Meat Cutters Local 81

National Labor Relations Board - Board Decisions

Apr 10, 1979

241 N.L.R.B. 821 (N.L.R.B. 1979)

MEAT CUTTERS UNION LOCAL 81. ETC.
Meat Cutters Union Local 81, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, and Empire Enterprises, d/b/a Tri-City
Meats. Case 19-CB-2893
April 10, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On March 8, 1978, Administrative Law Judge Da-
vid G. Heilbrun issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
with a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The case was initially submitted to the Board on a
stipulation of facts and a motion to transfer the case
to the Board. The motion was denied and the case
was remanded for a hearing before an Administrative
Law Judge, to whose Decision exceptions have been
taken. The Board has considered the record and at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The facts in this proceeding are essentially undis-
puted and are as follows:
The Respondent, Meat Cutters Union Local 81,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO (herein Respondent or
the Union), represents approximately 2,000 members
in the Seattle metropolitan area. At a union meeting
on March 15, 1977, a majority of those present voted
to enact the following bylaw provision:
RESOLUTION
WHEREAS: Local 81 was formed over 75
years ago, in April 1900, to improve the working
conditions in the meat industry in this area, and
WHEREAS: It has continually improved the
wages, hours and working conditions of its mem-
bership over the years, and
WHEREAS: It now faces greater concentra-
tion of opposition in its continuing effort to im-
prove the economic, social and working condi-
tions of the membership, and
WHEREAS: The objective set forth in the
Constitution of this Local Union imposes upon
each and every member the duty to exercise his
union citizenship to comply with union rules and
to support this Local Union,
NOW THEREFORE BE IT RESOLVED,
that in the event it become necessary for this Lo-
cal Union to take economic action against any
employer as a result of negotiations with Allied
Employers, Inc., or with respect to any other
Employer in the Meat Industry within its juris-
dictional area, it is hereby declared to be the pol-
icy of this Local Union that any member failing
to respect any picket line established by this Lo-
cal Union or any other bona fide picket lines
established by any other Union, shall be subject
to a fine of not less than two hundred and fifty
($250.00) dollars and not more than five hundred
($500.00) dollars for each violation found by the
Executive Board of this Local Union in accord-
ance with the Constitution of this Local Union
and of the Amalgamated Meat Cutters and
Butcher Workmen of North America, A.F.L.-
C.I.O.
In addition, it is declared to be the policy of this
Local Union that consistent with Article XVI
and XVII, of the Constitution of the Amalga-
mated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, that no employee
seeking to resign, requesting a Retiring Card or
requesting a Transfer Card shall be entitled to
receive such a card and his resignation shall be
of no force and effect during any period in which
economic action against the employee's current
employer is imminent or in progress. This policy
is declared in consideration of the fact that each
member obligated himself/herself upon becom-
ing a member to never knowingly wrong a fellow
member and further in consideration of the fact
that in the event of a strike and/or lockout all
members are relying upon all of the other mem-
bers for mutual aid and protection in accordance
with Section 7 of the National Labor Relations
Act and the fellow members' oath of obligation
upon becoming a member of this International
Union.
Prior to 1977, Respondent had negotiated on a
multiemployer basis with representatives of the meat
industry in the Seattle vicinity. In the spring of 1977,
several employers withdrew from multiemployer bar-
gaining, and Respondent commenced bargaining on
an individual basis with the various employers in the
industry.
Strike authorization was voted for all employers at
a union meeting held in April 1977. Pursuant to this
authorization, some strikes were called against var-
ious employers in the Seattle area, but not against
Empire, the Charging Party in this proceeding.
241 NLRB No. 125
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By way of background, we note that after the initi-
ation of the strike actions against these employers
who are not parties to these proceedings, several em-
ployees tendered their resignations to the Union, al-
though Respondent has not accepted these resigna-
tions and maintains that these individuals are still
members of the Union and subject to its jurisdiction.
No action has been taken against them other than a
record of their identities.
No employees have attempted to resign at Empire
(the Charging Party in this proceeding) under the new
bylaw provision. Respondent's secretary-treasurer
testified at the hearing on this matter that with the
general strike authorization in hand he is competent
to call a strike at any time. Empire and Respondent
are presently at an impasse of several month's dura-
tion. No employees of Empire have participated in
any strike action, have attempted to resign, or have
been subjected to discipline pursuant to the above
bylaw provision.
With respect to the foregoing facts, the Administra-
tive Law Judge concluded that the bylaw provision
enacted by Respondent in March 1977, banning res-
ignation at times when economic action by Respon-
dent is imminent or in progress, constituted restraint
and coercion within the meaning of Section
8(b)(l)(A) of the Act and ordered Respondent to
cease and desist from maintaining that bylaw "insofar
as resignations proffered since that date [date of the
enactment of the bylaw] have not been accepted."
Although the Administrative Law Judge acknowl-
edged that the absence of strike action at Empire and
the lack of any attempt to enforce the bylaw provi-
sion cast the question in "pure theoretical terms," he
nonetheless found that the bylaw provision, by its ex-
istence, violated Section 8(b)(1)(A) of the Act.
There is no evidence in the instant case of restraint
and coercion against any employee at Empire, and
there is no evidence warranting the assertion of our
jurisdiction with respect to employees of any other
employer.
There is no strike against Empire. No one has at-
tempted to cross a picket line at Empire. No em-
ployee at Empire has attempted to resign. Accord-
ingly, no employee at Empire is subject to any union
discipline under the bylaw provision here in question.
The Board does not decide cases cast "in pure theo-
retical terms" and, in the circumstances of this case,
we are constrained to conclude, without passing on
the rationale advanced by the General Counsel or the
Administrative Law Judge, that the case is not ripe
for decision and that there is no justifiable issue be-
tween the parties involved which may be resolved in a
Board proceeding. Accordingly, we shall dismiss the
complaint herein in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
MEMBER MURPHY, concurring:
I concur in the decision to dismiss the complaint
herein in its entirety, but not for the reason set forth
by my colleagues.
I find that the bylaw in issue herein contains a rea-
sonable restriction on the right of members under
Section 7 to resign their membership in the Union.
See my dissenting opinion in Machinists Local 1327,
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge 115 (Dalmo Vic-
tor), 231 NLRB 719 (1977). As the Supreme Court
said in N.L.R.B. v. Granite State Joint Board, Textile
Workers Union of America, Local 1029, AFL-CIO
[International Paper Box Machine Co.], 409 U.S. 213,
216 (1972), reiterating its view expressed first in Sco-
field v. N.L.R.B., 394 U.S. 423, 430 (1969):
§8(b)(1) leaves a union free to enforce a properly
adopted rule which reflects a legitimate union in-
terest, impairs no policy Congress has imbedded
in the labor laws, and is reasonably enforced
against union members who are free to leave the
union and escape the rule.
There is no question but that the bylaw here was
properly adopted and reflects a legitimate union in-
terest; the limitation on acceptance of resignation is
wholly restricted to periods when a strike is imminent
or in progress and thus is related to a critical union
concern; it does not, per se, impair any congressional
policy; and since it is settled that a reasonable rule
may be reasonably enforced, it may surely be adopted
and maintained in existence without enforcement.
For these reasons, I find that the General Counsel
has not established that a violation of the Act has
occurred, and I agree that the complaint must be dis-
missed.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard before me in Seattle, Washington, Decem-
ber 8, 1977, based on a complaint alleging that Meat Cut-
ters Union Local 81, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL CIO, herein
called Respondent, violated Section 8(bIl)(A) of the Act
by adoption and dissemination of a certain bylaw prospec-
tively affecting its members and employees of Empire En-
terprises, d/b/a Tri-City Meats, herein called Empire.
822
MEAT CUTTERS UNION LOCAL 81. ETC.
Upon the entire record, including testimony of one wit-
ness, and consideration of post-hearing briefs, I make the
following:
FINDINGS OF FACT AND RESULTANT
CONCLUSIONS OF LAW'
Respondent has 2,000 members employed in the Seattle
area meat industry by jobbers, wholesalers, and retailers.'
At a general membership meeting in March 1977, majority
vote among those present resulted in adoption of the fol-
lowing amendment to Respondent's bylaws:
RESOLUTION
WHEREAS: Local #81 was formed over 75 years
ago, in April 1900, to improve the working conditions
in the meat industry in this area, and
WHEREAS: It has continually improved the wages,
hours and working conditions of its membership over
the years, and
WHEREAS: It now faces greater concentration of
opposition in its continuing effort to improve the eco-
nomic, social and working conditions of the member-
ship, and
WHEREAS: The objective set forth in the Constitu-
tion of this Local Union imposes upon each and every
member the duty to exercise his union citizenship to
comply with union rules and to support this Local
Union,
NOW THEREFORE BE IT RESOLVED, that in
the event it become necessary for this Local Union to
take economic action against any employer as a result
of negotiations with Allied Employers, Inc., or with
respect to any other Employer in the Meat Industry
within its jurisdictional area, it is hereby declared to be
the policy of this Local Union that any member failing
to respect any picket line established by this Local
Union or any other bona fide picket lines established
by any other Union, shall be subject to a fine of not
less than two hundred and fifty ($250.00) dollars and
not more than five hundred ($500.00) dollars for each
violation found by the Executive Board of this Local
Union in accordance with the Constitution of this Lo-
cal Union and of the Amalgamated Meat Cutters and
Butcher Workmen of North America, A.F.L.-C.I.O.
In addition, it is declared to be the policy of this Local
Union that consistent with Article XVI and XVII, of
the Constitution of the Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO,
that no employee seeking to resign, requesting a Retir-
ing Card or requesting a Transfer Card shall be enti-
tled to receive such a card and his resignation shall be
of no force and effect during any period in which eco-
nomic action against the employee's current employer
Empire is engaged in the business of wholesaling mea~ products at Lacey,
Washington, having annual gross sales in excess of $500,000 and purchasing
goods valued in excess of $50,000 directly from States other than Washing-
ton. I find that Empire is an employer engaged in commerce within the
meaning of Sec. 2(6) and (7) of the Act and that Respondent is a labor
organization within the meaning of Sec. 25).
is imminent or in progress. This policy is declared in
consideration of the fact that each member obligated
himself/herself upon becoming a member to never
knowingly wrong a fellow member and further in con-
sideration of the fact that in the event of a strike and/
or lockout all members are relying upon all of the
other members for mutual aid and protection in ac-
cordance with Section 7 of the National Labor Rela-
tions Act and the fellow members' oath of obligation
upon becoming a member of this International Union.
Traditionally, Respondent had negotiated with an associ-
ation representing employers of the meat industry in the
vicinity of Seattle. Effective with bargaining to commence
in spring 1977, these employers withdrew from the associ-
ation and separate negotiations ensued. Strike authoriza-
tion was voted in April 1977 at a union meeting attended
by members of all employers with whom negotiations were
then in progress, including an indeterminate number of the
seven or eight employed at Empire. Subsequently, numer-
ous resignations were received from members employed by
firms other than Empire where strikes had actually com-
menced. A number of these individuals returned to work
across picket lines. No action beyond a record of identity
has been taken. Respondent has not accepted any tendered
resignations, with these individuals still considered mem-
bers of the organization and subject to its discipline. The
situation at Empire is impasse of several months' duration
(the contract having expired May 1, 1977), with none of the
employees there having attempted to resign. Sid Casey, Re-
spondent's financial secretary-treasurer, testified that cur-
rently he is competent to call any other strike based on the
existing authorization, should he choose to do so. Perusal of
bylaws is freely available to Respondent's members during
regular office hours, and a constitution (not identified in the
record as of the local or the international) is ordinarily
given each new member upon joining.
On these facts, the issue is posed of whether mere adop-
tion of this bylaw constitutes coercion against certain mem-
bers or whether it is protected as fair and reasonable by the
proviso to Section 8(b)(1)(A). The case serves to now re-
quire passing ". . . on the question of what, if any, provision
in a union's constitution or bylaws limiting the time or
manner of resignation would pass muster under the Act."
International Association of Machinists and Aerospace Work-
ers, Merit Graham Lodge No. 1871 (General Dyvnamics Cor-
poration, Electric Boat Division), 231 NLRB 727, 728, fn.9
(1977). Certain related principles are adequately settled.
One is that a "dual approach" must be utilized in viewing
Section 8(b)( ), that which distinguishes between internal
and external enforcement of the union rules. Scofield [Wis-
consin Motor Corp.] v. N.L.R.B., 394 U.S. 423 (1969). From
this, encroachment by unions on Section 7 rights of employ-
ees is plainly prohibited and so found in appropriate cases.
To more closely associate the case here, unions may disci-
pline members for failing to honor picket lines, but clearly
not so when a resignation has validly preceded the conduct.
Booster Lodge No. 405, Intl.-Assn. of Machinists and Aero-
space Workers Boeing Co.] v. N.L.R.B., 412 U.S. 84
(1973); Local Lodge No. 1994, International Association of
Machinists and Aerospace Workers, AFL CIO (O.K. Tool
Compa'v. Ic.), 215 NLRB 651 (1974). Finally, a precept
823
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that continually permeates this realm of law is the notion
established by the Supreme Court that union membership
may be less than "full" and indeed no more than a "whit-
tled down . . . financial core." N.L.R.B. v. Allis-Chalmers
Mfg. Co., 388 U.S. 175 (1967).
Forbearance by Respondent from strike action against
Empire or disciplinary action against the returnees has cast
the question in pure theoretical terms. Further analysis re-
lates equally to the nonstruck Empire and five other em-
ployers of the 20-22 jobbers in environs of Olympia, Wash-
ington, because deterred resignations are equatable with
perilous ones for Section 8(b)(1)(A) purposes. The buildup
of backlogged resignation requests, now totaling 50, is pre-
cisely the sort of individual right embraced in the Supreme
Court's depiction of how passage of time in the context of
one's employment gives rise to "events" that must con-
stantly be reappraised by an employee. N.L.R.B. v. Granite
State Joint Board, Textile Workers Union of America, Local
1029, AFL-CIO [International Paper Box Machine Co.],
409 U.S. 213 (1972). Paradoxically, both the concurring and
dissenting opinions in this case support the point even more
vividly with language contemplating an untrammeled free
choice to "abandon the privileges of union membership"
and, respectively, envisioning limitation of this right during
the particularly important "midcourse" phase of an actual
strike. Granite State, 409 U.S. at 218, 221-222. With no
collective-bargaining agreement to solidify a future outlook
on terms and conditions of employment, the basic right of
refraining from self-organization set forth in Section 7 must
be given its due. To hold otherwise would freeze persons
into an initially voluntarily assumed membership under cir-
cumstances which might, as here, lead some to conclude
their better course was preparation for a role different than
what the labor organization would prefer. The ordinary
meaning of "imminent" connotes likelihood of occurrence
"at any moment" or figuratively "hang[ing] over one's
head." The American College Dictionary, Random House
(1970), page 604. Strike sanction existing latently for nearly
I year demonstrates that Respondent was not, in truth, con-
cerned with unexpected defections of Empire employees at
its moment of greatest need for solidarity but instead chose
simply to perpetuate an ideology that persons once mem-
bers were locked into the status. 2
Additionally, the bylaw is couched in terms of consis-
tency with certain Articles of the international union's con-
stitution. neither of which was put into the record. As with
circumstances in Local 1384, United Automobile, Aerospace,
Agricultural Implement Workers, UA W (Ex-Cell-O Corpora-
tion), 227 NLRB 1045 (1977), there is no reason to assume
that members assimilated the content of such Articles. The
consequence of this unknown must be borne by the Union,
for to choose otherwise would require rank-and-file employ-
ees to resign at risk of whether some literal restrictions
would frustrate their claimed wish for timely severance
from membership.
2 The situation is akin to International Brotherhood of Electrical Workers,
Local Union No. 34, AFL-CIO (Protection Alarms, Inc.), 208 NLRB 639,
(1974) where an inferred "illegal motivation" was shown from tactics facially
different, and to the "different tack" taken in General Dynamics, supra, where
acts of resignation during a strike were equated with breaches of member-
ship fidelity.
Finally, the fact that 75 years have passed without Re-
spondent perceiving any special need to restrict attempted
resignations gives rise to the less than "full" membership
strictures of Allis-Chalmers, supra, strongly suggesting that
persons not originally choosing devout membership (as rou-
tinely contrasted with union-security features requiring
dues payment) under this restriction are free from its im-
pact now. In practical terms sufficient for decision, the by-
law, coupled with passage of time since enactment, must be
voided for persons against whom it might work. The rem-
edy here should be narrowly tailored in terms of this par-
ticular amendment, both because implementation has not
been attempted and because this decision expresses no view
on any "tack" involving appreciable variation in phrasing
or justification.
Accordingly, I render the conclusion of law that Respon-
dent, by adopting and disseminating advice of its March 15,
1977, bylaw, has restrained and coerced employees in the
exercise of rights guaranteed under Section 7 of the Act,
thereby engaging in unfair labor practices within the mean-
ing of Section 8(b)(I )(A) of the Act.
Disposition
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER3
The Respondent, Meat Cutters Union Local 81, Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Lacy, Washington, its officers, agents,
and representatives, shall:
1. Cease and desist from maintaining its March 15, 1977,
bylaw insofar as resignations from membership proffered
since that date have not been accepted.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Post at Respondent's business offices and meeting
halls copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Regional
Director for Region 19, after being duly signed by Respon-
dent's authorized representative, shall be conspicuously
posted by it immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter, in all places
where notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
4 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.
824
MEAT CUTTERS UNION LOCAL 81, ETC.
(b) Disseminate content of such notice by printing it in
the next membership newsletter of general distribution.
(c) Furnish the Regional Director signed copies of such
notice for posting by Empire, if it is willing, at places where
it customarily posts notices to employees.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain in effect the bylaw passed
March 15, 1977, nor further delay the acceptance of
attempted resignations from membership that have
been received since that date.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of rights guaran-
teed by the National Labor Relations Act, as
amended.
MEAT CUTTERS UNION LOCAL 81, AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF
NORTH AMERICA, AFL-CIO
825