Plasterers Local 744 (Chamac Inc.)

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 829 (N.L.R.B. 1984)

PLASTERERS LOCAL 744 (CHAMAC INC.) 829
Operative Plasterers and Cement Masons Interna-
tional Association, Local Union 744, AFL-CIO
(Chamac Inc.) and Dennis 0. Jones. Case 21-
CB-8734
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 31 July 1984 Administrative Law Judge Earl-
dean V. S. Robbins issued the attached decision.
The Respondent filed exceptions and a supporting
brief and the General Counsel filed a brief in re-
sponse.
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 2 and to adopt the recommended Order
as modified and set forth in full below.3
ORDER
The National Labor Relations Board orders that
the Respondent, Operative Plasterers and Cement
Masons International Association, Local Union
744, AFL-CIO, San Diego, California, its officers,
agents, and representatives, shall
1. Cease and desist from
The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188, F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis fcir reversing
the findings
2 We agree with the Judge's finding that, although the Respondent had
not notified its International Association of its receipt of Dennis and
Orvel Jones' resignations pnor to their refusal of the Respondent's order
to leave the Jobsite of a nonsignatory employer, this notification was not
a precondition under the Respondent's bylaws to perfecting their resigna-
tions. We also agree with the judge's conclusion that the Respondent ac-
cordingly violated Sec 8(b)(1)(A) of the Act by fining Dennis and Orvel
Jones for refusing its order after they had effectively resigned from the
Respondent's membership We find, moreover, that the restrictions on
resignations in the Respondent's byldws are invalid, and that the Re-
spondent violated Sec 8(b)(1)(A) by imposing fines on Dennis and Orvel
Jones pursuant to such provisions See Machinists Local 1414 (Neufeld
Porsche-Audi), 270 NLRB 1330 (1984) ,
For the reasons stated in his dissenting opinion in Neufeld Porsche,
supra, Member Zimmerman agrees that SeC 47(d) of Respondent's
bylaws, which restricts resignations only to union members who have
been on the rolls for 5 years, constitutes an unreasonable restriction on a
member's right to resign and violates Sec 8(b)(1)(A) of the Act
3 The order is modified to require the Respondent to notify Dennis
and Orvel Jones, in writing, that 'It has rescinded its fines against them
and that it has expunged from its records evidence of its unlawful disci-
pline of them It is also modified to require the Respondent to expunge
the restrictions on resignations set forth in bylaw 47(d) of its governing
documents See Neufeld Porsche-Audi, supra
(a) Maintaining in its governing documents the
restrictions on resignations set forth in bylaw 47(d)
and in the corresponding provision of the Opera-
tive Plasterers and Cement Masons International
Association's constitution.
(b) Restraining or coercing Dennis 0. Jones,
Orvel Jones, or any other employee who has re-
signed from, and is no longer a member of, the Re-
spondent in the exercise of the rights guaranteed
them in Section 7 of the Act, by fining them be-
cause of their post-resignation conduct in refusing
to leave a jobsite when requested to do so by the
Respondent's business agent.
(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Expunge from its governing documents the
restrictions on resignations set forth in bylaw 47(d)
and in the corresponding provision of the Opera-
tive Plasterers and Cement Masons International
Association's constitution.
(b) Rescind the fines levied against Dennis 0.
Jones and Orvel Jones because they refused to
leave a jobsite when requested to do so by the Re-
spondent's business agent; expunge from its records
any reference to such fines and all disciplinary ac-
tions which led thereto and notify them in writing
that this has been done; and refund any money paid
to the Respondent as a result of such fines, plus in-
terest.
(c) Post at its business office and meeting halls
copies of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, 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) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
273 NLRB No. 110
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
, To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
Accordingly, we give you these assurances.
WE WILL NOT restrain or coerce Dennis 0.
Jones, Orvel Jones, or any other employee who
has resigned from, and is no longer a member of,
the Union, in the exercise of the rights guaranteed
them in Section 7 of the Act, by fining them be-
cause of their postresignation conduct in refusing
to leave a jobsite when requested to do so by our
business agent.
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 rescind the fines levied against Dennis
0. Jones and Orvel Jones because they refused to
leave a jobsite when requested to do so by our
business agent, and expunge from our records any
reference to such fines and all disciplinary actions
which led thereto and notify them in writing that
this has been done; and WE WILL refund any
money paid to us as a result of such fines, plus in-
terest.
WE WILL expunge from our governing docu-
ments the restrictions on resignations set forth in
bylaw 47(d) and in the corresponding provision of
the Operative Plasterers and Cement Masons Inter-
national Association's constitution.
MASONS INTERNATIONAL ASSOCIA-
TION LOCAL UNION 744, AFL-CIO
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge.
This matter was heard before me in San Diego, Califor-
nia on May 3, 1984. The charge was filed by Dennis 0.
Jones, an individual, on January 18, 1984, and served on
Operative Plasterers and Cement Masons International
Association, Local Union 744, AFL-CIO (Respondent),
on January 19, 1984. The complaint, which issued on
February 8, 1984, alleges that Respondent violated Sec-
tion 8(b)(1)(A) of the National Labor Relations Act (the
Act). The basic issue herein is whether Respondent im-
posed court-collectible fines on employees Dennis Jones
and Orvel Jones for refusing Respondent's instructions to
leave a jobsite where they were working for a nonsigna-
tory contractor at a time when both Dennis Jones and
Orvel Jones had tendered valid resignations from Re-
spondent.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Chamac Inc. (the Em-
ployer) has been a California corporation engaged in
business as a general building contractor in Southern
California. In the normal course and conduct of its busi-
ness operations, during the 12-month period preceding
the issuance of the complaint herein, the Employer per-
formed services valued in excess of $50,000 directly to
customers located outside the State of California and,
during that same period, purchased and received goods
valued in excess of $50,000 directly from suppliers locat-
ed within the State of California; each of which suppli-
ers, in turn, purchased and received those same goods di-
rectly from suppliers located outside_the State of Califor-
nia
The complaint alleges, Respondent admits, and I find
that the Employer is now, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I ,find
that Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The facts herein are undisputed. Dennis and Orvel
Jones were employed by Chamac at the time that Cha-
mac's most recent agreement with Respondent expired in
mid-June 1983 1 They Continued to work for Chamac
and, after consulting with an attorney, submitted individ-
ual written resignations from the Union. The resigna-
tions, which were delivered to the Union office on June
21 by Bruce St John, state:
I hereby resign from your union effective 6-21-,
1983, or the earliest legally-permissible date. How-
ever, I will continue to pay all _regular dues and
fees.
' Unless otherwise indicated, all dates herein will be in 1983
PLASTERERS LOCAL 744 (CHAMAC INC ) 831
St. John testified, without contradiction, that he gave
the completed resignation forms of both Dennis and
Orvel Jones to the man behind the counter at the union
office, whereupon the man behind the counter showed
him a paper which St John read and which seemed to
indicate that the resignations submitted by the Joneses
were not valid St. John asked for a copy of the paper,
but was told he could not have one. He then told Dennis
Jones, who was waiting outside, that the man behind the
counter had shown him a typewritten letter which
seemed to indicate that the resignations were invalid. St.
John further reported that this person would not give
him a copy of the letter, but said that Dennis and Orvel
Jones would receive copies of it in the mail.
Later that day, Dennis Jones returned to the union
office and spoke to the office clerk, Larry French. Jones
said he was there in reference to the forms he had deliv-
ered to Respondent. French said, "Yes, those are invalid
They are no good." Jones asked why, and French
handed him a copy of a letter. According to Jones, the
letter said they could not resign from the Union unless
they were members in good standing for 5 years. Jones
told French that both he and his father, Orvel Jones, had
been in the Union for over 5 years. French said that was
not the part which pertained to them. Another portion of
the letter said a member had not properly resigned until
the secretary-treasurer mailed a certain form to the Inter-
national and they received the form. Jones said it was
their understanding that the resignations were valid and
he asked French if he could keep the letter. French said
no, and Jones left. Jones denies, without contradiction,
that he ever received a copy of the letter he was shown
by French.
On October 17, Woodrow Bailey, an officer of Re-
spondent, came onto the Chamac jobsite where Dennis
and Orvel Jones were working. According to Dennis
Jones, Bailey said, "You know, I'm'going to have to ask
you guys to leave." Dennis Jones said, "Yes, I under-
stand that and we can't leave. We are working for
Chamac and we want to do their work." Bailey said,
"Okay, as long as you understand."
On November 29, Respondent sent identical letters to
Dennis and Orvel Jones, the body of which reads:
Please be advised that on Wednesday, December 21,
1983, at 7:30 p.m., at 3909 Centre Street, San Diego,
California 92103, charges preferred against you by
Woodrow W. Bailey will be heard by the Executive
Board of Cement Masons Local #744.
Any evidence, witnesses who are members of O.P.
& C.M.I.A., etc., should be presented at this time.
If you should have any further questions regarding
the above, please feel ' free to contact the under-
signed.
Enclosed with each of the letters was the following
excerpt from Respondent's bylaws.
VIOLATION OF LOCAL UNION BYLAWS
ART. 3. SEC 1 When members are called off the
job by the Business Agents of this Union, they shall
immediately quit work without discussion and leave
the job without making any disturbance
The hearing was held as scheduled on December 21.
Bailey explained the basis of the charge, that he had
asked Orvel and Dennis Jones to leave the jobsite and
they had refused. When , the Joneses pleaded "Not
guilty," one of the board members asked how could they
plead not guilty if the facts were correct. Dennis Jones
said it was his understanding that they did in fact resign
from the Union, that they had submitted their resigna-
tions with the intention to continue to pay dues, which
they had been paying, and it was his understanding that
they could work a nonunion job and not be subject to
being fined.
Nevertheless, fines were imposed against them and
each of them was so notified by letter dated January 13,
1984, the body of which reads.
Please be advised that the fine of $250.00 imposed
on you by the Executive board of Cement Masons
Local #744, has been reduced to $200 00 by the
International Association. In addition to the $200.00
fine, you must also submit $40.00, which is the per-
centage due the International, for a total of $240.00
You are advised that you have the right to appeal
or protest this fine, but you must enter such protest
within 30 days that follow the registration of such
fine, or until February 10, 1984 If you desire to
protest, the fine must be paid to the International in
full by Money Order or Certified Check, before the
General Executive Board will consider any protest.
You are further advised that this fine will be held in
abeyance for sixty days, or until March 10, 1984,
and if not paid or arrangements made to pay by that
date, you will be dropped from the rolls
The complaint alleges that by the imposition of these
fines following Dennis and Orvel Jones' resignations
from the Union, Respondent has violated Section
8(b)(1)(A) of the Act. The Union argues that the resigna-
tions were not valid and therefore the fines were lawful.
It is well established that a labor organization Violates
Section 8(b)(1)(A) of the Act when it fines or attempts to
discipline an employee for conduct in which the employ-
ee engages following the employee's valid resignation
from the labor organization It is not necessary to show
that the union has actually instituted a court proceeding
seeking to enforce the fine. NLRB v. Textile Workers
Local 1029, Granite State Joint Board, 409 U.S. 213, 217
(1972); Machinists Local 1994 (O.K. Tool Co.), 215 NLRB
651 (1974), Auto Workers Local 647 (General Electric),
197 NLRB 608 (1972); Chemical Workers Local 6-578
(Gordy's, Inc.), 238 NLRB 1227 (1978); Electrical Workers
IBEW Local 2131 (Rucker Electronics), 217 NLRB 46
(1975). Further, the Board has recently held that a union
may not lawfully restrict the right of its members to
resign from membership Machinists Local 1414 (Neufeld
Porsche-Audi), 270 NLRB 1330 (1984).
Respondent argues, in essence, that it did not seek to
restrict the right of Dennis and Orvel Jones to resign,
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but rather that its constitution and bylaws contain a valid
rule which sets forth the method by which a member
may effect his resignation from Respondent, that Orvel
and Dennis Jones did not comply with this rule and
therefore their resignations Were not valid and, accord-
ingly, the fines were permissible under the Act.
The provision on which Respondent relies reads as fol-
lows in both tine International constitution and- Respond-
ent's bylaws:
Section 47(d). Any member who has been on the
rolls of the International Association for the period
of five (5) continuous years prior to requesting right
to resign, may submit resignation if paid up in all
dues and assessments at the time of resigning and
his Local Union may accept such resignation but
must so notify the International Association on ap-
propiate forms to be made available by the General
Secretary-Treasurer.
Clearly, the restrictions as to length of membership
and the payment of dues and assessments are unlawful.
However, no attempts to enforce these restrictions are
involved here, and essentially Respondent is arguing that
a requirement that resignations be submitted to the Inter-
national is permissible. It is not clear from Neufeld
whether a union may enforce a- reasonable rule as to the
method or form of a resignation. However, even assum-
ing arguendo that such a rule is permissible, Section
47(d) does not 'appear on its face to prescribe a method
of effecting a resignation. Rather the rule appears to pre-
scribe only for notification from the Local Union to the
International that the Local Union has accepted the res-
ignation.
Here, - Dennis and Orvel Jones tendered their un-
equivocal resignations on June 21. At that point, they
had done all they were required_ to do under Respond-
ent's rules. Yet Respondent is contending that the resig-
nations were not perfected because as of October 17, the
day they refused to leave the jobsite on the request of a
union officer, Respondent and/or its parent body had not
completed the ministerial acts required by- , Rule 47(d).
Thus even if Section 47(d) is interpreted as urged by Re-
spondent and if a rule is permissible which provides that
resignations are effective only upon submission to the
International Union, the rule was not reasonably en-
forced as required by Scofield v. NLRB. 2 Accordingly, I
• 2 In Scojield v NLRB, 394 U S 423 (1969), the Supreme Court articu-
lated a three-part test for determining when a union disciplinary rule is
find that by imposing fines_ on Dennis Jones and Orvel
Jones; former members who had duly resigned from the
Union, for refusing to leave a jobsite, where they were
working for a nonsignatory contractor, when instructed
to do so by Respondent's business agent, Respondent has
violated Section 8(b)(1)(A) of the Act.
,
CONCLUSIONS OF LAW
1. Chamac is an employer engaged in .commerce
within the meaning of Section 2(2), (6), and (7) of- the
Act.
2 Respondent is a labor organization within the mean-
ing ofSection 2(5) of the Act.
3. By imposing court-collectible fines on Dennis Jones
and Orvel Jones, former members who had duly re-
signed from Respondent, because of their postresignation
conduct in refusing to leave a jobsite when requested to
do so by Respondent's business agent, Respondent has
committed unfair labor practices in violation of Section
8(b)(1)(A) of the Act.
4. The above-described unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, certain unfair labor practices, I shall recom-
mend that Respondent cease and desist therefrom:and
take - certain affirmative action in order to effectuate the
purposes of the Act.
Having found that Respondent has unlawfully imposed
fines against Dennis Jones and Orvel Jones, L shall rec-
ommend that Respondent be ordered to -rescind the un-
lawful fine levied against them because they refused to
leave a jobsite when requested to do so by Respondent's
business agent, refund any money paid to Respondent as
a result of such fines, plus interest computed in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977), 3 and expunge from its records any reference to
the fines and all disciplinary actions which led thereto.
[Recommended Order omitted from publication.]
reasonable A union is free to enforce a properly adopted rule that (1)
reflects a legitimate union interest, (2) impairs no policy that Congress
has embedded in the labor laws, and (3) is reasonably enforced against
union members
3 See generally Isis Plumbing Co., 138 NLRB 716 (1962)