Plasterers Local 744 (Chamac Inc.)

PLASTERERS LOCAL 744 (CHAMAC INC.) 829 Operative Plasterers and Cement Masons Interna- tional Association, Local Union 744, AFL-CIO (Chamac Inc.) and Dennis 0. Jones. Case 21- CB-8734 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 31 July 1984 Administrative Law Judge Earl- dean V. S. Robbins issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in re- sponse. 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 2 and to adopt the recommended Order as modified and set forth in full below.3 ORDER The National Labor Relations Board orders that the Respondent, Operative Plasterers and Cement Masons International Association, Local Union 744, AFL-CIO, San Diego, California, its officers, agents, and representatives, shall 1. Cease and desist from The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188, F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis fcir reversing the findings 2 We agree with the Judge's finding that, although the Respondent had not notified its International Association of its receipt of Dennis and Orvel Jones' resignations pnor to their refusal of the Respondent's order to leave the Jobsite of a nonsignatory employer, this notification was not a precondition under the Respondent's bylaws to perfecting their resigna- tions. We also agree with the judge's conclusion that the Respondent ac- cordingly violated Sec 8(b)(1)(A) of the Act by fining Dennis and Orvel Jones for refusing its order after they had effectively resigned from the Respondent's membership We find, moreover, that the restrictions on resignations in the Respondent's byldws are invalid, and that the Re- spondent violated Sec 8(b)(1)(A) by imposing fines on Dennis and Orvel Jones pursuant to such provisions See Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984) , For the reasons stated in his dissenting opinion in Neufeld Porsche, supra, Member Zimmerman agrees that SeC 47(d) of Respondent's bylaws, which restricts resignations only to union members who have been on the rolls for 5 years, constitutes an unreasonable restriction on a member's right to resign and violates Sec 8(b)(1)(A) of the Act 3 The order is modified to require the Respondent to notify Dennis and Orvel Jones, in writing, that 'It has rescinded its fines against them and that it has expunged from its records evidence of its unlawful disci- pline of them It is also modified to require the Respondent to expunge the restrictions on resignations set forth in bylaw 47(d) of its governing documents See Neufeld Porsche-Audi, supra (a) Maintaining in its governing documents the restrictions on resignations set forth in bylaw 47(d) and in the corresponding provision of the Opera- tive Plasterers and Cement Masons International Association's constitution. (b) Restraining or coercing Dennis 0. Jones, Orvel Jones, or any other employee who has re- signed from, and is no longer a member of, the Re- spondent in the exercise of the rights guaranteed them in Section 7 of the Act, by fining them be- cause of their post-resignation conduct in refusing to leave a jobsite when requested to do so by the Respondent's business agent. (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Expunge from its governing documents the restrictions on resignations set forth in bylaw 47(d) and in the corresponding provision of the Opera- tive Plasterers and Cement Masons International Association's constitution. (b) Rescind the fines levied against Dennis 0. Jones and Orvel Jones because they refused to leave a jobsite when requested to do so by the Re- spondent's business agent; expunge from its records any reference to such fines and all disciplinary ac- tions which led thereto and notify them in writing that this has been done; and refund any money paid to the Respondent as a result of such fines, plus in- terest. (c) Post at its business office and meeting halls copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has 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" 273 NLRB No. 110 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . 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 found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union , To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. Accordingly, we give you these assurances. WE WILL NOT restrain or coerce Dennis 0. Jones, Orvel Jones, or any other employee who has resigned from, and is no longer a member of, the Union, in the exercise of the rights guaranteed them in Section 7 of the Act, by fining them be- cause of their postresignation conduct in refusing to leave a jobsite when requested to do so by our business agent. 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 against Dennis 0. Jones and Orvel Jones because they refused to leave a jobsite when requested to do so by our business agent, and expunge from our records any reference to such fines and all disciplinary actions which led thereto and notify them in writing that this has been done; and WE WILL refund any money paid to us as a result of such fines, plus in- terest. WE WILL expunge from our governing docu- ments the restrictions on resignations set forth in bylaw 47(d) and in the corresponding provision of the Operative Plasterers and Cement Masons Inter- national Association's constitution. MASONS INTERNATIONAL ASSOCIA- TION LOCAL UNION 744, AFL-CIO DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge. This matter was heard before me in San Diego, Califor- nia on May 3, 1984. The charge was filed by Dennis 0. Jones, an individual, on January 18, 1984, and served on Operative Plasterers and Cement Masons International Association, Local Union 744, AFL-CIO (Respondent), on January 19, 1984. The complaint, which issued on February 8, 1984, alleges that Respondent violated Sec- tion 8(b)(1)(A) of the National Labor Relations Act (the Act). The basic issue herein is whether Respondent im- posed court-collectible fines on employees Dennis Jones and Orvel Jones for refusing Respondent's instructions to leave a jobsite where they were working for a nonsigna- tory contractor at a time when both Dennis Jones and Orvel Jones had tendered valid resignations from Re- spondent. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION At all times material herein, Chamac Inc. (the Em- ployer) has been a California corporation engaged in business as a general building contractor in Southern California. In the normal course and conduct of its busi- ness operations, during the 12-month period preceding the issuance of the complaint herein, the Employer per- formed services valued in excess of $50,000 directly to customers located outside the State of California and, during that same period, purchased and received goods valued in excess of $50,000 directly from suppliers locat- ed within the State of California; each of which suppli- ers, in turn, purchased and received those same goods di- rectly from suppliers located outside_the State of Califor- nia The complaint alleges, Respondent admits, and I find that the Employer is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I ,find that Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The facts herein are undisputed. Dennis and Orvel Jones were employed by Chamac at the time that Cha- mac's most recent agreement with Respondent expired in mid-June 1983 1 They Continued to work for Chamac and, after consulting with an attorney, submitted individ- ual written resignations from the Union. The resigna- tions, which were delivered to the Union office on June 21 by Bruce St John, state: I hereby resign from your union effective 6-21-, 1983, or the earliest legally-permissible date. How- ever, I will continue to pay all _regular dues and fees. ' Unless otherwise indicated, all dates herein will be in 1983 PLASTERERS LOCAL 744 (CHAMAC INC ) 831 St. John testified, without contradiction, that he gave the completed resignation forms of both Dennis and Orvel Jones to the man behind the counter at the union office, whereupon the man behind the counter showed him a paper which St John read and which seemed to indicate that the resignations submitted by the Joneses were not valid St. John asked for a copy of the paper, but was told he could not have one. He then told Dennis Jones, who was waiting outside, that the man behind the counter had shown him a typewritten letter which seemed to indicate that the resignations were invalid. St. John further reported that this person would not give him a copy of the letter, but said that Dennis and Orvel Jones would receive copies of it in the mail. Later that day, Dennis Jones returned to the union office and spoke to the office clerk, Larry French. Jones said he was there in reference to the forms he had deliv- ered to Respondent. French said, "Yes, those are invalid They are no good." Jones asked why, and French handed him a copy of a letter. According to Jones, the letter said they could not resign from the Union unless they were members in good standing for 5 years. Jones told French that both he and his father, Orvel Jones, had been in the Union for over 5 years. French said that was not the part which pertained to them. Another portion of the letter said a member had not properly resigned until the secretary-treasurer mailed a certain form to the Inter- national and they received the form. Jones said it was their understanding that the resignations were valid and he asked French if he could keep the letter. French said no, and Jones left. Jones denies, without contradiction, that he ever received a copy of the letter he was shown by French. On October 17, Woodrow Bailey, an officer of Re- spondent, came onto the Chamac jobsite where Dennis and Orvel Jones were working. According to Dennis Jones, Bailey said, "You know, I'm'going to have to ask you guys to leave." Dennis Jones said, "Yes, I under- stand that and we can't leave. We are working for Chamac and we want to do their work." Bailey said, "Okay, as long as you understand." On November 29, Respondent sent identical letters to Dennis and Orvel Jones, the body of which reads: Please be advised that on Wednesday, December 21, 1983, at 7:30 p.m., at 3909 Centre Street, San Diego, California 92103, charges preferred against you by Woodrow W. Bailey will be heard by the Executive Board of Cement Masons Local #744. Any evidence, witnesses who are members of O.P. & C.M.I.A., etc., should be presented at this time. If you should have any further questions regarding the above, please feel 'free to contact the under- signed. Enclosed with each of the letters was the following excerpt from Respondent's bylaws. VIOLATION OF LOCAL UNION BYLAWS ART. 3. SEC 1 When members are called off the job by the Business Agents of this Union, they shall immediately quit work without discussion and leave the job without making any disturbance The hearing was held as scheduled on December 21. Bailey explained the basis of the charge, that he had asked Orvel and Dennis Jones to leave the jobsite and they had refused. When , the Joneses pleaded "Not guilty," one of the board members asked how could they plead not guilty if the facts were correct. Dennis Jones said it was his understanding that they did in fact resign from the Union, that they had submitted their resigna- tions with the intention to continue to pay dues, which they had been paying, and it was his understanding that they could work a nonunion job and not be subject to being fined. Nevertheless, fines were imposed against them and each of them was so notified by letter dated January 13, 1984, the body of which reads. Please be advised that the fine of $250.00 imposed on you by the Executive board of Cement Masons Local #744, has been reduced to $200 00 by the International Association. In addition to the $200.00 fine, you must also submit $40.00, which is the per- centage due the International, for a total of $240.00 You are advised that you have the right to appeal or protest this fine, but you must enter such protest within 30 days that follow the registration of such fine, or until February 10, 1984 If you desire to protest, the fine must be paid to the International in full by Money Order or Certified Check, before the General Executive Board will consider any protest. You are further advised that this fine will be held in abeyance for sixty days, or until March 10, 1984, and if not paid or arrangements made to pay by that date, you will be dropped from the rolls The complaint alleges that by the imposition of these fines following Dennis and Orvel Jones' resignations from the Union, Respondent has violated Section 8(b)(1)(A) of the Act. The Union argues that the resigna- tions were not valid and therefore the fines were lawful. It is well established that a labor organization Violates Section 8(b)(1)(A) of the Act when it fines or attempts to discipline an employee for conduct in which the employ- ee engages following the employee's valid resignation from the labor organization It is not necessary to show that the union has actually instituted a court proceeding seeking to enforce the fine. NLRB v. Textile Workers Local 1029, Granite State Joint Board, 409 U.S. 213, 217 (1972); Machinists Local 1994 (O.K. Tool Co.), 215 NLRB 651 (1974), Auto Workers Local 647 (General Electric), 197 NLRB 608 (1972); Chemical Workers Local 6-578 (Gordy's, Inc.), 238 NLRB 1227 (1978); Electrical Workers IBEW Local 2131 (Rucker Electronics), 217 NLRB 46 (1975). Further, the Board has recently held that a union may not lawfully restrict the right of its members to resign from membership Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984). Respondent argues, in essence, that it did not seek to restrict the right of Dennis and Orvel Jones to resign, 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but rather that its constitution and bylaws contain a valid rule which sets forth the method by which a member may effect his resignation from Respondent, that Orvel and Dennis Jones did not comply with this rule and therefore their resignations Were not valid and, accord- ingly, the fines were permissible under the Act. The provision on which Respondent relies reads as fol- lows in both tine International constitution and- Respond- ent's bylaws: Section 47(d). Any member who has been on the rolls of the International Association for the period of five (5) continuous years prior to requesting right to resign, may submit resignation if paid up in all dues and assessments at the time of resigning and his Local Union may accept such resignation but must so notify the International Association on ap- propiate forms to be made available by the General Secretary-Treasurer. Clearly, the restrictions as to length of membership and the payment of dues and assessments are unlawful. However, no attempts to enforce these restrictions are involved here, and essentially Respondent is arguing that a requirement that resignations be submitted to the Inter- national is permissible. It is not clear from Neufeld whether a union may enforce a- reasonable rule as to the method or form of a resignation. However, even assum- ing arguendo that such a rule is permissible, Section 47(d) does not 'appear on its face to prescribe a method of effecting a resignation. Rather the rule appears to pre- scribe only for notification from the Local Union to the International that the Local Union has accepted the res- ignation. Here, - Dennis and Orvel Jones tendered their un- equivocal resignations on June 21. At that point, they had done all they were required_ to do under Respond- ent's rules. Yet Respondent is contending that the resig- nations were not perfected because as of October 17, the day they refused to leave the jobsite on the request of a union officer, Respondent and/or its parent body had not completed the ministerial acts required by-, Rule 47(d). Thus even if Section 47(d) is interpreted as urged by Re- spondent and if a rule is permissible which provides that resignations are effective only upon submission to the International Union, the rule was not reasonably en- forced as required by Scofield v. NLRB. 2 Accordingly, I • 2 In Scojield v NLRB, 394 U S 423 (1969), the Supreme Court articu- lated a three-part test for determining when a union disciplinary rule is find that by imposing fines_ on Dennis Jones and Orvel Jones; former members who had duly resigned from the Union, for refusing to leave a jobsite, where they were working for a nonsignatory contractor, when instructed to do so by Respondent's business agent, Respondent has violated Section 8(b)(1)(A) of the Act. , CONCLUSIONS OF LAW 1. Chamac is an employer engaged in .commerce within the meaning of Section 2(2), (6), and (7) of- the Act. 2 Respondent is a labor organization within the mean- ing ofSection 2(5) of the Act. 3. By imposing court-collectible fines on Dennis Jones and Orvel Jones, former members who had duly re- signed from Respondent, because of their postresignation conduct in refusing to leave a jobsite when requested to do so by Respondent's business agent, Respondent has committed unfair labor practices in violation of Section 8(b)(1)(A) of the Act. 4. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices, I shall recom- mend that Respondent cease and desist therefrom:and take - certain affirmative action in order to effectuate the purposes of the Act. Having found that Respondent has unlawfully imposed fines against Dennis Jones and Orvel Jones, L shall rec- ommend that Respondent be ordered to -rescind the un- lawful fine levied against them because they refused to leave a jobsite when requested to do so by Respondent's business agent, refund any money paid to Respondent as a result of such fines, plus interest computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977), 3 and expunge from its records any reference to the fines and all disciplinary actions which led thereto. [Recommended Order omitted from publication.] reasonable A union is free to enforce a properly adopted rule that (1) reflects a legitimate union interest, (2) impairs no policy that Congress has embedded in the labor laws, and (3) is reasonably enforced against union members 3 See generally Isis Plumbing Co., 138 NLRB 716 (1962)