Machinists (Burkart Foam)

MACHINISTS (BURKART FOAM) 417 International Association of Machinists and Aero- space Workers, AFL-CIO; District No. 111, International Association of Machinists and Aerospace Workers, AFL-CIO; Local Lodge No. 1076, International Association of Machin- ists and Aerospace Workers, AFL-CIO and Brenda Sue Davis Burkart Foam, Inc. and Brenda Sue Davis, Petition- er and Local Lodge 1076, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO. Cases 14-CB--6345 and 14-RD- 1032 30 September '1987 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS JOHANSEN, BABSON, AND STEPHENS Pursuant to a petition filed on 19 February 1985 an election was conducted in Case 14-RD-1032 on 11 April 1985. The tally of ballots showed 211 votes for and 197 against the Union, with 20 deter- minative challenged ballots. The Employer and the Petitioner filed timely objections to the election. On 14 May 1985 the Regional Director issued a Report on Challenged Ballots and Objections and recommended, inter alia, that 18 challenges be overruled and, if a revised tally indicated a majori- ty of valid votes cast for the Union, that a hearing be held with regard to that portion of the objec- tions pertaining to the maintenance of a provision in the International's constitution restricting resig- nation from membership. The Regional Director overruled the remainder of the Employer's and the Petitioner's objections. On 10 September 1985 the Board issued a deci- sion adopting the Regional Director's report. The revised tally showed 229 votes for and 197 against the Union. Upon a charge filed by the Petitioner on 25 March 1985, the General Counsel issued a com- plaint on 24 April 1985 against the Respondent Unions. The complaint alleges that the Respondent Unions have violated Section 8(b)(1)(A) by main- taining in the Respondent International's constitu- tion a provision restricting resignation from union membership. On 13 May 1986 the Regional Director issued a Supplemental Report on Challenged Ballots and Objections, Order Directing Hearing and Order Consolidating Cases and Notice of Hearing. The Regional Director's supplemental report consolidat- ed Cases 14-CB-6345 and 14-RD-1032 for hearing before an administrative law judge. On 27 May 1986 the Charging Party/Petitioner filed a Motion for Summary Judgment urging the Board to find that the Respondent Unions' mainte- nance of the constitutional provision restricting res- ignation restrained and coerced employees, in vio- lation of Section 8(b)(1)(A), and interfered with the election conducted in Case 14-RD-1032. On 29 September 1986 the Board issued an Order denying the Motion for Summary Judgment and remanding the proceeding to the Regional Director. On 28 November 1986 the parties jointly filed with the Board in Washington, D.C., a motion to transfer proceedings to the Board and a stipulation of the record entered into by all parties. The par- ties agreed that the formal documents and stipula- tion of facts constitute the entire record in these cases, and that no oral testimony or documentary evidence is necessary or desired. The parties also agreed to waive a hearing before an administrative law judge, the making of findings of fact and con- clusions of law, and the issuance of a judge's deci- sion. On 17 February 1986 the Board issued an order granting the motion, approving the stipula- tion, and transferring the proceeding to the Board. Thereafter, the General Counsel, Respondent Unions, Charging Party/Petitioner, and the Em- ployer filed briefs.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in this proceeding, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Employer, an Illinois corporation, has been engaged in the business of manufacturing molded foam components at its Cairo, Illinois plant. The parties stipulated, and we find, that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties further stipulated, and we find, that the Re- spondent Unions are labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The issue presented in Case 14-CB-6345 is whether the Respondent Unions have violated Sec- tion 8(b)(1)(A) by maintaining article L, section 3, in the International's constitution that states: Improper Conduct of Member. . . . 1 The Employer has requested oral argument The request is denied as the record and briefs adequately present the issues and the positions of the parties 286 NLRB No. 35 418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accepting employment in any capacity in an establishment where a strike or lockout exists as recognized under this Constitution, without permission. Resignation shall not relieve a member of his obligation to refrain from ac- cepting employment at the establishment for the duration of the strike or lockout if the res- ignation occurs during the period of the strike or lockout or within 14 days preceding its commencement. Where observance of a pri- mary picket line is required , any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained, nor shall it relieve a member of his or her obligation to observe the primary picket line for its duration. A. Facts On 1 December 1969 the Respondent Local Lodge 1076 was certified as the collective-bargain- ing representative of the Employer's production and maintenance employees. The Employer's in- spection employees were later added to the unit. The parties' most recent collective-bargaining agreement expired on 4 September 1984. When the parties were unable to reach agreement on a new contract, the employees commenced a strike on 5 September 1984. During the period 1 September 1984 through ap- proximately 20 August 1985, the Respondent Inter- national maintained the provision in its constitution restricting resignation from membership. B. Contentions of the Parties The General Counsel urges the Board to find a violation under the Board's decision in Sheet Metal Workers Local 73 (Safe Air), 274 NLRB 374 (1985). In Safe Air, the Board held that a union's mainte- nance of a constitutional provision restricting a union member's right to resign violates Section 8(b)(1)(A) of the Act. The Charging Party/- Petitioner and the Employer also rely on Safe Air in arguing that the Respondent Unions unlawfully maintained the constitutional provision. The Respondent Unions argue that no violation of Section 8(b)(1)(A) occurred because they did not enforce the constitutional provision at issue. The Respondent Unions contend that they did not even threaten to enforce the provision against any unit employee, and therefore did not restrain or coerce any employee. C. Discussion We agree with the General Counsel that the Re- spondent Unions' maintenance of the provision re- stricting a member's right to resign violated Sec- tion 8(b)(1)(A) of the Act. In Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), the Board held that "any restrictions placed by a union on its members' right to resign . . . are unlawful." In Machinists Local 1769 (Dorsey Trailers), 271 NLRB 911 (1984), the Board further held that "a union may not lawfully restrict the right of its members to resign or otherwise refrain from pro- tected Section 7 activities." In addition, in Safe Air the Board found it insig- nificant that the provision restricting resignation was not enforced or that no fines were collected from union members. Thus, the Board found the mere maintenance of the constitutional provision restricting resignations restrained and coerced em- ployees from exercising their Section 7 rights.2 Consistent with the above precedent, we find that the Respondent Unions' maintenance of the constitutional provision restricting resignation from membership violated Section 8(b)(1)(A) of the Act. III. THE OBJECTIONS The Employer's Objection 4 and the Charging Party/Petitioner's Objections 4 and 5 in Case 14- RD-1032 allege, inter alia, that the Union inter- fered with the election by maintaining its constitu- tional provision restricting members' right to resign. The Respondent International maintained the provision in its constitution from 1 September 1984 until approximately 20 August 1985. The election in Case 14-RD-1032 was held on 11 April 1985. At the time of the election, the unit employees had been on strike since 5 September 1984, and the Em- ployer had hired replacement employees. The Employer contends that the maintenance of the constitutional provision presumptively tainted the election. The Employer argues that a presump- tion of interference is warranted because the provi- sion is inherently destructive of Section 7 rights and tends to force the strikers to vote for the Union and nonstrikers to vote against it. The Em- 2 We also note that, although the issue before the Court in Pattern Makers League Y NLRB, 473 U S 95 (1985), was the legality of union fines enforcing a constitutional restriction on the right to resign during a strike or lockout or when either "appears imminent," dictum in the opin- ion that reflected the Court's reasoning indicated the Court's view that the provision itself was unlawful See, e g , id at 107 (Board "justified in concluding that by restricting the right of employees to resign, League Law 13 impairs the policy of voluntary unionism"), and id. at 114 (Board reasonably concluded "that League Law 13 'restrains or coerces' employ- ees, see 8(b)(1)(A), and is inconsistent with the congressional policy of voluntary unionism") MACHINISTS (BURKART FOAM) 419 ployer asserts that a presumption of interference is particularly appropriate in cases such as this where the margin of the Union's victory is slight. The Charging Party/Petitioner argues that in light of the fact that the election was conducted in the midst of a strike, the maintenance of the consti- tutional provision necessarily had a coercive impact on each and every employee who was a member of the Union. The Charging Party/- Petitioner contends that the constitutional provi- sion's infringement on the union members' Section 7 rights should be deemed presumptively objection- able conduct. The Union contends that the constitutional pro- vision is not objectionable because it played no part in the election. The Union asserts that there is no evidence that it made any attempt to enforce the provision during the critical period, and that the mere existence of the provision does not warrant setting aside the election. We overrule the objections relating to the Union's maintenance of the constitutional provision restricting resignation from membership. In consid- ering whether to set aside an election on the basis of objectionable conduct, we are not considering merely whether a party has engaged in conduct that intereferes with, restrains, or coerces employ- ees in their exercise of Section 7 rights in violation of the Act. Rather our inquiry is whether the con- duct in question was likely to affect the election outcome; when the circumstances are such that we cannot reach this conclusion, we do not set aside the election. See, e.g., Clark Equipment Co., 278 NLRB 498 (1986). It is not immediately apparent how maintenance of a constitutional provision re- stricting resignations from union membership would reasonably tend to coerce employees into voting for the Union in the decertification election. Unlike a no-solicitation rule, to which both the Charging Party/Petitioner and the Employer anal- ogize the constitutional provision, the restriction on resignations does not impair employees' ability to campaign for their preferred position during the election period. As indicated above, the Charging Party/Petitioner simply argues that the provision necessarily affected the election because a strike was then going on. The Employer makes a more specific argument, theorizing that because the pro- vision might have caused some of the strikers to remain on strike even when they were faced with replacement, the Union's coercion thereby placed them in a position in which they would be behold- en to the Union to try to get back their jobs through a strike settlement agreement and that this, in turn, would influence them to vote for the Union in the election. But it seems equally possi- ble-indeed, perhaps even more likely-that em- ployees who had remained on strike only because they thought the constitutional provision prevented them from resigning would resent the Union and vote against it. Thus, although we do not hold that actions taken by either a union or an employer with respect to maintenance of union membership could never constitute objectionable conduct, we conclude that, on the stipulated record here, the re- lationship between the constitutional provision and the employees' freedom to campaign and vote in the decertification election is too tenuous to war- rant a finding that the mere existence of that provi- sion amounted to objectionable conduct. Because the revised tally of ballots shows that the Union has received a majority of the valid bal- lots cast, we shall certify the Union as the collec- tive-bargaining representative. CONCLUSIONS OF LAW 1. Burkart Foam, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Unions are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By maintaining in the International's constitu- tion the restriction-on-resignations provision set forth in section II of this decision, the Respondent Unions engaged in an unfair labor practice affect- ing commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent Unions have engaged in an unfair labor practice in violation of Section 8(b)(1)(A) of the Act, we shall order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order that the Respondent Unions ex- punge from the International 's constitution and their governing documents the restrictions on resig- nation from membership contained in article L, section 3, of the constitution. ORDER The National Labor Relations Board orders that the Respondent Unions, International Association of Machinists and Aerospace Workers, AFL-CIO; District No. 111, International Association of Ma- chinists and Aerospace Workers, AFL-CIO; and Local Lodge No. 1076, International Association of Machinists and Aerospace Workers, AFL-CIO, their officers, agents, and representatives, shall 1. Cease and desist from 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Maintaining in their governing documents and constitution the restrictions on resignation from membership contained in the following con- stitutional provision: Improper Conduct of Member. . . . Accepting employment in any capacity in an establishment where a strike or lockout exists as recognized under this Constitution, without permission. Resignation shall not relieve a member of his obligation to refrain from ac- cepting employment at the establishment for the duration of the strike or lockout if the res- ignation occurs during the period of the strike or lockout or within 14 days preceding its commencement. Where observance of a pri- mary picket line is required, any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained, nor shall it relieve a member of his or her obligation to observe the primary picket line for its duration. (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) Expunge from their governing documents and constitution the restrictions on resignation from membership contained in the constitutional provision set forth above. (b) Post at their business offices and other places where notices to their members are customarily posted copies of the attached notice marked "Ap- pendix."3 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- spondent 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 Burkart Foam, Inc., if willing, at all places where notices to employees are customarily posted. 3 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 " (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Local Lodge 1076, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, and that it is the exclusive collective-bargaining representative of the employ- ees in the following unit: All production and maintenance and inspection employees employed at the Employer's Cairo, Illinois plant, excluding office employees, pro- fessional employees, laboratory technicians, salaried chemists, superintendents, plant pro- duction employees, executives, department foremen, and other supervisors with authority to hire, promote, discipline or otherwise effect changes in status of employees or effectively recommend such actions. 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. WE WILL NOT maintain in our governing docu- ments and constitution the restrictions on resigna- tion from membership contained in the following constitutional provision: Improper Conduct of Member. . . . Accepting employment in any capacity in an establishment where a strike or lockout exists as recognized under this Constitution, without permission. Resignation shall not relieve a member of his obligation to refrain from ac- cepting employment at the establishment for the duration of the strike or lockout if the res- ignation occurs during the period of the strike or lockout or within 14 days preceding its commencement . Where observance of a pri- mary picket line is required, any resignation tendered during the period that the picket line is maintained, or within 14 days preceding its establishment, shall not become effective as a resignation during the period the picket line is maintained, nor shall it relieve a member of his MACHINISTS (BURKART FOAM) 421 or her obligation to observe the primary picket line for its duration. 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 and constitution the restrictions on resigna- tion from membership contained in the constitu- tional provision set forth above. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORK- ERS, AFL-CIO; DISTRICT No. 111, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORK- ERS, AFL-CIO; LOCAL LODGE No. 1076, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO