Cannery Warehousemen, Local Union 788

National Labor Relations Board - Board Decisions

Apr 23, 1971

190 N.L.R.B. 24 (N.L.R.B. 1971)

24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cannery Warehousemen , Food Processors , Drivers
and Helpers Local Union No. 788, affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, In-
dependent and Marston Ball. Case 19-CB-1547
April 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS, AND KENNEDY
On November 9, 1970, Trial Examiner Herman Cor-
enman issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the Em-
ployer filed exceptions to the Trial Examiner's Decision
and a supporting brief.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that Respondent,
Cannery Warehousemen, Food Processors, Drivers
and Helpers Local Union No. 788, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent,
La Conner, Washington, its officers, agents, and repre-
sentatives, shall take the action set forth in the Trial
Examiner's Recommended Order.'
' In footnote 18 of the Trial Examiner's Decision, substitute "20" for
"10" days.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner: Upon a charge
filed June 8, 1970, by Marston Ball, an individual, against
Cannery Warehousemen, Food Processors, Drivers and
Helpers Local Union No. 788, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Independent, herein called the
Respondent, the General Counsel of the National Labor Re-
lations Board on July 15, 1970, issued a complaint alleging
that Respondent violated Section 8 (b)(1)(A) and (3) of the
National Labor Relations Act, as amended, herein called the
Act. The answer filed by the Respondent denied engaging in
the unfair labor practices alleged in the complaint.
This proceeding with all parties represented by counsel was
heard before me at Seattle, Washington, on September 15,
1970. All parties were accorded an opportunity to produce
evidence, and to examine and cross-examine witnesses, to
argue orally and to present briefs. Briefs by counsel for Gen-
eral Counsel, the Respondent, and the Charging Party have
been submitted and they have been carefully considered.
Upon the entire record in the case and from my observa-
tion of the witnesses while testifying, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
It is established by the pleadings, and I find, that San Juan
Islands Cannery, herein called the Employer, is a Washing-
ton corporation engaged at La Conner, Washington, in proc-
essing and canning food products. In the course of its business
operations, it annually sells goods and services valued in
excess of $500,000 and purchases and causes to be trans-
ported directly across state lines goods and materials valued
in excess of $50,000. Accordingly, I find that the Employer
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
q I. THE UNFAIR LABOR PRACTICES
A. The Issues and the Background
It is established by the pleadings that during all times
material to these proceedings the Respondent and the Em-
ployer were parties to a collective-bargaining agreement cov-
ering the Employer's employees which, inter alia, contained
a grievance and arbitration procedure for the settlement of
any differences as to the interpretation of the agreement or
any grievances arising thereunder. On August 11, 1969, two
employees, namely Julianne Johnson and Cindi Shane, were
discharged by their forelady. The Union contested the dis-
charges through the contract's grievance and arbitration
procedure, and pursuant thereto a hearing was held before
Arbitrator Cornelius J. Peck, at Mount Vernon, Washington,
on December 30, 1969.
Marston Ball, the charging individual in this proceeding,
was called as a witness by the Employer in the aforesaid
arbitration hearing. Ball was employed as a utility mainte-
nance man and at times as a crew leader in the packing
season. He was a member of the Respondent Union as were
the two girls whose grievances were before the arbitrator. It
is stipulated and agreed between the parties that at the arbi-
tration hearing Ball testified under oath "to the effect that
Julianne Johnson, one of the grievants, worked on the carrot
line for San Juan Island Cannery in 1968 and her perform-
ance then was unsatisfactory."
It was further stipulated by the parties that Julianne John-
son notified the Respondent Union through its attorney, but
not under oath, that she did not even work on the carrot line
in 1968. It was further stipulated that Julianne Johnson was
employed by the Employer during the canning season of 1968
which ended sometime in late August 1968. She was rehired
in July 1969 with the commencement of the canning season
and continued to work until her discharge on August 11,
1969.
190 NLRB No. 5.
CANNERY WAREHOUSEMEN, LOCAL UNION 788
Under date of January 30, 1970, the arbitrator issued his
award in which he found in pertinent part that:
The Employer discharged Julianne Johnson and Cindi
Shane on August 11, 1969 for what in the opinion of its
authorized representatives constituted lack of capability
and competence, and this opinion of the authorized rep-
resentatives of the Employer constituted just cause for
discharge within the meaning of the collective bargain-
ing agreement.'
Relying on language in article X of the contract which
provides: "The Company, however, reserves the right to dis-
charge any person in its employ if incapable or incompetent.
The Company shall be the judge of competency," the arbitra-
tor concluded that the aforesaid contract provision makes it
quite clear that the Employer can discharge for what in its
judgment is a lack of competency. Accordingly, the arbitrator
sustained the Employer's action in discharging the two girls.
On or about March 10, 1970, Walter F. Tunks, the Union's
secretary-treasurer and chief executive officer, notified Ball by
undated registered letter that the Union's executive board
had decided to try him on March 20, 1970, on charges stem-
ming from his testimony before Arbitrator Peck above re-
ferred to.
The charges preferred by Mr. Tunks were as follows:
I.
Failure to abide by the provisions of ARTICLE XIX,
Section E subsections (a) and (b) of the Bylaws of Can-
nery Warehousemen Food Processors Drivers and Help-
ers.
II.
Failure to abide by the Obligation attached to and made
part of the APPLICATION and AUTHORIZATION
BLANK signed July 11, 1962 when you applied for
admission to this Local Union 788.
III.
Failure to abide by the provisions of the CONSTITU-
TION of the INTERNATIONAL BROTHERHOOD
OF TEAMSTERS;
ARTICLE XIX Section 6
(2) Violation of oath of loyalty to the Local Union and
the International Union.
(5) Abuse of fellow members or officers by written or
oral communications.
(8) Any action which is disruptive of or interferes with
the performance or obligations of other members or Lo-
cal Unions under collective bargaining agreements.
IV.
Giving false and misleading testimony on December 30,
1969 in an Arbitration Proceeding between this Local
Union 788 and San Juan Island Cannery before a qua-
lified Arbitrator Cornelius Peck.
It is not in dispute that the gravamen of the charges leveled
against Ball by the Union is contained in paragraph IV above
reading as follows:
' The arbitrator recites in his decision that the forelady and personnel
supervisor who participated in the discharge completed a form with copies
supplied to the two employees, the Union and the personnel office indicating
that the two girls had been discharged for" . . . lack of ability," and for"
... misconduct" with explanation under remarks: "The girl was repeatedly
urged to work more and talk less; she did not respond properly."
25
Giving false and misleading testimony on December 30,
1969 in an Arbitration Proceeding between this Local
Union 788 and San Juan Island Cannery before a qua-
lified Arbitrator Cornelius Peck.
Paragraphs I, II, and III of the charges are in the nature
of union conclusionary assumptions that by giving such tes-
timony before the arbitrator, Ball, in some manner violated
his union obligations.'
Ball attended his March 20 trial before the executive board.
Under date of March 25, 1970, the Union's executive board
directed a letter to Ball notifying him that he had been found
guilty of paragraphs I, II, and III of the charges. With respect
to paragraph IV, the executive board's finding was as follows:
Paragraph IV The accusation of giving false and mis-
leading testimony is held in abeyance. Brother Ball
has again stated that Julianne Johnson was to the best
of his belief and knowledge working on the carrot line
during 1968. Miss Johnson has asserted that she in
fact did not work on the carrot line in 1968. Since it
is the opinion of the trial board that there is no way
to truthfully answer this question it is held in abey-
ance.
The executive board imposed a $100 fine on Bail, "of which
$75 was suspended for a period of 2 years, provided: that
Brother Marston Ball does not engage in any future actions
related to the charges for a period of 2 years."
Under date of April 3, 1970, Marston Ball's counsel,
Charles R. Twede, attorney-at-law, directed a letter to the
executive board of the Union taking exception to their March
25, 1970, finding in which they held in abeyance a finding on
the crucial charge in paragraph IV of the charges.
Mr. Twede's letter in pertinent part reads as follows:
As to the charges contained in Paragraph IV, wherein
it is alleged by Walter F. Tunks, Secretary-Treasurer,
that Marston Ball was guilty of giving false and mislead-
ing testimony on December 30, 1969 in an arbitration
proceeding between this local union 788 and San Juan
County Cannery before a qualified arbitrator, Cornelius
Peck, and he does dispute strongly your decision.
According to Mr. Tunks' letter of March 25, 1970,
you found as to this charge, "The accusation of giving
false and misleading testimony is held in abeyance.
Brother Ball has again stated that Julianne Johnson was
to the best of his belief and knowledge working on the
carrot line during 1968. Miss Johnson has asserted that
she, in fact, did not work on the carrot line in 1968. Since
it is the opinion of the trial board that there is no way
to truthfully answer this question it is held in abeyance."
Gentlemen, I refer you to the By-Laws of the Cannery
Warehousemen, Food Processors, Drivers and Helpers,
Local Union No. 788, at page 41, subparagraph c., under
XX entitled CHARGES AND TRIALS.
c. RIGHTS OF THE ACCUSED. Throughout the
proceedings, there shall be a presumption of inno-
cence in favor of accused. Clear and convincing evi-
dence must be presented to support the charges, and
the accused shall have the right to present his own
evidence, rebut testimony against him, present wit-
nesses favorable to him and cross-examine adverse
witnesses.
' Thus, art. XIX, sec. E, subsecs. (a) and (b) of the Union's bylaws
obligates members to abide by the bylaws and International constitution and
authorizes the Union to act as exclusive collective-bargaining representa-
tive. The obligation contained in the application for membership and author-
ization blank contains among other language the member's obligation to be
"charitable in judgment of my brother members, and will never from self-
motives wrong a brother, or see him wronged if in my power to prevent it."
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I submit to you as officers of your local union that
your own By-Laws make it mandatory since the accuser
did not prove this charge against Mr. Ball by clear and
convincing evidence that you must find Marston Ball
innocent of the charges made in Paragraph IV. I respect-
fully submit on behalf of Marston Ball that you have no
right to hold this question in abeyance. It is your duty
to make a decision on the basis of the evidence presented
at the trial and since the accuser failed to prove by clear
and convincing evidence that Marston Ball was guilty as
charged, it is your absolute duty to dismiss those charges
against him and find him innocent.
I respectfully request, on behalf of your member, Mar-
ston Ball, that this matter be taken up by the Executive
Board at its earliest opportunity and I would appreciate
receiving word as to when your board meets again to
consider this question.
Under date of April 14, 1970, Mr. Tunks directed a letter
to Ball referring to Mr. Twede's letter of April 3, 1970, and
notifying Ball that the executive board would reconvene as a
trial body on May 4, 1970, at 7 p.m., for the purpose of
concluding the "procedural matter called to its attention by
Mr. Charles Twede." The letter notified Ball of his right to
attend the proceedings. The hearing reconvened on May 4 as
scheduled. Attending this reconvened hearing were the Un-
ion executive board, Mr. Tunks, Mr. Ball, and two of his
fellow workers. According to the credible and uncontradicted
testimony of Ball, Mr. Tunks "opened up by stating he had
been advised by his own attorney that paragraph IV of the
union's charge could not be held in abeyance, and they had
their choice of either calling this girl back and putting her on
one side of the table and me [Ball] on the other, examining
the two of us to determine which one was telling the truth or
they could drop the charges." During the course of the meet-
ing, Tunks also said, according to the credible testimony of
Ball: "Marston, you know there is an unwritten law that one
union member does not testify against another member."'
Under date of May 6, 1970, Tunks directed the following
letter to Ball:
This letter is sent to advise you the Executive Board
of Local 788 has pursuant to its meeting held with you
on May 4, 1970, reconsidered its findings on Paragraph
IV of its original findings mailed to you on March 25,
1970.
The decision of the executive board is as follows:
Paragraph IV.
The charges of Paragraph IV are dismissed with-
out any findings.
Since the findings of the original trial in regards to
Paragraph I, II, and III were guilty as charged, it sus-
tains the fine of $100.00 (one-hundred) dollars of which
$75.00 (seventy-five) dollars is suspended for a period of
2 (two) years; provided that you do not engage in any
further actions related to the charges for a period of 2
(two) years.
It is undisputed that Ball did not exercise his right of
appeal under the established intraunion procedure, although
advised by Tunks of his right of appeal. After consulting with
his attorney, Ball filed unfair labor practice charges with the
National Labor Relations Board on June 8, 1970.
Analysis and Conclusionary Findings
The question for determination is whether the Union's
conduct in fining Ball for giving testimony adverse to union
grievant Johnson in the arbitration proceeding thereby vi-
olated Section 8(b)(1)(A) and (3) of the Act.
In its post hearing brief, Respondent's counsel makes the
following concession:
At the outset, we emphasize that, although we can
find absolutely no authority for it, we conceded the va-
lidity of the crux of General Counsel' s legal argument.
That is, we agree that a union which disciplines em-
ployees for testifying in arbitration proceedings violates
Section 8(b)(1)(A) of the Act because such activity in the
face of our national labor policy favoring arbitration.
Further, we agree that upon a showing (which is absent
here) that the Union has interfered with the employees'
ability to participate in a contractual arbitration proce-
dure, a violation of Section 8(b)(3) has been made out.
Drawing the issue between the General Counsel and the
Respondent, the Respondent's posthearing brief states the
issue as follows:
Where we part company with the General Counsel is
in the unsupported allegation that in this case, the em-
ployee, Marston Ball, was charged and disciplined for
testifying in the arbitration hearing and further the ass-
ertion the union has no remedy against members who do
testify falsely.
It is now firmly established that a labor organization, under
the proviso to Section 8(b)(1)(A), may in certain instances
fine an employee-member for violating union rules relating to
the acquisition or retention of membership.' But the Board
and the Supreme Court have held that the proviso to Section
8(b)(1)(A) does not license the labor organization to expel or
levy fines for every infraction of intraunion rules. Thus, where
labor organizations have levied disciplinary fines or expelled
members for filing unfair labor practice charges with the
NLRB without first exhausting intraunion procedures, the
Board' and the Supreme Court' have held that internal union
rules must yield to the overriding public policy of preserving
access to the Board's remedial processes without the re-
straints of union discipline or reprisal. In N. L.R.B. v. Marine
& Shipbuilding Workers, supra, the Supreme Court declared
the rule as follows:
A healthy interplay of the forces governed and pro-
tected by the Act means that there should be as great a
freedom to ask the Board for relief as there is to petition
any other department of government for a redress of
grievances. Any coercion used to discourage, retard, or
defeat that access is beyond the legitimate interests of a
labor organization.
Union disciplinary fines for working behind a picket line
have also been proscribed in instances where the union rule
violates the no-strike clause of a collective-bargaining agree-
ment' or coerces an employer in the selection of his represen-
tatives for the purposes of collective bargaining or the adjust-
' The witness, Donald E. Hicks, a fellow employee present at the May
4 hearing corroborates Ball's testimony concerning this remark made by
Tunks. Tunks' testimony concerning this remark was as follows:
I told Mr. Ball for practical reasons the true brotherhood would not
even have to have that in there, but we did know that it was necessary
and there was nothing unwritten about it period.... The substance of
the law is a member testifying falsely about seeing another Teamster
member mistreated. That is the substance of it."
Wisconsin Motor Corp., 145 NLRB 1097; Allis-Chalmers Mfg. Co., 149
NLRB 67; Scofield, et al. v. N.L.R.B.,, 394 U.S. 423; N.L.R.B. v. Allis-
Chalmers Mfg. Co., 388 U.S. 175; Arrow Development Co., 185 NLRB No.
22.
Chas. S. Skura, 148 NLRB 679.
N.L.R.B. v. Marine & Shipbuilding Workers Union, 391 U.S. 418 (ex-
pulsion).
National Grinding Wheel Company, Inc., 176 NLRB No. 89.
CANNERY WAREHOUSEMEN, LOCAL UNION 788
ment of grievances' or where a fine was imposed on strike-
breaking employees who had resigned their union member-
ship before crossing the picket line to report for work;' or
imposed a fine on a union member for filing a decertification
petition with the Board10 or fined him for circulating a decer-
tification petition;" or for giving damaging testimony against
the union in a prior unfair labor practice proceeding."
The principles behind Board and court decisions holding
that intraunion rules must yield to the overriding policy of
maintaining free and unobstructed access to the Board with-
out fear of union reprisal, by analogy, are applicable in the
instant case.
Arbitration is the keystone to industrial peace in the day-
to-day application and interpretation of the collective-bar-
gaining agreement, and its integrity without impediment has
been sanctioned by the Supreme Court in the Steelworkers
trilogy." It is essential to the existence of the arbitration
process that witnesses testify before the arbitrator without
fear of reprisal from either the employer or the union. The
Board, too, recognizing the importance of preserving the in-
tegrity of arbitration, defers to it where it meets standards
announced in Spielberg Mfg. Co., 112 NLRB 1080, and other
cases."
Conduct by an employer or a labor organization which
destroys the integrity of the contractual arbitration clause, in
effect, nullifies that clause in violation of Section 8(d) of the
Act. When committed by a labor organization, such conduct
violates Section 8(b)(3) of the Act.15
In the case at bar, although it was formally charged by
union officer Tunks that Ball had given "false and misleading
testimony at the arbi -ation proceeding," the Union Execu-
tive Board, which conducted the hearing and sat in judgment
on the matter, dismissed that count of the charge. Neverthe-
less, the Executive Board fined Ball $25. It is reasonable to
conclude, and I find, that the action of the Union's Executive
Board in finding Ball guilty of the fi.. t three counts of the
charges was based on the fact that Ball had given adverse
testimony against a union member in the arbitration proceed-
" N.L.R.B. v. Sheet Metal Workers Local 49 (General Metal Products
Inc.), 430 F. 2d 1348, (C.A. 10), and cases cited at fn. 2, enfg. 178 NLRB
No. 24 - where the union fine violated Sec. 8(b)(1)(B) of the Act.
Boeing Co., 185 NLRB No. 23.
° Blackhawk Tanning Co., 178 NLRB No. 25 - where the Board held
that when a union only fines a member because he has filed a decertification
petition (rather than to expel him) the effect is not defensive and can only
be punitive-to discourage members from seeking such access to the Board's
processes.
" Smith Lee Co. 182 NLRB No. 129.
" Spitler-Demmer, Inc., 184 NLRB No. 64.
" United Steelworkers ofAmerica v. American Mfg. Co., 363 U.S. 564;
United Steel Workers of America v. Warrior & Gulf Navigation Co., 363
U.S. 574; United Steelworkers ofAmerica v. Enterprise Wheel & Car Corp.,
363 U.S. 593. In Steelworkers v. Warrior Navigation Co., 363 U.S. 574, the
Court in emphasizing the importance of arbitration to industrial peace said:
We held in Textile Workers v. Lincoln Mills, 353 U.S. 448,40 LRRM
2113, 2120... That the policy to be applied in enforcing this type of
arbitration was that reflected in our national labor laws. Id at 456-457.
The present federal policy is to promote industrial stabilization through
the collective bargaining agreement.... A major factor in achieving
industrial peace is the inclusion of a provision for arbitration of griev-
ances in the collective bargaining agreement.... Complete effectuation
of the federal policy is achieved when the agreement contains both an
arbitration provision for unresolved grievances and an absolute prohibi-
tion of strikes, the arbitration agreement being the quid pro quo for the
agreement not to strike.
" See, e.g., International Harvester Co., 138 NLRB 923, affd. 327 F.2d
784 (C.A. 9); Dubo Mfg. Co., 142 NLRB 431; Raleys Inc., 143 NLRB 256.
" Compare Plumbers Local 280, 184 NLRB No. 44; Milk, Ice Cream
Drivers, etc. Local No. 783, Teamsters, 147 NLRB 264; UMWA (McCoy
Coal Co.), 165 NLRB 592.
27
ing. No other inference appears. It is reasonable to conclude
that , because of his testimony , Ball was found by the union
executive board to have violated his obligation to be "charita-
ble in judgment of my brother members, and will never from
self motives wrong a brother or see him wronged if in my
power to prevent it." This conclusion is buttressed by the
remarks made by Tunks during Ball's trial before the execu-
tive board in which he said, "Marston , you know there is an
unwritten law that one union member does not testify against
another member."
Upon all of the evidence , I am persuaded , and I find, that
Ball was charged , tried , and fined for giving testimony ad-
verse to the Union 's position before the arbitrator . Such ac-
tion , I find coerced and restrained Ball and other employees
in the exercise of their Section 7 rights in the same manner
and to the same extent that similar intraunion discipline re-
strains and coerces employees exercising their rights to file
unfair labor practice charges or give testimony in unfair labor
practice proceedings before the Board . Cf. N. L. R. B. v. Ma-
rine Shipbuilding Workers Union , supra; Charles S. Skura,
supra; and Spitler-Demmer, Inc., supra.
In agreement with the General Counsel , I also find that the
Union, by its conduct in charging, trying, and fining Ball for
giving adverse testimony before Arbitrator Peck , thereby
refused to bargain in violation of Section 8(b)(3) of the Act.
The conduct of the Union in disciplining Ball for giving
testimony adverse to the grievant before the arbitrator tended
to obstruct and impair the contractual arbitration proce-
dures. If either the employer or the Union were permitted to
take reprisal against witnesses before the arbitrator , the integ-
rity of the arbitration process would be destroyed and the
arbitration clause perverted . The Respondent Union argues
in its brief that "the evidence supports the union assertion
that charges were brought because he (Ball ) gave alleged false
and misleading testimony at the arbitration hearing ." I do not
doubt that the union charges issued on Tunks' belief that Ball
testified falsely. I find , however , that there was not sufficient
basis for the Union to make such a serious charge16 against
Ball. I am not prepared to hold that a labor organization is
prohibited by the Act from taking any form of discipline
against a member who gives perjured testimony in an arbitra-
tion proceeding , but I am of the opinion that we need not
reach that question in the instant case, as there is a total
absence of any proof that Ball 's testimony before Arbitrator
Peck was false or perjured . Moreover , a conclusion that tes-
timony was perjured , in my opinion, would be warranted only
after a conviction in a criminal prosecution before a court of
competent jurisdiction.
In summary therefore I find that the Respondent, in charg-
ing, trying, and fining Ball because of his testimony before
Arbitrator Peck thereby engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (3) of the Act.
Upon the foregoing findings of fact and upon the entire
record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2. The Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
3. By charging, trying, and fining Marston Ball because he
gave testimony adverse to the Respondent's grievance on
behalf of Julianne Johnson, a member of the Respondent
" The charge of false testimony was based only on an unsworn side
remark by the grievant Johnson that she did not work on the carrot line in
1968, in contradiction to Ball's sworn testimony that she did.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, in contractual arbitration proceedings, the Respond-
ent restrained and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act in violation of the provi-
sions of Section 8(b)(1)(A) of the Act; and impaired the integ-
rity of the arbitration clause in the collective-bargaining
agreement, thereby violating Section 8(d) and 8(b)(3) of the
Act.
4. By engaging in the aforesaid conduct, Respondent has
engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. To remedy the coercive and
restraining effect upon all employee-members by the trial
procedure and the resulting fine against Marston Ball, it is
recommended that Respondent be required to rescind the fine
against Marston Ball, to expunge from its records all refer-
ences to the fine, and to notify all members of the rescission
of such fine and of their right to testify in arbitration proceed-
ings under the collective-bargaining agreement without fear
of being charged, tried, or fined for doing so, such notices to
be posted at Respondent's office and hall and at San Juan
Islands Cannery's place of business providing the latter is
willing.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER
Respondent, Cannery Warehousemen, Food Processors,
Drivers and Helpers Local Union No. 788, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Restraining and coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act, by charging,
trying, fining, or otherwise disciplining, its members because
they gave testimony adverse to the Union's position in arbi-
tration procedures under a collective-bargaining agreement,
and by such conduct thereby impairing the integrity of arbi-
tration procedures under a collective-bargaining agreement.
(b) In any like or related manner restraining and coercing
employees in the exercise of their rights guaranteed in Section
7 of the Act, or refusing to bargain with an employer in
violation of Sections 8(d) and 8(b)(3) of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Rescind the fine against Marston Ball and expunge
from Respondent's records all reference to the fine; and if
such fine has been paid, make reimbursement to Marston Ball
the amount of the payment with interest at 6 percent.
(b) Post, in the Respondent's business offices and meeting
halls, copies of the attached notice marked "Appendix.""
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and Recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and order, and all objections
thereto shall be deemed waived for all purposes. In the event that the
Board's Order is enforced by a judgment of a United States Court of Ap-
peals, the words in the notice reading "Posted by Order of The National
Labor Relations Board" shall be changed to read "Posted Pursuant to a
Copies of such notice on forms provided by the Regional
Director for Region 19, after being duly signed by an author-
ized representative of the Respondent, shall be posted im-
mediately upon receipt thereof, and be maintained for 60
consecutive days thereafter. Copies shall be posted in con-
spicuous places, within clear view of all persons entering the
Respondent's hall. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced
or covered by any other material. Upon request of the Re-
gional Director, Respondent shall supply him with a suffi-
cient number of signed copies for posting by San Juan Islands
Cannery if desired by them.
(c) Notify the Regional Director for Region 19, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith."
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges any violation of the Act not specifically found
herein.
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board."
1' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 19, in writing, within 10 days from the date of this Order, what steps
have been taken to comply herewith."
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 in the ex-
ercise of their rights guaranteed in Section 7 of the Act
by charging, trying, fining, or otherwise disciplining
them because of their giving testimony adverse to the
Union's position in arbitration procedures before an ar-
bitrator under a collective-bargaining agreement.
WE WILL NOT in any like or related manner restrain
or coerce employees in their exercise of rights guaran-
teed in Section 7 of the Act or impair the integrity of the
arbitration procedures of the collective-bargaining
agreement.
WE WILL rescind the fine assessed against Marston
Ball and expunge from our records all reference to such
fine.
WE WILL reimburse the aforementioned Marston Ball
for any amount he may have paid on such fine with
interest at 6 percent from the date of such payment.
CANNERY
WAREHOUSEMEN, FOOD
PROCESSORS, DRIVERS
AND HELPERS LOCAL
UNION No. 788,
AFFILIATED WITH THE
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA,
INDEPENDENT
(Labor Organization)
Dated By
(Representative) (Title)
CANNERY WAREHOUSEMEN, LOCAL UNION 788 29
This is an official notice and must not be defaced by any- Any questions concerning this notice or compliance with
one. its provisions may be directed to the Board's Office, Republic
This notice must remain posted for 60 consecutive days Building, 10th Floor, 1511 Third Avenue, Seattle, Washing-
from the date of posting and must not be altered, defaced, or ton 98101, Telephone 583-4532,
covered by any other material.