Local Union No. 1233, Carpenters

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 756 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 1233, United Brotherhood of
Carpenters and Joiners of America and Anthony A.
Ortega and Lonnie D. Ward and Polk Construc-
tion Co., Inc.
South Mississippi Carpenters' District Council, Unit-
ed Brotherhood of Carpenters and Joiners of
America and Anthony A. Ortega and Lonnie D.
Ward and Polk Construction Co., Inc.
Local Union No. 1518, United Brotherhood of
Carpenters and Joiners of America and Polk
Construction Co., Inc. Cases 15-CB-1680, 15-
CB-1692, 15-CB-1681, 15-CB-1694, and 15-CB-
1710
August 30, 1977
DECISION AND ORDER
On July 29, 1976, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondents filed exceptions and supporting briefs,'
and the Charging Parties filed a brief.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondents, Local Union
No. 1233, United Brotherhood of Carpenters and
Joiners of America; South Mississippi Carpenters'
District Council, United Brotherhood of Carpenters
and Joiners of America; Local Union No. 1518,
United Brotherhood of Carpenters and Joiners of
America, their officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
' The General Counsel's motion to insert a page that was inadvertently
omitted from counsel for General Counsel's brief in support of limited
exception to the Administrative Law Judge's Decision is hereby granted.
2 Members Jenkins and Murphy, who dissented in Machinists Local
1327, International Association of Machinists and Aerospace Workers, AFL-
CIO, District Lodge 115 (Dalmo Victor Co.), 231 NLRB 719 (1977), note that
the restriction here on membership resignation prohibited all resignations at
all times for the purpose of performing nonunion work or, as the
Administrative Law Judge phrased it, "to impede forever the Section 7
rights" to refrain from union activity. It is on this ground that the restriction
here cannot operate as a lawful bar to resignation. This element was not
present in Dalmo, where the restriction ran only against resignations after a
strike was called and a picket line was established.
231 NLRB No. 114
MEMBER PENELLO, concurring:
I agree with my colleagues' affirmance of the
Administrative Law Judge's 8(b)(l)(A) findings. I
also agree, for the reasons set forth in my dissenting
opinions in Skippy Enterprises3 and Associated Food
Stores, Inc.,4 that Respondents violated Section
8(b)(l)(B) of the Act in the disciplining of Supervi-
sors King, Robertson, and Wittal, who, during the
strike, spent virtually none of their time performing
unit work.
In Chicago Typographical Union No. 16 (Hammond
Publishers, Inc.), 5 the Board decided, in view of the
Supreme Court's decision in Florida Power,6 that a
union violated Section 8(b)(1)(B) of the Act when it
disciplined supervisor-members who performed sub-
stantially supervisory functions and only a minimal
amount of rank-and-file work during a strike. In the
present case, the rationale employed in Hammond
requires that the violations be found with regard to
King, Robertson, and Wittal. This follows since they,
like the supervisor-members of Hammond, performed
substantially supervisory functions and only a
minimal amount, if any, of rank-and-file work during
the strike. In reaching this conclusion, I reiterate the
view which I expressed in United Brotherhood of
Carpenters & Joiners of America, Local Union No. 14,
AFL-CIO (Max M. Kaplan Properties),7 Skippy
Enterprises, supra, and in Associated Food Stores,
supra, that, in determining whether Section 8(b)(1)(B)
has been violated, it is irrelevant whether the
disciplined supervisor-members had performed rank-
and-file work, in either the same or a different
proportion, before the employer-union dispute. This
follows since the only relevant inquiry is what the
supervisor-member did during the employer-union
dispute.
CHAIRMAN FANNING, concurring and dissenting:
While I agree with my colleagues' affirmance of the
Administrative Law Judge's findings that Respon-
dents violated Section 8(b)(1)(A) of the Act in the
manner set forth in the Administrative Law Judge's
Decision, I disagree with their affirmance of the
Administrative Law Judge's findings that Respon-
dents violated Section 8(b)(l)(B) of the Act, by
bringing internal union charges against Supervisors
King, Robertson, and Wittal; by refusing to issue
membership withdrawal cards to Robertson and
3 Wisconsin River Valley District Council of the United Brotherhood of
Carpenters and Joiners of America (Skippy Enterprises), 218 NLRB 1063
(1975).
4 Warehouse Union Local 6, International Longshoremen's and Warehouse-
men's Union (Associated Food Stores, Inc.), 220 NLRB 809 (1975).
5 216 NLRB 903 (1975).
6 Florida Power d Light Co. v. International Brotherhood Electrical
Workers, Local 641, 417 U.S. 790 (1974).
7 217 NLRB 202 (1975).
756
LOCAL UNION NO. 1233, CARPENTERS
Wittal because of pending charges; by providing a
forum for the prosecution of internal union charges
against these supervisors; and by "expelling and
debarring" them from membership.
The Supreme Court held in its decision in Florida
Power8 that the unions did not violate Section
8(b)(l)(B) of the Act when they disciplined supervi-
sor-members for crossing picket lines and performing
rank-and-file work during lawful economic strikes
against the employers, and that the disciplining of
supervisor-members can violate Section 8(b)(l)(B)
only when such disciplining may have an adverse
effect on the supervisor-members' conduct in per-
forming the duties of grievance adjuster or collective-
bargaining representative on behalf of the employer.
As the record is devoid of any evidence that
Supervisors King, Robertson, and Wittal have
engaged in collective bargaining or contract negotia-
tions on behalf of the Employer or that they had the
authority to handle or adjust grievances, I find that
this case is controlled by the Supreme Court decision
in Florida Power. Moreover, the record does show
that, although the Employer had agreed to follow the
contract signed by the Gulf Coast Chapter of the
AGC, the Employer did not sign it, and the strike
followed the Employer's refusal to comply with the
new contract signed by the Gulf Coast Chapter of the
AGC.
Accordingly, unlike my colleagues of the majority,
I would dismiss the complaint insofar as it alleges
violations of Section 8(b)(l)(B)."
X Florida Power & Light Co. v. International Brotherhood of Electrical
Workers, Local 641, et al., 417 U.S. 790 (1974).
I 1 find that Warehouse Union Local 6, ILWU (Associated Food Stores),
220 NLRB 809 (1975), cited by the Administrative Law Judge and affirmed
by the majority, is readily distinguishable. In that case, unlike here, I found
that the strike itself was violative of Sec. 8(bXIXB) and that it was an
attempt to coerce the employer in the selection of his representative to
adjust the grievance. For the reasons set forth in my dissent in Wisconsin
River Valler' District Council of the United Brotherhood of Carpenters and
Joiners of America (Skipp.V Enterprises, Inc.), 218 NLRB 1063 (1975). 1
disagree with my colleagues' adoption of the Administrative Law Judge's
finding that. since Supervisors King. Robertson, and Wittal performed
virtually no rank-and-file work either before or during the strike. the
rationale of Nes Mexico District Council of Carpenters and Joiners of
America (A. S. Horner. Inc.), 177 NLRB 500 (1%969), rather than the Supreme
Court's decision in Florida Power is applicable. I find here, as I did in Skippy
Enterprises, that the majority is in error in relying on the Board's decision in
A. S. Horner. because the Supreme Court disapproved that decision in
Florida Power
DECISION
1. STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
consolidated matter was heard before me in Columbia,
Mississippi, on June 14, 1976.
The original charges in Cases 15-CB-1680 and 15-CB-
1681 were filed on August 26, 1975, by Attorney Lewis A.
Fuselier in his own name. Second charges bearing the same
docket numbers, and treated by the pleadings as amend-
ments of the originals, were filed by Attorney Fuselier on
September 8 in the names of Anthony Ortega and Lonnie
Ward.
The charges in Cases 15-CB-1692 and 15-CB-1694 were
filed on September 3, 1975, by Polk Construction Co., Inc.;
and that in Case 15-CB-1710 was filed by Polk Construc-
tion on October 16, 1975.
A consolidated complaint issued in Cases 15-CB-1680,
15-CB-1681, 15-CB-1692, and 15-CB-1694 on October 9,
1975, which was amended on November 11, on March 31,
1976, and during the hearing. A complaint issued in Case
15-CB-1710 on November I I, which was amended during
the hearing. An order consolidating Case 15-CB-1710 with
the other consolidated matter for hearing also issued on
November II.
The complaint in Case 15-CB-1710 alleges a violation of
Section 8(bX)(I)(B) of the National Labor Relations Act, as
amended, by Local Union No. 1518, United Brotherhood
of Carpenters and Joiners of America (herein called
Respondent Local 1518). The consolidated complaint
alleges various violations of Section 8(b)(IXA) and (B) by
South Mississippi Carpenters' District Council, United
Brotherhood of Carpenters and Joiners of America (herein
called Respondent Council), and by Local Union No.
1233, United Brotherhood of Carpenters and Joiners of
America (herein called Respondent Local 1233).
The parties were given opportunity at the hearing to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs were received from
the General Counsel, Respondents, and the Charging
Parties.
II. ISSUES
The issues raised by the consolidated complaint are
whether:
I. Respondent Council and Respondent Local 1233
jointly and severally threatened Polk Construction employ-
ees Anthony Ortega and Lonnie Ward with fines for
working during a strike after resigning their union
memberships, violating Section 8(bX I)(A).
2. Respondent Local 1233 violated Section 8(bX)(XB)
by bringing internal union charges against Polk Construc-
tion Supervisors Donald King, Lewis (Max) Robertson,
and Ralph Wittal for working during a strike; and by its
refusal to issue a membership withdrawal card to Robert-
son because of those charges.
3. Respondent Council violated Section 8(b)(IXB) by
providing a forum for the prosecution of the internal
charges against Supervisors King, Robertson, and Wittal;
and by "expelling and debarring" them from membership
in the United Brotherhood of Carpenters and Joiners of
America (herein called the United Brotherhood) as a result.
4. Respondent Council and Respondent Local 1233
violated Section 8(b)(IXA) by their manner of applying
section 47 of the constitution of the United Brotherhood,
which governs the resignation of members.
The issue raised by the complaint in Case 15-CB-1710 is
whether Respondent Local 1518 violated Section 8(b)(1)(B)
by its refusal to issue a membership withdrawal card to
Supervisor Wittal because of the internal charges against
him.
757
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. JURISDICTION
Polk Construction Co., Inc., is a Mississippi corporation,
headquartered in Columbia, Mississippi, engaged as a
general contractor in the construction industry. It annually
receives materials valued in excess of $50,000 directly from
outside Mississippi.
Polk Construction is an employer engaged in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
IV. LABOR ORGANIZATIONS
Each of the Respondents is a labor organization within
the meaning of Section 2(5) of the Act, as is the United
Brotherhood.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Polk Construction is the general contractor on a stadium
expansion project at the University of Southern Mississippi
in Hattiesburg. The project began in April 1974 and was
unfinished at the time of hearing. The project is in the
territorial jurisdiction of Respondent Local 1233, which
offices are in Hattiesburg. Before the start of the project,
Polk Construction agreed with Respondent Local 1233 to
comply with the existing labor contract between Respon-
dent Council and the Gulf Coast Chapter of Associated
General Contractors. Polk Construction is not an AGC
member.
The AGC contract which Polk Construction had agreed
to follow expired on April 30, 1975. On May 9, Respondent
Council and the Gulf Coast Chapter entered into a new
contract, which raised the hourly wage rate for journeyman
carpenters from $7 to $7.15 and increased fringe benefit
contributions. Subsequent efforts by Respondent Local
1233 to obtain Polk's compliance with the new contract
met with failure.
Jim Touchstone is the business agent of Respondent
Local 1233 and the secretary-treasurer of Respondent
Council. On July 3, 1975, he called a meeting of Polk's
stadium project employees who belonged to Respondent
1233 or other affiliates of the United Brotherhood.
Touchstone announced, after reporting Polk's refusal to
comply with the new contract, that the members were not
to work on the next workday, July 7, nor thereafter until
Polk agreed to comply. Citing the constitution of the
United Brotherhood and the bylaws of Respondent
Council, Touchstone mentioned the possibility of fines and
expulsions from membership for those working in disre-
gard of this directive.
A strike began as scheduled on July 7, and a picket line
was established on about July 10. The strike continued
until March 1976.
Among Polk's stadium project crew were Supervisors
Donald King, Lewis (Max) Robertson, and Ralph Wittal,'
and rank-and-file employees Anthony Ortega and Lonnie
I King, Robertson, and Wittal testified credibly and without refutation
of possessing and exercising various supervisory attnbutes. They therefore
are found to have been statutory supervisors at relevant times.
2 Sec. 45(L) of the constitution of the United Brotherhood states:
Ward. Robertson, Ortega, and Ward were members of
Respondent Local 1233. Wittal belonged to Respondent
Local 1518 in Gulfport. King belonged to another affiliate
of the United Brotherhood, Local 2188, in Columbia.
On July 8, Supervisor King told the business agent of
Local 2188, Gaston Beard, that he wished to withdraw
from membership so that he could return to work without
fear of union discipline. Beard instructed King to send in
his membership book, saying it would be forwarded to the
United Brotherhood together with a request that King be
issued a withdrawal card. Beard suggested that King act
quickly, before internal charges could be filed against him.
King sent his book to Beard on July 9 and returned to work
that same day.
On July 9, Supervisor Robertson and employees Ortega
and Ward called on Touchstone at the offices of Respon-
dent Local 1233, informing him that they also wished to
withdraw from membership so they could return to work.
Touchstone replied that, before they would be permitted to
resign, they would have to submit affidavits that they
would not perform future carpentry work. When they said
they could not do that, that carpentry was their livelihood,
Touchstone said that the alternative would be to let their
dues lapse for 6 months and they would be suspended. 2
Explaining why the withdrawal requests were refused,
Touchstone testified:
Well, because the general constitution that we operate
under . . . prohibits a withdrawal card being issued if
it's a known fact that they are going to go to work for
the purpose of breaking down wages and conditions,
violating the trade rules. 3
That afternoon Robertson, Ortega, and Ward each sent
letters to Respondent Local 1233, attention Touchstone.
The Robertson and Ward letters were largely identical,
stating: "By means of this letter, I wish to make my
resignation official as of this date." Ortega's letter stated:
"I am ... officially requesting that you accept this as my
resignation from your union as of this date." The record
does not disclose when these letters were received.
Robertson, Ortega, and Ward returned to work July 10.
On July 22, Supervisor Wittal sent a letter to Respondent
1518, stating that he "wish[ed] to officially withdraw my
28-year-old membership in you Local No. 1518 as of this
date." Wittal returned to work July 22.
Supervisors King, Robertson, and Wittal performed
virtually no rank-and-file work either before or during the
strike.
On July 24, Touchstone, as business agent of Respondent
Local 1233, wrote Respondent Council that he was
bringing charges against the three supervisors and two
employees. Touchstone's letter stated in relevant part:
I charge the above mentioned and named men in
violation of the Constitution and Laws of the United
Brotherhood of Carpenters and Joiners of America.
"Unless dues are paid by the end of the sixth month, his [member's I name
shall be stricken from the list of membership .... "
3 This was an allusion to sec. 47(B) of the constitution of the United
Brotherhood, which is set forth and discussed later.
758
LOCAL UNION NO. 1233, CARPENTERS
Section 55, Paragraph 10 - Working behind a
picket line duly authorized by any subordinate
body of the United Brotherhood.
Section 55, Paragraph 13 - Violating the
obligation.4
I also charge the above mentioned and named men
with violation of the Constitution By-laws and Trade
Rules of the South Mississippi Carpenters' District
Council.
Section 73-Any member being called off any
job by a Business Agent of the District Council
and remaining at work or returning without
permission from the Business Agent or the
District Council, or failing to remove his tools, or
loitering around the jobs, or obstructing the
Business Agents in the lawful discharge of their
duties; any member refusing to show his pay
when asked by any steward or Business Agent, or
carrying news to those in authority or otherwise,
or making false statements regarding the pay or
scale of wages, unless he has positive evidence of
the fact, shall be fined upon conviction, as per
Section 69, Under Violations.
Section 74 - Any member who works on a
non-union job shall be fined upon conviction, as
per Section 69, under Violation.s
On or about August 18, Touchstone, as secretary-
treasurer of Respondent Council, sent undated letters to
the five men, informing them that they were to appear on
August 28 at the meeting of Respondent Council in
Gulfport "to answer charges brought against you by Jim
Touchstone .... " Enclosed with each letter was a copy of
Touchstone's July 24 letter to Respondent Council,
portions of which are quoted above. Each of the five
responded by substantially identical letters dated August
26 stating that "the union's legal authority over my
activities terminated with my resignation of membership,"
and that "I have no intention of appearing at the scheduled
"trial.' " None of the five did appear, and apparently no
action was taken against them.
By letters to each of the five dated September 10,
however, the secretary of Respondent Council, Donn
Owens, advised them "to appear before the 'TRIAL
COMMITTEE' elected to hear the case caused by charges
presented by Jim Touchstone" at a meeting to be held in
Gulfport on September 25. Owens' letters added that,
should those charged fail to appear, "the 'TRIAL COMMITTEE'
will have no alternative but to base their decisions upon the
testimony presented to them." The meeting was held as
scheduled; and, again, none of the five appeared.
By letters dated October 1, Owens informed each of the
five:
Sec. 55 contains this prefatory language: "Any officer or member
tound guilty after being charged and tried in accordance with Section 56, for
any of the following offenses, may be fined, suspended or expelled ....
The obligation. so-called. is the oath of membership. It includes this clause,
among others: "l promise to abide by the Constitution and Laws."
" Sec 69 states:
This will serve to officially notify you that you were
found guilty as charged and the delegates to the South
Mississippi Carpenters District Council passed a
motion to expell and debar you from the United
Brotherhood of Carpenters and Joiners of America for
violation of Section 55, paragraphs 10 and 13 of the
Constitution and laws of the United Brotherhood of
Carpenters and Joiners of America and for violation of
the Constitution and by-laws and trade rules of the
South Mississippi Carpenters District Council, Section
73 and section 74.
This will also serve to notify you that you have 30
days from the date above to appeal this ruling. If you
do not appeal within the thirty (30) days, the general
president will not consider your appeal.
None of the five appealed.
Meanwhile, on September 10, Wittal and Robertson sent
substantially identical letters to Respondent Locals 1518
and 1233, respectively. They stated in part:
Pursuant to Section 47A of the constitution and laws of
the United Brotherhood of Carpenters and Joiners of
America, as amended January 1, 1975, enclosed is 50C
for my Resignation Card indicating an honorary
withdrawal from the United Brotherhood.
Section 47(A) of the constitution of the United Brother-
hood of Carpenters reads:
A member can withdraw or sever his connection with
the United Brotherhood by resignation in writing, and
it shall require a majority of the members present at a
regular meeting to accept a resignation. A member who
resigns can only be readmitted as a new member. A
member wishing to withdraw or sever connection with
the United Brotherhood shall present the resignation in
writing, which shall be laid over two weeks for
investigation. A member resigning shall be given a
Resignation Card, which shall indicate an honorary
withdrawal from the United Brotherhood. Such card
shall be furnished by the General Secretary on
application by the Local Union, on payment of Fifty
Cents (50t) for each card.
Donn Owens, as business agent of Respondent Local
1518, replied to Wittal's letter by one of his own, dated
September 17. After reciting section 47(B) of the constitu-
tion, Owens' letter stated:
I am returning your check for the payment of fifty cents
(50C) for a resignation card from the Union until such
time as you have been cleared of charges brought
against you.
Section 47(B) of the constitution reads:
Local By-Laws, shall be tried by this District Council. All fines of
members of this United Brotherhood of Carpenters and Joiners of
America of South Mississippi Carpenters' District Council and
Vicinity, duly imposed after trial and conviction, where not otherwise
provided for in these laws, shall be not less than $1.00. no Isicl more
than $75.00.
All violations of the Trade and Steward Rules, General Constitution or
759
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Local Union shall not accept the resignation of a
member when it is known that same has been
submitted for the purpose of violating Trade Rules.
When a member resigns, or is expelled, or an applicant
as covered by the Constitution and Laws of the United
Brotherhood, who works to the detriment of the United
Brotherhood, the Local Union or District Council may
place a special initiation fee against such person, not to
exceed Fifty Dollars ($50.00) over their regular initia-
tion fee for new or ex-members as provided for in their
By-Laws.
Robertson's September 10 letter received like treatment
from Respondent Local 1233, although he could not recall
receiving a letter of the sort sent to Wittal by Respondent
Local 1518. Respondent Local 1233 amended its answer
during the hearing to admit that it has refused Robertson's
request that it issue him a membership withdrawal card. 6
B. Analysis
Section 8(b)(1)(A): To summarize, it is alleged that
Respondent Council and Respondent Local 1233 violated
Section 8(b)(1)(A) by:
(I) Threatening employees Ortega and Ward with fines-
i.e., by causing them to believe that fines could result from
the disciplinary action against them-for returning to the
job after resigning their union memberships; and, (2) their
manner of applying section 47 of the constitution of the
United Brotherhood, which governs the resignation of
members.
Section 8(b)(1)(A) contains this proviso:
IT]his paragraph shall not impair the right of a labor
organization to prescribe its own rules with regard to
the acquisition or retention of membership therein.
Alluding to the proviso, the Board stated in Teamsters
Local 122, et al. (August A. Busch & Co. of Mass., Inc.), 203
NLRB 1041, 1042(1973):
Expulsion from membership in a labor organization is a
matter of internal union concern, and does not in and
of itself give rise to violation of the Act.
And the Supreme Court stated in N.LR.B. v. Allis-
Chalmers Mfg. Co., 388 U.S. 175, 191-192 (1967):
At the very least it can be said that the proviso
preserves the rights of unions to impose fines, as a lesser
penalty than expulsion ....
The Court continued, at 388 U.S. 195, that the prohibitions
of Section 8(b)(1)(A) do not encompass "the imposition of
fines on members who decline to honor an authorized
strike."
I King and Ward also sent such letters to their respective locals, Local
2188 and Respondent Local 1233, which were rejected. There is a hint that
Ortega did likewise, to Respondent Local 1233, although the record would
not support such a finding. Regardless, there is no allegation of violations in
these respects as concerns King, Ward, and Ortega. Local 2188, moreover, is
not a party.
I Touchstone also raised the possibility of fines during the July 3 meeting
in which the strike was announced. There is neither contention nor
There are limits, however, upon those against whom a
union can impose disciplinary sanctions, at least as
concerns fines. Again quoting the Supreme Court, this time
in N.L R.B. v. Granite State Joint Board, Textile Workers,
Union of America, Local 1029 [Intl. Paper Box Machine
Co.], 409 U.S. 213, 217 (1972):
Where a member lawfully resigns from a union and
thereafter engages in conduct which the union rule
proscribes, the union commits an unfair labor practice
when it seeks enforcement of fines for that conduct.
That is to say, when there is a lawful dissolution of a
union-member relation, the union has no more control
over the former member than it has over the man in the
street.
See also Booster Lodge No. 405, Intl. Assn. of Machinists and
Aerospace Workers [Boeing Co.] v. N.L.RB., 412 U.S. 84
(1973).
Presumably in deference to the proviso, the General
Counsel does not contend that the end result of the
proceedings against Ortega and Ward-expulsion and
debarment-violated the Act. Nor does he contend that
the underlying proceedings would have been violative had
their potential been limited to that result. It is contended,
however, that the proceedings carried the potential of fines,
which would have been unlawful inasmuch as the proceed-
ings were concerned solely with the postresignation
conduct of Ortega and Ward; and, therefore, that the
proceedings contained unlawful threats. The theory, in
short, is that threats to impose unlawful fines are them-
selves unlawful.
The factual underpinning for this argument-that the
potential of fines existed and was imparted to Ortega and
Ward-is present. Touchstone's letter of July 24, which
comprised the charges and was served upon them, stated in
two places that those charged "shall be fined upon
conviction." 7 And part of the legal underpinning-that
threats to impose unlawful fines are themselves unlawful-
is sound. E.g., Local Lodge No. 1994, International
Association of Machinists and Aerospace Workers, AFL-
CIO (O.K. Tool Company, Inc.), 215 NLRB 651 (1974);
Bricklayers and Stone Masons, Local Union No. 6, et al.
(Linbeck Construction Corporation), 185 NLRB 756 (1970).
The difficult question is the legal one of whether Ortega
and Ward had effectively resigned before engaging in the
conduct for which the internal charges were brought; i.e.,
before their July 10 return to work. If they had not, they
were legitimate objects of fines for returning; hence, the
threat of fines would be permissible. International Associa-
tion of Machinists and Aerospace Workers, District No. 71,
Local 778 (Whitaker Cable Corporation), 224 NLRB 580,
582, fn. 3 (1976); United Paperworkers International Union,
Local No. 725, AFL-CIO (Boise Southern Company), 220
NLRB 812 (1975). This compels inquiry into the sufficien-
evidence, however, that Ortega or Ward had resigned by then, nor that
Touchstone's remarks contemplated conduct postdating such resignations
as might later occur. It therefore is concluded that nothing said at the July 3
meeting was an 8(bXIXA) threat or tainted the later disciplinary proceed-
ings. Since the proviso to Sec. 8(bXIXA), as construed, preserves the right of
a union to impose fines for conduct while a member, it is both lawful and
salutary that members be forewarned of the possibility.
760
LOCAL UNION NO. 1233, CARPENTERS
cy of the oral requests by Ortega and Ward to withdraw
from membership during their July 9 visit to Touchstone's
office, for their letters mailed later that day would not have
been delivered until at least July 10, after their return to
work.
In Booster Lodge 405, supra at 412 U.S. 87-88, the
Supreme Court observed that, where a union's internal
rules are silent on the subject, members are "free to resign
at will and . . . return to work during a strike which had
been commenced while they were union members." This
would indicate, were the internal rules in question silent
regarding resignations, that the oral requests would have
sufficed. The internal rules in question, however, are not
silent. Section 47(A) of the constitution of the United
Brotherhood of Carpenters sets forth a resignation proce-
dure:
A member wishing to withdraw or sever connection
with the United Brotherhood shall present his resigna-
tion in writing, which shall be laid over two weeks for
investigation.
Section 47(A) further specifies that a resignation request
"shall require a majority of the members present at a
regular meeting to accept ... ."
Section 47(B) in turn describes a circumstance in which
the procedure is inoperative:
A Local Union shall not accept the resignation of a
member when it is known that same has been
submitted for the purpose of violating Trade Rules.
It will be recalled that Touchstone alluded to this section
when testifying of the reason the withdrawal requests of
Ortega, Ward, and the others had been denied.
So, even if Ortega and Ward had tendered timely written
resignations as prescribed by section 47(A), section 47(B)
would have precluded their being honored, as witness the
disregard of their later written resignations. Compliance
with the specified procedure being a futility, and the law
not requiring futile ritual, the legal sufficiency of the July 9
oral resignations depends, then, upon whether the source of
that futility-section 47(B)-is a valid bar to resignations
submitted to escape union rules and attendant discipline.
Cf. International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, Local 469
(Master Lock Company), 221 NLRB 748 (1975); Local
1384, United A utomobile, Aerospace, Agricultural Implement
Workers, UA W (Ex-Cell-O Corporation), 219 NLRB 729
(1975); Local 205, Lithographers and Photoengravers Inter-
national Union, AFL-CIO (The General Gravure Service Co.
Inc.), 186 NLRB 454 (1970); Booster Lodge 405, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO (The Boeing Co.), 185 NLRB 380 (1970).
It is concluded that section 47(B) is not a valid bar.
Otherwise, a union could block resignations so as to
impede forever the Section 7 right of employees "to refrain
from any or all" union activities. While the union aim of
solidarity enjoys a status warranting accommodation under
the Act, it is generally subordinate to the congressional
" Florida Power & Light Co. v. International Brotherhood of Electrical
Workers, Local 641, 417 U.S. 790(1974).
concern embodied in Section 7, and is most assuredly so in
this instance. Cf. Sheet Metal Workers International
Association, Local Union No. 29 (Metal-Fab, Inc.), 222
NLRB 1156 (1976).
The July 9 oral resignations by Ortega and Ward
therefore were legally sufficient. The threats of fines
embodied in the disciplinary proceedings, thus being based
on postresignation conduct, violated Section 8(bX )(1A).
The General Counsel's further contention-that Respon-
dent Council and Respondent Local 1233 violated Section
8(b)(IXA) by their manner of applying section 47 of the
constitution-is rejected. The proviso to Section 8(b)(1)(A)
is specific on the point, preserving to unions the right to
prescribe their own rules "with regard to the acquisition or
retention of membership therein." [Emphasis supplied.] The
evil above found was not in the refusal to honor the
resignations of Ortega and Ward, but in the threats that
followed.
Section 8(b)(1)(B): Summarizing, it is alleged that:
1. Respondent Local 1233 violated Section 8(b)(IXB)
by bringing internal union charges against Supervisors
King, Robertson, and Wittal for working during the strike;
and by refusing to issue a membership withdrawal card to
Robertson because of the charge against him.
2. Respondent Council violated Section 8(b)(1XB) by
providing a forum for the prosecution of the charges
against King, Robertson, and Wittal, and by "expelling
and debarring" them from membership in the United
Brotherhood as a result.
3. Respondent Local 1518 violated Section 8(b)(I)(B)
by refusing to issue a membership withdrawal card to
Wittal because of the charge against him.
In Warehouse Union Local 6, International Longshore-
men's and Warehousemen's Union (Associated Food Stores,
Inc.), 220 NLRB 809 (1975), the Board distinguished the
Supreme Court's Florida Power case,8 in which a union
"discipline[d] a supervisor-member for crossing a picket
line . . . and performing rank-and-file struck work," from
cases such as Associated Food Stores, "where the rank-and-
file work normally performed by the disciplined supervi-
sors did not increase during the period of the strike."
Continuing, the Board observed:
[I In cases where the amount of rank-and-file work-
namely, work normally performed by the nonsupervi-
sory employees then on strike-performed by the
disciplined supervisors does not increase with the onset
of the strike, the Board would apply the rationale of A.
S. Horner9 rather that the Supreme Court's decision in
Florida Power as the controlling precedent to determine
the legality of a union's conduct.
In Horner, the union fined a supervisor-member
because he refused to accede to the union's demand
that he cease working for a company which did not
have a contract with the union. The Board concluded
that the union's disciplinary action violated Section
8(b)(1XB) because compliance by the supervisor with
the union's demand would have required him to quit
his job with the employer and hence have "the effect of
New Mexico Distrnc Council of Carpenters and Joiners of America (A. S.
Horner. Inc.), 177 NLRB 500(1969).
761
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
depriving the company of the services of its selected
representative for the purpose of collective bargaining
or the adjustment of grievances." 10
The Board concluded, in Associated Food Stores, that the
union had violated Section 8(b)(1)(B) by bringing disciplin-
ary action against six supervisors for working behind a
picket line, explaining (at 809-810):
[T]he normal amount of rank-and-file work performed
by the disciplined supervisors . . . was not augmented
during the course of the strike. Thus, the supervisors
here . . . were put in a position wherein compliance
with the Union's demand would have deprived the
Employer of the services of its selected representatives
for the purposes of collective bargaining or the
adjustment of grievances.
See also Meat and Provision Drivers Local 626 et al. (Quality
Meat Packing Company), 224 NLRB 186 (1976); The
Newspaper Guild, Erie Newspaper Guild, Local 187, AFL-
CIO (Times Publishing Company), 222 NLRB 760 (1976);
Wisconsin River Valley District Council of the United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO (Skippy Enterprises), 218 NLRB 1063 (1975).
The same can be said of the present case, for Supervisors
King, Robertson, and Wittal performed virtually no rank-
and-file work either before or during the strike. Respon-
dent 1233 consequently violated Section 8(b)(l)(B) by
bringing internal union charges against them, and Respon-
dent Council violated the same section by providing a
forum for their prosecution and "expelling and debarring"
them from membership in the United Brotherhood as a
result." It is not necessary to this result to consider the
legal sufficiency of the attempts by King, Robertson, and
Wittal to resign from union membership.
The charges against the supervisors being unlawful, it
follows that Respondent Local 1518's denial of Wittal's
September 9 request for a resignation card "until such time
as you have been cleared of charges against you" likewise
violated Section 8(bXl)(B) as part of the overall disciplin-
ary scheme. Respondent Local 1233's similar denial as
concerns Robertson also violated that section. It is fair to
infer from Touchstone's citation to the constitutional
prohibition against the issuance of withdrawal cards when
"it's a known fact that they are going to work for the
purpose of. . . violating the trade rules" that this denial
was prompted by the pendency of the unlawful charge
against Robertson.
CONCLUSIONS OF LAW
1. By threatening to fine Anthony Ortega and Lonnie
Ward, who had duly resigned from union membership, for
postresignation work during a strike at Polk Construction
Co.'s stadium project at the University of Southern
"' The quotation within the quotation is from A. S. Horner at 502.
" "IT ]he proviso to Section 8(b) I XA) is limited to that section only and
is not part of Section 8(bXlXB)." A. S. Horner, supra at 177 NLRB 502.
Expulsion of supervisors from membership consequently is no less a
violation than any other form of sanction. Associated Food Stores, supra;
Local 261, Lirhographers and Photoengravers International Union, AFL-CIO
(Manhardt-Alerander, Inc.), 195 NLRB 408 (1972).
Mississippi, as found herein, Respondent Council and
Respondent Local 1233 jointly and severally engaged in
unfair labor practices violating Section 8(bXI)(A) of the
Act.
2. By bringing internal union charges against Donald
King, Lewis (Max) Robertson, and Ralph Wittal, all of
whom were supervisors for Polk Construction Co. on the
above stadium project, and by its refusal to issue a
membership withdrawal card to Robertson because of said
charges, as found herein, Respondent Local 1233 engaged
in unfair labor practices violating Section 8(b)(I)(B) of the
Act.
3. By providing a forum for the prosecution of the
above internal union charges against Supervisors King,
Robertson, and Wittal, and by "expelling and debarring"
them from membership in the United Brotherhood, as
found herein, Respondent Council engaged in unfair labor
practices violating Section 8(b)(lXB) of the Act.
4. By its refusal to issue a membership withdrawal card
to Supervisor Wittal because of the above charges against
him, as found herein, Respondent Local 1518 engaged in
an unfair labor practice violating Section 8(bXl)(B) of the
Act.
5. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
6. Respondent Council and Respondent Local 1233 did
not otherwise violate the Act as alleged.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '2
A. The Respondent, South Mississippi Carpenters'
District Council, United Brotherhood of Carpenters and
Joiners of America, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Restraining or coercing employees who have resigned
from, and are no longer members of, the United Brother-
hood of Carpenters or its affiliated locals, in the exercise of
the rights guaranteed them in Section 7 of the Act, by
threatening to fine them because of their postresignation
conduct of working for Polk Construction Co., or any other
employer, during a strike.
(b) Restraining or coercing Polk Construction Co., or
any other employer, in the selection of representatives for
the purpose of collective bargaining or the adjustment of
grievances by providing a forum for the prosecution of
internal charges against such representatives, including
Donald King, Lewis (Max) Robertson, and Ralph Wittal,
and by "expelling and debarring" them from membership
in the United Brotherhood for working during a strike.
(c) Engaging in like or related unlawful conduct.
2. Take the following affirmative action:
12 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
762
LOCAL UNION NO. 1233, CARPENTERS
(a) Rescind the expulsions and debarments of Donald
King, Lewis (Max) Robertson, and Ralph Wittal for
working for Polk Construction Co. during a strike, and
expunge all records thereof.
(b) Notify King, Robertson, and Wittal in writing that
said actions have been rescinded and said records ex-
punged.
(c) Similarly notify the United Brotherhood and the
affiliated locals thereof with whom King, Robertson, and
Wittal were identified as members at the time of said
actions.
(d) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix A."13 Copies of
said notice, on forms provided by the Regional Director for
Region 15, after being duly signed by an authorized
representative, shall be posted by the Respondent Council
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent Council to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Mail to the Regional Director for Region 15 signed
copies of said notice for posting by Polk Construction Co.,
Inc., if the Company be willing, in places where notices to
employees are customarily posted. Copies of said notice, to
be furnished by the Regional Director for Region 15, after
being duly signed by Respondent Council's authorized
representative, shall be returned forthwith to the Regional
Director.
(f) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent Council has taken to comply herewith.
B. Respondent Local Union No. 1233, United Brother-
hood of Carpenters and Joiners of America, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees who have resigned
from, and are no longer members of, the United Brother-
hood of Carpenters or its affiliated locals, in the exercise of
the rights guaranteed them in Section 7 of the Act, by
threatening to fine them because of their postresignation
conduct of working for Polk Construction Co., Inc., or any
other employer, during a strike.
(b) Restraining or coercing Polk Construction Co., Inc.,
or any other employer, in the selection of representatives
for the purpose of collective bargaining or the adjustment
of grievances by bringing internal charges against such
representatives, including Donald King, Lewis (Max)
Robertson, and Ralph Wittal, for working during a strike;
and. by refusing to issue a membership withdrawal card to
Lewis (Max) Robertson because of those internal charges.
(c) Engaging in like or related unlawful conduct.
2. Take the following affirmative action:
(a) Expunge all records of the internal charges brought
against Donald King, Lewis (Max) Robertson, and Ralph
':' In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National 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."
Wittal for working for Polk Construction Co., Inc., during
a strike.
(b) Notify King, Robertson, and Wittal in writing that
said records have been expunged.
(c) Issue a membership withdrawal card to Lewis (Max)
Robertson.
(d) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix B."14 Copies of
said notice, on forms provided by the Regional Director for
Region 15, after being duly signed by an authorized
representative, shall be posted by Respondent Local 1233
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent Local 1233 to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Mail to the Regional Director for Region 15 signed
copies of said notice for posting by Polk Construction Co.,
Inc., if the Company be willing, in places where notices to
employees are customarily posted. Copies of said notice, to
be furnished by the Regional Director for Region 15, after
being duly signed by Respondent Local 1233's authorized
representative, shall be returned forthwith to the Regional
Director.
(f) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent Local 1233 has taken to comply
herewith.
C. Respondent Local Union No. 1518, United Brother-
hood of Carpenters and Joiners of America, its officers,
agents, and representatives, shall:
I. Cease and desist from:
(a) Restraining or coercing Polk Construction Co., Inc.,
or any other employer, in the selection of representatives
for the purpose of collective bargaining or the adjustment
of grievances by refusing to issue a membership withdrawal
card to Ralph Wittal because of internal charges brought
against him for working during a strike.
(b) Engaging in like or related unlawful conduct.
2. Take the following affirmative action:
(a) Issue a membership withdrawal card to Ralph Wittal.
(b) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix C."15 Copies of
said notice, on forms provided by the Regional Director for
Region 15, after being duly signed by an authorized
representative, shall be posted by Respondent Local 1518
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent 1518 to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Mail to the Regional Director for Region 15 signed
copies of said notice for posting by Polk Construction Co.,
Inc., if the Company be willing, in places where notices to
employees are customarily posted. Copies of said notice, to
14 See fn. 13, supra.
'5 See fn. 13, supra.
763
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be furnished by the Regional Director for Region 15, after
being duly signed by Respondent Local 1518's authorized
representative, shall be returned forthwith to the Regional
Director.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent Local 1518 has taken to comply
herewith.
IT IS FURTHER RECOMMENDED that the allegation of the
consolidated complaint found to be without merit is
dismissed.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Columbia, Mississippi, on June 14,
1976, in which we participated and had a chance to give
evidence, resulted in a decision that we had committed
certain unfair labor practices in violation of Section
8(a)(l)(A) and 8(b)(l)(B) of the National Labor Relations
Act, as amended, and this notice is posted pursuant to that
decision.
WE WILL NOT restrain or coerce employees who have
resigned from, and are no longer members of, the
United Brotherhood of Carpenters or its affiliated
locals, in the exercise of the rights guaranteed them in
Section 7 of the Act, by threatening to fine them
because of their postresignation conduct of working for
Polk Construction Co., Inc., or any other employer,
during a strike.
WE WILL NOT restrain or coerce Polk Construction
Co., Inc., or any other employer, in the selection of
representatives for the purpose of collective bargaining
or the adjustment of grievances by providing a forum
for the prosecution of internal charges against such
representatives, including Donald King, Lewis (Max)
Robertson, and Ralph Wittal, and by "expelling and
debarring" them from membership in the United
Brotherhood, for working during a strike.
WE WILL NOT engage in like or related unlawful
conduct.
WE WILL rescind the expulsions and debarments of
Donald King, Lewis (Max) Robertson, and Ralph
Wittal for working for Polk Construction Co., Inc.,
during a strike, and expunge all records thereof.
WE WILL notify King, Robertson, and Wittal in
writing that said actions have been rescinded and said
records expunged.
WE WILL similarly notify the United Brotherhood of
Carpenters and the affiliated locals thereof with whom
King, Robertson, and Wittal were identified as mem-
bers at the time of said actions.
SOUTH MISSISSIPPI
CARPENTERS' DISTRICT
COUNCIL, UNITED
BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Columbia, Mississippi, on June 14,
1976, in which we participated and had a chance to give
evidence, resulted in a decision that we had committed
certain unfair labor practices in violation of Section
8(a)(1)(A) and 8(bXIXB) of the National Labor Relations
Act, as amended, and this notice is posted pursuant to that
decision.
WE WILL NOT restrain or coerce employees who have
resigned from, and are no longer members of, the
United Brotherhood of Carpenters or its affiliated
locals, in the exercise of the rights guaranteed them in
Section 7 of the Act, by threatening to fine them
because of their postresignation conduct of working for
Polk Construction Co., Inc., or any other employer,
during a strike.
WE WILL NOT restrain or coerce Polk Construction
Co., Inc., or any other employer, in the selection of
representatives for the purpose of collective bargaining
or the adjustment of grievances by bringing internal
charges against such representatives, including Donald
King, Lewis (Max) Robertson, and Ralph Wittal, for
working during a strike; and by refusing to issue a
membership withdrawal card to Lewis (Max) Robert-
son because of those internal charges.
WE WILL NOT engage in like or related unlawful
conduct.
WE WILL expunge all records of the internal charges
-brought against Donald King, Lewis (Max) Robertson,
and Ralph Wittal for working for Polk Construction
Co., Inc., during a strike
WE WILL notify King, Robertson, and Wittal in
writing that said records have been expunged.
WE WILL issue a membership withdrawal card to
Lewis (Max) Robertson.
LOCAL UNION No. 1233,
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA
764
LOCAL UNION NO. 1233, CARPENTERS
APPENDIX C
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Columbia, Mississippi, on June 14,
1976, in which we participated and had a chance to give
evidence, resulted in a decision that we had committed an
unfair labor practice in violation of Section 8(b)(1)(B) of
the National Labor Relations Act, as amended, and this
notice is posted pursuant to that decision.
WE WILL NOT restrain or coerce Polk Construction
Co., Inc., or any other employer, in the selection of
representatives for the purpose of collective bargaining
or the adjustment of grievances by refusing to issue a
membership withdrawal card to Ralph Wittal because
of internal charges brought against him for working
during a strike.
WE WILL NOT engage in like or related unlawful
conduct.
WE WILL issue a membership withdrawal card to
Ralph Wittal.
LOCAL UNION No. 1518,
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA
765