Autoworkers Local 73 (Mcdonnell Douglas)

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica (UAW), AFL-CIO, LOCAL 731 (McDon- nell Douglas Corporation) and Robert G. Fry Jr. International Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica (UAW), AFL-CIO, Local 1092 and Robert G. Fry Jr. Cases 16-CB-2372, 16-CB-2396, 16-CB-2373, and 16-CB-2397 18 December 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS On 30 May 1985 Administrative Law Judge Richard J. Linton issued the attached decision. The Respondents filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision. 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 conclusions2 and to adopt his recommended Order. In adopting that provision of the judge's recom- mended Order requiring that the Respondents ex- punge from their governing documents the portion of their International union's constitution contain- ing the unlawful restriction on resignations, we em- phasize the following reasons. In Machinists Local 1414 (Neufeld Porsche Audi), 270 NLRB 1330 (1984), the Board found that a local union had violated the Act by fining an em- ployee for returning to work during a strike after he had resigned his membership. The employee had been fined because his resignation had violated a provision in the local union's governing docu- ments prohibiting such a resignation. That provi- sion was also contained in its International's consti- tution. As part of the remedy for the violation, the Board ordered the respondent local union to "ex- punge from its governing documents" the provision in its International's constitution that unlawfully re- ' International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, appeared as a party- in-interest. 2 We agree with the judge's conclusion that the Respondents violated Sec. 8(bXl)(A) of the Act by failing to honor their members' resigna- tions. See Typographical Union (Register Publishing), 270 NLRB 1386 (1984). The judge did not make a specific finding that all of the fines levied by the Respondents were unlawful to the extent that they were imposed for the postresignation conduct of the affected employees . We find that the fines imposed on the 94 employees who returned to work before resign- ing were lawful to the extent that they covered preresignation conduct, but that the Respondents violated Sec. 8(bXl)(A) of the Act by fining those employees for their postresignation conduct. See Newspaper Guild Local 3 (New York Times), 272 NLRB 338 (1984). stricted the right of members of the local to resign. The Board in Neufeld Porsche Audi relied on Engi- neers & Scientists Guild (Lockheed-California Co)., 268 NLRB 311 (1983), in fording that a respondent local union should be ordered to expunge an un- lawful restriction on resignations, which was a part of its International union's constitution, from the governing documents of the respondent local union. In Lockheed California, however, the re- spondent was the entity responsible for the consti- tution rather than, as here and in Neufeld, an entity adopting the constitutional provision of another. Nonetheless, we ford that distinction not dispositive in framing the remedy of Neufeld Porsche Audi that we reaffirm. As the Board stated in Neufeld Porsche-Audi: [W]e are only ordering the Respondent [local] to expunge the provision from its governing documents including such documents of the International that the Respondent may have incorporated by reference and adopted as its own. [Emphasis added.]s Thus, as was the case in Lockheed-California, the Board's order in Neufeld Porsche Audi required action only from the entity alleged as the respond- ent, and expunction only of those documents within its own control. The unlawful provision here, pursuant to the judge's recommended Order, is to be expunged from those documents over which the Respondent Locals have full control and for which they, and not the parent International, are responsible. We further note, in providing this expunction remedy, that the mere posting of a notice to mem- bers, informing them that the Respondents will cease to maintain and enforce the unlawful restric- tion on resignations, would be insufficient to erase the coercive effects of the unlawful provision. Thus, retention of such a provision in the Respond- ents' governing documents reasonably would have the effect of restraining an employee wishing to resign from the Union from doing so. Further, a re- spondent union is only required to post the notice to members for a period of 60 days, after which it may, and in all likelihood will, remove the notice. Consequently, employees who became members of the Respondents after the notice had been removed would be unaware that the restriction on resigna- tions, which the Respondents have incorporated into their local bylaws or other governing docu- ments (copies of which are presumably given to new members), is unenforceable and as a result 8 270 NLRB at 1336. 282 NLRB No. 64 AUTO WORKERS LOCAL 73 (MCDONNELL DOUGLAS) 467 they might be restrained from exercising their right to resign at a later period.4 Accordingly, for all the reasons stated above, we adhere to the expunction remedy set forth by the Board in Neufeld Porsche-Audi and adopt the por- tion of the judge's recommended Order in this case requiring the Respondents to expunge the unlawful provision from their governing documents. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Internation- al Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW), AFL-CIO, Local 73, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL- CIO, Local 1093, Tulsa, Oklahoma, their officers, agents, and representatives, shall take the action set forth in the Order. Fry Jr. (Fry or the Charging Party) on June 7 and July 31, 1984, against Local 73 in Cases 16-CB-2372 and 16- CB-2396, respectively, and on June 7 and July 31, 1984, against Local 1093, in Cases 16-CB-2373 and 16-CB- 2397, respectively. i In the complaint the General Counsel alleges that Re- spondents violated Section 8(b)(1)(A) of the Act in March 19134 by imposing fines on various member-em- ployees because they refused to honor picket lines of Re- spondents at MDC and returned to work for MDC not- withstanding that such member-employees had already tendered valid resignations from membership in Locals 73 and 1093. The fines were based on a provision in the constitution of the International Union (UAW or the International).2 The General Counsel also alleges that Respondents violated Section 8(b)(1)(A) of the Act by maintaining and enforcing this provision of the constitu- tion. By their answer Respondents admit certain factual matters but deny violating the Act. On the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel, Respondents, and the party-in-interest,3 I make the following 4 For the same reason, simply ordering the Respondents to notify their members in writing that they will not enforce the unlawful provision is an inadequate remedy as it would not inform those becoming members after the notification date of this fact. J. 0. Dodson, Esq., for the General Counsel. James E Frasier, Esq. (Frasier & Frasier), of Tulsa, Okla- homa, for UAW Locals 73 and 1093. Robert G. Fry Jr., Esq. (Robert G. Fry Jr., and Associates), of Tulsa, Oklahoma, for the Charging Party. Jay Thomas Youngdahl, Esq. (Youngdahl & Larrison), Little Rock, Arkansas, for the Party-in- Interest (with brief filed by Jordan Rossen, general counsel, and Mi- chael B. Nicholson, associate general counsel, of the UAW, Detroit, Michigan). DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This case involves fines assessed by Respondents, Internation- al Union, United Automobile, Aerospace and Agricultur- al Implement Workers of America (UAW), AFL-CIO, Local 73 (Local 73) and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) AFL-CIO, Local 1093 (Local 1093), against 106 members who crossed union picket lines and returned to work for McDonnell Doug- las Corporation (the Employer or MDC) during a strike. Twelve of the members resigned their membership before they returned to work, but 94 did not resign until after they returned to work. The case was tried before me in Tulsa, Oklahoma, on February 19, 1985, pursuant to the August 13, 1984 amended consolidated complaint issued by the Acting General Counsel of the National Labor Relations Board through the Regional Director for Region 16. The com- plaint is based on charges filed by Attorney Robert G. FINDINGS OF FACT 1. JURISDICTION McDonnell Douglas Corporation, a Maryland corpo- ration with a facility in Tulsa, Oklahoma, manufactures and sells, at nonretail, aircraft and aerospace compo- nents. During the past 12 months MDC purchased and received at its Tulsa, Oklahoma facility, goods and mate- rials valued in excess of $50,000 directly from points out- side the State of Oklahoma. MDC, I find, is an employer within the meaning of Section 2(2), (6), and (7) of the Act. H. LABOR ORGANIZATION INVOLVED Respondents Locals 73 and 1093 admit, and I find, that each is a labor organization within the meaning of Sec- tion 2(5) of the Act. 111. ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Provision of the UAW's constitution Most of the facts are undisputed. The pleadings estab- lish that at all times material Respondents Locals 73 and 1093 each maintained and enforced the following provi- sion of the UAW's constitution: i All dates are 1984 unless otherwise indicated 2 The International is named in the pleadings only as party-m-interest. It appeared in the proceeding , and at the hearing it was represented by counsel diflerent from the attorney representing Locals 73 and 1093. The General Counsel does not seek any remedial order against the UAW a The Charging Party did not file a brief The brief for the party-in- interest was filed by the UAW's staff attorneys rather than by the counsel who represented the UAW at the hearing. The General Counsel attached to his brief a proposed order and notice 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Article 6, Membership Section 17 A member may resign or terminate membership only if s/he is in good standing, is not in arrears or delinquent in the payment of any dues or other fi- nancial obligation to the International Union or to her/his-Local Union and there are no charges filed and pending against her/him. Such resignation or termination shall be effective only if by written communication, signed by the member and sent by registered or certified mail, return receipt requested, to the Financial Secretary of the Local Union within the ten (10) day period prior to the end of the fiscal year of the Local Union as fixed by this Constitution, whereupon it shall become effective sixty (60) days after the end of such fiscal year; pro- vided that if the employer of such member has been authorized either by such member individually or by the Collective Bargaining Agreement between the employer and the Union to check off the mem- bership dues of such member, then such resignation shall become effective upon the effective termina- tion of such authorization, or upon the expiration of such sixty (60) day period, whichever is later. 2. Stipulations At the hearing the parties stipulated many of the facts. The stipulations include the ' following ' as summarized from Joint Exhibit 1: From October 17, 1983, to January 23, 1984, Re- spondent Local, 73 and Respondent Local 1093 were continuously engaged in a strike against MDC at its Tulsa facility, and as part of their strike activi- ty picketed MDC's facility at 200 North Memorial Drive in Tulsa, Oklahoma. During the course of the strike, certain of MDC's employees who were members of Locals 73 and 1093 abandoned the strike and returned to work for MDC. These employees submitted letters of resig- nation to Locals 73 and 1093, some prior to and some subsequent to returning to work. On various dates during March 1984, the employ- ees who abandoned the strike, returned to work, and submitted resignation letters to Locals 73 and 1093, were tried, after notice and representation by counsel, by Locals 73 and 1093, and each of the em- ployees was fined $100 plus an additional $50 a day for each day the employee worked for MDC during the strike. In addition, the employees were suspend- ed from union membership for 2 years unless their fines were paid within a specified period of time. The daily penalties were assessed both for days worked before and after Locals 73 and 1093 re- ceived the letters of resignation., Locals 73 and 1093 levied the fines described above because the employees who abandoned the strike, submitted resignation letters, and returned to work did not honor, the picket lines of Locals 73 and 1093 and returned to work without complying with the resignation provisions of Article 6, Section 17, of the UAW's constitution. Further stipulations disclose that 22 members of Local 73 and 84 members of Local 1093 are covered by the foregoing stipulated facts. Nearly all the resignation let- ters were sent by certified mail, but a few (about 16) were delivered in other ways, including registered mail, hand delivered in person or by an attorney, or by regular or special delivery mail (Jt. Exh. 1). The stipulated names and date facts are: Name Date Resignation Letter Received Returned to Work During Strike Local 73 Carol A. Ballman ........................... Billie Jean Behl .............................. R. M. Balduc .................................. Linda M. Brierly ............................ Cynthia Campbell .......................... Erma Cherry .................................. James L. Clift..... Teresa Dalton ................................. William H. Dalton Jr ..................... Peggy Frazier ................................. Nancy Fultner ................................ Kenneth D. Harris .................... .:... Billie M. Knight ............................. Charles O. Lackey ......................... Mary C. Layton ............................. Mildred Lowe .:.............................. Bulah L. Majors ............................. Karen J. Martin .............................. Jack D. Morgan ............................. Sondra ,G. Peerson ........................ Phyllis Steward Thomas ............... Connie Wright ................................ 12-16-83 12-20-83 12-16-83 12-21-83 12-21-83 12-17-83 1-9-84 12-23-83 12-23-83 1-3-84 12-19-83 12-16-83 12-17-83 12-16-83 12-21-83 12-5-83 12-17-83 12-21-83 12-17-83 1-3-84 12-21-83 12-21-83 12-15-83 12-14-83 12-15-83 12-14-83 11-14-83 12-16-83 1-5-84 12-16-83 12-16-83 1-3-84 12-16-83 11-7-83 12-19-83 12-15-83 1-29-83 1-28-83 12-16-83 12-16-83 12-16-83 1-4-84 12-5-83 12-16-83 Local 1093 Mildred L. Abbett .......................... 12-30-83 Harold C. Amenhauser .................. 12-21-83 Hassan Serhan Ahmed ................... 12-30-83 K. E. Archibald .............................. 1-3-84 Anthony Ballone ............................ 1-10-84 Doris Barclay ................................. 12-21-83 Patsy S. Batchlear .......................... 12-19-83 Mary J. Beach ................................ 12-21-83 Mary R. Beach ............................... 12-19-83 Betty Benson .................................. 12-16-83 D. K. Bippus .................................. 12-19-83 Billy Joe Bowling .......................... 12-23-83 Charles L. Brashers ....................... 12-23-83 Elmer Broaddrick .......................... 12-14-83 A. J. Brock ..................................... 12-22-83 James R. Brock .............................. 12-19-83 Marvin Brown ................................ 12-23-83 James T: Bullard ............................ 12-19-83 E. R. Burrell................................... 12-30-83 Luis J. Calaza ................................. 12-17-83 Arley W. ' Cohoon .......................... 12-16-83 Verginia D. Cooper ....................... 12-19-83 George E. Coyle ............................ 1-5-84 12-16-83 11-21-83 1-15-83 10-17-83 1-9-84 1-21-83 11-21-83 12-15-83 12-15-83 11-15-83 12-16-83 11-14-83 11-16-83 12-14-83 10-25-83 11-14-83 11-7-83 12-16-83 12-15-83 12-16-83 12-16-83 11-17-83 1-4-84 AUTO WORKERS LOCAL 73 (MCDONNELL DOUGLAS) 469 ame Date Resignation Returned to Work During Letter Received Strike Ann M. Cravens ....................... 12-19-83 11-21-83 Dean E. Denny .............................. 12-30-83 12-15-83 Norman L. DeWig ................... 12-19-83 11-21-83 George Emigh ................................ 12-19-83 12-15-83 Floyd Engle ................................... 12-21-83 12-13-83 Nola J. Fullbright .......................... 12-19-83 12-16-83 Marcus P. Fultz.............................. 12-17-83 11-21-83 Bailey B. Golden ............................ 12-20-83 11-22-83 Glen D. Hallock ........................... . 12-19-83 12-15-83 H. M. Hammond .......................... 1-4-84 1-4-84 Floyd C. Hannah Jr....................... 12-20-83 12-15-83 Thomas J. Harris ............................ 12-19-83 12-16-83 Weldon Harris ............................... 12-22-83 12-12-83 Arnold W. Henning Jr.................. 1-19-84 1-16-84 Chester H. Hill ............................... 1-6-84 1-4-84 Moms J. Hill Jr............................. 12-16-83 12-15-83 Albert S. Hinshaw ......................... 12-19-83 11-21-83 Clyde Holt ...................................... 12-23-83 11-28-83 Jay M. Homblin ............................. 12-15-83 12-15-83 Hubert H. Horn .............................. 1-12-84 1-11-84 Carl S Howard .............................. 1-3-84 12-16-83 Leon E. Hudson ............................. 12-16-83 12-16-83 L. W. Jacks ..................................... 12-21-83 12-16-83 Bruce Jaggers ................................. 12-19-83 11-8-83 Maxine M. Johnson ....................... 12-27-83 12-15-83 David S. Jones ............................... 12-15-83 12-16-83 John R. Jones ................................ 12-16-83 12-13-83 Robert J. Kuehn ............................. 12-20-83 12-15-83 Virginia H. Mathis ....................... 1-5-84 1-4-84 Sam McCall ................................... 1-4-84 1-6-84 Margie McElroy ......................... 12-19-83 12-15-83 Nancy McTague ........................... 12-19-83 11-22-83 Franklin J. Miles ........................... 12-15-83 11-8-83 Leslie E Miller ............................ 1-6-84 1-4-84 James Raymond Millsap ................ 12-16-83 11-28-83 John Maldomado .................... . 1-4-84 1-4-84 David Moore ............. ................. 12-23-83 11-29-83 Tommy B. Moore .......................... 12-17-83 12-16-83 John R. Morgan ........................... 1-5-84 1-4-84 Edwin B. Nickel ........................... 12-28-83 12-15-83 John R. O'Grady .......................... 12-30-83 12-16-83 Susan E. Parker .......... .......... 12-21-83 11-21-83 Robert E. Price ........................ 12-16-83 12-12-83 Carl R. Reed.......... .................. 12-23-83 12-19-83 Jose M. Sandoval ...................... 12-15-83 11-30-83 Ten E. Schutt ................................ 12-30-83 12-13-83 Charles H. Schultz .. ............. 12-20-83 12-14-83 Mary H. Shaffer ....................... 12-29-83 1-4-84 Monty J. Stanley ....................... 12-23-83 12-16-83 Joe W. Sunderwirth .... .............. 12-20-83 12-16-83 Frank M. Taft .......................... 12-23-83 12-16-83 Earl V. Thoelke ...................... 12-23-83 11-30-83 Daniel K. Ting .................... .... . 12-23-83 11-28-83 Bill M. Torres ................................ 12-20-83 12-13-83 John W. Urchison ...... ................ 12-21-83 12-15-83 Donald J. Warner ...... .... .... . 12-27-83 11-29-83 John Watson .................................. 1-16-84 1-10-84 Donald A Wattenbarger ............... 12-30-83 12-16-83 Richard F. W icar .......................... 12-16-83 12-5-83 Lloyd P. Williams . ......................... 12-23-83 11-14-83 Kenneth Leroy Wilson ............... 12-22-83 11-28-83 As can be seen , 22 striker-members of Local 73 re- turned to work during the strike . The number for Local 1093 is 84, with the total for both Respondents being 106. Most of the 106 strikers returned to work before the unions received the resignation notices . The time lag ranges from a day to about 6 weeks. Thus, the strikers fall into two groups . Group 1 consists of the strikers who resigned before returning to work . Group 2 consists of those who resigned after they had returned to work. Of the 22 names listed as having resigned from Local 73, only 3 resigned before returning to work. That is, Local 73 received the resignation letters on or before the date that these three returned to work . The three are Peggy Frazier, Billie M. Knight, and Sondra G. Peer- son.4 Frazier's letter was received the same date she re- turned to work, January 3 , 1984, whereas the letters of Knight and Peerson were received 1 or 2 days before they returned to work. Local 73 did not show that Fra- zier's letter was received after (in terms of minutes or hours) Frazier returned to work. Of the 84 striker-members of Local 1093 who returned to work, 9 returned to work on or after the date they submitted their membership resignations. Shown from the list for Local 1093, the nine in this Group 2 are: Elmer Bioaddrick, Arley W. Cohoon, H. M. Hammond, Jay M. Homblin, Leon E. Hudson, David S. Jones, John Maldomado, Sam McCall, and Mary H. Shaffer. Six of the nine returned to work on the same date on which Local 1093 received their resignations . The other three, David S. Jones, Sam McCall , and Mary H. Shaffer, did not return to work until 1 to 6 days after Local 1093 had received their resignations. This leaves 75 strikers in Group 2 for Local 1093. The parties stipulated that if the resignation letters and notices were effective, then the effective dates of the res- ignations are the dates shown on Joint Exhibit 1 as the dates the Unions received the resignations letters and no- tices (Tr. 46-47).5 One exception to this is David S. Jones who is shown as verbally giving his notice at the union hall of Local 1093 on December 15, 1983 . Because the UAW's fiscal year assertedly (the provision is not in evidence) ends on December 31, Respondents argue that, at the earliest, the resignations could not be effective until March 1, 1984, well after the termination of the strike (Br. 11). This argument does not conflict with the stipulation. Respondents do not concede that the resigna- tions were effective on the dates shown in the two lists. However, if the Board or the courts find that the resig- nations were effective, notwithstanding Respondents' legal arguments, then according to the stipulation, the resignations were effective on the dates the unions re- ceived such notices. (Tr. 46-47.) David S . Jones was the only person called as a witness during the hearing .6 As Jones asked for a withdrawal 4 Their names are on the list shown above for Local 73. B References to the one-volume transcript are by volume and page 6 Hubert H Horn, listed in the group of 84 from Local 1093, also testi- fied concerning the date he mailed his resignation The letter apparently was found during the hearing , and the General Counsel's unopposed motion to sinke Horn's testimony was granted (Tr 42-43 ) 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card rather than submitting a resignation letter, the par- ties agree that the effect of what transpired on his re- quest must be determined. (Tr. 33-35.) The General Counsel contends that the effect of the action was a res- ignation, whereas Local 1093 argues that there was no resignation. 3. The withdrawal by David S. Jones For 28 years David S. Jones has worked for MDC, and during most of that time he has been a member of Local 1093. He participated in the strike from the first day. On December 14, 1983, he concluded that Local 1093 was not going to receive any better offer from MDC, and he decided to withdraw from the Union. (Tr. 25.) He did not withdraw on that date, however, because he had made a commitment to walk picket that night. (Tr. 30.) The next day, Thursday, December 15, 1983, Jones went to the union hall and requested an honorary with- drawal card. He did not answer the clerk's question of whether he was working for someone else. (Tr . 23.) He did not answer because he was apprehensive about what he perceived to be a feeling of animosity at Local 1093 toward those who resigned, or wanted to resign, from the Union, and he feared for his safety if those at the union hall learned that he planned to return to work. (Tr. 31.) Jones testified that he was somewhat familiar with the union constitution, that he intended to resign from the Union, and that he had not decided whether his resigna- tion would be temporary or permanent. (Tr. 27, 29.) Al- though he testified that he understood that his withdraw- al meant he was no longer a member of Local 1093, and therefore not subject to union discipline (Tr. 26), he was not asked why he chose to obtain a withdrawal rather than to submit a resignation as other strikers were doing. Moreover, the parties failed to offer the portions of the UAW's constitution and Local 1093's bylaws, which pre- sumably bear on withdrawals and their effect. The withdrawal card (G.C. Exh. 2) that Jones ob- tained on December 15 contains no statement that the withdrawal means that the person is no longer a member of the Union or that his status is limited membership rather than full membership. Fry did offer certain provisions of the UAW's consti- tution pertaining to trials of members. One provision in article 31, section 2, makes reference to internal union charges preferred against a person because of acts com- mitted while the person was "out of the Union on with- drawal card, shall be submitted within sixty (60) days from the time of the deposit of her/his withdrawal card." (C.P. Exh. 5.) Thus, it appears that the effect of a withdrawal is the resignation of membership, and in the absence of provisions of the UAW's constitution and Local 1093's bylaws indicating, otherwise, I so find. Teamsters Local 579 (Northern Conveyor), 274 NLRB 100 fn. 1 (1985). In Northern Conveyor the relevant docu- ments were made part of the record, and the Board relied solely on the express language in the bylaws and the withdrawal card equating withdrawal status with res- ignation. In view of the foregoing, I find that Jones had re- signed from membership in Local 1093 the day before he returned to work for MDC on December 16, 1983.7 B. Analysis and Conclusions Overturning certain case law on which Respondents rely, the Board- held in 1984 that any restriction a union may impose on a member's right to resign is invalid. Ma- chinists Local 1414 (Neufeld Porsche Audi), 270 NLRB 1330 (1984). It has reaffirmed that position with emphasis in Sheet Metal Workers Local 73 (Safe Air), 274 NLRB 374 (1985), and other cases. 8 Until a member resigns, however, he is subject to lawful rules of his union. Thus, the 12 members who resigned before returning to work (including those who returned the same day) were not subject to discipline, and Respondents' imposition of dis- cipline concerning them violated Section 8(b)(1)(A) of the Act. Regarding the other 94 who crossed the picket lines and returned to work before resigning, the discipline im- posed on them for their resignation conduct was not ille- gal because it addressed conduct committed by them while they were still union members. Newspaper Guild Local 3 (New York Times), 272 NLRB 338 (1984).9 Nev- ertheless, the failure of Respondents to honor the resig- nation does constitute a violation of Section 8(b)(1)(A) of the Act, and Respondents must be ordered to honor the resignations and to post a notice. UAW Local 449 (Na- tional Metalcrafters), JD-28-85 (Jan. 31, 1985), by Ad- ministrative Law Judge Claude R. Wolfe, pending deci- sion by the Board. Until the Board rules, of course, Judge Wolfe's decision is not binding. CONCLUSIONS OF LAW 1. McDonnell Douglas Corporation is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 73 and Local 1093 are labor organizations within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing the following provi- sion of the UAW's constitution, Locals 73 and 1093 have violated Section 8(b)(1)(A) of the Act: Article 6, Membership Section 17 A member may resign or terminate membership only if s/he is in good standing, is not in arrears or delinquent in the payment of any dues or other fi- nancial obligation to the International Union or to her/his Local Union and there are no charges filed v Jones testified that he had been a good union member and in good conscience could not cross the picket line while still a member of the UAW. (Ti. 25-26.) 8 A recent student note by J. Mark Gidley gives a good review of the legislative history and the past and current cases in this controversial area. See Notes, A Union's Right to Control Strike-Period Resignations, 85 Colum. L. Rev. 339 (1985). No approval of the conclusions set forth in the note is implied here. 8 Although the complaint alleges that all strikers tendered their resig- nations before they crossed the picket lines, we know from the stipulated facts that such is accurate only for 12 of the 106 listed strikers. AUTO WORKERS LOCAL 73 (MCDONNELL DOUGLAS) 471 and pending against her/him. Such resignation or termination shall be effective only if by written communication, signed by the member and sent by registered or certified mail, return receipt requested, to the Financial Secretary of the Local Union within the ten (10) day period prior to the end of the fiscal year of the Local Union as fixed by this Constitution, whereupon it shall become effective sixty (60) days after the end of such fiscal year; pro- vided that if the employer of such member has been authorized either by such member individually or by the Collective Bargaining Agreement between the employer and the Union to check off the mem- bership dues of such member, then such resignation shall become effective upon the effective termina- tion of such authorization, or upon the expiration of such sixty (60) day period, whichever is later. 4. By imposing discipline, including fines, on the below-named strikers who resigned their membership before they crossed Respondents' picket lines, Locals 73 and 1093 violated Section 8(b)(1)(A) of the Act: Peggy Frazier Billie M. Knight Sondra G. Peerson Local 73: Local 1093 Elmer Broaddrick Arley W. Cohoon H. M. Hammond Jay M. Homblin Leon E. Hudson David S. Jones John Maldomado Sam McCall Mary H. Shaffer 5. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. By imposing fines on strikers who crossed Respond- ents' picket lines before the strikers resigned their mem- bership, Respondents did not violate Section 8(b)(1)(A) of the Act. THE REMEDY Having found that Respondents have engaged in these unfair labor practices, I will order them to cease and to take certain affirmative action designed to effectuate the policies of the Act. Respondents must be ordered to cease maintaining and enforcing article 6, section 17 of the UAW's constitution, and to rescind all the fines levied against each of the 12 striker-members who resigned before returning to work, t ° and Respondents also will be ordered to rescind 10 Respondents must reimburse them, with interest, for any money they have paid toward satisfaction of the fines. Glass & Pottery Workers Local 185 (Liberty Glass), 273 NLRB 198 (1984) the fines for the 94 others to the extent that such fines reflect a penalty for postresignation crossing of the picket lines. Newspaper Guild Local 3 (New York Times), 272 NLRB 338 (1984). The stipulated facts show that the affected employees were fined $50 a day for each day of the strike, and that daily penalties were incurred for both preresignation and postresignation days. Calculation of the postresignation days, and the total penalties assessed to each affected striker, will be made in the compliance stage. Respondents will be ordered to notify each of the 106 strikers of groups 1 and 2 in writing that their resigna- tions are deemed effective on the specified date shown for that striker on the stipulated list. To the extent that any fines have been paid, in whole or in part, which must be refunded, Respondents will pay interest on the money received. Interest shall be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edtt ORDER The Respondents, International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, Local 73 and Interna- tional Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW), AFL- CIO, Local 1093, Tulsa, Oklahoma, their officers , agents, and representatives, shall 1. Cease and desist from (a) Maintaining in their governing documents article 6, section 17, of the constitution of the International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW), AFL-CIO, to the extent it provides: Article 6, Membership Section 17 A member may resign or terminate membership only if s/he is in good standing, is not in arrears or delinquent in the payment of any dues or other fi- nancial obligation to the International Union or to her/his Local Union and there are no charges filed and pending against her/him. Such resignation or termination shall be effective only if by written communication, signed by the member and sent by registered or certified mail, return receipt requested, to the Financial Secretary of the Local Union within the ten (10) day period prior to the end of the fiscal year of the Local Union as fixed by this Constitution, whereupon it shall become effective sixty (60) days after the end of such fiscal year; pro- 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. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vided that if the employer of such member has been authorized either by such member individually or by the Collective Bargaining Agreement between the employer and the Union to check off the mem- bership dues of such member, then such resignation shall become effective upon the effective termina- tion of such authorization, or upon the expiration of such sixty (60) day period, whichever is later. (b) Restraining or coercing employees who have re- signed from, and are no longer members of, Respondents in the exercise of the rights guaranteed them by Section 7 of the Act by imposing court-collectible fines or other sanctions and penalties on such employees because of their postresignation conduct in working at McDonnell Douglas Corporation during the strike that began on Oc- tober 17, 1983, or by failing to honor their resignations from membership. (c) In any like or , related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Remove from their governing documents the por- tion of article 6, section 17, of the constitution of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, set forth above. (b) Remove from their files any reference to the charges and disciplinary action taken against the follow- ing employees, and notify each in writing that this has been done, and rescind in total the fines levied against them because of their postresignation work for MDC during the strike that began on October 17, 1983, and refund, with interest, to them any money they have paid on such unlawful fines: Local 73 Billie Jean Behl R. M. Dalduc Linda M. Brierly Cynthia Campbell Erma Cherry James L. Clift Teresa Dalton William H. Dalton Jr. Nancy Fultner Charles O. Lackey Mary C. Layton Mildred Lowe Bulah L. Majors Karen J. Martin Jack D. Morgan Phyllis Steward Thomas Connie Wright Peggy Frazier Billie M. Knight Sondra G. Peerson Local 1093 Ebner Broaddrick Arley W. Cohoon H. M. Hammond Jay M. Homblin Leon E. Hudson David S. Jones John Maldomado Sam McCall Mary H. Shaffer (c) Rescind the fines levied against the following addi- tional employees to the extent such fines were imposed on them because of their postresignation crossing of the picket lines and return to work at MDC, and refund to them any money they may have paid as a result of the fines, with interest: UAW Local 73 Carol A. Ballman Kenneth D. Harris UAW Local 1093 Mildred L. Abbett Hubert H. Horn Harold C. Amenhauser Carl S. Howard Hassan Serhan Ahmed L. W. Jacks K. E. Archibald Bruce Jaggers Anthony Ballone Maxine M. Johnson Doris Barclay John R. Jones Patsy S. Batchlear Robert J. Kuehn Mary J. Beach Virginia H. Mathis Mary it Beach Margie McElroy Betty Benson Nancy McTague D. K. Bippus Franklin J. Miles Billy Joe Bowling Leslie E. Miller Charles L. Brashers James Raymond Millsap A. J. Brock David Moore James R. Brock Tommy B. Moore Marvin Brown John R. Morgan James T. Bullard Edwin B. Nickel E. R. Burrell John R. O'Grady Luis J. Calaza Susan E. Parker Verginia D. Cooper Robert E. Price George E. Coyle Carl it Reed Ann M. Cravens Jose M. Sandoval Dean E. Denny Teri E. Schutt Norman L. DeWig Charles H. Schultz George Emigh Monty J. Stanley Floyd Engle Joe W. Sunderwirth Nola J. Fullbright Frank M. Taft Marcus P. Fultz Earl V_ Thoelke Bailey B. Golden Daniel K. Ting Glen D. Hallock Bill M. Torres Floyd C. Hannah Jr. John W. Urchison Thomas J. Harris Donald J. Warner Weldon Harris John Watson Arnold W. Henning Jr. Donald A. Wattenbarger Chester H. Hill Richard F. Wicar Morris J. Hill Jr. Lloyd P. Williams Albert S. Hinshaw , Kenneth Leroy Wilson Clyde Holt (d) Notify each of the 22 strikers who resigned from UAW Local 73 and the 84 who resigned from UAW Local 1093 that his or her resignation is deemed effective on the stipulated dates, and specify such date in the writ- ten notice. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- AUTO WORKERS LOCAL 73 (MCDONNELL DOUGLAS) essary to analyze the amount of backpay due under the terms of this Order. (f) Post at their business offices and meeting halls in Tulsa, Oklahoma, copies of the attached notice marked "Appendix." 1 a Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondents' authorized representative, shall be posted by the Respondents immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to mem- bers 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 . (g) Sign and return to the Regional Director sufficient copies of the notice for posting by McDonnell Douglas Corporation, if willing, at all places where notices to em- ployees are customarily posted. (h) Notify the Regional Director in writing within 20 clays from the date of this Order what steps the Re- spondents have taken to comply. 12 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of time United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT maintain in our governing documents article 6, section 17, of the constitution of the Interna- tional Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW), AFL- CIO, which reads as follows: Article 6, Membership Section 17 A member may resign or terminate membership only if s/he is in good standing, is not in arrears or delinquent in the payment of any dues or other fi- nancial obligation to the International Union or to her/his Local Union and there are no charges filed and pending against her/him. Such resignation or termination shall be effective only if by written communication, signed by the member and sent by registered or certified mail, return receipt requested, to the Financial Secretary of the Local Union within the ten (10) day period prior to the end of the fiscal year of the Local Union as fixed by this Constitution, whereupon it shall become effective sixty (60) days after the end of such fiscal year; pro- vided that if the employer of such member has been 473 authorized either by such -member individually or by the Collective Bargaining , Agreement between the employer and the Union to check off the mem- bership dues of such member, then such resignation shall become effective upon the effective termina- tion of such authorization, or upon the expiration of such sixty (60) day period, whichever is later. WE WILL NOT restrain or coerce employees who have resigned from, and are no longer members of, our labor organizations in the exercise of the rights guaranteed them by Section 7 of the Act by imposing fines on such employees because of their postresignation conduct in working at McDonnell Douglas Corporation during the strike that began on October 17, 1983, or by failing to honor their resignations from membership. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WELL expunge from our governing documents the portion of article 6, section 17, of the constitution of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, set forth above. WE WILL expunge from our files any reference to the charges and disciplinary action taken against the follow- ing and we will notify each in writing that this has been done, and WE WILL rescind in total the fines levied against them because of their postresignation work for MDC during the strike that began on October 17, 1983, and WE WILL refund to them any money they may have paid as a result of such fines, plus interest: Local 73 Peggy Frazier Billie M. Knight Sondra G. Peerson Local 1093 Elmer Broaddrick Arley W. Cohoon H. M. Hammond Jay M. Homblin Leon E. Hudson David S. Jones John Maldomado Sam McCall Mary H. Shaffer WE WILL rescind the fines levied against the following additional employees to the extent we fined them be- cause of their postresignation crossing of the picket lines and return to work at MDC, and WE WILL refund to them any money they may have paid as a result of the fines, plus interest: UAW Local 73 Carol A. Ballman Kenneth D. Harris Billie Jean Behl Charles O. Lackey R. M. Dalduc Mary C. Layton Linda M. Brierly Mildred Lowe 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cynthia Campbell - Bulah L. Majors Erma Cherry Karen J. Martin James L. Clift Jack D. Morgan Teresa Dalton Phyllis Steward Thomas William H. Dalton Jr. Connie' Wright Nancy Fultner UAW Local 1093 Mildred L. Abbett ' Hubert H. Horn Harold C. Amehhauser Hassan Serhan Ahmed K. E. Archibald Anthony Ballone Doris Barclay Patsy S. Batchlear Mary J. Beach Mary R. Beach Betty Benson D. K. Bippus Billy Joe Bowling Charles L. Brashers A. J. Brock James R. Brock Marvin Brown James T. Bullard E. R. Burrell Luis J. Calaza Verginia D. Cooper George E. Coyle Ann M. Cravens Carl S. Howard L. W. Jacks Bruce Jaggers Maxine M. Johnson John R. Jones Robert J. Kuehn Virginia H. Mathis Margie McElroy Nancy McTague Franklin J. Miles Leslie E. Miller James Raymond Millsap David Moore Tommy B. Moore John R. Morgan Edwin B: Nickel John R. O'Grady Susan E. Parker Robert E. Price Carl R. Reed Jose M. Sandoval Dean E. Denny Norman L. DeWig George Emigh Floyd Engle Nola J. Fullbright Marcus P. Fultz Bailey B. Golden Glen D. Hallock Floyd, C. Hannah Jr. Thomas J. Harris Weldon Harris Arnold W. Henning Jr. Chester H. Hill Morris J. Hill Jr. Albert S. Hinshaw Clyde Holt Teri E. Schutt Charles H. Schultz Monty J. Stanley Joe W. Sunderwirth Frank M. Taft Earl V. Thoelke, Daniel K. Ting Bill M. Torres John W. Urchison Donald J. Warner John Watson Donald A. Wattenbarger Richard F. Wicar Lloyd P. Williams Kenneth Leroy Wilson WE WILL notify each of the 22 strikers who resigned from UAW Local 73 and the 84 who resigned from Local 1093 that his or her resignation is deemed effective on the stipulated resignation date, and we shall specify that date in the notification letters. INTERNATIONAL UNION, UNITED AUTOMO- BILE, AEROSPACE AND AGRICULTURAL IM- PLEMENT WORKERS OF AMERICA (UAW), AFL-CIO, LOCAL 73 INTERNATIONAL UNION, UNITED AUTOMO- BILE, AEROSPACE AND AGRICULTURAL IM- PLEMENT WORKERS OF AMERICA (UAW), AFL-CIO, LOCAL, 1093