Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America, Local 995 (Caesars Palace)

828 DECISIONS OF THE NATIONAL,LABOR RELATIONS BOARD Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local 995 (Cae- sars Palace) and Nevada Resort Association International Union of Operating Engineers, Local '501 and Nevada Resort Association. Cases 31- CB-5585 and 31-CB-5586 16 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 28 May 1987 Administrative Law Judge Joan Wieder issued the attached decision. The Respond- ents filed exceptions and a supporting brief and the General Counsel filed an answer to the Respond- ents' exceptions and cross-exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified' and, set forth in full below. ORDER The National Labor Relations Board orders that A. Respondent Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Local 995, Las Vegas, Nevada, its officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining in its governing documents arti- cle II, section 2(h), of the International's constitu- tion to the extent it provides: No member may resign from his membership in the International Union or any subordinate body before he has paid all dues, assessments, fines and other obligations owing to the Inter- national Union and all its subordinate bodies. A resignation must be in writing to the Secre- tary-Treasurer of the Local Union. After the Secretary-Treasurer has determined that the foregoing requirements have been complied with, such resignation shall then be effective thirty (30) days after its receipt by the Secre- tary-Treasurer. as amended to provide: 1 Consistent with the decisions in Auto Workers Local 73 (McDonnell Douglas), 282 NLRB 466 (1986), and Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), we shall order the Respondents to cease and desist from maintaining the restrictions on resignations found invalid and to remove them from the governing documents under their control No member may resign from his membership in the International Union or any subordinate body before he has paid all dues, assessments, fines and other obligations owing to the Inter- national Union and all its subordinate bodies. A resignation must be in writing to the Secre- tary-Treasurer of the Local Union. (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 its governing documents any provisions that required adherence to the portion of article II, section 2(h), of the International's con- stitution set forth above. (b) Post at its offices and meeting halls copies of the attached notice marked "Appendix A."2 Copies of 'the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re-, ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted. Reasona- ble steps shall be taken by the Respondent 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 Ceasars Palace, et al., Las Vegas, Nevada, 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 Respondent has taken to comply. B. Respondent International Union of Operating Engineers, Local 501, Las Vegas, Nevada, its offi- cers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining in its governing documents arti- cle XXIV, subdivision 7, section (j), of the Interna- tional's constitution to the extent it provides: Notwithstanding any other provision of this Constitution, members shall have the right to resign from membership subject to the follow- ing conditions: Notice of Intent to resign must be given to the member's Local Union no less than thirty 2 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." 285 NLRB No. 108 TEAMSTERS LOCAL 995 (CAESARS PALACE) (30) days prior to the effective date of the res- ignation; No resignation shall be accepted unless all of the member's financial obligations within the International Union are paid and all charges brought against that member have been heard and finally determined; Locals have the right to delay the effective date of resignation of any member whose res- ignation is tendered within fifteen (15) days prior to the commencement of a strike by the Local or during the pendency of a strike, but in the event of such delay the resignation shall become effective immediately after the strike is ended. No member who has resigned shall be rein- stated to membership except upon his payment of the current initiation fee, the payment of all financial obligations owed to his Local at the time of his resignation and compliance with such other reasonable requirements imposed by his Local asa condition of reinstatement. (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 form its governing documents any provisions that required adherence to the portion of article XXIV, subdivision 7, section (j), of the International's constitution set forth above. (b) Post at its offices and meeting halls copies of the attached notice marked "Appendix B."3 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted. Reasona- ble steps shall be taken by the Respondent 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 Caesars Palace, et al., Las Vegas, Nevada, if willing, at 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 Respondent has taken to comply. 3 See fn 2 above APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 829 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT maintain in our governing docu- ments article II, section 2(h), of the International's constitution to the extent it provides: No member may resign from his membership in the Internaitonal Union or any subordinate body before he has paid all dues, assessments, fines and other obligations owing to the Inter- national Union and all its subordinate bodies. A resignation must be in writing to the Secre- tary-Treasurer of the Local Union. After the Secretary-Treasurer has determined that the foregoing requirements have been complied with, such resignation shall then be effective thirty (30) days after its receipt by the Secre- tary-Treasurer. as amended provide: No member may resign from his membership in the International Union or any subordinate body before he has paid all dues, assessments, fines and other obligations owing to the Inter- national Union and all its subordinate bodies. A resignation must be in writing to the Secre- tary-Treasurer of the Local Union. 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 any provisions which required adherence to the portion of article II, section 2(h), of the consti- tution, set forth above. BROTHERHOOD OF TEAMSTERS CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 995 APPENDIX B 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. 830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT maintain in our governing docu- ments article XXIV, subdivision 7, section (j), of the International's constitution to the extent it pro- vides: Notwithstanding any other provision of this constitution, members shall have the right to resign from membership subject to the follow- ing conditions: Notice of Intent to resign must be given to the member's Local Union no less than' thirty (30) days prior to the effective date of the res- ignation; No resignation shall be accepted unless all of the member's financial obligations within the International Union are paid and all charges brought against that member have been heard and finally determined;' Locals have the right to delay the effective date of resignation of any member whose res- ignation is tendered within fifteen (15) days prior to the commencement of a strike by the Local or during the pendency of a strike, but in the event of such delay the resignation shall become effective immediately after the strike is ended. No member who has resigned shall be rein- stated to membership except upon his payment of the current initiation fee, the payment of all financial obligations owed to his Local at the time of his resignation ' and compliance with such other reasonable requirements imposed by his Local as a condition of reinstatement. 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 any provisions that required adherence to the portion of article XXIV, subdivision 7, section (j), of the constitution, set forth above. INTERNATIONAL UNION OF OPERAT- ING ENGINEERS, LOCAL 501 Richard S. Zuniga, Esq., for the General Counsel. Gordon K. Hubel, Esq. (Levy', Goldman, Greenstone & Hubel), for the Respondent. Sandra L Pomrenze, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge. On charges filed 23 April 1984 by Nevada Resort Association (Asso- ciation or Charging Party), the Regional Director for Region 31 issued a complaint, as amended. As,here perti- nent, the seventh amended consolidated complaint„ dated 8 January 1987, alleges that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 995 (Local 995), and International Union of Operating Engineers, Local 501 (Local; 501), ' violated Section 8(b)(1)(A) of the Act by adopting and abiding by provisions that prevented members from immediate res- ignation and thereby restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act. In their replies to the seventh amended consoli- dated complaint, Respondents denied committing any violation of the Act and asserted several affirmative de- fenses. On 9 February the General "Counsel, the Respondents, and the Charging Party entered into a stipulation of facts. The parties agree that the stipulation, together with the charge, complaint, and their - answers to the complaint, constitutes the entire record in the case. The parties waived a hearing, stipulating and agreeing that no oral testimony is necessary or desired. On the entire record and the briefs, I make the follow- ing FINDINGS OF FACT 1. JURISDICTION The complaint alleges, the parties stipulate, and I find that the Association is a multiemployer association with offices in Las Vegas, Nevada, which exists for the pur- pose, inter alia, of representing certain employers (em- ployer-members) in collective bargaining with the Re- spondents. The employer-members annually have com- bined sales of goods and services valued in excess of $500,000, and annually purchases goods and materials valued in excess of $50,000 which originate from points located directly outside the State of Nevada- On the pleadings, I find that at all times material the Association is authorized by its employer-members to represent them in collective bargaining with the Unions. I further find that the Association and its employer-mem- bers are now and have been at all times material employ- ers within the meaning of Section 2(2) - of the Act, en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find, as the parties admit, that Respondents are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts Respondent Local 995 is recognized as the collective- bargaining representative of some of the employees of certain employer-members of the Association and is now, and has been at all material times, engaged in administer- ing collective-bargaining agreements with certain em- ployer-members of the Association. Local 995 is now, and has been at all material times, a chartered local union of the International -Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (IBTCW&HA) and has adopted and is obligated-to abide by the constitution of the IBTCW&HA. Respondent Local 501 is recognized as the collective- bargaining representative of some of the employees of TEAMSTERS LOCAL 995 (CAESARS PALACE) 831 certain employer-members of the Association and is now, and has been at all material times, engaged in administer- ing collective-bargaining agreements with certain em- ployer-members of the Association. Local 501 is now, and has been at all material times, a chartered local union of the International Union of Operating Engineers (IUOE), and has adopted and is obligated to abide by the constitution of the IUOE. Respondents Locals 995 and 501 are, and have been at all times material, the exclusive representatives of certain employees of the employer-members of the Association, as appropriate, for the purposes of collective bargaining, and by virtue of Section 9(a) of the Act, have been and are now the exclusive representatives of the employees in appropriate units for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employ- ment. Article 11, section 2(h) of the IBTCW&HA constitu- tion, which was adopted by Local 995, at all times mate- rial, from at least 1 June 1981 to about 19 May 1986, pro- vided as here relevant: No member may resign from his membership in the International Union or any subordinate body before he has paid all dues, assessments, fines and other ob- ligations owing to the International Union and all its subordinate bodies. A resignation must be in writing to the Secretary-Treasurer of the Local Union. After the Secretary-Treasurer has deter- mined that the foregoing requirements have been complied with, such resignation shall then be effec- tive thirty (30) days after its receipt by the Secre- tary-Treasurer. This section of the IBTCW&HA constitution was amended about 19 May 1986, and from that date to present, provides as here relevant: No member may resign from his membership in the International Union or any subordinate body before he has paid all dues, assessments, fines and other ob- ligations owing to the International Union and all its subordinate bodies. A resignation must be in writing to the Secretary-Treasurer of the Local Union. Local 995 adopted and thus abides by this amended pro- vision of the constitution. The General Counsel has no evidence that Local 995 applied the provisions of either the pre-19 May 1986 or current article II, section 2(h) of the IBTCW&HA constitution to the appropriate unit em- ployees. Article XXIV, subdivision 7, section (j) of the IOUE constitution, which Local 501 adopted from at least April 1980 to about 20 August 1985, provided as follows: Notwithstanding any other provision of this Con- stitution, members shall have the right to resign from membership subject to the following condi- tions: Notice of Intent to resign must be given to the member's Local Union no less than thirty (30) days prior to the effective date of the resignation; No resignation shall be accepted unless all of the member's financial obligations within the Interna- tional Union are paid and all charges brought against that member have been heard and finally de- termined; Locals have the right to delay the effective date of resignation of any member whose resignation is tendered within fifteen (15) days prior to the com- mencement of a strike by that Local or during the pendency of a strike, but in the event of such delay the resignation shall become effective immediately after the strike is ended. No member who has resigned shall be reinstated to membership except upon his payment of the cur- rent initiation fee, the payment of all financial obli- gations owed to his Local at the time of his resigna- tion and compliance with such other reasonable re- quirements imposed by his Local as a condition of reinstatement. The IUOE deleted article XXIV, subdivision 7, sec- tion (j) from its constitution about 20 August 1985. The General Counsel has no evidence that Local 501 applied the terms of this article to any of the appropriate unit employees prior to its deletion from the International's constitution. The parties, also stipulated that Robert H. Fox Jr., business manager of Local 501, and International vice president of the IUOE, if called, would testify that the IUOE, in October 1985, notified its members by pub- lication in its monthly magazine called "Operating Engi- neer" that the above-quoted provision had been deleted from its constitution. B. Contentions of the Parties The General Counsel argues that the stipulated record demonstrates that the Respondents violated the Act, re- lying on the Board's decision in Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984); cf. Pattern Makers League v. NLRB, 473 U.S. 95 (1985). The Board held in Neufeld that, "Any restrictions placed by a union on its members' right to resign . . . are unlawful." The Board concluded -that the union violated the Act by fining an employee for returning to work during a strike after he resigned his membership in the union. The Respondents argue that the complaint fails to allege any conduct attributable to Local 995 and Local 501; that the complaint is barred by Section 10(b) of the Act; and that the complaint infringes on their rights of freedom of association guaranteed Respondents in the first amendment of the Constitution of the United States. C. Analysis and Conclusions 1. Respondents' constitution's restrictions against resignation As alleged in the complaint and admitted in the stipu- lation, Respondents adopted the previously quoted limi- tations on resignation . Local 995 maintained the quoted 832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD provision of the IBTCW&HA constitution from at least 1 June 1981 to about 19 May 1986, when it was changed, as noted above, to limit resignations to members who paid all dues assessments, fines, and other obligations to the International and its subordinate bodies and submit their resignations in writing to the secretary-treasurer of the local union. Local 501 also admits it adopted the quoted provision of the IUOE constitution that it main- tained from at least April 1980 to about 20 August 1985. I find Respondents' adoption of and adherence to the provisions restricting their respective members' rights to resign is violative of Section 8(b)(1)(A) of the Act. Typo- graphical Union (Register Publishing), 270 NLRB 1386 (1984). The lack of any evidence that the provisions re- stricting resignations was enforced or any fine collected from union members does not affect this conclusion. See Engineers & Scientists Guild (Lockheed-California), 268 NLRB 311 (1983); Machinists Local 1374 (C'olumbia'Ma- chine), 274 NLRB 123 (1985), and Electrical Workers Local 441 (Phelps Dodge), 281 NLRB 1006 (1986). As the Board held in Sheet Metal Workers Local 73 (Safe Air), 274 NLRB 374, 375 (1985): We acknowledge that the majority of cases de- cided by the Board after Neufeld involved allega- tions of 8(b)(1)(A) violations arising in the context of the imposition of fines against employees who re- signed their union memberships to cross the .picket lines. However, in Newspaper Guild Local3 (New York News), 271 NLRB 1251 (1984), we specifically found that the respondent violated Section 8(b)(1)(A) by maintaining a provision in the consti- tution prohibiting resignations during a strike or lockout. Since the Respondents in this case have maintained a similarly restrictive provision, we find that by such conduct they violated Section 8(b)(1)(A). Nor was our holding in Neufeld meant to be lim- ited to restrictions on resignation during a strike or lockout. Rather, we pronounced clearly that any re- strictions on resignations from unions were invalid, and that would include all of the periods of restric- 'tion set out in the Respondents' rule here. There- fore, we find that the entire provision here as it per- tains to restrictions on resignations is invalid. The modification of the IBTCW&HA constitution does not alter this finding. There is no indication that the members of Local 995 were informed of the. modification of their International's constitution. There is no sugges- tion that members received revised versions of the docu- ment or were otherwise apprised that they, were no longer unlawfully restricted in their right to resign. Fur- ther, the Board recently found a restriction similar to the substitute provision implemented around 19 May 1986, to be violative of the Act. Oil Workers Local 1-591 (Texaco Refining), 283 NLRB 2 (1987). Accordingly, I find, as al- leged in the complaint, that on resignations contained in section 2(h) of article II of the IBTCW&HA constitu- tion, which has been adopted by Local 995 about 19 May 1986, is similarly violative of Section 8(b)(1)(A) of the Act. See Sheet Metal Workers Local 16 (Salem Heat- ing), 274 NLRB 41 (1985). Similarly, I find the failure to show the unlawful pro- vision was actually removed from the IUOE's constitu- tion failed to sufficiently erase the coercive effects of the adoption and maintenance of the unlawful restriction on resignation. The publication in the October 1985 issue of the IUOE's monthly magazine called "Operating Engi- neer" of a notice that the general executive board voted unanimously to delete article XXIV, subdivision 7, sec- tion (j) from the International constitution is inadequate to erase the coercive effect of the' maintenance of this provision. There is no evidence of how the magazine is distributed and thus it cannot be found that members were effectively informed of the deletion of the offend- ing provision in October 1985. Even if the magazine was found to constitute adequate notice, there is no evidence that individuals who became members after October 1985 were informed that Respondent Local 501's govern- ing documents had been amended to delete the unlawful restrictions on their resignations. Consequently, I conclude that the actions by the IUOE and IBTCW&HA did not effectively abrogate the unlawful effects of the provisions found unlawful or render the complaint moot. Further, I find that, under these circumstances, to properly erase the coercive ef- fects of these unlawful provisions, Respondents will be required to follow the expunction rule established by the Board in Neufeld. Cf. Auto Workers Local 73, 282 NLRB 466 (1986). I also find that the Board's decisions in Neufeld, and its progeny, do not infringe on Respondent's first amend- ment rights, and this defense is baseless. 2. Statute of limitations Respondents claim that the proceedings are barred by Section 10(b) of the Act. As the Board found in Safe Air, supra, 274 NLRB 374, 375, the limitations under Section 10(b) of the Act are inapplicable to this situation when the provisions of the Internationals' constitutions were unlawful on their face and the Internationals' actions did not adequately erase the coercive effects of the Respond- ents' adoptions of and adherence to these provisions. REMEDY Having found that Respondents have engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I shall recommend that they be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. It is further recommended that Respondents be or- dered to remove from their constitutions - the provisions concerning membership withdrawal; specifically article II, section 2(h), of the IBTCW&HA constitution, and ar- ticle XXIV, subdivision 7, section (j) of the IUOE con- stitution. Removal is recommended even though certain steps have been taken to eliminate these unlawful provi- sions from Respondents' respective constitutions to ensure the enforceability of the Order. The General Counsel seeks the inclusion of a visitator- ial clause in the recommended order: I find that the Gen- TEAMSTERS LOCAL 995 (CAESARS PALACE) eral Counsel has failed to demonstrate that the circum- stances of these cases warrant inclusion of a "visitatorial clause and the request is denied. CONCLUSIONS OF LAW 1. The Nevada Resort Association is engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondents are labor organizations within the meaning of Section 2(5) of the Act. 3. The Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 995, by its adoption and obligation to abide by article II, section 2(h) of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (IBTCW&HA) constitution, from at least 1 June 1981 to about 19 May 1986, and then maintaining and abiding by 833 the amended provision enacted by IBTCW&HA has re- strained and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The International Union of Operating Engineers, Local 501, by its adoption and obligation to abide by the article XXIV, subdivision 7, section (j) of the Interna- tional Union of Operating Engineers Constitution from at least April 1980 to about 20 August 1985, has restrained and coerced employees in the exercise of the rights guar- anteed them in Section 7 of the Act, and thereby, en- gaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]