Sheet Metal Workers' International Association, Local No. 16

266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers' International Association, Local No. 16 and Jacobs Heating and Air Con- ditioning and Imperial Mechanical and Robben Oil Company. Cases 36-CB-941, 36-CB-942, and 36-CB-943 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSON AND BABSON On 8 September 1983 Administrative Law Judge William L. Schmidt issued the attached decision. The Respondent, the Charging Parties, and the General Counsel filed exceptions and supporting briefs. 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, for the reasons stated herein, has decided to affirm the judge's rulings, findings,' and conclusions, except as noted below, and to adopt the recommended Order as modified. We agree with the judge that the constitutional provision that the Respondent maintained and gave effect to and which, inter alia, prohibits members from resigning "during a strike or lockout" is unen- forceable. In so doing, we rely on the Board's deci- sion in Machinists Local 1414 (Neufeld Porsche- Audi), 270 NLRB 1330 (1984),2 and the Supreme Court's decision in Pattern Makers League it. NLRB, 473 U.S. 95 (1985), which issued after the judge's decision in this case and which hold that a union may not lawfully restrict the right of its em- ployee-members to resign, and that a union rule which prohibits them from doing so is invalid and unenforceable.3 We also agree with the judge that the Respond- ent violated Section 8(b)(1)(A) of the Act by im- posing fines on the 13 employees who crossed a picket line and returned to work after notifying the ' The Charging Parties have excepted to some of the judge 's credibil- ity findings The Board's established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stand- ard 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 2 In Neufeld Porsche-Audi, the Board overruled Machinists Local 1327 (Dalmo Victor), 263 NLRB 984 (1982), which the judge here relied on, and adopted instead the rationale set forth in the concurring opinion in that case 3 The judge referred to the provision in issue as art 16, sec 13 of the Respondent's constitution It is clear from the record that art 16, sec 13 appears in the International 's constitution The Respondent shall be or- dered to remove any and all references to the unlawful provision from its governing documents . Auto Workers Local 73 (McDonnell Douglas), 282 NLRB 466 (1986) Respondent that they were altering their member- ship in its organization from "full" to "financial core" status.4 Thus, in Carpenters Local 470 (Tacoma Boatbuilding), 277 NLRB 513 (1985), the Board held that a union violates Section 8(b)(1)(A) when it attempts to subject "financial core" mem- bers to union discipline for engaging in such con- duct. S However, contrary to the judge, we find that the expulsion of these 13 employees from membership in the Respondent was not unlawful. As stated re- cently by the Board in Food & Commercial Workers Local 81 (MacDonald Meat), 284 NLRB 1084, 1086 (1987), "absent some threat of monetary penalty, suspending or expelling those who have signified their intent not to belong to the union . . . does not tend to restrain or coerce them," a necessary prerequisite for finding an 8(b)(1)(A) violation. As the record fails to establish that the expulsions car- ried some monetary implications for the affected employees, we conclude that the expulsions did not violate Section 8(b)(1)(A) of the Act.6 AMENDED REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies and pur- poses of the Act. The Respondent shall be required to rescind the unlawful fines imposed on the 13 em- ployees who altered their membership from "full" to "financial core" status and returned to work during the strike, and to refund any moneys paid by these employees to the Respondent as a result of the unlawfully imposed fines, with interest to be computed in the manner prescribed in New Hori- zons for the Retarded.7 The Respondent shall also * However, as found by the judge, the Respondent did not violate Sec 8(bXl)(B) of the Act by disciplining Brent and Gregory Jacobs The record fails to establish that they possessed grievance adjustment or col- lective-bargaining responsibilities NLRB v Electrical Workers IBEW Local 340, 107 S Ct 2002 ( 1987) Further, for the reasons stated by the judge, we agree that the descipline imposed on Brent and Gregory Jacobs did not violate Sec 8(o)(1XA) s See also Carpenters Seattle Council (Gordon Construction), 277 NLRB 530 (1985). We find no merit to the Respondent 's contention that since its constitution does not provide for the transfer of membership from "full" to "financial core" status , the change in membership for those employees who sought merely to transfer, rather than resigning as full members, was ineffective A similar argument was raised and rejected in Tacoma Boat- building and Tullus Gordon Construction, supra 6 For the reasons stated in his partial dissent in MacDonald Meat, supra, Chairman Dotson would find the expulsions violative of Sec 8(b)(IXA) 7 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C. § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 286 NLRB No. 25 SHEET' METAL WORKERS LOCAL 16 (JACOBS HEATING) 267 be required to remove from its records any and all references to the unlawful fines, and to notify the affected employees of its actions. Finally, the Re- spondent shall be required to cease and desist from maintaining and giving effect to article 16, section 13, of the Sheet Metal Workers' International con- stitution, and to remove any and all references to that provision from its governing documents. AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 3. "3. By imposing fines on Fred Piatkin Jr., James Fortman, Marvin Repp, Bernard Herrley, Douglas Unrein, Paul Portlock, Gregory Wiedeman, Mi- chael Clarizio, Dennis Pendleton, Charles Benson Jr., Eugene Guyton, Donald Holcomb, and Leland Sundstrom, who effectively converted their status in the Respondent to financial core members, for their conduct in crossing a sanctioned picket line and working during the 1981 strike against certain Portland area sheet metal contractors, the Re- spondent restrained and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby engaged in, and is engag- ing in, unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge, as modified and set forth in full below, and orders that the Respondent, Sheet Metal Workers' International Association, Local No. 16, Portland, Oregon, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining and coercing employee-members who have altered or converted their membership status to that of financial core members in the exer- cise of their rights guaranteed them in Section 7 of the Act by fining such employees because of their conduct in working for their employer during the strike that began on 21 April 1981. (b) Maintaining or giving effect to article 16, sec- tion 13, of the Sheet Metal Workers' International Association's constitution. (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the fines imposed on Fred Piatkin Jr., James Fortman, Marvin Repp, Bernard Herr- ley, Douglas Unrein, Paul Portlock, Gregory Wiedman, Michael Clarizio, Dennis Pendleton, Charles Benson Jr., Eugene Guyton, Donald Hol- comb, and Leland Sundstrom because of their action in working for their respective employers during the strike that began in April 1981. (b) Refund to the above-named employees any moneys they may have paid as a result of the un- lawful fines, with interest, as specified in the amended remedy section of this decision. (c) Remove from its records any and all refer- ences to the fines imposed on the above-named em- ployees, and notify each of the employees, in writ- ing, that such action has been taken. (d) Remove from its bylaws and other governing documents any and all references to article 16, sec- tion 13, of its International's constitution. (e) Post at its business office and meeting halls copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Sign and return to the Regional Director suf- ficient copies of the notice for posting by Jacobs Heating and Air Conditioning, Imperial Mechani- cal, and, Robben Oil Company, if they are willing, at all places where notices to employees are cus- tomarily posted. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. s 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 " APPENDIX 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT restrain or coerce employees who have resigned from full membership in Sheet Metal Workers' International Association, Local No. 16, and who, in the exercise of the rights guaranteed them in Section 7 of the Act, worked for their re- spective employers during the strike which com- menced in April 1981 against certain Portland area contractors in the sheet metal industry. WE WILL NOT maintain or give effect to article 16, section 13, of the Sheet Meal Workers' Interna- tional Association's constitution. 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 recind the fines that we imposed on Fred Piatkin Jr., James Portman, Marvin Repp, Bernard Herrley, Douglas Unrein, Paul Portlock, Gregory Wiedman, Michael Clarizio, Dennis Pen- dleton, Charles Benson Jr., Eugene Guyton, Donald Holcomb, and Leland Sundstrom because they worked for their respective employers follow- ing their resignation from full membership in Sheet Metal Workers' International Association, Local No. 16 during the strike that began in April 1981, and WE WILL refund to them any money they may have paid as a result of such fines, with interest. WE WILL remove from our records any refer- ences to our action in fining the above-named em- ployees, and WE WILL notify them in writing that we have done so. WE WILL remove from our bylaws and other governing documents any and all references to arti- cle 16, section 13, of the International's constitu- tion. SHEET METAL WORKERS' INTERNA- TIONAL ASSOCIATION, LOCAL No. 16 national Association, Local No. 16 (Respondent) violated Section 8(b)(1)(A) and (B) of the National Labor Rela- tions Act. The complaint issues on behalf of the General Counsel of the National Labor Relations Board (Board) by the Director for Region 19 of the Board on Decem- ber 22, 1982. It is based on unfair labor practice charges timely filed on behalf of Jacobs Heating and Air Condi- tioning (Jacobs), Imperial Mechanical (Imperial) and Robben Oil Company (Robben). The Respondent filed a timely answer to the complaint that denies the commis- sion of the alleged unfair labor practices. On the basis of the record made at the hearing, i my observation of the demeanor of the witnesses who testi- fied before me, and my careful consideration of the argu- ment and briefs filed by all of the parties, I make the fol- lowing FINDINGS OF FACT 1. THE BOARD'S JURISDICTION This dispute grows out of an economic Respondent against Jacobs, Imperial, Robben, and other Portland area sheet metal contractors in support of Repondent's demands for changes and modifications in the terms of a collective-bargaining agreement. Jacobs, Imperial, and Robben are Oregon corporations that are engaged in the building and construction industry as heating and air- conditioning contractors in the Portland area. In the year preceding the issuance of the complaint, Jacobs, Imperi- al, and Robben each performed a gross volume of busi- ness in excess of $500,000 and each purchased goods and services valued in excess of $50,000, which were trans- ported to their respective Portland locations directly from suppliers located outside the State of Oregon. On the basis of the foregoing I find that Jacobs, Imperial, and Robben are each employers within the meaning of Section 2(2), engaged in commerce, or a business affect- ing commerce, within the meaning of Section 2(6) and (7) of the Act. I further find that it would effectuate the purposes of the Act for the Board to assert jurisdiction over the instant labor dispute. II. THE LABOR ORGANIZATION It is admitted that the Respondent has been a labor or- ganization at all material times within the meaning of Section 2(5) of the Act, and I so find. III. THE ALLEGED UNFAIR LABOR PRACTICES Dale B. Cubbison, Esq., for the General Counsel. Donald S. Richardson, Esq. (Richardson, Murphy & Tedesco), of Portland, Oregon, for the Respondent. Thomas M. Triplett, Esq., of Portland, Oregon, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. This consolidated matter was heard by me on May 17, 1983, in Portland, Oregon, The consolidated complaint (complaint) alleges that the Sheet Metal Workers' Inter- A. Background and Chronology of Relevant Events Prior to April 21,2 Jacobs' service department manag- er, Brent Jacobs, and "job superintendent", Gregory Jacobs, and Jacobs' employees Fred Piatkin Jr ., James Fortman, and Marvin Repp; Imperial's employees Ber- nard Herrley, Douglas Unrein, Paul Portlock, Gregory i Pursuant to administrative notice to all parties of August 24, 1983, the record is corrected with respect to C P Exh 1 A copy of said ad- mmistrative notice and its attachments are included in the record as an addendum to the corrected C P Exh 1 2 The relevant events all occurred dung the 1981 calendar year When not specified, the calendar year is 1981 SHEET METAL WORKERS LOCAL 16 (JACOBS HEATING) 269 Wiedeman, Michael Clarizio, Dennis Pendleton, and Charles Benson Jr.; and Robben's employees, Eugene Guyton, Donald Holcomb, and Leland Sundstrom, were full members of the Respondent in good standing. At all relevant times, the Respondent maintained a constitution- al provision limiting the right of its members to resign. Specifically, article 16, section 13 of the Respondent's constitution and ritual provides: Any member in good standing may sever his con- nections with the Local Union by written resigna- tion provided he has paid all dues and financial obli- gations, he does not continue to work at any branch of the trade, and his resignation is accepted by the local union. No resignation shall be accepted if of- fered in anticipation of charges being preferred against him, during the pendency of any such charges or during a strike or lockout. On April 21, the Respondent commenced a lawful strike against certain heating and air-conditioning con- tractors including Jacobs, Imperial, and Robben. Among other things, it appears that the Respondent established picket lines at certain jobsites of Jacobs, Imperial, and Robben that had the effect of inducing employees of those three employers to refuse to perform their normal duties. Over the course of the first 3 days of the Respondent's strike, the aforenamed members of the Respondent sought to alter their membership status from "full" mem- bers to "financial core" members. This effort took two similar but slightly distinguishable forms. Thus, Imperial employees Herrley, Unrein, Portlock, Wiedeman, Clari- zio, Pendleton, and Benson each sent identical letters to the Respondent stating, in pertinent part, "I hereby do resign from the Union except to the extent that periodic dues and/or initiation fees may be required. Henceforth you should consider me as a `financial core' member as that term is defined in the case of NLRB v. Hershey, and you recognize that I will no longer be bound by the terms and conditions of the Constitution, By-Laws, and/or Ritual." Each of these letters were dated and re- ceived by the Respondent on April 21. The remaining members involved here delivered iden- tical letters to the Respondent that stated in pertinent part, "I hereby do transfer from regular membership to `financial core membership' as that term is defined under applicable law; I will remit periodic dues and/or initi- ation fees as may be required, and you should recognize that I will no longer be bound by the terms or conditions of the constitution, By-Laws and/or Ritual." Each of the letters in the latter style except those of Guyton, Hol- comb, and Sundstrom were dated and received by the Respondent on April 21. Guyton's letter is undated but it was received by the Respondent on April 21. Sund- strom's letter is dated April 22 and it was received by the Respondent on that date. Holcomb's letter is dated April 23 and it was received by the Respondent on that date. It is undisputed that each of the members involved here crossed the Respondent's picket line and com- menced working at their usual trade for their respective employers the day following the Respondent's receipt of the letters referred to above. By substantively identical letters dated May 4, the Re- spondent advised each of the members involved here that his membership would not be altered to that of a fi- nancial core membership. Those letters stated: Please be advised that to become a financial • core member, you must first resign from membership and than apply as a financial core member. Your mem- bership may not be transferred. Business Representative Milton R. Hill explained that, as there was no constitutional provision for "transferring" membership in the Respondent from that of a "full" member to that of a "financial core" member, it was the Respondent's unwritten policy, in effect, to require that the member resign from his/her membership altogether and then reapply as a "financial core" member. This pro- cedure, Hill acknowledged, required the payment of a new initiation fee which, at that time, was approximately $1500. Hill admitted that to his knowledge the member- ship had never previously been informed that the forego- ing procedure was necessary in order to become a finan- cial core member.3 None of the members here elected to follow the procedure explained by Hill for becoming a financial core member. By separate letters dated May 4, each of the afore- named members were advised that he was being charged by Hill with violating article 17, sections 1(e), (g), and (m) of the Respondent's constitution and ritual because the addressee was "presently employed by a firm against which this local union is on strike and are working for a wage package different than that which prevails in the agreement presently in effect." Article 17, section 1 re- lates generally to misconduct by officers, members, and representatives and specifies certain penalties for such misconduct. The specific sections to in Hill's letters of May 4 provide: SEC. 1(e). Violating the established union collec- tive-bargaining agreements and rules and regulations of any local union relating to rates of pay, rules and working conditions. SEC. 1(g). Accepting employment in any shop or on any job where a strike or lockout, as recognized under this constitution, exists. SEC. 1(m). Engaging in any conduct which is detrimental to the best interests of this Association or any subordinate unit thereof or which will bring said unions into disrepute. 3 Respondent sought to impeach Hill's assertions concerning this policy by the introduction of dues receipts from an individual dated 4/22 and 5/28, which contain the handwritten notations "Financial Core Membership Applied For" and "Financial Core Member," respectively. Hill claimed that those two receipts were issued in error and that the in- dividual declined to return them when the Respondent requested that he do so. Accordingly, I find that this evidence supports Hill's assertion that the Respondent maintained the policy that he described at least at the times relevant here. 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Each of the members was also notified that the charge against him would be considered by the Respondent's trial committee on the evening of June 1. The Respondent's trial committee met concerning the charges as planned on June 1. That committee's official minutes of that date recite that none of the charged members, or any designated representative, appeared but that'the trial proceeded as timely notice of the proceed- ing has been served. After the committee considered the "specifics" as presented by the "charging party," the charged employees were found "guilty as charged." The trial committee recommended that a fine of $300 for each violation (totaling $900) be levied against each charged member. In addition, the committee recom- mended that each individual be expelled from member- ship effective September 1. The nature or substance of the evidence presented to the trial committee was not disclosed. By letter dated September 4, each of the charged em- ployees was notified in writing that he had been found guilty as charged by Hill and that the Respondent's trial committee had recommended a $300 fine for each viola- tion, plus expulsion from membership effective Septem- ber 1. Those letters also recited that the Respondent's membership had voted to accept the trial committee's recommendation at its regular meeting on September 2, and that the right to appeal from the action taken was specified in article 19 of the Respondent's constitution and ritual. There is no evidence that since that date, the members involved have not been carried on the Re- spondent's membership rolls or that any attempt has been made to collect the fines. B. The Supervisory status of the Jacobses The complaint, as amended at the hearing, alleges that Brent and Gregory Jacobs (who are brothers) were su- pervisors at the time the Respondent levied the fine against them and, therefore, the Respondent's conduct violated Section 8(b)(1)(B) of the Act. The Respondent's answer denies that the Jacobs brothers are supervisors. Jacobs is a small closely held corporation-most, if not all the stock is owned by the Jacobs brothers' father, Basil. Brent has worked for the corporation full time for about 7 years and Gregory about 8-1/2 years. Brent de- scribed himself as the service department manager; Greg- ory testified that although he had no particular title he was an "outside installation supervisor." At the time the strike commenced, both men were being paid the con- tractual wage rate for journeymen sheet metal workers. Brent Jacobs testified that he was responsible for dis- patching the appropriate service employees to respond to service calls that are received by the office secretary. Brent Jacobs asserted that he "participate[d]" in the hiring process to the extent of interviewing potential em- ployees and then discussing them with his father. "Most of the time," Brent testified, his father followed his rec- ommendations. However, when pressed more closely Brent disclosed that, in fact, at the time of the hearing Jacobs employed two other service employees and one of those employees had worked for Jacobs longer than he had. The other service employees had worked only 6 months at the time of the hearing. No effort was made to demonstrate that other individuals had been employed as service employees in the interval between Brent Jacobs' employment as service manager and the time the fine was levied against him. In my judgment, Brent Jacobs' misleading testimony with respect to this fundamental element concerning his hiring authority was intentionally deceptive. As a consequence, I decline to rely on Brent Jacobs' testimony concerning his supervisory status. As there was no independent corroboration for the vague and conclusionary assentions Brent Jacobs made con- cerning the nature and extent of his supervisory author- ity,4 I find that the General Counsel has failed in his burden of proving that Brent Jacobs is a supervisor within the meaning of the Act. Additionally, the circum- stances generally and James Fitzgerald's credible testi- mony that Brent Jacob's spent "most" of his time work- ing with the tools of the trade indicate that Brent Jacobs' claim that he spent 75 percent of his time as supervisory duties is highly exaggerated. As to Gregory Jacobs, the evidence shows that at the time of the strike, he had been a member of the Union for 5 years. At all relevant times, Gregory Jacobs re- ceived the hourly wage rate and fringe benefits the Com- pany paid to all journeymen sheet metal workers. How- ever, both of the Jacobs brothers received a yearly bonus that was normally substantially larger than the bonuses paid to the Company's other journeymen sheet metal workers, including those who also worked as foreman or leadman. On some jobs Gregory was in charge of a crew of journeymen that could range up to six employees. On other occasions, he worked by himself. On yet other oc- casions, Jacobs worked as a crewmember under other foremen or leadmen. Most of the time, Gregory Jacobs worked with the tools of the trade. The evidence does not establish whether, at the time of the 1981 stirke, Gre- groy Jacobs was working on a project where he served as the foreman or leadman, was working under another foreman or leadman, or was working alone. The evi- dence also fails to disclose whether, at the time Gregory Jacobs was charged with violating the Union's internal rules and fined therefor, he otherwise held a position re- quiring that he adjust grievances or bargain on behalf of Jacobs.5 The General Counsel has the burden of showing a nexus or causal relationship between the Respondent's disciplinary action and duties as a collective bargainer or grievance adjuster for Jacobs. The Supreme Court rec- ognized and emphasized this element of proof in Florida 4 For example, Brent Jacobs also claimed that he had the authority to "grant time off," that his duties required that he make "all sorts of inde- pendent decisions," that he made all of the "work assignments," that he "handle[d] grievances," that his supervisory duties consumed 75 percent of his time ; that he frequently inspected the work of other employees, that he reprimanded employees , and that he handles customer complaints In no instance was supporting testimony sought or given that would war- rant the conclusion that in exercising such authority he made judgments that were other than routine or clerical in nature 6 In reference to those periods when Gregory Jacobs served as an "outside installation supervisor," he testified that he "handled griev- ances." Apart form this vague and undeveloped testimony, there is no evidence whatsoever that Gregory Jacobs acted at any time as the repre- sentative of any employer "for the purpose of collective bargaining or adjustment of grievances" within the meaning of Sec 8(b)(1)(B) SHEET METAL WORKERS LOCAL 16 (JACOBS HEATING) 271 Power & Light Co. v. Electrical Workers 1BEW Local 641, 417 U.S. 790, 804-805 (1974): Nowhere in the legislative history is there to be found any implicaiton that Congress sought to extend protection to the employer from union re- straint or coercion when engaged in any activity other than the selection of its representatives for the purpose of collective bargaining and grievance ad- justment. The conclusions is thus inescapable that a union's discipline of one of its members who is a su- pervisory employee can constitute a violation of § 8(b)(1)(B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the em- ployer. We may assume without deciding that the Board's Oakland Mailers decision fell within the outer limits of this test, but its decisions in the present cases clearly do not. For it is certain that these supervisors were not engaged in collective- bargaining or grievance adjustment, or in any ac- tivities related thereto, when they crossed union picket lines during an economic strike to engage in rank-and-file struck work. See also ABC v. Writers Guild, 437 U.S. 411 (1978). The evidence here is woefully inadequate to establish that either of the Jacobs brothers functioned as supervisors or as collective bargainers or grievance adjusters for Jacobs either shortly before or after the commencement of the 1981 strike, what work they performed after crossing the Union's picket line, or whether the Respondent's 1981 disciplinary action was directed toward their perform- ance of protected duties as opposed to rank-and-file work. Accordingly, it will be recommended that the 8(b)(1)(B) allegations in the complaint be dismissed. Fur- thermore, as Brent and Gregory Jacobs are admitted sons of a majority stockholder of a closely held corpora- tion, I find they are not employees within the meaning of the Act and, therefore, the disciplinary action imposed on them is not prohibited by Section 8(b)(1)(A) of the Act. Campbell-Harris Electric, 263 NLRB 1143 (1982). C. The Contentions Concerning the 8(b)(1)(A) Allegations Relying on Machinists Local 1327 (Dalmo Victor), 263 NLRB 984 (1982), the General Counsel argues that, as the Respondent's constitutional restriction on member- ship resignations completely prohibits resignations during strike periods, the restriction is reasonable and ineffec- tive. In this circumstance, the General Counsel asserts, the employee-members involved here were free to resign at will and that their action in returning to work during the course of the Respondent's strike was an exercise of the right guaranteed by Section 7 of the Act to refrain from engaging in union or concerted activities. Accord- ingly, the General Counsel believes that the Respond- ent's action in disciplining the employee-members was unlawful restraint and coercion within the meaning of Section 8(b)(1)(A) of the Act. Citing NLRB v. Hershey Foods Corp., 513 F.2d 1083 (9th Cir. 1975), the Charging Parties argue, in essence, that even where there is an 8(a)(3) sanctioned agreement requiring "membership" in a labor organization as a con- dition of employment (as was the case here), the law does not require the employee to become a "full" member of the contracting labor organization and, there- by, subject himself or herself to the discipline of its con- stitution and bylaws. Rather, it is argued, the maximum compulsory membership obligation under Section 8(a)(3) of the Act is limited to the financial core aspects of membership in a labor organization, namely, only the ob- ligation to pay the initiation fees and dues uniformly re- quired of all members. To avoid doing violence to the concept of "financial core" membership, the Charging Party asserts that an employee must be entitled to modify his/her form of membership from that of a "full" member to that of a "financial core" members at any time without fear of penalty for exercising that right. With respect to applicability of Dalmo Victor in this case, the Charging Parties' arguments are elusive. First, they argue that the Respondent's restriction on resigna- tions is inconsistent with the holding in Dalmo Victor, next, they argue that it is not necessary to reach a Dalmo Victor issue because the employee need not "resign" in order to convert their full membership into a financial core membership; and finally, they contend that it is "particularly appropriate" to apply Dalmo Victor princi- ples here because the Union took its strike vote before negotiations began and, hence, (1) the employees were unable to make an informed choice about striking, (2) the Union's constitution prohibits resignations altogether unless the employee intends to cease working in the trade, and (3) like the Dalmo Victor situation, the Union's constitution flatly prohibited resignation during strike pe- riods. Respondent contends that the conclusion of the Board's majority in Dalmo Victor concerning the reason- ableness of a constitutional provision prohibiting employ- ees from resigning their membership in a labor organiza- tion during the course of a strike at their place of em- ployment is contrary to applicable law. In support of this argument, Respondent notes that language found in the Supreme Court's opinion in NLRB Y. Allis-Chalmers Co., 388 U.S. 175 (1967) observed that "the judicial view cur- rent at the time 8(b)(1)(A) was passed was that provi- sions defining punishable conduct . . . constituted part of the contract between member and union and that '[t]he courts' role is to but enforce the contract." Respondent asserts that this viewpoint accords with the notion found in the common law that voluntary associations, such as labor and trade organizations, have the right to adopt rules, including rules restricting the right of members to resign, which are for the common good of all the mem- bers. In the Respondent's view, rules restricting resigna- tions during a strike are particularly defensible because each of the members ought to be able to rely on the pleged solidarity of the other members during such a critical period. The Respondent also asserts that the common law rule respecting the right of a voluntary as- sociation to establish its own membership rules was not 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD altered by the Taft-Hartley amendments. On the con- trary, it is the Respondent's view that Section 8(b)(1)(A) of the Act perserves the common law right of labor or- ganizations "to prescribe its own rules with respect to the acquisition or retention of membership . . ." Citing Price v. NLRB, 373 F.2d 443, 446 (9th Cir. 1967), Re- spondent argues that its rule on strike resignations is not unlawful The Respondent characterizes the action by the 13 em- ployees involved here as an attempted effort to "retain the benefits but not the burdens" of union membership. The Respondent asserts that their action was ineffective because there is no prescribed procedure for transferring to the status of financial core member or for continuing to affiliate with the Respondent as a financial core member after resigning as a full member without paying a new initiation fee. Finally, the Respondent claims that even if the employee-members could lawfully convert their status to that of a financial core member, such a change would not be sufficient to remove them from the Respondent's jurisdiction for disciplinary purposes. D. Further Findings and Conclusions Although arguments proffered by the Charging Party and the Respondent are varied, interesting, and, in cer- tain instances appealing, it is concluded that the outcome of this case is ultimately governed by the principle found in Dalmo Victor. As noted above, that case held that a restriction on a union member's right to resign through- out the period of a strike is an unreasonable restraint on the right guaranteed employees in Section 7 of the Act to refuse to engage in collective activity and to continue working during the course of a strike. Accord: Gray Motors, 265 NLRB 1049 (1982). In reaching this conclusion , I do not deem it signifi- cant that the 13 employees here did not simply resign their full membership in the Respondent as was the case in Dalmo Victor and Gray Motors. By attempting to alter their status from that of full members to that of financial core members the employees here were attempting to achieve the same essential result as if they had simply re- signed, namely, to fundamentally alter their relationship with the Respondent so that they would no longer be subject to the Respondent's power to discipline them for acting contrary to the Respondent's internal rules. The Respondent's assertion that even financial core members are subject to union disciplinary action is simply incor- rect. See NLRB v. Hershey Foods Corp., supra, and the cases cited therein at fn. 1. Moreover, in balancing the important rights involved in cases of this nature , it would be inappropriate to place any significance on the fact that the Respondent's constitution does not provide a procedure for transferring memberhsip status downward to that of a financial core member, or continuing to affili- ate with the bargaining representative as a financial core member after resigning full membership. It is to be ex- pected that in the overwhelming number of cases that no such procedure will exist as it is fair to assume that the financial core membership is not a favored status within labor organizations. Typically, the financial core member is regarded as anathema, barely a cut above the "free loader" who declines to pay anything for the services performed by the bargaining representative . And, in this area, the lack of a restraint in the organic rules of a labor organization has historically been interpreted as favoring the employee's freedom to alter or change his/her mem- bership status at will. Machinists (Boeing Co.) v. NLRB, 412 U.S. 84 (1973); NLRB v. Textile Workers Local 1029, Granite State Joint Board, 409 U.S. 213 (1972). For the foregoing reasons, I find that the action taken by the em- ployees here is indistinguishable from that taken by the disciplined employees in Dalmo Victor and Gray Motors. Having concluded that the action taken by the 13 em- ployees here was essentially equivalent to the action taken by the disciplined Dalmo Victor and Gray Motors employees, it is my further conclusion that the Respond- ent's constitutional restraint on member resignations that it attempted to enforce by fining and expelling the em- ployees involved here is unreasonably broad . In compari- sion to the provision found in Dalmo Victor and Gray Motors, the restraint on resignations here is, as the Charging Parties point out, significantly broader in scope. If the employees here were held to terminating their full membership by the Respondent's book, they would have to forego working altogether at the Sheet Metal trade, regardless of whether they opted to resign before, during, or after a strike . When this restraint is coupled with the restraint against resigning during strike periods, which the Board had already been found to be overly broad, the conclusion is inescapable that the Re- spondent's attempt to enforce such a provision as it has done here violated Section 8(b)(1)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth above , occur- ring in connection with the Employer operations, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. THE REMEDY Having concluded that Respondent has engaged in certain unfair labor practices, it is recommended that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purpose of the Act. In this regard , it is recommended that the Respondent be required to rescind the unlawful fines and formal expulsion action , to expunge all refer- ences to such action from its records, and to notify the affected individual of the action it has taken in this regard. It is further recommended that Respondent be required to refund any money paid to it as a result of such fines, with interest. See Florida Steel Corp., 231 NLRB 651 (1977). And see generally Isis Plumbing Co., 138 NLRB 716 (1962). Finally , it is recommended that Respondent be ordered to post the notice attached as the Appendix to this Decision and Order for 60 consecutive days. SHEET METAL WORKERS LOCAL 16 (JACOBS HEATING) 273 CONCLUSIONS OF LAW 1. The Employers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By imposing fines and formally expelling Fred Piat- kin Jr., James Fortman, Marvin Repp, Bernard Herrley, Douglas Unrein, Paul Portlock, Gregory Wiedeman, Mi- chael Clarizio, Dennis Pendleton, Charles Benson Jr., Eugene Guyton, Donald Holcomb, and Leland Sund- strom, who had effectively converted their status in the Repondent to financial core members, for their conduct in crossing a sanctioned picket line and working during the 1981 strike against certain Portland area sheet metal contractors, Respondent restrained and coerced employ- ees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby engaged in and are engag- ing in, unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, Sheet Metal Workers' International Association, Local No. 16, Portland, Oregon, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining and coercing employee-members who have altered or converted their membership status to that of financial core members in the exercise of the rights guaranteed them in Section 7 of the Act by imposing fines and formally expelling such employees because of their conduct in working for their employer during the strike that began on April 21, 1981. (b) In any like or related manner restraining or coerc- ing 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) Rescind the fines and formal explusion action im- posed against Fred Piatkin Jr., James Fortman, Marvin Repp, Bernard Herrley, Douglas Unrein, Paul Portlock, Gregory Wiedeman, Michael Clarizio, Dennis Pendleton, Charles Benson Jr., Eugene Guyton, Donald Holcomb, and Leland Sundstrom, because of their action in work- ing for their respective employers during the strike that began in April 1981. (b) Refund to the employees named above any monies they may have paid as a result of such fines, plus inter- est, as specified in the remedy section. (c) Expunge all reference in its records to the fines and formal expulsion action against the employees named above, and notify each employee named above, in writ- ing, of the action taken in this regard and that any evi- dence of the unlawful action taken against them will not be used in any future dealings with them. (d) Post at its business office and meeting halls copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (e) Mail to the Regional Director for Region 19 signed copies of the notice for posting by Jacobs Heating and Air Conditioning, Imperial Mechanical, and Robben Oil Company, if the Companies are willing, in places where notices to employees are customarily posted. Copies of said notice, on forms provided by the Regional Director, after being signed by Respondent's authorized represena- tive, shall be returned to the Regional Director. (1) Notify the Regional Director in writing within 20 days form the date of this Order what steps Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint allegations pertaining to violations of Section 8(b)(1)(B) of the Act are dismissed. 6 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 r 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 "