Machinists Local 758 (Menasco, Inc.)

MACHINISTS LOCAL 758 (MENASCO, INC.) Local Lodge 758, International Association of Ma- chinists and Aerospace Workers and Menasco, -Inc. Cases 31-CB-3971 and 31-CB-4221 24 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 March 1985 Administrative Law Judge Michael D. Stevenson issued the attached decision. The Respondent 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 as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Local No. 758, International Association of Machinists and Aerospace Workers, Burbank, California, its officers, agents, and representatives, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(c). "(c) 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. Substitute the following for paragraph 2(b). "(b) Expunge from its files and records all refer- ences to fines, intraunion charges, or disciplinary proceedings directed against the employees named in paragraph 2(c) of the judge's recommended Order because of their- postresignation work for Menasco during the strike that began on 31 May 1979." 3. Substitute the attached notice for that of the administrative law judge. i The General Counsel has excepted to some of the ,fudge's credibility findings The Board's established policy is not to overrule an admuustra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings At the hearing the parties orally stipulated that the return-to-work dates for employees Opaczke and Sanchez were 28 April 1980 and March 1980, respectively We correct the decision to reflect the parties' oral stipulation 2 The judge failed to limit the refund portion of the remedy and par 2(b) of the recommended Order to fines levied against individuals for their postresignation conduct We correct these inadvertent errors The judge provided broad injunctive language without explanation. We narrow the cease-and-desist order to accord with our normal prac- tice Member Dennis adheres to the position she set forth in Machinists Local 1414 (IVeufeld Porsche-Audi), 270 NLRB 1330, 1336 (1984) APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 755 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT maintain in our governing docu- ments article I, section 3, lines 4-10 and 27-41, of the International Association of Machinists and Aerospace Workers constitution which reads as follows: SEC. 3. The following actions or omissions shall constitute misconduct by a member which shall warrant a reprimand, fine, suspen- sion and/or expulsion from membership, or any lesser penalty or any combination 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 establishment -where a strike or lockout exists as recognized under this Constitution, without permission. Resignation shall not 'relieve a member -of his obligation to refrain from ac- cepting employment at the establishment for the duration of the strike or lockout if the res- ignation occurs during the period of the strike or lockout or within 14 days preceding its commencement. Where observance of a pri- mary picket line is required, resignation shall not relieve a member of his obligation to ob- serve the primary picket line for its duration if the resignation occurs during the period that the picket line is maintained or within 14 days preceding its establishment. WE WILL NOT restrain or coerce employees who have resigned from, and are no longer members of, our organization in the exercise of the rights guar- anteed them by Section 7 of the Act by trying, convicting, and, imposing court-collectible fines on them because of their postresignation conduct in working at Menasco, Inc. during the strike that began about 31 May 1979. 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 article I, section 3, lines 4-10 and 27-41 of the International Association of Machinists and Aerospace Workers constitution set forth above. 275 NLRB No. I11 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL rescind the fines levied against the fol- lowing persons because of their postresignation work for Menasco, Inc. during the. strike that began about 31 May 1979 and refund to them any money they may have paid as a result of the fines, plus interest: Boris Barishman Johnny Thompson Kenneth Bertino Dallas Wheeler Reynaldo Bustos ' 'Sergio Estrada' Humberto 'de las Casas George Rabi Boleslaw Dobrucki 'Jose Polanco Carmen Dominick Joseph Parkhurst John Fiori James Hawk Leslie Fuzesi Herbert Brown Arthur'Hugues Ronald Tobin William Kennedy Elco Gomez Richard Kert Sal Acosta Louis Lopez' Juan Ortega Marshall Lundgren Jorge Pelaez Carlos Moyano Enrique Huereca Laslb Opoczki , Mildred Clancy S. Peredes G. Hahn . - H. Redderson Oscar Hincapie F. Rodriguez - 'J. Horvath ' - Otto Roemer Carlos Lopez Nicholas Saber ' C. Mucic ' ' Raul Salitrero R. Reza Dennis Sanchez A. 'Salvidar ' "- Paul Shih Wayne Waterfield Emil Stor'ck WE WILL. notify, all employees ,named above in writing,that.we are treating their resignations as ef- fective at the time. we received them and.that WE WILL '_NOT take any further disciplinary - action against -them for conducts after we received, their resignation. WE WILL expunge from our files and records all reference to fines, intraunion charges,- or discipli= nary proceedings against the above-named' employ- ees 'for conduct occurring after their" resignation from the Union, and notify them • in writing that this 'had been done. i LOCAL LcpdE ,, No. _ ,758, INTERNA- ,TIONAL ASSOCIATION} ,OF, MACHINIST _ S . ? AND ,AEROSPACE WORKERS , _ , • ;; - _ 1,. tr.DECISIONe c~ STATEMENT 'OF THE CASE" V 111 MICHAEL D. STEVENSON,:Administratlve, Law-Judge, This case was tried before me at Los Angeles,,Califomia, on October 2, 3, 4, and 30, 1984,1 pursuant to an order 1, All dates herem refer to 1980 unless otherwise indicated • -- consolidating cases, consolidated complaint and notice of hearing issued by the Regional Director for the National Labor Relations Board for Region 31 on June 13, 1984, and which is based on a charge filed by Menasco, Inc. (the Employer) on November 3 (Case 31-CB-3971) and May 28, 1981 (Case 31-CB-4221). The complaint alleges that Local Lodge 758, International Association of Ma- chinists and Aerospace Workers (the Union or Respond- ent) has engaged in certain violations of Section 8(b)(1)(A) of the National Labor Relations Act. Issues Whether Respondent, subsequent to receiving resigna- tions from certain of its members, instituted, prosecuted, and enforced, by court-collectible fines, internal union disciplinary proceedings against the same members, who were also employees of Menasco, Inc., for abandoning a strike against Menasco and returning to work and, if so, whether Respondent thereby violated the Act. Alternatively, whether Respondent sufficiently advised certain of its members of the existence of a provision of the Union's constitution, restricting members' right to resign during a strike and 14 days before the strike began, so that employee-members could be properly dis- ciplined for preresignation conduct in violation of the provision. All parties were, given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue, orally, and to file briefs.. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Charging Party, and Re- spondent.2 On the entire record of the case, and from my obser- vation of the, witnesses and their demeanor, I make the following. FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent 'admits that Menasco, Inc. is a California corporation engaged in the business of manufacturing air- craft landingigear and having a plant located in Burbank, California.` It- further admits that, during the past year, in the course' ands conduct of its business it has sold and sent goods or services valued in excess of $50,000 direct- ly to customers located outside the State of California. It further admits that, in the course and conduct of its busi- ness .operations,' it annually derives gross revenues in excess of,$500,000. Accordingly, I:find that it is an em= ployer - engaged , in commerce and in a business affecting 2 I am'pu2zled by the'bieviiy of Respondent's brief Not only did it fail to address itself to Board law, 'on the primary issues in the'case, but also failed to discuss certain other issues about which much had been said during hearing ,For"example, (1) the statute of limitations issue allegedly affectiiig`one or more 'of the employees added to the case'by' amendment of the complaint-(G'C' Exh 7), (2) the effect, if any; of employee witness names appearing ona telegram appealing the Union's discipline, -prepared by employees' attorney, when certain provisions of the telegram were in- accurate, and (3) alleged interference by the Employer 's personnel de- partment in union affairs So far as I am concerned , these issues have been abandoned Cf Larkin Co v'Plumbers Local-53, 338 F 2d 335 (1st Cir 1964), cert denied 380 U S 975 (1965) MACHINISTS LOCAL 758 (MENASCO, INC.) commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that it is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A.-The Facts About May 31, 1979, Respondent instituted a strike -against Menasco. At this time the collective-bargaining unit contained approximately 480 members. At first, many members performed picket duty of a few hours a week, and in some cases secured jobs with nonstruck em- ployers. As the strike continued, however, many mem- bers decided to abandon the strike, cross the picket line, and return to Menasco. The General Counsel presented 33 witnesses in this category. A few purported to resign from the Union first and then return to work. Most, however, returned to work, and then within a few days, weeks, or in some cases, even months, purported to resign from the Union. Among other issues to be discussed are the employees' knowledge of the restrictions on resigning from the Union, the validity of the member resignations, and the propriety of the union discipline which was uniformly imposed on the General Counsel's witnesses. Charged with violating a provision of the Union's Constitution, the employee-witnesses were each tried, convicted, and fined $1000 plus $10 per day for each day the person continued in alleged violation of the Union's constitution (G.C. Exh. 8). No employee contested the charges brought against him or her, or even appeared before the Union's 'teal board. The convictions were based on al- leged violation of article 1, sec. 3 of the Union's constitu- tion. The provision in pertinent part reads as follows (G.C. Exh 2): Sec. 3. The following actions or omissions shall constitute misconduct by a member which shall warrant a reprimand, fine, suspension and/or expul- sion from membership, or any lesser penalty or any combination 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 es- tablishment where a strike or. lockout exists as rec- ognized 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, resignation shall not relieve a member of his obligation to observe the primary picket line for its duration if the resignation occurs during the period that the picket line is maintained or' within 14 days preceding its establishment. 757 ' Prior to the commencement of the strike a number of specially called union meetings were held to discuss ne- gotiations, the Company's proposals, and the possibility .of strike. It appears that the last of the prestrike meetings was held on the evening of May 30, 1979. The attendees voted by secret ballot to reject the Company's final offer and commence a strike at, 12:01 a.m. on May 31, 1979. One or two other meetings were held, each about 2 to 4 weeks prior to the last meeting before the strike. Here again, issues relating to negotiations were discussed. Al- legedly, mention was made in an early May meeting of the Union's restriction on resigning from the Union. All meetings were conducted in English only. Many mem- bers either did not speak English or did not understand the language fully. This was primarily true for Spanish- speaking members. Approximately six of the General Counsel's witnesses required an interpreter at hearing in order to translate English into Spanish. On some occa- sions after a meeting had concluded, the Spanish-speak- ing members would meet privately and informally with two bilingual union officials, Frank Placencia or Eloy Salazar. During the postmeeting gatherings, one or both of the union officials would allegedly summarize in Span- ish the significant aspects of the concluded meeting. Pla- cencia testified at hearing but Salazar did not. Many other witnesses had hearing impairments rang- ing from moderate to severe. Whether this was due to aging or work impairments could not be ascertained. However, these factors are relevant in ascertaining what may have occurred in the specially-called union meetings prior to the strike and the awareness of the witnesses of these events. In their testimony, the General Counsel's witnesses were not always certain of the dates of the specially called meetings, whether they attended all or any of them, or exactly what was discussed. However, on cer- tain points, all the General Counsel's witnesses agreed: First, as to the meetings, no' member was reminded- of the Union's constitution in general or the section quoted above restricting members' right to resign during a strike and 14 days before a strike began; further, no member was told that if he did cross the picket line before the strike was over, and return to work, the would be subject to union discipline including fines. Second, as to the Union's constitution, most witnesses denied ever having been given a copy, ever seeing a copy, and in most in- stances even knowing that such a document existed. In Respondent's case, evidence was presented to show that the' Union's business office contained in plain view piles of union constitutions' available to members either for free or at a 'nominal cost. Other evidence was pre- sented to show that all the General Counsel's witnesses were required to join the Union `pursuant to the union- security provision of ;the contract, within a short time subsequent to their' hire by' Menasco (G.C. Exh. 4). Be- cause -some of the witnesses, had- worked at Menasco' in excess of , 20 years, it appears that'the collective-baigain- ing relationship between the Employer and the Union had existed for a significant period of time. When the in- dividual witness was initiated into the Union, part of the 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rite involved the person agreeing to obey the laws-of the Union. For Respondent, Frank Placenta, secretary-treasurer of the Union in 1979, testified that in 1978 he received instructions from the International parent union that pur- suant to an unnamed court case, all members in attend- ance at (specially called) negotiating meetings should be notified of the union rule restricting resignations during strikes and 2 weeks before the strike begins. According- ly, Placencia testified regarding the union rule, I would say, without have [sic] the records to show me each of the meetings, ` that a good four weeks before the deadline of the contract which was May the 20th, we read these-at one of those meetings we read those provisions in the Constitution. I find on this credibility question that the General Counsel's witnesses should- be and are credited. Thus, I find that, notwithstanding the language problems, the length of elapsed-time and less than certain testimony as to what meetings were attended, the 33 General Counsel witnesses never were advised of the Union's constitution- al provision in issue 3 - - The members who returned to work during the strike are the subject of a stipulation and joint exhibit. This reads as follows (Jt. Exh. 1): Name Resignation from Union Returned to Work Fines Assessed Bons Barishman - 12/17/79 12/10/79 03/24/80 Kenneth Bertmo 09/22/80 12/15/80 04/13/81 Reynaldo Bustos 04/25/80 01/21/80 05/14/80 Humberto de 05/16/80 01/14/80 - 03/24/80 las Casas - • Boleslaw Dobrucki 03/04/80 • 03/03/80 08/13/80 Carmen Dominick 04/29/80 04/28/80 08/13/80 John Fion 02/07/80 02/04/80 03/24/80 *Leslie Fuzesi 02/28/80 01/09/80 03/24/80 Arthur Hugues 01/08/80 01/04/80 05/14/80 William Kennedy 04/29/80 03/17/80 08/13/80 Richard Kert 12/26/79 12/21/79 03/24/80 Louis Lopez 05/16/80 02/11/80 03/24/80 -Marsliall Lundgren 02%28/80 , 02/14/80 03/24/80 Carlos Moyano 02/28/80 01/07/80 03/24/80 Laslo - - '05/12/80 - - 02/28/80 08/13/80 Opociki 3 However, the testimony of Placencia and the General Counsel's wit- nesses is- not indirect conflict There is no credible showing that any of the Geneial Counsel's witnesses necessarily attended the meeting wherein Placencia • claims to have read the constitutional provision in question I note that his testimony is uncertain and is uncorroborated Accordingly, even if he did refer to the restrictions on resigning at an early May meet- ing, there is no showing of actual notice to any discrumatee involved in this case I find further no constructive notice either - - Name Resignation Returned to Fines Assessed •S. Peredes from Union no resignation Work 05/17/80 08/13/80 'H. 06/06/80 06/06/80 03/20/81 Redderson F Rodriguez 06/13/80 06/09/80 03/20/81 Otto Roemer 01/22/80 01/14/80 03/24/80 Nicholas 04/28/80 04/14/80 08/13/80 Saber Raul 04/25/80 04/30/80 08/13/80 Salitrero Dennis 04/28/80 03/03/80 - 05/14/80 Sanchez. Paul Shih 02/28/80 02/04/80 03/24/80 Emil Storck 10/22/79 11/12/79 05/14/80 Johnny 03/14/80 03/03/80 05/14/80 Thompson Dallas 01/11/80 01/08/80 03/24/80 Wheeler Sergio 06/13/80 06/16/81 08/13/81 Estrada George Rabi no resignation 09/02/80 04/13/81 Jose Polanco 08/20/80 08/04/80 08/13/81 5Joseph 01/24/80 01/23/80 03/23/80 Parkhurst James Hawk 02/04/80 02/01/80 03/24/80 -Herbert no resignation 09/22/80 04/13/81 Brown 5Ronald 02/28/80 02/04/80 03/24/80 Tobin 5Elco Gomez 04/29/80 03/12/80 05/14/80 Sal Acosta 06/09/80 05/05/80 08/09/80 Juan Ortega 06/13/80 06/02/80 01/10/81 'Jorge Pelaez 08/25/80 06/16/80 never fined 'Enrique 07/28/80 07/08/80 never fined Huereca Mildred 07/08/80 06/30/80 03/20/81•' Clancy G. Hahn 07/15/80 07/10/80 03/20/81; Oscar no resignation 07/14/80 . 03/20/81 Hincapie J Horvath 08/09/80 07/14/80 03/20/81 - *Carlos 11/09/79 11/05/79 03/20/81 Lopez - *C. Mucic no resignation 04/09/80 03/20/81 'R Reza 08/22/80 06/16/80 03/20/81 'A. Salvidar no resignation 08/04/80 03/20/81 5Wayne 05/30/80 05/21/80 04/13/81 Waterfield It should be noted that this list contains the names of several persons who did not testify and several mis- spelled names. I have denoted the nonwitnesses with an asterisk and the corrected names by underline: It should also be noted that as to Rabi, Hincapie, Brown, and Do- brucki, the validity of their alleged oral resignations is' in issue. Although the parties did agree that Dobrucki -pur- ported to resign by a written resignation on March'4, the General Counsel contends that he effectively resigned by way of oral resignation long before that date. I turn now to resolve these and other questions presented by the in- stant case. . MACHINISTS LOCAL 758 (MENASCO, INC.)' - B.'Analysis and Conclusions 1. Is article I, section 3, in pertinent part, of the Union's constitution valid Respondent is charged with i violating Section 8(b)(1)(A) of the Act. Under that provision, a union may not restrain or coerce employees in the exercise of rights secured by Section 7 of the Act, to "refrain from" activi- ties supportive of a union in this case, Respondent pur- ports to discipline its members for crossing the Union's picket line during a strike, in violation of the Union's constitution, article I, section 3 (G.C. Exh. 2, set forth above). In general, a-union'is free to enforce a properly adopted rule which reflects a' legitimate union interest, impairs no policy Congress has embedded in the labor laws, and is reasonably enforced against union' members who are free to leave the union-'and escape the rule.4 Pursuant to this principle, a union is permitted to impose discipline against members for strike breaking done while they -remain members.5 Conversely, a union will violate Section 8(b)(1)(A) when it purports to, discipline an em- ployee for crossing the picket line during the strike after the employee has lawfully resigned-his or her,member- ship.6 - In this case, article I, section.3, lines 4-10, and 27-41 of the Union's constitution purports to make ' unlawful any resignation submitted during a strike or within 14 days preceding its.commencement. This provision is in direct conflict with the Board's decision in Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), and for that -reason must be struck down.? In Neufeld Porsche-Audi, the Board held- that a union may not lawfully restrict the-rights of its members to resign or otherwise refrain from protected Section 7 activities for any period of time.8 Thus, the right to resign from a .union -in order to refrain, from participating in a strike or other concerted activity is a basic right of association protected under Section 7 of the Act. Based on this,case, I am in complete agreement with the General Counsel (Br. 15-16) that any portion of the fines applying to periods subsequent to the employees' resignation is invalid. The employees' resignation is ef- fective on receipt by the' Union 'as reflected in the stipu- lation above (Jt. Exh. 1).9 4 Scofield v. NLRB, 394 U S 423, 430 (1969) 6 NLRB v Allis-Chalmers Mfg. Co, 388 U S 175, 195 (1967) 6 NLRB Y. Textile Workers Local, 1029, Granite State Joint Board, 409 U S 213, 217 (1972); see also Machinists Booster. Lodge 405 v 'NLRB, 412 U S. 84 (1973) : t 7 The same provision of Respondent's, constitution in issue , m this case ,was found-to be invalid in,Machinists (Bolton-Emerson), 273 NLRB 1159 , (1984). See also Machinists Local' 1374 `(Columbia Mdchine),1274 NLRB . 123 (1985). '6 Glass & Pottery Workers Local 185.(Liberty Glass), 273 NLRB 198 (1984) The General Counsel elaborated on this theme at hearing we are only claiming unlawful any portion'of fines that were valid for times after the resignation In other words [some employ- ees] returned to' work after they resigned We are alleging that -with respect to those, the fine is completely unlawful ' With respect to those individuals who returned to work, and then resigned, we are stating that that portion of the fine for periods after or as of their resignations is unlawful ' 759 As I noted in the introduction to this decision, 'Re- spondent does not mention Neufeld Porsche-Audi in its brief. Rather it relies on'Machinists Local 1327 v. NLRB, 725 F.2d 1212 (9th Cir. 1984). That case denied enforce- ment to a Board order and, under longstanding Board policy, I am bound to follow Board law where it is in conflict with any circuit court of appeals decision.' ° It should be noted that the decision of the Ninth Circuit in Machinists Local 1327, supra, is in conflict with the deci- sion of the Seventh Circuit in Pattern Makers v. NLRB, 747 F.2d 57 (7th Cir. 1983), a decision which did enforce a Board order on an issue similar to that at bar. On Oc- tober 1, 1984, the U.S. Supreme Court granted certiorari .in.-Pattern Makers, 105 S.Ct. 79 and presumably the Court will soon -resolve the conflicts between the Board and at least one of the circuits. ' - Having- decided the primary legal issue presented by the case, I turn next to the question of oral resignations. 2. Did any members purport to resign orally and, if so, were the oral resignations valid Where there is no established method for resigning from the union, a member may advise the union of his or her intent to resign in "any reasonable way, including orally, so long as the intent is clearly conveyed." In this case; the General Counsel claims that four employees ef- fectively resigned by way of oral resignation.12 a. George Rabi This witness testified that in 'November 1979, about 4 months after the strike began, he went to another compa- ny, named Parker Bertea, for a job. The witness was interviewed by a vice president of the company whose - name he 'did not know. Rabi was able to describe the man and provide an address for the company. The man told Rabi that he could not hire him if he "was in a union that was on strike, because his company was a nonunion shop. In response to this'. Rabi stated, "Give me a job and''I'll resign 'from the union." The man told Rabi, "There's the phone," and then left the room. Rabi further testified that he. called the union office and talked to Frank Placencia, then secretary-treasurer. He told Placencia that.he was resigning. When asked for an explanation, Rabi stated that he was seeking employ- ment at a nonunion shop. and the boss would not hire him if-he belonged to a union. When Placencia began-to speak again, Rabi responded by saying, "Look, I don't want any discussion," and then hanging up. 10 Iowa Beef Packers, 144 NLRB 615 (1963). Machinists Local 2045 (Eagle Signal), 268 NLRB 635, 637 (1984); no union rule in issue required resignations to be in writing Carpenters Local 1233 (Polk Construction Co.), 231 NLRB 756, 760-761 (1977) 12 The General Counsel does not allege that employee witness Laslo Opoczki attempted to resign orally•pnor to submission of the written res- ignation Opoczki testified that, months before his written- resignation, he called Placencia and attempted'to withdraw (resign) from the Union Al- legedly,- Placencia said that Opoczki could not withdraw or resign until the strike was over 'Although the facts here are similar to those for the four employees to be considered below, I am precluded from making findings as to Opoczki because the General Counsel did'not put this oral resignation in issue ` 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In his testimony Placencia could not recall that - Rabi or anyone else had tried to resign orally. If they had, ac- cording to Placencia somewhat inconsistently, his prac- tice-was as follows: We received several. phone calls from numerous members seeking advice about - resignation for one reason or another, particularly from members that may want to go work someplace else and then they would • find that they were-the MENASCO strik- ers,' they required them to either -resign from 'the - - - union or the company'. They would call me in those instances- where they wanted to return to MENASCO, for advice, and of course my advice was, first of- all I tried to persuade them not to resign and if that didn't work I would advise them to write me a letter, a certified letter. That way they would have a record of it and it,would be legal. - - Later I attempted to elicit further clarification from the witness as to what he would have done if someone had attempted to resign orally. This time Placencia replied as follows: - Initially I would have tried to talk them out of it. However, if they had stated, Frank, this is my resig- nation and I want you to accept it as -such, I would have immediately contacted the international to find out if a verbal resignation was in order.` For me neither answer seems credible in light of article I, section 3, lines 4-10 and 27-41 of the Union's Consti- tution. In any event, I credit Rabi on this point and find that he did resign orally in November 1979, well before he returned to work at Menasco. i 3 The General Counsel -also contends in the alternative that 2-3 days after returning to Menasco on September 2, Rabi submitted a written resignation. Allegedly, an un- named person in personnel inquired whether Rabi had resigned from the Union. Rabi stated he had done so by phone sometime before. The person said--it would be better if Rabi also resigned in writing. Rabi then' testified that he mailed in an appropriate letter by certified' mail. Neither Rabi, the Company, nor the Union had a copy of the letter. Of all the persons' involved in this case who purported to'resign in, writing; Rabi is the only person whose notice the Union denied receiving. Further, Rabi could not- produce` a copy of the U.S. postal return re- ceipt of delivery. Under -these circumstances, I cannot and-do not find that Rabi resigned from the Union by written instrument. Even if I were to credit his testimo- ny that he mailed the document which I cannot do on this record, there is no evidence as to proper address or 13 During cross-examination of Rabi, Respondent's counsel attempted to ascertain - whether other Menasco strikers were working at Parker Bertea. The General Counsel objected and, during argument outside the presence of the witness, Respondent 's counsel represented that as many as 10 Menasco sinkers were working there as part of an employee com- plement of approximately 25 He also represented that these other Men- asco employees were not required to resign from the Union as a condi- tion .of employment .I overruled the objection, and the matter was pur- sued during cross-examination However, Respondent never offered any evidence to prove its representation postage in order-to invoke the presumption that a prop- erly mailed letter is received by the addressee. I find fur- ther that there is no evidence that the Union received his written resignation. Accordingly, at this point, ,Rabi's case must rise or fall on his oral resignation. b. Oscar Hincapie This witness testified that, in June, he. was working - elsewhere, but had been offered a salaried position. at Menasco if he returned to work. At this time, Hincapie was president of the Union's credit union and owed money to it. According to Hincapie, ' he had a meeting with Union Business Representative Salazar, about, a month before lie returned to work, and explained that; he was resigning from the Union in order to accept a sala- ried - position.: Further, Hincapie requested Salazar to keep the matter confidential as long as possible. Alleged- ly, Salazar responded by saying he understood how the 'resignation *could bring conflicts with other-members of the credit union. Salazar also said that it would be a dif- ferent matter if Hincapie was returning to his old job rather than a salaried position. A few days after talking to Salazar, Hincapie submitted a written resignation., to the credit union, dated July 18 effective in 2 weeks (R. Exh. 17). In evaluating Hincapie's credibility, I note the incon- sistencies conceded by the General Counsel (Br. 12): Why resign a month, prior to returning to work; ask -that - the resignation be kept confidential, _yet run a strong risk of discovery within the 4-week period. Why resign in writing from the credit union and orally from the Union? Measured against these unanswered questions which smack of improbabilities and untruthful testimony, the testimony must be weighed against a certain unexplained deficiency on Respondent's side: the unexplained failure to call Salazar as a witness . This raises'an adverse infer- ence which I 'weigh against Respondent. 14 Further, I note the unsophisticated and uneducated nature of Hin- capie's testimony. On balance in a:-close credibility'-ques- 'tion, I credit his -testimony and-find that he did resign orally from the Union before he returned to work ' at Menasco. c. Herbert Brown - , This witness returned to work on September 27. On September 17, he obtained an "Honorary Withdrawal" card from the Union (G.C. Exh. 9): The question pre- sented is whether, under the facts and circumstances of this case, the "Honorary Withdrawal" is equivalent to.a resignation from the Union. Shortly before September 17, the witness found him- self with two -job opportunities, one a salaried position.at Menasco and the other a job at another company. On September 17, he went to the union office and talked to a union official named Pat Hue, and Placencia. Brown requested and received the withdrawal- card, after telling the - I officials he had a job opportunity on salary. Al- though Brown knew at that- moment he would accept the Menasco opportunity, he did -not tell the union offi- 14 Martin Luther King, Sr. Nursing Center, 231 NLRB 15 fn 1 (1977) MACHINISTS LOCAL 758 (MENASCO, INC.) cials. For their part, they did not ask. However, Hue did tell Brown that if he were returning to work at Menasco, the Union would not honor the withdrawal card. Brown did not reply to this. In evaluating these, facts which are essentially undis- puted, I begin with article I, section 17 of the Union's constitution, "Honorary Withdrawal Cards" (G.C. Exh. 2A). This section reads as follows: Persons discontinuing their membership by ac- cepting withdrawal cards will not be entitled to any benefits or permitted to attend meetings or partici- pate in any of the business of the I.A.M. They shall not violate any of the laws or decisions of the G.L. or L.L. under penalty of having their withdrawal cards cancelled. Any person who holds an Honor= ary Withdrawal Card and holds a position above working foreman will have said Honorary With- drawal Card automatically revoked -if he crosses a sanctioned picket line of the shop where he is em- ployed. After reviewing this section, it seems clear to me that Brown's request for an "Honorary Withdrawal" card was tantamount to resignation from the Union. As the Charging Party points out in its brief, the intention to resign may be made in any feasible way and no particu= lar form or method. is required. 15 The union officials had a duty to advise Brown of the proper procedure by in- quiring whether his salaried job was at Menasco-or else-, where. This they did not do because it was in violation of union rules for Brown to resign during the strike, so the union officials could not very easily have advised him to follow this course, once they ascertained he was returning to Menasco. Alternatively, I credit Brown's testimony that he was aware generally of restrictions on his right to resign from the Union. Accordingly, he could not ask to resign, nor could the union officials advise him to resign, since to do so would have violated pertinent parts of the Union's constitution. Since it. would have been futile for Brown to attempt to resign, and he knew that it would, he is re, lieved from the burden of making this futile gesture.16 I further find for the same reasons that Brown had no duty to tell the union officials that he intended to return to Menasco. Rather, he was permitted to accept the withdrawal card and hope for the best. In sum, I find that Brown'resigned before he returned to work at -Men-_ d. Boleslaw Dobrucki Unlike the other three witnesses in this group, Do- brucki did submit a written resignation on March 4, one day after returning to work. In the alternative, the Gen- eral Counsel contends that Dobrucki resigned orally, 15 Electrical Workers IBEW Local 66 (Houston Lighting), 262 NLRB 483, 486 (1982) Furthermore, manful demands to "withdraw from the union" have been found by the Board to be sufficient on the ground that they clearly conveyed the intent to resign Electrical Workers IBEW Local 340 (Hulse Electric), 273 NLRB 428 (1984) See also Teamsters Local 579 (Northern Conveyor), 274 NLRB 100 fn 1 (1985) - 16 Bricklayers Local 17 (California Tile Co), 271 NLRB 1571 (1984) 761 long before the written resignation. I -turn "to consider that argument. A few days after the strike began, Dobrucki called Sa- lazar at the union office and asked for a "release" from the Union because he had received a salaried job at Men- asco. Without attempting to clarify what Dobrucki meant by "release,'." Salazar admonished Dobrucki not to do that because "when we walk back in a few weeks, our people will not want to work for you." Based on this conversation, Dobrucki did not accept the salaried job at that time. I credit this testimony of Dobrucki. I note again that Salazar did not testify and that an adverse inference is raised. For the same rationale expressed for the witness Brown, I find that Salazar was on notice that Dobrucki desired to sever his ties with the Union and be free to accept the salaried position. Accordingly in this context, I equate the terms "release" and "resign."17 Alternative- ly, I find no duty on Dobrucki to attempt to resign in a formal manner, because to do so would have been a futile gesture. I find that he resigned pnor- to his return to work. To recapitulate, for all four employees considered in this section, I find that because they resigned before they returned to work, Respondent violated the Act by sub- mitting"them to union discipline and imposing fines. 3. Did the alleged discriminatees have proper notice of the Union's restriction on their right to resign The General Counsel argues in the alternative that the fines against all employees were invalid because they lacked proper notice of article I, section 3, lines 4-10 and 27-41 of the Union constitution. i 8 In support of this ar- gument, the General Counsel cites Machinists Local 758 (Menasco, Inc.),-267 NLRB 1147 (1983) (hereinafter Men- asco 1), a case involving the same parties, the same provi- sions of the Union's constitution, and the same issues. At fn. 1 of its decision the Board states in pertinent part: We agree with the Administrative Law Judge that Respondent violated Sec. 8(b)(1)(A) of the Act by fining 21 employees for crossing a picket line and returning to work without their having re- signed from Respondent in accord with its rule pro- hibiting resignations during a strike or within 14 days preceding its commencement. The Administra- tive Law Judge correctly found that since the em- ployees had not been advised of the existence of Respondent's rule, Respondent could not lawfully fine them for any alleged breach of that rule. Inherent in the union-member relationship is a duty on the part of the union to inform its members of any con- stitutional limitations placed on their statutory right to resign from union membership. i 9 Thus, even assuming 1 Cf Electrical Workers IBEW Local 340 (Hulse Electric), supra 18 Although this theory is not explicitly alleged in the complaint, the General Counsel afforded Respondent full notice of its alternative theory and the issue was fully litigated Accordingly, I will rule on the matter Compare Harvard Folding Box Co, 273 NLRB 1031 (1984) 19 Teamsters Local 439 (Loomis Courier Service), 237 NLRB 220, 223 (1978) 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arguendo that Respondent's restriction on resignation is held to be valid by some reviewing authority-other than the Board. I find alternatively -in this case, as noted in "The Facts" above; that employees did not have suffi- cient notice of article •I,- section 3,, lines 4-10 and 27- 41.20 Section 7 of the Act guarantees to employees the right to refrain from engaging in concerted activity, including the right to refrain from participating in a strike. Howev- er, -a waiver of those Section '7 rights must be clear and unmistakable to be effective.2 i As was found in Menasco I, there was no :such' waiver in this case.- I credit the tes- timony of the General Counsel's witnesses that they had never 'seen nor were they ever ; given copies of `the Union's constitution. The `mere fact that copies may have been available for the taking is not sufficient. Further- more, the presence -of boiler plate language on the union's" membership 'application referring to an agree- ment to abide by the Union's laws-is not sufficient.22 In further consideration of this issue, I note certain evidence at hearing which makes no 'difference to my conclusion herein found. a. Employee knowledge that the `Union disapproved of their return to work or that the' Union considered their actions wrongful 'All or. most employee witnesses admitted on- cross-ex- amination that they were aware of union disapproval of their.;action; that they .were aware that the Union consid- ered their- actions wrongful,i and, in some cases, witnesses even admitted* that- they expected consequences. This 'evi- dence 'is not sufficient to show knowledge of relevant portions ' of the Union's' constitutions Accordingly, the evidence istnot sufficent •to 'show that employees clearly and unmistakably -waived their Section 7 rights: Many of the witnesses' walked picket during the strike, some were picket-, captains, one, or two iiiay'evenhave reported per-- sons who crossed the line (R. Exh. 22). However,' this 'is all' a far cry from knowing that the Union's constitution prohibited resignations during the strike:- ' b. Union stewards - '' Employee witnesses Dallas Wheeler, ,,William .Kenne- dy, James Hawk, and possibly one or two others :were shop stewards during portions of their tenure with ;the Union. According -to Respondent's witness Marla DesEr- mia, since 1981-secretary treasurer of Respondent, newly appointed shop stewards-'were given _ a ; steward's ;kit. Inside the steward's, kit; among other items ,was a : copy of the.Union's Constitution. I credit this testimony, as to the existence of;the.!Union's standard;business:!practice for treatment, of ,new, stewards.. However, this -does 'not show actual , notice-which I find is .the- -appropriate 20 In Newspaper Guild •Lbcdl 47 (Pulitzer Publ,shtng), 272 NI:RB 1195 (1984), the Board affirmed; the administrative law ,fudge. in a case similar to that at bar That is, the Board found both facial invalidity of relevant portions of the union's constitution under Neufeld Porsche-Audi, and lack of sufficient notice of the Union 's restrictions on resignation 21 Menasco I, supra at 1160. 22 Ibid - , , standard-of the restrictions on resignation.'Accordingly, this.evidence does not help Respondent. c. Testimony of Placencia I have discussed above the testimony of union official Placencia to the effect that at a specially called union meeting in early May, he read or referred to the provi- sion of the Union's constitution in issue. In the absence of any credible showing that any of the • General Coun- sel's witnesses attended that particular meeting, or if they attended, they were aware of the events occurring, I find no reason to' believe that any of the General Counsel's witnesses received actual notice at that meeting. It should be noted, however, that I am unable to credit Placencia's testimony in the first instance as noted in- "The Facts" portion of this decision. In conclusion I find that, since none of the General Counsel's witnesses had proper notice of the union con- stitutional provision in question, the.. Union violated the Act in purporting to-discipline and fine them .23 - IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in • section III, above, occurring in connection with, its: operations de- scribed in section I, above, have a' close; intimate; and' substantial-: relationship to-'trade, • traffic; and -commerce among the several' States and tend 'to lead to labor dis- putes putes burdening-and obstructing commerce and the free flow of commerce. • ' . • ^, - • CONCLUSIONS OF LAW,,,,27 1. Menasco,'Inc:"is, arid'at all'times material has been; an employer engaged in commerce -within the meaning' of Section 2(2), (6), and (7) of the Act. - 2. Local Lodge 758, International Association of Ma- chinists and Aerospace Workers is, and at' all times mate- rial has- been, <a labor organization' within the meaning of Section 2(5)-of the Act: • - , - . - •.. - • .. - 3. By maintaining in force and effect article I, section 3, lines 4-10 and 27-41 of the Union's constitution which places unlawful, restrictions on- members' rights to resign their 'membership in the Union, Respondent violated- Sec-tion 8(b)(1)(A)•of the Act. - ' 4. By imposing court-collectible fines on former mem- bers of the Union who had duly resigned from the 23'As'notedabove; it Exh' I contains the names of the'33witnesses who :testified and, 14 persons who' did not Before' the'case !concluded, I invited 'the parties to 'express their views, in .the; briefs on the- different treatment, ifany, that thettwotgroups of.persons should receive No one saw fit to do this To confuse matters further , the General Counsel refers to his brief to Respondent's fining of 42 employees for whom it'seeks ap- propriate relief Then the list of 42 employees at-G.C App. I- mcludes all 33 witnesses who testified, and 9 persons who did not, all of whom are listed, on A. Exh. 1, Appendix I omits without explanation -5 other nontes- tifying persons who are listed on it Exh I 'Since I cannot account for these discrepancies, I must defer to the compliance'stage'of these pro- ceedmgs for clarification Concerning the question of how to treat the .14 persons who did not 'testify, ' I conclude they are entitled to the same relief as the 33 witnesses who did testify There is no evidence to suggest the former group had adequate notice of the Union 's restrictions on resig ; nation, so they must be treated, like,the latter ,group, who. also lacked the same knowledge MACHINISTS LOCAL 758 (MENASCO, INC.) Union, for their postresignation crossing of a sanctioned picket line and working during a strike-at Menasco, Inc., Respondent restrained and coerced employees in the ex- ercise of the rights guaranteed them. in Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices within the meaning; of Section 8(b)(1)(A) of the Act. - - 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action neces- sary to effectuate the policies of the Act, including re- funding to those persons named in paragraph 2(b) of the Order any money they may have paid as a-result of the fines imposed against them, with interest computed in the manner proscribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). In addition, I shall recommend that Respondent be or- dered to cease-and desist from maintaining the restriction on resignations found invalid and to expunge the provi- sion from its governing documents. Engineers &Scientists Guild (Lockheed-California), 268 NLRB 311 (1983). In addition, I shall recommend that Respondent be or- dered to expunge from its records all reference to the un- lawful discplinary action herein. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed24 ORDER The Respondent, Local Lodge 758, International As sociation of Machinists and Aerospace Workers, Bur- bank, California, its officers, agents, and representatives, shall • - _ . I 1.,Cease and desist from - (a) Maintaining in its governing documents article I, section 3, lines 4-10 and 27-41, of the International Asso- ciation of Machinists and Aerospace Workers constitu- tion which reads as follows: SEC. 3. The following actions or omissions shall constitute misconduct, by a member which. shall warrant a reprimand, fine, suspension and/or expul-, i sion from membership, or.any lesser penalty or any. combination 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 es- tablishment where a sinke or' lockout exists as r'ec- 763 ognized 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: stnke or lockout or within 14 days preceding its commencement.. Where observance of a primary picket line is required, resignation shall not relieve a member of his obligation to observe the primary -„picket line for its duration if the resignation occurs during. the period that the picket line is maintained or within 14 days preceding its establishment. (b) Restraining or coercing employees who have re- signed from, and no longer are members of, Menasco, Inc., in exercise of rights guaranteed them by Section 7 of the Act, by trying employees and imposing fines on them because of their postresignation conduct in working at Menasco, Inc. during the strike which began on May 31, 1979. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed to them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Expunge from its governing documents the portion of article I, section 3, of the International Association of Machinists and Aerospace Workers constitution set forth above. (b) Expunge from its files and records all references to fines, . intraunion charges, or, disciplinary proceedings against the employees named in paragraph 2(b) of this Order. (c) Rescind the fines levied against the following per- sons because of their postresignation work for Menasco during the strike that began on May 31, 1979, notify them in writing that this has been done, and refund to them any money they may have paid as a result of the fines, plus interest: Boris`Barishman Kenneth Bertmo Reynaldo Bustos Humberto de las Casas Boleslaw Dobrucki Carmen Dominick John Fiori ' Leslie Fuzesi Arthur Hugues William Kennedy Richard Kert Louis Lopez 'Marshall. Lundgren Carlos Moyano Laslo Opoczki S. Peredes H. Redderson F. Rodriguez Otto Roemer Nicholas Saber Raul Salitrero Dennis Sanchez Johnny Thompson Dallas Wheeler Sergio Estrada George Rabi Jose Polanco Joseph Parkhurst James Hawk Herbert Brown Ronald Tobin Elco Gomez Sal Acosta Juan Ortega Jorge Pelaez Enrique Huereca Mildred Clancy G. Hahn Oscar Hincapie J. Horvath Carlos Lopez C. Mucic R. Reza A. Salvidar 24 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 764 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD Paul Shih , Wayne Waterfield. Emil Storck . (d) Post at its meeting halls copies of :the attached notice marked "Appendix."25 Copies of the-notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized- repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in 25 If this Oider 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 " conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by *any other materi- al. (e) Mail to the Regional Director for Region 31 suffi- cient signed copies of this notice for posting by Menasco, Inc. for a period of 60 days at all, places where notices to employees are customarily . posted, if the Company is willing. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. • - I'll 1a ill !l S'ir_- tt !1;- r ,