Machinists Local 1374 (Columbia Machine)

MACHINISTS LOCAL 1374 (COLUMBIA MACHINE) 123 International Association of Machinists and Aero- space Workers, AFL-CIO and its Local Lodge No. 1374 (Columbia Machine, Inc.) and William N. Gilmore. Case 36-CB-1080 19 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 24 August 1984 Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respondents and the General Counsel filed ex- ceptions 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,' and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Internation- al Association of Machinists & Aerospace Workers, AFL-CIO and its Local Lodge No. 1374, their of- ficers, agents, and representatives, shall take the action set forth in the Order. i In finding that the Respondent Local Lodge No 1374 unlawfully fined certain members , the judge found that the Local's conduct reason- ably created in the minds of its members the impression that any attempt to resign from the Union would be futile However , later in his decision he stated that the standard to be applied in determining whether a viola- tion has occurred is whether "the member in fact had subjective belief that it would be futile to attempt to resign " The judge made simi- lar statements with respect to those complaint allegations which he dis- missed In adopting the judge's finding of a violation, we rely solely on the judge's determination that the Local 's conduct would reasonably tend to create the impression of futility As to the allegations dismissed, again we rely on his findings that with respect to those allegations the Local's conduct cannot be found to have reasonably created the impression of futility Thus, we find only an objective standard , not a subjective stand- ard, to be proper 2 Consistent with Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), we adopt the judge's recommendation that the Re- spondent Local as well as the Respondent International expunge the in- valid provision restricting resignations from its governing documents En- gineers & Scientists Guild (Lockheed-California), 268 NLRB 311 (1983) Member Dennis does not adopt par B ,2(a) of the recommended Order insofar as it applies to the Respondent Local See her position in Machin- ists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1336 fn 22 (1984) DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. I heard this case in trial on April 30, 1984, in Portland, Oregon. The matter arose as follows. On October 4, 1983, William N. Gilmore, an individual, filed a charge docketed as Case 36-CB-1080 against International As- sociation of Machinists and Aerospace Workers, Local Lodge No. 1374, AFL-CIO (Respondent Local 1374). On December 22, 1983, the Regional Director for Region 19 of the National Labor Relations Board issued a complaint and notice of hearing against Respondent Local Lodge 1374 with respect to the charge On Janu- ary 23, 1984, Gilmore amended his charge to include the International Association of Machinists and Aerospace Workers, AFL-CIO (Respondent International and, col- lectively with Respondent Local Lodge 1374, Respond- ents). On January 26, 1984, the Regional Director issued an amended complaint and notice of hearing against Re- spondents. The complaint alleges and the answer denies that Re- spondents (1) through the maintenance and publication of constitutional restrictions on the rights of their mem- bers to resign, and (2) through the trial and discipline of members who did not resign their membership because of these restrictions violated Section 8(b)(1)(A) of the National Labor Relations Act (Act). On the entire record herein, including briefs from the General Counsel and Respondents, and from my obser- vation of the witnesses and their demeanor, I make the following' FINDINGS OF FACT 1. JURISDICTION Columbia Machine, Inc. (the Employer) is a State of Washington corporation with an office and place of busi- ness in Vancouver, Washington, where it is engaged in the business of manufacturing concrete blockmaking ma- chinery and material handling systems. During relevant times, in the course and conduct of its business oper- ations, the Employer enjoyed gross sales of goods and services of a value in excess of $500,000 and sold and shipped goods or provided services from its Washington State facility to customers outside the Washington State, or sold and shipped goods or provided services to cus- tomers within Washington State which customers were themselves engaged in interstate commerce by other than indirect means, of a total value in excess of $50,000. The Employer during the same period purchased and caused to be transferred and delivered to its facilities within Washington State goods and materials valued in excess of $50,000 directly from sources outside the State of Washington from suppliers within the State who in turn obtain their goods and materials directly from sources outside the State. II. LABOR ORGANIZATION Respondents are, and each of them is, labor organiza- tions within the meaning of Section 2(5) of the Act ' As a result of the pleadings , a written stipulation of facts, and the further oral stipulations of counsel and Respondents ' representative at the hearing, there were few issues of fact in dispute Where not otherwise noted, the findings herein are based on the noted admissions , stipulations, concessions, and/or the unchallenged testimony of credible witnesses 274 NLRB No. 26 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. ALLEGED UNFAIR LABOR PRACTICES A. Background From the early 1940s until the events in issue herein the Employer and Respondent Local 1374 had a history of collective bargaining with respect to the following ap- propriate bargaining unit- All tool and die makers, journeyman machinists, journeyman welders, specialists, specialist's welders, assemblers, production workers, machinists' helpers, clean-up men, electronic and floor electricians, ma- terial handlers; excluding all office clericals, guards and supervisors as defined in the Act. During this period the parties entered into successive collective-bargaining agreements, the last of which was negotiated in 1980 with an expiration date of April 30, 1983. The 1980-1983 agreement contained provisions re- quiring unit employees to maintain membership in Re- spondent Local 1374 as a condition of employment Respondent Local 1374 is an organizational subunit of Respondent International. At relevant times Respondents have jointly and individually maintained the following rule contained in Respondent International's constitution: The following actions or omissions shall constitute misconduct by a member which shall warrant a rep- rimand, fine, suspension and/or expulsion from membership, or any lesser penalty or any combina- tion of these penalties as the evidence may warrant after written and specific charges and a full hearing as hereinafter provided:. . . . Accepting employment in any capacity in an estab- lishment where a strike or lockout exists as recog- nized under this Constitution, without permission. Resignation shall not relieve a member of his obli- gation to refrain from accepting employment at the establishment for the duration of the strike or lock- out if the resignation occurs during the period of the strike or lockout or within 14 days preceding its commencement. Where observance of a primary picket line is required, any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained, nor shall it re- lieve a member of his or her obligation to observe the primary picket line for its duration. At all material times Respondents continuously main- tained and held out as valid the quoted language. The parties stipulated that the members involved herein had actual knowledge of this language B. The Strike and Subsequent Events Approximately 2 weeks before the April 30, 1983 expi- ration of the contract with the Employer, Respondent Local 1374 held a meeting at which the membership, by ballot vote, authorized a strike against the Employer. On April 30, 1983, Respondent Local 1374 held another union meeting. Participating in this meeting were Roger Lyons, business agent for Respondent Local 1374, and Bruce Logan, president Each is admittedly an agent of Respondent. At this meeting and at a later meeting held on July 9, 1983, Roger Lyons read to the assembled members the constitutional language quoted supra. The parties stipulated that the reason Respondent Local 1374's agents read the language to the attending mem- bers was to "discourage its members from crossing its picket line established at [the Employer] during the strike herein." Further, at the April 30, 1983 meeting, Lyons raised the subject of a member, Van Hall, who had at- tempted to resign from Respondent Local 1374 less than 14 days before the strike's commencement date. Lyons made clear to the attending members that Hall would not be allowed to resign, that no member would be al- lowed to resign save in conformity with the quoted con- stitutional language, and that members who attempted to cross the picket line would be fined.2 Commencing May 1, 1983, through about September 1, 1983, pursuant to the work stoppage authorization voted on by the members of Respondent Local 1374, Re- spondent went on strike against the Employer in support of its economic demands. As a consequence, certain em- ployees in the bargaining unit ceased working and com- menced and maintained an economic strike against the Employer and established and maintained picket lines at the Employer's facility. In September 1983 the strike was abandoned and, at least as of the time of the hearing, no collective-bargaining agreement had been reached be- tween Respondent Local 1374 and the Employer. During the strike certain bargaining unit employees of the Employer who had been members of the Respondent Local 1374 before the strike abandoned the strike and re- turned to work for the Employer crossing the picket line A number of employees who abandoned the strike to resume employment did not resign their membership in Respondent Local 1374 3 Commencing about July 26, 1983 and continuing thereafter, Respondent Local 1374 accepted charges filed by its members against other members and instituted, prosecuted, and enforced by im- position of court-collectible fines internal union discipli- nary proceedings against certain members who aban- doned the strike 4 In some cases hearings have been in- definitely postponed. Other members who crossed the picket line during the period of July it, 1983, through September 1, 1983, have not been charged or fined by Respondent Local 1374.5 Respondent Local 1374 by its governing rules and regulations cannot refuse to accept charges filed by members against other members for crossing picket lines. Consistent with this fact, Respond- ent Local 1374 takes the position that it will continue to accept and prosecute charges brought in the future against members for crossing the picket line at the Em- 2 This version of events is based on the testimony of the eight employ- ee-witneses who attended the April 30, 1983 meeting Their testimony was consistent, their demeanor convincing Lyons' testimony to the con- trary is discredited s These employees are listed in Appendix I " The names of members who have been fined or have charges pend- ing are listed in Appendix 1(1) 5 These members are listed in Appendix I MACHINISTS LOCAL 1374 (COLUMBIA MACHINE) ployer's premises during the strike should such charges be filed by members. Respondent Local 1374 has made no attempt to collect the fines which were assessed as described above, but has neither withdrawn the fines nor expunged from its files letters notifying the members of the assessment of fines and imposition of other discipline. The General Counsel adduced the testimony of 11 wit- nesses Eight credibly testified that they did not resign or attempt to resign from Respondent Local 1374 before abandoning the strike and returning to the Employer's employ because they believed that any attempt to resign would be a futility. The testimony of these individuals was that they formed the impression that resignation was impossible based on their attendance at the union meet- ing of April 30, 1984, on conversations with various agents of Respondent Local 1374, from knowledge of Respondents' constitutional restrictions on resignation, quoted supra, or from a combination of these factors. C. Analysis and Conclusions 1. The developing law The parties briefed and argued the instant case in the legal shorthand that evolves when a particular issue has been so frequently litigated that the citation of earlier cases substitutes for the background and analysis con- tained in them . In my view it will be helpful to a resolu- tion of the instant case to consider the fundamentals of the issue involved herein even if such analysis is clearly set out in the earlier cases. In NLRB v. Allis-Chalmers Mfg Co., 388 U.S 175 (1967), the Supreme Court held that a union could disci- pline its members for returning to work during a strike and concluded that such union actions are outside the reach of Section 8(b)(1) of the Act The Court has also clearly held that disipline against nonmembers in such circumstances interferes with the employees' employ- ment relationship and violates Section 8(b)(1) of the Act. In subsequent cases the Court has dealt with various as- pects of the power of a union to discipline its members in different circumstances , including where members had earlier resigned or attempted to resign . In NLRB v Tex- tile Workers Local 1029 (International Paper Box Co.), 409 U S. 213 (1972), the Court found that union discipline could not be directed against a former member who had resigned where there were no restraints on the resigna- tion of members in the union 's bylaws. The Court specif- ically stated, at 217• We do not now describe to what extent the con- tractual relationship between the union and the member may curtail the freedom to resign. The language of Respondent International's constitu- tion quoted supra has been the subject of earlier litiga- tion before the Board and the United States Court of Appeals for the Ninth Circuit.6 The Board holds that the 6 See, e g , in chronological order, Machinists Local 1327 (Dalmo Victor), 231 NLRB 719 ( 1977), enf denied and remanded 608 F 2d 1219 (9th Cir 1979), Board decision on remand Machinists Local 1327 (Dalmo 125 language at issue herein is improperly restrictive in viola- tion of Section 8(b)(1)(A) of the Act The Board's analy- sis has to date been disfavored by the Ninth Circuit. Similar analysis by the Board of other resignation re- stricting union constitutional language has been approved by the United States Court of Appeals for the Seventh Circuit however.7 The General Counsel argues that the analysis of the Court of Appeals for the Ninth Circuit in denying en- forcement of the Board's most recent Dalmo Victor case is "faulty and without persuasive legal authority." The General Counsel advances the reasoning of the Seventh Circuit in Pattern Makers, supra, which agrees with the Board as the "correct analysis." Respondents focus their argument exclusively on the fact that the instant matter occurs within the jurisdiction of the Ninth Circuit and that the most recent Ninth Circuit Dalmo Victor case ap- proves the validity of Respondent International 's resigna- tion restriction language under attack herein Thus, Re- spondents urge me to dismiss the complaint. Subsequent to the submission of briefs in this matter, the Board issued a new case again analyzing the constitu- tional language at issue herein. Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984). In that case, although it involves changes in analysis not here relevant , the Board reasserts its view that Respondent International 's constitutional language is illegally restric- tive. In its decision the Board respectfully disagrees with the current judgment of the Ninth Circuit and embraces the Seventh Circuit's analysis in Pattern Makers. A reading of the cited cases as well as the cases ana- lyzed therein establishes without doubt that the issue of the validity of Respondent International's constitutional restriction on resignations presents important and inter- esting legal questions which, in light of the current split between the Seventh and Ninth Circuits, may well re- quire Supreme Court resolution . Despite the efforts of the parties to convince me of the propriety or correct- ness of one or the other of the currently conflicting cir- cuit court holdings on the question, I find , irrespective of the opinions of the Seventh and Ninth Circuit Courts of Appeals, I must apply Board precedent unless and until that precedent has been reversed by the Supreme Court. On this issue the law is clear. Iowa Beef Packers, 144 NLRB 615, 616 (1963) Since the Board in the very recent Neufeld Porsche-Audi decision, supra, has made clear its view is that Respondents' constitutional restric- tions on members' right to resign is impermissible and il- legal, no further anaylsis by me is necessary I find that I am bound by that holding and that the arguments of Re- spondents to the contrary must be pressed to the Board and beyond for further consideration. Given this threshold finding of the illegality of Re- spondents' constitutional restruction on resignation, it is appropriate to consider the individual allegations of the complaint in light of that finding. Victor), 263 NLRB 984 (1982), enf denied 725 F 2d 1212 (9th Cir 1984), rehearing denied July 10, 1984. 7 Pattern Makers v NLRB, 724 F 2d 57 (7th Cir 1983), enfg 265 NLRB 1332 (1982) 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondents' maintenance and publication of the illegal resignation restriction provisions As alleged in the complaint and admitted in the answer, Respondents jointly and individually maintained the cited rule at all relevant times. The Board in Engi- neers & Scientists Guild (Lockheed-California Co.), 268 NLRB 311 (1983), pending on petition to enforce 115 LRRM 1004 (9th Cir. 1984), found that the mere mainte- nance of an illegally restrictive resignation provision re- strains and coerces employees who may be unaware of the provision's unenforceability and therefore violates Section 8(b)(1)(A) of the Act. Consistent with this prece- dent I find that Respondents, and each of them, by so maintaining the quoted restrictive language, violated Sec- tion 8(b)(1)(A) of the Act. In Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), supra, the Board specifically ordered the local union there to expunge the illegally restrictive language from its governing documents. It did not so direct the International because the International was not a party to the proceeding. In Typographical Union (Regis- tered Publishing Co.), 270 NLRB 1386 (1984), however, the Board ordered an international union to expunge from its constitution certain language found impermissi- ble. In light of the fact that Respondent International is a respondent in the instant proceeding, and in light of the authorities cited, it is appropriate to order Respondent International as well as Respondent Local 1374 to ex- punge from its governing documents the provisions found illegal herein. The statements of Respondent Local 1374's agents at the union meetings on April 30 and July 9, 1983, consti- tute additional publication and dissemination of the rule and, therefore, constitute additional violations of Section 8(b)(1)(A) of the Act. Although the agents involved at these meetings were alleged and admitted to be agents of each Respondent, the specific paragraphs of the com- plaint alleging such conduct attributed it only to Re- spondent Local 1374. Accordingly, consistent with the General Counsel 's complaint, I find only Respondent Local 1374 responsible for this additional conduct in vio- lation of Section 8(b)(1)(A) of the Act. 3. Respondent Local 1374's imposition of discipline against members a. Identification of class of disciplined members The parties stipulated that 57 members of Respondents crossed the picket line and returned to work for the Em- ployer during the 1983 strike. These individuals may be divided into four categories based on the actions of Re- spondent Local 1374 against them because of their con- duct in crossing the picket line and returning to work. Of the 57 members who crossed the picket line 15 have not had internal charges filed against them8 or otherwise 8 Pursuant to Respondents ' governing regulations, individual members can initiate charges against other members, which charges Respondents process in accordance with their governing regulations The parties stipu- lated that Respondents have no discretion in processing charges initiated by members received notice of disciplinary action involving them. Four individuals had charges filed against them which were subsequently withdrawn. Fourteen individuals had charges filed against them but hearings on the charges had been indefinitely postponed as of the time of the hearing. Twenty-three individuals had charges filed against them, and after hearings were conducted, court collectible fines of either $1500 or $5000 were assessed against each 9 The General Counsel correctly argues that, if the 37 individuals who were fined or are subject to now postponed disciplinary hearings had timely re- signed from Respondents, then Respondents' actions would have clearly violated Section 8(b)(l)(A) of the Act. NLRB v. Textile Workers Local 1029, Granite State Joint Board, 409 U.S. 213 (1972) (as to fines). Teamsters Local 298 (Shumacher Electric), 236 NLRB 428 (1978) (as to charges). As to these 37 the issue is ripe for resolution. The complaint, at paragraph 8, alleges as wrongdoing only the issuance of fines and the bringing of charges. During his opening statement, counsel for the General Counsel also indicated that, even as to the class of mem- bers against whom no charges had been filed and, pre- sumably, as to the class of four members against whom charges had been filed but withdrawn, Respondent Local 1374's refusal to admit that it is without legal authority to refuse to process charges against these individuals for their conduct during the strike of 1983 should constitute an additional violation of the Act and/or constitute a factor in any ultimate remedy directed in the case. I do not accept the first part of the argument of the General Counsel as to the as yet uncharged members for two rea- sons.10 First, even though the complaint and the answer were amended to conform to the written stipulation of the parties, the complaint does not contain any explicit allegations of wrongdoing by Respondents of the type described by the General Counsel's theory here. t t Second, the General Counsel is attempting to resolve an issue which is simply not yet ripe. If and when Respond- ent Local 1374 chooses to process charges or otherwise take adverse action against the as yet uncharged mem- bers, an appropriate charge with the Board could then be filed. Accordingly, I will not anticipate such action by Respondents and will not further address the 15 members in the uncharged category. Inasmuch as the charges against four members were withdrawn and the record contains no evidence concerning how far the processing of those charges went, I shall not address the resignation issue as to those members for the same reason. 9 A final individual, Vern Breitenstein, is identified as having crossed the picket line but the record is not clear as to what action, if any, Re- spondents took against him as a result Consideration of his situation will be deferred to the compliance stage of this proceeding 10 As to his second argument, that the issue be addressed in the remedy, the cease-and-desist language contained in Board remedies, and provided herein, meets the needs of these as yet uncharged individuals r i If, as must be assumed given the state of the record and the burden of proof the General Counsel bears on each aspect of his case, the charges were withdrawn before any action was taken by Respondent Local 1374 on them, then these members are in an identical position as those against whom no charges were ever filed MACHINISTS LOCAL 1374 (COLUMBIA MACHINE) b. The validity of the discipline invoked against the 37 members, the General Counsel's futility theory As noted in the case cited, supra, a union may fine members for crossing a picket line but may not fine non- members for such conduct or improperly restrict mem- bers from resigning so that they may engage in such ac- tivity without being fined. The General Counsel here however concedes that the fined individuals were at all relevant times members of Respondents and, save as noted infra as to three individuals, generally made no at- tempt to resign from Respondents. The General Counsel argues that (1) because of the illegally restrictive lan- guage of the constitution, which was stipulated to be known to all fined members at issue herein, and (2) be- cause of the deliberate action of Respondents in reading the restrictive provisions aloud at union meetings, and (3) because of Respondents using Hal] as an example of the application of those restrictive provisions, all members who were fined should be regarded as having construc- tively resigned even though no resignations were submit- ted to Respondents. The General Counsel is relying on the venerable legal doctrine that the law does not require a futile act, i.e., a party is not held to undertake an action if it appears that it would have been futile to undertake that action. The Board has applied the futility doctrine in union fine cases In Carpenters Local 1233 (Polk Construction), 231 NLRB 756 (1977), the administrative law judge, with Board approval, held that two individuals who attempted to resign orally rather than in writing, and thus failed to comply with a specific union regulation requiring written resignations, were not required to meet the written standard when it was clear that compliance with the standard would have produced a rejection by the union in any event. Thus, at 761, the judge found: "Compliance with the specified procedure being a futility, and the law not requiring futile ritual," the case would be decided as if written resignations had been submitted. The instant case differs from Carpenters Local 1233 in that no fined member submitted a resignation of any kind to Respond- ents. Thus, in the instant case the General Counsel wishes to extend the futility doctrine applied in Carpen- ters Local 1233 to a situation where a union is without actual or even constructive notice of the intentions of a particular member or members to resign. Respondents' primary arguments at the hearing and on brief addressed the validity or invalidity of its constitutional provisions and did not address the "futility" argument of the Gener- al Counsel. The General Counsel relies on several factors to sup- port his argument that the futility doctrine should be ap- plied to the instant case. Although the General Counsel tends to string these factors together in the conjunctive, differing situations exist for various members who were fined or who have charges pending against them. These factors will be separately identified below to allow a situ- ation-by-situation consideration of the General Counsel's futility theory. Initially the General Counsel notes that the parties stipulated that all members were aware of the constitu- tional resignation provisions found illegally restrictive supra. Thus there is an initial category of members who 127 had actual knowledge of the language. Second, the Gen- eral Counsel argues that at both the April 30 and July 9, 1984 union meeetings, Respondent Local 1374's agents read aloud the illegal provisions with the admitted inten- tion of discouraging member resignations. Therefore, there is a second category of members who also had the language read to them by Respondent Local 1374. Third, the General Counsel notes that an agent of Respondent Local 1374 at the April 30, 1984 union meeting, using the example of Van Hall as found supra, ridiculed all those members who would attempt to resign from the Union and declared to the attending membership the in- ability and ineffectiveness of such attempts within 14 days of the strike. The third class of members then con- sists of those who were present when Respondent Local 1374 made an example of a fellow member who had at- tempted to resign. Lastly, there is a fourth category of members described by the General Counsel, consisting of only three employees, i 2 who each made to overt at- tempts to leave the Union. The individuals in each category may be specifically identified. A careful examination of the amended com- plaint and answer, as conformed to the stipulation of fact by agreement to the parties as well as the attendance records of the two union meetings, reveals that certain members attended the April 30, 1983 union meeting and heard Respondent Local 1374's agents remarks concern- ing Van Hall and the futility of his attempting to aban- don the union. Others attended the July 9, 1983 meeting but not the April 30, 1983 meeting, thus those members heard the provisions of the constitution read but were not exposed to the vituperation directed at Hall in April. Other members attended neither the April 30 nor the July 9, 1983 union meeting. The different knowledge, experience, and actions of the members in these various classes require separate treatment under the General Counsel's futility argument. First, with respect to the individuals who made actual at- tempts to sever their relationship with Respondents, which attempts were rebuffed, I find the holding in Car- penters Local 1233 (Polk Construction Co.), 231 NLRB 756 (1977), supra, conclusive Thus I find that members Bozarth, Hall, and Maier must be regarded as having at- tempted to resign from the Union Having made that finding, and in conjunction with my previous finding that the restrictions on resignation contained in Respond- ents' governing documents are illegal, I find that Re- spondent Local 1374 by fining Bozarth, Hall, and Maier violated Section 8(b)(1)(A) of the Act. Considering those employees who attended the April 30, 1983 union meeting at which Respondent Local 1374 used Hall as an example, as noted supra, I find, consist- ent with the credible testimony of the eight individuals who attended that meeting, that Respondent Local 1374's conduct reasonably created in the minds of those who attended, and in fact created in the minds of the 12 The class is comprised of members Wallace Maier, Charles Bozarth, and Van Hall Hall 's efforts to withdraw were described at the April 30, 1984 union meeting Bozarth testified credibly to his attempts to resign Maier, according to Respondent Local 1374's business records, attempted to leave the Union on July 31, 1983 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eight individuals who testified, the impression that it would be futile for members to attempt to resign from Respondents in a manner inconsistent with the provisions of the constitution found illegal supra Accepting the General Counsel's futility argument as to these individ- uals, 13 I find that it was unnecessary for members in this class to attempt to resign from Respondents and, for pur- poses of this proceeding, such an attempt will be pre- sumed to have been made and rejected by Respondents as to each of the members who attended the April 30, 1983 union meeting.' 4 This being the case it again fol- lows that Respondent Local 1374, by processing charges and/or fining these members for returning to work at a time when their constructive resignations should have been honored, violated Section 8(b)(1)(A) of the Act. With respect to the class of members who attended only the July 9, 1983 union meeting and did not attend the April 30, 1983 union meeting, the issue is far closer. These individuals were not exposed to Respondent Local 1374's attack on Hall because of his earlier attempt to withdraw from the Union. Further, there was no testi- mony from any employee in this class, i e., those who at- tended the July 30, 1983 meeting without either previ- ously attempting to withdraw from the Union or attend- ing the April 30, 1983 union meeting, concerning their subjective views about the efficacy of resignation. As to the members of this class Respondent Local 1374 did no more than read them the constitutional provisions found illegal supra, albeit with the admitted intention to dis- courage attempted resignations. Without specific testimo- ny from particular members regarding their subjective state of mind and without any other evidence that these members were aware of any actions by Respondents other than the maintenance and publication of the rule found illegal supra, I am unable to conclude that those members who attended the July 9, 1983 union meeting refrained from attempting to resign from Respondents because of a belief such an attempt would be futile. Ac- cordingly, I decline to find, as to the two members in this class,15 that they omitted to resign from Respond- ents as the result of a reasonably formed impression that it would be futile to do so. Accordingly, I find for pur- poses of the instant analysis that these individuals re- mained, members of Respondents during the times they crossed the picket line and returned to the Employer's employ. Accordingly, it was not a violation of Section 8(b)(1)(A) of the Act for Respondent Local 1374 to fine or otherwise discipline them. Thus, as to these individ- 13 The standard to be met, as counsel for the General Counsel conced- ed in his opening statement , is whether ( 1) the member in fact had a sub- jective belief that it would be futile to attempt to resign and (2) whether the subjective belief could fairly be attributed to Respondents as having resulted from their improper conduct Eight witnesses credibly testified that because they attended the April 30, 1983 union meeting they came to hold the view the resignation would be a futility Given this credible tes- timony I draw the inference that the others who attended this meeting and thereafter crossed the picket line without attempting to resign were also of the same view I find the making of an example of Hall would reasonably have had that effect on the observing members Further, it is clear from the specifics of the April 30, 1983 meeting, as described supra, that Respondent Local 1374 intended to chill resignation activity and is responsible for the impresssion formed by attending members 14 See listed members in Appendix I, subsec (b). 11 See listed members in Appendix I, subset (c) uals I find Respondent Local 1374 did not violate the Act and I shall dismiss the complaint as to them. The analysis immediately above concerning those who attended only the July 9, 1983 union meeting applies with at least equal force to those seven members who at- tended no union meetings whatsoever.' e As to this class it is only the members' knowledge of the illegal constitu- tional provisions which the General Counsel can offer in support of his futility theory. That fact is insufficient to support either an inference that the members believed resignation was futile or a finding that Respondents could be accountable for such a belief had it existed. Were the mere existence of the constitutional provisions sufficient to support a finding that any member who knew of the provision held the belief that it was futile to resign his or her membership and that this belief was caused by Respondents, then any union which main- tained such an illegal clause would completely lose the ability to fine or otherwise discipline its members who cross picket lines. The Board and court cases cited, supra, including the Board in Machinists Local 1414 (Neufeld Porsche-Audi), supra, 270 NLRB 1330 (1984), the latest case on the issue, recognize that unions have legitimate interests in maintaining strike solidarity and protecting the interests of employees who desire to con- tinue a strike. To hold that the mere existence and member knowledge of an illegal provision regarding res- ignation during a strike destroys a union's ability to disci- pline members who have made no attempt to resign is unreasonble and unsound. I decline to so find. Thus, I find that the members who did not attend any union meetings or directly attempt to resign may not be held to have constructively attempted to resign their member- ship under the General Counsel's futility doctrine. Having found that these members were therefore current members of Respondents at the time they crossed Re- spondents' picket line and returned to work for the Em- ployer, I find that the ensuing processing of charges and meting out of discipline by Respondent Local 1374 does not violate Section 8(b)(1)(A) of the Act The complaint shall be dismissed as to these individuals. REMEDY Having found that Respondents engaged in certain unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I shall order that they cease and desist there- from and take certain affirmative action necessary to ef- fectuate the policies of the Act. On the basis of the au- thorities cited, supra, I shall also order Respondents, and each of them, to cease and desist from maintaining the constitutional restriction on resignations found invalid and to expunge these provisions from their governing documents. I shall further direct that Respondent Local 1374 vacate, rescind, and expunge from all their records all references to union charges, notices of hearing, hear- ings, fines, or other disciplinary records against the indi- viduals listed in Appendix I, Subsections (a) and (b) for all discipline resulting from charges based on member conduct during the 1983 strike against the Employer, 16 See listed members in Appendix I, subsec (d) MACHINISTS LOCAL 1374 (COLUMBIA MACHINE) when such employees were prevented from resigning from the Union as a result of Respondents' improper cre- ation of the impression among members that it would be futile to attempt to resign from Respondents or that said resignation would be without force and effect to avoid fines or other discipmary action by Respondents. On the foregoing findings of fact and the entire record herein, I make the following CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondents are, and each of them is, labor organi- zations within the meaning of Section 2(5) of the Act. 3 By maintaining , enforcing , and publicizing the fol- lowing constitutional restriction on membership resigna- tions, Respondents have violated Section 8(b)(1)(A) of the Act: The following actions or omissions shall constitute misconduct by a member which shall warrant a rep- rimand, fine, suspension and/or explusion from membership, or any lesser penalty or any combina- tion of these penalties as the evidence may warrant after written and specific charges and a full hearing as hereinafter provided: . . . Accepting employment in any capacity in an estab- lishment where a strike or lockout exists as recog- nized under this Constitution , without permission. Resignation shall not relieve a member of his obli- gation to refrain from accepting employment at the establishment for the duration of the strike or lock- out if the resignation occurs during the period of the strike or lockout or within 14 days preceding its commencement . Where observance of a primary picket line is required, any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained, nor shall it re- lieve a member of his or her obligation to observe the primary picket line for its duration 4. By reading the quoted provisions at union meetings on March 30 and July 9, 1983, Respondent Local 1374 violated Section 8(b)(1)(A) of the Act 5. By processing charges against, directing and holding hearings involving, and imposing fines and discipline against members who would have resigned their mem- bership but for Respondent Local 1374's reiteration of the binding nature of the illegal restrictions on member- ship resignations contained in Respondents' governing rules and regulations quoted supra , Respondent Local 1374 violated Section 8(b)(1)(A) with respect to the fol- lowing employees during and immediately following the 1983 strike against the Employer: Ben Beaird Wallace Maier Charles Bozarth David D Michael Donna Cahoon Joseph Murray Edward Cloud David Myers Brian Curtin Willie DeLong Raymond Frohs Daniel Galbreath Louis Gargaro William Gilmore Van Hall Leslie Holland Scott Hutton Otto Lee 129 William Naumann Gary Nelson Thelma Roberston David Rodgers Richard Sampson Gary Skucas Dayton Smith Bruce Utto Lloyd Ward i David Wetsch 6. Respondents did not otherwise violate the Act On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed'7 ORDER A. Respondent International Association of Machinists ,and Aerospace ^ Workers, its officers, agents, and repre- sentatives, shall 1. Cease and desist from I (a) Instituting, maintaining, publishing , or enforcing its constitutional provision article L, section 3, to the extent it provides: The following actions or omissions shall constitute misconduct by a member which shall warrant a rep- rimand, fine, suspension and/or explusion from membership, or any lesser penalty or any combina- tion of these penalties as the evidence may warrant after written and specific charges and a full hearing as hereinafter provided:. . . . Accepting employment in any capacity in an estab- lishment where a strike or lockout exists as recog- nized under this Constitution, without permission. Resignation shall not relieve a member of his obli- gation to refrain from accepting employment at the establishment for the duration of the strike or lock- out if the resignation occurs during the period of the strike or lockout or within 14 days preceding its commencement Where observance of a 'primary picket line is required , any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained, nor shall it re- lieve a member of his or her obligation to observe the primary picket line for its duration (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act (a) Rescind from its governing documents constitution- al article L, section 3, as set forth above and notify all of 17 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 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its members of this action by publication of this fact in the same manner that other constitutional changes are communicated to members. (b) Post at its offices and at the offices of Respondent Local 1374 copies of the attached notice marked "Ap- pendix II."18 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by Respondents' authorized representative, shall be posted by Respondent International immediately upon receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to members are customarily posted Reasonable steps shall be taken by Respondent International 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 in Appendix II for posting by the Employer, if willing, at all places where notices to em- ployees are customarily posted. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent International has taken to comply. B Respondent International Association of Machinists and Aerospace Workers Local Lodge No. 1374, AFL- CIO shall 1. Cease and desist from (a) Maintaining in its governing documents, article L, section 3 of the constitution of the International Associa- tion of Machinists and Aerospace Workers to the extent it provides: The following actions or omissions shall constitute misconduct by a member which shall warrant a rep- rimand, fine, suspension and/or explusion from membership, or any lesser penalty or any combina tion of these penalties as the evidence may warrant after written and specific charges and a full hearing as hereinafter provided.. . . Accepting employment in any capacity in an estab- lishment where a strike or lockout exists as recog- nized under this Constitution, without permission. Resignation shall not relieve a member of his obli- gation to refrain from accepting employment at the establishment for the duration of the strike or lock- out if the resignation occurs during the period of the strike or lockout or within 14 days preceding its commencement. Where observance of a primary picket line is required, any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishments, shall not become effective as a resignation during the period the picket line is maintained, nor shall it re- lieve a member of his or her obligation to observe the primary picket line for its duration. 18 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 " - (b) Reading the quoted language at union meetings and/or suggesting these provisions are valid and will prevent resignation (c) Restraining or coercing members in the exercise of the rights guaranteed them by Section 7 of the Act, by processing charges, directing and holding hearings, and imposing court collectible fines and other discipline on the following members because of their actions in work- ing for the Employer during the strike in 1983 at a time when they would have resigned from Respondents but for Respondents' maintainence and publicizing of the provisions quoted above- Ben Beaird Charles Bozarth Donna Cahoon Edward Cloud Brian Curtin Willie DeLong Raymond Frohs Daniel Galbreath Louis Gargaro William Gilmore Van Hall Leslie Holland Scott Hutton Otto Lee Wallace Maier David D. Michael Joseph Murray David Myers William Naumann Gary Nelson Thelma Robertson David Rodgers Richard Sampson Gary Skucas Dayton Smith Bruce Utto Lloyd Ward David Wetsch (d) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Rescind from its governing documents the lan- guage of article L, section 3, of the International Asso- ciation of Machinists and Aerospace Workers constitu- tion set forth above and notify all members that it has done so in the same manner that it communicates other changes in its governing regulations. (b) Vacate, rescind, dismiss, and expunge from its records all notices of hearing, minutes of hearings, an- nouncements of discipline, and fines levied against the listed members because they returned to work at Colum- bia Machine, Inc in Vancouver, Washington, during the strike in 1983 and notify each member in writing that all records with respect to these actions have been rescinded and that outstanding charges will be summarily dis- missed. (c) Post at its headquarters and at the business office and meeting halls of Local 1374 copies of the attached notices marked "Appendix II" and "Appendix III."19 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by Respond- ents' authorized representative, shall be posted by the Respondent Local 1374 immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent Local 1374 to ensure that the notices are not altered, defaced, or covered by any other material. 19 See fn 18 above MACHINISTS LOCAL 1374 (COLUMBIA MACHINE) (d) Sign and return to the Regional Director sufficient copies of the notice in Appendix III for posting by Co- lumbia Machine, Inc., if willing, at all places where no- tices to employees are customarily posted. (e) Notify the Regional Director within 20 days from the date of this Order what steps Respondent Local 1374 has taken to comply. APPENDIX I MEMBERS WHO RETURNED TO WORK WITHOUT RESIGNING THEIR MEMBERSHIP' I. Members who are fined or who have outstanding notices of hearing directing disciplinary trials (a) Members who attempted to resign Charles Bozarth Van Hall Wallace Maier (b) Members who attended union meeting of April 30, 1983. Ben Beaird Joseph Murray Donna Cahoon David Myers Edward Cloud William Naumann Brian Curtin Gary Nelson Willie DeLong Thelma Robertson Raymond Frohs David Rodgers Daniel Galbreath Richard Sampson Louis Gargaro Gary Skucas William Gilmore Dayton Smith Leslie Holland Bruce Utto Scott Hutton Lloyd Ward Otto Lee David Wetsch David D. Michael (c) Members who attended only union meeting of July 9, 1983 David D. Michael Thomas Stapleton (d) Members who attended no union meetings (excluding members listed in I(a)) supra: Theodore Kramer Kurt Sinclair Bruce Lloyd Reuben Swetzig Michael Miller Terry Williams Phillip Mixer II. Members who have never been charged. Richard Cook Wallace Gill Larry Hoover Duane Kinart Eddie Lock Frank McAllister Clark McConnel Elwin Mathiesen John Raff Donald Robertson Glenn Schmitke Floyd Sheppler Mark Stanley Frank Tabor Richard Walker III Members against whom charges were filed but withdrawn- See fn 9 , as to Vern Breitenstein Scott McIntosh Todd Quast Douglas Neth William Roth APPENDIX II NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 131 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 institute, maintain, publish, or enforce article L, section 3, of the constitution of the Internation- al Association of Machinists and Aerospace Workers to the extent that it provides: The following actions or omissions shall constitute misconduct by a member which shall warrant a rep- rimand , fine, suspension and/or explusion from membership , or any lesser penalty or any combina- tion of these penalties as the evidence may warrant after written and specific charges and a full hearing as hereinafter provided: . . Accepting employment in any capacity in an estab- lishment where a strike or lockout exists as recog- nized under this Constitution , without permission. Resignation shall not relieve a member of his obli- gation to refrain from accepting employment at the establishment for the duration of the strike or lock- out if the resignation occurs during the period of the strike or lockout or within 14 days preceding its commencement. Where observance of a primary picket line is required , any resignation , tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained , nor shall it re- lieve a member of his or her obligation to observe the primary picket line for its duration WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL rescind from our governing documents the portion of the article L, section 3 of our constitution set forth above. INTERNATIONAL ASSOCIATION OF MACHIN- ISTS AND AEROSPACE WORKERS APPENDIX III 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. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT institute, maintain , publish, or enforce our governing document, article L, section 3, of the con- stitution of the International Association of Machinists and Aerospace Workers to the extent it provides, The following actions or omissions shall constitute misconduct by a member which shall warrant a rep- rimand, fine, suspension and/or explusion from membership, or any lesser penalty or any combina- tion of these penalties as the evidence may warrant after written and specific charges and a full hearing as hereinafter provided . . . . Accepting employment in any capacity in an estab- lishment where a strike or lockout exists as recog- nized under this Constitution, without permission Resignation shall not relieve a member of his obli- gation to refrain from accepting employment at the establishment for the duration of the strike or lock- out if the resignation occurs during the period of the strike or lockout or within 14 days preceding its commencement Where observance of a primary picket line is required, any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained, nor shall it re- .lleve a member of his or her obligation to observe ,the primary picket line for its duration. WE WILL NOT restrain or coerce members who would have resigned from, and therefore no longer be members of, International Association of Machinists and Aero- space Workers Local Lodge No. 1374 except for the ex- istence of the improper restriction on resignation quoted above and our publication and exemplication of those re- strictions 'at union meetings, by processing internal union disciplinary charges against them, holding hearings on those charges, and imposing court collectible fines and WE WILL NOT restrain or coerce members publicizing the improperly restrictive language quoted above at union meetings in order to discourage members from at- tempting to resign their membership so that they may without fine or other discipline return to work at em- ployers against whom the Union is on strike. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL rescind the portions of article L, section 3, of the constitution of the International Association of Machinists and Aerospace Workers set forth above. WE WILL vacate, rescind, and expunge from our records all notices of hearing, minutes of hearings, an- nouncements of discipline, and fines levied against the following individuals because they returned to work at Columbia Machine, Inc. in Vancouver, Washington, during the strike in 1983 and WE WILL notify each indi- vidual in writing that all actions and records with re- spect to these actions have been rescinded and that out- standing charges will be summarily dismissed: Ben Beaird Charles Bozarth Donna Cahoon Edward Cloud Brian Curtin Willie DeLong Raymond Frohs Daniel Galbreath Louis Gargaro William Gilmore Van Hall Leslie Holland Scott Hutton Otto Lee Wallace Maier David D Michael Joseph Murray David Myers William Naumann Gary Nelson Thelma Robertson David Rodgers Richard Sampson Gary Skucas Dayton Smith Bruce Utto Lloyd Ward David Wetsch other discipline on such members because of their con- INTERNATIONAL ASSOCIATION OF MACHIN- duct in returning to work at Columbia Machine, Inc. at ISTS AND AEROSPACE WORKERS, LOCAL Vancouver, Washington , during the strike of 1983. LODGE 1374, AFL-CIO