Chicago Truck Drivers (Unit Distribution)

National Labor Relations Board - Board Decisions

Dec 31, 1991

305 N.L.R.B. 1028 (N.L.R.B. 1991)

1028
305 NLRB No. 158
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 G.C. Exhs. 1–4 consist of the General Counsel’s formal docu-
ments, stipulation of facts, the Respondent’s November 20, 1990 let-
ter to employees, and the Respondent’s constitution.
2 The stipulated record does not describe the bargaining unit. We
note that the unit was identified in Case 33–RC–3588 as:
All full-time and regular part-time production, maintenance,
shipping and receiving employees, including all fork lift opera-
tors, material handling associates, and material expeditors (in-
ventory control specialist) employed by the Employer at its In-
bound Logistics Center located in Normal, Illinois serving the
Caterpillar, Inc. customer; but excluding all office clerical em-
ployees, guards, professional employees and supervisors as de-
fined in the Act.
3 The complaint alleged, and the aswer admitted, that Glover is an
agent of the Respondent under Sec. 2(13) of the Act.
Chicago Truck Drivers, Helpers and Warehouse
Workers Union (Independent) and Unit Dis-
tribution of Bloomington, Inc. Case 33–CB–
2873
December 31, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On a charge filed by Unit Distribution of Bloom-
ington, Inc. (the Employer) on December 7, 1990, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region 33,
issued a complaint on December 27, 1990, against the
Respondent, Chicago Truck Drivers, Helpers and
Warehouse Workers Union (Independent), alleging that
it violated Section 8(b)(1)(A) of the National Labor
Relations Act. The Respondent filed a timely answer
admitting in part and denying in part the allegations of
the complaint. Following the Employer’s filing of an
amended charge against the Respondent, the General
Counsel, by the Acting Regional Director for Region
33, issued an amendment to the complaint on January
11, 1991, and consolidated the amended complaint for
hearing with Cases 33–CA–9245, 33–CA–9251, 33–
CA–9256, and 33–CA–9257. After the complaint
against the Employer was settled, Case 33–CA–2873
was severed for trial on May 22, 1991.
On June 20, 1991, the Respondent, the Employer,
and counsel for the General Counsel filed with the
Board General Counsel’s Exhibits 1 through 4 which
they agree constitute the entire record in this case.1
The parties waived a hearing and issuance of a deci-
sion by an administrative law judge and stated their
desire to submit the case directly to the Board for find-
ings of fact, conclusions of law, and a Decision and
Order. On July 29, 1991, the Board issued an order
granting the request, approving the stipulation, and
transferring the proceeding to the Board. Thereafter,
the General Counsel and the Employer filed briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel
On the entire record in this proceeding, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
Unit Distribution of Bloomington, Inc., an Illinois
corporation, at all material times has been engaged in
the warehousing business. During calendar year 1990,
a representative period, the Employer purchased and
caused to be delivered to its Normal, Illinois facility
goods and materials valued in excess of $50,000 di-
rectly from sources outside the State of Illinois. Ac-
cordingly, in agreement with the stipulation of the par-
ties, we find that the Employer is engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Respondent is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. Facts
On October 18, 1990, an election was conducted in
Case 33–RC–3588. A majority of voting employees in
the bargaining unit selected the Respondent as their
collective-bargaining representative. The Employer
filed objections to the election and exceptions to the
Regional Director’s report recommending that the ob-
jections be overruled and that the Respondent be cer-
tified. On May 21, 1991, the Board certified the Re-
spondent as the exclusive representative of unit em-
ployees.2
From November 3 through December 12, 1990, em-
ployees of the Employer engaged in a strike against
the Employer, supported by the Respondent. On about
November 20, the Respondent’s vice president, Paul
Glover,3 authored, signed, and distributed a letter to
unit employees who crossed the picket line to work for
the Employer. This letter stated, in relevant part, that:
Once the National Labor Relations Board certifies
the Union as the collective bargaining representa-
tive, all employees who are members of the bar-
gaining unit—those that were eligible to vote in
the election—will be required to become members
of the Union under the Union security provision
that will be contained in the contract—or seek
employment elsewhere. A member of the Union is
bound by the Constitution of the Union (Article
VI, Section 5.1) and is subject to Fines if he/she
violates the Constitution of the Union (Article
VIII). Violation of a lawfully called Strike by
crossing an Authorized Picket Line is violation of
the Union’s Constitution (Article VI, Section 8;
Article VIII). Those Unit employees who continue
to cross the picket line and work will become
1029CHICAGO TRUCK DRIVERS (UNIT DISTRIBUTION)
members of the Union and will be subject to
charges, trial, and fines under the Union’s Con-
stitution.
. . . .
We ask you to reconsider your decision to con-
tinue to work and instead Join Us on the Picket
Line. Those employees who have crossed the
picket line but at this time choose to stop working
and join their fellow workers will not be subject
to any fines or other disciplinary action by the
Union. [Emphasis in original.]
The bargaining unit employees to whom the November
20 letter was distributed were neither financial core
members nor full members of the Respondent.
There is no collective-bargaining agreement between
the Employer and the Respondent covering the bar-
gaining unit employees. No union-security clause has
been agreed to by the Respondent and the Employer
and unit employees currently are under no union-secu-
rity obligation.
B. Contentions of the Parties
The employees who crossed the picket line during
the November 3 through December 12, 1990 strike
were employees in the bargaining unit in which the
Respondent subsequently was certified as bargaining
representative. At the time of the Respondent’s No-
vember 20, 1990 letter, however, these employees
were not members of the Respondent. Accordingly, the
General Counsel contends, the Respondent violated
Section 8(b)(1)(A) by threatening to fine or otherwise
discipline them in the November 20 letter. The General
Counsel asserts that these threats were coercive and
calculated to deter employees from exercising their
statutory rights. Mylen Iron & Aluminum Works, 216
NLRB 865, 869–871 (1975).
The General Counsel further argues that the Re-
spondent violated the Act by threatening to subject the
nonmember employees to the requirements of its con-
stitution prior to the existence of a contract between
the Respondent and the Employer and in the absence
of a union-security obligation, and by representing that
the fines would be imposed retroactively after the em-
ployees were required to become members of the Re-
spondent. Machinists Local 4 (Boeing Co.), 185 NLRB
380, 382 (1970), enfd. in relevant part 459 F.2d 1143
(D.C. Cir. 1972), affd. 412 U.S. 84 (1973). Cf. NLRB
v. Allis Chalmers Co., 388 U.S. 175 (1967). The
Genenal Counsel contends that allowing unions to dis-
cipline members retroactively for premembership con-
duct would undermine the statutory right of non-
member employees to cross picket lines without pen-
alty. Machinists Local 1414 (Neufeld Porsche-Audi),
270 NLRB 1330, 1336 (1984); Carpenters Local 470
(Tacoma Boatbuilding), 277 NLRB 513, 514 (1985).
Finally, the General Counsel requests that the Board
order the Respondent to mail the attached notice,
marked ‘‘Appendix,’’ to all unit employees. The Gen-
eral Counsel submits that because the Respondent dis-
tributed its unlawful written threat to unit employees,
the notice likewise should be individually distributed
to unit employees.
The Employer contends that the Respondent’s No-
vember 20 letter patently was unlawful because it was
distributed to nonmembers at a time when there was
no certification in effect, no bargaining in process, no
collective-bargaining agreement, and no union-security
clause. Accordingly, the Employer asserts that this let-
ter unlawfully interfered with the employees’ Section
7 rights to refrain from union activities. NLRB v.
Granite State Joint Board Textile Workers Union, 409
U.S. 213 (1972).
C. Discussion
For the following reasons, we agree with the Gen-
eral Counsel and the Employer that the Respondent
violated Section 8(b)(1)(A) by threatening to fine non-
member employees who had crossed its picket line.
Section 7 of the Act guarantees employees the right
to ‘‘self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representa-
tives of their own choosing . . . and . . . the right to
refrain from any or all such activities.’’ (Emphasis
added.) Under Section 7, the decision to cross a union-
authorized picket line is clearly protected conduct.
Notwithstanding this protection, however, the Supreme
Court made clear in NLRB v. Allis-Chalmers, supra,
that a union may lawfully fine its members for cross-
ing the picket line during an authorized strike. This
discipline is privileged because of the ‘‘contractual’’
relationship between unions and their members and be-
cause the proviso to Section 8(b)(1)(A) enables unions
to ‘‘prescribe [their] own rules with respect to the ac-
quisition or retention of membership.’’ Id.; Machinists
405, supra. The effect of union membership is not to
eliminate employees ’ Section 7 rights, but to permit
unions to discipline their members for exercising those
rights when that conflicts with lawful union rules. Id.
at 382.
Although unions in certain circumstances may law-
fully fine their members for conduct protected by Sec-
tion 7 of the Act, it is well settled that unions violate
Section 8(b)(1)(A) by fining or otherwise disciplining,
or threatening to discipline, employees who are not
their members. See, e.g., Telephone Traffic Union
Local 212 (New York Telephone), 278 NLRB 998,
1002 (1986); Mylen Iron & Aluminum Works, supra,
216 NLRB at 869–871. Thus, in the absence of a
union-member relationship, the proviso to Section
8(b)(1)(A) is not applicable and unions lawfully cannot
restrict employees’ Section 7 rights.
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The General Counsel has noted that there was no contract in ef-
fect containing a union-security clause. Of course, even if a union-
security clause had been in effect, the bargaining unit employees
would be subject to union discipline only if they were ‘‘full’’ mem-
bers of the Respondent. Carpenters Local 470 (Tacoma
Boatbuilding), 277 NLRB 513, 515 (1985).
5 We would not reach a contrary result even if, as represented by
the Respondent in its November 20 1etter, unit employees ‘‘will be
required to become members of the Union under the Union Security
provision that will be contained in the contract.’’ Thus, the Respond-
ent’s disciplinary authority is limited to conduct undertaken by em-
ployees while they are union members. Machinists Local 405, supra,
185 NLRB at 382 fn. 2.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Here, the nonstriking employees at whom the Re-
spondent’s November 20 letter was directed were not
members of the Respondent at the time of the letter or
when they crossed the picket line. Nonetheless, the Re-
spondent offered relief from disciplinary action only to
those nonstrikers who ‘‘at this time chose to stop
working . . . .’’ Thus, the letter carried the unmistak-
able message that employees who continued to work
during the strike would face union discipline, including
a fine.4 Accordingly, we find that by threatening these
nonmember, bargaining unit employees with retro-
active discipline for having crossed its picket line, the
Respondent violated Section 8(b)(1)(A).5
In agreement with the General Counsel, we shall re-
quire that the ntice be mailed to all unit employees. In
this regard, we note that the threatening letter was sent
to all unit employees.
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. Unit Distribution of Bloomington, Inc. is an em-
ployer engaged in commerce within the meaning of
Section 2(5) of the Act.
3. By threatening to fine nonmember employees
retroactively because the employees had crossed its
picket line, the Respondent violated Section
8(b)(1)(A).
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act, we shall order that it cease and
desist from its unlawful conduct and affirmatively in-
form unit employees of their Section 7 rights.
ORDER
The Respondent, Chicago Truck Drivers, Helpers
and Warehouse Workers Union (Independent), Chi-
cago, Illinois, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Threatening to fine employees who are not its
members retroactively because they had crossed the
Respondent’s picket line.
(b) In any like or related manner restraining or co-
ercing its employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its business offices and meeting halls
copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided the Regional
Director for Region 33, after being signed by the Re-
spondent’s authorized representative, shall by posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Sign and mail to the Regional Director sufficient
copies of the notice for posting by Unit Distribution of
Bloomington, Inc., if willing, at all places where no-
tices to employees are customarily posted.
(c) Mail a signed copy of the attached notice marked
‘‘Appendix’’ to all employees in the bargaining unit.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT restrain or coerce employees who are
not our members by threatening to fine them retro-
actively because they had crossed our picket line.
1031CHICAGO TRUCK DRIVERS (UNIT DISTRIBUTION)
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
CHICAGO TRUCK DRIVERS, HELPERS
AND WAREHOUSE WORKERS UNION
(INDEPENDENT)