Glass, Pottery, Plastic And Allied Workers; Local Union No. 185

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glass, Pottery, Plastic and Allied Workers, Local Union No. 185, affiliated with Glass, Pottery, Plastic and Allied Workers, AFL-CIO-CLC (Liberty Glass Company) and Steven L. Andrew, Attorney Glass, Pottery, Plastic and Allied Workers, Local Union No. 128, affiliated with Glass, Pottery, Plastic and Allied Workers, AFL-CIO-CLC (Liberty Glass Company) and Stephen L. Andrew, Attorney. Cases 16-CB-2164-1, 16- CB-2172, 16-CB-2181, 16-CB-2164-2, and 16-CB-2177 12 December 1984- DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 6 October 1983 Administrative Law Judge William A. Gershuny issued the attaehed decision. The Respondents and the General Counsel filed ex- ceptions and supporting briefs. 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, for the reason stated below, has decided to affirm the judge's rulings, findings, and conclusions of law, but not to adopt his recommended Order. Recently, in Machinists Lodge 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), the Board overruled the plurality decision in Machinists Local 1327 (Dalmo Victor), 263 NLRB 984 (1982),' which had found that a 30-day restriction on a union member's right to resign was reasonable, and held, instead, in accord with the views expressed by Member Hunter and former Chairman Van de Water in their concurring opinion in Dalmo Victor, that a union may not lawfully restrict the right of its members to resign or otherwise refrain from protected Section 7 activities for any period of time. Applying the Neufeld Porsche-Audi standard to the instant case, we conclude that article 26, sec- tion 10, of the Respondents' constitution is unlaw- ful as it imposes a restriction on a member's right to resign by prohibiting resignations during a strike. For this reason, we find, as did the judge, that the fines imposed on those members who ten- dered their resignations from the Respondents and returned to work during the strike violated Section 8(b)(1)(A) of the Act.2 The plurality decision expressed the views of Member Zimmerman and former Member Panning 2 Member Zimmerman agrees with the result reached by his colleagues here, but does so for the reasons stated in the Dalmo Victor plurality deci- We also agree with the General Counsel that the Respondents further violated Section 8(b)(1)(A) by threatening those employees who resigned with fines, suspensions, expulsions, and the filing of in- traunion charges and by threatening to fine and blackball employee Dennis Houser after he ten- dered his resignation from the Union and to have 'his operator's card stricken if he returned to work during the strike. While the threats to Houser were clearly unlawful as they occurred after he had re- signed from the Union, we note that the threats to blackball Houser and- to have his operator's card stricken would have been unlawful even if he had been a member when the threats were made be- cause the threats, if implemented, would adversely affect Houser's employment relationship. REMEDY Having found that the Respondent engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, we shall order them to cease and desist therefrom and to take certain affirmative .action necessary to effectuate the policies of the Act, including refunding to those persons named in paragraph 2(b) of our Order any .money they may have paid as a result of the fines imposed against them, with interest computed in the manner pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). In addition, we shall order the Respondent to cease and desist from maintaining the restriction on resignations found invalid and to expunge the pro- vision from its governing documents. Engineers & Scientists Guild (Lockheed-Ca(fornia), 268 NLRB 311 (1983). In so doing, we note that 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 Respondents to expunge the provision from their governing documents, including such documents of the International that the Respond- ents may have incorporated by reference and adopted as their own.3 sion to which he continues to adhere See his dissenting opinion in Neu- feld Porsche-Audi - 3 While the complaint in this case specifically alleges the maintenance of the provision as being unlawful, the absence of such an allegation would have no bearing on the exercise by this Board of its discretion to fashion appropriate remedies for the violations found Member Dennis joins her colleagues in ordering the Respondents 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 Lodge 1414 (Neufeld Porsche-Audi), above at fn 22, in which the complaint con- tained no such allegation As in Neufeld Porsche-Audi, however, Member Dennis considers it impracticable to order the Respondent Local Unions to "expunge" a provision appearing in the constitution of the parent Continued 273 NLRB No. 30 GLASS & POTTERY WORKERS LOCAL 185 (LIBERTY GLASS) 199 ORDER' The National Labor Relations Board orders that the Respondents, Glass, Pottery, Plastic and Allied Workers, Local Union No. 185, affiliated with Glass, Pottery, Plastic and Allied Worker, AFL- CIO-CLC and Glass, Pottery, Plastic and Allied Workers, Local , Union No. ,128, affiliated with Glass, Pottery, Plastic and Allied Workers, AFL- CIO-CLC, their - officers, agents, and representa- tives, shall rl. Cease and desist from . (a) Maintaining in their governing documents ar- ticle 26, section 10, of the constitution of the Inter- national Union, which reads as follows: No member may resign from his local union of the International Union during a strike. All at- tempted resignations shall become effective thirty (30) days from the last day of the strike. (b) Restraining or coercing employees who have resigned from, and are no longer members of the Respondents in the exercise of the rights guaran- teed them by Section 7 of the Act by imposing court-collectible fines on the employees because of their postresignation conduct in working at Liberty Glass Company during the strike that began about 1 April 1983. (c) Threatening employees who have resigned from the Respondents with' fines, suspensions, ex- pulsions, or the filing of intraunion charges and threatening them with being blackballed or having their operators' card stricken if they return to work during a strike. (d) 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 neces- sary to effectuate the policies of the Act. (a) Expunge from their governing documents ar- ticle 26, section 10, of the International Union's constitution as described above. (b) Rescind the fines levied against the following persons because of their postresignation -work for Liberty Glass Company during the strike that began about 1 April 1983 and refund to them any money they may have paid as a result of the fines, with interest: Loc.- al Union 128 Local Union 185 • . Earl Hankes Wandra J. Martin • Bobby Hurt Jr. Ramona Faye Hurt Dennis Houser Jackie Peek James Norman Cook Ina Rice International, which is not a party to this proceeding Instead, Member Dennis would order the Respondents to notify 'their members in writing that they will not enforce the restriction on resignations Roy Matney Mary Edwards •. Edwin McKean Leon Ashlock Vernie Dodson - Jerry Shipman (c) Post at their business offices and meeting halls copies of the attached notice marked "Appen- dix." 4 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondents' authorized representa- tives, shall be posted by the Respondents immedi- ately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director forthwith signed copies of the notice for posting by Liberty Glass Company, if the Company is willing. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply. 4 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" APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT maintain in our governing docu- ments article 26, section 10, of the constitution of the International Union, which reads as follows: No member may resign from his local union of the International Union ,during a strike. All at- tempted resignations shall become effective thirty (30) days from the last day of the strike. WE WILL NOT restrain or coerce employees who have resigned from, and are no longer members of, our organizations in the exercise of the rights guar- anteed them by Section 7 of the Act by imposing court—collectible fines on them because of their postresignation conduct in working at Liberty Glass Company during the strike that began about 1 April 1983. WE WILL NOT threaten employees who have re- signed from our organizations with fines, suspen- Local Union 128 Earl Hankes Bobby Hurt Jr. Dennis Houser James Norman Cook Roy, Matney Edwin McKean Vernie Dodson Local Union 185 • Wandra J. Martin Ramona Faye Hurt Jackie Peek Ina Rice Mary Edwards Leon Ashlock Jerry Shipman 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions, expulsion, or the filing of intraunion charges nor will we threaten to blackball employees or have their operators cards stricken for returning to work during a strike. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL expunge from our governing docu- ments article 26, section 10, of the International Union's constitution as described above. WE WILL rescind the fines levied against the fol- lowing persons because of their postresignation work for Liberty Glass Company during the strike that began about 1 April 1983 and refund to them any money they may have paid as a result of. the fines, plus interest: GLASS, POTTERY, PLASTIC AND ALLIED WORKERS, LOCAL UNION No. 185, AFFILIATED WITH GLASS, POTTERY, PLASTIC AND ALLIED WORKERS, AFL-CIO-CLC GLASS, POTTERY, PLASTIC AND ALLIED WORKERS, LOCAL , UNION No. 128, AFFILIATED WITH GLASS, POTTERY, PLASTIC AND ALLIED WORKERS, AFL-CIO-CLC DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative Law Judge. A hearing was conducted in Tulsa, Oklahoma, on August 2, 1983, on consolidated complaints alleging vio- lations of Section 8(b)(1)(A) based on Respondents' en- forcement of a' provision of the International ' Union's constitution which prohibits resignation from member- ship in local unions during a strike. On the entire record, including my observation of wit- ness demeanor, I hereby make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION AND LABOR ORGANIZATION The complaints allege, the answers, as amended, admit, and I find that Liberty Glass Co. is an employer subject to the Act and that Respondents are labor orga- nization within the meaning of Section 2(5) of the Act. II. UNFAIR LABOR PRACTICES ,;The relevant facts are undisputed. For some time prior to 1983, Local Unions 128 and 185 have been the bargaining representatives of employ- ees at , Liberty Glass' Sapulpa, Oklahoma plant. Labor agreements covering these employees have' made union membership a condition of employment. At the time of hiring, Lib-61y Glass routinely obtained employee signa- tures on union membership applications and dues-check- off authorizations which, by their terms, obligated em- ployees to abide by all union rules and laws. At all relevant times, the constitution of the Interna- tional Union provided, in article 26, section 6, that mem- bers crossing a picket line during an authorized strike might be fined, suspended, or expelled from Membership and, in article 26, section 10, that No member may resign from his local union of the International Union during a strike. All attempted resignations shall become. 'effective thirty (30) days from the last day of the strike. All members were informed of the existence of such pro- Visions upon their adoption in 1981; copies of the consti- tution were posted and made available to all members; and members were reminded of the provisions at union meetings conducted on March 30, 1983. At the March 30 meetings, the membership of each local union unanimously voted to reject the Company's final contract proposal and to engage in a strike. That strike commenced on April 1 and was still continuing at the time of the hearing in this case, August 2. , During that strike, 14 members in good standing sub- mitted their resignations in writing to their focal union: Local Union 128 Local Union 185 - *Earl Hankes Wandra J. Martin **Bobby Hurt, Jr. *Ramona Faye Hurt *Dennis Houser *Jackie Peek *James Norman Cook Ina Rice *Roy Matney *Mary Edwards *Edwin McKean *Leon Ashlock */**Vernie Dodson *Jerry Shipman * Participated in picketing ** On layoff on March 30 Thereafter, eaCh crossed the picket line and returned to work; was informed by the local union that, under article 26, section 10 of the constitution the resignation would not become effective until 30 days from the last day of the strike, was charged by the local union with a viola- tion of article 26, section 6, which prohibits- a member from crossing a picket line; was found guilty following a hearing and fined $600 and $25 per day if a member of Local Union 185 and $1000 and $25 per day if a member of Local Union 128. At the hearing all parties, through counsel, stipulated that there are no issues in these cases as to the timeliness or regularity of either the employee resignations or the aCtions of the local unions in response to the resignations. GLASS & POTTERY -WORKERS LOCAL 185 (LIBERTY GLASS) 201 Prior to the strike, all members were covered under a union life insurance program, the premium for which was $1 per month deducted from regular union dues All members, including the 14 who are the subject of this proceeding, continue to be covered under the program after commencement of the strike, with the International Union paying all such premiums. There is no evidence that any of the 14 members have received any benefit payments under such program since April 1, 1983 On or shortly .after April 10, when he sent his initial resignation telegram, and again on or shortly after April 16, when he. sent a second resignation telegram, member Houser was visited at his home by local union .officials who first inquired whether he intended to return to work and then informed him that he would be fined and black- balled by the Union if he did so during pendency of the strike. In Machinists Local 1327 (Dalmo Victor), 263 NLRB 984 (1982), a divided Board struck down as an unlawful restriction of a member's right, under Section 7 of the Act, to refrain from union or other concerted activity, a union rule prohibiting resignations during the entire course of a strike or _within 14 days preceding its coin- , mencement. Members Fanning and Zimmerman, balanc- ing the statutory right of the members and that the ,union under the proviso to Section -8(b)(1)(A), were of the opinion that 30 days was a reasonable restriction on such right of resignation, while Chairman Van de Water and Member Hunter were of the opinion that the statutory right of a member was paramount and that any delay in the effective date of a resignation was unlawful. Under either view, the provision here is unlawful, for it restricts the effective date of any resignation to the du- ration of an authorized strike (however long) plus 30 days. Nor are there present here any extraordinary cir- cumstances which would compel a reexamination of Dalmo Victor, even if I had authority to do so. Participa- tion in a unanimous strike vote or in picketing, both con- sidered by the Board in Dalmo Victor, are commonplace occurrences. And the action of the International Union in paying insurance premiums of its members puts it in the position of a volunteer and, in any event, is an irrele- vant consideration in the issue of whether the constitu- tional limitation on resignations conflicts with the Act. [Recommended Order omitted from publication.]