Local Union No. 1233, Carpenters

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 1233, United Brotherhood of Carpenters and Joiners of America and Anthony A. Ortega and Lonnie D. Ward and Polk Construc- tion Co., Inc. South Mississippi Carpenters' District Council, Unit- ed Brotherhood of Carpenters and Joiners of America and Anthony A. Ortega and Lonnie D. Ward and Polk Construction Co., Inc. Local Union No. 1518, United Brotherhood of Carpenters and Joiners of America and Polk Construction Co., Inc. Cases 15-CB-1680, 15- CB-1692, 15-CB-1681, 15-CB-1694, and 15-CB- 1710 August 30, 1977 DECISION AND ORDER On July 29, 1976, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondents filed exceptions and supporting briefs,' and the Charging Parties filed a brief. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondents, Local Union No. 1233, United Brotherhood of Carpenters and Joiners of America; South Mississippi Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America; Local Union No. 1518, United Brotherhood of Carpenters and Joiners of America, their officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order. ' The General Counsel's motion to insert a page that was inadvertently omitted from counsel for General Counsel's brief in support of limited exception to the Administrative Law Judge's Decision is hereby granted. 2 Members Jenkins and Murphy, who dissented in Machinists Local 1327, International Association of Machinists and Aerospace Workers, AFL- CIO, District Lodge 115 (Dalmo Victor Co.), 231 NLRB 719 (1977), note that the restriction here on membership resignation prohibited all resignations at all times for the purpose of performing nonunion work or, as the Administrative Law Judge phrased it, "to impede forever the Section 7 rights" to refrain from union activity. It is on this ground that the restriction here cannot operate as a lawful bar to resignation. This element was not present in Dalmo, where the restriction ran only against resignations after a strike was called and a picket line was established. 231 NLRB No. 114 MEMBER PENELLO, concurring: I agree with my colleagues' affirmance of the Administrative Law Judge's 8(b)(l)(A) findings. I also agree, for the reasons set forth in my dissenting opinions in Skippy Enterprises3 and Associated Food Stores, Inc.,4 that Respondents violated Section 8(b)(l)(B) of the Act in the disciplining of Supervi- sors King, Robertson, and Wittal, who, during the strike, spent virtually none of their time performing unit work. In Chicago Typographical Union No. 16 (Hammond Publishers, Inc.), 5 the Board decided, in view of the Supreme Court's decision in Florida Power,6 that a union violated Section 8(b)(1)(B) of the Act when it disciplined supervisor-members who performed sub- stantially supervisory functions and only a minimal amount of rank-and-file work during a strike. In the present case, the rationale employed in Hammond requires that the violations be found with regard to King, Robertson, and Wittal. This follows since they, like the supervisor-members of Hammond, performed substantially supervisory functions and only a minimal amount, if any, of rank-and-file work during the strike. In reaching this conclusion, I reiterate the view which I expressed in United Brotherhood of Carpenters & Joiners of America, Local Union No. 14, AFL-CIO (Max M. Kaplan Properties),7 Skippy Enterprises, supra, and in Associated Food Stores, supra, that, in determining whether Section 8(b)(1)(B) has been violated, it is irrelevant whether the disciplined supervisor-members had performed rank- and-file work, in either the same or a different proportion, before the employer-union dispute. This follows since the only relevant inquiry is what the supervisor-member did during the employer-union dispute. CHAIRMAN FANNING, concurring and dissenting: While I agree with my colleagues' affirmance of the Administrative Law Judge's findings that Respon- dents violated Section 8(b)(1)(A) of the Act in the manner set forth in the Administrative Law Judge's Decision, I disagree with their affirmance of the Administrative Law Judge's findings that Respon- dents violated Section 8(b)(l)(B) of the Act, by bringing internal union charges against Supervisors King, Robertson, and Wittal; by refusing to issue membership withdrawal cards to Robertson and 3 Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America (Skippy Enterprises), 218 NLRB 1063 (1975). 4 Warehouse Union Local 6, International Longshoremen's and Warehouse- men's Union (Associated Food Stores, Inc.), 220 NLRB 809 (1975). 5 216 NLRB 903 (1975). 6 Florida Power d Light Co. v. International Brotherhood Electrical Workers, Local 641, 417 U.S. 790 (1974). 7 217 NLRB 202 (1975). 756 LOCAL UNION NO. 1233, CARPENTERS Wittal because of pending charges; by providing a forum for the prosecution of internal union charges against these supervisors; and by "expelling and debarring" them from membership. The Supreme Court held in its decision in Florida Power8 that the unions did not violate Section 8(b)(l)(B) of the Act when they disciplined supervi- sor-members for crossing picket lines and performing rank-and-file work during lawful economic strikes against the employers, and that the disciplining of supervisor-members can violate Section 8(b)(l)(B) only when such disciplining may have an adverse effect on the supervisor-members' conduct in per- forming the duties of grievance adjuster or collective- bargaining representative on behalf of the employer. As the record is devoid of any evidence that Supervisors King, Robertson, and Wittal have engaged in collective bargaining or contract negotia- tions on behalf of the Employer or that they had the authority to handle or adjust grievances, I find that this case is controlled by the Supreme Court decision in Florida Power. Moreover, the record does show that, although the Employer had agreed to follow the contract signed by the Gulf Coast Chapter of the AGC, the Employer did not sign it, and the strike followed the Employer's refusal to comply with the new contract signed by the Gulf Coast Chapter of the AGC. Accordingly, unlike my colleagues of the majority, I would dismiss the complaint insofar as it alleges violations of Section 8(b)(l)(B)." X Florida Power & Light Co. v. International Brotherhood of Electrical Workers, Local 641, et al., 417 U.S. 790 (1974). I 1 find that Warehouse Union Local 6, ILWU (Associated Food Stores), 220 NLRB 809 (1975), cited by the Administrative Law Judge and affirmed by the majority, is readily distinguishable. In that case, unlike here, I found that the strike itself was violative of Sec. 8(bXIXB) and that it was an attempt to coerce the employer in the selection of his representative to adjust the grievance. For the reasons set forth in my dissent in Wisconsin River Valler' District Council of the United Brotherhood of Carpenters and Joiners of America (Skipp.V Enterprises, Inc.), 218 NLRB 1063 (1975). 1 disagree with my colleagues' adoption of the Administrative Law Judge's finding that. since Supervisors King. Robertson, and Wittal performed virtually no rank-and-file work either before or during the strike. the rationale of Nes Mexico District Council of Carpenters and Joiners of America (A. S. Horner. Inc.), 177 NLRB 500 (1%969), rather than the Supreme Court's decision in Florida Power is applicable. I find here, as I did in Skippy Enterprises, that the majority is in error in relying on the Board's decision in A. S. Horner. because the Supreme Court disapproved that decision in Florida Power DECISION 1. STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This consolidated matter was heard before me in Columbia, Mississippi, on June 14, 1976. The original charges in Cases 15-CB-1680 and 15-CB- 1681 were filed on August 26, 1975, by Attorney Lewis A. Fuselier in his own name. Second charges bearing the same docket numbers, and treated by the pleadings as amend- ments of the originals, were filed by Attorney Fuselier on September 8 in the names of Anthony Ortega and Lonnie Ward. The charges in Cases 15-CB-1692 and 15-CB-1694 were filed on September 3, 1975, by Polk Construction Co., Inc.; and that in Case 15-CB-1710 was filed by Polk Construc- tion on October 16, 1975. A consolidated complaint issued in Cases 15-CB-1680, 15-CB-1681, 15-CB-1692, and 15-CB-1694 on October 9, 1975, which was amended on November 11, on March 31, 1976, and during the hearing. A complaint issued in Case 15-CB-1710 on November I I, which was amended during the hearing. An order consolidating Case 15-CB-1710 with the other consolidated matter for hearing also issued on November II. The complaint in Case 15-CB-1710 alleges a violation of Section 8(bX)(I)(B) of the National Labor Relations Act, as amended, by Local Union No. 1518, United Brotherhood of Carpenters and Joiners of America (herein called Respondent Local 1518). The consolidated complaint alleges various violations of Section 8(b)(IXA) and (B) by South Mississippi Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America (herein called Respondent Council), and by Local Union No. 1233, United Brotherhood of Carpenters and Joiners of America (herein called Respondent Local 1233). The parties were given opportunity at the hearing to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs were received from the General Counsel, Respondents, and the Charging Parties. II. ISSUES The issues raised by the consolidated complaint are whether: I. Respondent Council and Respondent Local 1233 jointly and severally threatened Polk Construction employ- ees Anthony Ortega and Lonnie Ward with fines for working during a strike after resigning their union memberships, violating Section 8(bX I)(A). 2. Respondent Local 1233 violated Section 8(bX)(XB) by bringing internal union charges against Polk Construc- tion Supervisors Donald King, Lewis (Max) Robertson, and Ralph Wittal for working during a strike; and by its refusal to issue a membership withdrawal card to Robert- son because of those charges. 3. Respondent Council violated Section 8(b)(IXB) by providing a forum for the prosecution of the internal charges against Supervisors King, Robertson, and Wittal; and by "expelling and debarring" them from membership in the United Brotherhood of Carpenters and Joiners of America (herein called the United Brotherhood) as a result. 4. Respondent Council and Respondent Local 1233 violated Section 8(b)(IXA) by their manner of applying section 47 of the constitution of the United Brotherhood, which governs the resignation of members. The issue raised by the complaint in Case 15-CB-1710 is whether Respondent Local 1518 violated Section 8(b)(1)(B) by its refusal to issue a membership withdrawal card to Supervisor Wittal because of the internal charges against him. 757 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. JURISDICTION Polk Construction Co., Inc., is a Mississippi corporation, headquartered in Columbia, Mississippi, engaged as a general contractor in the construction industry. It annually receives materials valued in excess of $50,000 directly from outside Mississippi. Polk Construction is an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. IV. LABOR ORGANIZATIONS Each of the Respondents is a labor organization within the meaning of Section 2(5) of the Act, as is the United Brotherhood. V. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Polk Construction is the general contractor on a stadium expansion project at the University of Southern Mississippi in Hattiesburg. The project began in April 1974 and was unfinished at the time of hearing. The project is in the territorial jurisdiction of Respondent Local 1233, which offices are in Hattiesburg. Before the start of the project, Polk Construction agreed with Respondent Local 1233 to comply with the existing labor contract between Respon- dent Council and the Gulf Coast Chapter of Associated General Contractors. Polk Construction is not an AGC member. The AGC contract which Polk Construction had agreed to follow expired on April 30, 1975. On May 9, Respondent Council and the Gulf Coast Chapter entered into a new contract, which raised the hourly wage rate for journeyman carpenters from $7 to $7.15 and increased fringe benefit contributions. Subsequent efforts by Respondent Local 1233 to obtain Polk's compliance with the new contract met with failure. Jim Touchstone is the business agent of Respondent Local 1233 and the secretary-treasurer of Respondent Council. On July 3, 1975, he called a meeting of Polk's stadium project employees who belonged to Respondent 1233 or other affiliates of the United Brotherhood. Touchstone announced, after reporting Polk's refusal to comply with the new contract, that the members were not to work on the next workday, July 7, nor thereafter until Polk agreed to comply. Citing the constitution of the United Brotherhood and the bylaws of Respondent Council, Touchstone mentioned the possibility of fines and expulsions from membership for those working in disre- gard of this directive. A strike began as scheduled on July 7, and a picket line was established on about July 10. The strike continued until March 1976. Among Polk's stadium project crew were Supervisors Donald King, Lewis (Max) Robertson, and Ralph Wittal,' and rank-and-file employees Anthony Ortega and Lonnie I King, Robertson, and Wittal testified credibly and without refutation of possessing and exercising various supervisory attnbutes. They therefore are found to have been statutory supervisors at relevant times. 2 Sec. 45(L) of the constitution of the United Brotherhood states: Ward. Robertson, Ortega, and Ward were members of Respondent Local 1233. Wittal belonged to Respondent Local 1518 in Gulfport. King belonged to another affiliate of the United Brotherhood, Local 2188, in Columbia. On July 8, Supervisor King told the business agent of Local 2188, Gaston Beard, that he wished to withdraw from membership so that he could return to work without fear of union discipline. Beard instructed King to send in his membership book, saying it would be forwarded to the United Brotherhood together with a request that King be issued a withdrawal card. Beard suggested that King act quickly, before internal charges could be filed against him. King sent his book to Beard on July 9 and returned to work that same day. On July 9, Supervisor Robertson and employees Ortega and Ward called on Touchstone at the offices of Respon- dent Local 1233, informing him that they also wished to withdraw from membership so they could return to work. Touchstone replied that, before they would be permitted to resign, they would have to submit affidavits that they would not perform future carpentry work. When they said they could not do that, that carpentry was their livelihood, Touchstone said that the alternative would be to let their dues lapse for 6 months and they would be suspended. 2 Explaining why the withdrawal requests were refused, Touchstone testified: Well, because the general constitution that we operate under . . . prohibits a withdrawal card being issued if it's a known fact that they are going to go to work for the purpose of breaking down wages and conditions, violating the trade rules. 3 That afternoon Robertson, Ortega, and Ward each sent letters to Respondent Local 1233, attention Touchstone. The Robertson and Ward letters were largely identical, stating: "By means of this letter, I wish to make my resignation official as of this date." Ortega's letter stated: "I am ... officially requesting that you accept this as my resignation from your union as of this date." The record does not disclose when these letters were received. Robertson, Ortega, and Ward returned to work July 10. On July 22, Supervisor Wittal sent a letter to Respondent 1518, stating that he "wish[ed] to officially withdraw my 28-year-old membership in you Local No. 1518 as of this date." Wittal returned to work July 22. Supervisors King, Robertson, and Wittal performed virtually no rank-and-file work either before or during the strike. On July 24, Touchstone, as business agent of Respondent Local 1233, wrote Respondent Council that he was bringing charges against the three supervisors and two employees. Touchstone's letter stated in relevant part: I charge the above mentioned and named men in violation of the Constitution and Laws of the United Brotherhood of Carpenters and Joiners of America. "Unless dues are paid by the end of the sixth month, his [member's I name shall be stricken from the list of membership .... " 3 This was an allusion to sec. 47(B) of the constitution of the United Brotherhood, which is set forth and discussed later. 758 LOCAL UNION NO. 1233, CARPENTERS Section 55, Paragraph 10 - Working behind a picket line duly authorized by any subordinate body of the United Brotherhood. Section 55, Paragraph 13 - Violating the obligation.4 I also charge the above mentioned and named men with violation of the Constitution By-laws and Trade Rules of the South Mississippi Carpenters' District Council. Section 73-Any member being called off any job by a Business Agent of the District Council and remaining at work or returning without permission from the Business Agent or the District Council, or failing to remove his tools, or loitering around the jobs, or obstructing the Business Agents in the lawful discharge of their duties; any member refusing to show his pay when asked by any steward or Business Agent, or carrying news to those in authority or otherwise, or making false statements regarding the pay or scale of wages, unless he has positive evidence of the fact, shall be fined upon conviction, as per Section 69, Under Violations. Section 74 - Any member who works on a non-union job shall be fined upon conviction, as per Section 69, under Violation.s On or about August 18, Touchstone, as secretary- treasurer of Respondent Council, sent undated letters to the five men, informing them that they were to appear on August 28 at the meeting of Respondent Council in Gulfport "to answer charges brought against you by Jim Touchstone .... " Enclosed with each letter was a copy of Touchstone's July 24 letter to Respondent Council, portions of which are quoted above. Each of the five responded by substantially identical letters dated August 26 stating that "the union's legal authority over my activities terminated with my resignation of membership," and that "I have no intention of appearing at the scheduled "trial.' " None of the five did appear, and apparently no action was taken against them. By letters to each of the five dated September 10, however, the secretary of Respondent Council, Donn Owens, advised them "to appear before the 'TRIAL COMMITTEE' elected to hear the case caused by charges presented by Jim Touchstone" at a meeting to be held in Gulfport on September 25. Owens' letters added that, should those charged fail to appear, "the 'TRIAL COMMITTEE' will have no alternative but to base their decisions upon the testimony presented to them." The meeting was held as scheduled; and, again, none of the five appeared. By letters dated October 1, Owens informed each of the five: Sec. 55 contains this prefatory language: "Any officer or member tound guilty after being charged and tried in accordance with Section 56, for any of the following offenses, may be fined, suspended or expelled .... The obligation. so-called. is the oath of membership. It includes this clause, among others: "l promise to abide by the Constitution and Laws." " Sec 69 states: This will serve to officially notify you that you were found guilty as charged and the delegates to the South Mississippi Carpenters District Council passed a motion to expell and debar you from the United Brotherhood of Carpenters and Joiners of America for violation of Section 55, paragraphs 10 and 13 of the Constitution and laws of the United Brotherhood of Carpenters and Joiners of America and for violation of the Constitution and by-laws and trade rules of the South Mississippi Carpenters District Council, Section 73 and section 74. This will also serve to notify you that you have 30 days from the date above to appeal this ruling. If you do not appeal within the thirty (30) days, the general president will not consider your appeal. None of the five appealed. Meanwhile, on September 10, Wittal and Robertson sent substantially identical letters to Respondent Locals 1518 and 1233, respectively. They stated in part: Pursuant to Section 47A of the constitution and laws of the United Brotherhood of Carpenters and Joiners of America, as amended January 1, 1975, enclosed is 50C for my Resignation Card indicating an honorary withdrawal from the United Brotherhood. Section 47(A) of the constitution of the United Brother- hood of Carpenters reads: A member can withdraw or sever his connection with the United Brotherhood by resignation in writing, and it shall require a majority of the members present at a regular meeting to accept a resignation. A member who resigns can only be readmitted as a new member. A member wishing to withdraw or sever connection with the United Brotherhood shall present the resignation in writing, which shall be laid over two weeks for investigation. A member resigning shall be given a Resignation Card, which shall indicate an honorary withdrawal from the United Brotherhood. Such card shall be furnished by the General Secretary on application by the Local Union, on payment of Fifty Cents (50t) for each card. Donn Owens, as business agent of Respondent Local 1518, replied to Wittal's letter by one of his own, dated September 17. After reciting section 47(B) of the constitu- tion, Owens' letter stated: I am returning your check for the payment of fifty cents (50C) for a resignation card from the Union until such time as you have been cleared of charges brought against you. Section 47(B) of the constitution reads: Local By-Laws, shall be tried by this District Council. All fines of members of this United Brotherhood of Carpenters and Joiners of America of South Mississippi Carpenters' District Council and Vicinity, duly imposed after trial and conviction, where not otherwise provided for in these laws, shall be not less than $1.00. no Isicl more than $75.00. All violations of the Trade and Steward Rules, General Constitution or 759 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A Local Union shall not accept the resignation of a member when it is known that same has been submitted for the purpose of violating Trade Rules. When a member resigns, or is expelled, or an applicant as covered by the Constitution and Laws of the United Brotherhood, who works to the detriment of the United Brotherhood, the Local Union or District Council may place a special initiation fee against such person, not to exceed Fifty Dollars ($50.00) over their regular initia- tion fee for new or ex-members as provided for in their By-Laws. Robertson's September 10 letter received like treatment from Respondent Local 1233, although he could not recall receiving a letter of the sort sent to Wittal by Respondent Local 1518. Respondent Local 1233 amended its answer during the hearing to admit that it has refused Robertson's request that it issue him a membership withdrawal card. 6 B. Analysis Section 8(b)(1)(A): To summarize, it is alleged that Respondent Council and Respondent Local 1233 violated Section 8(b)(1)(A) by: (I) Threatening employees Ortega and Ward with fines- i.e., by causing them to believe that fines could result from the disciplinary action against them-for returning to the job after resigning their union memberships; and, (2) their manner of applying section 47 of the constitution of the United Brotherhood, which governs the resignation of members. Section 8(b)(1)(A) contains this proviso: IT]his paragraph shall not impair the right of a labor organization to prescribe its own rules with regard to the acquisition or retention of membership therein. Alluding to the proviso, the Board stated in Teamsters Local 122, et al. (August A. Busch & Co. of Mass., Inc.), 203 NLRB 1041, 1042(1973): Expulsion from membership in a labor organization is a matter of internal union concern, and does not in and of itself give rise to violation of the Act. And the Supreme Court stated in N.LR.B. v. Allis- Chalmers Mfg. Co., 388 U.S. 175, 191-192 (1967): At the very least it can be said that the proviso preserves the rights of unions to impose fines, as a lesser penalty than expulsion .... The Court continued, at 388 U.S. 195, that the prohibitions of Section 8(b)(1)(A) do not encompass "the imposition of fines on members who decline to honor an authorized strike." I King and Ward also sent such letters to their respective locals, Local 2188 and Respondent Local 1233, which were rejected. There is a hint that Ortega did likewise, to Respondent Local 1233, although the record would not support such a finding. Regardless, there is no allegation of violations in these respects as concerns King, Ward, and Ortega. Local 2188, moreover, is not a party. I Touchstone also raised the possibility of fines during the July 3 meeting in which the strike was announced. There is neither contention nor There are limits, however, upon those against whom a union can impose disciplinary sanctions, at least as concerns fines. Again quoting the Supreme Court, this time in N.L R.B. v. Granite State Joint Board, Textile Workers, Union of America, Local 1029 [Intl. Paper Box Machine Co.], 409 U.S. 213, 217 (1972): Where a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct. That is to say, when there is a lawful dissolution of a union-member relation, the union has no more control over the former member than it has over the man in the street. See also Booster Lodge No. 405, Intl. Assn. of Machinists and Aerospace Workers [Boeing Co.] v. N.L.RB., 412 U.S. 84 (1973). Presumably in deference to the proviso, the General Counsel does not contend that the end result of the proceedings against Ortega and Ward-expulsion and debarment-violated the Act. Nor does he contend that the underlying proceedings would have been violative had their potential been limited to that result. It is contended, however, that the proceedings carried the potential of fines, which would have been unlawful inasmuch as the proceed- ings were concerned solely with the postresignation conduct of Ortega and Ward; and, therefore, that the proceedings contained unlawful threats. The theory, in short, is that threats to impose unlawful fines are them- selves unlawful. The factual underpinning for this argument-that the potential of fines existed and was imparted to Ortega and Ward-is present. Touchstone's letter of July 24, which comprised the charges and was served upon them, stated in two places that those charged "shall be fined upon conviction." 7 And part of the legal underpinning-that threats to impose unlawful fines are themselves unlawful- is sound. E.g., Local Lodge No. 1994, International Association of Machinists and Aerospace Workers, AFL- CIO (O.K. Tool Company, Inc.), 215 NLRB 651 (1974); Bricklayers and Stone Masons, Local Union No. 6, et al. (Linbeck Construction Corporation), 185 NLRB 756 (1970). The difficult question is the legal one of whether Ortega and Ward had effectively resigned before engaging in the conduct for which the internal charges were brought; i.e., before their July 10 return to work. If they had not, they were legitimate objects of fines for returning; hence, the threat of fines would be permissible. International Associa- tion of Machinists and Aerospace Workers, District No. 71, Local 778 (Whitaker Cable Corporation), 224 NLRB 580, 582, fn. 3 (1976); United Paperworkers International Union, Local No. 725, AFL-CIO (Boise Southern Company), 220 NLRB 812 (1975). This compels inquiry into the sufficien- evidence, however, that Ortega or Ward had resigned by then, nor that Touchstone's remarks contemplated conduct postdating such resignations as might later occur. It therefore is concluded that nothing said at the July 3 meeting was an 8(bXIXA) threat or tainted the later disciplinary proceed- ings. Since the proviso to Sec. 8(bXIXA), as construed, preserves the right of a union to impose fines for conduct while a member, it is both lawful and salutary that members be forewarned of the possibility. 760 LOCAL UNION NO. 1233, CARPENTERS cy of the oral requests by Ortega and Ward to withdraw from membership during their July 9 visit to Touchstone's office, for their letters mailed later that day would not have been delivered until at least July 10, after their return to work. In Booster Lodge 405, supra at 412 U.S. 87-88, the Supreme Court observed that, where a union's internal rules are silent on the subject, members are "free to resign at will and . . . return to work during a strike which had been commenced while they were union members." This would indicate, were the internal rules in question silent regarding resignations, that the oral requests would have sufficed. The internal rules in question, however, are not silent. Section 47(A) of the constitution of the United Brotherhood of Carpenters sets forth a resignation proce- dure: A member wishing to withdraw or sever connection with the United Brotherhood shall present his resigna- tion in writing, which shall be laid over two weeks for investigation. Section 47(A) further specifies that a resignation request "shall require a majority of the members present at a regular meeting to accept ... ." Section 47(B) in turn describes a circumstance in which the procedure is inoperative: A Local Union shall not accept the resignation of a member when it is known that same has been submitted for the purpose of violating Trade Rules. It will be recalled that Touchstone alluded to this section when testifying of the reason the withdrawal requests of Ortega, Ward, and the others had been denied. So, even if Ortega and Ward had tendered timely written resignations as prescribed by section 47(A), section 47(B) would have precluded their being honored, as witness the disregard of their later written resignations. Compliance with the specified procedure being a futility, and the law not requiring futile ritual, the legal sufficiency of the July 9 oral resignations depends, then, upon whether the source of that futility-section 47(B)-is a valid bar to resignations submitted to escape union rules and attendant discipline. Cf. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 469 (Master Lock Company), 221 NLRB 748 (1975); Local 1384, United A utomobile, Aerospace, Agricultural Implement Workers, UA W (Ex-Cell-O Corporation), 219 NLRB 729 (1975); Local 205, Lithographers and Photoengravers Inter- national Union, AFL-CIO (The General Gravure Service Co. Inc.), 186 NLRB 454 (1970); Booster Lodge 405, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Co.), 185 NLRB 380 (1970). It is concluded that section 47(B) is not a valid bar. Otherwise, a union could block resignations so as to impede forever the Section 7 right of employees "to refrain from any or all" union activities. While the union aim of solidarity enjoys a status warranting accommodation under the Act, it is generally subordinate to the congressional " Florida Power & Light Co. v. International Brotherhood of Electrical Workers, Local 641, 417 U.S. 790(1974). concern embodied in Section 7, and is most assuredly so in this instance. Cf. Sheet Metal Workers International Association, Local Union No. 29 (Metal-Fab, Inc.), 222 NLRB 1156 (1976). The July 9 oral resignations by Ortega and Ward therefore were legally sufficient. The threats of fines embodied in the disciplinary proceedings, thus being based on postresignation conduct, violated Section 8(bX )(1A). The General Counsel's further contention-that Respon- dent Council and Respondent Local 1233 violated Section 8(b)(IXA) by their manner of applying section 47 of the constitution-is rejected. The proviso to Section 8(b)(1)(A) is specific on the point, preserving to unions the right to prescribe their own rules "with regard to the acquisition or retention of membership therein." [Emphasis supplied.] The evil above found was not in the refusal to honor the resignations of Ortega and Ward, but in the threats that followed. Section 8(b)(1)(B): Summarizing, it is alleged that: 1. Respondent Local 1233 violated Section 8(b)(IXB) by bringing internal union charges against Supervisors King, Robertson, and Wittal for working during the strike; and by refusing to issue a membership withdrawal card to Robertson because of the charge against him. 2. Respondent Council violated Section 8(b)(1XB) by providing a forum for the prosecution of the charges against King, Robertson, and Wittal, and by "expelling and debarring" them from membership in the United Brotherhood as a result. 3. Respondent Local 1518 violated Section 8(b)(I)(B) by refusing to issue a membership withdrawal card to Wittal because of the charge against him. In Warehouse Union Local 6, International Longshore- men's and Warehousemen's Union (Associated Food Stores, Inc.), 220 NLRB 809 (1975), the Board distinguished the Supreme Court's Florida Power case,8 in which a union "discipline[d] a supervisor-member for crossing a picket line . . . and performing rank-and-file struck work," from cases such as Associated Food Stores, "where the rank-and- file work normally performed by the disciplined supervi- sors did not increase during the period of the strike." Continuing, the Board observed: [I In cases where the amount of rank-and-file work- namely, work normally performed by the nonsupervi- sory employees then on strike-performed by the disciplined supervisors does not increase with the onset of the strike, the Board would apply the rationale of A. S. Horner9 rather that the Supreme Court's decision in Florida Power as the controlling precedent to determine the legality of a union's conduct. In Horner, the union fined a supervisor-member because he refused to accede to the union's demand that he cease working for a company which did not have a contract with the union. The Board concluded that the union's disciplinary action violated Section 8(b)(1XB) because compliance by the supervisor with the union's demand would have required him to quit his job with the employer and hence have "the effect of New Mexico Distrnc Council of Carpenters and Joiners of America (A. S. Horner. Inc.), 177 NLRB 500(1969). 761 DECISIONS OF NATIONAL LABOR RELATIONS BOARD depriving the company of the services of its selected representative for the purpose of collective bargaining or the adjustment of grievances." 10 The Board concluded, in Associated Food Stores, that the union had violated Section 8(b)(1)(B) by bringing disciplin- ary action against six supervisors for working behind a picket line, explaining (at 809-810): [T]he normal amount of rank-and-file work performed by the disciplined supervisors . . . was not augmented during the course of the strike. Thus, the supervisors here . . . were put in a position wherein compliance with the Union's demand would have deprived the Employer of the services of its selected representatives for the purposes of collective bargaining or the adjustment of grievances. See also Meat and Provision Drivers Local 626 et al. (Quality Meat Packing Company), 224 NLRB 186 (1976); The Newspaper Guild, Erie Newspaper Guild, Local 187, AFL- CIO (Times Publishing Company), 222 NLRB 760 (1976); Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL- CIO (Skippy Enterprises), 218 NLRB 1063 (1975). The same can be said of the present case, for Supervisors King, Robertson, and Wittal performed virtually no rank- and-file work either before or during the strike. Respon- dent 1233 consequently violated Section 8(b)(l)(B) by bringing internal union charges against them, and Respon- dent Council violated the same section by providing a forum for their prosecution and "expelling and debarring" them from membership in the United Brotherhood as a result." It is not necessary to this result to consider the legal sufficiency of the attempts by King, Robertson, and Wittal to resign from union membership. The charges against the supervisors being unlawful, it follows that Respondent Local 1518's denial of Wittal's September 9 request for a resignation card "until such time as you have been cleared of charges against you" likewise violated Section 8(bXl)(B) as part of the overall disciplin- ary scheme. Respondent Local 1233's similar denial as concerns Robertson also violated that section. It is fair to infer from Touchstone's citation to the constitutional prohibition against the issuance of withdrawal cards when "it's a known fact that they are going to work for the purpose of. . . violating the trade rules" that this denial was prompted by the pendency of the unlawful charge against Robertson. CONCLUSIONS OF LAW 1. By threatening to fine Anthony Ortega and Lonnie Ward, who had duly resigned from union membership, for postresignation work during a strike at Polk Construction Co.'s stadium project at the University of Southern "' The quotation within the quotation is from A. S. Horner at 502. " "IT ]he proviso to Section 8(b) I XA) is limited to that section only and is not part of Section 8(bXlXB)." A. S. Horner, supra at 177 NLRB 502. Expulsion of supervisors from membership consequently is no less a violation than any other form of sanction. Associated Food Stores, supra; Local 261, Lirhographers and Photoengravers International Union, AFL-CIO (Manhardt-Alerander, Inc.), 195 NLRB 408 (1972). Mississippi, as found herein, Respondent Council and Respondent Local 1233 jointly and severally engaged in unfair labor practices violating Section 8(bXI)(A) of the Act. 2. By bringing internal union charges against Donald King, Lewis (Max) Robertson, and Ralph Wittal, all of whom were supervisors for Polk Construction Co. on the above stadium project, and by its refusal to issue a membership withdrawal card to Robertson because of said charges, as found herein, Respondent Local 1233 engaged in unfair labor practices violating Section 8(b)(I)(B) of the Act. 3. By providing a forum for the prosecution of the above internal union charges against Supervisors King, Robertson, and Wittal, and by "expelling and debarring" them from membership in the United Brotherhood, as found herein, Respondent Council engaged in unfair labor practices violating Section 8(b)(lXB) of the Act. 4. By its refusal to issue a membership withdrawal card to Supervisor Wittal because of the above charges against him, as found herein, Respondent Local 1518 engaged in an unfair labor practice violating Section 8(bXl)(B) of the Act. 5. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 6. Respondent Council and Respondent Local 1233 did not otherwise violate the Act as alleged. 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 '2 A. The Respondent, South Mississippi Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America, 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, the United Brother- hood of Carpenters or its affiliated locals, in the exercise of the rights guaranteed them in Section 7 of the Act, by threatening to fine them because of their postresignation conduct of working for Polk Construction Co., or any other employer, during a strike. (b) Restraining or coercing Polk Construction Co., or any other employer, in the selection of representatives for the purpose of collective bargaining or the adjustment of grievances by providing a forum for the prosecution of internal charges against such representatives, including Donald King, Lewis (Max) Robertson, and Ralph Wittal, and by "expelling and debarring" them from membership in the United Brotherhood for working during a strike. (c) Engaging in like or related unlawful conduct. 2. Take the following affirmative action: 12 All outstanding motions inconsistent with this recommended Order hereby are denied. 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, 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. 762 LOCAL UNION NO. 1233, CARPENTERS (a) Rescind the expulsions and debarments of Donald King, Lewis (Max) Robertson, and Ralph Wittal for working for Polk Construction Co. during a strike, and expunge all records thereof. (b) Notify King, Robertson, and Wittal in writing that said actions have been rescinded and said records ex- punged. (c) Similarly notify the United Brotherhood and the affiliated locals thereof with whom King, Robertson, and Wittal were identified as members at the time of said actions. (d) Post at its business offices and meeting halls copies of the attached notice marked "Appendix A."13 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative, shall be posted by the Respondent Council 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 custom- arily posted. Reasonable steps shall be taken by Respon- dent Council to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 15 signed copies of said notice for posting by Polk Construction Co., Inc., if the Company be willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for Region 15, after being duly signed by Respondent Council's authorized representative, shall be returned forthwith to the Regional Director. (f) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent Council has taken to comply herewith. B. Respondent Local Union No. 1233, United Brother- hood of Carpenters and Joiners of America, 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, the United Brother- hood of Carpenters or its affiliated locals, in the exercise of the rights guaranteed them in Section 7 of the Act, by threatening to fine them because of their postresignation conduct of working for Polk Construction Co., Inc., or any other employer, during a strike. (b) Restraining or coercing Polk Construction Co., Inc., or any other employer, in the selection of representatives for the purpose of collective bargaining or the adjustment of grievances by bringing internal charges against such representatives, including Donald King, Lewis (Max) Robertson, and Ralph Wittal, for working during a strike; and. by refusing to issue a membership withdrawal card to Lewis (Max) Robertson because of those internal charges. (c) Engaging in like or related unlawful conduct. 2. Take the following affirmative action: (a) Expunge all records of the internal charges brought against Donald King, Lewis (Max) Robertson, and Ralph ':' In the event the Board's 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." Wittal for working for Polk Construction Co., Inc., during a strike. (b) Notify King, Robertson, and Wittal in writing that said records have been expunged. (c) Issue a membership withdrawal card to Lewis (Max) Robertson. (d) Post at its business offices and meeting halls copies of the attached notice marked "Appendix B."14 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative, shall be posted by Respondent Local 1233 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 custom- arily posted. Reasonable steps shall be taken by Respon- dent Local 1233 to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 15 signed copies of said notice for posting by Polk Construction Co., Inc., if the Company be willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for Region 15, after being duly signed by Respondent Local 1233's authorized representative, shall be returned forthwith to the Regional Director. (f) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent Local 1233 has taken to comply herewith. C. Respondent Local Union No. 1518, United Brother- hood of Carpenters and Joiners of America, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Restraining or coercing Polk Construction Co., Inc., or any other employer, in the selection of representatives for the purpose of collective bargaining or the adjustment of grievances by refusing to issue a membership withdrawal card to Ralph Wittal because of internal charges brought against him for working during a strike. (b) Engaging in like or related unlawful conduct. 2. Take the following affirmative action: (a) Issue a membership withdrawal card to Ralph Wittal. (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix C."15 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative, shall be posted by Respondent Local 1518 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 custom- arily posted. Reasonable steps shall be taken by Respon- dent 1518 to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 15 signed copies of said notice for posting by Polk Construction Co., Inc., if the Company be willing, in places where notices to employees are customarily posted. Copies of said notice, to 14 See fn. 13, supra. '5 See fn. 13, supra. 763 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be furnished by the Regional Director for Region 15, after being duly signed by Respondent Local 1518's authorized representative, shall be returned forthwith to the Regional Director. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent Local 1518 has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegation of the consolidated complaint found to be without merit is dismissed. APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The hearing held in Columbia, Mississippi, on June 14, 1976, in which we participated and had a chance to give evidence, resulted in a decision that we had committed certain unfair labor practices in violation of Section 8(a)(l)(A) and 8(b)(l)(B) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that decision. WE WILL NOT restrain or coerce employees who have resigned from, and are no longer members of, the United Brotherhood of Carpenters or its affiliated locals, in the exercise of the rights guaranteed them in Section 7 of the Act, by threatening to fine them because of their postresignation conduct of working for Polk Construction Co., Inc., or any other employer, during a strike. WE WILL NOT restrain or coerce Polk Construction Co., Inc., or any other employer, in the selection of representatives for the purpose of collective bargaining or the adjustment of grievances by providing a forum for the prosecution of internal charges against such representatives, including Donald King, Lewis (Max) Robertson, and Ralph Wittal, and by "expelling and debarring" them from membership in the United Brotherhood, for working during a strike. WE WILL NOT engage in like or related unlawful conduct. WE WILL rescind the expulsions and debarments of Donald King, Lewis (Max) Robertson, and Ralph Wittal for working for Polk Construction Co., Inc., during a strike, and expunge all records thereof. WE WILL notify King, Robertson, and Wittal in writing that said actions have been rescinded and said records expunged. WE WILL similarly notify the United Brotherhood of Carpenters and the affiliated locals thereof with whom King, Robertson, and Wittal were identified as mem- bers at the time of said actions. SOUTH MISSISSIPPI CARPENTERS' DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The hearing held in Columbia, Mississippi, on June 14, 1976, in which we participated and had a chance to give evidence, resulted in a decision that we had committed certain unfair labor practices in violation of Section 8(a)(1)(A) and 8(bXIXB) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that decision. WE WILL NOT restrain or coerce employees who have resigned from, and are no longer members of, the United Brotherhood of Carpenters or its affiliated locals, in the exercise of the rights guaranteed them in Section 7 of the Act, by threatening to fine them because of their postresignation conduct of working for Polk Construction Co., Inc., or any other employer, during a strike. WE WILL NOT restrain or coerce Polk Construction Co., Inc., or any other employer, in the selection of representatives for the purpose of collective bargaining or the adjustment of grievances by bringing internal charges against such representatives, including Donald King, Lewis (Max) Robertson, and Ralph Wittal, for working during a strike; and by refusing to issue a membership withdrawal card to Lewis (Max) Robert- son because of those internal charges. WE WILL NOT engage in like or related unlawful conduct. WE WILL expunge all records of the internal charges -brought against Donald King, Lewis (Max) Robertson, and Ralph Wittal for working for Polk Construction Co., Inc., during a strike WE WILL notify King, Robertson, and Wittal in writing that said records have been expunged. WE WILL issue a membership withdrawal card to Lewis (Max) Robertson. LOCAL UNION No. 1233, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 764 LOCAL UNION NO. 1233, CARPENTERS APPENDIX C NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The hearing held in Columbia, Mississippi, on June 14, 1976, in which we participated and had a chance to give evidence, resulted in a decision that we had committed an unfair labor practice in violation of Section 8(b)(1)(B) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that decision. WE WILL NOT restrain or coerce Polk Construction Co., Inc., or any other employer, in the selection of representatives for the purpose of collective bargaining or the adjustment of grievances by refusing to issue a membership withdrawal card to Ralph Wittal because of internal charges brought against him for working during a strike. WE WILL NOT engage in like or related unlawful conduct. WE WILL issue a membership withdrawal card to Ralph Wittal. LOCAL UNION No. 1518, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 765