Oil, Chemical And Atomic Workers International Union, Afl-Cio And Oil, Chemical And Atomic Workers International Union, Local 1-591, Afl-Cio (Texaco Refining And Marketing, Inc.)

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Oil, Chemical and Atomic Workers International Union, AFL-CIO and Oil, Chemical, and Atomic Workers International Union, Local 1- 591, ' AF'L.-CIO (Texaco Refining and Market- ing, Inc.) and Michael Davenport. Case 19-CB- 5822 DECISION AND ORDER 23 February 1987 BY CHAIRMAN DOTSON AND MEMBERS - JOHANSEN AND STEPHENS Upon a charge filed by Michael Davenport, an individual, on l May 1986 and amended charges filed on 16 and 23, May 1986, the General Counsel of the National, Labor Relations Board issued a complaint on 20 May 1986, against the Respond- ents, which, as amended on 5 June 1986, alleges that the Respondents have, violated Section 8(b)(1)(A) of the National Labor Relations Act. The' amended complaint alleges, and the Re- spondents, in their answer admit, that at all times material the Respondents have maintained a consti- tutional provision restricting resignations.' Any member may resign his or her member- 'ship provided all indebtedness is satisfied and no charges„ are pending against such member and further provided that notice of such resig- nation is submitted in writing by such member to the President of the Local 'Union of which he or she is a member within ten days preced- ing contract expiration date. Notwithstanding their admission of the above al- legation, the Respondents deny that they have committed the unfair labor practice alleged in the complaint, i.e., that by maintaining the constitution- al restriction, on their members' right to resign from the Respondents', the Respondents have vio- lated Section 8(b)(1)(A) of the Act. On 23 July 1986 the General Counsel filed with the Board a Motion for Summary Judgment, with exhibits attached, asserting .that the Respondents' answer to the amended complaint raises no genuine or material issues of fact which require an eviden- tiary hearing and urging that the Board issue a De- cision and, Order against the Respondents contain- ing findings of fact and conclusions of law in ac- cordance with allegations in the complaint. On 28 July 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. The Re- spondents filed a response to the Notice to Show Cause in the form of a Cross-Motion for Summary 1 Art. I, sec. 6, of the Respondent International's constitution and art III, sec. 2, of the Respondent Local's constitution provides. Judgment, with exhibits attached, and a brief in support of its motion and-in opposition to the Gen- eral_ Counsel's motion. The National Labor Relations Board,has delegat- ed its authority in this proceeding to a three- member panel. , Ruling on the Motions for Summary Judgment The Respondents' admissions to all the factual al- legations in the, complaint establish that they main- tained constitutional `restrictions on their members' right to resign from the Union. The General Coun- sel cites Engineers & Scientists Guild (Lockheed- California), 268 , NLRB 311 (1983), in support of the contention that maintenance alone of unlawful restrictions on resignation restrains and coerces em- ployees who may be, unaware of the- constitutional provision's unenforceability and thus violates Sec- tion 8(b)(1)(A) of the Act. The Respondents con- tend, after admitting the facts as alleged, -that sum- mary judgment should be granted in their- favor and the complaint dismissed- because (1) unlike some-previous cases finding,8(b)(l)(A) violations, the constitutional restrictions at issue do not specif- ically refer to a member's right to resign during a strike or work stoppage or to possible discipline for exercising -Section 7 rights associated with such ac- tivities; (2) it is not alleged, nor would any evi- dence'show, that the Respondents have attempted any disciplinary action against any former member pursuant to a resignation proscribed -by the restric- tion; and (3) -an expunction remedy has not previ- ously been ordered by the Board' unless the union had attempted to enforce an unlawful- restriction. ' ' With respect to a -union's authority in this area, the Board has found that a union may not place're- strictions on the 'right of its members to resign from membership. Machinists Local 1414, (Neufeld Porsche Audi), 270 NLRB 1330 (1984). In Pattern Makers League v. NLRB, 473 U.S. 95 '(1985), the Supreme Court essentially affirmed that principle. Although both Neufeld Porsche Audi and - Pattern Makers League concerned restrictions on' resigna- tions during or immediately prior to strikes, the reasoning of both the Board and the Court was suf- ficiently broad that restrictions not linked`'to strikes would also be deemed unlawful. Thus, after consid- ering the significance of the proviso to Section 8(b)(1)(A), the Court, quoting Neufeld Porsche-Audi (270 NLRB at 1333), observed that "allowing unions to `extend an employee's membership obli- gation through restrictions on resignation' would `expan[d] the definition of internal action' beyond the contours envisioned by the Taft-Hartley Con- gress." Pattern Makers League, 473 U.S. at 103. The Court further stated, in relating the Board's 283 NLRB No. 10 OIL WORKERS LOCAL 1-591 (TEXACO REFINING) 3 holding on resignation restrictions to the policies' underlying Section 8(a)(3) of the Act (id. at 107): Congress in 1947 sought to eliminate com- pletely any requirement that the employee maintain full union membership. Therefore, the Board was justified in concluding that by re- stricting the right of employees to resign, League Law 13 impairs the' policy of volun- tary unionism [emphasis added]. Consistent with those principles, in Sheet Metal Workers Local 16 (Salem Heating), 274 NLRB 41 (1985), the Board found unlawful a constitutional restriction on resignation that was not related to strikes or strike activity. Further, in Salem Heating, even where no enforcement or attempted enforce- ment by the union was alleged, the Board ruled that maintenance of a restriction on resignation is a violation of Section 8(b)(1)(A) and that expunction is the appropriate remedy. Because the Respondents have admitted all the facts material to the resolution of the unfair labor practices issue raised by the complaint, we shall grant the General Counsel's Motion for Summary Judgment in the absence of any material facts in dispute or any authority to the contrary having been shown by the Respondents. Accordingly, we shall also deny the Respondents' cross-motion. On the entire record, the Board makes the fol- lowing findings. 1. JURISDICTION The Employer, Texaco Refining and Marketing, Inc., is a corporation engaged in the business of re- fining and marketing petroleum worldwide and in the State of Washington. During the 12 months preceding issuance of the complaint, a representa- tive period, the Employer had gross sales of goods and services valued in excess of $500,000. In addi- tion, the Employer during that period sold and shipped goods or provided services from its facili- ties within the State of Washington to customers outside that State or to customers within the State of Washington, which customers were themselves engaged in interstate commerce by other than indi- rect means of a total value in excess of $50,000. Further, the Employer during the past 12 months purchased and caused to be transferred and deliv- ered to its facilities within the State of Washington goods and materials valued in excess of $50,000 di- rectly from sources outside the State or from sup- pliers within the State which in turn obtained the goods and materials directly from sources outside the State of Washington. We find that the Employ- er is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondents, admit, and we find, that they are labor organizations within the meaning of Sec- tion 2(5) of the Act. II. THE UNFAIR LABOR PRACTICE The Respondents have maintained constitutional provisions restricting union resignations. By such conduct we find that the Respondents have violat- ed Section 8(b)(1)(A) of the Act. Pattern Makers League v. NLRB, supra; Machinists Local 1414 (Neufeld Porsche-Audi), supra; Sheet Metal Workers Local 16 (Salem Heating), supra. CONCLUSIONS OF LAVv 1. Texaco Refining and Marketing, Inc., Ana- cortes, Washington, is an , employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondents are labor organizations within the meaning of Section 2(5) Of the Act. 3. By maintaining constitutional provisions re- stricting their members' right to resign from the Respondents, the Respondents violated Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents engaged in an unfair labor practice in violation of Section 8(b)(1)(A) of the Act, we shall order that they cease and desist and take certain affirmative action necessary to effectuate the policies of the Act.2 Specifically, we shall order the Respondents to cease and desist from maintaining the restriction on resignations found invalid and to expunge the pro- visions from their governing documents. Engineers & Scientists Guild (Lockheed-California), 268 NLRB 311 (1983). ORDER The National Labor Relations Board orders that the Respondents, Oil, Chemical and Atomic Work- ers International Union, AFL-CIO .and Oil, Chemi- cal and Atomic Workers International Union, Local 1-591, AFL-CIO, their officers, agents, and representatives, shall 1. Cease and desist from 2 As part of the remedy the General Counsel seeks an order which will include a visitatonal clause authorizing the Board , for compliance purposes, to obtain discovery from the Respondents under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the order. We have concluded that under the cir- cumstances of this case such a clause is not warranted. 4 DECISIONS OF. THE NATIONAL LABOR RELATIONS BOARD (a) Maintaining in their governing documents the constitutional provision reading: Any member may resign his or her member- ship provided all indebtedness is satisfied and no charges are pending against such member and further provided that notice of such resig- nation is submitted in writing by such member to the President of the Local Union of which he or she is a member within ten days preced- ing contract expiration date. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies.of the Act. (a) Remove from their governing documents those portions of article I, section 6, of the Re- spondent International's constitution and of article III, section 2, of the Respondent Local's constitu- tion set forth above. (b) Post at their business offices and meeting halls copies of the attached notice marked "Appen- dix."3 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondents immedi- ately 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. (c) Sign and return to the Regional Director suf- ficient copies of the notice for posting by Texaco Refining and Marketing, Inc., if willing, at all places where notices to employees are customarily posted. (d) Notify . the Regional Director in writing within 20- days from the date of this Order what steps the Respondents have taken to comply. 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 ordered us to post and abide by this notice. WE WILL NOT maintain in our governing docu- ments those portions of article I, section 6, of the International's ' constitution and of article III, sec- tion 2, of the Local's `constitution reading: Any member may resign his or her member- ship provided all indebtedness is satisfied and no charges are pending against such member and further provided that notice of such resig- nation is submitted in writing by such member to the President,of the Local 'Union of which he or she is a member within ten days preced- ing contract expiration date. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you'by Section 7 of the Act. WE WILL remove from our governing docu- ments those portions of our constitutions set forth above. OIL, CHEMICAL AND ATOMIC WORK- ERS INTERNATIONAL UNION, AFL- CIO AND OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, LOCAL 1-591, AFL-CIO 8 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 the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."