Operating Engineers Local 399 (Tribune Properties)

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 439 (N.L.R.B. 1991)

439
304 NLRB No. 53
OPERATING ENGINEERS LOCAL 399 (TRIBUNE PROPERTIES)
1 Contrary to our dissenting colleague, we agree with the judge’s rec-
ommended remedy and Order. As discussed by the judge, the legal principle
that maintaining restrictions on the right of a union member to resign from
membership is unlawful has been firmly settled for several years. Nevertheless,
the Respondents’ constitutional and bylaws restrictions at issue have been
maintained continuously throughout that period. We agree with the judge, for
the reasons stated in the remedy section of his decision, that merely notifying
current members of the expunction of the provisions in the ‘‘usual manner’’
is insufficient in the circumstances of this case. Accordingly, we affirm the
judge’s recommended remedy and Order in this case.
Member Cracraft would modify those provisions of the judge’s rec-
ommended remedy and Order relating to publication and posting of the notice
to provide a more traditional remedy for the violations found. See Sheet Metal
Workers Local 16 (Salem Heating), 274 NLRB 41 fn. 2 (1985). Rather than
requiring that the Respondents publish notice of the expunction three times in
their magazines and newsletters and that the Respondent International cause
the notice to be posted in all its locals having members subject to the Board’s
jurisdiction, except those in Canada, Member Cracraft would order the Re-
spondents to notify their members of the expunction in the manner they cus-
tomarily use to notify members of such changes. As the judge pointed out,
for example, the Respondent International customarily notifies its membership
that a constitutional provision has been removed by publishing in the next edi-
tion of the International’s magazine the minutes of the executive board meet-
ing during which such action was taken. Member Cracraft fails to see why
a similar one-time publication of the notice herein would not serve as an ade-
quate remedy. In this regard, Member Cracraft notes that only one local is a
Respondent in this proceeding and that extraordinary notification remedies are
not warranted on the facts of this case. In all other respects, she agrees with
the majority in affirming the judge’s recommended remedy and Order.
1 General Counsel’s amended complaint, further amended at the hearing, is
dated July 19, 1990. The Charging Party’s underlying unfair labor practice
charge was filed December 1, 1989, and served on Local 399 on December
6, 1989. A first amended charge was filed January 31, 1990, with copies
served on both Local 399 and the International Union on February 7, 1990.
2 In pertinent part, Sec. 10(b) of the Act, a statute of limitations, permits
Respondent’s to affirmatively defend on the ground that a complaint allegation
relates to acts committed more than 6 months prior to the service of the unfair
labor practice charge.
International Union of Operating Engineers, AFL–
CIO; International Union of Operating Engi-
neers, Local 399, AFL–CIO and Tribune Prop-
erties, Inc. Case 13–CB–12781
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On March 11, 1991, Administrative Law Judge Rob-
ert W. Leiner issued the attached decision. The Re-
spondents each filed exceptions and a supporting brief,
and the General Counsel and Charging Party each filed
a brief in response. The Charging Party filed a cross-
exception and supporting brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, International Union of
Operating Engineers, AFL–CIO, and International
Union of Operating Engineers, Local 399, AFL–CIO,
their officers, agents, and representatives, shall take the
action set forth in the Order.
Scott A. Gore, Esq., for the General Counsel.
Richard Griffin, Esq., of Washington, D.C., for the Inter-
national Union.
William A. Widmer III, Esq. (Carmell, Charone, Widmer,
Mathews & Moss), of Chicago, Illinois, for Local 399.
Douglas A. Darch, Esq., and Sigismund L. Sapinski Jr., Esq.
(Seyfarth, Shaw, Fairweather & Geraldson), of Chicago,
Illinois, for Tribune Properties, Inc.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This case
was tried before me in Chicago, Illinois, on October 25,
1990, on the General Counsel’s complaint1 and the answers
filed by both Local 399 and the International Union. The
complaint, as amended at the hearing, alleges violation by
both Local 399 and the International Union of Section
8(b)(1)(A) of the Act by their maintaining respectively, in
the International’s constitution and Local 399’s bylaws, pro-
visions restricting members’ right to resign from the Union.
The answers of both Respondents deny certain allegations of
the complaint, admit others, and deny commission of unfair
labor practices. Both answers affirmatively defend on the
ground that the allegations of the complaint are barred by the
provisions of Section 10(b) of the Act.2
At the hearing, all parties were represented by counsel
who were given full opportunity to present relevant evidence,
call witnesses, argue on the record, file motions, and make
final argument. At the end of the proceeding, counsel for the
parties waived final argument and elected to file posthearing
briefs. Briefs were timely received from all parties.
On the record made in this proceeding, including the
briefs, I make the following
FINDINGS OF FACT
I. TRIBUNE PROPERTIES, INC. AS A STATUTORY
EMPLOYER
The complaint alleges and Respondents in the pleadings or
at the hearing, admitted that Tribune Properties, Inc., the Em-
ployer and Charging Party is a corporation with an office and
place of business in Chicago, Illinois, where it is engaged in
the management of commercial properties. In the calendar
year 1990, the Employer in the course and conduct of its
business, derived gross revenues in excess of $100,000 of
which in excess of $25,000 was derived from enterprises lo-
cated in the State of Illinois which themselves sold and
shipped products, goods, and materials valued in excess of
$50,000 directly to points outside the State of Illinois; or
which purchased and received products, goods, and materials
valued in excess of $50,000 directly from points outside the
State of Illinois. I find, under the pleading, as Respondents
admit, that at all material times, the employer was engaged
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Sec. 8(b)(1)(A) of the Act provides:
It shall be an unfair labor practice for a labor organization or its agents—
(1) To restrain or coerce (A) employees in t;he exercise of the rights
guaranteed in Section 7; Provided, 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.
4 Consistent with this General Counsel assertion, as well as the theory of
the case as announced in complaint paragraph (IV)(a) (‘‘has maintained in full
force and effect’’ the above-indented material in the text), I rejected attempts
by other parties to change and expand this case into one involving the enforce-
ment of these clauses.
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE UNIONS AS STATUTORY LABOR ORGANIZATION
The complaint alleges and Respondents admit that Inter-
national Union of Operating Engineers, AFL–CIO, and Inter-
national Union of Operating Engineers, Local 399, AFL–
CIO, and each of them, has been, and is now, at all material
times, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
There are 366,000 members of the International Union,
34,000 of them in Canada, and 35,000 of the U.S. members
being public employees employed by Federal, state, local
governments, and employed by Federal government instru-
mentalities such as the Tennessee Valley Authority. In addi-
tion, certain of its members in the United States are super-
visors within the meaning of Section 2(11) of the Act.
At all material times, Local 399 has been and is a con-
stituent body of the International Union. While both the
International Union and Local 399 admit that its members in-
clude employees as defined in Section 2(3) of the Act, there
is no dispute that the International, as above-noted, has mem-
bers who are statutory supervisors and who are Canadian in
approximately 29 locals throughout Canada, each with its
own president. Local 399 has members who are not statutory
employees within the meaning of Section 2(3) of the Act be-
cause they are supervisors, or because they are outside the
Board’s jurisdiction being either public employees or resid-
ing outside the United States.
The following indented provision has continually appeared
in the International constitution since 1938 (now appearing
as art. XXIV, subdivision 3, sec. (b)) and also appears in
Local 399’s bylaws and general rules, article V, subdivision
3, section (a)(2) (emphasis supplied):
The admission to membership in conformity to the
Constitution, Obligation and Ritual constitutes a con-
tract between the member, his Local Union, the Inter-
national Union and every other member therein, where-
by, in consideration of the benefits bestowed by such
membership, he agrees that he will remain a member
until expelled; that he will not violate the Constitution,
laws, Rules, Obligation and Ritual, and the decision,
rulings, orders and directions of the International Union
or its subordinate branches, nor the trade rules of the
locality in which he works; that he will not enter into
the employment of any person conditioned on severing
his membership with this organization; that upon the
termination of his membership he will acknowledge his
Obligation to be still binding upon him and refrain
from doing any act or deed in violation of the prin-
ciples, Constitution, Laws, Obligation, Ritual and . . .
policies of this Organization, and the decisions of any
authority of the International Union empowered by this
Constitution to make them.
The complaint, as amended at the hearing (Tr. 8–9), al-
leges that the above-indented constitutional and bylaw provi-
sions violate Section 8(b)(1)(A) of the Act3 because (1) the
requirement to remain a member until expelled; and (2) the
provision that even after termination of membership, the
former member remains bound to both International and
local union membership obligations, both constitute invalid
restrictions on employees’ Section 7 rights to refrain from
engaging in union activities within the meaning of Section 7
and Section 8(b)(1)(A) of the Act. The International Union
concedes that its constitution has no explicit mechanism
granting members a right to resign (International Br. at 21).
The General Counsel asserts that the above alleged viola-
tion consists merely in the maintenance of the above-in-
dented provisions in the constitution and the bylaws without
respect to any enforcement thereof by either Respondent en-
tity.4
Discussion and Conclusions
Where a labor organization maintains in force and effect
restrictions on employee resignation from union membership,
whether in the International Union’s constitution, Graphic
Communications Local 458 (Noral Color), 300 NLRB 7
(1990), or in the local union’s bylaws, Birmingham Printing
Pressmen’s Local 55 (Birmingham News), 300 NLRB 1
(1990), such restrictions violate Section 8(b)(1)(A) of the
Act. Graphic Communications Local 458, supra.
The Board held, in the underlying Machinists Local 1414
(Neufeld Porsche-Audi), 270 NLRB 1330 (1984), that Sec-
tion 7 of the Act expressly grants employees the ‘‘right to
refrain from any or all’’ protected concerted activities. The
Board declared that this right to ‘‘refrain’’ includes the right
to resign union membership.
As the General Counsel notes, the right to refrain from
union membership, particularly by resignation, has the cor-
ollary effect of preventing the union from imposing its au-
thority on employees who, having resigned, are thereby re-
fraining from union activity. In short, to restrict the right of
resignation is tantamount to extending the Union’s right to
regulate employee conduct otherwise free of union regula-
tion. In particular, in Neufeld Porsche-Audi, supra at 1335,
the Board held that the union possesses no statutory authority
to impose its will on employees who have resigned from the
union, i.e., who have exercised their Section 7 right to refrain
from engaging in concerted activity. There is no question
that the Board has adopted an analysis which permits the
union to enact membership rules that are internal in scope
but prohibits the right of a labor organization to impose its
will on employees who exercise their Section 7 right to re-
sign and refrain from concerted activity. Neufeld Porsche-
Audi, supra, cited in NLRB v. Sheet Metal Workers Local 73,
840 F.2d 501 (7th Cir. 1988).
Not only was the Neufeld Porsche-Audi rule essentially
adopted by the Supreme Court in Pattern Makers League v.
441OPERATING ENGINEERS LOCAL 399 (TRIBUNE PROPERTIES)
NLRB, 473 U.S. 95 (1985)(in which the Supreme Court held
that any restriction on the member’s right to resign was in-
valid, see NLRB v. Sheet Metal Workers Local 73, supra, but
Pattern Makers also established that an otherwise lawful
contract prohibiting resignation from membership under cer-
tain conditions constitutes unlawful restraint and coercion be-
cause compliance with those conditions interferes with the
employee-members exercise of his Section 7 right to resign
‘‘at any time.’’ See NLRB v. Sheet Metal Workers Local 73,
supra. It is also beyond question that while the NLRB has
upheld union efforts to discipline former members for
preresignation misconduct, the Supreme Court held, in NLRB
v. Granite State Joint Board, 409 U.S. 213, 217 (1972), that
when a member resigns, his former union can no longer
compel him to follow its rules and policies. NLRB v. Sheet
Metal Workers Local 73 , supra, citing Granite State, supra.
Finally, the Supreme Court, in Pattern Makers League, re-
jected the contention that restrictions on resignation are pro-
tected by the proviso to Section 8(b)(1)(A) of the Act. The
court held, that the proviso phrase ‘‘Rules with respect to the
. . . retention of membership’’ refer to rules that provide for
the expulsion of employees from the union, not to those that
restrain the right of members to resign. NLRB v. Sheet Metal
Workers Local 73, supra, citing NLRB v. Pattern Makers
League, supra at 108–109. The Supreme Court thereby ex-
plicitly adopted the Board’s Neufeld Porsche-Audi rule, supra
at 1335, establishing the union’s lack of justification in re-
stricting resignation on the basis of the proviso. The proviso
relates to ‘‘internal actions’’ of the union which regulate con-
duct of which they have lawful control, leading ultimately to
expulsion from membership of persons found to be undesir-
able. NLRB v. Sheet Metal Workers Local 73, supra.
In the instant case, both the International constitution and
Local 399’s bylaws have the same language. In the above-
indented constitutional and bylaw language, admission to
membership into the Union ‘‘constitutes a contract between
the member, his Local Union, the International Union and
every other member,’’ whereunder the newly admitted mem-
ber ‘‘agrees that he will remain a member until expelled’’
and is obliged to consent to the union’s constitution, laws,
rules, obligations, ritual, and the decisions, rulings, orders,
and directions of the International Union or its subordinate
branches. Especially in the absence of any device in the con-
stitution or bylaws which permits resignation, it appears that
the only reasonable reading of this language is that once ad-
mitted to membership, the member remains a member at the
Union’s pleasure at least until expulsion. Expulsion is a
mechanism which lies in the control of Respondents. There
being no mechanism for resignation, the member remains a
member, under full union obligation until Respondents de-
cide on expulsion. If the only method of termination of
membership is expulsion, and Respondents having conceded
that there is no mechanism for resignation in the constitution
or bylaws (‘‘members have a right to resign which is not ex-
plicitly stated in the constitution’’ R. International Br. at 21),
there can be no question that these provisions which require
continued obligation to the union, after admission. at the
Union’s pleasure restrict the members’ right to resign. The
requirement of continued obligation by a member until ex-
pulsion constitutes and invalid restriction on the employee’s
Section 7 right to refrain from engaging in union activities.
Machinists (Neufeld Porshe-Audi), supra; Pattern Makers’
League v. NLRB, 473 U.S. 95 (1985); NLRB v. Sheet Metal
Workers Local 73, 840 F.2d 501 (7th Cir. 1988). Such a re-
striction necessarily violates Section 8(b)(1)(A) of the Act
because, failing the Union’s desire to expel the member,
there is no right in the member to resign at anytime, thus
constituting unlawful restraint and coercion within the mean-
ing of Section 8(b)(1)(A) of the Act, as alleged.
The General Counsel’s complaint, as amended at the hear-
ing, separately attacks the International Union’s constitution
and the local Union’s bylaws:
[T]hat upon the termination of his membership he will
acknowledge his Obligation to be still binding upon
him and refrain from doing any Act or deed in violation
of the principals, Constitution, laws. obligation . . . and
. . . policies of this Organization, and the decisions of
any authority of the International Union empowered by
this Constitution to make them.’’
It is clear from the above clause that even expulsion from
membership does not terminate the member’s obligation to
the Union. The clause does not speak of ‘‘expulsion’’ or
even ‘‘resignation.’’ Its limitation is only ‘‘termination of his
membership.’’ Such broad phrasing necessarily includes any
method of separation or termination of the member’s status
as a union member. As such, ‘‘termination’’ of membership,
so broadly phrased, necessarily is broad enough to include
both resignation and expulsion. Thus, after resignation or ex-
pulsion from the Union, the former member continues to be
obligated to acknowledge his obligation to the Union as con-
tinuously binding on him and he must refrain from doing any
act or deed inconsistent with the constitution or bylaws of
the Union from which he was either expelled or otherwise
terminated. The requirement of continued obligation after
resignation or termination of membership necessarily regu-
lates posttermination conduct which is unlawful. NLRB v.
Granite State Joint Board, 409 U.S. 213 (1972).
Having concluded that ‘‘termination of his membership’’
is broad enough to apply to both ‘‘resignation’’ and ‘‘expul-
sion’’ from membership, it would appear that even if the of-
fending language, appearing in the full paragraph above, im-
plicitly permitted resignation from the Union, the restrictions
imposed in that paragraph would nevertheless be unlawful.
The unlawfulness stems from the futility of resigning even
under an implied right to do so: The futility being based on
the fact that the former member necessarily remains under
obligation to the Union after ‘‘termination’’ of his member-
ship. As above noted in Granite State Joint Board, supra, the
imposition of postseparation union obligations is unlawful.
Thus, even if there was a right to resign, the clause, as al-
leged, violates Section 8(b)(l)(A) of the Act.
Respondent’s Defenses
l. The restrictions are allegedly lawful
As a first defense, Respondent relies on the assertion that
both Respondents had members who are employed by gov-
ernments and governmental subdivisions, who are employed
as statutory supervisors, and members who reside outside the
United States. Respondent asserts that since the Board has no
jurisdiction over them under the Act, the restriction on the
right to resign, even as interpreted by the General Counsel,
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 To the extent Local 399 relies on Sheet Metal Workers Local 68 (DeMoss),
298 NLRB 1000 (1990), to argue that the alleged offending language is lawful
on its face, such reliance is misplaced. That case supports the proposition that
Sec. 8(b)(1)(A) does not protect a supervisor’s right to resign. Local 399 ap-
pears to argue that since the language deals with supervisors and is not unlaw-
ful as to them, it is lawful to all and therefore not facially invalid and must
be judged, for 10(b) purposes, under Lorrance v. AT & T Technologies, supra.
I have already rejected this argument, having found the language facially un-
lawful. Thus, Lorrance v. AT & T, does not apply.
6 At the hearing, I refused to permit Respondent to prove or argue the effect
of Respondent’s having eliminated from its constitution the offending clause
relating to resignation from membership. I also refused to permit Respondents
to prove or argue the effect of statements by the International’s officer (Gen-
eral Vice President Herman Jones), regarding the purpose and effect of the un-
lawful language introduced in the April 1980 convention. Rather, I restricted
the parties to the allegations of the complaint, i.e., whether the above-indented
clause relating to the obligations of membership, upon admission, nevertheless
itself constituted a facially unlawful restraint on resignation from the union.
is lawful. Since it is lawful certainly as to members outside
the reach of the Act, any restriction on the right to resign
is irrelevant.
It seems to me that merely because substantial numbers of
Respondent’s 366,000 members, as foreigners, public em-
ployees, and supervisors may not be subject to the restraints
of the Act or the Board’s jurisdiction (Tr. 34–35), that in no
way bears on the question of the unlawfulness of the re-
straints on resignation as they pertain to persons actually sub-
ject to the Board’s jurisdiction as employee members within
the United States. For instance, in Auto Workers Local 148
(McDonnell-Douglas), 296 NLRB 970 (1989), the Board was
presented with a union constitutional clause which, in part,
was an unlawful restraint on the right to resign and, in part
valid. The Board, nevertheless, found no merit in the asser-
tion that elimination of the entire provision was inappropriate
because portions of that provision might be lawful, Auto
Workers Local 148 (McDonnell-Douglas), supra. In the in-
stant; case, it cannot be said, as will be noted hereafter, that
any part of the clause constitutes anything other than an un-
lawful restraint on the right to resign, unlike Auto Workers
Local 148 (McDonnell-Douglas), where parts of the alleged
offending clause might be held to be lawful. In the instant
case, the entire clause being unlawful (but may have lawful
application to persons over whom the Board has no jurisdic-
tion) that condition hardly militates in favor of the conclu-
sion that the Board’s jurisdiction should be surrendered be-
cause of the clause’s nonapplication to foreigners, super-
visors, and public employees. The offending language con-
stitutes an unlawful restraint on the right to resign of member
employees in the United States and, as noted by the board
in Auto Workers Local 148 (McDonnell-Douglas), supra, it
is ‘‘not for the Board to rewrite constitutional language to
bring it into conformity with the law.’’
2. The statute of limitations; Section 10(b) of the Act
Respondent asserts that the International constitution was
amended and repromulgated in April 1988 (R. Local 399 Br.
at 4). It urges that the 10(b) 6-month period of limitations
began to run no later than May 1, 1988; and since the first
charge in this matter was not served until December 5, 1989
(G.C. Exh. l(b)), the 6-month period expired before the De-
cember 5, 1989 service of the charge. Moreover, Respond-
ents asserts without contradiction, that the allegedly offend-
ing language has been in effect for more than 40 years prior
to the repromulgation.
I have concluded, however, above, that the language al-
leged to be unlawful in the International constitution and the
Local Union’s bylaws by limiting termination of membership
to expulsion, necessarily, on its face, represents an unlawful
restraint on the right to resign at any time because there is
a complete absence, in the constitution and bylaws, of any
right to resign whatsoever. I have concluded that such a situ-
ation necessarily constitutes an unlawful restraint on the right
to resign at any time and thus violates Section 8(b)(1)(A) of
the Act under Board law. I have further found, above, that
even if there were an implicit right to resign under the con-
stitution and bylaws, the further language in the allegedly un-
lawful paragraph makes such implicit right to resign irrele-
vant. The irrelevancy stems from the fact that even after
‘‘termination’’ of the union membership, his obligations to
the Union nevertheless remained in full force and effect. I
have concluded that this separately violates Section
8(b)(1)(A) of the Act because it would render totally futile
any resignation from the Union, even if such right existed,
because obligation to the union remains ‘‘post termination.’’
Having found that these unlawful restraints on resignation
exist on the face of the offending paragraph, it follows that
Respondent’s reliance on Lorrance v. AT & T Technologies,
490 U.S. 900 (1989), is of no avail. A facially unlawful
clause can be challenged at any time, Lorrance v. AT & T
Technologies, supra. Continued maintenance of restrictions
on resignations constitute unfair labor practices up to, and
even after, the filing of the charge and complaint. Auto
Workers Local 848 (LTV Aerospace), 282 NLRB 946, 948
(1987); Sheet Metal Workers Local 73, 274 NLRB 374
(1985).
I conclude that the continued maintenance, as here, of a
facially unlawful clause restricting resignation from the
Union may be attacked at any time; and that the limitations
imposed by Section 10(b) of the Act, whether because there
are classifications of employees against whom the statute
may not be applied or because the offending language, en-
forced for 40 or more years, has been repromulgated outside
the 10(b) limitation period, offer no defense.5
3. The Board allegedly has already ruled on the
language at issue
Both Respondents prominently rely on certain language in
Operating Engineers Local 12 (Associated Engineers), 282
NLRB 1337 (1987). In that case, the Board resolved the
question whether the International Union herein, in its April
1980 International convention, amended its constitution to
add a particular provision relating to resignation from mem-
bership which was unlawful. The Board, affirming the ad-
ministrative law judge, found that, indeed, the new amend-
ment was an unlawful restriction on the right to resign under
Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB
1330 (1984). In the statement of facts approaching the his-
tory of the creation of that unlawful clause directly restrain-
ing resignation from membership, the Board stated:
Before April 1980, the Operating Engineers constitution
to which the Respondent is bound, contained no limita-
tion on its members ’ right to resign.6
It seems to me, that this language taken from Operating
Engineers Local 12 (Associated Engineers), supra, constitutes
no defense to the Respondents.
443OPERATING ENGINEERS LOCAL 399 (TRIBUNE PROPERTIES)
7 Respondent International’s argument appears to be at least partially incon-
sistent with Respondent Local 399’s position. Respondent International asserts
that the proviso to 8(b)(1)(A) offers it a defense. Respondent Local 399, how-
ever, defends on the theory that since the offending language covers its super-
visors and since a union’s relation to supervisors is governed by Section
8(b)(1)(B), the alleged offending language, dealing with supervisors is facially
valid and governed by Sec. 8(b)(1)(B) not Sec. 8(b)(1)(A). Sec. 8(b)(1)(A),
with its proviso, of course, relates to employees and does not protect a super-
visor’s right of resignation, as Respondent Local 399 has argued (Br. at 4–
5); Sheet Metal Workers Local 68 (DeMoss), 298 NLRB 1000 (1990).
In that case, the Board ruled on a clearly unlawful clause
addressed precisely to the issue of resignation for member-
ship. The quoted language merely states that the Respond-
ent’s constitution contained no limitation on the members’
right to resign. In context, that means merely that there was
no provision in the constitution explicitly devoted to the right
to resign, the subject of the litigation actually there before
the Board. Therefore, both in a technical sense and in a ma-
terial sense, the issue of whether other portions of the con-
stitution constituted facial, unlawful restrictions on the right
to resign was not before the Board. Therefore the indented
quoted statement above, becomes the clearest obiter dictum
in determining whether other parts of the constitution con-
tained facially unlawful restrictions on the right to resign.
The Board was not concerned with other language in the
constitution; it was concerned only with the language actu-
ally before it, the Union’s newly drafted direct restraint on
resignation from membership. In the absence of a defense
based on collateral estoppel I need not address the issue.
4. The offending language is protected by the provision
to Section 8(b) (1)(A)
Respondent International defends on the ground that the
challenged language is protected by the proviso to Section
8(b)(1)(A).7 I have already held that the challenged language
is an unlawful restraint on the right to resign because in sub-
stance, it requires that employees admitted to membership
must remain members until expelled; and are further, sepa-
rately coerced by having union obligations after expulsion
(or, arguably, resignation). Since expulsion is the product
solely of the Union’s discretionary power and has nothing to
do with the the employees’ own right to resign, I concluded,
above, that the challenged clause, in substance offers no abil-
ity to terminate membership obligations whether by expul-
sion or otherwise. The right to resign at any time does not
exist.
In Pattern Makers League v. NLRB, supra, the Court did
not accept the Union’s contention that its actions, restraining
resignation, were necessarily protected by the proviso to Sec-
tion 8(b)(1)(A). The Court held that the proviso phrase
‘‘rules with respect to the . . . retention of membership’’ tra-
ditionally had been understood to refer to rules for the
Union’s discretionary expulsion of employees from union
membership, not to those that restrained the right of mem-
bers to resign. NLRB v. Sheet Metal Workers Local 73, 127
NLRB 801, 804 (1961). This was the Board’s construction
of the proviso in Neufeld Porche-Audi, supra, and the Court
found the NLRB’s construction of the proviso reasonable.
NLRB v. Sheet Metal Workers Local 73, supra.
Since I have found that the alleged offending clause relates
to an unlawful restraint on the right to resign it is not a
clause designed to define the Union’s right of expulsion of
its members and therefore is not within the proviso to Sec-
tion 8(b)(1)(A), the defense on which Respondent relies. I
therefore conclude that the proviso to Section 8(b)(1)(A)
does not provide a defense to Respondent.
Citing, in particular, Communications Workers Local 9201
(Pacific Northwest Bell), 275 NLRB 1529 (1985), Respond-
ent International argues that there is a requisite that employ-
ees reading the challenged language must be subject to the
impression that any attempt to resign would be futile:
In Machinists Local 1374 (Columbia Machine), 274
NLRB 123 (1984), the Board held that it would apply
an objective standard to determine whether the Union’s
conduct reasonably created in the members’ minds the
impression that any attempt to resign would be futile.
A member is not required to attempt to resign when the
Union has made it clear to the member that the Union
would reject the resignation in any event. However, the
mere existence of the restriction on resignations is in-
sufficient to support a finding that it is futile to resign,
even where the members has knowledge of the restric-
tion.
In that case, the Board held that there was no showing that
any of three individuals failed to submit a timely resignation
because the employee had an objective basis to believe the
attempt to resign would be futile. It is obvious that that case
has limited application to the case at bar. The case at bar
deals only with whether the language of the challenged con-
stitutional and bylaw clauses constitute an unlawful restraint
on the right to resign.
The authority cited by Respondent, Communications Work-
ers Local 9201 (Pacific Northwest Bell), supra, dealt with the
question of whether members had resigned prior to their re-
turn to work. But assuming, arguendo, that in order for the
clause itself to be held invalid, there must be an ‘‘objective
standard’’ to determine whether the clause creates the im-
pression of the futility of an attempt to resign, the instant
clause show that unmistakably. The challenged constitutional
language here does not permit an employee to resign under
any circumstances. The only way to ‘‘terminate’’ member-
ship is to be expelled. And, even when expelled, his obliga-
tions of union membership continue under the above-quoted
language: His obligation is ‘‘still binding upon him’’ and he
must ‘‘refrain from doing any act or deed in violation of the
. . . constitution, laws, obligations . . . and policies of this
[International] Organization, and the decisions of any author-
ity of the International Union.’’ Such continuing restrictions
and obligations to the Union, even after expulsion (without
a right to resign in the union constitution), clearly provide
‘‘an objective standard’’ to create in the members’ minds the
impression that any resignation would be futile.
I therefore conclude that Respondents’ defense, insofar as
it relies on the necessity of proof of an objective standard
of futility inherent in the offending clause, is without merit
since that standard is clearly met here. I do not mean by this
conclusion to suggest that such proof is necessary, where, as
here, the allegation of unlawfulness is directed solely to the
maintenance of such offending language in the Union Inter-
national’s constitution and where enforcement elements are
not part of the alleged violation. All that is alleged here is
the facial invalidity of constitutional and bylaw restraints on
the right to resign, including obligations to the Union and
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In this regard, it is unknown whether Respondent International is attempt-
ing to pull the leg of the Board or its indulging in legal silliness in describing
the alleged offending language as merely ‘‘precatory language’’ (R. Inter-
national Br. at 2). It appears inherently inconsistent: to describe ‘‘certain prec-
atory language describing the obligations to which IUOE members agree when
they are admitted to membership’’ (R. International Br. at 2). Either it is
‘‘precatory’’ or it is an ‘‘obligation.’’ The alleged offending language is re-
plete with all the trappings and paraphernalia of legal obligation, speaking in
terms of ‘‘contract,’’ third party obligations under the contract, etc.
9 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 objec-
tions to them shall be deemed waived for all purposes.
union discipline even after involuntary expulsion from the
Union.8
CONCLUSIONS OF LAW
1. By maintaining in effect the restrictions on resignation
from membership contained in (a) article XXIV, subdivision
3, section B of the International Union’s constitution and (b)
article V, subdivision 3, section (a)(2) of the bylaws and gen-
eral rules of Local 399, the Respondents, and each of them,
have violated Section 8(b)(1)(A) of the Act.
2. The Respondent’s have not violated the Act in any
other way.
THE REMEDY
Under Machinists Local 1414 (Neufeld Porsche-Audi), 270
NLRB 1330 (1984), where the offending clause constitutes
an unlawful restriction on the right of members to resign
from the union, or its local, the Board requires, as part of
the remedy, that the Respondents expunge the unlawful pro-
visions from the governing documents. Auto Workers Local
73 (McDonnell-Douglas), 282 NLRB 466–467 (1986). Other
than the expunction remedy, General Counsel would require
the posting of notices at the local union and the international
union (Tr. 19–20). The Charging Party would have me rec-
ommend to the Board a further remedy regarding dissemina-
tion of the expunction. Thus, the Charging Party, in addition
to expunction, would have me recommend to the Board that
Respondents notify each member of the illegal activities to
correct the violation. It would have the Board adopt former
Member Dennis’ argument in Machinists Local 1414
(Neufeld Porsche-Audi), supra at 1336 fn. 22, that each
member should be notified, in writing, that Respondent
would not enforce the restrictions on resignation set forth in
the International constitution and Local 399’s bylaws. The
Charging Party, indeed, would go further: it suggests that the
Board adopt the reasoning of the administrative law judge in
Sheet Metal Workers (Losli International), 299 NLRB 972
(1989), whereby the unions would be required to announce
the striking of the clauses at its membership meetings and in
its newsletter or newspaper (Br. at 20–21). Finally, the
Charging Party urges that the Respondents be directed to re-
publish the constitution and bylaws omitting the offending
provisions.
With regard to the posting of notices, I will recommend
to the Board that they be posted other than in the Canadian
locals, but in all locals in which there are members who are
employees subject to the Board’s jurisdiction, whether or not
those locals also admit to membership employees who are
not subject to the Board jurisdiction, including employees of
state and local governments or subdivisions thereof. The
problem in this case is that we are not dealing merely with
a local union but with an international union. I am persuaded
that merely posting notices will not adequately inform the
membership because there may be members admitted after
the period when the notices need be posted, i.e., after the 60-
day posting period. Having considered the matter, I conclude
that posting is an insufficient remedy at least to such persons
and I shall recommend to the Board that Respondents be di-
rected to publish and disseminate in their magazines and
newsletters, on three successive occasions commencing with
the publishing and dissemination of such magazines and
newsletters first following the issuance of the Board Order,
the substance of the Order as follows.
The Respondent International, in substance, states that
when it has removed constitutional provisions in the past, its
executive board minutes noting that action is published in the
International’s magazine which is sent to each member of the
International. Under such circumstances, the action of pub-
lishing the removal on three successive occasions in the
International’s magazine (and any newsletter issued by the
Local), together with notice posting and the striking of these
provisions from both the International’s constitution and the
local union’s bylaws, seems to me to be a remedy consistent
with and appropriate to the violations found. In addition, I
shall recommend to the Board that it order Respondents,
upon the republication, if any, of the International Union’s
constitution, or the local union’s bylaws, that such republica-
tion, of course, be consistent with the expungment order. My
refusal to order individual direct mail to all the International
and Local members and the immediate republication of the
constitution and bylaws is based on the expense involved in
such actions together with the adequacy of the remedy with
regard to dissemination and notification. Lastly, I shall rec-
ommend to the Board that Respondent International notify
each of its constituent locals in the United States, which
locals admit member employees subject to the Board’s juris-
diction that, consistent with the present decision, it has re-
moved from the International constitution the offending lan-
guage.
Otherwise, for remedial purposes, I shall follow generally
Board precedent as announced in Graphic Communications
Local 458 (Noral Color), 300 NLRB 7 (1990).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondents, International Union of Operating Engi-
neers, AFL–CIO, and International Union of Operating Engi-
neers, Local 399, Chicago, Illinois, AFL–CIO, and each of
them, their officers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining in effect article XXIV, subdivision 3, sec-
tion (b) of the International Union’s constitution and article
V, subdivision 3, section (a)(2) of the bylaws and general
rules of Local 399 to the extent that such documents provide
as follows:
The admission to membership in conformity to the
Constitution, Obligation and Ritual constitutes a con-
tract between the member, his local Union, the Inter-
national Union and every other member therein, where-
445OPERATING ENGINEERS LOCAL 399 (TRIBUNE PROPERTIES)
10 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
by, in consideration of the benefits bestowed by such
membership, he agrees that he will remain a member
until expelled; that he will not violate the Constitution,
laws, Rules, Obligation and Ritual, and the decisions,
rulings, orders and directions of the International Union
or its subordinate branches, nor the trade rules of the
locality in which he works; that he will not enter into
the employment of any person conditioned on severing
his membership with t:his organization: that upon the
termination of his membership he will acknowledge his
Obligation to be still binding upon him and refrain
from doing any act or deed in violation of the prin-
ciples, Constitution, Laws, Obligation, Ritual and poli-
cies of this Organization, and the decisions of any au-
thority of the International Union empowered by this
Constitution to make them.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove from and, on republication, physically remove
from the International Union’s constitution and Local 399’s
bylaws and general rules and from all other of their govern-
ing documents, all of the matter appearing above in the in-
dented paragraph in l(a).
(b) Post at their business offices and meeting halls copies
of the attached notice marked ’’Appendix.’’10 Copies of said
notices on forms provided by the Regional Director for Re-
gion 13, after being signed by authorized representatives of
each of the Respondents herein, shall be posted by the Re-
spondents immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that the
notices are not altered, defaced, or covered by any other ma-
terial.
(c) Sign and return to the Regional Director sufficient cop-
ies of the notices for posting by Tribune Properties, Inc., if
willing, at all places where notices to employees are cus-
tomarily posted.
(d) Publish in Respondent International’s magazine and
Local 399’s newsletters to members, if any, on three succes-
sive occasions, following adoption by the National Labor Re-
lations Board of this Recommended Order, notification to
members that the language appearing in paragraph l(a),
above, has been expunged, respectively, from both the Inter-
national Union’s constitution and Local 399 bylaws and Gen-
eral Rules. In addition, at the time of the initial publication
in its magazine notifying members of the expunction of the
above language in paragraph l(a) Respondent International
shall also notify each of its constituent locals in the United
States that it has expunged from its constitution the said lan-
guage.
(e) Notify the Regional Director in writing within 20 days
from the date of the Order what steps each of the Respond-
ents have taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT maintain in effect article XXIV, subdivision
3, section (b) of the International Union’s constitution and
article V, subdivision 3 section (a)(2) of the bylaws and gen-
eral rules of Local 399, International Union of Operating En-
gineers, AFL–CIO, to the extent that such documents provide
as follows:
The admission to membership in conformity to the
Constitution, Obligation and Ritual constitutes a con-
tract between the member, his Local Union, the Inter-
national Union and every other member therein, where-
by, in consideration of the benefits bestowed by such
membership, he agrees that he will remain a member
until expelled; that he will not violate the Constitution,
laws, Rules, Obligation and Ritual, and the decisions,
rulings,orders and directions of the International Union
or its subordinate branches, nor the trade rules of the
locality in which he works; that he will not enter into
the employment of any person conditioned on severing
his membership with this organization; that upon the
termination of his membership he will acknowledge his
Obligation to be still binding upon him and refrain
from doing any act or deed in violation of the prin-
ciples, Constitution, Laws, Obligation, Ritual and poli-
cies of this Organization, and the decisions of any au-
thority of the International Union empowered by this
Constitution to make them.
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
WE WILL remove and, on republication, We will physically
remove from the International Union’s constitution and Local
399’s bylaws and general rules, and from all other of our
governing documents all of the matter appearing indented,
above.
INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, AFL–CIO; INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL 399