by LL 707 lapse of Gilbert's mem-
bership , and Gilbert recalled (as subsequently ' clarified),
that on the day after (receipt of) the decision he, along
with Alta Moran, went to LL 707, and first attempted to
pay his dues. On that occasion , Gilbert approached union
secretary (office clerical) Eleanor Glynn and announced
that he was there to pay his dues. Gilbert recalled that
Glenn first went to the safe to retrieve Gilbert 's records,
preparatory to making calculations of the amount due.
However , Glenn was hesitant about accepting dues from
Gilbert, and she inquired if Gilbert would mind if she
called to check if this was okay. Gilbert told Glenn,
"Ellie, do what you have to do ." Glenn then placed a
phone call. After the call, Glenn told Gilbert that she
was waiting for a return call from Almeida to see if it
was okay to accept Gilbert 's dues. Gilbert told Glenn
that when Almeida called back to please let him talk to
Almeida.
379
After about 10-15 minutes , Glenn received a call. She
spoke 1-2 minutes , and then told Gilbert to get on the
phone. According to Gilbert, Almeida told Gilbert that
they were not going to accept his dues payment, and
that the Union was going to appeal the Board 's decision.
Although Gilbert initially added that Almeida had said
the appeal was of Board decision to allow Gilbert to be a
member, pay his dues and (additionally) run for office,
the latter run for office was not recounted in Gilbert's
later description of the conversation. I am more persuad-
ed that the reference to run for office attributed to Al-
meida on this occasion is instance of Gilbert embellish-
ment, and that what Almeida more likely said on this oc-
casion was only that LL 707 was going to appeal the
Board's decision, and it was not going to accept Gilbert's
dues.
However , I do credit Gilbert's testimony that on this
occasion Gilbert told Almeida that he wanted to pay his
dues so he would be eligible to run for dlr position in the
upcoming elections . Almeida told Gilbert that if Gilbert
did not like that (decision), Gilbert could call Union At-
torney Engelhard, and make a direct appeal to him. That
ended the conversation and Gilbert hung up the phone.
Gilbert did not personally contact Engelhard. Gilbert
contacted his own attorney , Brad Gallant, an attorney of
counsel of record 's law firm. In due course , discussions
between the above attorneys ensued ; and some time later
Attorney Brad Gallant informed Gilbert that it had been
worked out; that the Union was going to accept Gilbert's
dues; and that Gilbert should go down to the Union and
pay the dues.
Almeida has not denied this conversation with Gilbert;
and Glenn has not testified . Moreover, Gilbert's account
of informing Almeida as to his purpose in desiring to pay
the dues at this time is wholly consonant with other
credited facts of record. I credit Gilbert that soon after
the Board had issued its decision adopting Judge Law-
rence's findings , Gilbert made Almeida personally aware
that Gilbert planned to run for election to dlr office,
b. Gilbert's nomination rejected at LL 700
Almeida Instructions to Assigned d1r Rondeau
Rondeau is 'a member of LL 743 (Hamilton Standard).
As an incumbent dlr, Rondeau was reelected in July
1982, but ran unsuccessfully for further 'election in 1986.
Rondeau's term of office as a dlr would thus end on 30
April 1986. However, at all times material, Rondeau was
a DL 91 dlr. As such, and inthe material time of the
election of 1986, Rondeau was assigned to assist LL 700
(Middletown). Part of Rondeau 's dlr responsibility was
to attend LL 700's meetings, and act as overseer. Ron-
deau explained the latter as being that if, a question came
up on DL rules, Rondeau's responsibility was to advise
LL 700 on DL 91 bylaws.
The LLs may, and do hold their nomination meetings
on different days in February. The nominations must
only be accomplished in February. Called as a witness
by the General Counsel, Rondeau has testified that on
the Friday before LL 700's nomination meeting, which
he relates was held on the second Sunday in February (9
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
February 1986), thus (I find) on Friday , 7 February 1986,
glr Almeida called Rondeau on the phone in regard to
LL 700 nomination process . Rondeau (initially) testified
that Almeida told Rondeau that if Gilbert 's name was
brought up for a dlr nomination it would be a violation
of DL 91's bylaws, article 10 (continuing somewhat am-
biguously) where it says you have to be an employee of
the Company, or working for the DL, or something else.
Rondeau would later testify however , more definitively,
and more plausibly , that Almeida told Rondeau that Gil-
bert could not be nominated because it would be contrary to
DL 91's bylaws, in that Gilbert was not employed with the
Company (P&W). Rondeau also recalled that at the time
he asked Almeida why that was an issue (at LL level).
At the time of this phone conversation with Almeida,
Rondeau asserts that he was already aware from a prior
conversation at DL 91, and he believed from statement
made by Almeida there , that there had been a settlement,
and Gilbert would not be working with UTC (P&W)
any longer. Rondeau then understood the (grievance)
issue had to do with Gilbert's tenure with P&W based on
whether Gilbert was an (appointed) health and safety
representative (to be) recognized by the Company, but
asserts we never got the full story . At hearing Rondeau
has also testified that he guessed there were 2-3 issues.
Given Rondeau's indicated limited awareness of the
grievance , and not other issues, viz: of the nature of the
Settlement Agreement encompassing (only) Gilbert's for-
bearance of a return to employment with P&W in the
future , and Rondeau 's clarification of Almeida's directive
limited thereto ; and in light of Rondeau 's narrowed ques-
tioning of Almeida at the time , notably solely directed at
a perceived procedure departure , rather than a consider-
ation of other subject of substance (e.g., Gilbert's con-
tended nonresignation, and retention of incumbent dlr
status while on layoff), I am in the end persuaded that
Rondeau 's knowledge at the time as to Gilbert 's base for
nomination was most probably limited to his own aware-
ness of the grievance subject and its resolution. Thus
Rondeau also testified that when he asked Almeida why
was that an issue , he added in explanation his interpreta-
tion [sic apparent understanding] was that if you were a
member in good standing (you could receive a LL en-
dorsement), and if you did , the LL-endorsed -nomination
is then (to be) checked out by the DL recording secre-
tary , who can reject the LL's endorsement of a nominee,
based on whatever the facts are. It is clear to me that
Rondeau was actually questioning Almeida on his per-
ception of a departure from regular nomination proce-
dures. Rondeau also testified that in the same conversa-
tion Almeida said that he (Almeida) had to call the other
LLs.
Dlr Rondeau 's and dlr Romegialli's Actions at
Local 700's nomination meeting
There were eight dlr positions open at this time for
nomination and election. Dlr Romegialli is a member of
LL 700. As assigned dlr, Rondeau testified that he was
overseeing LL 700's nomination meeting held on the fol-
lowing Sunday (9 February 1986). During the meeting a
member nominated Gilbert for dlr position . According to
Rondeau, Romegialli jumped up and said , the nomination
of Gilbert was in violation of article X of the DL's
bylaws; and it should not be allowed. Paul Schmelke,
LL 700's president (and it will be recalled one defended
by Gilbert on 1982 election charges) asked Rondeau if
that was true. Rondeau told Schmelke that as far as he
knew, he was told it was true. Schmelke thereupon did
not allow Gilbert 's nomination.
Romegialli confirmed that he was at LL 700's nomina-
tion meeting, explaining that he was there to seek a nom-
ination and endorsement from his own local to run for
reelection as an incumbent dlr. Romegialli also con-
firmed that Gilbert's name was placed in nomination by
LL 700 member, Eddie Robinson (another individual
previously defended by Gilbert). Romegialli's version is
that he raised his hand to challenge the nomination and
was recognized. Romegialli relates that he told the chair
that it was his best belief that Gilbert did not meet the
requirements of DL 91 bylaws. Romegialli asserts he
told the members that Gilbert had not been working at
the trade for a year, and Gilbert was no longer eligible
to work for P&W. (Objection to Romegialli assertion of
his awareness of the Settlement Agreement terms from
Company source was sustained .) I have no doubt the
source of Romegialli's knowledge in that area was (at
least) from Almeida.
Romegialli asserts further that he also told the mem-
bers of LL 700 that it was his knowledge that Gilbert
had resigned his position as dlr. Rondeau however testi-
fied that no one at this meeting said Gilbert had resigned
as dlr. There was no corroboration offered of either
Rondeau or Romegialli on this latter matter of a refer-
ence to Gilbert resignation . There is confusion of record
as to whether Romegialli was first made aware of the
actual content of Gilbert's conditional letter of resigna-
tion to Tracy in May 1984 or 1985. However, there can
be no question that Romegialli had an awareness of the
conditional content of that letter as of this nomination
meeting held on 9 February 1986. Romegialli has other-
wise acknowledged that he had a couple of questions,
and that he referred them to Almeida, but later as he re-
called on 12 February 1986. Romegialli has (generally)
denied there was a discussion between Almeida and Ro-
megialli about a conditional resignation by Gilbert. Ro-
megialli's version is again too strained to fully credit.
First, it is inherently likely that questions Romegialli
had (if any) on Gilbert's status would have been ad-
dressed before LL 700's nomination meeting held on 9
February 1986, and far more likely on the prior Friday,
7 February 1986, just as in the case of Rondeau. Second-
ly, given Almeida (general) acknowledgement that in-
structions were given out that (all) LLs were to follow
DL 91 bylaws requirements, discussed next, it is as likely
that dlr Romegialli was contacted by Almeida about Gil-
bert nonemploy at P&W as was the, case with Rondeau.
See also Parent's essential further confirmation that there
were DL 91 discussions about Gilbert's eligibility. Third-
ly, whatever may have been the moment of Romegialli's
initial awareness of the actual content of Gilbert's condi-
tional resignation, e.g., in May 1984 or 1985, Romegialli
had been aware of it for quite some time. But that was a
matter on which DL 91 had already taken a determined
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
position that Gilbert had resigned e.g., at time of Gil-
bert's nonrecall. Put simply, I do not believe Romegialli
spoke to the members of LL 700 in the manner of hear-
ing hedged testimony couched, in terms of best belief that
Gilbert was not eligible to be nominated. This is in con-
trast with Rondeau's (I conclude credible) recollection
that Romegialli jumped up and said flatly that the nomi-
nation of Gilbert was in violation of article X of DL 91's
bylaws; and it should not be allowed. In the end, I credit
Rondeau that no one mentioned Gilbert's resignation in
this meeting , because I do not believe it was perceived as
a viable issue by Romegialli at this time, and because DL
91 attention was being directed at the ramifications of
the recent Settlement Agreement, under the terms of
which it was known and/or reported that Gilbert would
not be employed in a P&W shop in the future.
Almeida describes his function with DL 91 as having
been one of providing assistance to DL 91, in light of his
own broad DL experience. Webber was Directing LR at
this time. As noted Almeida confirmed there was an in-
struction that went out directing the LLs that all nomi-
nations must be in conformity with the constitution and
DL 91 bylaws. Webber has not testified thereon; and in
that connection Almeida further testified that it was his
understanding that Webber was to make IP inquiry on
Gilbert eligibility, infra.
Almeida has asserted that he did not (personally) in-
struct the LLs that Gilbert was not to be nominated nor
did DL 91 to his knowledge; that he did not know if in-
structions were issued to DL 91 affiliated LLs that any
nomination made on behalf of Gilbert was to be rejected;
and Almeida asserts he had no idea if Gilbert's name was
mentioned. In these respects I fmd Almeida's assertions
are reserved ones, and in any event are wholly uncon-
vincing. Almeida has not explicitly denied the above
conversation with Rondeau, nor for that matter even the
Romegialli asserted conversation about Romegialh ques-
tions, or Parent's testimony about a phone call/staff
meeting discussion about Gilbert's eligibility to run for
dlr. Any such Almeida total disclaimer is simply not to
be credited. Rather I credit Rondeau, and I find there
was Almeida distribution of information (at least) about
Gilbert no longer being employed by P&W,'and that DL
91 Bylaws (in that respect) were to be applied.
c. Gilbert's allowed payment of LL 707's dues,- Nixon-
Gilbert confrontation
The following is a composite of credited testimony of
Gilbert, Mary Alice Moran, dlr Parent, LL 707 president
Nixon and limited testimony of glr Almeida. On 14 Feb-
ruary 1986, Gilbert again went to LL 707's office to pay
his dues. Mary Alice Moran accompanied Gilbert on this
occasion. Gilbert observed the time of his arrival. It was
(I find) 3:08 p.m. According to Gilbert, it normally takes
five minutes to pay dues. This time it would take Gilbert
about 50 minutes, as Gilbert and Moran would not leave
the hall until almost 4 p.m.
Gilbert relates that he first approached union office
secretary Glenn, and said he was there to pay his dues.
Glenn spoke to dlr Parent who at this time serviced LL
707. Parent confirms that Glenn told Parent that Gilbert
was there to pay his dues, and Glenn asked Parent to
381
assist her. Parent relates that he walked out of his office,
and he asked Gilbert what Gilbert wanted. Gilbert told
Parent that Gilbert's attorney had informed Gilbert _ that
it was okay to come to LL 707, and they would accept
Gilbert's dues. Parent told Gilbert that as far as Parent
knew, Gilbert was a nonmember, and Parent said he
would have to check. Parent testified that at the time he
was not familiar with the Board's decision directing the
Union to reinstate Gilbert as a member.
Gilbert relates that he observed Parent place a call
from his office. Parent recounts that he (first) called his
boss, assistant Directing LR Drosehn. Following that
conversation Parent told Gilbert that he was going to
check it out with his representative (glr Almeida) to see
if it was correct, and if they would accept Gilbert's dues
or not. Gilbert confirms that Parent came out and told
Gilbert that Parent had to check this out with his people;
and that Parent was waiting for a call back (I find) from
Almeida. Gilbert told Parent that when the call came in,
Gilbert would like to talk to Almeida.
Gilbert states that it was shortly after that that Al-
meida called; and he and Almeida had a conversation.
Gilbert told Almeida that it was his understanding that
you were going to accept my dues today. Gilbert testi-
fied that Almeida replied, "You have only been in the
union hall 5 minutes, don't start giving orders." Gilbert
told Almeida, it should not take more than 5 minutes for
a union member to pay their dues; and Gilbert said that
he did not want to be treated any different than any
other employee. Almeida told Gilbert that they had to
protect their rights. In this respect, Gilbert later acknow-
ledgd that it was just before his own visit to the hall that
Gilbert had been informed that a letter confirming the
conditions (for an acceptance of his dues at this time)
was being sent to his attorney. There is no question that
Gilbert was (at least) generally aware, before he visited
the hall to pay his dues, that there were to be certain
union conditions attached to the acceptance of his dues.
Gilbert (again) told Almeida that he wanted to pay his
dues so he would be able to run for dlr. Gilbert further
asked Almeida, now that they were about to accept his
union dues, did that also mean they were going to accept
his right to run for dlr. According to Gilbert, Almeida
replied (only) that he was not personally going to be at
the LL (707) meeting that Sunday (16 February 1986),
but that he had instructed "our guys" to comply with
the bylaws of the DL and LL. Gilbert testified that Al-
meida did not further explain who "our guys" were. Gil-
bert recounts that Almeida thereafter spoke 'to Parent for
a while, and Gilbert saw the (phone) light go out, indi-
cating their conversation was over.
Almeida's testimony does not address this specific con-
versation with Gilbert. Parent confirms only receiving a
call from Almeida, and that as a result of Parent's con-
versation with Almeida, Parent awaited still another call
from Attorney Linda Rodd, of Engelhard's firm. Parent
testified that it was not until he received the call from
Rodd that he actually processed Gilbert's dues payment,
and instructed the secretary to accept his check. Parent
has confirmed (as noted earlier) that he had had a discus-
sion with Almeida earlier, a matter of days before this
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
day, either by phone or at a staff meeting , about Gil-
bert's eligibility to run for dlr in the upcoming elections.
According to Parent, there was no discussion at that
time about Gilbert's dues tender. Beyond that, Parent
does not appear to have described the discussion with
Almeida about Gilbert's eligibility to run for dlr.
Gilbert has testified that he thereafter observed Parent
playing around with papers, shuffling papers around. I
reject any aspersion that Parent was performing
makework, rather than waiting for a clarifying call. Gil-
bert has acknowledged that he felt they were being
jerked around, and that he got upset. This I credit. Ac-
cording to Gilbert, after several minutes, Gilbert asked
Parent, "Jim, what's the story? Let's pay the dues and
get on with this." According to Gilbert, Parent replied,
"Well, you are going to have to wait for President
Nixon to come in." Gilbert said, "President Nixon is on
first shift. He won't get out of work until 3:30." Gilbert
asked, "Why should we have to wait that long? Why
should Mary Alice and I be burdened by having to hang
around waiting for Walt Nixon to show up?" According
to Gilbert, Parent replied, we had to wait for Nixon be-
cause Nixon was the one who had been instructed by the
Union's attorneys as to the conditions for the acceptance
of Gilbert's dues. (Parent denied he wanted Nixon in-
volved in the dues acceptance.)
Mary Alice Moran, in that connection, recalled that
Parent had (earlier) said that he had not been instructed
what to do (about acceptance of Gilbert's dues payment),
but he knew Nixon had said he wanted to speak to Gil-
bert. According to Moran, Gilbert had then asked Parent
to call Almeida because it was Gilbert's understanding
everything had been set up to pay his dues, and that was
what Gilbert was there for. Moran recalls that Parent
then told Glenn to get Almeida on the phone. Moran did
not recall Parent saying that he would have to speak to
Drosehn, and she did not think he said he did. Moran
otherwise has not corroborated Gilbert that they were
required to wait for the arrival of Nixon. I am convinced
that Moran's recount of Parent initial reaction is the
more likely, and that Gilbert's references to waiting for
Nixon, if made at all, more probably arose in the context
recalled by Moran, viz, antecedent to his own request
made of Parent to call Almeida. I am in any event con-
vinced that Gilbert and Moran were not waiting for
Nixon's arrival, but for the call from union attorney
Rodd, as Parent otherwise related. However, in the in-
terim Nixon did arrive at the hall.
As President of LL 707, Nixon had (I fmd) earlier re-
ceived a copy of the Settlement Agreement on LL 707's
grievance(s). Nixon testified' that he received the copy
from Parent in a sealed envelope. Nixon opened the en-
velope, and he read the full terms of the Settlement
Agreement. Thereafter he put the Settlement Agreement
in LL 707's safe. Nixon asserts he discussed the terms
with no one thereafter, and testified specifically that he
did not discuss it with Parent.
Between 3:35-3:45 p.m. Nixon walked into the hall.
When Nixon saw Gilbert and Moran standing at the
counter, Nixon turned to Glenn and said, "What's this all
about?" Glenn answered, Wayne is here to pay his dues.
Gilbert's recollection is that Nixon then said, "Well then
hurry up about their business. It stinks in here." Nixon
essentially confirms that he wanted to know what Gil-
bert was doing there, but denies that he said , "It stinks in
here." However, Moran corroborates Gilbert that when
Nixon came in the hall, he made a comment that it
smells, or it stinks in here . I credit Gilbert and Moran's
recollection as to Nixon's opening remark; and I further
fmd that it was unprovoked by any earlier Gilbert derog-
atory remark directed towards Nixon that day. I also
credit Moran's recollection that when Gilbert then said
to Nixon that he (Gilbert) understood that Nixon wanted
to talk to him, Nixon (essentially) said he did not want to
talk to Gilbert, that he wanted them out of here, and to
get Gilbert out of here. With that, Nixon went into the
office to talk to Parent.
Either Parent or Nixon closed the door behind them.
While a number of witnesses proceed to relate that Gil-
bert thereafter came into the office uninvited, the weight
of credible evidence convinces me that Gilbert did not
do so immediately; and I specifically find he did not do
so until after Attorney Rodd's call had come in. Parent
otherwise testified that the president is in charge of the
LL, and Nixon wanted to fmd out what was going on.
In the interim , Parent thus explained the situation to
Nixon in their office, and that he was awaiting the call
(from Rodd).
Gilbert and Moran were outside the office by the
counter. Weight of credible evidence also makes it
appear clear that when the call from Rodd eventually ar-
rived, Gilbert picked up an extention. Gilbert did so on
his own, without being asked to do so; and he immedi-
ately engaged Rodd in conversation. Gilbert asked At-
torney Rodd what was happening to the payment of
dues, and why it was taking so long . (Moran corroborat-
ed hearing Gilbert say, "Hello Linda. What's going on? I
understand this was supposed to be all straightened
out.") Gilbert asserts (generally) that Rodd explained it
to him, and then Rodd spoke with Parent. However, I
credit Parent's further recollection that Gilbert also told
Rodd, "I don't have to put up with this (delay). They
have to accept my dues. You know it." I relatedly find
that Gilbert did not pick up the phone to eavesdrop, but
as an impromptu act as a result of increasing irritation
over the delay he was experiencing at the hall in-his at-
tempt to pay his dues, pursuant to a purported prear-
rangement with the Union.
Gilbert has testified that after another 5 minutes he
opened the door to the office, without knocking, or
being invited. Gilbert acknowledged that Parent was on
the phone. According to Gilbert recollection, Parent
said, "Do you mind if we have a few minutes to talk to
our attorney alone?" Gilbert replied no, and closed the
door. On cross-examination Gilbert further testified that
Parent had said he needed time to talk to his attorney;
and that Parent had asked, if Gilbert could give Parent
that courtesy, and some time. Although, Parent had
recollection of Gilbert entering the office only once, I
am wholly convinced Gilbert did so twice. The first oc-
casion (above) was a brief one; and most probably oc-
cured while Parent was still talking to Attorney Rodd. I
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
simply do not believe that Gilbert would have acknowl-
edged that circumstance, if it had not been a fact.
Parent confirms he was given information by Attorney
Rodd as to how they were to accept the dues, under
what terms, and what language was to be given to Gil-
bert; and that it was not until thereafter that he accepted
Gilbert's dues. However, I have no doubt that Parent
and Nixon had also continued with some additional dis-
cussion amongst themselves, about their having to take
Gilbert's dues.
The conditions imposed in writing on Gilbert's dues
receipt by Parent, pursuant to Rodd instruction, appear
of record in a subsequent Nixon letter to Gilbert dated
20 February 1986, which states as follows:
Dues accepted subject to our right to seek review
of the N.L.R.B. order upholding Administrative
Law Judge Lawrence's Decision and subject to our
right to invoke 'the status quo ante and nullify any
nomination or other incident of membership should
our position be upheld on review.
Gilbert thus testified credibly that he observed the
light on the phone (extension) go out, indicating Parent's
conversation with Attorney Rodd was over. Gilbert
waited a few minutes more. (Moran corroborates he
waited 2-3 minutes.) When neither Parent or Nixon had
come out by that time, Gilbert went back into their
office, again without knocking. Gilbert recounts that he
said to Parent, "Let's pay my dues." Nixon has testified
that Gilbert said, "I'm tired of this shit, what's taking so
long." (Nixon wrote this down.) Nixon also asserts that
in their conversation Gilbert also called Nixon a "f--
asshole." (Nixon has also testified that Gilbert called him
the same thing in a 1984 meeting.)
Moran was not in the office. Moran asserts that she
did not hear the conversation in the office; nor did she
observe what happened in there, though she was aware
Gilbert was in there, for not more than 5 minutes. Parent
recalls that Gilbert came in the office and asked what
was the delay; and, in a loud voice said, "I am not going
to wait all day," and, "What are you guys doing?"
Parent initially related that Nixon told Gilbert to get out
of the office, they were having a discussion. Parent re-
lates Gilbert said he was not going to leave, and the dis-
cussion between Nixon and Gilbert then became heated.
On cross-examination, Parent recalled that Gilbert
asked, "Why do I have to wait so long"; and, that Nixon
said, "Hey, we are in process of taking care of your
dues. This takes time." Gilbert replied he had been there
for a half hour, or three quarters of an hour. Parent ini-
tially testified that while Gilbert was still talking to
Nixon in a loud voice, if he recalled right, Gilbert called
Nixon a "f- asshole," though he later testified that
comment stuck in his mind most. Parent testified that
Nixon had not said anything derogatory to Gilbert
before that remark of Gilbert. I am persuaded that Gil-
bert made the remark that Nixon firmly, and Parent
somewhat less so , have attributed to him; and that Gil-
bert likely did so when Nixon said these things take time.
I credit that Gilbert made the remark largely because of
my convictions on what followed.
383
Gilbert's version of the conversation continues that
Nixon said, "You think you are a smart guy, don't you? I
am not afraid of any lawsuit you have, and you are
going to get what's coming to you." Gilbert (alone) has
testified that Nixon then picked up a wooden chair, and
placed it between them, asserting it was like Nixon was
going to hit Gilbert with it, or press Gilbert against the
windows. However, Gilbert acknowledges that Nixon
did not touch Gilbert. According to Gilbert, Nixon then
ordered Gilbert out of the room. Gilbert told Nixon that
he would leave when he was allowed to pay his dues.
According to Gilbert, Nixon then ordered Parent to
finish the collection of Gilbert's dues outside the office,
at the counter. Moran did not see the incident, and does
not corroborate Gilbert's account of the chair incident.
Nixon denies he picked up a chair in the presence of
Gilbert; and Nixon asserts that when Gilbert raised his
voice and said he was tired of this shit, etc., Nixon told
Gilbert to get out of his office. Nixon otherwise confirms
that Gilbert refused to do so, until Nixon instructed
Parent to take Gilbert out of the office, and (essentially)
conduct the business outside at the counter.
Parent has testified that he didn't see Nixon pick up a
chair, or do anything against Gilbert. Parent also testi-
fied that there was no pushing or shoving; and, if there
had been, he would have seen it. Of the latter, I am
wholly convinced, for no one has asserted it to be other-
wise. Parent did confirm that when Nixon told Gilbert,
"Get out of my office," Gilbert said, "I want my dues
tendered [sic]. No other people have to go through this."
Parent also testified that Nixon told Parent, if Gilbert
had business and we had to accept his dues, to do it in
the financial section. Even more significantly Parent tes-
tified that as he did not want a confrontation, he then
asked Gilbert to leave, saying, "Come on, let's go take
care of the business." Gilbert and Parent then left the
office.
First, I do not believe that Gilbert has falsified this in-
cident of the chair, so much as embellish it in his favor. I
am persuaded that Nixon probably did make a motion of
picking up a chair and placing it between Gilbert and
himself, and right up close to Gilbert. However, I am
convinced it was, at best a moment of emotional exuber-
ance immediately discontinued. I further am convinced
that Nixon did not menace Gilbert at all, so much as
simply lose his cool, immediately recognize it, and then
tell Parent to take Gilbert's dues outside, if they had to
do it. Parent took his cue immediately to do just that,
before any physical confrontation (actually) did develop.
Parent relates that he went to the,financial area; and
that as he did, Moran kind of poked him, saying she had
places to go to. Parent told Moran that if she had dues
payment business he would take care of her after Gilbert.
Gilbert recounts that at the counter, Parent wrote out a
statement (on his receipt, discussed supra), signed off on
Gilbert's dues card, stamped it; and he took the money
from Moran. Moran confirms Parent did the paper work
and they exchanged checks and receipts.
According to Moran, however, by this time, Nixon
had come out of the office to a point near the copy ma-
chine. Moran testifies that Nixon said to Parent, "Hurry
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
up and get them out of here, and let them crawl back
under the rock they came out of." Moran acknowledges
that she made a couple of snide remarks back at Nixon,
namely, that she really did not care to invade his living
room; and, some people act like apes.
At about this time, LL 707 recording secretary Frank
Alteri came into the hall. Moran knew that Gilbert had a
letter to deliver to the recording secretary, and said to
Gilbert, "Frank's here. Why don't you give him your
letter." (The letter was a Gilbert acceptance of nomina-
tion required to be on file in advance, in the event the
member was not at the meeting when nominated.) Gil-
bert testified: that he attempted to hand the letter to
Alteri; that Nixon instructed Alteri not to accept the
letter from Gilbert, and said that he (Nixon) would deal
directly with Gilbert. Alteri however accepted the letter
from Gilbert. Moran confirmed, with somewhat more
definitive testimony, that Gilbert called Alteri over; that
Nixon told Alteri to stay where he was, because he
(Nixon) would accept anything Gilbert had to give the
Union; that Alteri came over anyway; and that Gilbert
gave the letter to Alteri, and explained what it was. Gil-
bert and Moran then left the hall, close to 4 p.m.
d. Nixon's prevention of an LL 707 nomination of
Gilbert for dlr
Two days later, on Sunday, 16 February 1986, Gilbert
attended LL 707's scheduled nomination and endorse-
ment meeting . Gilbert arrived at about 10 a.m. No one
challenged his right to be there. Nixon presided, and
chaired the meeting. In due course, LL 707 nominations
began. Gilbert relates that member John Jerome put Gil-
bert's name in for nomination. According to Gilbert,
Nixon promptly ruled that Gilbert could not be nominat-
ed. Nixon read aloud DL 91 bylaws (art. X) section 3
(supra) to the members. Gilbert as promptly took an ex-
ception to the Chair's (Nixon's) ruling . Gilbert asserts he
said he was a member in good standing, and that he be-
lieved he qualified for reelection as an incumbent, or
words to that effect. In prior affidavit, Gilbert had as-
serted, "I believe I also referred to two labor board
orders." When cross-examined as to the cases not involv-
ing dlr recall, Gilbert retorted they had to do with all
the rights that should have been given him. Nixon ruled
Gilbert out of order.
Nixon has denied that he had a previous discussion
with Almeida about the eligibility of Gilbert to run for
dlr office. Nixon testified that he disqualified Gilbert.
Nixon asserts he prepares for a meeting 3-4 days prior.
Nixon asserts that it had crossed his mind that Gilbert's
name would be placed in nomination; that he personally
read DL 91's Bylaws requirements; that he (alone) made
the determination to disqualify Gilbert; that he knew Gil-
bert had not been working at the trade for a year, and
(initially) asserted that is what he based his decision on;
and that he discussed the matter with no one, not even
his own executive board. Nixon has acknowledged that
of the 10-15 other members put forward for nomination
to dlr, only Gilbert's nomination was disqualified. (The
required LL 707 runoff, e.g., to get the number of names
placed in nomination down to the number allowed for
the open dlr positions, was never accomplished, due to
subsequent developments.)
On second occasion Nixon has asserted that he dis-
qualified Gilbert on basis of (lack of) membership for 2
years in good standing, and, because Gilbert was not
working at the trade for 1 year prior to nomination. At
best, only with additional testimonial strain, has Nixon
related the base of disqualification included an additional
reliance on the fact that, by virtue of the recent Settle-
ment Agreement, Gilbert would no longer be employed at
P& W, thus was not employed in one of the shops under the
jurisdiction of DL 91. To the extent Nixon testimony may
be deemed eventually to have retracted a reliance on
Gilbert's nonmembership it is simply not credited. (I am
wholly convinced that was an operative consideration
for Nixon, whether stated by him at that time, or not.)
Nixon did acknowledge claim by Gilbert of having paid
his dues; and a reference made to the Labor Board; but
otherwise asserts only there was a lot of rambling on by
Gilbert. Nixon does not explicitly deny Gilbert claim of
being qualified as a member , and an incumbent dlr.
In regard to DL 91 bylaws requirements Gilbert testi-
fied that he had a general awareness of them at the time,
and had greater awareness of them thereafter. Relatedly
Gilbert has acknowledged, that at the time (of attempted
nomination) he was not employed in the (P&W) shop;
that he was not employed in the industry; and that to be
eligible he had to be either employed by the DL, or vic-
timized. As noted, Gilbert asserted (at the meeting) that
he believed he qualified, being both member in good
standing, and (essentially) an incumbent dlr.
Nixon testified that the nomination meeting was not
completed because Gilbert and Mary Alice Moran con-
tinued to interrupt him; that they would not heed the
chair's decision to sit down; that he ruled Gilbert out of
order more than three times; that he asked them to leave;
and that Gilbert would not leave. Nixon testified that
Gilbert said, "You can call the police, like you have
done in the past, but I am not leaving." Nixon relates he
started to lose control; people got upset; they started
heckling; and the whole meeting was disruptive [sic]. In
contrast with Rondeau's apparent permitted presence at
LL 700's nomination meeting , Nixon asserts that at LL
707, the dlr (apparently Parent) had to exit while the
nominations were in progress. As noted, Parent has not
testified as to what exactly was earlier told him about
Gilbert's eligibility by Almeida, nor as to his exclusion at
this meeting.
In contrast with his general knowledge of DL 91
bylaws, Gilbert held himself out as an expert, on the con-
duct of LL meetings. Gilbert testified that at that nomi-
nation meeting he insisted on his right to challenge the
Chair's ruling on the disqualification of his nomination.
In that respect Gilbert has acknowledged that Nixon
ruled him out of order on the same matter, on several
occasions, at least three times; but Gilbert insisted on his
right to speak. (Another member (Moran) challenged the
chair's ruling, and she was also ruled out of order.) Gil-
bert acknowledged that Nixon asked Gilbert to leave the
room, and to leave the hall; but Gilbert did not, and con-
tinued his challenge to the chair.
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 385
Gilbert testified that his concern at the time was the
challenge to the Chair , and the (non)recognition of it.
Gilbert has testified that he (first) tried to explain to
Nixon that under the constitution , and Roberts Rules of
Order, if the Chair is challenged on a ruling , the Chair
has to turn the gavel over to the vice president and accept
the challenge. Constitution and bylaws appear to fully
support that position. (See G .C. Exh . 4, Act XXII, Rules
of Order for LLs, Secs . 14-15, p. 78.) The Chair's ruling
is then either (to be) sustained, or rejected . According to
Gilbert 's (uncontested) testimony that required proce-
dure was not followed . However , Gilbert has (essential-
ly) acknowledged that during their discussion he also
told Nixon that Nixon did not know the constitution and
bylaws, or a combination of the two , and/or did not
know them well enough to properly conduct the meet-
ing.
Gilbert relates that Nixon called a recess . Gilbert as-
serts that Nixon did not explicitly state the reason for
calling the recess . Gilbert however, acknowledged that
in challenging the Chair , Gilbert had raised his voice,
though Gilbert denied he was shouting. Gilbert more-
over conceded that he heard heckling (of Nixon) and
other comments at the time . Finally, Gilbert has ac-
knowledged that he believed Nixon had called the
recess, to summon the police ; and, Gilbert further ac-
knowledged that he also told Nixon that Nixon could go
ahead and call the police, like Nixon did before . Gilbert
did not leave the hall . The police were in fact sum-
moned. Gilbert spoke to the police . Gilbert testified the
police did not direct him to leave the hall, and he did
not leave the hall . Parent did not testify as to this meet-
ing.
Nixon's testimony about adjournment vis-a-vis recess,
in relationship to a call of the police , is confusing . Other-
wise Nixon acknowledged that he did call the police;
that he did complain about Gilbert's conduct ; that the
police did not arrest Gilbert, nor did the police make
Gilbert leave the hall. Nixon has also acknowledged the
normal procedure for a challenge of chair ruling; and he
acknowledged that he did not place the challenge to the
chair before the body for a resolution. Nixon asserts he
held firm in' his ruling, because he felt he could not over-
rule DL 91 bylaws . Significantly, if not deja vu of LL
707 action in 1984, Nixon asserts he told Gilbert, that
Gilbert knew the proper channels that Gilbert could go
through.
Nixon (I fmd) subsequently reconvened the meeting.
According to Gilbert, a point of order was immediately
raised (by Moran), which itself has to be acknowledged,
but was not. (The point of order addressed the question
why the recess had taken longer than Nixon had said it
would.) Gilbert relates Nixon made no response . Gilbert
thought Nixon asked for a' motion to adjourn. In any
event Gilbert acknowledges there was a motion to ad-
journ . Although Gilbert did not recall a second, he did
concede a vote was taken and the meeting adjourned,
though with a "quick gavel ," which Gilbert described as
done without following prescribed formal language as to
the vote taken , and results.
Nixon confirmed that he reconvened the meeting. Sig-
nificantly, Nixon acknowledged that he made no effort
(on that occasion) to continue the nomination process.
Nixon testified there was a call for a motion to adjourn,
a vote taken, the motion passed, and he adjourned the
meeting. Nixon did not recall a challenge [sic] to the
chair as to why the meeting was reconvened in excess of
the time period he had set; and he testified that if Mary
Alice Moran asked the Chair that, he did not hear her.
It is perfectly clear to me from, the above that on 16
February 1986, president Nixon, and thus LL 707, in-
tended to and did first deny Gilbert a dlr nomination,
and then denied Gilbert orderly process on the nomina-
tion of Gilbert to run for dlr. This circumstance, coupled
with the General Counsel's proper reliance on LL 707
hostility to Gilbert as found in Judge Harmatz' and
Judge Lawrence's decisions, and otherwise evidenced
herein as continuing, (I find) makes out a very strong
prima facie case that as of 16 February 1986, Respondent
LL 707 restrained and coerced Gilbert by failing and re-
fusing to allow Gilbert to be nominated as a candidate
for election to the position of DL 91 dlr, in violation of
Section 8(b)(1)(A) of the Act, as alleged in the com-
plaint.
Gilbert and Nixon (and former president) Nilson had
another confrontation on 19 February 1986, on an occa-
sion when Gilbert attempted unsuccessfully to vote in a
LL 707 steward election. Gilbert was clearly not al-
lowed to vote. Gilbert's testimony as to the reasons he
was told he could not vote for steward are not as firm or
convincing as other of his testimony on the nomination
issue . Gilbert initially testified that he was told by the
election teller, Jerry Birmingham, that Gilbert could not
vote, but not why. Later Gilbert relates that he believed
Birmingham told him that his name was not on the
checkoff list, and he was not a member; and that he be-
lieved he told Birmingham that he was a (cash) member.
Gilbert asserts that President Nixon was there, and that
Nixon then told Gilbert he was not a member and could
not vote, and also, that Gilbert was to leave the hall.
Gilbert inquired of Nixon what grounds (thereby indicat-
ing Nixon had not earlier stated the grounds); and Gil-
bert has Nixon (then) say he was not a member, and
should leave the hall. However, in later examination, Gil-
bert acknowledged that Nixon possibly told Gilbert that
he would not vote for steward because he was not em-
ployed by P&W; and, that he was also possibly told to
leave that (election) part of the hall, though he did not
recall that. I find Gilbert was precluded from voting for
steward, but I do not find Gilbert's assertions as to the
reasons given him are advanced in manner sufficient to
be persuasive. Whether Gilbert properly was precluded
from voting for steward is neither a matter of complaint
allegation, nor necessary for further resolution herein.
Be that as it may, I do credit Gilbert's further recol-
lections, on basis of largely uncontested testimony, that
he thereafter asked Secretary Glenn to get the dlr
(Parent); that Nixon instructed Glenn not to do it; and
Nixon told Gilbert, I am the assigned dlr today. They
had left the election area and were walking toward the
office at the time. Former' President Nilson walked in, as
Nixon asked Gilbert to leave the hall. According to Gil-
bert, Nilson butted in and said , yeah, why don't you
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leave . Gilbert asked Nilson , what are you , the acting
president of the day . Gilbert then told Nixon that Gilbert
was not going to leave, that he had business to conduct.
Gilbert relates he then asked Nixon for a copy of the
constitution and (apparently) DL 91 bylaws. Nixon told
Gilbert, you can get them tomorrow . Gilbert responded
that he did not want to come all the way back the fol-
lowing day, and that he would appreciate getting the
copies that day.
According to Gilbert version I credit, Nixon first
called Gilbert a low-life . Gilbert acknowledges that he in
turn called Nixon "a slime" ; and, that quite possibly Gil-
bert also said LL 707 was "a slime ball organization,"
though at hearing Gilbert clarified he meant the heads of
that organization , not the rank-and-file . According to
Gilbert, Nixon then said that he had learned everything
he knew from Gilbert. Gilbert retorted, if Nixon did, he
did not learn it well ; and further stated, that he (Gilbert)
had never treated anyone the way they were treating
him in that office. As noted Gilbert 's account is largely
uncontested . There is no question that the hard feelings
of LL 707's both current , and former president had con-
tinued against Gilbert unabated.
In addition to the recited LL 707 reservation language
(in accepting Gilbert's dues), in the same 20 February
1986 letter to Gilbert, with copy to Counsel of Record,
Nixon there advises Gilbert.
707, as well as the stated reasons of Gilbert's present
nonemployment in one of the (P&W) shops coming
under the jurisdiction of DL 91 (by virtue of recent Set-
tlement Agreement) that disqualified Gilbert.
Finally, the same letter informs Gilbert:
The February 16th nomination meeting was ad-
journed when you engaged in conduct unbecoming
of a member by refusing to accept the rulings of the
Chairperson, by using loud and profane language,
and by generally preventing the orderly conduct of
the business of the Local. A meeting will be held on
February 23, 1986, at 10:00 a.m. at the Union Hall
to complete the business that was not completed at
the February 16, 1986 Meeting. It is difficult
enough for the Union to attract members to meet-
ings without the additional problems of disruptions
and unnecessary adjournments. Therefore, this is to
request that, should you attend the meeting on Feb-
ruary 23, 1986 or any other meeting, you conduct
yourself in keeping with the duties of a member
under Article L, Section 3 of the International Con-
stitution in order to avoid having to again adjourn
the meeting.
The General Counsel does not allege the same is inde-
pendently violative of the Act.
As was explained to you at the time, as well as to
your attorney Brad Gallant, we have not yet decid-
ed whether to seek review of the National Labor
Relations Board's Order relating to your member-
ship. We accepted you dues only upon the under-
standing that should the Board's Order be subject to
review and should our position be sustained, we
have reserved the right to revoke your membership
and nullify any right or privilege extended to you
by virtue of membership in Local 707 retroactive to
May 1, 1984.
Moreover, by separate letter of same date, with copy
to Counsel of Record, Nixon recites to Gilbert the for-
mally (asserted) reason for his declared noneligibility for
nomination on the there broader stated basis, and exclu-
sive of lack of membership:
2. A member actively employed in one (1) of the
shops coming under the jurisdiction of this District
or employed by the District or one (1) of the Local
Lodges affiliated with this District for a period of at
least one (1) year prior to nomination... .
As you know, you have the right to appeal this
determination pursuant to Article L, Sections 14, 15
and 16 of the International Constitution.
In regard to the above written declaration however, I
have earlier observed the appreciable variance in Nixon's
testimony as to the actual reasons for his declaration of
disqualification of Gilbert's nomination including admis-
sion on nonmembership . I remain unpersuaded of this un-
convincing disclaimer (if the same is to be deemed effec-
tively disclaimed at all), viz, that Nixon 's reasons (stated
or otherwise) included Gilbert's nonmembership in LL
Poulin testified that there was an inquiry made of
International on Gilbert. Though initially testifying that
Gilbert sent a wire to the IP, Poulin later testified that
he did not know whether the inquiry made of the IP was
by document (e.g., telegram) or phone inquiry. No tele-
gram has been produced. What Poulin did know and has
testified to is that he received a copy of an IP response.
That response (Resp. Exh. 19), an IP wire dated 21 Feb-
ruary 1986, addressed to Gilbert, pertinently provides:
IN REURTEL, [SIC] BE ADVISED THAT I
HAVE BEEN INFORMED BY WALTER L.
NIXON, III, PRESIDENT OF LOCAL LODGE
707, THAT YOU WERE DISQUALIFIED
FROM NOMINATIONS AS LABOR REPRE-
SENTTAIVE OF DISTRICT 91 IN ACCORD-
ANCE WITH ARTICLE X OF DISTRICT 91
BYLAWS, AS YOU ARE NOT ACTIVELY EM-
PLOYED IN ONE OF THE SHOPS COMING
UNDER THE JURISDICTION OF DISTRICT
91.
PLEASE BE ADVISED THAT I FIND
THAT PRESIDENT NIXON WAS CORRECT
IN RULING YOU NOT QUALIFIED AS A
CANDIDATE FOR THE POSITION OF
LABOR REPRESENTATIVE.
Nixon testimony confirms that he called an additional
meeting for 23 February 1986 for the purpose of com-
pleting LL 707 nomination proceedings (as required) in
the month of February of the election year. However,
when this special meeting did not receive the required
institutional member attendance response, the meeting
had to be canceled. As a result LL 707 was unable to
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
nominate and endorse any of its candidates for election
to DL 91 dlr.
Final Analysis of LI 707 Conduct Preventing
Gilbert dir Nomination
It is readily apparent from the above wire that the IP
ruling addressed only a Nixon reported failure of Gilbert
to qualify on the basis of an employment in one of the
shops coming under the jurisdiction of DL 91, on which
the IP ruled in agreement . But Gilbert did not claim to
Nixon that he was qualified to run for dir on that basis.
What he did clearly recently claim to Nixon is that he
was a member in good standing, and claimed all rights of
membership under the two prior Board decisions.
Whether Gilbert at this time explicitly claimed he was
qualified to run as an incumbent dir is more questionable.
However, Gilbert had previously made clear claim to
both LL 707 and DL 91 that he had not resigned; and he
did earlier assert right of recall to open dlr position
during his unexpired previously elected term which I
have found was unlawfully denied him.
Poulin has otherwise testified that it was apparent to
him after the Settlement Agreement that Gilbert was not
qualified to run for dlr. However, all that is apparent
from the Settlement Agreement itself that is material to
the issue of Gilbert's DL 91 qualifications is that Gilbert
was, and would be no longer employed by P&W. In
contrast with IP wire, Gilbert never raised the claim he
was qualified on that basis after the Settlement Agree-
ment was executed.
The parties did not address the issue of Gilbert's dir
qualifications in reaching the Settlement Agreement.
They readily could have; but this record indicates they
simply did not. Moreover, Poulin has specifically testi-
fied that the IP had not discussed the matter of Gilbert
eligibility with him; and Poulin also testified that he
could not change the interpretation of the IP as made.
Nixon has not testified as to raising other issues to IP.
Indeed, Nixon did not testify as to a contact with the
International at all; and, of course, International is not
charged with anything. But Nixon's variant hearing testi-
mony as to his'own reason(s) for his actual disgilalifica-
tion of Gilbert's nomination varied, and I have found in
critical membership part, is unconvincing. The above
limited addressment by IP does not serve to absolve
president Nixon of his conduct paramountly evidenced
herein as with real unlawful motivation to disqualify Gil-
bert, and prevent his nomination . That act effectively
prevented Gilbert from the exercise of his Section 7 right
to participate in union activity by seeking DL 91 office
without any LL 707 obstruction based on LL 707 con-
tended nonmembership in the Union; or, hostility to Gil-
bert's prior exercised Section 7 right to internal union
dissidence, to file charges and to support the same with
testimony before the Board; to continue to seek to repre-
sent employees as a dir; and prevented Gilbert as well
from having the opportunity to have his positions and
service to the union members evaluated in the first in-
stance by a nomination of LL 707 members, and eventu-
ally by the members of LLs affiliated with Dl 91. It is no
defense to Nixon and/or Respondent LL 707 that as the
event played out no LL 707 member ended up being
387
able to be timely nominated, endorsed and participate in
the election.
Indeed even if it be assumed that Nixon's action was
truly singular, without any DL 91 input, it is then pre-
sented as both one solely taken on his own, without con-
sultation with anyone (let alone without LL 707 execu-
tive board notice or approval), and accomplished in a
manner on its face flying in the face of known fundamen-
tal procedures that appear to govern all constitutional
LL action. Thus, effectively Nixon's refusal to accept an
(at least) initial orderly challenge to his ruling effectively
took the matter when contested by Gilbert out of the
hands of the LL body lawfuly assembled, and thus
blocked any possibility for the LL's own timely rejection
of Nixon's ruling. Moreover the position Nixon took and
held firmly to, with attendant procedural departure justi-
fied on the basis of holding to DL 91 bylaws, in sub-
stance and effect constitutes but a Nixon interpretation of
Gilbert's failure to qualify under DL 91 bylaws. Thus his
decisional interpretation stands in stark contrast with the
clear weight of other union witnesses, who have various-
ly but (essentially) cumulatively asserted that where
there is question of eligibility of a member who desires
to run for dir, or it is anticipated the eligibility of the in-
dividual may be contested, the resulting constitional and
bylaws interpretations are for the IP. Insofar as evi-
denced in this record, inquiry on eligiblity where ques-
tioned or questionable had been made in advance for
others, but not for Gilbert.
Finally to the extent it is to be argued that even if
Nixon acted institutionally improperly, that deficiency is
cured with IP ruling upholding Nixon on the ruling dis-
qualifying Gilbert on the ground stated, that argument
must be rejected. I am convinced that Nixon operated
with at least partial reliance on 707's contention that Gil-
bert lacked membership. It is also no defense to LL 707
violation of the Act that the International ruled on a
nondispositive manner.
I have earlier found that General Counsel's proffered
and credited evidence has made out a strong prima facie
case that, in violation of Section 8(b)(1)(A), president
Nixon and LL 707, on 16 February 1986, restrained and
coerced Gilbert and other employees by preventing the
nomination of Gilbert to run for dlr elective office. Re-
spondent LL 707's proffered evidence has- failed to con-
vince me of the contrary.
Final Analysis of DL 91's Conduct in Preventing
Gilbert dlr Nomination
The complaint additionally alleged that since on or
about 1 February 1986, DL 91 also violated 8(b)(1)(A) in
failing and refusing to allow Gilbert to be nominated as a
candidate for election to dlr position.
Poulin testified that DL 91 was in touch (on Gilbert's
eligibility) with the International through Almeida, or
Webber; and otherwise (generally) he may have had a
conversation with Almeida about it. As noted there is no
evidence presented of a DL 91 written inquiry of Poulin
or International on Gilbert (as there is in abundance for
Hoffman and Kiefer); and Respondent's counsel of
record appears to have represented he was aware of
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
none. Rather than evidencing nondiscriminatory IP rul-
ings in application to Gilbert and others, the disparate
treatment of Gilbert at DL 91 level is apparent.
Almeida testified, at least on one occasion, that DL 91
determined that Gilbert was not eligible under the con-
stitution and DL 91 bylaws to run for election to dlr po-
sition . Almeida testified generally to having had discus-
sion with Gilbert and others about a conclusion of DL
91 that Gilbert and others (e.g., Kiefer and Hoffman) did
not meet the eligibility requirements of dlr position. Al-
meida also testified that it was his opinion that Gilbert
was not eligible. However, Almeida clarified that he did
not make the decision on Gilbert (or the others).
Almeida testified that he discussed Gilbert's (and
others') eligibility with (then) Directing LR Webber. Sig-
nificantly, Almeida testified that Webber was to get the IP
clarification on the candidates, including Gilbert,• and he
thought Webber had sought the clarifications. Webber has
not testified at all as to seeking clarification from IP
about Gilbert's eligibility. Rather she asserts she gave no
thought to appointing Gilbert, and it was not discussed
with her. It is clear she did so for the others (Hoffman
and Kiefer) beginning in late 1985, which appreciable
process continued through January, into early February
1986.
Almeida also testified that he saw the writings on
Kiefer and Hoffman, and IP responses holding them un-
qualified. Almeida had also testified that International's
decision (on Gilbert) was consistent with their opinion
on Gilbert's eligibility and qualification. However, Al-
meida's testimony as to awareness in writings (inquiry
and IP response) as to Gilbert's eligibility is somewhat
confusing. Almeida testified (initially) that he saw a copy
of a writing to the IP on Gilbert; and he testified (initial-
ly) he thought a communication, or interpretation came
down from International on Gilbert (as it did on Kiefer
and Hoffman). However, Almeida testified that he did
not see International's answer on Gilbert, or if he did, he
did not recall it. After Respondent's Counsel of Record
had represented he was unaware of International docu-
ments on Gilbert (seemingly of Kiefer and Hoffman
nature), Almeida then testified that to his (own) knowl-
edge there are no (such) documents.
Almeida otherwise testified that he did recall a con-
versation with Poulin and Engelhard, but (only) in a
meeting in regard to other federal litigation, and to the
effect that Gilbert probably would have to be disquali-
fied, to be consistent with the applications made to Hoff-
man and Kiefer. However, Almeida acknowledged that
neither Hoffman or Kiefer held an elective (e.g., dlr)
office (with tenure); and certainly neither could qualify
as a laid off incumbent dlr with tenure. (It will be re-
called that Hoffman had resigned her DL 91 employ-
ment, and Kiefer was laid off from a nonelective posi-
tion, and later employed part time, by DL 91 while on
LOA from another employer (ULA). Hoffman was also
employed elsewhere, and worked (at best) part time if
not casually for DL 91. Their circumstances clearly, did
not present the issue of an incumbent dlr on layoff, with
unexpired tenure, let alone the question of independent
qualification on the basis of "victimized." Although Al-
meida has testified relatedly that an issue of "victimized"
is for IP interpretation, Almeida has also testified that an
incumbent dlr, though not employed in the shop (e.g.,
P&W), can run; and that if Gilbert did not resign, his term
did not expire until 1986; and, if an active dlr, he was
eligible to run again . Even more significantly, Almeida
has testified that if Gilbert had been reappointed (re-
called) in 1985, he would have been eligible to run again.
At the very least there were recognizable issues to be
presented to the IP for clarification if Gilbert was not to
be treated disparately from Kiefer and Hoffman.
There is limited suggestion of record that Almeida, at
this time, may have personally preferred that Gilbert be
allowed to stand for dlr election. Whether that be the
case or not, is not controlling of the issue. Neither does
the same, if so, convince me that there was not a con-
tinuing animosity between Almeida and Gilbert. Al-
though, on the record before me, unlike that before my
predecessors, it appears that Almeida, in the main, kept
those ill feelings in greater check. Nonetheless, it is clear
to me that neither did Almeida do anything to press DL
91 to seek formal interpretation on Gilbert's eligibility.
This record wholly convinces me there was no formal
submission by DL 91 on Gilbert's eligibility, and for that
disparate circumstance DL 91 is clearly responsible. It is
clear to me also that (at least) as early as 7 February
1986, if not shortly after the Board's decision issued on
16 January 1986, that DL 91 officials were well aware
that Gilbert actually intended to run, and they took
active steps at the DL 91 and LL levels to prevent his
nomination. It is concluded and found that General
Counsel has also made out a prima facie case that (at
least) since on or about 7 February 1986, Respondent
DL 91 failed and refused to allow Gilbert to be nominat-
ed as a candidate for election to dlr position. As in the
case of analysis of Nixon conduct heretofore determined
unlawful, the proffered evidence as to DL 91 justifica-
tion wholly fails to persuade.
Thus the Settlement Agreement does not carry the
day for DL 91, any more than it can do so for LL 707.
The fact that it appears there is no dlr representative at
the time of President Nixon's unlawful conduct on 16
February 1986 does not save DL 91, where there is con-
vincing evidence' that DL 91 Representative Rondeau
(albeit reluctantly) is engaging in the same pattern of Gil-
bert nomination prevention. The disparate silence as to
DL 91's presentment of Gilbert real elibility issues to
International, speaks volumes as to DL 91's real intend-
ment; and, in my view, it is not overcome by the IP wire
to Gilbert addressing specifically only a matter never
shown raised by Gilbert, and (at best) only advanced by
Nixon opportunely.
Finally, I accept on this record that constitutional in-
terpretations of one individual member's qualifications to
run for DL dlr position are for the IP, and specifically so
on "victimized." The effect of the facts found herein that
Gilbert had only submitted a conditional resignation; that
the condition never occurred; that Gilbert effectively
never resigned, and that he was unlawfully not recalled,
I do not view to rest on such. Whether Gilbert was
qualified as an incumbent dlr with unexpired term
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES) 389
though laid off for more than a year, in my view, need
not be reached.
First, the evidence before me, when all is marshalled
and closely analyzed, reflects that DL 91 never present-
ed those issues to the IP for clarification but rather,
while contemporaneously doing so for favored others ac-
tually participated in the prevention of Gilbert from
being nominated on another unurged basis. Secondly, the
disparate treatment was conducted in a background of
hostility to the same protected conduct of Gilbert as ear-
lier noted in connection with LL 707. This also describes
DL 91 restraint and coercion of Gilbert and employees
in violation of Section 8(b)(1)(A) of the Act. But there is
still another, and in agreement with the General Counsel,
in my view, wholly dispositive consideration why DL 91
must be found to have additionally violated the Act in
the above respect. The remedy of prior violation requires
it.
In that regard, I have earlier found that since on and
after 11 March 1985 Respondent DL 91 had unlawfully
refused to recall Gilbert (firstly) to an open reinstituted
dlr position for which he had more seniority than the in-
dividual (Tinella) recalled in his place; and (secondly),
that DL 91 thereafter even refused to recall Gilbert to a
dlr position that subsequently became vacant on 1 May
1986 with dlr Webber's interim election to Directing LR
position in April 1986, all in violation of Sections 8(a)(4),
(3), and (1).
Normal Board-ordered remedy for such violation(s),
apart from a directed make-whole backpay remedy, is
clearly to direct an immediate and full reinstatement to
the position Gilbert would have occupied but for the
above discriminations, together with all rights and privi-
leges of the employee's former position. Although Gilbert's
(previously) elected dir tenure expired on 30 April 1986,
it appears to me hardly open to question as a sequitur of
the specific unfair labor practices' found above that a full
reinstatement of Gilbert would normally and rightfully
encompass the right and privilege on Gilbert's part to
claim status of an incumbent , at least through 30 April
1986. On that basis Gilbert was unquestionably eligible on
this record to have run in 1986 for reelection to dlr posi-
tion as a qualified incumbent. In that regard, the conten-
tion that'only the IP can address International's constitu-
tion and DL 91 bylaws for purpose of interpretation of
"victimized" provisions contained therein, can in no way
serve to restrict the Board in fashioning its own appro-
priate remedy for DL 91's commission of the earlier
found unfair labor practices involving nonrecall to avail-
able dlr position(s).
Finally, to the extent Respondent DL 91 would seek
to argue that one of the effects of the Settlement Agree-
ment is that its terms preclude a warrant for such a re-
medial order, that argument, in my view, also cannot
prevail. Attorney Gregg D..Adler, who represented LL
707 (not DL 91) and Gilbert (indirectly as grievant) in
the arbitration (and related) matters, testified before me
that how the Settlement Agreement impacted on Gil-
bert's (conditional) resignation was not discussed as a
part of the Settlement Agreement; indeed, Adler has tes-
tified that he was not even aware that was an issue.
Thus, although the record reflects that there were a
number of discussions, on the one hand, by LL 707's at-
torney Adler with Engelhard (then) representing the
unions (International , DL 91 and LL 707, and certain of
their officers) involved in the Gilbert (LMRDA) federal
action (not being covered by Settlement Agreement) and
as well (apparently) with International 's counsel; and, on
the other hand, that there were a number of Adler
and/or Gilbert related conversations with Gilbert 's coun-
sel of record (and other member(s) of firm) representing
Gilbert (and others) in the same federal action, and per-
haps other state court matters), and while there is no
doubt that a variety of all the parties' interests were ef-
fectively being accommodated in the language ultimately
utilized to record the Settlement Agreement reached on
the multiple matters the Settlement Agreement covered,
the fact is that neither by its terms , or otherwise, did this
Settlement Agreement purport to resolve the specific
matter of a Gilbert claim to DL 91 layoff status (and
recall right) vis-a-vis conditional resignation of dlr status.
Neither does it appear , on this record , that effect was
even in the contemplation of the parties.
The fact is that Gilbert has testified credibly that he
has never (before or after this Settlement Agreement) re-
turned to P&W employ, nor occupied the position of
third-shift safety representative, which was the very con-
dition precedent to effectuation of his resignation. Gil-
bert has also testified credibly he has never been recalled
as a DL 91 dlr.
Poulin, who was in communication with union counsel
of instant record (then representing International, DL 91
and LL 707 in the federal action ) in regard to settlement
discussions, and who has testified that he wanted to
make sure in that regard that International 's and his own
"vested" interests (vis-a-vis Gilbert's federal- action, that,
inter alia , named International and him), as well as Gil-
bert 's interests were fully protected, has significantly testi-
fied that the (question of) eligibility of Gilbert (to run)
for dlr position wouldn't enter that conversation; and
Poulin also recalled no concern by LL 707 on Gilbert's
dlr eligibility raised at that time.
In these circumstances, just as I wold not detract from
the terms of the Settlement Agreement as clearly
reached by the parties , neither would I (effectively) add
to it by implying that an entry into this Settlement
Agreement carried with it any surrender of Gilbert's
claims resting on continuing dlr status . If the parties had
intended more than that,' they could surely have easily
stated it . Moreover, in my view, since Dl 91's now deter-
mined commission of the above unfair labor practices in
regard to its failure to recall Gilbert to open dlr position
occurred much earlier (and indeed were at the time also
subject of open instant complaint) subsequent private
remedy to which the General Counsel is not party,
cannot, and does not preclude Board provision for an ap-
propriate remedy for a meritorious matter that the Gen-
eral Counsel has timely pursued, and on which the Gen-
eral Counsel has now prevailed.
For all of the above reasons it is further concluded
and found that in violation of Section 8(b)(1)(A) DL 91
has restrained and coerced Gilbert, and other employees,
by failing and refusing to allow Wayne A. Gilbert to be
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nominated as a candidate for election to the position of
DL 91 dlr.
CONCLUSIONS OF LAW
1. Local Lodge No. 707, International Association of
Machinists and Aerospace Workers is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. Aeronautical Industrial District Lodge No. 91 Inter-
national Association of Machinists and Aerospace Work-
ers is a labor organization within the meaning of Section
2(5) of the Act; and it is also an Employer within the
meaning of Section 2(2), (6), and (7) of the Act.
3. In period December 1983 through November 1984
Wayne A. Gilbert engaged in protected intraunion activ-
ity of preparing and/or distributing views and opinions
critical of union officials , and engaged in other protected
conduct of filing unfair labor practice charges against the
above unions ; and he gave testimony in support of the
charges and at hearings before the Board.
4. By filing a Verified Complaint and Application for a
Temporary and Permanent Injunction and Temporary
Restraining Order against Gilbert in the Superior Court
of the State of Connecticut, Judicial District of New
Haven, on 7 December 1984 in retaliation for Gilbert's
engagement in the protected conduct described in para-
graph 3 above, Respondent Local Lodge No. 707 has en-
gaged in conduct in violation of Section 8(b)(1)(A) of the
Act.
5. By failing to recall Wayne A. Gilbert to a position
of District Lodge Labor Representative on and after 11
March 1985 , because Gilbert has engaged in the protect-
ed conduct described in paragraph 3 above, Respondent
District Lodge No . 91 has engaged in conduct in viola-
tion of Sections 8(a)(1), (3 ), and (4) of the Act.
6. By failing and refusing to allow Wayne A. Gilbert
to be nominated as a candidate for election to the posi-
tion of District Lodge Labor Representative , Respondent
District Lodge No. 91 on and after 6 February 1986, and
Respondent 'Local Lodge 707 on and after 16 February
1986, have engaged in conduct in violation of Section
8(b)(1)(A) of the Act.
7. Except as found above Respondents Local Lodge
No. 707 and District Lodge No. 91 have not engaged in
any other conduct in violation of the Act.
THE REMEDY
Having found that Respondent LL 707 and DL 91
have engaged in the certain unfair labor practices as
found above, I shall recommend that they be ordered to
cease and desist therefrom and that they take certain af-
firmative action designed to effectuate the policies of the
Act. I shall provide for the posting of an appropriate
notice to DL 91 employees and DL 91 and LL 707
members.
The General Counsel has urged that Respondent
Local Lodge No. 707 should be ordered to reimburse
Gilbert for the legal and other expenses incurred in Gil-
bert's defense of Respondent Local Lodge 707's retalia-
tory Superior Court action brought against Gilbert. Re-
imbursement for all legal expenses limited to defense of
that proceeding appears appropriate, and I shall provide
for it, Power Systems, 239 NLRB 445, 450 (1978).
Having found that Respondent DL 91 failed to recall
Wayne A. Gilbert on 11 March 1985 and thereafter to
position of DL 91 Labor Representative it is appropriate
that provision be made that Gilbert be made whole. An
issue on the scope of the remedial make-whole provision
arises because the record reveals Gilbert properly re-
called on 11 March 1985 would have been recalled at
that time to a dlr term ending 30 April 1986 . However, I
have also found that both Respondents DL 91 and LL
707 have engaged in additional unlawful conduct in ef-
fectively preventing Gilbert from running for reelection
to DL 91 dlr position thereafter , as an incumbent.
In initial brief the General Counsel had urged that if
Gilbert 's status is to be restored "as nearly as possible to
that which would have attained but for the illegal dis-
crimination," that a rerun election should be directed to
be held for the purpose of determining whether Gilbert
should be entitled to serve another term as DL 91 dlr.
Otherwise , so argued the General Counsel , Gilbert may
be denied backpay he would have been entitled to (if
successful in reelection bid). Specific supporting case au-
thority was not provided at the time.
Respondents have correctly observed the cases hereto-
fore submitted by the General Counsel dealt with other
backpay issues . Respondent argued that the General
Counsel in effect was seeking a novel and/or extraordi-
nary remedy. With opportunity provided, all parties
have now filed additional and helpful briefs on this reme-
dial issue.
The General Counsel argues the issue is not novel, but
has now urged an even broader remedy with stated reli-
ance (only) on a newly discovered case, Iron Workers
(Walker Construction), 279 NLRB 918 (1986). The Gen-
eral Counsel's argument is that merely requiring a rerun
election will not undo the effects of Respondent 's above
unfair labor practices; and, the General Counsel now
urges that, "[T]he most appropriate remedy which can
restore the status quo and assure that Gilbert will not be
denied compensation he might have otherwise received
is to direct the Respondent District to reinstate Gilbert
to his position as District Labor Representative with full
backpay and to rerun the 1986 election after Gilbert has
had a period of incumbency equal to the time left in his
term of office when he was unlawfully denied recall."
With stated reliance on the same case, Charging Party
argues such a remedy is not punitive, but only remedial
in nature.
Respondents argue first that the Board does not have
jurisdictional authority to order an internal union elec-
tion to be run. The argument made , simply put, is that
under "LMRDA" Congress has expressly and exclusive-
ly designated jurisdictional authority to direct and super-
vise the rerunning of an internal union election to the
Secretary of Labor. Respondent relies on the holdings of
Teamsters Local 82. v. Crowley, 467 U.S. 526, 544 (1984);
Trbovich v. Mine Workers, 404 U.S. 528, 530 (1972);
NLRB v. Allis-Chalmers Mfg. Co., 288 U.S. 175, 185, 187
(1967); Calhoon v Harvey, 379 U.S. 134 (1964); Anson v.
NMU, 595 F.Supp. 847, 851 (S.D.N.Y. 1984); and (essen-
tially) the exclusivity provision of LMRDA § 403, itself,
which provides:
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
The remedy provided by this subchapter for chal-
lenging an election already conducted shall be ex-
clusive.
The problems with Respondent's arguments would
appear to be several. Firstly, the instant case does not in-
volve issues of private usurpations, State remedy inad-
equacies, or individual member challenge. Secondly, the
unfair labor practice found here and to be remedied is
fundamentally an instance of unlawful union conduct ex-
tending an effect beyond internal affairs and in manner
unlawfully interdicting Gilbert's direct exercise of pro-
tected Section 7 rights which are particularly entrusted
to the Board to safeguard, NLRB v. Marine Workers, 391
U.S. 418 (1968); and Scofield v. NLRB, 394 U.S. 423
(1969). In my view Respondent's reliance on the Board's
holding in Desert Palace, 194 NLRB 818 fn. 5 (1972), in
leaving an issue raised before it on labor organization
status, based on that organization's compliance with the
Landrum-Griffm Act, to appropriate forum under that
Act, is inapposite. Congress has provided the Board with
broad remedial authority to cure invasion and/or denial
of Section 7 rights, and the Board has heretofore exer-
cised remedial power under the Act, broadly, particular-
ly on matters involving "unimpeded access to the
Board," Operating Engineers Local 138 (Skura), 148
NLRB 679 (1964). Thirdly, and dispositively it would
seem, at least upon me, the Board itself has already ad-
dressed an attack made upon the exercise of its remedial
authority in a proper case vis-a-vis an ordered rerun of an
internal union election, and it has determined the chal-
lenge lacked merit, Iron Workers (Walker Construction),
supra.
However, in their stated reliance on the Crowley case,
supra (a case in which the Supreme Court addressed a
Federal District Court Order of a new election that ig-
nored Secretary of Labor expertise) the Respondents
have otherwise raised a concern that an Order of the
Board directing a rerun of the 1986 election, "also could
possibly give rise to a cause of action under the
LMRDA on behalf of someone who had run successfully
in the first [sic 1986] election but lost in the second [sic
rerun] or on behalf of union members who voted for
such a person in the first election." Although the case is
not controlling on the authority of the Board to effect
remedy in the instant matter, given the underlying cir-
cumstances of this case, it does appear to raise valid con-
siderations for evaluation by the Board that bear on the
appropriateness of the Board issuing a remedial order
that would vacate the 1986 election and/or direct a
rerun election, and as well, of the propriety of an im-
posed Gilbert incumbency that might affect the other
elected incumbents.
In the Iron Workers, case, supra on which the General
Counsel and Charging Party (solely) rely to both vacate
the interim election, and to impose Gilbert incumbency,
there, the return of the discriminated (former) president
for a related period of incumbency, was to the singular
office of president, in which a singular subsequently
elected incumbent of that office would alone be re-
moved. Here, to vacate the April 1986 election would
not only adversely effect (at least) 8 indistinguishable in-
391
cumbents, it would, in my view, adversely and improper-
ly impact on the rights of other LLs and their members'
designations, without having afforded any of those LLs
or their members due process. At least to that extent, the
Iron Workers, case supra is deemed properly to be distin-
guished. I decline to recommend to the Board that the
Board vacate the election of April 1986. I shall however
otherwise. fashion a tailored remedy designed to put Gil-
bert back in the position he would have enjoyed, had he
not been discriminated against by DL 91's failure to
recall him, and, had DL 91 and LL 707 not unlawfuly
prevented his nomination in February 1986 at least to
extent the same would otherwise appear feasible.
First, it will be recommended that the Board order
District 91 and LL 707 to permit Gilbert to run as an
incumbent candidate for election to DL 91 dlr position
in the next election to be held, and as soon as possible.
Second, in that event, including if there be an interim
opening in dlr position with unexpired tenure of that po-
sition remaining with time equivalent to Gilbert's clearly
denied incumbency (to wit equivalent of the period from
11 March 1985 to 30 April 1986), either more or less, no
election shall be conducted for that position until Gilbert
shall have first had dlr incumbency afforded to him of
that duration. Third, by payment of backpay, with inter-
est4 Respondent DL 91 shall make Gilbert whole for any
loss of pay and benefits Gilbert may have suffered during
the period extending from 11 March 1985 through 30
April 1986; and, DL 91 and its affiliated LL 707, jointly
and severally, shall additionally make Gilbert whole by
payment of backpay to him, with such computed inter-
est, for the period 1 May 1986 until such time as Gilbert
shall be allowed to lawfully participate in an election as
a candidate for dlr position; or, upon notice of same, Gil-
bert shall decline to do so, or fail to respond in reasona-
ble time.
Backpay shall otherwise be computed in acordance
with quarterly formula, F. W. Woolworth, 90 NLRB 289
(1950). Any related questions of interim earnings, includ-
ing identified backpay in P&W Settlement Agreement,
may be handled at compliance stage.
Fourth, it will be recommended that DL 91 and LL
707 post a copy of the attached Notices in their respec-
tive halls; and that DL 91 provide copies of said notice
to other LLs affiliated with DL 91, for posting in their
halls, they being willing. However, inasmuch as the
record before me makes clear that DL 91 had been in
communication with its affiliated LLs prior to the April
1986 election, and has occasioned (at least) LL 700's
actual declination of a nomination to Gilbert, it will be
recommended that DL 91 be ordered to notify LL 700
and all its other affiliated LLs, in writing, that it has no
objection to the nomination of Gilbert as an incumbent
candidate for election to dlr position in the next election
4 In accordance with the Board's decision in New Horizons for the Re-
tarded, 283 NLRB 1183 (1987), interest on and after 1 January 1987 shall
be computed at the "short term Federal rate" for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977).
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to be held for that position. I shall further provide that
LL 707 similarly notify its members.
The General Counsel has additionally urged that a "vi-
sitatorial clause" be provided in the remedial order, one
authorizing the Board to engage in discovery if neces-
sary to monitor compliance with the Board order. Under
the circumstances of this case it appears such a clause is
not warranted. I shall however recommend the issuance
of a broad remedial Order against DL 91 and LL 707, as
to Gilberts
Finally I have considered all of Respondent's remain-
ing arguments as advanced herein, those resting on Gil-
bert's purported failure to exhaust internal union reme-
dies; failure to file election complaint with Secretary of
Labor; failure to file related suit under Title 1 LMRDA
in Federal Court; and failure to request 10(j) relief of the
Board. I conclude and find the same are all without
merit.
Accordingly, on these findings of fact and conclusions
of law and on the entire record, I issue the following
recommended6
ORDER
A. The Respondent, District Lodge No. 91, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recall Wayne A. Gilbert to
an open position of District Lodge Labor Representa-
tive, because Gilbert has engaged in protected intraunion
activity of preparing and/or distributing views and opin-
ions critical of union officials; and/or because Gilbert has
engaged in other protected conduct under Section 7 of
the Act in filing unfair labor practice charges against the
Union; and/or, because Gilbert has given testimony in
support of the charges, and/or at hearings before the
Board.
(b) Failing and refusing to allow Wayne A. Gilbert to
be nominated as acandidate for election to District
Lodge No. 91 Labor Representative, because of unlawful
nonmembership, or because Gilbert has engaged in the
above described intraunion and/or other conduct pro-
tected under Section 7 of the Act.
(c) In any other manner interfering with, restraining,
or coercing Gilbert in the exercise of his Section 7
rights.
5 This is the third instance in which LL 707, and the second instance in
which DL 91 have been found to have violated the Act in their conduct
against Gilbert . The cases involving Gilbert have become increasingly
complicated , and the Board must look to some husbandry of its re-
sources In no sense however, should this decision be read as condona-
tion or vindication of Gilbert's conduct in every instance. Gilbert's con-
duct, as sought to be questioned before me by Respondent Unions ap-
pears, in the main, inextricably intertwined in relationship to initiating un-
lawful acts of Respondent unions. The simple fact is that DL 91 and LL
707 must actually stop the discrimination and restraint of Gilbert first,
and presumably any institutional untoward conduct of Gilbert will then
ameliorate ; and, if it does not, Respondents DL 91 and LL 707 will then
be in posture to protect and preserve their legitimate institutional and
self-government concerns , cf. Petramale case, supra , 736 F 2d at 17.
6 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Restore all benefits, rights and privileges of District
Labor Representative status to Wayne A. Gilbert to the
extent possible, and permit Gilbert to run for election as
an incumbent candidate for District Lodge No. 91 Labor
Representative position in the next election for that posi-
tion to be held as soon as possible, and in the manner,
and under the conditions described in the Remedy Sec-
tion herein.
(b) Together with Local Lodge 707, make Gilbert
whole for any loss in wages and benefits he may have
suffered by payment of backpay to him, with interest, in
the manner previously described in the Remedy Section
herein.
(c) Notify all affiliated Locals, in writing, that District
Lodge No. 91 has no objection to the candidacy of Gil-
bert as an incumbent in the next election to be held for
district labor representative position, and that it will re-
store to Gilbert the denied period of his incumbency to
the extent, and as early as, possible.
(d) Post at District Lodge No. 91's offices copies of
the attached notice marked "Appendix A."7 Copies of
the notice, on forms provided by the Regional Officer-in-
Charge for Region 39, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent District Lodge No. 91 immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to em-
ployees and members are customarily posted. Reasonable
steps shall be taken by the Respondent District Lodge
No. 91 to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Officer-in-Charge of the Board's Subre-
gion 39, in writing, within 20 days from the date of this
Order, what steps have been taken to comply.
B. The Respondent, Local Lodge No. 707, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Filing state court lawsuits against Gilbert in retalia-
tion: for Gilbert's engagement in protected intraunion ac-
tivity of preparing and/or distributing views and opin-
ions critical of union officials; and/or, because Gilbert
engaged in other protected' conduct under Section 7 of
the Act in filing unfair labor practice charges against the
Union; 'and/or because Gilbert has given testimony in
support of the charges, and/or at hearings before the
Board.
(b) Failing and refusing to allow Wayne A. Gilbert to
be lawfully nominated as a candidate for election to Dis-
trict Lodge No. 91 Labor Representative, because of un-
lawful nonmembership in the Union, or because Gilbert
has engaged in the above described intraunion and other
conduct protected under Section 7 of the Act.
(c) In any other manner restraining or coercing Gil-
bert in the exercise of his Section 7 rights.
7 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 Nation-
al 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 "
MACHINISTS LODGE 91 (UNITED TECHNOLOGIES)
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reimburse Charging Party, Wayne A. Gilbert, for
all legal expenses he has incurred in the defense of that
certain "Verified Complaint and Application for a Tem-
porary and Permanent Injunction and Temporary Re-
straining Order" filed against Gilbert in the Superior
Court of the State of Connecticut, Judicial District of
New Haven.
(b) Together with District Lodge No. 91 make Gilbert
whole for any loss in wages and benefits he may have
suffered by payment of backpay to him, with interest, for
the period and in the manner previously described in the
Remedy Section herein.
(c) Post at its offices at North Haven, Connecticut,
copies of the attached notice marked "Appendix B."8
Copies of the notice, on forms provided by the Officer-
in-Charge for Subregion 39, after being signed by the
Respondent's authorized representative, shall be posted
by the Respondent Local Lodge 707 immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to em-
ployees and members are customarily posted. Reasonable
steps shall be taken by the Respondent Local Lodge 707
to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the officer in charge of Subregion 39 in
writing within 20 days from the date of this Order, what
steps have been taken to comply.
8 See fn. 7, supra.
APPENDIX A
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 fail and refuse to recall Wayne A. Gil-
bert from layoff to an open position of District Labor
Lodge Representative, because Gilbert has engaged in
protected intraunion activity of preparing and/or distrib-
uting views and opinions critical of union officials;
and/or because Gilbert has engaged in other protected
conduct under Section 7 of the Act in filing unfair labor
practice charges against the Union; and/or because Gil-
bert has given testimony in support of the charges,
and/or at hearings before the Board.
WE WILL NOT fail and refuse to allow Wayne A. Gil-
bert to be nominated as a candidate for election to Dis-
trict Lodge No. 91 Labor Representative because Gilbert
has engaged in the above described intraunion and/or
other conduct protected under Section 7 of the Act.
WE WILL NOT in any other manner interfere with, re-
strain or coerce Gilbert in the lawful exercise of his Sec-
tion 7 rights.
393
WE WILL restore all benefits, rights and privileges of
District Labor Representative status to Wayne A. Gil-
bert; and WE WILL permit Gilbert to run for election as a
candidate for District Lodge No. 91 Labor Representa-
tive position in the next election to be held for that posi-
tion, as an incumbent; and WE WILL restore to Gilbert
the denied period of incumbency, to the extent we are
able, and as soon as possible.
WE WILL notify, in writing, all our affiliated Local
Lodges that we have no objection to the nomination of
Gilbert as an incumbent candidate for election to District
Labor Lodge Labor Representative in the next election
to be held.
WE WILL, together with Local Lodge 707, make Gil-
bert whole for any loss in wages and benefits he may
have suffered by payment of backpay to him, with inter-
est.
AERONAUTICAL INDUSTRIAL DISTRICT
LODGE No. 91 INTERNATIONAL ASSOCIA-
TION OF MACHINISTS AND AEROSPACE
WORKERS
APPENDIX B
NOTICE To 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 file any State Court lawsuit against
Wayne A. Gilbert in retaliation: for Gilbert's engagement
in protected intraunion activity of preparing and/or dis-
tributing views and opinions critical of union officials;
and/or because Gilbert engaged in other protected con-
duct under Section 7 of the Act in filing unfair labor
practice charges against the Union; and/or because Gil-
bert has given testimony in support of the charges,
and/or at hearings before the Board.
WE WILL NOT fail and refuse to allow Gilbert to be
nominated as a candidate for election to District Lodge
No. 91 Labor Representative, because of unlawfully as-
serted nonmembership in the Union, or because Gilbert
has engaged in the above described intraunion and other
conduct protected under Section 7 of the Act.
WE WILL NOT in any other manner restrain or coerce
Gilbert in the exercise of his Section 7 rights.
WE WILL reimburse Charging Party Wayne A. Gilbert
for all legal expenses he has incurred in the defense of
that certain "Verified Complaint and Application for a
Temporary and Permanent Injunction and Temporary
Restraining Order" filed against Gilbert, in the Superior
Court of the State of Connecticut, Judifical District of
New Haven.
WE WILL, together with District Lodge No. 91, make
Gilbert whole for any loss in wages and benefits he may
have suffered because we unlawfully failed and refused
to allow Gilbert to be nominated as a candidate for elec-
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion to District Lodge 91 Labor Representative, by pay - WE WILL place no objection to Gilbert's nomination as
ment of backpay to Gilbert, with interest . an incumbent candidate for election to District Lodge
Labor Representative in the next election to be held.
LOCAL LODGE No. 707, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AERO-
SPACE WORKERS