Local 73, Sheet Metal Workers International Association And Sheet Metal Workers International Association, Afl-Cio

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 73, Sheet Metal Workers International Asso- ciation and Sheet Metal Workers International Association, AFL-CIO and Safe Air, Inc. Case 13-CB-10517 26 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Employer 16 Febru- ary 1984 and an amended charge filed 6 March 1984, the General Counsel of the National Labor Relations Board issued a complaint 21 March 1984 against the Respondent Local and the Respondent International alleging that they have violated Sec- tion 8(b)(1)(A) of the National Labor Relations Act. The complaint alleges that commencing about 30 January 1984 the Respondents have established and maintained a picket line at the Company's plant. It also alleges that since about 30 January 1984 the Respondents have maintained a provision in the Constitution and Ritual of the Sheet Metal Work- ers International and affiliated unions which states: "No resignation shall be accepted if offered in an- ticipation of charges being preferred against him, during the pendency of any such charges or during a strike or lockout." The complaint alleges that by maintaining this provision the Respondents have violated Section 8(b)(l)(A). On 30 May 1984 the parties jointly moved the Board to transfer the instant proceeding to the Board, without benefit of a hearing before an ad- ministrative law judge, and submitted a proposed record consisting of the formal papers and the par- ties' stipulation of facts with attached exhibits. On 7 August 1984 the Associate Executive Secretary, by direction of the Board, issued an order granting the motion, approving the stipulation, and transfer- ring the proceeding to the Board. Thereafter, the General Counsel and the Respondents filed briefs. On the entire record in the case, the Board makes the following FINDINGS OF FACT 1. JURISDICTION The Employer, an Illinois corporation, has been engaged in the business of manufacturing fire and smoke dampers for installation in duct work. During the past calendar or fiscal year, the Em- ployer, in the course and conduct of its business operations, has shipped goods and materials valued in excess of $50,000 from its Chicago, Illinois plant to points located outside the State of Illinois. We find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We further find that the Respond- ents, Local 73, Sheet Metal Workers International Association and Sheet Metal Workers International Association, AFL-CIO are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICE The issue presented is whether the Respondents have violated Section 8(b)(1)(A) by maintaining a provision in the International's constitution which states: "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." A. Facts Respondent Local 73, Sheet Metal Workers International Association, and the Employer were parties to a series of collective-bargaining agree- ments, the most recent of which was effective from 1 January 1983 until 31 December 1983. Commenc- ing about 30 January 1984 the Respondents, Local 73, Sheet Metal Workers International Association and Sheet Metal Workers International Associa- tion, AFL-CIO, jointly and severally have estab- lished and maintained a picket line at the Compa- ny's Chicago, Illinois plant. Since 30 January 1984 the Respondents jointly and severally have maintained a provision in article 16, section 13 of their International Constitution and Ritual pertaining to union membership which states: "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." B. Contentions of the Parties The General Counsel urges the Board to find a violation relying on the Board's decision in Ma- chinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984). In Neufeld, the Board held that "any restrictions placed by a union on its members' right to resign . . . are unlawful." The Board then found that the respondent local violated Section 8(b)(1)(A) by imposing a fine on an employee for returning to work during the strike after he re- signed his membership in the union. The Respondents argue that Neufeld and its progeny, Machinists Local Lodge 1769 (Dorsey Trailers), 271 NLRB 911 (1984), are inapplicable here because those cases involved the enforcement of provisions limiting resignations from union mem- bership by imposing a fine on resigning members whereas this case involves the mere maintenance of provisions limiting resignations. In addition, the 274 NLRB No. 54 SHEET METAL WORKERS LOCAL 73 (SAFE AIR) Respondents argue that the amended charge in this case adding the International as a party is barred by Section 10(b) of the Act because there is no evi- dence that the Respondent reaffirmed or lived up to the clause within the 6-month period preceding the filing of the charges. See Teamsters Local 753 (Pure Milk Assn.), 141 NLRB 1237, 1241 (1963); Electrical Workers IBEW Local 6 (Chronicle Broad- casting), 257 NLRB 573, 574-575 (1981). C. Discussion We agree with the General Counsel that the Re- spondents' maintenance of the provision restricting a union member's right to resign violated Section 8(b)(1)(A) of the Act. In doing so, we rely on our decision in Neufeld in which we held that "any re- strictions placed by a union on its members' right to resign . . . are unlawful." We further held in Dorsey that "a union may not lawfully restrict the right of its members to resign or otherwise refrain from protected Section 7 activities." We find it insignificant that there is no evidence here that the provision restricting resignation was enforced or that any fine was collected from union members as in Neufeld and Dorsey. The provision here is similar to the one in Engineers & Scientists Guild (Lockheed-California), 268 NLRB 311 (1983). In Lockheed, we found that the mere maintenance of a similar constitutional provision prohibiting withdrawal from union membership during an au- thorized work stoppage restrained and coerced em- ployees from exercising their Section 7 rights be- cause employees who wanted to resign might have been discouraged from doing so by the constitu- tional provision. We find the same risk present here. We acknowledge that the majority of cases de- cided by the Board after Neufeld involved allega- tions of 8(b)(1)(A) violations arising in the context of the imposition of fines against employees who resigned their union memberships to cross the picket lines. However, in Newspaper Guild Local 3 (New York News), 271 NLRB 1251 (1984), we spe- cifically found that the respondent violated Section 8(b)(1)(A) by maintaining a provision in the consti- tution prohibiting resignations during a strike or lockout. Since the Respondents in this case have maintained a similarly restrictive provision, we find that by such conduct they violated Section 8(b)(1)(A). Nor was our holding in Neufeld meant to be lim- ited to restrictions on resignation during a strike or lockout. Rather, we pronounced clearly that any restrictions on resignations from unions were in- valid, and that would include all of the periods of restriction set out in the Respondents' rule here. 375 Therefore, we find that the entire provision here as it pertains to restrictions on resignations is invalid. Our remedies in Neufeld and its progeny 1 have ordered the respondents to cease and desist from maintaining the restrictions found invalid. Further, in these cases we have ordered the respondents to expunge the provisions from the governing docu- ments. We shall do the same here.2 We also find the limitations under Section 10(b) of the Act inapplicable in this situation. As dis- cussed above, the provision of the International's constitution is unlawful on its face because it re- stricts resignations. Therefore, the continued main- tenance or adherence to the clause constitutes an unfair labor practice continuing up to and even after the filing of the charge and the complaint. See Saxon Enterprises, supra; Prestige Bedding Co., 212 NLRB 690, 698 (1974). CONCLUSIONS OF LAW 1. Safe Air, Inc., Chicago, Illinois, is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondents are labor organizations within the meaning of Section 2(5) of the Act. 3. By maintaining in the International's constitu- tion the restriction-on-resignations provision set forth above, the Respondents restrained and co- erced employees in the exercise of the rights guar- anteed them by Section 7 of the Act, and thereby engaged in, and are engaging in, an unfair labor practice within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. REMEDY Having found that, the Respondents have en- gaged in an unfair labor practice in violation of Section 8(b)(1)(A) of the Act, we shall order that they cease and desist and take certain affirmative action designed to effectuate the policies of the Act. We shall order that the Respondents expunge from the Constitution and Ritual of the Sheet Metal Workers International Association and their governing documents those portions of article 16, section 13, concerning membership withdrawal I Painters Local 64 (Saxon Enterprises), 273 NLRB 13 (1984); Bricklay- ers Local 17 (California Tile), 271 NLRB 1571 (1984), New York News, supra, Dorsey, supra 2 Consistent with her position in fn 22 of Neufeld and subsequent cases, Member Dennis would not order the Respondent Local to "ex- punge" a provision appearing in the International 's constitution, but in- stead would order the Respondent Local to notify its members in writing that it will not enforce the resignation restriction 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which state: "No resignation shall be accepted if spondents to ensure that the notices are not altered, offered in anticipation of charges being preferred defaced, or covered by any other material. against him, during the pendency of any such (c) Notify the Regional Director in writing charges or during a strike or lockout." within 20 days from the date of this Order what ORDER The National Labor Relations Board orders that the Respondents, Local 73, Sheet Metal Workers International Association and Sheet Metal Workers International Association, AFL-CIO, their officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining in their governing documents and constitution those portions of article 16, section 13, of the constitution reading: "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." (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Expunge from their governing documents and constitution those portions of article 16, section 13, of the constitution which restrict resignations from the Union. (b) Post at their business offices and other places where notices to their members are customarily posted copies of the attached notice marked "Ap- pendix."3 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondents' authorized repre- sentative, shall be posted by the Respondents im- mediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- steps the Respondents has taken to comply. of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain in our governing docu- ments and constitution those portions of article 16, section 13, of the constitution reading: "No resigna- tion 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." 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 expunge from our governing docu- ments and constitution those portions of article 16, section 13, of the constitution which restrict resig- nations from the Union. LOCAL 73, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION AND SHEET METAL WORKERS INTERNA- TIONAL ASSOCIATION, AFL-CIO 3 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