Operating Engineers Local 12 (Associated Engineers)

National Labor Relations Board - Board Decisions

Feb 19, 1987

282 N.L.R.B. 1337 (N.L.R.B. 1987)

OPERATING ENGINEERS LOCAL 12 (ASSOCIATED ENGINEERS)
International Union of Operating Engineers, Local
12 and Associated Engineers and Hicks &
Hartwick .. Cases 31-CB-4062-1 and 31-CB-
4062-2
19 February 1987
DECISION AND ORDER
By MEMBERS JOHANSEN, BABSON, AND
STEPHEP10S,
On 19 March 1982 Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The General Counsel and the Respondent Union
filed exception's and supporting briefs, the Charging
Parties filed exceptions and a supporting brief, and
the Respondent Union filed an answering brief to
the Charging Parties' cross-exceptions.
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 to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The Respondent had a collective bargaining
agreement with Charging Parties Associated Engi-
neers and Hicks & Hartwick, which expired on 15
August 1980. On 17 August 1980 the Respondent
began a strike against the Charging Parties. That
strike was still in effect at the time of the hearing
in 1981. Before April 1980, the Operating Engi-
neers' constitution, to which the Respondent is
bound, contained no 'limitation on its members'
right to resign. In April 1980 the International met
in convention. At that convention, the Internation-
al's constitution was amended by, inter alia, the ad-
dition of a provision relating to resignation from
membership. That provision provided in pertinent
part:
Resignation from Membership
Notwithstanding any other provision of this
Constitution, members shall' have the right to
resign from membership subject to the follow-
ing conditions:
Notice of the intent to resign must be given to
the member's Local Union no less then thirty
(30) days prior to the effective date of the res-
ignation;
No resignation shall be accepted unless all, of
the member's financial obligations within this
International Union are paid and all charges
brought against that member have been heard
and finally determined;
1337
Locals have the right to delay the effective
date of resignation of any member whose res-
ignation is tendered within fifteen (15) days
prior to the commencement of a strike by that
Local or during the pendency of a strike; but
in the event of such delay the resignation shall
become effective immediately after the strike is
ended. . . .
Employees James Imbiorski, Donald Tabor,
Thomas Noreen, Bruce Hart, and Luis Flores were
employed by the Charging Parties and were mem-
bers of the Respondent. All five submitted their
resignations in late August 1980, after the strike
began, and they began working at the Charging
Parties. All except Flores later received letters
dated 29 December 1980 from the Respondent,
which set forth the restrictions on resignation as
contained in the amended constitutional, provision
and further indicated that, pursuant to the constitu-
tion, their resignations were being delayed. They
were reminded that, no union member was permit-
ted to work until the dispute was resolved.' The
employees continued to work and the Respondent
later charged four of the employees2 for working
for a struck employer, and tried and fined three of
the four.3
The judge found that the Respondent had violat-
ed Section 8(b)(1)(A) of the Act by summoning
employees to trial and by threatening to fine, and
fining, them for working for a struck employer
after their resignation from Local 12. The judge
found that although the five discriminatees had
constructive notice of the amended constitutional
provision, the constitutional restriction on resigna-
tion itself was overbroad and therefore ineffective.
The judge read the Union's constitution as allow-
ing a union to refuse to accept a tendered resigna-
tion for an indefinite time, opining that this could
lead to a situation where a member could not
resign from a union during his entire working life.
The judge found such a restriction unreasonable.
He thus found that the resignations were effective
when tendered and that the Respondent violated
the Act by subjecting the five discriminatees, who
were nonmembers by virtue of their valid resigna-
tions, to internal union disciplinary proceedings
and fines because they had exercised their Section
7 rights in working for a struck employer.
We agree with the judge's conclusion that the
Respondent violated the Act, as alleged, but do so
only for the reasons that follow.
1 Flores never received such a letter
2 They were Imbiorskl, Tabor, Noreen, and Flores
3 They were Imbiorski, Tabor; and Noreen. The charges against Flores
were withdrawn before the union trial. Hart, who had received the De-
cember 1980 letter, was never charged
282 NLRB No. 180
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequent to the issuance of the judge's deci-
sion , the Board held in Machinists Local 1414 (Neu-
feld Porsche-Audi), 270 NLRB 1330 (1984), that any
restrictions placed by a union on its members' right
to resign are unlawful. The Supreme Court ap-
proved this interpretation of Section 8(b)(1)(A) of
the Act in Pattern Makers League v. NLRB, 473
U.S. 95 (1985). It follows from these holdings that
the Respondent violated Section 8(b)(1)(A) by im-
posing fines, threatening the imposition of a fine,
and summoning members for trial for working for
a struck employer after they had submitted valid
resignations.4
The judge also found that the Respondent's fail-
ure to accept the resignations of the employees did
not violate Section 8(b)(1)(A) of the Act. We do
not agree with his finding. In reaching his decision,
the judge relied on Graphics Arts Local 32B (George
Banta Co.), 250 NLRB 850 (1980). Subsequent to
the judge's decision, however, the Board in Typo-
graphical Union (Register Publishing), 270 NLRB
1386 (1984), overruled George Banta and held that
a union's refusal to accept the resignation of its
members was an independent violation of Section
8(b)(1)(A) of the Act. The reasoning of Register
Publishing is fully applicable here, and we thus find
that the Respondent violated the Act by refusing
to accept the resignations tendered by the five em-
ployees here.
AMENDED CONCLUSIONS OF LAW
Add the following as paragraph 4 to the judge's
conclusions of law and renumber the subsequent
paragraph accordingly.
"(4) Local 12 violated Section 8 (b)(1)(A) of the
Act by refusing to accept the employees ' resigna-
tion from membership."
ORDER
The National Labor Relations Board orders that
the Respondent, International Union of Operating
Engineers, Local 12, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
* Because the Respondent 's restriction on members ' resignations is in-
valid in any event, we find it unnecessary to decide whether the Re-
spondent, as the General Counsel and the Charging Parties contended,
did not give the discriminatees adequate notice of the amendment to the
International's constitution on this subject The issue of notice has been
rendered irrelevant by the Supreme Court's decision in Pattern Makers
Consistent with the decisions in Auto Workers Local 73 (McDonnell
Douglas), 282 NLRB 466 (1986), and Neufeld Porsche-Audi, supra, we
shall order the Respondent to cease and desist from maintaining the re-
striction on resignation and to remove it from its governing documents
Although there is no separate allegation that the maintenance of the pro-
vision was unlawful , for the reasons set out in Neufeld Porsche-Audi, we
find that no impediment to including a cease-and-desist provision here
See 270 NLRB at 1336
(a) Maintaining in its governing documents arti-
cle XXIV, subdivision 7, section (j), of the consti-
tution of the International Union of Operating En-
gineers to the extent it provides:
Resignation from Membership
Art. XXIV.
Subdiv. 7
Section (j)
Notwithstanding any other provision of this
Constitution, members shall have the right to
resign from membership subject to the follow-
ing conditions:
Notice of the intent to resign must be given
to the member's Local Union no less then
thirty (30) days prior to the effective date of
the resignation;
No resignation shall be accepted unless all
of the member's financial obligations within
this International Union are paid and all
charges brought against that member have
been heard and finally determined;
Locals have the right to delay the effective
date of resignation of any member whose res-
ignation is tendered within fifteen (15) days
prior to the commencement of a strike by that
Local or during the pendency of a strike, but
in the event of such delay the resignation shall
become effective immediately after the strike is
ended. . . .
(b) Summoning for trial or threatening to fine or
fining James Imbiorski, Donald Tabor, or Thomas
Noreen for working for a struck employer after
their valid resignations from the Union.
(c) Summoning for trial or threatening to fine
Luis Flores for working for a struck employer
after his valid resignation from the Union.
(d) Threatening to fine Bruce Hart for working
for a struck employer after his valid resignation
from the Union.
(e) Subjecting any employee to union discipline
for postresignation working during a strike.
(f) Refusing to accept employees' resignations
from membership in the Union.
(g) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Remove from its governing documents the
portion of art. XXIV, subdiv. 7, sec. (j), of the con-
stitution of the International Union of Operating
Engineers set forth above.
OPERATING ENGINEERS LOCAL 12 (ASSOCIATED ENGINEERS)
(b) Rescind and remove from- its records all
charges and fines against James Imbiorski, Donald
Tabor, and Thomas Noreen that relate to work
done for a struck employer by those individuals
after their valid resignations from the Union.
(c) Post at its business office and meeting halls
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 31, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to "ensure that the notices are' not altered, defaced,
or covered by any other material.
(d) Deliver to the Regional Director for Region
31 signed copies of the notice in sufficient number
to be posted by Associated Engineers and Hicks &
Hartwick, if they are'' willing to post them, in all
places where notices to employees are customarily
posted.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 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."
APPENDIX
NOTICE. To EMPLOYEES
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.
AVE WILL NOT maintain in our governing docu-
ments art. XXIV, subdiv. 7, sec. (j), of the constitu-
tion of the International Union of Operating Engi-
neers to the extent it provides:
Notwithstanding any other provision of this
Constitution, members shall have, the right to
resign from membership subject to the follow-
ing conditions:
Notice of the intent to resign must be given
to the member's Local Union no less then
thirty (30) days prior to the effective date of
the resignation;
1339
No resignation shall be accepted unless all
of the member's financial obligations within
this International Union are paid and all
charges brought against that member have
been heard and finally determined;
Locals have the right to delay the effective
date of resignation of any member whose, res-
ignation is tendered within fifteen (15) days
prior to the commencement of a strike by that
Local or during the pendency of a strike, but
in the event of such delay the resignation shall
become effective immediately after the strike is
ended.
WE WILL NOT summon for trial or threaten to or
fine James Imbiorski, Donald Tabor, or Thomas
Noreen for working for a struck employer after
their valid resignations from our Union.
WE WILL NOT summon for trial or threaten to
fine Luis Flores for working for a struck employer
after his valid resignation from our Union.
WE WILL NOT threaten to fine Bruce Hart for
working for a struck employer after his valid resig-
nation from our Union.
WE WILL NOT subject you to union discipline for
postresignation working during a strike.
WE WILL NOT refuse, to accept your resignations
from membership in the Union.
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 the portion of article XXIV,, subdivision 7,
section (j), of the constitution of the International
Union of Operating Engineers, set forth above.
WE WILL rescind and remove from our records
all charges and fines against James Imbiorski,
Donald Tabor, and Thomas Noreen that relate to
work done for a struck employer by those individ-
uals after their valid resignations from our Union.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, LOCAL 12
Joshua Javits, Esq., for the General Counsel.
Alexander B. Cvitan, Esq. (Reich, Adell & Crost), of Los
Angeles, California, for the Union.
James T. Winkler, Esq. (Atkinson, Andelson, Loya, Ruud
& Romp), of Long Beach, California, for the Charging
Parties.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
This case was tried at San Bernardino , California, on De-
cember 10, 1981. On February' 3, 1981, Associated Engi-
neers filed the charge in Case 31-CB-4062-1 and on the
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same date Hicks & Hartwick filed the charge in Case 31-
CB-4062-2. An order consolidating cases and a com-
plaint issued on March 31, 1981. The complaint as
amended at the hearing alleges that International Union
of Operating Engineers, Local 12 (Local 12 or the
Union), violated Section 8(b)(1)(A) of the National
Labor Relations Act.
Issues
The primary issues are whether Local 12 violated Sec-
tion 8(b)(1)(A) of the Act by (1) refusing to accept the
resignations from membership of five employees who
worked for a struck employer and (2) summoning those
individuals to trial and threatening to and fining them be-
cause they worked for the struck employer.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, Local 12, and the Charg-
ing Parties . On the entire record' on the case and from
my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
Associated Engineers, a California corporation with an
office and place of business in Ontario, California, is en-
gaged in the business of providing surveying and civil
engineering services During the 12-month period ending
November 30, 1981, Associated Engineers provided serv-
ices valued in excess of $50,000 for other enterprises
within California, which enterprises themselves meet one
of the Board's direct jurisdictional standards.
Hicks & Hartwick, a California corporation with an
office and place of business in Redlands, California, is en-
gaged in the business of providing surveying and civil
engineering services. During the 12 months ending No-
vember 30, 1981, Hicks & Hartwick provided services
valued in excess of $50,000 for other enterprises within
California, which enterprises themselves meet one of the
Board's direct jurisdictional standards.
The complaint as amended alleges and the answer as
amended admits that Associated Engineers and Hicks &
Hartwick each is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Local 12 is a labor organization within the meaning of
Section 2(5) of the Act
I The unopposed motion of counsel for the Charging Parties to correct
the transcript of the record is granted by changing the punctuation and
capitalization on LL 14 through 18 of p 30 to read "Impasse was
reached between the Respondent Union and the Charging Parties. Asso-
ciated Engineers and Hicks & Hartwick on or about August 15, 1980 No
request to bargain had been made by any parties since said date "
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Bargaining History, the Strike, the Letters of
Resignation, and Local 12's Responses
Local 12 had a collective-bargaining agreement with
Associated Engineers and Hicks & Hartwick that expired
on August 15, 1980. Prior to that date the parties en-
gaged in collective bargaining but an impasse was
reached Since August 15, 1980, none of the parties have
requested bargaining and there has been no bargaining.
About August 15, 1980, Local 12 took a membership
vote and decided to strike Associated Engineers and
Hicks & Hartwick. That strike began about August 17,
1980, and as of December 10, 1981, the date of the hear-
ing, the strike was still in effect.
The five individuals who are alleged in the complaint
to be discriminatees all submitted written resignations to
Local 12 after the strike began and all of them worked
during the strike. Local 12 refused to accept all the res-
ignations and took disciplinary actions against some of
those individuals. The individuals were James Imbiorski,
Donald Tabor, Thomas Noreen, Luis Flores, and Bruce
Hart.
Imbiorski has been employed by Associated Engineers
for about 7 years. He became a member of Local 12 in
1972 In late August 1980, within a few weeks after the
beginning of the strike, he sent a letter dated August 12,
1980, to Local 12, which read. "I hereby resign my
membership in your labor organization effective immedi-
ately." Though Local 12 received that letter on Septem-
ber 2, 1980, Imbiorski did not receive a response from
Local 12 until December 29, 1980 On that date he re-
ceived a letter that read-
This Local Union is in receipt of your letter
dated 8-12-80 where you requested to resign your
membership in the International Union of Operating
Engineers, Local No. 12
In accordance with Article XXIV, Subdivision 7,
Section (j) of the Constitution of the International
Union of Operating Engineers; which states . . . .
Resignation from Membership-Section (j). Not-
withstanding any other provision of this Constitu-
tion, members shall have the right to resign from
membership subject to the following conditions:
"Notice of the intent to resign must be given to
the member's Local Union no less than thirty (30)
days prior to the effective date of the resignation:
"No resignation shall be accepted unless all of
the member's financial obligations within this Inter-
national Union are paid and all charges brought
against that member have been heard and finally de-
termined;
"Locals have the right to delay the effective date
of resignation of any member whose resignation is
tendered within fifteen (15) days prior to the com-
mencement of a strike by the Local or during the
pendency of a strike and etc. . . "
Since your letter of resignation was received by
the Local Union after an impasse had been reached
in negotiation with your Employer, and Local 12
OPERATING ENGINEERS LOCAL 12 (ASSOCIATED ENGINEERS) 1341
had called a strike against your Employer we have
delayed your resignation in accordance with Article
XXIV, Subdivision 7, Section (I).
We do not have a Collective Bargaining Agree-
ment with Associated Engineers, and no members
of the International Union of Operating Engineers,
Local No. 12 are permitted to work for this Com-
pany until the dispute is resolved.
You should contact your nearest Union Dispatch-
ing Office, where we may assist you in securing
other employment.
Fraternally,
Wm C. Waggoner, Business Manager
I.U.O.E., Local Union No. 12
and General Vice-President
/s/ Dale I. Vawter
By. Dale I. Vawter,
Recording-Corresponding Secretary
I.U.O.E., Local Union No. 12
On January 28, 1981, Thomas Wadman, a survey repre-
sentative of Local 12, filed a charge against Imbiorski al-
leging that Imbiorski violated article IV, section 6(n) of
Local 12's bylaws, which read: "No member shall work
on a job where a strike is called or refuse to come off
when notified by the authorized Business Representative
or Officer of the local union ." The charge went on to
state that Wadman personally gave notice of the strike to
Imbiorski in August 1980 and that at 7.30 a.m. on Janu-
ary 27, 1981, Imbiorski was observed working for the
struck employer. By letter dated January 30, 1981, Local
12 notified Imbiorski about the charge against him and
instructed him to appear before a pretrial board on Feb-
ruary 19, 1981, to answer the charge. The letter went on
to state that if he did not appear action could still be
taken against him. On March 17, 1981, Local 12 sent a
second letter to Imbiorski notifying him of the charge
and instructing him to present himself at a membership
meeting on April 21, 1981, to respond to the charge.
Once again the letter stated that Imbiorski's failure to
appear would not prevent action against him. On May 4,
1981, Local 12 sent a third letter to Imbiorski notifying
him of the charge and demanding that he present himself
at a membership meeting on May 19, 1981, to answer the
charge. Apparently, Imbiorski ignored all the letters be-
cause on June 24, 1981, Local 12 sent yet another letter
demanding that he present himself to a membership
meeting on July 21, 1981, to answer the charge By letter
dated July 24, 1981, Local 12 informed Imbiorski that he
had failed to appear in response to the charge as request-
ed, that his trial in connection with the charge was held
at a membership meeting on July 21, 1981, that he had
been found guilty as charged, and that he was fined
$1500 with $750 of that amount being suspended for 3
years provided no further violations occurred As of the
date of the trial, that fine and the other fines mentioned
below had not been paid. There is no evidence in the
record to indicate that the Union has made any attempt
to collect those fines
Donald Tabor was employed by Associated Engineers
about 5 years ago and he joined Local 12 in 1963 By
letter dated August 28, 1980, Tabor notified the Union
that he resigned his membership in Local 12. The resig-
nation letter used the identical language that had been
used by Imbiorski. Although Local 12 received that
letter on September 2, 1980, it did not respond until De-
cember 20, 1980, when it sent Tabor the same letter that
it had sent to Imbiorski, which is set forth in full above.
On January 28, 1981, survey representative Wadman
filed charges against Tabor that paralleled the ones filed
against Imbiorski. The charge against Tabor alleged that
Tabor had been seen working for a struck employer on
January 27, 1981. By letter dated January 30, 1981 Local
12 informed Tabor of the charge and instructed him to
appear before a pretrial board on February 19, 1981 By
letter dated February 12, 1981, Tabor notified the Union
that he believed that the charges were invalid because of
his resignation letter By letter dated March 17, 1981,
Local 12 instructed Tabor to appear at a membership
meeting on April 21, 1981, in connection with the
charge By letter dated May 19, 1981, Local 12 notified
Tabor that he had failed to appear as requested, that his
trial had taken place on April 21, 1981, that he was
found guilty as charged, and that he was assessed a fine
of $1000 with $250 of that fine suspended for 4 years
provided no further violations occurred.
Thomas Noreen has been employed by Associated En-
gineers for about 4 years and he joined the Union in
1977. On August 28, 1980, he sent his resignation to
Local 12, using the same language as the others. Local
12's first response was the December 29, 1980 letter,
which was the same that had been sent to Tabor and Im-
biorski. On January 28, 1981, Wadman filed charges
against Noreen, which paralleled the other charges The
charge against Noreen stated that he had been seen
working for the struck employer on January 27, 1981.
By letter dated January 30, 1981, Noreen was notified of
the charge and told to report to a pretrial board on Feb-
ruary 19, 1981. By letter dated March 17, 1981, Local 12
told Noreen to report to a membership meeting on April
21, 1981, to respond to the charge By letter dated May
19, 1981, Local 12 notified Noreen that he had failed to
appear as requested, that the trial took place on April 21,
1981, that he was found guilty, and that he was fined
$1000 with $250 of the fine to be suspended for 4 years
provided no further violations occurred
Luis Flores has been employed by Associated Engi-
neers since 1955. He Joined Local 12 in 1956. On August
28, 1980, he used identical language to the others in noti-
fying Local 12 of his resignation. Local 12 received his
letter on September 3, 1980. The parties stipulated that
Flores did not receive any reply or other communication
from Local 12 until he received a letter dated January
30, 1981, which is discussed below. It thus appears that
he did not receive a letter that was similar to the Decem-
ber 29, 1980 letter that had been sent to Imbiorski,
Tabor, and Noreen On January 28, 1981, Wadman filed
charges against Flores that paralleled the charges against
the others The charges alleged that Flores had been
seen working for a struck employer on January 27, 1981.
By letter dated January 30, 1981, Local 12 notified
Flores of the charges against him and instructed him to
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present himself before a pretrial board on February 19,
1981. By letter dated March 26, 1981, Local 12 notified
Flores that the charges against him had been withdrawn.
There is no indication in the record that any further
action was taken with regarding to that matter.
Bruce Hart has been employed by Hicks & Hartwick
since 1977. He joined the Union in November 1979. By
letter dated August 28, 1980, Hart notified Local 12 that
effective immediately he withdrew from the Operating
Engineers. Local 12 received the letter on September 15,
1980, but did not respond until December 29, 1980, when
it sent Hart a letter similar to that which had been sent
on that date to Imbiorski, Tabor, and Noreen There is
no indication in the record that Local 12 took any action
thereafter with regarding to Hart
B. The Change in the International Constitution
Local 12 is a local of the International Union of Oper-
ating Engineers (the International). Local 12 is bound by
both its own bylaws and by the International's constitu-
tion. Members of Local 12 are also members of the Inter-
national and Local 12 provides its members with copies
of the International constitution on request 2
Prior to April 1980 the International's constitution did
not contain any limitations on a member's right to resign
The International met in convention in Hawaii in April
1980. At that convention the constitution was amended,
inter alia, by the addition of a provision relating to resig-
nation from membership That provision reads:
mencement of a strike by that Local or during the
pendency of a strike, but in the event of such delay
the resignation shall become effective immediately
after the strike is ended .
The complaint does not allege that the provisions of
the amended International constitution that restrict resig-
nation are in themselves unlawful.3 Indeed the Interna-
tional is not even named as a party to this proceeding.
Sometime prior to the April 1980 International con-
vention, Local 12 sent ballots to all of its members, in-
cluding the five alleged discriminatees, for the election of
delegates to that convention.4 Dale Vawter, Local 12's
recording/corresponding secretary, attended the Interna-
tional convention and participated as a delegate.
The June 1980 edition of the International 's magazine,
which contained a reprint of the transcript of the con-
vention, was sent to all members of the International in-
cluding the five alleged discriminatees.5 I do not rely,
however, on the June 1980 copy of the International
magazine on the question of notice. The magazine was a
176-page transcript of a 4-day convention It contained
no index and was so organized to be almost useless to a
member in obtaining information on an issue such as res-
ignation limitations.
All five of the alleged discriminatees credibly testified
that they had no knowledge of any restrictions on their
right to resign or of any constitutional amendments until
Resignation from Membership
Art XXIV.
Subdiv. 7.
Section (1).
Notwithstanding any other provision of this Con-
stitution, members shall have the right to resign
from membership subject to the following condi-
tions:
Notice of the intent to resign must be given to
the member's Local Union no less than thirty (30)
days prior to the effective date of the resignation;
No resignation shall be accepted unless all of the
member's financial obligations within this Interna-
tional Union are paid and all charges brought
against that member have been heard and finally de-
termined;
Locals have the right to delay the effective date
of resignation of any member whose resignation is
tendered within fifteen (15) days prior to the com-
2 The parties stipulated that the Charging Parties' attorney, James
Winkler, would have testified if he were called to do so, that he went to
the Department of Labor in Los Angeles in August 1980 and January
1981 to inspect the constitution and bylaws of the International, and that
on both occasions he found the constitution that preceded the April 1980
convention
Flores credibly testified that before he sent his letter of resignation he
asked Company Attorney Winkler whether there were any restrictions
on his resigning from the Union, and that Wmklei replied by saying that
he had looked it up and there was nothing there that said he could not
resign Flores acknowledged that he did not ask the Union about resigna-
lions
3 In his posttrial memorandum counsel for the General Counsel states
The mere maintenance of a constitutional provision restricting the
periods in which members can resign is not in and of itself violative
of Section 8(b)(1)(A) of the Act See Graphic Arts International
Union, Local 32B, AFL-CIO-CLC (Banta Division of George Banta
Company, Inc), 250 NLRB 850 Thus, counsel for the General
Counsel does not seek a remedy imposing an injunction on imple-
mentation of the provision in futuro Counsel for the General Counsel
nonetheless contends that the restrictions embodied in the constitutional
provision are unreasonably overbroad and that the provision should be
treated as invalid as applied to the employees named in the complaint
who attempted to resign from the Union. Thus by refusing to accept their
resignations, by ordering them to appear before union tribunals, by
threatening to impose and actually imposing fines on the resigned mem-
bers, the Union violated Section 8(b)(l)(A) of the Act
4 This finding is based on credited testimony of Dale Vawter, the
recording/corresponding secretary of Local 12 Flores testified that he
received the ballot but did not recall whether he voted Hart also testi-
fied that he received ballots from Local 12 but that he did not vote Im-
biorski testified that he did not see the ballot, but that he considered bal-
lots and such matters as the International magazine to be junk mail that
might be thrown out by his wife or children without his looking at them
Noreen testified that he might have received the ballot, but that he did
not recall it and that International affairs of the Union were no real con-
cern of his Tabor testified that he received ballots from time to time, but
he did not recall seeing that ballot He also averred that he rarely read
magazines from the International and normally threw them in the trash
5 This finding is based on the credited testimony of Vawter Vawter
was not an officer of the International, but he has been a member of the
International for 26 years and he has been a business representative, dis-
trict representative, or officer of Local 12 for about 15 years He was
fully familiar with the practices of the International and he credibly testi-
fied that every member of the International is mailed a copy of the
monthly International magazine Some of the alleged discriminatees testi-
fied that they did not recall seeing that issue of the magazine and others
testified that they did not receive it However, in view of the testimony
of those witnesses that indicated a complete lack of interest in the inter-
national's affairs and in view of Vawter's credible testimony that the
magazine was sent to all members, it appears that they were sent copies,
but simply did not take any notice of the magazine
OPERATING ENGINEERS LOCAL 12 (ASSOCIATED ENGINEERS)
Local 12 sent the December 29, 1980 letter that is quoted
above.6
C. Analysis and Conclusions
1. The allegation that the failure to accept the
resignations violated Section 8(b)(1)(A) of the Act
In Graphic Arts Local 32B (Banta Co.), supra at 851,
the Board set forth the controlling law on this issue. The
facts of that case were as follows. A union refused to
accept resignations from members because its constitu-
tion stated that members could not resign unless they left
the industry. After refusing to accept some tendered res-
ignations from employees, those employees were threat-
ened with fines and summoned to appear before a union
executive board because they had crossed a picket line
after they tendered their resignations. The Board found
that because the constitution did not permit voluntary
resignation while a member was an employee in the in-
dustry, the members could resign at will, and that the
union violated Section 8(b)(1)(A) by summoning the
former members to appear before the executive board
and by threatening to fine them for crossing a picket line
after their resignations were effective.? The Board, how-
ever, specifically held that the refusal of the union to
accept the resignations did not constitute a violation of
Section 8(b)(1)(A) of the Act. In the Board's words:
We agree with the Administrative Law Judge's
finding that, because Respondents' constitution and
bylaws do not permit voluntary resignation while a
member is an employee in the industry, a member
may, in effect, resign at will.9 Therefore, the em-
ployees' letters of resignation constituted effective
resignations as of the time of service on the respec-
tive Locals. We also agree with the Administrative
Law Judge that the statements by Respondents'
agents to the news media constituted threats to fine
former members for conduct occurring after their
effective resignation from Respondent Locals in
violation of Section 8(b)(1)(A) of the Act.10 We do
not agree with the Administrative Law Judge's con-
clusion, however, that because of these threats Re-
spondents violated the Act by refusing to accept the
validly proffered written resignations of former
members. The proviso to Section 8(b)(1)(A) permits
a labor organization "to prescribe its own rules with
respect to the acquisition or retention of member-
ship therein"; therefore, Respondents' refusal to
accept the effective resignations is not a violation of
6 The record is somewhat confused regarding Flores There was no
stipulation that he received the letter in December 1980 and he testified
that he never was told by Local 12 that his right to resign from the
Union was restricted to certain periods However, when asked whether
he remembered receiving a letter from the Union in December 1980 he
testified that he remembered something like that
That case also involved some employees who were subjected to in-
ternal union discipline because of actions they might have taken before
their resignations became effective That part of the decision has no ap-
plication to the instant case
1343
the Act because it related directly to the retention
of membership. I 1
9 United Paperworkers International Union. Local No 725, AFL-
CIO (Boise Southern Company), 220 NLRB 812 (1975) Member
Jenkins , who dissented in International Association of Machinists and
Aerospace Workers, Merrit Graham Lodge No 1871 (General Dy-
namics Corporation, Electric Boat Division), 231 NLRB 727 (1979),
does not adopt the Administrative Law Judge' s reliance on that
case inasmuch as the restriction against resignations in that case re-
lated only to resignations after a strike had been called
10 E g , Local 1012. United Electrical, Radio & Machine Workers
of America (UE) (General Electric Company), 187 NLRB 375
(1970)
See, e g , Bookbinders Union Local 60 (Interstate Book Manu-
facturers, Inc), 203 NLRB 732, 735 (1973)
In Machinists Lodge 727 (Lockheed Corp.), 250 NLRB
303 (1980), Administrative Law Judge William L.
Schmidt found that a refusal to accept a tendered resig-
nation was a violation of Section 8(b)(1)(A) and the
Board adopted his decision without comment. However,
in view of the fact that the Graphic Arts case issued after
the Machinists case, the fact that the Board specifically
addressed the question in the Graphic Arts case , and the
similarity of the factual situations in the instant case and
the Graphic Arts case, I find that the law set forth in the
Graphic Arts case is controlling.8 I therefore recommend
the dismissal of those portions of the complaint that al-
leged that the Union violated Section 8(b)(1)(A) of the
Act by refusing to accept the resignations.
2. The notice problem
The General Counsel and the Charging Party contend
that a modification of the International constitution to
limit a member's right to resign cannot be used as a de-
fense in this case because the alleged discriminatees did
not receive adequate notice of the change in the constitu-
tion. On the facts of this case that argument is not per-
suasive.
The change in the constitution related to retention of
membership. Though it could have an impact on future
disciplinary proceedings it was not in itself a disciplinary
measure, but was an internal membership regulation of
general applicability that was passed before the strike in
the instant case began. There is no indication in the
record that the procedures followed in amending the
constitution or in notifying members violated any proce-
dural or notice requirements set forth in the constitution
regarding amendments. The union members selected the
delegates for the constitutional convention It was an
8 The Board's holding in Graphic Arts appears to be consistent with the
policy set forth by the Supreme Court in NLRB Y Boeing Co, 412 U S
67 (1973 ), in which the Court stated
In Scofield we decided that Congress intended to distinguish between
the external and the internal enforcement of union rules , and that
therefore the Board would have authority to pass on those rules af-
fecting an individual's employment status but not on his union mem-
bership status 394 U S , at 428-430
The Supreme Court also held "that sec 8 (b)(1)(A) was not intended to
give the Board power to regulate internal union affairs, including the im-
position of disciplinary fines, with their consequent court enforcement,
against members who violate the union 's constitutions and bylaws" and
that in such cases the reasonableness of the fine was not a matter for
Board consideration
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
open convention that was attended by officials of Local
12. The amended constitution was available for inspec-
tion by all members on request to Local 12.
When an employee accepts full membership in a union
he agrees to be bound by the union constitution He also
agrees to be bound by the provisions contained in the
constitution relating to constitutional amendments and
appliedly agrees to be bound by the amendments if those
provisions are followed. Formal service of a copy of an
amendment need not be served on each member to have
the change effective unless such service is called for in
the constitution itself. Under these circumstances, the
conclusion is warranted that the members had construc-
tive notice of the constitutional amendment and that they
were bound by that amendment.
Some of the employees were called to answer union
charges and were fined because they worked for a struck
employer. A serious argument can be made that a differ-
ent type of notice is needed when individuals are
charged with wrongdoing under a union constitution.9
There, some equivalent of procedural due process notice
could be required. In the instant case, however, such
specific notice was given before the employees engaged
in the conduct for which they were called to trial and
fined. The December 29, 1980 letter from Local 12 gave
full notice to all the alleged discriminatees, except for
Flores,10 of the constitutional amendment relating to res-
ignations It also gave full notice regarding the obligation
of union members to refrain from working for a struck
employer. No further action was taken by Local 12 re-
garding the alleged discriminatees until charges were
filed on January 28, 1981, almost a month after the
notice was given. The charges, which were sent to the
discriminatees, alleged that they had worked for a struck
employer on a date after the notice had been given.
Thus, regarding all disciplinary matters, full notice was
given.
3. The interplay between the right of the Union to
maintain the internal union discipline and the right
of employees to refrain from union activity
a. The legal framework
Section 7 of the Act provides, inter alia, that employ-
ees have the right to refrain from union activity Section
8(b)(1)(A) of the Act makes it an unfair labor practice
for a union to restrain or coerce employees in the exer-
cise of rights guaranteed in Section 7. Section 8(b)(1)(A)
has a proviso that states that "this paragraph shall not
impair the right of a labor organization to prescribe its
own rules with respect to the acquisition or retention of
membership therein." Restrictions in a union's constitu-
tion that limit a member's right to resign relate to "reten-
tion of membership" and are in themselves unassailable
B For an analogous situation when a union unlawfully demands that an
employee be discharged for nonpayment of dues under a lawful union-
security clause without first fully informing the employee of his obliga-
tions, see Teamsters Local 595 (Certified Grocers), 257 NLRB 492 (1981)
10 Flores was the only one of the alleged discriminatees who did not
receive the December 29, 1980 letter However, regarding him, the
charges were withdrawn and there was no fine or other disciplinary
action
under Section 8(b)(1)(A) of the Act. When a union, how-
ever, subjects an employee to internal union discipline
because he engages in activity that is protected under
Section 7 of the Act, there is an interplay between the
internal union rules and the rights of employees that re-
quires a balance of legitimate competing interests. The
United States Supreme Court, in a series of cases, has es-
tablished some broad outlines in this regard but has left
open the specific question of whether a union can lawful-
ly discipline an employee for working for a struck em-
ployer after refusing a tendered resignation from that
employee under a constitutional provision that prevents
resignations during the course of a strike.
The first Supreme Court case to deal generally with
the question was NLRB Y. Allis-Chalmers Mfg. Co, 388
U.S. 175, 181 (1968), in which the Court found that a
union did not violate Section 8(b)(1)(A) by fining mem-
bers who crossed a union picket line. The Court set forth
in detail the legislative history of the Act to conclude
that the proviso to Section 8(b)(1)(A) meant just what it
said. In addition, the Court spoke of the need for a union
to exercise internal discipline during a strike and the con-
tractual nature of the relationship between members and
the union, holding:
Integral to this federal labor policy has been the
power in the chosen union to protect against ero-
sion its status under that policy through reasonable
discipline of members who violate rules and regula-
tions governing membership. That power is particu-
larly vital when the members engage in strikes. The
economic strike against the employer is the ultimate
weapon in labor's arsenal for achieving agreement
upon its terms, and "[t]he power to fine or expel
strikebreakers is essential if the union is to be an ef-
fective bargaining agent . . . ." Provisions in union
constitutions and bylaws for fines and expulsion of
recalcitrants, including strikebreakers, are therefore
commonplace and were commonplace at the time of
the Taft-Hartley amendments.
In addition, the judicial view current at the time
§ 8(b)(1)(A) was passed was that provisions defining
punishable conduct and the procedures for trial and
appeal constituted part of the contract between
member and union and that "The courts' role is but
to enforce the contract " In Machinists v Gonzales,
356 U.S 617, 618, we recognized that "[t]his con-
tractual conception of the relation between a
member and his union widely prevails in this coun-
try . . ." [Footnotes omitted.]
The logic of the Allis-Chalmers case was carried a step
further in Scofield v. NLRB, 394 U.S 423, 430 (1969), in
which the Court found that a union did not violate Sec-
tion 8(b)(1)(A) by imposing a fine on members who ex-
ceeded work quotas set by union rules The Court held
that Section 8(b)(l)-
. . leaves a union free to enforce a properly
adopted rule which reflects a legitimate union inter-
est, impairs no policy Congress has imbedded in the
labor laws, and is reasonably enforced against union
OPERATING ENGINEERS LOCAL 12 (ASSOCIATED ENGINEERS)
members who are free to leave the union and
escape the rule.
That case did not involve an attempt of a member to
resign from the union but the Court's language concern-
ing the freedom of members to leave the union indicated
that that was a matter to be considered in future cases.
Such a situation did arise in NLRB v. Textile Workers
Local 1029, Granite State Joint Board, 409 U.S. 213
(1972). In that case the Court found that a union violated
Section 8(b)(1)(A) of the Act when it fined employees
who had resigned their membership and returned to
work during the course of a strike under circumstances
in which there was no constitutional or other limitation
on the members' right to resign. In effect, the Court
treated resigned members the same as they would have
treated employees who had never been members of the
union. The restraint of nonmembers in the exercise of
their Section 7 rights is clearly a violation of Section
8(b)(1)(A). The proviso of Section 8(b)(l)(A) was there-
fore inapplicable because the issue did not relate to reten-
tion of membership. In that case the strike was still in
progress 18 months after its inception. The Court pointed
out that events that occur after the calling of a strike
may cause a member who voted for the strike to change
his mind because of such matters as fear of hardship to
his family or the ease with which strikers were replaced.
The Court, however, specifically left open the issue that
is pivotal to the instant case, saying, "We do not now
decide to what extent the contractural relationship be-
tween union and member may curtail the freedom to
resign," The Court limited its holding to apply only to
situations in which there were no restraints !on the resig-
nation of members-' I
In Machinists Lodge 405 v. NLRB, 412 U.S. 84 (1973),
the Court found that a union violated Section 8(b)(1)(A)
of the Act by seeking court enforcement of fines that
had been imposed on resigned members for strikebreak-
ing activity. In that case the union constitution expressly
prohibited members from engaging in such activity.
However, as in Granite State, the union's constitution
and bylaws were silent on the subject of voluntary resig-
nation from the union. Once again the Court held that in
the absence of a provision in the union's constitution or
bylaws limiting the circumstances under which a
member could resign, the member was free to resign at
will. As in Granite the Court specifically, left open the
question of the extent to which contractual restrictions
on a member's right to resign could, be limited by the
Act. The Court pointed out that there was no evidence
l i Justice Blackmun dissented, saying (409 U S at 221):
I cannot loin the Court's opinion, which seems to me to exalt the
formality of resignation over the substance of the various interests
and national labor policies that are at stake here. Union activity, by
its very nature, is group activity, and is grounded on the notion that
strength can be garnered from unity, solidarity, and mutual commit-
ment. This concept is of particular force during a'strike, where the
individual members of the union draw strength from the commit-
ments of fellow members, and where the activities earned on by the
union rest fundamentally on the mutual reliance that inheres in the
"pact " Similar mutual commitments ansing from perhaps less com-
pelling circumstances have been held to be legally enforceable. See
IA A Corbin, Contracts § 198, pp 210-212 (1963).
,1345
that the employees knew or consented to any limitation
on their right to resign. That observation, however, was
geared to a situation in which there was nothing in the
constitution or bylaws to limit such a right.
The Board has filled in some of the blanks left open by
the Supreme Court's "open question," but has not yet re-
solved the issue that is critical in this case. The Board
has held certain restrictions on resignations to be over-
broad, but has not ruled on the question whether a re-
striction on resignation during a strike can keep a
member from becoming an ex-member for the purposes
of union discipline. t 2
In Auto Workers Local 1384 (Ex-Cell-O), 227 NLRB
1045 (1977),13 the Board held that a limitation on resig-
nation that could last for as long as 2 years and that ap-
plied to nonstrike as well as strike periods was over-
broad. In the Board's words:
In sum, we cannot view this constitutional provi-
sion as affording a reasonable accommodation be-
tween the Union's and the employees' conflicting
interests inasmuch as it compels continued member-
ship for as long as 2 years, is not narrowly tailored
to the Union's legitimate needs, and accords no
weight to the competing considerations which may
necessitate resignation during a strike. While we are
not presented with and do not rule 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, we decide today
that on balance Respondent's provision must bow to
the employee's exercise of their Section 7 right to
refrain from concerted activities following resigna-
tion from a union.
In Graphic Arts Local 32B (Banta Co.), 250 NLRB 850
(1980), the Board held that a restriction on voluntary res-
ignation while members were employees in the industry
was so overbroad that the employees could resign at
will. In that case the Board found that a union violated
Section 8(b)(l)(A) of the Act by summoning former
members to appear before the executive board and by
threatening to fine them for crossing the picket line after
their resignations were effective.
The key issue was squarely raised by Administrative
Law Judge William J. Pannier III in Sheet Metal Workers
Local 170 (Able Sheet Metal 'Products), 225 NLRB 1178
(1976). Citing the first Ex-Cell-O Corp. decision, supra,
he found that a union's constitutional provision, which
absolutely foreclosed the right of a member to freely ter-
minate his membership while a strike was in progress,
could not be used to bar resignation as it too narrowly
restricted the right of a member to be'free to leave the
12 The Board has also held that for a restriction on resignation to be
enforceable it must be phrased in clear and unambiguous terms Broadcast
Employees NABET Local 531 (Skateboard Productions), 245 NLRB 638
(1979).
13 This was a supplemental decision to 219 NLRB 729 (1975) on a
remand from the Seventh Circuit in an unpublished order See also Oil
Workers Local 6-578 (Gordy's Inc.), 238 NLRB 1227 (1978),-enfd 619
F 2d 708 (8th Cir. 1980), Electrical Workers SUE Local 444 (Sperry Rapid
Corp), 235 NLRB 98 (1978)
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union . On appeal to the Board the Board held: "We do
not adopt the Administrative Law Judge's finding that
the provision in art. 16, sec. 13, of Respondent's constitu-
tion and ritual, that resignations tendered during a strike
will not be accepted, is invalid as overly restrictive."
The Board further stated that it was unnecessary to con-
sider the validity of that provision as the constitutional
restrictions were overbroad in that they restricted resig-
nations to employees who have left the trade.
In Machinists Local 1327 (Dalmo Victor), 231 NLRB
719 (1977), remanded for further decision 608 F.2d 1219
(9th Cir. 1979), the Board once again indicated that the
Supreme Court's "open question" was indeed open.
There a union constitution provided, inter alia, that resig-
nation would not relieve a member of his obligation to
refrain from accepting employment at an establishment
for the duration of the strike. The Board decided the
case by holding that the constitutional provision was a
postresignation restriction on protected activities rather
than a restriction on resignation.' 4 The Board stated:
If indeed the constitutional provision here involved
and quoted above were truly a restriction on the
right to resign, then . . . we would be faced with
an issue the Supreme Court expressly left open in its
Scofield and Granite State decisions, and thus with
determining if such a restriction as enforced here
with fines is lawful. But that issue is not before us,
and we express no opinion on it [Fns. omitted.]
The Ninth Circuit remanded the case to the Board for
further decision. The court held that the Board's con-
struction of the union constitution was hypertechnical
and the case was remanded to the Board to settle the
issue left open by the Supreme Court A supplemental
decision of the Board has not yet issued.
In Meat Cutters Local 81 (Tri-City Meats), 241 NLRB
821 (1979), the Board dismissed a complaint that alleged
that the mere maintenance of a union bylaw, which
stated that resignations would not be accepted when a
strike was imminent or in progress, was a violation of the
Act Though the Board held that the case was not ripe
for decision, Board Member Murphy, in a concurring
opinion, stated:
I find that the bylaw in issue herein contains a
reasonable 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 Victor), 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 Scofield 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-
14 See also Machinists Local 1994 (OK Tool), 215 NLRB 651 (1974)
terest, impairs no policy Congress has embedded
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 immi-
nent or in progress and thus is related to a critical
union concern; it does not, per se, impair any con-
gressional policy; and since it is settled that a rea-
sonable rule may be reasonably enforced, it may
surely be adopted and maintained in existence with-
out enforcement
For these reasons, I find that the General Coun-
sel has not established that a violation of the Act
has occurred, and I agree that the complaint must
be dismissed.
b. The application of the law to the facts of this case
In the instant case employees were subjected to inter-
nal union disciplinary procedures after the Union failed
to accept their resignations, which were tendered during
a strike The failure to accept the resignations was based
on a constitutional provision that permitted the local
union to delay acceptance of a resignation during the
pendency of a strike The complaint alleges that at the
time the resignations were tendered there were no valid
restrictions on resignation or alternatively that the em-
ployees were not notified of the restrictions on resigna-
tion. As found above, the employees did have construc-
tive notice of the restrictions on resignation set forth in
the amended constitution The question is squarely pre-
sented whether a union constitution can validly prevent
resignations during the course of an ongoing strike. That
is the question that the Supreme Court and the Board
have left open. However, some of the language in the
Supreme Court and Board cases gives guidance with
regard to where the balance should be struck between
the union's right to maintain discipline during a strike
and an employee's need at some point in time to reevalu-
ate the impact of the strike on his ability to survive fi-
nancially. In Ex-Cell-O, supra, the Board, in finding a
violation, emphasized the fact that the restriction on
membership might last as long as 2 years, that it was not
narrowly tailored to the union's legitimate needs, and
that it accorded no weight to the competing consider-
ations that might necessitate resignation during a strike.
In Granite State, supra, the United States Supreme Court,
in finding a violation of Section 8(b)(1)(A), pointed out
that events occurring after the calling of a strike could
lead to unsettling effects that might cause a member who
voted for the strike to change his mind The Court re-
ferred to situations in which the duration of a strike
might increase the specter of hardship to an employee's
family. The Court also noted that the ease with which
the employer could replace strikers might make the
strike seem less provident. In the instant case the strike
began on August 17, 1980. As of December 10, 1981, the
date of the hearing, the strike was still in effect. It is pos-
OPERATING ENGINEERS LOCAL 12 (ASSOCIATED ENGINEERS) 1347
Bible that 10 years or more from now the strike will still
be ongoing Under the Union's constitution the Union
can refuse to accept a tendered resignation for an indefi-
nite time Conceivably that could lead to a situation in
which a member cannot resign from the Union during
his entire working life. Under these circumstances, I be-
lieve that the constitutional restriction on resignation is
overbroad and is, therefore, ineffective 15 It follows that
the resignations were effective when tendered and that
the Union violated Section 8(b)(1)(A) by subjecting non-
members to internal union disciplinary proceedings and
fines because they exercised their Section 7 rights in
working for the struck employer.
The situations were somewhat different regarding the
five named discriminatees . Regarding Imbiorski , Tabor,
and Noreen , I find that Local 12 violated Section
8(b)(1)(A) of the Act by summoning them for trial and
by threatening to and fining them for working for a
struck employer after their valid resignations from the
Union. Flores was only summoned for trial and the
charge was later withdrawn. By summoning him for
trial, Local 12 was impliedly threatening to fine him, and
I find that Local 12 violated Section 8(b)(1)(A) for both
summoning him for trial and threatening to fine him. Re-
garding Hart, he only received the notification on nonac-
ceptance of his resignation in which he was told that he
was not permitted to work for the struck employer. Im-
pliedly, Local 12 was threatening to fine him if he did
work for that employer I find that Local 12 violated
Section 8(b)(1)(A) by threatening to fine him.
It is unfortunate that the parties have so little guidance
from the Board and the courts concerning this issue.
Though the Board has held that certain limitations are
unduly restrictive, unions can only guess what restric-
tions on resignations are lawful Fuller explication might
well prevent the need for unnecessary future litigation.
As found above, I believe that an unlimited restriction on
the right to resign during a strike is overbroad as it can
last indefinitely On the other hand, it is my opinion that
a rational balance of the conflicting interests in such a
situation can be established by a finding that a union can
properly restrict a member's right to resign when a strike
is imminent and for a period of 1 year after the com-
mencement of a strike Such a ruling would provide for
a union 's right to maintain internal union discipline for a
reasonable time and would also prevent a situation in
which an employee could be tied to the union for life.
Such a 1-year rule would be consistent with Section
9(c)(3) of the Act, which provides that "employees en-
gaged in an economic strike who are not entitled to rein-
statement shall be eligible to vote under such regulations
15 In general, the law does not look favorably on unlimited restrictions
on an individual 's freedom of action Thus, the rule against perpetuities
makes inoperable undue restrictions on the freedom to fully alienate
property In a similar vein, public policy prevents the enforcement of an
overly broad covenant not to compete when there is a sale of a business
as the Board shall find are consistent with the purposes
and provisions of this Act in any election conducted
within 12 months after the commencement of the strike."
I therefore recommend the Board find that a union can
validly restrict resignations by members when a strike is
imminent and for a period of 1 year after the commence-
ment of a strike.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Local 12, as set forth in section III,
occurring in connection with the business operations of
the Companies set forth in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
REMEDY
Having found that Local 12 engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act, I recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action to effec-
tuate the policies of the Act. It is further recommended
that Local 12 be ordered to rescind and remove from its
records all charges and fines against Imbiorsk, Tabor,
and Noreen that relate to work done by them for a
struck employer after their valid resignations from the
Union.16
As found above, the International's complete limitation
on resignations during the course of a strike was so over-
broad that it could not support lawful union discipline
against a member who tendered his resignation and then
worked for a struck employer. I believe that a constitu-
tional provision that limited member resignations when a
strike was imminent and for 1 year after the commence-
ment of a strike would not be overbroad and I, therefore,
recommend that the Board find that such a limitation
would be valid.
CONCLUSIONS OF LAW
1. The Companies are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 12 is a labor organization within the meaning
of Section 2(5) of the Act
3 Local 12 violated Section 8(b)(1)(A) of the Act by
summoning employees for trial and by threatening to and
finding them for working for a struck employer after
their valid resignations from Local 12.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
16 Regarding Flores, the charge has already been withdrawn and there
was no fine Regarding Hart, there was no charge or fine