Orange Belt District Council Of Painters And Allied Trades No. 48, And Painters Local No. 333, International Brotherhood Of Drywall Construction, Inc.; J. Sayatovich Drywall Interiors; And California Living Interiors, Inc.

1180 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orange Belt District Council of Painters and Allied Trades No. 48,- and Painters Local No. 333, International Brotherhood of Drywall Construc- tion, Inc.; J. Sayatovich Drywall Interiors; and California Living Interiors, Inc. and Lewis & Sherman Paint and Drywall Contractors and Alta Drywall, Inc. Orange Belt District Council of Painters and Allied Trades No: 48, and -Painters Local No. 333, International Brotherhood of Painters and Allied -Trades, AFL-CIO-CLC (Ghianni Drywall Construction, Inc.) and Anthony Del Gatto and Ghianni Drywall Construction, Inc. Orange Belt District Council of Painters and Allied Trades No. 48, and Painters Local No. 333, International Brotherhood of Painters and Allied Trades, AFL-CIO-CLC Q. Sayatovich Drywall Interiors) and J. Sayatovich Drywall Interiors and David Reger and D. J. Drywall, Inc. Cases 21-CB-7440, 21-CB-7441, 21-CB- 7442, 21-CB-7514, 21-CB-7515, 21-CB-7520, 21-CB-7525, and 21-CB-7526 25 July 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 28 September 1981 Administrative Law Judge Michael D. Stevenson issued the attached decision.' The Respondents filed exceptions and a supporting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions only to the extent consistent with this decision and to adopt the recommended Order as modified. We agree with the judge that the Respondents' constitutional restrictions on their members' right to resign are invalid and that they violated Section 8(b)(1)(A) by bringing charges' against and fining Anthony Del Gatto, William Greene, and Samuel Traband for resigning their memberships and, re- turning to work during the strike. Machinists Local 1414 (Neufeld Porsche-Audi), 270, NLRB 1330 (1984). We also agree with the judge that the Respond- eats violated Section 8(b)(1)(B) by. bringing charges against and fining Denis Adair, Richard Najera, ' The judge issued,an Erratum on 6 October 1981 2 The Respondents have excepted to some of the' judge's credibility findings The Board's established policy is not to overrule an administra- 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- and Luis • LeBaron. - We do-not, however, adopt his finding that such- discipline violated Section 8(b)(1)(A). See Florida Power & Light v. Electrical Workers Local 641, 417 U. S. - 790, 805 fn. .16 (1974). Pursuant to our practice in these types of cases, we shall also order the Respondents to'expunge the, invalid- restriction on resignations from their consti- tution and other governing documents.3 t, ORDER The National Labor Relations Board orders that the Respondents, Orange Belt District Council of Painters and Allied Trades "•No. 48, San Diego, California, and Painters Local.No. 333, Internation- al. Brotherhood of Painters and Allied Trades, AFL-CIO-CLC, San Diego, California, their.offi- cers, agents, and representatives, shall 1. Cease and desist from ' (a) Restraining or coercing employees who have resigned from and are no longer-members of ,the Orange Belt District Council of Painters and Allied Trades No. 48, and Painters, Local No. 333, Inter- national Brotherhood • of Painters and : Allied Trades, AFL-CIO-CLC in the exercise of the rights guaranteed them in Section 7 of the Act, by charging and fining,them because of their postre- signation conduct of working for employers who are. nonsignatory to a master collective-bargaining agreement. , . , (b) Restraining or coercing . J. Sayatovich Drywall Interiors and- Ghianni Drywall Construc- tion, Inc. in the selection of their representatives for the purposes of collective bargaining or the ad- justment of grievances by fining or disciplining. such representatives because they have refused to cease working for such employers. (c) Maintaining in their constitution or any other governing documents the following restriction on resignations: , Any member may sever his connections with the Brotherhood. by written resignation, pro- vided he has' paid all dues and arrearages, he does not continue to work as a journeyman at, any branch of the trade, and his Local Union accepts his resignation by vote of the member- ship. No resignation shall be accepted during a strike or lockout. A member who resigns shall not thereafter be entitled to any Brotherhood benefits. 3 Contrary to the judge's statement in fn 11 of his decision, the Board's retail standard is $500,000 gross volume of business That error does not alter the propriety of his finding concerning Shapell Industries whose gross volume of business exceeded S20 million Member Dennis adheres to the position she 'set forth in Neufeld Porsche-Audi, supra 270 NLRB at 1336 fn 22 (1984) 275 NLRB No. 164 PAINTERS ORANGE BELT DISTRICT -COUNCIL 48 (GHIANNI CONSTRUCTION) (d) In any like or -related manner restraining or coercing. employees in the exercise of the ''rights guaranteed them by Section 7 of the Act. (e) In any like or related manner restraining or coercing Sayatovich and Ghianni in the selection of their representatives for the purposes of collec- tive bargaining or adjusting grievances. 2. Take the. following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind and expunge all records of the fines imposed against Anthony Del Gatto, William Greene, Samuel Traband, Denis Adair,, Richard Najera, and Luis LeBaron because they worked for employers who were nonsignatory to a master col- lective-bargaining agreement or because they worked for employers as supervisors and griev- ance-adjusters while a strike was in progress. (b) Advise all persons listed in paragraph 2(a) above, in writing, that these fines have been re- scinded and that the records of these proceedings and fines have been expunged. (c) Expunge from their constitution and any other governing documents the restriction on resig- nations set forth above in paragraph 1(c). '(d) 'Post at their business " offices and meeting halls copies of the "attached notice marked "Appen- dix."4 Copies of the notice, on forms provided by the Regional Director 'for Region 21, after being signed by the Respondents' authorized representa- tives, shall be posted by the Respondents immedi- atel'y' upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places' where notices to members are customarily posted. Reasonable steps shall be 'taken by the' Respondents to ensure that the notices are not altered, defaced, or covered by any other material. - (e) Furnish the Regional Director for Region 21 signed copies of said notice for posting by J. Saya- tovich Drywall Interiors and Ghianni Drywall Construction, Inc., if willing, in places where no- tices to employees are customarily posted. (f) Notify=' the, Regional 'Director in writing within '20 days from the' date of this Order what steps the Respondents-have taken to comply. 4 If 'this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX 1181' NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor .Relations Act and has ordered us to post and abide by this notice. WE WILL, NOT restrain or coerce employees who have resigned from and are no longer members of the Orange Belt District Council of Painters and Allied Trades No. 48, and Painters Local No. 333, International Brotherhood of Painters and Allied Trades, AFL-CIO-CLC in the exercise of the rights guaranteed them in Section 7 of the Act, by, charging ,and fining them because of their postre- signation conduct of working for employers who are nonsignatory to a master collective-bargaining agreement. WE WILL NOT restrain or coerce J. Sayatovich Drywall Interiors and Ghianni Drywall Construc- tion, Inc. in the selection of their representatives for the purposes of collective -bargaining or the ad- justment of grievances by fining or disciplining these representatives because they have refused to cease working for these employers. WE WILL NOT maintain in our constituion or any other governing documents the following restric- tion on resignations: 'Any member may sever his connections with the Brotherhood by written resignation, pro- vided he has: paid all dues and arrearages, he 'does not continue to work as a journeyman at any branch of the trade, and his Local Union accepts his resignation by vote of the member- ship. No resignation shall be-accepted during a strike or lockout. A member who resigns shall not thereafter be entitled to any Brotherhood benefits. WE WILL NOT in any like or related manner re- strain or coerce ' employees in the exercise of the rights guaranteed them by Section '7 of the Act. WE WILL NOT in any like or related manner re- strain or coerce Sayatovich and Ghianni in the se- 'lection of their representatives for the purposes of collective bargaining or adjusting grievances. WE WILL rescind and expunge all records.of the fines imposed against Anthony Del Gatto, William Greene,. Samuel Traband, Denis Adair, Richard Najera, and Luis LeBaron because they worked for employers who were nonsignatory to a master col- lective-bargaining agreement or because they worked for employers as supervisors. and griev- 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ance-adjusters while a strike was in progress and advise them in writing that such action has been taken. WE WILL expunge from our constitution and any other governing documents the restriction on resig- nations set forth above. - ORANGE BELT DISTRICT COUNCIL OF PAINTERS AND ALLIED TRADES No. 48, AND PAINTERS LOCAL No. 333, INTERNATIONAL BROTHERHOOD OF- PAINTERS AND ALLIED TRADES, AFL-CIO-CLC DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law-Judge. This cases was tried before me at San Diego, California, on June 16, 17, and 18, 1981,2 pursuant to an amended order consolidating cases, 'amended consolidated com- plaint, and amended notice of hearing issued by the Re- gional Director for Region 21 of the National Labor Re- lations Board on December 3, and which is based on charges filed by Ghianni Drywall Construction Compa- ny, Sayatovich Drywall Interiors, and California Living Environments, Inc. (Case 21-CB-7740) (Ghianni, Sayato- vich, and California Living, respectively) on August 8; by Lewis & Sherman Paint and Drywall Contractors (Case 21-CB-7441) (Lewis & Sherman) on August 8; by Anthony Del Gatto, an individual (Case 21-CB-7514) (Del Gatto), on October 10; by Ghianni (Case 21-CB-- 7515) on October 10; by Sayatovich (Case 21-CB-7520) on October 15; by. David Reger, an individual (Case 21- CB-7525) (Reger) on October 17; and by D. J. Drywall, Inc (Case 21'-CB-7526) (D.J.) on October 17. The com- plaint alleges that Orange Belt District Council of Paint- ers and Allied Trades No. 48, and Painters Local No. 333, International Brotherhood of Painters and Allied Trades, AFL-CIO-CLC (Respondent or sometimes the Union) has engaged in certain violations of Section 8(b)(1)(A) and (B) of the National Labor Relations Act. Issues 1. Whether the Board has jurisdiction over some or all of the legal controversies contained in the instant case. 2. Whether Respondent violated the Act. (a) By, on one or more occasions, through large groups of its members, agents, or representatives, enter- ing onto one or more jobsites where various employees of the Charging Parties were performing work, without permission of any authorized person, for the purpose of soliciting employee support for and membership in Re- spondent Union, and thereby preventing. the employees from engaging in their normal work. ' Respondent's unopposed motion (Br fn 1) to correct its-name is granted Inadvertently, Respondent omitted the caption for Case 21-CB- 7514 and 21-CB-7515 2 All dates refer to 1980 unless otherwise indicated (b) By unlawfully denying members the right to resign from the Union; by stating that any attempt to resign from the Union would be futile; and by bringing charges against and fining the members for actions after the members had effectively resigned. (c), By unlawfully denying members, employed by the Charging Parties as supervisors and, as persons with au- thority to adjust grievances for their respective employ- ers, the right to resign from the Union and by tbriiiging charges against and fining the members for working after the members had' effectively resigned. Related to this issue is the further question whether the supervisors de- scribed above were performing unit work during a strike and, if so, whether they were properly charged and fined by Respondent for that activity. All parties were given full opportunity to participate, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. 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 1. THE EMPLOYER'S BUSINESS Respondent contests Board jurisdiction over this case. More specifically, it denies that the requisite jurisdiction- al facts for the several Employer-Charging Parties have been proved by proper evidence. This important thresh- old issue must therefore be covered in detail. In this case, there are five Employer-Charging Parties: Ghianni, Sayatovich, Lewis & ' Sherman, Alta, and D.J. Before determining whether the operations of any-or, all of these Employers are subject to Board jurisdiction, I must note the Respondent's claim that he was prejudiced by the admission of improper evidence such as hearsay, bearing upon the issue of jurisdiction. In rejecting this contention, I begin with a few preliminary observations with respect to the Board's view of hearsay and other types of evidence. As Respondent recognizes in its brief at 28: Courts have long recognized that hearsay evidence is admissible before administrative agencies, if ra- tionally probative in force and if corroborated by something more than the slightest amount of other evidence. [Citations omitted.] The Board jealously guards its discretion to rely on hearsay testimony in the proper circumstance.3 Here, Respondent argues that the facts of the present case do not show the "proper circumstance" to admit the evidence in accord with the rule quoted above. I will find, however, that the evidence in issue was :properly admitted either because the Board is not bound to apply the Federal Rules of Evidence (Fed.R.Evid.) strictly or 3 RJR Communications , 248 NLRB 920, 921 (1980), see also Helena Laboratories Corp v NLRB, 557 F 2d 1183, 1188 (5th Cir 1977) - PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (GHIANNI CONSTRUCTION) because the evidence is an exception to the hearsay rule.4. Turning now to the record, I begin with the testimony of David Rothgeb, an assistant branch manager for 2 years at Flintkote Supply Company, located in San Diego, California. Flintkote is a . major supplier of gypsum drywall, manufactured at its facility in Arden, Nevada, to Employers Ghianni, Sayatovich, and D.J. Based on his familiarity with and examination of the var- ,ioiis•bills;of lading which-accompany each shipment, Rothgeb was permitted to testify that the gypsum drywall is manufactured at Flintkote in Arden, Nevada, and then shipped to points in and around San Diego in response to the Employers' orders. Respondent argues that it was not proper to permit Rothgeb to testify that the gypsum drywall was shipped from Nevada to California. Respondent further argues that the Flintkote bills of lading, the basis of Rothgeb's knowledge, were prepared in ,Nevada and not by the witness nor under his direction and control. In support of his argument, Responent cites the recent case of NLRB v. First Termite Control, 646 F.2d 424 (9th Cir. 1981). This case, however, does not apply to the instant case because the, witness who attempted to authenticate the documents was not employed by the company who prepared the documents and he had no direct knowledge about the documents' preparation. In contrast, here the bills of lading were prepared by the Arden, Nevada branch of Flintkote and introduced by Rothgeb, an em- ployee of the San Diego branch Only a single entity was involved much like the facts of U.S. v. Olivo, 278 F.2d 415 (3d Cir. 1960), recognized by the court in First Ter- mite Control as valid authority in a proper case.5 In this case, the bills of lading were not offered as ex- hibits. Rothgeb's testimony, based- in part on his knowl-- edge of and familiarity with the documents, and, in part based on his general performance of duties as an assistant manager for 2 years, is admissible pursuant to Fed.R.Evid. 406 (Habits; Routine Practice).6 In so hold- ing, I note the lack of any apparent reason for Rothgeb to fabricate his testimony. I note further that in this in- stance and in others where the documents in question were not present at hearing, Respondent never requested that the missing documents be produced for use in its case-in-chief. This indicates to me a lack of any real con- test as to the contents of these documents. In sum, the interstate character of Flintkote's business was adequate- ly established by the testimony of Rothgeb. • One of • the Employer Charging Parties was Ghianni Drywall, a customer of Flintkote. John Ghianni, an offs- , 4• See-Rubber Workers Local 878 (Goodyear Tire Co), 225 NLRB 251 fn 1 (1981) - 5 Cf US v Flom, 558 F2d 1179, 1182 (5th Cir 1977), and US v Ulbach, 580 F 2d 765, 771-772 (5th Cir 1978). two cases distinguished on their facts- in First Termite Control The facts of these two cases more closely parallel those in the case at bar than do_ the facts in First Termite Control 6 The relevant portions of the Federal Rules of Evidence cited in this opinion are contained in "Appendix A " In addition, Fed R Evid 1004(4) (Admissibility of Other Evidence of Contents) would permit oral testimo- ny rather than require the documents themselves where the subject of the documents relates to collateral matters I hold the document here relate to collateral matters See Cormick Evidence § 234 at 56-66 (2d ed 1972)) and fns 47 and 48 ' 1 1183 cer of the Company, testified that in the last 3-1/2 months of 1980, his Company purchased $231,160 worth of gypsum drywall from Flintkote. This figure was com- puted by the witness. personally, adding up his monthly invoices for the relevant months. Although not.produced at hearing-nor requested by Respondent-these, in- voices justify Ghianni's testimony.7 Another witness at hearing was Joe Sayatovich, presi- dent of Sayatovich Drywall. Like Ghianni, he testified that during 1980 he purchased approximately $59,000 worth of gypsum drywall from Flintkote. Unlike Ghianni, Sayatovich produced at hearing his relevant in- voices for Flintkote and they were made available to Re- spondent's counsel for examination. Thereafter, counsel for Respondent had no questions for the witness. Still another Employer-Charging Party which pur- chased from Flintkote was D. J. Drywall According to Robert Valderrama, administrative manager for D.J. for the past 2 years during 1980, D.J. purchased gypsum drywall from Flintkote in excess of $750,000. This figure was computed by the witness who reviewed- the D.J. in- voices for the year 1980 reflecting purchases from Flint- kote. These invoices were prepared by Flintkote and re- ceived in the mail by D.J. Then the witness compared the tape to D.J.'s accounting books and records to verify the final figure. Valderrama further testified that it was part of his daily responsibility to oversee all of the ac- counting records of D.J and. the regular ordering of ma- terials. The witness produced at hearing the tape reflect- ing the monthly purchases but not the invoices For the reasons previously stated as to Ghianni, Rothgeb, and Sayatovich, I'find that Valderrama was a witness compe- tent to testify as to the jurisdictional facts relative to D.J. for 1980. In light of.the above, I conclude that the Board has jurisdiction over the operations of Ghianni, Sayatovich, and D.J.8 During 1980, these three Employers purchased gypsum drywall valued in excess of $50,000 from Flint- kote, which had received the material from points locat- ed outside the State of California: - Respondent also objects to the testimony of Donald Deya, who has been, since April -1978, sales representa- tive of Domtar Gypsum, of Long Beach, California. The witness had held a similar job for a predecessor of Domtar since 1956. Like Flintkote, Domtar is a major supplier of gypsum drywall to San Diego area contrac- tors. This witness identified a color. brochure used by him in his business (G.C. Exh. 17). More specifically, Deya testified that the brochure was a general informa- tion brochure used as a '-sales tool to acquaint people with Domtar. The document has been used since,1978 when it was first published. In, part, as a result of the, document, customers of Domtar place orders with, the, witness for 7. Cf US V Pfeifer, 539 F 2d 688 , 671 (8th Cir 1976) In Siemons [Nailing Service, 122 NLRB ^81 (1958),, the Board held that it will assert jurisdiction over all nonretail enterprises which have an out- flow or inflow across state line's of at least $50,000 whether such outflow or inflow be regarded as direct or indirect For the purpose of applying this standard, "indirect inflow refers to the purchase of goods or services which originated outside the Employer's state, but which he purchased from a seller within the state who received such goods or services from outside the state " 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the product. Based on the contents of the brochure (G.C. Exh. 17, p 4) and his general knowledge of business op- erations acquired over the years, the witness was permit- ted to testify over objection that Domtar obtains its gypsum ore from San Marcos Island in the Republic of Mexico. The brochure at issue here was properly admitted as a business record pursuant to Fed.R.Evid. 803(6) since it is a report or record of Domtar's business activities kept in the regular course of its business activity. Respondent's claim that the document is mere puffery or prattle and therefore is not reliable cannot be accepted. No matter how it be characterized or described, its use in Domtar's business was adequately explained by the witness. Respondent argues in the alternative, that if the gypsum ore is proven to move in interstate commerce there is still a fatal discrepancy because the product pur- chased by the California employers, the gypsum wall- board, is an entirely different product not manufactured until the ore reaches California. Accordingly, the inter- state commerce element is lacking. This contention has merit. In Kenneth Chevrolet Co., 110 NLRB 1615 (1954), one of the cases cited by Respondent, the Board stated the general rule for assertion of jurisdiction over an employ- er who purchased products alleged to be part of an indi- rect stream of inflowing commerce: We consider a product as being a part of an indirect stream of inflowing commerce only when it is de- livered to the ultimate purchaser in the same form as when it entered the state. The flow is stopped when the form is materially. altered, or . . . when the items become part of an entirely different prod- uct. The Board concluded therein' that automobiles assembled in one State from parts received from other States were "entirely different products from' the component parts." It therefore declined to assert jurisdiction. In the instant case, I look to Domtar's brochure (G.C. Exh. 17, p. 13) for an explanation of the manufacturing process and a comparison between the gypsum ore which clearly moves in interstate commerce and the gypsum wallboard, which does 'not move in interstate commerce to California employers. First, the gypsum ore is pulvarized, and the water is removed. The result is a fine powder called stucco. Several other steps in the process are described until finally a gypsum wallboard results which is an entirely different product from the gypsum ore. This wallboard is the product sold to the employers. I find that these sales relevant to this case are entirely intrastate and the interstate commerce element has not been proven. s_ In light of this finding, I hold that 9 The General Counsel asserts that Domtar produces gypsum drywall essentially from scratch He summarizes very briefly the manufacturing process and concludes, "Thus, Domtar represents the purest case of an enterprise engaged in interstate commerce " (Br 19) Kenneth Chevrolet is not mentioned, and I find that case requires a contrary conclusion Com- pare Culligan Soft Water Service, 149 NLRB 2 (1964) Alta Drywall's purchase from Domtar of gypsum drywall in excess of $300,000 during 1980 did not affect interstate commerce. Similarly, the purchases by Sayato- vich from Domtar had no effect upon interstate com- merce. However, the Board's jurisdiction over these two employers is proven by other evidence, as discussed fur- ther below. - I turn next to Shapell Industries. of San Diego. Sha- pell's general sales manager is Thomas Dobron, a witness of hearing. As part of his duties, Dobron supervises a number of salesmen, sometimes makes direct sales" him- self, and follows all sales to close of escrow. As general sales manager,Dobroti's very job tenure is dependent on an adequate level of sales performance. Based on his review of relevant sales records and records of closings, Dobron was permitted to testify over objection that Sha- pell's total volume of sales during 1980 was in excess of $20 million. Of this, approximately $4 million in sales were made to persons residing' in Mexico at the time of purchase. 10 I find that Dobron's testimony had sufficient charac- teristics of trusthwortiness; moreover, - it related to a standard business custom and practice (Fed. Rules of Evid. 406, Habits; Routine Practice). Thus, his testimony was admissible to prove the volume of house sales to persons residing outside the State of California. ' Another'representative of Shapell to testify was Jef- frey Peterson, employed by the company as purchasing agent for over 2 years. Again over objection, this witness was permitted to describe purchases by Shapell of_home appliances such as microwave ovens, trash compactors, dishwashers, and small commercial washers and dryers for its newly constructed homes. During 1980, these ap- pliances were purchased from three sources: Whirlpool, about which the witness had no relevant knowledge; Tappan, about which this exchange occurred: MR. PETERING: Do you know -where the Tappan appliances that Shapell buys are manufactured or shipped to Shapell from? WITNESS: I believe it's Illinois. I couldn't be sure and General Electric, about which the witness testified, that the General Electric appliances are shipped to Cali- fornia from Kentucky. This knowledge was based on conversations between the witness and a representative of a trucking company which meets the rail car at some point to pick up the appliances. Through these conversa- tions, the witness is able to learn where the shipment is between Kentucky and the San Diego area so he will be able to estimate its arrival in California. Based upon a review of Shapell's documents, the witness testified that 10 The witness produced no documents at the hearing However, in addition to his review of an presumed familiarity with the gross sales fig- ures, that portion of sales to persons residing in Mexico involves a special procedure Such buyers must sign relevant documents at the nearest American consulate and, after proof of identity, their signatures are nota- rded This procedure is known to the witness because he is required to send subordinates to Mexico for the purpose of having Shapell's custom- er's sign the papers in the proper way at the consulates PAINTERS ORANGE BELT DISTRICT-COUNCIL 48 (GHIANNI CONSTRUCTION) 1185 during 1980, purchases of appliances, in excess of $167,000 were made from General Electric. The only proper evidence of interstate commerce from Peterson was with respect to General Electric. Although based on conversations with a representative of a truck- ing company and on an examination of documents-not produced at the hearing, said evidence was nevertheless properly admitted for jurisdictional purposes; again pur- suant to Fed.R.Evid. 406. With respect to Dobron's testi- mony, I accept the General Counsel's theory (Br. 17, fn. 8) that the sales of homes to persons living in Mexico at the time of purchase is sufficient to establish the firm's retail standard in interstate commerce. i i Thus, based on Peterson's testimony and on Dobron's testimony, I find that Shapell's business affects interstate commerce and is subject to Board jurisdiction. Furthermore, because Robert Gilchrist, president of Alta Drywall, testified that in 1980, Alta performed a contract in excess of $180,000 for Shapell, I find that the Board has jurisdiction over Employer Alta. Finally, I turn to the testimony of Charlene Robinson, an assistant corporate secretary for Pacific Scene, a wholly owned subsidiary of Pilara Corporation. The wit- ness holds the same position for Pilara and is also execu- tive assistant to the president of Pacific Scene. Based on this background, which included receipt and review of weekly sales records during 1980, Robinson was permit- ted to testify that although Pacific Scene does business only in California, during 1980 its retail sales to home buyers amounted to an excess of $100 million. Robinson further testified that Pilara purchased for its own em- ployees, and for Pacific Scene employees, disability in- surance from Union Mutual Stock Life Insurance Com- pany of Portland,- Maine.12 The monthly premiums in excess of $600 per month are mailed personally by the witness to Portland, Maine. (G.C. Exh. 18 a-1.) The mailing of these premiums demonstrates a substantial effect on interstate commerce. 13 Ronald Sherman testified that during 1980, he was a partner. in Lewis & Sherman and performed -a subcon- tract for Pacific Scene at two separate San Diego area locations. Prior to doing this work, the partnership bid on the job and the witness performed all estimates.. He " Cf Redwood Dental Group, 219 NLRB 1045 (1975) I also find that Shapell 's construct ton and sale of homes was a retail enterprise DeMarco Concrete Block Co, 221 NLRB 341, 342 (1975) The Board's retail stand- ard of $50,000 gross volume of business is fully applicable to Shapell, whose 1980 volume of business exceeds that standard 12 In this case, I assume, without finding, that it was necessary for the General Counsel to prove a point employer relationship between Pilara and Pacific Scene In NLRB Y Don Burgess Construction Corp, 596 F 2d 378, 384 (9th Cir 1979), the court said that Single employer status ultimately depends on all the circumstances of the case and is characterized as an absence'of an "arm's length relationship found among unintegrated companies " By this standard , a parent wholly owned subsidiary relationship is, by definition, a joint employer Whether this statement is correct or not, I find that here the record establishes a joint employer The witness, Rob- inson , is a corporate officer for parent and subsidiary Disability and other types of insurance and apparently accounting systems as well are integrated for both companies This is sufficient for jurisdictional pur- poses See Lamar Outdoor Advertising, 257 NLRB 90, 93 ( 1981), Marlene Industries Corp, 255 NLRB 1446 (1981) 13 Redwood Dental Group , 219 NLRB 1045 (1975) Cf Metropolitan Life Insurance Co, 141 NLRB 337 (1963), and 141 NLRB 1074 (1963) also received from Pacific Scene, a partnership tax form for 1980 reflecting the total dollar volume of work amounting to $997,000. Although Sherman did not have the tax returns with him at hearing, the forms were at his office, but were not requested by Respondent. I find that Lewis & Sherman met the Board's indirect outflow standard. 14 In sum, I find that the documents and testimony in this case relative to jurisdiction were properly admitted either pursuant to an appropriate authority of the Feder- al Rules of Evidence, or under the Board's more liberal discretionary standards for admission of evidence in ad- ministrative hearings. The evidence at issue here was sur- rounded by adequate indicia of reliability and was never contradicted by any of Respondent's witnesses. I have credited all of the General Counsel's witnesses testifying about jurisdiction and I found them to be truthful. Con- cerning jurisdiction, I find that the Board would assert jurisdiction over all Employers-Charging Parties in this case for the reasons indicated. I find further that these Employers have engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act.15 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 Sometime during 1977 or before, a multiemployer as- sociation of drywall contractors in San Diego County signed a 3-year contract with the Respondent. The con- tract expired on June 30. Beginning shortly after Janu- ary, the Union began to receive notice that some former members of the employer's association were withdrawing from it and would not become a signatory to any new agreement reached with the Union. The five employers discussed in part I of this opinion either have withdrawn from the association or were never in it to begin with. In response to this perceived threat to its bargaining position, Respondent adopted a bifurcated strategy for negotiating a new agreement. It continued to bargain with the remaining members of the employers' group and, sometime prior to June 30, reached agreement with them on a new contract. Regarding the other employers, Respondent's strategy was formulated at a series of meet- ings, beginning in April In that month, two meetings were held: one for member foremen and superintendents, and the other for member rank and file. Basically, the Union's message at both meetings as presented by Busi- ness Representative Keese Kennedy was the same. Ken- nedy, a witness at hearing, told the members that in order to convince all contractors to sign a new contract, they would all have to stick together He reminded them that conditions in the trade has improved since 1977 14 Indirect outflow refers to sales of goods or services to users meeting any of the Board's jurisdictional standards except the indirect outflow or indirect inflow standard Stemons Mailing Service, supra, 122 NLRB at 85 15 In light of the above, I must deny Respondent's motion to dismiss based on the grounds that jurisdiction has not been established 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when a strike had occurred before a new contract was reached, and that the Union was determined not to re- gress back to those earlier days of lower benefits Another message conveyed by Kennedy to members concerned the nonunion employers. Kennedy. told mem- bers they should visit these employers' jobsites on an in- formal and unorganized basis to tell painters and tapers not to work for - nonsignatories 16 Kennedy further threatened to bring internal union charges against any members working for nonsignatory employers after agreement was reached on a new contract. In subsequent meetings, one in May, another in June, the idea of visiting jobsites was again discussed and for- malized . Usually, from 60-80 persons, attended these meetings and a concept evolved that the greater- San Diego area would be divided into grid zones. A car con- taining two to three members would be-assigned to a certain grid area and be responsible for identifying the construction sites for their area controlled by nonsigna- tory employers Then they would go to these locations and, if possible, with the permission of a job superintend- ent or foreman, attempt to talk briefly with the painters and tapers to convince them not to work for the nonsig- natory employers. Advantages of an industrywide union contract were to be stressed and reference to supposed improvements after 1977 were made.17 This plan, referred to at hearing as the "Kennedy Plan" did not become operational until after June 30. Sometime in late June, the Union ratified the new con- tract with signatory members. However, Kennedy testi- fied that these union contractors complained that the nonsignatories were undercutting their business by low- ering labor costs. Accordingly, Kennedy, on behalf of the Union, decided to begin formal operation of the "Kennedy Plan." - The Union paid each participant in the Kennedy Plan $21 per day which was expected to cover food and gas. Initially, only one car with two to three members in it went to each job. Each day began and ended at the union hall. The number of participants from the Union ranged from a maximum of 18 to considerably, fewer than that. About 8 a.m. each team was assigned , a certain grid to cover. The teams left and reassembled at the end of the day to compare notes. The next day the grid as- signments were switched around to a new team having some idea of the prior team's results by a system of infor- mal notekeeping which were kept each day by the team assigned to a particular grid. This operation lasted through July and early August and only on the last day was there more than four members in a vehicle On that day a total of five members rode in a single van to visit nonunion jobsites. . One of the participants in this plan was Ernie Gardini, a witness at hearing He is a journeyman drywall finisher and a member of the Union for about 10 years. Gardim 16 In this case , it is important to understand that painters and tapers are represented by Respondent Drywall hangers are represented by the Carpenter's Union, not a party to this case Tapers do the nails and put putty and tape on the points of new buildings 'Hangers hang the sheet- rock r' Union members were further instructed to dress well and to avoid violence • last received expense money from the Union on August 6, apparently the last day of the "Kennedy Plan." On August 7, Gardini and some other members of the Union went to the Carpenters' union hall. According to Gar- dint, the drywall hangers and the painters and 'tapers were closely related trades and in his opinion the cam- paign against the nonsignatories was likely to be more successful if the two unions teamed up. No members of the Carpenters: Union testified at hear- ing, but it is clear that about August 7 • the Carpenters' Union was planning to visit jobsites, just as it had done on the prior day. Unlike Respondent, the Carpenters de- cided to visit individual jobsites in large numbers. Gar- dini, along with 15-20 members of his union observed this caravan forming up on August 7 and when someone from the Carpenters invited 'them to join up, they did. In the words 'of Gardini: So we were more or less invited so we kind of did. We kind of talked to our guys, our tapers was there. And, you know, "Let's go talk to some tapers, too." - Thus, on-August 7, a total of 80-90 persons, members of both unions, went to an Alta jobsite in a massive auto caravan.. The caravan saturated the area with cars. Gardini and possibly others had been to the jobsite before and reiter- ated the message that it was not good to work for a non- union employer. Threats were denied. There followed visits to other jobsites in the San Diego area. Periodical- ly, police were called but no arrests were made. Media representatives appeared on the scene to find out what was happening. At one point, the group stopped for re- freshments before continuing the visits to jobsites. After the'break, according to Gardini, the group had grown to quite a few over a hundred. They went to a jobsite in Chula Vista under D.J. There, the job superin- tendent insisted that only four to five representatives ac- tually enter the jobsite. Members of the group complied and sent that number in to talk to drywall hangers and tapers. While the union members were there, someone from the caravan stole some tools. of employees working for D.J. These were later recovered, in part through the efforts of Gardini • At the end of the day, all or most of the participants in the caravan reassembled at the Carpenters' union hall, where they had started from. at this time, Geoige White, a business agent for the Carpenters' Union, told the group that their activities were unlawful and the Carpen- ters' Union would bring charges against any members of that union who participated further in the caravan activi- ties. • This message was also conveyed on - August 7 to Kennedy by White. According to Kennedy, however, on August 6, he went with White,- at the latter's invitation, to see about a ' problem in Escondido. • There they ' were confronted by Lewis Sherman, a witness at hearing.' A dispute about what occurred followed and will ' be dis- cussed below - Returning to August 7, Gardini testified that after White admonished members of his union not to continue their activities, they moved their. meeting from the Car- PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (GHIANNI CONSTRUCTION) penters' hall to a nearby parking lot. Agreement was reached to meet again in the morning of the next day. Gardini, and apparently other members of Respondent, together with representatives of the Carpenters' Union, continued their caravan for 2 additional days after White's warning .to them to stop According to Gardini, fewer than half of the first-day participants showed up the next day and even fewer on the final day. The record does not reflect the breakdown between the two unions, but:each was represented. No money was paid by Respondent. to Gardini or any other member of Re- spondent for their activities with the Carpenters' Union. While Gardini and others were participating in the above activities, several of Respondent's members were attempting to resign. These persons were divided into rank-and-file members and statutory supervisors who were authorized to adjust grievances as stipulated by the parties. Because each attempted resignation has slightly different facts, it is necessary to recite in detail the cir- cumstances of each attempt within the two broad catego- ries. This will be done below. For now, it suffices to say that subsequent to his attempted resignation, each of the affected persons was charged by the Union with a viola- tion of its, constitution. Trial boards were scheduled but none of the charged persons elected to participate. They were all found guilty of the charged offense, but none appealed. They were all fined for their alleged transgres- sions, but none has paid any amount of money to the Union. Pending a decision by the Board on the propriety of the fines, the Union has suspended its collection ac- tivities. B. Analysis and Conclusions 1 Mass entry of two jobsites During the course of this case, I inquired on more than one occasion why_ the Carpenters' Union was not part of the case. Now Respondent has endeavored to ex- plain in part the Carpenters' absence from this case. Ex- hibits A-D to Respondent's brief indicate that the Gener- al Counsel felt that there was insufficient evidence to charge that union. 18 Based on the evidence of record here, I would respectfully disagree . However, the dis- agreement is entirely academic since the General Coun- sel has virtually unreviewable discretion to file or not to file a complaint in a given case. I can find no bar to con- sidering whether Respondent violated the Act merely because ' the General Counsel elected not to charge the Carpenters' Union. Turning to the merits of this case, I note initially,-that the General Counsel disavows (Br. 20, fn. 11) any intent to claim that the so-called Kennedy Plan violated Sec- tion 8(b)(1)(A) of the Act. However, the General Coun- sel nevertheless argues that the Kennedy Plan led to the mass entries in issue here and that not only did Respond- ent not disavow. their members' activities of August 7, contrasting - Respondent's lack of diligence with the pur- ported early condemnation by White on behalf of the 18 Although these documents have never been formally admitted into evidence, I permit them to remain appended to Respondent 's brief, as they are subject to official notice 1187 Carpenters' Union-but in fact condoned these activities. In sum, argues the General Counsel (Br. 20), once Re- spondent began the Kennedy Plan, Respondent bore the responsibility to properly police the activity and maintain order, or failing that, take the responsibility for any mis- conduct which resulted. Both the General Counsel and Respondent' recognize controlling authority in this case as Hotel & Restaurant Employees Local 2 (Zim's Restaurant), 240 NLRB 757 (1979), and Retail Wholesale Union (B. Brown Associates), 157 NLRB 615 (1966). I have read the cases and have reviewed the facts of the instant case. I must conclude that a violation of Section 8(b)(1)(A) has not been estab- lished. It is not certain whether mass entries began on August 6, but this is the first record evidence of such events. On that day, large numbers of Carpenters' Union members of their representatives entered a Lewis & Sherman job- site. Business Agent White was there and at another job- site later that day. In response to a request for an expla- nation from Sherman, White claimed that he did not know what was going on. About 15-20 nonemployees were present at both jobsites and stayed- about 30-60 minutes. The nonemployees sat on stacks of sheetrock and prevented Lewis' employees from working. Several of Lewis' drywall hangers left due to threats from repre- sentatives of the Carpenters' Union. Sherman also testi- fied that he thought a business agent of the Union was present Although Sherman named someone else, Kenne- dy admitted in his testimony that on August 6, he rode with White to Sherman's jobsite. Kennedy had been asked by White to accompany him, although White said only that "he had a problem in Escondido." Apart from Kennedy's admitted presence with White, and there is no evidence that he _did anything more at either of the Lewis & Sherman jobsites than be present, there is no ,evidence that any other representatives of Respondent were present or were part of the nonemployee group talking to Sherman's drywall hangers. Another witness to events on August.6 was Denis Adair, a statutory supervisor, who was working for Southern Paint Company on the day in question. Adair testified that about 10:30 a m., about 20-30 cars drove up to his job containing 60-80 persons. The witness recog- nized several as drywall hangers . He also recognized White in a car with Kennedy. In response to Adair's question of what was going on, Kennedy, who knew Adair, allegedly, responded that "the hangers and the tapers have it all together now." The nonemployees re- mained there about 45-60 minutes talking only to hang- ers. When they left, all drywall hangers left, but no tapers or painters did. With the exception of Kennedy who denied making the remark attributed to him, there is no evidence of any other representative of Respondent being present. . The General Counsel contends that Kennedy's disput- ed remark shows that Respondent condoned the mass entry. First, I: cannot' find that Kennedy made the remark. I note that Adair had charges brought against him by Kennedy and was a party in interest . Next, in the context of this case, the alleged answer makes no. sense. 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Other than Kennedy, there were no members of Re- spondent there on August 6. No joint activity occurred until August 7. Finally, even if Kennedy said it, the remark is too,ambiguous to show condonation It may have meant only that both the painters and carpenters were attempting to sign up nonsignatory employees. The first witness for the General Counsel to describe the events of August 7 was Jeffrey Deya, a foreman for Alta Drywall. About 9 a in., about 20 trucks and cars ap- proached his Shapell job at El Dorado Hills and he gath- ered his crew together. These were all hangers. A meet- ing was held between Deya's seven drywall hangers and the approximately 40 or so nonemployees, some of whom Deya recognized from the time he was a member of the Carpenters' Union. The nonemployees stated, "Join the Union,"-no particular union was mentioned- "or don't works" Benefits of union membership were dis- cussed and after 30-60 minutes, the nonemployees left. On the way out, these nonemployees talked to the tapers, but the tapers just kept right on working. He was not sure if any tapers `left the job, but the witness and his entire crew did leave that, day, but returned the next day. The .witness assumed that all nonemployees were mem- bers of the Carpenters' Union, based on his knowing some of them and his being shown a price list of union rates for his work. In the words of the witness, "Every- thing coincided, I mean, who else would it be." As noted above, Gardini admitted in Respondent's case-in-chief being present at the Alta job. He talked to a taper-on the job who rejected his remarks on behalf of Respondent. ' Apparently unknown to Gardini at this time, one of the nonemployees had to be restrained by other persons in the group who told him, "Lei's not start trouble." This incident apparently involved an Alta em- ployee named Clyde Neff, a drywall hanger and witness at hearing. He testified that after refusing to go,to an in- formal meeting called by the nonemployees at the Alta job, he was called a "God-damned son-of-a-bitch" and was the subject of other profanities. Neffe impressed me as an impetuous and irresponsible person. I further find, from'his demeanor and from a fair reading of his testimo- ny in the context of the entire case, that to the extent that near violence occurred, he was more responsible for provoking it than were the nonemployees. - It seems clear on this record that Respondent has no responsibility for events that occurred on August 6 for the reasons stated above. Mere presence of a single rep- resentative-Kennedy-without approval or condona- tion-under the circumstances showing he was there, at the invitation of White-does not show responsibility for the events which occurred. On August 7 the issue becomes closer. The Carpen- ters' Union was never charged in this case because there was evidence that .White immediately disavowed the ac- tivities of his members as soon as he learned of them, ac- cording to 'the General 'Counsel. ' On the contrary, the evidence in this case shows that White first learned of the Carpenters' Union's mass entry on the morning of August- 6 and did not disavow the activities of his union until the evening of August 7. Moreover, since the non- employees of August 6 were his people, I equate his -presence at the scene with active participation. This must be contrasted with what Kennedy knew about the activi- ties of his men. There is no evidence that.Kennedy knew of the activities of Gardini and the other tapers until the evening of August 7 when he saw a television interview. Thus, it seems to me- that, as of August 7, the'evidence against the Carpenters is great while against Respondent is slight. However, this seeming imbalance of the equities does not present a defense. I find no violation here because 'Gardini could not bind Respondent. Clearly' he was' not7and `is-iiot' an 'offi- cer nor employee of Respondent.19 He was receiving no expense money on August 7. He and the other members 'of Respondent were on a frolic of `their own in deciding to accompany the Carpenters' Union.20 After August 7, when White served notice that in the opinion of his union' :-entry was unlawful, the unauthorized activities of Gardini and other members of Respondent and of the Carpenters' Union continued for 2 additional days. Be- cause there is no evidence that Kennedy knew that these activities were continuing, because even if he did know, there was no reason for him to believe that Gardini and the others were acting on behalf of Respondent, and be- cause there is no reason to believe that Gardini would have heeded Kennedy's warning to, stop such activities any more than Gardini heeded White's 'warning, -I find that Kennedy's apparent lack of action after August 7 would not serve to ratify the actions of Gardini.21 In sum, I find that under the common. law rules of agency law, which the Board instructs us to apply,22 Gardini and other members of Respondent subsequent to August 6 had neither express, implied, nor apparent au- thority to bind Respondent. That is, neither Kennedy, nor anyone else on behalf of Respondent, either author- ized or condoned Gardini's activities. And there is- a sub- stantial question whether Kennedy even knew about the activities of his members' subsequent to August 7 when Kennedy saw the television news program. In the alternative, I assume, arguendo, that Respond- ent was somehow responsible for the mass entries which occurred here. No violence nor imminent threat of vio- lence' occurred with the possible exception of an incident involving Neff which I find was primarily provoked by him. Accordingly, this case is outside the parameters of 'B Of course, mere union membership is not determinative since mem- bership alone is insufficient to create agency relationship Holiday Inn Ri- verfront, 250 NLRB 99, 100 (1980) - 20 Put differently, I find no evidence that Kennedy or Respondent in- tended to confer on Gardini any authority on behalf of Respondent, sub- sequent to August 6. the last day-he received expense money Holiday Inn, supra at 101 It is unnecessary to determine whether Gardini and other participants in the Kennedy Plan were agents of Respondent on August 6 or before 21 Moreover, if indeed an unlawful joint venture between' the two unions occurred here, White was the agent of Respondent as much as of the Carpenters' Union Cf U.S v Heck, 499 F 2d' 778, 787 (9th Cir 1974), cert denied 419 U S 1088 date Accordingly, his disavowal of the mass entry activities on August 7 should be considered Just as effective on legal and equitable grounds against Respondent' as it was to exonerate the Carpenters' Union In addition, I have reviewed Sec- 2(13) of the'Act which states in part that lack of ratification is not controlling oil 'the question of agency Here my finding of no agency is based on all the evi- dence of record 22 Teamsters Local _886 (Lee Way Motor Freight), .229 NLRB 832 (1977) ' PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (GHIANNI CONSTRUCTION) Zim's Restaurant, 240 NLRB 757 (1979), and B. Brown Associates, supra 157 -NLRB 615 (1966), so that these cases do not apply , here. - For all the reasons stated above, I will recommend to the Board that this allegation be dismissed.23 '2 The attempted resignations (nonsupervisors) As Respondent intensified its campaign to convince its members not to work for nonsignatories, several persons, ,for a, variety, of reasons,, decided to attempt resignations from the Union. Respondent contends that none of these resignations was effective and that the subsequent fines were, therefore entirely lawful. Because the facts about each person involved differs to a certain degree, it is nec- essary to discuss each employee separately. But first I will discuss some preliminary facts and principles of law. All employees in issue here were members in good standing of the Union prior to June 30 In addition, Re- spondent's constitution provides in relevant part, page 70, section 125-"Resignation`' ` Any member may sever his 'connections with the 'Brotherhood by written resignation, provided he has'paid all dues and arrearages, he does not contin- ue -to work as a journeyman at any branch of the trade, and his Local Union accepts -his resignation by vote of the membership. No resignation shall be accepted during a strike or lockout. A member who resigns shall not thereafter be entitled io any Broth- erhood Benefits. [R Exh. 6.] In this case the General Counsel and Respondent agree that, at least as far as our highest court is con- cerned, the issue to be decided has not-been settled. In NLRB v. Textile Workers of America, Local 1029 Granite State Joint Board, 409 U.S. 213, 218 (1972), the Court stated: We do not now decide to what extent the contrac- tual relationship between union and member may curtail the freedom to resign. Respondent'complains that the Board, unrestrained by, a definitive decision of the Supreme Court, "has been too quick to find that union constitutional restrictions on the right to resign are unreasonable. (Br. 45.) I, of course, have no comment on-this assertion, but I have reviewed Board precedent, which`is binding on me, and have de- cided that there is little question that Respondent has violated Section 8(b)(1)(A) of the Act as alleged. I con- sider first section 125 of Respondent's constitution. Labor organizations"`constitutional provisions which "limit too severely the rights ,of employees to resigii `are' invalid as overly restrictive " Sheet Metal Workers Local 170 (Able Sheet Metal Products), 225 NLRB 1178.fn 1 (1976). The Board has held that provisions requiring ap- proval of members' reasons for resigning or withdrawing from membership but failing to specify objective stand- ardsfor such,approval are overly restrictive Hendricks- Miller .Typographic Co., 240 NLRB 1082, 1088 (1979); 23 In light of my findings, it is unnecessary to discuss Respondent's de- fense involving state law of trespass 1189 Carpenters San Diego District Council, 243 NLRB 147 at 148 (1979). It has also been held that any attempt to pro- hibit resignations of members who desire to continue to -work as journeymen in any branch of the trade is invalid as too restrictive.24 Finally, any attempt to prohibit res- ignations during a strike is also invalid as too restric- tive.25 A provision in a union constitution attempting to bar resignations during a strike, in reality, provides no meaningful, period during which employees can exercise the rights guaranteed to them under Section 7 of the Act to refrain from union activity 26 Because section 125 of the Union's constitution is void in three different re- spects, employee-members had a right to resign at will. Three individuals are affected by this section of the case:2 7 (a) Anthony Del Gatto About July 28 Del Gatto went to Respondent' s union hall and told a 'clerical person he wished to resign. The secretary first thought Del Gatto desired only to with- draw and she so marked his union payment book. (G.C. Exh. 7.) When Del Gatto discovered the mixup 5-10 minutes later, he returned to,the union hall and again in- dicated that he desired to resign This time, the secretary stamped "resigned" in his book and stamped on his book the signature of Union Financial Secretary Tom Wil- lingham . At hearing, Willingham testified that the secre- tary was authorized to use his name stamp in his absence and he was absent on July 28. As Del Gatto was at- tempting to resign he heard someone in the union office say, "Let the son of a bitch resign." This was after Ken- nedy had attempted to talk him out of resigning. I find that Del Gatto had effectively resigned from Respond- ent. About August 28, Del Gatto received notice from Re- spondent that he had,been charged with working for a nonsignatory employer on August 20 (G.C. Exh 8a, b.) About September 23, he received notice that he had been convicted in his absence and fined $1000 of which $750 had been suspended. (G.C. Exh. 9.) I find that the 24 Able Sheet Metal Products, supra, 225 NLRB 1178 fn 1 25 Electrical Workers IUE Local 444 (Sperry Rand Corp), 235 NLRB 98 (1978) 26 .In light of my finding, it is unnecessary to decide whether a strike was actually in progress against nonsignatories when employee -members attempted to resign However, I have serious doubts that any strike was in progress For example, there was no evidence that Respondent ob- served secs 231-237 (Strike and Lockout Law) of its own constitution (R Exh 6) Further, at the several meetings held prior to June 30, there is no evidence that a strike was discussed None of the employees or su- pervisors involved as discnminatees in this case were charged with work- ing during a strike Against this evidence, the mere fact that some picket- ing occurred on a casual and sporadic basis is not convincing . 27 In finding the several violations charged in this case, I have noted that all employee-members elected not to exhaust internal union reme- dies They.did not participate in their trials, nor did they later appeal The Board has held that any such failure to exhaust internal union reme- dies does not affect the validity of the 8(b)(1)(A) violations with respect to the various fines Paperworkers Local 725 (Boise Southern Co), 220 NLRB 812, 814 (1975) It has also been held that the Union's failure to press collection of the fines is irrelevant to the case Boise Southern Co, supra Indeed, in this case counsel for Respondent candidly stated at hearing that the Union was awaiting the Board's ruling before-making collection efforts in Cali- fornia Municipal Courts 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempted discipine against Del Gatto after he had effec- tively resigned violates Section 8(b)(1)(A) of the Act. In this case, the violation is particularly flagrant since Del Gatto had no reason to believe that Respondent consid- ered his resignation ineffective.28 In conclusion, I note that Del Gatto denied receiving a copy-of the union constitution or at least never read it, if he did. The issue regarding notice and knowledge of the Union's constitution and the possible claim that members thereby -consented to its contents on joining the Union is not material to this case: I find that Respondent's resig- nation provisions are so restrictive as to be unlawful even in the presence of knowledge.29 However, I will make findings as to the state of each employee-member's knowledge of Respondent's constitution. In making these findings, I note that at one point Respondent's attorney, Silver, engaged in the following colloquy with a witness, Denis Adair: MR. SILVER' You know that little white-haired lady- down at Local 333, sits behind a desk? WITNESS: Yes, I do. Q. She's going to come in here in a couple of days and testify that-in 1970 she mailed you a copy of this green one [union constitution] because she mailed it to everybody, and she kept records of who she mailed it to. - A. I don't recall receiving it. - Even though, prior to making his statement, counsel had requested 10 blank subpoenas, no • such witness was. ever called. For now,- I credit Del Gatto that he was never apprised of the contents of the Union's constitution and therefore could not be said to have consented to section 125-even if he had the capacity to do so.30 (b) William Greene Greene had been a member of Respondent for about 10 years as of the summer of 1980. He had also worked for Ghianni for several years and desired to continue working for him even- though he was a nonsignatory. A short time after Del Gatto had attempted to resign, Greene attended a union meeting where Kennedy told attendees that Del Gatto's resignation was ineffective as it had not been voted on by the union board. Kennedy also added without further explanation, that no one could then resign from the Union. Subsequently, in early August, Greene also went to Respondent's union hall and tried to resign. While there he talked to a secretary named Phyllis, who stated that Tom Willingham had to be present, but he was not there then and she did not know when he would be back. The following day, Greene returned and this time was told by Phyllis that Willingham was at a meeting. After these two attempts to resign from the Union, Greene returned to work for Ghianni. About August 28, Greene received notice from the Respondent that-he had been charged with working for a nonsignatory contrac- 28 See Auto* Workers Local 1384 (Ex-Cell-O Corp), 227 NLRB 1045, 1048 (1977) 29 Sperry Rand Corp, supra, 235 NLRB 98 fn. 1 30 See Ex-Cell-0 Corp, supra, 227 NLRB 1045 at fn 19 tor on August 14. (G.C. Exhs. 10A and 10B.) About September 23, Greene received notice that he had- been found guilty, fined $1000 of which $750 had been sus- pended: (G.C. Exh. 11.) About October 3, Greene re- ceived a letter from the Union demanding payment of the $250 fine. (G.C. Exh. 12.) Neither Greene nor anyone else in this case has ever paid any fine. Finally, about October 15, Greene mailed a letter to the-Re- spondent purporting to resign immediately. (R. Exh. 2.) I find here that Greene effectively resigned from the Union when he went to the union hall in early August. There is no requirement that the Union's financial secre- tary had to be present before a member could resign. Thus, where the resignation procedure is unduly restric- tive, as'I find it was with Greene, employees may effec- tively resign at will on notification- to the Union.3 i In sum, I find that by refusing to accept Greene's resigna- tion and by later charging, convicting, and fining him, Respondent violated Section 8(b)(1)(A) of the Act.32 (c) Samuel Traband An employee of Sayatovich for about 3 years, Tra- band testified to a conversation he overheard on July 7, between Adair and Kennedy at a jobsite. Kennedy stated that the Union was not letting anyone out. Subsequently, Traband was charged for working for a nonsignatory employer. Because he was unable to locate the relevant documents, he -could not be sure of the precise dates. However, he did state that the alleged violation occurred after the Kennedy-Adair conversation described above. Traband never attended the trial, and like the others, he was subsequently notified that he had been charged, con- victed, and fined $1000 of which $750 had been suspend- ed. Later the Union sent the witness a demand letter for payment of the $250, but he has paid nothing. I again agree with the General Counsel that Traband's failure to attempt to resign should be excused on the grounds of futility.33 Here, however, the issue is much closer than the case of Greene. Not only did Traband not make any effort prior to being charged by Respond- ent, there is no direct evidence that he was deterred by Kennedy's remark. - - - - Based on his demeanor at hearing, I note that Traband was an extremely youthful and immature person. His mother, with whom he was then living, had also been a member of the Union, but resigned at some point. When the Union demanded its fine, his father sent him to a local attorney to advise him. I find that but for the con- versation he overheard, he would have gone to the union hall to attempt to resign. I further find that he would have been unsuccessful, not only based on what Kenne- 9' Campbell Itidustries, supra, 243 NLRB 147, 148 Thus, I agree with the General Counsel (Br 23) that the failure of Greene to submit a writ- ten resignation in light of Kennedy's remarks at the meeting and his expe- riences with Phyllis do not affect his rights here It, would have been a futile gesture to submit a written resignation under the circumstances 32 While Greene admitted receiving copies of Respondent's constitu- tion prior to August, he denied knowledge of sec 125 I credit his testi- mony and find further, as he testified, he had no,knowledge of any strike in progress, anyway - 33 See Carpenters Local 1233 (Polk Construction), 231 NLRB 756, 761 (1977) PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (GHIANNI CONSTRUCTION) dy said in his presence, but in the context of this case showing the Union was not allowing anyone to resign during all. times material to this case. Accordingly, I find that Traband had effectively resigned before he was charged by the Union.34 I find further that Respondent violated Section 8(b)(1)(A) when it charged, convicted, and fined Traband. 3 s 3. The attempted resignations (supervisors) Before tui-riing to a discussion of the individuals rele- vant to this section, I note that the parties have stipulat- ed that all such persons were not only statutory supervi- sors, but were also persons authorized to adjust griev- ances. Furthermore, it is not disputed that all such per- sons were members of Respondent in good standing prior to June 30. Although I will make findings on the effectiveness of the supervisor's attempted resignations, this portion of the case turns primarily' on Respondent's discipline of its supervisor-members even assuming that the resignations were ineffective. Section 8(b)(1)(B) of the Act provides that "it shall be an unfair labor practice for a labor organization . . to restrain or coerce . an employer in the selection of his representative for the purposes of collective bargain- ing or the adjustment of grievances." The applicable principles of law are as follows.36 Section 8(b)(1)(B) prohibits both direct union pres- sure-for example, strikes-to force replacement of grievance representatives and -indirect union pres- sure-for example, union discipline of supervisor- members-which may adversely 'affect the chosen supervisors' performance of their representative functions. American Broadcasting Companies v. Writ- ers Guild of America, West, Inc., 437 U.S. 411 (1978); New Mexico District Council of Carpenters and Joiners of America -(A. S. Horner, Iric.), 177 NLRB 500, 502 (1969), enfd.' 454 F.2d 1116 (10th Cir. 1972), and Wisconsin River Valley District Coun- cil of the United Brotherhood of Carpenters and Join- ers of America, AFL-CIO (Skippy Enterprises, Inc.), 218 NLRB 1063, 1064 (1975), enfd: 532 F.2d 47 (7th- Cir. 1976). It is also well settled that union discipline of su- pervisor-members who cross a picket line or other- wise violate a union's no-work rule in order to, per- form their normal supervisory functions constitutes indirect union pressure within the prohibition of Section 8(b)(1)(B). In reaching this conclusion, the Board and 'courts-have recognized that the reason- ably foreseeable and intended effect of such disci pline is that the supervisor-member will cease work- 34 Any contrary iesult with-Traband would permit the Union to profit by its own misconduct, i e, the Kennedy remark - " 35 In this case. Traband-never saw a copy of the constitution and was unaware of its contents I credit this testimony and find the issue of the member's consent to restrictions on resignation is not present in this case Teamsters Local 439 (Loomis Courier Service), 237 NLRB 220, 223 (1978) 36 As recently set forth by Administrative Law Judge Shapiro in Plumbers Local 364 (West Coast Contractors), 254 NLRB 1123, 1125 (1981) 1191 ing for the duration of the dispute , thereby-depriv- ing the employer of the grievance adjustment serv- ices of his chosen representative. American Broad- casting Companies, supra at 433-437, fn 36;- N.L.R.B. v. International Union of Operating Engi- neers, Local Union No. 501, AFL-CIO, 580 F.2d 359, 360 (9th Cir . 1978); A. S. Horner, supra, 502; and Skippy Enterprises , supra, 218 NLRB 1064, enfd. 532 F.2d at 52-53. Such discipline is unlawful even where, as here, the supervisor defies the union and continues to work for the employer during the dis- pute; the discipline is unlawful because the supervi- sor, having .been disciplined for working during a labor dispute, may reasonably fear further discipline and, hence, will be deterred from working during any future disputes . The employer, in such circum-- stances, must either replace the disciplined supervi- sor or risk loss of his services during a future dis- pute; in either event, the employer is coerced in the selection and retention of his chosen grievance ad- justment representative . American Broadcasting Companies, supra, 433-437. I turn now to the individuals included within this sec- tion. Denis Adair Adair was working on a nonsignatory job near Escon- dido, in early July when he told Kennedy that he wanted out of the Union Kennedy told him the Union was not accepting resignations. Kennedy also indicated that while he could. bring Adair up on charges for working for a nonsigantory, he would -reconsider if Adair were gone when he returned. Adair did leave that jobsite. Later in September, Adair met Kennedy on another jobsite and asked him how to resign from the Union but Kennedy made no reply. Adair never submitted a written resigna- tion. About August '28, Adair received notices of charges brought by Kennedy and a separate charge brought by Gardini. Both charges alleged that Adair had worked for nonsignatory contractors, on August 13 (Kennedy) and on July 17 (Gardini). (G.C. Exhs. 4a, b, and c.) About September- 26, Adair received notice that he had been fined $2000 of which $1500 was suspended. (G.C. Exh. 5.) About October 9, Adair again received notice -of charges brought by Kennedy that Adair had worked for a nonsignatory on September 10. (G.C. Exhs. 6a and'b ) The witness received no notice of any disposition of this third charge wherein trial had been set for October 27. I find first that Adair's failure to submit a written ap- plication to the Union is not relevant as it would have been futile to submit one for the, same reasons stated for Traband.37 Accordingly, by bringing charges against Adair after he had effectively resigned from the Union, Respondent violated Section 8(b)(1)(A).38 31 Unlike Traband, however, Adair specifically linked his failure to submit a written resignation to his feeling that it was useless I credit his testimony 38 Adair admitted once receiving a copy of the union constitution, but denied knowledge of sec 125 1 credited his testimony in -the absence of evidence to the contrary - 1192 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD I also find that by bringing charges against Adair, Re- spondent violated Section 8(b)(1)(B). As a supervisor and a grievance adjuster, Adair could not be charged with working during a strike unless he was performing more than minimal nonsupervisory unit work.39 I find that Adair was not performing unit work. Witness this testi- mony of Kennedy- - MR. SILVER: Q. Was he [Adair]- performing jour- neymen's work at that time?- A. At that point in time; he had mud on him, but he was not performing I had been talking to his people, he walked in. But 1 -wrote the charge on him. Kennedy went on to explain that. "mud" was drywall cement and in answer to counsel's- flagrantly leading questions, Adair testified that a person would have to be doing journeyman's work to get "mud" on him, i.e., taping and doing things like that (Mr. Silver formed the leading question to-which the witness merely answered, "Yes.") As to Gardini, he testified that on July 16, he ob- served Adair along with ' Traband physically installing gypsum wallboard on a residential unit of Pacific Scene. I credit neither the testimony of Kennedy nor Gardini. The charges they wrote and submitted to Respondent stated only that Adair was working for a nonsignatory. This completely impeaches their testimony. Even assum- ing Kennedy and Gardini were truthful, there is no showing of how much woik was being done nor for how long.40 Thus, I find that by imposing discipline on Adair because he worked for a nonunion contractor, Re- spondent violated Section 8(b)(1)(B) of the Act.4 i Richard Najera A supervisor for Ghianni for several years, this wit- ness went with Del Gatto to resign from the Union on July 28 . However, Kennedy told him he could not resign . I find that at this time, Najera effectively resigned from the Union . Subsequently, about August 28, he re- ceived notice from the Union that he had been charged by Kennedy with working for a nonsignatory contractor on August 20. (G.C. Exhs. 13A and B .) These charges were personally delivered to the witness by Kennedy. Najera was never notified of any result from the charges. However, I find that charges brought against him violat- ed Section 8(b)(1)(A) of the Act for conduct after he had effectively resigned.42 a9 For purposes of this segment of the discussion,,I assume that Adair had not effectively resigned from the Union and that a strike was in progress-two assumptions fairly rebutted by the record 40 In Carpenters (Skippy Enterprises), supra, 218 NLRB 1063 (1975), enfd 532 F 2d- 47 (7th Cir, 1976), the Board held that 30-percent rank- and-file work did not make a supervisor outside the protection of 8(b)(i)(B) 4i Electrical Workers Local 323 (Drexel Properties), 255 NLRB 1395 (1981) I note that on G C Exh 4b, Adair is alleged to have worked for California Drywall However, according to. his testimony, which I credit, he worked for Sayatovich as a supervisor for all relevant times except about 2 weeks in July Thus, I find he was working for Sayatovich as of August 13 42 Again, Najera admitted receiving a copy of the union constitution, but denied ever reading it I credit his testimony I further find that these charges violated Section 8(b)(1)(B) of the Act. As a supervisor and grievance ad- juster, Najera was not subject to union discipline for working during a strike unless he was performing struck work. Assuming Najera had not effectively resigned and assuming there was a strike, I find that such work as he had been doing was minimal. On August 22, Najera was seen by Kennedy hauling "mud" in the back of his truck on a Ghianni job. This time, there was no conflict be- tween the witness and Kennedy. There is, however, a conflict between what Kennedy wrote in his charge to Respondent and what Kennedy now says Najera was charged with.43 I discredit Kennedy's testimony that Najera was doing unit work during a strike because it is in conflict with Kennedy's written charge. Respondent concedes in its brief at 48 that even if Kennedy's testimony be credited, it was Najera's failure to exhaust his union remedies which led to the Union's failure to consider the minimal work defense. It is hard to believe Respondent is serious about such an argument. First, I have ruled below that an employee has no duty to exhaust union remedies under the circumstances of this case. Next, since Najera was never charged with doing struck work, it is hard to see how he could have presented a properly prepared defense. Luis LeBaron This witness is a supervisor for D.J. Drywall and has been for about 7 years. About; September 17, he sent a letter to the Union attempting to resign immediately. (R. Exh. 4.) However, prior to this, about August 28, he re- ceived notice of charges from Respondent signed by Kennedy that on August 21, he had been working for a nonsignatory. (G.C. Exlis. 14A and B.) About September 28 LeBaron was notified that he had been convicted and fined $1000 of which all but $250 was suspended. (G.C. Exh. -15.) About October 10. LeBaron received notice of a second charge from the Union that Kennedy had ob- served him working for a nonsignatory on September 23. (G.C. Exhs. 16A and B.) I find that the second charge, but not the first, violated Section 8(b)(1)(A) of the Act since LeBaron had effectively resigned from Respondent by that time. I also find that both charges violated Section 8(b)(1)(B) of the Act since LeBaron was a supervisor and grievance-adjuster not subject to union discipline for doing supervisory work during a strike, assuming there was a strike, and, at least, as to the second charge, as- suming that LeBaron had not effectively resigned. Ac- cording to Kennedy, however, LeBaron was not doing supervisor's work, but rather unit work. More specifical- ly, Kennedy stated that he observed LeBaron "pulling hose, and working . . . he was pulling the hoses and that sort of thing." In addition, Kennedy testified that he had been told by pickets in front of the Cory job in Chula 43 Even the dates August 20 in the charge and August 22 at the hear- ing differ Of course, the substance of the charge is completely in con- flict . PAINTERS ORANGE BELT DISTRICT COUNCIL 48 (GHIANNI CONSTRUCTION) Vista where this occurred, that they had seen LeBaron do unit work of an undescribed type and duration. . I cannot credit the testimony of Kennedy. First, Le- Baron denied doing any unit work at the time and place in question, although he also testified that this interpreta- tion of a supervisor's job is to get the job done. This means if someone is not there to do certain work, then the supervisor must do it. A fair interpretation 'of LeBar- on's remarks is that he would have done unit work if it needed to be done, but I believe him when he said he did not do it on the date and time in question. I further dis- credit Kennedy because there is no evidence he spoke to LeBaron at the time Previous evidence had indicated that Kennedy would tell members to get off the job if he saw a member working for a nonsignatory. LeBaron tes- tified that he never saw Kennedy at the time and place in question and I have doubts whether Kennedy was even there as opposed to relying on a report of a picket. I discredit Kennedy for one final and most important reason-again his written charge states that LeBaron was working for a nonsignatory. (G.C. Exh. 14B.) It men- tions nothing about LeBaron performing unit work. Ac- cordingly, with respect to LeBaron, I believe Kennedy not at all and discredit him entirely. Alternatively, if I have erred on the credibility issue, I find the 8(b)(1)(B) violation is still established because even if I were to credit Kennedy entirely, his testimony does not show that LeBaron was doing more than mini- mal unit work.44 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section III, above, occurring in connection with the operations of the Employers described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commece among the several States and tend to lead to labor disputes burdening and obstructing coin- merce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Employers are engaged in commerce within the- meaning of Section 2(6) and (7) of the Act. " See Laborers Local 322 (Kingsley Drilling & Blasting, Inc.), 229 NLRB 949 (1977) 1193 2. The Respondent is a labor organization within-the meaning of Section 2(5) of the Act. - 3. Section 125 of Respondent's constitution - to the extent it attempts,to preclude members'. resignation only when approved by vote of the local membership, or only if the members agree not to work as journeymen in any branch of trade, or only if Respondent is not on strike, is invalid. - 4. By bringing charges against and fining members An- thony Del Gatto, William Greene, Samuel Traband, Denis Adair, Richard Najera, and Luis LeBaron for working for nonsignatory contractors after the members had effectively resigned, Respondent violated Section 8(b)(1)(A) of the Act. - 5. Denis Adair, Richard Najera, and Luis LeBaron are and at all material times have been representatives of their Employers for the purpose, among others, of col- lective bargaining or the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. 6. By bringing charges against and fining-Denis Adair, Richard Najera, and Luis LeBaron for continuing to work for a nonunion employer, Respondent coerced and restrained the Employers in the selection of their repre- sentatives for the purpose of collective bargaining and' adjusting grievances and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(b) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commece within the meaning of Sec- tion 2(6) and (7) of the Act. 8. Respondent has not otherwise violated the Act as alleged. THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices in violation of Section 8(b)(1)(A) and (B) of the Act, I shall recommend that Respondent be ordered-to cease and desist therefrom and to take certain affirmative action designed to effectuate the. policies of the Act, including the rescission of its action in fining Anthony Del Gatto, William Greene, Samuel Traband, Denis Adair, Richard Najera, and Luis LeBaron, the expunging of all records thereof in' its files, and the posting of appropriate notices. [Recommended Order omitted from publication.]