Painters Local 64 (Saxon Enterprises)

PAINTERS LOCAL 64 (SAXON ENTERPRISES) 13 1 Painters Local Union No. 64 and Painters District Council No. 5 and International Brotherhood of Painters and Allied Trades, AFL-CIO (Saxon Enterprises, Inc.) and Frederick T. Rasmussen. Case 19-CB-4937 30 November 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER ' On 8 June' 1984 Administrative Law Judge Rus- sell L. Stevens issued the attached decision. The Respondents filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision.. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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 as modified.2 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 3. "3. By conducting union trials against, and im- posing court-collectible fines on, former members of Respondent Painters Local Union No. 64 who had duly resigned, for their postresignation cross- ing of a sanctioned picket line and working during a strike at Saxon Enterprises, Inc., Respondent ' We herein correct several Inadvertent errors of the Judge The second amended complaint Issued on 1 February 1984 not on 17 January 1984 Further, the amended charge was received by Respondent Interna- tional on 19 January 1984 and the amended complaint was received by it on 25 January 1984 (The respective dates for the service by mall were 13 and 17 January 1984, as service is defined in Sec 102 113 of the Board's Rules and Regulations ) • In the absence of evidence revealing any involvement by Respondent Painters Local Union No 64 in the imposition of Illegal fines on former union members by Respondent Painters District Council No 5 we shall dismiss that portion of- the 8(b)(1)(A) complaint as to the Local We also find merit in Respondent International's exception to the Judge's finding that It participated in the imposition of fines We specifically note that the -second amended complaint as amended does not allege such a violation and the evidence does not indicate the International's involvement in the fines Accordingly we reverse the Judge's conclusion that Respondent International violated Sec 8(b)(1)(A) in this respect In adopting the Judge's finding of 8(b)(1)(A) violations with respect to maintenance of two provisions of sec 125 of Respondent International's constitution and his consequent expunction, remedy we rely solely'on the rationale in Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984) We therefore find it unnecessary to pass on the Judge's anal- ysis Further, in the absence of exceptions to the Judge's failure to find violations 'with respect to other portions of sec 125 we find It unneces- sary to pass on the issues as to whether the Respondent's maintenance of those provisions constitute an unfair labor practice Member Zimmerman agrees with the violations found by his col- leagues, but in reaching this result relies on the analysis used by the Judge, and, to the extent that it is applicable, his partial dissent in Neufeld Porsche-Audi 273 NLRB No. 3 Painters District Council No. 5 restrained and co- erced employees in the exercise of the rights guar- anteed them in Section , 7 of the Act, and thereby engaged. in unfair labor practices within the mean- ing of Section 8(b)(1)(A) " THE REMEDY Having - found that the Respondents have en- gaged in unfair labor practices in violation of Sec- tion 8(b)(1)(A) of the Act, we shall . order that they cease and desist and take certain affirmative actions designed to effectuate the policies of the Act. We shall order Respondent Painters District Council No. 5 -to rescind all fines illegally imposed against former members of Respondent Painters Local Union No. 64 and to refund any money they may have paid to District Council No. 5 in the manner prescribed in E W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). We shall further order that the Respondents ex- punge from the constitution of Respondent Interna- tional Brotherhood of Painters and their governing documents those portions of section 125 (Resigna- tion) conditioning a resignation on a vote of the local's membership and prohibiting a resignation during a strike or lockout. ORDER The National Labor Relations Board orders that A. Respondent Painters District Council No. 5, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining or coercing persons who have re- signed from, and are no longer members of, Re- spondent Painters Local Union No. 64 in the exer- cise of the rights guaranteed them by Section 7 of the 'Act, by trying those persons and imposing court-collectible fines on them because of their postresignation conduct in working at Saxon Enter- prises, Inc. during the strike which began on 22 July 1983. (b) Maintaining in its governing documents those portions of section 125 of the constitution of Re- spondent International Brotherhood of Painters and Allied Trades, AFL-CIO, reading "by vote of the membership" and "No resignation shall be accept- ed during a strike or lockout." (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Rescind the fines levied on Respondent Paint- ers Local Union No. 64's former members, Marla „ 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sanders, Maynard Linman, Mack Hombel, David Watson, Steven Linman, and Ron Bogle, and refund to those individuals any money they May have paid pursuant to any fine , found herein to have been illegal, with interest, in the manner set forth in the remedy section of this Decision and Order. (b) Expunge from its governing documents those portions of section 125 of the constitution of Re- spondent International Brotherhood of Painters and Allied Trades, AFL-CIO, reading "by vote of the membership” and -"No resignation shall be accept- ed during a strike or lockout." (c) Post at its business office and other places where notices to its members are customarily posted copies of the attached notice marked. "Ap- pendix A." 3 Copies of the notice, on forms provid- ed by the Regional Director for Region 19, after being signed by the Respondent's authorized repre- sentative, shall be posted by the 'Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the -Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. B. Respondents Painters Local Union No. 64 and International Brotherhood of Painters and Allied Trades, AFL-CIO, their officers, agents, and rep- resentatives, shall 1. Cease and desist from (a) Maintaining in its goyerning documents and constitution those portions of section 125 reading "by vote of the membership" and "No resignation shall be accepted during a strike or lockout." (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Expunge from its governing documents and constitution those portions of section ,125, reading "by vote of the membership" and "No resignation shall be accepted during a strike or lockout." (b) Post at their business offices and other places where notices to members are customarily posted copies of the attached notice marked "Appendix B." 4 Copies of the notice, on forms provided by 3 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" 4 See fn 3, above the Regional Director for Region 19, after being signed by the Respondent's authorized representa- tive; shall be 'posted by the Respondent immediate- ly upon receipt -and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not' altered, defaced, or covered by any other material. . (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX A 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 restrain or coerce persons who have resigned from, and no longer are mecibers of, our labor organizations in the exercise oi rights guaranteed them by Section 7 of the Act, by trying those persons and imposing court collectible fines on them because 'of their postresignation conduct in working at Saxon Enterprises, Inc. during the strike which began 22 July 1983. WE WILL NOT maintain in our governing docu- ments those portions of section 125 of the constitu- tion of the International Brotherhood of 'Painters and Allied Trades, AFL-CIO, reading "by vote of the membership," and "No resignation shall be ac- cepted during a strike or lockout." 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 on our former members, Marla 'Sanders, Maynard Linman, Mack Hombel, David Watson, Steven Linman,, and Ron Bogle, and refund to those individuals any money they may have paid pursuant to any fine found to have been illegal, with interest. WE WILL expunge from our governing docu- ments those portions of section 125 of the constitu- tion of the International Brotherhood of Painters and Allied Trades, AFL-CIO, reading 1)y . vote of the membership" and "No resignation shall be ac- cepted during a strike or lockout!' PAINTERS DISTRICT COUNCIL NO. '5_ PAINTERS LOCAL 64 (SAXON ENTERPRISES) 15 APPENDIX B 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 and constitution those portions of section 125 reading "by vote of the membership" and "No resignation shall be accepted during a strike or lockout." WE WILL NOT in any like or related mannef re- strain or coerce you in the , exercise of the rights guaranteed , you by Section 7 of ,the Act. WE WILL expunge from our governing docu- ments 'and constitution those portions of section 125 reading "by vote of the membership" and "No resignation 'shall be accepted during a strike or lockout." ; PAINTERS LOCAL UNION NO. 64 INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES, • AFL-CIO DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge The original complaint, issued November 16, 1983, .was,based on a 'charge' filed October 9; 1983, by Frederick T Ras- mussen., The complaint alleged that Painters Local Union 'No 64 (Local) and Painters District Council No. .5 (Council)' had violated, inter aim, -Section 8(b)(1)(A) of the National Labor Relations Act (Act) by illegally im- posing court collectible fines on certain employees of Saxon Enterprises, Inc (Saxon) a client - of Rasmussen. On'November 17, 1983; counsel for Respondents filed an answer to the complaint, admitting some allegations and denying others, and setting forth an affirmative defense that the proceeding was.a nullity because it was support- ed, directed, or financed, directly or indirectly, by the Employer (Saxon). On January 17, 1984, a first amended complaint was issued based . on an amended charge filed by Rasmussen -on January 12, 1984, making minor changes in the original complaint, including the addition of InternAtional Brotherhood of Painters and 'Allied Trades, AFL-CIO (International) as a party Respondent. On January 17, 1984, a second amended complaint was issued2 which basically was the same as the first amend- ' Local, Council, and International jointly are referred to as Respond- ents2 The second amended complaint further was amended. in 'minor detail, by stipulation of the parties ed complaint, but which contained some minor changes On February- 7, 1984, counsel for Respondents answered the second amended complaint Some allegations; were admitted, and some were denied The answer included five affirmative -defenses. The fourth affirmative defense stated, inter aim., that the alleged unfair labor practice "was directly solicited by counsel_ for general counsel The fifth affirmative defense stated, inter aim, that the Employer "is directly or indirectly financing, encourag- ing or participating in this case," in violation of Title I of the Labor Management Reporting and Disclosure Act (LMRDA). Trial of this controversy was scheduled for March 13, 1984, in Seattle, Washington. Prior to the trial date coun- sel for Respondents attempted to obtain by subpoena duces tecum certain information in 'support of Respond- ent's'fifth 'affirmafive 'defense. -Counsel Saxon filed a peti- tion to revoke the subpoena duce's tecuni, and counsel for the General Counsel filed a petition in support of the Charging Party's petition , to revoke subpoena. The sub- poena controversy was referred to the Administrative Law Judge for disposition. On March 9 a telephone pre- trial conference was held between counsel for the Gener- al Counsel, counsel for Respondents, and myself During the conference it was agreed that, if 'the subpoena were to be revoked, a trial- would not be 'necessary since the facts controlling the basic issues were not in dispute, and could be submitted by stipulation By order dated March 9, 1984, I revoked RespOndents' subpoena- duces tecum, Set aside' the trial, established a date for , stipulation of facts, and established a date (April 9, 1984) for submis- sion of briefs. Briefs, whia have been carefully consid- ered, -were submitted .1)); counsel for the General Coun- sel, Respondents, and the Charging Party On the entire record, and stipulations of fact submitted by counsel,. I make the following FINDINGS OF FACT I JURISDICTION :Saxon Enterprises, Inc is a State of Washington cor- poration with an office and place of business on Federal Way, Washington, where it is engaged in the business of industrial and commercial painting . and contracting During the past 12 months; which period is representa- tive of all times material herein, in the -course and con- duct Of its blisiness operations, Saxon had gross sales of goods and services valuea in excess of $300,000, and pro- vided services from its facilities within the State of Washington to customers ;within the State, including -but not limited to McChord Air Force Base, Daringold Farms, and Zidell Marine Corporation, which customers were 'themselves. engaged in .interstate commerce by other than indirect means, , ,of a total value in excess of $50,000. Respondents admit, and I find, that Saxon, at all times material, has been an 'employer engaged. in commerce within the meaning of Sectibn '2(2), (6), and (7) of the Act. 16 DECISIONS OF NATIONAL LABORRELATIONS BOARD , II THE LABOR ORGANIZATIONS INVOLVED . • Painters Local Union No 64 and Painters District Council No. 5 and International are, and at all times _ma- terial herein have been, labor organizations within the meaning of Section_2(5) of,the Act. • III. THE ALLEGED UNFAIR LABOR PRACTICES The following facts are admitted by Respondents in Their pleadings: About July 22, 1983, under direction of Respondent Local 64, members of Respondents engaged in an eco- nomic strike against Saxon. About July 14, 1983, and prior to the economic strike, the following members of Respondent Local 64 tendered resignations , from Re- spondent Local 64 membership: Marla Sanders, Maynard, Linman, Mack Hombel, David Watson, „Steven Linman; and Ron Bogle, and continued to work 'thereafter at Saxon's jobsites_ performing -painting functions during the strike referred to above. At all times material Respondents jointly and 'individ- ually have maintained the following rule, contained in the International constitution" of Respondent Internation- al Brotherhood, which reads in relevant part . - Sec. 125. (RESIGNATION). Any- member may sever his connections with the Brotherhood by written resignation, provided he has. paid all dues and arrearages, he does not. contintie , to work as a journeyman at any .branch of the trade, and his Local Union accepts his resignation by yote of the membership. No resignation shall be accepted during a stnke or lockout. A member . who resigns shall not _thereafter be entitled to any Brotherhood Benefits. • Respondent International BrOtherhood adopted the rule more than 6 months prior to . the filing ,of the charges herein. The rule at all times material herein has been, and presently is, a part of the constitution. About August 3, 1983, Robert Goodwin, the business agent of Respondent, District Council, brought charges against employees Marla Sanders, Maynard Linman, Mack Hombel, David Watson, .Steven Linman, and Ron Bogle because they continued to work during_ the -strike after their resignation from Respondent Local 64 About August 3, 1983, Respondent District Connell accepted and processed the charged brought by Robert Goodwill. About September 19, Respondent District Council posed court collectible fines on employee Marla Sand- ers, Maynard Linman, Mack HOmbel, David Watson, Steve Linman,' and Ron Bogle because they continued to work during the strike after their resignation from Re- spondent Lcical 64. The following facts are 'stipulated by .the panes • Respondent International Brotherhood adopted the provision identified in paragraph' 6(a) of the second amended complaint more than 6 months prior to the filing of the charges • Said provision has been a part of the constitution and is presently part of the constitution On January 13, 1984, a true copy of the amended charge filed was deposited in the United States mail,-ad- dressed to Respondent International Brotherhood,. by certified mail, and was received in the office of Respond- ent International Brotherhood on January 19, 1984. The amended, complaint and notice of hearing was issued by the Regional Director on January 17, 1984, and on January 17, 1984, a true copy of the amended com- plaint and notice of hearing was deposited in the United States mail, addressed to Respondent International Brotherhood, sent by certified mail, and was received in the office of Respondent International Brotherhood on January 25, 1984 Immediately prior to the filing of the amended charge, the Charging Party was. Informed by the General Coun- sel of the Board's holding in Engineers & Scientists Guild (Lockheed-California), 268 NLRB 311 (1983), and in- formed of its tight to file an amended charge covering the question, whether or not it is legal for a union to maintain a, constitutional provision presented herein, and recommended that an amended charge be filed, in light of Respondents Local No. 64 and District Council's in- ability to modify or amend the , constitutional provision adopted by Respondent International Brotherhood: - Frederick T. Rasmussen, at all times relevant, for pur- poses of the proceedings herein, and continuing to date, has been, and is, counsel for the Employer, Saxon Enter- prises, Inc This stipulation is made without prejudice to any ob- jection-that any party may have as to the materiality, rel- evancy, or competency of any, facts stated' Discussion A. Restrictions on Employees' Right to Resign The constitutional provision quoted above runs afoul of Board law in two ways. First, the proscription against resigning from union membership only during nonstrike periods id an unreasonable reStriction-of employee rights under Section 7 of the Act. Second, the requirement that employee- resignations are dependent on vote of the union membership imposes an Illegal restriction on resig- nation even during nonstrike periods It is noted' at the outset, pricn. 'to discussion of the two restrictions mentioned above, that the employees here in- volved resigned during a nonstrike period Their resigna- tions were tendered to the' Upton on July 14, 1983 The strike did not commence until July 22, 1983. An other- wige valid 'resignation is effective 'on its receipt by the Union. 3 The 'resignations 'of July 14, 1983, were valid, whether or not the union meinbership agreed to the res- ignations. (See' discussion infra ) It is further noted that, regardless_ of union constitutional restrictions, there is no evidence that those restrictions were communicated to members of the two Respondent Unions. Absent such communication, the restrictions could not be enforced.4 3 Carpenters San Diego Council (Campbell Industries). 243 NLRB 147, 148 (1979), TKB International Corp, 240 NLRB 11382, 1098 fn 3 (1979), and cases cited therein The fact that the Union received the resignations on July 14, 1983. Is not in dispute 4 Menasco, Inc , 267 NLRB 1147 (1983). Electrical Workers LOcal 1012 (General Electric), 187 NLRB 375 (1970) PAINTERS LOCAL 64 (SAXON ENTERPRISES) 17 1. The resignation clause disallows resignations during a strike or lockout. Such language leaves the inference that the Union will permit its members to resign only during nonstnke periods. The Board has held that a member's right to resign from a union applies both to strike and nonstrike situations Therefore, "a union rule which limits the right of a union member to resign only to nonstnke periods constitutes an unreasonable restric- tion on a member's Section 7 right to resign." 5 The Board's rationale in DaImo Victor was that there is an overriding interest of the employee's right to refrain from concerted activities. Such a right "encompasses the right of a member to resign from a union having once joined. [T]his right to resign is not forever and irrevoca- bly lost merely because an employee chooses to become a union member." In addition, in a recent case, 7 the Board held that "the mere maintenance of such a constitutional provision re- strains and coerces employees, who may be unaware of the provision's unenforceability, from exercising their Section 7 rights [E]mployees who wanted to resign from the Union and return to work during the strike may have been discouraged from doing so by [the] . . . section in the Union's constitution." Id. Applying the rationale and the holding of the Board in Dalmo Victor and Engineers & Scientists Guild to the case at hand, I find that Respondents' constitutional provision which states "no resignation shall be accepted during a strike or lockout" is an unreasonable restriction on a member's Section 7 right to resign, as it permits members to resign only during nonstnke periods. 2. In addition to the restriction of resignations men- tioned above, the Union's constitution imposes an addi- tional restriction which requires that no resignation will be effective until "his Local Union accepts his resigna- tion by vote of the membership" Such a restriction has been held invalid by prior Board law.° In Carpenters San Diego Council, the Board looked at the Union's constitu- tion which stated that "[a] member can withdraw or sever his connection with the United Brotherhood by re- signing in writing, and it shall require a majority of the members present at a regular meeting to accept a resig- nation." The Board in its decision held "that the resig- nation procedure which requires membership approval without setting standards for such approval is unduly re- strictive and, therefore, presents no bar to resignation at any time."1° The case at hand requires such membership approval before a member's resignation will become effective However, the Union's constitution sets forth no stand- ards to be used in making such approval As a result, I find that the requirement of membership approval is 5 Machinists Local 1327 (Dalmo Victor), 263 NLRB 984 (1982), enf denied 725 F 2d 1212 (9th Cir 1984) Although the Ninth Circuit denied enforcement of the Board's Order, the Board to date has not changed its position, and its decision remains as controlling precedent in this case 6 Id at 986 Engineers & Scientists Guild, supra 8 Carpenters San Diego Council, 243 NLRB 147, 148 (1979) 9 Id at 152 " Id at 148, citing Machinists Local 405 (Boeing Co) v NLRB, 412 U S 84 (1973), NLRB v Textile Workers Local 1029, Granite State Joint Board, 409 US 213 (1972) unduly restrictive. As such, the resignations tendered about July 14 were valid at that time." B. Respondents' Affirmative Defense 1. Respondents argue that Section 411(a)(4) of the Labor Management Reporting and Disclosure Act (LMRDA), which prohibits nonparty interested employ- ers, such as Saxon, from indirèctly encouraging employ- ee litigation, bars this action Respondents base their argument on NLRB v. Ship- builders, 391 U.S. 418 (1968), and some other cases of similar vein, but none of those cases is applicable to the argument NLRB v. Shipbuilders was a case of narrow application involving a section of LMRDA" concerning exhaustion of administrative remedies before filing an action in court. The holding of the Supreme Court was We conclude that unions were authorized to have hearing procedures for processing grievances of members, provided those procedures did not con- sume more than four months of time, but that a court or agency might consider whether a particu- lar procedure was "reasonable" and entertain the complaint even though those procedures had not been "exhausted." We also conclude, for reasons stated earlier in this opinion, that where the com- plaint or grievance does not concern an internal union matter, but touches a part of the public domain covered by the Act, failure to resort to any intra-union grievance procedure is not grounds for expulsion from a union. We hold that the Board properly entertained the complaint of the Holder and that its order should be enforced The question here is quite different. Respondents were charged with illegally fining former union members, in violation of their rights under Section 7 of the Act. A complaint was issued and, as found herein, the charge was substantiated—Respondents did fine former union members over whom they no longer exercised any con- trol The proceeding here involved was limited to an al- leged unfair labor practice The duty of the administra- tive law judge is "to inquire fully into the facts as to whether the Respondent has engaged in or is engaging in unfair labor practices affecting commerce as set forth in the complaint or amended complaint "13 Assuming, ar- guendo, that Saxon indirectly encouraged this litigation, such a fact would not be a defense to the commission of unfair labor practices Possibly such a fact would be cause for proceeding in some other forum, under some other statute, against persons or firms not party to this " Since such resignations were valid prior to the strike that took place about July 22, the fines levied on the employees are unenforceable In addition, by fining such members, Respondent Union committed an unfair labor practice under Sec 8(b)(I)(A) See NLRB v Textile Workers Local 1029, supra at 217, wherein It was held that "[w]here 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 i2 73 Stat 522,29 USC Sec 411(a)(4) 13 NLRB Rules and Regulations, Sec 102 35 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD controversy, but that fact would be collateral, and Irrele- vant, to the complaint involved in this controversy. This argument is without merit 14 Respondents state in brief that "Since the above facts give rise to an inference that Saxon has employed its at- torney as a surrogate participant, Respondents respectful- ly request that upon reconsideration this action should be dismissed." Such an inference is not warranted. A charge may be made under the Act "by any person."15 2. Respondents argue that the International has en- gaged in no actions within the 6-month period estab- lished by Section 10(b) which are in any way connected with the unfair labor practice charges at issue in this case. The authorities cited by Respondents deal with differ- ent factual situations, and shed no, light on the issue at hand. Respondents cite Machinists Local 1424 v. NLRB, 362 U.S. 411, 515 (1980), for the proposition that a com- plaint predicated on the execution of an agreement is barred by Section 10(b) if the execution occurred more than 6 months before the charge was filed. That holding, however, is applied only when the contract in question is lawful on its face.'6 The issue here deals with a different factual situation. The provision of the International's constitution (sec 125) is unlawful on its face, since it allows resignations only during nonstrike periods, and only after the union membership has voted to accept the resignations. (See discussion, supra.) Therefore, since the provision in ques- tion- is unlawful on its face, the continued maintenance of an adherence to the clause constitutes an alleged unfair labor practice which continued up to and even after the filing of the charge and the complaint. Accordingly, the limitations set by Section 10(b) of the Act are not appli- cable.'7 This argument is without merit. 3. Respondents argue that, since the International en- acted its resignation rule, it has had no involvement of any kind with the fines in issue, _hence, the International has not violated the Act. As discussed above, the resignation rule is invalid; Sec- tion 10(b) of the Act does not preclude a finding of inva- lidity; continued maintenance of the rule is a violation of the Act. Thus, this argument is without validity.'8 Respondents argue that the Board solicited the Charg- ing Tarty to file an amended charge to name the Interna- tional as a party; that the amended charge therefore is in- valid; and that such facts present a litigable issue that in- validates the administrative law judge's order revoking Respondents' subpoena. As noted supra the fact that Rasmussen filed the origi- nal and amended charges is immaterial, in and of itself. Respondents argue that the reason for the alleged solici- tation was that the Board legally cannot, of its own voli- Menasco, Inc , supra 18 NLRB Rules and Regulations. Sec 102 9 18 Local 1424, supra at 416, 417 17 Prestige Bedding Co, 212 NLRB 690, 698 (1974). wherein the Board affirmed the administrative law judge's interpretation of Local No. 1424, supra 18 Engineers & Scientists Guild (Lockheed-California Co ), supra, Com- puter Sciences Corp, 258 NLRB 641 (1981) tion, initiate a charge. The , alleged initiation was launched, according to Respondents, because of "a new legal theory derived from a recent Board case." (Stipu- lated fact 4.) Respondents acknowledge that "this second requested charge was not based on new facts discovered during an investigation." Therefore, according to Re- spondents, the second charge was invalid, and "the Board lacks jurisdiction to proceed against the Interna- tional." Respondents cite as their authority Tabernacle Sand & Gravel Corp., 232 NLRB 957 (1977), and cases cited therein. Respondents' reliance on Tabernacle Sand & Gravel is misplaced. There, as here, Respondents argued that evi- dence of solicitation of a charge was, improperly ex- cluded There, the administrative law judge, with Board concurrence, concluded that since all the facts surround- ing the reason for the amended charge were known to the respondents, the .excluded testimony was irrelevant.' Stipulated facts and pleading admissions here also show that the International was aware of all the facts relied on by the General Counsel The administrative law judge concluded, in Tabernacle Sand & Gravel, supra at 961: - In sum, I find that the context surrounding the filing of the first amended charge herein reveals nothing which would show, even if Waldron would have been permitted to testify further on the sub- ject, that the amendment was improperly solicited. Moreover, I find that, in the circumstances herein, the excluded testimony is irrelevant. Accordingly; I conclude there is no merit to Respondent's third af- firmative defense. Respondents complain that counsel for the General Counsel conferred with Rasmussen concerning the Inter- national, but that matter also is irrelevant. As the admin- istrative law judge stated in Tabernacle Sand & Gravel: An effective remedial order can be issued only against employers and labor organizations who are named as Respondents in a case, and only those per- sons against whom charges are filed may be made respondents to a complaint. (Hod Carriers, Local 783, supra at 972) Even if Waldron had been, ad- vised that Pasquale Nalbone earlier gave evidence contradicting Waldron's, what, was said by the Board agent to Waldron is irrelevant, for it is quite proper for such differences to be resolved at a hear- ing Even the dissent in Hod Carriers, Local 783, supra at 982, acknowledges that "Regional person- nel should acquaint a Charging Party with his rights, assist him in the formulation of his charges and, where investigation reveals that additional charges can be made or that additional parties should be added as Respondents, advise him of his right to do so." Insofar as Respondent herein asserts that the investigating agent exceeded the bounds of giving advice to Waldron of his right to , file an amended 'charge, in the face of Waldron's personal knowledge of facts as depicted in paragraph 4 of his affidavit, it is illogical, and straining, to conceive that anything else of which he may have been in- PAINTERS LOCAL 64- (SAXON ENTERPRISES) 19 formed placed the Board in a position tantamount to becoming the initiator of the amendments.' 9 This argument is without merit. 4. Finally, Respondents argue that International did not have a reasonable time within which to respond to the charge against it. That argument does not have the support of the record. The amended charge was served on the International January 19, 1984. The amended complaint was served on International January 25, 1984. The charge against the International was that it was maintaining an invalid rule in its constitution. That rule was at the core of this controversy. No complicated or extensive set of facts was at issue. The International was well aware of all facts at issue, had notice well in ad- vance of proposal litigation, and had ample opportunity to defend itself. Notice is taken of the Board's common practice of permitting amendments of complaints, even so late as trial date, and even when new facts are in- volved, if, as here, no surprise or undue disadvantage is involved. CONCLUSIONS OF . LAW 1. Saxon Enterprises, Inc. is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Painters Local Union No. 64, Painters District Council No. 5 and International Brotherhood of Painters and Allied Trades, AFL-CIO are, and each of them is, and at all times material have been, labor organizations within the meaning of Section 2(5) of the Act. 3. By conducting union trials against, and imposing court-collectible fines on, former members of the Unions, who had duly resigned from the Unions, for their postre- " Id at 961 signation crossing of a sanctioned picket line and work- ing during a strike at Saxon Enterprises, Inc., Respond- ents restrained and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby engaged in, and are engaging . in, .unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By maintaining in their constitution in Section 125 thereof a resignation proviso "by vote of the member- ship" and a proviso reaching "No resignation shall be ac- cepted during a strike or lockout," Respondents have violated Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) of the Act. THE REMEDY Having found that Respondents have engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I shall recommend that they be ordered to cease and desist therefrom; and to take certain affirmative action designed to effectuate the policies of the act: It is recommended that fines illegally imposed against former union members be ordered rescinded, and that any money they may have paid to Respondents be re- funded to those members, with interest thereon to be computed in the manner prescribed in E W. Woolworth Co, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing Co, 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). It is further recommended that Respondents be or- dered to expunge from their constitution the two provi- sos in Section 125 quoted above.20 [Recommended Order omitted from publication.] 20 Engineers Scientists Guild, supra