Sheet Metal Workers Local 16 (Salem Heating)

SHEET METAL WORKERS LOCAL 16 (SALEM HEATING) Sheet Metal Workers' International Association, Local 16 and Sheet Metal Workers' Internation- al Association, AFL-CIO and Salem Heating and Sheet Metal, Inc. Case 36-CB-1064 13 February 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 20 August 1984 Administrative Law Judge Gordon J . Myatt issued the attached decision. Re- spondent Sheet Metal Workers' International Asso- ciation, Local 16 and Respondent Sheet Metal Workers' International Association, AFL-CIO filed exceptions and supporting briefs. 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, i and conclusions2 and to adopt the recommended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Sheet Metal Workers' International As- sociation, Local 16, Portland, Oregon, and Sheet Metal Workers' International Association, AFL- CIO, Washington, D.C., their officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). "(b) Post at the headquarters of the International Union and at the business office and meeting halls of Local 16 copies of the attached notice marked "Appendix."9 Copies of the notice, on forms pro- i We have adopted the judge's finding that all of the restrictions on member resignation contained in the constitution and ritual are invalid In doing so, however, we do not rely on the judge's statement that the Gen- eral Counsel asserted only that the restriction relating to strikes is unlaw- ful Rather, the complaint alleged that the Respondents violated the Act by maintaining the following restriction in the constitution and ritual "No [member's] resignation shall be accepted if offered in anticipation of charges being preferred against him, during the pendency of such charges or during a strike or lockout " 2 We disagree with that part of the judge's recommended Order that would require Respondent International to mail copies of the notice to all of its affiliated local unions for posting and with that part of the recom- mended Order that would require the affiliated locals to maintain the notice Instead, we will modify the recommended Order so that only the Respondents will be required to post and maintain the notice Member Dennis, for the reason stated in Machinists Local Lodge 1414 (Neufeld Porsche-Audi), 270 NLRB 1330, 1336 fn 22 (1984), would not order Respondent Local 16 to expunge a provision appearing in the In- ternational's constitution and ritual, but instead would order Local 16 to notify its members in writing that it will not enforce the resignation re- striction 41 vided by the Regional Director for Region 19, 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 customari- ly posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not al- tered, defaced, or covered by any other material." DECISION STATEMENT OF THE CASE GORDON J. MYATT, Administrative Law Judge. As a result of a charge filed against Sheet Metal Workers' International Association, Local 16 (Local 16) on August 15, 1983, the Regional Director for Region 19 issued a complaint and notice of hearing and an amendment to complaint on September 28 and November 7, 1983, re- spectively. Subsequent thereto, an amended charge was filed on January 13, 1984, against Local 16 and its parent organization, Sheet Metal Workers' International Asso- ciation, AFL-CIO (the International), and the Regional Director issued a second amended complaint and notice of hearing on January 18, 1984. In essence, the second amended complaint alleged Local 16 and the International maintain and enforce a provision in their constitution and ritual unlawfully re- stricting the right of members to resign in certain speci- fied circumstances; i.e., if offered in anticipation of charges being preferred against (the member), during the pendency of any such charges, or during a strike or lock- out. The amended complaint also alleged that three named employee-members had court-collectible fines im- posed on them by Local 16 for resigning their union membership and returning to work for Salem Heating and Sheet Metal, Inc (the Charging Party) during a strike against Salem resulting from unsuccessful contract negotiations At the hearing, however, the General Counsel moved to delete the allegations of the complaint referring to (1) the levy of the fines, (2) the contention that the three named employee-members submitted their resignations to Local 16 prior to returning to work for Salem during the strike, and (3) the contention that Local 16 refused to consider the tendered resignations valid. I The motion to delete was granted over the objection of the Charging Party Thus, the only issue remaining in the instant case is whether the provision in the constitution and ritual re- stricting member resignation violates Section 8(b)(1)(A) of the National Labor Relations Act (the Act). Trial of this matter was held in Portland, Oregon, on January 31, 1984. All parties were represented by coun- sel and afforded an opportunity to examine and cross-ex- amine witnesses and to present material and relevant evi- i As grounds in support of his motion, the General Counsel represent- ed that the investigation revealed the employees returned to work for Salem prior to submitting their resignations to the Union, and further, that he was unable to ascertain what portion of the fines, if any, related to the postresignation conduct 274 NLRB No. 8 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dence on the issue involved. Briefs were submitted and have been duly considered On the entire record in this case, including the various stipulations of the parties and my observation of the sole witness 'who testified, I make the following FINDINGS OF FACT 1. JURISDICTION The parties admit, and I find, that Salem Heating and Sheet Metal, Inc is an Oregon corporation with an office and place of business located in Salem, Oregon, engaged in the business of sheet metal fabrication and in- stallation . During the 12 months preceding the issuance of,the complaint, Salem realized gross sales of goods and services from its business operations in excess of $500,000. During the same period, Salem sold and shipped goods or provided services from its Oregon fa- cilities valued in excess of $50,000 to customers outside the State of Oregon, or to customers within the State of Oregon who were themselves engaged in interstate com- merce. Similarly, during the same period, Salem pur- chased goods and materials valued in excess of $50,000 and caused them to be delivered to its Oregon facilities directly from suppliers outside the State of Oregon, or from suppliers within the State of Oregon who in turn obtained such goods and materials directly from sources outside the State. Based on the foregoing, I find that Salem is, and has been at all times material herein, an employer within the meaning of Section 2(2) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers' International Association, Local 16 and Sheet Metal Workers' International Association, AFL-CIO are labor organizations within the meaning,of Section 2(5) of the Act III. THE ALLEGED VIOLATION OF THE ACT The patties stipulated that Local 16 was chartered by the International in 1888 and has remained a chartered affiliated local union of the International since that time., As an affiliated local union, Local 16 is governed and bound by the provisions of the constitution and ritual of the International 2 In addition, Local 16 has its own local working rules governing membership conduct. (See G.C. Exh. 7). The working rules make reference to and are required not to be in conflict with the provisions of the constitution and ritual It is stipulated that the constitution and ritual is publi- ci^zed by the affiliated locals, including Local 16, to their membership by providing most members with a copy thereof Milton Hill, secretary-treasurer and business manager of Local 16, testified that in actual practice the 2 The constitution and ritual is the governing document of the Interna- tional Union and is authorized by its General Convention which meets periodically The current constitution and ritual was authorized by the Thirty-Sixth General Convention, held from August 30 to September 3, 1982, and has been in effect since at least January 1, 1983 (See G C Exh 2 and the written stipulation of the parties in evidence as G C Exh 5 ) Local has two segments of members, one group in con- struction and marine work and the other group in pro- duction work. New member applicants for the construc- tion and marine segment are required to personally attend a membership meeting where they are sworn in by the local president. The oath administered to them in- cludes the requirement that the applicants will abide by the provisions of the constitution and ritual and the local rules of the Union. Applicants in the production catego- ry execute this same oath in writing when they sign their membership applications. Hill stated that, regardless of which working category the applicants might be in, each received a kit which includes, among other things, a copy of the constitution and ritual and the local working rules The record establishes the following facts First, that Local 16 and Salem have had a collective-bargaining re- lationship since at least April 1, 1981. Second, the con- tract negotiations between Salem and Local 16 in 1983 proved unsuccessful and the old collective-bargaining agreement expired on May 25, 1983. Next, that about May 19, 1983, Hill informed the members of Local 16 that Salem would be a nonsignatory contractor as of May 25, 1983, and employee-members would be open to charges if they worked for Salem on or after the date The record further establishes that three employees of Salem who were union members continued to work for Salem after May 25, 1983. These three individuals were William J. Connelly, John Kirsch, and Gerald Munson The three employees submitted letters of resignation to Local 16 on various dates after May 25 (See G.C Exhs. 3(a), 3(b), and 3(c)) Thus, they worked as union mem- bers for a nonsignatory employer for varying periods of time. The letters of resignation were rejected by Hill on the basis of article 16, section 13, of the constitution and ritual 3 In so doing, Hill referred to that portion of the relevant section which stated, "No resignation shall be accepted if offered in anticipation of charges being pre- ferred against him." Hill further stated that it had been reported that the resigning members intended to accept employment below the contract rates and, if so, they would be subject to charges under article 17 of the con- stitution and ritual.' Concluding Findings The General Counsel contends that the maintenance of article 16, section 13 in the constitution and ritual gov- erning the International and Local 16 constitutes a viola- tion of Section 8(b)(1)(A) of the Act. The General Coun- sel argues that this provision, in part, prohibits all resig- nation during a strike. Therefore, under the Board's 3 That provision of the constitution states as follows Any member in good standing who has paid all dues and financial obligations may sever his connection by written resignation mailed to the financial secretary-treasurer of the local union with which he is affiliated by certified or registered mail Resignations shall be ef- fective upon receipt of notification in the manner prescribed herein No resignation shall be accepted if offered in anticipation of charges being preferred against him , during the pendency of any such charges or during a strike or lockout 4 See G C Exh 4 for a copy of the letter sent to Connelly by Hill Similar letters were sent to the other two resigning members SHEET METAL WORKERS LOCAL 16 (SALEM HEATING) holding in Machinists Local 1327 (Dalmo Victor), 263 NLRB 984 (1982),5 it is an unreasonable restriction on a member's Section 7 right to resign from the Union and violates Section 8(b)(l)(A) of the Act. Counsel for the International and Local 16 contend that reliance on Dalmo Victor II is misplaced in light of the refusal of the Ninth Circuit to enforce the Board's Order in that case. Further, that the provision in ques- tion is a valid restriction on resignations within the meaning of the proviso to Section 8(b)(1)(A) regarding acquisition and retention of membership. They assert that to contend the maintenance of the provision is a per se violation misreads the applicable Supreme Court deci- sions in this area of the law.6 Finally, Local 16 contends that it is without authority to alter the provisions of the constitution and ritual of the International and, therefore, cannot be held to have violated the Act simply because it is a constituent local union of the parent organization. While counsel for Respondent Unions correctly note that enforcement of the Board's decision in Dalmo Victor II was denied by the Ninth Circuit in a more recent de- cision the Board respectfully disagreed with the court's reasoning in that case. In so doing, a Board majority adopted a even more stringent view of any restrictions imposed on a member's right to resign from a union. See Machinists Local Lodge 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984) (Member Zimmerman dissenting in part). In Neufeld the Board majority overruled Dalmo Victor II and its progeny and adopted the concurring view set forth in Dalmo Victor II to the effect that any restriction imposed on a member's right to resign is in- valid. The majority held that "restrictions on resignations [not only] impair the fundamental policies found in the express language and consistent interpretation of Section 7" but also "impair the fundamental policy repeatedly recognized by the Supreme Court to be embedded in the very fabric of the labor laws that distinguishes between international union actions and external union actions." Id. In addition, the majority in Neufeld reiterated the concurring view expressed in Dalmo Victor II "that any effort to equate the institutional interests of a union with the statutory rights of employees is inappropriate." The Board majority went on to state that "regardless of their legitimacy, the union's interest simply cannot negate or otherwise overcome fundamental Section 7 rights." In view of the sweep of the Board's holding in Neu- feld and since I am bound to follow established Board precedent, which has not been reversed by the Board or the Supreme Court? I am compelled to find that all of the restrictions on member resignation contained in arti- cle 16, section 13, are invalid. This is true even though the General Counsel's assertion of invalidity was limited to the resignation restriction relating to strikes. As cur- 5 Enforcement of the Board's Order in this case was recently denied by the United States Court of Appeals for the Ninth Circuit, 725 F 2d 1212 (9th Cir 1984) (Dalmo Victor II) 5 The Union's counsel cite the following cases which they consider to be misapplied NLRB v Allis-Chalmers Mfg Co, 388 U.S 175 (1967), Scofield v NLRB, 394 US 423 (1969), NLRB v. Granite State Joint Board, Textile Workers Local 1029, 409 U S 213 (1972), Machinists Booster Lodge 405 v NLRB, 412 U S 84 (1973) 7 Fred Jones Mfg Co, 239 NLRB 54 (1978), Club Cal-Neva, 231 NLRB 22 fn 5 (1977) 43 rent Board law now applies to any restrictions on the right to resign from a union, it must perforce apply to the other portions of that constitutional provision relat- ing to the anticipation of internal union charges or during the pendency of such charges Further, it is evi- dent under current Board law that the mere maintenance of these resignation restrictions in the governing docu- ments of the International and Local 16 coerces and re- strains employee-members from exercising their Section 7 rights. Engineers & Scientists Guild (Lockheed-Califor- nia), 268 NLRB 311 (1983). Finally, it is to no avail that Local 16 contends it is powerless to alter the language contained in the offend- ing provision of the International's constitution and ritual. The record establishes that the local union has adopted the constitution and ritual as its governing docu- ment and has incorporated that document by reference in its own local working rules-which cannot conflict with the provisions of the International's constitution and ritual . Moreover, Local 16 requires its members to swear fealty to the International's constitution and ritual and has taken affirmative steps to distribute copies of that document to its membership. Thus, it is apparent that by adoption and incorporation by reference the constitution and ritual is the governing document of the local union. As such, the unlawful resignation restriction contained in the constitution and ritual of the International have become unlawful resignation restrictions maintained by the local union in violation of Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. Salem Heating and Sheet Metal, Inc. is an employer engaged in commerce within the meaning of, Section 2(2), (6), and (7) of the Act. 2. Respondent Sheet Metal Workers' International As- sociation, Local 16, and Respondent Sheet Metal Work- ers' International Association , AFL-CIO are labor orga- nizations within the meaning of Section 2(5) of the Act. 3. By maintaining restrictions on members' resignations in their constitution and ritual , the International Union and, Local 16 have coerced and restrained members from exercising their rights under Section 7 in violation of Section 8(b)(1)(A) of the Act. 4. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondents have engaged in an unfair labor practice in violation of Section 8(b)(1)(A) of the Act, they shall be ordered to cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Specifically, the International Union and Local 16 shall be ordered to cease and desist from maintaining in their constitution and ritual the invalid restrictions on member resignations and expunge these restrictions from their governing doc- ument. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondents, Sheet Metal Workers' International Association, Local 16, and Sheet Metal Workers' Inter- national Association , 'AFL-CIO, Washington , D.C, their officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining in their constitution and ritual article 16, section 13, to the extent it provides: No resignation shall be accepted if offered in antici- pation of charges being preferred against him, during the pendency of any such charges or during a strike or lockout. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Expunge from their constitution and ritual the por- tion of article 16, section 13 found invalid and set forth above. (b) Post at the headquarters of the International Union and at the business office and meeting halls of Local 16 copies of the attached notice marked "Appendix "9 In addition, Respondent Sheet Metal Workers' International Association, AFL-CIO shall be required to mail copies of said notice to all of its other affiliated local unions for posting in their business offices and meeting halls. Copies of said notice, on forms provided by the Regional Direc- tor for Region 19, after being signed by the Respondents' authorized representatives shall be posted and/or mailed by Respondent International and posted by Respondent 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 9 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 " Local 16 ummediately upon receipt and maintained by them and the other affiliated locals of the International Union for 60 consecutive days in conspicious places in- cluding all places where notices to members are custom- arily posted. Reasonable steps shall be taken by the Re- spondents and the affiliated local unions of the Interna- tional to ensure that the notices are not altered, defaced, or covered by any other material. (c) Sign and return to the Regional Director sufficient copies of the notice for posting by Salem Heating and Sheet Metal, Inc., provided that Employer is willing, at all places where notices to employees are customarily posted. (d) Notify the Regional Director for Region 19 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 found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT maintain the provision in article 16, sec- tion 13, of our constitution and ritual which provides. No resignation shall be accepted if offered in antici- pation of charges being preferred against him, during pendency of any such charges or during a strike or lockout. WE WILL NOT in any like or related manner restrain or coerce our members in the exercise of the rights guaran- teed them by Section 7 of the Act. WE WILL expunge from our constitution and ritual the portion of article 16, section 13, which is set forth above. SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, LOCAL 16 AND SHEET METAL WORKERS' INTERNATIONAL ASSO- CIATION, AFL-CIO