International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America, Teamsters, Local No. 538 (Passavant Health Center)

National Labor Relations Board - Board Decisions

Jun 21, 1985

275 N.L.R.B. 730 (N.L.R.B. 1985)

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Team-
sters, Local No. 538 (Passavant Health Center)
and Elizabeth Major . Case 6-CB-6475
21 June 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 20 February 1985 Administrative Law Judge
David L. Evans issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions.'
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and brief and has decided to affirm the
judge's rulings , findings , and conclusions .and to
adopt the recommended . Order as modified.
The judge properly. found that the Respondent
violated Section 8(b)(1)(A) by imposing fines on 37
employees who resigned their union memberships
and returned to work during the strike against the
Employer,2 but that the fines imposed on employ-
ees for conduct that occurred prior to their effec-
tive resignations were not unlawful .3' The judge's
decision , however , contains several errors that may
affect the appropriate remedy for certain individ-
uals. Thus; the dates cited by the judge for the Re-
spondent 's receipt of • resignations from Elizabeth
Crans, - Alicia Pepe; and Bonnie Rippee are at vari-
ance with the date stamps on their resignations re=
ceived into evidence. Similarly, , the exhibits indi-
cate different dates for the return to work of Clair
Christy, Vonnie Hutchins, -Ì€Richard Lutz , and Doris
Miller from those cited by the `judge . Because these
variances affect " only' the ;remedy, i .e.,-the' determi-
nation of,which days the employe'e's'l were subject
to lawful sanctions , we shall leave . the l matter to
compliance with the exhibits controlling the appro-
priate dates.
Finally, the judge held that, in the instances
where a resignation was received - on the . same day
that , an, employee . returned-, to , work; , the fines. for
that t day were lawful' because there . was no• show-
ing that 'the employees )returned :to; work after their
resignations were-'received . - The' judge ; erred: 'The
Board 's rule ' is- that, when a resignation is received
on" the same day that { the employee 'returns Ao
work= the"resignation' is` "presumed`' to have been
received at an1'hour ' before' 'the employee11 .
the picket line" `absent direct contrary' evi=
' We find ment in the General Counsel 's limited exceptions and shall
issue a notice to members that conforms to the Order
2 Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984)
3 NLRB v Allis-Chalmers Mfg. Co', 388 U S' 175•(1967)
275 NLRB No. 104
dence. Teamsters Local 610 (Browning-Ferris Indus-
tries), -264 NLRB 886, 899-900 (1982). To the
extent the judge's error affects the remedy for spe-
cific individuals, we shall leave that matter to com-
pliance. In all other respects, we adopt the judge's
decision and recommended Order.4
ORDER
The National Labor Relations Board adopts the
recommended Order of - the administrative law
judge as modified below and orders that the Re-
spondent, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica, Teamsters Local No.. 538, Pittsburgh , Pennsyl-
vania, its officers , agents, and representatives, shall
take the action • set forth in the Order as modified.
1. Add the following phrase to paragraph 2(b).
"... and expunge from its files any reference to
the fines levied against them."
2. Substitute the attached notice for that of the
administrative law judge.
4 Member Dennis adheres to the position she set forth in Neufeld
Porsche-Audi, supra at fn 22
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 ordered us to post and abide by this notice.
WE' WILL NOT maintain in our governing docu-
ments article 19, section 7 of the constitution of
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, to
the extent it provides:
Resignation shall not relieve a member of his
obligation to refrain from continuing to work
or' accepting employment -at an establishment
for the duration, of •a strike -or lockout at such
establishment or-within fo'utteen'(14)' days pre-
ceding the commencement of the strike or'
lockout. Where 'observance of a primary
picket line is required , resignation shall. not re-
lieve.a member of his obligation to observe the
primary picket line for'its duration if the resig-
nation,occurs during the period that the. picket
line is maintained or within fourteen (14) days
before its establishment.
WE WILL NOT restrain or coerce employees who
have resigned from, -and who are no longer, mem-
TEAMSTERS LOCAL 538 (PASSAVANT HEALTH CENTER)
hers of, this Union in the exercise of the rights
guaranteed them by Section 7 of the Act by prefer-
ring charges against them, or trying or fining such
employees because of their postresignation conduct
in working at Passavant Health Center.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the fines levied against Robin
Anderson, Sandra Baker, Ruth Bills, Clair Christy,
Elizabeth Crans, Deborah Croup, Jean Dambach,
Waldo •Donoso, Robert Goldinger, Helen Hans,
Amanda Harper, Lynada Hemphill, Arthur Holler-
man, Vonnie Hutchins, Joe Jones, Janice Klenk,
Richard Lutz, Jr., Elizabeth Major, Ruth Manol,
Leona Marburger, Doris Miller, Ray Moyer, Alicia
Pepe, Joan Petrak, Judith Rava, Hazel Rawlins,
Bonnie Rippee, Marcia Schoppe, Rita Schweigher,
Linda Schelhamer, Mima Sipes, Phyllis Turner,
Rhonda Tyson, Donna Weiss, William Welsh, Mar-
garet Wendereusz, and Susan Woods because of
their postresignation conduct of working for Passa-
vant Health Center during the strike which began
on or about 12 November 1983 and terminated on
or about 14 March 1983 and refund to them any
moneys the employees may have paid as a result of
such fines, with interest, and WE WILL expunge
from our files any reference to the fines levied
against them.
WE WILL expunge from our governing docu-
mentsthe' portion of the constitution of the Inter-
national Brotherhood of Teamsters, 'Chauffeurs,
Warehousemen and Helpers of America, which is
set forth;above: •
INTERNATIONAL BROTHERI-IOOD OF
TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMER-,
ICA, TEAMSTERS LOCAL No. 538
DECISION
STATEMENT OF THE CASE • -
DAVID L. EVANS, Administrative. Law Judge!' This
matter; was -heard before me on November •8, 1984,1 on
charges filed, on August 13, by Elizabeth Major, an indi-
vidual, and a complaint, dated August •17 issued,by the
General Counsel. The. complaint • alleges that Internation-
a1.Brothe'rhood of Teamsters, Chauffeurs, Warehousemen
and`Helpers of America,' Teamsters Local 538 (Respond-
ent or' the' Union) ' about -February 16 imposed "court col-
lectible' - finest on ='37 -employees. of ` Passsavant" Health
Center : (the Employer) at a time when ' the ' employees
were not subject to'discipline .by-the Union because they
had effectively resigned their membership in said Union,
in violation of Section 8(b)(1)(A) of the Act. Respondent
All dates are in 1984 unless otherwise specified .. '
731
admits jurisdiction of the Board but denies commission
of any unfair labor practices. The General Counsel and
Respondent have filed briefs which have been carefully
considered.
On the entire record, briefs, and arguments submitted,
I make the following
1. FINDINGS 'AND CONCLUSIONS
The Employer is a Pennsylvania corporation with an
office and place of business in Zelienople, Pennsylvania,
where it is, and has been at all times material herein, en-
gaged as a health care institution- in the operation of a
nursing home providing in-patient medical and profes-
sional care-, for the aged. During the 12-month period
ending June 30 the employer, in the course and conduct
of its business operations, derived gross revenues in
excess of $100,000, and during the same period of time it
purchased products, goods, and materials valued in
excess of $5,000 directly from suppliers located at points
outside the Commonwealth of Pennsylvania. Therefore,
the Employer is now, and has been at all times material
herein, an Employer engaged in commerce within the
meaning of Sections 2(2), (6), and (7) of the Act.
II. THE STATUS OF THE LABOR ORGANIZATION
The Union is now;: and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of-the Act.
III. THE UNFAIR LABOR PRACTICES
The facts are'essentially undisputed. For several years
Respondent has represented employees of the Employer
in separate units of nursing employees (licensed profes-
sional nurses and registered - nurses) -and service and
maintenance employees. All contracts for both units have
contained union - shop clauses. , Collective-bargaining
agreements for both units expired on October 31, 1983.
On a' vote of Respondent's membership, the Union, called
a strike'against the Employer at 12:01 a.m. on November--
12,1983. The strike terminated on March 14. During.this
period a picket line. was established by the Union at' the
Employer's premises.
During the strike 37 employees, including the Charg=
ing'Party, tendered to the union resignations of their
membership - therein - Thirty-three of these 'employees
crossed. the picket - lines and went back to - work before
Respondent - received` their; resignations; Respondent re=
ceived the resignations, ; of-, two 'employees before' they
crossed. the picket,line and began working; and Respond-
ent,received the resignations of two, others on. the same
day that they-returned. to. work., By letters dated Decem-
ber 30-1983, and February, •16, the Uiiion.advised each of
these, _37 employees that charges had been brought
against them;for failing to honer the picket line. The, let-
ters further advised the employees that the constitution
of the International Brotherhood of Teamsters -prohibited
resignations from membership during the 14 days preced-
ing, or, during, a. strike. The exact wording of this section
upon which Respondent relied is:
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article XIX
Trials and Appeals
Trials of Local Officers and Members
• Specific Offenses
Section 7. Any member 'who (1) knowingly goes
to work or remains in the employment of any
person, firm or corporation whose employees are on
strike or locked out, unless he has permission of the
International Union, the Joint Council or his Local
Union, may be tried by the Executive Board of his
Local Union. Any member who (2) knowingly
gives or-attempts to give, directly or indirectly, any
information to any employer on an. unfair list or
whose employees are on strike or [are] locked out,
or whose employees are -trying to prevent an in-
crease in hours' of labor or a decrease in wages, for
the. purpose of assisting such employer, or for any
gain or "promise' of gain, "or who (3) knowingly goes
to work or remains in the employment of any
person, firm or corporation on an unfair list of the
International Union 'without -permission from the
International' Union, the Joint Council or .his Local
Union, may be tried in - the - manner -provided- . for.
Resignation shall'not relieve a'member of his obli-
gation to refrain from continuing' to' work. or accept-
ing employment at an establishment for the duration
of a strike or lockout at such establishment or
within fourteen (14) days preceding the commence-
• ment of ithe ,strike or, lockout., Where observance of
a primary picket line is -required, resignation shall
not relieve, a -member of his obligation to observe
the primary picket line for. its, duration if the,resig-
nation occurs during the; period that- the picket line
is maintained or within, fourteen (14)-days before its
establishment. ; -
By' letters 'dated February'- 16 and ' April '2• each of 'the
37 employees who had been cited with. the changes of
crossing, the picket line were-advised tliat'the'i ad been
tried and found guilty of the c haitges'"and that - they
would be penalized:
One (1) day's wages for each and}every day of
work that (you) have and continue to work behind
2union sanctioned picket line from the"first'day that
you, worked behthe line' through the last day of
the'strike: '
By letter dated June 14 Respondent, by its attorney,. ad-
vised -. each-: of, the „charged' and-. fined employees : that
unless ,arrangements to "pay `the= fines were made within
' 30'days after" receipt of- his -letter" be
filed against them to 'recover the; amount, owed.' On. July
18, or 16 days- after: the charge was -filed iherein , the at-
torney wrote each 'of 'the employees a letter stating that
he had "advised Local 538 not to pursue any enforce-
ment action, to • c ollect the fine at . this.; time based • upon
the current state of the law." Each letter concluded that
the employee "may disregard my letter of June 14, 1984,
for the present time." - ' -
The names of- the employees who. resigned from the
Union and returned to work, the date the Union received
their resignation, and the date the employees returned to
work are as follows: -
Name Date of Receipt
Date of Return to
Work '
Robin Anderson 11/14/83 11/14/83
Sandra Baker 11/18/83 11/17/83
Ruth Bills - ' 1/30/84 1/27/84
Clair Christy • 11/16/83 11/27/84
Elizabeth Crans 12/30/83 12/30/83
Deborah Croup 1/27/84 1/26/84
Jean Dambach 11/18/83 11/17/83
Waldo Donoso 11/14/83 11/12/83
Robert Goldinger 11/30/83 11/28/83
Helen Hans - 12/14/83 12/13/83
Amanda Harper 11/14/83 11/15/83
Lynda Hemphill 11/18/83 -11/16/83
Arthur Hollerman 11/28/83 11/18/83
Vonnie Hutchins - 11/18/83 11/12/83
Joe Jones 1/ 6/84 1/ 9/84
Janice Klenk 11/16/83 11/13/83 -
Richard Lutz, Jr. 11/16/83 .:11/14/83
Elizabeth Major . 11/15/83 11/14/83
Ruth Manol - 11/15/83 11/14/83
Leona Marburger 12/14/83 12/12/83
Dons Miller 1/ 9/84 11/30/83
Ray Moyer - 11/15/83 11/14/83
Alicia Pepe - 11/ 5/83 12/4/83
Joan Petrak 11/23/83 11/20/83
Judith Rava 1/16/84 .1/10/84.-
Hazel Rawlins . - 11/15/83 11/14/83
,Bonnie Rippee 11/12/83. 11/12/83-
Marcia Schoppe 12/7/,84 11/22/83_
Rita Schweiger 11/14/83. 11/12/83.
Linda Sclielhainer 12/30/83 - 12/28/83`-
Mina Sipes' - - 11/15/83 11/14/83
Phyllis Turner - 11/15/83' '11/15/83
Rhonda Tyson 12/15/83 :12/12/83
-Donna Weiss; 11/16/83 11/12/83
William Welsh - . ' 11/16/83 1-1/14/83
Margaret Wendereusz'- 11/15/83 11/14/83
Susan Woods . - 11/15/83 11/14/83
Therefore,;the Union received the resignations of Harper
-and Jones • before they returned to work; the Union re-
ceived the resignations of Anderson and Turner on the
same day that they returned to work; and the' Unioti re-
ceived the resignations of the remaining 33 employees
after they had returned to work.
l iC n us onso c
- - There are essentially no factual or legal issues in this
case .? For the -reasons set forth-in Machinist Local 1414
2 The Union did call its Business Agent Raymond Baker who testified
that, at- least, Charging Party Major had received a copy of the Union's
constitution and should have known about the resignation requirements
therein Major denied such receipt The knowledge of employees of such
provisions would not constitute a defense to the charges-herein, however,
for possible purposes of review, I state here that I credit Major's testimo-
ny in *this conflict '
TEAMSTERS LOCAL 538 (PASSAVANT HEALTH CENTER)
(Neufeld Porsche-Audi), 270 NLRB. 1330 (1984), it is clear
that Respondent violated Section 8(b)(1)(A).by prefer-
ring charges against , trying, and fining the above-named
employees for working after effectively resigning from
union membership. There was, however, no violation of
the law, and the General Counsel does not contend that
there was a violation of the law, by the fines as they re-
lated to employees' working before the Union received
their resignations.
Since all of the conduct for which -Harper and Jones
were disciplined, clearly occurred after Respondent re-
ceived- their resignations, the fines of these individuals
are invalid in their entirety. Respondent received the res-
ignations of Anderson and Turner on the same day they
returned to work. There is no evidence of .what hour
Anderson and Turner returned to work; and there is no
evidence of the hour Respondent- received its mail on the
dates these two employees returned to work. It is possi-
ble that all of the work of Anderson on November 14
was completed before the Union received its mail, that
date; and it is possible that all of the work of Turner was
completed on November 15 before Respondent received
its mail that date.3 The burden of proof is on the Gener-
al Counsel; if the resignations were received at some
time before the times worked by Anderson and' Turner
were over, it was the burden of the General Counsel to
show it. This the General Counsel did not do; therefore,
I conclude that the fines, as they relate to. the hours
worked , on the days the resignations were received have
not been proven to be invalid. Therefore, the, violations
as they relate to the fines of Anderson and Turner, did
not commence until November 15 and 16, respectively.
By the same token, it has not been shown by the' Gen-
eral Counsel what hours the other 33 employees `returned
to work, and it has not been shown what -hour Respond-
ent received its mail on the dates involved., Therefore,
the violations as to those employees also commence on
the first days worked following the dates of the receipts
of the resignations by Respondent. . , J
It was further a violation of Section 8(b)(1)(A), as al-
leged, for Respondent to have maintained its restriction
on resignations as set forth in the above-quoted article
XIX, section 7, of the International's constitution as. said
provisions constitute invalid restraints on the employees'
rights under Section 7 of the Act See Machinists Local
1271 (Bolton-Emerson), 273 NLRB 1159 (1984), in which
the labor organization's constitutional restrictions -on; res-
ignations within 14 -days,. of the commencement of a
strike were identical - .. ' i s
THE REMEDY ,
It is appropriate to recommend that Respondent be or-
dered to reimburse with interest, on a pro rata basis, the
employees for the fines which were' levied in part- for
their,preresignation conduct and in--part for-tile postre-
signation conduct, if any such moneys have been collect-
ed for those fines. In the event the Respondent should
-take- actions to collect the- fines, they - are, enforceable
„3 For example Anderson could have worked part or all,of either the 11
_p in (November 13) to 7 a in ,(November 14) or the lam to 3 p in, (No-
vember 14) shifts before the Union received its mail oni November 14
733
against the employees, - other than Harper and Jones,
named above only in proportion to the percentage of the
employees' conduct which took place before the employ-
ees' resignations were received See Engineers & Scien-
tists Guild (Lockheed-California Co.), 268 NLRB 311
(1983). As to Harper and Jones, of course, the fines are
void in their entirety, and not collectible at all.
Further it is appropriate to order Respondent to cease
and desist - from maintaining restriction of resignations
found invalid herein and to expunge such provisions
from its governing -documents. Pattern Makers, 273
NLRB 113 (1984).4 -
CONCLUSIONS-oF LAW
1. By preferring charges against, trying, and fining em-
ployees who had effectively resigned from union mem-
bership for the postresignation conduct of working for a
struck' employer, the -Union has restrained and coerced
employees in the exercise of rights guaranteed in Section
7 of the Act,' and has violated Section 8(b)(1)(A) of the
Act.
2. By maintaining governing documents of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen ' and Helpers of America to the extent they pro-
vide restrictions on resignations or withdrawals from the
Union during or before a strike, Respondent has further
.violated Section 8(b)(1)(A) of the Act.
- On these findings of fact and conclusions of law and
on the entire 'record, I: issue the following recommend-
ed5 ,
ORDER
The Respondent, International Brotherhood of Team-
sters, Chauffeurs, - Warehousemen and 'Helpers of Amer-
ica,'Local No.'538, Pittsburgh, Pennsylvania, its officers,
agents', and representatives, shall
1. Cease and desist from -
(a) Preferring charges 'against , trying, or fining any
employees for working for a struck employer after any
such employees have effectively resigned' from the
-Union.
(b) Maintaining in its governing documents provisions
of the constitution of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, to the extent said documents provide:
Resignation shall not relieve a member of his obli-
gation to refrain from contiiiuing to work or accept-
:iiigemploymen't at'an establishment for the duration
of a strike i or lockout at' such establishment or
within fourteen (14) days preceding the commence-
.tti° In_so'doing: it §hall -nol'be ordered that the parent Interiiational,
which is not a party to this proceeding,-expunge the offending provisions
from its constitution Rather,. the order is limited to requiring Respondent
to expunge, the provision from its governing documents` including such
documents of tlie 'International ihat'the' Respondent may have incorporat-
ed byfreference and. adopted as its, own Pattern Makers,supra- '' 21
5 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'theni shallbe'deemed waived `for all pur-
poses
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the strike or lockout . Where observance of
a primary picket line is required , resignation shall
not relieve a member . of his obligation to observe
the primary picket line for its duration - if the resig-
nation occurs during the period that the picket line
is maintained or within - fourteen ( 14) days before its
establishment.
(c) Restraining or coercing employees who have re-
signed from , and are no longer members of, the Re-
spondent in the exercise of the rights guaranteed them by
Section 7 of the Act by imposing court collectible fines
on such employees because of their postresignation con-
duct of working for Passavant Health Center.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the polices of the Act. - ,
(a) Remove from its governing documents the above-
quoted section of the constitution of International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. -
(b) Rescind the fines levied against Robin Anderson,
Sandra Baker, Ruth Bills, Clair Christy , Elizabeth Crans,
Deborah Croup , Jean Dambach,_Waldo Donoso, Robert
Goldinger , Helen Hans, Amanda Harper , Lynda Hemp-
hill, Arthur Hollerman , Vonnie Hutchins , Joe Jones,
Janice Klenk, Richard Lutz , -Jr., Elizabeth Major, Ruth
Manol, Leona Marburgr , Doris Miller, Ray Moyer,
Alicia Pepe, Joan Petrak , Judith Rava, Hazel Rawlins,
Bonnie Rippee , Marcia Schoppe , Rita Schweiger, Linda
Schelhamer , Mima Sipes , Phyllis Turner , Rhonda Tyson,
Donna Weiss , William Welsh , Margaret Wendereusz,
and Susan Woods because of their postresignation con-
duct of working for Passavant Health Center during the
strike which began on or about November 12, 1983, and
terminated on or about March 14 , 1983 and refund to
them any monies said employees may have paid as a
result of such fines , with interest. -
(c) Post at its business office and meeting halls copies
of the attached notice marked "Appendix ." s Copies of
said notice , on forms provided by the Regional Director
for Region 6, -after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where - notices to members are customarily posted. Rea-
sonable steps shall be taken . by Respondent to ensure that
said notices are not altered , defaced , or covered by any
other material.
(d) Furnish the Regional Director with signed copies
of the aforesaid notice to be posted by Passavant Medi-
cal Center if that company is willing to post it.
(e) Notify the Regional Director in writing within 20
days from - the date of this Order what steps it has taken
to comply. -
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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " -,
.t
i