NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,472, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL NO. 18, AFL-CIO (Globe Sheet Metal Works, Inc.) and PAUL MIELKE., (Sep. 15, 1994), National Labor Relations Board, (Sep 15, 1994)

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL NO. 18, AFL-CIO (Globe Sheet Metal Works, Inc.) and PAUL MIELKE.

314 NLRB No. 180.Case No. 30-CB-3379. September 15, 1994 Arline Pacht, Administrative Law Judge..

Before Gould, Browning and Cohen.

Benjamin Mandelman, for General Counsel. John J. Brennan (Previant, Goldberg, Uelmen & Gratz), Milwaukee, Wisconsin, for Respondent.

Union Fines and Disciplinary Action--Constitution and Bylaws--Filing of Decertification Petition.--Upon being decertified and learning that one of its members had filed the decertification petition with the NLRB, a union acted unlawfully when it charged the member with violating the union’s constitution by working for what was now a nonunion company. A union trial board imposed a $3000 fine, which the membership affirmed. The member’s petitioning was a protected activity, and the union’s filing of charges was in direct retaliation for those protected activities. The union’s trial and imposition of a fine was in accordance with the treatment of others who violated the same constitutional provision. However, the member would not have been brought to trial and fined but for the unlawful charge filed against him in retaliation for filing the decertification petition. Thus, the union was ordered to rescind the fine. Section 8(b)(1)(A).

Back reference: ¶4350.602.

From Text of Board’s Decision

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

We adopt the judge’s finding that the Respondent violated Section 8(b)(1)(A) of the Act by threatening employee Paul Mielke by its letters dated Decembeer 15, 1991 and January 3, 1992 with loss of employment because he filed a successful decertification petition. We also agree with the judge that the Respondent further violated Section 8(b)(1)(A) by filing internal union charges against Mielke for working for a non-union employer in retailiation for his filing of the decertification petition. Contrary to the judge, however, we find that the Respondent also violated Section 8(b)(1)(A) by trying Mielke on the charge and imposing a $3000 fine on him.

The facts are essentially undisputed. The Respondent and Globe Sheet Metral has a longstanding collective-bargaining relationship. Their last agreement, covering a two-man unit, expired on March 31, 1991. [1] A few weeks prior to that date, on March 8, Mielke, a sheet metal worker at Globe and a member of the Respondent, filed a decertification petition with the Board. As the decertification petitioner, Mielke participated in the preelection proceedings and served as an observer at the August 6 election, which the Respondent lost.

Soon after the petition was filed, Michael Engelberger, the Respondent’s vice president and business representative, learned that Mielke was the petitioner, and from that point, Engelberger closely followed the progress of the decertification. In mid-November, after the Board officially notified Engelberger that the Respondent was decertified at Globe, Engelberger began an inquiry to determine whether Mielke, who remained a member of the Respondent, continued to work for Globe, a nonunion employer. Under Article 17, section 1(g) of the Respondent’s constitution a member may be penalized for:

Accepting employment in any shop or on any job where a strike or lockout, as recognized under this Constituion, exists, or performing any work covered by the claimed jurisdiction of this Association for any employer that is not signatory to or bound by a collective bargaining agreement with an affiliated local union of this International Association, unless authorized by local union.

After attempting and failing to reach Mielke at work on November 18 and 19, Engelberger called Mielke at home on Novmeberf 19 and asked “how things were going now that Globe Sheet Metal Work has gone nonunion,”, in order to ascertain whether Mielke was still working for Globe. In marked contrast to the Respondent’s dealings with other members found to be working for nonunion employers, Engelberger did not tell Mielke that he intended to file internal union charges, or that Mielke had the right to resign, submit a withdrawal card, or seek a referral to a unionized employer. The next day, November 20, Engelberger filed a charge with the Respondent alleging that Mielke had violated Repondent’s constitution.

On the same date, the Respondent notified Mielke that a charge had been filed against him, and advised him that a trial board would convene several weeks later. By letter dated December 10, the Respondent notified Mielke of the date, time, and place of the hearing, and added that if he did not appear the trial board would proceed with the trial in his absence.

On January 4, 1992, a trial board composed of Respondent’s officers convened to hear Mielke’s case. Mielke did not attend. Engelberger, the sole witness, testifed by reading aloud a prepared written statement providing a chronological summary of the events. In that statement, Engelberger noted that the Respondent was officially decertified at Globe on October 21, that Mielke paid his dues through October 30, that Mielke wrote to the Union asking about the status of his benefits, and that Mielke worked for a nonsignatory contractor while remaining a member of the Respondent. Following his presentation, Engelberger answered questions from the trial board members. [2] Engleberger gave his statement with suporting documents to the trial board and did not remain while the members deliberated. One of the supporting documents identified Mielke as the decertification petitioner.

The trial board found that Mielke was in violation of the Respondent’s constitution and imposed a $3000 fine. One board member, Marc Dejarlais, testified that there was no discussion of Mielke’s participation in the decertification. He acknowledged, however, that he knew of Mielke’s role because it was mentioned in one of the documents before the trial board. At the Respondent’s general business meeting later that day, the membership voted to affirm the trial board’s decision. By letter dated January 13, 1992, the Responent notified Mielke of the outcome and advised him of his right to appeal the decision.

The judge found that the General Counsel had established a prima facie case that Mielke was both charged and fined for discriminatory reasons, noting that Mielke, in petitioning for decertification, clearly engaged in statutorily protected activity, that Engleberger, the Respondent’s agent, was aware of Mielke’s role in the decertification, and that Engelberger’s inquiry into Mielke’s employment status was prompted by the receipt of official notice of the Respondent’s decertification at Globe. The judge further found that the Respondent filed the charges against Mielke in retaliation for his protected activities, noting that Engelberger’s actions were in marked contrast to the manner in which other union members accused of breaching the same article of the constitution were treated. The judge further found, however, that once the charge was filed, Mielke was treated no differently than other union members accused of violating article 17 and was accorded due process. For the reasons set forth below, we disagree and find that the Respondent’s adherence to its standard procedure in trying and finding Mielke is insufficient to rebut the General Counsel’s prima facie case that the Respondent acted against Mielke for discriminatory reasons.

In the circumstances of this case, we do not find that the Respondent’s trial and fine imposd on Mielke can be analyzed separately from the Responent’s filing of the charge against him. Although there is no evidence that the procedure followed by the trial board in trying and fining Mielke was irregular, the fact remains that Mielke would not have been brought before the trial board and subsequently fined but for the unlawful charge filed against him in retaliation for filing a decertification petition. Having set in motion the unlawful charge, the Respondent is not insulated from the consequences flowing from that charge. [3] Further, to view the trial and fine as severable would leave Mielke subject to a substantial fine and have the effect of penalizing Mielke for having exercised his statutory rights by filing a decertification petition against the Petitioner. Molders Local 125 (Blackhawk Tannng), [1969 CCH NLRB ¶21,164] 178 NLRB 208, 209 (1969), enfd. [65 LC ¶11,683] 442 F.2d 92 (7th Cir. 1971). Thus, we find that the Respondent’s entire course of conduct, by bringing charges against Mielke, trying him, and fining him, restrained and coerced Mielke in the exercise of his Section 7 rights in violation of Section 8(b)(1)(A) of the Act.

Remedy

Having found that the Respondent had engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, we shall order that it cease and desist and take certain affirmative action designed to effectuate the policies of the Act.

We shall order the Respondent to rescind and refund the full amount of the fine assessed against Paul Mielke, with interest to be computed in the manner set forth in New Horizons for the Retarded, [1986-87 CCH NLRB ¶18,750] 283 NLRB 1173 (1987). We shall further order that the Respondent remove from its records all references to the unlawful proceeding and fine against Mielke, and notify him in writing that this action has been taken and that the charge and fine will not be used against him in any way. [4]