Machinists District 94 (Mcdonnell Douglas)

National Labor Relations Board - Board Decisions

May 5, 1987

283 N.L.R.B. 881 (N.L.R.B. 1987)

MACHINISTS DISTRICT 94 (MCDONNELL DOUGLAS) 881
International Association of Machinists and Aero-
space Workers, District Lodge 94, Local Lodge
575 (McDonnell Douglas Corporation) and
Ramon Fuentes and Ramon Fuentes and Juliet
Pena Rosales and Glen Van de Sande. Cases
31-CB-4259, 31-CB-4809, and 31-CB-4837
5 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 1 February 1984 Administrative Law Judge
Burton Litvack issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the General Counsel and the Charging Parties filed
cross-exceptions and supporting briefs, and the
Charging Parties filed a brief in response to the Re-
spondent's exceptions.I
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided , for the reasons set forth below, to affirm
the judge's rulings , findings ,2 and conclusions and
to adopt the recommended Order as modified.
This case involves nine employees who resigned
their union memberships and returned to work
during a strike against the Employer . The judge's
decision issued ,before the Board's decision in Ma-
chinists Local Lodge 1414 (Neufeld Porsche Audi),
270 NLRB 1330 (1984) (Neufeld), the Supreme
Court's decision in Pattern Makers League v.
NLRB, 473 U.S. 95 (1985), and their progeny. Ac-
cordingly , while ' we adopt most of the judge's con-
clusions, we do so only for the reasons set forth
below.
1. The judge found that the restriction on resig-
nations contained in the Respondent's constitution3
1 The Charging Parties have requested oral argument The request is
denied as the record, exceptions, and briefs adequately present the issues
and the positions of the' parties
2 The Respondent has excepted to some of the judge's credibility find-
ings, The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear 'preponderance of all
the relevant evidence convinces us that they are incorrect. Standard 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 reversing
the findings.
s The constitutional provision at issue defines "improper conduct of a
member" as follows
Accepting employment in any capacity in an establishment where a
strike or lockout exists as recognized under this Constitution, with-
out permission Resignation shall not relieve a member of his obliga-
is unlawful and that the Respondent violated Sec-
tion 8(b)(1)(A) by maintaining that restriction. We
agree. Neufeld, supra; Sheetmetal Workers Local 73
(Safe Air), 274 NLRB 374 (1985).
2. The judge also found that the Respondent vio-
lated Section 8(b)(1)(A) by bringing internal union
disciplinary proceedings, imposing fines,, and pros-
ecuting state court lawsuits4 to collect the fines
against employees Fuentes, Rosales, Van de Sande,
Miller, Vargas, Morales, Melendez,5 Gehr, and
Barrios because of those employees' postresignation
conduct in working at McDonnell Douglas Corpo-
ration's Monrovia facility during the strike that
began on 25 March 19S 1. Neufeld, supra; and Pat-
tern Makers, supra.6
3. In accord with our decisions in Food & Com-
mercial Workers Local 1439 (Allied E'mployers), 275
NLRB 995 (1985), and Laborers Northern California
Council Local 294 (Baker Co.), 275 NLRB 278
(1985), we shall order the Respondent, inter alia, to
make the nine employees whole for any loss of
earnings, benefits, travel expenses, or any other ex-
penses incurred as a result of their need to defend
themselves against the charges preferred against
them, including any such losses that resulted from
the Respondent-initiated state court action to col-
lect the unlawfully imposed fines.
tion to refrain from accepting employment at the establishment for
the duration of the strike or lockout if the resignation occurs during
the period of the strike or lockout or within 14 days preceding its
commencement Where observance of a primary picket line is re-
quired, 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. [Art. L,
sec. 3.]
4 The complaint does not allege and the General Counsel does not
contend that the Respondent violated Sec. 8(b)(l)(A) by barring the nine
employees from holding union office for 5 years
The record shows that employee Melendez returned to work during
the strike before her resignation was received by the Union . It is also
clear, however, that Melendez was fined for both preresignation and pos-
tresignation conduct. Because only the fines that were imposed for pos-
tresignation conduct are unlawful, we shall leave to the compliance stage
the determination of the amount Melendez was unlawfully fined.
6 A substantial portion of the record and the judge's decision deal with
the issue of }whether the employees had actual notice of the Respondent's
rule restricting resignations. Although the notice issue, at one time, was
important in this type of case, see, e g, Auto Workers Local 1384 (Ex-
Cell-0 Corp.), 227 NLRB 1045 (1977), that issue is no longer determina-
tive inasmuch as the Board has ruled that any restriction on resignations
is unlawful, Accordingly, we find it unnecessary to pass on the judge's
findings concerning the employees' notice of the rule and the exceptions
to those findings In addition, we find it unnecessary to, decide whether
the judge was correct in concluding that the Respondent violated sec.
8(b)(1)(A), independently of the other violations, by taking action against
the nine employees "without legally sufficient notice " of the resignation
restrictions
283 NLRB No. 143
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 ' In all other -respects, we affirm the judge's
findings, rulings, and conclusion.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, International Association of Machinists
and Aerospace Workers, District Lodge 94, Local
Lodge -575,, Monrovia, California, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Maintaining or giving effect to the following
rule, of the constitution of the International Asso-
ciation -of 'Machinists and Aerospace Workers, to
the extent' it' defines `Improper Conduct of a
Member' as:
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."
2. Insert the following-as paragraphs 2(d) and (e)
and reletter the subsequent paragraphs.
"(d) Make whole the above-named employees
for any loss of earnings, benefits, travel expenses,
or any other expenses incurred as a result of their
need to defend themselves against the internal
union charges .preferred against them, including
any such losses that resulted from the state court
action against them to collect the unlawfully im-
posed fines.
"(e)'Remove from its governing documents any
provisions which required adherence to the portion
of article L, section 3, of the constitution of the
7 The judge did not order the Respondent to remove the unlawful re-
striction from the governing documents under its control In accord with
our decision in Auto Workers Local 73 (McDonnell Douglas), 282 NLRB
466 (1986), we will order the Respondent to remove from the governing
documents under its control any provision which requires adherence to
the portion of art . L sec 3, of the International union's constitution
quoted above in fn. 3
International Association of Machinists and Aero-
space Workers set forth above."
3. Substitute the attached notice for that of the
administrative law judge.
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 or give effect to the fol-
lowing rule of the constitution of the International
Association of Machinists and Aerospace Workers:
which defines improper conduct of a member as:
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 of
McDonnell Douglas Corporation (MDC), , at its
Monrovia, California plant, who have duly re-
signed from, and are no longer members of, this
labor organization, in the exercise of their rights
guaranteed by Section 7 of the National Labor Re-
lations Act by bringing internal union proceedings,
imposing fines,, and filing lawsuits to collect the
fines against them because of their 'postresignation
conduct in crossing a picket line and working' for
MDC during the strike which began 25 March
1981.
WE WILL NOT threaten employees that they will
be discharged unless they pay membership dues, or
the equivalent thereof, where such is otherwise
lawfully required as a condition of employment,
during a period in which they have been prohibited
from holding office in this labor organization for
MACHINISTS DISTRICT 94 (MCDONNELL DOUGLAS) 883
exercising their Section 7 rights to refrain from
continuing to honor and support a strike against
their Employer.
WE WILL NOT fail to inform members who are
prohibited from holding office in this labor organi-
zation of their obligations under the contractual
union-security clause.
WE WILL NOT continue to demand from employ-
ees of MDC the payment of membership dues, or
the equivalent thereof, where such is otherwise
lawfully required as a condition of employment,
during a period in which they have been prohibited
from holding office in this labor organization for
exercising their Section 7 rights of refraining from
continuing to honor and support a strike against
their Employer.
WE WILL NOT threaten employees of MDC that
we will demand their discharge if they do not pay
us a reinstatement fee without initially having noti-
fied the employees of their membership duties
giving rise to their obligation to pay such fee as a
condition of employment.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise, of the rights
guaranteed you by Section 7 of the Act.
WE WILL remove from our governing docu-
ments any provisions which require adherence to
the portion of article L, section 3, of the constitu-
tion of the International Association of Machinists
and Aerospace Workers set forth above.
WE WILL rescind the unlawful fines levied upon
former members Ramon Fuentes, Juliet P. Rosales,
Glenn Van de Sande, Alice Vargas, Patricia Miller,
Stella Melendez, Amalia Morales, William A.
Gehr, and Harlan C. Barrios for their respective
postresignation conduct of having worked for
MDC during the period of the strike which began
25 March 1981, and WE WILL remove from our
files and records any references to the internal pro-
ceedings, respective fines, and lawsuit to collect
the fines against the former members for the above
conduct.
WE WILL refund to Fuentes, Rosales, Van de
Sande, Miller, Vargas,, Morales,' Melendez, Gehr,
and, Barrios any membership dues and fees, includ-
ing reinstatement fees or the equivalent thereof,
paid to date, with interest, and collected after our
failure to advise them, subsequent to the imposition
against each of them of a prohibition from holding
office in this labor organization, of their respective
obligations under, the contractual union-security
clause.
WE WILL make whole the above-named employ-
ees for any loss of earnings, benefits, -travel ex-
penses, or any other' expenses incurred as a result
of their need to defend themselves against the in-
ternal union charges preferred against them, includ-
ing any such losses that resulted from the state
court action against them to collect the unlawfully
imposed fines.
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORK:
ERS, DISTRICT LODGE 94, LOCAL
LODGE 575
Ann Reid Cronin, Esq., for the General Counsel.
Robert M. Simpson, Esq. (Rose, Klein & Marias), of Los
Angeles, California, for the Respondent.
Raymond J LaJeunesse Jr., Esq. (National Right to Work
Legal Defense Foundation, Inc.), of Springfield, Virgin-
ia, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The
above-captioned matters were tried before me oil June I
and 2 and July 20 and 21, 1983, in Los Angeles, Califon.
nia. On April 27, 1983, the Regional Director for Region
31 of the National Labor Relations Board (the Board)
issued a second consolidated amended complaint, based
on an unfair labor practice in Case 31-CB-4259 filed by
Ramon Fuentes, an individual, on June 30, 1981; an
unfair labor practice charge in Case 31-CB-4809 filed by
Fuentes and Juliet Pena Rosales, an individual, on Octo-
ber 19, 1982; and original and first amended unfair labor
practice charges in Case 31-CB-4837 filed by Glenn G.
Van de Sande, an individual, on November 15, 1982, and
April 19, 1983,1 respectively, alleging that International
Association of Machinists and Aerospace Workers, Dis-
trict Lodge 94, Local Lodge 575 (Respondent), engaged
in acts, and conduct violative of Section, 8(b)(1)(A) of the
National Labor Relations Act (the Act). Respondent
filed an answer, denying the commission of any unfair
labor practices. At the hearing,2 all parties were permit-
ted to examine and cross-examine ' witnesses, to of Fer any
relevant evidence, and to argue their positions orally.
Additionally, all parties filed posthearing briefs that have
been carefully considered. Accordingly, on the entire
record, the posthearing briefs, and' my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
At all-times material, McDonnell Douglas Corporation
(MDC) has been, and is now, a corporation duly orga-
nized under the laws of the State of Maryland, with an
office and place of business located in Monrovia, Califor-
1 Besides Van de Sande, the named Charging Parties on the first
amended charge are Alice Vargas, Patricia Miller, Stella Melendez, and
Amalia Morales
2 The General Counsel moved and was permitted to extensively amend
the second consolidated amended complaint at the hearing. The amend-
ments were substantively denied by Respondent
884 DECISIONS -OF THE NATIONAL LABOR -RELATIONS BOARD
nia, where it is engaged in the manufacture and sale of
aircraft and related items. In the course and conduct of
its business operations, MDC annually sells and ships
goods and services valued in excess of $50,000 from its
Monrovia, California facility directly to customers locat-
ed outside the State of California. Respondent admits
that MDC is now,, and has been at all times material
herein, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that it is now, and has been at all
times material , a labor organization within the meaning
of Section 2(5) of the Act.
III. ISSUES
1. Did Respondent engage in conduct violative of Sec-
tion 8(b)(1)(A) of the Act by instigating and prosecuting
internal union disciplinary proceedings against Fuentes,
Rosales , Miller, Vargas, Morales, Melendez, Van de
Sande, William A. Gehr, and Harlan C. Barrios, who
were employed by MDC at its Monrovia facility, for
crossing a picket line, -sanctioned by Respondent, and
working for MDC after duly resigning from Respondent;
by fining the individuals for the conduct; and by institut-
ing a lawsuit against the individuals to collect the fines?
2. Did Respondent 'violate Section 8(b)(1)(A) of the,
Act by, after impairing the membership rights of each of
the above nine individuals, as discipline for crossing a
sanctioned picket line, failing to advise each that, while
his or her membership rights were impaired, the union-
security provision of-the collective-bargaining agreement
between Respondent and MDC would not be utilized to
force him or her to continue paying dues or the equiva-
lent under a threat of discharge?,
3. Did Respondent violate Section 8(b)(1)(A) of the
Act by threatening Fuentes and Rosales with discharge
and cancellation of membership and insurance for non-
payment of dues or an equivalent amount?
4, Did Respondent engage in conduct violative of Sec-
tion 8(b)(1)(A) of the Act by demanding payment of a
reinstatement fee from Fuentes and Rosales without
having given sufficient notice of such a requirement?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record establishes that in the mid-1960s MDC
purchased an ownership interest in the Monrovia, Cali-
fornia facility involved herein from Hycon Manufactur-
ing Company; in 1971 MDC assumed absolute ownership
of the plant by purchasing a controlling interest in
Hycon and two other companies and by -merging them
to form Actron, a division of, MDC; and on January 1,
1979, the name of the Monrovia facility was changed to
McDonnell Douglas Astronautics Company. The record
further establishes that Respondents was certified as the
a John Pettitt, who is employed by District Lodge 94 of the Interna-
tional Association of Machinists and Aerospace Workers (IAM) as a busi-
ness representative and who is assigned to Local Lodge 575, testified that
exclusive representative for purposes of collective bar-
gaining for the, production and maintenance employees at
the plant in February 1972, and since that date there
have been successive collective-bargaining agreements
between MDC - and Respondent, the most recent of
which is effective from May 4,, 1981, until March" 18,
1984.4 The nine individuals involved in these matters
(Ramon Fuentes, Juliet Rosales, Glenn Van De Sande,
Alice' Vargas, Patricia` Miller, Stella Melendez, Amalia
Morales, William Gehr, and Harlan Barrios) were all em-
ployed5 by MDC at the Monrovia plant, were working
in job classifications within the collective-bargaining unit
represented by Respondent, and were all members of
the latter,through March 1981.
During new -contract negotiations, the predecessor to
the current collective-bargaining agreement between
MDC and Respondent expired, by its terms, on -March
15, ,1981. The latter thereupon gave the requisite 7-day
written notice to, MDC of its intent to terminate the
agreement, and on March 21 the bargaining unit employ-
ees voted to reject the Company's final"contract proposal
and to engage in a ` concerted work stoppage against
MDC in support of their contract demands. The - strike
commenced on March 25 and continued until May 4,
1981, at which time the employees ratified an MDC con-
tract proposal. During the initial period of the strike, the
nine above-mentioned employees honored the picket line;
however, apparently due to financial reasons, each decid-
ed to abandon the work stoppage and return to work. In
this regard, the record discloses that Barrios crossed the
picket line and returned to work on April 15, 1981; that
Fuentes, ' Rosales, Miller, Vargas, and Morales returned
to work on April 22; that Melendez' first day' of work
after the strike began was April 25; that Gehr and Van
De Sande returned to work on and April 27 and 28, re-
spectively; and that each worked through, the remainder
of the- work stoppage.. The record further discloses that
each of the nine employees attempted to resign from Re-
spondent's membership before returning to work. Thus,
there is no dispute that employees - Fuentes, Rosales,
District Lodge 94 is comprised of seven local lodges of which Local
Lodge 575 is one.
4 Apparently, each successive contract has contained a union-security
provision whereby "all employees covered by this agreement shall, at the
expiration of thirty (30) continuous calendar days of employment,
become members of [Respondent]."
5 Of the nine individuals, only Gehr did not testify. Barrios had been
employed at the Monrovia facility , since September 1980 as a material
handler; Vargas since March 16, 1967 , as an 'assembler, Rosales since July
24, 1978, as an electrical assembler , Van de Sande since September 22,
1980, as a tool grinder; Morales since June 7, 1977, as a precision me-
chanic; Melendez since 1966 as a mechanics assembler, Miller since 1966
as an electrical assembler; and Fuentes since 1980 as an electronic receiv-
ing inspector. -
s The eight employee/members-who testified each stated that he or she
executed a membership, application card for Respondent at some point
during his or her tenure of employment, and that they were told either
by an MDC employee (Barrios, Rosales, Van de Sande, Morales, and
Fuentes) or by an agent of Respondent (Miller and Vargas) that such was
required in order to work at the MDC Monrovia facility Further, each
witness denied ever having been informed by a 'representative-of Re-
spondent that rather than becoming a member of Respondent, he or she
could fulfill the union-secunty,clause requirements and continue working
for MDC by paying an amount equivalent to Respondent's membership
dues and fees.
MACHINISTS DISTRICT 94 (MCDONNELL DOTJGLAS) 985
Vargas, Van de Sande, Gehr, Morales, and Miller mailed
resignation letters to Respondent and that the latter re-
ceived each respective letter prior to the date that the
writer returned to work, thereby abandoning the strike.'
Regarding Harlan Barrios, who was on layoff status at
the commencement of the strike but recalled during it,
he testified, without contradiction, that, on receiving the
recall notice and speaking to MDC personnel officials,
he hand-delivered a resignation letter8 to Respondent's
office where an official, Al Loop, read it, said it was
John Pettitt's decision "whether he wanted to accept
[the letter] or not," and warned that Barrios could be
"charged" for crossing the ongoing MDC picket line.
After arguing with Loop regarding abandoning the
strike, Barrios left Respondent's office and, a day or two
later, mailed a copy of the same letter to Respondent.
Concerning employee Stella Melendez, the parties stipu-
lated that she mailed a resignation letter9 on April 24
and Respondent received it on Monday, April 27; she
testified that she crossed the picket line and returned to
work on April 25.
There is no record evidence that on receipt of the res-
ignation letters from the nine MDC employees Respond-
ent's officials made any effort to notify any of them that
the resignations might not be effective. Rather, in a series
of letters dated April 23 and May 11 and 21,10 Angel
Cruz, president of Respondent, advised each of the nine
that internal union charges had been filed against him or
her for violating ' article 'L, section 3, lines '24 through 40,
of the IAM constitution 11 by crossing the MDC picket
7 The parties stipulated that Fuentes' resignation letter was mailed on
April 16 and received by Respondent on April 17; Rosales' resignation
letter was mailed on April 18 'and received by Respondent on April 20,
that Vargas' resignation letter was mailed on April -16 and received by
Respondent on April 17; Van de Sande's resignation letter was mailed on
April 20 and received by Respondent on April 24; Gehr's resignation
letter was mailed on April 21 and received by Respondent on April 22;
Morales' resignation letter was mailed on April 16 and received by Re-
spondent on April 20; and that, Miller's resignation letter was mailed on
April 20 and received by Respondent on April 21. Analysis of these let-
ters (G.(,' Exhs. 18-20 and 22-25) reveals that each is one sentence in
length and states the writer's intention to resign from Respondent's mem-
bership. In none of the letters does an employee recognize his or her con-
tinning obligation to pay to Respondent the equivalent of ,thee latter's
membership dues or fees.
8 The letter (G C Exh. 26) is dated April 8 and states Bamos' intent to
resign from the Union. There is nothing therein regarding his obligation
to continue paying to Respondent the equivalent of the latter's member-
ship dues and fees
9 The letter (G.C. Exh. 21) states Melendez' desire to resign from
membership in Respondent, but is silent regarding her obligation to con-
tinue paying to' Respondent the equivalent of the latter's membership
dues and fees.
11 Apparently, Rosales, Morales, Miller, Vargas, and Fuentes received
the April 23 letter; each of the nine employees, except Barrios and Me-
lendez, received the May 11 letter; and Barrios and Melendez received
the May 21 letter.
I i Art. L, sec. 3 of the IAM constitution concerns "improper conduct
of a member" and LL. 24 through 40 thereof read as follows:
Accepting employment in any capacity in an establishment where a
strike or lockout exists as recognized under this Constitution, with-
out permission. Resignation shall not relieve a member of his obliga-
tion to refrain from accepting employment at the establishment for
the duration of the strike or lockout if the resignation occurs during
the period of the strike or lockout 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 dura-
tion.
line and that a committee would be appointed to investi-
gate the allegations. Thereafter, about June 8, John
Slavik, the chairman of Respondent's trial committee, in
separate letters to Fuentes, Rosales, Van de Sande,
Vargas, Miller, Melendez, Morales, Gehr, and Barrios,
advised them that "A Trial Committee was appointed to
investigate the [respective charge that was enclosed]. An
investigation was conducted and the Trial Committee
has determined that there is sufficient question to war-
rant that a trial hearing be held," and that an internal
union trial, in accordance with the IA.M constitution,
would be held, with each employee entitled to be heard
and to present evidence in his or her behalf.' 2 Trials
were held on July 8, 1981, and each of the nine employ-
ees were found guilty of having acted in violation of arti-
cle L of the IAM constitution by crossing a sanctioned
picket line 'and, performing bargaining unit 'work for
MDC during, the pendency of the March 25 through
May 4 strike. By separate letters to the nine employees
dated September 2, 1981, Cindy Cliver, Respondent's re-
cording secretary, informed each that _as punishment he
or she was fined" and declared "ineligible to hold any
office in the, [IAM] for five years." None of the nine em-
ployees paid his or her fine, and about March 1, 1982,
Respondent filed a lawsuit against the nine MDC em-
ployees in the Municipal Court of Santa Anita Judicial
District, County of Los Angeles, State of California,
seeking to collect the fines. On September 13, 1982, the
lawsuit was dismissed "without prejudice-14 to date,
none of the fines has been paid.
It is the position of both the General Counsel and the
Charging Parties that the resignations from membership
in Respondent, which were tendered by the nine MDC
employees, were effective on receipt by Respondent and
that, therefore, the subsequent internal union proceed-
ings, fines, and court suit to collect the fines ,were unlaw-
ful. In support of their position and besides asserting that
article L, section 3, lines 24 through 40, of the IAM con-
stitution constitutes an unenforceable restriction on resig-
nation, they contend that none of the resignees had
notice's of the above provision prior to tendering his or
12 The letters stated that the trials would be conducted on June 23,
1981. However, the trials were subsequently postponed to July 8 There
is some question about whether Van de Sande received notice of this
new date' inasinuch as the letter, advising of such, was apparently not
sent to him.
i s The amounts of the fines were as follows.
Fuentes $31,298.00
Vargas 1,66200
Miller 1,4'57.30
Morales 1,298.00
Rosales 1,534.00
Barrios 1,376 00
Melendez 1,5 34.00
Gehr 330.24
Van de Sande 432.00
14 The record discloses that Fuentes, Vargas, Rosales, Barrios, -and
Morales jointly incurred court and legal fees in
'
connection with Re-
s lawsuit in the amount of $195.spondent
15 Gehr did not testify at the hearing, and any conclusions about him
would be speculative
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her resignation from membership to Respondent. Initial-
ly, on this issue, I note that Melendez, Barrios, Vargas,
Miller, Fuentes, Rosales, Van de Sande, and Morales all
denied ever having been given or ever seen copies of the
IAM constitution prior to submitting their resignations
and that John Pettitt admitted that not all members are
even- aware of the existence of this document. Neverthe-
less, Respondent contends that Pettitt notified the MDC
bargaining unit -employees of the existence of article L,
section 3, lines 24 through 40, by reading the provisions
word by word and discussing its meaning at two pre-
strike meetings-February 2 and March 21, 1981. The
record establishes that Pettitt, who was Respondent's
agent responsible for conducting the 1981 contract nego-
tiations with MDC and for coordinating any work stop-
page, caused a notice to be posted at the Monrovia facili-
ty about January 26, informing MDC bargaining unit
employees that a meeting would be conducted at 3:45
p.m. on Monday, February 2,16 to "discuss and formu-
late proposals for the up-coming negotiations" 17 and to
"take our first strike vote." The meeting was to be held
at the Immaculate Conception Church, which is located
across the street from the MDC Monrovia facility, and
there is no dispute that not only did such a meeting
occur as scheduled, but also employees Melendez,
Vargas, Miller, Fuentes, and Morales had notice of and
attended it.18 The record further establishes that ap-
proximately 200 'employees were present at the start of
the meeting; it began between 3:45 and 4 p.m. and-lasted
until approximatley 6:15 p.m. in the church's auditorium;
Pettitt and the employee negotiating committee were on
a stage in the front of the room; and Pettitt conducted
the meeting, utilizing a lectern on which he had "just the
proposals that the committee and I had gone over."
There is no dispute that the major portion of the meeting
was consumed by a discussion of the contract proposals
that had been formulated by the negotiating committee.
There were numerous questions by bargaining unit mem-
bers and informal approval or disapproval votes on'vari-
ous proposals. While this 'was ongoing, Fuentes left at
approximately 4:15 p.m. as "I got tired of listening to all
the bull-shit" and, according to Melendez, she and Miller
left between 5:10 and 5:15 p.m. Further, both Morales
and Vargas left the meeting at 5:30 p.m.; the former
stated that contract proposals were still being discussed,
while Vargas insisted that the meeting was over inas-
much as Pettitt had concluded reading the contract.19 In
any event, the record also establishes that when the em-
ployees concluded discussion of their contract propos-
i s The meeting at 3.45 p.m. was to be for the day-shift bargaining unit
employees; a meeting for the night-shift employees was scheduled for 2
p.m
11 Prior to this meeting, an employee negotiating committee had been
elected, and its members, along with Pettitt, had formulated various ten-
tative contract proposals.
18 Employees Barrios, Rosales, and Van de Sande testified that they
did not attend the February 2 meeting Regarding William' Gehr, Vargas
recalled seeing him at this meeting , but there is no evidence how long he
remained if, indeed, he was present.
is In insisting that the meeting had concluded, Vargas averred that
"the people that were sitting . . all got up and left" and the subject of a
strike was never discussed nor was a strike vote taken.
als,20 , the" next order of business was a strike vote. Ac-
cording to Pettitt and John Slavik, the former announced
that an, initial strike vote would be taken but that such
did not necessarily mean a strike would "definitely" be
called; rather, a vote was necessary to demonstrate that
the negotiating committee had the full 'support of the
bargaining unit in presenting its proposed contract. It
was at this point, according to Pettitt, that he read the
above portion of article L, section 3 of the IAM consti-
tution, reciting from a small yellow sheet of paper21 (R.
Exh. 15). On finishing, several employees asked questions
regarding the consequences of crossing a sanctioned
picket line, and Pettitt said "that if anybody crosses the
picket line they can be fined and this union will charge
the members." According to Pettitt, he continued, ex-
plaining about a case in which Respondent had gone to
court to collect fines for crossing a picket line and had
been 4 years in litigation. Someone asked about the
amount of such fines and whether Respondent could take
the member's house away. Pettitt replied that he could
not go that far, but that the fines could equal what the
individual earns while Working during the strike. After
this discussion, stated Pettitt, an initial strike vote by
secret ballot was taken.
- Analysis of the record discloses that apparently only
four of the employee witnesses remained until the con-
clusion of the February 2 meeting and that, of these, just
two, Irma Bullock and Duane Karam, have not served
Respondent ' in some official capacity" in the past. Ac-
cording to Bullock, the only topic for discussion at the
meeting was the negotiating proposals and, after that, "I
think we did take a strike vote, because I remember ev-
erybody going'around now. But it was not a strike vote;
it was supposed to be to see if a strike was going to be
favorable." Bullock recalled that the voting was by
secret ballot and that such was termed a first strike vote.
Concerning whether any portion of article L, section 3
was read out loud, Bullock stated,' after reading lines 24
through 40 to herself at the hearing, "I have never heard
this read, at that negotiation or any other negotiation."23
20 The record establishes that at least half the employees had left the
meeting by the time the discussion of the contract proposals concluded at
approximately 5.30 p in.
21 Pettitt testified that prior to June 3, 1980, he never quoted the pro-
visions of art. L, sec. 3 to members who were contemplating a strike
against their employer, On that date, the IAM transmitted an internal
guideline, Official Circular No 697 (R. Exh. 14), to all local officials.
The document concerned the procedure that was, to be followed to make
sure that members were aware of the resignation provisions of art L, sec
3, and instructed local officials, "in all instance," to read the above "at
the first strike vote meeting." In order to facilitate the IAM dictate, Pet-
titt had prepared for his use 8-1/2 inch by 5-1/2 inch sheets of yellow
paper on which lines 24 through 40 of art. L, sec 3 were printed verba-
tim. Pettitt admitted that the MDC contract situation was his first subse-
quent to the publication of Circular No. 697
22 John Slavik and William Bennett testified on Respondent's behalf,
essentially corroborating Pettitt's testimony about the February 2 meet-
ing Each has served Respondent in an official capacity in the past-Ben-
nett as a chief steward district delegate and Slavik as vice president, re-
cording secretary, and financial secretary-and did not impress me as an
entirely, reliable witness
23 Bullock could not recall any discussion concerning scabs, strike-
breakers, crossing a picket line, or the consequences for the latter
MACHINISTS DISTRICT 94 (MCDONNELL DOUGLAS)
Karam, who stated that he sat at the front due to a hear-
ing problem, testified that the meeting began with a
review of the employees' proposed negotiating posi-
tions-"to see if the people approve of it, or had any
changes or suggestions." These matters lasted approxi-
matley 1-1/2 hours; next there was a secret ballot vote
"to authorize the committee to have a strike backing
them on their negotiations." He further testified that,
prior to the vote, Pettitt spoke on how a strike "would
be handled." Then, "he read I guess it was a constitution
.. you couldn't terminate your . . . withdrawal from
the union 14 days before the termination of the contract.
And then he went on to say about the penalties" for
crossing a picket line. Karam added that Pettitt did
appear to be reading from something while speaking of
the 14-day requirement. At that point, questions were
asked about the type of penalties, with one person asking
if a member's house could be taken. Pettitt replied that
such was never done. In all, according to Karam, this
discussion consumed no more than 5 minutes and imme-
diately preceded the strike vote.24 Finally, regarding this
February 2 meeting, there is no evidence that during the
90 minutes prior to allegedly doing so, Pettitt ever alert-
ed the employees that he would read article L, section 3
to them.
Lines 24 through 40 of article L, section 3 of the.IAM
constitution were, next allegedly read, word by word, to
the MDC bargaining unit employees at the March 21
prestrike meeting. The meeting was held at the Elks
Lodge in Monrovia' on a Saturday morning; there is no
dispute that such a meeting occurred and was held for
two reasons: to accept or reject MDC's final contract
proposal and, if rejected, to reaffirm the prior, first strike
vote. Of the nine25 employees involved herein, five
(Vargas, Fuentes, Miller, Melendez, and Rosales) were
present; Pettitt also conducted this meeting. According
to the latter, who was seated on a slightly raised stage
along with the negotiating committee and Sid Cohen, a
grand lodge representative, the subject of the constitu-
tional provision arose subsequent to the rejection of
MDC's final offer. Thus, Pettitt announced the results of
the vote and said that the employees would, therefore,
have to reaffirm their prior strike vote. The approximate-
ly 265 bargaining unit employees began cheering, and
Cohen whispered to' Pettitt, "[D]on't forget, John, you
got to read from the good book, and he was referring to
the constitution." Thereupon, Pettitt announced to the
group that he was going to read from the constitution as
he had at the first meeting, and proceeded to read article
L from the constitution itself. After doing so, according
to Pettitt, he explained what the provision entailed and
explained the consequences of a strike, mentioning its
effect on contractual health and welfare payments, unem-
ployment insurance, and, IAM strike benefits. Next, ques-
tions were asked regarding failures to picket and the con-
sequences of crossing a picket line. Regarding the latter,
as he had at the church meeting, Pettitt mentioned the
24 Karam stated that he knew nothing of any 14-day requirement prior
to the church meeting and that he heard people talking about it as he
departed from the church-while understanding what Pettitt said,
"[M]ost of the guys had never heard of it at that time."
25 There is' no evidence regarding Gehr's attendance at this meeting.
887
pending court case to collect fines for such conduct.
Subsequent to the questions, Pettitt testified, a strike vote
by secret ballot was taken. The- testimony of witnesses
Slavik and Bennett, as with the February 2 meeting, es-
sentially corroborated Pettitt's account of the reading of
article L, section 3 at this meeting. Contrary to them,
employees Miller, Fuentes, Melendez, Rosales, and Irma
Bullock specifically denied that Pettitt either read or
paraphrased lines 24 to 40 of that provision at the March
21 meeting, but all testified that Pettitt did answer ques-
tions and discussed the consequences of crossing a picket
line, with Miller and Rosales recalling that he did men-
tion fines for such conduct on other occasions.26 Finally,
Duane Karam testified that he also attended this meeting
and that he again sat near the front of the hall. Accord-
ing to him, subsequent to the vote on accepting or re-
jecting MDC's contract offer, but prior to the secret-
ballot strike vote, Pettitt "picked up a book-and he read
it." At the hearing, on reading to himself limes 24
through 40 of article L, section 3, Karam further testified
that such was what Pettitt read to the bargaining unit
employees on March 21, but that, at the February 2
meeting, "he didn't read it .. . word for word."27 Next,
Pettitt responded to questions regarding the conse-
quences for crossing a picket line.
Subsequent to Respondent's levying of its internal
union penaltie828 against the nine MDC employees, four
of them (Fuentes, Rosales, Van de Sande, and Vargas),
believing that they were under no obligation to pay
membership dues to Respondent as a condition of em.
ployment, while ineligible to hold any office in Respond-
ent, timely revoked their respective previously executed
checkoff authorizations, in writing, whereby MDC was
authorized to deduct from their respective wages, and
remit to Respondent, union fees and membership dues.29
The record discloses that with regard to Fuentes, MDC
ceased deducting union membership dues and fees in
July 1982 and that he admits, thereafter, "I stopped
paying" any moneys to Respondent. Approximately 2-
1/2 months later, Fuentes received (G.C. Exh. 44), a
notice dated September 20, 1982, from Marybelle Egge,
secretary-treasurer of Respondent, stating that he was 3
26 Vargas' testimony about whether Pettitt read verbatim or-para-
phrased article L, section 3 at the March 21 meeting was hardly a model
of clarity. However, while again and again denying that Pettitt read art.
L of the LAM constitution, she admitted that not only did he mention the
provision, but also "He explained it, yes."
27 Karam added that Pettitt, at the February 2 meeting, read from
something, but "he went through it and, I just assumed he hit the high-
lights of it "
28 Barrios , Van de Sande, Morales, Vargas, Miller, Fuentes, Melendez,
and Rosales each denied ever having been advised, subsequent to being
fined by Respondent and prohibited from holding office in it for a 5-year
period as punishment for crossing the picket line and returning to, work
for MDC, by any official of Respondent that he or she would not be re-
quired to pay membership dues or fees, or the equivalent thereof, for the
time period during which he or she was prohibited from holding internal
union office.
29 Fuentes' revocation letter is dated June 22, 1982; Rosales' irevoca-
tion letter is dated July 6, 1982, Van de Sande's revocation letter is dated
September 1982 and was received by MDC on September 1, 19132; and
Vargas' revocation letter is dated January 18, 1983. It is uncontroverted
that MDC received the revocations, and Respondent does not assert any
are invalid.
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
months in arrears and warning that "your membership
and your insurance will be cancelled at the close of this
month." Three weeks later, Fuentes received a letter
dated October 8, 1982, from Egge. It reads, in part, as
follows:
Dear Mr. Fuentes,
We regret to inform you that you permitted your
membership to lapse August 31, 1982 by allowing
your dues to become two (2) months in arrears.
The law, specifically, Section 8 (a) (3) of the Na-
tional Labor Relations Act permits a Union and an
Employer to establish, as a condition of continued
employment, covering employees within a bargain-
ing unit covered by a labor agreement, a contract
clause which requires membership in the Union on
or after the thirtieth day following the beginning of
such employment or the effective date of such
agreement, whichever is later. The United States
Supreme Court has defined "membership" as the
obligation to tender periodic dues and initiation or
reinstatement fees uniformly required by the labor
organization as a condition of acquiring or retaining
membership.
There is a lawful Union Security Clause in the
collective bargaining agreement between this Union
and your Employer which covers your job. It has
been in force and effect at all times pertinent to
your employment. We know of no reason why this
lawful clause should not apply to you.
Under the terms of that agreement, you are re-
quired to pay to the Union the uniformly required
reinstatement fee which applies at your shop, which
is $100.00. Your obligation to make that payment
became effective the first ' day after the lapsing of
your membership.
Further, your obligation also includes the obliga-
tion to pay a sum equivalent to uniformly required
dues. Under your classification your monthly dues
are 19.50. At the present time, you owe dues for
October 1982. Accordingly you presently owe to
the Union the sum of $119.50, which includes an
amount equivalent to the reinstatement fee of
$100.00 and an amount equivalent to one months
dues.
Please be advised that unless you make arrange-
ments satisfactory to this Union, to fulfill your obli-
gation to it within 10 days from the date of this
letter, I will assume that you have no intention of
doing so and no bona fide reason for not doing so.
In that event, immediately after the 10 days have
passed, the Union will demand that your Employer
terminate your employment within the bargaining
u n i t represented by us ... .
Afraid of the possibility of termination, Fuentes paid the
required $119.50 to Respondent "under protest" and has
since continued to pay all required dues and fees. He tes-
tified that prior to the October 8 letter he had been un-
aware of the necessity that he pay a "reinstatement `fee"
to Respondent. Regarding Rosales, MDC ceased deduct-
ing membership dues and fees from her wages and remit-
ting same to Respondent in August 1982, and she paid no
moneys to Respondent for a 3- or 4-month period.
Thereupon, she received in the mail a notice (G.C. Exh. _
39) from Respondent containing the same warning as re-
ceived by Fuentes on September 21: "Your membership
and your insurance will be cancelled at the close of this
month." Shortly thereafter, Rosales received a letter,
dated October 8, 1982 , from Egge . It reads , in part, as
follows:
Dear Ms. Rosales:
We regret to inform you that you, permitted ,your
membership to lapse September 30, 1982 by allow-
ing your dues to become two (2) months in arrears.
The law, specifically, Section 8(a)(3) of the Na-
tional Labor Relations Act permits a Union and an
Employer to establish, as a condition of continued
employment, covering employees within, a bargain-
ing unit covered by a labor agreement, a contract
clause which requires membership in the Union on
or after the thirtieth day following the beginning of
such employment or the effective date of such
agreement, whichever is later. The United States
Supreme Court has defined "membership" as the
obligation to tender periodic dues and initiation or
reinstatement fees uniformly required by the labor
organization as a condition of acquiring or retaining
membership.
There is a lawful Union Security Clause in the
collective bargaining agreement between this Union
and your Employer which covers your job. It has
been in force and effect at all times pertinent to
your employment. We know of no reason why this
lawful clause should not apply to you.
Under the terms of that agreement, you are re-
quired to pay to the Union the uniformly required
reinstatement fee which applies at your shop, which
is $100.00. Your obligation to make that payment
became effective the, first day after the lapsing of
your membership.
Further, your obligation also includes the obliga-
tion to pay a sum equivalent to uniformly required
dues. Under your classification your monthly dues
are $19.50. At the present time, you owe dues for
Accordingly you presently owe to
the Union the sum of $100.00, which includes an
amount equivalent to the reinstatement fee of
$100.00 and an amount equivalent to ' months
dues.
Please be advised that unless you make arrange-
ments satisfactory to this Union, to fulfill your obli-
gation to it within 10 days from the date of this
letter, I will assume that you have no intention of
doing so and no bona fide reason for not doing so.
In that event, immediately after the 10 days have
passed, the Union will demand that your Employer
terminate your employment within the bargaining
unit represented by us . . . .
Prior to receipt of this letter, Rosales testified, she had
been unaware of any requirement that she pay a $100
"reinstatement fee" to Respondent for becoming arrears
MACHINISTS DISTRICT 94 (MCDONNELL DOUGLAS)
in dues payments . Rosales paid $ 119.50 to Respondent on
October 15 and has continued to regularly pay dues
"under protest" each month.
The record further discloses that with regard to Van
de Sande, MDC ceased deducting union dues and fees
from his wages in October 1982 , and he testified that he
failed to make any payment to Respondent that month.
Thereafter, he received a notice , dated October 28, from
Marybelle Egge, warning Van de Sande that "your
membership and your insurance will be cancelled at the
close of this month ." In response, he paid his dues to Re-
spondent for that month and since has continued to do
so "under protest." Concerning Alice Vargas, MDC
ceased deducting union dues and ' fees from her wages
and remitting same to Respondent in February 1983, and
she paid no moneys on her own to Respondent that
month . Vargas testified that thereafter she received a
three-page document, dated March 10, 1983 , from Re-
spondent . The first page is the identical notice, received
by Fuentes, Rosales, and Van de Sande ; signed by Egge,
it warned Vargas "your membership and your insurance
will be cancelled at the close of this month." The second
page, a "general" information sheet ,- was also signed by
Egge and contains the following warning : "Please be ad-
vised that if you allow your membership to lapse due to
nonpayment of dues for two (2) months you will be re-
quired to pay a reinstatement fee of $100 in order to
become a member in good -standing again ...." Wor-
ried that she might have to pay the same $100.00 fee,
paid by Fuentes and Rosales, Vargas paid all moneys
"owed" to Respondent and has done so since-"under
protest." Finally, Miller and Morales testified that each
decided not to revoke her checkoff authorization for fear
that the identical consequence that befell Fuentes and
Rosales--the necessity of paying a $100 reinstatement fee
to avoid possible termination-would happen to her.
B. Analysis
The General Counsel and the Charging Parties essen-
tially contend that the resignations from membership in
Respondent that were tendered to it in April 1981,
during the pendency of the concerted work stoppage
against MDC, by employees Fuentes, Rosales, Van de
Sande, Miller, Vargas, Morales, Melendez , Gehr, and
Barrios were effective on receipt by Respondent ; that ar-
ticle L, section 3 , lines 24 through 40, of the IAM consti-
tution constitutes an unenforceable restraint on resigna-
tion ; and that, therefore, as alleged in the second consoli-
dated amended complaint , the internal union disciplinary
proceedings, the resulting fines levied against the above
nine employees and the lawsuit to collect the fines were
all violative of Section 8(b)(1)(A) of the Act. In defense,
Respondent argues , based on the asserted approach "uni-
formly followed by the Supreme Court" that the
common law of contracts applies to these types of situa-
tions - and it will not disturb the express contractual re-
strictions on the right to resign of voluntary associations,
that limitations on resignations , such as article L, section
3, "are enforceable, particularly where the purpose of
the limitation , as here, is to preserve group solidarity, and
mutual reliance in situations in which a collective effort
is necessary to achieve a particular result." Accordingly,
889
Respondent 's counsel asserts, the nine employees' ten-
dered resignations were not effective and, having crossed
a sanctioned picket line and worked for their employer,
the resultant discipline of each was lawful internal union
activity . The issue, regarding this aspect of the allega-
tions herein , is, succinctly put, as stated by the General
Counsel in her posthearing brief-"whether a union may,
through an express provision in its constitution , absolute-
ly prohibit an employee for the duration of a strike from
changing his or her status from that of a full union
member, subject to union discipline . . . to that of a
former member , immune from [discipline ] imposed by
the union ...."
The Board and the courts of appeals have long recog-
nized that employees have the Section 7 right to not
honor a picket line and return to work for their employ-
er if they have first resigned their membership in their
union and to resign from membership in a union absent
some valid restriction ' on such . Carpenters San Diego
Council (Campbell Industries), 243 NLRB 147, 148
(1979); Electrical Workers IBEW Local 1260 (KITV), 239
NLRB 923, 927 (1978); Teamsters Local 439 (Loomis
Courier), 237 NLRB 220, 221 (1978); NLRB v. Chemical
Workers Local 6-578, 619 F.2d 708 (8th Cir. 1980);
NLRB v. Machinists Lodge 1871, 575 F.2d 54 (2d Cir.
1978). However, the Supreme Court has ruled that a
labor organization does not act in violation of Section
8(b)(1)(A) of the Act by imposing fines on "members"
who decline to honor an authorized strike and by at-
tempts to collect such fines,30 but that it labor organiza-
tion commits an unfair labor practice when it levies fines
or seeks enforcement thereof after a member has lawfully
resigned his membership . NLRB v. Allis-Chalmers Mfg.
Co., 388 U.S. 175, 195 (1967); NLRB Y. Textile Workers
Local 1029, Granite State Joint Board, 409 U.S. 213, 217
(1972). Specifically left unresolved by the Court in Gran-
ite State and in a subsequent decision31 was the issue of
to what extent, by an internal rule, can a labor organiza-
tion curtail a member 's freedom to resign . In this 'regard,
the Court has also held that "a properly adopted rule" of
a labor organization is not violative of Section 8(b)(1) of
the Act if the internal rule "reflects a legitimate union in-
terest, impairs no policy Congress has imbedded in the
labor laws, and is reasonably enforced against . . . mem-
bers who are free to leave the [labor organization] and
escape the rule." Scofield, supra at 430.
Utilizing the foregoing principles as guidelines, the
Board has, in the past, examined several union rules re-
stricting members' rights to resign and found them to be
unreasonably restrictive and, therefore, invalid. Electrical
Workers JUE Local 444 (Sperry Rand 'Corp.), 235 NLRB
98 (1978); Auto Workers Local 1384 (Ex-Cell-O Corp.),
227 NLRB 1045 (1977); Auto Workers Local 647 (General
Electric), 197 NLRB 608 (1972). Turning to consider-
ation of article L, section 3, lines 24 through 40, of the
IAM constitution , I note that within the preceding 18-
month period , the Board has, on three separate occa-
30 In a later decision , the Court explained that by union members, it
meant "voluntary union members." Scofield Y. NLRB, 394 U S 423, 428
(1969)
31 Machinists Lodge 405 v NLRB, 412 U S. 84 (1973). -
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sions, found the identical provision of the IAM constitu-
tion to constitute an invalid, unreasonable, and unen-
forceable restriction on resignation. Machinists Lodge 758
(Menasco), 267 NLRB 1147 fn. 1- (1983); Machinists
Lodge 160 (Gray Motor), 265 NLRB 1049 (1982); Machin-
ists Local 1327 (Dalmo Victor), 263 NLRB 984 (1982).32
In the latter decision, a two-member plurality decision,
with two members concurring and one dissenting (Mem-
bers Fanning and Zimmerman) in the plurality decision,
concluded that "[A],union rule which limits the right of
a union member to resign only to nonstrike periods con-
stitutes an unreasonable restriction on a member's Sec-
tion 7 right to resign"; while Chairman Van de Water
and Member Hunter, concurring, stated that "any union
rule that restricts a member's right to resign is unreason-
able and any discipline taken by a union against an em-
ployee predicated on such a rule violates Section
8(b)(1)(A)." Dalmo Victor, supra' at 986, 992. Although
the plurality decision makes it clear that its findings are
the "law of the case only" and, therefore, of no prece-
dential value, the Board, in Menasco, Inc., supra, ' also
adopted the view that the constitutional provision, herein
involved, is a restriction on resignation and concluded,
"`that under, either the plurality or concurring views ex-
pressed by the Board in Dalmo Victor, Respondent's rule
in the instant case would also be invalid'and unenforce-
able."" Id. at fn. 1. Utililirig Menasco, Inc. and Gray
Motors, supra, as precedent, notwithstanding Respond-
ent's cogent arguments as to the constitutional provi-
sion's enforceability and noting that Dalmo Victor, supra,
is currently pending before the Ninth Circuit, I find that
article, L, section 3, lines 24 through 40, of the JAM con-
stitution is an unreasonable and invalid restraint33 on res-
ignation from membership and that, therefore, the resig-
nations of the involved nine employees were valid when
received" by Respondent. Accordingly, the internal
union disciplinary proceedings, the fines, and resultant
lawsuit to collect he fines, at issue in these matters, must
be found violative of Section 8(b)(1)(A) of the Act as
conduct that coerced and restrained the nine former
members in the exercise of a Section 7 right-the right
32 The United States Court of Appeals for the Ninth Circuit reversed
a prior Board decision in Dalmo Victor, finding the language of article r.,
section 3, LL 24 through 40, of the, IAM constitution to constitute "a
restriction on a member's right to_ resign" and remanding the matter to
the Board for a consideration of the provision's, validity as such. NLRB V.
Machinists Local 1327 (Dalmo Victor), 608 F.2d1219 (9th Cir 1979).
22 I find it unnecessary to pass on the Charging Parties' argument that
any restrictions on resignation are unenforceable and invalid
84 It is clear, that resignations are normally deemed to be effective
when received. Teamsters Local 610 (Browning-Ferris), 264 NLRB 886
(1982). Further, if a constitutional provision unreasonably restricts resig-
nation, a member is free to resign at any time by clearly conveying such
to a labor organization Teamsters Local 36 (Strong Building Materials),
266 NLRB 1057 (1983) Herein, there is no question that the resignations
of each of the nine employees clearly conveyed such an intent to Re-
spondent, and I so find -
With regard to the resignation letters of Barrios, I note that he deliv-
ered a copy, in person, to Respondent and also mailed a copy. I find that
he effectively resigned . Electrical Workers IBEW Local 66 (Houston Light-
ing), 262 NLRB 483, 486 (1982). Regarding Stella Melendez, the record
establishes that Respondent received her resignation I day after she re-
turned to work Such, I find, does not invalidate the effectiveness of her
resignation, but Respondent should be entitled to fine her for 1 day of
work, April 25 Machinists Local 778 (Whitaker Cable), 224 NLRB 580,
581 (1976).
not to honor a strike. Menasco, Inc., supra; Gray Motors,
supra. Furthermore, although not alleged35 as such, the
Board finds, "that the mere maintenance of such a con-
stitutional provision restrains and coerces employees,
who may be unaware of the provision's unenforceability,
from exercising their Section 7 rights. Its effect is analo
gous to the effect of an employer' s maintenance of an
overly- broad no-solicitation rule." Engineers,& Scientists
Guild (Lockheed Corp.), 268 NLRB 311 (1983). Accord-
ingly, by maintaining the_ foregoing provision as its re-
striction on resignation, Respondent also restrained, and
coerced employees in violation of Section 8(b)(1)(A) of
the Act.
Both counsel for the General Counsel and counsel for
the Charging Parties argue, in -the alternative, that as-
suming arguendo the Ninth Circuit Court of Appeals or,
ultimately perhaps, the Supreme Court finds article - L,
section 3, lines 24 through 40 a permissible restriction on
resignation, , the internal union disciplinary proceedings,
the fines, and the resultant lawsuit to collect the, fines
against the nine MDC employees, nevertheless, must be
found unlawful as none of them had notice of the exist-
ence, much less the terms, of the IAM constitutional pro-
vision prior to tendering his or her resignation from
membership.36 The existence of a restriction on such
35 Obviously, the validity of art L, sec. 3 was extensively argued in
the posthearing briefs. Accordingly, there has been no denial of due
process by my finding of a violation about the maintenance of the provi-
sion.
36 It is also argued, in the alternative, that the internal disciplinary pro-
ceedings, the fines, and the lawsuit to collect such fines are unlawful inas-
much as neither at the time each of the nine employees executed his ap-
plication for membership in Respondent, or at any time thereafter, did
agents of the latter inform him or her that he or she was not required to
become a member in order to fulfill the contractual union-security obliga-
tion, but rather he or she was only required to pay the equivalent of
membership dues and fees to Respondent. At the outset, while the collec-
tive-bargaining agreement between Respondent and MDC requires mem-
bership in Respondent 30 days after employment, " it is permissible to
condition employment upon membership, but membership, insofar as it
has significance to employment rights; may in turn be conditioned only
upon payment of dues and fees. 'Membership' as a condition of employ-
ment is whittled down to its financial core " NLRB v General Motors
Corp., 373 U.S. 734, 742 (1963) Both the General Counsel and counsel
for the Charging Parties rely on the one Board decision on this issue,
Retail Clerks Local 322 (Ramey Supermarkets), 226 NLRB 80 (1976), as
support for their contention; while the latter argues, more broadly, that
Respondent's failure to advise in this regard meant that the nine MDC
employees never became full voluntary members of Respondent so that
none were ever bound by the tenets of article L, section 3 of the IAM
constitution and that Respondent never had any authority over them
The situation in Retail Clerks is similar -to the one here-the union re-
fused to honor the resignations of 10 employee/members and instituted
internal disciplinary proceedings against each for crossing a picket line,
and working for his employer. The union's defense was a constitutional
restriction on resignation, the terms of which were not adhered to by the
10 employees. Without ruling on the validity of the provision, the admin-
istrative law judge, with the Board affirming, held that the union penal-
ties were unlawful, reasoning:
It has long been clear that Congress intended in enacting the Taft-
Hartley amendments that employees should not be required to un-
dertake or maintain any obligation to'the labor organization beyond
the obligation to "tender the periodic dues and initiation fees uni-
formly required as a condition of acquiring or retaining member-
ship," unless, the employee voluntarily'assumed other obligations. See
N.L.R B. Y General Motors Corporation, 373- U S. 734 (1963) In the
present case, as has been found, both the Union and the Company
considered that the employees were covered by a union-shop con-
Continued
MACHINISTS DISTRICT 94 (MCDONNELL DOUGLAS)
rule "prior to tendering his resignation, then the mem-
ber's resignation becomes effective immediately . . . ."
Dalmo Victor at 987 fn. 20; Loomis Courier Service, supra
at 223; Ex-Cell-O Corp., supra at 1048. Moreover, I agree
with the proposition set forth by both counsel-that the
necessity to give members notice of the existence of any
rules or impediments to resignation prior to penalizing
them For failing to adhere or comply with such is re-
quired by a labor organization's fiduciary duty of fair
representation (Ex-Cell-O Corp., supra at 1049), and that
the rules for the preciseness of such should be as strict as
that required of a labor organization prior to demanding
enforcement of a constitutional union-security clause
against a delinquent employee. Pattern Makers League
(Rockford-Beloit), 265 NLRB 1332, 1334 (1982), enfd. 724
F.2d 57 (7th Cir. 1983); Western Publishing Co., 263
NLRB 110, 111-112 (1982). Further, the burden is on the
respondent labor organization to establish that the resign-
ing employees had "proper notice" of language restrain-
ing the resignations. Ex-Cell-O Corp., supra at 1049 fn.
21. In the instant circumstances, 37 Respondent contends
that actual notice of its restrictions on resigning, in the
form of reading article L, section 3, lines 24 through 40,
word by word, was given to the MDC bargaining unit
employees at the two prestrike meetings held on Febru-
ary 238 and March 21, 1981. Inasmuch as I believe that
tract, and the employees were informed that they had to join the
Union and did so. There is no evidence that the employees were ad-
vised that they had the option not to join if they would tender the
dues and fees required. Under the circumstances, it must be held that
the employees joined under compulsion. However, the record does
show that when the employees tendered their resignations , they did
advise the Union that they were willing to continue paying such
legal dues and fees as might be required. In my opinion , where it is
not shown that the employees were clearly, advised of their option
not to join a labor organization before assuming membership in that
union, the most that should be required of the employees as a condi-
tion precedent to resignation from membership is a commitment to
continue paying the periodic dues and fees which may uniformly be
required of members under the Act. In that way, the employee is
guaranteed his rights under the Act, while at the same time continu-
ing financial support to the bargaining representative which must
represent him
Id. ,at 90. Two points are evident from the foregoing. First, contrary to
counsel for the Charging Parties, notwithstanding the union 's failure to
advise the employees of their choices, the Board, apparently found them
to, in fact, be members who , as members, were ! able to resign without
regard to 1he union's constitutional restrictions on such. Thus, to the
Board, the failure to advise affects the employee's right to resign and not
the union membership itself of the employee Secpnd, a condition prece-
dent exists to a member's right to freely resign in circumstances as existed
in Retail Clerks and as exist in the circumstances herein-he must advise
the labor organization of his intent to honor his ¶ fnancial core" obliga-
tions under the union-security clause. None of the nine MDC employees
so advised Respondent; therefore, absent the unenforceable constitutional
impediment to resignation, Respondent could have lawfully refused to
honor the resignations herein under this rationale Therefore , I place no
reliance on this alternative theory of the alleged violations herein.
87 The testimony of employees Fuentes, Rosales, Van De Sande,
Miller, Vargas, Morales, Melendez, and Barrios that each neither pos-
sessed nor had examined a copy of the IAM constitution prior to resign-
ing was uncontroverted by Respondent, and the latter offered no evi-
dence that employee Gehr possessed or was fainihar'with the constitu-
tion.
38 It was uncontroverted that employees Barrios, Rosales, and Van de
Sande were not at the February 2 meeting, and the record evidence is
inconclusive, at best, that Gehr was present.
891
any notice given at the Elks Lodge meeting on the latter
date would have been ineffectual and meaningless,39 the
issue is whether employees Fuentes, Miller, Vargas, Mo-
rales, and Melendez did, indeed, receive notice of the
terms of the constitutional provision at the church meet-
ing on February 2.
Initially, I must determine whether Respondent's
agent, John Pettitt, should be credited that he read each
word of article L, section 3, lines 24 through 40, to the
assembled employees; in this regard, I note that Pettitt
himself admits that the document from which he alleged-
ly read was not the IAM constitution itself, but rather a
sheet of paper on which lines 24 through 40 are printed
verbatim. Analysis of the entire record convinces me
that the only truly credible corroborative account40 of
what occurred at this meeting was that of employee
Duane Karam, who, at all times, impressed me as an
honest and candid witness and who seemed to be forth-
rightly attempting to recall what was said. According to
the witness, Pettitt did seem to be reading from some-
thing, saying, that withdrawal from the Union was not
permitted 14 days preceding the termination of the con-
tract. Karam's honest recollection seems to have been
faulty, and I believe, and find, that Pettitt was, indeed,
speaking regarding the provisions of article L, section 3.
Regarding whether Pettitt read or merely paraphrased
the words, Karam's testimony is most revealing-"he
didn't read it .. , word for word," merely hitting the
"highlights." I credit this rather than Pettitt's asserted
version of what he did concerning article L, section 3.41
Accordingly, I find that, prior to the secret-ballot strike
vote on February 2, Pettitt did, to some extent, discuss
the provisions of article L, section 3, lines 24 through 40
and the consequences for crossing a picket line and that
the discussion, as testified to by Karam,, lasted for just a
few minutes. However, the record establishes that em-
ployees Fuentes, Miller, Vargas, Morales, and Melendez
probably had departed by that time, each having left
during the contract proposal discussions. Nevertheless,
Respondent's counsel contended at the hearing that the
notice requirement was satisfied by Pettitt's actions after-
ward. I do not agree. Respondent's fiduciary duty of fair'
representation is not to be lightly construed, and the re-
39 If actual notice of the terms of art . L, sec 3, LL 24 through 40 was
first given at the March 21 employee meeting, bargaining unit employees,
if they so chose, would have had just 4 days in which to resign prior to
the commencement of the strike against MDC. By , its terms the afore-
mentioned constitutional restriction on resignation -requires that, to be ef-
fective, a resignation must be tendered more than 14 days prior to the
start of a strike Thus, no employee , who desired to take advantage of the
"actual notice" given on March 21, could have effectively resigned as
"he had no ability to comply with the resignation procedures ." Strong
Building Materials, supra at 1058 fn. 2.
40 I do not rely'on the corroborative testimony of witnesses Slavik or
Bennett. Their respective testimony impressed me as being too "pat" to
be credited On the other hand, while Irma Bullock seemed to be a credi-
ble witness, her memory of what was done and said by Pettitt at both
prestrike meetings was at odds with other accounts sufficiently to con-
vince me that her honest recall was not always accurate and should not
be relied on-I do not do so.
41 I was not at all impressed with Pettitt's testimonial demeanor, be-
lieving he attempted to buttress portions of his testimony with fabrica-
tion, however, I am not prepared to find his testimony completely unreli-
able, especially when corroborated by the credible testimony of Karam.
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quirement of actual notice, as_ in the enforcement of a
union-security clause, is strictly enforced by the Board.
Distillery _ Workers Local 38 (Schenley Distillers), 242
NLRB 370, 371 (1979). Extended to the instant facts, Re-
spondent was under a- duty to ensure that each and every
person who attended the meeting was informed of article
L, section 3, its existence and provisions. Herein, there is
ample evidence that many employees departed the meet-
ing during the discussion of the' contract proposals-to
the extent that only slightly more than half of the group
remained for the initial strike vote. Yet, there is no evi-
dence, and no contention by Respondent, that Pettitt
made, any earlier, announcement that article L, section 3
would be read to them at some,later point in order to
forestall the departures. This is highly significant; for the
matter of resignation and restrictions thereon would
seemingly have been a matter of vital concern to em-
ployees involved in a potential strike situation. Indeed,
the IAM apparently recognized this by publication of its
Circular No. 697. Simply put, fundamental fairness dic-
tates that employees, who probably had no reason for
being aware that any restriction on resignation existed in
the constitution, should not bear the burden in these cir-
cumstances, especially when to force such directly im-
pairs the exercise of a Section 7 right. Id. at 371. Rather,
Respondent's strict fiduciary duty herein extended, at
least, 'to the point of notifying everyone in attendance at
this February 2 meeting that an important announce-
ment, regarding his resignation rights and the conse-
quences thereof, would be made later. In such circum-
stances, perhaps an argument could successfully be made
that Pettitt's discussion of article L, section 3 fulfilled
Respondent's notice requirements in that regard to all
those at the meeting-even those who had left, including
Fuentes, Miller, Vargas, Morales, and Melendez. Such,
however, is not the case, and I find that neither these
five employees nor employees Van de Sande, Barrios, or
Rosales had sufficient42 notice of the provisions of arti-
cle L, section 3, lines 24 through 40, at the time they ten-
dered their resignations to Respondent 43 Therefore, not-
withstanding the assumed validity of that section of the
IAM constitution, and I have found such to be unlawful,
Respondent's subsequent internal disciplinary proceed-
ings, fines, and attempted collection of them, were viola-
tive of Section 8(b)(1)(A) of the Act. Strong Building
Materials, supra.
The record is uncontroverted that neither at or subse-
quent to the imposition of the intraunion sanctions, pro-
hibiting each of the nine MDC employees from holding
office in Respondent for a 5-year period for having
crossed the picket line and working for MDC at the time
of the 1981 strike, by Respondent did its agents or offi-
cials explain to each one that, during this period of im-
paired membership rights, the union-security provision of
the current MDC-Respondent collective-bargaining
42 Assuming arguendo proper notice was given to the MDC employ-
ees on March 21, given the circumstances , as described in fn . 39, supra,
the notice would not have been sufficient.
43 I make no finding with regard to whether employee Gehr had
proper notice, nor do I reach the issue whether what Pettitt did on Feb-
ruary 2, as testified by Karam, constituted adequate notice of art. L, sec.
3, to those employees who heard what he said. -
agreement would not be utilized to force him or her to
continue paying dues, or its equivalent, under a threat of
discharge. Equally, there is no dispute that Respondent
threatened employees Fuentes and Rosales with enforce-
ment of the union-security clause unless they paid to Re-
spondent dues arrearages, or the equivalent, and rein-
statement fees. The second amended consolidated com-
plaint alleges Respondent's failures to inform and threats
to be conduct violative of Section 8(b)(1)(A) of the Act.
In support, counsel for the General Counsel and the
Charging Parties cite four Board decisions, in chronolog-
ical order-Steelworkers Local 4186 (McGraw Edison),
181 NLRB 992 (1970); Communications Workers Local
9509 (Pacific Telephone), ,193 NLRB 83 (1971 ); Communi-
cations Workers Local 1101 (N. Y Telephone), 211 NLRB
114 (1970); Telephone Traffic Union (N. Y. Telephone), 241
NLRB 826 (1979). Analysis of Board rationale in these
cases, at least where employees engaged in conduct priv-
ileged by Section 7 of the Act, discloses that, rather than
the respondent labor organization 's impairment of mem-
bership rights for such conduct, which may not be un-
lawful,44 the Board considers as unlawful and "a con-
tinuing form of coercion," which restrains the exercise of
Section 7 rights, the labor organization's continued insist-
ence on payment of dues or the equivalent thereof
during the period of the membership impairment. Such
insistence, under penalty of discharge pursuant to a
union-security clause, is not "disassociated," by the
Board, from the membership impairment, is viewed as
"hardly necessary to preserve the [labor organization's]
existence as an institution, nor .. as a noncoercive
form of internal discipline" and is, therefore, found, by
the Board, to be violative of Section 8(b)(1)(A) of the
Act.45 This result holds whether the affected employee
is a present member of the labor organization and wheth-
er he pays to the labor organization membership dues
and fees or merely the equivalent thereof.
Analysis of the record convinces me of the merits of
these particular allegations of the second amended con-
solidated complaint. In this regard, that I have previous-
ly concluded that the nine MDC employees who effec-
tively resigned from membership in Respondent. prior to
the imposition of intraunion sanctions is an irrelevant
factor46 inasmuch as, having refused to honor said,resig-
44 The General Counsel concedes that declaring the nine MDC em-
ployees ineligible to hold office is a form of intraunion discipline protect-
ed by the proviso to Sec 8(b)(1)(B) of the Act.
45 I note that, although not mentioned as justification for its decisions
on this issue, the Board made certain to specify a linkage between the
privileged intraunion sanction and the threatened imposition of the con-
tractual union-security clause to collect dues arrearages that resulted
from the internal penalty. Therefore, such- can be said to constitute
threatened external union enforcement of an mtraunion sanction-"[T]his
interference with the employer-employee relationship violates Section
8(b)(1)(A)" Teamsters Local 122 (Busch & Co.), 203 NLRB 1041, 1042
(1973)
46 I reject-the contention of Respondent that, having effectively re-
signed, each of the nine MDC employees continued to have a "financial
core" obligation to Respondent pursuant to the union-security clause and
that, therefore, Respondent's efforts to collect arrearages were not un-
lawful. I do so not because the argument is without considerable merit,
but rather because such does not adequately explain or comport with Re-
spondent's conduct herein of continually treating the nine MDC employ-
ees as members and because this argument strikes me as a belated justifi-
cation for conduct that was motivated by other concerns
MACHINISTS DISTRICT 94 (MCDONNELL DOUGLAS)
nations, Respondent , at all material times, continued to
deal With the employees as members for purposes of the
office holding prohibitions and the collection of dues ar-
rearages. Thus, I note that the intraunion sanctions con-
cern the nine employees ' membership rights; that, in
threatening to invoke the contractual union -security
clause against employees Fuentes and Rosales, Respond-
ent noted that each had permitted his or her "member-
ship to lapse; and that, in advising employees Van de
Sande and Vargas of their respective dues arrearages,
Respondent threatened to' cancel the membership of
each . In any event, treating , as I have, this aspect of the
instant proceedings within the parameters established by
Respondent, I initially find that the rendering of each of
the nine employees ineligible from holding union office
for a 5-year period constituted a substantial impairment
of his or her rights as a member (Schonfeld v. Penza, 477
F.2d 899 (2d Cir. 1973); McGraw Edison , supra at 992)
and that the impairment directly related to the exercise
of the nine employees of a Section 7 right . With regard
to the alleged failure of Respondent to inform each of
the nine MDC employees that, during the period of im-
paired membership, the existing contractual union -securi-
ty provision would not be utilized to require him or her
to continue paying membership dues or the equivalent
thereof, the only mention in the above cases of such an
obligation is in a footnote of the administrative law
judge's decision in Telephone Traffic Union, supra. There-
in, conceding the lawful nature of the membership im-
pairment, a suspension from membership , the respondent
union was, nevertheless , held, pursuant to its fiduciary
duty of fair representation , to- have an affirmative obliga-
tion to inform the employee/member "that during her
suspension the union -security provision would not force
her to continue paying dues or its equivalent under a
threat of discharge." Id. at 829 fn . 4.47 Respondent's de-
fense, rather than to the rationale itself, concerns the fact
that the employee in Telephone Traffic Union was sus-
pended from membership in the union , while the only
limitation placed on the employees herein is their respec-
tive ineligibility to hold union office for a 5-year period.
Contrary to counsel , nowhere in the relevant footnote or
elsewhere does the administrative law judge or the
Board justify ' this holding on the basis of the severity of
the membership impairment , nor do they give any indi-
cation that such constitutes a relevant consideration, at
all. Moreover , I have already , concluded that the prohibi-
tion herein is, indeed , a substantial one. Accordingly, I
find Respondent 's defense to be without merit and its
failure to advise the nine MDC employees in the manner
set forth above, either at the time of or subsequent to the
imposition of the union office prohibition , to be a breach
of its fiduciary duty of fair representation and violative
of Section 8(b)(1)(A) of the Act . With regard to the
threats to employees Fuentes .and Rosales , Respondent's
conduct is exactly that which the Board concluded was
unlawful in Communications Workers Local 1101 , supra,
47 Although the Board modified other aspects of the decision , it left
standing fn 4 and the reasoning therein . Presumably , therefore, the foot-
note was adopted by the Board , and such is a correct statement of the
law
893
and Telephone Traffic Union , supra at 826, fn. 3. Thus,
having lawfully disciplined each for engaging in conduct
privileged by Section 7, Respondent insisted , under pen-
alty of discharge , on their continued payment of dues-
while continuing intraunion sanctions. Respondent's de-
fense is, as described in footnote 45 supra , and is without
merit . Therefore , I find the threats , by Respondent to
Fuentes and Rosales , that the former would demand
their discharges by MDC for failure to pay the equiva-
lent of dues arrearages , while the membership Of each in
Respondent was substantially impaired, to be violative of
Section 8(b)(1)(A) of the Act. Id.
The record establishes that, along with its demands, on
penalty of discharge , for dues arrearages , Respondent
also demanded that Rosales and Fuentes each pay a rein-
statement fee of $100 . 'Such is alleged as a further viola-
tion of Section 8(b)(1)(A) of the Act and , as a supporting
theory, the General Counsel and the Charging Parties
argue that neither employee had prior notice of such a
requirement and that Respondent 's failure to so inform
Fuentes and Rosales before demanding payment of the
reinstatement fee was in breach of its duty of fair repre-
sentation . At the outset , Respondent did not controvert
the testimony of either employee that , prior to receiving
Respondent 's demand for payment of the $100 fee, he or
she had been entirely unaware of this requirement. As
stated above, Respondent could not lawfully require the
payment of dues under threat of discharge in these cir-
cumstances, and it logically follows that a demand for
reinstatement fees, in the same circumstances, would
likewise be unlawful . Moreover, it is standard Board law
that, in order to comply with its fiduciary duty of fair
representation, "a union which seeks to enforce a union
security clause with respect to particular employees has
the absolute duty , to see that they are in fact informed of
their financial membership obligations prior , to demand-
ing - . . discharge for nonpayment of regular dues and
fees," including payment of a reinstatement fee as a con-
dition of continued employment. Machinists District 9
(Borg- Warner Corp.),, 237 NLRB 1278, 1278-1279 (1978).
Herein, the first, and ' only, notice to both Fuentes and
Rosales that they would have to pay reinstatement fees
came in letters in which Respondent also warned that
failure to pay the fee and dues arrearages would result-in
implementation of the , contractual union-security clause.
This type of notice has been held by the Board "to be
insufficient notice to members of their potential obliga-
tion to pay the fee," and a threatened enforcement of a
union-security clause of failure to pay in such circum-
stances is violative of Section 8(b)(1)(A) of the Act.
Marvel-Schebzer, supra at 1279; Busch & Co., supra at
1042. Accordingly; in the absence of adequate notice of
the reinstatement fee, Respondent 's threats were viola-
tive of the Act.
CONCLUSIONS OF LAW
1. MDC is an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
894 DECISIONS OF THE-NATIONAL LABOR RELATIONS BOARD
3. By maintaining in force and effect, as its rule re-
stricting members' rights to resign, article L, section 3,
lines 24 through 40, of the IAM constitution, Respondent
coerced and restrained employees of MDC in the exer-
cise of their Section 7 rights in violation of Section
8(b)(1)(A) of the Act.
4. By bringing internal union disciplinary proceedings,
imposing fines, and prosecuting lawsuits to collect the
fines against former members Fuentes, Rosales, Van de
Sande, Miller, Vargas, Morales, Melendez, Gehr, and
Barrios, all of whom had resigned from membership in
Respondent, for their postresignation crossing of a sanc-
tioned picket line and working during a strike, which
began on March 25, 1981, at the MDC Monrovia, Cali-
fornia facility, Respondent restrained and coerced em-
ployees in the exercise of their Section 7 rights and,
thereby, engaged in conduct violative of Section
8(b)(1)(A) of, the Act.
5. By bringing internal union disciplinary proceedings,
'imposing fines, and prosecuting lawsuits to collect the
fines against former members Fuentes, Rosales, Van de
Sande, Miller, Vargas, Morales, Melendez, and Barrios,
all of whom had resigned their membership in Respond-
ent without legally sufficient notice of any restrictions on
their respective rights to resign their membership, for
their postresignation crossing of a sanctioned picket line
and working during a strike, which began March 25,
1981, at the MDC Monrovia, California facility, Re-
spondent restrained and coerced employees in the exer-
cise of their Section 7 rights and, thereby, engaged in
conduct violative of Section 8(b)(1)(A) of the Act.
6. By failing to advise employees Fuentes, Rosales,
Van de Sande, Miller, Vargas, Morales, Melendez, Gehr,
and Barrios of his or her obligations under the union-se-
curity clause of the existing contract between MDC and
Respondent at, the time each was prohibited from hold-
ing any office in it for a 5-year period for having crossed
a picket line and worked for MDC at its Monrovia, Cali-
fornia facility during the strike that began March 25,
1981, Respondent failed to afford them fair representa-
tion and, thereby, restrained and coerced them in the ex-
ercise,of their Section 7 rights, and' engaged in conduct
violative of Section 8(b)(1)(A) of the Act.
7. By threatening employees Fuentes and Rosales with
discharge unless they paid dues arrearages while simulta-
neously continuing the -intraunion disciplinary sanctions
imposed as a result of their having engaged in activities
privileged under Section 7 of the Act, Respondent re-
strained and coerced Fuentes and Rosales in the exercise
of their Section 7 rights and, thereby, engaged in con-
duct violative of Section 8(b)(1)(A) of the Act.
8. By threatening employees Fuentes and Rosales with
discharge under the union-security clause of the contract
between MDC and Respondent without affording either
adequate notice of their membership obligations, Re-
spondent engaged in conduct violative of Section
8(b)(l)(A) of the Act.
REMEDY
Having concluded that Respondent engaged in certain
acts and conduct violative of Section 8(b)(1)(A),of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act. More specifi-
cally, I shall recommend that Respondent cease and
desist from maintaining and enforcing, as its rule placing
restrictions upon members' rights to resign from it, arti-
cle L, section 3, lines 24 through 40, of the IAM consti-
tution, and that it rescind the fines levied against employ-
ees Fuentes, Rosales, Van de Sande, Miller, Vargas, Mo-
rales, Melendez,411 Gehr, and Barrios.-49 Having conclud-
ed that, pursuant to its duty of fair representation, Re-
spondent was obligated to inform each of the above
MDC employees, at the time of the imposition of in-
traunion sanctions, that the existing contractual union-se-
curity clause would not force him or her, under penalty
of discharge, to continue paying dues or its equivalent
and that Respondent violated its fiduciary duty'by not
doing so, I shall recommend, in view of this significant
infirmity, that the latter, be required to cease demanding,
under penalty of discharge pursuant to the existing
union-security clause of its contract with MDC, the pay-
ment of membership dues or the equivalent from these
nine MDC employees until the expiration of the prohibi-
tion against each from holding office in Respondent and
to reimburse Fuentes, Van de Sande, Rosales, Miller,
Vargas, Morales, Melendez, Gehr, and Barrios, respec-
tively, for all dues paid, until the cessation, by Fuentes
and Rosales since April 20, 1982; by Van de Sande since
May 16, 1982; and by Vargas, Miller, Melendez, Mo-
rales , Gehr, and Barrios since October 20, 1982,50 with
interest thereon to be computed in the manner prescribed
in Florida Steel Corp., 231 NLRB 651 (1977).51 Further,
in view of the fact that Respondent must reimburse dues
payments to employees Fuentes and Rosales and the un-
lawful demand for such, under penalty of discharge,
during the pendency of the intraunion sanction described
above, was accompanied by the unlawful demand for
payment by each of a reinstatement fee, I shall recom-
mend that Respondent be ordered to refund the fees to
48 Respondent's fine against Melendez stands-to the extent it involves
preresignation work for MDC during the strike.
49 Contrary to counsel' for the Charging Parties, I shall not recom-
mend that Respondent be ordered to reimburse Fuentes, Rosales, Barrios,
Vargas, and Morales for their legal expenses in connection with the law-
suit to collect the fines In this regard, while the effect of the lawsuit was
to coerce and restrain employees in the exercise of Section 7 rights, such
does not alone compel the extraordinary remedy requested by counsel.
Commercial Workers District'227 (Kroger Co.), 247 NLRB 195 (1980).
Further, there is no evidence that the lawsuit was filed because Fuentes
had previously filed a charge with the Board, the fact that the filing oc-
curred subsequent to a signed stipulation of facts, a portion of which
stated that Respondent had not attempted to collect the fines, evidences
poor timing rather than malicious intent. Moreover, while the size of the
awards would have been large, they would have corresponded exactly to
what the employees knew robe the amount of the fines, with no unfore-
seen expenses involved Finally, despite'my, finding that the filing of the
lawsuit was unlawful, I am unable to conclude that such was in bad faith
inasmuch as the restriction on resignation Herein involved was then, and
is now, the subject of extensive litigation, the outcome of which is not
free from doubt
50 In accord with the suggestion of the General Counsel, noting the
mandates of Sec 10(b) of the Act, and in view of the vague nature of the
remedy in Telephone Traffic Union, supra, I^ shall require dues reimburse-
ments for the period beginning 6 months preceding the filing of the appli-
cable unfair labor practice charges
51 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
MACHINISTS DISTRICT 94 (MCDONNELL DOUGLAS)
each, with interest , as described above . 52 In addition, I
shall recommend that Respondent be ordered to remove
from its files any references to the internal union pro-
ceedings, the fines, and the lawsuits to collect the fines
against these nine MDC employees.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed53
ORDER
The Respondent, International Association of Machin-
ists and Aerospace Workers, District Lodge 94, Local
Lodge 575, Monrovia, California, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Maintaining or giving effect to, as its rule for re-
stricting the resignation rights of its members, article L,
section 3, lines 24 through 40, of the JAM constitution.
(b) Restraining or coercing employees, who have duly
resigned from and are no longer members of Respond-
ent, in the exercise of their rights guaranteed by Section
7 of the Act by bringing internal union proceedings, im-
posing fines, and filing lawsuits to collect the fines
against them because of their postresignation conduct in
crossing a picket line and working at MDC during the
strike that began in March 1981.
(c) Threatening employees that they will be dis-
charged unless they pay membership dues, or the equiva-
lent thereof, where such is otherwise lawfully required as
a condition of employment, during a period in which
they have been prohibited from holding office in Re-
spondent for exercising their right under Section 7 of the
Act to refrain from continuing to support a strike against
their employer.
(d) Failing to inform members who are prohibited
from holding office in Respondent of their obligations
under the contractual union-security clause.
(e) Continuing to demand from employees of MDC
the payment of membership dues, or the equivalent
thereof, where such is otherwise lawfully required as a
condition of employment, during a period in which they
have been prohibited from holding office in Respondent
52 I have ordered reimbursement of the reinstatement fees notwith-
standing the recent Board decisions in Teamsters Local 595 (Certified Gro-
cers), 257 NLRB 492 (1981), and Teamsters Local 572 (Ralphs Grocery),
247 NLRB 934 (1980), both involving a lack of proper, notice, enforce-
ment of a union-security clause, and an alleged violation of Sec.
8(b)(l)(A) and (2) of the Act, inasmuch as Respondent was not entitled to
even demand the payment of a reinstatement fee herein had proper notice
been given. This must be so, for it would be incongruous, indeed, to hold
that Respondent was not entitled to demand the dues arrearages under
penalty of discharge, but was entitled to demand a reinstatement fee in
the same circumstances and for having had the employees' memberships
canceled for nonpayment of dues.
ss 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.
895
for exercising their Section 7 right of refraining from
continuing to support a strike against their employer.
(f) Threatening employees of MDC that it will
demand their discharge if they do not pay a membership
reinstatement fee without having initially notified the em-
ployees of their union duties giving rise to their obliga-
tion to pay such fee as a condition of employment.
(g) In any like or related manner restraining or coerc-
ing employees in the exercise of the nights 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 unlawful fines levied on its former
members , Fuentes, Rosales, Van de Sande , Miller,
Vargas, Morales, Meiendez, Gehr, and Barrios, for their
respective postresignation conduct of having worked for
MDC during the period of the strike that began March
25, 1981.
(b) Remove from its records and files any references
to the internal proceeding, ' respective fines and lawsuit
against the above-named employees for their respective
postresignation. conduct of having worked for MDC
during the period of the strike that began on March 25,
1981, and notify the employees in writing of the actions
taken in this regard.
(c) Refund to the above-named employees, in the
manner set forth in the remedy section above, any mem-
bership dues and fees, including reinstatement fees, or the
equivalent thereof, with interest, collected after our fail-
ure to advise them, after the imposition against each of
them of a prohibition from holding office in Respondent
for a 5-year, period, of their respective obligations under
the contractual union-security clause.
(d)' Preserve and, on request, make available to agents
of the Board, for examining and copying, if necessary, all
records and files that are relevant to a determination of
the amounts to be refunded herein.
(e) Post at its meeting hall, copies of the attached
notice marked "Appendix. '154 Copies of the notice, on
forms provided by the Regional Director for Region 31,
after being signed by the Respondent's authorized repre-
sentative, 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 materi-
al.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
54 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 "