International Association Of Machinist & Aerospace Workers, Local Lodge 1309

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1140 (N.L.R.B. 1985)

1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Machinists & Aerospace
Workers,' Local Lodge 1309 and Mark Cadillac,
Inc. Cases 32-CB-1856 and 32-CB-1868
30 Septerm er 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
Upon charges filed 22 August 19841 and 18 Sep-
tember and amended charges filed 5 and 9 October
by the Employer, the General Counsel of the Na-
tional Labor Relations Board issued complaints 16
and 18 October against the Respondent Union al-
leging that it has violated Section 8(b)(1)(A) of the
National Labor Relations Act. The complaints
allege, in essence, that the Respondent violated the
Act by'- disciplining William Harrison and Gary
Janssen for crossing the Respondent's picket line
after they resigned from the Respondent. The Re-
spondent filed timely answers-denying that it com-
mitted the unfair labor practices.
On 17 May 1985 the parties jointly moved to
transfer the instant proceeding to the Board, with-
out benefit of a hearing before-an administrative
law judge, and submitted a proposed -record con-
sisting of the formal papers and parties' stipulation
of facts with attached exhibits. On 25 June 1985 the
Associate Executive Secretary, by, direction of the
Board, issued an order granting the motion, ap-
proving the, stipulations, and transferring the pro-
'ceeding to. the Board. Thereafter, the General
Counsel filed a brief. The Respondent-did not file a
brief.
The National Labor Relations .Board has delegat-
ed its authority in this proceeding to a three-
member panel. .
On the entire record in the case, the Board
makes the following findings.
1. JURISDICTION
The Employer, a California corporation, is en-
gaged in the-retail sale, maintenance, and service of
automobiles. During the year preceding the com-
plaints, the-Employer, in the course and conduct of
its business operations, .derived gross: revenues in
excess of $500,000 and purchased and received
goods or services valued in excess of $5,000 which
originated from outside the State'of California. We
find that the Employer is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act. We further find that the Respondent
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
' All subsequent dates refer to 1984 unless otherwise indicated
II. ALLEGED UNFAIR LABOR PRACTICE
The issue presented is whether- the Respondent
violated Section 8(b)(1)(A) by fining employees
Harrison and Janssen for conduct that occurred
after they resigned from the Union.
A. Facts
At all material . times the Respondent and the
Employer were parties to a .collective-bargaining
agreement covering an appropriate unit of the Em-
.ployet's employees. Article L,'section 3 of the'con-
stitution of -the International Association of 'Ma-
chinists & Aerospace Workers provides in pertinent
part: '
Improper Conduct of-a 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. it 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. - -
On 26 July unit employees commenced an eco-
nomic strike 'against the Employer. On, 2 August
Respondent received Harrison's written letter of
resignation from the Union. He returned to work
for the Employer on 6 August. On 3 August Re-
spondent received Janssen's written letter of resig-
nation. Janssen had returned to work for the Em-
ployer on 1 August.
By letters dated 16 August and 10 September,
the Respondent charged Harrison and Janssen, re-
spectively, with violating article L, section 3 of the
International's constitution by crossing the picket
line and returning to work during the strike against
the Employer. Subsequently, the Respondent fined
them.
B. Analysis
The Board has held that a union may not lawful-
ly restrict the right of members to resign from
membership and that it is a violation of Section
8(b)(1)(A) of the Act for a union to fine members
276 NLRB No. 120
MACHINISTS LOCAL 1309 (MARK CADILLAC) 1141
who return to active employment. with a struck
employer after having tendered their resignations
from membership. Machinists Local 1414 (Neufeld
Porsche-Audi), 270 NLRB 1330 (1984). Recently,
the United States Supreme Court upheld this read-
ing of Section 8(b)(1)(A) as a reasonable interpreta-
tion of the Act. Pattern Makers v. NLRB, 105 S.Ct.
3064 (1985).
The facts in the instant case fall squarely within
the rule set forth above. Harrison resigned from
the Union during the strike against the Employer
and 4 days later crossed the picket line and re-
turned to work. Janssen crossed the picket line and
returned to work with the Employer on 1 August.
The Respondent received his resignation on 3
August. The Respondent charged and subsequently
fined Harrison and Janssen for violating the
Union's constitutional provision restricting a mem-
ber's right to resign. Accordingly, we find that the
Respondent's fining of Harrison and Janssen for
crossing the Union's picket line on 6 and 3 August,
respectively, and returning to work after they re-
signed from the Union violated Section 8(b)(1)(A)
of the Act.2
CONCLUSION OF LAW
By imposing fines against William Harrison and
Gary Janssen for crossing the Union's picket line
on 6 and 3 August, respectively, and returning to
work at Mark Cadillac, Inc. after they resigned
from the Union, the Respondent has engaged in
unfair labor practices affecting 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 has engaged
in unfair labor practices in violation of Section
8(b)(1)(A) of the Act, we shall order that it cease
and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the
Act, including the refund to Harrison and Janssen
of any moneys they may have paid as a result of
the fines imposed against them because of their
postresignation work for the Employer, with inter-
est computed in the manner prescribed in Florida
Steel. Corp., 231 NLRB 651 (1977). In addition, we
shall order the Respondent to cease and desist from
maintaining the restriction on resignations found in=
valid and to expunge the provision from its govern-
ing documents. Engineers & Scientists Guild (Lock-
heed-California), 268 NLRB 311 (1983).3 In so
2 The General Counsel- does not contend that the fine imposed on Jans-
sen for returning to work on I and 2 August is unlawful
8 Member Dennis adheres to the position she set forth in Neufeld
Porsche-Audi, supra at 1336 fn 22
doing we note that we are not ordering that the
parent International, which is not a party to this
proceeding, expunge the offending provision from
its constitution. Rather, we are only ordering the
Respondent to expunge the provision from its gov-
erning documents including such documents of the
International that the Respondent may have incor-
porated by reference and adopted as its own. Fur-
ther, the lack of a separate allegation that the main-
tenance of the restriction is violative has no bear-
ing on the exercise of our discretion to fashion ap-
propriate remedies for the violations found because
the link between the restriction and the violation is
evident.
ORDER
The National Labor Relations Board orders that
the Respondent, - International Association of Ma-
chinists & Aerospace Workers, Local Lodge 1309,
Fresno, California, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Maintaining in its governing documents arti-
cle L, section 3 of the constitution of the Interna-
tional Association of Machinists & Aerospace
Workers to the extent it provides:
Improper Conduct of a 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) Restraining or coercing employees who have
resigned from, and are no longer members of, the
Respondent in the exercise of the rights guaranteed
them by Section 7 of the Act by imposing fines on
such employees because of their postresignation
conduct in working at Mark Cadillac, Inc. during
the strike that began on 26 July 1984.
(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.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following' affirmative action neces-
sary to effectuate the policies of the Act.
(a) Expunge from its governing documents the
portion, of article L, section 3 of the constitution of
the International Association of Machinists &
Aerospace Workers set forth above.
(b) Rescind the fines levied against William.Har-
rison and Gary Janssen because of their postresig-
nation work for Mark Cadillac, Inc. during the
strike that began-on 26 July 1984 and refund to
them any moneys they may have paid as -a result of
such fine, with interest.
- (c) Post at its business office and meeting halls
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 32, 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.
(d) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by Mark
Cadillac, Inc., if willing, at all places where notices
to employees are customarily posted.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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.
-WE WILL NOT maintain in our-governing docu-
ments article L, section 3 of the constitution of the
International Association of Machinists & Aero-
space Workers to the extent it provides:
Improper Conduct of a 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.
WE WILL NOT restrain or coerce employees who
have resigned from, and are no longer members of,
the Union in the exercise of the rights guaranteed
them by Section 7 of the Act by imposing fines on
such employees because of their postresignation
conduct in working at Mark Cadillac, Inc. during
the strike that began on 26 July 1984.
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 expunge from our governing docu-
ments the portion of article L, section 3 of the con-
stitution of the International Association of Ma-
chinists & Aerospace Workers set forth above.
WE WILL rescind the fines levied against William
Harrison and Gary Janssen because of their postre-
signation work for Mark Cadillac, Inc. during the
strike that began on- 26 July 1984 and. WE WILL
refund to them any moneys they may have paid as
a result of such fines, with interest.
INTERNATIONAL ASSOCIATION OF
MACHINISTS & AEROSPACE WORK-
ERS, LOCAL LODGE 1309