Pattern Makers (Badger Pattern)

PATTERN MAKERS (BADGER PATTERN) . -113 Pattern Makers' League of North America, Pattern Makers' Association of Milwaukee and Vicinity and Badger Pattern Works, Inc. Cases 30-CB- 2122 and 30-CB-2155 7 December 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS Upon charges filed by Badger Pattern Works, Inc., the Employer, 8 September and 18 November 1983, the General Counsel of the National Labor Relations Board issued complaints 19 October and 19 December 1983 against the Respondent alleging that it has violated Section 8(b)(1)(A) of the Na- tional Labor Relations Act. The General Counsel issued an order consolidating the cases 19 Decem- ber 1983. The General Counsel issued amendments to complaints 5 January 1984. The complaints allege that the Respondent im- posed court-collectible fines against named individ- uals for engaging in certain conduct after submit- ting written resignations of membership in the Re- spondent. The Respondent filed answers denying that it committed an unfair labor practice. On 13 February 1984 the parties jointly moved the Board to transfer the instant proceeding to the Board, without benefit of a hearing before an ad- ministrative law judge, and submitted a proposed record consisting of the formal papers and the par- ties' stipulation of facts with attached exhibits. On 25 April 1984 the Associate Executive Secretary, by direction of the Board, issued an order granting the motion, approving the stipulation, and transfer- ring the proceeding to the Board. Thereafter, the Acting General Counsel and the Respondent filed briefs. Upon the entire record in the case, the Board makes the following findings. I. JURISDICTION The Employer is engaged in the manufacture, sale, and distribution of patterns from its facility in New Berlin, Wisconsin. During the fiscal year ending 30 September 1983 the Employer sold and shipped from the New Berlin facility products, goods, and materials valued in excess of $50,000 di- rectly to points outside the State of Wisconsin. The parties stipulated and we find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties further stipulated and we find that the Re- spondent is a labor organization within the mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR -LABOR PRACTICE The issue presented is whether the Respondent violated Section 8(b)(1)(A) by imposing a fine against 12 named individuals . because they worked for the Employer during a strike. Each employee tendered his resignation to the Respondent before or shortly after returning to work. A. Facts Since about 28. June :1983 the Respondent has en- gaged in a strike against the Employer: The Re- spondent's constitution at -all material times includ= ed the following provision: (Resignation) and/or (Trade Dispute) 13. No resignation or withdrawal from an As- sociation, or from the League, shall be accept- ed during a strike or lockout, or at a time when a strike or lockout appears imminent.' The following eight employees mailed or hand- delivered letters of resignation which the 'Respond- ent received before the', employees returned to work: Richard Graham Jr., Herbert Heinze, James Anadelle, Bobby Lee Taylor, Robert Slak, Eugene Walker, Herbert Van Auwaeler, and Dale Kreil. The Respondent received the resignation letters of Paul Jaquette and Robert Karpay'at approximately 9:30 a.m. of the respective days on which each re- turned to work at 6 a.m., and :Jim Griffin's at ap- proximately 9:30 a.m. on the day he returned to work at 6:30 a.m. The Respondent received Wil- liam Prah's resignation the day after he returned to work. Each employee continued to work from the date of his return during the strike until at least the date the parties executed the stipulated record. After ,the employees returned to work and the 'Re- spondent received each one's letter of resignation, the Respondent sent each of the above-named em- ployees a form letter ordering the employee to appear before the Respondent's executive commit- tee to respond to charges that the employee violat- ed various named articles of the Respondent's League Law. On 11 October 1983 the Respondent fined each of the 12 employees "the full amount of compensation paid to [him] and on [his] behalf during the strike." The Respondent filed charges against, and fined, the employees solely because they worked for the , Employer during the strike: The Respondent has not specified the dates of work for which each employee is fined, nor the dollar amount of the fine. The Respondent has not 1 The tipulated facts include a recitation of the constitutional provi- sion at issue as well as a reproduction of the constitution There is a one- word 'difference ("appears", instead of "is"), not significant to deci- sion 273 NLRB No. 17 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken any action to either collect the fines or to ex- punge or withdraw them. B. Contentions of the Parties The Acting General Counsel alleges that the Re- spondent's rule prohibiting resignation during a strike or when a strike is imminent is unlawful and does not privilege the fines it levied against em- ployees who resigned during a strike at the Em- ployer. The Respondent contends the complaint should be dismissed because its constitutional re- striction on resignations rendered the employees' resignations ineffective and, in any event, it has not made any effort to collect the fines levied. Finally, it argues that no violation occurred as to its fining of employees who returned to work prior to the Respondent's receipt of their resignation letters. C. Discussion and Conclusions We recently reevaluated the authority of a union to limit its members' right to resign and ruled that a union may not restrict the right of its members to resign from membership. Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984).2 Accordingly, we find the Respondent's mainte- nance of its constitutional prohibition on union res- ignation unlawful. Further, the Respondent's charging and levying of fines against employees for their conduct occurring on days after the Respond- ent received their resignations also violates Section 8(b)(1)(A) of the ACt.3 CONCLUSIONS OF LAW 1. Badger Pattern Works, Inc., New Berlin, Wis- consin, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing its constitutional prohibition on its members' right to resign from the Union, and by charging and fining employees who 2 Neufeld Porsche-Audi, supra, Member Zimmerman dissented from the majority's overruling of Machinists Local 132 7 (Dalmo Victor II), 263 NLRB 984 (1982), enf denied 725 F 2d 1212 (9th Cm 1984), although he agreed with the majority's determination that the rule against resignations of the union in that case was unreasonable and that fines levied against employees who tendered resignations during the strike violated Sec 8(b)(1)(A) of the Act By the same reasoning, he concludes that the con- stitutional provision here is invalid and unenforceable 3 The Respondent received the resignations of Paul Jaquette, Robert Karpay, and Jim Griffin several hours after they returned to work It re- ceived William Prah's resignation on the day after he returned to work The Board orders reimbursement on a pro rata basis for fines levied in part for preresignation conduct and in part for postresignation conduct In the event the Respondent should take action to collect the fines, they are enforceable against the four employees named above only in propor- tion to the percentage of the employee's conduct which took place before the employee's resignation was received See Engineers & Scientists Guild (Lockheed-California Co ), 268 NLRB 311 (1983) worked during a strike after they resigned from the Respondent, the Respondent violated Section 8(b)(1)(A) of the Act. 4. The foregoing unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent engaged in an unfair labor practice in violation of Section 8(b)(1)(A) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act, including refunding to Richard Graham Jr., Herbert Heinze, James Anadelle, Bobby Lee Taylor, Robert Slak, Eugene Walker, Herbert Van Auwaeler, Dale Kreil, Paul Jaquette, Robert Karpay, Jim Griffin, and William Prah any moneys they may have paid as a result of the fines imposed on them because of their postresignation work for Badger Pattern Works, Inc. during the strike that began about 28 June 1983, with interest computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). 4 In addition, we shall order the Respondent to cease and desist from maintaining the restriction on resignations found invalid and to expunge the provision from its governing docu- ments. Engineers & Scientists Guild (Lockheed-Cali- fornia Co.), 268 NLRB 311 (1983). 5 In so doing we are not ordering that the parent International, which is not a party to this proceeding, expunge the offending provision from its constitution. Rather, we are only ordering the Respondent to expunge the provision from its governing docu- ments including such documents of the Internation- al that the Respondent may have incorporated by reference and adopted as its own. ORDER The National Labor Relations Board orders that the Respondent, Pattern Makers' League of North America, Pattern Makers' Association of Milwau- kee and Vicinity, West Allis, Wisconsin, its offi- cers, agents, and representatives, shall 1. Cease and desist from 4 See generally Isis Plumbing Cu, 138 NLRB 716 (1962) 5 Member Dennis joins her colleagues in ordering the Respondent to cease and desist from maintaining the restriction on resignations because the complaint alleges unlawful maintenance of the constitutional provi- sion and the record supports that allegation Compare Machinists Local 1914 (Neufeld Porsche-Audi), 270 NLRB 1330 fn 22 (1984), in which the complaint contained no such allegation As in Neufeld Porsche-Audi, how- ever, Member Dennis considers It impracticable to order the Respondent to "expunge" a provision appearing in the constitution of the parent International, which is not a party to this proceeding Instead, Member Dennis would order the Respondent to notify its members in writing that it will not enforce the restriction on resignations PATTERNMAkERS OiADOER `PATTERN; 115 (i) —Maintaining in its governing- docuin'ents League- Law 132.of 'the' constitution -of the Pattern "Makes' League' of North America to the 'extent it 'provides: '; - - 6 If this Order is enforced by a Judgment of a United States Court of Appeals,:.the Words in the notiee reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United StatesiCofirt of Appeals Enforcing an Order of the ,Nation- al Labor Relations Board " -" 4_ • Pattern Works; Inc., if willing, at all place;--Where notice to employees are customarily posted. (e) Notify the Regional . Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. -APPENDIX NOTICE TO MEMBERS • ',POSTED BY ORDER,OF THE • NATIONAL- LABOR RELATIONS BOARD. An Agency of the United States Government, ;-. _The. National ,Labor Relations Board has fotind 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 Leagiie Law- 13 of the constitution of -the Pattern Makers' League of North America to the - extent it provides: ; • 't' `" • , 11 . (Resignation) and/or'(Trade Dispute) -.2 ,.11.3.--No resignation or . withdrawal from an As- . sociation, or, from the League, shall. be accept-, •ed.,during a stnke or lockout, or • at a -time .1. -• ' when a strike or lockout appears imminent. (h) Restraining or coercing emplbjlees' whd have resigned` from, and 'are _no longer 'Members . of, the Res'pondent in the 'exercise' of the fights guaranteed .by-:SectiOn 7' of the Act by imposing cOurt- -Colledlible'fines on such 'eniployees' because of their yostresignation conduct in wOrking at' Badger' Pat- .. .'tern Works; Inc:-during the strike that began about ';-18'1une - 1983.- • • , (c) In any like Or related' manner restraining or 'coeraing 'employees in:the' exercfse Of the rights guaranteed -them by Section 7,`Of the Act. , . 2. Take 'the f011owing affiftriative actibn neces- • 'sary to effeCtuate the poliCies'Of the Act. - (a)` Expunge from. it§ governing '‘docnments 'League taw 13 -of the constitution 'of the Pattern Makers' League of North America set- forth dhoVe. (h) Rescind the fines levied against Richard 'braharh Herbert Heinze- , James Anadelle, 'Bobb5;'Leeraylor, Robert Slak; 'Eugene Walker, :Mei-ben:Van AuiVaeler; Dale' Paul Jaqiiette, RObert Karpay,-Jiin Griffin, and Williatn Prah ' cause of then' postfesignation Work . for -Badgef. Pat- ', tern Works,„Inc. during. the strike 'that began alp-out June '1983 and iefund-to therri any moneys they inay have'paid as a result' of' such 'fines, With inter- . (c) Post at its business office and-Meeting:halls 'Ccipie of ihe -attached notice marked "Appendix."6 ',Copies- Of the' "iidtice; on-forms proVided by 'the Re- ' :giOnal' birectOr' for. Region 30, affef being s'igried ...15y. the' Responderit's atith-Oriied repfesentative, pb§ted . hy the Respondent ''ininiediately Upon reCeipt 'and maintained for . ' 60 COnsecutive days _in.4cdnspiCtioug• places' inchiding all places 'Where . notices thi inembefs afe cukOmarily.pOsted. -Re-aon able stelig• shall be taken b3i'the Respondent to. ensure the notices are not altered; defaced, by:aiiy-Othei material: ' ' (d). Sign' and:retiirn tO the Regional Director silt.- - :'ficient- Copies' Of.'the 'notice.- for . posting by Badger (Resignation) and/ot (Trade Dispute). '13. No resignation or 'withdrawal from an _As- sociation, or from the League, shall be accept- ed, during a strike or lockout, or at a - time • when a , strike or lockout appears imminent, 7. • ' WE WILL-NOT restrain or Coerce employees' who have resigned from, and are no longer members'.of, the' Union in the exercise of the rights 'guaranteed them- by Section 7 of the Act by --imposing -court- collectible fines on such employees 'because of, their postresignation conduct in working . at Badger Pat- .tern -Works, Inc.-during the ,strike that-began. about 28 line 1983. L. 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. --.1 :_WE WILL expunge from our.: governing docu- . ments:the portion' of League Law 13 of the, consti- tution of the Pattern Makers'- Leagrie • of -North America set forth above. WE WILL rescind the fines levied against Richard Graham Jr., Herbert Heinze,_ James Anadelle, •--Bobby Lee Taylor; Robert Slak,. Eugene- Walker, Herbert Van Auwaeler, Dale --Kreil, Paul, Jaquette, Robert Karpay, Jim Griffin, and William, Prah be- cause of their postresignation work for Badger Pat- tern Works, Inc. during the' strike that 'began about 28 June 1983, and WE WILL refund- to , them ,any moneys they may have --paid :as a -. result of such -.fines, with interest.. . -.• PATTERN MAKERS'. LEAGUE OF - NORTH AMERICA, PATTERN MAKERS' - ASSOCIATION OF MILWAUKEE AND _ .VICINITY • •