Intl. Assn. of Machinists, Lodge 1871

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 727 (N.L.R.B. 1977)

INTL. ASSN. OF MACHINISTS, LODGE 1871
International Association of Machinists and Aerospace
Workers, Menit Graham Lodge No. 1871 and
General Dynamics Corporation, Electric Boat
Division. Case I -CB-3147
August 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
Upon charges duly filed by General Dynamics
Corporation, Electric Boat Division, the Regional
Director for Region 1 of the National Labor
Relations Board, acting on behalf of the General
Counsel of the Board, on February 24, 1976, issued a
complaint' alleging that the Respondent Union,
International Association of Machinists and Aero-
space Workers, Merrit Graham Lodge No. 1871,
violated Section 8(b)(1)(A) of the National Labor
Relations Act, as amended (29 U.S.C. § 151, et seq.).
The Respondent filed an answer to the complaint in
which it admitted certain allegations of the com-
plaint and denied others, including all those charging
it with the commission of any unfair labor practices.
On July 14, 1976, the General Counsel, the
Charging Party, and the Respondent entered into a
stipulation in which they agreed to certain facts
relevant to the issues in this proceeding. They also
agreed to waive a hearing before an Administrative
Law Judge, the issuance of an Administrative Law
Judge's Decision, and the presentation of any
evidence other than that contained in the stipulation
and the exhibits there referred to.2 By order dated
September 16, 1976, the Board approved the stipula-
tion, as amended, and transferred the proceeding to
the Board. Thereafter, the Charging Party and the
Respondent filed briefs with the Board.
The Board has considered the entire record in this
case, including the parties' briefs, and makes the
following findings and conclusions:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
General Dynamics Corporation, Electric Boat
Division (hereinafter the Company), the Charging
Party in this proceeding, has been at all times
I The complaint was amended on April 8, 1976.
2 Subsequently the parties entered into an amendment to the stipulation.
I All named months and dates are in 1975 unless otherwise indicated.
William C. Belanger, Leonard E. Bingham, Robert G. Bradshaw.
Francis L. Brisson. David Brown. Earl R. Burlingame. James M. Crowley.
Jr.. John R. Dwsire. Glen L. Gural. Thomas Hinsch, James E. Holloway.
(lde K. Jalkanen. Robert E. Jones. John R. Morgan, Sr., Kenneth
Motlshaw. Joseph R. O'Brien. David L. Peacock, Harold T. Pierce, Robert
J. Schussel. John D. Sheeler. Gary E. Singer. Thomas W. Slane, Tidal K.
Stevens. Roger s incent. Jr. Herbert Yarhouse. and James Zeliff, Jr.
231 NLRB No. 74
material a corporation duly organized under the laws
of the State of Delaware with its principal place of
business at Groton, Connecticut, where it has been
engaged in the manufacture of submarines. The
Company annually receives goods valued in excess of
$50,000 from points outside the State of Connecticut
and ships goods valued in excess of $50,000 to points
outside the State of Connecticut. Accordingly, in
agreement with the stipulation of the parties, we find
that the Company has been at all times material an
employer engaged in commerce and in operations
affecting commerce within the meaning of Section
2(6) and (7) of the Act. It will therefore effectuate the
policies of the Act to assert jurisdiction in this
proceeding.
II1. THE LABOR ORGANIZATION
The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A collective-bargaining agreement between the
Company and the Respondent expired on June 30,
1975. 3 On July 1, a strike was begun by Respondent
against the company. The strike ended sometime in
November.
Twenty-six employees, 4 who at all times prior to
June 10 were members in good standing of the
Respondent Union, were employed by the Company
prior to July 1, and may have participated in the
above-mentioned strike. These employees resigned
from the Union sometime during the strike. They
also returned to work sometime during the strike. 5
Pursuant to the recommendation of the trial
committee of the Respondent, the 26 employees were
fined by the Union on January 11, 1976, $500 each,
solely for their acts of resignation during the strike.
On January 19 and March 16, 1976, the 26
employees were notified of the imposition of the fines
and advised of the intention of the Union to take
legal action to collect the fines. The complaint alleges
that in imposing these fines Respondent violated
Section 8(bX)()(A).
In other cases, involving this same International,
the Union has sought to fine employees for their
postresignation conduct of performing struck work.6
5 The stipulation and incorporated exhibits do not indicate when during
the strike the employees resigned or returned to work, nor does the record
reveal the order of these respective events to each other. In any event, only
the fact of their occurrence dunng the strike is of any relevance or
materiality here.
6 These cases involved the same constitutional provisions which were in
effect at the time of the fines herein.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has found that fines for such conduct are
unlawful. 7 Here, in order to achieve the same goal of
solidarity during a strike, Respondent has taken a
slightly different tack. It has stipulated that its fines
were imposed solely for the acts of resigning during
the strike.
The Respondent relies on the following provisions
of article L, section 3, in its constitution as authoriz-
ing the imposition of the fines:
IMPROPER CONDUCT OF A MEMBER
Sec. 3. The following actions or omissions
shall constitute misconduct by a member which
shall warrant a reprimand, fine, suspension
and/or expulsion from membership, or any lesser
penalty or any combination of these penalties as
the evidence may warrant after written and
specific charges and a full hearing as hereinafter
provided:
Refusal or failure to perform any duty or
obligation imposed by this Constitution; the
established policies of the I.A.M.; the valid
decisions and directives of any officer or officers
thereof; or, the valid decisions of the E.C. or the
G.L. convention....
* * * * *
Accepting employment in any capacity in an
establishment where a strike or lockout exists as
recognized under this Constitution, without per-
mission. Resignation shall not relieve a member
of his obligation to refrain from accepting
employment at the establishment for the duration
of the strike or lockout if the resignation occurs
during the period of the strike or lockout or
within 14 days preceding its commencement ...
* *
Any other conduct unbecoming a member of
the I.A.M., provided, however, that any charge of
such conduct shall specifically set forth the act or
acts or omissions alleged to constitute such
offense.
Necessarily Respondent's defense rests on the
contention that the act of resignation during a strike
is improper under its constitution and that it is
therefore free to fine a member for doing so. It points
7 Local Lodge No. 1994, International Association of Machinists and
Aerospace Workers. AFL-CIO (O.K Tool Company. Inc.), 215 NLRB 651
(l974). and Machinists Local 1327, International Association of Machinists
and Aerospace Workers. AFL-CIO, District Lodge 115 (Dalmo Victor
Company). 231 NLRB 719 (1977).
1 See Booster Lodge No. 405, Intl. Assn. of Machinists and Aerospace
IorAers [Boeing Co.] v. N.L.R.B., 412 U.S. 84, 88 89 (1973).
9 In view of this finding, we need not and do not pass on the question of
what, if an). provision in a union's constitution or bylaws limiting the time
or manner of resignation would pass muster under the Act.
to two parts of article L, section 3, to support this
position. First it points to the restriction on the
activities of members following resignation as consti-
tuting a restriction on resignation. However, this
provision simply imposes obligations on those who
resign to refrain from accepting employment at the
struck establishment for the duration of the strike if
resignation occurred within 14 days preceding the
commencement of the strike. It contains no restric-
tion on the right to resign. In fact, its plain meaning
indicates resignation is permitted during a strike.
Thus, the phrase, "Resignation shall not relieve a
member of his obligation . . . if the resignation
occurs during the period of the strike" would be
utterly meaningless if resignation during a strike were
not permitted.
Second, Respondent points to the provision stating
that a member may be fined or otherwise disciplined
for "Any other conduct unbecoming a member" as
constituting a restriction on resignation. The act of
resigning during a strike, Respondent argues, is
damaging to the collective interests of other mem-
bers, hence is conduct unbecoming a member of the
Union. Such language is much too general to provide
sufficient notice to members that they may not resign
during a strike without being fined. This is especially
true in light of the fact that the specific restrictions
on post resignation conduct indicate that members
are free to resign during a strike. Therefore, we find
this provision does not restrict the right to resign
during a strike.8
Here, it is stipulated that all the employees
involved in this proceeding resigned their member-
ships, returned to work during the strike, and were
thereafter fined for the act of resigning. But no
provision in Respondent's constitution contains any
restriction on resignation, even during a strike.9
Therefore, we find that "the members were free to
resign at will and that Section 7 of the Act . . .
protected their right to return to work during a strike
which had been commenced while they were union
members." 10 The natural and probable consequence
of fining them for submitting lawful and effective
resignations was to restrain and coerce them in the
exercise of their Section 7 right to return to work
during a strike following resignation from a union."
Accordingly, we find that the Respondent, by fining
'o Booster Lodge No. 405, supra at 87-88; N. L R. B, v. Granite State Joint
Boarad Textile Workers Union of America, Local 1029, AFL-CIO [Interna-
tional Paper Box Machine Co.], 409 U.S. 213. 217-218 (1972). See also Local
1384, United Automobile, Aerospace, Agricultural Implement Workers, UA W
(Ex-Cell-O Corporation), 227 NLRB 1045 (1977).
1' That Respondent might not have specifically intended this result is not
material. Its motive is not an issue here.
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INTL. ASSN. OF MACHINISTS, LODGE 1871
the above-named employees for the act of resigning
during the strike, violated Section 8(b)(1)(A).
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth above,
occurring in connection with the Employer's opera-
tions, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
v. THE REMEDY
Having found that the Respondent has engaged in
and is engaging in certain unfair labor practices, we
shall order it to cease and desist therefrom. In order
to effectuate the purposes of the Act, we shall also
order the Respondent to rescind the unlawful fines,
to refund any money paid to it as a result of the fines
with interest computed at 7 percent per annum,'2
and to post the notice attached as an appendix to this
Decision and Order.'3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Association of Machinists and Aero-
space Workers, Merrit Graham Lodge No. 1871, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees who have
resigned from and are no longer members of
Respondent in the exercise of the rights guaranteed
them in Section 7 of the Act by imposing court-
collectible fines on such employees because of the act
of resigning during a strike at General Dynamics
Corporation, Electric Boat Division.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the purposes of the Act:
(a) Rescind the fines levied against William C.
Belanger, Leonard B. Bingham, Robert G. Brad-
shaw, Francis L. Brisson, David Brown, Earl R.
Burlingame, James M. Crowley, Jr., John R. Dwire,
Glen L. Gural, Thomas Hinsch, James E. Holloway,
12 In accordance with our decision in Flonda Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25. 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on the tax payments was
at least 7 percent.
13 The Charging Party's request that the Respondent be required to pay
each of the 26 employees S500 in damages is hereby denied as without merit.
Clyde K. Jalkanen, Robert E. Jones, John R.
Morgan, Sr., Kenneth Mottshaw, Joseph R. O'Brien,
David L. Peacock, Harold T. Pierce, Robert J.
Schussel, John D. Sheeler, Gary E. Singer, Thomas
W. Slane, Tidal K. Stevens, Roger Vincen:, Jr.,
Herbert Yarhouse, and James Zeliff, Jr., because of
their act of resigning during the strike which began
July 1, 1975, at General Dynamic Corporation,
Electric Boat Division, and refund to them any
money they may have paid as a result of such fines,
plus interest computed at the rate of 7 percent per
annum.
(b) Post at its business office and meeting hall
copies of the attached notice marked "Appendix." 14
Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by an authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for Region I
signed copies of said notice for posting by General
Dynamics Corporation, Electric Boat Division, if the
Company is willing, in places where notices to
employees are customarily posted. Copies of said
notice, to be furnished by the Regional Director,
after being duly signed by Respondent's authorized
representative, shall be returned forthwith to the
Regional Director.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER JENKINS, dissenting:
Beneath the facade of language that has been built
around this case as well as the others in the line of
cases cited by the majority in footnote 7, the reality
of what is being attempted by the Union in each
situation is the same. All these cases concern a
union's effort to utilize a reasonably restricted, fairly
implemented, and mutually agreed-to rule, to police
a collective decision to engage in an economic strike
for its duration against individual members who
choose to disregard their commitment to the strike
and return to work. In my view this reality super-
sedes the mere form which is used to characterize the
" In the event that 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."
729
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's action. Thus it is irrelevant whether the fine
is imposed for resigning or for breach of a rule which
prohibits returning to work during a strike notwith-
standing resignation during the limited period
between the time that the decision to strike is made
and the end of the strike. The fact of the matter is
that in all these cases the relevant considerations are:
the sufficiency of the provisions in the constitution
which establish the restriction on a member's right to
resign during a strike; how these provisions are
implemented with respect to an individual member,
especially in terms of notice and the reasonableness
of the fine; and the effect that such a restriction will
have on individual and collective rights, both of
which are guaranteed under the Act.
In light of the above and inasmuch as the material
facts of this case are, by stipulation, the same as in
Machinists Local 1327, International Association of
Machinist and Aerospace Workers, AFL-CIO, District
Lodge 115 (Dalmo Victor), 231 NLRB 719 (1977), I
would dismiss the instant complaint for the reasons I
expressed in my dissent in that case.
MEMBER MURPHY, dissenting:
For the reasons stated in my dissent in Machinists
Local 1327, International Association of Machinists
and Aerospace Workers, AFL-CIO, District Lodge
115, (Dalmo Victor), 231 NLRB 719 (1977), I would
find no violation and would dismiss the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees who
have resigned from, and are no longer members
of, the Union in the exercise of the rights
guaranteed in Section 7 of the National Labor
Relations Act, by imposing court-collectible fines
on them for resigning during the strike at General
Dynamics Corporation, Electric Boat Division,
which began on July 1, 1975.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the
National Labor Relations Act.
WE WILL rescind the fines levied against
William C. Belanger, Leonard B. Bingham,
Robert G. Bradshaw, Francis L. Brisson, David
Brown, Earl R. Burlingame, James M. Crowley,
Jr., John R. Dwire, Glen L. Gural, Thomas
Hinsch, James E. Holloway, Clyde K. Jalkanen,
Robert E. Jones, John R. Morgan, Sr., Kenneth
Mottshaw, Joseph R. O'Brien, David L. Peacock,
Harold T. Pierce, Robert J. Schussel, John D.
Sheeler, Gary E. Singer, Thomas W. Slane, Tidal
K. Stevens, Roger Vincent, Jr., Herbert Yarhouse,
and James Zeliff, Jr. because they resigned during
the strike at General Dynamics Corporation,
Electric Boat Division, which began in July 1,
1975, and refund any money they may have paid
as a result of such fines, plus interest.
INTERNATIONAL
ASSOCIATION OF
MACHINISTS AND
AEROSPACE WORKERS,
MERRIT GRAHAM LODGE
No. 1871
730